SIU Director’s Report - Case # 20-OFD-005
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Mandate of the SIU
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.
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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 28-year-old Jamal Francique.
Notification of the SIUOn Tuesday, January 7, 2020, at 8:50 p.m., Peel Regional Police (PRP) reported the following. At 7:44 p.m., PRP Street Crime Unit officers were in the area of Southampton Drive and Aquinas Avenue in Mississauga intending to arrest Jamal Francique for breach-related offences with respect to drug investigations. Mr. Francique was found in a blue Acura TSX. When officers approached the vehicle, he drove at them. The Subject Officer (SO) discharged his service pistol at the windshield of the vehicle. Tactical officers then approached the vehicle, broke a window and discovered that Mr. Francique had been shot in the face. He was taken to St. Michael’s Hospital (SMH) in life-threatening condition. A firearm was found in the waistband of his pants. The firearm had been secured at the scene.
The TeamNumber of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 3
Complainant: Jamal Francique 28-year-old male, deceased
Civilian WitnessesCW #1 Not interviewed (Next-of-kin)
CW #2 Not interviewed (Next-of-kin)
CW #3 Interviewed
Witness OfficersWO #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 OfficersSO Interviewed, but declined to submit notes, as is the subject officer’s legal right
The SceneAt 11:25 p.m., the SIU Forensic Investigators arrived at in the area of Southampton Drive and Aquinas Avenue in Mississauga. At that time, one vehicle, a black 4-door Acura TSX, with an Ontario licence plate, was covered with yellow tarp and in contact with the garage portion of a residence. There was extensive damage to the garage’s support post and the front end of the vehicle. Bricks from the support post littered the vehicle’s front end and the ground. To the south of the black Acura, the SIU located a Grey Honda Accord, which was reported to have been operated by WO #1. There was a fresh paint swipe/transfer on the front passenger bumper/corner.
The SIU Forensic Investigators examined the scene and located three spent cartridge cases resting on a walkway and one spent cartridge case resting on the roadway.
Physical EvidenceAt 1:12 a.m., the SIU Forensic Investigators met with a PRP officer who was in possession of a firearm that had been seized from Mr. Francique at the time of his arrest. The officer turned over to the SIU three sealed PRP evidence bags. One bag contained a semi-automatic pistol. The pistol’s slide was in the open position. The second bag contained a pistol magazine. The magazine was loaded with red-tipped ammunition. The third bag contained a ‘Guess’ brand, black-coloured pouch/satchel with a strap. The officer advised that the firearm was proven safe, photographed, and sealed in the bag by PRP Tactical Officer, WO #8.
The pistol was examined by the SIU Forensic Investigators and determined to be a Smith and Wesson SD9 VE semi-automatic pistol.  The pistol’s magazine contained 16 cartridges, the top three of which were red-tipped hollow points and the bottom 13 of which were regular copper-covered lead.
At 2:11 a.m., the SIU Forensic Investigators started to photograph the scene and the items of interest, and video-recorded and mapped the area.
At 4:30 a.m., a decision was made to move the black Acura to the SIU storage facility to continue the examination of the vehicle in a controlled environment. Due to the extensive damage to the garage, the vehicle’s extrication from the structure could not take place until daylight and after an assessment of the structure’s integrity was completed.
At approximately 5:00 a.m., an SIU Forensic Investigator attended PRP 11 Division and met with a PRP officer who provided the SIU with the subject officer’s use of force equipment. The items had been sealed in a property bag, which the SIU Forensic Investigator opened. The bag contained a police uniform duty belt with handcuffs in the case, Conducted Energy Weapon (CEW) in a holster, ASP with holder, empty pistol holster, two spare magazines in holders, a standard black belt, and a pistol in a plainclothes holster. The items were photographed, and the spare magazines were each found to contain 15 cartridges. The pistol was a Smith and Wesson M&P40. The pistol was taken to an unloading station and there was one cartridge in the breech. The magazine was removed and found to contain 11 cartridges. The pistol, magazine, and cartridges were all seized. The spare magazines and cartridges were also seized as evidence and the remaining items were returned to the officer.
Figure 1 – The SO’s firearm.
Centre of Forensic Sciences (CFS) Submissions and Results
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.
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.
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
Materials obtained from Police ServiceUpon 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.
Cause of Death
Section 25(1) and 25(3), Criminal Code - Protection of persons acting under authority
(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,
Section 811, Criminal Code - Breach of Recognizance
(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or(b) an offence punishable on summary conviction.
Sections 219, Criminal Code - Criminal Negligence
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
Sections 220, Criminal Code - Causing Death by Criminal Negligence
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and(b) in any other case, to imprisonment for life.
Section 221, Criminal Code - Causing Bodily Harm by Criminal Negligence
Analysis and Director's Decision
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,  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
Special Investigations Unit
- 1) Turned over to the PRP for police investigation. [Back to text]
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.