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SIU Director’s Report - Case # 18-OFI-275

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 49-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 16, 2018, at 7:05 p.m., the Windsor Police Service (WPS) notified the SIU of an injury to the Complainant. Reportedly, on September 16, 2018, at about 6:10 p.m., police officers with WPS responded to a disturbance call at Bonita Street in Windsor. Upon their arrival Witness Office (WO) #1 and the Subject Officer (SO) were confronted by the Complainant who was sitting in a chair in front of the home. The Complainant was armed with a baseball bat. When police officers ordered him to relinquish the bat, the Complainant armed himself with a shotgun; after which, the Complainant pointed the shotgun at one of the police officers. Fearing for their safety, the police officers, one armed with a C8 rifle, the other armed with a 40 calibre pistol, opened fire on the Complainant to diminish the threat.

The Complainant was shot twice in the upper left chest by police. He was subsequently transported to Windsor Regional Hospital and from there he was transported to Detroit Receiving Hospital in Detroit, USA for treatment of his injuries and further care. 

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 2

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed 

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

This incident occurred at Bonita Street in the Countryside Trailer Park, Windsor, Ontario. Bonita Street was a street within the trailer park that travelled in a north south direction.

At the front of the home at the address was a deck. On the deck floor was an area of suspected blood staining and a shotgun. This shotgun appeared to be a single shot bolt action shotgun with the bolt removed. On the lawn in front of the deck was a baseball bat. There were bullet impact sites to the residence and fencing running along the south side of the deck.

The SO’s police cruiser, a marked 2015 Ford SUV Interceptor, was facing west on Marlin Court.

Physical Evidence

A Mossberg, Model 183 D-D, .410 gauge single shot shotgun was seized from the deck of the home. The shotgun was believed to be that used by the Complainant.

The SO’s firearm was a Smith & Wesson MP40 .40 cal. semi-automatic pistol. A .40 cal. cartridge was located in the breech of his pistol. The magazine in the pistol grip contained 12 cartridges. The two spare magazines carried by the SO on his duty belt contained 14 and 15 cartridges. The SO’s firearm was collected by SIU Forensic Investigators along with accompanying magazines and ammunition.

WO #1’s firearm was a Colt IUR 5.56 Nato semi-automatic rifle, commonly referred to as a C8 rifle. A 5.56 Nato cartridge was located in the breech of the rifle. The magazine attached to the rifle contained 21 cartridges. A second magazine containing 26 cartridges was found in WO #1’s ballistic vest. WO #1’s C8 rifle was collected by SIU Forensic Investigators along with accompanying magazines and ammunition.

Forensic Evidence

The SO’s Smith and Wesson MP40 .40 calibre, semi-automatic pistol and magazine, the Mossberg .410 gauge shotgun without a bolt seized at Bonita Street, and WO #1’s Colt IUR 5.56 Nato semi-automatic rifle and magazine were submitted to the Centre of Forensic Sciences (CFS) for examination.

Along with the above noted items, three Winchester .40SW cartridge cases and two Hornady 5.56 Nato cartridge cases recovered from Bonita Street were submitted to CFS.

In addition, a projectile removed from the Complainant was also submitted to CFS.

By way of a CFS Firearms Report dated February 13, 2019, the three .40 calibre cartridge cases were determined to have come from the SO’s semi-automatic pistol, and the two 5.56 Nato calibre cartridge cases from WO #1’s C8 rifle. The report also concluded that the projectile removed from the Complainant had “class characteristics … in agreement” with the SO’s semi-automatic pistol. However, per the report, the bullet was of no identification value and “could neither be identified or eliminated as having been fired” from the officer’s semi-automatic pistol.

Communications Recordings


911 Call


On September 16, 2018, at 5:54 p.m., the WPS dispatcher received a call from CW #4 who reported receiving a phone call from CW #1 who told him her boyfriend [now determined to be the Complainant] went outside with a gun.

CW #4 gave the address of CW #1 on Bonita Street. He did know the Complainant’s first name and added CW #1 and the Complainant lived at that residence for several years. CW #4 could not explain why CW #1 called him instead of the police. He told the dispatcher he was not present at the trailer park.


WPS Communications Recordings


On September 16, 2018, at 5:56 p.m., two police units were dispatched to attend Bonita Street based on information that a man [now determined to be the Complainant] had gone outside with a gun.

At 6:00 p.m., the WPS dispatcher contacted CW #1 by phone. CW #1 initially denied the Complainant was armed with a gun and suggested he might be armed with a baseball bat. During the conversation CW #1 went outside of the residence and spoke to someone. She said, “[the Complainant], you need to come in the house now. Why are you doing this?” When the dispatcher asked if she saw any weapons CW #1 replied, “I didn’t see any, no weapons, I don’t think so, I don’t know.” At 6:06 p.m., an emotional CW #1 disconnected the call stating, “I don’t want to talk anymore.”

At 6:05 p.m., the SO broadcast he was in the area of Bonita Street and several seconds later he had a conversation on the radio with WO #1, the other unit that had arrived. Then at 6:07 p.m., either the SO or WO #1 advised over the police radio, “Shots fired.”

Immediately the dispatcher broadcast, “All units shots fired at Bonita at 1807.” Seconds later an undesignated officer asked, “Shots fired by us or by them.” Either WO #1 or the SO replied, “Shots fired by us. He’s hit about three times. Need EMS. Shot in the left lung, left lung is shot.”

At 6:07 p.m. the dispatcher contacted EMS to attend Bonita Street for shots fired.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the WPS:
  • Detroit Police Incident Report;
  • Detailed Call Summary;
  • Directive - Use of Force;
  • Directive - Spousal Partner Violence Response;
  • Directive - Mentally Ill Persons;
  • Listing of Entities (i.e. Civilian Witnesses Canvassed);
  • Narrative (initial officer's report)-WO #3
  • Narrative (supervisory report)-WO #3;
  • Narrative-WO #2;
  • Notes of witness officers and subject officer;
  • Police Firearms Acquisition - CFP;
  • Private Firearm Acquisition - CFP;
  • Communication recordings; and
  • Will State of the SO.

Incident Narrative

The material events in question are relatively clear on the weight of the evidence collected by the SIU, [1] which included the SO’s notes of the incident; interviews with WO #1 and a number of civilians in and around the area at the time of the shooting; and, the results of forensic examinations of the scene and physical evidence, such as the weapons involved, and recovered cartridge cases and projectiles. Shortly before 6:00 p.m. on September 16, 2018, the WPS received a 911 call from CW #4. CW #4 reported that he had just been advised by CW #1 that her husband, the Complainant, had gone outside with a gun. CW #1 and the Complainant resided at Bonita Street. The SO and WO #1 were dispatched to investigate the matter.

The officers arrived in the area shortly after 6:00 p.m. and proceeded to make their way together toward the address at Bonita Street. WO #1 was armed with a C8 rifle. As they approached the residence, they observed the Complainant seated on the wooden deck in front of the home. He had a baseball bat in his possession. Beside him to the left, leaning against the south fence of the deck, was a long gun.

The SO called out to the Complainant and asked him to drop the bat. Both officers had their conducted energy weapons (CEW) trained on the Complainant at this time. The Complainant, on his feet, turned to his left and picked up the shotgun. The officers reacted by transitioning from their CEWs to their firearms; a .40 calibre semi-automatic pistol in the case of the SO, and the C8 rifle in WO #1’s possession. With the shotgun in hand, the Complainant turned with the weapon in the direction of the officers and pointed its muzzle toward WO #1. From a position on the yard in front of the home, WO #1 fired his rifle twice at the Complainant. Three shots were also fired from the SO. While the possibility that one of WO #1’s bullets was responsible for one of the Complainant’s wounds cannot be excluded, forensic examination of a projectile later recovered from the Complainant and the relative positions of the officers at the time of the shooting suggest that the SO’s bullets were more likely the cause of the Complainant’s injuries.

The Complainant fell to the ground and was approached by both officers, who immediately began to apply pressure to his wounds while they waited for paramedics. He was rushed to Windsor Regional Hospital and then taken to a hospital in Detroit for emergency treatment.

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

In the evening of September 16, 2018, the Complainant, while on the wooden deck in front of his home in Windsor, suffered two gunshot wounds to the upper left chest. The shots that caused his wounds appear to have been discharged from a firearm wielded by the SO of the WPS, albeit there remains the possibility that a round fired by WO #1 was responsible for one of the Complainant’s wounds. Be that as it may, I am satisfied there are no reasonable grounds to believe that either the SO or WO #1 committed a criminal offence in connection with the shooting.

In the absence of legal justification, the gunfire that was directed at the Complainant would certainly attract criminal liability. I am satisfied, however, that section 34 of the Criminal Code provides that justification. The provision provides that a person is not guilty of an offence if the act that constitutes the offence was intended to defend oneself or another from a reasonably apprehended attack, actual or threatened, and was reasonable in the circumstances. The SO and WO #1 were clearly engaged in the exercise of their duties when they arrived at the Complainant’s residence and took up positions on the front lawn. The police had received a call expressing concern that the Complainant had a gun with him outside his home.

The officers approached the scene cautiously and drew their CEWs, reasonably in my view, when they saw the Complainant with a bat on the front deck of his home. The Complainant was directed to drop the bat. Regrettably, possibly owing to his intoxication at the time, the Complainant did not react favourably to the command. Instead, he reached for his long gun and pointed it in the direction of the officers, most specifically at WO #1. The firearm was inoperable, but the officers could not have known that at the time. They each professed to be fearing for their lives at this time, and I believe them. As far as they would have been concerned, standing within metres of the Complainant, completely exposed and with no immediate cover at their disposal, their lives were in immediate danger. WO #1 reacted by discharging his C8 rifle twice at the Complainant. At about the same time, the SO fired his sidearm three times. Two of those bullets struck and felled the Complainant. On this record, I accept that the officers reasonably apprehended an imminent and lethal threat of force and acted reasonably to protect themselves by resorting to lethal force of their own.

In conclusion, I am satisfied that the police shooting which resulted in serious injuries to the Complainant fell within the limits of permissible force prescribed by the criminal law. Accordingly, there are no grounds for proceeding with charges in this case against either the SO and WO #1, and the file is closed.


Date: September 30, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) Though the information provided by WO #1 in his interview with the SIU differed in certain respects with the SO’s notes of the event, these discrepancies, I am satisfied, are of the type reasonably attributable to the inherent dynamism of the incident in question. For example, WO #1 was of the view that the Complainant was still holding the bat as he took possession of the gun, aimed it at the officers and was shot. The SO says that the Complainant dropped the bat before reaching for the gun. Both officers agree that the Complainant was in possession of the shotgun, which was pointed in their direction, when they fired their weapons. This evidence, it should be noted, draws support from independent eyewitness. [Back to text]