SIU Concludes Shooting Death Investigation in Brampton
Case Number: 14-OFD-215
Mississauga (21 July, 2015) --- The Director of the Special Investigations Unit (SIU), Tony Loparco, has concluded that there are no reasonable grounds to charge a Peel Regional Police (PRP) officer with a criminal offence in relation to the death of 33-year-old Jermaine Carby in September of 2014.
The SIU assigned eight investigators and three forensic investigators to probe the circumstances surrounding this incident. As part of the investigation, six witness officers and 12 civilian witnesses were interviewed. The subject officer did not participate in an SIU interview and declined to provide a copy of his duty notes, as is his legal right.
The SIU investigation found that the following events took place on Wednesday, September 24, 2014:
- In the evening hours, Mr. Carby was a passenger in a black Jetta vehicle operated by a friend.
- A PRP officer was on patrol proceeding east on Queen Street East when he observed the Jetta’s rear licence plate hanging from a screw and obscured by the licence plate cover. The officer pulled ahead of the Jetta and also saw that its headlights were not on. The officer fell back behind the Jetta again, activated his vehicle’s emergency lights and signaled the Jetta’s driver to pull over near Kennedy Road. The officer pulled his marked police cruiser behind the Jetta. Within minutes, the officer had checked the driver’s licence and administered a test on the roadside screening device, which the driver passed. The officer asked Mr. Carby for his name and date of birth, which Mr. Carby supplied.
- Returning to his cruiser, the officer checked Mr. Carby’s name on his in-car computer and learned that he had outstanding warrants from British Columbia and a criminal record.
• By this time, two other officers, one being the subject officer, arrived in an unmarked police vehicle to provide assistance. They parked their vehicle in the eastbound curb lane of Queen Street East behind the first officer’s marked cruiser, and all three officers approached the Jetta. Mr. Carby was asked to step out of the vehicle and he did. When Mr. Carby was asked about the warrants from British Columbia, the encounter quickly degenerated into a shouting match which was overheard by numerous civilians in the area. Mr. Carby, his anger rising at being asked to step out of the vehicle and questioned about outstanding warrants, pulled a knife in his possession and held it in his right hand. The officers, their guns drawn and pointed at Mr. Carby, started walking backwards as Mr. Carby, knife in hand, walked west in their direction. They walked first alongside the passenger’s side of the Jetta and then on the roadway along the driver’s side of the police vehicles. The officers repeatedly ordered Mr. Carby to drop the knife and stop his advance, but he kept walking toward them, all the while challenging the officers to shoot him. One of the officers asked for a senior officer to attend the scene with a conducted energy weapon as this was happening, but none arrived.
- When Mr. Carby made it as far west as the rear of the unmarked police vehicle, the subject officer discharged his firearm seven times at Mr. Carby, striking him three times. He was struck in the chest, left forearm and back.
- Mr. Carby was taken from the scene and subsequently pronounced dead at hospital.
The shots that entered Mr. Carby’s chest and back were described by the pathologist as fatal.
Director Loparco said, “I am satisfied that the subject officer’s conduct was authorized pursuant to section 34 of the Criminal Code of Canada, which deals with force used in the defence of oneself or others. One of the witness officers says he feared for his life and tried to shoot Mr. Carby, but his firearm misfired twice. The other witness officer also says he was about to shoot – fearing for the lives of the other officers as Mr. Carby closed the distance to about one and a half metres from the officers – when he heard gunshots.
“As for the number of shots fired, it is clear on the weight of the evidence that all seven rounds from the subject officer were fired in quick succession. It is also certain that four shots missed Mr. Carby. This evidence leads me to conclude that the risk confronted and perceived by the subject officer did not materially change from shots one through seven, given the heat of the moment and the very distinct possibility that one or more of the subject officer’s first four shots missed Mr. Carby completely. Potentially more troubling is the fact that one of the shots fired by the subject officer struck Mr. Carby in the back. A civilian and the witness officers describe Mr. Carby twisting and spinning, respectively, as he was shot and fell. Perhaps this explains how the bullet ended up in Mr. Carby’s back despite the fact that he was forward towards the subject officer. I am satisfied on the basis of the rapidity of the shots fired, the tension and volatility of the situation, the impact of reaction times and the movements of the players in a highly dynamic sequence of events, the number of bullets missing Mr. Carby and the existing uncertainty regarding which round caused which wound, that the shot to Mr. Carby’s back did not run afoul of the self-defence justification. To conclude otherwise, in my view, would be to expect a level of precision in the conduct of the officer that is unrealistic and uncalled for in the jurisprudence.”
Director Loparco continued, “There are two issues in this case that bear noting which might have cast uncertainty as to whether the shooting in this case was justified had there not been a substantial amount of other evidence to alleviate my concerns. The first issue involves the continuity of the knife reported to have been wielded by Mr. Carby at the time he was shot. In fact, no knife was found at the scene by the SIU. A knife was collected by an SIU forensic investigator several hours after the incident from a PRP acting sergeant, who indicated that another officer who had arrived at the scene just as the shooting ended had collected the knife and given it to him. The knife provided to the SIU was a kitchen knife with a serrated blade measuring about 13 cm and a brown handle of about the same length. In his SIU interview, the officer who picked up the knife explained that he approached Mr. Carby on the ground and used his left foot to step on the knife, which was still in Mr. Carby’s right hand, and drag it toward the curb lane. He later picked up the knife, placed it in a brown paper bag and handed it to a sergeant.
“This conduct is hard to fathom. The officer would have known at the time that Mr. Carby likely lay dead or grievously injured as a result of a police shooting, and should have appreciated the importance of scene security in ensuring the integrity of the investigation that was sure to follow. Instead, as a result of the officer’s actions, the SIU, and in a broader sense the public, is asked to accept that the knife it retrieved from police was in Mr. Carby’s possession when he was shot, when that same inference could have more readily and safely been made had the scene not been tampered with.”
Director Loparco added, “The second issue involves the fact that the subject officer chose not to provide the SIU with any first-hand evidence regarding his conduct and state of mind at the time of the shooting. While the officer was within his legal rights to choose to remain silent, the SIU is without any direct evidence regarding what is essentially a subjective element of the defence, namely, whether the subject officer believed he was acting to defend himself or his colleagues when he shot Mr. Carby. As it turns out, the abundance and quality of the eyewitness evidence in this case, both from civilians and witness officers – much of it confirmed by a short video clip taken by a civilian using his phone – is such to permit the drawing of inferences in support of the application of section 34.”
Director Loparco continued, “First, with respect to the knife, approximately a dozen or so of the civilian witnesses in the area – among others, an employee and several patrons of local businesses and people waiting for the bus – observed portions of the events in question. Seven of them heard the officers repeatedly yell at Mr. Carby to ‘drop the knife’ as Mr. Carby advanced on the officers. These same witnesses place Mr. Carby at a range of between one and a half to three metres and moving toward the officers when gunshots were fired. While none of these witnesses could clearly see a knife in Mr. Carby’s possession, three of them say he had some object in his hand. A number of them indicated that Mr. Carby’s final advance toward the officers with his arm extended appeared threatening and two described it as Mr. Carby making stabbing or slashing motions in the direction of the officers. Most importantly, the civilian witness in the same vehicle as Mr. Carby, who was closest to the scene at the time, did see Mr. Carby holding a knife in his right hand and thought he was trying to stab an officer with it. In fact, the driver of the Jetta also told SIU investigators that just before Mr. Carby was shot, Mr. Carby took three quick steps toward one of the officers and loudly threatened to kill them. At this time, the driver ducked down since he felt Mr. Carby would be shot as he was less than an arm’s length from an officer. Finally, the SIU submitted the knife to the Centre of Forensic Sciences for DNA testing and the test indicated that Mr. Carby’s DNA was present on that knife.
“Second, regarding the subject officer’s mindset, confronted by an individual armed with a knife, advancing in his direction and that of his colleagues, having given that individual every opportunity to stop his advance and rid himself of the knife, I am satisfied that the officer discharged his firearm at Mr. Carby for the purpose of protecting and defending himself as well as other officers. Moreover, in view of the totality of the circumstances that prevailed at the time, most importantly the knife in Mr. Carby’s possession and his hostility toward the officers, I am satisfied that the subject officer acted reasonably in resorting to his firearm as Mr. Carby neared to between one and a half to three metres. This is particularly so as Mr. Carby’s speed seems to have increased as he closed the gap between himself and the officers just before getting shot. A number of the civilian witnesses described his final approach as jogging speed, walking briskly, walking with speed and moving quickly towards the officers. Further, some civilians described this final approach by Mr. Carby toward the officers as appearing threatening or offensive. In addition, the confrontation with Mr. Carby occurred while the officers were backing up in live lanes of traffic, exposing them to being struck by vehicles. In fact, at least one vehicle had to maneuver around them and Mr. Carby during the incident.”
Director Loparco concluded, “It is highly regrettable that one officer removed the knife from the scene. His ill-advised conduct has cast a pall over the integrity of the SIU’s investigation. While the overriding weight of the evidence – including the eyewitness evidence of the civilians and police witnesses present at the time of the shooting – establishes that Mr. Carby was armed with a knife as he approached the officers, the removal of the knife ensures that some members of the community will harbour concerns, legitimate concerns in my view, regarding the very existence of the knife. In this most serious of cases, where an agent of the state has taken the life of a citizen, the community was minimally entitled to expect that an independent investigation would be left to pursue its work on the basis of a secure scene and uncompromised physical evidence. They were denied that investigation.
“In the final analysis, however, having carefully considered the impact of the absence of a knife at the scene, in light of the totality of the evidence, I remain satisfied on reasonable grounds that the subject officer acted lawfully in self-defence when he shot Mr. Carby and that there is therefore no basis to proceed with charges in this case.”
The SIU is an independent government agency that investigates the conduct of officials (police officers as well as special constables with the Niagara Parks Commission and peace officers with the Legislative Protective Service) that may have resulted in death, serious injury, sexual assault and/or the discharge of a firearm at a person. All investigations are conducted by SIU investigators who are civilians. Under the Special Investigations Unit Act, the Director of the SIU must
- consider whether the official has committed a criminal offence in connection with the incident under investigation
- depending on the evidence, cause a criminal charge to be laid against the official where grounds exist for doing so, or close the file without any charges being laid
- publicly report the results of its investigations