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SIU Director’s Report - Case # 20-OFI-012

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 serious injury that a 46-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On Wednesday, January 22, 2020, at 5:15 p.m., the Halton Regional Police Service (HRPS) notified the SIU of a firearm-related injury to the Complainant.

The HRPS advised that on January 22, 2020, the HRPS received information from the Complainant’s wife reporting that her husband had threatened to shoot up their residence. The Complainant owned firearms. HRPS police officers subsequently responded to an address on Delrex Boulevard in Georgetown and began negotiations with the Complainant. At about 3:00 p.m., the Complainant exited his residence and became agitated with police officers. An Anti-Riot Weapon Enfield (ARWEN) was deployed and then a Conducted Energy Weapon (CEW). The first shot fired from the ARWEN was a low velocity projectile which the Complainant attempted to catch and then throw back at the police officers. A second higher velocity projectile was deployed, using the ARWEN, which struck the Complainant in the knee. The Complainant was then taken into custody.

The Complainant complained of pain in his leg and was transported to hospital. At the Georgetown Hospital, he was diagnosed with a fractured knee cap. The Complainant was transferred to the Oakville Trafalgar Hospital for further treatment.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainants

Complainant: 46-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW Interviewed

Witness Officers

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


Subject Officers

SO Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The incident occurred in the backyard of a residence located on Delrex Boulevard, Georgetown.

On January 23, 2020, at 11:47 a.m., SIU forensic investigative services (FIS) went to the scene located at the address on Delrex Boulevard in Georgetown. Upon examination, it was apparent that the arrest of the Complainant had taken place in the backyard.

CEW Anti-Felon Identification Tags (AFIDs) were found at the southwest corner of the house and additional AFIDs and CEW wire were found just outside the rear sliding glass door of the house. The snow was obviously trampled on in this area. The scene was photographed by FIS. FIS collected the CEW AFIDs near the southwest corner of the house as well as the AFIDs and wire near the rear door.

FIS attended HRPS Headquarters on Bronte Road in Oakville. The ARWEN AR1 rifle and the CEW Model X2 were photographed. The three AR1 cartridge cases, three AR1 projectiles, and two CEW cartridges were collected by the FIS. The CEW was downloaded.

Forensic Evidence


CEW Download


According to the data downloaded from WO #2’s CEW, on January 22, 2020: at 2:57:03 p.m., there was a trigger of the CEW associated with a charge duration of two seconds; at 2:57:07 p.m., there was a trigger of the CEW associated with a charge duration of six seconds; at 2:57:21 p.m., there was a trigger of the CEW associated with a charge duration of five seconds; at 2:57:29 p.m., there was a trigger of the CEW associated with a charge duration of five seconds; and, at 2:57:43 p.m., there was a trigger of the CEW associated with a charge duration of one second.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Police Communications Recordings


HRPS Communications Recordings


These recordings occurred on January 22, 2020, and captured the following:
  • At 10:35:41 a.m., HRPS received information from the CW that she and her husband, the Complainant, had been in a verbal argument and she was afraid for her safety and the safety of her two children since the Complainant had registered guns in the home;
  • At 11:43:50 a.m., police drove by the Complainant’s residence and found his truck parked in the driveway;
  • At 12:06:52 p.m., police were dispatched to Delrex Boulevard in Georgetown;
  • At 12:06:58 p.m., police arrived at Delrex Boulevard;
  • At 12:07:01 p.m., police at scene requested a Mobile Response Team (MRT) consisting of crisis negotiators if available;
  • At 12:29:15 p.m., MRT was alerted and updated as to what was happening at Delrex Boulevard;
  • At 12:40:02 p.m., the Tactical Rescue Unit (TRU) was dispatched to Delrex Boulevard;
  • At 1:09:12 p.m., TRU advised they were staging at the Walmart;
  • At 1:13:18 p.m., police officers containing the Complainant’s residence were told to keep an eye out for a delivery truck;
  • At 1:35:55 p.m., WO #6 was en route to Delrex Boulevard;
  • At 1:40:39 p.m., TRU was on scene and setting up on the Complainant’s residence;
  • At 1:47:30 p.m., the Armoured Rescue Vehicle (ARV) was dispatched to Delrex Boulevard;
  • At 1:58:06 p.m., there was a broadcast to police that if the Complainant was spotted, he was not to leave the property;
  • At 2:01:09 p.m., TRU members were at the back of the residence;
  • At 2:01:28 p.m., there was a broadcast advising police had full containment over the Complainant’s residence;
  • At 2:05:19 p.m., the Complainant’s cell phone was pinged and it was determined that he was inside the residence;
  • At 2:20:47 p.m., TRU could see into the upper floor of the residence;
  • At 2:22:22 p.m., ARV was headed to the residence;
  • At 2:22:33 p.m., the Tactical Emergency Medical Services (TEMS) was at the staging area;
  • At 2:24:28 p.m., the ARV drove into the driveway of the Complainant’s residence;
  • At 2:25:32 p.m., police were placing a call into the Complainant’s home;
  • At 2:27:28 p.m., no answer on landline, police were going to try the Complainant’s cell phone;
  • At 2:30:12 p.m., the Complainant was texting his wife;
  • At 2:33:02 p.m., police were using the ARV loudhailer to get the Complainant to answer his cell phone;
  • At 2:44:21 p.m., crisis negotiators on phone with the Complainant;
  • At 2:49:26 p.m., negotiators still on phone with the Complainant;
  • At 2:53:11 p.m., the Complainant advised he would exit the house by the back door;
  • At 2:53:34 p.m., back door of home opened and the Complainant exited with phone in hand;
  • At 2:54:06 p.m., the Complainant was outside with his hands up;
  • At 2:56:07 p.m., the Complainant was not complying, and his hands were behind him;
  • At 2:56:17 p.m., report that the Complainant was not yet under arrest;
  • At 2:57:12 p.m., report that a CEW was deployed;
  • At 2:58:08 p.m., report police were in the process of handcuffing the Complainant; and
  • At 2:01:45 hrs, the Complainant was being treated by TEMS and TRU was actively clearing the residence.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HRPS:
  • Arrest report;
  • Electronic Request-Call to Police and Radio Transmissions (Complainant);
  • Floorplan for the Incident;
  • I-NetViewer Event Chronology (for the incident);
  • Notes-All WOs;
  • General Report about this Incident;
  • Directive-Tactical Rescue Unit Policy;
  • Policy-Use of Force; and
  • Policy-Arrest, Search, and Release.

Materials obtained from Other Sources

In addition to the materials received from the HRPS, SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records from Halton Healthcare; and
  • A digital photograph of the Complainant’s knee injury from the Complainant.

Incident Narrative

In the morning of January 22, 2020, the CW attended at the HRPS station to report that her husband, the Complainant, was in mental distress and had guns in the house, causing her to be concerned for her safety and the safety of her sons. She further advised police that the Complainant had told her, “If the police come to get me, I’ll take a few out.” The CW reported that the Complainant had a gun locker containing three firearms and he was expecting another firearm to be delivered by courier that day. A neighbour of the Complainant and the CW told police that he had seen the Complainant the night before with a handgun tucked into his waistband.

As a result of this information, an OPP TRU team was dispatched to the Complainant’s address, in Georgetown, to apprehend the Complainant pursuant to section 17 of the Mental Health Act (MHA). The team was led by WO #1 and included WO #2, WO #3, WO #4, WO #5, WO #6 (a dog handler, along with his police service dog) and the SO. After several hours of negotiations, at 2:58 p.m., the Complainant was arrested and transported to hospital.

Upon their arrival at the Complainant’s residence, the TRU team parked an ARV at the foot of the driveway, blocking the Complainant’s truck to prevent him leaving. Over the course of the next several hours, police tried several options in order to engage the Complainant and convince him to leave the residence without his firearms. Initially, police activated their emergency lighting systems and sirens so that the Complainant would be aware of the police presence. Crisis negotiators then repeatedly attempted to engage the Complainant by use of a loudhailer and by calling his cell phone; there was, however, no response from the Complainant, who remained inside the residence.
Eventually, after several hours, the Complainant picked up the phone and the crisis negotiator requested he come out the front door of the residence, unarmed. The Complainant advised that was not going to happen, but that he would exit by the rear entrance to his home so as not to be paraded in front of his neighbours. In the interim, WO #4, WO #5, and WO #6 of the TRU team had been deployed to the backyard in order to provide containment of the property and to prevent the Complainant leaving. WO #5 carried a C8 rifle, while WO #6 had his police service dog with him.

Upon the Complainant exiting his home from the rear patio door, he was directed to show his hands, and then to lift his shirt and turn around so that police could determine if he still had a handgun tucked in his waistband. The Complainant complied, and no weapon was seen by police. The Complainant was then directed to step forward and away from the door, but he refused on the basis that there was snow on the ground and he was in his stocking feet. The Complainant, instead, responded, “You’ll have to come and get me.” Throughout these negotiations, WO #5 had his C8 rifle trained on the Complainant as the Complainant became belligerent and non-compliant, moving his hands from his head to his pockets and then to his waistband, causing some concern that he might actually be armed.

The TRU arrest team, the SO, WO #1, WO #2 and WO #3, then came down the west side of the house and took over negotiations with the Complainant. The SO was armed with an an ARWEN, [1] while WO #2 had a CEW. The SO requested that the Complainant lift his shirt and, while he initially refused, he did eventually comply and again lifted his shirt. When the SO continued to attempt to negotiate with the Complainant, the Complainant refused to comply any further, instead showing the officers his middle finger. At that point, WO #3 suggested that the SO use his ARWEN and the SO did so, striking the Complainant in the right thigh or leg area. There was no reaction from the Complainant, other than a statement of, “Are you fuckin’ kidding me?” The SO then discharged a second ARWEN round, which struck the Complainant in the mid-section, following which the Complainant picked up the round and threw it back at the officers. The SO discharged the ARWEN a third time, but it was unclear if this round made contact with the Complainant. The Complainant became even more agitated and the TRU members moved closer to him. WO #1 directed WO #2 to deploy his CEW at the Complainant, since he continued to be confrontational, and WO #2 did so. It appeared to have no effect. WO #2 then deployed his CEW a second time and the Complainant fell onto one knee [2] on the concrete patio.

An image of the ARWEN that was used in this incident.

An image of the ARWEN that was used in this incident.



Following the second CEW discharge, the TRU members moved in, took control of the Complainant and forced him to the ground completely. There ensued a struggle on the ground in the course of which WO #1 delivered several blows to the Complainant’s mid-section and WO #2 discharged his CEW three more times. Following the final such discharge, delivered in drive stun mode, [3] the officers were able to wrestle control of the Complainant’s right arm out from under his body to be handcuffed.

The Complainant was carried to the front of the house, where paramedics saw to his injuries. A later search of the house located four over-capacity magazines on the couch, with each magazine capable of holding 30 rounds.

The Complainant was assessed at hospital and it was discovered that he had sustained a fracture of one kneecap.

The evidence indicated that the Complainant’s knee injury could have been caused by the first deployment of the ARWEN, which appeared to strike the Complainant in the right thigh or leg, but may have actually struck his knee, or when he fell to the concrete patio.

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.

Section 17, Mental Health Act -- Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

Analysis and Director's Decision

During the SIU investigation into the circumstances surrounding the Complainant’s injury, the Complainant and one CW, as well as six WOs, were interviewed. The SO declined to provide a statement to SIU investigators or his notes of the incident, as was his legal right. In addition to the witness interviews, SIU investigators obtained and reviewed the Complainant’s medical records as well as the police communications recording and the data download from a CEW deployed during the incident. On my assessment of the evidence, I am unable to find that the force used against the Complainant was excessive and, therefore, I have no reasonable grounds to believe that the SO, or any of the officers involved in the arrest of the Complainant, committed a criminal offence in relation to his injury.

Based on the evidence, I am satisfied that the TRU team that deployed to the Complainant’s residence had a lawful basis to apprehend the Complainant under section 17 of the MHA. As part of the TRU team’s plan, an “action line” was established whereby if the Complainant left his residence, the TRU was not to allow him to re-enter the house, presumably due to the number of firearms he had in the house and because police would be unable to control him if they could not see him, greatly increasing the risk to the police, the public, and the Complainant himself.

Pursuant to section 25(1) of the Criminal Code, a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. The members of the TRU, acting on the reports of the CW and a neighbour, had reasonable grounds to apprehend the Complainant under the MHA as being a danger to himself and others based on the information that he: was in mental distress, had threatened to “take out” a few police officers if they came to the house, had firearms in the house and one handgun had specifically been seen tucked into the waistband of his pants, was suffering from mental health problems, and had caused his wife to fear for her own safety as well as that of her children, the police, and the public. 

When the Complainant exited his house without being properly dressed for the weather and refused to comply with the commands of the officers, it was reasonable for them to be concerned that the Complainant might either have a weapon concealed on his person or would attempt to return to his home, where it was known that a number of firearms were stored, making it difficult to control his actions or to see what he would be doing, thereby drastically increasing the threat level. 

It is unclear to me, on the evidence, whether the Complainant’s injury was sustained when the SO discharged his ARWEN or when he fell to the concrete patio after he was either struck by the CEW probes or when the officers came to arrest him. In either event, while the Complainant was injured during his interaction with police, an assessment is required to determine if the actions of any of the officers involved with the Complainant amounted to an excessive use of force in these circumstances.

On the aforementioned-record, I am satisfied that the level of force resorted to by each of the officers was reasonably necessary in the Complainant’s apprehension. With respect to the ARWEN and CEW discharges, the officers had good cause to be concerned that the Complainant might be armed or have ready access to firearms. Accordingly, it was prudent for them to attempt to neutralize that threat by engaging the Complainant at a distance before they moved in to place him into custody. Thereafter, as the Complainant had not been completely immobilized by the CEW discharge and then continued to struggle with the officers as they endeavoured to secure him in restraints, I am satisfied that the takedown followed by several blows and CEW discharges, the latter delivered by WO #1 and WO #2, respectively, fell within the realm of what was reasonable in the moment to overcome the SO’s resistance. To reiterate, this was in essence a high-risk takedown involving an individual who the night before had armed himself with a handgun causing his wife and neighbour to fear for his safety, as well as their own. Until they could be certain the Complainant was not, in fact, armed, they were entitled to resort to a measure of force to resolutely and quickly arrest the Complainant. Against this backdrop, I am unable to reasonably conclude that the cumulative force used by the officers crossed the line into excessive force.

In the result, while the Complainant’s serious knee injury was most unfortunate, I am not satisfied it was the result of unlawful force used by the SO or any of the other TRU members who physically engaged the Complainant to take him into custody. Accordingly, there are no grounds to proceed with criminal charges in this case against any officer, and the file is closed. 


Date: July 6, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) An Anti-Riot Weapon Enfield (ARWEN) is an intermediate less lethal weapon which discharges a baton which is inside a casing. The ARWEN is typically used to gain control of a person through pain compliance. [Back to text]
  • 2) Later examination revealed that one probe was lodged in the Complainant’s neck and the other in his right arm. [Back to text]
  • 3) Drive Stun mode is when the CEW is pressed directly onto the person and then deployed. [Back to text]