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SIU Director’s Report - Case # 18-OFI-295

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 serious injury sustained by a 47-year-old female (the Complainant) during an interaction with police on October 3, 2018.

The Investigation

Notification of the SIU

At approximately 2:00 p.m. on October 3, 2018, the York Regional Police (YRP) notified the SIU of the serious injury sustained by the Complainant.

The YRP reported that at 11:24 a.m., on that same date, the YRP had received a call from York Region Victims Services (YRVS) reporting that the Complainant was in crisis and had suicidal thoughts. Police officers responded and found the Complainant at a Canadian Tire store on Morton Avenue in the Community of Keswick; the Complainant was armed with a machete. The police officers tried to calm her down, but she ran into a forest in the area and the YRP tactical team was called. The Complainant was later found coming out of the forest on Carrick Avenue at Tuck Road. As she turned to run, an Anti-Riot Weapon Enfield (ARWEN) was deployed. The ARWEN projectile struck the Complainant in the knee, following which she was taken to the hospital, having sustained a knee fracture.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

SIU investigators attended and documented the scene. A canvass of the scene for closed circuit television (CCTV) footage was conducted with negative results. Civilian witnesses (CWs) identified during the canvass were interviewed.

Complainant:

47-year-old female interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
WO #6 Interviewed, notes received and reviewed



Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right

Incident Narrative

On October 3, 2018, at about 10:24 a.m., the Complainant telephoned the YRVS. Over the course of an hour long conversation, the Complainant said she no longer wanted to live and was going to go out, into the public, with a machete, so that police officers would shoot her in the head. The Complainant said she was going to buy a bottle of whisky and drink it in order to provide herself with the “liquid courage” required to enable her to carry out her plan. The YRVS reported the conversation to the YRP.

The police were dispatched to the area, and located the Complainant in a motor vehicle parked in a parking lot. Upon seeing the police officers, the Complainant was seen to retrieve a black 18” machete from her vehicle, whereupon she repeatedly shouted at the police officers, “Just kill me, just shoot me, I’m going to fucking kill you with this knife.” At times, she brandished the machete, or held it to her throat, threatening to take her own life if the police officers approached her. The Complainant then fled through a forested area, and exited onto a residential street, where she was spotted by a number of CWs, who then contacted the YRP and updated them as to the Complainant’s location.

At about 1:28 p.m., an Emergency Response Unit (ERU) team, consisting of Subject Officer (SO) #1, SO #2, and Witness Officer (WO) #4, arrived at the Complainant’s location, in the area of Tuch Drive and Carrick Avenue, and approached her; that Complainant was still armed with a machete at that time. The Complainant then ran a short distance westbound on Tuch Drive, before stopping and turning to face SO #1 with the machete in hand. SO #2 then shouted, “Legs, legs legs!” and SO #1 discharged his ARWEN once, with the projectile striking the Complainant in the right knee.

Nature of Injuries / Treatment

The Complainant was transported to the hospital where an X-ray was taken, which revealed that the Complainant had sustained transverse fractures to the right patella (kneecap).

Surgery was required to repair the fractured patella, but the Complainant refused to sign the necessary consent form, resulting in her only being treated with pain medications, following which she was discharged from hospital.

Evidence

The Scene

The scene was located on the lawn of a residence at the corner of Carrick Avenue and Tuch Drive, within a residential neighbourhood, in the Community of Keswick, in York Region.

An SIU forensic investigator (FI) digitally photographed and measured the scene. Additional digital photographs were taken of relevant areas near the wooded lot and shopping plaza where the initial police interaction began. A Total Station was employed to create a scale drawing of the incident scene.

Scene Diagram

Scene diagram

Physical Evidence

The location of the confrontation, with Exhibit markers indicating the presence of: #2, the ARWEN projectile, # 3, the machete, and #4, the whisky bottle.

The location of the confrontation, with Exhibit markers indicating the presence of:  #2, the ARWEN projectile, # 3, the machete, and #4, the whisky bottle.

The machete

The machete


The ARWEN projectile

The ARWEN projectile

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

In-Car Camera (ICC)

The available ICC footage from the involved YRP vehicles was reviewed; unfortunately, it did not capture any portion of the deployment of the ARWEN or of the arrest of the Complainant and was found to be of no evidentiary value.


Photographs from Civilian Witnesses

CW #3 provided the SIU with four digital cellular phone camera images of the Complainant running in the neighbourhood with a machete and a bottle of whisky in her possession. Another civilian (not designated) provided two digital cellular phone camera images taken following the Complainant’s arrest.

Communications Recordings

911 Communications Recordings (Summary)


First Call:

On October 3, 2018, at 11:18:55 a.m., the YRVS called reporting that one of their counsellors, CW #6, had been on the telephone for an hour with the Complainant, who was expressing wishes to end her life, and had indicated that she was depressed, that she had a machete with her, but she was unable to carry out her suicide plans on her own, and that it would be much easier if the police were to shoot her.

The last known address for the Complainant was provided to the YRP and the call taker told the 911 caller that police would “ping” the Complainant’s cellular phone and have police officers attend her home address in an attempt to locate her.


Second Call:

On October 3, 2018 the call taker from the YRP called the Complainant’s cell phone at 11:32:25 a.m., a summary of that conversation, which lasted until 11:34:17 a.m., follows:

Communications Centre (CC): Is (the Complainant) there?
Complainant: Speaking
CC: This is (name withheld) at YRP, are you at home right now?
Complainant: Why are you calling me?
CC: I’m calling to see if you are okay.
Complainant: (Crying, sobbing) No, I’m not at home. Let me put this on record that I’m going to do something really stupid today. I’m talking to a crisis prevention worker right now and I’m sure they called you.
CC: What are you planning to do?
Complainant: I’m going to do an armed robbery and I’m going to force the police to…I’m going to come at you with a machete and I want you to shoot me. I want to die and I can’t do it myself and I’m going to give you no choice. Don’t call me again, you will hear from me soon.


Third Call:

On October 3, 2018, at 1:23:48 p.m., a caller, identifying herself as a teacher at the public school on Carrick Avenue in Keswick, said that the school was on lockdown as police were looking for a female in the area.

The caller reported that she saw a suspicious person walking past the school northbound on Carrick Avenue and was wondering if that was the person the police were looking for. The caller also reported that the person was carrying something in one of her hands which could have been a cellular phone or something else, and that she was hiding her face from the school as she walked past, following which she began running north on Carrick Avenue and out of sight.


Fourth Call:

On October 3, 2018, at 1:22:16 p.m., the YRP Communications Centre (CC) received a call from CW #3 who said he was in a vehicle northbound on Carrick Avenue, approaching W. J. Watson Public School on Carrick Avenue; he reported that a female was walking around armed with a large 12” to 18” long knife in a case.

The CC told CW #3 that the police were looking for that individual and that there were a number of police officers in the area. CW #3 reported that the female was jogging north on Carrick Avenue and that she then lay down on the side lawn of a residence on the southwest corner of Carrick Avenue and Tuch Drive, under a large tree, and that she was still holding onto the knife.


YRP Communications Recordings (Summary)

At 1:24:46 p.m., the YRP CC broadcast that a caller had reported that the Complainant was at Carrick Avenue and Chartwell Crescent, near the public school, with an 18” knife in a case. Additional information available was to the effect that the Complainant was lying down by a large tree at the entrance to Chartwell Crescent, near a house;

At 1:28:04 p.m., WO #6 arrived at Carrick Avenue and Tuch Drive;

At 1:28:30 p.m., WO #1 transmitted that he was en route with a special response unit (SRU) and a tactical paramedic;

At 1:28:35 p.m., the CC broadcast that a teacher at the public school on Carrick Avenue had reported seeing the Complainant walking northbound on Carrick Avenue, past the school, while carrying something in her hand, possibly a cellphone or something else; and,

At 1:30:05 p.m., WO #1 transmitted that the Complainant was in custody and was being assessed by the York Region tactical paramedic; an ambulance was requested. He also confirmed that a machete was present at the scene.

Materials obtained from Police Service

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

  • Command Directive: Criminal Investigation Management Plan;
  • Command Directive: Collection and Preservation of Evidence and Property;
  • Command Directive: Major Crime Scene Preservation;
  • Command Directive: Special Investigation Unit;
  • Detailed Call Summary;
  • Computer Aided Dispatch (CAD) Report;
  • Duty Rosters for October 3, 2018 (x3);
  • ERU Team Unit History;
  • General Occurrence Reports (x2);
  • ICC Videos;
  • 911 Call Recordings (x3) and call recording of the YRP CC to the Complainant;
  • Police Transmission Communications Recordings;
  • Known Offender Hardcopy for the Complainant;
  • List of Involved Officers;
  • Notes of WO #s 1-6;
  • Provincial Offences Notice (PON) Tickets (x6);
  • Procedure: Use Of Force;
  • Procedure: Containment and Response to Armed Person;
  • Procedure: Prisoner Care and Control;
  • Procedure: Emotionally Disturbed Persons;
  • Training Records for SO #s 1 and 2; and,
  • Police held records for the Complainant (x5).

In addition to the above requested memorandum book notes for the designated WOs, the YRP provided the SIU with the memorandum book notes for 22 other police officers, who were neither designated as WOs nor were their notes requested. The notes of these 22 police officers were reviewed by SIU investigators, but contained no information which was capable of furthering the investigation.

The SIU obtained and reviewed the following materials and documents from other sources:
  • Medical Records of the Complainant related to this incident, obtained with her consent;
  • York Region Paramedic Services Records and Reports;
  • Digital Photographs from two civilians; and,
  • Typewritten Notes of CW #6.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

25 (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservations of any one under that person’s protection from death or grievous bodily harm.

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

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

Analysis and Director's Decision

On October 3, 2018, at 11:18:55 a.m., the York Regional Police (YRP) Communications Centre (CC) received a 911 call from the York Region Victim Services (YRVS) reporting that a call had come into their service and the caller was indicating a desire to commit suicide by having the police shoot her. The caller was identified as the Complainant. The YRVS provided an address and telephone number for the Complainant.

At 11:25:17 a.m., the police were dispatched to attempt to locate the Complainant. Initially, seven police officers were dispatched and the Complainant’s cell phone was “pinged” using GPS technology, in order to attempt to locate the Complainant. 34 units in total, were eventually dispatched prior to this matter being resolved.

At 11:32:25 a.m., the YRP call taker placed a call to the Complainant’s cellular phone and spoke to the Complainant; the Complainant, during the course of the call, told the call taker, “I’m going to do an armed robbery and I’m going to force the police to … I’m going to come at you with a machete and I want you to shoot me. I want to die and I can’t do it myself and I’m going to give you no choice. Don’t call me again, you will hear from me soon.”

Following this call, unfortunately, the Complainant disposed of her cell phone in the parking lot, following which she made her way through a forested area at the rear of the Canadian Tire store on Woodbine Avenue.

Two additional 911 calls were received by the YRP CC almost simultaneously, shortly after 1:22 p.m., with the first call reporting that a suspicious person had been seen walking past the public school on Carrick Avenue with something in her hands, while a second 911 caller reported that a female had jogged north on Carrick Avenue and was now lying down on the front lawn of a residence at the corner of Carrick Avenue and Tuch Drive, in the Community of Keswick. The 911 caller further reported that the woman was holding a knife.

At 1:24:26 p.m., a radio transmission was sent out to all units repeating the information received in the various 911 calls and, at 1:28:30 p.m., Witness Officer (WO) #1 responded that he was en route with a tactical paramedic.

At 1:30:05 p.m., a radio transmission was received from WO #1 stating that the Complainant was in custody and that an ambulance was required. The Complainant was then transported to the hospital, by ambulance, where she was assessed, and it was discovered that she had sustained transverse fractures to the right patella (kneecap).

During the course of this investigation, in addition to the Complainant, six civilian and six police witnesses were interviewed; while Subject Officer (SO) #1, one of two designated SOs in this matter, declined to be interviewed, the second subject officer, SO #2, consented to an interview. In addition to the eyewitness evidence, SIU investigators had access to, and reviewed, the memorandum book notes of all the witness police officers, as well as the communications recordings, the 911 calls, and the Complainant’s medical records. There is no dispute as to the facts.

Following the making of the above-noted call to the Crisis Counsellor at the YRVS, and being informed by the counsellor that the counsellor would have to notify the police because of what the Complainant had disclosed to the counsellor about her intentions, the Complainant disposed of her cell phone in the bushes in order to thwart the efforts of the police to locate her. She then returned to the motor vehicle that she had been using and took a machete, which the Complainant described as being 18 inches to 2 feet in length, and a bottle of whisky, which she then consumed until she became intoxicated. The Complainant then entered a forested area, while still carrying both the machete and the bottle of whisky.

Between the time of the first 911 call, and the Complainant’s subsequent arrest, YRP officers set up a perimeter around the forested area where the Complainant had concealed herself, while making numerous effort to communicate with the Complainant, without any response from her.

Eventually the Complainant left the forested area in the opposite direction, and began to walk on Carrick Avenue. Upon arriving in the area of Carrick Avenue and Tuch Drive, the Complainant was observed by an independent civilian witness, CW #3, staggering on the sidewalk and speaking with herself, while carrying the sheathed machete in one hand and the bottle of whisky in the other. CW #3, who began following the Complainant in his motor vehicle, observed the Complainant then ‘hide’ under a tree on the southwest corner of Carrick Avenue and Tuch Drive, and he contacted the YRP CC and notified them of the Complainant’s location and kept them updated as to what she was doing.

CW #3 observed a marked YRP Marine Unit vehicle, driven by WO #6, arrive and CW #3 pointed out to the officer where the Complainant was hiding. WO #6 was observed to approach the Complainant, to within ten to 15 feet of her location, and direct her to get down onto the ground; CW #3 indicated that WO #6 had not drawn any use of force options. When the Complainant yelled at WO #6 to, “Back away, I’ll kill you, I don’t want to kill you but I will kill you, just leave me alone, back away!”, WO #6 began to back up to his vehicle, while the Complainant aggressively came out from under the tree and walked towards WO #6, while swinging the sheathed machete in WO #6’s direction.

A marked YRP vehicle with a team from the Emergency Response Unit (ERU), which consisted of SO #2, SO #1 and WO #4, then arrived at the Complainant’s location and all three officers exited the vehicle dressed in their tactical uniforms. CW #3 heard one of the officers address the Complainant by her first name and tell her, “We do not want to hurt you,” at which point the Complainant turned to face the officers and raised the machete in her right hand. At that same moment, CW #3 heard a shot ring out and saw that SO #1 was holding a long gun, which had smoke coming from the end of the barrel. The Complainant then said, “Ow”, following which she fell to the ground and the three officers moved in to gain control over her.

CW #5, the Advanced Care tactical paramedic who was called in to assist the Complainant, observed that there was a machete and an empty bottle of whisky lying on the grass about two metres east of the Complainant, after the ARWEN (Anti-Riot Weapon Enfield)had been deployed, and that the Complainant was hysterical and was shouting and crying. When CW #5 moved in to assess the Complainant, he saw that she was extremely intoxicated, was slurring her words, and had the odour of alcohol on her breath. When CW #5 examined the Complainant’s knee, he found a minor abrasion on the right knee and a bit of a divot or imprint on her kneecap.

The evidence of SO #2, and the police witnesses interviewed, is consistent with that of these two CWs. SO #2 stated that on October 3, 2018, at approximately 12:36 p.m., he and WO #4 and SO #1, of the Emergency Response Unit (ERU), responded to a call for service regarding a suicidal female who was armed with a machete and had threatened to harm herself by committing an armed robbery and who would then advance on police with the machete in order to force a confrontation with the police, who she hoped would then shoot her.

Following receipt of information that the Complainant had been seen in the area of Carrick Avenue and Tuck Drive, the ERU team drove directly to that location. While en route, SO #2 instructed SO #1 to arm himself with the long range, less lethal, ARWEN and WO #4 was to arm himself as back up with his less lethal Conducted Energy Weapon (CEW), while SO #2 would provide lethal coverage, with his AR 15 rifle.

As they approached the intersection of Carrick Avenue and Tuch Drive, SO #2 saw the Complainant at the bottom of a large tree on a side lawn of a residence on Carrick Avenue, just south of Tuch Drive; SO #2 saw that the Complainant had a machete in her right hand and a bottle in her left.

All three ERU officers then exited their vehicle and SO #2 described himself as going north on Carrick Avenue, toward Tuch Drive, while SO #1 and WO #4 went around the south side of the tree. SO #2 then saw the Complainant, who was shouting obscenities, break into a slight jog heading away from the officers, with SO #1 and WO #4 repeatedly directing the Complainant to drop the knife.

SO #2 then described the Complainant as turning to face WO #4 and SO #1, while continuing to jog backwards, and SO #2 shouted out, “Legs, legs, legs!” in order to alert SO #1, who was some ten to 15 yards east of the Complainant, to target the Complainant’s leg area with his ARWEN. SO #2 explained that his thinking was that they could not allow the Complainant, while still armed with the machete, to get away from them and possibly confront another police officer, a citizen, or children from the nearby school.

Within two seconds of his shout, SO #2 then heard one discharge of the ARWEN, and the Complainant crumpled to the ground, dropping the machete as she did so, followed by the officers moving in and containing the Complainant.

SO #2 further explained that, ultimately, it was the decision of SO #1 whether or not he felt it was safe to fire the ARWEN at the Complainant, despite his direction to SO #1 to do so. He further explained that when using an ARWEN, areas to be avoided included the genitalia, spine, head, stomach and chest, while it was preferable, ideally, to target areas with heavy musculature. Unfortunately, while the Complainant was still moving at the time that she was struck by the ARWEN projectile, the accuracy of the ARWEN could not be guaranteed, although it is generally effective from a range of up to 30 yards. SO #2 further opined that it would have been unsafe for any police officer to approach the Complainant, while she was armed with the machete, and to attempt to utilize either a baton or oleoresin capsicum (OC) spray.

WO #6 observed the Complainant run away from the ERU officers, after they initially arrived and were directing her to get down and to drop the knife. She then stopped and turned to face the officers, while still armed with the machete and shouting obscenities, at which point WO #6 saw SO #1 discharge his ARWEN, which appeared to strike the Complainant in the right knee, and she fell, dropping the machete.

WO #4, who had been directed to arm himself with his CEW, stated that when the Complainant stood up and began shouting obscenities at him, while swinging the machete wildly back and forth, he felt that resort to his CEW would not be successful, as the maximum range for a successful deployment was approximately 25 feet, and the Complainant was already some 20 feet away and was increasing that distance when she began to jog off. When the Complainant then turned around to again face the officers, with the machete in her right hand across her chest area and the bottle of whisky in her left hand, while continuing to shout obscenities, WO #4 heard SO #2 shout to target the Complainant’s legs, following which, within one to two seconds, SO #1 discharged his ARWEN, and a projectile struck the Complainant in the right thigh or knee area, following which she cried out in pain and fell to the ground, with the machete still clutched in her right hand.

WO #4 and SO #1 then moved closer, while ordering the Complainant to drop the knife, which she then did by throwing it behind her; WO #4 then moved in and kicked the machete further away, following which the Complainant was handcuffed.

The Complainant’s medical records appear to confirm the above, in that they read, “Patient says she came at police with a machete hoping they would shoot her as she could not kill herself and wanted police to do it for her.”

On these facts, then, which are not disputed, I find that the Complainant, for the purpose of forcing a confrontation between herself and the police, armed herself with a machete in the hopes that she would be shot and killed by police, thereby allowing her to attain her goal of committing suicide. It is also clear that the the response of the ERU team was that two out or three of the responding officers were equipped with less lethal use of force options, with SO #1 arming himself with an ARWEN, while WO #4 was armed with a CEW, and that only SO #2 armed himself with a lethal use of force option, his AR 15 rifle, should all else fail.

On all of the evidence, it is further established that police officers repeatedly shouted at the Complainant to drop her weapon, and that SO #1 only discharged his ARWEN when the Complainant turned to face them, while still armed with the machete, which she was swinging about and at the officers. Only then, and only on one single occasion, did SO #1 discharge his ARWEN, which was successful in bringing the Complainant to the ground, where she voluntarily then disposed of the machete. Once the Complainant was on the ground, no further use of force was resorted to by any police officer.

Because it is clear, on this record, that the Complainant sustained a serious injury during her interaction with police, an assessment is required to determine whether or not the actions of SO #1 and SO #2, in apprehending, disarming, and arresting the Complainant, amounted to an excessive use of force in the circumstances thereby vitiating their protection from prosecution pursuant to s. 25 (1) of the Criminal Code.

Pursuant to s. 25(1), a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the two subject officers to qualify for protection from prosecution pursuant to s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary.

Turning first to the lawfulness of the Complainant’s apprehension, it is evident from the information provided by the various 911 callers, that the ERU team, as well as all of the responding police officers, had reasonable grounds to believe that the Complainant was in possession of a weapon dangerous to the public peace (s. 88 of the Criminal Code) and that her intent was to force a deadly confrontation with the police. As such, the apprehension and subsequent arrest of the Complainant was legally justified in the circumstances.

An assessment of the use of force resorted to by the two subject officers, then, requires an assessment of whether SO #2’s direction to SO #1 that he ought to target the Complainant’s “Legs, legs, legs!”, and SO #1’s response in discharging his ARWEN on one occasion, striking the Complainant in the knee cap, amounted to an excessive use of force. On these facts, which are undisputed, I cannot find that these actions, despite the injury to the Complainant, amounted to an excessive use of force. In fact, I find that the actions of these three officers, and all of the officers who interacted with the Complainant, exhibited calm, patience, and professionalism, and that no more than the minimal force required was used to contain and disarm the Complainant, before anyone came to harm.

While we are without the benefit of SO #1’s thinking with respect to why he opted to discharge his ARWEN, I find that SO #2’s reasoning in this regard, based on the same information that SO #1 had in his possession at the time, was prudent, and resulted in a safe outcome to the situation with resort to only the minimum force required to end the risk that the Complainant continued to pose while she was armed with the weapon. In this regard, I accept that SO #2’s concern that the police could not allow the Complainant, while still armed with the machete, to get away from them and possibly confront another police officer, a citizen, or children from the nearby school, was valid. I accept as well his conclusion, which was both well thought out and appropriate to the circumstances, that it would have been unsafe for any police officer to approach the Complainant, while she was armed with an edged weapon, in an attempt to use either a baton or OC spray to disarm her. I have no reason to believe that SO #1’s thinking, which would have been based on the same information, would have been any different.

In coming to this conclusion, I have considered the direction from the Supreme Court of Canada as set out in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows: 
 
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

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

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

In conclusion, while the Complainant sustained her serious injury when she was struck by an ARWEN projectile, the evidence does not satisfy me that there are reasonable grounds to believe the discharging of the ARWEN amounted to an excessive use of force in these circumstances, or that any of the involved officers acted outside of the limits of the criminal law when they disarmed and apprehended an unstable, potentially violent woman, who was armed with a dangerous weapon, and who had made clear her intentions to force a violent confrontation with police in order to end her own life. On the evidence of all of the witnesses, and the Complainant herself, I have no hesitation in finding that all of the responding police officers acted with patience in their dealings with the Complainant, in efforts to bring a potentially lethal situation to a safe and satisfactory ending, without the loss of life. As such, as I lack the bases for the laying of criminal charges, none shall issue.


Date: February 5, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit