Constable's story evolved, lawyer says

February 12, 2011
Jana G. Pruden, Edmonton Journal

An Edmonton lawyer says a police officer's original notes -- not his subsequent testimony at a disciplinary hearing -- tell the real story of a 2002 arrest during which a teenager was repeatedly Tasered.

Const. Mike Wasylyshen, the son of former police chief Bob Wasylyshen, discharged his Taser eight times in the course of about a minute while arresting 16-year-old Randy Fryingpan.

Wasylyshen is charged with using inappropriate force during the arrest, and for allegedly hitting Frying pan in the head, causing him to lose a tooth. Wasylyshen also faces insubordination charges for violating police procedure, in part by allegedly having an unauthorized civilian with him on a ride along at the time.

The case was the subject of a police disciplinary hearing this fall, and the proceedings resumed on Friday for closing arguments from the prosecution.

Presenting officer Derek Cranna told the hearing he believes there is enough evidence to find Wasylyshen guilty on all of the disciplinary charges.

Wasylyshen's lawyer, Robert Hladun, will present his closing arguments when the hearing reconvenes next month.

The arrest happened on Oct. 5, 2002, as Fryingpan was sitting in a parked car on Abbottsfield Road with friends.

Wasylyshen responded to the scene to investigate whether the car was stolen. He got into a confrontation with Fryingpan when the drunken teen refused to get out of the car.

Testifying at the disciplinary hearing in November, Wasylyshen said he Tasered Fryingpan six times, not eight, because he contacted himself with one of the Taser strikes and another was unaccounted for. He said the Taser deployed for a complete five-second cycle only once.

Wasylyshen maintained the response was an appropriate use of force, which was in keeping with police procedure at the time.

But Cranna said that Wasylyshen's account of the event has changed through the years, and that details have changed to justify his actions.

Cranna said Wasylyshen's original notes describe only that Fryingpan pushed the officer's hands away, but in subsequent reports and proceedings Wasylyshen described being "violently pushed," or "batted away," and being hit in the arm with a closed fist.

"You can see the evolution of this over time," Cranna said, adding Wasylyshen provided details that would justify his actions.

He said Wasylyshen wasn't concerned enough about the dangers of the situation to wait for other officers, despite knowing that they would be arriving at the scene within moments.

Cranna said with eight Taser discharges in 68 seconds, Fryingpan wouldn't have had enough time to comply.

"The circumstances do not point to appropriate use of force," Cranna said. "They do not."

After the incident, then-chief Bob Wasylyshen decided no disciplinary action should be taken against any of the officers involved, but the Law Enforcement Review Board later ordered that charges be laid.

Alberta criminal trial lawyers slam police-discipline changes

November 5, 2010
Keith Gerein, Edmonton Journal

EDMONTON — The Criminal Trial Lawyers’ Association is furious over provincial changes to the police discipline process, which the group says will make it more difficult to pursue complaints against misbehaving officers.

The proposed rules were introduced in the legislature Thursday by Solicitor General Frank Oberle, who said they were needed to streamline and speed up how such cases are handled. Changes include restrictions on who can launch a complaint, more powers to dismiss frivolous complaints and provisions to shorten appeals.

The lawyers' association said it was most concerned by an amendment that will stop "third parties" from making complaints. Only people directly affected by an officer's behaviour, their loved ones, or witnesses would be allowed to make submissions under the proposed rules.

"This will prevent people who see something in the news that disturbs them from lodging complaints," Oberle told his fellow MLAs Thursday.

"They were not witnesses to or impacted by the event, nor are they related to or acting on behalf of a complainant. Complaints of this nature eat up both time and resources and this proposal will prevent these types of complaints from going forward."

Lawyers' association member Tom Engel, an outspoken critic of the Edmonton Police Service in recent years, believes this rule change is specifically targeted at his organization. As a third party, his association has brought forward complaints for people unable or unwilling to proceed on their own, he said, noting the case of homeless people who were allegedly rounded up in a police van and dumped in a different part of the city.

"This will basically make it impossible for us," Engel said. "It's very apparent that they are trying to cut the CTLA out of the equation. It's very apparent the police services here have the ear of the solicitor general.

"They like to sweep things under the carpet and obviously having the CTLA around wasn't working for them."

A spokeswoman for the solicitor general said groups like Engel's will still have the option of bringing their concerns about an officer to the police chief, but the case would proceed only if the chief himself then decides to launch a complaint.

Another contentious amendment says that in cases involving "non-serious" incidents, the police chief's decision will be considered final. Currently, such decisions can be appealed to the Law Enforcement Review Board. Taking away that appeal avenue is unfair to both complainants and officers, and will allow chiefs to keep case details under wraps, Engel said.

"If he doesn't want something to see the light of day ... you're going to see a big increase in dispositions without hearings."

Other proposed changes include:

- - Provisions to allow the review board to get through appeals faster, including holding fewer trial-like oral hearings;

- - Greater powers for cases to be dismissed when the complainant declines to participate in hearings or misbehaves;

- - Allowing alternative dispute resolutions in appropriate cases.

"In some cases all that is needed for resolution is a simple apology or acknowledgment of the complaint," Oberle said.

"An officer who is seen as disrespectful during a routine traffic stop might be a good example where alternative dispute resolution would work."

The amendments fall short of the Edmonton Police Association's call for all police complaints to be handled by a civilian oversight body.

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.

Edmonton police Taser complaint probe 'inadequate'

July 9, 2010
CBC News

Edmonton police have been ordered to conduct a new investigation into a lawyer's complaint that officers used a Taser stun gun on him during Stanley Cup celebrations on Whyte Avenue in 2006.

Brian Fish filed a complaint with the province's Law Enforcement Review Board after an internal police investigation found no wrongdoing by two officers. The hearing was held last fall.

In a ruling released Thursday, the review board called the original police probe "inadequate" and ordered Fish's complaint be sent back to Chief Mike Boyd for reinvestigation.

"Based on the fact that at least two officers referred to in the complaint were not even identified as relevant to the investigation, the board concludes that the investigation was deficient," acting chair Kathy Grieve writes in the decision.

Fish told CBC News he was pleased with the ruling and said he felt it was important for police to conduct a new investigation, even though the incident took place four years ago.

"I think the police chief and the police upper echelons and the police union just don't get it," he said. "And it is important for them to understand that they are servants of the public. They are not oppressors."

Officer incorrectly identified

The board examined 14 photographs taken by Fish on June 17, 2006. Fish's son Nigel had been on Whyte Avenue during celebrations after the Edmonton Oilers forced a Game 7 in the Stanley Cup finals when they beat the Carolina Hurricanes.

Nigel Fish called his father after police arrested his friend, expressing concerns police were "out of control." When Brian Fish arrived, he started taking pictures of another arrest, which caught the attention of an officer, who ordered him to stop.

When he refused, Fish alleges, he was knocked to the ground and an officer used a stun gun on him. Fish says he was handcuffed and detained.

He wasn't released until hours later, when he finally agreed to give police his name.

The board found one of the officers who is the focus of the complaint was misidentified in two of the photos. No attempt was made to identify or interview the correct officer during the internal investigation.

Edmonton police also never attempted to interview another officer, shown in three of the photos, who allegedly mistreated Fish's son.

"The lack of clarity concerning the identities of just who the respondent officers were, and which other officers could provide insight into the complaint, lead the board to conclude that the only reasonable outcome of this appeal is to direct the chief to reinvestigate the appellant's complaint," Grieve writes.

The board ordered police to find and interview those two officers — and document the attempt if they are not successful in identifying one of the officers — as well as identify and speak to other officers shown in the photos.

Edmonton police chief directed to charge officer over Taser incident

August 18, 2009
By FRANK LANDRY, CITY HALL BUREAU

Police Chief Mike Boyd has been directed to lay charges against an Edmonton cop who repeatedly used a stun gun on a 16-year-old boy nearly seven years ago.

In its decision, the Law Enforcement Review Board calls for charges of "unlawful or unnecessary exercise of authority" and "insubordination" against Const. Mike Wasylyshen.

The board also recommends a presiding officer outside of the Edmonton Police Service oversee the disciplinary hearing.

According to an agreed statement of facts, Wasylyshen and four other officers were dispatched to a complaint of people trying to steal a parked car. The call was in the area of Abbottsfield Road. The cops, including Wasylyshen, ordered the people out of the vehicle without first questioning them or conducting a query on the licence plate. Three of four people inside immediately exited, but Randy Fryingpan was passed out in the backseat "as a result of his alcohol consumption and did not respond to the order to get out of the vehicle."

Wasylyshen fired his Taser at Fryingpan eight times over a period of a little more than a minute.

Fryingpan was arrested and later taken to the Sturgeon Community Hospital "where he was noted to have bruising to the left eye area, a skin flap laceration to the left fifth finger and a broken tooth."

Later, at the Edmonton Young Offenders Centre, he was observed to have several marks on his body "that appeared to be consistnt with burns caused by a Taser," states the decision.

The board concludes that: “Wasylyshen deployed his Taser on (Fryingpan) eight times in the span of 68 seconds, in what appeared to be an effort to remove the passed-out youth from the vehicle," states the decision.

"No evidence was presented to justify the use of a Taser; nor was any evidence presented to explain why the Taser was deployed eight times in just over a minute."

During the incident, Fryingpan suffered a blow to the back of his head. He fell to the ground and chipped his tooth, states the decision.

The board said there is sufficient evidence to suggest Wasylyshen "could have administered the blow."

Judge Jack Easton later halted Fryingpan's trial for breaching his bail conditions after concluding the teen's charter rights had been repeatedly violated by Wasylyshen, who, the judge declared, had used excessive force on the teen.

But Wasylyshen was never disciplined over the incident, as the EPS found insufficient evidence to support charges against him.

Fryingpan's lawyer launched an appeal to the Law Enforcement Review Board in 2005.