If the officers were wearing plain clothes and driving unmarked vehicles, how was Phonesay Chanthachack supposed to know he was being stopped by police?
This question dominated testimony for about two hours at the John Sopinka Courthouse in Hamilton on Tuesday. It was the first full day of the inquest into the death of 27-year-old Chanthachack, who was fatally shot by a Hamilton police officer while exiting a parking lot in a stolen van last year.
At the centre of the inquest is Const. Ryan Tocher, who fired the fatal shots. It's the third time Tocher has been embroiled in controversy over his actions as a police officer. Tocher was also charged but found not guilty the beating of Po La Hay in a botched drug raid in May 2010. He was also cleared in 2007 after the shooting death of Cambodian refugee Soun Saing, who assaulted the owner of a pool hall.
Testifying Tuesday was Sgt. Mark Petkoff, who was one of four Hamilton Police Service officers positioned around an east-end parking lot on Feb. 13, 2012, watching a stolen van.
Petkoff and constables Tocher, Denise Leonard and Ryan Howard are members of the BEAR (break and enter, auto theft and robbery) unit, who wear plain clothes and drive unmarked vehicles. The incident happened around 1 p.m. on a frigid Monday as about 100 students from Bishop Ryan Catholic Secondary School wandered the neighbourhood at lunch.
Chanthachack had been a familiar name to police during that period, Petkoff said. He'd been tied to a number of recent thefts. Petkoff had been briefed about him earlier that day.
Petkoff testified that Howard and Leonard were in the parking lot of an apartment building at 15 Albright Rd. waiting for the driver of the stolen van to emerge. Petkoff sat near the intersection of Quigley and Albright roads.
The plan was for Howard to "pin" the van when the driver emerged — box in the vehicle so it could not escape. Howard told Petkoff through their mic phones — devices with occasionally spotty reception that only allow one person to speak at a time — that he was confident he could pin the van.
'That's him, Toch'
If the driver escaped the pin, Petkoff testified, he planned to let him go and not pursue him. But he didn't communicate that to Howard, he said, because he was confident the pin would succeed.
Chanthachack emerged, but Petkoff heard nothing more on the mic phones until the stolen van was at the end of the driveway. Petkoff heard Howard say, "That's him, Toch. Pin him there."
Petkoff drove down the street and saw Tocher using his unmarked blue van to pin Chanthachack at the mouth of the driveway. Tocher, who was investigated and cleared by the Special Investigations Unit (SIU) for this incident, is about 6'2" and 225 pounds. He wore dark pants, a puffy black coat and a Hamilton Ti-Cats shirt.
Petkoff saw Tocher approach the passenger side of the vehicle in "police challenge mode," with his left hand out and his right hand either on his holster or holding his gun. He observed snow fly from under the van wheels, and the stolen van do a "bunny hop" forward before Chanthachack escaped the pin and took off down the street.
Then the situation "ramped up incredibly," Petkoff said.
'Why me? Why me again?'
The stolen van crashed into a pole. Petkoff said he didn't realize Chanthachack had been shot twice — once in the wrist, once in the chest — until Leonard approached him. "He's been shot, you know," she said.
Tocher stood near his blue van, "visibly upset," Petkoff said.
"I walk up to him and he says to me, 'Why me? Why me again? Now my family has to go through this all again,'" Petkoff recalled.
As more pedestrians congregated, and members the nearby fire department emerged to help, Petkoff encouraged Tocher to get in the car and relax and not discuss the case. It's police protocol for officers to not discuss future SIU cases amongst themselves, Petkoff said.
"You saw what happened, right?" Tocher asked Petkoff. "I was justified. You saw it."
A solid pin
Tocher also complained of a hurt leg and emergency crews examined it, Petkoff said. An SIU investigation later found that the stolen van had struck Tocher.
Petkoff told the courtroom Tuesday that Tocher's move at the mouth of the driveway was "a solid pin," and that Chanthachack created the erratic situation himself.
"The gentleman just had to go like this with his hands up, or jump out and run on foot and we wouldn't be here today," he said.
Bob Munroe, who represents the Chanthachack family, argued that Chanthachack might not have known Tocher was a police officer. Tocher had a vest in his car with "police" written on it but wasn't wearing it. He also had a "use of force" kit with other options, such as a baton and pepper spray.
Tocher called out to Chanthachack to show his hands and get out of the van, the SIU investigation found earlier this year.
Could make recommendations
Munroe said if Chanthachack had the windows up, he might not have heard.
Now, Munroe said, "we don't (know what he heard), and we know why that is."
The inquest is expected to take about 10 days. A five-member jury will examine the events surrounding Chanthachack's death and possibly make recommendations aimed at preventing similar deaths.
Neil Jones is representing Natasha Thompson, the mother of Chanthachack's two children, at the inquest. Gary Clewley is representing the four officers, while Marco Visentini is representing the Hamilton Police Service.
Leonard, Howard and Tocher will testify, as well as two civilians and some forensic experts.
The inquest is mandatory under the Coroners Act.