‘I still found him to be a threat’: VPD officer testifies at hearing into the death of Myles Gray

Protesters hold banners with a photograph of Myles Gray, who died following a confrontation with several police officers in 2015, before the start of a coroner's inquest into his death, in Burnaby, B.C., on Monday, April 17, 2023. THE CANADIAN PRESS/Darryl Dyck

A second Vancouver Police officer involved in the death of Myles Gray has taken the stand at the public hearing into his death.

Under questioning from Claire Hatcher, his own lawyer, Const. Beau Spencer testified about racing to a call on the Vancouver-Burnaby border in August of 2015 – and arriving in a secluded backyard to find five of his colleagues attempting to subdue Gray.

Spencer and his partner, Const. Derek Cain were the last of the seven officers involved to arrive.

By then, Gray was face down with his legs bound together with a device police call a hobble.

Spencer told the hearing he immediately moved to Gray’s right side and began attempts to pull his arm behind his back so he could be handcuffed.

Spencer described Gray as the strongest person he had ever encountered.

“I experienced strength I’ve never experienced before in my life,” Spencer said.

He described punching Gray in the shoulder three or four times as hard as he could in an effort to gain compliance – but said the blows had little to no effect.

“He appeared to be completely immune to pain, actually,” Spencer told the hearing.

Eventually, the officers did manage to cuff Gray’s hands behind his back.

Spencer said, at that point, he noticed Gray’s breathing was laboured, and he appeared to be losing consciousness, so he rolled him onto his side into what is commonly known as the recovery position.

But he said Gray eventually came to and began thrashing about.

Even though Gray’s hands were cuffed behind his back and his legs bound with the hobble, Spencer said he put his knee on Gray’s shoulder and used his body weight to hold him down.

“If he got up at that point, even hobbled, I still found him to be a threat,” Spencer said.

He said someone restrained the way Gray was could still potentially manoeuvre their cuffed hands from the back to the front and uncinch the hobble.

Ian Donaldson, the lawyer representing the Gray family at the hearing, believes Gray continued to struggle because he could not breathe.

“If you are desperate for air, if you’re choking, if you are, in effect, dying from lack of oxygen, you cannot stop struggling. It’s not physically possible to stop,” Donaldson told CTV News outside the hearing.

Gray went into medical distress again and died in the yard.

Spencer also testified about why he did not take contemporaneous notes in the aftermath of Gray’s death.

He said during a meeting on the seventh floor of VPD’s Cambie Street headquarters that evening, Vancouver Police Union representatives told him not to take notes until they instructed him to do so.

He testified there were several union reps on hand, and he could not remember which one gave him that direction.

He said the fact that the Independent Investigations Office, B.C.’s police watchdog, was involved, influenced his decision to follow the union’s instructions.

“I thought it was odd, but it did make sense to me at the time,” Spencer said. “Just given me being a police officer and possible criminal charges being on the table, providing any sort of statement without talking to legal advice…made sense to me.”

That explanation doesn’t sit well with Donaldson, who points out Spencer and the other officers involved had a legal obligation to make notes in a timely manner.

“Vancouver Police Department regulations and policies were clear. The notes should be taken,” Donaldson said. “There is Supreme Court of Canada jurisprudence from before this event, which is clear that officers were obliged to keep notes.”

Spencer testified that he eventually wrote down his recollections of what happened that day, but not until a union rep told him to.

He said that happened in December of 2015 or January of 2016, either four or five months after the fatal incident.

Hearing counsel Brick Martland will cross-examine Spencer when the hearing resumes in November.

The initial 911 call that brought police into contact with Gray the day he died was about a man who had sprayed a woman in south Vancouver with a garden hose.

Gray’s family said he had walked away from his work vehicle at a nearby business and was in mental health distress.

Const. Hardeep Sahota was the first officer to locate Gray in the area, and she called for backup because she said he was aggressive and wanted to fight.

Const. Eric Birzneck and his partner, Const. Kory Folkestad were the next officers to arrive, and that’s when the confrontation with Gray became physical.

Only Birzneck and Spencer have testified so far.

Const. Josh Wong and Const. Nick Thompson are also scheduled to provide testimony.

Sahota, Folkestad and Cain are not on the current witness list.

The hearing was called by the Office of the Police Complaints Commissioner to determine whether the seven officers used unnecessary physical force in their altercation with the unarmed Gray, and whether the failure to take notes by six of the seven constitutes misconduct under the Police Act.

At the conclusion of the hearing, if adjudicator Elizabeth Arnold-Bailey finds the officers committed misconduct, she could hand down a range of penalties, including dismissal from the force.