Cruiser accidentCruiser and motorbikeRunners
thick blue gradient line

SIU Director’s Report - Case # 18-OFD-060

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 death of a 25-year-old male on February 25, 2018.

The Investigation

Notification of the SIU

On February 25, 2018, at 8:15 p.m., the Ottawa Police Service (OPS) notified the SIU of the firearm death of the Complainant. The OPS were dispatched to a knife call at Richmond Road and Island Park Road in a nearby alleyway. An OPS officer arrived at the scene and shots were fired. The first police officer on scene was the SO followed by several other OPS officers. At 8:00 p.m., the Complainant was vital signs absent. He was taken to Ottawa Civic Hospital (OCH) and he was pronounced dead. The Complainant’s mother (CW #3) had slash wounds and was taken to OCH for treatment. [1]

The Team

Number of SIU Investigators assigned: 8
Number of SIU Forensic Investigators assigned: 3

Complainant:

25-year-old male, deceased

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

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Not interviewed, but notes received and reviewed
WO #9 Not interviewed, but notes received and reviewed
WO #10 Not interviewed, but notes received and reviewed

Additionally, the notes from 17 other officers were received and reviewed. 

Subject Officers

SO #1 Interviewed, and notes received and reviewed


Incident Narrative

On February 25, 2018, at around 6:48 p.m., the Complainant stabbed CW #7 in a Metro grocery store in Ottawa and then fled to a nearby residential area. Multiple people at the Metro called 911 and the OPS responded. CW #10 told the police officers where the Complainant fled, and indicated that he was near the garage of a home that was under construction.

As several officers attended the garage, the SO went down a narrow walkway that separated the house under construction from the building next door. The walkway was poorly lit and the ground was covered in ice and debris from the construction. The SO was alone and already had his firearm drawn as he proceeded through the walkway.

When the SO was about halfway down the walkway he heard a “battle cry” and the Complainant jumped from the back porch of one of the houses into the walkway. The Complainant had a knife in his hand, raised to shoulder height, and moved toward the SO. The SO yelled at the Complainant to drop the knife but the Complainant did not comply and continued towards him. As a result, the SO shot the Complainant multiple times. The Complainant initially hunched over in response to being shot but then stood back up and advanced towards the SO again. The SO against shot towards the Complainant multiple times until the Complainant fell to the ground.

Cause of Death

On February 25, 2018, at 7:34 p.m., the Complainant was pronounced dead at OCH. The post-mortem examination was conducted on February 27, 2018 and the cause of death was determined to be gunshot wounds to the chest.

There were a total of six gunshot wounds to the Complainant’s body: one wound to the left forearm, one to the right forearm, three to the chest and one to the right hip. The gunshot wounds to the left forearm and one of the gunshot wounds to the chest may have been caused by one bullet. A total of three projectiles were recovered in the body.

Evidence

The Scene

The scene was located in a walkway between two houses located in Ottawa. One house was under construction and faced east. The walkway was narrow and about two metres wide. The ground in the area was uneven and covered in snow, melted into ice. There were construction debris particles and the odd nail. The lighting between the houses was poor and fairly dark. There was some indirect light from the streetlights or the moonlight. The walkway ended at the east end of the property and stopped at the permanent and construction fencing.

View from the street showing the dimly lit walkway.

Figure 1 – View from the street showing the dimly lit walkway.

The walkway (lighting enhanced) showing the view towards the back open porch (on left side).

Figure 2 - The walkway (lighting enhanced) showing the view towards the back open porch (on left side).

Physical Evidence

The SO’s Gun

The SO had a Glock model 22 .40 caliber pistol which has the capacity to hold 16 projectiles. A count of the SO’s gun showed that it had nine projectiles in the magazine and one was in the chamber of the gun. Six cartridge cases were found at the scene. Since the SO indicated that he may have discharged his firearm about six times, and six cartridge cases were found at the scene, the cartridge count appears to support his recollection of the number of discharges.


Knife Found at the Scene

The knife is buck knife with a seven cm blade.

The knife that was found at the scene.

Figure 3 - The knife that was found at the scene.

Forensic Evidence

On April 13, 2018, Centre of Forensic Sciences (CFS) Biology reported there that was no DNA profile found on the knife blade of the Complainant.

On July 23, 2018, CFS Firearms reported that the Complainant’s shirt was “not suitable for distance determination examination as no pattern of firearm discharge residues was observed surrounding any of the noted defects” (i.e. bullet holes).

The SIU also received a Toxicology Report (attached to the post-mortem report) which found tetrahydrocannabinol in the blood, indicating use of cannabis. Cocaine and opioids were not detected.

Expert Evidence

On February 27, 2018, a post-mortem examination of the Complainant’s body was performed at the Eastern Regional Forensic Pathology Unit in Ottawa. A post-mortem report, dated November 2, 2018, was received by the SIU on that same date. Based on the examination, the following is a summary of the report:

  • The cause of death was determined to be gunshot wounds to the chest;
  • A 1.2 cm circular entrance gunshot wound was present on the left side of the upper chest. The bullet travelled from left to right, front to back and downward, and perforated the lower and upper lobe of the left lung;
  • A 1.2 cm circular entrance gunshot wound was present on the left side of the mid-chest. The bullet travelled from left to right, front to back and downward, and traversed the upper lobe of the left lung, the middle and lower lobe of the right lung, the right ventricle, the base of the pulmonary artery, the base of the aorta, the left atrium and the right superior pulmonary vein;
  • An atypical [2] 1.5 cm entrance gunshot wound was present on the left side of the chest. The bullet travelled from left to right, front to back and downward, and perforated the liver and right kidney;
  • A 1.0 cm circular entrance gunshot wound was present on the anterior aspect of the right hip with an exit gunshot wound present on the lateral aspect of the right upper thigh/outer hip. The bullet travelled from left to right, front to back and downward; 
  • A 3 x 2 cm oval-shaped entrance gunshot wound was present on the posterior aspect of the left forearm with an exit gunshot wound on the anterior aspect of the left forearm; [3]
  • A 1.1 cm circular entrance gunshot wound was present on the anterior right forearm with a 2.5 cm long exit gunshot wound present on the posterior aspect of the right forearm;
  • No other significant injuries were identified; and 
  • No natural disease processes contributed to the Complainant’s death. 

Video/Audio/Photographic Evidence

CCTV (video) from the Metro Grocery Store

The SIU retrieved CCTV from the Metro grocery store. The video did not have a date or time.

The Complainant entered the Metro grocery store with a shopping cart and his mother entered behind him with a shopping cart. They had a brief conversation then separated. Several seconds later, CW #7 entered the grocery store with a shopping cart and walked to the area where the Complainant was at the front of the store. CW #7 walked down the meat aisle and the Complainant followed him. The Complainant walked past CW #7 and looked at him.

The Complainant began to follow CW #7 and stopped whenever CW #7 stopped to look at grocery items. The Complainant followed CW #7 into aisle four. He put his right hand into his coat pocket and pushed the shopping cart with his left hand. He continued to follow CW #7 in aisle five and six with his hand in his coat pocket. CW #7 stopped in the dairy section then bent over to look at grocery. The Complainant discarded his shopping cart and approached CW #7 from behind. The Complainant grabbed CW #7 around the neck, but CW #7 got free and ran down aisle five. The Complainant followed CW #7 with a knife in his right hand.

The Complainant followed CW #7 to the front of the store. CW #7 and the Complainant ran by CW #3 and she began to follow them. The Complainant caught up to CW #7 and they struggled. The Complainant stabbed CW #7 in the left side. CW #7 lifted the Complainant and threw him onto the floor. CW #7 ran to the front of the store towards the cashiers. The Complainant got up from the floor and chased CW #7. CW #3 tried to stop the Complainant from chasing CW #7 and then she tried to stop the Complainant from leaving the store. CW #3 followed the Complainant out of the grocery store. The Complainant did not return inside the grocery store.

Communications Recordings

911 Communications Recordings


First Call:

On February 25, 2018, at 6:48:45 p.m., a woman called 911 to report a man with a knife at the Metro grocery store located at Island Park. The man was chasing someone. The woman provided a description of the man and said the man left the grocery store.

At 6:49:45 p.m., the woman said the other man was still in the grocery store and he was stabbed in the left side and required an ambulance.

At 6:51:48 p.m., the woman said the man [now known to be the Complainant] went east on Wellington Street and a woman followed him. At 6:53:07 p.m., the woman said there was a woman [now known to be CW #3] in the store that said the man [the Complainant] was her son and she provided his name. The call ended at 6:53:54 p.m.

Second Call:
On February 25, 2018, at 6:48:47 p.m., a call was made to 911 but disconnected. At 6:49:19 p.m., the operator called back and a Metro grocery store employee answered. The employee said there was a man with a knife at the Metro grocery store and he had run outside. The man stabbed another man and the injured man was bleeding and was still in the store. The operator transferred the call to the Ottawa Paramedic Service. The employee repeated what they told the 911 operator and added that the man with the knife chased the injured man around the store then left the store. At 6:52:09 p.m., the employee explained that they did not witness the stabbing but heard the injured man running and screaming. The employee provided a description of the man with the knife.

At 6:53:38 p.m., the employee said that OPS officers were on the scene. At 6:55:40 p.m., the employee said the man with the knife was the son of a woman currently at the store. The mother followed the man outside the grocery store then returned to the store. The call ended at 6:57:35 p.m.

Third Call:

On February 25, 2018, at 6:48:53 p.m., a woman called for the police to attend the Metro grocery store on Wellington Street for a man with a knife. At 6:49:23 p.m., she said she heard screaming and saw the man with a knife chase a man around the grocery store. A man was injured. The man with the knife went outside. At 6:50:23 p.m., the grocery store doors were locked. At 6:51:25 p.m., she said a woman was cut. At 6:53:54 p.m., she said the OPS officers arrived.

At 6:54:14 p.m., another woman said she saw the knife in the right hand of the man. The man was running with the knife toward the front of the store and a woman yelled at him. The call ended at 6:55:46 p.m.

Fourth Call:
On February 25, 2018, at 6:49:19 p.m., a woman called 911 from her vehicle and said there was a man with a knife at the Metro grocery store. A man stabbed another person and was in the store. The woman ran to her vehicle. The call ended at 6:52:09 p.m.


OPS Communications Recording

The SIU received a copy of the OPS communication recording. The recording was 35 minutes and 49 seconds long.

At 6:52:00 p.m., the operator said that a man was stabbed and a woman was cut. The suspect [now known to be the Complainant] ran eastbound on Wellington Street. At 6:54:20 p.m., a description of the Complainant was provided. At 7:01:09 p.m., a police officer said the police officers were at the corner of Carlton and Wellington. The subject was not responding and sitting in the parking lot. [4] At 7:03:33 p.m., WO #1 said he had a witness that saw the Complainant going east on Centre from Western. At 7:05:11 p.m., WO #1 clarified that the Complainant went east of Western on Spencer towards a new building. The Complainant went into the new building.

At 7:05:33 p.m., a male police officer said he arrived at the scene. At 7:06:33 p.m., a male police officer said that there were four police officers there and there was only one entrance and one exit. At 7:07:47 p.m., WO #5 said there was a witness at the scene who said a man matching the Complainant’s description entered the “new construction.” At 7:11:27 p.m., WO #5 said there were shots fired and a man was down for the stabbing call. At 7:12:02 p.m., WO #5 said he and the police officers were on scene between two houses. The Complainant had suffered gunshot wounds. The communication ended at 7:27:49 p.m.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPS:
  • Computer Aided Dispatch Call;
  • Communications recordings;
  • Email correspondence;
  • General Occurrence Report;
  • Mobile Data Terminal Logs;
  • Notes of the SO, WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9, WO #10, and 17 other police officers;
  • OPS Witness Statements of two additional police officers;
  • Policy - Firearms Discharge;
  • Policy - Use of Force;
  • Policy - Major Incidents;
  • Policy - Special Investigation Unit;
  • Use of Force Reports; and
  • Will State of WO #2 and WO #3.

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.

Section 27, Criminal Code -- 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.

 

Section 267, Criminal Code -- Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant, 
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Analysis and Director's Decision

On February 25, 2018, the Complainant stabbed a man in a Metro grocery store in Ottawa and fled from the store on foot. The Ottawa Police Service (OPS) responded and were advised that the Complainant had entered the garage of a nearby home. The SO entered a narrow walkway between two residences and, according to the SO, the Complainant jumped out from an open porch at the back of one of the residences directly in front of him and charged at him with a knife raised in his right hand. The SO discharged his firearm multiple times at the Complainant, striking him in the chest, forearms, and hip area. The Complainant was taken to Ottawa Civic Hospital where he was pronounced dead.

There is no question that the Complainant was killed when he was shot by the SO and the focus of the SIU’s investigation revolved around what precipitated the shooting and whether the use of lethal force was justified. The SO provided the SIU with a statement, and ten civilian witnesses and seven witness officers were also interviewed. The notes of 28 officers, including the subject officer, were also obtained and reviewed, along with the CCTV video from the Metro grocery store and the police radio communications. The SIU also obtained various forensic reports including the Complainant’s post-mortem and toxicology report, and a report about potential biology tracings on the knife. [5]

From an extensive and careful review of this evidence, the facts leading up to the Complainant’s death are predominately clear. While no independent witness purported to see the entirety of what happened in the walkway, the SO’s statement is corroborated in part by the other witnesses, at or near the scene, and I believe he is a credible witness. After a review of the jurisprudence, and for the following reasons, I am unable to form grounds to believe the SO committed a criminal offence in relation to the Complainant’s death and believe that his use of force fell within the scope of that permitted by law.

The Complainant first came to the attention of the OPS on February 25, 2018, at 6:48 p.m., when multiple people called 911 to report a stabbing in a Metro grocery store in Ottawa. The stabbing was clearly caught on the store’s surveillance cameras, which depicted the Complainant following CW #7 around the store before chasing him with a knife. The Complainant caught up with CW #7 and stabbed him in the left side before fleeing the store on foot. [6] One 911 caller reported that he went eastbound on Wellington Street.

At 6:52 p.m., several OPS officers attended the Metro grocery store, including WO #1, WO #2, WO #3, WO #5 and WO #7. The officers were advised by CW #10 that he had seen the Complainant go into a nearby home that was under construction. At 7:05 p.m., this information was broadcasted over the police radio.

The SO was en route to the stabbing incident when he heard over the radio about the Complainant’s whereabouts. He, along with several other OPS officers, attended the scene. CW #10 also returned to the area and pointed the officers to the garage of a nearby home.

WO #4 went towards the garage, followed by WO #7, WO #1, WO #2 and WO #5. The SO headed toward the rear of the house through a walkway between two houses. [7] The SO had already drawn his firearm because he was aware that he was looking for an armed suspect.

The confrontation between the SO and the Complainant occurred in the walkway between the two houses. The SO described the walkway as 50 feet long and about five feet wide. The lighting was poor and the ground was covered by snow and ice. [8] The SO used the flashlight mounted on his firearm to provide light. After the SO walked about 15 steps into the walkway he reportedly heard a “battle cry” and stopped walking. He advised the SIU that he saw the Complainant jump down from an open porch at the back of the house that was under construction and land about five feet in front him. [9] The Complainant had a knife in his right hand which he was holding at shoulder height. The SO yelled at the Complainant to drop the knife but the Complainant charged towards him. The Complainant had reportedly taken two steps and was about four feet away when the SO discharged his firearm three times at the Complainant. The SO said he stopped shooting when the Complainant stopped advancing towards him. The Complainant bent over and backed up slightly after he was shot, then reportedly stood back up and stepped toward the SO again. The SO fired another two or three rounds and the Complainant fell to the ground

The SO’s statement is supported by one civilian witness who saw part of the incident and several witnesses who heard it. [10] WO #4 is the only other witness who purports to have seen part of the incident. He described hearing a male’s voice yelling incomprehensibly while he attended to the garage. As WO #4 walked around the garage he saw a flashlight and heard gunshots. He protected himself behind the garage and when there was a pause in the gunshots looked around the corner, yelling [an expression indicating the presence of police] to warn that police officers were in the line of fire. As he did so, he observed the Complainant crouched or half kneeling. He had his right hand extended and there was an object in his hand. There were more gunshots and WO #1 saw a muzzle flash. He asked the SO if the Complainant was down and the SO said he was.

After the shooting, several OPS officers attended the walkway and saw the SO pointing his firearm at the Complainant, who was on the ground. WO #2 reported that the SO was about three feet from the Complainant. WO #6 said the SO was still shouting commands at the Complainant and that he observed a knife a couple of inches from the Complainant’s hands. WO #6 used his foot to move the knife away from the Complainant. WO #4 then also picked up the knife and placed it on the ground further away from the Complainant before doing a quick pat down search of the Complainant. WO #4 and WO #7 began CPR on the Complainant. Paramedics arrived and the police carried the Complainant out of the alleyway and put him on a stretcher. The Complainant was transported to the OCH where he was pronounced dead.

A post-mortem examination was performed on the Complainant’s body and the forensic pathologist concluded that the Complainant died of bullet wounds to the chest. There were a total of six bullet wounds found: three to the chest, one to the hip and one to each forearm. One of the bullet wounds to the forearm lined up with a bullet wound to the chest, suggesting that they were caused by the same bullet which hit the Complainant’s forearm before it stuck him in the chest. The direction of the bullets that struck the Complainant’s chest and hip was determined to be front to back and downward. [11]

The Law and Analysis

In my opinion, there is no evidence capable of supporting grounds to believe that the SO committed a criminal offence. The uncontradicted evidence establishes that the Complainant aggressively proceeded towards the SO with a knife. Thus, in my opinion, given the circumstances that existed and were known to him, the SO was justified in using lethal force against the Complainant pursuant to s. 25(1) and (3) of the Criminal Code.

To begin, I believe that the SO is a credible and reliable witness, and accept that the Complainant charged at him with a knife as alleged. The SO’s statement to the SIU was straightforward, detailed and was corroborated, in part, by the other witnesses, including a civilian witness who saw part of the incident. WO #4 also glimpsed the Complainant between the two rounds of gunshots and described observing the Complainant in a crouched position with an object in his right hand. Several other witnesses also heard the altercation and the majority of that evidence supports the SO’s statement that he yelled at the Complainant and that he fired one round of bullets followed by a second round in rapid succession.

The indisputable fact that the Complainant charged at and stabbed CW #7 with a knife in the Metro grocery store [12] for no apparent reason shortly before his encounter with the SO informs my belief that the Complainant would not have hesitated to similarly attack the SO. While evidence of a propensity for violence is typically not admissible against an accused in a criminal trial, in Regina v. Scopelliti [1981] O.J. No. 3157 (C.A.), the Court of Appeal for Ontario confirmed that evidence of a complainant’s propensity for violence is relevant where self-defence is an issue. The Court stated:

[T]here is impressive support for the proposition that, where self-defence is raised, evidence of the deceased’s character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased.

Less than an hour before the Complainant is alleged to have charged at the SO with a knife, he – without being provoked – stabbed CW #7 with a knife. Charging at the SO with a knife is a logical continuation of such violence. In the absence of any evidence contradicting the SO’s statement, I find that the Complainant charged at the SO as alleged.

Having found that the Complainant charged at the SO with a knife, it is my opinion that the SO was permitted to use lethal force under ss. 25(1) and 25(3) of the Criminal Code. Section 25(1) governs the ability of police officers to use force during the course of their duties and states that a police officer is justified, if he or she acts on reasonable grounds, in using as much force as is necessary in the execution of a lawful duty. Section 25(3) imposes additional prerequisites where an officer uses lethal force as follows:

(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.

Therefore, the SO was only permitted to use force against the Complainant if he was acting in the execution of a lawful duty, on reasonable grounds and used no more force than was necessary. Furthermore, pursuant to s. 25(3) of the Criminal Code, the SO was only permitted to use force likely to cause death – i.e. to discharge his firearm at the Complainant – if he believed on reasonable grounds that using lethal force was necessary in order to preserve himself or others from death or grievous bodily harm.

Turning to the first requirement of s. 25(1), it is clear that the SO was acting in the course of his lawful duties when he was first encountered by the Complainant. The OPS officers clearly had reasonable grounds to believe that the Complainant had at the very least committed the offence of assault with a weapon contrary to s. 267 of the Criminal Code and that he was in possession of a weapon dangerous to the public, contrary to s. 88 of the Criminal Code. I am accordingly satisfied that the attempted apprehension of the Complainant was legally justified in the circumstances.

The other requirements of s. 25(1) of the Criminal Code require an assessment of the necessity and reasonableness of the force used by the SO. In making this assessment, 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, which states:

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:

a) 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.

b) "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).

c) 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.

d) "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, I must therefore 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.

It is clear from the SO’s statement that the first criteria is satisfied. The SO told the SIU that he was aware the Complainant had already stabbed someone and that he feared for his safety. He felt that the Complainant was going to stab him and that he was unable to escape because he was in a confined space and the ground was slippery from the ice. He initially fired three rounds but then stopped because the Complainant stopped advancing towards him. In other words, he stopped using lethal force when he believed the risk of death or grievous bodily harm had passed. The SO said he only shot the second round of bullets at the Complainant when he advanced towards him again and the risk of harm rematerialized. The SO also said he felt he had no choice but to shoot the Complainant because he had no time to switch from his firearm to his conducted energy weapon.

Having carefully considered the facts as I have found them, I believe it is similarly evident that the SO’s belief that the Complainant was going to stab him was objectively reasonable. At that time the SO encountered the Complainant, the SO knew that the Complainant had just stabbed a man and was capable of violence. Regina v. Scopelliti, cited above, makes it clear that knowledge of prior violent acts is relevant to the reasonableness of a person’s belief that they were at risk for harm. The Court stated:

It is well established that where self-defence is raised, evidence not only of previous assaults by the deceased on the accused, but also previous acts of violence by the deceased, known to the accused, towards third persons, is admissible to show the accused’s reasonable apprehension of violence from the deceased. Evidence of the deceased’s reputation for violence, know to the accused, is admissible on the same principle.

The SO knew the Complainant had stabbed CW #7 and suddenly found himself within five feet of the Complainant, who was advancing on him with a knife. The SO was alone in a narrow slippery alleyway and had no practical route for escape due to the conditions of the pathway. The Complainant let out a cry [13] indicative of an intention for further violence, ignored commands to drop the knife and advanced towards the SO with the knife raised. An objective bystander clearly would consider the SO’s belief that he was going to be stabbed reasonable due to these extremely difficult circumstances.

In summary, I believe that the SO was lawfully justified under ss. 25(1) and 25(3) of the Criminal Code when he shot the Complainant and therefore have no reasonable grounds to believe that the SO committed an offence in relation to the Complainant’s death. The SO was acting in the course of his lawful duties when he came upon the Complainant, who advanced upon him quickly with a knife raised in a narrow and icy alleyway. Why the Complainant charged at the SO (or stabbed CW #7 in the Metro) is unknown, but I am confident that the Complainant charged at the subject officer as alleged and that the SO had no other option than to resort to his firearm to protect himself from serious bodily harm or death. Tragically, the result of the SO’s use of force was the Complainant’s death. However, as the use of force was justified, no charges will issue and the file will be closed.


Date: January 21, 2019



Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) It was later determined that CW #3 was not injured in this manner. [Back to text]
  • 10) Other witnesses, civilian and police, did not see the altercation but reported hearing it. While the descriptions of what was heard vary, the majority of witnesses reported hearing yelling followed by two rounds of gunshots in rapid succession. WO #1 heard a loud police challenge, three consecutive gunshots, WO #4 yelling [an expression indicating the presence of police] and then more gunshots. WO #6 heard police commands and shouting followed by two sets of gunshots in rapid succession. WO #5 heard yelling and then two or three gunshots, a one second pause and then more gunshots. WO #2 heard a man yell “fuck you” then four or five gunshots. CW #2 heard a “charge type of scream” followed shortly by a pop sound and about a second later by two “pop” sounds which she assumed were gunshots. Minutes later she saw the Complainant being lifted by the police from the walkway to the ambulance on Western Avenue. [Back to text]
  • 11) This is consistent with the SO’s report that he shot at the Complainant after he started walking towards him. [Back to text]
  • 12) That entire interaction is caught on the Metro grocery store video. [Back to text]
  • 13) This cry was described by the SO as a battle cry and by CW #2 as a “charging” scream. In fact, CW #2 stated that when she heard this scream she became scared and quickly entered her home. Their accounts reflect that the “cry” occurred at the same moment just before the SO discharged his firearm. [Back to text]
  • 2) The appearance of the wound is atypical and suggests that the bullet struck an intermediate target prior to entering the chest. [Back to text]
  • 3) The configuration and location of the exit wound lines up with the atypical entrance wound to the left side of the chest, and likely represents the intermediate target associated with that wound. [Back to text]
  • 4) OPS officers initially believed a man in the parking lot was the suspect; however, this was incorrect. [Back to text]
  • 5) However, the SIU was unable to obtain an opinion about the distance between the Complainant and the SO based on firearm discharge residue because there was no pattern of firearm discharge on the Complainant’s clothing that was suitable for testing. [Back to text]
  • 6) The Complainant’s motive for stabbing the man is unknown. [Back to text]
  • 7) The SO said he did this because one of the other officers wanted a police officer to cover the back of the house. None of the OPS officers the SIU interviewed described having this conversation with the SO although WO #1 advised that, prior to CW #10 advising that the Complainant was near the garage, he, WO #1, yelled for officers to surround the house. [Back to text]
  • 8) SIU investigators attended the scene and observed that the walkway was about two metres wide. The ground was uneven and covered in snow, melted into ice. There was significant construction debris obstructing clear passage through the walkway and the area was poorly lit and fairly dark. There was some indirect light from the streetlights and moon. [Back to text]
  • 9) CW #2 also described seeing the Complainant on the back patio of the house under construction and heard a “charge type of scream” coming from him which frightened her and caused her to go quickly into her house. As she entered her doorway she heard a ‘pop’ sound. About a minute later she heard two more ‘pop’ sounds (all of which she assumed were gunshots). [Back to text]