SIU Director’s Report - Case # 21-PFD-257
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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 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 death of a 31-year-old man (the “Complainant”) during an interaction with the police.
Notification of the SIUOn August 15, 2021, at 2:46 p.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s death.
The OPP advised that on August 15, 2021, at about 11:00 a.m., OPP police officers responded to a domestic disturbance call for service at a residence on Belsyde Avenue in Fergus. There was information that the disturbance could be related to possible mental health issues. OPP police officers negotiated with the Complainant, who was hiding in a bedroom in possession of knives.
At around 1:38 p.m., police officers used pepper spray, then Conducted Energy Weapons (CEWs) and, finally, a firearm was discharged.
Emergency Medical Services (EMS) pronounced the Complainant deceased at the scene.
The scene was secured.
One of the involved police officers had reportedly been stabbed in the arm and was taken to hospital.
The TeamDate and time team dispatched: 08/15/2021 at 3:59 p.m.
Date and time SIU arrived on scene: 08/15/2021 at 4:19 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 3
Affected Person (aka “Complainant”):31-year-old male, deceased
Civilian Witnesses (CW)CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
The civilian witnesses were interviewed between August 15, 2021 and September 13, 2021.
Subject Official (SO)SO Declined interview and to provide notes, as is the subject official’s legal right
Witness Officials (WO)WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
The witness officials were interviewed between August 18, 2021 and October 15, 2021.
The SceneThe Complainant’s apartment was in a building on Belsyde Avenue East, Fergus.
At 6:21 p.m., an SIU Forensic Investigator attended the Complainant’s apartment. The entrance door was under OPP guard. The entrance door was undamaged other than the safety chain, which was broken.
From the entrance the head of the Complainant was visible. His head was to the north and his feet were to the south. He was lying on his back, and his chest was exposed with medical pads adhering to it. A large quantity of blood surrounded the body. Numerous EMS equipment bags and EMS debris also surrounded the body. There were items of clothing along both sides. He was wearing a pair of shorts with long underwear bottoms underneath. The Complainant’s right pant leg had been cut for medical reasons and he was wearing socks.
BedroomThe main bedroom had a bed, a long dresser, a table with a small TV and an end table. The bed was in the centre of the room with the head of the bed away from the entrance. A long dresser drawer was along the wall to the right of the entrance. The TV table was at the foot of the bed. There was a small closet left of the entrance at the foot of the bed. The first indications of blood were at the foot of the bed next to the door. The blood was then smeared on the floor.
Examination of the bedroom revealed four silver cartridge cases with the headstamp WIN Luger 9mm. Two of the cartridge cases were located on the bed towards the head of the bed and two were on the floor towards the head of the bed. There was evidence that a CEW was discharged in the bedroom as the debris, AFIDs, internal plastic pieces, and blast doors, were scattered about the room. One probe from a CEW was lodged in the wall next to the closet.
Two knives were located on the dresser. One knife was on the corner of the dresser closest to the door. It was a folding knife in the open position with a hook blade. It was known as a “Karambit” blade. The other knife was also a folding knife, in a partially open condition. It had a blue handle and was made by CRKT.
The clothing and medical debris around the body was collected.
A total of four CEW probes were located, one of which was embedded in the wall of the bedroom.
KitchenThere were three knives on the counter next to the refrigerator. One was a spring-loaded box cutter, the second was a black folding knife and the third was a fixed blade knife with a bone handle.
The scene was video recorded and measured so that a planned drawing could be completed.
At 10:23 p.m., the body removal service attended. The body was transported to the Coroner’s Complex in Toronto for post-mortem examination.
The scene was photographed after the removal of the body and just prior to leaving the scene. The door was sealed and the OPP were advised the scene was to be protected until after the post-mortem examination.
An SIU Forensic Investigator attended the OPP detachment to examine and photograph the clothing of the involved police officers and their use of force options, and to download the data from the CEWs used in this occurrence. The clothing of the involved police officers was examined for evidence of damage, and in order to obtain the firearms and ammunition used.
Exhibits from the Complainant’s Apartment
- Four silver “WIN 9mm Luger” cartridge cases;
- CEW debris, AFIDs, plastic components, wire, and blast doors. The AFIDs had the serial numbers assigned to WO #1 and WO #3. The AFIDS were scattered around the bedroom;
- Four CEW probes were located. One was lodged in the wall near the southwest corner of the bedroom. Another was located on the ground under the Complainant’s right foot. One had penetrated his clothing and the final probe was found tangled in the clothing that had been cut from his body;
- A set of police car keys;
- A “TAC-FORCE” folding knife that was in the open position. It was found on the dresser in the bedroom next to the door. The curved blade was approximately 7 cm and the handle was 12 cm. The knife was visually examined but there were no signs of blood or fibres;
- A “CRKT” folding knife that was in the open position. It was found on the dresser. The blade was approximately 7 cm centimetres and the handle 10 cm. The knife was visually examined but there were no signs of blood or fibres;
- A cannister of OC spray was found on the bed;
- Three knives were found on the kitchen counter. One was a spring-loaded box cutter which exposed the blade when one squeezed the handle. The second knife was a fixed bladed knife with a bone handle. The third knife was a black folding utility knife;
- A black garment that had been cut from the Complainant’s body was examined. It was saturated in blood. It had been cut by EMS. There were three defects to the front and one of the defects had a projectile copper jacket adhering to it; and
- Another garment was a hoody-type sweatshirt which only covered the shoulders and arms. This item was also saturated in blood. It had been cut by EMS. There were several defects in the right sleeve.
Figure 1 – Knife found on bedroom dresser
Figure 2 – Knife found on bedroom dresser
Exhibits obtained from the OPPThe SO
1) A Glock 17M belonging to the SO. There was one “WIN 9mm Luger” cartridge in the chamber and 13 extra cartridges in the magazine;
2) Two spare magazines belonging to the SO, each containing 17 cartridges; and
3) The duty belt of the SO that had an ASP, multitool and handcuffs in the corresponding pouches. The duty belt was equipped with a CEW holster, a Glock holster, and an empty OC spray pouch. The CEW had been examined by the SIU Forensic Investigator and was determined not to have been discharged. It was released to the OPP; and
4) Two discharged CEW cartridges.
Figure 3 – The SO’s firearm
Exhibits Obtained from Post-mortem of the Complainant
- Four projectiles and two groups of fragments had been located within the body;
- A swab of the hands and face;
- Fingernail clippings;
- A pair of socks;
- Underwear that were bloodstained;
- Underwear that were bloodstained;
- Long underwear cut by EMS along right leg; and
- Shorts with a black web belt. Attached to the belt was a sheath for a fixed blade knife.
Centre of Forensic Sciences (CFS) - Chemistry ReportThe chemistry report was dated October 4, 2021. The purpose of the examination was to analyze the contents of an OC spray container to determine if it was operational and if its contents, namely, lachrymators, were found on the Complainant’s hands and face. The report determined there were no lachrymators present in the hand and face swab obtained from the Complainant at autopsy.
CFS - Biology ReportThe biology report was dated October 20, 2021. The purpose of the examination was to determine if there was blood present on the two knives used by the Complainant and, if so, if DNA profiles could be developed.
DNA from at least two people, including one male, was found on the TAC Force folding knife. And enough male DNA for Y-STR testing was found on the CRKT folding knife.
Autopsy Report and Toxicology ReportThe Autopsy Report and Toxicology Report have not yet been received by the SIU.
WO #3’s CEW DownloadOn August 15, 2021, at 1:27:50 p.m., WO #3 armed his CEW. The CEW contained two cartridges. At 1:29:10 p.m., WO #3 fired his CEW using cartridge number one deploying it for a total of five seconds. At 1:29:29 p.m., WO #3 made his CEW safe. At 1:29:30 p.m., WO #3 armed his CEW and, at 1:29:52 p.m., he made his CEW safe again. At 1:29:57 p.m., WO #3 armed his CEW and, at 1:31:31 p.m., he made it safe again.
WO #1’s CEW DownloadOn August 15, 2021, at 1:14:07 p.m., WO #1 armed his CEW. The slot for cartridge one registered empty and the slot for cartridge two registered full. At 1:15:40 p.m., WO #1 made his CEW safe. At 1:26:05 p.m., WO #1 armed his CEW - both slots contained a cartridge. At 1:30:08 p.m., WO #1 fired his CEW with a two second trigger pull. Cartridge number one registered a cartridge sense fault. At 1:30:10 p.m., WO #1 made his CEW safe. At 1:30:11 p.m., WO #1 armed his CEW. At 1:30:12 p.m., WO #1 deployed his CEW for five seconds and cartridge one registered a cartridge sense fault. At 1:30:28 p.m., WO #1 deployed his CEW for five seconds and cartridge one registered a cartridge sense fault. At 1:30:51 p.m. WO #1 deployed his CEW again for five seconds with the same outcome. At 1:35:40 p.m., WO #1 made his CEW safe.
OPP Communications RecordingsThe recordings were made on August 15, 2021. The only time stamps were at the beginning and at the end; otherwise, the indicated times were derived from the Event Details Report.
At 11:12 a.m., CW #1, who was filling in for the property manager at the Belsyde Avenue apartment building, contacted the OPP. He had been called by a tenant about a domestic disturbance involving yelling and screaming in an apartment. CW #1 had gone to the apartment building, stood at the door of the apartment, and heard a lot of threatening, screaming, and foul language coming from inside the apartment. CW #1 told the dispatcher he would wait for the OPP in front of the building.
At 11:18 a.m., a woman called police. She stated somebody in the apartment building across the street had been yelling and screaming since the day before. She was concerned for the residents of the building she was in.
At 11:20 a.m., a man called to report that somebody who sounded mentally ill was shouting profanities and cursing for a while on Belsyde Avenue.
At 11:13 a.m., WO #2 and WO #1 were sent to a domestic disturbance call in progress at an apartment in a building on Belsyde Avenue. Information supplied was there was a lot of yelling and screaming. There were no previous occurrences associated with the address. The Complainant had been flagged on police records for violence. The caller, CW #1, was waiting out front of the building.
Before their arrival, WO #2 and WO #1 were informed that, on November 29, 2020, there had been several mental health calls related to the Complainant.
At about 11:23 a.m., WO #2 arrived, followed shortly thereafter by WO #1. WO #2 advised they were waiting to contact the Complainant. All was quiet at that time.
At 11:36 a.m., WO #1 reported they had seen the Complainant for ten seconds and that he then slammed the door and locked it. The Complainant refused to open the door. The police on scene believed the Complainant was by himself.
WO #4 was asked to assist. WO #3 began to head to Fergus.
At 12:06 p.m., WO #2 advised he and WO #1 were going to make an entry. WO #1 advised they would be using bolt cutters to make entry.
At 12:16 p.m., WO #1 reported entry was made. Police were at the front door and a massive piece of furniture barricaded the living room entrance. Police were unable to see the Complainant.
At 12:20 p.m., WO #2 reported seeing the Complainant with two knives. The Complainant had barricaded himself in the bedroom. WO #3 instructed that a police officer stand watch at ground level. WO #4 took that position. WO #2, WO #1 and the SO were instructed to clear the rest of the apartment and maintain their position.
WO #3 asked the Communications Supervisor to contact the Provincial Operations Centre with regards to negotiators. He further requested the Emergency Response Team (ERT) be called-out to assist with containment. When asked to confirm the request, WO #3 did so and referenced a barricaded person. EMS was asked to be contacted and to take up a staging position near the address.
At 12:35 p.m., WO #4 reported that the Complainant had seen the EMS and police vehicles that had just arrived.
At 12:47 p.m., WO #3 advised entry had been made to the bedroom. By then, the Complainant was hiding in the closet. WO #3 advised contact had been made with the Complainant, but he refused to exit the closet.
At 1:00 p.m., WO #3 advised the Complainant was still in the closet with a knife in his right hand. The left hand could not be seen.
At 1:01 p.m., WO #3 advised he had been told negotiators were unavailable and ERT had been contacted. WO #3 further advised attempts would be made to convince the Complainant to come out.
At 1:14 p.m., WO #3 was told four ERT members were coming to Belsyde Avenue. The Complainant still had not surrendered the knife.
At 1:15 p.m., WO #3 advised OC spray had been used and, at 1:19 p.m., a second dose was deployed at the Complainant. One knife was described as a hook knife. The Complainant still remained in the closest.
At 1:29 p.m., WO #3 announced, “Shots fired, shots fired.” This was followed by another transmission of shots fired, followed by another two announcements of shots fired. EMS was requested and “show me your hands” was transmitted.
Further transmissions in part indicated the knives could not be found and, at 1:49 p.m., the Complainant was pronounced deceased.
At 2:04 p.m., WO #3 advised that the SO had received a puncture wound from the knife and was transported to hospital by WO #5.
Body Worn Camera (BWC) Footage of the SOThe recording was made on August 15, 2021. The footage was marked as one hour, 21 minutes and 46 seconds in length.
At 12:17 p.m., the camera was turned on. The SO stood at the balcony door looking toward the living room and front entrance. WO #2 stood in the living room by the hallway to the bedroom. The SO had his CEW drawn. WO #1 stood between the kitchen entrance and the living room, closest to the balcony. WO #2 went off camera toward the bedroom. WO #1 positioned himself on the far wall to have a better sightline to the bedroom.
At 12:18 p.m., the audio for the BWC came on. WO #2 tried speaking with the Complainant. He told the Complainant to put the knife down, to which the Complainant responded repeatedly, “Can’t.”
At 12:19 p.m., the bedroom door was closed, and all the police officers inside the apartment positioned themselves on the far side of the living room. WO #2 gave an update on his radio that the Complainant had two knives and was barricaded in his bedroom.
At 12:21 p.m., WO #3 instructed one police officer to position outside. WO #4 left the apartment.
At 12:23 p.m., as instructed, the SO checked a second bedroom which was used as storage.
Between 12:24 p.m., and 12:25 p.m., the audio was turned off to the camera.
At 12:26 p.m., the SO repositioned himself by the front hallway and moved a piece of furniture so that he could view the bedroom door where the Complainant was. The SO and WO #1 were off camera.
At 12:30 p.m., for a period of eight seconds, the audio was again turned off.
At 12:31 p.m., WO #3 advised the police officers on scene to maintain their position in the apartment.
At 12:35 p.m., WO #4 gave an update that the Complainant was aware EMS were present.
At 12:37 p.m., the SO began calling out to the Complainant. The SO asked the Complainant if he could hear him. The SO stated they just wanted to speak with the Complainant and asked if the Complainant could talk to him.
At 12:40 p.m., WO #3 arrived at the apartment. Attempts to speak with the Complainant were not answered. The SO described how the Complainant had two buck knives. WO #3 could be heard giving an update to WO #6 on his cell phone. WO #3 asked if there was any indication of self-harm, and the SO replied, “No,” and a visual of the Complainant had indicated no injuries. WO #3 went off camera on the far side of the living room.
At 12:43 p.m., WO #3 inquired about a similar call last year. At 12:44 p.m., the dispatcher relayed the information to WO #3. WO #3 approached the bedroom door and tried to engage with the Complainant. He took up a position in the hallway, off camera. The Complainant was told police wanted to talk and make sure he was okay. The Complainant was asked to knock on the door if he heard WO #3. Further attempts were unsuccessful.
At 12:46 p.m., WO #3 tried the door handle of the bedroom door and the door opened inward. WO #3, with his CEW drawn, asked the Complainant to come out with his hands up.
At 12:47 p.m., WO #3 stuck his head into the bedroom as he continued to speak with the Complainant. Two seconds later, WO #3 entered the bedroom, and the SO took a position by the bedroom door. WO #3 supplied an update that the Complainant was in the closet. WO #3 positioned himself between the bed and the dresser, on the opposite side of the bedroom window. The Complainant was told to come out on numerous occasions. WO #3 transitioned to his firearm and spoke with the SO about not wanting the Complainant to charge out of the closet. There was discussion about putting something in front of the closet door. WO #3 moved a stand in front of the closet door and continued to say they just wanted to talk and for the Complainant to come out.
At 12:49 p.m., the SO opened the bifold closet door. The Complainant was continually told to come out with his hands up. The SO told the Complainant he was not in any type of trouble and they just wanted to help.
At 12:50 p.m., WO #3 gave an update that contact had been made with the Complainant. WO #3 told the Complainant to come out of the closet and to get help. The Complainant replied calmly, “I’m going to slit my own throat.” WO #3 told the Complainant they were worried about him. The Complainant said they did not have to worry about his mental health. WO #3 spoke of people hearing yelling from within the apartment and they were concerned. The Complainant promised he would be fine. WO #3 stated he wanted to assure himself the Complainant would be fine, and the Complainant replied, “Oh no, I’m totally cool man.”
At 12:51 p.m., WO #3 said he needed to see the Complainant. WO #3 told the Complainant that the police had to make sure he would not harm himself. On four occasions, the Complainant politely asked the police to leave his apartment. WO #3 said, “I got it, but I want you to come out.” The Complainant said, “No,” and, “I will kill myself.” WO #3 said that the police could not leave, and the Complainant replied, “I will just stay here and hang out, I promise you.” The conversation continued back and forth, and the Complainant commented if the police did not leave his property, they would die there with him. WO #3 said nobody was going to die.
As the conversation continued, the Complainant was told there were concerns for his mental health. The Complainant acknowledged he was not healthy. The Complainant explained he was perturbed because he did not believe the people in his apartment were police officers. WO #3 told the Complainant there were four persons in the room and if he came out of the closet the Complainant would see they were all police officers.
At 12:55 p.m., the content of the conversation changed. The Complainant told the police to go home. The Complainant was told the police could not leave. When asked, the Complainant said he had the knives on him.
At 12:57 p.m., WO #3’s cell phone rang, and he left the bedroom. The Complainant told the SO they had to leave. The SO said they were just there to talk, and they did not want the Complainant to hurt himself. The Complainant said he wanted to go to hell. Further attempts were made to have the Complainant come out of the closet and the Complainant told the police to leave.
At 1:12 p.m., the Complainant said he wanted to kill himself but that he could not. The Complainant told the SO that the SO would kill him. The SO replied he did not want to kill him. The Complainant called this ‘cat and mouse’ and said again he wanted to die.
At 1:13 p.m., the Complainant stopped talking to the SO and, at 1:15 p.m., WO #3 called for a “10-3” on the radio. The Complainant stood up briefly but was not seen on the BWC camera. The Complainant refused to drop the knife. About 28 seconds later, WO #3 came around the SO and, as he leaned forward toward the closet, he gave a burst of OC spray into the lower portion of the closet. WO #3 then announced OC spray had been deployed. The Complainant coughed a bit and responded, “Do you want to die, seriously,” and, when instructed to come out of the closet, the Complainant said, “There’s no fucking way.”
At 1:16 p.m., the SO repositioned himself between the bedroom window and the bed. The bedroom window was opened. The BWC captured the opposite side of the bedroom, WO #2 being the furthest into the bedroom, along with WO #3 and then WO #1 at the door. WO #2 and WO #1 had their firearms drawn and WO #3 had his CEW in hand. The view of the camera was into the open closet, but the Complainant could not be seen. Further instructions for the Complainant to come out of the closet were ignored.
At 1:25 p.m., the Complainant stood up. His upper body and face were captured by the camera. The Complainant’s left hand was empty. He sat back down. At 1:27 p.m., the Complainant stood up again.
At 1:28 p.m., WO #3 gestured for a police officer to spray the Complainant with OC spray. The SO moved closer to the closet and a burst of OC spray was heard. The Complainant ducked. At 1:29:37 p.m., the BWC turned quickly toward the opposite side of the room. WO #3 was at the foot of the bed with his CEW. WO #2, with his firearm drawn, and WO #1, with his CEW, were still on the opposite side of the bed. At 1:29:39 p.m., the SO had moved back and was on the bed. WO #2 and WO #1, and WO #3, were in line with the bedroom door. WO #3 was the closest to the door. The SO moved across the bed to the opposite side.
At 1:29:41 p.m., the Complainant came out of the closet, bent forward, and reached the corner of the bed. The Complainant went across the bottom of the bed in a bent forward position.
At 1:29:41 p.m., WO #3 was seen outside of the bedroom and WO #1 was at the door. The SO’s firearm was pointed at the Complainant. The Complainant was standing and came at the SO, who was between the bed and the dresser, closer to the back wall. A knife was in each of the Complainant’s hands.
At 1:29:42 p.m., four shots could be heard on the video. The Complainant fell backwards towards the door and landed on his left side. The SO said, “Jesus Christ.” “Shots fired, don’t move and drop the knife,” was heard. The Complainant got to a kneeling position as commands to drop the knife continued. The Complainant kept trying to sit up and fell backwards towards the side of bed. The Complainant was moaning. “Show your hands, stay down, and don’t move,” were being repeatedly yelled at the Complainant. The Complainant crawled out of the bedroom.
At 1:31:35 p.m., as WO #3 ordered the Complainant to stop, the bedroom door was partly shut. A search for the knives took place and, when the door reopened fully, the Complainant appeared in a sitting position in the living room. At 1:32 p.m., the SO told WO #2 that he did not think the Complainant got him with the knife.
At 1:33 p.m., WO #3 announced the EMS was inside the apartment. WO #3 said the Complainant was first Tasered and then shot when the Complainant came at the police with a knife. WO #3 did not know how many times the Complainant had been shot or where he had been shot. The SO announced he found one knife, which appeared to be on the dresser, and then the second knife was found.
At 1:36 p.m., the SO left the bedroom and WO #3 checked the SO at the kitchen for any wounds. EMS continued working on the Complainant. WO #3 confirmed only the SO discharged his firearm. At 1:39 p.m., the SO and WO #3 left the apartment.
The BWC was muted and then turned off.
Materials Obtained from Police ServiceUpon request, the SIU received the following materials and documents from the OPP between August 17, 2021 and October 8, 2021:
- Computer-assisted Dispatch Report;
- 911 Calls;
- Communications Recordings;
- Email from OPP regarding the SO choosing not to interview with SIU or release notes;
- General Occurrence Report;
- Notes – WO #3;
- Notes – WO #1;
- Notes – WO #6;
- Notes – WO #5;
- Notes – WO #2;
- Notes – WO #4;
- Witness List;
- BWC Footage;
- Training Record – the SO; and
- Use of Force Report – WO #1.
Materials Obtained from Other SourcesThe SIU obtained and reviewed the following records from other sources:
- Ambulance Call Reports and Incident Reports - Guelph-Wellington EMS;
- Autopsy - Preliminary Cause of Death from the Ontario Forensic Pathology Service;
- CFS Biology Report; and
- CFS Chemistry Reports (x2).
The Complainant had struggled with his mental health for a number of years. In the morning of August 15, 2021, residents of the building at which the Complainant resided contacted police to report a disturbance inside his unit. The Complainant was of unsound mind at the time. He had been screaming and yelling, on and off, from within his apartment, and was unresponsive to efforts by the property manager to speak with him. Police were dispatched to investigate.
WO #1 and WO #2 were the first officers to arrive at the scene on Belsyde Avenue East, Fergus – between 11:20 and 11:30 a.m. They spoke with the property manager outside before accompanying him to the Complainant’s apartment. After several knocks, the Complainant opened the door to his apartment. The officers explained they were there to ensure he was okay, whereupon the Complainant shut the door and locked it. Further efforts to communicate with the Complainant were unsuccessful.
Concerned for the Complainant’s well-being and the safety of anybody else in the apartment, WO #2 contacted WO #3. The sergeant suggested they try reaching the Complainant by phone and, if that did not work, they should endeavour to obtain a key to the apartment and enter. When further efforts to communicate with the Complainant failed, a key was retrieved from another resident of the building (also responsible for building maintenance) and the door unlocked.
By this time, WO #2 and WO #1 were joined in the building by the SO and WO #4. WO #4 left the building momentarily to retrieve bolt cutters from her vehicle, which she then used to cut through the chain lock that also secured the door. The four officers walked into the apartment and made their way through the unit. The time was about 12:15 p.m.
WO #2 saw the Complainant in a hallway to the left of the front entrance off the living room. He entered a bedroom and stood against the far west wall beside a bed – each of his hands held a knife. From the area of the bedroom door, WO #2 pointed his CEW at the Complainant and tried to speak with him. The Complainant refused to put the knives down and started walking towards the officer. WO #2 retreated as the Complainant closed the bedroom door.
WO #2 contacted WO #3 to update him on what was transpiring. The sergeant directed that an officer maintain observation of the unit from the outside, and WO #4 left to do that. The other three were to remain in the apartment to keep the Complainant contained. There was now a heightened concern for the Complainant’s safety and the safety of others given the presence of knives in his possession.
WO #3 arrived at the scene and joined the officers inside the apartment at about 12:40 p.m. He had been in touch with WO #6 – the on-call critical incident commander – for advice and direction. The sergeant had made arrangements to have paramedics stage in the area of the building in case they were needed, and checked on the availability of negotiators and ERT officers. The negotiators were not readily available to attend. The ERT officers would be between 30 minutes to an hour arriving.
When efforts by WO #2 and, then, WO #3 to communicate with the Complainant went unanswered, the sergeant approached the bedroom door and opened it. The time was about 12:46 p.m. The sergeant entered the room and looked to his left towards a closet. The Complainant, holding knives, was in the closet. Asked to step out of the closet, the Complainant refused. At about 12:49 p.m., the SO, who had also entered the room, opened the closed door. He assured the Complainant that he was not in any trouble, and that the officers were there to help him and ensure he was okay.
Over the course of the next 30 to 40 minutes, verbal attempts by WO #3 and the SO to have the Complainant step out of the closet and disarm himself went unheeded. The Complainant indicated he had no intention of leaving the closet, repeatedly asked the officers to leave, and talked about killing himself. Believing matters were at a stalemate, WO #3 discharged his canister of OC spray in the Complainant’s direction hoping that would force him out of the closet. It did not.
At about 1:30 p.m., from a position to the left (south) of the bed, the SO deployed his OC spray. WO #2 was standing on the north side of the bed by the west wall, WO #1 was just to his left, or east, of his position, and WO #3 was at the foot of the bed. On this occasion, the Complainant, standing in the closet by this time, reacted. He quickly exited the closet, knives in hand, and headed for the SO. As he emerged from the closet, WO #3 fired his CEW at the Complainant, which had no effect in immobilizing him. WO #1 seems to have also discharged his CEW at about the same time, with similar effect. The SO scurried over the top of the bed to get away, and ended up on his feet in front of WO #2. The Complainant shuffled across the foot of the bed and charged towards the SO. The officer fired his gun point-blank four times.
The Complainant fell at the foot of the bed after the gunfire. He managed to crawl from that location through the door, across the hallway and into the living room of the apartment, where he collapsed.
The paramedics staging in the area were summoned to the apartment and, with the assistance of officers, engaged in lifesaving measures. Despite their efforts, the Complainant was pronounced deceased at the scene at about 1:47 p.m.
Cause of DeathThe pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to a “gun shot wound of the chest”.
Section 34, Criminal Code -- Defence of person - Use of threat of force
(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.
(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.
Analysis and Director's Decision
Pursuant to section 34 of the Criminal Code, the use of force that would otherwise constitute an offence is legally justified if it was intended to protect oneself or another from a reasonably apprehended attack, actual or threatened, and was itself reasonable in the circumstances. The reasonableness of the force in question is to be assessed in light of the surrounding circumstances, including such considerations as the nature of the force or threat; 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; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. In my view, the force used by the SO fell within the justification prescribed by section 34.
At the outset, it is important to note that the officers were lawfully placed at the time of the shooting. They had been called to the scene for a domestic disturbance and were entitled to make inquiries with the Complainant in the interests of his safety as well as his neighbours’. Their involvement took on greater urgency when they learned that the Complainant, labouring under mental crisis, was in possession of knives. In the circumstances, the officers were duty bound to take reasonable measures in the interests of public safety. Those measures, I am satisfied, included entry into the apartment and, thereafter, the bedroom. Though the officers could have waited for ERT officers to arrive on scene, it was open for them to conclude that they could not afford to wait as long as it would take for the ERT officers to get there – 30 to 60 minutes – given the risk that the Complainant might self-harm or harm someone else in his apartment in the interim. As for the deployment of negotiators to the scene, the evidence indicates they were an hour-and-a-half to two hours away.
There can be little doubt that the SO acted to preserve himself from a reasonably apprehended assault when he was shot the Complainant. Though the investigation was without direct evidence of the SO’s mindset at the time, the officer having exercised his right to remain silent, the circumstances compel the conclusion. At the time, the SO was within arm’s reach of a man who had rushed him with a knife in each hand. In fact, it appears that the officer may have been cut by the Complainant - paramedics who tended to the SO described a small laceration to the SO’s left bicep.
I am also satisfied that the shooting constituted legally authorized force within the limits of section 34. By the time the SO fired his weapon, repeated exhortations on the part of the officers to have the Complainant disarm himself and the use of OC spray had failed to bring the standoff to a peaceful resolution. With respect to the OC spray, I am unable to reasonably conclude that its use was not reasonably available to the officers in the circumstances. Though it appears to have precipitated his bolt from the closet, its use carried with it the prospect of sufficiently debilitating the Complainant to the point he could safely be taken into custody. Be that as it may, when the spray did not have the intended effect, the SO remained entitled to defend himself from a knife attack. At the time he fired, the officer was no more than a metre from the Complainant and his knives. He might also have been cut by the Complainant. On this record, caught in the tight confines of a small bedroom and with nowhere else to go, I accept that the SO acted reasonably to defend himself when he met the risk of a potentially deadly knife attack with a resort to lethal force of his own.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself unlawfully when he shot the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: December 10, 2021
Electronically approved byJoseph Martino
Special Investigations Unit
- 1) Anti-felon Identification Discs [Back to text]
- 2) Oleoresin capsicum spray, or ‘pepper spray’ [Back to text]
- 3) The CEW times are derived from the internal clock of the weapons, which are not necessarily synchronous between weapons and with actual time. [Back to text]
- 4) 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]
- 5) Police code for ‘stop radio transmissions’ [Back to text]
- 6) Given my view of the lawfulness of the force used by the SO, I am similarly satisfied that the CEW discharges by WO #1 and WO #3 that immediately preceded the gunfire were legally justified. I am also satisfied that the additional CEW discharges by WO #1, after the shooting, constituted reasonable force. As the Complainant was still moving at the time and the knives had yet to be secured, the officers’ safety remained a legitimate concern at the 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.