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SIU Director’s Report - Case # 18-OFI-146

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 a serious injury sustained by 29-year-old male on May 18, 2018, during an interaction with the Niagara Regional Police Service (NRPS).

The Investigation

Notification of the SIU

On May 18, 2018, at 8:29 p.m. the NRPS reported a firearms injury. The NRPS reported that on May 18, 2018, at about 7:55 p.m., NRPS police officers responded to a knife call at Niagara Health – Douglas Memorial Hospital (DMH) in Fort Erie. When police officers arrived they saw that civilian witness (CW) #1 was suffering from knife wounds. The Complainant approached the police officers and, after a confrontation, the Subject Officer (SO) fired a single shot striking the Complainant in the abdomen.

The Complainant and the CW #1 were transported to the Erie County Medical Centre (ECMC) in Buffalo, New York, USA.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 3

Complainant:

29-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
CW #10 Interviewed 

Witness Officers

WO Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Incident Narrative


On May 18, 2018, at 5:43 p.m., the Complainant was brought by Emergency Medical Services (EMS) to Douglas Memorial Hospital (DMH)’s Urgent Care Centre in Fort Erie. The Complainant’s mental health was deteriorating and he was hearing voices. CW #1 was another patient at DMH and, at 7:55 p.m., the Complainant entered CW #1’s room and stabbed him with a large hunting knife. Hospital staff fled the room and patients in the waiting room were directed to leave. The Complainant proceeded to roam the hospital’s hallways with a large knife in his hands. 

Multiple hospital patients and staff called 911 and the SO and the Witness Officer (WO) responded. The officers entered the hospital at 7:58:34 p.m. and walked through the hospital’s hallways. At 7:58:49 p.m., the officers reached the area where two hallways intersected and the SO spotted the Complainant standing down a hallway with a knife. The SO raised his service handgun and told the Complainant to drop the knife, but the Complainant ignored the SO’s commands and started to charge at him with the knife still in his hands. The Complainant got to within ten feet or less of the SO before the SO discharged his firearm, striking the Complainant once in the abdomen. The Complainant dropped the knife immediately and fell the floor. The SO handcuffed him on the ground.

The EMS arrived and transported both the Complainant and CW #1 to ECMC in Buffalo, New York, for treatment.


Nature of Injuries

The Complainant sustained a single gunshot wound to the left side of his abdomen. At ECMC, he underwent several surgical procedures and a bullet was removed from his abdomen.

Evidence

The Scene

The scene was a hallway just inside the doors of the DMH Urgent Care Centre. The hallway was to the right as you enter the front sliding doors and there were two doors off the hallway to the right. 

The hallway in DMH's Urgent Care Centre where the incident occurred. The hallway to the left is where the SO first saw the Complainant standing.

The first room was a treatment room with two beds inside the room. The bed nearest the door had bloody sheets on the bed and bloody clothing on the floor. There were bloodstains on the floor around the bed farthest from the door.

The second room had a single bed. There was a backpack and sleeping bag on the floor near the bed.

Just outside this room there was a wallet with papers and a cell phone on the floor. Across the hall from this door there was a black hooded sweatshirt on the floor. Just north of this area along the hallway there was a knife on the floor and further north there was a cartridge case on the floor.

The knife recovered from the scene.

Scene Diagram

Scene diagram

Expert Evidence

Five items were taken from the scene by SIU investigators and were submitted to the Centre for Forensic Sciences (CFS) for analysis. Item #1 was a fired cartridge case. Item #2 was unfired cartridge cases and a detachable cartridge magazine. Item #3 was a Glock 22 pistol. Item #4 was a black t-shirt in two pieces. Item #5 was a fired bullet. The SIU requested a firearms distance determination, a chemistry gunshot residue (GSR) assessment and a firearms analysis. 

The purpose of the examination was to determine whether the Glock pistol could be identified or eliminated as having fired the cartridge case or the bullet, to determine the trigger pull of the Glock pistol, and to examine the t-shirt to determine whether or not firearms discharge residues were present and if found determine the muzzle to target distance at the time of firing.

The CFS results were received by the SIU on March 11, 2019. The CFS concluded that the Glock pistol was identified within the limit of practical certainty [1] as having fired the cartridge case. The Glock pistol could neither be identified nor eliminated as having fired the bullet. The bullet was of no identification value. The trigger pull weight for the Glock pistol ranged between 9.43 -10.00 lbs. The average trigger pull was 9.78 lbs. Lastly, there was no discharge residue on the t-shirt, thus no distance determination examinations were conducted.

Communications Recordings

On May 18, 2018, four 911 calls were made to NRPS between 7:55 p.m. and 8:06 p.m. related to this incident.

The first 911 call occurred at 7:55 p.m. The caller [believed to be CW #3] reported that she was hiding under a desk in the hospital and that:
  • “We have a mental health patient. He has a knife and he is attacking a doctor. Please come right away.”
  • “It’s [the Complainant] … He called 911 earlier. He was living in the bush and EMS brought him here … I think it’s a hunting knife.”
  • “There was a shot fired” (a gunshot and screaming were heard in the background four minutes and 44 seconds into the call).
  • Police officers were “telling him to lay down. I don’t think they have got him totally under control yet … he’s on the floor apparently.” (A hospital public address message “one stabbed victim” was heard in the background).

The second 911 call occurred at 7:56 p.m. The caller [believed to be CW #7] reported that she was locked in a room. She said:
  • A patient stabbed another patient with a knife.
  • It was a “good 10 inch knife, like a hunting knife.”
  • She did not think he had a gun.
  • The police were there and someone was telling him to lie on the ground.
  • (Male screaming and moaning was heard in the background of the call. A female voice was also heard stating that they, “have a shot victim on the floor and he stabbed another one of our patients. Please send ambulance as quick as you can.”)

The third 911 call was from CW #8 and occurred at 7:58 p.m. CW #8 reported that she and her father were at DMH, heard screaming and locked themselves in a room. CW #8 said:
  • She heard someone say, “I know you said you were going to kill me.”
  • There was a gunshot and men yelling. She thought it was the police.
  • Men were saying, “Get down, get down,” “on your stomach.”
  • She was just talking to the Complainant, who she knew from school, in the hallway.
  • The Complainant told her he was living in the woods and he had a tick bite, infection and his “mental health was really off.”
  • The Complainant told her he was hearing voices telling him things. That he said the voices were not in his head but actual humans were saying things.
  • The Complainant said he was really anxious.
  • She asked him if he had spoken with a therapist and he said no. She told the Complainant that St. Joe’s Mental Health Hospital in Hamilton has a great anxiety clinic, but he was not interested.
  • The Complainant told her “there will be like nothing beyond today.” She asked him what he meant and he said “well I’m not going to kill myself.”

The fourth 911 call occurred at 8:04 p.m. The caller reported that an ambulance was required at DMH.

Video/Audio/Photographic Evidence

CCTV from DMH (No Audio)

  • At 5:43:15 p.m., the Complainant arrived through the Urgent Care sliding doors and followed EMS. The Complainant carried two large duffle bags and followed the EMS past the waiting room and walked off camera.
  • At 5:59:00 p.m., the Complainant was observed to wander around the hallways of the DMH Urgent Care Centre until 7:07:40 p.m.
  • At 7:07:40 p.m., the Complainant was back in the hallway with his hooded sweater back on. It appeared that the Complainant fiddled with a “flip” knife, opened and closed it rapidly while he peered into the room of CW #1. The Complainant continued to pace the hallways.
  • At 7:39:09 p.m., the Complainant and CW #8 began conversing across the hallway from the waiting room. CW #8 eventually walked up to the Complainant and began a conversation standing in the hallway opposite the nursing station.
  • At 7:48:25 p.m., staff came out and spoke with CW #8 and the Complainant moved back down the hall. The Complainant began to pace the hallway again up towards the sliding door entrance.
  • At 7:49:10 p.m., CW #8 left the Complainant and he continued to pace the hallways.
  • At 7:55:24 p.m., the Complainant is seen to enter CW #1’s room. At 7:55:34 p.m., CW #7 left the nursing station and ran towards CW #1’s room. CW #7 and CW #4 were seen fleeing from the room into the nursing station and down the hall.
  • At 7:55:58 p.m., the Complainant left CW #1’s room with what appeared to be a knife in his right hand, blade held in a downward position. The Complainant began to pace the patient hallway up towards the nursing station and back. The Complainant appeared to be yelling at someone in the direction of CW #1’s room and hand gesturing. At 7:56:16 p.m., the Complainant gestured to other patrons nearby to leave the area and directed them towards the sliding door entrance.
  • At 7:56:29 p.m., the Complainant began patrolling the hallways and corridors around the nursing station carrying a large knife in his right hand. The handle was in the Complainant’s hand and the blade was facing down and towards the rear.
  • At 7:58:34 p.m., two NRPS police officers, now known to be the SO and the WO, arrived through the front sliding doors and cautiously made their way down the hall towards the patient hallway, where the Complainant was located.
  • At 7:58:49 p.m., the SO walked down the hallway to the corner of the nursing station and saw the Complainant for the first time. The SO began giving the Complainant verbal direction and drew his pistol with his right hand. The Complainant walked aggressively towards the SO. After approximately four steps, the Complainant began to run towards the SO. After three or four steps, the Complainant closed in on the SO who backed away.
  • At 7:58:55 p.m., it appeared the Complainant had been shot at least once by the SO because the Complainant bent forward. The WO was seen giving verbal commands to the Complainant.
  • At 8:00:52 p.m., the WO indicated to hospital staff that they could attend to CW #1. CW #7 and CW #9 made their way over towards CW #1 and the Complainant. CW #4 followed closely behind and assisted CW #7 with CW #1.
  • At 8:02:18 p.m., a white female NRPS police officer arrived, by the emergency entrance.
  • At 8:02:55 p.m., staff moved CW #1 out of the doorway of his room and assisted him onto a stretcher. CW #1 was taken into a room for treatment. The Complainant was seen laying on the floor on his right side.
  • At 8:06:01 p.m., the EMS arrived and attended to the Complainant.
  • At 8:14:45 p.m., the EMS removed the Complainant from the scene, through the sliding doors, with a police escort.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the NRPS:
  • CAD Detailed Call Summary;
  • List of Involved Officers and Roles and Witness List;
  • List of Witnesses provided by NRPS;
  • NICE Inform Reconstruction Table - Radio Transmissions;
  • NRPS Communication Recordings;
  • NRPS Exhibit List;
  • NRPS Interview Summaries of CW #1, CW #5, CW #6 and CW #7;
  • NRPS Request for Communication Recordings;
  • Occurrence History;
  • Prosecution Summary – the Complainant (x2); and
  • Recording from Master Logger.

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

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

Analysis and Director's Decision

On May 18, 2018, the Complainant was shot once in the abdomen by the Subject Officer (SO) of the Niagara Regional Police Service (NRPS) after he stabbed a patient at Douglas Memorial Hospital (DMH) in Fort Erie. The recording from DMH’s closed circuit television (CCTV) shows that the Complainant charged at the SO while holding a large hunting knife. The SO discharged his firearm once at the Complainant, striking him in the abdomen. The Complainant immediately dropped his knife and fell to the ground. He was eventually transported to Erie County Medical Centre (ECMC) in Buffalo, New York, where he received multiple surgeries for his injuries.

The SIU’s investigation consisted of interviews with the Complainant, the SO, the Witness Officer (WO) and ten civilian witnesses. The SIU also received the NRPS’s communication recordings and DMH’s CCTV. This evidence was almost entirely consistent and clearly established that the SO’s use of force was not excessive in the circumstances. Thus, for the following reasons, I am unable to form reasonable grounds to believe the SO committed a criminal offence in relation to this incident.

On May 18, 2018, the Complainant called for the EMS to take him to the hospital. The Complainant had been living in the woods and, on the day of the incident, his mental health had deteriorated and he was hearing voices.

DMH’s CCTV captured the Complainant wandering around the hallway from 5:59 p.m. to 7:55 p.m. At 7:07 p.m., he appeared to be fiddling with a knife and looked into CW #1’s room. At 7:39 p.m., the Complainant spoke with civilian witness (CW) #8 in the hallway for approximately ten minutes. CW #8 later told a 911 dispatcher that she knew the Complainant from school. He told her that he had mental health issues and she recommended a program in Hamilton to him. The Complainant reportedly said something akin to nothing will matter beyond today. CW #8 asked him what he meant and he replied, “Well I am not going to kill myself.” At 7:48 p.m., CW #8 ended her conversation with the Complainant and was directed to a room by medical staff. At 7:55 p.m., the Complainant entered CW #1’s room.

It is not disputed that once he entered his room the Complainant stabbed CW #1. The stabbing was reportedly seen by multiple witnesses and the CCTV captured medical staff fleeing from CW #1’s room.

After the stabbing, four people at DMH called 911 to report that the Complainant had stabbed CW #1 with a knife. Patients in the waiting room were directed to leave the hospital, and the CCTV showed hospital staff running and locking themselves in rooms. The Complainant left CW #1 room and began to pace the hallway. He had a knife in his hand, appeared to be yelling and then directed someone out of the hospital. The Complainant continued pacing in the hallways of DMH with a large hunting knife in his right hand with its blade facing down and towards the rear.

At 7:56 p.m., the SO was dispatched to the Urgent Care Centre at DMH. While en route, he learned that the Complainant was armed with a knife and medical staff were hiding from him. The SO arrived at DMH at the same time as the WO and, before they entered the hospital, they learned that someone at DMH had been stabbed.
The SO and the WO entered the hospital and saw CW #1 lying in the hallway. CW #1 was bleeding significantly from his chest and the officers moved towards him, with the SO in front of the WO. The CCTV shows that, at 7:58:49 p.m., the SO reached a place where two hallways met and saw the Complainant several feet away with a large hunting knife in his hand. The SO pointed his firearm at him and yelled, “Police, don’t move.” The WO moved into the hallway and the two officers yelled, “Drop the knife. Drop the knife.” The CCTV clearly captured the Complainant ignoring the officers’ commands and moving in the SO’s direction, taking a few steps before charging towards the SO. The Complainant held a large knife in his right hand, pointed downwards, and swung his arms rapidly as he charged towards the SO. The SO backed away so he was outside of the CCTV camera’s field of view and, at 7:58:55 p.m., it appeared as if the Complainant had been shot in the stomach.

It is clear that the SO shot the Complainant once in the stomach when the Complainant was about ten feet away from the SO. [2] The Complainant immediately fell to the ground and was no longer visible on the CCTV. The SO and the WO said that, at this point, the Complainant had dropped the knife. The officers commanded the Complainant to get on his stomach on the ground and he complied. The SO handcuffed the Complainant with his hands behind his back while the WO provided cover. [3] When the Complainant was secured, medical staff attended to both the Complainant and CW #1. Ambulances arrived and they were both transported to ECMC for medical treatment.

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

(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 preservation of any one under that person’s protection from death or grievous bodily harm.

As such, in order for the SO to qualify for protection from prosecution under section 25, it must be established that he was in the execution of a lawful duty, that he was acting on reasonable grounds, and that he used no more force than was necessary. Furthermore, because the SO used force likely to cause death or grievous bodily injury when he shot the Complainant, subsection 3 imposes the additional requirement that he believe on reasonable grounds that this force was necessary in order to preserve himself or another person from death or grievous bodily harm.

It is clear that the SO was acting in accordance with a lawful duty when he responded to a 911 call reporting that the Complainant was armed with a knife at a hospital and had stabbed someone. Upon hearing the report, witnessing CW #1 bleeding and observing the Complainant with a knife, the SO clearly had reasonable grounds to arrest the Complainant for, at the very least, assaulting the Complainant with a weapon contrary to section 267(a) of the Criminal Code and thereby causing him bodily harm (contrary to section 267(b) of the Criminal Code). In addition, the SO was also acting in accordance with a common law duty to protect life by responding to a call for help and trying to assist CW #1 (see R. v. Godoy, [1999] 1 S.C.R. 311). I am accordingly satisfied that the SO was acting in accordance with his lawful duties when he encountered and arrested the Complainant.

With respect to the other requirements pursuant to sections 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
(a) (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.

Further, the court sets out a number of other legal principles gleaned from the legal precedents cited, including the following:

(a) Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event.
(b) "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver).
(c) Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances.
(d) "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.).

On the basis of the foregoing principles of law, I must accordingly determine whether:
(1) The SO subjectively believed that it was necessary to discharge his firearm because he was at risk of death or grievous bodily harm from the Complainant; and
(2) Whether that belief was objectively reasonable, or, in other words, whether his actions would be considered reasonable by an objective bystander who had all of the information available to the SO at the time that he discharged his firearm.

After a consideration of all of the evidence, I have no hesitation in answering yes to both of the above questions. The SO believed he was going to die when he saw the Complainant charging at him with a knife and felt he had no other option than to discharge his firearm. This belief was clearly reasonable in the circumstances. The knife was a large hunting-style knife with a wide, five to six inch blade that was capable of inflicting serious bodily harm. The SO was aware that the Complainant had just used the knife to stab someone else. It was similarly clear that the Complainant was not going to voluntarily stop charging at the SO because the SO issued commands for him to stop and drop the weapon, but the Complainant ignored him. The SO tried to back away from the Complainant, but the Complainant got to within ten feet or less of the SO before the SO discharged his firearm. [4] In these circumstances, I am satisfied that any objective bystander in the SO’s situation would believe that his or her life were at risk. I am similarly satisfied that any objective bystander would believe that discharging a firearm was reasonably necessary to stop that risk. Only six seconds elapsed between the moment the SO discovered the Complainant in the hallway and the moment the SO shot him. During this very brief time, the SO had no opportunity to reassess his circumstances and consider if lesser use-of-force options were available to him. Discharging his firearm was the only option the SO had to reasonably protect himself and was necessary and justified in the circumstances.

Having carefully reviewed the relevant law and the record, I am satisfied that the SO’s use of force fell clearly within the limits prescribed by criminal law. The SO was at risk of grievous bodily injury or death and it was reasonably necessary for him shoot the Complainant to protect himself. As such, the SO’s actions fell within the protection afforded by section 25 of the Criminal Code. [5] I therefore have no reasonable grounds to believe the SO committed a criminal offence and the file will be closed.


Date: March 22, 2019

Original signed by


Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) Practical certainty - Since it is not possible to collect and examine samples of all firearms, it is not possible to make an identification with absolute certainty. However all scientific research and testing to date and the continuous inability to disprove the principles of toolmark analysis have demonstrated that firearms produce unique, identifiable characteristics which allow examiners to reliably make identifications. [Back to text]
  • 2) The SO said he was ten feet away, but the WO believed the Complainant was only six feet away from the SO when the SO shot him. [Back to text]
  • 3) The CCTV depicts the WO pointing his firearm downwards toward the Complainant at this point. [Back to text]
  • 4) The results from the CFS which the SIU received on March 11, 2019, determined that the cartridge case found at the scene came from the SO’s gun. However, as no discharge residue was found on the Complainant’s T-shirt, a distance determination could not be made. [Back to text]
  • 5) The SO’s actions would also constitute self-defence pursuant to s. 34 of the Criminal Code. [Back to text]