August 22, 2016
Following a thorough review of the evidence and a close analysis of the relevant law, it has been determined that there will not be a prosecution against the subject officer who was involved in the death of Anthony Dennis Heffernan.
This Case Assessment is provided to explain the standard for commencing prosecutions and to assist the public in understanding the reasons for the Alberta Crown Prosecution Service’s (ACPS) decision that there will not be a prosecution in this case.
Prosecution Guidelines and the Criminal Standard of Proof
The decision to prosecute or to discontinue a prosecution is among the most significant of the decisions that will be made by a Crown prosecutor. Prosecutions which are not well-founded in law or fact, or which do not serve the public interest, would needlessly expose citizens to the anxiety, expense and embarrassment of a trial. On the other hand, the failure to effectively prosecute a meritorious case can directly impact public safety. Both situations tend to undermine the confidence of the community in the criminal justice system. Crown prosecutors must not simply adopt the views of others and considerable care must be taken in each case to ensure that the best possible decision is made.
As such, in each case, Crown prosecutors must consider two overarching questions when determining whether to prosecute. First, is the evidence sufficient to justify the commencement or continuation of proceedings? Second, even if the evidence is sufficient, is the commencement or continuation of the prosecution in the public interest?
As to the first question, the evidence will be sufficient only if it establishes a “reasonable likelihood of conviction”. A just and fair prosecutorial system must ensure that a prosecution will only be initiated and/or continued against a person in cases where there is adequate evidence to support the case. The evidence must be such that a reasonable jury, properly instructed, is more likely than not to convict.
This prosecution standard is more onerous than the police standard for laying charges. Once at trial, the standard is even higher — before a person may be convicted of any crime, the case must be proven beyond a reasonable doubt. These checks and balances mean that it is possible for one standard to be met, but for the case to fail to meet the next more onerous standard.
The guidelines applied by the ACPS in reviewing all prosecution and opinion files are collected in the Crown Prosecutors’ Manual, available online at:
Of particular significance in this case is the Decision to Prosecute Guideline.
Overall Summary of the Facts
On March 16, 2015, officers with the Calgary Police Service (CPS) responded to a “check on welfare” complaint of a lone male, Anthony Dennis Heffernan, locked inside a motel room in Calgary.
Responding officers arrived but were unsuccessful in communicating with
Mr. Heffernan. As the officers were concerned that Mr. Heffernan might be in a drug-induced state causing him medical distress, Calgary Emergency Medical Services (EMS) was called to assist the officers. EMS arrived on scene but remained in the lobby of the motel while officers continued to attempt communication with Mr. Heffernan.
Mr. Heffernan refused to allow police officers access into his room and, after all other options were exhausted, the officers decided to forcibly enter the room. Upon entry, the five police officers found Mr. Heffernan standing near a bed with a syringe in his left hand and a lighter in his right hand. One of the officers had his Conducted Energy Device (CED), commonly referred to as a “Taser”, drawn and three of the other officers had their service firearms drawn.
Officers repeatedly directed Mr. Heffernan to drop the syringe, but he was unresponsive and did not comply with any police directions. Throughout, the officers feared that being stuck by a needle of a syringe could cause infection, potentially for HIV or Hepatitis. The officers believed Mr. Heffernan’s syringe to have had a needle attached, although the subsequent investigation revealed otherwise.
The officer whose Taser was drawn fired it at Mr. Heffernan and made contact with Mr. Heffernan’s body. Mr. Heffernan fell back onto one of the two beds in the room. Officers moved in at this point in an attempt to disarm and restrain
However, Mr. Heffernan was flailing about on the bed and in the process the Taser probe that made contact was dislodged. Mr. Heffernan got up from the bed and moved towards the officers. He still had the lighter and syringe in his hands. The officers perceived Mr. Heffernan’s actions as confrontational and threatening.
At this point, only the subject officer had his service firearm drawn. A different officer had drawn his own Taser. Simultaneously, the subject officer fired his service firearm six times at Mr. Heffernan, striking him four times; and the other officer fired his Taser, also striking Mr. Heffernan.
Mr. Heffernan collapsed on the floor and died. Autopsy results confirmed that
Mr. Heffernan died from four gunshot wounds.
These events all unfolded very quickly. The total time frame from the officers being in the room to the time of the shooting was 72 seconds. The time between the use of the first Taser and the use of the service firearm was 11 seconds.
Afterward, the lighter was found still in Mr. Heffernan’s right hand. A syringe was found underneath his right shoulder. This syringe did not have a needle attached to it. Also found in the room afterwards were other syringes, with and without needles, and needle tips that had been broken off of used syringes. Cocaine and Mr. Heffernan’s blood were found on some of the needles and syringes.
The Key Issue
The key issue in this case was whether the subject officer was justified in using lethal force pursuant to sections 25 and/or 34 of the Criminal Code of Canada.
The Applicable Law
- Section 25 of the Criminal Code of Canada
Section 25(1) of the Criminal Code provides that a police officer, acting on reasonable grounds, is “justified in doing what he is required or authorized to do and in using as much force as necessary for that purpose”. Under section 25(3), a police officer is justified in using lethal force if he or she believes on reasonable grounds that it is necessary for his or her “self-preservation…or the preservation of any one under [his or her] protection from death or grievous bodily harm”. If these justifications apply in a given set of circumstances, they provide a complete defence to otherwise unlawful conduct.
This provision recognizes that police officers may sometimes need to resort to force in carrying out their duties. However, this authorization is properly limited by principles of proportionality, necessity and reasonableness. What is proportionate, necessary and reasonable within the meaning of the law will depend on the totality of the circumstances and is assessed from the point of view of the officer, recognizing the dynamic nature of police interactions with citizens.
- Section 34 of the Criminal Code of Canada
Section 34(1) of the Criminal Code provides that a person is not guilty of an offence if
(a) they believed on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
The test applied under section 34 is whether the subject officer honestly believed that either he or someone else was subject to the use or threat of force and, if so, whether that belief was reasonable. The defensive act must be reasonable in the circumstances.
Facts Relevant to Key Issue
ASIRT investigators interviewed many witnesses, including the officers who responded to the scene and were in the room with the subject officer.
All officers confirmed that they attended the motel to assist Mr. Heffernan. Once there, initial attempts to be let into the room proved futile. Alternatives previously tried by motel staff included knocking on the door and telephoning the room. The subject officer also tried to speak with Mr. Heffernan through the door when it was both closed and after it had been partially opened with the master key. The officers were able to see Mr. Heffernan through the partially-opened door, but he was unresponsive. It was only when the police officers could no longer communicate with or see Mr. Heffernan through the gap in the door that they decided to forcibly enter the room. The officers obtained permission from a supervising officer to do so due to their concern over Mr. Heffernan’s medical condition. Not knowing Mr. Heffernan’s medical condition, it is fair to say that forced entry was the only alternative. Entry in these circumstances was permissible, as it was with the intent to protect life and prevent injury.
Police entered the room, described as small, and attempted to communicate with Mr. Heffernan and determine his condition. The officers were fearful of serious injury, including HIV or Hepatitis infection, from the syringe that Mr. Heffernan was holding up. The first officer had his Taser drawn and three of the other officers had their service firearms drawn as a precaution. Police maintained an initial distance of about six to eight feet from Mr. Heffernan. It was only when the police noted the syringe in Mr. Heffernan’s hand and his unwillingness or inability to follow police issued commands that the Taser was deployed.
A review of the responding officers’ accounts of Mr. Heffernan’s behaviour prior to being Tasered is as follows.
- Acting irrationally, had a dazed look, and did not seem lucid
- Gesturing towards the officers with the syringe
- Sliding the plunger of the syringe up and down
- Pointing the syringe in an aggressive manner but did not move initially
- Pointing the lighter at one officer when told to drop the syringe
- One officer described Mr. Heffernan as having a confrontational stance while holding the syringe and lighter
- Jumping up and down a bit and grunting
The responding officers’ accounts reveal that Mr. Heffernan did not respond to multiple commands to drop the syringe.
The officers describe that after being struck by the Taser, Mr. Heffernan fell back on the bed and was kicking violently as officers moved towards him in an attempted to gain control. Mr. Heffernan was able to get off the bed, with the syringe still in his hand. Mr. Heffernan then moved towards the officers.
- Heffernan’s movement towards the officers was described by the officers in different ways: moving quickly, a lunge, stepping, running
- Heffernan moved to within a close distance of the officers, within arm’s length of one officer
It was in response to this action that the subject officer shot Mr. Heffernan. The ACPS requested that ASIRT obtain a use-of-force report. The report was obtained and found that the subject officer’s response could be justified.
Analysis and Conclusion
Based on a close review of the available evidence and an analysis of the applicable law, ACPS has concluded that there is no reasonable likelihood of conviction of criminal charges against the subject officer. More specifically, the Crown would be unable to prove that the subject officer did not have reasonable grounds for believing that the force used was necessary.
In this case, there was no single determinative factor. The Crown considered all of the evidence which included the following factors:
- Heffernan had a lighter and syringe in his hands throughout.
- The officers had a reasonable belief that the syringe had a needle which could have caused them serious injury through infection. While the subsequent investigation determined that the syringe did not have a needle, this does not change the reasonableness of the officers’ belief that a needle was attached.
- At no point did Mr. Heffernan comply with repeated demands to drop the syringe.
- Heffernan appeared agitated throughout the incident.
- After the first Taser failed, Mr. Heffernan moved quickly towards the officers, coming within a very close distance of them.
- Events unfolded rapidly from the time the officers entered the room, but especially after the first Taser failed. One officer described the seconds before Mr. Heffernan was shot as a “blur.”
While all police are always subject to the law, they are called to respond to rapidly unfolding and volatile events. This is one of those cases. The courts, in assessing police conduct, have made the following comments regarding the lens of hindsight:
- Care must be taken to ensure the assessment of the necessity and proportionality of the officer’s conduct occurs within the framework of the officer’s reasonable assessment of the circumstances at the time, not through the lens of hindsight.
- The justifiability of an officer’s conduct must always be measured against the unpredictability of the situation they encounter and the realization that volatile circumstances require them to make quick decisions.
- Police cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course.
In this case, the evidence is that the subject officer made a quick decision in a volatile and rapidly unfolding situation to use his service firearm in order to defend against Mr. Heffernan. The evidence would be that he did so as a defensive action against an individual who was armed with a syringe, and who had been either unwilling or unable to comply with police directions. In all of these circumstances, it could not be disproven that the subject officer acted upon a reasonable belief that he and the other officers were at risk of serious or grievous bodily harm, and that his use of force was necessary.
In conclusion, the Crown would be unable to overcome the section 25 and 34 defences available to the subject officer. There will be no prosecution in this case.
This has been a tragic case for all involved. Sincere condolences are extended to Mr. Heffernan’s family and friends.
Assistant Deputy Minister
Alberta Crown Prosecution Service