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SIU Director’s Report - Case # 19-OFD-313

Contents:

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the death of a 56-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 31, 2019, at 5:28 p.m., the Niagara Regional Police (NRPS) notified the SIU of the firearms-related injuries to the Complainant.

The NRPS advised that on December 31, 2019, at about 4:45 p.m., NRPS received a call to attend at an address on Rykert Street in St. Catharines regarding a man armed with a knife. A police officer arrived on scene and the man [now determined to be the Complainant] refused to drop the knife. Police officers discharged their firearms and the Complainant was struck several times. The Complainant was still alive and had been transported to Niagara Health System - St. Catharines site.

The Complainant succumbed to his injuries on January 1, 2020.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators (FIs) assigned: 3

Complainants

Complainant: 56-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

Witness Officers

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


Subject Officers

SO #1 Interviewed and notes reviewed
SO #2 Interviewed and notes reviewed


Evidence

The Scene

The scene was at an address on Rykert Street. Rykert Street travelled in an east/west direction with the residence in question situated on the south side of the street. West of the residence was a gravel driveway that lead back to another residence behind the address in question. Near the entrance of this driveway and along the south sidewalk and curb was an area of evidence that included cartridge cases, a projectile, personal effects, an area of suspected blood pooling and first aid equipment. 

Scene diagram

There were three police vehicles parked nearby within the confines of the guarded scene as follows:

Police Vehicle #1

A 2017 Ford SUV Interceptor cruiser. This cruiser was marked with the graphics of NRPS. The cruiser was oriented in a southeasterly direction partially into the driveway of the address on Rykert Street.

A preliminary search of this cruiser’s interior revealed a kitchen-style knife and wallet on the front passenger floor area.


Figure 1: A view of the knife.

Figure 1: A view of the knife.


Police Vehicle #2

A 2016 Chevrolet Tahoe cruiser. The police cruiser was marked with the graphics of NRPS. The cruiser was oriented in a westerly direction along the south curb of Rykert Street east of police vehicle #1.

A preliminary search of this cruiser’s interior revealed nothing of evidentiary value to this incident.

Police Vehicle #3

A 2012 Chevrolet Impala police cruiser. The police cruiser was marked with the graphics of NRPS. The cruiser was oriented in an easterly direction along the south curb of Rykert Street west of police vehicle #1.

A preliminary search of this cruiser’s interior revealed nothing of evidentiary value to this incident.

The scene was photographed by the SIU FIs. A number of evidentiary items were identified and photographed.

Forensic Evidence


NRPS firearms and uniforms


SO #1’s equipment 

The SIU FIs seized the firearm and uniform of SO #1. The seizure consisted of a Glock Model 22 Gen 4 40 calibre semi-automatic pistol Serial # SRC315, one cartridge from the breech of the firearm, a magazine and nine cartridges from the pistol grip of the Glock, and two spare magazines (containing 14 and 15 cartridges) from the duty belt of SO #1. Also seized was the uniform shirt, pants, boots and gloves worn by SO #1 at the time of this incident.

The duty belt of SO #1 was photographed showing the Use of Force options available and returned to NRPS. Also photographed and returned were the ballistic vest and outer jacket of SO #1.

SO #2’s equipment 

The SIU seized the firearm and uniform of SO #2. The seizure consisted of a Glock Model 22 Gen 4 40 calibre semi-automatic pistol Serial # AANK328, one cartridge from the breech of the Glock, a magazine and 10 cartridges from the pistol grip of the Glock, and two spare magazines (both loaded with 14 cartridges each) from the duty belt of SO #2. Also seized was the uniform shirt, pants, boots and gloves worn by SO #2 at the time of this incident.

The duty belt of SO #2 was photographed showing the Use of Force options available and returned to the NRPS. Also photographed and returned was her ballistic vest. 

Impact Strikes at Scene


The SIU FIs attended at the address to examine possible impact sites on the exterior vinyl siding of the property. It was concluded these impact sites had no evidentiary value.

Centre of Forensic Sciences (CFS) Submissions and Results


The SIU submitted to CFS both firearms used by SO #1 and SO #2, 9 spent 40 SW cartridge cases seized from the area in front of the address on Rykert Street, SO #1’s magazine and 9 cartridges from his pistol, SO #2’s magazine and 10 cartridges from her pistol, the Complainant’s blue and white jacket and jeans, and post-mortem photographs for analysis.

By way of a Firearms Report dated May 15, 2020, the CFS concluded that five of the fired cartridge cases recovered at the scene were fired from SO #1’s Glock handgun, and that the remaining four were fired from SO #2’s Glock handgun.

Figure 2: A view of one of the two guns that was involved in this incident; the other gun is the same model.

Figure 2: A view of one of the two guns that was involved in this incident; the other gun is the same model.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following:
  • A cellphone video recorded by CW #10.

A cellphone video recorded by CW #10


The video captured events around the Complainant’s body after the shooting occurred.

Communications Recordings


NRPS Communications Recordings


At 4:31:49 p.m., NRPS received a call advising that a man [now determined to be the Complainant] was walking around carrying a knife at an address on Rykert Street;

At 4:32:47 p.m., it was reported to the police that the Complainant was walking between two addresses on Rykert Street looking through fences;

At 4:34:53 p.m., it was determined that police had attended to the address the previous week to deal with the Complainant. The Complainant had been apprehended under the Mental Health Act (MHA).

At 4:38:00 p.m., SO #2 reported over the police radio that the Complainant was not dropping his knife;

At 4:39:42 p.m., SO #2 advised that the Complainant was walking towards a home refusing to listen to her demands;

At 4:40:39 p.m., it was reported, “Shots fired.”

At 4:40:41 p.m., a caller called police advising they heard gunshots;

At 4:50:22 p.m., the Complainant was placed on an ambulance stretcher and transported to hospital; and

At 5:17:00 p.m., police advised by the hospital that the Complainant had a faint pulse and might need to be air lifted to a nearby trauma centre.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Computer-Assisted Dispatch Report;
  • Canvass Sheet;
  • Notes-all WOs;
  • General Occurrence Hardcopy (MHA apprehension);
  • General Occurrence Hardcopy (shooting incident);
  • General Order-Mentally Ill Persons;
  • General Order-Use of Force;
  • Notes-both SOs;
  • Police Firearms Acquired – Canadian Firearm Program;
  • Radio recordings; and
  • Training Summary-both SOs.

Materials obtained from Other Sources

In addition to the materials received from the NRPS, SIU obtained and reviewed the following materials from other sources:
  • The Report of Postmortem Examination, dated July 17, 2020, from the Coroner’s Office; and
  • A description of CW #4’s job, from the Canadian Mental Health Association (CMHA).

Incident Narrative

The material events in question are relatively clear on the weight of the evidence collected by the SIU, which included interviews with both SOs and several civilian eyewitnesses to the shooting, and a civilian’s cellphone recording of the events. The investigation also benefitted from forensic analyses of firearms-related evidence, a review of the post-mortem examination report, and consideration of the police communications recordings. At about 4:30 p.m. on December 31, 2019, the NRPS was alerted to a developing situation outside an address on Rykert Street. Reportedly, a man – the Complainant – was outside with a large kitchen knife and had threatened someone with it.

SO #2 was the first officer to arrive at the scene. She was in the company of CW #4, a registered counsellor with the CMHA. As the call involved a man in possession of a knife, CW #4 remained in the cruiser as SO #2 exited to investigate the situation.

The Complainant was in mental distress at the time. The week prior, police had also attended at the residence to check on his welfare. At the time, the Complainant had been apprehended by an officer under the MHA and taken to hospital for a psychiatric examination. On this occasion, in the moments prior to SO #2’s arrival, the Complainant was reported to be at an address on Rykert Street in possession of a knife and was behaving strangely. At one point, the Complainant reportedly threatened someone.

SO #2 first encountered the Complainant in the area of the front lawn of the address on Rykert Street. The Complainant was holding a large serrated kitchen knife in his right hand with a blade measuring about 17 centimetres in length. SO #2 drew her sidearm, pointed it at the Complainant and ordered him to drop the knife. The Complainant refused to do so. SO #2 continued to direct the Complainant to drop the knife as she tracked his movement across the front lawn of the address toward a long driveway that ran along the west side of the property. The Complainant walked south down the driveway followed by SO #2. The officer attempted to build a rapport with the Complainant but those efforts proved in vain.

After a period, the Complainant stopped his southward movement, turned around and began to walk in SO #2’s direction northward back up the driveway toward the roadway. SO #2 was joined around this time by SO #1, who had responded to her call for assistance. SO #1 took up a position to the right of SO #2 as both officers, with their firearms pointed in the Complainant’s direction, walked backward with the Complainant’s advance. SO #1 warned the Complainant that he would be shot if he did not desist and drop the knife. The Complainant remained undeterred. With the SOs having retreated as far back as the sidewalk and possibly onto the roadway, the Complainant took a few quick steps in their direction and was met with a flurry of shots from the SOs’ guns.

In total, the evidence indicates that SO #1 and SO #2 fired five and four rounds, respectively.

The gunfire felled the Complainant in the area of the sidewalk/driveway. Both officers went to the Complainant and rendered emergency first aid while they waited for paramedics to attend. Bandages were placed on the Complainant’s neck to stem the bleeding from a wound in that area.

The Complainant was taken to hospital in St. Catharines where he was stabilized before being transported via air ambulance to hospital in Hamilton. He passed away the following day of multiple gunshot wounds.


Cause of Death


The pathologist at the Complainant’s autopsy was of the view that the cause of the Complainant’s death was multiple gunshot wounds.

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 25(3) and (4), Criminal Code -- Protection of persons using force that is intended or is likely to cause death or grievous bodily harm

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.

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if
(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.

Section 34 (1), Criminal Code -- Defence of self or other person 

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.

Analysis and Director's Decision

In the afternoon of December 31, 2019, two NRPS officers discharged their firearms at the Complainant outside his home at an address on Rykert Street, St. Catharines. The Complainant suffered multiple gunshot wounds and succumbed to his injuries in hospital the next day. SO #2 and SO #1 were the officers who fired their weapons and, as such, were identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s death.

Whether pursuant to sections 25(3) or 34 of the Criminal Code, I am unable to reasonably conclude that either of SO #2 or SO #1 transgressed the limits of permissible force when they discharged their firearms at the Complainant, notwithstanding the tragic loss of life. The former governs the use of lethal force by police officers in the course of their duties and requires that such force be limited to instances in which an officer reasonably believes it is necessary to preserve oneself or another from death or grievous bodily harm. The latter sets the boundaries for the justified use of force by any person in self-defence or the defence of another person. Essentially, such force is not permissible unless it is reasonable in all the circumstances, with a view to such considerations as the nature of the force or threat, 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, and whether any party to the incident used or threatened to use a weapon.

At the outset, it is readily apparent that SO #1 and SO #2 were in the lawful execution of their duties when they responded to the Complainant’s address to investigate reports of a man with a knife behaving strangely. Moreover, when the Complainant refused to drop the knife and, instead, advanced toward the officers in a threatening fashion with the knife, he made himself subject to lawful arrest by the officers.

Both officers, in their interviews with the SIU, explained that they fired at the Complainant fearing for their own lives and the lives of their partners, and believing it was necessary to preserve themselves from a mortal danger. More specifically, SO #1 and SO #2 believed the Complainant was on the cusp of a potentially lethal knife attack and that he had left them with no option but to fire their weapons. I have no reason to doubt the authenticity of the officers’ stated mindsets.

The issue turns to whether the SOs’ apprehensions were reasonable in the circumstances. In my view, they were. By the time SO #1 and SO #2 discharged their guns, the Complainant had been warned over the course of several minutes to drop the knife. I appreciate that the Complainant was in mental distress at the time and possibly not in a position to respond rationally to the SOs’ requests. By the same token, regrettably, the Complainant’s conduct would have left the officers little doubt that he was not about to surrender peacefully.

It should be noted that a mental health worker, CW #4, was present at the time, partnered on the day with SO #2. However, pursuant to police protocols in effect, she remained in SO #2’s cruiser throughout the incident, reasonably in my view, given the presence of a knife in the Complainant’s possession.

Despite CW #4’s absence, there were efforts at de-escalation prior to the shots being fired. SO #2, in particular, attempted to engage in conversation with the Complainant as she followed him onto the driveway along the west side of the address on Rykert Street. She asked his name, told him she was there to help and attempted to persuade him that she was not there to hurt him. That the Complainant did not respond in kind was not for any want of trying on the part of the officer.

It should further be noted that SO #1 and SO #2 each considered the use of their Conducted Energy Weapons (CEWs) during their encounter with the Complainant, but arrived at the same conclusion that resort to the weapon was not appropriate. As the SOs explained, they were confronted with a potentially lethal weapon and did not want to risk an ineffective CEW deployment, particularly as the Complainant was wearing a heavy jacket at the time that would have made it difficult for the weapons’ probes to penetrate to the skin. While in hindsight, the officers might have agreed to split their roles, with one discharging a CEW and the other acting as cover with a firearm at the ready, I am unable to fault SO #1 and SO #2 for their failure to do so given the speed and volatility with which events were unfolding.

Finally, I am satisfied that the SOs exercised a reasonable amount of restraint in the hopes of resolving the situation short of the use of lethal force before their firearms were discharged. Prior to SO #1’s arrival, SO #2 had tracked the Complainant’s movements at a distance of several metres, moving in lockstep with his direction of travel. As he moved in her direction down the driveway, she walked backward, all the while imploring the Complainant to stop and drop the knife. SO #1 did the same as he entered onto the scene. Disengagement was not an option given the presence of civilians in the area and their potential jeopardy at the hands of an armed Complainant. It was not until the Complainant took a few quick steps in the SOs’ direction, as described by multiple witnesses, and came to within two to three metres of the SOs’ location that each SO fired their weapon. On this record, I am satisfied that the lives of the SOs would have been in real jeopardy had they waited any longer to protect themselves.

With respect to the number of shots that were fired, these appear to have occurred quickly with possibly a slight pause between a first and second volley. Given evidence that the Complainant continued to move forward after the initial shots, I am unable to meaningfully impute any material difference in the threat level that each officer would have reasonably appreciated throughout their gunfire.

For the foregoing reasons, I am satisfied that SO #1 and SO #2 shot the Complainant in the reasonable belief that doing so was necessary to protect themselves from an imminent knife

attack. Accordingly, as there are no reasonable grounds to believe the SOs used unlawful force, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: August 10, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit