SIU Director’s Report - Case # 21-PFP-126
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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.
Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:
- 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 investigations
Information 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 15-year-old youth (the “Complainant”).
Notification of the SIUOn April 19, 2021, the Ontario Provincial Police (OPP) reported a discharge of a firearm at a person – the Complainant.
The OPP advised that at 7:12 p.m.,  OPP police officers responded to a robbery at a restaurant in Kenora by the Complainant involving bear (pepper) spray. He fled on foot and was tracked to an alley between Fifth and Sixth Streets. He was engaged by the Subject Official (SO), who demanded that the Complainant drop the bear spray. He refused and the SO discharged an Anti-Riot Weapon ENfield (ARWEN) striking him in the stomach. WO #1 and WO #2 witnessed the incident.
The Complainant was checked out at Lake of the Woods District Hospital.
The OPP was to have a Scenes of Crime Officer take photographs and attempt to locate the discharged projectile. According to the OPP, there was a snowstorm that day and they might not be able to locate the ARWEN round.
The OPP was to provide an update once the Complainant was back in custody, as he was scheduled to have a bail hearing tomorrow.
The TeamDate and time team dispatched: 04/20/2021 at 6:32 a.m.
Date and time SIU responded: 04/20/2021 at 7:53 a.m.
Number of SIU Investigators assigned: 3
Three SIU investigators were assigned to investigate this incident. Due to the Coronavirus Pandemic, arrangements were made to have SIU investigators speak with witnesses and conduct interviews by telephone, by way of teleconference.
Following a preliminary investigation, the SO was designated as a subject official on April 20, 2021. The SO consented to an interview with SIU investigators and was interviewed by way of teleconference on May 4, 2021. He did not consent to the release of his duty notes.
A canvass was done, and three witnesses were identified and spoken with; however, none of these witnesses observed the interaction between any of the involved OPP police officers and the Complainant.
Affected Person (aka “Complainant”):15-year-old male interviewed
The Complainant was interviewed on April 20, 2021.
Civilian WitnessesCW Interviewed
The civilian witness was interviewed on April 29, 2021.
Subject OfficialsSO Interviewed, but declined to submit notes, as is the subject official’s legal right.
The subject official was interviewed on May 4, 2021.
Witness OfficialsWO #1 Interviewed
WO #2 Interviewed
The witness officials were interviewed on April 21, 2021.
The Scene The scene was located at the rear of a property on First Street South in Kenora. There were garages at the rear of the properties and an alleyway in behind the properties traveling in an east/west direction.
Video/Audio/Photographic Evidence The OPP provided the SIU with audio recordings related to the incident. The following is a summary of those recordings.
April 19, 2021 – 911 Calls
• 8:10:37 p.m. – A man identified called 911. He reported that there was someone running from a restaurant who might have stolen something. There was a man who might be the owner of the restaurant chasing the person. The man went into a building First Street South and the owner of the restaurant walked back to the restaurant. The man came out the back of the building on First Street South and was walking in the alley. The man was wearing a jacket with the hood up and black ball cap, and carrying a backpack. The caller estimated the man’s height and advised that he was walking east.
• 8:11:43 p.m. – A man called 911 and reported that there was an incident at a restaurant in Kenora. Someone was pepper spraying people outside of the restaurant. The caller did not witness the incident - a woman passerby told him that there were two people pepper sprayed. The dispatcher advised that the ambulance would be called. After the caller hung up, the dispatcher said she was changing the call to robbery and telephoned a police sergeant. The dispatcher advised the sergeant that they had a robbery at the restaurant and that a man had pepper sprayed two people. The dispatcher requested that a canine team attend.
• 9:12:25 p.m. – A woman called 911. She advised that she was at a restaurant in Kenora. She reported that a man had stolen money from the till and her husband was chasing the man. The woman had not seen a weapon other than pepper spray. She advised that she had been pepper sprayed. The dispatcher advised she would call the ambulance. The woman caller provided a description of the man. The woman caller was advised by someone that she knew the man. Her husband had followed the man. She advised the dispatcher that she did not require the ambulance.
• 8:13:35 p.m. – The dispatcher advised that a woman called 911 indicating that a man had pepper sprayed people. The dispatcher advised that the 911 caller indicated that there had been a break and enter and possible robbery as there was money taken.
• The dispatcher advised that the man had run off towards Second Street South and provided his description.
• A police officer said he was behind another police officer. A request for a canine team had been passed to the Provincial Communication Center.
• The dispatcher advised that a third caller had reported that the man ran away from the restaurant and went into a building on First Street South. The man that went into the building had now come out the back and a further description indicated he had a parka and black baseball cap. His direction of travel was reported.
• A police officer indicated he was going to the back lane to see if he could find the male.
• The police officer advised that grounds existed for armed robbery and assault with a weapon as the man had used pepper spray and stolen money.
• WO #2 told the SO that he would head to the area.
• The SO asked for the telephone number of the witness who saw the man enter the building on First Street South. The dispatcher provided the number.
• A man advised that two police officers were off at the building on First Street South.
• The SO advised that he and WO #1 were at First Street South.
• The SO asked for a check on the Complainant and the dispatcher said RMS [Records Management System] was negative.
• The SO advised of the address and that he was now in the alley. He then said, “ARWEN Deployed.”
• The dispatcher confirmed that the ARWEN had been deployed and a man advised that there was a person in custody.
• A police officer requested the location, which was confirmed to be in the alley.
• The dispatcher asked for confirmation as to who made the arrest, and was advised that both WO #1 and the SO were present, and the SO had deployed the ARWEN.
• A police officer advised that the man had been in the lake and that his clothes were soaked.
• The police officer advised that he had spoken to two people, and his information was that the man never made it into the house.
• The police officer advised that the incident was classified as a robbery and the victims were refusing to provide statements because they were afraid of repercussions.
• 8:18:36 p.m. – Telephone call for OPP to the ambulance call-taker requesting attendance at a restaurant for a pepper spray incident. A man asked for the exact time the call was called-in and was told “1912 eastern”.
• 9:14:34 p.m. – The dispatcher called a police sergeant and advised that there had been a robbery at a restaurant. A man had sprayed two people. They were requesting a canine team. A man called the Operations Centre and advised that an ARWEN had been deployed. Emergency Response Team and uniform officers had arrested a man.
Materials Obtained from Police Service The SIU obtained the following records from the OPP between April 21, 2021 and May 11, 2021:
• Computer-assisted Dispatch Event Details;
• Communication recordings;
• Notes of the WOs;
• Occurrence Summary (RMS Report); and
• Training Records for the SO and WOs.
In the evening of April 19, 2021, the OPP received 911 calls about a robbery at a restaurant in Kenora. A man was reported to have stolen money from the restaurant and sprayed restaurant employees with pepper spray. Police officers were dispatched to investigate.
The Complainant was the male in question. The Complainant entered the restaurant, stole money from a register, and sprayed employees with bear spray, after which he fled to a building on First Street South.
A cab driver had noticed the incident at the restaurant, followed the Complainant to the address on First Street South, and contacted police to report what he had seen.
The SO arrived at the address on First Street South, together with WO #1 and WO #2. They located the Complainant in an alley at the back of the garage and directed him to show his hands and lay on the ground. The Complainant ignored the officers’ directions and walked toward them. At a distance of between five to six metres, the SO fired his ARWEN once. The round struck the Complainant in the front torso.
The Complainant was felled as a result of the discharge. He was quickly approached by the officers and handcuffed without further incident.
Following his arrest, the Complainant was taken to hospital where he was found not to have suffered any serious injuries.
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. Based on the information provided by the 911 callers and the cab driver who followed the Complainant from the restaurant to the address on First Street South, I am satisfied that the officers had grounds to arrest the Complainant for theft and robbery.
I am further satisfied that the SO did not use excessive force in taking the Complainant into custody. The officer had cause to believe that the Complainant had bear spray with him, which he had just used to attack employees of the restaurant from which he had stolen money. In the circumstances, I am unable to fault the SO for attempting to neutralize the Complainant from a distance with the use of his ARWEN when the Complainant continued to advance toward the officer. Waiting any longer, or approaching the Complainant to engage him physically, risked giving the Complainant an opportunity to use the spray against the officers. Nor were withdrawal or retreat clearly better options as the Complainant had just committed a violent offence and had given no indication that he was about to surrender peacefully.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than lawfully throughout his engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges against the officer, and the file is closed.
Date: August 17, 2021
Electronically approved by
Special Investigations Unit
- 1) Unless otherwise noted, all times denoted in this report are Central Time. [Back to text]
- 2) 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. All times reported in this summary are Eastern Standard Time. [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.