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SIU Director’s Report - Case # 19-OVI-170a

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 27-year-old man (“Complainant #1”) and serious injuries sustained by a 64-year-old woman (“Complainant #2”).

The Investigation

Notification of the SIU

On July 23, 2019, at 10:40 p.m., the Peterborough Police Service (PPS) notified the SIU of Complainant #1’s death.

The PPS reported that on July 23, 2019, at 8:30 p.m., PPS officers attempted to stop a vehicle on Highway (Hwy) 115 near County Road (CR) 21. The vehicle was flagged on a Provincial Alert as wanted in relation to several armed robberies in the Barrie area. A pursuit was initiated, then terminated, just outside Peterborough. A short time later, police officers came across a vehicle collision involving the pursued vehicle in the area of Hwy 115 and The Parkway exit. As police officers approached the area, the driver [now known to be Complainant #1] apparently raised a shotgun and pointed it at police officers. The police officers contained the area and commenced negotiations with the occupants of the vehicle. During negotiations, Complainant #1 reportedly put the shotgun to his chin several times.

At 9:41 p.m., the Subject Officer (SO) fired a C8 rifle and struck Complainant #1. Shortly thereafter, the woman passenger [now known to be Civilian Witness (CW) #6] surrendered. Complainant #1 was transported to the Peterborough Regional Health Centre where he was pronounced dead at 10:30 p.m.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 4

The SIU forensic investigators (FIs) photographed the scene. The area was canvassed for surveillance cameras and witnesses. The SIU FIs collected a loaded “12 GA 2 ¾ Triple Threat Model” shotgun, Winchester 12 gauge, Heavy 8 load shot shell, a Colt C8, two .223 cartridge cases, a Colt C8 magazine holding 26 .223 cartridges, and Peerless handcuffs. A BB Gun (revolver .357 replica Crossman, loaded with 6 cartridges, two of which had been fired) was seized by the PPS.

Given that the Ontario Provincial Police (OPP) had a motor vehicle accident to investigate, the SIU turned over the scene to the OPP
 

Complainants

Complainant #1 27-year-old male, deceased
Complainant #2 64-year-old female 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 Not interviewed (Declined)

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed
WO #11 Interviewed
WO #12 Interviewed
WO #13 Notes reviewed, interview deemed not necessary
WO #14 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located at the Hwy 115 northbound exit, where the exit meets The Parkway and Sir Sandford Fleming Drive, in Peterborough.

A red Ford Mustang convertible was located on the raised median that separates the off/on-ramp for Hwy 115; it had damage to the left rear corner. 
 

Figure 1 - The red Mustang Complainant #1 was driving and the replica Crossman air gun that was located near the vehicle.
Figure 1 - The red Mustang Complainant #1 was driving and the replica Crossman air gun that was located near the vehicle.


The vehicle had been northbound on the Hwy 115 off-ramp when the driver lost control and the vehicle slid sideways into the on-ramp lanes, striking the second vehicle, a black Pontiac Torrent. The Torrent had damage to the left front corner and the driver’s airbag had deployed; it was located in the on-ramp lanes leading toward Hwy 115.

A PPS unmarked police vehicle, a blue Chevrolet Equinox, was located toward the rear of the Mustang; a PPS marked police vehicle, a white Ford Explorer, a supervisor vehicle, was located several metres behind the unmarked Chevrolet Equinox; a second PPS marked police vehicle, another white Ford Explorer, was located several metres behind the supervisor’s vehicle; an OPP unmarked police vehicle, a grey Dodge Charger, was located several metres behind the Mustang; an OPP marked police vehicle, a black Ford Explorer, was parked behind the Charger; and, an OPP marked police vehicle, a black Ford Explorer, was located on the east shoulder of the off-ramp, perpendicular to the Mustang.

There was a pool of blood on the raised median at the left front corner of the Mustang. There was a live shotgun shotshell on the median south of the blood. There was a triple barrel shotgun, with the breach open exposing three shotshells south of the shotshell. On the pavement, outside the driver’s door, was an OPP evidence bag containing a .357 replica Crossman air gun; the air gun was loaded with six cartridges, two of which had been fired.


Figure 2 - The triple barrel shotgun found at the scene.
Figure 2 - The triple barrel shotgun found at the scene.


There was a police portable radio on the hood of the unmarked PPS Chevrolet Equinox. This radio was labelled with WO #2’s last name. A second police radio was on the roof of the vehicle above the right rear tire. There were two .223 calibre cartridge cases near the left front corner of the Equinox.

A Colt C8 .223 rifle was located behind the unmarked OPP Dodge Charger; the rifle had a label with a variation of the SO’s last name on it, near the butt of the gun


Figure 3 - The SO's C8 rifle.
Figure 3 - The SO's C8 rifle.

Scene Diagram

Scene diagram

Forensic Evidence

On July 23, 2019, the Colt C8 was submitted to the Centre of Forensic Sciences (CFS) for firearm examination.

On October 16, 2019, the SIU received the CFS Firearms Report. The expert concluded that, “The Item 4 rifle functions as designed as a semi-automatic rifle. During testing, it did not exhibit tendencies to discharge as a fully automatic rifle. Due to insufficient individual characteristics for comparison, the Item 5 and 6 cartridge cases could neither be identified nor eliminated as having been fired by the same firearm or by the Item 4 rifle; however, they share the same discernible class characteristics”.

On August 9, 2019, the SIU delivered a package located on Complainant #1’s body to the Drug Analysis Service for examination. On November 4, 2019, the Certificate of Analysis was reviewed, and the contents of the package were found to be methamphetamine.

Video/Audio/Photographic Evidence


Summary of Video Taken by Civilian


The sirens are heard in the background and an expletive is heard in a woman’s voice. A red car, with both headlights activated, is stopped facing south, just south of Sir Sandford Fleming Drive, in the centre of the concrete median which divides the northbound Hwy 115 “off-ramp” from the Hwy 115 southbound “on-ramp.” A dark-coloured SUV is stopped facing south on the curb, in the southbound lane of the Hwy 115 southbound “on-ramp” about halfway between the red car and CW #2’s car. A person in dark clothing, with a wide stance, is at the driver’s door of the red car. The arms of the person in dark clothing move constantly. A dark SUV is stopped facing northwest, immediately to the east of the red car, and a marked police car with activated emergency lights is also stopped immediately south of the above dark-coloured SUV. The person in dark clothing at the driver’s door of the red car moves to the east a few steps, away from the red car. A woman’s voice cries, “Oh my God. There’s a bunch of guns.” 
 

Summary of Audio Recorded by Civilian


The OPP police officer told CW #2 to keep the video and call “city” police in the morning. CW #2 clarified that the city police meant the Peterborough police. The police officer explained to CW #2 to remember what she saw and tell the city police she was directed to call them and also to tell the police that her son had shot a video of what had happened.

The police officer told CW #2 that police were currently in a gun point takedown, that the two people in the car had done a bunch of armed robberies, and that they were “hard core” and armed with assault rifles and a handgun.

Communications Recordings

The PPS Operator informed the OPP Operator about a stolen vehicle and a woman driver. Then the PPS Operator informed the OPP Operator that the PPS were in pursuit of a stolen vehicle, a Mustang, northbound on Hwy 28 and that WO #4 was in pursuit, driving at 140 km/h, with no traffic. The Mustang continued northbound on Hwy 115, accelerating to 150 km/h. The Mustang exited at The Parkway and got into a collision. The EMS (Emergency Medical Services) was requested to attend.

The pursuit turned into a barricaded person situation and a negotiator was at the scene. The shotgun was inside the vehicle. WO #10 confirmed that the man was Complainant #1 from the zone alert the other day and he had been involved in armed robberies. A woman was identified as CW #6. The police officers were still negotiating with the occupants and had not yet gotten them out of the vehicle. The occupants were both suicidal. The man had his firearm in his mouth and they both said they wanted to die. “Negotiations are hot and cold here, they’re going back and forth from talking to taking cover, so.”

WO #4 radioed: “We just gotta watch for the crossfire. I think you guys are pointed right down towards the OPP down here. Maybe, can you come around to the back of the OPP cruiser? Is there a better positioning for you guys? We got some crossfire happening here. Conversations are still happening. Everything is working forward here. We’re moving forward. We have [WO #3] and an OPP negotiator and things are mildly progressing.”

The Emergency Response Team (ERT), as well as a K-9 Unit, had been dispatched to the scene.

A sergeant contacted WO #4 and indicated: “Well it’s, it, it was a, I was monitoring and stuff like that. There’s nothing wrong with the chase and you know it was all good. And the thing is, is that we don’t know the extent of injuries yet here, so we have to wait and hear, hear on that. You know these guys are involved in those armed robberies, right? Have we seen the guns?” WO #4 confirmed: “He’s a three-time parolee and has nothing to lose. He’s already said, I’m not going, so yeah, it’s going to be a tough one. When I walked up to the door, I had my gun point when I jumped out of the car, when he crashed. I’m going at the driver’s door with my gun drawn telling him I want to see your hands, let me see your hands and he pointed the shotgun back at me. And ah, and “I’m going to kill myself, I’m going to kill myself”, so I yelled “gun”. We all bolted by in cars. And then she’s already thrown out a revolver. She had a revolver as well. I don’t know how many guns are in that place.” The sergeant asked to keep him updated.

WO #4 broadcast: “[The SO], can you hear me? So, you know you’ve got a full team coming.”

The SO radioed: “We’re not going to allow him to get out of this vehicle. If he attempts to get out of the vehicle, I will take a shot from here. Other than that, I think there is too much crossfire at this point. For everyone in the inside perimeter, please acknowledge that, please. Just to confirm, he’s saying he’s got a triple barrel 12 gauge. They say he’s got 3 rounds.”

WO #3 reported: “Our conversations have taken a couple of steps backwards, I believe, but still, still talking, he’s still communicating.”

The SO radio communicated: “He’s out of the vehicle, through this, the top. Got the gun right to his throat here (Complainant #1 is shouting in background very loudly).”

WO #4 broadcast: “Shots fired, let’s leave this line open please. From my vantage point we have one female in custody, I’m not sure about the male, what the status is. Please put a rush on EMS. I have [the SO] and I have [WO #3] in a mini-van.”

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP and the PPS:
  • Contacts of family;
  • Canadian Police Information Centre Report;
  • Crisis Negotiator Certificate – WO #3;
  • Chronology Computer-Assisted Dispatch;
  • Disclosure Package (Shotgun Shell);
  • Firearm Acquired Form (Canadian Firearm Program) (x2);
  • General Order - Major Incident Command;
  • General Order - Crisis Negotiation;
  • General Order - Crisis Negotiator Manual;
  • General Order - Suspect Apprehension Pursuits;
  • General Report (x2);
  • Homicide Sudden Death Report;
  • Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8 (x2), WO #9, WO #10, WO #11 and WO #12;
  • Occurrence Report (x2);
  • Occurrence Summary (x3);
  • Training Record-WO #8;
  • Use of Force Qualifications for the SO and WO #3; and
  • Zone alert OPP.

Materials obtained from Other Sources

Upon request, the SIU obtained and reviewed the following documents from other sources:
  • Incident Report from Emergency Medical Services and Ambulance Call Report;
  • Incident Report from Peterborough Fire Department and Fire Fighters’ Personal Statements;
  • Medical Records for Complainant #2;
  • Video recording from a civilian;
  • Photos and audio from a civilian; and
  • Photos of shotgun shell taken by the PPS.

Incident Narrative

On July 23, 2019, following a BOLO (be on the lookout) for a stolen red Mustang, a PPS officer, WO #4, located the vehicle and a vehicular pursuit was initiated, ending when the Mustang was involved in a collision with another motor vehicle. After a stand-off with police, the driver of the stolen motor vehicle – Complainant #1 - was shot and killed by the SO.

With the assistance of seven civilian witnesses, and the statements of 14 police witnesses (including the SO), cross-referenced against a civilian video, a civilian audio recording, and the police communications recordings, and corroborated by forensic examination of both the scene and the firearms involved, along with a post-mortem examination of Complainant #1, the following scenario emerges from the evidence collected by the SIU.

Following the BOLO, WO #4 observed a red Mustang travelling eastbound on CR 21 and, when it failed to stop, pursued the vehicle. Traffic was sparse on the rural road and WO #4 maintained about 100 metres distance from the Mustang. At points, the Mustang’s driving was erratic. It drove into oncoming lanes of traffic at a roundabout at CR 21 and Hwy 28, causing other drivers to take evasive action. As the Mustang continued northbound on Hwy 28, it swerved in and out of lanes and varied its speed between 80 km/h and 140 km/h.

As the Mustang approached Hwy 115, it slowed and made a rapid turn onto the on-ramp. WO #4 followed the Mustang onto Hwy 115 towards Peterborough at about 140 km/h but reduced his speed to 120 km/h as they came upon a group of vehicles. After they passed the vehicles, WO #4 increased his speed to 180 km/h in an effort to catch up to the Mustang, which was now approximately 300 metres away.

Shortly thereafter, WO #4 observed the Mustang slow as it approached the Sir Sandford Fleming Drive/The Parkway off-ramp. When the Mustang turned on the off-ramp, WO #4 followed with his foot off the accelerator. The Mustang was still travelling at about 80 to 100 km/h as it navigated the curve of the ramp, lost control and crossed the centre median – striking the driver’s side of a vehicle travelling in the opposite direction. The driver of the vehicle, Complainant #2, sustained a broken arm in the collision.

Following the collision, several PPS and OPP officers converged on the scene. The Mustang was approached by WO #4, who had his firearm drawn, in order to remove the occupants from the vehicle. However, as he reached for the driver side door handle, he observed that the driver had a shotgun in his hand, the barrel of which he brought up under his chin while screaming that he was going to kill himself. WO #4 also observed a second occupant in the vehicle, a female, who was also screaming and appeared to be very distraught. WO #4 immediately shouted out to the other officers, “Gun!” and all officers retreated.

In the absence of a trained negotiator, one of the officers present, WO #3, attempted to engage the driver of the stolen Mustang, who identified himself as Complainant #1, in an effort to convince him to drop the firearm and exit the vehicle. While police initially were concerned that the passenger in the Mustang, CW #6, was a possible hostage, over the course of the interaction it became clear that she was willingly in the car and, in fact, continually instigated confrontation between Complainant #1 and the police. Once the identity of Complainant #1 was discovered, a query of his name revealed that he was wanted for several armed robberies in the Barrie area, in which he had an accomplice, a female, and that he had a history of violence and weapons offences.

Over the course of almost one hour, WO #3 attempted to convince Complainant #1 to drop his firearm and exit his vehicle. Complainant #1 made the officers aware that he was in possession of a “triple barrel shotgun”. At one point, CW #6, who seemed to be in possession of a handgun, apparently inadvertently dropped it and it fell to the ground outside the vehicle. During the negotiations between Complainant #1 and WO #3, Complainant #1 repeatedly indicated that he was going to kill himself or, alternatively, that he wanted the police to shoot him. He also stated that he wanted to die but that he did not have the nerve to do it himself.

Approximately ten minutes into the negotiations, the SO, from the PPS ERT, attended and set up a C8 rifle on the hood of WO #3’s police vehicle about five to six metres away from the Mustang. Complainant #1 repeatedly invited the SO to shoot him, while WO #3 continued to attempt to de-escalate the situation by reassuring Complainant #1 that no one was going to be shot and “nobody is going to die.” At one point, Complainant #1 and CW #6 both indicated, very loudly, that they wanted to die and they wanted to kill each other; they also said that they wanted the police officers to kill them and/or they would kill the police officers. Complainant #1 was repeatedly told that he was not to exit the vehicle with the firearm.

After approximately 45 minutes of negotiations, Complainant #1 stood up in the car (the Mustang was a convertible and Complainant #1 had earlier removed the roof) for about five minutes, playing with the safety on the firearm. Complainant #1 also indicated that the psychedelic mushrooms that he had previously consumed were beginning to take effect. Complainant #1’s behaviour was clearly erratic and irrational.

The SO had a message go out over the radio to all officers present that there was a risk of crossfire due to the location of various officers around the Mustang, and that if Complainant #1 was to exit the Mustang with the firearm, it would be he - the SO - who would take the shot, and no one else was to discharge their weapons.

With the shotgun positioned under his chin, Complainant #1 then swung one leg over the driver’s door of the Mustang and straddled it while WO #3 continued to plead with him to stay inside the car. Complainant #1 then turned the gun on CW #6 but did not fire. He was then heard to say either “here I come” or “here we go” following which he swung his other leg out of the car. At that point, as Complainant #1 exited the motor vehicle with the firearm in hand, WO #3 drew his handgun, as did a number of other officers.

Once Complainant #1 had both feet on the ground, with his left hand holding the barrel of the shotgun under his chin and his right on the trigger, he turned to his right side and moved the barrel forward and away from his chin, bringing the stock back and in a position to discharge the firearm away from himself. At that point, the SO feared for everyone’s life, including his own, as Complainant #1 was no longer contained in the Mustang. Complainant #1 began to walk away from the car toward three other police officers causing the SO to believe that those three officers’ lives were now at risk and prompting him to discharge his rifle twice, shooting Complainant #1 twice in the back. The SO indicated that he could not permit Complainant #1 to completely lower his firearm, because at least three police officers would have been in his line of fire. Police officers then immediately moved in and put pressure on Complainant #1’s wounds, following which the Fire Department took over Complainant #1’s care and he was transported by ambulance to hospital. Complainant #1 later succumbed to his injuries.

The triple-barreled shotgun wielded by Complainant #1 was recovered from the scene and found to contain three live shot shells. 
 

Cause of Death


On July 25, 2019, a forensic pathologist conducted a post-mortem examination on Complainant #1’s body. The cause of death was determined as, “a gunshot wound to torso.”

Relevant Legislation

Section 25, 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.

Section 128(13)(b), Highway Traffic Act – Police vehicles and speeding

128(13) The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,

(b) a police department vehicle being used in the lawful performance of a police officer’s duties.

Section 320.13, Criminal Code – Dangerous operation causing bodily harm

320.13 (2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.



Analysis and Director's Decision

Considering first the lawfulness of the pursuit, I am unable to conclude that WO #4’s actions amounted to the offence of dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. The offence of dangerous driving is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. It is important context that WO #4 was in the lawful execution of his duties when he signaled for the Mustang, which he believed to be stolen, to pull over. When the Mustang failed to stop, WO #4 was well within his authority to pursue the vehicle. He immediately reported to dispatch that he was in pursuit of the vehicle, as required by O. Reg. 266/10: Suspect Apprehension Pursuits, and his actions, including his speed, were continuously monitored by dispatch. WO #4 was never advised to terminate the pursuit.

Throughout the pursuit, WO #4 adjusted his speed to suit traffic conditions; travelling at roughly 140 km/h on Hwy 115 when traffic was light and reducing his speed to 120 km/h when approaching and passing a group of vehicles. WO #4’s top speed – 180 km/h – is some cause for concern; however, I do not find this alone constitutes a marked departure from the requisite standard of care. WO #4 only reached this speed for a short duration, when he was not in the presence of other motorists and in an effort to close a gap between himself and the Mustang. Moreover, WO #4’s speed is also mitigated to some extent by section 128(13)(b) of the Highway Traffic Act, which, while it does not provide an officer free rein to exceed the speed limit without regard for public safety considerations, does allow an officer to speed where she or he is in the lawful performance of duty.

Furthermore, WO #4 continually reassessed whether he should terminate the pursuit having regard to public safety. For instance, in his interview with the SIU, WO #4 indicated that he considered whether to continue the pursuit after the Mustang drove into oncoming traffic at the roundabout at CR 21 and Hwy 28. WO #4 only continued the pursuit after noting that conditions were perfect – the weather was good, roads were dry and visibility was clear. He was also familiar with the area and cognizant that the road now consisted of long stretches. WO #4 explained that he made the decision to discontinue the pursuit when the Mustang turned suddenly onto the Sir Sandford Fleming Drive/The Parkway off-ramp, which was a more heavily trafficked area. WO #4 took his foot off the accelerator and followed closely behind the Mustang. Should WO #4 have refrained from following the Mustang at this point? Perhaps. However, I am unable to find this momentary indiscretion, if it be such, tips the balance in favour of a marked departure in the context of an otherwise appropriately conducted pursuit.

I turn now to consider the lawfulness of the force used against Complainant #1 which ultimately resulted in his death. 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, the other outlining the parameters of force that is excusable in defence of oneself or another, I am satisfied on reasonable grounds that the SO’s conduct did not run afoul of the limits prescribed by the criminal law. Complainant #1 was not of sound mind at the time of the events in question. He was, at the very least, under the influence of illicit drugs and he was extremely distraught over his impending return to a custodial facility, as demonstrated by his referring to himself as a three time parolee who had nothing to lose and saying on multiple occasions words to the effect of “It ends here tonight, it’s over tonight, I’m not going back to jail”. His state of mind was further demonstrated by his repeatedly putting the barrel of the gun under his chin, with threats that he was going to kill himself, and possibly CW #6, and his demands for the police to shoot him. Additionally, police were aware that Complainant #1 and CW #6 were alleged to have been involved in several violent armed robberies with firearms. Furthermore, as soon as WO #4 approached the vehicle, it became obvious that Complainant #1 was in possession of a lethal weapon. Knowing all this, the police officers surrounding the Mustang 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 Complainant #1’s possession of a stolen motor vehicle and a firearm.

In the SO’s interview with SIU investigators, he indicated that when Complainant #1 exited the Mustang with the firearm, he feared for the life of his fellow officers, as well as his own; this fear appears to have been shared by the other officers present, including WO #3, who had been tirelessly trying to convince Complainant #1 to put down his weapon and to end this incident without the loss of life. I accept that the SO genuinely and reasonably believed that shooting Complainant #1 was necessary to protect both himself, and his fellow officers, from loss of life or grievous bodily harm. In fact, it had been agreed in advance among the officers present that if Complainant #1 exited the motor vehicle with the firearm, they would consider him a grave and lethal threat to both the community at large, and the police officers present in particular, and that the SO would then have to shoot Complainant #1. In this context, it is instructive to note that other officers present, who were similarly situated at the time, had also drawn their sidearms in order to protect themselves, opting not to shoot because of the possibility of crossfire and the direction given that it was to be the SO who was to take the shot. On this record, I am unable to reasonably conclude that the SO, under a legitimate apprehension that discharging his firearm was necessary to protect himself and his fellow officers from a lethal threat, acted unreasonably in so doing notwithstanding the resulting and tragic loss of life.

In the result, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: June 8, 2020


Electronically signed by

Joseph Martino
Director
Special Investigations Unit