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SIU Director’s Report - Case # 19-PFD-134

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 the death of a 48-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On June 14, 2019, at 10:30 p.m., the Essex Detachment of the Ontario Provincial Police (OPP) notified the SIU of the death by firearm of the 48-year-old Complainant during a stand-off at the Complainant’s home in Tecumseh. The OPP reported that at 8:13 p.m., officers responded to a home in Tecumseh where a man had apparently barricaded himself in a bathroom and was armed with at least one knife.

OPP officers entered the house and began negotiations with the Complainant. The negotiations failed and, after a while, the Complainant charged out of the bathroom and stabbed one of the police officers. Several Conducted Energy Weapon (CEW) discharges were directed at the Complainant but none were effective, and he was eventually shot and killed.

The Team

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

The residence where the Complainant lived, the scene of the incident, was examined by SIU forensic personnel. Documents and materials were requested of the OPP and later received and reviewed.

SIU Forensic Investigators attended the post-mortem examination and various exhibits were identified and later sent to the Centre of Forensic Sciences (CFS) for analyses. 
 

Complainant:

48-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

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


Subject Officers

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



Evidence

The Scene

The scene was a single family back-split style residence. It was a three-bedroom home with all the bedrooms and one bathroom on the upper level. The main level consisted of the entrance way, living room and kitchen. The lower levels consisted of a family room, utility room and second bathroom.

An area of blood was noted on the driveway at the entrance to the garage and medical debris was scattered around the blood, which was later determined to be that of WO #5.

Inside the entrance were blood drops on the tile floor and evidence of a CEW deployment. Once past the entrance way and to the left, the living room and kitchen were visible. More blood drops were noted in the area of the stairs and a small pool and smearing of blood were on the kitchen floor.

The main area of disturbance appeared to be around the stairs leading up to the bedrooms and bathroom. Scuff marks were visible on the wall and two puncture holes were evident in the drywall, one on each side of the stairs. A single cartridge case was found on the second step. Evidence of further CEW deployment - probes, blast doors, wire and Anti-Felon Identification Tags - were scattered about.

A pair of scissors and a steak knife were on a table in the living room and both were smeared with blood.

Figure 1 - The scissors that were located inside the Complainant's home.

Figure 1 - The scissors that were located inside the Complainant's home.


Figure 2 - The knife that was located inside the Complainant's home.

Figure 2 - The knife that was located inside the Complainant's home.


The bathroom was a three-piece bathroom with dual sinks on the counter. Blood was smeared on a towel in the tub and some blood drops were marked in one of the sinks as were further signs of CEW deployment.

The remainder of the home was undisturbed and very neat, except for the bedroom in the south-west corner of the house, which was occupied by the Complainant. The room was messy and unkempt and myriad prescribed medication bottles bearing the Complainant’s name were aligned on a dresser.


Scene Diagram

Scene diagram

Forensic Evidence


The CEW Data


The SO, WO #3 and WO #5 discharged their CEW weapons at the Complainant. The following is data downloaded by the SIU for each weapon. [1]

WO #3

WO #3 discharged his weapon four times; the first at 9:02:01 p.m., for five seconds and again five seconds later for two seconds. His third discharge of five seconds started at 9:02:10 p.m. His last discharge was at 9:02:22 p.m., for an additional five seconds.

The SO

The SO triggered his CEW twice; the first discharge was delivered at 9:06:11 p.m. for a duration of seven seconds. His second discharge was at 9:06:21 p.m., for five seconds.

WO #5

WO #5 also discharged his CEW twice; once at 9:08:25 p.m., for one second and again three seconds later for a duration of five seconds.

CFS Submissions and Results


The semi-automatic firearm assigned to the SO was received by the CFS in firing condition. It was test fired using a suitable detachable cartridge magazine from the CFS Firearms Reference Collection. The pistol functioned as designed. Test fired cartridge cases were microscopically compared to the above noted firearm. There is an agreement of class and individual characteristics between the comparison items. The result of the test was as follows: The cartridge case attributed to the subject officer’s Glock handgun was identified within the limits of practical certainty, as having been fired by the handgun assigned to the subject officer.


Figure 3 - The SO's Glock handgun.

Figure 3 - The SO's Glock handgun.

Post-mortem Examination and Report


A post-mortem examination of the deceased was conducted in Toronto and attended by SIU personnel. Three CEW probes and corresponding wire were located on the body attached to the right side of the blue T-shirt. Another probe had penetrated the left leg above the knee and a further probe was found in the left rear pants pocket. Three probes were found loose in the body bag.

Numerous bruises and abrasions were noted by the pathologist and a cut to the back of the right lower leg and a corresponding cut to a pant leg was also noted.

A small hole was discovered in the right upper chest of the deceased and the blue T-shirt had a corresponding hole in that area. The projectile was visible under x-ray and the round was recovered in the left mid back area during the internal examination.

The projectile had a right to left and downward trajectory through the body with the entrance wound to the right upper chest. A four-centimetre penetrating stab wound was found under the chin which the pathologist described as non-fatal and likely self-inflicted. At 2:25 p.m., the pathologist concluded the post mortem examination and reported the cause of death as gunshot wound.

The postmortem report, dated August 26, 2020, confirmed that the Complainant’s death was a “gunshot wound to the chest”.

Communications Recordings


The 911 Call


When CW #1 called the 911 operator, she was immediately put through to the OPP Communications Centre. She was outside her home on the driveway and sounded out of breath and was crying. She told the operator that her son had just threatened to kill himself and had been diagnosed with mental health issues, including psychotic episodes.

She explained that the Complainant was alone in the house and was carrying a kitchen steak knife. She did not know if he had taken his prescribed medication that day but said she did not believe that he had consumed alcohol or used illicit drugs. She was terrified to return to the house and was told by the dispatcher to remain outside until police arrived.

CW #1 also explained that the episode started when she chastised her son for smoking in the house. It was at that point that he produced a knife in her presence and held it to his throat. Police officers then arrived.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • 11 photographs of WO #5’s injuries;
  • 10 photographs of WO #1’s injuries;
  • Report of Protected Firearm Inventory;
  • Journal notes of WO #5;
  • The notes of all witness officers;
  • The 911 call of CW #1;
  • The Ambulance Call Report (ACR) for the Emergency Medical Services (EMS) crew at the scene;
  • The ACR for the EMS crew transporting WO #5;
  • The Emergency Response Team (ERT) Log;
  • The OPP Event Chronology;
  • The OPP General Occurrence;
  • Notes of the SO;
  • The shift roster for the Essex County Detachment; and
  • The CEW data downloads for the three police officers who discharged their CEW.

Incident Narrative

The material events in question surrounding the Complainant’s death are clear on the evidence collected by the SIU, which included statements from each of the five witness officers who were present in and around the time of the shooting, an interview with the Complainant’s mother, forensic analyses of the scene and items of evidence, and the results of the postmortem examination. While the SO, as was his legal right, declined to interview with the SIU, he did release a copy of his notes. The first officers to arrive at the scene – a single-family dwelling located in Tecumseh – were WO #1, WO #2 and WO #3. They had been dispatched at about 8:15 p.m. with information that the Complainant was in a bathroom with a knife and threatening to kill himself.

WO #1, WO #2 and WO #3 entered the residence. Positioned to the left of the front entrance and at the base of a short flight of stairs to the next floor up, the officers could hear the Complainant inside the bathroom to the left at the top of the stairs. The Complainant told them to “fuck-off” and suggested they shoot him in the head. He noted he had not yet hurt himself, but that he would imminently do so. When asked if he had ingested any drugs, the Complainant acknowledged having consumed a large quantity of cocaine.

The SO was the next officer to arrive at the scene. He entered the home and placed WO #3 in charge of all communications with the Complainant; the officer had seemed to build a rapport of sorts with the Complainant and had been formally trained in negotiations. Meanwhile, the SO made arrangements aimed at containing and de-escalating the situation. He directed that other officers responding to the scene do so without using their sirens to avoid further agitating the Complainant. He had EMS stage in the area of the home’s garage in the event they were urgently needed. And he asked for the deployment of a canine unit to the scene to assist in tracking the Complainant should he manage to escape with knives in hand.

With the arrival at about 8:40 p.m. of the dog handler, WO #4, together with his partner on the day and ERT member, WO #5, the SO set in motion a plan for the apprehension of the Complainant. In the event the Complainant dispossessed himself of the edged-weapons and agreed to surrender peacefully, WO #1 and WO #5, stationed at the foot of the flight of stairs going upstairs, would assume physical control over the Complainant and take him into custody. On the other hand, should the Complainant emerge from the bathroom with the edged-weapons in his possession, WO #2, WO #3 and WO #4, positioned in a stack on the staircase, would use their CEWs to immobilize the Complainant. For his part, the SO, at the end of the stack, would have his firearm drawn ready to be used as a last resort if the CEWs discharges proved ineffective.

Soon after the officers moved into their designated locations, the Complainant closed the bathroom door and turned on the water. Those actions caused the officers to fear that the Complainant was self-harming or about to self-harm. With the SO’s approval, WO #5 moved up the stairs and opened the bathroom door. Peering through the door and seeing blood on the bathtub, WO #5 signaled as much to his colleagues and then made his way further into the bathroom. The Complainant was inside the bathtub holding a pair of scissors in one hand and a decorative pillow up against his upper body with the other. He reacted angrily to the officer’s presence and told him to leave. His CEW drawn, WO #5 proceeded further into the bathroom. When he was within an arm’s length of the Complainant, WO #5 tried to yank the pillow out of the Complainant’s hands. The officer managed to raise it a certain distance and then discharged his CEW toward the Complainant’s torso. The discharge had no effect.

The Complainant, still holding the pillow, stepped out of the bathtub and approached WO #5. He had a knife in his right hand and a pair of scissors in his left. WO #5 again discharged his CEW, as did WO #3, who had followed WO #5 into the bathroom. The Complainant continued to advance and was soon outside the bathroom door where there ensued a melee with the officers.

The combatants fell down and landed at the bottom of the flight of stairs. The Complainant swung his knife and scissors at the officers from a supine position on the floor as the officers tried to contain him. Further discharges from the SO’s CEW failed to incapacitate the Complainant, who managed to inflict a deep stab wound into WO #5’s right forearm. WO #5 cried out that he had been stabbed and was taken outside for treatment. The other officers retreated to the extent they could, and the Complainant made it to his feet again.

With the knife and scissors still in his possession, the Complainant angrily confronted the SO and yelled, “Fuck you.” From the top of the staircase looking down, the SO, who had holstered his CEW and drawn his firearm, discharged a single shot at the Complainant. The bullet struck the Complainant in the upper right chest and felled him.

Paramedics at the scene tended to the Complainant and transported him to hospital, where he was pronounced deceased at 9:32 p.m.

Cause of Death


The pathologist at autopsy attributed the Complainant’s death to a gunshot wound to the chest.

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 June 14, 2019, just after 9:00 p.m., the Complainant was mortally wounded by gunfire. OPP officers had responded to the Complainant’s home in Tecumseh following a 911 call from his mother that he was holed up with knives in the bathroom and threatening to harm himself. Following a period of negotiation, a physical altercation ensued between the officers and the Complainant culminating in the Complainant being shot once by the SO. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s death.

Whether pursuant to section 25(3) of the Criminal Code, which restricts an officer’s use of lethal force in the execution of an act which he or she is authorized or required to do by law, or section 34, setting out the ambit of legally justifiable force used in defence of oneself or another from an actual or threatened attack, I am satisfied on reasonable grounds that the SO acted lawfully when he shot the Complainant. The former limits recourse to lethal force to situations in which an officer reasonably believes it is necessary to preserve oneself or another from death or grievous bodily harm. The latter requires that the defensive force be reasonable in all the circumstances with regard to such considerations as: the nature of the force or threat; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force.

At the outset, it bears noting what is readily apparent on the record, namely, that the SO was engaged in the lawful execution of his duties when he responded to the 911 call and took charge of the police response to a highly volatile situation involving an armed man threatening to harm himself and others. In the events that transpired over the course of about 40 minutes prior to the shooting, there is nothing to suggest that the SO acquitted himself other than professionally. By all accounts, the officer did what he could to de-escalate the situation and achieve a peaceful resolution: he had a trained negotiator lead all communications with the Complainant; he consulted with the Complainant’s mother as to what might calm the Complainant and adopted some of her advice, at one point attempting to place the Complainant in touch with his brother; and, he prevented WO #4’s dog from entering the residence for fear that the dog’s barking might provoke the Complainant. All the while, the SO ensured the appropriate resources were in place to deal with various contingencies, such as armed conflict with the Complainant and resulting injury. Needless to say, by the time of the shooting, the Complainant was clearly subject to arrest for his assaultive behaviour toward the officers.

Of course, while the SO’s planning attests to his prudence in the police operation that regrettably ended in the Complainant’s death, the liability analysis is premised on his state of mind and the circumstances such as they prevailed at the time of the shooting. The SO did not interview with the SIU. However, in the notes he made of the incident, the SO says that he discharged his weapon at the Complainant fearing his life to be in danger from an imminent knife attack. I have no reason to doubt the authenticity of the SO’s proclaimed belief.

By the time the SO discharged his firearm, he had just seen and heard the Complainant wildly attacking OPP officers armed with a pair of scissors and a knife, seriously injuring one of them – WO #5 – in the process. Repeated CEW discharges, including two from the SO, had failed to achieve their intended effect. Now confronted with the Complainant rising back to his feet, edged-weapons still in his possession and seemingly intent on injuring the officers, I am satisfied that the SO’s believed that his life was in imminent peril and that shooting the Complainant was necessary to protect himself from a lethal threat. It should be noted that the Complainant was no more than two to three metres away from the SO when the shot was fired, and that retreat was neither readily available to the officer in light of the close quarters in which events transpired nor a realistic option given the risk the Complainant also posed to other officers in the vicinity at the time.

Finally, based on the aforementioned record, I not only believe that the SO was honestly of the view that shooting the Complainant was necessary, I further accept that the officer’s apprehensions were reasonable in the circumstances. Put simply, faced with a mortal threat and only split seconds to decide what to do, I cannot find fault with the SO’s belief that he had to shoot the Complainant to protect himself from an imminent risk of death.

In the final analysis, I am satisfied that the SO did not resort to lethal force other than after the combined manpower of five police officers and repeated CEW discharges had failed to subdue the Complainant and then only as a final option, rendered necessary to thwart a real and present danger of death or grievous bodily harm. Consequently, as I am of the view that the SO did not act excessively or unreasonably when he discharged his firearm at the Complainant causing his tragic death, there is no basis for proceeding with criminal charges in this case against the subject officer and the file is closed.


Date: April 6, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The CEW internal clocks were not synchronized. When corrected, it appears that all eight discharges occurred within seconds of each other starting at about 9:02 p.m. [Back to text]