Director's Report Details

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.

Freedom of Information and Protection of 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.

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 42-year-old man (the “Complainant”).

Notification of the SIU

On April 9, 2020, the Ontario Provincial Police (OPP) contacted the SIU to report the following:

On April 9, 2020 at approximately 9:09 p.m., the OPP responded to a suspected break and enter at a residence located in Temiskaming Shores, Ontario. Three officers arrived on scene at approximately the same time. A witness approached the officers and said that she thought someone was inside her residence and there was someone still in the house. The officers approached the house and observed a male exiting the rear door of the house. The male was carrying a handgun. The officers confronted the male, and told him to stop and drop the weapon. The male did not comply and was shot. Officers performed CPR until Emergency Medical Services (EMS) arrived and transported the male to Temiskaming Hospital where he was pronounced deceased.

The OPP were holding the scene. 

The Scene

The scene was a residence in Temiskaming Shores. The dwelling was situated at the corner of Lakeshore Road North and Wedgewood Avenue, New Liskeard. The residence had a rear entrance.

Just inside the rear door were located two spent cartridge cases, a small first aid kit, and a plastic replica handgun. On the kitchen floor there were two more cartridge cases, one projectile and an area of apparent blood. After an extensive search involving the movement of appliances, two more spent cartridge cases were located, bringing the total of all spent cartridge cases to six.

Physical Evidence

SIU forensic investigators attended the New Liskeard OPP detachment and obtained a Glock Model 17, 9mm semi-automatic pistol, which had been assigned to SO #1. One magazine containing 15 cartridges was removed from the pistol and one cartridge was ejected from the breech, proving the pistol safe. Two Glock magazines containing 17 cartridges each were removed from SO #1’s duty belt.

The following scenario emerges from the evidence collected by the SIU in the course of the investigation, which included interviews with SO #2, several witness officers and a number of civilian witnesses to the events that preceded the shooting. A review of the communication recordings, post-mortem examination results, and forensic analyses of the scene, involved firearms and spent cartridge cases also benefitted the investigation. As was his legal right, SO #1 chose not to interview with the SIU or authorize the release of his notes.

At about 8:50 p.m. on April 9, 2020, CW #1 placed a 911 call from a residence in Temiskaming Shores. CW #1 was calling to report a home invasion involving a male – the Complainant - armed with a gun and a possible hostage situation.

Police officers were dispatched to the residence and arrived within minutes. With officers at the front of the home, SO #1 and SO #2 made their way to the rear of the structure. CW #2 who had returned to the scene, unlocked the rear door for the officers and allowed them into the home. SO #2 was the first to enter, followed by SO #1. They stepped into the home in the area of a staircase to the second floor. Shouts could be heard coming from the second-floor. SO #2 yelled upstairs for everyone to come down immediately. The Complainant then emerged standing at the top of the stairs before a gate. He yelled obscenities at SO #2, kicked the gate open and began to make his way down the stairs. In his right hand was what appeared to be a handgun.

SO #2 began to move backward away from the stairs, drew his firearm and ordered the Complainant to stop what he was doing. The Complainant continued to descend with his arm outstretched and the gun pointed at SO #2. SO #1 was to SO #2’s left at this time. As the Complainant came off the stairs and continued to within a couple of metres of SO #2, each officer fired his weapon. SO #2 and SO #1 discharged their weapons four and two times, respectively.

The Complainant collapsed in the kitchen. SO #2 moved toward the Complainant, retrieved the weapon from underneath his torso and threw it aside, and handcuffed the Complainant’s arms behind his back. The officer radioed that shots had been fired and that EMS was urgently required.

WO #2 arrived in the kitchen and assisted in performing CPR on the Complainant. Paramedics were soon on scene and transported the Complainant to hospital where, despite further efforts at resuscitation, he was pronounced deceased at 9:27 p.m.
CW #4 was found by the officers in a bedroom unharmed.

The “gun” that the Complainant had brandished was located on the floor by the rear door of the residence. It was, in fact, a toy gun.

Section 34, Criminal Code -- Defence of person - Use of threat of force

(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.

(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.

The Complainant died on April 9, 2020 in Temiskaming Shores of gunshot wounds. The wounds were inflicted by gunfire discharged by OPP officers, SO #1 and SO #2. The SIU commenced an investigation and designated each of the officers as subject officers. 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.

Section 34 of the Criminal Code defines the limits within which an act that would otherwise constitute an offence is justified in the defence of oneself or another from a reasonably apprehended attack, actual or threatened. In essence, such an act is justified if it is reasonable in the circumstances, including 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. In my view, the lethal force used by SO #1 and SO #2 was justified pursuant to section 34.

Each of the subject officers was in the lawful course of his duties when they responded to the address in the area of Lakeshore Road North and Wedgewood Avenue. As far as they knew, they were dealing with an emergency situation involving firearms and the threat of force against persons inside the home. The call from CW #1 was categorized as a home invasion in progress.

SO #2 says that he fired his weapon to protect himself and his partner, SO #1, from what he believed was an imminent risk of gunfire by the Complainant. I have no reason to doubt that SO #2’s apprehensions in this regard were both genuine and reasonable. Nor do I have cause to suspect that SO #1 was not of a similar mindset when he discharged his weapon even though there is no direct evidence of this as the officer did not interview with the SIU. The circumstantial evidence overwhelmingly suggests as much.

While it is true that the Complainant was only ever in possession of a toy handgun, in the fraught atmosphere that prevailed at the time, in which the officers had grounds to believe that the Complainant was armed with a real firearm and had threatened to kill persons inside the home, I am unable to fault the officers for believing they were dealing with a genuine threat of gunfire, particularly as the object in the Complainant’s hand looked like a real gun.

Notwithstanding they had reason to believe the Complainant was brandishing a real handgun, and that their lives were in peril the moment the Complainant appeared at the top of the staircase, the officers did not immediately resort to their firearms. Instead, they retreated a distance as the Complainant moved toward them, handgun pointed at the officers, while ordering him to stop. Each officer only fired when the Complainant had moved to within a couple of metres of SO #2 and at a point when they could retreat no further without exiting the home entirely. While it is conceivable that the officers might have withdrawn from the situation entirely through the rear door, doing so was not a realistic option in the face of a subject pointing what appeared to be an actual firearm in their direction and the presence of CW #4 on the second-floor.

There is also evidence that the Complainant voiced suicidal ideations in the moments preceding the officers’ arrival at the home, in which he specifically talked about provoking a shootout with the police that would cause his death. Though the officers would not have been aware of this information, it lends credibility to the officers’ fears that their lives were in jeopardy as it suggests the Complainant would have conducted himself in such a fashion as to create the appearance of an actual threat, not merely a contrived one.

Lastly, the number of shots fired - four by SO #2 and two by SO #1 - merits examination. As the officers discharged their weapons in relative proximity to each other and in rapid succession, I am unable to infer any appreciable difference in the nature of the threat each officer would have reasonably apprehended throughout the gunfire. That is to say, there is insufficient evidence to reasonably conclude that the sixth shot was not as legally justified as the first. This conclusion is bolstered by the evidence suggesting the Complainant only collapsed to the floor after the final round was discharged.

The Complainant was clearly not himself around the time of the shooting. He was variously aggressive, violent, paranoid and suicidal. Various drugs were detected in blood taken from the Complainant at autopsy, which may account for some if not all of this behaviour. Be that as it may, the subject officers were responding to an emergency situation in which they had good reason to believe that the Complainant represented a real and present danger to the life and health of someone inside the home. Thereafter, face-to-face with the Complainant pointing what appeared to be a handgun in their direction, I am satisfied for the foregoing reasons that they acted within the scope of legally justified force when they discharged their weapons. Accordingly, there is no basis for proceeding with criminal charges in this case against either of SO #1 and SO #2, and the file is closed.


Date: January 18, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit