Killing of Hamilton man Erixon Kabera raises questions about policing and oversight

CBC

6 hours ago

The Special Investigations Unit's (SIU) decision not to charge two Hamilton police officers who killed Erixon Kabera in November was not surprising to some experts, who are raising concerns over the police response and limits of the SIU's mandate.
Dave Shellnutt, a lawyer who has represented people in cases where police force was used, told CBC Hamilton the officers who responded to the scene appeared to be either "inexperienced or unprepared," while a former police officer also questioned why more units weren't dispatched to the scene.
Kabera was killed in November after two Hamilton Police Service (HPS) officers fired 24 shots at him, striking him eight times. The SIU report clearing the officers was released on June 6.
According to the SIU, Kabera was holding a replica firearm resembling a semi-automatic pistol, which he pointed at officers. SIU director Joseph Martino said the officers did not commit a criminal offence.
The report doesn't mention Kabera, referring to him as "the complainant."
"The officers honestly believed they were looking at an actual gun in the complainant's possession. Though mistaken, their misapprehension was a reasonable one," said Martino in the report.
Officers put 'the whole building at risk:' lawyer
CBC spoke with several experts who were not involved directly with the case, asking them to review the SIU report. They included a lawyer, a police oversight researcher and a former police officer.
The SIU report said after Kabera pointed the replica at police in his apartment hallway, one officer fired eight rounds while backing away and fell, losing her gun, according to the report. Kabera kept walking forward. Then the second officer shot six to eight more rounds, while Kabera "remained unfazed."
The second officer also fell. The first officer fired her Taser at Kabera, which the report says, did not affect him, and he continued to advance toward the officers. The second officer fired seven to eight shots after replacing his magazine, that's when Kabera "collapsed and landed on his back."
"In that hail of gunfire, they hit [Kabera], and miraculously they don't hit or injure anybody else," said Shellnutt, the lawyer, adding the gunfire "put the entire building at risk."
Wilfrid Laurier University public safety assistant professor, Jen Magnus, who is also a former Calgary police officer and Grande Prairie Police Service instructor, told CBC Hamilton it's hard to know from the report how the officers themselves feel about their actions.
"I'm sure no one's harder on themselves than these two officers, just judging what they did and the decisions they made that day," she said. "It's just a horrible experience for everyone involved."
Magnus said in her view, the officers acted appropriately under pressure, but questioned how the police response was handled.
According to the SIU report, police were initially called to the building where Kabera lived on Main Street W. when a neighbour called the non-emergency police line to report a man with a gun had been at their front door 15 minutes prior.
Magnus said "any mention" of a potential firearm requires at least two police units, and a high-risk response, especially in an apartment building, where "multiple people who could be potentially at risk."
A sergeant on shift should be the one making that call, said Magnus.
She said when reading the report, she questioned if there was a lack of police capacity or if the call came in at a shift change. The HPS employs over 800 police officers, she noted, adding she would "hope there's enough to back someone up at a call like that."
Decision to clear officers aligns with SIU history
Danielle McNabb, a Brock University political science assistant professor who studies policing and police oversight said she "wasn't surprised" by the decision, as it is "very rare for the SIU to lay charges."
McNabb's 2024 study found that between 2017 and 2020, 27 firearm deaths were investigated by the SIU, resulting in no charges. The SIU charged 3.4 per cent of cases during that time.
McNabb said the report suggests Kabera may have been experiencing mental health issues, which is closely linked to higher and excessive use of force by police.
According to Shellnutt, in order to lay charges, the SIU needs to prove that there was criminal intent "beyond a reasonable doubt."
"If [the evidence] is to be believed … probably criminal culpability doesn't arise here," Shellnutt said.
After the SIU decision was announced, Kabera's family said, through their lawyers, they were "disappointed" with the findings and are "considering legal options."
Shellnutt said the family could still "launch a civil claim" against police and issue a complaint to the Law Enforcement Complaint Agency.
One officer declined to be interviewed
One of the two officers involved in the killing of Kabera declined to be interviewed, but released her notes. The other officer was interviewed but didn't release his notes.
The SIU also interviewed several witnesses, reviewed calls, police radio recordings, forensic and physical evidence and a coroner's report.
McNabb said it's not uncommon in SIU investigations for officers to exercise that right, but found in most cases between 2017 and 2020, it was most common for officers to fully comply with the investigation.
Shellnutt said the lack of cooperation can be "incredibly frustrating" for families, and said while this is a legal right in any criminal investigation, as public servants, police should be held to a "different bar."
Magnus said she's torn on the matter, but she agrees that officers should be interviewed when they've had a few days to process the events that unfolded.
Officers are taught to 'shoot to stop the threat'
Magnus said in situations like this, police are taught to prioritize hostages' or innocent civilians' lives, then their own, then the suspect's.
"We were always taught … that you shoot to stop the threat," she said.
"If you have to reload and keep shooting, that's what you have to do."
Magnus, who's also done research on understanding trauma, said in moments of high stress, people can experience what is called auditory exclusion.
"Officers feel that they've maybe only shot twice, and not realize that they emptied their entire magazine," she said.
The SIU report says after the first round of shots, the second officer thought Kabera was the first to shoot, not knowing the gun was a replica.
"An honest but mistaken belief in the highly charged atmosphere that prevailed," read the report.
One of the officers also suffered a graze wound to the back of his head, initially thought he was hit, as he reported through a radio.
Magnus said although more mental health units are needed in many police responses, the presence of the replica meant this situation didn't offer that opportunity.
How the SIU could change
Shellnutt said the SIU can acknowledge mistakes in police conduct in its reports, even when not criminal, but that was not done in this case.
"I think mistakes were made and quite obviously," he said.
Following the release of the report, CBC Hamilton asked the SIU if it had concerns about the police response sent to the scene. It said "the entirety of the SIU's position on the incident is reflected in the report."
McNabb said the SIU's current mandate is "very narrow," and a broader one could help enhance public trust.
She pointed at some things she thinks the SIU did well in this case, including the 200-day wait for the report's release, longer than the SIU's 120-day target, but shorter than the average, which is closer to 300 days.
McNabb also said the rarity of criminal charges makes the public distrust the SIU.
"Doing more proactive community engagement [to ensure] that the public understands how they function, I think that would help," she said.
McNabb said that's just one step in what would take a long time to rebuild trust, especially with Indigenous and racialized communities.
She said data shows Black and Indigenous people are more likely to face police violence, and while there's no SIU data on race, studies in other jurisdictions "have found racial disparity."
She also said a broader mandate where the SIU can also evaluate police misconduct could also help.
"When the choice is simply to lay criminal charges or not … the public can feel unsatisfied with that. That there's not an institutional response," she said.
"The police force is not compelled to sort of look internally to see, 'is there something at a systemic level that we should be doing differently in these types of encounters?'"
HPS will now conduct its own investigation. A report will be submitted to the Hamilton police board within 90 days and published on the board's website after review.
A coroner's inquest — a public hearing where a jury hears the details around a death and makes recommendations aimed at preventing more deaths — will also take place, a spokesperson told CBC Hamilton previously.