SIU Director’s Report - Case # 21-OFP-116
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Mandate of the SIU
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Special Investigations Unit Act, 2019Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:
- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy ActPursuant to section14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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, 2004Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.
Other proceedings, processes, and investigationsInformation may also have 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.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the discharge of a firearm at a 27-year-old man (the “Complainant”).
Notification of the SIUOn April 10, 2021, at 9:45 p.m., the Guelph Police Service (GPS) notified the SIU of an Anti-Riot Weapon Enfield (ARWEN) discharge at an unknown person or persons.
According to the GPS, on April 8, 2021, at 11:31 p.m., GPS received a call to Christopher Court in relation to a disturbance on the eighth floor. It was reported that someone was trying to force the door to an apartment and weapons might be involved.
Uniform and tactical officers responded and saw two males outside the apartment. Both were issued the police challenge. One male complied, while the other did not. A tactical officer discharged his ARWEN twice. No one was struck and no one was injured. One person from inside the apartment was arrested. Neither of the two males outside the apartment were arrested.
One ARWEN projectile was recovered and secured by GPS. The other projectile was lodged in the wall on the eighth-floor hallway and could not be removed.
The officer who notified the SIU advised he was not notified of the incident until the reporting date, resulting in a delayed notification.
The TeamDate and time team dispatched: 04/12/2021 at 12:32 p.m.
Date and time of SIU response: 04/12/2021 at 12:48 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):27-year-old male, interviewed
The Complainant was interviewed on April 22, 2021.
Subject OfficialsSO Declined interview and to provide notes, as is the
Witness OfficialsWO #1 Interviewed
WO #2 Interviewed
WO #3 Not interviewed, but notes received and reviewed
The witness officials were interviewed on April 30, 2021, and April 31, 2021.
The Scene On April 15, 2021, at 9:00 a.m., an SIU forensic investigator attended the scene to complete photography and retrieve evidence.
The scene was located at an apartment complex on Christopher Court. The incident occurred on the eighth-floor hallway. There were two holes in the drywall. The upper hole was determined to be caused by common damage. The lower hole indicated an impact pinch point, approximate diameter of 5.5 cm x 3 cm, with a left to right impact entry into the drywall.
Physical Evidence The GPS seized one ARWEN baton projectile from the scene. The second ARWEN baton projectile was retrieved by an SIU forensic investigator from the drywall interior and secured under seal at SIU.
Video/Audio/Photographic Evidence1On April 15, 2021, the SIU received relevant communication recordings from the GPS. A summary of the material information therein follows.
911 CommunicationsOn April 8, 2021, GPS received three 911 calls about a disturbance outside of an apartment at Christopher Court. At 11:31 p.m., a person called from inside the apartment to report that between two to four men were attempting to kick in the door. The caller believed two of the men were possibly in possession of bear spray, a baton, a knife, and a firearm. The two men requested a female come out to the hallway. The caller barricaded themselves and the other occupants inside the apartment and was armed with a knife. Screaming was heard in the background of the calls.
When the 911 call-taker re-established contact after the call was disconnected, the caller asked, “Where are you guys?”
Radio TransmissionsAt 11:31 p.m., WO #2 and another officer were dispatched to the eighth floor of an address at Christopher Court for several calls about a door being kicked and people screaming. Additional uniformed officers, as well as tactical officers, the SO and WO #3, responded. Prior to police arrival, a man attempted to kick the door in and yelled, “Give me my girl!”
A further transmission provided an update that four men were at the door and two men yelled for a woman to come out. The two men were possibly in possession of bear spray, baton, knife and firearm.
At 11:42 p.m., WO #2 advised two men were in custody.
There were no transmissions about the discharge of an ARWEN.
GPS Booking and Cell VideoOn April 26, 2021, the SIU received the booking and custody video of the Complainant from GPS. The video was date and time stamped, and in colour. The booking video contained audio. A summary of the material information therein follows.
On April 9, 2021, at 12:50 a.m., a police vehicle entered the garage. The Complainant, who was handcuffed with his hands behind his back, exited the vehicle. A second police officer [now known to be WO #2] accompanied the officer in the police vehicle as the Complainant walked on his own accord to the booking area.
At 12:52 a.m., the Complainant was searched. At 12:57 a.m., the booking officer commenced the booking process. The Complainant admitted to consuming beer and smoking marijuana earlier that day. He did not mention the discharge of an ARWEN and denied he was injured.
Between 1:01 a.m. and 3:47 p.m., the Complainant was lodged in cells. A total of 37 cell checks were completed and he was only removed for identification or court purposes. The booking video recorded a conversation between WO #2 and another officer, in which the word, “Shot,” and, “Pop, pop,” were captured.
Materials Obtained from Police Service The SIU obtained the following records from the GPS between April 14, 2021, and May 27, 2021:
• Communication Recordings;• Arrest Booking Report;• Crown Brief Synopsis;• Custody and Booking Video;• Computer-assisted Dispatch Details;• List of Involved Officials and their roles;• List of Involved Persons;• Notes of the WOs;• Procedure: Use of Force;• Use of Force and Firearms Requalification Tracking Form-the SO; and• ARWEN Annual Requalification Course of Fire.
The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant and two police officers, each of whom was present at the time of the shooting. As was his legal right, the SO chose not to interview with the SIU or release a copy of his notes.
At about 11:30 p.m. of April 8, 2021, the GPS received a 911 call from an apartment at Christopher Court, Guelph. The caller reported the presence of assailants, possibly armed, attempting to kick down the door and force entry into the apartment. Two of the men, according to the caller, were demanding that a woman come out into the hallway. The caller indicated that they had armed themself with a knife and barricaded themself in the apartment. The caller urged the police to hurry to the scene. Police officers were dispatched to the address.
Two tactical officers – the SO and WO #1 – and a uniform officer – WO #2 – convened at the property at about 11:38 p.m. and took the stairwell up to the 8th floor. The SO was the first through the stairwell door into the hallway. He was armed with a conducted energy weapon. Behind him were the SO, equipped with an ARWEN, and WO #2, who had his firearm out. The officers could hear yelling and screaming from the area of the apartment, which was a distance away from them. As they neared the apartment, the officers directed the men outside the apartment door – the Complainant and an acquaintance – to stop what they were doing and go to the floor. The Complainant’s acquaintance immediately complied.
The Complainant continued to kick at the door of the apartment as the officers advanced on his position and was shot at twice by rounds discharged by the SO’s ARWEN. One of the rounds missed the Complainant entirely. Though less certain, the other round also seems likely to have missed the Complainant. Be that as it may, following the second discharge, the Complainant went to his knees and then into a prone position on the ground.
Following the shooting, the two were arrested without further incident. No weapons were located on their persons. The Complainant’s acquaintance was released at the scene. The Complainant remained in custody on charges of having breached a condition of his judicial release. Neither party suffered a serious injury in the incident.
Section 25(1), 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,
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 required or authorized to do by law. Given the information at their disposal, namely, of men in front of an apartment attempting to break into the unit and possibly armed, which information they were able to confirm in part as they stepped through the stairwell door, I am satisfied that the arrests of the Complainant and his acquaintance were lawful on a number of grounds, including preventing a breach of the peace and/or the commission of an indictable offence, such as an assault on the persons inside the unit.
I am further satisfied that the force used by the SO in aid of the Complainant’s arrest was not excessive. The officer had cause to believe that the Complainant was armed; the information provided via the 911 call suggested the men outside the unit were possibly in possession of a knife and gun. It was also apparent to the officer that, unlike his associate, the Complainant was not inclined to cease and desist at the direction of the officers. Instead, he continued to kick at the door. In the circumstances, the safety of the persons inside the apartment was clearly at risk in the event the Complainant managed to break into the unit. On this record, I am unable to reasonably conclude that firing his ARWEN – a weapon designed to temporarily incapacitate a subject from a distance – was something other than a proportionate and commensurate response to the exigencies of the moment. Though neither round seems to have struck the Complainant, the discharges do appear to have played a part in his decision to surrender of his own volition after the shots were fired.
It should be noted that there is some evidence that the Complainant had put up his hands and effectively surrendered when he was shot at by the SO, but I was unable to put any weight on this evidence in the face of the countervailing evidence of WO #1 and WO #2. This is so because the source of the more incriminating evidence provided an inconsistent account of the Complainant’s location and movements at the moment the ARWEN was discharged, which was a fundamentally important part of the narrative.
For the foregoing reasons, there are no reasonable grounds to believe that the SO conducted himself other than lawfully in discharging his ARWEN at the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: August 6, 2021
Electronically approved by
Special Investigations Unit
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [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.