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SIU Director’s Report - Case # 18-OFD-083

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 shooting death of a 33-year-old man (the Complainant) during an interaction with police on March 21, 2018.

The Investigation

Notification of the SIU

At approximately 8:55 a.m. on March 21, 2018, the Windsor Police Service (WPS) reported a firearm injury to the Complainant. The WPS notified the SIU that at 8:04 a.m. on that same date, WPS officers had responded to a call about a man with a block of knives near the Starbucks on University Avenue in the City of Windsor. At 8:15 a.m., while at the McDonald’s restaurant at Wyandotte and Goyeau Streets, a police officer suffered a knife injury and two police officers discharged their firearms.

The Complainant sustained a stomach wound and was taken to hospital, as were the involved police officers.

The scene was secured; a civilian, who had been on a ride along with one of the involved police officers, was found to have blood on her clothing.

At 9:40 a.m., the WPS notified the SIU a second time and reported that the Complainant had been pronounced dead at 9:29 a.m.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 4
 
Six investigators and four forensic investigators (FI) were dispatched. An additional two investigators were later assigned when two of the originally dispatched investigators became unexpectedly unavailable.

As a result of information provided by the WPS, SO #2 and SO #1 were designated as subject officers. Neither police officer consented to an interview with the SIU or to the release of his memo book notes in relation to this incident.

As a result of information provided by the WPS, as well as a public appeal by the SIU for information, 32 civilian witnesses were identified, 18 of whom, including the Complainant’s mother, were interviewed in detail, while 14 additional civilians were found to have no substantive material information to offer and were therefore not formally interviewed.

As a result of a canvass conducted by the SIU, video recordings were obtained from a number of premises in the area surrounding the shooting. A canvass by WPS officers, along portions of the route walked by the Complainant that morning, produced additional recordings that were also released to the SIU.

Complainant:

33-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 Not Interviewed
CW #9 Interviewed
CW #10 Interviewed
CW #11 Interviewed
CW #12 Interviewed
CW #13 Interviewed
CW #14 Interviewed
CW #15 Interviewed
CW #16 Interviewed
CW #17 Interviewed
CW #18 Interviewed
CW #19 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 Notes received and reviewed, interview deemed not necessary
WO #6 Interviewed, notes received and reviewed
WO #7 Interviewed, notes received and reviewed
WO #8 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 Declined interview and to provide notes, as is the subject officer’s legal right


Incident Narrative

At approximately 8:03 a.m., a call was received by the WPS reporting that a man (the Complainant) was outside of the Starbucks store at the intersection of Wyandotte Street East and Ouellette Avenue, in the City of Windsor, and that he was carrying a butcher block of kitchen knives and was making people uncomfortable and worried. As a result, a number of police officers were dispatched to investigate the matter. While initially unable to locate the Complainant, at approximately 8:11 a.m., police reported that the man was walking eastbound on Wyandotte Street.

SO #2 initially drove up to the Complainant and attempted to engage him in conversation, but the Complainant walked away. SO #1 then arrived and blocked the entrance to the parking lot with his police vehicle, after which he exited and attempted to speak with the man. The Complainant then removed a knife and slashed at the officer with it, while the officer tried to back away. SO #1 then deployed his CEW at the Complainant, but it proved to be ineffective. As SO #1 backed away from the Complainant, he came up against a half-wall and fell on the curb, with the Complainant continuing to come at him and slash at him with the knife. During the course of the attack, SO #1’s right palm was cut with the knife.

SO #2 then arrived in his police vehicle and exited, yelling at the Complainant. The Complainant then turned his attention to SO #2 and quickly advanced on him, while continuously swinging the knife in SO #2’s direction. SO #2 then drew his firearm, while yelling at the Complainant to drop his weapon. When the Complainant closed the gap between himself and SO #2 to approximately six feet, while continuing to slash at the officer with a large steak knife that he had in his hand, both SO #1 and SO #2 discharged their firearms. The man was transported to hospital, where he was pronounced dead at 9:29 a.m.

Cause of Death

A post-mortem examination was conducted by a forensic pathologist at London Health Sciences Centre on March 22, 2018.

The examination revealed seven gunshot wounds.

The cause of death was multiple gunshot wounds.

Evidence

The Scene

This incident occurred on the roadway of Dufferin Place in the City of Windsor, immediately south of Wyandotte Street East. Dufferin Place is an asphalt paved road aligned north to south, between Ouellette Avenue to the west and Goyeau Street to the east.

The Shoppers Drug Mart parking lot was situated at the southwest corner of Wyandotte Street East and Dufferin Place. The McDonald’s parking lot was situated at the southeast corner with the drive thru lane at the east end of the lot and the McDonald’s building east of that, at the southwest corner of Wyandotte and Goyeau Streets.

Scene Diagram

The following drawing depicts the scene, where the evidence was located, and the immediate surrounding area:

Scene diagram

Physical Evidence

The drawing above details the butcher block and knives located in the entrance to the McDonald’s drive-thru, as consistent with the CCTV recordings obtained (detailed below).

The drawing also details the CEW barn doors found on the roadway, later revealed to be from SO #1’s CEW, along with aphids (identification tags emitted by the CEW) and a CEW probe, all of which were found in the immediate area of SO #1’s interaction with the Complainant. The CEW was located on the west side of Dufferin Place, in the area where SO #1 fell to the ground, as he backed away from the Complainant.

Four cartridge cases were located in the scene, consistent with being ejected from SO #2’s service pistol.

Two cartridge cases were located consistent with being ejected from SO #1’s service pistol.

A seventh cartridge case was located on the ground, near the driver door of SO #1’s SUV cruiser.

The knife carried by the Complainant was located on the ground, behind and to the left of SO #2’s cruiser.


Photo of blood stained knife from scene

Photo of blood stained knife from scene

Two projectiles were located at the scene. Another projectile was located on the gurney containing the Complainant’s body at the hospital prior to the autopsy. Another two projectiles were removed from the Complainant’s body during the post-mortem examination.

After discovering what she believed was a bullet hole in her motor vehicle, a civilian witness attempted to contact the SIU and left a message on the 800 number on March 25, 2018. She then contacted the WPS. The vehicle was examined by WPS forensic officers on that date and the damage, which appeared to have been caused by a projectile, was observed at the bottom area of the rear passenger side door. Subsequent examination of the scene revealed a projectile on the pavement near the McDonald’s drive-thru pick-up window.


CEW Data Download

Examination of SO #1’s CEW revealed that it was armed at 8:20:55 a.m. on March 21, 2018 and discharged two seconds later for a single five second deployment.

Examination of SO #2’s CEW revealed that the weapon was neither armed, nor was it discharged, during this incident.


Firearms Examination

SIU FIs collected the service issued Smith and Wesson M&P 40, .40 calibre, semi-automatic pistols of SO #1 and SO #2 for examination, which revealed the following:

1. SO #1’s pistol was found to have what appeared to be blood staining on it. The pistol was loaded with a round in the breech and 13 rounds in the magazine. Both spare magazines were collected and were found to have 15 rounds in each; and

2. SO #2’s pistol was found to be loaded with a round in the breech and nine rounds in the magazine. Both spare magazines were collected with 15 rounds in each.

Forensic Evidence

The knife located at the scene was submitted to the Centre of Forensic Sciences (CFS) for examination. Examination of blood on the blade and handle revealed DNA from a male person; comparison with the Complainant’s blood, obtained during the post-mortem examination, revealed the blood on the knife was not from the Complainant.

Examination of the two firearms, the cartridge cases, and the projectiles, revealed the following:

  • Two cartridge cases and two projectiles were discharged from SO #1’s pistol; and
  • Five cartridge cases and three projectiles were discharged from SO #2’s pistol.

The firearms report was received by the SIU on October 15, 2018; the purpose of the submission had been to determine whether firearm discharge residues were present on the Complainant’s clothing. The examination found no firearm discharge residue patterns, as a result of which, no distance determination examinations were conducted.

Expert Evidence

A post-mortem examination was conducted by a forensic pathologist at London Health Sciences Centre on March 22, 2018.

The examination revealed seven gunshot wounds, detailed as follows (the order by which they are reproduced here does not necessarily reflect the order in which the wounds were sustained):

1. A perforating gunshot wound to the right forearm with entrance and exit wounds to the posterior right forearm co-related to a graze wound on the inner bicep (#2 detailed below) and an entrance wound to the right side of the chest (#3 detailed below); no projectile was recovered from this injury.

2. A graze wound to the upper right arm did not penetrate the skin; no projectile was recovered from this injury.

3. An entrance wound on the right lateral chest superficially penetrated the skin; no projectile was recovered from this injury.

4. An entrance wound to the left rear side of the chest [1] directly related to a deformed projectile located at the top front of the chest, immediately below the neck [2], recovered from the subcutaneum of the suprasternal notch (the depression in the top of the sternum between the two clavicles).

5. An entrance wound to the back of the Complainant’s right thigh related to the exit wound to the front of the right thigh. One of the projectiles, which was located with the Complainant’s clothing at the hospital, was found in the area of the right thigh and may have been the source of that injury.

6. Two entrance wounds were located to the abdomen, to the right of, and below, the navel, with the path of one projectile perforating the small bowel and mesentery, lacerating the right iliac vein and right iliac artery, and then travelling through the right ilium pelvic bone; this projectile was located lodged in the right buttock [3].

7. The path of the other projectile to the abdomen went through the abdominal wall, perforated the small bowel and mesentery, then travelled through the sacrum and exited the lower back, over the sacrum.

The pathologist concluded that wounds 1, 2, and 3 may represent one shot. Wound 4 was considered a fatal wound, causing extensive damage to the left lung, resulting in fatal hemorrhage. Wounds 5 and 6 were potentially life-threatening wounds, and were considered to have contributed to death due to their resultant hemorrhage. Wound 7 was not life-threatening, as it did not injure any major blood vessels.

The cause of death was determined to be multiple gunshot wounds.

Toxicology revealed the presence of tetrahydrocannabinol at 28 ng/mL.

Video/Audio/Photographic Evidence

Security video recordings from a number of locations in downtown Windsor were provided to the SIU by WPS. The recordings captured images of the Complainant as he walked about carrying the butcher block with knives

Security Video Recordings

The following aerial photo from Google Maps shows the area of the shooting and has the security camera locations identified:

The following aerial photo from Google Maps shows the area of the shooting and has the security camera locations identified:

Security video recordings captured images of the Complainant as he walked about carrying the butcher block with knives.

As a result of a canvass conducted by the SIU, video recordings were obtained from the Cencourse Project Inc. apartment building, Quality Inn and Suites Hotel, and the McDonald’s restaurant.

In the following summaries of relevant recordings, it should be noted that timestamps on the video recordings varied. The times noted in each summary are the times that appeared on the recordings and not the actual time.


Apartment Building

Video from the apartment building where the Complainant resided captured images of him leaving the building on the morning of March 21, 2018, carrying a butcher block with knives in his left arm.


City of Windsor Engineering Department

A City of Windsor camera mounted at the southeast corner of the intersection of Ouellette Avenue and Wyandotte Street East captured video of two sedan style cruisers turning north onto Ouellette Avenue from Wyandotte Street East at about 8:11:18 a.m. At 8:11:30 a.m., the Complainant appeared, walking south on the east sidewalk of Ouellette Avenue, toward Wyandotte Street East, where he then crossed to the south sidewalk of Wyandotte Street East and continued until he went out of view, as he entered the parking lot at the east side of the Shoppers Drug Mart. At 8:12:21 a.m., a police SUV, driven by SO #1, drove by the Complainant and then turned right onto Dufferin Place, followed by two sedan style cruisers.


Shoppers Drug Mart Plaza

The Shoppers Drug Mart Plaza at 600 Ouellette Avenue had a security camera mounted on the east elevation, which viewed the parking lot to the east and captured Dufferin Place beyond that. The video recording from Camera 08 commenced at 8:09:50 a.m.on March 21, 2018 and captured the Complainant as he walked across the parking lot from the northwest to the southeast corner; a fully marked WPS SUV style cruiser, operated by SO #1, turned onto Dufferin Place from Wyandotte Street East and drove south. The Complainant hesitated, while walking, and turned left as if to return to the sidewalk when the cruiser entered the parking lot from the east entrance. The Complainant then redirected and continued southeast through the parking lot, while SO #1 reversed back toward Dufferin Place as the Complainant reached the east end of the parking lot. At that time, a marked sedan style cruiser, now known to be operated by WO #1, turned south onto Dufferin Place. SO #1 immediately exited his SUV and walked toward the Complainant, as WO #1’s cruiser drove south and stopped immediately to the Complainant’s left; the Complainant briefly turned and appeared to look at SO #1, following which he walked east across the street. Another sedan style cruiser, operated by SO #2, arrived and parked blocking the east parking lot exit to Dufferin Place. Before SO #2 brought his car to a stop at 8:10:25 a.m., SO #1 reached the east sidewalk, where he stopped and turned to his right. The Complainant then turned and started running at SO #1 and SO #1 ran west, across Dufferin Place, chased by the Complainant in close proximity, as they appeared to swing arms at each other.

At 8:10:28 a.m., SO #1 is seen to fall backward at the west end of the street, as SO #2 exits his cruiser.

At 8:10:29 a.m., SO #1 and the Complainant are out of the camera’s view as they are behind a utility pole; SO #2 approaches them with his arms extended, at which point the recording ends, at 08:10:32 a.m.

The next recording starts at 8:11:26 a.m., after the shooting, and reveals SO #1 being tended to, and a number of people standing by and watching from a distance.

Although this recording was one in a series of sequential recordings in and around the time that this incident occurred, there was no recording of the 54 second period during which the Complainant was shot.

It should be noted that these recordings were released to the SIU by the WPS. Unfortunately, for some reason, the Shoppers Drug Mart Plaza was not canvassed by the SIU. In response to an inquiry by the SIU for any missing recordings, the WPS advised that they did not obtain any recording of the noted 54 second gap in time during which the shooting occurred and assured the SIU that all recordings had been released to the SIU. The sequential digital files of the 16 Shoppers Drug Mart Plaza recordings appeared consistent with that information.

Inquiries from the SIU for additional recordings from the property management company at Shoppers Drug Mart Plaza revealed that the property manager had provided the WPS with a secure link allowing them to remotely access and download the recordings. The management company did not keep any of the recordings, but released the physical hard disk drive to the SIU, as the hard disk drive had become corrupted and was no longer functioning. Forensic examination of the hard drive confirmed that the drive was corrupted and no additional data or recordings could be retrieved.


Cencourse Project Inc.

The residential apartment building at 30 Tuscarora Street had a security camera mounted on the east elevation, aligned to view north on Dufferin Place, toward Wyandotte Street. The recording appeared to be motion-activated and consisted of major gaps in time where there were no recordings.

At 8:31:58 a.m., the camera recorded SO #1’s SUV turning right onto Dufferin Place. There were no recordings of events from 8:32:05 to 8:32:24 a.m.

At 8:32:32 a.m., SO #1 is seen walking east across Dufferin Place, following the Complainant. At 8:32:36 a.m., the video captured SO #1 backing away, west across Dufferin Place, with the Complainant quickly moving toward him.

Immediately after both males reached the west side of the street, at 8:32:38 a.m., crucial events appear not to have been recorded. There are no recordings of events between 8:32:41 and 8:32:56 a.m.; the recording continues sporadically thereafter with the actual shooting not being recorded.


McDonald’s Restaurant

The McDonald’s restaurant at the southwest corner of Wyandotte Street East and Goyeau Streets had several security cameras mounted on the building’s exterior. The drive-thru camera was aligned to capture the area where this incident occurred, however, the actual shooting appeared on the video along the top portion of the field of vision and in the area of the timestamp, as a result of which nothing of relevance was visible.


Transit Windsor Bus 615

Although the shooting was not captured on video recordings of any of the bus’s five cameras, at 8:12:30 a.m., a series of sounds can be heard on the recording, believed to be gunshots; immediately thereafter, the driver and a passenger can be heard on the recording speculating about whether the sounds were gunshots.


Quality Inn and Suites Hotel (675 Goyeau Street)

Two security cameras on the back (west) elevation viewed the parking lot between the building and Dufferin Place to the west. Only one camera was generally aligned toward the scene of the shooting, but both the distance and other structures obstructed the view of the area.

The SIU also received and reviewed several photos taken by a civilian witness, of a stray bullet which had struck her motor vehicle, and the scene photos taken by the WPS Scenes of Crime Officer.

Communications Recordings

At 8:03:57 a.m., a call came in from a Starbucks store at University and Ouellette, to the WPS, reporting that a male was walking around with a set of kitchen knives and behaving strangely, making people worried about going outside. The caller described the man as not having pulled out any of the knives, but he was just standing around asking people for cigarettes and making people uncomfortable. The call taker advised that they would send someone out.

8:09: a.m., a male officer called in reporting that there was no one standing at the corner described by the caller, but he would search the area.

A male officer then called in to report that the male was going eastbound on Wyandotte in front of the Shoppers (Drug Mart) and that he kept walking away from the officers.

An officer then reported that the male had a knife block in his hands.

At 8:11:55 a.m., a male officer reported that the male was being very evasive.

At 8:12:14 a.m., a male officer (SO #1) initially reported that they were at the McDonald’s, followed within seconds by, “Shots fired. Shots fired. He wielded the knife and ran at officers.” SO #1 then transmitted, “I need EMS. Step it up please. I’ve been stabbed in the hand.”

Materials obtained from Police Service

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

  • Computer Aided Dispatch (CAD) Detailed Call Summary;
  • Police Transmissions Communication Recording;
  • 911 Call Recording;
  • Coroner's Warrant to Inspect or Enter During Investigation;
  • Duty Roster;
  • Prior General Occurrence Reports involving the Complainant (x19);
  • List of Witnesses Obtained by WPS;
  • Narrative Hardcopy authored by WO #6;
  • Notes of WO #s 1-8;
  • Pistol Serial Numbers for both subject officers;
  • Police Firearms Acquired - CFP;
  • Procedure: Use of Force;
  • Scribe Notes of the Officer Involved Shooting scene;
  • Training Records of Subject Officers;
  • Prepared Written Statements of 22 Non-Designated Police Officers;
  • WPS Community Collaborative OPS Plan for Downtown Core;
  • WPS Video Interview Note of an Undesignated Civilian Witness;
  • Video Interview of an Undesignated Civilian Witness;
  • Handwritten Statement of CW #19;
  • Scene Photos;
  • CCTV Video seized by the WPS from: 
    • Cencourse Building at 30 Tuscarora Street; 
    • The Windsor Star at 300 Ouellette Avenue;
    • City Grill at 375 Ouellette Avenue;
    • Office Building at 540 Ouellette Avenue;
    • Enwin Utilities at 787 Ouellette Avenue;
    • McDonalds at 93 Wyandotte Street East;
    • Shoppers Drug Mart at 600 Ouellete Avenue;
    • Vapemeet at 300 Ouellette Avenue;
    • City of Windsor Traffic Engineering Department;
    • Quality Inns and Suites at 675 Goyeau Street;
    • Transit Windsor Bus 615; and
    • Complainant’s Apartment.
  • WPS Witness Statements of CW #s 12, 14, 5, and 9, and one Undesignated Civilian Witness; and
  •  Written Statement of an Undesignated Witness noted in an undesignated police officer’s notebook.

The SIU obtained and reviewed the following materials and documents from other sources:

  • CFS DNA report date April 27, 2018;
  • CFS Firearms report dated August 28, 2018;
  • CFS Firearms report dated October 2, 2018;
  • Preliminary Autopsy Findings;
  • Post-Mortem Report dated June 18, 2018;
  • CFS Toxicology Report dated June 4, 2018;
  • Photos of the path of a Stray Bullet taken by an Undesignated Civilian Witness; and
  • Medical Records of the Complainant related to this incident.

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 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.

Analysis and Director's Decision

On March 21, 2018, at 8:03:57 a.m., a call was received at the Windsor Police Service (WPS) communications centre from a Starbucks employee reporting that a man was at the corner of Ouellette and University Avenues walking around with a set of kitchen knives and that people were worried about going outside. At 8:06:44 a.m., two WPS officers were dispatched to the area to look into the matter, but they subsequently reported, at 8:09:11 a.m., that they were unable to locate the man. At 8:11:01 a.m., a radio transmission received by the WPS from a responding police officer was the first indication that the man had been located, in that an officer reported, “He’s gonna be eastbound Wyandotte, in front of the Shoppers. He keeps walking from us.”

Approximately one minute and three seconds after the man was initially reported as having been located by the police, shortly after 8:12:14 a.m., a radio transmission was received from a police officer indicating, “Shots fired. Shots Fired. He wielded the knife and ran at officers,” followed shortly thereafter by a transmission from SO #1 that, “I need EMS. Step it up, please. I’ve been stabbed in the hand.”

At 9:29 a.m., the 33-year-old Complainant was pronounced dead at hospital. A subsequent post-mortem examination revealed that the Complainant had sustained seven gunshot wounds as a result of SO #1 and SO #2 discharging their firearms, and that the Complainant had died as a result of his injuries.

An investigation was immediately launched by SIU investigators. The objective of the investigation was to determine what happened in the intervening one minute and three seconds between the radio transmission confirming that the police had located the Complainant, and the broadcast that shots had been fired following an officer having been stabbed, and if the death of the Complainant was justified under the law, or if criminal charges were warranted against the police officers who caused that death.

During the course of the investigation, 32 civilians came forward to offer evidence to SIU investigators, resulting in formal interviews being carried out with the 18 of those who had witnessed various segments of the interactions between the Complainant and the police officers; eight police witnesses were also interviewed. The two subject officers, SO #1 and SO #2, both declined to be interviewed by the SIU and opted not to turn over their memorandum book notes of the incident to investigators, as is their legal right.

The investigation was somewhat aided by the availability of CCTV footage, which intermittently recorded the series of events which unfolded from the time that the Complainant entered the area of the Starbucks store in the area of Ouellette Avenue and Wyandotte Street East, leading up to the shooting in the parking lot of the McDonald’s at Wyandotte and Goyeau Streets. However, the CCTV footage failed to record the critical seconds surrounding the shooting as well as the shooting itself, but the determinative evidence as to what occurred between the Complainant and the two subject police officers could be established as a result of the cooperation of the 11 independent civilian eyewitnesses to the event and the real time narration of events which were recorded on the police transmissions communication recordings as police officers called them in. As a result of the breadth of that evidence, an accurate timeline of the unfolding events was extrapolated, a summary of which follows.

The CCTV footage reveals the Complainant walking across the Shoppers Drug Mart parking lot with the butcher block of kitchen knives, as SO #1 arrives in his SUV police vehicle, followed by WO #1 and SO #2, in their individual police cruisers. SO #1 is seen to exit his vehicle and walk toward the Complainant, as WO #1 pulls up to the immediate left of the Complainant. The video captures the Complainant briefly turning and apparently looking at SO #1.

Just prior to SO #2 stopping his cruiser, SO #1 can be seen to reach the east sidewalk, stop, and turn to his right. At the same time, the Complainant can be seen to turn and start to run at SO #1, resulting in SO #1 backing away and then running west, away from the Complainant, as the Complainant gives chase; both men are seen in close proximity and they appear to swing their arms at each other.

SO #1 is then seen to fall backwards at the west end of the street, while SO #2 is simultaneously seen to exit his cruiser. The video then reveals SO #1 and the Complainant moving out of camera view and behind a utility pole, while SO #2 approaches them with his arms extended.
CW #5, an Outreach Worker with the Windsor Essex Community Health Centre, was on a ride along with SO #2, in his police cruiser, and had a direct view of the entire interaction between the Complainant and the police officers. CW #5, in her statement to SIU investigators, described hearing the radio broadcast about a man with a block of knives walking on Ouellette Avenue, and then seeing the Complainant, who was known to her, walking in the area.

CW #5 related that SO #2 turned his police cruiser around and tried to engage the Complainant in conversation, following which SO #2 stopped his cruiser and got out to speak with the Complainant, while WO #1 also stopped his police cruiser behind SO #2’s vehicle.

SO #2, according to CW #5, then approached the Complainant and asked where he was going, to which the Complainant gave SO #2 ‘the finger’ and a wave gesture. WO #1 then lowered his window and told the Complainant that he needed to stop, but the Complainant continued walking toward the Shoppers Drug Mart parking lot.

SO #2 then broadcast his location and CW #5 heard SO #1 respond that he was, “on it”. As SO #2 then drove into the Shoppers Drug Mart parking lot, CW #5 observed that SO #1 was already there, with his cruiser blocking Dufferin Place.

CW #5 then described the Complainant walking, in full stride, into the McDonald’s parking lot, where he stopped and turned to face SO #1. CW #5 observed that SO #1 had his hand on his conducted energy weapon (CEW) when the Complainant grabbed one knife out of the block, dropped the butcher block, and charged at SO #1; SO #1 had drawn his CEW by that point.

CW #5 described SO #2 as parking his police cruiser while the Complainant was charging at SO #1, making crossing, slashing motions at SO #1’s neck with his knife, while SO #1 backed away, across Dufferin Place, to a concrete wall near a utility pole, which then obstructed CW #5’s view. CW #5 observed SO #1 grab at the knife in the Complainant’s possession, with his right hand, in what she described as an effort to protect himself. CW #5 also indicated that she believed that, at that time, the Complainant had an “intent to kill.”

CW #5 observed SO #1 kick and push at the Complainant, but she was unable to determine if SO #1 was able to deploy his CEW. The Complainant then fell to the ground and dropped the knife, but was able to again retrieve the knife and get back to his feet.

SO #2, who was standing on the roadway at that point, yelled, “Stop!” causing the Complainant to turn his attention to him, following which the Complainant ran at SO #2, at full sprint, with the knife in hand. CW #5 described the Complainant as running while bent over, like a linebacker, with his knees bent, and that he was arched forward with the knife raised in his hand. When the Complainant had closed the gap between himself and SO #2 to roughly five to eight feet, SO #2 fired his weapon. According to CW #5, it appeared to her that the initial shots had little effect, but the Complainant eventually fell to the ground; both police officers then told the Complainant to stay on the ground. CW #5 estimated that the entire incident spanned no more than about five seconds.

CW #6, who was in the drive-thru lane at the McDonald’s, observed SO #1 to the right of her own motor vehicle walking backwards, while a male, the Complainant, walked towards the officer from a distance of about two to three feet, while making stabbing motions with a steak knife that he had in his hand. CW #6 described SO #1 telling the Complainant to stop, following which SO #1 fell onto his back and the Complainant continued to move toward the officer while trying to stab him, with SO #1 kicking at the Complainant, in order to protect himself.

CW #6 described the Complainant then turning away from SO #1 and focusing his attention to the north, from where she could hear some yelling. The Complainant then took two or three steps away from SO #1, at which point CW #6 saw that SO #2 was positioned to the north. The Complainant then approached SO #2, to within about seven feet, when SO #2 deployed his CEW, which appeared to have no effect as the Complainant continued to approach and SO #2 began to walk backwards. CW #6 then lost sight of SO #2 and the Complainant, but observed SO #1 to get back to his feet; CW #6 then heard six gunshots. CW #6 estimated that from the time of the deployment of the CEW until the time of the gunshots, approximately 60 to 90 seconds had elapsed.

CW #2, who was working at the drive-thru window at the McDonald’s, heard a loud “pop” and she looked over and saw The Complainant “raging” toward a police officer, while holding his right hand in a stabbing motion above his head. She observed the police officer to reverse across the road, but when The Complainant came within approximately five to seven feet of the officer, she heard two more “pops” in quick succession. The Complainant then briefly continued toward the officer, before falling to the ground within about two to three feet of the officer.

CW #9, who was in her motor vehicle driving on Wyandotte Street East, observed the Complainant carrying knives as he walked through the Shoppers Drug Mart parking lot and then entered the McDonald’s parking lot. She then observed a police officer approach the Complainant, who dropped the knives, save for one, which he kept in his hand as he approached the police officer. CW #9 then heard the police officer repeatedly tell the man to drop the knife, but the man kept approaching the police officer, who backed away across Dufferin Place, until he backed up into a half-wall near the Shoppers Drug Mart parking lot, where the man attacked the police officer. CW #9 heard what she believed was a CEW, but saw no effect from the deployment, and heard commands for the man to drop the knife. CW #9 then heard a gunshot just as the Complainant turned to his right and began to look at a second police officer.

While CW #9 professed a dislike of both the police and the SIU, she opined that in her view, the shooting of the Complainant was justified.

CW #7, who was seated in a motor vehicle, saw the Complainant walking across the Shoppers Drug Mart parking lot, with a bearded police officer, SO #1, walking behind him and yelling at him; it appeared to CW #7 that the officer was trying to get the man to stop. CW #7 then observed the Complainant drop something from his hands, whereupon he saw that the man was armed with what appeared to him to be a large knife. The man then turned and quickly walked toward the police officer, while waving the knife in a stabbing motion. When the Complainant came to be within three feet of the police officer, CW #7 observed the officer back away, with his arm extended and almost touching the Complainant. CW #7’s view then became obstructed, following which he heard at least four gunshots in rapid succession, but could not see from where they had originated.

CW #4, who was operating the motor vehicle in which CW #7 was a passenger, heard CW #7 say, “Oh my God, he’s got a knife,” following which she saw a man with a large knife in his right hand making stabbing motions at a bearded police officer (SO #1). She described the Complainant and SO #1 as being about 18 inches apart as they scuffled and the man tried to stab the police officer, while the officer tried to defend himself by grabbing at the man. CW #4 then heard four gunshots.

CW #3, who was also working the McDonald’s drive-thru window, saw a uniformed police officer in foot pursuit of a man who was walking east through the Shoppers Drug Mart parking lot, before crossing Dufferin Place, and entering the McDonald’s lot. CW #3 then observed the two men stop on a grassy area near the parking lot exit; CW #3 observed that SO #1 had a CEW in his hand and he appeared to be speaking to the Complainant, who then started to approach him with something in his hand. When the Complainant charged at SO #1, SO #1 then deployed his CEW, but it appeared to have no effect. SO #1 then fell backward at the curb, while protecting his face, as he fended off the Complainant’s attack. CW #3 described the attack on SO #1 as the Complainant making stabbing motions at the officer.

CW #3 then described another police car arriving and a police officer, SO #2, jumping out of the cruiser and drawing his pistol and aiming it at the Complainant. The Complainant then charged at SO #2, as the officer backed away while yelling at the Complainant. CW #3 observed SO #2 to discharge his firearm, while the Complainant continued to charge at him. CW #3 then described a pause, followed by the police officer firing another round, which then stopped the Complainant, who fell to the ground.

CW #16 was driving his motor vehicle eastbound on Wyandotte Street East when he heard a gunshot, and then saw a man engaging with police officers. CW #16 described the man, the Complainant, as yelling at a police officer and appearing, “out of control”, as the police officers yelled back at him. When the man then charged at one of the police officers, CW #16 heard three or four gunshots following which the Complainant fell to the ground.

CW #16 estimated that there was a gap of some seven to eight seconds between the first gunshot and the volley that followed later. CW #16 also described the Complainant as being out of control and indicated that he was of the belief that the police officers had no other choice than to use lethal force against the Complainant.

CW #11, who walked out onto Dufferin Place when he heard yelling, observed SO #1 being rushed by a man and the two men then struggling, while the officer tried to push the Complainant away. CW #11’s view became obstructed when the two men reached the half-wall, but he observed a second police officer, SO #2, exit his cruiser and approach, while trying to get the Complainant’s attention. CW #11 then observed that SO #2 discharged his firearm two or three times. CW #11 estimated that the entire interaction lasted some 15 to 20 seconds.

CW #19 was leaving the McDonald’s parking lot on foot, when she observed a man cradling a block of knives under his left arm. CW #19 then saw SO #1, as he approached the man and told him to stop, following which the man turned to face the officer, grabbed a steak knife, dropped the block of knives, and then attacked the police officer with the knife. She described the Complainant’s actions as, “going wild and attacking the police officer,” and slashing at him, while the officer, SO #1, backed away and his right palm was slashed by the knife. CW #19 described SO #1 as continuing to back away, across Dufferin Place, where he withdrew his CEW and deployed it against the Complainant, with no apparent effect. CW #19 then observed a second police officer, SO #2, yell at the Complainant to stop and he too deployed his CEW with no apparent effect. CW #19 then observed SO #2 to draw his firearm and shoot the man three or four times.

CW #19 opined that the police officers, “did awesome considering what happened,” and she was of the view that they did not do “anything wrong.”

CW #14, who was operating a bus on Wyandotte Street East at the time, observed SO #1 following the Complainant on foot, before the Complainant stopped, turned, and went after the police officer while swinging his fists at the officer. CW #14 observed SO #1 back away, across Dufferin Street, and stop near a utility pole on the west side. CW #14 then saw a second police officer, SO #2, get the Complainant’s attention, and the Complainant turned and approached SO #2, coming within about six to seven feet of SO #2, when CW #14 heard three “pop” sounds. CW #14 later observed a knife on the ground beside the Complainant, while the police officers were attempting life-saving measures.

While I have not detailed the evidence of all of the witnesses here, I note that the evidence of these witnesses is consistent with the evidence of all of the other witnesses, as well as the CCTV footage, the only discrepancy being in the evidence of CW #6 and CW #19, who were both of the view that SO #2 had discharged his CEW at the Complainant. This evidence, however, is contradicted by the download data for the CEWs in the possession of SO #1 and SO #2, which confirmed that only SO #1 discharged his CEW and he only did so on one occasion, for a single five second deployment, while SO #2 at no time had his CEW armed, nor did he ever discharge it. This evidence is further confirmed by the fact that a CEW with wires extended to probes in the Complainant’s jacket was found on the ground next to SO #1.

I find that the physical evidence of the location of a brown handled steak knife on the ground beside the Complainant, as well as the cut to SO #1’s hand, further supports the eyewitness evidence supplied by the independent witnesses.

Examination of the firearms, in the possession of SO #1 and SO #2, revealed that SO #1 had discharged his firearm on two occasions, while SO #2 discharged his firearm five times. The post-mortem examination of the Complainant’s body, while revealing seven injuries related to his being struck by gunfire, could only determine that five were possibly separate injuries, with one bullet possibly being responsible for three of the different injuries sustained. Furthermore, one of the gunshot wounds was considered fatal (wound listed as #4 in the post-mortem report), while two were considered potentially life-threatening (wounds 5 and 6).

On the basis of this very compelling evidence, then, I find that SO #1 initially pursued the Complainant on foot, in order to speak with him, following which the Complainant turned, dropped the knife block, and then charged at SO #1 with a knife in hand. As a result, SO #1 attempted to back away from the Complainant, and he withdrew, and at some point discharged, his CEW, without any apparent effect on the Complainant. SO #1 backed up and tried to increase the distance between himself and the Complainant, crossing Dufferin Place, closely followed by the Complainant, who continued to swing his knife at SO #1. When the two men reached the half-wall described by witnesses as being in the Shoppers Drug Mart parking lot, SO #1 then fell against the curb, and the Complainant continued to slash at him with the knife, at some point either slashing SO #1, or causing SO #1’s hand to be cut when he tried to disarm the Complainant.

I further find that upon SO #2 exiting his cruiser, he observed the attack on SO #1 and he tried to distract the Complainant away from SO #1, in order, presumably, to save SO #1’s life. When the Complainant then closed the gap between himself and SO #2, to within seven or eight feet, despite SO #2 trying to back away and increase the distance between them, SO #2 discharged his firearm.

On the basis that a single gunshot was initially heard, followed thereafter, several seconds later, by a volley of shots, I find that it is likely that SO #1 initially discharged his firearm while the Complainant was attacking him with the knife, and that, once the Complainant advanced on SO #2 and began to close the gap between himself and SO #2, SO #2 discharged a volley of shots and, in all likelihood, SO #1 then also again discharged his firearm. While it is impossible to determine with certainty the order of the gunshots in the absence of any evidence from SO #1 and SO #2, in this case it is not necessary to do so, as I find that this is a reasonable scenario based on the evidence of the 11 independent civilian witnesses, which is further consistent with the examination of the firearms of SO #1 and SO #2.


The Law and Analysis

The question that remains to be answered, then, on the facts as I have found them, is whether or not SO #1 and SO #2 were justified in using lethal force against the Complainant, or whether the discharging of their respective firearms at the Complainant was an excessive use of force in these circumstances and provides reasonable grounds for the laying of criminal charges against SO #1 and/or SO #2 for causing the death of the Complainant.

Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. Further, pursuant to subsection 3:

(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.

As such, in order for SO #1 and SO #2 to qualify for protection from prosecution under section 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. Furthermore, pursuant to subsection 3, since death was caused, it must also be established that SO #1 and SO #2 discharged their firearms believing on reasonable grounds that it was necessary in order to preserve themselves, or each other, from death or grievous bodily harm.

Turning first to the lawfulness of the attempted apprehension of the Complainant, it is clear from the call to the WPS that there were reasonable grounds to believe that the Complainant was behaving oddly and was possibly in possession of one or more weapons (the eight knives in the knife block) dangerous to the public peace, contrary to s. 88 of the Criminal Code. As such, I am satisfied that the police officers who were dispatched, in response to the call from the Starbucks employee, were acting lawfully when they responded to a complaint by concerned citizens and attempted to engage with, and investigate, the Complainant; as such, their actions leading up their first contact with the Complainant were legally justified in the circumstances. Thereafter, when the Complainant then extracted one knife from the block and began to use it as a weapon, there were more than ample grounds for police to arrest the Complainant pursuant to s. 88 of the Criminal Code.

With respect to the other requirements pursuant to s.25(1) and (3), 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, 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]

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:

(h) 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.
(i) "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).
(j) 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.
(k) "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 then, I must determine:

(1) Whether SO #1 and SO #2 subjectively believed that they, or others, were at risk of death or grievous bodily harm from the Complainant at the time that they discharged their firearms; and,

(2) Whether that belief was objectively reasonable, or, in other words, whether their actions would be considered reasonable by an objective bystander who had all of the information available to him, that SO #1 and SO #2 had at the time that they discharged their firearms.

With respect to the first of these criteria, it is clear from the statement of the many civilian witnesses, that SO #1 and SO #2 would have subjectively believed that they, and/or each other, were at risk of death or grievous bodily harm at the time that they discharged their firearms. That subjective belief can be inferred from the observations of the witnesses (who were directly observing the incident) which confirmed that as the incident unfolded, the Complainant was armed with a knife, that he was quickly advancing initially on SO #1, with knife in hand, and later on SO #2, that SO #1 had fallen and was at risk of being seriously injured, if not killed, by the Complainant, that SO #1 had already been injured by the Complainant with the knife in his possession, that the Complainant was swinging the knife in such a way as to indicate that it was his intent to stab both of these police officers, while quickly advancing upon them, with knife in hand, and that the Complainant refused either to stop or to drop his weapon. Given that the previous deployment of the CEW had been ineffective, it left the subject officers only one option by which to effectively stop the Complainant from causing them serious injury or death, that being resort to a firearm.

On all of the information that SO #1 and SO #2 had in their possession at the time that they shot and killed the Complainant, I find that they, subjectively, had reasonable grounds to believe that their own lives, and the lives of each other, were at risk from the Complainant, and that their observations of the Complainant’s actions would have reasonably caused SO #1 and SO #2 to believe that they, or each other, were at imminent risk of being seriously injured, if not killed, by the Complainant.

In considering the reasonableness of SO #1 and SO #2’s actions and whether or not they considered less lethal use of force options before resorting to their firearms, I note that the witnesses indicated that the officers had repeatedly instructed the Complainant to drop his weapons, which appeared to have fallen on deaf ears. Additionally, as confirmed by several of the independent civilian witnesses, the evidence located at the scene, and the CEW download data, SO #1 had already resorted to the only other less lethal use of force option available to stop the Complainant, which, for whatever reason, had proven ineffective, thereby leaving only lethal use of force as a viable alternative. On that basis, it is clear that SO #1 and SO #2, in the few short seconds available to them after the deployment of the CEW by SO #1, and while the Complainant was quickly advancing upon first SO #1, and then SO #2, with a deadly weapon, appeared to have considered all of their options before they each respectively discharged their firearms.

With respect to whether or not there were objectively reasonable grounds to believe that the lives of SO #1 and SO #2 were at risk, one need only refer to the evidence of the independent witnesses, which described the Complainant as advancing on the two police officers and swinging and slashing a knife in their direction, while both officers attempted to retreat and increase the distance between themselves and the Complainant. I have made further note of the comments of CW #5, who described the Complainant as charging first at SO #1, with an, “intent to kill,” while SO #1 tried to fight him off, and later at SO #2, with “full intent”; of CW #6 who described the Complainant as trying to stab SO #1 as he lay on the ground on his back trying to protect himself against the Complainant; of CW #2, who described the Complainant as “raging” toward SO #2 with a knife in his right hand, which he moved in a stabbing motion above his head; of CW #9, who, despite her dislike of police, opined that the shooting of the Complainant by police was justified, as the officers were being “attacked” by the Complainant; of CW #19, who opined that the officers did nothing wrong; of CW #4 and CW #3, who described the Complainant with a large knife in his hand trying to stab SO #1, as SO #1 tried to defend himself; of CW #3 who also described the Complainant as then charging at SO #2; and of CW #16, who opined that the Complainant was out of control and that the police officers had no other choice, than to use lethal force against him.

Additionally, one has to consider the evidence of CW #14, who observed the knife beside the Complainant after he had been shot, confirming that when the independent witnesses saw the Complainant advancing on SO #1 and SO #2, he was indeed armed with a knife, as well as the evidence of the CEW with the two probes still lodged in the Complainant’s jacket, which confirmed that the CEW had indeed been discharged at the Complainant but had failed to stop his attack on the police officers.

A review of the law relating to the justification in using force intended to cause death or grievous bodily harm establishes that when one believes on reasonable grounds that it is necessary for one’s self-preservation from death or grievous bodily harm, or the preservation of others, then the use of lethal force is justifiable. Having extensively reviewed all of the evidence I find in all the circumstances of this case that SO #1 and SO #2 reasonably believed that their lives, and the lives of each other, were in danger from the Complainant and thus their actions in firing upon the Complainant were justified. I find that it would have been foolish and reckless for SO #1 and SO #2 to risk their lives by waiting for the Complainant, with knife in hand, to further close the gap between himself and the officers thereby putting their own lives, and the lives of each other, at immediate risk of serious injury or death. I further find that risk was not one that SO #1 and SO #2 ought to have had to take when faced with a knife yielding man who had shown he was not reluctant to use it and who was quickly advancing and slashing a dangerous weapon against the two officers.

I find, therefore, on this record, that the shots that were fired by SO #1 and SO #2, which struck and killed the Complainant, were justified pursuant to ss.25 (1) and (3) of the Criminal Code and that SO #1 and SO #2, in preserving themselves and each other from death or grievous bodily harm from the Complainant, used no more force than was necessary to affect that lawful purpose. As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by SO #1 and SO #2, despite the tragic loss of life, fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.


Date: January 31, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes