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SIU Director’s Report - Case # 18-OFD-308

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 30-year-old woman (the “Complainant”).

The Investigation

Notification of the SIU

At 2:40 a.m. on October 20, 2018, the Hamilton Police Service (HPS) reported the death of the Complainant. The HPS advised that at about 1:08 a.m. on that date, HPS officers were dispatched to an apartment on King Street in Hamilton in relation to a suicidal female who was armed with a knife. When the female apparently charged at the police officers, one of them attempted to deploy a Conducted Energy Weapon (CEW), however it was ineffective. The other police officer discharged his firearm, striking the female. The female was subsequently transported to Hamilton General Hospital (HGH) where she was pronounced deceased at 2:04 a.m.

The HPS identified the involved police officers as Witness Officer (WO) #1 and the Subject Officer (SO), the latter of which discharged the firearm. Both police officers had been sequestered at HPS Headquarters. The HPS also advised that it was believed the original 911 call was made by the Civilian Witness (CW) #2 who might have witnessed the incident.

The indoor scene had been secured and HPS were in the process of identifying witnesses.

The Team

Number of SIU Investigators assigned: 7
Number of SIU Forensic Investigators assigned: 3

Complainant:

30-year-old female, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Not interviewed, but notes received and reviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Interviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Not interviewed, but notes received and reviewed
WO #9 Not interviewed, but notes received and reviewed
WO #10 Not interviewed, but notes received and reviewed
WO #11 Not interviewed, but notes received and reviewed
WO #12 Not interviewed, but notes received and reviewed
WO #13 Not interviewed, but notes received and reviewed
WO #14 Not interviewed, but notes received and reviewed
WO #1 5 Not interviewed, but notes received and reviewed
WO #16 Not interviewed, but notes received and reviewed
WO #1 7 Not interviewed, but notes received and reviewed


Subject Officers

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


Evidence

The Scene

This incident occurred in the bedroom of an apartment on King Street in Hamilton.

The ground floor of the building consisted of a retail shop at the street side. The rear ground floor and second floor of the building were sub-divided into residential apartments. CW #2’s apartment was situated on the second floor, above the store.

The north end of the apartment consisted of a living room and kitchen with windows fronting the north elevation on King Street. The only bedroom was at the south end of the apartment. The stairway and door accessing the apartment was situated along the west side of the apartment, generally in the mid-area, between the living area and bedroom.

CW #2 was in the process of renovating the apartment. While re-flooring the living room and kitchen, he stockpiled belongings and tools in the bedroom. As such, the bedroom was extremely cluttered with furniture, property, tools and clothing.

The SIU forensic examination revealed four cartridge cases located on the bedroom floor. Two were in vicinity of the door, one at the corner of a dresser at the foot of the bed and another about a metre away from the side of the bed.

Two marks were observed on the wall above the headboard. One of the marks indicated a projectile struck the wall before falling to the floor. A projectile was located on the floor, behind the headboard. The other mark was a hole in the wall that transferred directly to the opposite side, in the neighbouring apartment. A projectile was located on that unit’s washroom floor, after it exited the wall and broke the inner window pane.

Both markings on CW #2’s bedroom wall were consistent with shots being discharged from the area of the bedroom door, where the SO was standing at the time.

The scene examination also revealed CEW wires, anti-felon identification (AFID) tags, a probe and blast door, all on the floor around the door.

Scene Diagram

The following drawing depicts the apartment floor plan with the bedroom scene and the neighbouring unit’s washroom, where a projectile was located. Identified evidence is detailed in the drawing.

Physical Evidence

The SIU collected and examined both involved police officers’ service issued Glock 22, .40 calibre pistols on the morning of October 20, 2018. The following observations were made at that time:

1. The SO’s pistol was loaded with one round in the breech and 10 rounds in the magazine. Both spare magazines were collected with 14 rounds in each; and
2. WO #1’s pistol was loaded with one round in the breech and 14 rounds in the magazine. Both spare magazines were collected with 15 rounds in each.

Forensic Evidence


CEWs:


WO #1’s CEW was received by the SIU with the spent cartridge seated to the device and both probe wires protruding and severed. Examination of the device revealed it was armed at 1:08:36 a.m. on October 20, 2018 and discharged five seconds later for five seconds. One second after that discharge, it was triggered again for another five second discharge. Five seconds after that deployment ended, the device was placed in safe mode.

The CEW was designed for loading with a single cartridge.

Examination of the SO’s CEW revealed it was not deployed during this incident.

Video/Audio/Photographic Evidence

Security video recordings were obtained from a number of premises surrounding the scene.


King Street – Business #1


Surveillance cameras at the back (north) side of the premise recorded the Complainant as she moved about the parking lot and laneway from 12:20 a.m. to 12:41 a.m. In and around the time she climbed the stairs to the second-floor terrace at CW #3’s apartment, and at the time CW #4 called 911, the Complainant walked around the parking lot and, on numerous occasions, stopped and appeared to gaze up the staircase at the second-floor terrace.

The recording ended before she descended and left the area.


King Street – CW #2’s residence


Security recordings from the building in which CW #2 resided captured events around this incident.

The camera mounted in the stairway recorded CW #1 standing in the side entrance while speaking on the phone. CW #2 descended the stairs from his apartment, holding a hammer in his right hand. At one point, CW #1 exited with CW #2 following about 20 seconds later. About 25 seconds after CW #2 exited, he returned inside, followed by WO #1 and the SO.

At 12:05:15 a.m., the police officers and CW #2 walked out of camera view as they turned and climbed the stairs to CW #2’s apartment. It appeared the shooting occurred within 30 seconds of that. [1]

On the recording, CW #1 exited via the side door to summon the paramedics. Shortly thereafter, WO #4 entered followed by three paramedics and WO #5.

The exterior camera captured the Complainant on the fire escape landing shortly before midnight. She moved between the bedroom and fire escape several times, appearing to hold a knife in her right hand.

An ambulance arrived at 12:04:12 a.m., followed by two police cars about 10 seconds later as CW #1 exited the side door and walked to King Street where he met the police officers. CW #2 followed behind and appeared to speak to the police officers for about eight seconds before the four returned to the side entrance.

The police officers entered the building at 12:05:07 a.m. with CW #1 and CW #2. At 12:06:15 a.m., WO #4 and WO #5 arrived as CW #1 exited the building and ran to King Street, where he summoned the paramedics.


King Street – Business #2


A camera in the store, equipped with video and audio capabilities, clearly captured the sound of four gunshots.

Review of the recording revealed what could be interpreted as a “double tap” discharge of two gunshots, followed by about equal intermissions between the next two discharges. All four discharges occurred in about two seconds.

Communications Recordings

CW #1 called 911 at 12:57 a.m., requesting police and ambulance to attend because the Complainant was threatening to kill herself with a knife. He detailed that she cut her neck already with the knife and threatened CW #2 with a hammer. When asked for the subject’s name, CW #2 was heard in the background say, “[The Complainant’s name]. They know her.”

CW #1 provided additional details while CW #2 asked for them to hurry as the Complainant was descending the back stairs. [2] CW #1 said she was no longer screaming in the apartment, but they heard her moving around. He added he did not think the bleeding was out of control, but she was making threats and he did not know what would happen when the police arrived.

The call-taker advised police and an ambulance were en route and ended the call after four minutes and before police arrived.

In the communications recordings, the dispatcher requested police officers to respond to a call for a possible suicide attempt in which a female cut her neck with a knife and threatened CW #2 with a hammer.

After two police officers were assigned the call, they were provided additional details, advised that an ambulance was dispatched and that CW #2 would be waiting for them in another apartment. The subject was identified.

In the next transmission, what sounded like a female police officer, likely WO #1 reported “We’re gonna be 17 [3].”

In the following transmissions, a male police officer, now known to be the SO, reported, “Shots fired. I need EMS right now,” followed by, “Multiple gunshot wounds.” In separate, subsequent transmissions, both police officers reported that CPR had been started.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HPS:
  • Background Event Chronology;
  • Contact with Person in Crisis (PIC) report;
  • Crime Scene Logs;
  • Duty Roster for October 19, 2019;
  • Event Chronology (CAD);
  • Event Chronology re Suspicious Call;
  • Involved Officers;
  • List of Involved Officers (full names and badge numbers);
  • Crisis Response Unit Job Description;
  • Crisis Response Unit Pamphlet;
  • Crisis Rapid Response Team Information 2019;
  • Organizational Structure Information;
  • Notes of the SO and all witness officers;
  • Occurrence Details Report (x2);
  • Policy-Use of Force;
  • Policy-Mentally Ill and Emotionally Disturbed Persons;
  • Training Records of the SO and WO #1;
  • Will State of WO #7, WO #10, WO #11, WO #12, WO #13 and WO #17; and
  • 911 and communications recordings.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU in its investigation, which included a statement from WO #1, who was present at the time of the shooting, interviews with CW #1 and CW #2, who were just outside the scene of the shooting when it occurred, the incident notes of the SO, and forensic examination of the SO’s firearm. At about 1:00 a.m. on October 20, 2018, a 911 call was placed to HPS by CW #1 requesting the police and an ambulance. He had just been approached by a fellow tenant at his apartment on King Street – CW #2 – indicating that the Complainant had a knife and used it to cut her throat. CW #2 was also holding a hammer. CW #1 conveyed this information to the 911 call taker and then, with CW #2, waited outside for the police and paramedics.

WO #1 and the SO arrived at the scene - a two-storey building. They met briefly with CW #1 and CW #2 outside the building. CW #2 confirmed the information that had been reported during the 911 call, showed the officers a cut the Complainant had inflicted on him and indicated the Complainant had a knife in her possession. With CW #2 by their side, the officers ascended the stairway up to the entrance door of CW #2’s residence on the second floor of the building. CW #2 opened the door and the officers entered, led by WO #1. The Complainant was in a bedroom, located to the right of the entrance door as one entered the apartment; she was standing on the bed with a knife in her right hand. With her CEW drawn and standing at the open bedroom doorway about three metres from the bed, WO #1 ordered the Complainant to drop the knife. The Complainant refused, and instead brought the knife up to her neck and started cutting her throat. Believing that the Complainant was trying to kill herself, WO #1 discharged her CEW. However, when the Complainant lowered the knife and continued to move, WO #1 realized that the discharge had been ineffective, at which point the officer pulled the trigger a second time. Again, the weapon appeared to have no effect. The Complainant now had the knife over her head and was screaming incomprehensively as she lunged aggressively at the officers. WO #1 was backing up and attempting to draw her firearm when the SO moved past her left side, his handgun pointed at the Complainant and ordering her repeatedly to drop the knife. As the Complainant moved toward the officers with knife in hand, the SO fired four times in her direction. The Complainant was struck and collapsed onto the bed.

Following the shooting, the SO performed CPR on the Complainant before the paramedics, who were waiting outside the residence, entered, took over the Complainant’s care and transported her to hospital.


Cause of Death


The pathologist at the Complainant’s autopsy attributed her death to multiple gunshot wounds. The Complainant had been struck by two bullets. One of them entered the front right shoulder and travelled through her right chest to the left side of her torso on a slightly downward angle. The other entered the Complainant’s left upper back, travelled through soft tissue and the clavicle, and exited through the front left shoulder on a slightly upward angle from left to right. Additionally, a number of superficial cuts were observed on the Complainant’s neck, with deeper cuts on the right side.

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 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

The Complainant was shot multiple times by the SO of the HPS on October 20, 2018. The Complainant was taken to HGH after the shooting where she was pronounced deceased at 2:04 a.m. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s death.

Whether considered pursuant to the frameworks set out in section 25(3) or 34 of the Criminal Code, the first setting out the test for legal justification in the case of lethal force used in the execution of a police officer’s duty, the other outlining the parameters of force that is excusable in defence of oneself or another, I am satisfied on reasonable grounds that the SO’s conduct did not run afoul of the limits prescribed by the criminal law. The Complainant was not of sound mind at the time of the events in question. She was under the influence of non-prescription drugs and upset with a domestic situation. Her behaviour deteriorated to the point where she attacked CW #2 with a hammer and armed herself with a knife, which she used to harm herself and threaten others. Knowing all this, WO #1 and the SO were clearly acting within the scope of their lawful duties to protect and preserve life, and investigate and take appropriate action in relation to the Complainant’s violent behaviour, as they climbed the stairs to CW #2’s apartment to deal with the situation.

The officers encountered the Complainant in a small bedroom. She was highly agitated and completely unresponsive as the officers, led by WO #1, attempted to speak with her to defuse the situation. The Complainant could not be appeased. Nor was she willing to drop the knife she had in her right hand. WO #1 had her CEW drawn and pointed at the Complainant. Prior to entering the apartment, the officers had agreed that WO #1 would deploy her CEW if necessary, and the SO would cover her with his firearm if the need arose in the event the CEW was ineffective. When the Complainant started to cut her throat with the knife, WO #1, reasonably in my view, discharged her CEW. She had good reason to believe that unless she acted swiftly to disarm the Complainant, she would suffer grievous bodily harm or death. Regrettably, the CEW did not have the intended effect of incapacitating the Complainant, who was still able to move. In accordance with their plan, the SO stepped forward and confronted the Complainant with his firearm drawn. The Complainant screamed and, raising the knife in the officers’ direction, started to move toward them on the bed. He again ordered her to drop the knife and then, backing up, discharged his weapon four times.

The SO declined to be interviewed by the SIU, as was his legal right, but did authorize the release of his notes in which the officer indicated that he fired his weapon fearing for his own life and that of his partner. I accept that the SO genuinely and reasonably believed that shooting the Complainant was necessary to protect him and his partner from loss of life or grievous bodily harm. The officer was confronted by an individual threatening him and WO #1 with a dangerous weapon at close range. He knew that the Complainant had recently assaulted CW #2 and would have known that she was capable of doing the same to the officers. A safe retreat would have been difficult in the circumstances. The apartment was undergoing a renovation and the hallway leading to and from the bedroom was cluttered with objects. The officers found themselves in confined quarters and in close proximity to the Complainant given the size of the bedroom. By the time the Complainant was approaching the officers following the CEW discharge, she would have been within striking distance of WO #1 and the SO when the latter decided to discharge his weapon. The SO had a difficult decision to make and split seconds in which to make it. In fact, less than 30 seconds had expired from the moment WO #1 and the SO entered the apartment until shots were fired; the fact is the officers were embroiled in a rapidly developing situation without the luxury of time to consider their options. In this context, it is instructive to note that WO #1, who was similarly situated at the time, said she was preparing to draw her firearm to shoot just before the SO did so. On this record, I am unable to reasonably conclude that the SO, under a legitimate apprehension that discharging his firearm was necessary to protect himself and his partner from a lethal threat, acted unreasonably in so doing notwithstanding the resulting and tragic loss of life.

A couple of final notes are warranted. With respect to the number of shots that were fired, four in total, the evidence indicates that these occurred in quick succession. In the circumstances, and given that two bullets missed their mark, it would be sheer speculation to draw any meaningful distinction in the SO’s mindset through discharges one to four. The same may be said of the fact that one of the bullets struck the Complainant’s left upper back, suggesting she may have been turned away from the SO at the time and perhaps not an immediate threat to the officers in that instant. Again, given the speed with which events unfolded, the very real threat faced by WO #1 and the SO, and the relative movements of the SO and the Complainant in the brief interval over which the shots were fired, it would be unreasonable to infer any material difference in the SO’s state of mind from one moment to the next as he fired. To do so, in my view, would be to fail to pay heed to the common law principle that police officers caught up in violent encounters are not expected to measure their responsive force to a nicety; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.).


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The shooting was not captured by the security recordings and this was determined by referring to the witness statements. [Back to text]
  • 2) Now known to be the fire escape. [Back to text]
  • 3) Likely an abbreviation of Code 10-17, indicating they were going to meet the Complainant. [Back to text]