Special Investigations Unit -- Director's Report Details, Case Number: 20-OFD-166

SIU Director’s Report - Case # 20-OFD-166

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

Confidential investigative techniques and procedures used by law enforcement agencies; and
Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

Subject Officer name(s);
Witness Officer name(s);
Civilian Witness name(s);
Location information;
Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
Other identifiers which are likely to reveal personal information about individuals involved in the investigation.

Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the death of a 42-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 7, 2020, at 7:00 p.m., the Hamilton Police Service (HPS) notified the SIU of a firearm-related injury to the Complainant. According to the HPS, on July 7, 2020, at about 3:34 p.m., HPS received a call from a woman reporting her ex-boyfriend was armed with a shotgun and holding her hostage. The call was placed from an address on Ottawa Street North. HPS determined the identity of the ex-boyfriend as the Complainant, who was connected to a stolen vehicle.

At approximately 4:00 p.m., the stolen vehicle was located in the area of Cannon Street East and Gage Avenue North at a convenience store parking lot. Uniformed police officers pinned the front of the stolen vehicle to prevent escape and several police officers approached.

While the driver was being pulled from the vehicle, two officers discharged their firearms striking the Complainant. The Complainant was transported to Hamilton General Hospital, where he remained at the time of notification in critical condition in the Intensive Care Unit.

The Team

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

Complainant:

42-year-old male, deceased

Civilian Witnesses

CW #1 Not interviewed (Declined)
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Not interviewed (Next of kin)
CW #10 Not interviewed (Next of kin)
CW #11 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right

Evidence

The Scene

At 9:30 p.m., the SIU Forensic Investigators arrived on scene at Cannon Street East, which is a small L shaped plaza with commercial businesses on the main level and apartments on the second level. A variety store is located on the east side of the parking lot. The main entrance doors face to the southwest or towards the intersection of Cannon Street East and Gage Avenue East. Members of the HPS were on scene and were restricting vehicle and pedestrian traffic into the area. The SIU Forensic Investigators videoed and photographed the scene and obtained measurements for a planned drawing.

Figure 1 - The plaza where the shooting occurred.

Scene Diagram

Physical Evidence

During the scene examination and processing, the SIU located the following exhibits of importance, as marked on the scale diagram:

A 40-calibre cartridge case was located on the parking lot between the parked vehicles and the front of a pizza restaurant.
A 40-calibre cartridge case was located at the right rear door of a grey Kia Sedona. [This vehicle was an HPS unmarked police vehicle operated by SO #2.]
A 2005 Buick Allure 4-door. This vehicle was orientated in a northerly direction, reversed into a parking spot. The right front door was partially open. Blood staining was visible on the front right seat and interior of the front right door.
A sawed-off shotgun was located on the roof of the Buick vehicle over the front passenger area. The single shot shotgun had a fired 12-guage shot-shell inserted in the barrel. The front seats of the vehicle were bucket style with a centre console which was in the open or up position. There was an apparent bullet strike to the top left corner of the raised centre console lid. There was a bullet strike to the front windshield middle right side. There was a bullet strike to the front right passenger door window. There was a “Bench” white and black large bag with strap on the pavement by the right front door. Blood staining was visible to the bottom of the exterior of the right rear door.
There was on the pavement at the left side of the Buick shot shell wadding.
There was a bullet strike to the interior of the left front door window bottom left corner. On the exterior driver’s door window channel were several shot shell birdshot pellets.
A red Kia Sportage SUV was orientated in a northerly direction and reversed into a parking spot. This vehicle was to the west and on the driver’s side of the Buick Allure. The Kia had a bullet strike to the right rear door with impact consistent with birdshot impact. There was a large quantity of gunshot residue to the door and window.
A black Hyundai SantaFe SUV was orientated in a northerly direction reversed into a parking spot at the west end of the parking lot. There was a 12-gauge plastic shot-shell end cup on the pavement and at the right rear door.
A blue Dodge Grand Caravan was orientated in a northerly direction on the east side of Gage Avenue North. This vehicle had birdshot damage to the right rear side of the van. Investigation revealed that the van was being operated north on Gage Avenue North and was passing the intersection of Cannon Street East at the time the shotgun was discharged.

Figure 2 - The 2005 Buick Allure 4-door. A bullet hole is visible to the front windshield and passenger window. The sawed-off shotgun is on top of the vehicle.

Figure 3 - Close up of the sawed-off shotgun.

At 10:45 p.m., the SIU Forensic Investigators arrived at the HPS East End station. The following is a list of the salient items collected from SO #1:

One duty belt containing two spare magazines, Glock pistol, pepper spray, expandable baton, Conducted Energy Weapon (CEW) (unfired). It was noted the magazine in the pistol contained 13 rounds and one round in the chamber. The CEW was test fired, downloaded, photographed and returned to the HPS.

Figure 4 - The SO #1's pistol.

The following is a list of the salient items collected from SO #2:

One Glock pistol. The magazine in the pistol contained 13 rounds and one round in the chamber.

Figure 5 - The SO #2’s pistol.

Forensic Evidence

A Centre of Forensic Sciences (CFS) scientist examined the sawed-off shotgun, which was recovered from the scene, to determine whether DNA profiles could be developed from the item and whether the Complainant could be excluded as the source of said DNA. According to the scientist’s Biology Report of August 18, 2020, the Complainant could not be excluded as the source of a male DNA profile from the swab of the ejector port area of the shotgun.

A CFS toxicologst examined the Complainant’s hospital and post-mortem blood for the presence/absence of drugs and/or poisons. Ethanol (175 mg/100 mL), methamphetamine, amphetamine and benzoylecgonine were detected.

A CFS scientist with the Firearms & Toolmarks section examined SO #1’s and SO #2’s pistols to determine whether or not the submitted ammunition components were fired by their respective pistols. The conclusion was that a cartridge case was identified, within the limits of practical certainty, as having been fired by SO #1’s pistol. Another cartridge case was identified, within the limits of practical certainty, as having been fired by SO #2’s pistol.

Video/Audio/Photographic Evidence

Video Footage

On July 8, 2020, the SIU received a USB drive from the Corner’s Variety store containing interior and exterior surveillance video relevant to the incident. The videos clips were date and time stamped, and contained colour but no audio.

The following is a summary of the salient portions of the recordings:

Video #1

At 3:48:59 p.m., the video started. The camera was affixed to the interior of the store with a view of Cash 1;
3:51:11 p.m., CW #2 entered the main entrance;
3:51:24 p.m., CW #1 entered the main entrance. He and CW #2 searched the aisles;
3:54:25 p.m., CW #1 and CW #2 went to the cash. CW #1 paid cash for items of merchandise;
3:55:49 p.m., the Complainant entered the main entrance;
3:57:15 p.m., the Complainant purchased items of merchandise;
3:59:11 p.m., the Complainant exited the store; and
At 4:08:58 p.m., the recording ended.

Video #2

At 3:49:00 p.m., the video started. The camera was affixed to the interior with a view of the main entrance doors;
3:49:28 p.m., a gold Buick stopped momentarily in front of the main entrance doors, with three male occupants inside the vehicle;
At 3:51:07 p.m., CW #2 entered the main entrance doors;
At 3:51:21 p.m., CW #1 entered the main entrance doors;
At 3:55:46 p.m., the Complainant entered the main entrance doors;
At 3:57:30 p.m., CW #1 exited the store;
At 3:57:36 p.m., CW #2 exited the store;
At 3:59:10 p.m., the Complainant exited the store;
At 4:04:54 p.m., a marked police SUV moved from its position in front of the gold Buick;
At 4:14:02 p.m., the video ended.

Video #3

At 3:49:24 p.m., a gold Buick entered the store parking lot from Cannon Street. Three Caucasian males were occupants inside the vehicle;
3:51:07 p.m., one of the males, wearing a T-shirt, grey shorts, black shoes, and a grey and blue baseball hat [now known to be CW #2], entered the main entrance doors;
3:51:21 p.m., another of the males, wearing a white tank top, blue khaki jeans, and over-the-shoulder purse, with a tattoo on his bicep [now known to be CW #1], entered the main entrance doors;
3:55:46 p.m., the third male, wearing a white T-shirt, grey shorts, grey baseball hat, sunglasses, a black over the shoulder “Bench” bag, and white and orange shoes [now known to be the Complainant], entered the main entrance doors;
3:57:20 p.m., a minivan arrived in the parking lot and parked facing Cannon Street;
3:57:32 p.m., CW #1 exited the store with a shopping bag in his right hand;
3:57:37 p.m., CW #2 exited the store with candy in his hand;
3:59:12 p.m., the Complainant exited the store with a shopping bag in his left hand;
3:59:52 p.m., a plainclothes police officer in the minivan exited his vehicle and drew his firearm. He was on the sidewalk in front of his vehicle on Cannon Street;
4:00:58 p.m., the plainclothes police officer from the minivan re-holstered his firearm and returned to the driver’s side of his minivan;
4:01:10 p.m., a plainclothes police officer in shorts and a T-shirt wearing a ‘police’ vest ran down Cannon Street;
4:01:44 p.m., CW #2 was escorted by a male plainclothes police officer and a female uniformed police officer out of view on Cannon Street. He was handcuffed with his hands behind his back;
4:09:12 p.m., Emergency Medical Services (EMS) arrived on scene;
4:10:15, the Complainant was moved onto the sidewalk on Cannon Street, where first aid continued;
At 4:12:08, the Complainant was placed onto a stretcher;
4:13:04 p.m., the Complainant was out of camera view;
4:13: 58 p.m., the video ended.

Video #4

At 3:48:40 p.m., the video started. The camera was affixed to the exterior with a view of the store’s parking lot;
3:49:26 p.m., a gold Buick entered the parking lot from Cannon Street East. The rear passenger door was opened momentarily.
3:50:02 p.m., the gold Buick reversed into a parking spot facing north towards the store;
3:51:07 p.m., CW #2 entered the main entrance doors;
3:51:21, CW #1 entered the main entrance doors;
3:55:46 p.m., the Complainant entered the main entrance doors;
3:57:10 p.m., a minivan entered the parking lot from Gage Avenue North and parked with the front facing south;
3:57:32 p.m., CW #1 exited the store with a shopping bag in his right hand and went to the driver’s side of the Buick;
3:57:38 p.m., CW #2 exited the store with candy in his right hand and went to the rear passenger side;
3:58:24 p.m., CW #1 entered the driver’s seat;
3:59:13 p.m., the Complainant exited the store and entered the front passenger seat;
3:59:47 p.m., a marked police SUV entered the parking lot and parked in front of the gold Buick, effectively blocking its path. The front passenger door opened before the police SUV came to rest;
3:59:51 p.m., a male plainclothes police officer exited his minivan with his firearm drawn and went to the rear of the Buick. A male uniformed officer exited the front passenger side of the police SUV with a long gun and pointed it at the driver;
3:59:56 p.m., a male uniformed police officer exited the driver’s side of the police SUV and pointed his firearm at the Buick;
3:59:57 p.m., while a male uniformed police officer was at the driver’s door, a puff of smoke emanated from inside the gold Buick and appeared to strike the red SUV;
4:00:15 p.m., the male uniformed police officer from the driver’s seat appeared to use his radio;
4:00:29 p.m., the rear passenger door of the Buick was opened, and CW #2 exited the vehicle;
4:00:59 p.m., a male plainclothes police officer re-holstered his firearm and returned to the driver’s side of his minivan;
4:02:00 p.m., a second marked police vehicle arrived on scene;
4:05:30 p.m., two uniformed police officers extracted the Complainant from the front passenger seat and onto the ground;
4:09:08 p.m., EMS arrived on scene; and
4:13:58 p.m., the video ended.

Communications Recordings

Communications Recordings and CAD

The HPS provided the SIU with the following ten files relative to this incident. The following is a summary of the salient portions of the recordings;

On July 7, 2020, at 3:34:37 p.m., the HPS received a call via 911 from a woman reporting a domestic assault in progress at an address on Ottawa Street North, Hamilton. The caller had limited information, but was reporting that her daughter was being held hostage by her ex-boyfriend, the Complainant, who had a sawed-off shotgun;
At 3:36:04 p.m., a sergeant was notified and HPS began to dispatch units;
At 3:39:15 p.m., the 911 caller was on the phone with 911 and on another phone with her daughter. The daughter reported [the Complainant] wanted to die by police;
At 3:43:29 p.m., the 911 caller reported the Complainant had left the residence;
At 3:49:44 p.m., officers began to arrive at the residence;
At 3:57:18 p.m., the 911 caller suggested the Complainant may have gone to an address on Dalkeith Avenue;
At 3:57:51 p.m., officers arrived on Dalkeith Avenue but did not see anyone;
At 3:58:16 p.m., officers reported seeing a gold-coloured Buick which was stolen, pull into the area and then proceed to Cannon Street East and Gage Avenue North;
At 3:59:04 p.m., the vehicle was at the northeast corner of Gage and Cannon;
At 4:00:16 p.m., officers reported shots fired;
At 4:00:33 p.m., officers requested an ambulance;
At 4:00:50 p.m., officers reported a front passenger [later identified as the Complainant] was not responsive;
At 4:05:18 p.m., officers reported all police units are “10-4”;
At 4:0615 p.m., officers reported they are starting compressions;
At 4:07:17 p.m., officers reported the Fire Department is arriving; and
At 4:09:06 p.m., officers reported EMS is on scene.

Materials obtained from Police Service

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

Communications audio recordings;
Computer-assisted Dispatch report
Drawings made by WO #1 and WO #2;
Event Chronology;
Fingerprints-the Complainant;
Notes of the WOs;
Canadian Firearms Program documents;
Supplementary Occurrence Report; and
Will States of WO #1, WO #2, WO #3 and WO #4.

Materials obtained from Other Sources

The SIU also received the following records from other sources:

Report of Post-mortem Examination, dated October 27, 2020, from the Coroner’s Office;
Report of Preliminary Autopsy Findings from Ontario Forensic Pathology Service;
Centre of Forensic Sciences Biology Report dated August 18, 2020; and
Centre of Forensic Sciences Firearms Report date October 5, 2020.

Incident Narrative

The material events in question are clear thanks to interviews with a number of civilian and police witnesses present in and around the scene of the shooting and video recordings from surveillance cameras in the area that captured the incident. As was their legal right, the subject officers did not consent to interview with the SIU or authorize the release of their notes.

At about 4:00 p.m. of July 7, 2020, the Complainant was the front seat passenger in a Buick Allure. The vehicle was parked facing north in the lot of the Corner’s Variety store located at the northeast corner of the Gage Avenue North and Cannon Street East intersection. In the driver’s seat was CW #1. CW #2 was seated in the rear passenger side seat. The men had just returned from the variety store having purchased various merchandise. Unknown to them at the time, they had been followed to the location by plainclothes police officers in an unmarked vehicle.

About a half-hour earlier, the HPS had received a 911 call reporting an assault in progress. The caller was the victim’s mother. Her daughter was on another phone with her indicating that she was being held hostage in her home by the Complainant. She further reported that the Complainant was armed with a sawed-off shotgun and saying he wanted to die at the hands of the police. Officers were dispatched to the daughter’s residence at an address on Ottawa Street North.

The Complainant had left the residence within minutes of the 911 call and entered a Buick Allure with CW #1 and CW #2. The three made their way from the address westward until they reached the variety store.

Member of the HPS High Enforcement Action Team (HEAT) unit – WO #2 and WO #3 – had quickly located the Buick and followed it as it made its way to Gage Avenue North and Cannon Street East, broadcasting their directions of travel to other officers.

SO #2 was among the officers who heard the transmissions. He travelled to the area and parked his unmarked minivan facing south in the spot immediately to the east of the Buick. Just west of the Buick was parked a red minivan belonging to an uninvolved civilian. As SO #2 waited, the Complainant, CW #1 and CW #2 walked from the store back into the Buick. Within seconds of their return, a marked police SUV turned into the parking lot off of Gage Street North and stopped with its front passenger side in front of the Buick.

Uniformed officers – SO #1 and his partner, WO #4 – were inside the SUV. They too had heard the radio broadcasts and were responding to the scene to assist. As their SUV came to a stop, WO #4 immediately emerged from the front passenger door with a C8 rifle pointed in the direction of the Buick’s driver – CW #1 – and yelled at him not to move. At the same time, SO #1 had exited the SUV and was pointing his handgun toward the front of the Buick while SO #2 had taken up a position at the back, passenger-side of the Buick, also pointing a handgun into the vehicle. WO #4 opened the driver’s door of the Buick, took hold of CW #1’s left arm and suddenly heard a loud bang from within the front of the Buick. The bang was the sound of the Complainant firing his shotgun in the direction of WO #4.

Immediately after the shotgun blast, SO #1 and SO #2 each fired a single round at the Complainant. SO #2’s shot struck the back of the Complainant’s head and was instantly incapacitating. SO #1’s shot struck the top of the Complainant’s head. Fragments from one or both of these projectiles appear to have inflicted other injuries, including to the left upper arm.

Following the gunfire, WO #4 was able to pull CW #1 out of the vehicle and drag him to the rear passenger side of the Buick where he was arrested and handcuffed. CW #2 was also removed from the Buick and taken into custody.

The Complainant was found in the passenger seat still holding the shotgun on his lap, pointed in the direction of the driver’s seat. He was taken from the Buick and provided CPR until paramedics arrived on scene and took over his care. The Complainant was taken to hospital where he was pronounced deceased that same day.

Cause of Death

The pathologist at autopsy attributed the Complainant’s death to a “gunshot wound of the back of the head”.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

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

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

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.

Analysis and Director's Decision

On July 7, 2020, the Complainant was shot by two HPS officers, later succumbing to his wounds in hospital. The officers who discharged their firearms at the Complainant – SO #1 and SO #2 – were identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the subject officers committed a criminal offence in connection with the Complainant’s death.

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 stipulates that such force is not justified unless the officer reasonably believed it was necessary for his or her self-preservation, or the protection of a person under their charge, from death or grievous bodily harm. In the instant case, I am satisfied that the shots fired by SO #1 and SO #2 fell within the ambit of legal justification.

The subject officers were engaged in the discharge of their lawful duties when they responded to the parking lot of the convenience store looking to apprehend the Complainant. They were aware of information from a 911 call that the Complainant had just left the residence of an estranged partner whom he had confined and threatened with a sawed-off shotgun. Police had also spoken with the Complainant’s brother as they responded to deal with the 911 call, who confirmed that the Complainant had access to firearms.

Though neither subject officer provided a statement to the SIU, there is nothing in the evidence to suggest they did not believe that shooting the Complainant was necessary if they were to protect themselves and others in the vicinity from death or grievous bodily harm. Just the opposite. The circumstances were such that I am satisfied that both SO #1 and SO #2 were reasonably of that mindset. Surrounded by police officers and with nowhere to go, the Complainant made it instantly clear that he was not about to peacefully surrender to police. Instead, he took hold of his shotgun, aimed it in the direction of the driver’s seat, and fired a round toward WO #4 as he was attempting to pull CW #1 from the Buick. It is astonishing that neither WO #4 nor CW #1 were killed. When that occurred, SO #1 and SO #2 had little option other than to return fire. There were two other individuals in the Buick and civilians in the area, and the Complainant had already shown a propensity for forcible confinement. In the circumstances, withdrawing from the scene was untenable as it risked the very real possibility of a further hostage situation. More to the point, the subject officers were then and there confronted with an armed individual they had every reason to believe would again fire his weapon. Given the nature of the threat, SO #1 and SO #2 had the right to defend themselves and, I am persuaded, to do so with resort to their firearms.

In the result, as I am satisfied on reasonable grounds that SO #1 and SO #2 acted lawfully throughout their interaction with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: March 8, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Note:

The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.