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SIU Director’s Report - Case # 18-OFD-030

Contents:

News Releases for this Case:

French:

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 Personal 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 shooting death of a 21-year-old male (the Complainant) on February 3, 2018, during a confrontation with police.

The Investigation

Notification of the SIU

At approximately 11:28 a.m. on February 3, 2018, the Timmins Police Service (TPS) notified the SIU of a firearm death.
The TPS reported that at 10:22 a.m. on that same date, police officers responded to an assistance call at the ambulance bay located at 500 Algonquin Boulevard East in the City of Timmins.

When police officers arrived, they found an unidentified male acting strangely. The police officers tried to interact with the male, but he fled on foot. Police officers engaged in a foot pursuit of the male and the pursuit ended behind the ambulance bay. The male was armed with a knife and yelling at police officers to shoot him in the head. A Conducted Energy Weapon (CEW) was deployed but was ineffective. The unidentified male charged at the Subject Officer (SO), who discharged his service pistol. The male was taken to the hospital, where he was later pronounced dead.

The Team

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

On Saturday, February 3, at 11:36 a.m., five SIU investigators and three forensic investigators (FI) were assigned to investigate the Complainant’s death. The SIU arrived on the scene at 8:00 p.m. on that same date, and immediately began an investigation. SIU investigators conducted a canvass of the area where the incident occurred. The scene was forensically examined, video recorded, photographed, and measured with the aid of a Sokkia Total Station.

The Cochrane District Social Services Administration Board had raw video footage relating to events surrounding the incident. Ministry of Finance (MOF) staff assisted in enhancing sections of the videos, unfortunately, due to the great distance between the camera and the shooting, the video was not as clear as one would have liked. Focussing in on the scene and enlarging the photos in order to improve the view, caused the scene to become extremely pixelated.

Following a preliminary investigation, SIU investigators designated the SO on February 3, 2018. On February 12, 2018, the SO waived his rights under the Police Services Act (PSA) and provided a statement to SIU investigators, but declined to provide copies of his notebook, which was his legal right.

Complainant:

21-year-old male, deceased 

(Note: A complainant is an individual who was involved in some form of interaction with police, during the course of which she or he sustained serious injury, died or is alleged to have been sexually assaulted.)

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
CW #10 Interviewed
CW #11 Interviewed
CW #12 Interviewed
CW #13 Interviewed
CW #14 Interviewed
CW #15 Interviewed
CW #16 Interviewed

Members of the Complainant’s family declined to be interviewed by SIU investigators.

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 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary

Copies of the notebook entries of Witness Officers (WO) #4-8 were obtained and reviewed. The notebooks indicated that these officers were not directly involved in the events leading up to the shooting, only arriving at the scene after the event took place. As such, they were not interviewed. 

(Note: A witness officer is a police officer who, in the opinion of the SIU Director, is involved in the incident under investigation but is not a subject officer.

Upon request by the SIU, witness officers have a duty under Ontario Regulation 267/10 of the Police Services Act, to submit to interviews with SIU investigators and answer all their questions. The SIU is also entitled to a copy of their notes from the police service.)

Nishnawbe-Aski Police Service (NAPS) Officers

NAPS Officer #1 Interviewed
NAPS Officer #2 Interviewed
NAPS Officer #3 Interviewed
NAPS Officer #4 Interviewed

The NAPS officers were interviewed in order to obtain background information regarding their past interactions with the Complainant during the course of their assigned duties as police officers in the Fort Albany Community. While the NAPS does not fall within the SIU’s jurisdiction, they were not obligated to submit to interviews, as were the TPS officers.

Subject Officer

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

(Note: A subject officer is a police officer whose conduct appears, in the Director’s opinion, to have caused the death or serious injury under investigation.

Subject officers are invited, but cannot be legally compelled, to present themselves for an interview with the SIU and they do not have to submit their notes to the SIU pursuant to Ontario Regulation 267/10 of the Police Services Act.)

Incident Narrative

At 10:09 a.m. on February 3, 2018, paramedics from the Cochrane District Emergency Medical Services (EMS), located at 500 Algonquin Boulevard East in the City of Timmins, requested police assistance regarding a male (now known to be the Complainant) who had walked into the ambulance bay.

Prior to the arrival of the police, the Complainant entered the ambulance bay and told the paramedics that he wanted someone to shoot him in the head, resulting in a second call from EMS to the TPS communications reporting that the male was hallucinating and insisting he wanted to be shot in the head.

While the paramedics were trying to communicate with the Complainant, he put two knives to his throat and asked if he should do it himself. Paramedics were able to convince the Complainant to remove the knives from his throat and calmly directed him to leave the ambulance bay. The Complainant complied and went out into the back parking lot located behind the ambulance base.

WO #1 was the first TPS officer to arrive in the parking lot at the ambulance service building, where he parked his cruiser, exited his police vehicle, and tried to converse with the Complainant. The Complainant lunged at him while holding the two knives. WO #1 immediately jumped back and retreated to the passenger side of his police vehicle while drawing his Conducted Energy Weapon (CEW) and pointing it at the Complainant. The Complainant then backed away from the police cruiser and fled the parking lot, running northbound towards Gillies Lake. WO #1 pursued the Complainant on foot. While the Complainant was running, he discarded his backpack and one of the knives.

WO #1 radioed other TPS members and alerted them that the Complainant was armed with knives and was heading in the direction of Gillies Lake. The SO heard the radio transmissions and drove his police vehicle to the Gillies Conservation Area parking lot, where he saw the Complainant running northbound through the parking lot toward the snow covered lake.

The SO exited his police vehicle and chased after the Complainant, and out onto the frozen lake. There was a significant amount of snow on the lake, making it difficult to manoeuvre. The Complainant is seen on Closed Circuit Television (CCTV) footage from the ambulance base to stop and turn to face the SO; unfortunately, the footage is poor due to the great distance between the camera and the incident, and a tree partially obstructs the view. The incident is also partially captured on the in-car camera system in the SO’s police vehicle. The SO drew his CEW and pointed it at the Complainant, while telling him to drop the knife, but the Complainant refused to do so. The SO then deployed his CEW directly at the Complainant, but it appeared to be ineffective and the Complainant advanced toward the SO, with the knife still in his hand.

The SO dropped his CEW and transitioned to his service pistol (this is captured on the CCTV footage), firing a volley of four shots at the Complainant. The Complainant then fell forward into the snow, about two metres in front of the SO. The Complainant remained conscious and continued to hold onto the knife, while in a partially seated position in the snow. The SO continued to repeat commands to drop the knife, while he maintained gunpoint coverage of the Complainant until other police units arrived.

Two additional officers then arrived and the knife was removed from the Complainant’s hand. When a third officer arrived shortly thereafter, all four police officers carried the Complainant across the lake to a waiting ambulance. The Complainant was then transported to hospital, where he was later pronounced dead at 10:45 a.m.

Cause of Death

On February 5, 2018, a post-mortem examination was performed on the Complainant’s body. The attending forensic pathologist determined the cause of death as being due to multiple gunshot wounds. On September 1, 2018, the SIU received the final Post-Mortem Report, which confirmed that the immediate cause of death was multiple gunshot wounds leading to exsanguination (blood loss) and hemorrhagic shock.


Evidence

The Scene

Scene 1
The initial scene was located in the back parking lot area of the Cochrane District EMS ambulance bay at 500 Algonquin Boulevard East in Timmins. There were numerous Closed Circuit Television (CCTV) cameras located on the exterior of the EMS building. A large snowbank was located in the northeast corner of the parking lot. A knapsack and a black handled paring knife were located resting on the snow-covered ground at the bottom of the snowbank. Pylons had been placed in an area where a responding TPS police vehicle was originally parked, but had been moved because the TPS required the vehicle for service.

The rear parking lot of the EMS ambulance bay. The abandoned knapsack and knife are seen at the base of the snowbank at the back of the photo, just right of centre.

The rear parking lot of the EMS ambulance bay.

The abandoned knapsack and knife are seen at the base of the snowbank at the back of the photo, just right of centre.

Scene 2
The final scene was located on Gillies Lake, where the Complainant was shot. Homes were located on the north side of the lake. The Gillies Lake Conservation area is located at 100 Lakeshore Road in the City of Timmins.

The lake was frozen and snow covered. A walking trail was also snow covered. A large number of footprints were visible in the snow. A key fob, reddish staining (believed to be blood), and fabric, were visible in an area between the footpath and the lake’s edge. These areas were protected with pylon coverings.

A large number of footprints were visible in the snow.  A key fob, reddish staining (believed to be blood), and fabric, were visible in an area between the footpath and the lake’s edge. These areas were protected with pylon coverings.

SIU forensic investigators utilized a metal detector to search the area in a grid pattern and located four spent .40 calibre cartridge cases and one projectile. CEW AFID (Anti-Felon Identification) tags (serial-number-bar-coded confetti which is discharged at the same time that the CEW is deployed) and a CEW Blast Door were also recovered from this scene.

Scene Diagram

Scene diagram

Physical Evidence

Forensic Search of the Complainant’s Backpack

The backpack and a knife were located in the north-east corner of the parking lot at the bottom of a large snowbank. SIU forensic investigators searched the Complainant’s backpack in the SIU lab. The search recovered a “To Do” list written in an address book with text to, “Kill every cop in town” and other content. 

SIU forensic investigators searched the Complainant’s backpack in the SIU lab. The search recovered a “To Do” list written in an address book with text to, “Kill every cop in town” and other content.

The Two Knives

The first knife was removed by a TPS officer from the Complainant’s left hand after he was shot, as the officer was concerned that the knife might be lost in the deep snow. He seized the knife at the shooting scene and secured it in an evidence box at the TPS station, which was later turned over to SIU forensic investigators. This knife was a kitchen knife with a 5 cm metal blade and a 7 cm handle.

The first knife was removed by a TPS officer from the Complainant’s left hand after he was shot, as the officer was concerned that the knife might be lost in the deep snow. He seized the knife at the shooting scene and secured it in an evidence box at the TPS station, which was later turned over to SIU forensic investigators. This knife was a kitchen knife with a 5 cm metal blade and a 7 cm handle.

A second knife was located in the northeast corner of the parking lot at the bottom of a large snowbank, in the vicinity of the Complainant’s abandoned knapsack. This knife was a paring knife with a 5.9 cm metal blade and a 10 cm handle.

A second knife was located in the northeast corner of the parking lot at the bottom of a large snowbank, in the vicinity of the Complainant’s abandoned knapsack.  This knife was a paring knife with a 5.9 cm metal blade and a 10 cm handle.

CEW Download Data

The data extracted from the CEW in the possession of the SO revealed that the CEW was in good working order and that it had been deployed once at 10:14:57 a.m. on February 3, 2018, which was consistent with having been the one deployment made immediately prior to the shooting of the Complainant. The discharge lasted for five seconds, after which the CEW reverted to a 20-minute power save mode.

Forensic Evidence

The Toxicology Report

The Toxicology Report noted the presence of a variety of drugs, most significantly methamphetamine, cocaine, and tetrahydrocannabinol (THC). Further, the report stated that the methamphetamine concentration in the Complainant’s blood would be expected to produce “a high level of toxicity”. The Report indicated that behavioural manifestations of methamphetamine use can include rapid or confused speech, sweating, rapid pulse, agitation, paranoia and violent or aggressive behaviour. Further, with prolonged methamphetine use, a progressively psychotic state commonly develops that involves violent behaviour usually in response to paranoid delusions. The report listed the possible behavioural effects of cocaine use as excitation, euphoria, increased risk-taking behaviour, blurred vision, hallucinations, paranoia, delusions, excited delirium and convulsions.

The Firearms Report

The SO’s firearm, along with the bullet casings and one fired damaged bullet which had been located on Gillies Lake in the area where the Complainant was shot, along with the Complainant’s clothing, were submitted to the CFS Firearms Section for Examination.

Examination of the items revealed that the four bullet casings originated from the SO’s firearm, while the damaged bullet could not be identified nor eliminated as coming from the SO’s firearm.

Examination of the Complainant’s clothing revealed that the distance between the muzzle of the SO’s firearm and the Complainant was greater than 40 cms (16 inches) at the time that it was discharged; no more specific determination could be made as to distance.

Examination of the Complainant’s pants confirmed that two projectiles struck him in the pant area (the order could not be determined), with one entering the right leg and exiting on the rear/outer edge, and a second entering the front waist area, after having struck and travelled through the Complainant’s jacket.

The Complainant’s jacket revealed the passage of three projectiles (the order could not be determined): one entered and exited the right sleeve, from front to back; one entered in the front waist area (this is the same bullet that then continued on and entered the Complainant’s pants in the front waist area); and, the third entered from the back.

Expert Evidence

On Monday, February 5, 2018, a Forensic Pathologist performed the post-mortem (PM) examination on the Complainant at the Northeastern Regional Pathology Unit in Sudbury. Upon completion of the post-mortem examination, the Pathologist gave the cause of death as multiple gunshot wounds.

On September 12, 2018, the SIU received the final PM and Toxicology Report. The PM Report confirmed that the “immediate the cause of death” was multiple gunshot wounds. The PM indicated that although the gunshot wound to the torso was the most medically significant of the wounds identified, the three other wounds would have also contributed to death through exsanguination (blood loss). It listed the most likely mechanisms of death as exsanguination and hemorrhagic shock.

The PM Report listed four gunshot wounds to the Complainant’s body. The Pathologist indicated that he could not determine the order in which the wounds occurred nor could he determine the range of fire (i.e. the distance between the gun and the Complainant at the time the wounds were created) in relation to any of the wounds.

The Gunshots were listed in the PM report as follows:

Wound #1 – To the left upper back. Entered left posterior (back) chest wall, traveled through upper and lower lobes of lung, exited through left anterior (front) chest wall. The direction of this bullet was back to front, slightly downward, slightly right to left.

Wound #2 – This wound entered in the pelvis (pubic region). It entered the pelvis left of the midline and exited the musculature of the right buttock. The direction of the bullet was front to back, downwards, left to right.

Wound #3 – The wound was in the right anterior thigh and the exit wound was in the right lateral (side) thigh muscle. The direction of the bullet was front to back, slightly downwards, left to right.

Wound #4 – The wound was in the right anterior upper arm. It entered the biceps musculature of the right upper arm. The exit wound was in the right posterior upper arm and the direction of the bullet was front to back.

Video/Audio/Photographic Evidence

CW #3’s Smartphone Recording

An SIU investigator copied and reviewed video recordings from CW #3’s Smartphone on February 6, 2018. All of the recordings contained video images that captured a portion of the interaction between the Complainant and the involved police officers shortly after the shooting occurred.

In the video, CW #3 provides commentary in which he states, “Shots were fired. They Tasered him first, he didn’t move, he didn’t stop, so…. I heard three shots. I can’t see that much from here. I’m on the other side of Gillies. Suspect started running across, he stopped, then he started to run at the officer … It’s cold out”.

Video images captured a uniformed TPS officer (now known to be WO #3) running in an eastbound direction across the lake where three police officers (now known to be the SO, WO #2, and WO #1) were located. A male voice, believed to be that of a TPS officer at the incident scene, can be heard saying “get down” or “stay down.” The cellular phone recording was found to be consistent with evidence from the civilian witnesses (CWs), the witness officers, and the subject officer.

In-Car Camera (ICC) video from the SO’s police vehicle:

The SO’s police vehicle was equipped with an In-Car Camera System (ICCS) with audio capability. The SO’s ICCS was activated at 10:22 a.m., when the SO was driving westbound on Moneta Avenue. Radio transmissions can be heard from the SO’s police vehicle while driving northbound on Railway Street. The SO can be seen approaching a stop sign at the intersection of Railway Street and Knox Avenue where the vehicle turned left to go around a red-coloured pickup truck. The SO then activated the emergency lighting on his police vehicle and proceeded through the intersection driving northbound on Brunette Road.

The video captured the sound of the SO’s police vehicle accelerating after an officer (now known to be WO #1) transmitted, “He has two knives”. The SO activated the siren and drove northbound on Brunette Road. WO #1 further transmitted, “He’s heading towards Gillies Lake,” and then, “Aboriginal male, black jacket, backpack, he dropped the backpack.”

The ICCS captured the SO crossing over the intersection of Algonquin Boulevard East and travelling northbound on Brunette Road. WO #1 is heard to again transmit that the male had two small knives and was heading towards Gillies Lake. The SO then entered Gillies Lake Conservation Area parking lot, where he broadcast that he saw the male (now known to be the Complainant). Video images captured the Complainant running northwest through the parking lot towards the lake.

The Complainant ran past the passenger side of CW #1’s vehicle, through deep snow, and onto the frozen lake. The SO can be seen driving his police vehicle to the left (driver) side of CW #1’s vehicle.

The SO is then seen in the left top portion of the video running through the snow out onto the lake after the Complainant. A radio transmission can be heard from WO #1 warning the SO that he (the Complainant) has a knife in his hand. Shortly after, another broadcast can be heard indicating, “Drop the knife! Drop the knife, ok brother?” from the SO’s car radio. The video from the SO’s police vehicle does not capture the interaction between the SO and the Complainant as they are out of view of the camera.

The video images captured CW #1 closing the driver’s door and starting to move toward the lake. WO #1 can be seen running by CW #1’s vehicle, on the passenger side, and out onto the snow towards the lake. WO #1 can be seen having difficulty running through the snow.

The ICC video from WO #2’s police vehicle

WO #2’s police vehicle was equipped with an ICCS with audio capability. The video images begin with WO #2 behind the EMS building at 500 Algonquin Boulevard East in Timmins. The video images record WO #2 making a three point turn in his police vehicle and driving out to Lakeshore Road turning right. He drives a short distance on Lakeshore Road and then turns right into the parking lot at Gillies Lake Conservation area.

A broadcast (believed to be from the SO) can be heard from WO #2’s car radio, indicating, “Drop the knife! Drop the knife, ok brother?”

WO #2 accelerated down the entrance laneway and, as he approached the parking lot area, a male police officer (now known to be WO #1) can be seen running northbound through the parking lot towards Gillies Lake.

WO #2 pulled his police vehicle directly beside the SO’s police vehicle. The video images captured the SO standing in the snow a short distance out on Gillies Lake, maintaining gun point coverage on the Complainant, who appears to be in a semi-seated position in the snow. The SO appears to be adjusting his footing, as he appears to be sinking in the deep snow, with his firearm pointed at the Complainant.

Cochrane District EMS CCTV Videos

On February 5, 2018, the Cochrane District Social Services Administration Board provided SIU investigators with a DVD containing raw video recordings which captured images prior to the shooting and pixelated images of the shooting.

All interior and exterior CCTV cameras situated on the EMS building were motion activated cameras. The recordings contained video images but no audio. The CCTV cameras were situated inside the ambulance bay and outside of the ambulance bay facing north onto the parking lot and towards the lake.

An SIU investigator reviewed the CCTV video and found the time stamps on the recordings to be consistent with each other and recorded in actual time. The CCTV video recordings were also consistent with the recorded times on the TPS radio transmissions and Computer Aided Dispatch (CAD) printouts and the evidence of the paramedics and WO #1, with respect to what occurred at the time the Complainant entered the ambulance bay, and later as he advanced toward WO #1 in the parking lot.

CCTV recordings captured the Complainant initially standing outside the ambulance bay parking lot pacing back and forth. An ambulance is seen to arrive and start to enter the bay, following which the Complainant ran behind the ambulance to follow it inside.

Inside the ambulance bay, the Complainant is seen standing behind an ambulance staring at the back windows. A male paramedic (now known to be CW #16) can be seen interacting with the Complainant, while the other paramedics watch. The Complainant then brings both his hands to his throat, and there appear to be two pointed objects sticking out from his gloves.

Video images recorded outside of the ambulance bay were also consistent with the evidence of the paramedics and WO #1. The Complainant is seen advancing toward WO #1, as WO #1 exited his police vehicle. WO #1 is then seen to retreat to the passenger side of his police vehicle, with his CEW drawn and pointing at the Complainant. There is nothing in the video recording to suggest that WO #1 ever deployed his CEW at the Complainant. The Complainant is then seen to run away from WO #1 and toward a large snowbank. WO #1 then follows the Complainant on foot, across the parking lot, and over the snowbank, while still holding his CEW.

The EMS CCTV camera also recorded images on the lake, off in the distance, where movement was captured. While the recording captured events leading up to the shooting incident on the lake, they were from a great distance and difficult to make out; enlargements resulted in the images becoming very pixelated.

One pixelated image, apparently the Complainant, can be seen moving northbound from behind a snowbank and onto the lake. A second pixelated image, believed to be the SO, can be seen moving a short distance directly behind the Complainant. The SO is seen to suddenly stop, following which the video of events becomes obscured by a large tree. Shortly thereafter, the SO begins to move backwards, in the snow, appearing somewhat unbalanced due to the height of the snow and his continually breaking through the snow to the ice below, and the Complainant can be seen moving quickly forward and toward the SO.

The SO, while moving backwards, can be seen moving his arm in a downward motion, suggesting it was at this juncture that the SO dropped his CEW and transitioned to his firearm. Both images then move out of camera view and disappear behind a large snowbank.

Communications Recordings

Radio Communications

EMS and TPS radio communication recordings of the events of February 3, 2018, leading up to the Complainant’s death, are consistent with the Computer Aided Dispatch (CAD) printouts, the TPS ICCS recordings, and the EMS CCTV recordings. In addition, the radio communications corroborated the statements of the involved police officers, the CWs, and the TPS supporting documentation.

The Communication Recording reveals the following:

At 1009:27 hours: A call is received from the EMS Communications Centre from the EMS base indicating, “Can you respond to the base please. We have a walk-in and we just need assistance.”

At 1009:27: The EMS dispatcher advises the TPS dispatcher, “Can I get police at the medical base? They just got a walk-in and they need assistance.” A call then comes in from an officer requesting clarification, and the dispatcher advises that it is unknown what is going on.

At 1010:05: The dispatcher directs two units to attend at the EMS base.

At 1011:26: A follow-up call comes in from EMS advising “so the male that walked in – he’s hallucinating and asking for someone to shoot him in the head.”

At 1012:48: The dispatcher advises “if you can enter by back door. The male is hallucinating and asking to be shot in the head and they’re now asking for 10-2000, which is urgent.

At 1013:30: WO #1 reports “He’s got two knives. Toward Gillies Lake (officer is clearly out of breath). Aboriginal male, black jacket, red and black backpack. Just dumped the backpack. He’s got two … they appear to be small knives, in each hand. He’s headed toward Gilles Lake … go to Gillies Lake.”

The SO responds, “I’m pulling up. I see him.”

At 1014:36: WO #1: “Watch it. He’s got two knives in his hand.”

At 1014:40: The SO is heard from outside of his police vehicle, “Drop the knives! Drop the knives, okay brother?”

At 1015:04: An officer advises that the Complainant is breathing and that EMS is needed.

At 1016:47: An officer is heard to report, “Shots have been fired! Shots have been fired! Is there an ambulance on the way to Gillies Lake?”
The dispatcher responds, “EMS has been notified.”

Materials obtained from Police Service

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

  • Recording of Call from EMS to TPS Communications Centre;
  • Recording of Police Transmission Communications;
  • In-Car Camera Recordings from the SO’s and WO #2’s police vehicles;
  • General Report related to this incident;
  • Assignment Equipment Issuance Control Log;
  • Event Details Report;
  • Missing Person Report relating to Complainant from January 15, 2018;
  • Notes of WO #s 1-8;
  • Procedure: Use of Force (April 2018);
  • Scene Management Log;
  • TPS Property Tags;
  • TPS CPIC Request;
  • Training Records for the SO and WO #s 1-3; and,
  • Training Records for the Complainant from a previous police service.

The SIU obtained and reviewed the following materials and documents from other sources:

  • Firearms Report from the Centre of Forensic Sciences;
  • Photo taken by a CW of Scene following shooting;
  • General Reports (x38) and Supplementary Reports (x4) filed by the NAPS regarding the Complainant;
  • Occurrence (Person) Reports related to the Complainant held by NAPS;
  • EMS Incident Report of CW #15;
  • EMS Incident Report of CW #18;
  • EMS Incident Report of an undesignated witness;
  • EMS Occurrence Reports (x3);
  • Medical Records of the Complainant regarding prior Mental Health History; 
  • Media Enhancement Report from Ministry of Finance (MOF);
  • Enhanced Video from MOF;
  • CCTV footage from EMS Bay and Exterior of Building at 500 Algonquin Boulevard East, Timmins;
  • Cellphone Video from CW #2 with audio commentary;
  • Cell Phone Videos (x3) from CW #3 with audio commentary; and,
  • CCTV footage from Conservatory overlooking Gillies Lake.

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 law.

Section 27, Criminal Code of Canada -- Use of Force to Prevent Commission of Offence

27 Every one is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and 
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or
(b)To prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

Section 34, Criminal Code - Defence of Person -- Use of Threat of Force

34 (1) A person is not guilty of an offence if
(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 
(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) The act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon; 
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and 
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Section 88(1), Criminal Code -- Possession of weapon for dangerous purpose

88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

Analysis and Director's Decision

On February 3, 2018, at approximately 10:09 a.m., a call was received at the Timmins Police Service (TPS) communications centre from the EMS communications centre requesting police assistance at the ambulance base located at 500 Algonquin Boulevard in the City of Timmins. The only information provided in the call was that the ambulance base had a “walk-in” and they needed police assistance. Police units responded.

At 10:16 a.m., a radio transmission was received from a police unit indicating that shots had been fired and that the EMS was required immediately.

At 10:45 a.m., the 21-year-old Complainant was pronounced dead at hospital. A subsequent post-mortem (PM) examination revealed that the Complainant had been shot four times by the Subject Officer (SO) of the TPS and had died as a result of exsanguination (blood loss) from those four gunshot wounds.

An investigation was immediately launched by SIU investigators. The objective of the investigation was to determine what happened in the intervening seven minutes between the first call for assistance and the shooting of the Complainant, and if the death of the Complainant was justified under the law, or if criminal charges were warranted against the police officer who caused that death.

During the course of the investigation, 17 civilians who witnessed or were involved in various of the interactions with the Complainant were interviewed, as well as eight police witnesses; the SO also made himself available to be interviewed. In addition to the eyewitness evidence, the investigation was significantly aided by the availability of Closed Circuit Television (CCTV) footage of the events which unfolded from the time that the Complainant entered the ambulance bay at 500 Algonquin Boulevard East, until he was shot on Gillies Lake, as well as the real time narration of events which were recorded on the police transmissions communication recordings as police officers called them in. Cell phone recordings from two Civilian Witnesses (CWs) also assisted in the investigation. While it was difficult to clearly make out the actual shooting of the Complainant, which was captured from a distance on the video from the ambulance base and somewhat obscured by the presence of a tree which blocked some of the events, with the enhancement of that video, and the video obtained from the In-Car Camera System (ICCS) of the various police cruisers, an accurate timeline of the unfolding events was extrapolated, a summary of which follows.

The Complainant is seen to enter the camera view of the parking lot at the ambulance base and then runs and follows an ambulance into the bay when the garage door opens. Once inside the bay, the Complainant can be seen standing at the rear of the ambulance. CW #16, a paramedic and the driver of the ambulance, exited the vehicle and saw the Complainant standing inside the bay near the ambulance. Despite being fully clothed, the Complainant told CW #16 that he wanted to go to the hospital because he was naked. CW #16 immediately came to the conclusion that there was something wrong with the Complainant. [1]

CW #13, another paramedic who was still seated inside the ambulance, overheard the Complainant tell CW #16 that he had ingested cocaine, and she contacted the EMS dispatcher via her portable radio and requested police assistance.

The Complainant was observed to be balling his fists and he began saying, “I just want to be shot in the fucking head.” CW #13 then immediately went to the dispatch phone inside the bay and made a second call requesting immediate police assistance; CW #13 was told that the police were already on the way.

The communications recording confirms this evidence in that a follow up call is received from the EMS dispatcher to the TPS dispatcher at 10:11:26 a.m., in which she advises, “So the male that walked in – he’s hallucinating and asking for someone to shoot him in the head.”

CW #14, a paramedic, observed the Complainant holding two knives, which were sticking out of his gloves, and saw him raise his hands to his throat and say, “Maybe I will just use these on myself!” CW #14 immediately advised the other paramedics that the Complainant was armed with two knives. Both CW #14 and CW #16 then calmly told the Complainant not to do that, and the Complainant then tucked the knives back into his gloves and began to walk toward the office area, with the paramedics telling him to stop. CW #13 then opened one of the garage doors and told the Complainant to leave, and he complied. As CW #13 was closing the door, Witness Officer (WO) #1 was observed to enter the parking lot in his marked police vehicle.

The paramedics then re-opened the garage door and watched the interaction between WO #1 and the Complainant. According to their evidence, WO #1 was motioning the Complainant to stay where he was, when the Complainant suddenly ran toward WO #1. CW #14, who was watching the interaction, indicated that she feared that the Complainant was going to attack WO #1 with the knives, while CW #13 described the action as the Complainant lunging forward and towards WO #1 with the knives in his hands. In response to the Complainant’s movement, WO #1 quickly ran behind his cruiser, putting the cruiser between himself and the Complainant, and drew his Conducted Energy Weapon (CEW), pointing it at the Complainant. The Complainant then turned and ran toward the corner of the parking lot, where he dropped his backpack and one of his knives, [2] and then went over the snowbank. WO #1 followed on foot, but was some distance behind.

This evidence is consistent as between the five paramedics interviewed, WO #1, the communications recordings, and the CCTV footage from the ambulance base.

The communications recording has WO #1 reporting in, over his police radio, at 10:13:30 a.m. WO #1 is heard to be out of breath and appears to be running, consistent with his calling in over his portable radio as he is pursuing the Complainant on foot. The recording reveals WO #1 reporting, “He’s got two knives. Toward Gillies Lake,” he then provides a description of the Complainant, before continuing with, “Just dumped the backpack. He’s got two … they appear to be small knives, in each hand. He’s headed toward Gillies Lake … go to Gillies Lake.”

This evidence is confirmed by the backpack and one of the two knives which were located at the base of the snow pile at the corner of the ambulance base parking lot, en route to the conservation area and Gillies Lake.

The SO, who had also initially been responding to the call for assistance at the ambulance base, is then heard to respond, “I’m pulling up. I see him.”

While the Complainant and WO #1 then run out of the view of the paramedics, observations are picked up by eleven independent CWs.

CW #2 heard sirens outside of her residence, at which point she looked out and saw a police vehicle driving into the parking lot on the south side of Gillies Lake, with emergency lights and sirens activated, and the Complainant running northbound toward the lake. She then observed the SO exit his police vehicle and begin to chase the Complainant on foot. CW #2 also observed WO #1 running from the south parking lot in the same direction as the Complainant, but some distance away. CW #2 advised that the Complainant stopped when he arrived at the snowmobile trail that crossed the lake and turned to face the SO. The SO then suddenly began to back away from the Complainant, who lunged at him. CW #2 then heard a volley of three gunshots and saw the Complainant drop to the ground. CW #2 was very clear that WO #1 only arrived after the gunshots had been fired. CW #2 then observed the Complainant in a seated position in the snow, with the two police officers keeping their distance from him, standing approximately five to ten feet away. The Complainant then fell backwards into the snow, following which the officers moved in, turned him over, picked him up and carried him toward a waiting ambulance.

CW #8 observed the Complainant standing about 15 feet from the SO on the lake, while the SO had his arms outstretched toward the Complainant, which CW #8 took as the SO gesturing or warning the Complainant to not approach him or to stop moving. CW #8 observed the Complainant to then raise his hands above his shoulders and move one foot toward the SO, which she described as resembling a stumble or a misstep, with the Complainant’s hands remaining raised as he continued to move toward the SO. CW #8 then looked away, following which she heard a volley of three gunshots. Shortly thereafter, a second police officer arrived and went out onto the lake.

Similarly, CW #3’s attention was drawn by the sound of sirens and he looked out and observed a marked TPS vehicle park in the Gillies Lake Conservation parking lot. CW #3 also observed the Complainant running northbound through the knee deep snow on Gillies Lake. CW #3 then observed the SO chase the Complainant, on foot, northbound onto the lake, with the SO about 10 to 15 yards (9.1 to 13.7 metres) behind the Complainant; no other police officers were in the area at that time. CW #3 heard the SO tell the Complainant to put his hands up, turn around, and come back towards him, and then saw the Complainant stop, turn with his hands up, but then suddenly lower his hands down and start “full running at the officer.”

CW #3 saw the SO then draw his CEW and he heard the sound of the CEW being deployed. He was familiar with the sound of a CEW from past experience. The Complainant, however, did not go down, from which CW #3 inferred that the CEW had not worked properly. CW #3 estimated that at the time that the CEW was deployed, the SO and the Complainant were about ten feet apart. CW #3 then observed the Complainant continue to run at the SO, who then quickly drew his firearm. Less than three seconds after the deployment of the CEW, CW #3 heard a volley of three gunshots. CW #3 estimated that at the time that he heard the firearm being discharged, the Complainant had narrowed the distance between himself and the officer to five feet. CW #3 then saw the Complainant go down to the ground, at which point two additional police officers arrived.

CW #3 then activated his cell phone video, and although he did not capture the actual shooting, he repeated what he had just seen, only seconds before. That version of events was provided to SIU investigators and is totally consistent with the evidence that CW #3 provided in his statement. I find this evidence, recorded within seconds of the events occurring, to be extremely compelling as there was no opportunity for memories to fade or facts to become confused. In his narrative, he is heard to say, “Shots were fired. They Tasered him first, he didn’t move, he didn’t stop, so…. I heard three shots. I can’t see that much from here. I’m on the other side of Gillies. Suspect started running across, he stopped, then he started to run at the officer.”

CW #1 was parked in the Gillies Lake Conservation Area parking lot facing Gillies Lake when he observed the Complainant run past his vehicle, on the passenger side, followed by the SO about ten seconds later, on the driver’s side. CW #1 described both men as running out onto the frozen lake, in snow that he estimated to be between one foot and one and one half feet deep, which caused the Complainant difficulty as he tried to run. CW #1 observed the Complainant to stop and turn to face the SO when he was about 25 feet out on the lake, with the SO then pulling out his CEW and warning the Complainant to stop, or he would use his CEW.

CW #1 estimated the distance between the Complainant and the police officer as approximately 15 to 20 feet when the Complainant stopped and turned toward the officer. CW #1 then heard a “zapping” sound, which he associated with the deployment of the CEW, but he observed that the CEW had no effect on the Complainant, who was approximately ten feet from the SO when the CEW was deployed. Immediately following the deployment of the CEW, CW #1 saw the Complainant run toward the SO, causing CW #1 concern that the SO was in trouble and needed help, as a result of which CW #1 exited his vehicle to assist the SO. While exiting his vehicle, however, CW #1 heard three quick gunshots. Within seconds after the gunshots, CW #1 saw WO #1 arrive; WO #1 told CW #1 to get back into his car. CW #1 then heard WO #1 speak into his portable radio, and indicate, “Shots fired! Shots fired!”

The communications recording confirms this evidence in that it reveals a police officer calling in at 10:16:47 a.m. and reporting, “Shots have been fired! Shots have been fired! Is there an ambulance on the way to Gillies Lake?” Other officers then arrived and carried the Complainant to an ambulance, upon its arrival.

CW #7 heard three or four gunshots from his living room and looked out to see the Complainant lying in the snow and two police officers running toward him from the Gillies Lake Conversation Area, followed by a third police officer shortly thereafter. CW #7 then observed the police officers to pick up and carry the Complainant toward an ambulance that had just arrived, with the officers falling in the snow at one point. This is also seen on the CCTV video, where one can see that the depth of the snow is hampering the movement of the officers, and that at one point they fall while carrying the Complainant.

One civilian witness, CW #4, provided evidence which was completely contradicted both by the other independent CWs and the CCTV footage. CW #4 indicated that he heard a gunshot from his home and when he looked out, he saw the Complainant kneeling in the snow facing two police officers. CW #4 described each police officer as being about ten feet from the Complainant, with the officer on the right having his knees bent and his arms extended, which he took as the officer pointing a firearm at the Complainant. CW #4 advised that he then observed the officer fire three shots, one after the other, at the Complainant while he was on his knees. CW #4 then observed these two police officers to approach the Complainant, while two more officers then also ran onto the ice and toward the Complainant.

Based on the overwhelming evidence of the other independent CWs, as confirmed by the CCTV and ICCS video footage, it is clear that three or four gunshots were heard by the witnesses in one grouping and that no firearm was discharged thereafter; that the Complainant only went to the ground after these three or four gunshots and, while the SO continued to point his firearm at the Complainant after he had fired his weapon, no further shots were fired. All of the other witnesses, as well as the video footage, confirm that the SO was alone on the lake with the Complainant when the Complainant ran at him and the SO fired his weapon. As such, I am unable to accept the evidence of CW #4 as being accurate and I reject his evidence in favour of that of the other CWs, the video recordings, and the physical evidence.

The various video recordings confirm the evidence of ten of the 11 CWs, as well as the police witnesses, with the exception of CW #4, whose version of events is definitively negated by the video evidence.

In his initial interaction with WO #1 at the ambulance base parking lot, the Complainant is seen on the video to “lunge” at WO #1, who immediately backs up behind his police vehicle and pulls his CEW, which he does not have the opportunity to deploy as the Complainant runs off with WO #1 following, while alerting dispatch and his fellow officers that the Complainant was armed with two knives.

The ICCS video from the SO’s cruiser reveals the Complainant running past CW #1’s vehicle, which was parked in the Gillies Lake Conservation Area parking lot, with the SO exiting his police vehicle and giving chase on foot. The ICCS audio then picks up the SO saying to the Complainant, in a fairly calm voice, “Drop the knives. Drop the knives, okay brother?” This is also recorded on the communications recording, which has it noted as having occurring at 10:14:36 a.m.

Both the ICCS video and the CCTV video from the ambulance base confirm that the SO runs out onto the lake after the Complainant and that, at one point, the Complainant turns and faces the SO, who then begins to back away but is hampered because he keeps breaking through the deep snow and losing his balance. Initially, the SO is seen with an object in his hand, presumably the CEW based on the evidence of the independent witnesses, while the Complainant nears. The movements of the Complainant can be described as quick and with momentum, while the SO immediately tries to back away and increase the distance between them, but is again hampered by the deep snow. The SO is then seen to reach for his sidearm, presumably having thrown his CEW away after the ineffective deployment as described by the witnesses, while the Complainant continues to quickly close the space between them. Within 28 seconds of the SO telling the Complainant to drop the knives, an officer is heard to report that the EMS is needed, which was recorded as occurring at 10:15:04 a.m. Unfortunately, the discharge of the firearm is not clearly heard on the recordings and therefore it is difficult to pinpoint exactly when the shots were fired, other than to conclude that they occurred within those 28 seconds.

The SO stated that upon hearing the radio transmission from WO #1, he drove across Algonquin Boulevard East towards Gillies Lake and into the parking lot of the Gillies Lake Conservation Area, where he immediately saw the Complainant running northbound towards the lake. He saw the Complainant run past CW #1’s motor vehicle and out onto the snow covered lake, following which the SO exited his police vehicle and followed. The SO described the snow as being knee deep and difficult to run through.

The SO indicated that his pursuit of the Complainant was based on his belief that he had reasonable grounds to arrest the Complainant for weapons related offences, due to the information from WO #1 that the Complainant was in possession of two knives and was therefore a risk to the safety of the public.

As the SO pursued the Complainant, he considered his use of force options and decided, based on his training, that the most effective and least harmful way in which to apprehend the Complainant was to resort to his CEW, which he then accessed from his duty belt. The SO estimated that he was approximately 25 metres out on the frozen lake when the Complainant stopped and turned to face him, in what he described as a ‘bladed’ stance, with a knife in his left hand and his right hand obscured behind his back. The SO then deployed his CEW at the Complainant, but it was ineffective, likely due to the amount of clothing worn by the Complainant, which prevented the prongs of the CEW making contact with the Complainant’s skin.

Following deployment of the CEW, the Complainant continued to advance toward the SO with the knife in his hand. The SO, while trying to back away and increase the distance between himself and the Complainant, was unable to do so because the snow was too deep, making it difficult to manoeuvre. The SO described the Complainant as having closed the distance between them to about seven metres, and he was gaining momentum forward, faster than the SO could back away. The SO described himself as having nowhere to go and that he was trapped.

The SO advised that his thinking at the time was that the Complainant was prepared to stab and kill the SO, so he immediately dropped his CEW and drew his sidearm, firing a volley of three to four shots. The SO advised that it was his intention to fire low at the Complainant’s body, as he did not intend to kill him. The Complainant then fell into the snow, but remained in a partially seated position with the knife still held in his hand; as a result, the SO indicated that he could not determine whether or not the Complainant had actually been struck by any of the bullets. The SO then continued to direct the Complainant to drop the knife, while he maintained gunpoint coverage of the Complainant. While it was clear that the Complainant was still conscious, he did not respond, nor did he drop the knife.

When other officers arrived, WO #2 cautiously moved toward the Complainant and removed the knife from his hand, while the SO continued to cover him with his firearm.

WO #2 described the Complainant as having a firm grip on the knife and that it required some effort for him to remove the knife. He then placed the knife inside his own pocket, in order that it not be lost in the deep snow.

Two wire leads from the SO’s CEW were located leading from the CEW to the coat of the Complainant. The CEW itself was located lying in the snow with the wires still attached, and it was retrieved and secured. The download data from the SO’s CEW confirmed that it was deployed on one occasion, at 10:14:57 a.m., which, according to the times on the communications recording, would have had him discharging his firearm within approximately seven seconds of the failed CEW deployment.

When the Complainant was later examined, he was found to have black electrical tape wrapped around his waist, green painter’s tape wrapped around his chest with meat packaging material under the tape, and black electrical tape wrapped around his right leg. The SIU investigation could find no explanation for why the Complainant applied this unusual ‘apparel’ to his person. [3]

After the Complainant had been carried to the ambulance and taken to hospital, the SO provided a recount of what had occurred leading up to the shooting of the Complainant to two other officers present. That account was consistent with that provided in his statement to SIU investigators, and fully accorded with the evidence of all of the CWs, with the exception of the one witness whose evidence I have discounted, as well as the other police witnesses, the various video and audio recordings, observations made at the scene, and the physical evidence. As such, I am satisfied that the version of events provided by the SO is an accurate recounting of what occurred. In assessing the evidence, however, I have relied primarily on the eyewitness evidence of 10 of the 11 CWs, with specific emphasis on that of CW #1, who was in the best position to see what occurred, and CW #3, CW #8, and CW #2, who all observed the interaction between the SO and the Complainant in the seconds immediately prior to the SO discharging his firearm, as well as the various video recordings.

On the basis of this extremely convincing evidence, then, I accept that the SO pursued the Complainant onto the frozen surface of Gillies Lake, which was covered in snow of about knee height making manoeuvring difficult; that the SO had reasonable grounds to apprehend the Complainant on a charge of possession of a weapon dangerous to the public peace, contrary to s. 88 of the Criminal Code; that once out on the ice, the Complainant turned to face the SO and refused to drop his weapon; that as the Complainant advanced on the SO, the SO deployed his CEW, which was ineffective in that it did not stop the Complainant advancing; that the Complainant had his arm raised, with a knife in hand, and was quickly moving towards the SO, who, due to the depth of the snow, was unable to back away from the Complainant as quickly as the Complainant was advancing on him; and that as the Complainant closed the distance between himself and the SO, and refused to either stop or to drop his weapon, the SO discharged his firearm on four occasions, striking the Complainant and causing his death.

Before proceeding to my decision, I wish to address the Post-Mortem Report in which the forensic pathologist noted that three of the bullets from the SO’s firearm entered from the front of the Complainant’s body, travelling toward the back, while a fourth bullet entered from the back and exited through his chest. While at first blush this may raise some suspicions as to the position of the Complainant in relation to the SO when the SO discharged his firearm, it is without dispute, based on both the video evidence and that of the independent CWs, that the Complainant was both facing, and advancing toward, the SO when the SO discharged his firearm. While this may seem inconsistent with the forensic evidence, I can only surmise that while the SO was discharging his firearm, after the first, or more, of the bullets struck the Complainant, his body either twisted or turned, or he leaned forward causing the last bullet to enter through his back. I find, on all of the evidence, that the SO did not initially discharge his firearm when any part of the Complainant’s back was turned towards him. While I am not an expert in this area, I note that there is some literature which supports the conclusion that during the time that it takes to discharge a firearm, a body can change direction resulting in a bullet entering from the back. I find further support in this conclusion from the fact that the bullet which entered from the back did so on a downward angle, which would appear consistent with the Complainant bending forward after being initially struck, causing the last of the projectiles to enter through his left upper back and exiting through the left chest wall. [4]

The Law and Analysis

The question that remains to be answered, then, on the facts as I have found them, is whether or not the SO was justified in using lethal force against the Complainant, or whether the discharging of his firearm at the Complainant was an excessive use of force in these circumstances and provides reasonable grounds for the laying of criminal charges against the SO for causing the death of the Complainant.

Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. Further, pursuant to subsection 3:

(3) … 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 preservation of any one under that person’s protection from death or grievous bodily harm.

As such, in order for the SO to qualify for protection from prosecution under section 25, it must be established that he was in the execution of a lawful duty, that he was acting on reasonable grounds, and that he used no more force than was necessary. Furthermore, pursuant to subsection 3, since death was caused, it must also be established that the SO discharged his firearm believing on reasonable grounds that it was necessary in order to preserve himself, or others, from death or grievous bodily harm.

Turning first to the lawfulness of the attempted apprehension of the Complainant, it is clear from the radio transmissions of WO #1, that there were reasonable grounds to believe that the Complainant was in possession of a weapon dangerous to the public peace, contrary to s. 88 of the Criminal Code. As such, I am satisfied that the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the other requirements pursuant to s.25(1) and (3), I am mindful of the state of the law as set out by the Supreme Court of Canada in R v Nasogaluak (2010) 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. (p. 218)

The court describes the test required under s.25 as follows:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer's belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, (2001) O.J. No. 634 (QL) (S.C.J.), at para. 59).

The decision of Justice Power of the Ontario Superior Court of Justice in Chartier v Greaves, (2001) O.J. No. 634, as adopted by the Supreme Court of Canada above, sets out other relevant provisions of the Criminal Code to be considered, as follows:

27. Use of force to prevent commission of offence - Everyone is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone, or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

This Section, therefore, authorizes the use of force to prevent the commission of certain offenses. “Everyone" would include a police officer. The force must not be more than that which is reasonably necessary. Therefore, an objective test is called for. The Ontario Court of Appeal, in R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 held that the use of deadly force can be justified only in either cases of self-defence or in preventing the commission of a crime likely to cause immediate and serious injury.

34(1) Self-defence against unprovoked assault - Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Extent of justification - Everyone who is unlawfully assaulted and who       causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

In order to rely on the defence under subsection (2) of Section 34, a police officer would have to demonstrate that he/she was unlawfully assaulted and caused death or grievous bodily harm to the assaulter in repelling the assault. The police officer must demonstrate that he or she reasonably apprehended that death or grievous bodily harm would result to him or her and that he or she, again on reasonable grounds, believed that he/she could not otherwise preserve himself/herself from death or grievous bodily harm. Again, the use of the term reasonable requires the application of an objective test.

The court also sets out a number of other legal principles gleaned from the legal precedents cited, including the following:

(h) Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event.
(i) "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver).
(j) Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances.
(k) "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.).

On the basis of the foregoing principles of law then, I must determine:

(1) Whether the SO subjectively believed that he was at risk of death or grievous bodily harm from the Complainant at the time that he discharged his firearm; and,

(2) Whether that belief was objectively reasonable, or, in other words, whether his actions would be considered reasonable by an objective bystander who had all of the information available to him that the SO had at the time that he discharged his firearm.

With respect to the first of these criteria, it is clear from the statement of the SO that he believed that he was at risk of death or grievous bodily harm at the time that he discharged his firearm. He based that belief on his observations at the time that the Complainant was quickly advancing on him with a knife in hand, that the Complainant refused either to stop or to drop his weapon, and that the previous deployment of the CEW had been ineffective, leaving only one option by which to effectively stop the Complainant from attacking him with the knife, that being resort to his firearm.

On all of the information that the SO had in his possession at the time he shot and killed the Complainant, I find that he, subjectively, had reasonable grounds to believe that his life was at risk from the Complainant and that his observations of the Complainant’s actions, as well as the information provided by WO #1, would have reasonably caused the SO to believe that he was at imminent risk of being seriously injured, if not killed, by the Complainant.

In considering the reasonableness of the SO’s actions and whether or not he considered the use of less lethal use of force options before resorting to his firearm, the SO indicated in his statement, and he was heard on the communications recording, instructing the Complainant to drop his weapons, which appeared to have fallen on deaf ears. He also stated, as confirmed by several of the independent CWs, the evidence located at the scene, and the CEW download data, that he had already resorted to the only other less lethal use of force option (the CEW) available to stop the Complainant, which either because of the heavy clothing worn by the Complainant, or perhaps because of the insulating tape which he had applied all over his body, had proven ineffective, thereby leaving only his firearm as a viable alternative. On that basis, it is clear that the SO, in the brief seven seconds or less available to him after he had deployed his CEW, and while the Complainant was quickly advancing upon him with a deadly weapon, appears to have considered all of his options before discharging his firearm.

I have described the knife in the possession of the Complainant as a deadly weapon, which I have done after noting that the knife recovered appears quite small in size, with the blade being described as being 5 cm in length. While there may be some who believe that this small of a knife was not a serious threat to the life or safety of the SO, I wish to indicate that I have no hesitation whatsoever in finding that the Complainant was quite capable of inflicting serious bodily injury, if not death, had he been allowed to continue to advance upon the SO to a point where he could use the weapon against the SO. In this regard, I take specific note of the facts as outlined in the decision of R v Lenard Phillips, (1995) OJ No. 4152 OGD, wherein Mr. Phillips was convicted of using a small pen knife to murder Cst Eric Nystedt, which Mr. Phillips used to stab Cst Nystedt in the thigh, thereby avoiding his body armour, nicking his femoral artery, and causing his almost immediate death from exsanguination. That knife was even smaller than the knife in the possession of the Complainant.

With respect to whether or not there were objectively reasonable grounds to believe that the life of the SO was at risk, one need only refer to the evidence of CW #1, who exited his vehicle when he observed that the SO was in trouble and might require his assistance, of CW #3, who described the Complainant as “full running at the officer”, of CW #8 who observed the Complainant raise his hands above his shoulders and then advance on the SO, or of CW #2, who observed the SO backing away from the Complainant, following which the Complainant lunged at him.

Additionally, one has to consider the evidence of WO #2, who had to pry the knife out of the Complainant’s strong grip after he had been shot, confirming that when the independent witnesses saw the Complainant advancing on the SO, he was indeed armed with a weapon, and the evidence of WO #1, who when earlier faced with the Complainant lunging at him with knives in hand, backed away and behind his police cruiser; a luxury, unfortunately, that the SO did not have when the Complainant lunged at him as he backed up in the deep snow.

I note that in his interview, WO #1 specifically indicated that from his observations as he ran toward the SO and the Complainant, he believed that the SO’s life was in jeopardy, or that he faced the possibility of being seriously injured by the Complainant, and he believed that the SO had no other option available to him than to discharge his firearm at that point in time.

Further, while I cannot say what was in the Complainant’s mind when he lunged at the SO, it is notable that the SIU found a “what to do” list written on an address book page that was in the Complainant’s discarded knapsack near the ambulance bay. While there is no way to determine when the list was made or if the thoughts expressed in the “What to do” list were serious (or, if serious, whether the list was intended to be acted on contemporaneously), I note that among other violent things referred to on that list was the first item, “kill every cop in town”. While the SO would not have known about the list, it informs my deliberation to the effect that there was a good possibility that when he advanced on the SO, the Complainant’s intentions would not have been, or certainly would not have appeared to be, benign. [5]

Having extensively reviewed all of the evidence, and the law relating to the justification in using force intended to cause death or grievous bodily harm when one believes on reasonable grounds that it is necessary for one’s self-preservation from death or grievous bodily harm, I find in all the circumstances that the SO reasonably believed that his life was in danger from the Complainant and his actions in firing upon the Complainant were justified. I find that it would have been foolish and reckless for the SO to risk his life by waiting for the Complainant, with knife in hand, to further close the gap between himself and the SO, particularly in the deep snow and having limited mobility, thereby putting his own life at immediate risk of serious injury or death. I further find that that risk was not one that the SO ought to have had to take when faced with a knife yielding 6’3,” 183 pound man.
I find, therefore, on this record, that the shots that were fired by the SO, which struck and killed the Complainant, were justified pursuant to ss.25 (1) and (3) of the Criminal Code and that the SO, in preserving himself from death or grievous bodily harm from the Complainant, used no more force than was necessary to affect his lawful purpose. As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the SO, despite the tragic loss of life, fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.


Date: October 18, 2018


Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) CW #15 also noticed that the Complainant was exhibiting erratic behaviour and unusual affect. He described the Complainant as being very confused and he also heard the Complainant say that he wanted to go to the hospital because he was naked. He heard the Complainant state that he “had done some crack,” and, after the Complainant put the knives to his neck, he heard him say, “I’m going to fucking do it”. CW #15 further described the Complainant’s behaviour as “angry and delirious like he lost his environment…” [Back to text]
  • 2) Although it seems that WO #1 was not aware that the Complainant dropped one of the knives as WO #1 reiterates incorrectly on at least two subsequent occasions that the Complainant has two small knives in his possession. [Back to text]
  • 3) It may be one explanation however, as to why the use of the CEW was ineffective. [Back to text]
  • 4) The Post-Mortem Report was received by the SIU on September 12, 2018. The trajectory of the bullet was described as back to front, slightly downwards, slightly right to left. This trajectory is not inconsistent with the descriptions of how the Complainant fell, or the video evidence. [Back to text]
  • 5) The list, which begins with “when I kill myself…Lmao”, also includes among 11 items, suggestions that the Complainant would kill anyone on his hit list and that he would lock someone in the trunk of a cop car and “then burn alive”. The fact that the Complainant allegedly previously attempted suicide is noted in the PM Report. The PM Report lists a long history of drug (speed and cannabis) and alcohol abuse, with previous involuntary admission with a differential diagnosis of Schizophrenia vs. substance induced psychosis and previous attempted suicide. I mention this fact in this report because apart from comments to the EMS personnel to the effect that he just wanted to be shot in the head (which was relayed to the 911 operator) and putting knives to his own throat, perhaps suggesting that he might be suicidal, there is no other explanation for the Complainant’s unusual behaviour which would lead to him running at an officer with a knife. Unless of course the potential adverse effects of the methamphetamines and cocaine as listed in the PM drove/influenced the Complainant’s behaviour. [Back to text]