SIU Director’s Report - Case # 19-OFI-286
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Contents:
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.
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 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.
- 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 a serious injury sustained by a 16-year-old boy (the “Complainant”).
“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 a serious injury sustained by a 16-year-old boy (the “Complainant”).
The Investigation
Notification of the SIU
On November 26, 2019 at 4:38 p.m., the Peel Regional Police (PRP) notified the SIU that the 16-year-old Complainant had been shot by a PRP officer during an attempted bank robbery that afternoon.According to the PRP, at 3:56 p.m. PRP officers were flagged down by a citizen who reported a bank robbery was in progress at the Hongkong and Shanghai Banking Corporation (HSBC) bank at 888 Dundas Street East, Mississauga. Police officers responded and confronted the male suspect inside the bank. The suspect was holding a firearm and one police officer shot him in the lower back or buttocks. The suspect was taken to St. Michael’s Hospital in stable condition. Multiple witnesses were inside the bank at the time.
The Team
Number of SIU Investigators assigned: 7 Number of SIU Forensic Investigators assigned: 2
The SIU immediately dispatched five investigators and two forensic identification investigators. Two additional investigators were later added to the investigation.
On the day of the incident, the SIU interviewed the bank employees who were inside the bank at the time of the incident.
Complainant:
16-year-old male interviewed, medical records obtained and reviewedThe Complainant was not able to be interviewed until May 4, 2020.
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
CW #12 Interviewed
One civilian fled the bank upon seeing an armed individual enter the bank. The SIU obtained a copy of her witness statement to the PRP, to confirm they did not witness the interaction between the police and the Complainant. This civilian was not interviewed by the SIU.
Witness Officers
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed
Subject Officers
SO Declined interview and to provide notes, as is the subject officer’s legal rightEvidence
The Scene
The HSBC Bank at 888 Dundas Street East in Mississauga is located in the Mississauga Chinese Centre, a shopping mall containing Chinese businesses. 
Figure 1 – The HSBC Bank in Mississauga where the shooting occurred.
Upon entering the main doors of the bank, to the left there are a series of desk cubicles used by personal banking representatives. To the right of those cubicles is a bank teller counter, where general banking business is conducted. The evidence related to the shooting of the Complainant was found to the left of the personal banking cubicles.
Scene Diagram
Physical Evidence
The SIU identified a grey backpack, grey sweatpants, a black T-shirt, a pair of white running shoes, a spent .40 calibre cartridge case, and medical debris in the area of interest. There was also a deposit of vomitus on the floor.The SIU collected the track pants found at the scene. The SIU also collected the spent cartridge case.
The other property found at the scene was collected by the PRP, with the consent of the SIU, to advance their investigation of the armed robbery.
The PRP had secured the Complainant’s firearm, a Smith and Wesson .40 calibre pistol. The gun was turned over to the SIU at the scene and it was photographed by the SIU. The firearm did not contain any ammunition. The firearm was then released back to the PRP, to further their investigation.
Figure 2 - The firearm the Complainant used during the attempted robbery.
The SO’s pistol was collected by the SIU.
Figure 3 - The firearm the SO used to shoot the Complainant.
A SIU investigator attended St. Michael’s Hospital and collected a projectile, a projectile fragment, two socks and a sweater.
The video surveillance cameras at the entrance to the bank did capture the Complainant entering the bank. As he entered the bank, the Complainant was carrying the firearm in his hand. Security guard, CW #4, was at the door. As the Complainant rushed into the bank, CW #4 followed behind him.
Communications Recordings
At 3:57:00 p.m., the Event Chronology records the transmission, “Amb (sic) now,” suggesting an ambulance is being requested to deal with the Complainant’s gunshot wound.
Forensic Evidence
On December 3, 2019, the spent cartridge case recovered at the scene was submitted to the Centre of Forensic Sciences (CFS), along with the SO’s firearm. The Complainant’s track pants were also submitted to the CFS.
On February 18, 2020, the CFS reported the findings of its analyses. The CFS confirmed the spent cartridge case collected at the scene had been discharged from the SO’s firearm.
With respect to the Complainant’s track pants, the CFS identified a bullet defect at the rear waistband. There was no gunshot residue identified. The CFS did not conduct any test firings for distance determination analysis, but they commented bullet propellent is typically not observed at distances greater than 36 inches.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:
The SIU further received a copy of the St. Michael’s Hospital’s Trauma Discharge Summary for the Complainant, which described the injuries suffered by the Complainant.
Video/Audio/Photographic Evidence
Unfortunately, the area inside the bank where the encounter occurred was not captured by any of the surveillance cameras inside the bank.The video surveillance cameras at the entrance to the bank did capture the Complainant entering the bank. As he entered the bank, the Complainant was carrying the firearm in his hand. Security guard, CW #4, was at the door. As the Complainant rushed into the bank, CW #4 followed behind him.
Communications Recordings
At 3:57:00 p.m., the Event Chronology records the transmission, “Amb (sic) now,” suggesting an ambulance is being requested to deal with the Complainant’s gunshot wound. Forensic Evidence
On December 3, 2019, the spent cartridge case recovered at the scene was submitted to the Centre of Forensic Sciences (CFS), along with the SO’s firearm. The Complainant’s track pants were also submitted to the CFS.On February 18, 2020, the CFS reported the findings of its analyses. The CFS confirmed the spent cartridge case collected at the scene had been discharged from the SO’s firearm.
With respect to the Complainant’s track pants, the CFS identified a bullet defect at the rear waistband. There was no gunshot residue identified. The CFS did not conduct any test firings for distance determination analysis, but they commented bullet propellent is typically not observed at distances greater than 36 inches.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:- A copy of the related communications recordings;
- Audio Copy Report-Phone Calls (summary of 911 calls);
- Audio Copy Report-Radio (list of radio communications tracks);
- Event Chronology (dispatch detail) Report;
- Occurrence Details Report;
- Person Details – the Complainant;
- PRP Civilian Witness List;
- Civilian Witness Statement;
- PRP Involved Officer List;
- Will Say – CW #12; and
- Training Record - Use of Force – the SO.
Materials obtained from Other Sources
The SIU obtained surveillance video recordings from the HSBC Bank. The SIU also obtained video surveillance recordings from two businesses located in the Mississauga Chinese Centre.The SIU further received a copy of the St. Michael’s Hospital’s Trauma Discharge Summary for the Complainant, which described the injuries suffered by the Complainant.
Incident Narrative
The following scenario emerges on the weight of the evidence gathered by the SIU, which included interviews with the Complainant, employees of the bank present at the time of the shooting, and three officers who witnessed portions of the events in question. The investigation also benefitted from security camera video recordings from within the bank. As was his legal right, the SO declined to interview with the SIU or authorize the release of his notes.
Shortly before 4:00 p.m. on November 26, 2019, the SO, in the company of WO #1, WO #2 and WO #3, was in the area of Dundas Street East across from the Mississauga Chinese Centre investigating an impaired driver when a passing motorist alerted them to a robbery in progress at the HSBC Bank. The bank was located directly south of the officers’ location inside the Chinese Centre. Led by the SO, the officers drew their firearms and ran to the bank, arriving within seconds.
A couple of minutes earlier, the Complainant had walked into the bank brandishing a semi-automatic pistol. He was wearing sweatpants and a hooded-jacket which he had over his head. His face was covered with a black T-shirt. The bank’s employees sought shelter behind and under desks as the Complainant demanded money. A bank employee put together some cash and coin and provided it to the bank security guard to give to the Complainant. The Complainant took the money and demanded more.
At about this time, the SO ran through the exterior and interior entrance/exit doors of the bank followed by WO #1, WO #2 and WO #3. At the sight of the officers, the Complainant ran from a position in front of the teller counter toward the west wall of the bank. The officers entered the bank with firearms drawn and turned immediately to their left in the direction to which the Complainant had run. Within seconds, a single shot was discharged from the SO’s firearm striking the Complainant in the lower mid-back.
Following the shooting, the Complainant, who remained standing, dropped his firearm to the floor. At the officers’ directions, the Complainant walked a distance to the customers’ side of a series of desks and was taken to the floor by WO #1 whereupon he was handcuffed with his hands behind the back.
Paramedics were summoned to the scene and transported the Complainant to hospital where he was treated for serious internal injuries.
The Complainant’s firearm was examined and found not to contain any ammunition.
Shortly before 4:00 p.m. on November 26, 2019, the SO, in the company of WO #1, WO #2 and WO #3, was in the area of Dundas Street East across from the Mississauga Chinese Centre investigating an impaired driver when a passing motorist alerted them to a robbery in progress at the HSBC Bank. The bank was located directly south of the officers’ location inside the Chinese Centre. Led by the SO, the officers drew their firearms and ran to the bank, arriving within seconds.
A couple of minutes earlier, the Complainant had walked into the bank brandishing a semi-automatic pistol. He was wearing sweatpants and a hooded-jacket which he had over his head. His face was covered with a black T-shirt. The bank’s employees sought shelter behind and under desks as the Complainant demanded money. A bank employee put together some cash and coin and provided it to the bank security guard to give to the Complainant. The Complainant took the money and demanded more.
At about this time, the SO ran through the exterior and interior entrance/exit doors of the bank followed by WO #1, WO #2 and WO #3. At the sight of the officers, the Complainant ran from a position in front of the teller counter toward the west wall of the bank. The officers entered the bank with firearms drawn and turned immediately to their left in the direction to which the Complainant had run. Within seconds, a single shot was discharged from the SO’s firearm striking the Complainant in the lower mid-back.
Following the shooting, the Complainant, who remained standing, dropped his firearm to the floor. At the officers’ directions, the Complainant walked a distance to the customers’ side of a series of desks and was taken to the floor by WO #1 whereupon he was handcuffed with his hands behind the back.
Paramedics were summoned to the scene and transported the Complainant to hospital where he was treated for serious internal injuries.
The Complainant’s firearm was examined and found not to contain any ammunition.
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.
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.
Analysis and Director's Decision
On November 26, 2019, the Complainant was shot by a police officer in the course of his arrest inside a bank and suffered significant internal injuries in the process. The officer who discharged his firearm – the SO – had made his way to the bank following reports of an armed robbery occurring inside. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the shooting.
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were authorized or required to do by law. In the case of lethal force, section 25(3) further provides that such force is not justified unless the officer believes on reasonable grounds that it was necessary for her or his self-preservation or the preservation of any one under their protection from death or grievous bodily harm. On the record developed by the SIU, I am unable to reasonably conclude that the SO’s resort to lethal force fell outside the limits of legal justification.
At the outset, I readily accept that the SO was engaged in the lawful execution of his duty when he rushed to the scene of a reported bank robbery and confronted the Complainant with a view, presumably, to protecting the public and arresting the Complainant. Based on the information he had been provided by a citizen leaving the Mississauga Chinese Centre and what he would have seen as he entered the front doors of the bank, namely, a masked person carrying a backpack full of cash and a firearm in his right hand, the SO had every reason to believe that the Complainant was robbing the bank, constituted a real and immediate danger to the lives and safety of everyone around him, and was subject to lawful arrest.
I am also satisfied that there is insufficient evidence to reasonably conclude that the SO’s mindset at the time he fired the shot fell afoul of the legal requisites. Since the SO chose to exercise his legal right to remain silent in the face of the SIU investigation, I am without direct evidence regarding the officer’s state of mind. However, the circumstances in this case are telling. Take first the Complainant’s conduct prior to the officers’ arrival in the bank. The evidence establishes that the Complainant had terrorized upwards of ten bank employees. He jumped up and down desks beside the teller counter, shouted angrily demanding money, invaded the personal space of the employees behind the teller counter and in their offices, and pointed his firearm directly at several of these persons and threatened their lives. While the SO would not have been privy to this conduct, the violence with which the Complainant pursued his purpose lends credence, in my view, to what likely was a genuine concern on the part of the officer of imminent death or grievous bodily harm at the hands of the Complainant.
Consider also the situation in and around the time of the shooting. While none of the bank employees witnessed the actual shooting, many of them heard the officers yell words to the effect of, “Freeze,” “Put your hands up,” and, “Don’t move,” shortly before they heard a single gunshot. The video evidence, coupled with witness accounts, suggests the Complainant ran toward a wall and series of offices west of the client desks and teller counter as the officers entered the bank. This evidence aligns with the rendition of events proffered by WO #3. The officer, behind and to the SO’s right as they entered the bank and turned to their left toward the Complainant, indicates that the Complainant moved toward and away from the officers at close range a number of times in this location before he again moved in the officers’ direction and was shot by the SO. WO #1 is less explicit about the Complainant’s movements around the time of the gunshot. He, and the SO and WO #3, according to WO #1, were standing in a semi-circle formation in front of the Complainant when he heard a gunshot. On the weight of the evidence, the Complainant had the firearm in his right hand the whole time, dropping it only after he was shot, and still standing, for fear that he would be shot again if he made any movements with the gun.
On the foregoing record, I am unable to conclude with any degree of confidence that the SO was bereft of a reasonable belief that it was necessary to shoot the Complainant in order to protect his life and those around him from an imminent risk of death or grievous bodily harm. On the contrary, I am inclined to believe that the SO honestly and reasonably harboured such a belief when he fired his weapon. The fact that the Complainant’s firearm was not, in fact, loaded, is of no consequence. It was an actual firearm which the SO would have had every reason to believe was loaded and ready to be fired in the hands of the Complainant. Nor was retreat or withdrawal a realistic option. The officers, including the SO, would have known that bank employees were in and around the area. Their health and safety would clearly have been imperilled had the Complainant, seemingly armed with a working firearm, been left unattended in the bank. The speed with which events unfolded also foreclosed any opportunity for disengagement by the officers. Mere seconds had elapsed from the moment they entered the bank to the confrontation with the Complainant.
Special note must be made of the fact that the Complainant was shot in the middle of the lower back. Gun shots to the back are problematic in that they can suggest the subject of the wound was facing away from the shooter and therefore not a threat at the time of the gunfire. Having scrutinized this piece of evidence, I am satisfied it does not deprive the SO of justification under section 25(3) of the Code. It is clear on the evidence that the Complainant was failing to comply with police commands that he remain still and, in fact, was moving at the time of the shooting. To reiterate, WO #3 described the Complainant moving back and forth a few times before he was shot. I am also mindful of the fact that bank employees were present in various locations throughout the bank at the time, including in the direction that the Complainant would have been facing if he was standing with his back to the SO at the time the officer decided to shoot. Given the immediate risk posed to the life and limb of persons present in the vicinity of an individual armed with a firearm, the Complainant’s movements and the reaction time inherent between the decision to fire and the actual gunshot, I am unable on the totality of the evidence to reasonably conclude that the Complainant was not a threat warranting a resort to lethal force because of the location of the wound in his back.
In the result, as I am not satisfied there are reasonable grounds to believe that the SO acted unlawfully in shooting the Complainant, there is no basis for proceeding with charges against the officer and the file closed.
Date: January 4, 2021
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were authorized or required to do by law. In the case of lethal force, section 25(3) further provides that such force is not justified unless the officer believes on reasonable grounds that it was necessary for her or his self-preservation or the preservation of any one under their protection from death or grievous bodily harm. On the record developed by the SIU, I am unable to reasonably conclude that the SO’s resort to lethal force fell outside the limits of legal justification.
At the outset, I readily accept that the SO was engaged in the lawful execution of his duty when he rushed to the scene of a reported bank robbery and confronted the Complainant with a view, presumably, to protecting the public and arresting the Complainant. Based on the information he had been provided by a citizen leaving the Mississauga Chinese Centre and what he would have seen as he entered the front doors of the bank, namely, a masked person carrying a backpack full of cash and a firearm in his right hand, the SO had every reason to believe that the Complainant was robbing the bank, constituted a real and immediate danger to the lives and safety of everyone around him, and was subject to lawful arrest.
I am also satisfied that there is insufficient evidence to reasonably conclude that the SO’s mindset at the time he fired the shot fell afoul of the legal requisites. Since the SO chose to exercise his legal right to remain silent in the face of the SIU investigation, I am without direct evidence regarding the officer’s state of mind. However, the circumstances in this case are telling. Take first the Complainant’s conduct prior to the officers’ arrival in the bank. The evidence establishes that the Complainant had terrorized upwards of ten bank employees. He jumped up and down desks beside the teller counter, shouted angrily demanding money, invaded the personal space of the employees behind the teller counter and in their offices, and pointed his firearm directly at several of these persons and threatened their lives. While the SO would not have been privy to this conduct, the violence with which the Complainant pursued his purpose lends credence, in my view, to what likely was a genuine concern on the part of the officer of imminent death or grievous bodily harm at the hands of the Complainant.
Consider also the situation in and around the time of the shooting. While none of the bank employees witnessed the actual shooting, many of them heard the officers yell words to the effect of, “Freeze,” “Put your hands up,” and, “Don’t move,” shortly before they heard a single gunshot. The video evidence, coupled with witness accounts, suggests the Complainant ran toward a wall and series of offices west of the client desks and teller counter as the officers entered the bank. This evidence aligns with the rendition of events proffered by WO #3. The officer, behind and to the SO’s right as they entered the bank and turned to their left toward the Complainant, indicates that the Complainant moved toward and away from the officers at close range a number of times in this location before he again moved in the officers’ direction and was shot by the SO. WO #1 is less explicit about the Complainant’s movements around the time of the gunshot. He, and the SO and WO #3, according to WO #1, were standing in a semi-circle formation in front of the Complainant when he heard a gunshot. On the weight of the evidence, the Complainant had the firearm in his right hand the whole time, dropping it only after he was shot, and still standing, for fear that he would be shot again if he made any movements with the gun.
On the foregoing record, I am unable to conclude with any degree of confidence that the SO was bereft of a reasonable belief that it was necessary to shoot the Complainant in order to protect his life and those around him from an imminent risk of death or grievous bodily harm. On the contrary, I am inclined to believe that the SO honestly and reasonably harboured such a belief when he fired his weapon. The fact that the Complainant’s firearm was not, in fact, loaded, is of no consequence. It was an actual firearm which the SO would have had every reason to believe was loaded and ready to be fired in the hands of the Complainant. Nor was retreat or withdrawal a realistic option. The officers, including the SO, would have known that bank employees were in and around the area. Their health and safety would clearly have been imperilled had the Complainant, seemingly armed with a working firearm, been left unattended in the bank. The speed with which events unfolded also foreclosed any opportunity for disengagement by the officers. Mere seconds had elapsed from the moment they entered the bank to the confrontation with the Complainant.
Special note must be made of the fact that the Complainant was shot in the middle of the lower back. Gun shots to the back are problematic in that they can suggest the subject of the wound was facing away from the shooter and therefore not a threat at the time of the gunfire. Having scrutinized this piece of evidence, I am satisfied it does not deprive the SO of justification under section 25(3) of the Code. It is clear on the evidence that the Complainant was failing to comply with police commands that he remain still and, in fact, was moving at the time of the shooting. To reiterate, WO #3 described the Complainant moving back and forth a few times before he was shot. I am also mindful of the fact that bank employees were present in various locations throughout the bank at the time, including in the direction that the Complainant would have been facing if he was standing with his back to the SO at the time the officer decided to shoot. Given the immediate risk posed to the life and limb of persons present in the vicinity of an individual armed with a firearm, the Complainant’s movements and the reaction time inherent between the decision to fire and the actual gunshot, I am unable on the totality of the evidence to reasonably conclude that the Complainant was not a threat warranting a resort to lethal force because of the location of the wound in his back.
In the result, as I am not satisfied there are reasonable grounds to believe that the SO acted unlawfully in shooting the Complainant, there is no basis for proceeding with charges against the officer and the file closed.
Date: January 4, 2021
Joseph Martino
Director
Special Investigations Unit
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.