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SIU Director’s Report - Case # 18-OFI-371

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 serious injuries sustained by a 46-year-old man.

The Investigation

Notification of the SIU

On December 21, 2018, at 1:35 p.m., the Niagara Regional Police Service (NRPS) reported a firearms injury to the Complainant.

Reportedly, on December 21, 2018, at around 12:24 p.m., NRPS police officers responded to a family disturbance call at an address on Anastasia Boulevard in West Lincoln. They had information that the Complainant went to the home and tied up one or more family members in the residence and was holding them against their will in the basement.

When NRPS police officers arrived they found the Complainant outside. As police officers approached the Complainant he began walking toward a pickup truck. One of the police officers grabbed the Complainant from behind and a struggle ensued. During the struggle the Complainant produced a firearm and a conducted energy weapon (CEW) was deployed with no effect on the Complainant. When the Complainant pointed his firearm at one of the police officers, the Subject Officer (SO) fired his service pistol several times striking him. The Complainant was subsequently transported to hospital having suffered gunshot wounds.

The Team

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

Complainant:

46-year-old male interviewed, medical records obtained and reviewed.


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

Harvest Gate runs north and south, and Anastasia Boulevard intersects Harvest Gate in a T-type intersect. On Harvest Gate, north of Anastasia parked on the west side of the road, facing south, was a grey Dodge Ram pickup truck. Also parked on Harvest Gate, on the east side of the street facing north, was a NRPS police cruiser.

Scene Diagram

Scene diagram

Physical Evidence


The Complainant’s starter pistol


A “ROHM” Model RG88 which appeared to be a semi-automatic pistol was recovered from the roadway near the Dodge pickup truck. This weapon was proven safe where no cartridge was removed from the breech but the magazine removed contained six blank cartridges. Further examination of this weapon revealed it was only capable of firing blank cartridges as the barrel was obstructed to disallow projectiles to be fired.


Gun
Figure 1 - the Complainant's "ROHM" model starter pistol which was located at the scene.

Police Firearms and Equipment


SIU Forensic Investigators (FIs) were provided with Witness Officer (WO) #1’s equipment, including: firearm, magazines, ammunition (still in magazines), CEW, duty belt, prep radio, ASP baton. The firearm was examined and it was determined it had not been fired recently. The magazines were all present, including 14 rounds in each of the three magazines, and one breech bullet.

SIU Forensic Investigators were also provided with the SO’s equipment and uniform. This included: duty belt, OC spray, a Leatherman multi tool, an ASP baton, two magazines with 14 rounds of ammunition in each, a Ballistic vest (panels returned), handcuffs and key (returned), flashlight (returned), keys to cruiser (returned), epaulettes (returned), uniform shirt, uniform pants (right knee had possible blood, left knee had dirt), gloves in front left pocket of pants, and left and right boot.

On December 28, 2018, SIU Forensic Investigators met with a civilian who advised that his vehicle, a grey Mazda van, was parked in his driveway on December 21, 2019 and that he noticed a defect in his vehicle on December 27, 2018. A forensic examination of the civilian’s vehicle produced a possible impact site on the driver’s side front fender.

After completing the examination, photos were taken of the area showing views from the incident point further north of the vehicle and evaluating the angle of the trajectory rod placed in the vehicle with the source point at the incident scene. The angle of the rod would suggest that a projectile from this incident site could have travelled south and struck the vehicle. The distance from the source of the incident to the vehicle measured approximately 103.825 metres.

The SO’s Firearm


The SO’s firearm was a Glock .40 cal. semi-automatic pistol. A .40 cal. R-P Smith and Wesson cartridge was located in the breech of his pistol. The magazine in the pistol grip contained eight cartridges. The two spare magazines carried by the SO on his duty belt contained 14 cartridges each. The SO’s firearm was collected by SIU FIs along with accompanying magazines and ammunition.

Forensic Evidence


CEW Download


On the roadway near the driver’s side rear of the pickup truck was a CEW. This weapon showed signs of being deployed as components of the cartridge attached including wire, one probe, blast doors and anti-felon identification (AFIDs) were located on the roadway close by. Deployment of the wire suggested the CEW was fired in a south easterly direction from the area where the weapon was found.

On December 21, 2018, at 12:37:29 p.m., the SO armed his CEW. At 12:37:36 p.m., he switched the safety on. At 12:37:58 p.m., the SO armed the CEW once more and at 12:37:58 p.m. he pulled the trigger and deployed the CEW for a total of five seconds. The next reading for the CEW is at 12:58:10 p.m. where it is on 20 minute Power Save Mode.

Expert Evidence

The SIU submitted a projectile, four cartridge cases found at the scene, a Glock Model 22 .40 cal semi-automatic pistol used by the SO, a .40 cal S&W cartridge from the breech of the SO’s Glock pistol and eight cartridges from the magazine inside the pistol to CFS and requested firearm discharge residue (FDR) be examined on outer clothing worn by the Complainant when he was shot by the SO.

Conclusion of CFS Report


The four .40 S&W calibre cartridge cases found at scene were identified as having been fired from the SO’s pistol.

The projectile recovered at scene could not be identified or eliminated as having been fired from the SO’s pistol.

Due to the absence of FDR surrounding defects on the black coveralls worn by the Complainant, distance determination testing was not conducted.

Communications Recordings


911 Communications


The first 911 call was made at 12:23 p.m., and concluded at 12:35 p.m. The second 911 call was made at 12:38 p.m., and concluded at 12:49 p.m.

First 911 call:

In the first call, Civilian Witness (CW) #1 requested police attend her residence on Anastasia Boulevard because she found her boyfriend tied up in the basement of their house. CW #1 told the call taker the Complainant was responsible. She then fled the house and took refuge at a neighbour’s house. CW #1 did not know if the Complainant had any weapons or if he came in a vehicle. She did notice a black Ford or GMC pickup truck parked near her house.

CW #1 told the call taker the Complainant was charged and found guilty of sexually abusing her boyfriend’s teenage daughter. He spent three and a half years in jail and was released on January 2018.

The call taker told CW #1 a police officer was on scene. CW #1 remained hidden and could not see the police officer. The call taker told CW #1 to stay put and that the police officer was coming to her. CW #1 reported the truck she saw earlier that morning was now gone after which the call ended.

Second 911 call:

CW #1 called 911 a second time to report she heard shots fired at or near her residence. She told the call taker she had called earlier. CW #1 also mentioned she believed shots were fired at the police. She was currently inside a neighbour’s home nearby. Then at some point CW #1 was told that police officers had the Complainant handcuffed out on the street. CW #1 told the call taker she was in the kitchen of the neighbour’s house. She was told the police would check her residence and then come see her. The call ended.

NRPS Radio Communications


The recordings commenced at 12:25:54 p.m., and concluded at 2:07:30 p.m. on December 21, 2019.

NRPS dispatcher requested the SO attend a disturbance call at CW #1’s residence. CW #1 claimed the Complainant had her husband tied up in the basement at that address. CW #1 had since fled the home and sought refuge at a neighbour’s house.

The SO and WO #1 were dispatched and headed towards the address. WO #2 was apprised and also headed towards the address. WO #1 was the first police officer to arrive on scene and updated the dispatcher.

WO #1 reported over the police radio seeing a man [now determined to be the Complainant] going through a backyard. The Complainant was wearing a coat with a hood. Soon after WO #1 reported he was walking with the Complainant.

A short time later the SO reported over the police radio seeing WO #1 with the Complainant. By then the SO had exited his cruiser and was with WO #1.

Suddenly the SO reported over the police radio, “Shots fired … roll EMS now.” And then “you copy that from …10-4 we need EMS now please.” Whereupon the dispatcher replied “10-4 they are on the way.” The dispatcher asked the SO if any police personnel were injured and the SO replied “negative, one down right now.” Afterwards the SO requested other units “swing by we haven’t cleared the house. We are still in the middle of the street with the male.” All subsequent communications are after the fact and provide no further detail as to how the Complainant received his injuries.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Computer Aided Dispatch (CAD) Call-Still active;
  • Detailed Call Summary (CAD Call complete);
  • Disclosure letter;
  • General Order - DRESS CODE;
  • General Order - USE OF FORCE;
  • General Order - POWERS OF ARREST;
  • Initial Report;
  • Interview Summary of CW #1 (x2);
  • Notes of all witness officers and the SO;
  • Police Firearm Acquired – CFP;
  • Prosecution Summary – the Complainant;
  • Recording from Master Logger (x3)
  • Supplementary Report-Additional info from CW #1;
  • Supplementary Report-Attempt interview of the Complainant;
  • Supplementary Report-Canvas report Dec 21;
  • Supplementary Report-Canvass report Dec 23;
  • Supplementary Report-Forensic report outdoor scene;
  • Supplementary Report-supplementary; and
  • Supplementary Report-Rental vehicle info.

Incident Narrative

The following story emerges from the information derived from the SIU’s investigation, which included statements from WO #1 (present on scene at the time of the shooting), the Complainant, and several other eyewitnesses, as well as forensic examination of the SO’s CEW and firearm together with another firearm recovered at the scene. The SO, as was his legal right, declined to submit to an SIU interview. He did, however, authorize the release of his notes to the investigation. At about 12:23 p.m. of the day in question, CW #1 called 911 from a neighbour’s home and reported that she had returned to her address in Lincoln to find her partner bound in the basement. According to CW #1, the Complainant was present in the basement and responsible for her partner’s confinement. The SO and WO #1 were dispatched to the address and travelled in separate police vehicles. WO #1 was the first to arrive and encountered a male at the east side of the property in question. Though the officer was not certain at the time of the person’s identity, the male was in fact the Complainant. WO #1 attempted to speak with the Complainant, but was ignored. With the officer following, the Complainant walked to the property’s southern edge and made his way onto the lot of an adjacent property on Oakdale Boulevard. Seeing the Complainant turn right and proceed west along Oakdale Boulevard, WO #1 turned and made his way east along Anastasia Boulevard toward Harvest Gate where he again encountered the Complainant. The Complainant remained largely unresponsive as he proceeded to walk in a northwest direction toward his pickup truck, parked on the west side of Harvest Gate about 40 metres north of Anastasia Boulevard, with the officer following him.

At about this time, the SO arrived on scene. He parked his cruiser on the east side of Harvest Gate just south of the truck. The SO exited his cruiser and followed WO #1 and the Complainant to the pickup truck, coming to a stop near the driver’s side door of the vehicle. The Complainant opened the door and placed several unknown items inside the truck. WO #1 stood behind the Complainant with the SO north of his position. The Complainant then moved to the driver’s side rear door, opened it and leaned into the interior. Concerned with what the Complainant was doing, WO #1 took hold of his upper body and tried to pull him away from the truck. Shortly thereafter, the Complainant pointed a starter pistol at the SO. The SO, who had drawn his CEW by this time, screamed out, “Gun,” and, “Drop the gun.” The SO discharged his weapon at the Complainant, but it did little to incapacitate him. With the pistol still in his right hand, the Complainant struggled with WO #1 as the officer attempted to take him to the ground. The Complainant turned the pistol in WO #1’s direction, prompting the officer to disengage and create distance between the two. Both officers now had their firearms drawn and pointed at the Complainant, who was located in the middle of the road in front of the truck. The officers continued to yell at the Complainant to drop his gun. He refused and instead pointed his pistol in the SO’s direction. The SO, from a position near the driver’s side rear of the truck, discharged his firearm between four to six times in the Complainant’s direction, [1] inflicting three gunshot wounds. The time was now about 12:40 p.m. The Complainant fell to the ground and was quickly handcuffed by the officers. An ambulance was summoned to the scene and took the Complainant to hospital. Two persons from inside CW #1’s home, including her partner, were also taken to hospital.

Relevant Legislation

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.

Analysis and Director's Decision

On December 21, 2018, the Complainant was shot by the SO of the NRPS, suffering gunshot wounds to his left bicep, left forearm and left abdomen in the process. For the reasons that follow, I am satisfied there are no reasonable grounds to believe the subject officer committed a criminal offence in connection with the Complainant’ injuries.

Pursuant to section 34 of the Criminal Code, one is not guilty of an offence in repelling what is believed on reasonable grounds to be an actual or threatened attack on oneself or a third party if the defensive act is reasonable in the circumstances. I have no hesitation in concluding on the record gathered in the SIU’s investigation that the SO’s use of force was sanctioned pursuant to section 34. Both he and WO #1 were engaged in the course of their lawful duties when they responded to a report of a home invasion and attempted to speak with the Complainant. Though they were not certain of his identity at the time, the Complainant was in the area of the reported crime, had provided his first name (which matched that of the suspect), and was acting suspiciously in walking away from the officers and refusing to engage in conversation. In the circumstances, given the gravity of the crime they were investigating and its ongoing nature, the officers had ample grounds in my view to investigate the Complainant and to detain him when he continued to rummage in his truck against the officers’ directions: see R v Mann, [2004] 3 SCR 59. Regrettably, the Complainant physically resisted his detention and then produced a pistol, which he pointed in the officers’ direction at close range. The SO reacted by first deploying his CEW and then, when that proved ineffective in disabling the Complainant, discharging his firearm multiple times. While the pistol was in fact a starter pistol and incapable of firing live rounds, the SO could not have known that; at the time he fired his CEW and firearm, the officer had every reason to believe the pistol was a dangerous weapon and that his life and that of WO #1 were in imminent danger. In fact, while the SO declined an interview with the SIU, his notes make clear that he thought the Complainant was about to kill him as he took a position at the front of the truck and aimed the pistol in the officer’s direction. I believe him. The fact that WO #1 had also drawn his firearm and was about to shoot the Complainant at precisely the same moment as the SO fired his weapon lends further credence to the enormity of the threat confronted by the SO. In the final analysis, faced with what he reasonably perceived to be a lethal threat with little or no opportunity for retreat or effective cover, I am persuaded that the use by the SO of his CEW and firearm was a proportional and reasonably necessary defensive act. Accordingly, there is no reasonable basis for proceeding with criminal charges in this case and the file is closed.


Date: June 12, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The four cases found at the scene were tested and found to have been discharged from the SO’s firearm. However, given the amount of ammunition contained in the firearm after the incident, it is possible that the officer fired up to six shots. [Back to text]