Director's Report Details

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.

Freedom of Information and Protection of 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.

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 48-year-old man (the “Complainant”).

Notification of the SIU

On July 31, 2019, at 11:30 a.m., the Brantford Police Service (BPS) contacted the SIU regarding a firearm-related injury to the Complainant.

The BPS reported that on Wednesday, July 31, 2019, at 10:10 a.m., BPS officers received a call regarding a man in distress. Subject Officer (SO) #1 and SO #2 attended the Polish Hall located at 154 Pearl Street. The Complainant was in his vehicle at the parking lot of the Polish Hall. He exited his vehicle with a knife and SO #2 discharged his firearm multiple times at the Complainant.

Paramedics attended and subsequently transported the Complainant to the Hamilton Health Sciences Centre (HHSC).

The Scene

The scene was located in the parking lot of the Polish Hall located at 154 Pearl Street in Brantford. The SIU investigators canvassed for witnesses and closed-circuit television (CCTV) within the area.

The scene was secured by the SIU, examined, photographed, and documented by a Total Station. SIU forensic investigators’ examination of the scene revealed relevant items of evidence as follows:

• Five 40 caliber Smith & Wesson cartridge cases;
• Two blood stained conducted energy weapons (CEWs) and two cartridge cases;
• Two blood stained folding knives with approximately 7.5 centimetre blades each;
• The Complainant’s cellular phone; and
• The Complainant’s clothing and other miscellaneous [1] items.

Figure 1 - The parking lot where the shooting occurred. Yellow evidence markers indicate where items, including cartridge cases, knives, CEWs and the Complainant's personal belongings, were found.

At 10:10 a.m. on July 31, 2019, a 911 call was received by the BPS from the Complainant requesting police and paramedic assistance. The recorded call revealed that the Complainant had seen a suspicious motor vehicle parked in his driveway, and that he was feeling unwell and required medical assistance. The Complainant advised the 911 operator that he would wait for police at the Polish Hall located at 154 Pearl Street in Brantford. Police were dispatched both to the Complainant’s residence and to the Polish Hall.

At 10:30 a.m., a radio call was received from one of the subject officers, SO #2, at the Polish Hall, indicating that the Complainant had exited his vehicle with a knife and, at 10:31 a.m., it was reported that shots had been fired. An examination of the firearms of the two subject officers – SO #1 and SO #2 - revealed that each officer had discharged his firearm, with SO #2 having fired his weapon three times, while SO #1 fired his weapon twice. The Complainant sustained multiple gunshot wounds, resulting in severe injuries.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

Section 34, Criminal Code -- Defence of person - Use of threat of force

(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.

(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.

With the assistance of nine independent civilian witnesses, SO #1 and SO #2, and eight witness officers, along with the evidence provided by the two surgeons who operated on the Complainant, the Complainant’s medical records, the 911 and police communications recordings, and CCTV footage from the Polish Hall, the following facts were established. [4]

When SO #2 initially arrived at the Polish Hall at about 10:20 a.m., he parked near the Complainant’s van, in which the Complainant was seated. Prior to SO #2 exiting his police vehicle, the Complainant is seen on the CCTV footage exiting his van, approaching the officer’s vehicle, peering inside, and then going back to his own vehicle and re-entering it. Moments later, SO #2 is seen to exit his vehicle and approach the Complainant, in his van, and they appear to be having a discussion. SO #2 is then seen to walk toward the back of the Complainant’s van and speak into his shoulder-mounted radio. It was at this time, at 10:26 a.m. as confirmed by the communications log, that SO #2 voiced his concerns about the Complainant and requested another officer attend for backup. SO #1 responded.

At 10:30 a.m., SO #2 broadcasted over the police radio that the Complainant had exited his van and had a knife.

The Complainant walked toward SO #2, with a knife in hand, while SO #2 yelled at him to drop the knife. The Complainant failed to do so and was met with a CEW discharge from SO #2’s weapon.

The data retrieved from SO #2’s CEW indicate that it was discharged twice at about 10:30 a.m., each time for a period of five seconds.

The Complainant fell to the ground, where he remained momentarily before again standing up. SO #1 arrived at the Polish Hall and was seen to run toward the Complainant with his firearm drawn. Both SO #1 and SO #2 yelled at the Complainant to put the knife down. SO #2 holstered his CEW and drew his firearm, which he pointed at the Complainant. When the Complainant refused to drop the knife and continued to approach, both officers discharged their firearms. The Complainant fell to the ground but retained the knife in his right hand. SO #1 and SO #2 continued to yell at the Complainant to drop the knife. The CCTV footage revealed the Complainant then lying on the ground and holding the knife to his own throat. Additional officers arrived at the scene and WO #5 was seen to walk toward the Complainant, step on his right forearm with his right foot, grab the knife from the Complainant, and throw it away; a second officer was then seen to kick it further out of reach.

Two bloodstained folding knives, each with a blade of about 7.5 centimetres, were subsequently recovered from the scene.

Based on the facts that the Complainant had little, if any, recollection of events that occurred after he exited his vehicle and that his behaviour was described as peculiar, bizarre, and erratic, I can only deduce that the Complainant was suffering from some type of mental health crisis at the time of this incident.

The details not seen on the CCTV footage, or established by other independent evidence, were filled in by the two subject officers. SO #2 advised, in his statement to SIU investigators, that when he initially approached the Complainant seated in his vehicle, the Complainant asked SO #2 to help him. The Complainant then told him that there was an unknown vehicle parked in his driveway, [5] which had scared the Complainant, resulting in his vomiting and defecating in his pants. When SO #2 asked the Complainant if he had taken any medication or illicit substances, the Complainant advised the officer that he had eaten some leftovers. The Complainant’s odd behaviour caused SO #2 to become nervous, and he stepped back and requested the attendance of another police officer. The Complainant then exited his vehicle with a knife in his hand and SO #2 transmitted this information over the police radio. When the Complainant began to walk toward SO #2, the officer retreated while simultaneously yelling at the Complainant to drop the knife. The Complainant then retrieved a second knife from his pocket and he pointed both knives upward, as he walked toward SO #2. SO #1 arrived on scene as SO #2 pointed his CEW at the Complainant and repeatedly directed him to drop the knives. The Complainant continued toward SO #2, coming within approximately three metres of the officer, and SO #2 deployed his CEW, resulting in the Complainant falling to the ground. Within moments, however, the Complainant got back up with both knives still in his hands. SO #2 deployed his CEW at the Complainant a second time, with the Complainant again falling to the ground, before almost immediately trying to get up for a second time. SO #2 then kicked the Complainant’s left arm with his foot, trying to get him to comply, but the Complainant continued to hold both knives as he began to get up. SO #2 placed his left foot on the Complainant’s head to try and hold him down, as a result of which the Complainant tried to strike at SO #2’s right foot with the knife. SO #2, believing that the Complainant had struck his foot with the knife, backed away from the Complainant attempting to create some distance between them. When SO #2 was approximately three metres from the Complainant, the Complainant stood up and continued his approach on SO #2 with the two knives in his hands. When the Complainant was approximately two metres from SO #2, SO #2 discharged his firearm.

In SO #1’s interview with SIU investigators, he advised that when he arrived at the parking lot of the Polish Hall, he observed SO #2 backing away from the Complainant, following which SO #2 deployed his CEW resulting in the Complainant falling to the ground while still holding onto a knife. SO #1, who was standing approximately one and a half metres from the Complainant, then also deployed his CEW, but it appeared to have no effect; the Complainant began to wave the knife aggressively and refused to comply with the officers’ repeated demands to drop the knife. SO #1 proceeded to draw his firearm, which he aimed at the Complainant, while he too retreated in order to create distance between himself and the Complainant. When the Complainant got up, with the knife still in his hand, and began to aggressively close the distance between himself and SO #2, SO #1 feared that the Complainant was going to injure or kill SO #2, and he discharged his firearm at the Complainant.

The Complainant immediately fell to the ground but continued to hold a knife in his right hand, while both officers yelled at him to drop the knife. The Complainant waved the knife above his head, following which he began to poke at his own head with the knife. SO #1 told the Complainant that they could help him if he would drop the knife and they pleaded with him to do so. Both officers continued to train their firearms on the Complainant, until other officers arrived and WO #5 removed the knife from the Complainant. WO #1 later observed a second knife lying nearby.

Whether considered pursuant to the frameworks set out in section 25(3) or 34 of the Criminal Code, the first setting out the test for legal justification in the case of lethal force used in the execution of a police officer’s duty while the other outlining the parameters of force that is excusable in defence of oneself or another, I am satisfied on reasonable grounds that the conduct of both SO #1 and SO #2 did not run afoul of the limits prescribed by the criminal law.

It is clear that when SO #1 and SO #2 attended to the parking lot of the Polish Hall, they were acting in the course of their duties in that they were responding to a 911 call for assistance from the Complainant. Thereafter, as soon as the Complainant exited his vehicle and it became obvious that he was armed with a knife, and then two knives after retrieving a second knife from his pocket, the officers were clearly acting within the scope of their lawful duties to protect and preserve life, and to investigate and take appropriate action in relation to the Complainant’s possession of dangerous weapons.

In SO #1’s interview with SIU investigators, he indicated that when the Complainant began to walk towards SO #2, he feared that the Complainant might injure or kill SO #2; this fear was shared by SO #2, who had been trying to convince the Complainant to put down his weapon, following which he twice deployed his CEW in apparent attempts to stop the Complainant without having to resort to lethal force. I accept that both SO #1 and SO #2 genuinely and reasonably believed that shooting the Complainant was necessary to protect SO #2 from loss of life or grievous bodily harm. It is instructive to note that both officers present, and SO #2 in particular, had drawn their sidearms in order to protect themselves when repeated directions to the Complainant to drop the knives went unheeded, and multiple CEW discharges at the Complainant had proved ineffective in stopping the Complainant, who was armed, from bearing down on SO #2.

On the aforementioned record, I am unable to reasonably conclude that either SO #1 or SO #2, each under a legitimate apprehension that discharging his firearm was necessary to protect SO #2 from a lethal threat, acted unreasonably in resorting to their firearms. Accordingly, as there is no basis to form reasonable grounds to believe that a criminal offence has been committed by either police officer, no charges will issue and this file is closed.


Date: April 27, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit