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SIU Director’s Report - Case # 18-OFD-102

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 19-year-old male (the Complainant) during an interaction with police on April 3, 2018.

The Investigation

Notification of the SIU

At approximately 4:45 p.m. on April 3, 2018, the Hamilton Police Service (HPS) notified the SIU of the firearm death of the Complainant.

The HPS reported that at 3:35 p.m. on that same date, they had received a call about a person with a gun and a request to send the police to an address in the City of Hamilton. When police officers arrived at the address, they encountered the Complainant with a knife.

Witness officer (WO) #1 of the HPS discharged his Conducted Energy Weapon (CEW) at the Complainant and, despite appearing to make contact with the Complainant in the back area, it had no effect on the Complainant, who then ran down the far side of the street and stood behind a parked car. Suddenly, and without warning, the Complainant charged at WO #1 with his knife held above his head. WO #1 again discharged his CEW at the Complainant and once again it appeared to be ineffective. Fearing that WO #1’s life was in imminent danger from the Complainant, both subject officers simultaneously discharged their firearms, striking the Complainant four times. The Complainant was pronounced dead at the scene.

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 3
 

Complainant:

19-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 Declined to be interviewed
CW #8 Declined to be interviewed
CW #9 Interviewed

CW #s 8 and 9 declined to be interviewed as they feared neighbourhood retaliation and did not wish to become involved.

Witness Officers

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


Subject Officers

SO #1 Interviewed, notes received and reviewed
SO #2 Interviewed, notes received and reviewed


Incident Narrative

On April 3, 2018, the HPS Communications Centre received several 911 calls from the Complainant in which he reported seeing a man with a gun at a Ford dealership, threatening people. Subject officer (SO) #1 and WO #1 responded to the Complainant’s residence in the City of Hamilton and spoke to him in the driveway of a townhouse complex. WO #2, a plainclothes police officer, also arrived at the address in an unmarked police vehicle and stopped on the opposite side of the street prepared to offer assistance if needed. Three additional police officers arrived thereafter.

Suddenly, and without warning, the Complainant charged at WO #2’s vehicle with a knife held in his right hand. WO #1 unholstered his CEW and deployed it at the Complainant’s back, without any apparent effect. At the same time, the other police officers shouted at the Complainant to drop the knife. The Complainant then raised the knife and directed it at the head of WO #2, who was still seated in his vehicle. WO #2 quickly rolled up his window.

The Complainant then ran north down the west sidewalk towards a second motor vehicle, a Pontiac, parked further down the street and stopped near the trunk. WO #1 placed a new cartridge in his CEW in preparation of a second deployment, as he and SO #1 approached the Complainant.

The Complainant then charged at WO #1 with the knife held above his head, pointed down and in the direction of WO #1, and WO #1 again deployed his CEW at the Complainant. While it appeared that the CEW probes made contact with the Complainant, it had no effect and the Complainant remained undeterred and continued to charge at the officer with the knife raised. WO #1, fearing for his life, tried to transition from his CEW to his firearm. The Complainant was seen to make several chopping motions with his right hand, in which he still held the knife pointed forward and down, as he charged at WO #1, while yelling, “You want to kill me? You want me to die?” When the Complainant closed the gap between himself and WO #1, coming within a few feet of WO #1, SO #1 and SO #2 simultaneously discharged their firearms. The Complainant took a few additional steps, then collapsed to the ground. He was pronounced dead at the scene.

Cause of Death

An autopsy was performed on April 3, 2018. Following the post-mortem examination, the attending pathologist determined the immediate cause of death was a ‘penetrating, distance indeterminate range [1] gunshot wound of the right chest.’

Evidence

The Scene

The scene was on Caledon Avenue, in the City of Hamilton, which runs in a general north south direction. The street was paved with raised curbs and concrete sidewalks on either side of the street. There was overhead lighting on the east side of the street.

On the east side of the street was a townhouse complex; access to the units was by way of a driveway that ran east from Caledon Avenue to the parking area.

On the west side of the street was a vacant park associated with a closed school complex.

The area of the scene was on Caledon Avenue bounded by Tyrone Drive to the south (Tyrone Drive travels west from Caledon Ave), north of unit 141-A4 to the north. The townhouse complex was to the east and the aforementioned park was to the west.

A number of vehicles were located within the contained area as follows:

Vehicle #1 was a Ford Police Interceptor SUV, a marked police cruiser displaying graphics as designed by the HPS as a supervisor vehicle, which was parked on the east side of Caledon Avenue, north of Tyrone Avenue, and facing in a northbound direction;

Vehicle #2 was a Ford Police Interceptor (Taurus), a marked police cruiser displaying graphics as designed by the HPS, which was parked on the east side of Caledon Avenue facing in a northbound direction and north of Vehicle #1;

Vehicle #3 was a Dodge Charger, a marked police cruiser displaying graphics as designed by the HPS, which was parked on the east side of Caledon Avenue facing in a northeast direction north of Vehicle #2 and south of the laneway entrance to the housing complex at 141 Caledon Avenue;

Vehicle #4 was a Dodge Charger, a marked police cruiser displaying graphics as designed by the HPS, which was facing in a southeast direction on the east side of Caledon Avenue and in front of the laneway to the housing complex at 141 Caledon Avenue; its trunk was up and the vehicle was running;

Vehicle #5 was a Dodge Charger, a marked police cruiser displaying graphics as designed by the HPS. The cruiser was running and it was parked facing in an easterly direction in the laneway to the housing complex at 141 Caledon Avenue;

Vehicle #6 was a brown Chevrolet Equinox, an un-marked HPS police cruiser, parked facing in a southbound direction on the west side of Caledon Avenue and north of the laneway to the housing complex at 141 Caledon Avenue;

Vehicle #7 was a white Ford Ambulance, a marked Hamilton Paramedic Ambulance displaying graphics as designed by the Hamilton Paramedics, parked facing in a southerly direction on the east side of Caledon Avenue; and,

Vehicle #8 was a silver 4-door Pontiac Wave, parked facing in a southerly direction on the west side of Caledon Avenue and north of the Ambulance.

Scene Diagram 

Scene diagram

Physical Evidence

Exhibits


Exhibit #1: CEW wire and probe; running in a southerly direction from the front left corner of Vehicle #8;

Exhibit #2: Pelican flashlight, located in the approximate middle of the roadway and north of the ambulance (V7);
Exhibit #3: CEW blast door, located on the roadway north of the right rear of the ambulance (V7);

Exhibit #4: CEW blast door, located on the east sidewalk and in front of the driveway to unit A3;

Exhibit #5: CEW blast door, located on the west side of the road in front of the curb and south of Vehicle #8;

Exhibit #6: WIN 40 Smith & Wesson (S&W) cartridge case, located on the west side of the road and in front of the curb and south of Vehicle #8;

Exhibit #7: WIN 40 S&W cartridge case, located on the west side of the road and in front of the curb and south of Vehicle #8;

Exhibit #8: CEW Taser, located on the east side of the road between the curb and the ambulance (V7);

Exhibit #9: CEW wire and probe, located on the east side of the roadway and south of the ambulance (V7);

Exhibit #10: WIN 40 S&W cartridge case, located on the east sidewalk and the driveway to unit #A4;

Exhibit #11: WIN 40 S&W cartridge case, located on the driveway to units #A4/A5;

Exhibit #12: CEW wire and probe, located on the east sidewalk in front of unit #A5;

Exhibit #13: CEW cartridge case and wire, located under the tent [2] and near the east sidewalk;

Exhibit #14: Open “Buck-knife” located under the tent and on the grass, east of the sidewalk;

Open “Buck-knife” located under the tent and on the grass, east of the sidewalk

Exhibit #15: WIN 40 S&W cartridge case, located on the east sidewalk, south of driveway to unit #A5;

Exhibit #16: CEW cartridge case and wire, located in the middle of the road and east of Vehicle #6;

Exhibit #17: CEW blast door located in the approximate middle of the roadway and south of Vehicle #6;

Exhibit #18: CEW blast door, located on the roadway at the right rear of Vehicle #4;

Exhibit #19: CEW probe and wire located on the west sidewalk, south of Vehicle #6;

Exhibit #20: beaded bracelet, located in front of the left rear tires of the ambulance (V7);

Exhibit #21: gold wire rim glasses, located under the tent with Exhibit #14;

Exhibit #22: assorted medical debris located under the tent and two Hamilton Paramedic utility bags left at the scene; and,

Exhibit #23: a left blue and white coloured Adidas flip-flop style sandal located underneath the medical debris.


Examination of Police Firearms


SO #2


SIU Forensic Investigators (FIs) seized the duty belt from SO #2 which contained: Oleosresin Capsicum (OC) spray; a CEW with cartridge; an expandable baton, a double magazine pouch containing two magazines, and a holster containing a .40 calibre Glock pistol.

The Glock pistol was loaded with a magazine that contained 12 Winchester (WIN) 40 S&W rounds. These 12 rounds and the magazine were secured in a property bag. The pistol also had a WIN 40 S&W round in the chamber and this round was also secured in a property bag.

SO #2’s one spare magazine contained 15 WIN 40 S&W rounds. This magazine and the rounds were secured in a property bag. His second spare magazine contained 13 WIN 40 S&W rounds and these rounds were secured in a property bag.

SO #1


SIU FIs seized the duty belt from SO #1 which contained: a double magazine pouch containing two magazines and a holster containing a .40 calibre Glock pistol.

SO #1’s Glock pistol was loaded with a magazine that contained 11 WIN 40 S&W rounds. These 11 rounds and the magazine were secured in a property bag. The pistol also had a WIN 40 S&W round in the chamber and this round was secured in a property bag.

SO #1’s double magazine pouch contained one spare magazine with 14 WIN 40 S&W rounds. This magazine and the rounds were secured in a property bag. The second spare magazine contained 14 rounds, which were also secured in a property bag.

SIU FIs conducted an ammunition count by examining the firearms and spare magazines of the subject officers and determined five rounds in total were fired by the two police officers.

Five WIN 40 S&W cartridge cases were recovered at the scene.
The subject officers’ Glock pistols, as well as the five cartridge cases and the two bullets recovered from the Complainant’s body, were provided to the Centre of Forensic Sciences (CFS) for further examination.

Forensic Evidence

Histology (tissue samples) and Toxicology submissions were made to the CFS on April 19, 2018.

The knife (exhibit #14) recovered from the scene was submitted to the CFS, along with a DNA sample (exhibit #43) from the Complainant. On May 30, 2018, a Biology report was received by the SIU from the CFS indicating that the handle and folding area of the knife had been swabbed and tested for DNA, and at least three contributors of DNA were recovered with 1 major male profile being developed. That profile was consistent with having originated from the Complainant with a ‘resultant probability of certainty’ of 1 in 150 quadrillion [4]. The world population at the time of this report was recorded as being 7,589,703,250.

Expert Evidence

The pathologist who performed the post-mortem examination on April 3, 2018, determined the immediate cause of death was a ‘penetrating, distance indeterminate range [5] gunshot wound of the right chest.’ He also made the following observations.

Taser prong injuries were found on bilateral anterior knees. There were four gunshot wounds, as follows:

A – penetrating gunshot wound of right elbow (projectile #1 recovered)
B – perforating gunshot wound of left arm
C – penetrating gunshot wound of right chest (right chest to right lung to aorta to left lung to soft tissue of left side of torso (projectile #2 recovered)
D – perforating gunshot wound of right flank/lower back

The final Post-Mortem (PM) Report received by the SIU on November 1, 2018, similarly noted that the cause of death was gunshot wound to the torso (right chest) with injury to the aorta and lungs was a penetrating intermediate range wound. There was a projectile recovered from this wound. This was the fatal wound and the mechanism of death was blood loss.

In addition, the final PM noted:

The gunshot wound to the torso (right flank/lower back) was a perforating intermediate range gunshot wound. There was no projectile recovered from this wound. This wound would have required urgent medical care but it was not fatal.

The gunshot wound to the right elbow was a penetrating intermediate range gunshot wound. There was a projectile recovered from this wound. The wound would have required urgent medical care but it was not fatal.

The gunshot wound of the left arm was a perforating intermediate range gunshot wound. No projectile was recovered from this wound. This wound would have required urgent medical care but it was not fatal.

A toxicology report which was included in the final PM indicated that the Complainant was found with 17ng/ml of Tetrahydrocannabinol [6] in his femoral blood. The concentration of THC detected in his blood has been associated with the use of cannabis products and had no impact on his death.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but none were located.

Communications Recordings

911 Calls


1. Commencing at 11:55 a.m. on April 3, 2018:

The caller (later determined to be the Complainant) called 911 to report, “a threat I received via Snap Chat message”. When asked from whom the message had originated, the caller reported that it was a random message and not from anyone he knew personally. According to the caller, the message contained a date and it was “actually pretty vague.” The call taker asked the caller what the threat was and he replied that an anonymous person texted him his address and the date, ‘May 1’. The call taker asked if the message indicated whether someone was going to show up at his address and the caller replied no. The call taker advised the caller that she would generate a call for service after which she obtained the Complainant’s particulars.

2. Commencing at 3:35 p.m. on April 3, 2018:

The Complainant called 911 a second time to report that, “someone just sent me a threat via Snap Chat of a picture of my house.” When the call taker asked what kind of threat, the Complainant replied “It just said we’re fighting.” Then the call taker asked who sent the message and the Complainant replied, “a person on my Snap Chat I feel I know very well but I’m not sure.” The Complainant asked the call taker to send a police cruiser and then he began to cry. A short time later, the Complainant told the call taker, “He’s right there….you can see him,” and then, “Yeah please send help immediately.” The call taker asked the Complainant if the person was outside and he replied yes. When asked if he knew the person, the Complainant replied he did not. The call taker asked the Complainant if he was safe and inside his house and the Complainant replied, “He just pulled a firearm.” The call was then dropped.

3. Return Call from 911 Call Taker to the Complainant

The call taker called the Complainant’s phone and reached the message minder indicating ‘You have reached (the Complainant’s name), please leave your message after the tone’. The call taker left a message indicating, “(name) you need to stay on the line with me so I can give the officers information. I want you to call 911 again.”

4. Second Return Call from 911 Call Taker to the Complainant

The call taker called the Complainant’s phone again and it went directly to voicemail. The call taker left the following message, “(name) you need to call 911 and give us more information, okay?”

5. Third Return Call from Call Taker

The call taker called the Complainant’s phone for a third time and left a message asking that he call 911.

6. Third 911 Call from the Complainant

The Complainant called 911 stating that he needed the police. He then told the police call taker that, “There is a guy with a gun,” and, “He’s at the Ford Dealership, I don’t know exactly where but we need the police right now.” The call taker asked the Complainant if he could see the man with the gun and the Complainant replied yes. The call taker asked if the gunman was threatening anyone and the Complainant replied, “Absolutely.” A short time later, the call was dropped.

7. Fourth Return Call to the Complainant

The dispatcher called CW #4’s phone [7]. CW #4 answered and then gave the phone to the Complainant. The Complainant came on the line and said “Hello”, and the call taker replied, “Hey, yeah it’s the police. You hung up on me. We have police on the way but I’m just wondering if you can give me more information to help them out?” The Complainant replied, “Ahhh nope…I don’t know.” The dispatcher asked “Can you describe the person with the gun to me.” and the Complainant replied that the gunman was a black man of about 19 years of age. Shortly thereafter the called was dropped.

8. Call from Police Communications to EMS Communications:

The ambulance 911 call taker asked, “Ambulance what is your emergency?” and the police dispatcher replied, “Ambulance, it’s the police” and, “We are going to need you guys in the area of (address provided).” The police dispatcher advised, “We’ve had a suspect shot there.”

9. Calls from Police Communications Centre to nearby Schools

These calls were made to advise nearby schools of what was happening and that they should go into lock down.


HPS Police Transmissions Communications Recordings


Recordings began on April 3, 2018 at 3:36 p.m. and concluded on April 4, 2018 at 2:42 a.m. The time clock recording displayed on the audio is recorded in hours, minutes and seconds. The clock commenced at 00:00:00 and concluded at 11:05:57. (All unidentified officers are simply referred to as ‘Officer’)

Dispatcher (00:00:07): … and units to assist for a threatening in progress at (address) between Lotus Avenue and Tyrone Drive. Closest is Mohawk between West Fifth and Upper James. Our caller phoned in earlier regarding issues with threatening, says there is a male who showed up out front. Sent him a Snap Shot picture of his house and a comment of we are fighting and has pulled a firearm. He hung up on us;

Dispatcher (00:00:45): … you copy?

Officer: 10-4; send it to me;

Officer (00:00:57): … you can actually send it to me, (undesignated officer) is going to head into 30;

Dispatcher (00:01:08): Any units to clear and assist for this threatening weapon in progress;

Officer (00:01:40): … myself and (second officer) are 10-17 (meeting
complainant);

Dispatcher (00:01:45): …10-4. And (officer) just to advise the male is also going to be ..(inaudible)..charlie as well;

Dispatcher (00:02:22): It’s (address of residence), …between Lotus and Tyrone Drive that’s south of Mohawk and it’s going to be between West Fifth and Upper James;

Dispatcher (00:02:38): We’ve been trying to get a hold of the caller with no luck there;

WO #4 (00:02:54): … I can go to that weapons call;

Dispatcher (00:03:43): 10-4……and for those units there, we have schools in the area. Did you want us to contact their administration?;

Officer (00:04:03): We have the male and everything is 10-4;

Dispatcher (00:04:07): …10-4 … you copy?;

Officer (00:04:33): … let’s hold off on shutting the schools down for a minute here. I’m reading through this and he tried to call in a little earlier for an unknown person….I want to confirm first, sounds like he might not have been happy with our response time;

Dispatcher (00:04:52): 10-4…. I’m in the process of cross referencing an earlier call. I took the call actually…its regarding an unknown person whose been sending him Snap Chats with his address and the date May 1st, he didn’t have any idea who the suspect could have been and he is now saying this person has shown up outside and has pulled a firearm;

Dispatcher (00:05:23): We are getting another call in now for this address here someone saying there is a male with a gun and he was threatening someone with it and he hung up on us. It’s coming from a different caller;

Officer (00:05:48): Any description?;

Dispatcher (00:05:49): Negative they hung up on us we are trying to call them back;

SO #1 (00:08:16): … everyone can slow down;

Dispatcher (00:08:19): Sorry (SO #1) are you 10-4 there?;

SO #1 (00:08:27): … yes everyone can slow down now, everyone is 10-4;

SO #1 (00:08:47): … might be MHA (Mental Health Act);

Dispatcher (00:10:00): Checking to see if K9 is going to be required there?;

SO #1 (00:10:04): … ah negative, any chance both calls came from the same person?

Dispatcher (00:10:13): Our first call earlier today was for a threatening report by male party (the Complainant);

Officer (00:10:18): He’s holding a knife, he’s holding a knife!;

WO #2 (00:10:23): … yeah he’s pulled a knife and they are on foot pursuit now;

Dispatcher (00:10:29): Direction of travel;

WO #2 (00:10:34): … Shots fired, shots fired! We are going to need an ambulance here;

Dispatcher (00:10:39): Shots fired. Require an ambulance;

WO #2 (00:10:47): Looks like the subject is down, all the officers look to be okay;

SO #2 & WO #3 (00:10:55): … we got the knife away from him to…both 10-4, we just need EMS.

Following this transmission, there were no further transmissions of any evidentiary value to the investigation.

Materials obtained from Police Service

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

  • CAD Event Chronology;
  • Hamilton Homicide Sudden Death Report;
  • HPS CPIC Request;
  • HPS Mug Shot of the Complainant;
  • HPS Policy: Use of Force Reporting;
  • HPS Policy: Use of Force and Equipment;
  • HPS Policy: Mentally Ill and Emotionally Disturbed Persons;
  • HPS Policy: Arrest Procedures;
  • Notes of WO #s 2-4 and SO # 1 and 2;
  • Previous Occurrences involving the Complainant;
  • Subject Profile of the Complainant; and,
  • Training Records of SO #s 1 and 2.

The SIU obtained and reviewed the following materials and documents from other sources:
  • Centre of Forensic Sciences (CFS) DNA Report;
  • Coroner’s Warrant;
  • CFS Firearms Report;
  • Preliminary Autopsy Findings Report dated April 4, 2018;
  • Handwritten Statement from CW #4; and,
  • Taser Examination Report from Manufacturer.

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 April 3, 2018, at 11:55 a.m., a 911 call came into the communications centre of the Hamilton Police Service (HPS) reporting that the caller had received a message via ‘Snapchat’ which he believed to be threatening in nature. The caller identified himself as the Complainant.

At 3:35 p.m., on that same date, another 911 call was received. In this call, while the caller did not identify himself before dropping the call, the caller again indicated that he had received a threatening message by way of ‘Snapchat’, following which he indicated that the person was now outside of his home and, “He just pulled a firearm,” and, “Please send help immediately,” before he terminated the call.

As a result of these 911 calls, at 3:37:06 p.m., the first of several units was dispatched to respond to the call for a man with a gun. At 3:45:36 p.m., subject officer (SO) #1 called in stating, “Everyone can slow down. Everyone is 10-4 (all in order). Might be MHA (Mental Health Act).” At 3:47:24 p.m., a report came in to the dispatcher that shots had been fired. The Complainant was thereafter pronounced dead.

A subsequent post-mortem examination revealed that the Complainant had, ‘Taser prong injuries’ to the back of his knees and had been shot four times, with the cause of death being attributed to a ‘penetrating gunshot wound of the right chest’. In addition to the chest wound, which was fatal, the Complainant had received a perforating (through and through) gunshot wound to his left arm and one to his right flank/lower back, as well as a penetrating gunshot wound to his right elbow.

An investigation was immediately launched by SIU investigators, the objective of which was to determine what happened in the intervening two minutes and twenty-eight seconds, between when SO #1 called in that all was in order, and when it was reported that shots had been fired, and to further determine whether the use of lethal force against the Complainant was justified under the law, or if criminal charges were warranted against the police officers who caused the Complainant’s death.

During the course of this investigation, nine civilian and four police witnesses were interviewed; additionally, both police officers who fired their weapons were interviewed and all officers provided their memorandum book notes to the SIU investigators for review. In addition to the eyewitness evidence, the SIU was also aided by the recordings of the 911 calls, as well as the real time narration of events which were recorded on the police transmissions communication recordings as police officers called them in. The following factual synopsis of events has been garnered from an assessment of all of the credible and reliable evidence obtained. There is no dispute as to the facts.


Summary of Events leading up to Shooting of the Complainant


Following the second 911 call from the Complainant, and after several unsuccessful call back attempts by the call taker, a third 911 call was received. In this call, the Complainant clarified that, “There is a guy with a gun,” and, “He’s at the Ford Dealership, I don’t know exactly where but we need the police right now.” The call taker asked the Complainant if he could see the man with the gun and the Complainant replied yes. The call taker asked if the gunman was threatening anyone and the Complainant replied, “Absolutely.” A short time later, the call was again terminated.

As a result, the first HPS unit was dispatched to the area of the Ford Dealership on Upper James Street in the City of Hamilton at 3:37:06 p.m., with several other units being dispatched shortly thereafter.

When the call taker cross-referenced the second and third 911 calls and realized that they were connected with the earlier 911 call at 11:55 a.m., she was able to put the name of the Complainant to the subsequent calls and determined the location of the caller as being at the Complainant’s address, and the dispatched units were re-routed from the Ford dealership to that address.

A call back to the final number from which the Complainant had called, put the call taker in touch with civilian witness (CW) #4, who then handed the phone over to the Complainant, who then spoke with the call taker. When the call taker requested further information about the gunman, the Complainant provided a description of a black 19-year-old male, and then again terminated the call.

The Complainant was described by those who knew him as not suffering from any major mental illness. On the morning of April 3, 2018, however, the Complainant appeared to be paranoid and panicky, believing that he and his family had to urgently move from their home or they would be killed. At 7:47 a.m., the Complainant told his girlfriend, via text message, “Fuck, I want to die.” When asked why, he indicated that he did not even know but that his life was bad.

Witness officer (WO) #2, an HPS officer who was in plain clothes and operating an unmarked Equinox SUV police vehicle, was parked in front of the Metro grocery store at 751 Upper James Street at 3:35 p.m., monitoring his police radio, when he heard a weapons call regarding a man with a gun; the report indicated that the call had come from a complainant on Caledon Avenue, not far from where WO #2 was situated at that time.

WO #2 decided to drive by the area to investigate, as he would not be immediately identifiable as a police officer and might be able to see something. WO #2 drove southbound on Caledon Avenue and observed a marked HPS cruiser with its emergency lights on driving towards him and then pull over to the east side of Caledon Avenue and subsequently entered a driveway on Caledon Avenue. WO #2 then pulled his vehicle over to the west curb of Caledon Avenue, lowered his window, and observed two men standing in the driveway of a residence on Caledon Avenue.

CW #4, in his statement to SIU investigators, indicated that the Complainant, a neighbour, had come to his home at about 3:30 p.m. on April 3, 2018, requesting to use his telephone as the Complainant’s telephone was ‘dead’. The Complainant had told CW #4 that he needed to call the police as someone wanted to shoot him. CW #4 described the Complainant as shaken or scared and he provided his cell phone to the Complainant, who then called 911.

CW #4 was told by the Complainant that a man was in the next parking lot near the car dealership; during the conversation, the Complainant kept scanning the area. At 3:42 p.m., the HPS called CW #4’s cell phone and he handed it over to the Complainant. CW #4 then observed an Equinox SUV motor vehicle driving southbound on Caledon Avenue and stop across the street from their location; a marked HPS police cruiser then pulled up into the second driveway and CW #4 retrieved his phone and told the Complainant that the police had arrived. The Complainant then walked back to his own residence.

WO #1, the first officer to arrive at the address, observed two men standing in a driveway waving at him and he drove his cruiser into the driveway, rolled down his window, and asked them if they had called the police. CW #4 responded and stated that his neighbour, the Complainant, had come to the door and that he had called the police on his behalf. WO #1 then asked the second man if he had the same name as had been provided in the 911 call, and the Complainant agreed that he did. WO #1 made enquiries as to the location of the ‘guy with the gun’, but the Complainant did not respond. WO #1 then observed the arrival of WO #2’s Equinox SUV on the opposite side of the street, and the Complainant indicated that that was the guy with the gun. WO #1 told the Complainant that he would go over and check it out. As WO #1 neared the Equinox, he saw that the driver was holding a police radio and he correctly inferred that he was a police officer.

WO #2, from where he was seated in his unmarked police vehicle, observed WO #1 and the Complainant looking at him, and then saw WO #1 walk toward him, leaving the Complainant behind. WO #2 then exited his vehicle as WO #1 approached, and lifted his coat to reveal his police badge; WO #2 said that he may have also inadvertently revealed his firearm in doing so. WO #2 then asked WO #1 what was going on, and WO #1 told him that the Complainant had identified him, WO #2, as the man with the gun. WO #2 responded that it was not him, as he had arrived just now, for the purpose of assisting the patrol units.

WO #1 then returned to the Complainant, and WO #2 returned to sit in his vehicle.

WO #1 told the Complainant that WO #2 was a police officer and not the man with the gun. While the Complainant did not initially respond, after WO #1 repeated himself, the Complainant then indicated, in a low whispered voice, that the ‘Bloods’ were after him, indicating that he was referring to the ‘Bloods’ street gang. Shortly thereafter, SO #1 arrived, followed moments later by WO #4, WO #3, and SO #2.

A civilian witness, CW #2, observed two marked HPS cruisers in the townhouse complex, as well as a dark-coloured SUV on the west side of Caledon Avenue. Two to three minutes later, CW #2 observed the Complainant running from a laneway on Caledon Avenue towards the SUV. Upon the Complainant’s arrival at WO #2’s SUV, CW #2 observed him to put his hand on the window frame and then raise his right hand, in which he was holding a knife, which she described as being directed toward WO #2, who was seated inside the SUV; WO #2 then rolled up his window. CW #2 indicated that she saw the Complainant holding the knife at shoulder height near the head of WO #2 and she thought that WO #2 was going to be killed.

CW #5, another civilian witness, was driving his van in the area when he observed the four police officers on Caledon Avenue, three of whom were in uniform (WO #4, WO #3, and SO #2), while the fourth, SO #1, was wearing a jacket over his uniform; this jacket was described by other witnesses as being yellow in colour. Since CW #5 did not know what was happening, and as he had his children in the van with him, he stopped his van in the middle of Caledon Avenue and suddenly observed the Complainant appear at the door of WO #2’s Equinox, leaning partially down and into the open window of the SUV. CW #5 then heard the police officers shouting at the Complainant and the Complainant quickly ran away. CW #5 observed that the Complainant had an object in his right hand.

Thirteen-year-old CW #3, who was seated inside her father’s van, saw the Complainant start to run toward WO #2’s Equinox. When the Complainant arrived at the Equinox, CW #3 observed him to briefly try the driver’s door and she saw that he had a knife in his right hand. CW #3 observed the Complainant gesture, in a single downward stabbing motion, toward the driver’s window of the Equinox, following which he ran towards their van; CW #3 saw that the police officers were running after the Complainant at that time. CW #3 observed that three of the four police officers pursuing the Complainant had either their pistols or their CEWs drawn, while the fourth police officer was trying to remove something from his belt.

CW #3 saw the Complainant stop in the middle of the road, to her right, and the police officers also stopped. The Complainant then ran at the police officers, who were surrounding him in a semi-circle. All four police officers had their weapons drawn, and their arms extended at chest level.

CW #3 observed the Complainant approach one of the police officers and position the knife in front of him, following which he took a step or two and lunged at the police officer, as if to stab him in the chest. CW #3 feared that the officer was going to be seriously hurt or killed when she saw the knife blade come within inches of the police officer. Almost immediately, CW #3 saw a flash of light come from an object being held by another police officer, which she thought looked like a gun being fired. CW #3 saw the Complainant take a step to his right and then fall to the ground; as he fell, CW #3 saw the knife that the Complainant had been holding also fall to the ground and another officer approached and stood on it. The female officer, WO #4, then ran to the police cruiser and removed a red bag, returning to where the Complainant was lying on the ground.

CW #2, who had moved from her home to that of a neighbour, observed a police officer with the Complainant, face to face, grab a hold of the Complainant’s upper arms, following which the Complainant broke free and ran into the street while holding a knife in his hand. A second police officer, (WO #1, based on the evidence of other witnesses) was seen and CW #2 could hear the officers saying something, but could not make out the words. CW #2 observed the Complainant about two centimetres from the police officer when the Complainant grabbed the front of the officer’s bullet proof vest and swung his knife over his head as if to stab the officer. CW #2 thought that the officer was going to be stabbed.

CW #2 then saw three or four uniformed police officers, with weapons drawn and pointed at the Complainant, run toward him and surround him.

CW #2 observed one of the police officers deploy his CEW at the Complainant, but it missed its mark and the wires fell into a puddle of water. Shortly thereafter, that same police officer (WO #1), dropped his CEW and reached for his pistol. Almost immediately following the CEW deployment, CW #2 heard a gunshot fired, but he did not see who discharged the firearm. The Complainant then stumbled east and after a brief pause of about 20 seconds, she heard two more gunshots, and the Complainant fell to the ground.

CW #5 observed the Complainant cross to the east side of the street with something held in his hand. CW #5 then saw the police officers appear to surround the Complainant, with one officer (WO #1) standing with a weapon in his hand; he described the officer as being beyond arm’s reach of the Complainant. The Complainant then made a thrusting motion toward the police officer and WO #1 discharged his CEW at the Complainant. CW #5 saw an electric charge or light emitted by the CEW and then saw that the Complainant had been hit, but he remained standing. CW #5 then heard the sound of gunfire and saw the Complainant collapse to the ground. He made note of the time on his car clock as being 3:49 p.m.

CW #4 saw the Complainant run at WO #2, in his Equinox, shouting, “You want to kill me? You want me dead?” Following which he observed the police officers draw their firearms and he heard a CEW being deployed. CW #4 saw that the wires from the CEW reached the middle of Caledon Avenue. The Complainant then ran toward Caledon Avenue, with the police officers chasing him in a “U” formation. The Complainant then turned quickly with something in his hand, and ran at a police officer standing in the street; as the Complainant ran at the officer, he made four or five chopping motions with his right hand. CW #4 heard the police officers yelling at the Complainant, to which the Complainant again yelled, “You want to kill me? You want to me to die?”

CW #4 saw the Complainant then come within three feet of WO #1, at which point he heard four or five gunshots and saw the Complainant walk to the east curb and then collapse on the grass.

I note that all witnesses, with the exception of CW #2, described a series of gunshots in rapid succession, with no pause between, on which basis I find that CW #2 was mistaken about there being a 20 second pause between gunshots and find instead that there was no delay between gunshots, with all occurring rapidly and one after the other, or simultaneously.

I additionally note that CW #2’s observation that the Complainant came within about two centimetres of a police officer when he grabbed the front of the officer’s bullet proof vest and swung his knife over his head as if to stab the officer, is inconsistent with the evidence of all of the other witnesses in its timing, as she has this as occurring prior to WO #1 deploying his CEW, while all other witnesses have it as occurring after WO #1 deployed his CEW and immediately prior to the Complainant being shot.

According to SO #1, he was wearing a yellow police issue fluorescent jacket on April 3, 2018; this accords with the evidence of the other police witnesses, as well as the other CWs. When SO #1 arrived on Caledon Avenue, he saw that WO #1‘s police cruiser was already present, as was WO #2’s unmarked SUV, with WO #2 sitting inside.

SO #1 pulled over, exited his police cruiser, and spoke with WO #1 and then to the Complainant. SO #1 asked the Complainant why he had called police and what the suspect looked like, but the Complainant indicated that he did not know. When asked if the suspect was black or white, the Complainant again indicated that he did not know. The Complainant then pointed to the Equinox SUV and stated, “I think he was with that guy.” SO #1 then took a couple of steps toward the Equinox, at which point he recognized WO #2 as a police officer, and he returned to the Complainant without speaking to WO #2. At that point, SO #1 began to suspect that the Complainant may have some mental health issues, or was emotionally disturbed, but not to such a degree that he had grounds to apprehend him under the Mental Health Act (MHA). [8]

Consequently, SO #1 began to suspect that the report by the Complainant of a man with a gun was not genuine and he broadcast over the radio for other units to slow down. This is confirmed by the radio transmission at 3:45:36 p.m. wherein SO #1 is recorded as saying, “Everyone can slow down. Everyone is 10-4. Might be MHA.” WO #4, SO #2, and WO #3 arrived at the address almost immediately thereafter.

As a result of there having been two separate 911 calls reporting a gun man, SO #1 felt it prudent to try and track down the second caller or any possible witnesses to the alleged incident, and he walked away from the Complainant in order to do so. SO #1 then radioed in requesting if it was possible that the two 911 calls were made by the same caller, or if there were indeed two callers.

This is again confirmed by the communications recording wherein SO #1 is heard to call in moments later and ask, “Any chance both calls came from the same person?” While SO #1 waited for a response back from the dispatcher, he had his back turned to the Complainant. He then heard yelling and screaming and turned to see the Complainant running towards WO #2’s SUV. When the Complainant neared the SUV, SO #1 saw the coil of wires from a CEW coming from his left towards the Complainant, and he heard someone yell, “Knife!”

WO #2, from inside his SUV, heard a police officer over the radio indicating that everything was okay and no more units were required on the call. Approximately one minute later, WO #2 suddenly heard someone yell, “Drop the knife!” and saw the Complainant running at his vehicle with a knife in his right hand, and his arm extended out in front of him. WO #2, whose access to his firearm was restricted because of his coat, could not get to his firearm quickly enough, so he closed his window and locked his doors, following which the Complainant suddenly stopped running. WO #2 indicated that he feared for his life from the Complainant, at that point, and had he been able to access his firearm, he would have done so in order to defend himself. WO #2 continued to hear police officers behind the Complainant yelling at him to drop the knife and he looked out his window and saw two or three uniformed officers chasing after the Complainant. WO #2 then called in to the dispatcher and reported that the Complainant had a knife and that officers were in a foot pursuit.

This evidence is confirmed by the police transmissions recording, wherein an unknown police officer is recorded as calling in, “He’s holding a knife, he’s holding a knife!”, immediately followed by a transmission from WO #2, in which he states, “Yeah, he’s pulled a knife and they are on foot pursuit now.”

WO #2 then reached behind him in his police vehicle for his tactical vest, at which time he heard the crackling sounds of a CEW and he looked into his side-view mirror and saw the Complainant standing some 15 to 20 metres north of his Equinox; since the Complainant was still standing, WO #2 surmised that the CEW must not have been effective. WO #2 then observed the Complainant face east with the knife extended in front of him and that the police officers had created a semi-circle around the Complainant and were yelling at him to drop the knife.

WO #2 then saw the Complainant charge at a police officer, who was unknown to him, standing a few feet away and it appeared to WO #2 that the knife was going to make contact with the officer. He then immediately heard three or four gunshots in rapid succession and the Complainant stopped, took a step or two, and then fell to the ground. At that point, WO #2 reported over his police radio, “Shots fired, subject down!” and asked the EMS to attend.

This is confirmed by the radio transmission recording wherein WO #2 is heard to report, 11 seconds after he had reported that the Complainant had a knife and the officers were in foot pursuit, “Shots fired, shots fired! We are going to need an ambulance here,” to which the dispatcher responds, “Shots fired. Require an ambulance,” and WO #2 adds, “Looks like the subject is down, all the officers look to be okay.”


The Police Response


While the police officers were asking the Complainant for more information about the alleged gunman, WO #1 observed the Complainant to walk into the middle of the street, where he reached into his back pant pocket and pulled out a knife. The Complainant then began to pace and stare at the police officers, suddenly shouting out, “Shoot me! Shoot me!”, as he held the knife above his head. The Complainant then walked in the direction of WO #2’s SUV, swinging his knife at the SUV as he neared, while WO #2 closed his window. At that point, WO #1 drew his CEW and deployed it at the Complainant’s back, but it appeared to have no effect and the Complainant then walked away.

Upon the arrival of SO #2 and his partner, WO #3, at the townhouse complex, SO #2 saw the Complainant standing behind SO #1, WO #4, and WO #1, who had their backs to the Complainant. As soon as SO #2 exited his cruiser, he observed the Complainant raise a knife, which he was holding in his right hand, over his head. At that point, SO #2 thought that the Complainant was going to stab SO #1 in the back or neck and he immediately yelled, “Knife! Knife! Knife!” to warn the other officers. The Complainant then ran to WO #2’s Equinox, while SO #2 yelled to WO #2 to put up his window. SO #2 feared that the Complainant was going to stab WO #2, but WO #2 managed to get his window closed. From a distance of approximately 50 feet, SO #2 observed the Complainant to either stab or punch the driver’s door window of WO #2’s vehicle.

When SO #2 observed that other officers had their CEWs drawn, that the Complainant was now moving toward WO #1 with the knife still in his right hand and over his head, and that the Complainant had closed the distance between himself and WO #1 to approximately ten feet, he decided that he should have a lethal use of force option available in the event that the CEWs were not effective in stopping the Complainant.

WO #1 then removed the expended cartridge in his CEW and replaced it with a new one, while following the Complainant from the opposite side of the street. When WO #1 saw the Complainant stop at a nearby Pontiac motor vehicle, he observed the Complainant suddenly charge at him (WO #1) with the knife raised and held in his right hand. WO #1 then deployed his CEW a second time and, despite the probes appearing to make contact with the Complainant, it again had no effect on the Complainant, who continued to charge at WO #1.

SO #1 had his back turned to the Complainant while he waited to hear back from the dispatcher about the origin of the two 911 calls alleging a gunman, when he heard police officers shouting at the Complainant and was shocked at how the situation had escalated. While he had found in speaking to the Complainant that his responses were strange, he had not considered the Complainant as being a danger or that anyone’s safety was at risk.

SO #1 then heard the cocking of CEWs and saw the Complainant running with the knife in his hand, held up high by the right side of his head with the blade pointed downward. SO #1 observed that the Complainant was running in the direction of a nearby school and he attempted to broadcast over the radio that the Complainant was armed with a knife, but he couldn’t get through; shortly thereafter, he heard WO #2 broadcast the same information over the radio.

While SO #1 was running north on the east side of the street, he observed WO #1 ahead of him running in the same direction, with WO #4, SO #2, and WO #3 following him. When the Complainant got to the front of a line of parked cars, he wheeled around and ran onto the roadway toward WO #1, with WO #1 trying to retreat away from the Complainant, while trying to insert a cartridge into his CEW. The Complainant was yelling and screaming, while charging at WO #1 with the knife in his right hand above his head.

SO #2 heard the clicking sound of a CEW and saw the wires, but could not see which police officer had deployed it, and immediately observed that the deployment had been ineffective. SO #2 described the Complainant as being fixated on WO #1, as he continued to close the distance between them to about three feet.

As the Complainant continued to charge at WO #1, WO #1 retreated backwards to create distance between himself and the Complainant and WO #1 frankly indicated that he feared for his life at that moment, and he therefore tried to access his firearm. While he was trying to draw his firearm, however, the Complainant managed to come within one foot of WO #1 and WO #1 felt him make contact with his right arm. WO #1 then saw the knife above the Complainant’s head, whereupon he also immediately heard four or five gunshots coming from his left side. WO #1 then stepped back as the Complainant fell to the ground.

SO #1 observed WO #1 to look very scared and SO #1 was afraid that the Complainant was only moments away from driving the knife into WO #1’s neck and killing him, or causing him serious bodily harm. SO #1 went to reach for his CEW and then looked around and saw that some of the other police officers already had their CEWs in hand, and he felt he had to draw his pistol, which he then pointed at the Complainant.

As the Complainant closed the distance between himself and WO #1, SO #1 looked down the barrel of his pistol and found that WO #4 was in his line of fire. As a result, he took a step to his left and shouted, “Police, don’t move!” SO #1 observed that the Complainant was very close to WO #1 at that point, but he was confident that if he discharged his firearm, he would not strike WO #1.

SO #1 observed the Complainant, who was at that point within three feet of WO #1, almost place his left hand on WO #1, at which point SO #1 discharged his firearm. SO #1 could not say how often he fired, but indicated that he did so until the threat was over. The Complainant then dropped to the ground and tried to get back up, whereupon SO #1 discharged his last shot.

SO #2 feared that the Complainant was going to stab WO #1 and, as both the CEW and verbal commands to the Complainant to drop the knife had been ineffective, SO #2 determined that he had no other choice but to resort to lethal force. SO #2 then discharged his firearm and fired two to four shots at the Complainant, who remained standing. The Complainant then stumbled past WO #1, tripped over the curb, and fell to the ground. While SO #2 was discharging his firearm, he was aware that another firearm was being simultaneously discharged from his right side, which he assumed was coming from SO #1. Once on the ground, SO #2 saw that the Complainant, while not getting up, still had the knife in his hand and he removed it and placed it out of reach.

WO #3, who observed the Complainant closing the distance between himself and WO #1, with his chest making contact with WO #1’s arm, while WO #1 was trying to retreat, saw the Complainant holding the knife over his head as if to stab WO #1 in the head. WO #3, who had his firearm drawn, was prepared to shoot the Complainant in fear of WO #1’s life, but WO #1 was in his line of fire and he therefore was unable to do so. Within one to two seconds of the Complainant making contact with WO #1’s arm, WO #3 heard two shots in succession fired from his right side; when he looked in that direction, after the Complainant had fallen, he saw SO #1 with his pistol still pointed at the Complainant and, from the shocked look on his face, he inferred that it was SO #1 who had discharged his firearm.

While WO #3 did not see anyone else with their firearm drawn, SO #2 later told him that he had shot the Complainant.

Like WO #1, WO #4 had also drawn her CEW, which she first attempted to deploy when the Complainant was running in WO #1’s direction, but her CEW was not activated and it was unable to deploy. After WO #1 had deployed his CEW the second time, WO #4 then turned on her CEW and discharged it at the Complainant as he ran past her, while she simultaneously heard three quick pops, which she quickly realized were gunshots coming from the direction of where SO #1 was standing holding his gun. WO #4 observed a probe for a CEW in the back of the Complainant’s calf and she continued to keep her finger on the trigger of her CEW until the Complainant stopped running, following which he dropped the knife in his hand.

WO #4 was also later told by SO #2 that he had discharged his firearm and that he had done so because the Complainant had tried to stab WO #1.

On all of the evidence, both from civilian witnesses and police officers, then, there is no disagreement that the Complainant was armed with a knife and that he initially charged at WO #2 with that knife. That attack was thwarted by WO #2 when he closed his window and locked his doors. It is important to note, however, that WO #2 was clear that he feared for his life when the Complainant was running at him with the knife and, had he been able to access his firearm, he would have used it to defend himself.

Like WO #2, civilian witness CW #2 also feared that the Complainant was going to kill WO #2 when she saw him holding the knife at shoulder height near the head of WO #2.

Thereafter, despite numerous demands by the police for the Complainant to drop the knife and stop, and despite three ineffective deployments of a CEW (two by WO #1 and one by WO #4), the Complainant, apparently fixated on WO #1, charged at WO #1 while holding the knife over his head, blade forward and down. WO #1, in turn, attempted to retreat and to put some distance between himself and the Complainant, but was unable to do so with the Complainant coming into contact with his body. Like WO #2, WO #1 indicated that he feared for his life and he was attempting to draw his firearm, but was unable to do so.

WO #3, who indicated that he too feared for the life of WO #1 and thought that the Complainant was going to stab WO #1 in the head, was successful in drawing his firearm and was of the view that lethal force was called for in order to save the life of WO #1, but he did not discharge his firearm because WO #1 was between himself and the Complainant.

SO #1 indicated that he feared that the Complainant was only moments away from driving his knife into the neck of WO #1, and causing him serious bodily harm, if not death, as a result of which he discharged his firearm when the Complainant was in very close proximity to WO #1, but he was confident that he could do so without striking WO #1.

SO #2 drew his firearm, when he observed other officers with their CEWs drawn, out of an abundance of caution in case the CEWs were not effective. SO #2 indicated that after repeated instructions to drop the knife were ignored by the Complainant, and there had been three ineffective deployments of CEWs, he surmised that his only option was to resort to a lethal use of force. When the Complainant then closed the distance between himself and WO #1 to within three feet, and SO #2 feared that the Complainant was going to successfully stab WO #1, he too discharged his firearm.

In addition to the commonly held fear by the four police officers present that WO #1’s life was in danger from the Complainant, I note that at least two of the civilian witnesses voiced that same fear, with CW #3 indicating that she feared that the officer was going to be seriously hurt or killed when she saw the knife blade come within inches him, and CW #2 indicating that she thought that the officer was going to be stabbed.


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 firearms at the Complainant amounted to an excessive use of force in these circumstances and provides reasonable grounds for the laying of criminal charges against both police officers 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 the two subject officers 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 in the circumstances. Furthermore, pursuant to subsection 3, since death was caused, it must also be established that both subject officers discharged their firearms believing on reasonable grounds that it was necessary in order to preserve themselves, or others, specifically WO #1, from death or grievous bodily harm.

Turning first to the lawfulness of the attempted apprehension of the Complainant, it is clear from the observations of all witnesses, both civilian and police, that there were reasonable grounds to believe that the Complainant was in possession of a weapon dangerous to the public peace, contrary to s. 88 of the Criminal Code, in that he brandished that weapon and charged at WO #2 with what appeared to be an obvious intention to do him harm. As such, I am satisfied that the pursuit and apprehension of the Complainant was legally justified in the circumstances.

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 (or another person)

(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 WO #1 was 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 them 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 statements of SO #1 and SO #2 that they each believed that WO #1 was at risk of death or grievous bodily harm at the time that they discharged their firearms. They each based that belief on their observations at the time that the Complainant was quickly advancing on WO #1 with a knife in hand, that the Complainant refused either to stop or to drop his weapon when repeatedly directed by officers to do so, and that the three previous deployments of a CEW had been ineffective, leaving only one option by which to effectively stop the Complainant attacking WO #1, that being the resort to lethal force.

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

In considering the reasonableness of the actions of both officers in discharging their firearms and whether or not they considered the use of less lethal use of force options before resorting to those firearms, I note that each officer considered that other officers had their CEWs drawn and that a CEW had been ineffectively deployed on at least one occasion, that the Complainant had not heeded any directions to drop his knife, and that the Complainant had already closed the gap between himself and WO #1 and a knife attack was imminent. With each of WO #1 and WO #4 already having resorted to the only other less lethal use of force options available to stop the Complainant, each of which had proven ineffective, the only remaining option at the disposal of these officers was to resort to their firearms. On that basis, it is clear that each of SO #1 and SO #2, in the brief seconds after WO #1 had deployed his CEW for the second time, and while the Complainant was quickly advancing upon WO #1 with a deadly weapon, appear to have considered all of their available options before discharging their firearms.

With respect to whether or not there were objectively reasonable grounds to believe that the life of WO #1 was at risk, one need only refer to the evidence of: CW #3, who indicated that she feared that WO #1 was going to be seriously hurt or killed when she saw the Complainant bring the knife blade within inches of him; CW #2, who indicated that she thought that the officer was going to be stabbed by the Complainant; WO #3, who indicated that he too feared for the life of WO #1 and thought that the Complainant was going to stab WO #1 in the head; and finally, WO #1, who frankly indicated that he feared for his life when the Complainant closed the gap between them while holding the knife above his head.

Finally, I note that in addition to the beliefs of SO #1 and SO #2 that there was a need to resort to a lethal use of force in order to save the life of WO #1, each of WO #2, WO #3, and WO #1 equally believed that a resort to a lethal use of force was the only option left open to them, and that they each would have resorted to that option, but for various reasons, each of these three officers was either unable to access their firearm, or unable to take a shot without endangering others.

The law relating to the use of force intended to cause death or grievous bodily harm establishes that when one believes on reasonable grounds that it is necessary in order to defend another from death or grievous bodily harm, then one is justified in using lethal force to stop that threat. Having reviewed the evidence, I find in all the circumstances that both SO #1 and SO #2 reasonably believed that the life of WO #1 was in danger from the Complainant and their actions, in firing upon the Complainant, were therefore justified. I find that it would have been foolish and reckless for either of these officers to risk the life of their colleague by waiting for the Complainant, who had knife in hand, was rapidly closing the gap between himself and WO #1, and had the knife poised above his head as if to stab WO #1 in the neck, to actually stab WO #1, thereby putting WO #1 at immediate risk of serious injury or death. I further find that that risk was not one that any of the officers ought to have had to take when faced with a knife yielding man and the imminent death or serious bodily harm of one of their fellow officers.

I find, therefore, on this record, that the shots that were fired by both SO #1 and SO #2, one of which struck and killed the Complainant, were justified pursuant to ss. 25 (1) and (3) of the Criminal Code and that each officer, in preserving WO #1 from death or grievous bodily harm at the hands of the Complainant, used no more force than was necessary to affect their lawful purpose. As such, I am therefore satisfied on reasonable grounds on this record that the actions resorted to by these two officers, 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 and none shall issue.


Date: March 6, 2019


Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) The distance between the Complainant and the officers firing their weapons, at the time that the Complainant was shot, could not be determined by the CFS. [Back to text]
  • 10) While Chartier sets out the legislation as it relates to self-defence only, the actual section, s. 34 (1), specifies that it applies not only to self-defence, but to defence of another person, which would apply on these facts. (See current legislation, s. 34 (1) and (2) as set out under Relevant Legislation above). [Back to text]
  • 2) Prior to SIU attending the scene, HPS had erected a tent to preserve the evidence from the elements. [Back to text]
  • 3) A WIN 40 S&W cartridge case was located on the west side of the road and in front of the curb and south of Vehicle #8; a second WIN 40 S&W cartridge case was located on the west side of the road and in front of the curb and south of Vehicle #8; a third WIN 40 S&W cartridge case was located on the east sidewalk near the driveway to unit #A4; a fourth WIN 40 S&W cartridge case was located on the driveway to units #A4 andA5; and. a fifth WIN 40 S&W cartridge case was located on the east sidewalk south of the driveway to unit #A5. [Back to text]
  • 4) The random match probability is an estimation of the probability that a randomly selected individual unrelated to the person in question would coincidentally share the observed DNA profile. [Back to text]
  • 5) The distance between the Complainant and the officers firing their weapons, at the time that the Complainant was shot, could not be determined by the CFS. [Back to text]
  • 6) Tetrahydrocannabinol (THC) is the principal psychoactive constituent of cannabis products such as marijuana and hashish. Carboxytetrahydrocannabinol is an inactive metabolite of THC [Back to text]
  • 7) The third 911 call from the Complainant had originated from CW #4’s cell phone. [Back to text]
  • 8) Section 17 of the MHA only allows a police officer to apprehend someone if they are a danger to themselves or others or they are incapable of caring for themselves and it would be dangerous to proceed by way of obtaining a warrant from a Justice of the Peace first, prior to apprehending the party. [Back to text]
  • 9) It was initially believed that there were two different callers in the calls originating at 3:35 p.m. and thereafter, because the first call came from the Complainant’s cell phone, while the Complainant used CW #4’s cell phone to make the second call. [Back to text]