Edmonton police ordered to charge officer

September 15, 2010
Conal Pierse, Edmonton Journal

Alberta's Law Enforcement Review Board has ordered Edmonton's police chief to charge an officer for allegedly using excessive force when he Tasered a man four times in 2003.

In a ruling issued Tuesday, Chief Mike Boyd is directed to charge Const. Aubrey Zalaski with unlawful or unnecessary exercise of authority for applying a level of force inappropriate for the circumstances.

The directive was prompted by a complaint from Timothy Ferguson in relation to his arrest on Dec. 24, 2003. The report is an account of what happened that night, based on evidence, statements compiled after the incident and cross-examinations conducted by the board.

The report does not include any information about charges or convictions related to the arrest.

That night, police were responding to a domestic disturbance at Ferguson's residence. He had allegedly thrown a barbecue off his 10th-storey balcony and was yelling in a threatening manner at his girlfriend.

According to the report, Ferguson had consumed methamphetamine and alcohol earlier that night and appeared to be enraged and intoxicated when police arrived. The officers had to force their way into his apartment, at which point Ferguson assaulted one of them, officers said.

The officers called for backup, fearing their lives were in danger. Four other officers responded before Zalaski arrived, and they employed a variety of tactics to restrain Ferguson, including pepper spray, baton strikes and physical strikes and holds.

The report states that Ferguson was also Tasered, which failed to weaken his resistance. The officers resorted to physical restraints.

When Zalaski arrived, Ferguson was face down, restrained by two officers while a third was wrapping up wires to his Taser. One officer requested a mask to prevent Ferguson from spitting. Zalaski went to his cruiser to retrieve one.

Zalaski stated that Ferguson did not calm down after the mask was placed on him and began to increase his resistance. Zalaski then Tasered Ferguson four times.

Ferguson notified the police chief on Dec. 31, 2003, of his intent to file a complaint about excessive force used in his arrest; however, he didn't file the particulars of his complaint until more than two years later on Feb. 12, 2006.

The chief directed an investigation into the incident and stated in a disposition letter on Dec. 1, 2008, that there was no evidence to corroborate Ferguson's claims and that criminal charges were not warranted.

Ferguson appealed the decision to the LERB nine days later, and following an investigation the board concluded "that an objectively reasonable person might not consider the Tasering of the appellant reasonable given that it was deployed four times while the appellant was being held down by several large male officers, was handcuffed, was wearing a spit mask, and was displaying symptoms of excited delirium."

The LERB also directed Boyd to hold a hearing as outlined in the Police Act in relation to the charge.

The actions of other officers accused of excessive force were deemed reasonable by the board "given the urgency of the situation and the intensely violent and aggressive nature of the appellant," the report said.

The board raised concerns about the adequacy of the chief's investigation, noting that Taser download information was only discovered and disclosed after the LERB hearing was underway.

The LERB also noted that Ferguson's lengthy delay in providing the particulars of his complaint made it difficult for the chief to properly investigate all matters in question.

Dean Parthenis, spokesperson for Edmonton Police Service, said the department is withholding comment until the decision has been reviewed by EPS legal advisers.