http://www.thestar.com/News/GTA/article/485284

Bob Mitchell
Staff Reporter

In a stunning turn of events all charges against three Halton Police officers on trial in connection with a Taser takedown of an elderly knife-wielding man were dismissed late this afternoon.

After a relentless cross-examination of tactical leader Const. Matthew Kohler, prosecutor Anthony Leitch told Justice Irving Andre that he saw no prospect of a conviction.

He requested the charges be withdrawn and Justice Andre granted his request

In doing so, Leitch praised Kohler for answering all of his tough questions, telling the court he had left "no stone unturned" but the officer never wavered from his belief that he and his fellow tactical officers did nothing wrong in subduing Gerry Morgan, 79, in the early hours of Nov. 25, 2006.

Family members left the court without commenting on the stunning development that occurred moments after Kohler, the defence first witness, finished his day-long testimony.

Kohler told the Oakville court that he was prepared to shoot and kill the knife-wielding man, if necessary.

Armed with a sub machine gun, Kohler said he would have fired at Morgan, a man who was suffering from Parkinson's Disease, had he "advanced" on him or his officers.

Fortunately, Morgan, 79, was subdued by a Taser after a rubber bullet failed to cause the Oakville man to drop the butcher knives he was holding and swinging in both hands.

Morgan died in hospital six months later from a medical condition un-related to the take down in his sixth floor condominium on Marine Dr. in Oakville.

Kohler, and fellow Halton tactical officers Joe Davis and Richard Dodds had pleaded not guilty to assault causing bodily harm, assault with a weapon and unlawfully causing bodily harm in connection with the take down. Kohler also pleaded not guilty to a second charge of assault with a weapon.

Kohler told the court he had drawn an "imaginary line" on the floor – a spot if Morgan crossed could have resulted in him using deadly force.

"I didn't want to have to shoot him (with real bullets) ... if he had advanced (on officers) lethal force would have been used," Kohler testified.

Morgan was treated in hospital for an injury to his upper left arm caused by the rubber bullet and then released.

He was re-admitted a few days later for un-related medical reasons and died there on May 4, 2007.

Kohler, who served as an Acting Sgt. and team leader of the four-member tactical unit, gave the orders for the rubber bullet and Taser to be used.

Given the fact Morgan was acting strangely – swinging butcher knives in both hands – and being unresponsive to officers demands to drop the knives, Kohler believed he had no choice but to give the orders to use intermediate weapons to subdue him.

"An emotionally disturbed person is unpredictable and can often act without warning with tragic consequences," Kohler told his defence attorney Bill MacKenzie.

Kohler feared Morgan might seriously harm himself, perhaps even accidentally kill himself had he not authorized the use of force weaponry.

"I believe we saved Mr. Morgan's life that day," Kohler said.

He insisted he and his officers were "legally, morally and ethically" obligated to act so Morgan could be apprehended under the Mental Health Act.

Their plan was to avoid using lethal force if at all possible, he said.

"I was prepared to shoot him if he advanced rapidly on our team," Kohler told prosecutor Anthony Leitch when cross-examined. "We hoped we could resolve the situation with a less than lethal response... We successfully did that...."

Kohler insisted he and his officers had been placed in a position where they had to act.

"(P)eople in active resistance can jump to serious bodily harm in an instant ... the longer we waited something tragic could happen," Kohler said.

After Morgan died, the province's Special Investigations Unit (SIU) charged the three officers with the criminal offences. The SIU later ruled his death wasn't linked to anything that happened during the take down about 4:20 a.m. in the condo.

Kohler knew they were dealing with a potentially dangerous situation based on information from a dispatcher indicating a woman was screaming in an apartment and had locked herself in a bedroom because a man with Parkinson's Disease and armed with knives had acted violently towards her

Morgan, who was dressed in a T-shirt and adult diaper, was initially shot in the arm with a rubber bullet and then Tasered when he refused repeated requests to drop the knives, which he was waving back and forth in front of him.

His wife Edna, 82, previously testified her husband had started a new medication and had been reacting poorly to it.

Kohler repeatedly told Morgan to drop his knives. At times, the knives came within inches of the elderly man's head as he swung them in the air, court heard.

On Kohler's orders, Dodds eventually shot Morgan with a rubber bullet, which pierced his left upper arm and caused him to drop the knife from his left hand.

But Morgan refused to drop his other knife and was then Tasered by Davis on Kohler's orders when he didn't respond to repeated orders to drop the knife in his right hand.

After being Tasered, Morgan fell to the floor and was apprehended with officers kicking the knives aside.

Kohler initially thought Morgan had stabbed himself when Tasered but learned later the injury had been caused by the rubber bullet.

Kohler said officers specifically targeted Morgan's arms – not other parts of his body – so the shot would cause him to drop the knives.

He admitted under cross examination that Morgan could have potentially been killed by the rubber bullet had he been struck in his head or chest.

Court heard earlier that Morgan's wife had called Connect-A-Care, a medical alert agency, and complained that her husband of 52 years was armed with knives and that she had hidden in a bedroom because he was acting violently towards her.

She testified earlier in this trial that her husband woke in the middle of the night and began chopping apples in the kitchen with butcher knives.

In earlier testimony today, a Crown expert changed his opinion, telling the court that based on Morgan's mental state – and observations from an officer not charged – that the tactical officers "reasonably believed" the elderly man could seriously harm or kill himself and were therefore justified in using intermediate force.

Lino Couto, a former Toronto Police officer teaching at the Ontario Police College, had previously testified the officers had no reason to subdue Morgan with the force they used because he didn't directly threaten the officers. But his opinion changed when he re-read the use of force documents, which also referred to potential dangers to the victim, and not just to officers.