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SIU Director’s Report - Case # 18-OOD-130

Contents:

News Releases for this Case:

French:

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the death of a 19-year-old man (the Complainant) who was shot by an unidentified party on December 2, 2017.

The Investigation

Notification of the SIU

On December 5, 2017, the SIU received a media report about a shooting that occurred in Hamilton on December 2, 2017. On that date, the 19-year-old Complainant was shot and killed while trying to break up a fight. The report indicated that witnesses claimed that at least one Hamilton Police Service (HPS) officer did not perform his duty. According to witnesses, a police officer mocked the Complainant and told him to get up, after he had been shot, and to stop feigning injury. Witnesses also claimed that the police officer took charge and stood over the Complainant, while paramedics remained behind the officer and failed to treat the Complainant. Finally, members of the community had voiced concerns that the police officer’s attitude resulted in delaying the Complainant’s transportation to hospital, ultimately resulting in his death.

On December 21, 2017, a member of the public filed a complaint with the Office of the Independent Police Review Director (OIPRD), after viewing the media reports; he had not been at the scene when this incident occurred, nor did he witness any of the events.

On January 4, 2018, Hamilton Police Service forwarded a letter of complaint they received from counsel for the complainant’s family. 

At approximately 10:00 am on April 27, 2018, the SIU was notified by the OIPRD of the complaint filed, triggering the SIU’s mandate, and the SIU commenced an investigation into the police response; one investigator was assigned.

The Team

Number of SIU Investigators assigned: 1
Number of SIU Forensic Investigators assigned: 0


The Complainant’s homicide was initially investigated by the HPS investigators, however, as a result of the complaints about the response of the emergency services (police and paramedics), the HPS requested that the Niagara Regional Police Service (NRPS) conduct the investigation in order to maintain independence and objectivity. Simultaneous investigations were also conducted by the City of Hamilton Paramedic Service and by the Ministry of Health, into the paramedic response.

Since the NRPS had already conducted a full investigation and interviewed all of the potential witnesses, and due to the passage of time as a result of the complaint initially going to the OIPRD, before the SIU was formally notified and its mandate triggered, those witnesses were not re-interviewed by the SIU investigator, but all video-recorded interviews already obtained by the NRPS were provided to the SIU and were relied upon when completing this investigation. 

Complainant:

19-year-old male, deceased


Civilian Witnesses

CW #1 Not Interviewed, statements provided to the HPS and the NRPS were obtained and reviewed
CW #2 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #3 Not Interviewed, statements provided to the HPS and the NRPS were obtained and reviewed
CW #4 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #5 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #6 Not Interviewed, statements provided to the HPS and the NRPS were obtained and reviewed
CW #7 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #8 Not Interviewed, statements provided to the HPS and the NRPS were obtained and reviewed
CW #9 Not Interviewed, statements provided to the HPS and the NRPS were obtained and reviewed
CW #10 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #11 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #12 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #13 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #14 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #15 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #16 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #17 Not Interviewed, statements provided to the HPS and the NRPS were obtained and reviewed
CW #18 Not Interviewed, statements provided to the HPS and the NRPS were obtained and reviewed
CW #19 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #20 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #21 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #22 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #23 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #24 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #25 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #26 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #27 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #28 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #29 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #30 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #31 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #32 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #33 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #34 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #35 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #36 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #37 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #38 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #39 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #40 Not Interviewed, statements provided to the HPS and the NRPS were obtained and reviewed
CW #41 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #42 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #43 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #44 Not Interviewed, statements provided to the HPS and the NRPS were obtained and reviewed
CW #45 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #46 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #47 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #48 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #49 Not Interviewed, video recorded interview provided to the NRPS was obtained and reviewed
CW #50 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #51 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #52 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #53 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #54 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #55 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #56 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #57 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #58 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #59 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #60 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #61 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #62 Not Interviewed, statement provided to the HPS was obtained and reviewed
CW #63 Not Interviewed, statement provided to the HPS was obtained and reviewed

Witness Officers

WO #1 Not interviewed, but notes and statement provided to the NRPS received and reviewed
WO #2 Not interviewed, but notes and statement provided to the NRPS received and reviewed


Subject Officers

The SO Interviewed by the NRPS, as a part of their investigation; that video recorded interview was obtained and reviewed. The memorandum book notes were not provided by the subject officer.


Incident Narrative

At approximately 8:56 p.m. on December 2, 2017, the HPS received a 911 call reporting that possible gun shots had been heard coming from the area of Sanford and Main Streets in the City of Hamilton; police officers were immediately dispatched to the area, with the first officer being noted as having been dispatched at 8:57:11 p.m. Further information received was that one male was down and that a BB gun was possibly involved, with, ‘minor injuries, superficial to abdomen’.

Two police officers initially arrived at the scene, Subject Officer (SO) #1 and Witness Officer (WO) #1, and observed the Complainant lying on the sidewalk with a wound to his abdomen. The SO then approached the Complainant and examined his injuries, following which, within seconds of his arrival, the SO requested that an ambulance be dispatched to the scene and advised the dispatcher that a “BB gun” was possibly involved, and that the Complainant had “minor injuries” which he described as being, “superficial to abdomen”.

At 8:59:31 p.m., the ambulance was notified to attend; the information provided to the EMS by the dispatcher repeated the information received from the SO, that the call was for a, ‘soft tissue trauma due to a pellet gun injury’.

Following the arrival of the EMS at the location, the care of the Complainant was turned over to them and he was eventually transported to the hospital. While en route to the hospital, the Complainant became unresponsive. The Complainant arrived at the hospital at 9:39 p.m. and was transferred to a bed, where he went into cardiac arrest at 9:40 pm. At 9:58 p.m., resuscitative efforts were discontinued and the Complainant was pronounced dead shortly thereafter.

On December 21, 2017, a complaint was filed with the OIPRD alleging that the police had been negligent in their failure to obtain prompt medical attention for the Complainant resulting in his death.

The SIU was notified of the complaint by the OIPRD on April 27, 2018 (a Friday), and an investigation was launched on the following Monday, April 30, 2018.


Cause of Death

A forensic pathologist conducted the post-mortem examination on the Complainant’s body on December 3, 2017.

In the Post-Mortem Report, the pathologist concluded that the cause of death was, “a penetrating gunshot wound of the abdomen complicated by massive blood loss.”

Evidence

The Scene

The following Google Earth photograph identifies relevant locations referred to in this report:

This Google Earth photograph identifies relevant locations referred to in this report

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Expert Evidence


Post-mortem Examination:


A forensic pathologist conducted the post-mortem examination on the Complainant’s body on December 3, 2017.

In the Post-Mortem Report, the pathologist concluded that the cause of death was, “a penetrating gunshot wound of the abdomen complicated by massive blood loss.”

Video/Audio/Photographic Evidence


Video Surveillance Recordings


A single-family residence, on the west side of Sanford Avenue South across the street from where this incident took place, had closed circuit television (CCTV) cameras which captured a portion of the incident. The timestamp on the video referred to the 24 hour clock; the relevant portion began at 2036:47 hours, or 8:36:47 p.m.

At timestamp 2036:47 hrs on December 2, 2017, five individuals were recorded as they ran across the street from the bottom of the screen to the top.

At 2037:16 hrs, three individuals appeared back in view at the top of the screen. It appeared one person, now known to be the Complainant, sat at the curb, while another, now known to be civilian witness (CW) #2, ran to the convenience store from which the 911 call originated; while a third remained with the Complainant. An unknown person walked over to the Complainant, while the occupant of a residence immediately next to the recording camera, now known to be CW #43, exited the residence and stood on the porch.

At 2038:52 hrs, while the Complainant writhed about on the ground, CW #43 crossed the street. Another person also approached from across the street. At 2039:10 hrs, a person, likely CW #2, returned to the scene, followed by another person. Shortly thereafter, two more people and a child arrived at the scene.

At 2040:35 hrs, reflections of police vehicle emergency lighting were visible. Two fully marked cruisers arrived and one police officer exited from each car, now known to be the SO and WO #1.

Passersby were seen walking about the area, on the opposite sidewalk.

The view of the Complainant was obstructed by the first police car to arrive, as the cruiser parked at the east curb.

At 2047:30 hrs, a fire truck drove across the camera view. One police officer tended to the Complainant, while another spoke to two people on the sidewalk, near the front of the second cruiser to arrive.

The recording ended at timestamp 2100 hrs, before the arrival of the paramedics. (According to HPS homicide investigators, at the time of the homicide investigation, they only obtained the recording up to 2100 hrs, as they did not foresee the need for any further evidence after the shooting.)

Communications Recordings


911 Call Recordings:


The initial 911 call was received at 8:56 p.m. on December 2, 2017. A male in the Hasty Market variety store reported, “I think there was a gunshot at Sanford and Main” and reported hearing “a loud bang.” He said a young man ran into the store reporting the incident and said he (the caller) did not know if anyone was shot.

The call taker contacted paramedic services at 8:59 p.m., in the call, she reported, “There’s a male that has superficial wounds to his abdomen from being shot with a BB gun it sounds like.”

The call taker then made a series of calls to taxi services, the City of Hamilton, and the Hamilton Street Railway, advising them to be on the lookout for the suspects. In the first call to Blue Line Taxi at 9:08 p.m., she indicated that one of the suspects was carrying a white BB gun.

The following day, December 3, 2018, at 12:05 p.m., CW #17 called 911 and reported that he had been at the scene with his son and had heard the gunshot. He further stated that he did not believe it was a firearm, as it “sounded like one of those little CO2 cartridges.” He saw the victim’s stomach and “…it only looked like the BB had just barely broken his skin. And now I’m reading that it was a gunshot and he died.” He went on to say “Even when the cops came they looked and figured it was a BB gun. We couldn’t figure out why the kid was acting like he was on his death bed.” He said he saw “a little bit of blood but it only looked like a BB hole. Not even a hole that had penetrated. Just like it broke the skin.”


Police Radio Transmissions Recording:


At 8:57 p.m. on December 2, 2017, police were dispatched to an address on Main Street East for possible shots fired.

Ninety-three seconds into the recording, the SO reported that he was at Sanford and Main Streets.

Two minutes into the recording, the SO reported, “We’re being advised it sounds like a BB gun” and asked for an ambulance to be dispatched, adding, “Injuries are gonna be minor. We have superficial wounds to his abdomen.”

Eight minutes and 30 seconds into the recording, it was reported that firefighters were on scene.

Nine minutes and 22 seconds into the recording, a police officer started providing suspect descriptions to the dispatcher. He reported one suspect had a “small white gun on his right hip.”


Event Chronology Report:


At 8:56:38 p.m., a 911 call was received by the HPS reporting possible shots fired.

At 8:58:54 p.m., the SO reported that he was with the party.

Emergency medical services were called at 8:59 pm and information provided included, “BB gun possibly” and, “minor injuries, superficial to abdomen.”

At 9:06:48 p.m., a description of one of the suspects was provided to dispatch including that he had a “small white gun on right hip.”

Materials obtained from Police Service

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

  • 911 Call Recordings;
  • Police Radio Transmissions Recordings;
  • Canvass Summary re Aikman Avenue;
  • Canvass Summary re Main St. East;
  • Canvass Summary re Sanford Ave. South;
  • Canvass Summary re Wentworth St. South;
  • General Occurrence Report;
  • Statements of 23 Civilian Witnesses;
  • HPS Crown Synopsis;
  • HPS Event Chronology Report;
  • HPS Written Witness Statements from CW#s 7 and 43;
  • Notes of WO #s 1 and 2; and,
  • Video Canvass Summary.

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

  • 49 Civilian Witness Statements;
  • Video Recorded Statement of the SO; and,
  • 2 Police Witness Statements.

Upon request, the SIU obtained and reviewed the following materials and documents from
other sources:
  • Post-Mortem Examination Report dated April 9, 2018;
  • Medical Records of the Complainant related to this event;
  • Incident Report-Hamilton EMS;
  • Emergency Medical Services (EMS) Electronic Data Reporting Record;
  • Ambulance Call Report; and,
  • Video Surveillance Recording from CCTV Camera on Sanford Avenue South.

Relevant Legislation

Section 219 and 220, Criminal Code -- Criminal negligence causing death

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

Analysis and Director's Decision

On December 2, 2017, the 19-year-old Complainant, who was in the area of Sanford and Main Streets in the City of Hamilton, intervened when he saw two males harassing an older man. One of these two men then shot the Complainant. The Complainant’s brother, who was present at the time, then ran to a nearby convenience store and alerted them to call 911 as his brother had been shot.

A 911 call was received by the Hamilton Police Service (HPS) communications centre at 8:56:38 p.m., wherein the caller reported hearing a, “loud bang,” which he thought, “was a gunshot at Sanford and Main”.

At 8:57:11 p.m. on December 2, 2017, while the 911 caller was still online with the HPS call taker, and only 33 seconds after the call was first received, the first police cruiser was dispatched to 581 Main Street East for possible shots fired. At 8:57:36 p.m., a second police cruiser was dispatched on the call, at 8:57:38 p.m., a third, and by 8:58:11 p.m., a fourth cruiser had been dispatched.

At 8:58:54 p.m., the first police officer to arrive at the location of the reported gun shot, the Subject Officer (SO), is recorded on the communications tape as reporting that he was at the location with the [injured] party. At 8:59:00 p.m., the SO reported that there was a ‘man down’ and, at 8:59:02 p.m., he requested that an ambulance be called; the request for an ambulance appears to have been made only eight seconds after the SO arrived at the Complainant’s location. The SO further reported, as recorded in the Computer Aided Dispatch (CAD) event details report, that a ‘BB gun’ was possibly involved, and that the male had ‘minor injuries, superficial to abdomen’.

By 8:59:27 p.m., a further two police cruisers had been dispatched to the area. At 8:59:31 p.m., 29 seconds after the SO’s request that an ambulance be dispatched, the communications centre notified the EMS and requested that an ambulance be dispatched to the gun call.

Additional police cruisers continued to be notified and dispatched, with the number of responding units having increased to 11, including a canine unit, by 9:06:13 p.m.

At 9:58:41 p.m., the HPS was notified that the Complainant had been pronounced dead at hospital.

During the course of this investigation, the statements taken from 63 civilian and two police witnesses were obtained and reviewed. The Niagara Regional Police Service (NRPS) - an independent police service that had been requested to step in and investigate the response of the emergency services (police and paramedics) to the treatment of the Complainant - was in possession of the subject officer’s video-recorded statement. With the consent of the subject officer, the SIU obtained and reviewed this statement. Many of the 63 civilian witnesses were interviewed by both the HPS, initially, and after the investigation was transferred to the NRPS, they were interviewed again. While the SIU was not officially notified until April 27, 2018, which then triggered our mandate, the SIU investigator had to rely on all of the evidence originally obtained by both the HPS and the NRPS, as the delay in notification eliminated the possibility of the SIU gathering any evidence independent of the police investigations. The following sequence of events has been extrapolated from the credible and reliable evidence obtained, including the witness statements, the 911 call recording, the police transmissions communications recordings, and surveillance video from the area.

Of the 63 civilian witnesses (CWs) interviewed, very few heard the actual shot, saw the impact on the Complainant, and then observed his injury. Of those, only one indicated in his statement to the police that he believed that the Complainant had actually been shot by a real firearm, because he heard a really loud gun shot, with the remaining witnesses describing the shooter as: using a “modified pellet gun” (CW #1); hearing a sound that he did not believe was a gunshot (CW #9); sounding like a BB gun (CW #17); or a “pop” and being “almost like a CO2 cartridge going off” (CW #16); hearing “a bang” that “sounded like a fire cracker” (CW #37); and, not sounding like a gun, but rather a pellet gun (CW #43). There is no question that, upon the arrival of the police, many of the witnesses informed the police officers that the Complainant had been shot by a pellet gun, a BB gun, or had been injured by a firecracker.

Additionally, three witnesses indicated that they were told either by the brother and/or friends of the Complainant that the Complainant had been shot by a BB gun, with CW #5 reporting that the Complainant’s brother, CW #1 had run into the mosque and reported that the Complainant had been shot by a BB gun, while CW #6 was told, both by one of his friends and by his brother, that the Complainant had been shot with a BB gun. CW #42, who went down to the location where the Complainant was lying on the sidewalk, described both the Complainant and his friend telling her that he had been shot by a pellet gun.

In addition to the few friends of the Complainant, and his brother, who were present, there were a number of CWs who both heard the shot and saw the Complainant’s treatment by emergency responders. Of those present, CW #17 described hearing a “pop” sound, following which he saw the Complainant’s brother run into the convenience store; when the Complainant’s brother, CW #1, reported that his brother had been shot, CW #17 told him that, “It sounded just like a BB gun.”

CW #17 then attended to the Complainant’s location and described seeing a, “little bit” of blood on the wound site, with no blood coming out from the wound itself. He indicated that, in his view, it looked like the skin was just broken and there was just a little mark, and he again questioned if the source of the injury might be a BB gun.

CW #17 was also present when the first police officer, the SO, arrived; he described the SO as exiting his police cruiser with urgency, whereupon CW #17 approached the officer and told him that the wound may have been caused by, “Looks like a BB gun.” CW #17 then observed the SO to kneel down in front of the Complainant and shine a flashlight in the wound, before reporting over the radio that it looked like a minor wound. According to the CAD event details report generated by the communications computer, this call came in to the HPS communications centre at 8:59:24 p.m. CW #17 found no fault in the behaviour or actions of the SO, concluding instead that the police officers did what they had to do before they turned the Complainant over to EMS personnel.

CW #16, the son of CW #17, who was with his father at the time, also described the initial sound heard as being a “pop” and being “almost like a CO2 cartridge going off.” He went on to indicate that this was why, “We were confused when we found out it was a real gun” and that, “Nobody was really, including myself, was under the impression that that sounded like a gun.”

CW #16, who observed his father apply pressure to the Complainant’s wound, described seeing “a little scratch” which appeared to him to be a closed wound, not deep at all, and there being a lack of blood. CW #16 also heard some bystanders and the Complainant’s brother report that the Complainant had been shot with a gun, while others said it was a BB gun or a firecracker. As CW #16 and CW #17 were driving away, CW #16 observed his father stop the car, lower the window, and tell the police officer who was tending to the Complainant that the Complainant was only in shock; he described his father’s tone as being in a “don’t worry” manner. CW #16 was of the view that the police response at the scene was very professional, amid the confusion.

Additionally, numerous of the CWs, who saw the actual injury to the Complainant, appeared to confirm their previous impression that the injury was caused by a pellet or BB gun, as a result of observing what appeared to be the minor nature of the injury, with many describing seeing very little blood and only a small hole. Of specific note, a number of the firefighters described the injury as being “a little tiny, so small, wound in his lower belly” (CW #32); “almost no blood” and that it “appeared to be consistent with a BB gun injury” (CW #45); and, seeing a small wound with a little bit of blood around the navel (CW #48). Of the 14 non-police civilian witnesses who observed the injury, all described it in similar terms, that being very small, with little or no blood, and they also concluded that the injury was so minor as to be consistent with having been caused by something other than an actual firearm.

While CW #24 described the injury, which he observed, as being to the Complainant’s chest and that it was an open hole with blood, I do not accept this evidence, as both the location and the nature of the injury is inconsistent with the evidence of the other reliable witnesses, who had a better view of the injury, and the subsequent observations made during the post-mortem examination. I can only surmise, on this evidence, that CW #24’s recollection of the event, in hindsight, may have been influenced by the media coverage and/or the tragic death of the Complainant.

Based on the evidence obtained during the course of this investigation, including the CAD events report, I note that the SO was dispatched at 8:58:11 p.m. (not being the first cruiser dispatched to the scene) and was the first officer to arrive on scene, reporting in at 8:58:54 p.m., only 43 seconds after first having been notified. Additionally, upon his arrival, he was observed to exit his cruiser with urgency (CW #17) and to immediately approach the Complainant and to check his injury with a flashlight. At 8:59:02 p.m., only eight seconds after his arrival, the SO promptly requested that the ambulance service be notified to attend. The SO was then observed to place the Complainant into the recovery position (CW #9). This evidence is also consistent with the statement of the SO.

While the SO waved off firefighters when they went to approach the Complainant (CW #32, CW #45), indicating that the wound was minor in nature, the evidence is that as soon as the paramedics arrived, the Complainant was turned over and put into their hands to be assessed and treated accordingly. It is clear that, as the only medical professionals on scene, the responsibility for the care and treatment of the Complainant then fell to the paramedics. It is further clear, that after having been told by numerous witnesses that the Complainant had been shot with a pellet or a BB gun and, after observing what appeared to be a very minor injury which appeared consistent with that information, the SO then relayed that same misinformation to both fire and EMS personnel.

There was an allegation that the police officers on scene were rude and insensitive. While this behaviour, if it occurred, is far from commendable and not consistent with the sworn duties of acting police officers, neither is it criminal in nature, unless that behaviour somehow interfered with the care of the Complainant, and thereby contributed to his death. With respect to that allegation, however, I find that the evidence is in conflict, with a number of witnesses indicating that the only thing that the police officers did was to accuse the Complainant of feigning an injury or exaggerating his injury, while others claimed that the police officers were openly laughing and joking, while the Complainant lay writhing in pain on the sidewalk.

CW #19, who did not hear the shot, but was alerted by her son, observed the arrival of the police officers at the scene. She described the actions of the police officers as seeming “to be doing their job” and that they were over with the Complainant and that they “looked after him.” CW #19 also described the police officers turning the Complainant over to the paramedics when they arrived, and the paramedics then “took over.” While CW #19 did hear some laughing, she noted that did not occur until after the paramedics had arrived and she could not determine who, specifically, was the source of the laughter. This evidence is also consistent with the evidence of CW #23, in that she too only heard laughter after the arrival of the paramedics, with her specifically describing one paramedic as “joking around”, while CW #24 described hearing one of the paramedics laughing and saying that the Complainant was fine and just over-reacting. CW #27, on the other hand, observed the “cops just standing there talking and giggling” and that he later saw the paramedics and the police officers standing by joking around with each other.”

CW #20, who heard someone say that the Complainant was feigning injury, indicated that he could not determine who said that, but that it was said after the arrival of the paramedics.

As indicated earlier, while this behaviour, if joined in by any police officers at the scene would shine a very poor light on the HPS, nevertheless, while the evidence satisfies me that some of the first responders at the scene accused the Complainant of feigning or exaggerating his injury, and those individuals or others may have laughed and joked around, the evidence does not satisfy me that this behaviour can specifically be attributed to the SO or any other named police officer present, nor is there any evidence that the behaviour of any police officer present interfered with, or prevented, the paramedics from assessing the Complainant’s condition and providing him with the necessary medical care and attention.

Furthermore, since the evidence is clear, that despite the information received by the SO, and his observation of the injury, upon which he formulated a conclusion that the injury was minor in nature, that conclusion, which was ultimately erroneous, does not appear to have interfered with the SO carrying out his duties in that he immediately requested that an ambulance be notified, he placed the Complainant into the recovery position, and he turned the Complainant over to paramedics upon their arrival and did not interfere with the exercise of their duties as medical professionals.

The only criminal charge open for consideration, on these facts, would be one of criminal negligence causing death contrary to s.220 of the Criminal Code. There is no dispute that the death of the Complainant was directly caused by the gunshot by one of the two males who was harassing the older gentleman, and not directly attributable to the actions of any police officer. The only question to be addressed, then, being whether or not any police officer failed in his duty toward the Complainant. Specifically, the question to be posed is whether the SO omitted to do anything that it was his duty to do and, in failing to do so, showed a wanton or reckless disregard for the life or safety of the Complainant (s.219 of the Criminal Code: definition of criminal negligence). It should also be noted that there is no offence of criminal negligence in isolation, in that the behaviour only becomes criminal if it can be proven that it contributed to, or caused, death or bodily harm.

There are numerous decisions of the higher courts defining the requirements to prove an offence of criminal negligence; while most relate to offences involving driving, the courts have made it clear that the same principles apply to other behaviour as well. In order to find reasonable grounds to believe that the SO committed the offence of criminal negligence causing death, one must first have reasonable grounds to believe that he had a duty toward the Complainant which he omitted to carry out, and that omission, pursuant to the decision of the Supreme Court of Canada in R. v J.F. (2008), 3 S.C.R. 215, represented ‘a marked and substantial departure from the conduct of a reasonably prudent person in circumstances’ where this officer ‘either recognized and ran an obvious and serious risk to the life’ of the Complainant ‘or, alternatively, gave no thought to that risk’. The courts have also made clear that the risk of death to the Complainant must have been foreseeable to the SO (R. v Shilon (2006), 240 C.C.C. (3d) 401 Ont. C.A.).

It is clear, on a review of all of the evidence, that the Complainant was shot in the abdomen by an unidentified assailant. It is equally clear that the SO, relying upon the information he had received from numerous witnesses who either heard or saw the shooting, and appearing to confirm that evidence independently himself, by viewing the injury to the Complainant, mistakenly formed the erroneous conclusion that the Complainant had been shot by a BB or pellet pistol and that his injury was minor in nature. Having done that, however, I take specific note that the SO did not allow that conclusion to interfere with his sworn duties, in that he immediately notified dispatch that an ambulance was required for the Complainant, he placed the Complainant into the recovery position, and, once paramedics arrived, he placed the care of the Complainant into their hands and he did not in any way interfere with the Complainant’s care or treatment. Once the Complainant’s care was transferred over to the paramedics, the responsibility for his care clearly fell to them, as long as the SO did not interfere with their ability to perform their duties which is not alleged here.

During the post-mortem examination, the forensic pathologist noted that she observed a single, lethal, penetrating gunshot wound to the abdomen. The entry wound was a “tiny wound, zero point five millimetres… a very small hole basically… in the low abdomen.” A non-deformed small calibre bullet was recovered from the pelvic cavity.

The pathologist further determined that two major blood vessels, an artery and a vein, had been damaged by the bullet which resulted in a massive bleed with two litres of blood being found to have pooled in the abdominal cavity and another approximately 500 mls of blood clots being observed in the abdominal wall, which led to the conclusion that the Complainant had lost a significant amount of blood volume internally, which was the direct cause of his death.

The pathologist opined that, “if only one vessel is hit, the chances for survival are better but if both, that worsens the prognosis. This is regardless of having surgery promptly… that’s just the nature of the injuries… It’s logical. The more vessels are hit, the worse the prognosis is.”

While the pathologist determined that the death of the Complainant was attributable to “a penetrating gunshot wound of the abdomen complicated by massive blood loss,” she also made the further qualifying comment that, “the assumption that the decedent would have survived had he been promptly admitted to the nearest trauma centre is false,” adding that,” “the nature of his (the Complainant’s) injuries was the strongest determinant of poor outcome.”

On the record before me, the evidence establishes that despite the misinformation that was relayed to the SO, and despite the fact that he accepted and relied upon that misinformation, which he later relayed to other emergency responders, and despite the appearance of the Complainant’s injury, which appeared to confirm that erroneous information, the SO, in fact, was aware of his duty to the Complainant and he carried out those duties, regardless of his belief that the Complainant’s injury was minor in nature, in that he immediately notified the dispatcher that the Complainant required an ambulance and, upon arrival of the paramedics, he turned the Complainant over to the EMS personnel and he neither delayed, nor interfered with, the medical assessment and treatment of the Complainant.

While it is not within my mandate to determine culpability in the tragic death of the Complainant beyond determining the responsibility of the police officers who responded to the 911 call, it is within my mandate, and I find, that the evidence satisfies me that the actions of the SO neither directly contributed to the Complainant’s death, nor did he fail to carry out his duties as required by law, which may thereby have indirectly contributed to the Complainant’s death.

In conclusion, I find that the actions of the SO fell within the parameters of the criminal law, in that the SO appears to have been cognizant of his duties pursuant to s. 219 of the Criminal Code and he acted accordingly. While it is clear that the death of the Complainant was apparently not foreseeable to the SO, or indeed to the majority of the witnesses at the scene, it appears that the SO’s actions were fully in accord with his responsibilities in any event. As such, as I do not find that the evidence satisfies me on reasonable grounds that the actions of the SO, or any responding HPS officer, are capable of forming the basis for the laying of criminal charges, none shall issue.


Date: March 20, 2019


Original signed by

Tony Loparco
Director
Special Investigations Unit