Director's Report Details

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 3 

Complainant:

Jamal Francique 28-year-old male, deceased

Civilian Witnesses

CW #1 Not interviewed (Next-of-kin)
CW #2 Not interviewed (Next-of-kin)
CW #3 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
WO #6 Interviewed, notes received and reviewed
WO #7 Interviewed, notes received and reviewed
WO #8 Interviewed, notes received and reviewed

Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right

Forensic Evidence

Centre of Forensic Sciences (CFS) Submissions and Results

DNA Report Related to Firearm Located on Mr. Francique

The grip, trigger and trigger guard of the firearm were swabbed. The results indicated the DNA from four people, including at least one female and one male, was present. Mr. Francique could not be excluded as a contributor to the DNA profile from a swab of the grip, trigger and trigger guard of the firearm recovered from the scene.

Chemistry Report

The bullet retrieved from Mr. Francique during the post-mortem examination was examined to determine if glass was present and, if so, to determine if broken glass from the vehicle could be eliminated as a possible source. The results indicated that no glass was identified on the bullet.

Firearm Report

Analyses of the four spent cartridge cases retrieved at the scene of the shooting established that they had been ejected from the SO’s firearm.

While an accurate trajectory reconstruction of the shots to the Acura could not be conducted by the CFS, the CFS offered the following observations based on certain assumptions. With respect to the bullet impact site on the roof of the vehicle (just right of centre above the windshield) and the bullet impact site to the middle right of the front windshield, the shots entered the vehicle from the driver side of the vehicle towards the passenger side and at a slight downward angle. With respect to the bullet impact site to the right area of the windshield, the shot entered the vehicle at a slight passenger side to driver side direction and at a slight downward angle.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Police Communications Recordings

Summary of PRP Communications Recordings

At 5:45 p.m., the PRP Event Chronology records a transmission made to the effect that “shots” had been fired, a vehicle had gone into a house, and tactical officers were being requested.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from PRP:

• Canadian Police Information Centre record-Mr. Francique;
• Event Chronology;
• Notes-WO #8;
• Notes-WO #5;
• Notes-WO #7;
• Notes-WO #6;
• Notes – WO #1;
• Notes – WO #2;
• Notes – WO #3;
• Notes – WO #4;
• Disclosure Log-Communications (Radio and Phone)-January 7, 2020;
• Person Details-Mr. Francique;
• Audio Copy Report-Phone; and
• Audio Copy Report-Radio.

Materials obtained from Other Sources

• Centre of Forensic Sciences Biology Report dated March 10, 2020;
• Centre of Forensic Sciences Firearms Report dated May 22, 2020;
• Centre of Forensic Sciences Chemistry Report dated February 18, 2020;
• Report of Postmortem Examination from Coroner’s Office, dated May 19, 2020 and received by the SIU on November 19, 2020;
• Mr. Francique’s recognizance of bail from the Guelph Crown Attorney’s Office; and
• Mr. Francique’s medical records from SMH; and

Photographs of aftermath of the scene were provided to the SIU by CW #3.

 
In the afternoon of the day in question, members of the PRP Vice Narcotics Street Level Organized Crime (VNSLOC) Unit, which included the SO, gathered to discuss their ongoing surveillance of Mr. Francique. The police were in possession of information that Mr. Francique was drug trafficking and in possession of a firearm. Mr. Francique was out on bail at the time in relation to firearms and drug-related charges. While the VNSLOC Unit officers had been unable to confirm that Mr. Francique was dealing drugs or in possession of a gun, they had observed him travelling to various locations in breach of his bail conditions. The decision was made to arrest Mr. Francique for being in violation of his bail.

The VNSLOC Unit members, in plainclothes and unmarked vehicles, made their way to the townhouse complex where Mr. Francique resided with his parents. They parked their vehicles in various locations in and around Mr. Francique’s Acura TSX, which was stationed in the northern most spot of a row of parking spaces immediately west of the townhome complex at 4960 Winston Churchill Boulevard. The plan was to wait for Mr. Francique to enter his vehicle, whereupon a team member would position his vehicle behind the Acura to prevent its egress. Thereafter, officers would converge on the vehicle on foot to arrest Mr. Francique. A deflation device was placed under the front passenger tire of Mr. Francique’s vehicle, which would necessarily be run over if Mr. Francique was able to reverse out of his parking spot.

At about 5:45 p.m., a member of the team, WO #6, observed Mr. Francique exit his home and gave word of his direction of travel via radio to the other members. WO #1, whose job it was to maneuver his vehicle directly behind the TSX to prevent it traveling out of the parking space, was late arriving to the area. By the time WO #1 turned the corner to travel south down the roadway west of the row of townhomes at 4950-4970 Winston Churchill Boulevard toward the Acura, Mr. Francique had reversed out of his spot with his vehicle pointed in a northwest direction. WO #1 stopped his vehicle in close proximity to the front end of the Acura as another officer, WO #5, drove north along the same roadway and positioned his vehicle behind the Acura.

As Mr. Francique’s vehicle was being hemmed in between the vehicles of WO #1 and WO #5, other officers exited their vehicles and rushed to the scene. These officers included the SO who, together with WO #4, had taken up a position northwest of the Acura in and around the grass boulevard just north of where the Acura had been parked. Their guns were drawn and pointed at the Acura.

Following a momentary pause after successfully reversing a further distance notwithstanding WO #5’s vehicle behind him, Mr. Francique accelerated forward in an arc that saw him strike and move past WO #1’s vehicle on its passenger side and then head toward the grass boulevard. As the Acura continued its approach toward the boulevard, WO #4 jumped out of the way to her right to avoid being struck. At about the same time, the SO fired his weapon four times in the direction of the driver’s seat.

The Acura continued to travel forward another 30 metres or so in a northeast direction before striking a pillar at the back of the northern most townhome at 4960 Winston Churchill Boulevard. WO #5 quickly approached in his vehicle and positioned it directly behind Mr. Francique’s car, its front end up against the Acura’s rear. From locations of cover behind their vehicles, a number of officers surrounded the Acura and yelled out at Mr. Francique to exit the vehicle. While it quickly became apparent that the gunshots that had been discharged were fired by police, the officers were concerned that Mr. Francique might be armed with a weapon in the Acura. Accordingly, rather than approach any closer to the Acura, arrangements were made to dispatch PRP tactical officers.

At about 8:05 p.m., two members of the tactical team, WO #7 and WO #8, arrived on scene. Equipped with a shield and pry bar, the officers approached the Acura and knocked out the rear windows. Mr. Francique was seated in the driver’s seat in obvious and acute medical distress. He had suffered a gunshot wound to the left side of the head. Mr. Francique was removed from the vehicle, placed in the recovery position, provided emergency first aid by paramedics on scene and then transported to St. Michael’s Hospital in Toronto.

A satchel removed from Mr. Francique’s person when he was extracted from the vehicle was found to contain a semi-automatic 9 mm pistol.

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

25 (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservations of any one under that person’s protection from death or grievous bodily harm.

811 A person bound by a recognizance under any of sections 83.3 and 810 to 810.2 who commits a breach of the recognizance is guilty of

219 (1) Every one is criminally negligent who

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were authorized or required to do by law. In the case of lethal force, section 25(3) further provides that such force is not justified unless the officer believed on reasonable grounds that it was necessary for her or his self-preservation or the preservation of any one under their protection from death or grievous bodily harm. On the record developed by the SIU, I am unable to reasonably conclude that the SO’s resort to lethal force fell outside the limits of legal justification.

The SO, in my view, was engaged in the lawful execution of his duties when he participated in an operation aimed at arresting Mr. Francique for having violated the terms of his recognizance of bail. While prohibited from leaving the residence of his sureties, he had been seen to visit his girlfriend’s home in the days before the shooting. Section 811 of the Criminal Code makes it an offence to be in breach of a recognizance.

With respect to the SO’s mindset at the time he discharged his weapon, the officer indicated in his interview that he did so to ward off what he believed was an imminent risk to his life, namely, the operation of Mr. Francique’s Acura in his direction. There is nothing in the SIU investigation to cast doubt on the SO’s assertion. In fact, the immediate circumstances surrounding the shooting lend credence to the officer’s evidence. For example, WO #4, similarly situated as the SO on the grass boulevard, said she jumped out of the way of the Acura fearing for her life at the same time she heard shots being fired. The analysis turns to the reasonableness of the SO’s apprehensions.

In my view, the constellation of circumstances that prevailed at the time of the shooting establish that the SO’s mindset and his resulting conduct fell within the range of what was reasonable at the time. The Acura was accelerating forward in his general direction, nearing to within a few metres, when he fired his weapon four times in quick succession. The SO had just seen the Acura evade what was very clearly a police roadblock; the emergency lights and siren of WO #1’s vehicle were on as he drove up to and stopped in front of Mr. Francique attempting to prevent his forward movement. Consequently, the SO had cause to believe that Mr. Francique was determined to escape police apprehension regardless of the risk to the health and safety of officers on foot in the vicinity.

The perceptions of other police officers in the area are also instructive. To reiterate, WO #4, who was to the SO’s left and nearest the officer, believed she was about to be struck by the Acura as it turned and arced forward in their direction, prompting her to jump out of the way. According to WO #4, the Acura had actually driven over the curb and onto the grass boulevard, passing within an arm’s length of her as she ran away and heard shots fired. WO #1 provided information to similar effect. Realizing that Mr. Francique had room to drive past his vehicle along the passenger side, the officer considered reversing his vehicle to cut off the escape route but stopped himself from doing so fearing he would run over officers standing to the west of his vehicle. These officers would have been the SO and WO #4.

The location of the bullet holes – three in the driver’s side of the front windshield and one in the roof of the Acura just in front of the sunroof – coupled with the rapidity of the shots fired also suggest that the vehicle was moving forward in the SO’s general direction throughout the gunfire.
Finally, there is the question of possible retreat or disengagement by the SO as a recourse instead of firing his weapon. I accept that withdrawal may have been an option for the SO as the Acura travelled in his direction. That said, it would be unreasonable to conclude that the officer’s failure to avail himself of this alternative course disqualified him from the protection of section 25(3) of the Code given the heat of the moment and the speed with which events unfolded. The SO had a decision to make in a highly fraught situation and only moments in which to make it. In the circumstances, the officer’s decision may not have been the only one available in the moment, but neither was it unreasonable. In arriving at this conclusion, I am cognizant of the common law principle that officers confronted with dangerous situations are not expected to measure their reactions with precision; what is required is a reasonable response, not an exacting one: R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. CA); R. v. Nasogaluak, [2010] 1 SCR 206.

It is conceivable that conduct that is legally justifiable under section 25 of the Criminal Code can also be part and parcel of a course of action that is criminally negligent. Of course, criminal negligence, as defined in section 219 of the Code, is not itself a criminal offence. It is only criminal negligence causing death and criminal negligence causing bodily harm, contrary to sections 220 and 221, respectively, that are offences. Liability in relation to both crimes is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances.

In the instant case, though there are legitimate questions regarding the nature of the police conduct leading up to the shooting, I am not satisfied on reasonable grounds that any indiscretions, if they be such, deviated markedly and substantially from a reasonable level of care. One may question, for example, the wisdom of the SO placing himself in the vicinity of a vehicle whose driver was evidently attempting to flee from police. There are those who would also take issue with shooting at a moving vehicle when the prospect of stopping the vehicle in its tracks is low and the risk of contributing to a dangerous situation on the roadway is real. On the other hand, one must be mindful of the fluid and dynamic nature of the incident. The SO’s role in the plan that had been devised was to approach the vehicle on foot, after it had been boxed-in, to arrest Mr. Francique. Considered in context, one can understand why the SO took up that role and quickly found himself in front of a moving vehicle when, with the luxury of more time, he might have appreciated the failed box-in and maintained his distance from the Acura. As for the SO shooting at a moving vehicle, while perhaps more properly a factor considered in the reasonableness analysis under section 25 of the Criminal Code, the officer’s conduct was not so wanting in my view as to approach criminally negligent behaviour either alone or in concert with other evidence. The risk to other motorists or pedestrians in the area was slight; there were none as far as the evidence suggests. Conversely, confronted by a vehicle that the SO had reason to believe was intentionally being driven in his direction, the officer’s decision to disable its operating mind by shooting in the direction of the driver was not devoid of logic.

In the result, as I am satisfied for the foregoing reasons that there is insufficient evidence to reasonably conclude that the SO acted other than lawfully throughout this incident, there
 
are no grounds for proceeding with charges against the officer notwithstanding Mr. Francique’s death. The file is closed.



Date: January 11, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit