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SIU Director’s Report - Case # 19-OFD-024

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 man (the “Complainant”).

The Investigation

Notification of the SIU

On January 31, 2019, at 9:25 a.m., the Ottawa Police Service (OPS) notified the SIU of the firearms death of the Complainant.

The OPS advised that on January 31, 2019, at around 8:00 a.m., OPS received a call of a man [now determined to be the Complainant] with a knife concealed under his coat at the Elmvale Mall located at 1922 St. Laurent Boulevard in Ottawa. Subject Officer (SO) #1 and SO #2 responded. The Complainant was shot and taken to Ottawa Civic Hospital. 

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 3
 

Complainant:

30-year-old male, deceased


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 Interviewed
CW #10 Interviewed
CW #11 Interviewed
CW #12 Interviewed
CW #13 Interviewed 

Witness Officers

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

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


Subject Officers

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


Evidence

The Scene

The scene was located at 1922 St. Laurent Boulevard in Ottawa. The scene was at the south end of the plaza parking lot near the Royal Bank and Loblaws. There was an entrance into the mall in this area that faced towards the north. As you face the entrance to the mall from the outside there was an area of suspected blood staining in a pool to the left of the doorway. In close proximity to the pooling there were several pieces of medical waste and personal effects. The personal effects included an identification card, a bank card, keys, and clothing items. Emergency Medical Services equipment was also present in this area. There was also evidence of a Conducted Energy Weapon (CEW) deployment showing one probe, anti-felon identification (AFID) tags, and some wiring.

Figure 1- The storefront in Ottawa where the shooting occurred.

Figure 1- The storefront in Ottawa where the shooting occurred.


On the sidewalk west of the debris near the roadway were two cartridge cases. On the sidewalk and roadway east of the debris there were more cartridge cases. Further east along the sidewalk near the corner of the Royal Bank building was a CEW, wiring and CEW probes. Both CEW cartridges had been deployed and wiring from the cartridges suggested trajectory in a south easterly direction towards the front door area near the pooling. There was also an area of dispersed AFIDs and blast doors from the CEW. A black baseball hat was located on the sidewalk close by.

Left of the doorway to the mall was a small wall that extended north at a 90° angle. On the east face of this wall were three impact sites suspected to be bullet strikes. Beneath these sites on the snow was evidence of bullet jacket fragment. Also close by to these fragments was one projectile. Also in the area of this wall was a bag of groceries where additional suspected impact sites were found.

On the snow at the base of the wall was a handcrafted object consisting of a wooden handle with feathers attached. On one end of the stick there was a sizable rock attached. This rock was shaped triangular with a sharp edge.

Figure 2- The object that was located at the scene.

Figure 2- The object that was located at the scene. 

Scene Diagram

Scene diagram

Physical Evidence


Police Firearms Seized by Forensic Investigators


SO #1’s Firearm

The firearm belonging to SO #1 was seized. This firearm was a “Glock” Model 22 Gen4 .40 cal. semi-automatic pistol. The pistol was capable of being loaded to a full capacity of 16 rounds, (magazine capacity of 15 rounds + 1 round in the breech). Total ammunition removed from this weapon was 13 rounds, (3 rounds down).

Figure 3 – SO #1’s Glock pistol with magazines and ammunition.

Figure 3 – SO #1’s Glock pistol with magazines and ammunition. 


SO #2’s Firearm

The firearm belonging to SO #2 was seized. This firearm was a “Glock” Model 22 .40 cal. semi-automatic pistol. The pistol was capable of being loaded to a full capacity of 16 rounds, (magazine capacity 15 rounds + 1 round in the breech). Total ammunition removed from this weapon was 8 rounds, (8 rounds down).

Figure 4 – SO #2’s Glock pistol with magazines and ammunition.

Figure 4 – SO #2’s Glock pistol with magazines and ammunition. 


Police Uniforms

On February 1, 2019, forensic investigators attended OPS headquarters and were provided with sealed boxes of police officer uniforms and equipment. The police officers’ uniforms that were provided were from SO #1, SO #2, WO #2 and WO #3.

Forensic Evidence


CEW Download by Forensic Investigators


On January 31, 2019, at 8:07:24 a.m., SO #2 armed and then deployed his CEW at the Complainant for a total of three seconds. Then at 8:07:28 a.m., SO #2 armed his CEW and at 8:07:32 a.m., he fired it at the Complainant for a second time for a span of two seconds. The CEW was made safe at 8:07:35 a.m.

Communications Recordings


911 Calls


First Call

On January 31, 2019, at 7:52:12 a.m., an OC Transpo dispatcher telephoned the OPS Communications Centre to advise OC Transpo Special Constables reported seeing a man [now known to be the Complainant] holding a knife inside his jacket. The Complainant was walking into the Elmvale Shopping Centre (ESC). He was described as Caucasian dressed in all black clothing with a black ball cap. At some point the Special Constables had lost sight of the Complainant.

Second Call

On January 31, 2019, at 7:59:57 a.m., a distraught woman (CW #10) reported seeing several teenagers shoot someone with a gun. She could not say if the person shot was a man or a woman. Furthermore, she saw a police officer on scene. CW #10 could not describe the person holding the gun because she was too far away.

OPS Communication Recordings


On January 31, 2019, at 7:54:27 a.m., the Communications Operator dispatched SO #1 and SO #2 to attend the ESC for reports of a man [now known to be the Complainant] walking into the mall with a knife in his jacket. The Complainant was described as a Caucasian man dressed in black with a black baseball cap. The Complainant was seen by an OC Transpo Special Constable carrying a large silver-bladed knife in his jacket. At 7:58:37 a.m., the Communications Operator broadcast over the police radio that OC Transpo Special Constables saw the Complainant exit the mall heading towards the transit station.

At 7:59:36 a.m., a police officer [believed to be either SO #1 or SO #2] transmitted shots fired, an ambulance was required immediately, and the subject was down.

Materials Obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPS:
  • Computer Aided Dispatch (CAD) Call;
  • CAD Final Report;
  • CAD Initial Report;
  • Communications recordings;
  • CPIC Query-the Complainant;
  • Disclosure Memo;
  • GPS data;
  • GPS Screenshots with GPS data plotted on CAD mapping system;
  • List of Involved Officers;
  • Narrative Text of WO #1, WO #2, WO #4, WO #5, WO #6 and two undesignated officers;
  • Notes of all witness officers and two undesignated officers;
  • Police Firearms Acquired – Canadian Firearms Program;
  • Policy-Arrest;
  • Policy-Mental Health Incidents;
  • Policy-Use of Force; and
  • Training Records of SO #1 and SO #2.

Materials Obtained from Other Sources

Information from non-police sources:
  • Closed-circuit television;
  • Centre of Forensic Sciences Biology Report;
  • Cellphone footage;
  • Marked Google Street Map – CW #3;
  • Google Street Map –CW #8;
  • Google Street Map – CW #5;
  • Preliminary Autopsy Findings; and
  • Report of Post-mortem Examination.

Incident Narrative

The material events in question are relatively clear on the weight of the evidence collected by the SIU, notwithstanding the fact that neither SO #1 nor SO #2 provided statements to the SIU, as was their legal right. Shortly before 8:00 a.m. on January 31, 2019, the OPS were informed of a man – the Complainant – carrying a knife in his coat and entering the Elmvale Shopping Centre on St. Laurent Boulevard. Police officers were dispatched to investigate.

SO #1 was the first officer on scene. The officer encountered the Complainant in the area north of the RBC bank and attempted to engage him in conversation. The Complainant grew frustrated and began to threaten SO #1 with an object he held in his hand and waved in the officer’s direction. The object consisted of a rock with a thin edge affixed by fabric to one end of a 40 cm long stick (hereafter, the “object”). The Complainant had taken to crafting and selling these items, cultural artifacts born of his Indigenous heritage. 

SO #2 arrived shortly after SO #1 and approached the Complainant from the east as the parties moved westward across the front of the RBC toward the mall’s northern entrance. The Complainant moved toward SO #2’s direction with the object still in hand, prompting SO #2 to fire his CEW. The deployment may have immobilized the Complainant, but only for a moment. The Complainant quickly continued in SO #2’s direction. Some 20 seconds later, SO #2 deployed his CEW a second time, with similar results.

The Complainant again turned his attention toward SO #1 as the officers tracked his movement westward across the mall. SO #1 was within a few metres of, and retreating from, the Complainant as he raised the object above his head and swung it at the officer. SO #1, his firearm pointed at the Complainant, discharged two, and possibly three, rounds at the Complainant. At about the same time, SO #2 fired seven, and possibly eight, times.
Three bullets struck the Complainant, who fell on the sidewalk in the area of the entrance doors. SO #1 and SO #2 approached the Complainant, secured his arms in handcuffs, and, with the assistance of a couple of special constables in the area, administered emergency first-aid while they waited for an ambulance. Upon the arrival of paramedics, the Complainant was transported to hospital where he was subsequently pronounced deceased.

Cause of Death


On February 1, 2019 at 9:00 a.m., the post-mortem of the Complainant was conducted at the Eastern Ontario Regional Forensic Pathology Unit located at the Ottawa General Hospital. 

At 11:20 a.m., forensic investigators received a set of known file impressions from OPS related to the Complainant. Forensic investigators obtained a set of rolled impressions from the deceased. These impressions were compared with the known file impressions provided by OPS and a positive match was made.

At 2:02 p.m., the pathologist concluded the examination stating the preliminary cause of death as, “Gunshot wound of the chest.”

The Report of Post-mortem Examination, dated November 6, 2019, confirmed that the Complainant’s death was the result of a “Gunshot Wound of the Chest.” The report noted that the Complainant had sustained a “Perforated Gunshot Wound of the Upper Right Chest”, caused by a projectile that entered the front of the chest and exited the back; a “Perforated Subcutaneous Gunshot Wound of the Left Chest”, caused by a projectile that entered and exited the front of the chest (this wound did not enter the chest cavity); and, a “Perforated Gunshot Wound of the Right Elbow”, caused by a projectile that entered the elbow and exited the right antecubital fossa. The report concluded that the gunshot wound to the right chest would have been “independently fatal”.

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

On January 31, 2019, in the City of Ottawa, the Complainant was shot at several times by SO #1 and SO #2 of the OPS. He was subsequently transported to hospital where he was pronounced deceased, the result of a gunshot wound he had sustained. For the reasons that follow, I am satisfied that there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s death.

Whether considered pursuant to section 25(3) of the Criminal Code, establishing an immunity for police officers who use force intending or likely to cause grievous bodily harm or death provided resort to such force was reasonably necessary to thwart a threat of grievous bodily harm or death, or section 34, establishing the limits within which force used in defence of oneself or another is legally justified, I am satisfied on reasonable grounds that the shooting of the Complainant by the officers did not run afoul of the criminal law. It remains unclear why the Complainant reacted as he did when confronted by SO #1 and SO #2. Be that as it may, the officers were clearly acting in the course of their lawful duties when, in response to calls to police from citizens concerned about a knife the Complainant was carrying, they arrived on scene to investigate the matter. Thereafter, when the Complainant threatened the officers and waved the object in their direction, they had grounds to seek his arrest.

Turning to the lethal force that was used by the officers, though tragic in that it resulted in the Complainant’s death, I am of the view that it amounted to reasonably necessary force in the circumstances. Almost immediately upon their arrival, SO #1 and SO #2 were confronted by the Complainant threatening them with the object. It remains unknown what exactly the officers understood of the object in the Complainant’s possession; it was described by others as an axe or a knife. In any event, one can reasonably infer that the officers would have perceived the object as capable of inflicting serious harm and possibly even death. Indeed, the Complainant certainly appears to have intended to use it as an object capable of significant harm when he swung it at SO #1 at close range.

SO #1 and SO #2 did what they could to resolve the matter short of lethal force. They talked to the Complainant in what can only have been an effort to have him drop the object and stop his threatening behaviour. Withdrawal from the scene was not an option. The officers had witnessed the Complainant with the object in hand at a shopping centre and were duty bound to do what they could to confine the Complainant’s movements in the interest of public safety. SO #1 did retreat to some extent over the course of his engagement with the Complainant as the latter moved back and forth in the officer’s direction, exercising a degree of restraint at some risk to himself. Moreover, the officers did not shoot until two successive CEW deployments each failed to incapacitate the Complainant, and the Complainant moved quickly to within a few metres of SO #1 while swinging his object. With respect to the number of shots fired by the officers, the evidence indicates that these occurred in relatively quick succession. In the circumstances, I am unable to meaningfully impute a material change in the nature and extent of the threat reasonably perceived by the officers over the course of the shooting, particularly as the evidence indicates the Complainant was not felled until after the final gunshot.

On the aforementioned record and pursuant to the legal frameworks set out in section 25(3) and 34 of the Criminal Code, I am unable to reasonably conclude that either subject officer acted unlawfully when they discharged their firearms at the Complainant. They did so, in my view, under the reasonable apprehension that it was necessary to protect SO #1 from grievous bodily harm or death as the Complainant advanced threateningly toward the officer with the object in hand. In the result, there are no grounds for proceeding with charges in this case and the file is closed.

Date: February 13, 2020



Joseph Martino
Director
Special Investigations Unit