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SIU Director’s Report - Case # 18-PFI-267

Contents:

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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 a serious injury sustained by a 30-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 7, 2018, at 2:10 a.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

The OPP reported that at approximately 12:30 a.m., the Subject Officer (the “SO”) conducted a traffic stop of a BMW vehicle with one headlight. A man [later identified as the Complainant] exited the BMW. The SO reported a struggle with the Complainant. The SO then reported that the Complainant had a firearm and activated his emergency button on his portable radio. The SO then transmitted over the radio that he had struck his head on the pavement during the struggle.

The OPP further reported that the SO had shot at the Complainant who fled into a residence located on Whitechurch Street momentarily before he returned and surrendered himself.

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 3

Complainant:

30-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
CW #7 Interviewed
CW #8 Interviewed
CW #9 Not interviewed (Statement obtained from OPP)
CW #10 Not interviewed (Statement obtained from OPP)
CW #11 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located in the front grassy lawn of a house located on Whitechurch Street in the village of Whitechurch. An OPP vehicle [later identified as the SO’s police vehicle] and a Wingham Police Service (WPS) vehicle [later identified as WO #1’s police vehicle] were parked on the roadway of Whitechurch Street with emergency lights activated.

Whitechurch Street is a single lane asphalt road with a posted speed limit of 50 km/h that permitted vehicular movement in the north-south direction through the village of Whitechurch.

Scene Diagram

Scene diagram

Physical Evidence

The scene was secured by the SIU, examined, photographed, and documented by a total station. An SIU Forensic Investigator examination of the scene revealed relevant items of evidence as follows:

  • A nine-millimeter cartridge case [later identified from the SO’s firearm].
  • Two shotgun cartridges. One with blood stains.
  • A white shirt and a black vest with blood stains.
  • A cellular phone.
  • A backpack with its zippers closed except for the main compartment zipper, which was slightly open.
  • A folding knife was retrieved from the trunk of WO #1’s police vehicle. The knife did not have any blood stains on it.

The SIU Forensic Investigator seized and photographed the backpack from the scene. A further examination of the contents of the backpack revealed the following items:

  • An altered twelve-gauge Remington model single shot shotgun [1] with a cartridge in the breech.
  • Six screwdrivers, two cellular phones, two unknown electronic devices, various electronic cables, a Gorilla branded liquid glue, various computer parts, a box of cartridge shells, a butane tank and a lighter.

The altered twelve-gauge Remington model single shot shotgun which was found in the Complainant's backpack.
Figure 1 - The altered twelve-gauge Remington model single shot shotgun which was found in the Complainant's backpack.


A further examination of the contents of the brown McDonald’s restaurant paper bag revealed the following items:

  • Five quantities of double cheese burgers.
  • Two quantities of French fries.
  • Two fountain drinks.


Firearm Examination


The SO’s uniform, vest, two spare magazines and his Glock model service firearm was seized by the SIU. The SO’s belt including ASP baton, two pairs of handcuffs, two pens, a portable radio, a flashlight, a Conducted Energy Weapon, and a cannister of oleoresin capsicum spray were photographed by the SIU.

An examination of the SO’s firearm revealed that it was loaded with one cartridge in the breech and sixteen in the magazine. Each spare magazine was loaded with seventeen rounds of ammunition.

Forensic Evidence


Automated Vehicle Locater (AVL) Data


The SIU received and reviewed the AVL data of the SO’s police vehicle. The data depicted the following:

  • At 12:05:03 a.m., the SO stopped his police vehicle near the WPS.
  • At 12:17:35 a.m., the SO drove his police vehicle southbound on Josephine Street towards Hwy 86.
  • At 12:19:09 a.m., the SO drove his police vehicle westbound on Hwy 86 towards Whitechurch Street.
  • At 12:24:41 a.m., the SO drove northbound on Whitechurch Street from the intersection of Highway 86 and Whitechurch Street.
  • At 12:25:48 a.m., the SO conducted a U-turn and travelled southbound before he came to a stop on Whitechurch Street.
  • At 12:31:15 a.m., the SO reversed his police vehicle at a speed of 3.22 km/h.


Centre of Forensic Sciences (CFS) Results


On September 11, 2018, the following items were submitted to CFS and on June 4, 2019, the SIU received the following results from the CFS:

  • The SO’s Glock semi-automatic pistol was received in firing condition and was test fired. The pistol functioned as designed.
  • Test fired cartridge cases were microscopically compared to the nine-millimeter cartridge case collected from the scene. There was an agreement of class and individual characteristics between the comparison items.
  • The white T-shirt collected from the scene was examined visually and microscopically with no significant findings. One of several cuts in the T-shirt (assumed to have been made during medical intervention) extends into the front right shoulder area which has heavy blood-like staining. No readily discernible projectile damage or firearms discharge residues were observed on the front right shoulder area of the T-shirt, or elsewhere.
  • The black vest collected from the scene was examined visually and microscopically with no significant findings. No readily discernible projectile damage or firearms discharge residues were observed.

Video/Audio/Photographic Evidence


Closed Circuit Television (CCTV) Recordings – McDonald’s Restaurant


The SIU received and reviewed CCTV recordings from a McDonald’s restaurant located in the town of Goderich. The recordings were ahead by four minutes and depicted the following:

  • At 12:00:26 a.m., a vehicle [later identified as the BMW] drove towards the drive through window of the restaurant. The right head light of the BMW was dimmer than the left head light.
  • At 12:05:30 a.m., the driver received his order in a brown paper bag through the drive through window and left the McDonald’s restaurant.

The SIU investigators reviewed the electronic receipt of the transaction on the McDonald’s restaurant’s terminal. The items on the transaction were consistent with the items found in the brown McDonald’s restaurant paper bag at the scene.

Communications Recordings


OPP Communications Recordings


The SIU investigators obtained and reviewed the OPP communication recordings for the relevant incident. The OPP communication recordings captured the following:

  • At 12:26:28 a.m., the SO told the dispatcher that a vehicle [later identified as the BMW] failed to remain at a traffic stop and he had one person [later identified as the Complainant] and requested that additional police officers attend.
  • At 12:28:05 a.m., the SO activated the emergency signal on his portable radio. The dispatcher requested that other police officers respond. The SO transmitted over the radio that he had discharged his firearm and requested an ambulance to attend. He then transmitted that the Complainant fled and went inside a house located on Whitechurch Street. The SO asked if other police officers were attending the scene. The dispatcher confirmed that other police officers were on their way. WO #7 asked the dispatcher who the ambulance was for. The dispatcher asked the SO who the ambulance was for. The SO told the dispatcher that he was going to get cover as the Complainant said that he had a firearm. The SO told the dispatcher that he had discharged his firearm and believed that he may have struck the Complainant. The SO told the dispatcher that he had struck his head against the pavement. WO #7 transmitted over the radio to the SO to retreat to a safe place. The SO transmitted that the Complainant was in a BMW that failed to stop at a traffic stop. The situation escalated as the SO attempted to arrest the Complainant.
  • At 12:34:43 a.m., the SO transmitted that the Complainant was walking on Whitechurch Street and requested additional police officers to attend.
  • At 12:35:57 a.m., the SO transmitted over the radio that the Complainant was walking towards him and the Complainant told the SO that he wanted to die. The SO then yelled at the Complainant to get on the ground.
  • At 12:39:38 a.m., the SO transmitted over the radio that the Complainant was arrested.


WPS Communications Recordings


The SIU investigators obtained and reviewed the WPS communication recordings [2] for the relevant incident. The WPS communication recordings depicted the following:

  • At 12:29 a.m., an OPP dispatcher called the WPS dispatcher and requested WPS officers to assist the SO in regards to a vehicle that failed to remain at a traffic stop after dropping a passenger [later identified as the Complainant].
  • At 12:31 a.m., the OPP dispatcher told the WPS dispatcher that the Complainant had gone inside a house located on Whitechurch Street.
  • At 12:30 a.m., WO #6 was dispatched to the scene and was told that the SO had discharged his firearm.
  • At 12:37 a.m., as WO #6 arrived on Whitechurch Street, he was told to stop by WO #1.
  • At 12:47 a.m., WO #1 told the dispatcher that he had arrested the Complainant.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP and WPS:
  • OPP Arrest Report;
  • Global Positioning System of the SO’s police vehicle;
  • Event Chronology Report;
  • Event Details Report;
  • OPP General Report;
  • Guard Check List;
  • Notes of the Witness Officers;
  • OPP Interview Synopsis of CW #9 and CW #10;
  • Prisoner Custody Report; [3]
  • Prisoner Security Check;
  • Roles and Responsibilities of the involved officers;
  • Communication Recordings from OPP;
  • Communication Recordings from the OSPS; and
  • OSPS Occurrence Summary.

Materials obtained from Other Sources

Upon request the SIU obtained and reviewed the following materials and documents from the Huron County Emergency Services (HCES):
  • A copy of the HCES incident report for the Complainant; and
  • A copy of the HCES Incident report for the SO.

Incident Narrative

While there are material discrepancies in the accounts of the circumstances surrounding the shooting, the following outline of the preceding events is largely uncontested in the evidence. Shortly after midnight on September 7, 2018, the SO was on patrol in his marked police SUV traveling west on Highway 86 towards Whitechurch when a BMW vehicle caught his attention. The BMW, traveling east on Highway 86, had a problem with one of its headlights. Moreover, as the BMW appeared to be painted in a “flat” black colour, the SO’s experience told him it could well be stolen. Accordingly, the officer followed the vehicle intending to stop it as it turned left to travel north on Whitechurch Street.

The BMW continued a short distance on Whitechurch Street, then turned into a church parking lot before proceeding south on the road. The SO activated his cruiser’s emergency lights, made a U-turn and fell in behind the BMW. The BMW’s driver was by now aware of the cruiser’s presence. The BMW stopped momentarily on Whitechurch Street, whereupon the Complainant, who had been a front seat passenger in the vehicle, exited holding a backpack and a McDonald’s brown paper bag containing food he and the driver had picked up. With the Complainant out of the vehicle, the BMW accelerated away. Fearing that the BMW’s occupants would bolt from the vehicle as it came to a stop, the SO also exited his vehicle having stopped behind the BMW. As the BMW sped away, he and the Complainant were left alone facing each other. It is here that the evidence begins to diverge in material respect.

There is some evidence supporting a version of events in which the SO shot the Complainant when he tried to surrender ammunition he had in his pocket. According to this evidence, the Complainant dropped his bags when confronted by the SO but objected to being searched. He also refused to lay on the ground as instructed. Instead, the Complainant told the officer he had ammunition in his pocket that he wished to turn over to the officer. The SO repeatedly ordered the Complainant not to put his hand inside his pocket, but the Complainant nevertheless did. With his sidearm aimed at the Complainant, the SO yelled at him to not move. The Complainant told the SO to shoot him. The Complainant was shot by the SO as he removed two shotgun cartridges out of his pocket and extended his right arm towards the SO, inviting the officer to take them.

In the SO’s rendition of events, the Complainant exited the BMW holding a backpack, its zipper partially open, in his right hand. The officer ordered the Complainant to put his hands up from an arm’s length away. The Complainant, who was uncooperative and confrontational, began to kneel up and down while keeping his right hand over the backpack. Suspecting the BMW was stolen, the SO decided to detain the Complainant to determine what he was up to and what was inside the backpack. Ignoring the SO’s commands that he keep his hands visible, the Complainant walked backwards while placing his hands in and out of his pockets. When asked if he had anything in his pockets that could harm the officer, the Complainant replied that he had ammunition and then took out two shotgun shells to show the officer. The SO feared the Complainant was in possession of a weapon and took hold of his left arm intending to search him. The Complainant reacted by pulling the antenna of the officer’s portable radio causing it to dislodge from his vest and dangle between his legs. As the SO walked backward, he asked the Complainant if he had a firearm. The Complainant, according to the officer, said yes while looking at the backpack. He told the SO that the weapon was not his and was worried he would go to jail. His concern for his personal safety increasing, the SO observed the Complainant turn his right shoulder toward the officer while holding the backpack. Feared he was about to be shot through the backpack, the SO took a step back and told the Complainant to drop the backpack. According to the SO, the Complainant said that he either he would kill the officer or vice versa. When the Complainant then reached inside the bag, the SO discharged his weapon once, whereupon the Complainant fell to the ground.

Returning to uncontested evidence regarding the events post-shooting, the SO lost his footing as he moved toward his SUV to seek cover and banged his head on the ground or the grill bar of his vehicle. Having been shot in the right bicep, the Complainant picked himself off the ground and ran across the yards of properties on the west side of Whitechurch Street, before returning to where he had been shot. The SO took cover behind a church further north and radioed for emergency assistance. Additional officers soon arrived and took the Complainant into custody. The Complainant was subsequently taken to hospital and treated for his wound.

The backpack the Complainant had been carrying was located in the area where the Complainant had been shot. In addition to a number of screwdrivers, cell phones and cartridge cases, it was found to contain a sawed-off shotgun with a live cartridge in the breech. The zipper of the bag’s main compartment, containing the shotgun, was slightly open.

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 September 7, 2018, in the village of Whitechurch, the Complainant was shot by the SO of the OPP in the right arm. For the reasons that follow, I am satisfied there are no reasonable grounds to believe the officer committed a criminal offence in connection with the shooting.

In the absence of legal justification, the SO’s act of shooting the Complainant would certainly attract criminal sanction. While those justifications are ordinarily to be found in section 25 of the Criminal Code, providing for the justified use of force by police officers in the course of their duties, I am not persuaded that they pertain in this case. If one begins at the outset, there are to my mind real questions surrounding the propriety of the SO’s initial intervention with the Complainant. While it must be granted that the circumstances in which the Complainant exited the BMW would obviously arouse a level of suspicion, I am not confident that the SO was possessed of the requisite reasonable suspicion that the Complainant was implicated in criminal activity such as would warrant an investigative detention: R. v. Mann, [2004] 3 SCR 59. The Complainant, after all, was the passenger in the vehicle of interest and simply standing on a front yard with a couple of bags when he was confronted and detained by the SO; enough for a hunch that he was engaged in criminal activity, but perhaps nothing more. In these circumstances, if there is truth in the proposition that the SO was not in the lawful execution of his duties at the time of the shooting, then he is disqualified from the justifications set out in section 25 of the Criminal Code. That said, an officer who detains an individual without reasonable grounds does not necessarily forfeit the right to defend him- or herself where threatened with lethal force.

Pursuant to section 34 of the Criminal Code, a person whose conduct otherwise constitutes an offence is shielded from liability if the conduct in question was intended to repel threatened or actual force against oneself or another, reasonably apprehended, and the conduct was reasonable in the circumstances.

Starting with the more incriminating version of events as regards the officer’s criminal liability, I am not satisfied it reasonably gives rise to a finding that the shooting was unjustified. There is no question the Complainant refused to cooperate with the officer and repeatedly reached into his pocket despite the SO’s directions that he not do so. The Complainant may well have been entitled to resist what might have been an unlawful detention. However, in so doing, he caused the officer to begin to harbour concerns for his safety. It was late at night, the SO was alone and the Complainant had just exited a vehicle under suspicious circumstances. The Complainant’s hostility toward the SO began to rise and he demanded the officer shoot him, a provocative challenge that would only have heightened the officer’s fear. Thereafter, when he reached with his right hand into his vest pocket to remove two shotgun cartridges and, ignoring the SO’s exhortation that he stop moving, extended his right arm in the officer’s direction, one can reasonably infer that the officer believed that a weapon was about to be used against him with potentially lethal results. On this account, the SO would have been mistaken in his apprehension as the Complainant did not have a firearm. That mistake, however, would in my view have been a reasonable one to make in the circumstances. On this record, I am satisfied on reasonable grounds that the SO reasonably resorted to lethal force to meet what he legitimately believed was a lethal threat to his life. In arriving at this conclusion, I note that officers embroiled in dangerous situations are not expected to measure their use of force with precision; rather, they are accorded some leeway in recognition of the dynamics and exigencies of the moment: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.).

The description of events proffered by the SO, being less inculpatory in my view, necessarily results in the same legal conclusion. In this case, one has the spectre of an individual who, having informed the officer that he was carrying a firearm in his backpack, refused repeated commands to drop the backpack and instead turned in the officer’s direction while reaching into the bag. This gesture, I am satisfied, left the SO with little choice but to resort to deadly force to thwart what he reasonably perceived was a threat to life and limb. It is true that the SO never says he actually saw a firearm in the Complainant’s possession; he merely presumed as much given what he had heard and seen from the Complainant. That presumption, however, was a reasonable one in the circumstances and gave legitimacy to the officer’s act of self-defence. One does not expect individuals in fraught situations to wait to see a firearm pointed in their direction before they act to protect themselves where they otherwise reasonably believe that the risk of their being shot is real and imminent.

As for what actually occurred in the moments that immediately preceded the shooting, there is reason to suspect that neither account provides a full picture. An independent witness provided a statement that contradicted both accounts in some respects. There are other such discrepancies, some bolstering the case in favour of the SO, others detracting from it, none of them, in my view, sufficiently weighty to tip the balance one way or the other in terms of potential charges against the officer.

In the final analysis, as I am unable to form reasonable grounds on the evidence to believe that the SO transgressed the limits of permissible force under section 34 of the Criminal Code, I am left without grounds for proceeding with criminal charges in this case. Accordingly, the file is closed.

Date: October 21, 2019


Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The barrel of the shotgun was altered by shortening it. [Back to text]
  • 2) WPS uses the Owen Sound Police Service (OSPS) communications centre for their radio communications. [Back to text]
  • 3) The Prisoner Custody Report indicated that the Complainant was charged with assaulting a police officer. [Back to text]