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SIU Director’s Report - Case # 18-OFD-283

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 22-year-old man.

The Investigation

Notification of the SIU

On September 22, 2018, at 6:53 a.m., the Halton Regional Police Service (HRPS) reported the shooting death of an unknown man, which occurred at the Esso Gas Bar in Burlington at 5:36 a.m. on the same date. The deceased was later identified as the Complainant. 

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 4

Complainant:

22-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Not interviewed (Next-of-kin)
CW #3 Not interviewed (Next-of-kin)
CW #4 Not interviewed (Next-of-kin)
CW #5 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Interviewed

Additionally, the notes from three other officers were received and reviewed.

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right
SO #3 Declined interview and to provide notes, as is the subject officer’s legal right
SO #4 Declined interview and to provide notes, as is the subject officer’s legal right
SO #5 Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The scene was inside the Circle K convenience store and Esso Gas Bar located at Appleby Line and Harvester Road, Burlington.

Figure 1- the Esso Gar Bar and Circle K convenience store after the shooting occurred.
Figure 1- the Esso Gar Bar and Circle K convenience store after the shooting occurred.


The deceased, the Complainant, was located near the back of the store near the cooler area. The Complainant was handcuffed and lay on his back with his head orientated primarily south. His right foot was crossed over his left foot. In close proximity was a firearm, which was later found to be a Glock model 23 .40 calibre semi-automatic handgun. The slide was locked back and the magazine inserted in the weapon.

Figure 2- the handgun that was found next to the Complainant's body.
Figure 2- the handgun that was found next to the Complainant's body.


The Complainant wore black track pants, red underwear, sandals and socks. Upper body clothing had been cut back by EMS, exposing the front of the body. EMS medical paraphernalia was found attached to the deceased’s chest. There was a large pooling of suspected blood to the left of the deceased on the floor. The deceased was photographed as found, prior to further examination by the Coroner.

A conducted energy weapon (CEW) lay on the carpet inside the entrance. Both cartridges were inserted into the weapon and it had not been deployed. Cartridge cases, projectiles and bullet fragments were also close by. Cartridge cases were located on ice cream coolers, which were situated on both sides of the front door. Beneath one cooler to the left was a can of oleoresin capsicum (OC) spray. Store shelving in the centre area of the store was in disarray and several items of product lay scattered on the floor. Further cartridge cases, projectiles and bullet fragments were located throughout the central part of the store. A second can of OC spray lay on the floor near shelving. To the right as you entered the store was an automatic teller machine (ATM) and in this area more cartridge cases were located. Past the ATM machine was the entrance hallway that led to the washroom area. On the floor immediately outside the washroom door were two pry bar tools and two sledge hammers. Amongst these tools, more projectiles and bullet fragments were located.

The door to the washroom swung inward to the right. The door had noticeable signs of having being forced open. The door latch had been compromised and the extended dead bolt bent. There was staining on the floor outside the door of an oily residue suspected to be OC spray. On the floor inside the washroom were several cartridge cases, projectiles and more of the oily residue. Behind the door was a gym bag and on the sink was a piece of clothing and a cellular telephone. To the left of the sink was a garbage receptacle that had several impact sites. A “wet floor” safety pylon, which had impact sites, was in the middle of the washroom.

Figure 3 – the interior of the washroom with oily residue (likely from the OC spray) and cartridge cases/bullet fragments marked with yellow evidence markers.
Figure 3 – the interior of the washroom with oily residue (likely from the OC spray) and cartridge cases/bullet fragments marked with yellow evidence markers.


Impact sites were located in the cooler section at the back of the store. Many of the glass doors to the coolers had been compromised and shattered, and product inside the cooler had also been struck. Impact sites were noted on shelving in the middle of the store. An iced drink display to the left of the cooler also had been struck. An impact site was also observed on the ceiling above the cooler section near the washroom.

Figure 4 - some of the impact sites located in the cooler section adjacent to the washroom.
Figure 4 - some of the impact sites located in the cooler section adjacent to the washroom.


Additionally, oily resin staining was found outside the washroom in the shape of footwear. The trail of these patterns began outside the washroom and travelled south along the front of the cooler display to where the deceased lay. Oily resin was noted on the soles of the deceased’s sandals and on his socks.

The scene was photographed, video recorded and mapped. Police uniforms and equipment were seized and exhibits inside the store were collected. Preliminary investigation suggested that five police officers discharged their firearms during this incident. Four HRPS police officers had discharged their issued Smith & Wesson MP40 .40 cal. semi-automatic pistols and one OPP police officer had discharged a Sig Sauer P229 .40 cal. semi-automatic pistol. The CEW was photographed and turned over to the HRPS along with two sledge hammers and two pry bars from outside the washroom door. Police uniforms of the injured police officers along with their firearms, ammunition and magazines were collected. At 4:15 p.m., the SIU was provided with security footage of the incident.

The scene was secured by HRPS police officers until September 23, 2018, at 1:05 p.m., at which time the scene was examined for trajectory. A total of 22 cartridge cases were collected from the interior of the store and washroom and all displayed “40 S&W” with various manufacturer stamps. Nine of the cartridge cases were located inside the washroom. A total of 14 projectiles were recovered from the scene along with various bullet fragments and bullet jacket fragments. A total of 23 impact sites were recorded within the interior of the store. There were seven impact sites from within the washroom of which five involved the garbage can and two involved the plastic wet floor pylon inside the washroom. The trajectory of the impact sites from within the washroom showed the projectiles were fired from inside the washroom.

Five of the impact sites in the store involved the glass doors of the coolers. Three involved the ceramic tiles at the base of the coolers. One impact site involved the “Froster” machine. Five impact sites involved the bread and chip racks. One impact site involved a “Circle K” sign which lay on the floor in the area of the coolers.

Physical Evidence


Police Officer Firearms:


  • SO #5’s OPP service pistol was a Sig Sauer P229 .40 cal. semi-automatic pistol. This weapon was capable of being loaded to a full capacity of 13 rounds, with 12 rounds in the magazine and 1 round in the breech. The total ammunition removed from this weapon was 9 rounds; therefore, it was 4 rounds down;
  • SO #2’s HRPS service pistol was a Smith & Wesson (S&W) MP40 .40 cal. semi-automatic pistol. This weapon was capable of being loaded to a full capacity of 16 rounds, with 15 rounds in the magazine and 1 round in the breech. The total ammunition removed from this weapon was 14 rounds; therefore, it was 1 round down;
  • WO #1’s HRPS service pistol was an S&W MP40 .40 cal. semi-automatic pistol. This weapon was capable of being loaded to a full capacity of 16 rounds, with 15 rounds in the magazine and 1 round in the breech. The total ammunition removed from this weapon was 16 rounds; therefore, it was fully loaded;
  • SO #3’s HRPS service pistol was an S&W MP40 .40 cal. semi-automatic pistol. This weapon was capable of being loaded to a full capacity of 16 rounds, with 15 rounds in the magazine and 1 round in the breech. The total ammunition removed from this weapon was 11 rounds; therefore, it was down 5 rounds;
  • SO #1’s HRPS service pistol was an S&W MP40c .40 cal. semi-automatic pistol. This weapon was capable of being loaded to a full capacity of 11 rounds, with 10 rounds in the magazine and 1 round in the breech. The total ammunition removed from this weapon was 8 rounds; therefore, it was down 3 rounds; and
  • SO #4’s HRPS service pistol was an S&W MP40 .40 cal. semi-automatic pistol. This weapon was capable of being loaded to a full capacity of 16 rounds, with 15 rounds in the magazine and 1 round in the breech. The total ammunition removed from this weapon was 15 rounds; therefore, it was down 1 round.

Scene Firearm:


The Complainant’s firearm was a Glock model 23 .40 calibre semi-automatic pistol. This firearm was capable of being loaded to a full capacity of 13 rounds with 12 rounds in the magazine and 1 round in the breech. The total ammunition removed from this firearm was 0 rounds; therefore, it was down 13 rounds.

Forensic Evidence 


Centre of Forensic Sciences (CFS) Firearms Comparison Testing and DNA Report


All 22 cartridge cases from the scene were submitted for comparison to the five submitted police officer semi-automatic firearms and the Glock model 23 .40 calibre semi-automatic weapon located near the deceased. The latter was further submitted for DNA comparison.

At the time of the writing of this report, the only CFS results received related to DNA testing of substances found on the non-police-issue firearm recovered at the scene. The results indicated that: 1. The Complainant could not be excluded as the source of a DNA profile from a swab of blood on the grip, and 2. The Complainant could not be excluded as a contributor to “Mixture 1 from the swab of the grip”.

Post-Mortem Examination


On September 23, 2018, a post-mortem examination was conducted on the Complainant at the Hamilton General Hospital (HGH). The post-mortem commenced at 9:15 a.m., and a bullet was found under the body when the body bag was removed. The Complainant was found to have two bundles of paper money in his left pocket and a small flip cellular telephone. The money, which amounted to $4,985, was counted by the pathologist, and laid out so it could be photographed with the serial numbers exposed. At 12:35 p.m., the pathologist advised that the cause of death was gunshot wound to the chest. Altogether 3 projectiles and 3 fragments were recovered and there were 6 gunshot wounds to the body:

1. Perforating gunshot wounds of left upper arm;
2. Perforating gunshot wounds of left forearm;
3. Perforating gunshot wounds of left chest (fatal wound: through lungs and heart);
4. Penetrating gunshot wounds of left torso; projectile was recovered in left loin (projectile #5);
5. Penetrating gunshot wounds of left buttock; projectile recovered in right buttock (projectile #6); and
6. Graze wound of right buttock.

Communications Recordings


HRPS Communications Report


At 4:45:37 a.m., HRPS units were dispatched to assist the OPP regarding a two vehicle collision eastbound on the QEW just west of Burloak. Information was received that one of the drivers involved in the collision had fled the scene. A description of the suspect was broadcast at 5:06:55 a.m., and a telephone call was received from the taxicab driver, who stated that the man was at the Esso Station at Harvester Road and Appleby Line.

At 5:11:22 a.m., WO #7 stated that the Complainant was in the washroom and they did not have a key for the door. At 5:16:14 a.m., SO #1 advised he would respond with a breaching tool. At 5:17:22 a.m., WO #7 advised that the Complainant was on his cellular telephone and he tried to get someone to come and pick him up. At 5:20:19 a.m., the dispatcher broadcast that they had received information from the OPP that there were gang colours inside the Complainant’s vehicle and it was unknown if he was armed. At 5:27:09 a.m., the gas station was closed down and no traffic was allowed in. At 5:28:42 a.m., SO #1 advised that OC spray was deployed under the washroom door. Prior to shots being fired the following HRPS police officers were in the gas station: SO #1, SO #2, SO #3, SO #4, WO #1 and WO #7. At 5:36:39 a.m., there was a broadcast that shots had been fired and police officers were hurt. An ambulance was requested. At 5:37:25 a.m., SO #1 broadcast that the suspect was down.

Video/Audio/Photographic Evidence


Esso Gas Station CCTV Video


There were four cameras inside the gas station. The footage was not time or date stamped and did not have sound. The recording was not continuous and only recorded one frame per second. The security system time clock was three minutes slow. The Complainant entered the store at 5:06 a.m. The times indicated are estimated from calculations made against the times associated with the duration of the recorded footage. The location of the cameras is as follows:

  • Camera covering store inside main entrance camera;
  • Camera covering inside main store;
  • Camera located over washroom door; and
  • Camera covering inside store service counter.

At 5:04 a.m., a yellow taxi cab drove up to the front entrance doors. A man [now known to have been the Complainant] exited the taxi. At 5:06 a.m., the Complainant entered the gas station store, through the main entrance door. The Complainant had a white cloth towel on his head and he carried a sports bag strapped across his body. The Complainant walked out of the camera view towards the washroom at the northeast corner of the building. An unmarked grey coloured Ford Taurus police cruiser, and two marked HRPS SUV police cruisers arrived on the lot. HRPS uniform police officer WO #7 entered the gas station and spoke with CW #1. CW #1 pointed in the direction of the washroom. At 5:10 a.m., SO #2 entered the store. Both police officers walked towards the washroom and stood outside the door. At 5:11 a.m., WO #1 entered the store and walked towards the washroom. CW #1 walked out from behind the counter and handed a key to WO #7. At 5:14 a.m., a fourth HRPS uniform police officer [now known to have been SO #3] entered the store and joined the other HRPS police officers outside the washroom. The four HRPS police officers remained in the general vicinity of the washroom. At 5:22 a.m., WO #7 opened the entrance doors and OPP SO #5 entered.

WO #1 and SO #2 remained in the vicinity of the washroom door alcove and SO #5 joined them. WO #1 briefly pointed his CEW towards the door. At 5:27 a.m., HRPS SO #4 entered the store with a ballistic body shield in his right hand and an OC spray canister in his left hand. HRPS SO #1 then entered the store and he carried a sledge hammer in his right hand and a ballistic body shield and a Halligan pry bar in his left hand. SO #2 put down his ballistic body shield and holstered his CEW. WO #1 put down his ballistic body shield and continued to point his CEW towards the washroom door. At 5:30 a.m., SO #4 walked out from the washroom alcove with the OC spray canister in his right hand and out of the store. At 5:34 a.m., SO #1 picked the pry bar and sledge hammer up from the floor and went into the washroom door alcove with SO #4. OPP WO #3, who wore motorcycle boots and a baseball hat, entered the store. None of the police officers had their firearms drawn. Movement in the washroom door alcove would suggest that SO #1 and SO #4 tried to breach the washroom door.

At 5:36 a.m., the police officers in the area of the washroom door alcove, and the OPP police officers on the shop floor, suddenly rushed towards the store entrance door. The Complainant exited the washroom and ran in a westerly direction in front of a row of cooler fridges to his right. He took up a crouched position and had a black object in his hands pointed slightly to his left. The Complainant wore different coloured pants from when he entered the store. The Complainant went forward face down onto the floor. His body moved intermittently and then stopped. All the police officers, with the exception of WO #1, took up positions of cover with their firearms drawn and pointed back into the store. SO #5 lay on his stomach on the floor. WO #1 was dragged out of the store and all the police officers left the store.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP and HRPS:
  • Computer aided dispatch (CAD)-Event Chronology;
  • Consent to Search signed by CW #5;
  • Diagram of Mac’s Convenience marked by WO #2- Oct. 10, 2018;
  • Diagram of Mac’s Convenience marked by WO #3- Oct. 3, 2018;
  • Diagram of Mac’s Convenience marked by WO #7- Sept. 25, 2018;
  • Drawing of Scene-WO #3- Oct. 3, 2018;
  • Firearm Acquired - CFP;
  • Halton Police Firearms Acquired - CFP;
  • HRPS Audio Statement CW #1;
  • HRPS Audio Statement of additional civilian witness;
  • HRPS SOCO Photos;
  • HRPS Electronic Disclosure Request;
  • HRPS Email re Media Release;
  • HRPS Forensic Identification Report;
  • HRPS List of Involved Officers;
  • HRPS Notes of WO #7 and three undesignated officers;
  • HRPS Procedure - Use of Force;
  • HRPS Restricted Occurrence Request;
  • HRPS Training Record of SO #1, SO #2, SO #3 and SO #4;
  • HRPS Witness Statement-CW #5;
  • Letter from SO #5’s lawyer - Nov 13, 2018;
  • Medical Release-HGH-SO #2;
  • Medical Record-HGH-SO #2
  • Notes of WO #1 and WO #2
  • Occurrence Report;
  • OPP CAD Report;
  • OPP Radio Communications;
  • OPP General Report;
  • OPP Motor Vehicle Collision Report;
  • OPP Notes of WO #3, WO #4, WO #5, and WO #6;
  • OPP Officer Details;
  • OPP Officer Report – undesignated officer;
  • OPP Police Firearm Acquired - CFP;
  • OPP Statement witness re: motor vehicle collision;
  • OPP Training Record of SO #5 - 2019-01-24;
  • Photo of Scene marked by WO #2-Oct. 10, 2018;
  • Photo of Scene marked by WO #7- Sept. 25, 2018;
  • Photo of Scene marked by WO #3-Oct.3, 2018;
  • RCMP File Cancellation; and
  • TPS 10 Print Chart of the Complainant.

Incident Narrative

The SIU’s investigation into the Complainant’s death consisted of interviews with two civilian witnesses and four witness officers, as well as a review of police records and communications. None of the five subject officers consented to an interview or to provide a copy of their notes, as was their right; however, the gas station’s CCTV was received and captured the shooting from multiple angles. This footage was consistent with the statements of the witness officers present during the shooting. The facts surrounding the Complainant’s death are accordingly clear.

At around 4:45 a.m. on September 22, 2018, HRPS officers were dispatched to a two vehicle collision on the QEW near Burloak Drive in Burlington. One of the drivers, now known to be the Complainant, had fled from the collision. A local taxi company was contacted and advised they received a call from the Complainant near the scene. The Complainant had sounded disoriented and was at the Esso Gas Bar on Appleby Line and Harvestor Road. HRPS WO #7 attended the gas station and located the Complainant in the washroom. Over the next couple of minutes, multiple officers arrived at the gas station including HRPS WO #1, SO #2 and SO #3. The officers confirmed with CW #1 that the Complainant matched the driver’s description and intended to arrest him for failing to remain. The four police officers stood outside the washroom, identified themselves and tried to convince the Complainant to exit the washroom voluntarily. The Complainant refused and they could hear him speaking on his cell phone.

At about this time, OPP WO #3 was investigating the motor vehicle collision. He noticed a lot of blood inside the Complainant’s vehicle, notably in and around the rear console, as if he had reached for something. A blue bandana with white tear drop marks was also found. WO #3 thought the Complainant may be a gang member which would explain why he fled the collision. At around 5:20 a.m., he notified dispatch that he had found gang insignia inside the Complainant’s vehicle and that he did not know whether he had any weapons.

More police officers continued to arrive at the Esso gas station, including WO #3, OPP SO #5, and HRPS SO #1 and SO #4. The Complainant became increasingly agitated while the officers tried to convince him to come out; he swore at them and told WO #1, “I will go to heaven before I ever come out to police.” The CCTV footage showed two officers, SO #2 and WO #1, holding ballistic shields and pointing CEWs towards the washroom door. SO #4 deployed OC spray underneath the door in an effort to get the Complainant to exit the washroom. The Complainant coughed but did not come out. SO #2 holstered his CEW and put his hand on his firearm. At 5:34 a.m., SO #1 and SO #4 breached the washroom door with a pry bar and a sledge hammer. At this point, based on a review of the CCTV footage, it appeared that none of the police officers had their firearms drawn. When the door opened, WO #1 saw the Complainant seated by the sink with a handgun pointed in the police officers’ direction. The Complainant shot at the officers multiple times through the washroom wall and open door. The bullets struck WO #1 twice in the right thigh and caused wounds to SO #2’s leg and thumb. The police officers reacted by rushing towards the front entrance of the gas station. Regrettably, the officers were unable to exit because the front door had been locked and could only be unlocked using a button accessible by the attendant, who had taken cover underneath a counter. The officers tried unsuccessfully to open the door for a few seconds and then the majority drew their firearms and pointed them in the direction of the washroom. [1] The Complainant exited the washroom and ran along a row of coolers at the back of the store while the officers shot at him. WO #7 heard the Complainant say, “I’m out, I’m out,” but was unsure what exactly he meant. From the CCTV footage, it appeared that the Complainant had a black object, such as a firearm, in his hands while he was running. The Complainant crouched with the object and then fell forward onto his stomach where he became motionless on the floor. A black handgun was found on the floor a few feet from his body. SIU investigators determined that the handgun was out of bullets.

Paramedics entered the gas station to assess the Complainant but found no pulse. The Complainant was declared dead. A post-mortem examination of the Complainant’s body revealed that he had six gunshot wounds: five to his left side (left upper arm, forearm, chest, torso and buttock) and one to his right side (right buttock). One wound was fatal because the bullet perforated his lungs and heart.

SIU investigators seized the firearms of officers involved in the shooting and learned that five officers likely discharged their firearms. These officers were designated as subject officers. From examining the subject officers’ firearms and assuming that they were loaded to capacity, it was determined that SO #5 discharged his firearm a maximum of four times, SO #2 discharged his firearm maximally once, SO #3 discharged his firearm up to five times, SO #1 discharged his firearm no more than three times and SO #4 discharged his firearm once at most. [2]

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 252, Criminal Code – Failure to stop at scene of accident

252 (1)  Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with 

(a) another person,
(b) a vehicle, vessel or aircraft, or
(c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

Analysis and Director's Decision

On September 22, 2018, the Complainant was killed after exchanging gunfire with several HRPS officers and one OPP sergeant in an Esso Gas Bar in Burlington. The Complainant was located by the police inside the gas station’s washroom after fleeing from the scene of a motor vehicle collision. The officers asked the Complainant to exit the washroom but he refused. As a result, the officers forced the door open only to discover the Complainant pointing a handgun in their direction. The Complainant shot a volley of bullets towards the officers, emptying his magazine and hitting two HRPS police officers. When the Complainant ran from the washroom, the police officers shot towards him, inflicting six gunshot wounds on the Complainant’s body. The Complainant was mortally wounded and declared dead at the scene by paramedics.

Regardless of which of the subject officers ultimately shot the Complainant, it is clear that none of the officers committed a criminal offence in relation to his death. Pursuant to section 25 of the Criminal Code, police officers are permitted to use force in the course of their lawful duties so long as the officer acts on reasonable grounds and the force is necessary. Section 25(3) of the Criminal Code imposes additional restrictions where the use of force is likely to cause death or grievous bodily harm, as is the case where a police officer shoots someone. The officer must believe the force is necessary to protect himself or herself, or another person, from death or grievous bodily harm and this belief must be both subjectively held by the police officer and objectively reasonable in the circumstances (R. v. Nasogaluak, [2010] 1 S.C.R. 206).

It is evident that the officers were acting in the course of their lawful duties when they shot at the Complainant. They were investigating a driver fleeing from a collision, and knew the Complainant had called a taxi from a location near the scene of the collision, sounded disoriented and matched the suspect’s description. As a result, the officers had reasonable grounds to believe he was the fleeing driver and therefore the Complainant could be arrested for failing to stop at the scene of an accident contrary to then section 252 of the Criminal Code.

In these circumstances, it is similarly evident that the police officers believed shooting the Complainant was necessary to protect themselves from grievous bodily harm and that this belief was objectively reasonable. While none of the subject officers consented to an interview, it can be inferred from the circumstances that the officers perceived a grave threat and believed shooting the Complainant was necessary to protect themselves. I find this belief reasonable because the Complainant presented an imminent and significant threat to the officers and they had no other reasonable way to protect themselves. The Complainant had just shot two police officers, and was still in possession of a firearm when he exited the washroom. While the Complainant said, “I’m out, I’m out,” as he ran along the back of the store, perhaps indicating he was out of bullets, his behaviour was otherwise inconsistent with a person who was surrendering. He did not relinquish possession of the firearm and there is no evidence he tried to negotiate a surrender with the police officers in any meaningful way. When he darted from the washroom with a firearm in his hands, he placed the police officers in his line of fire and therefore presented a significant risk of immediate bodily harm or death to them should he continue shooting at the officers. The police officers were justified in taking steps to protect themselves and had no reasonable alternative than to shoot at the Complainant. The police officers were unable to flee due to the locked door, and the layout of the gas station provided no adequate place to take cover. Other available use of force options, such as a CEW, were inappropriate in the face of a person armed with a firearm. Nor was trying to negotiate acceptable given the immediacy and gravity of the risk of harm including death. As such, I believe the officers acted reasonably and were justified under section 25 of the Criminal Code when they shot at the Complainant.

In summary, it is possible that up to four HRPS officers and one OPP sergeant shot at the Complainant; however, I do not believe that any officer committed a criminal offence in relation to the shooting. The Complainant was the first to shoot, striking two police officers, and was armed with a handgun when he exited the washroom. He continued to pose an imminent and serious risk of grievous harm or death to the officers when the officers returned fire. In the result, I find the officers’ actions proportionate, reasonably necessary and justifiable under law. No charges will issue and the file will be closed.


Date: May 24, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) WO #7 fell and hit his head when the officers rushed to get away from the Complainant. He did not remember a few seconds of the incident and reported drawing his firearm after the Complainant went to the floor. WO #1 did not draw his firearm during the incident because he was applying a tourniquet to his leg to treat his gunshot wound. WO #3 did not draw his firearm as there were too many police officers in his line of fire and he felt it was unsafe to do so. [Back to text]
  • 2) It should be noted that none of the subject officers spoke with the SIU and the SIU was unable to verify whether the officers’ firearms were fully loaded at the time of the incident. These numbers could very well be lower depending on how many bullets were actually loaded in the firearms. [Back to text]