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SIU Director’s Report - Case # 19-OFD-222

Contents:

News Releases for this Case:

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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 22-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 12, 2019, at 2:30 p.m., the Kingston Police (KP) notified the SIU of the firearms-related death of the Complainant.

On September 12, 2019, at 2:10 p.m., the Complainant stabbed two people in the downtown area of Kingston at Bagot Street and Queen Street. When KP officers arrived on scene, they confronted the Complainant holding a knife. One of the police officers discharged his firearm and a second police officer discharged his Conducted Energy Weapon (CEW).

The Complainant died at scene. One of the two people stabbed by the Complainant also died at scene, while the other person was taken to hospital and survived.
 

The Team

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

Complainant:

22-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
CW #14 Interviewed
CW #15 Interviewed
CW #16 Interviewed
CW #17 Interviewed
CW #18 Interviewed
CW #19 Interviewed
CW #20 Interviewed
CW #21 Interviewed
CW #22 Interviewed 

Witness Officers

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


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The intersection of Bagot Street and Queen Street where the incident occurred.

Figure 1 - The intersection of Bagot Street and Queen Street where the incident occurred.


The scene was located on the street and sidewalk at the northwest corner of Bagot and Queen Streets. SIU Forensic Investigators (FIs) noted clothing, CEW wire, a 9mm pistol ammunition magazine, a 9mm cartridge case, medical items, and blood on the street and sidewalk.

A marked KP cruiser was on Bagot Street facing south. A black Mercedes was parked on the northeast side of Bagot Street facing north. Another marked KP cruiser was parked on Queen Street facing west. This cruiser had a diagram drawn on the hood.

FIs also examined a black BMW. This vehicle had what appeared to be a bullet strike mark on the right front windscreen. The damaged windscreen was photographed by FIs.


Figure 2 - The windshield of a black BMW at the scene with damage from what appears to be a bullet strike.

Figure 2 - The windshield of a black BMW at the scene with damage from what appears to be a bullet strike.


The knife used by the Complainant was photographed by FIs and collected.

Figure 3 - The knife used by the Complainant that was recovered from the scene.

Figure 3 - The knife used by the Complainant that was recovered from the scene.


FIs also completed total station measurements of the scene, as well as photographs and a video recording.

Scene Diagram

Scene diagram

Physical Evidence


FIs located and collected:

  • 9mm cartridge case;
  • 9mm ammunition magazine with 17 cartridges;
  • Black handle knife, 33 centimetres total length with 20-cemtimetre blade; [1]
  • Swabs from the road scene and the sidewalk scene;
  • CEW wires;
  • Cut clothing and backpack strap;
  • Backpack;
  • Blue baseball-style hat;
  • 3 CEW blast doors; and
  • Cigarette lighter.


KP CEWs seized:

  • One carried by the SO with one deployed cartridge case and one cartridge not deployed; and
  • A second carried by WO #1 with one deployed cartridge case and one cartridge not deployed.


The SO’s firearm and ammunition:

  • A 9mm Glock 22 pistol;
  • One single cartridge from the chamber of the Glock;
  • One magazine with 16 cartridges from the Glock; and
  • One magazine with 17 cartridges from the SO’s body armour vest.

Figure 4 - The SO's firearm and ammunition.

Figure 4 - The SO's firearm and ammunition.

Forensic Evidence

The Centre of Forensic Sciences (CFS) examination confirmed that the spent cartridge case recovered at the scene was fired from the SO’s firearm.

Video/Audio/Photographic Evidence


Cellphone video #1


On September 12, 2019, a civilian used his cellphone camera while he walked northbound on Bagot Street, just south of Queen Street. He captured the following video recording:

A man [now determined to be the stabbing victim who succumbed to his injuries] was lying in the street north of Queen Street on the west side of Bagot Street in front of 121 Queen Street. Another man [now determined to be the Complainant] was holding onto a third man [now determined to be CW #16]. The Complainant had a knife and forced CW #16 onto the sidewalk on the northwest side of Queen Street at Bagot Street. He stabbed CW #16 twice in the face area.

A police officer [now determined to be the SO] ran north on Bagot Street. He was talking on his police radio and drew his pistol at the same time. The SO approached CW #16 as CW #16 lay on the ground. The Complainant walked west on Queen Street out of view.

The Complainant returned and ran eastbound on Queen Street. He then ran north on Bagot Street. A woman [now determined to be CW #17] was nearby and ran south on Bagot Street away from the Complainant. In response, the SO ran north on Bagot just north of Queen Street. The Complainant was running just ahead of the SO. Without warning, the Complainant stopped, turned around and ran south on Bagot Street towards the SO. The SO fired a single shot and the Complainant continued south on Bagot Street towards the SO. The SO walked backwards onto the roadway creating distance between himself and the Complainant. The Complainant continued to go at the SO.

A KP cruiser arrived going southbound on Bagot Street towards Queen Street. The cruiser stopped just north of the intersection. The Complainant stopped and walked backwards onto the sidewalk. As more police officers arrived, the Complainant was standing near 121 Queen Street and then walked away from the police officers.

Cellphone Video #2


The video was taken on September 12, 2019. The video was taken from the east side of Bagot Street north of Queen Street and is 32 seconds in length. It showed the following:

The video began with a KP cruiser, with its siren on, stopping on Bagot Street, just north of Queen Street, facing southbound. Two uniformed police officers [now determined to be WO #1 and WO #2] exit the cruiser. At about the same time, two plainclothes police officers [now determined to be WO #3 and WO #4] arrived. WO #1 and WO #2 had their pistols in hand, whereas WO #3 and WO #4 only had their hands on their holstered sidearms.

A parked vehicle on the west side of Bagot Street blocked part of what the Complainant did. The Complainant faced the police officers. He stood on the northwest side of Bagot Street and Queen Street. The Complainant had his hands up in the air and suddenly he dropped to the ground.

Police Communications Recordings

On September 12, 2019, at 1:43 p.m., KP received the first 911 call about a man [now determined to be the Complainant] stabbing another man at Queen Street and Bagot Street.

At 1:44 p.m., the SO notified the police dispatcher he was on scene.

At 1:45 p.m., the SO requested an ambulance.

At 1:45 p.m., the SO notified police dispatch that the Complainant stabbed himself in the neck.

At 1:46 p.m., the SO notified police dispatch that the Complainant was not breathing. Furthermore, the Complainant had multiple stab wounds to his neck and appeared unconscious.

At 1:47 p.m., the SO reported over the police radio that the Complainant was going Vital Signs Absent. He also advised he was unable to do CPR, as that would cause more bleeding.

At 1:50 p.m., the SO reported an ambulance had arrived on scene.

At 1:57 p.m., the SO advised the scene was secured.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the KP:
  • Photo and Video Evidence List;
  • Communications recordings;
  • Canadian Police Information Centre records;
  • Detailed Computer-Assisted Dispatch Report;
  • General Occurrence Report (x2);
  • Global Positioning Satellite Logs - September 12 - 1:40 to 2:40 p.m. - all units;
  • KP Interview Synopsis of CW #18;
  • Mobile Data Terminal Logs - all units - September 12, 1:40 – 2:10 p.m.;
  • Narrative from undesignated officer;
  • Notes of witness officers and the SO;
  • Procedure-Use of Force;
  • Procedure-Armed Persons, Barricaded Persons and Hostage Situations;
  • Procedure-Response to Major Incidents;
  • Procedure-SIU Procedures and Protocols;
  • Procedure-Arrest; and
  • Witness Statement of CW #4, CW #7 and CW #21.

Materials obtained from Other Sources

The SIU obtained and reviewed the following materials and documents from other sources:
  • CFS Firearms Report-October 18, 2019;
  • Police Firearms Acquired-Canadian Firearms Program;
  • Drawing of Scene-CW #9;
  • Drawing of Scene-CW #17; and
  • Cell phone video from SIU website (x2).

Incident Narrative

On September 12, 2019, at approximately 1:44 p.m., the SO of the KP was on routine patrol when he was flagged down by a pedestrian who reported that a man was up the street stabbing people. The SO immediately attended and attempted to arrest the man, the Complainant. During the SO’s interaction with the Complainant, the Complainant was shot and later died at the scene.

Just about the entire incident was captured on the cell phone video as recorded by an independent civilian witness. The video reveals one man lying in the street (later determined to be a man who later died of stab wounds inflicted in an attack by the Complainant), while the Complainant is seen holding onto, and struggling with, a second man on the street (CW #16). The Complainant forces CW #16 to the ground and stabs him twice in the face area. The SO is then seen to run toward the Complainant, while talking into his police radio, and simultaneously drawing his firearm. The SO can be heard repeatedly shouting at the Complainant to get down on the ground, while the Complainant responds, “Fuck you!” and moves away from CW #16, who remains lying on the sidewalk with his hand to his face.

The Complainant runs out of camera view west on Queen Street and the SO follows. The Complainant is next seen returning to camera view in the intersection of Queen and Bagot Streets, and running into the street and chasing a woman, who runs up onto the sidewalk with the Complainant following. The SO enters the camera view still shouting at the Complainant, with his firearm drawn and pointed at the Complainant.

The Complainant then runs north on the west sidewalk of Bagot Street with the SO a short distance behind. The Complainant suddenly turns toward the SO and runs at him, while the SO backpedals quickly to get away from the Complainant. A gunshot is then heard, and the Complainant is seen to grab his abdominal area, but he continues to run. The Complainant initially backtracks a short distance as the SO backs away into Bagot Street. The Complainant then again moves forward, still holding his abdomen, and runs at the SO, who quickly runs backward and further into the street. The SO still has his firearm out and pointed at the Complainant and is continually yelling at the Complainant to get on the ground.

A police SUV is then seen to arrive and screech to a halt, with the police vehicle stopping just short of and between the Complainant and the SO. Two police officers, one from the passenger side and one from the driver’s side, immediately exit the SUV with weapons drawn and pointed at the Complainant; they also begin to yell at the Complainant to get on the ground. The Complainant then moves onto the sidewalk on the northwest corner of Queen and Bagot Streets, and the police officers are seen to slowly move toward him.

The Complainant was holding a large knife in his right hand at the time that the SO had his firearm aimed at the Complainant. The Complainant was then seen to raise a large knife and advance on the SO. The SO backed up with his pistol trained on the Complainant. The Complainant then charged at the SO and came to within a couple of metres or so of the SO when the SO fired his pistol once at the Complainant, striking him. Seconds later, the Complainant moved back onto the sidewalk at the northwest corner of the Queen and Bagot Streets intersection as the SO yelled at him to drop the knife. When the Complainant reached some shrubs in front of a condominium building, he was observed to take the knife and stab or slash himself in the neck multiple times. The SO and WO #1 then deployed their CEWs on one occasion each, and the Complainant fell backwards, allowing the police officers to move in, disarm him, and perform life saving measures.

According to the communications recording, the entire interaction took less than one minute, with the SO reporting that he had arrived on the scene at 1:44 p.m. and, at 1:45 p.m., calling for an ambulance and reporting that the Complainant had stabbed himself.


Cause of Death


On September 13, 2019 at 11:00 a.m., a Forensic Pathologist performed a post-mortem examination on the Complainant at Kingston General Hospital. Three CEW probes were located on the body and clothing of the Complainant.

The preliminary finding following the post-mortem examination of the Complainant concluded that the cause of death was stab wounds to the neck and a gunshot wound to the torso.

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.

Analysis and Director's Decision

The SIU’s investigation into the circumstances surrounding the Complainant’s death consisted of interviews with 22 civilian witnesses and four police witnesses; the SO also consented to an interview and the release of his incident notes. In addition to the eyewitness evidence, SIU investigators also obtained and reviewed two video recordings of the incident made by civilian witnesses with their phones. From a review of this evidence, and for the reasons that follow, I am unable to find that the deadly force used against the Complainant was excessive or unjustified, and therefore have no reasonable grounds to believe that the SO committed a criminal offence in relation to the discharge of his firearm and the subsequent death of the Complainant.

Pursuant to section 25(3) of the Criminal Code, police officers are immune from criminal liability for lethal force used in the course of their duties provided they reasonably believe such force is necessary to protect oneself or a third-party under their protection from death or grievous bodily harm. On the record in this case, I have no difficulty in finding that the SO’s use of lethal force against the Complainant was legally justified. For whatever reason, the Complainant was on a violent rampage. Knife in hand, with a 20-centimetre blade, he had viciously attacked an innocent civilian – now deceased – and was in the middle of stabbing another – CW #16 – when the SO arrived on scene at the intersection of Queen and Bagot Streets. The Complainant was obviously subject to lawful arrest.

The officer quickly appreciated what he was up against. He drew his firearm and ran toward the Complainant’s location on the northwest corner of the Queen and Bagot Streets intersection. He ordered the Complainant to get on the ground and then pursued him as he fled westward away from the slumped body of CW #16, whom he had just stabbed with the knife. The officer kept pace with the Complainant, who re-entered the intersection and chased after another civilian with the knife in hand. The civilian was fortunate to get away, at which point the Complainant proceeded north along the west sidewalk of Bagot Street north of Queen Street, before suddenly changing course and moving toward the officer. The SO demonstrated restraint as the Complainant closed the distance between them. He moved backward on the sidewalk and discharged his firearm once at the Complainant at close range just before stepping off the sidewalk onto the roadway. The Complainant continued to move toward the SO but soon retreated toward the northwest corner of the intersection again where, with a number of officers now confronting him, he started to stab himself with the knife. Following two CEW discharges, the Complainant was apprehended, whereupon the officers attempted life-saving measures.

On the aforementioned record, it is clear that the Complainant was on the cusp of launching a knife attack on the SO when the officer fired his weapon. It is also clear that the SO had no other option if he was going to preserve himself from a potentially lethal attack. In the result, while it appears that the gunshot wound the Complainant sustained, in combination with the knife wounds he self-inflicted, contributed to his death, I am satisfied that the SO acted lawfully throughout his engagement with the Complainant. Indeed, in addition to protecting himself, the officer’s interventions are likely responsible for preventing the Complainant from having killed CW #16 and inflicting grievous if not mortal harm to CW #17. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: May 5, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes