SIU Director’s Report - Case # 18-OFI-098
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Mandate of the SIU
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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 injuries sustained by a 24-year-old male (Complainant #1) and a 39-year-old male (Complainant #2).
Notification of the SIUAt approximately 7:36 p.m., on April 1, 2018, the Greater Sudbury Police Service (GSPS) notified the SIU of an officer involved shooting of 24-year-old Complainant #1.
The GSPS reported that on that same date, at 6:20 p.m., the GSPS had responded to the Downtown Transit Terminal situated at 9 Elm Street in downtown Sudbury for a man armed with knives. Two police officers, the subject officer (SO), who was armed with a C-8 rifle, and witness officer (WO) #2 arrived at the depot and confronted Complainant #1. The SO discharged his rifle once and struck Complainant #1 in the lower left side of his abdomen. The Complainant was taken to the hospital and he was reported to be in stable condition at the time of the notification to the SIU.
The TeamNumber of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
Complainant:Complainant #1 24-year-old male interviewed, medical records obtained and reviewed
Complainant #2 39-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Not interviewed (Next-of-kin)
CW #7 Interviewed
Witness OfficersWO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
Additionally, the notes from 17 other police officers were received and reviewed.
Subject OfficersThe SO Declined interview and to provide notes, as is the subject officer’s legal right
As a result, four GSPS police officers were dispatched and arrived at the terminal while the 911 caller was still on the line. The SO was armed with a C-8 rifle and WO #2, WO #1, and WO #3 were all armed with their service pistols and Conducted Energy Weapons (CEWs). The police officers entered the bus terminal via the west side centre door and stood side by side; they saw Complainant #1 in the south portion of the terminal pacing in and around the passenger area grasping two knives, one in each hand. The police officers repeatedly ordered Complainant #1 to drop the knives, but he ignored those commands. The distance between the police officers and Complainant #1, at that point, was approximately 30 feet.
WO #2 drew his service pistol, WO #1 and WO #3 drew their CEWs, and the SO levelled his C-8 carbine rifle; all had their weapons pointed at Complainant #1, while yelling at Complainant #1 to drop his knives. WO #1 readied his CEW, by locking its red laser beam on Complainant #1’s chest and centre mass. Complainant #1 then suddenly raised both knives above his head, grasping them by the hilts while pointing the blades in the direction of the police officers, began to scream, and then rushed directly towards the four police officers.
Both WO #1 and WO #3 discharged their CEWs and observed the probes strike Complainant #1’s chest and abdomen area. The deployment of the CEWs, however, appeared to have no effect on Complainant #1, as he continued to rush at the police officers with his knives pointed at them.
All four of the police officers jumped back as Complainant #1 ran at them; WO #s 1-3, who were situated in the centre of the corridor, were able to back away and increase the distance between themselves and Complainant #1. The SO, who was on the west side of the terminal, backed up against the glass panel wall enclosing the entranceway into the terminal and was unable to retreat any further.
Complainant #1 ran down the centre of the corridor directly at WO #s 1-3. As he passed by the location of the SO, the SO turned his body toward Complainant #1 and discharged his rifle three times. One bullet made contact with the Complainant’s right flank as he became perpendicular to the SO, with the other two striking the external wall of the security office, which was directly across from the SO, penetrating its light metal exterior. Complainant #2, who was inside the security office, was struck in the left shin area by a bullet fragment which penetrated the wall of the security office and was propelled forward, or a piece of metal shrapnel propelled by a bullet strike.
Nature of Injuries / TreatmentComplainant #2 attended the hospital, where a “metallic foreign body” was located 14 cms beneath the skin’s surface on his left tibia (shinbone); no fracture or dislocation was located. The fragment was removed from his leg and the wound was cleaned and bandaged; Complainant #2 was released from hospital immediately thereafter.
Complainant #1 sustained a gunshot wound to his left flank and was admitted to hospital, where he underwent surgery to remove the bullet. The bullet traversed the flank, but fortunately missed a number of major arteries and blood vessels. The bullet splintered into many fragments which became lodged in his Acrum (lower back); these were not removed during surgery. Complainant #1’s bladder was also impacted by the bullet and required that a catheter be inserted. Complainant #1 was released from the hospital approximately three weeks later.
The SceneThe scene was located in the Downtown Transit Terminal located at 9 Elm Street in the City of Sudbury.
Interior of bus terminal. Security office is located to the right.
Apparent bullet hole through garbage can and corner of security office.
Demonstration of bullet trajectory.
Bullet hole from interior of office.
Same view as above, depicting where the second knife landed after the shooting.
The two knives located at the scene.
CEW Download Data
Forensic Evidence Three .223 cartridge cases and the SO’s C8 rifle were sent to the Centre of Forensic Sciences (CFS) for comparison examination.
The piece of metal extracted from Complainant #2’s left leg was also sent to the CFS to determine whether it was a bullet fragment or shrapnel from a bullet strike to the light metal siding attached to the security office.
The Firearms Report from the CFS, authored on June 14, 2018, concluded that the three fired cartridge cases collected, “identified, within the limits of practical certainty, as having been fired by the Item 4 rifle (rifle in the possession of the SO)”.
With respect to the fragment removed from Complainant #2’s leg, the report concluded that it was a “fired bullet jacket fragment” and that it, “could neither be identified nor eliminated as having been fired by the Item 4 rifle. The Item 9 bullet jacket fragment is of no specific identification value.”
Swabs from the blades and hilts of the two knives in the possession of Complainant #1 were sent to the CFS to determine if blood was present and to analyze any DNA on the knives originating from either blood or other bodily fluids.
The DNA report from the CFS, authored on May 15, 2018, concluded that blood was present on the Smith and Wesson knife, but none was detected on the Gerber knife.
The swabs from the handles of each knife located DNA, but only the swab from the Gerber knife was sufficient for comparison. The blood located on the underside of the blade of the Smith and Wesson knife was not sufficient for comparison purposes.
The Cell Phone VideoCW #3 captured the shooting of Complainant #1 on his cell phone. The video was of good quality with audio, but unfortunately, at some points, the phone was aimed at the floor and not all of the interaction was captured.
The cell phone video, while completely consistent with the details of the terminal video as summarized below, adds the following audio:
As the officers are facing Complainant #1 with their CEWs and firearms drawn, they are heard to yell at Complainant #1, directing him to drop his weapons. Within seconds, the Complainant raises the knives he is holding in each hand, and begins to scream as he runs toward the officers.
As soon as Complainant #1 falls to the ground, an officer is heard to yell into his radio, “Shots fired, shots fired!”
CCTV from Downtown Bus Terminal InteriorThere was also CCTV footage from four different vantage points inside the bus terminal leading up to the shooting of Complainant #1, two of which captured the interaction with police. The quality of the terminal camera recordings is very good but there is no audio.
Summary of the key moments on the terminal video:
VLC Media Player-Transit Terminal Main Area 2
Minutes: (On Timer)At 00:00 minutes, Complainant #1 is sitting on a bench;
At 22:31 minutes, Complainant #1 has a knife to his own throat;
At 22:36 minutes, Complainant #1 stands up and is pacing;
At 24:14 minutes, Complainant #1 is pacing and there are 3 civilian witnesses in the immediate area;
At 24:36 minutes, Complainant now has a knife in each hand and is pacing;
At 24:59 minutes, Complainant #2 is seen entering the security office and the knife wielding Complainant #1 is seen approaching him from the rear;
At 28:27 minutes, Complainant #1 is shot.
Player Transit Terminal Main Area 1The footage clearly depicts the four police officers lined up side by side in the corridor of the bus terminal facing Complainant #1. In the moment before Complainant #1 charges the police officers, the white lights of two CEWs (held by WO #1 and WO #3) can be seen being activated.
As Complainant #1 begins to charge towards the police officers, WO #3, WO #1, and WO #2 are seen to jump back and retreat from Complainant #1, while the SO, whose back is against the wall of the vestibule surrounding the entrance doors and who is pointing his armed C-8 rifle at Complainant #1, is seen to turn to face Complainant #1 as he runs past the SO and towards the other three officers. As Complainant #1 passes the SO, and nears the other three police officers, with a knife in each hand and the blades facing towards the officers, the SO fires his rifle three times. Complainant #1 then falls to the floor screaming and the officers immediately approach and handcuff him and attempt to provide assistance.
Communications RecordingsThe 911 call recording and the police transmissions communications recording were obtained and reviewed.
911 Call RecordingCW #2 called 911 at approximately 6:23 p.m. on April 1, 2018 and requested that police attend the Sudbury Transit building at 9 Elm Street as Complainant #1 was walking around inside the building with a knife. CW #2 reported that he was a security officer on duty at the transit building and that Complainant #1 was attempting to break into the security office and had a knife in each hand.
He further reported that Complainant #1 had a knife to his own neck and had pointed a knife at members of the public in the building.
CW #2 provided a description of Complainant #1 and indicated that he was walking around near the ticket booth inside the building with a large knife in each hand. He then reported that the police had arrived at the building and Complainant #1 still had the knives in his hands.
GSPS Radio Communication RecordingsAt 6:24:26 p.m. on April 1, 2018, the GSPS radio dispatcher sent out a priority alert for a weapons call at the Sudbury Transit building at 9 Elm Street. The dispatcher broadcast that there was a male, Complainant #1, walking around the building with a knife; five GSPS police cruisers responded to the call.
The radio dispatcher gave a physical description of Complainant #1 and indicated that he was trying to break into the building security office and was armed with two large knives.
At 6:26:23 p.m., the first police cruiser with two police officers, WO #2 and WO #3, arrived at the transit building. The police officers informed the dispatcher that they had eyes on Complainant #1 and that he was still holding a knife in each hand. The police officers enquired as to the ETA of a backup unit. Another police officer indicated that when he arrived at the scene he would be carrying a C8 carbine rifle.
At 6:28:03 p.m., the police officers on scene indicated that Complainant #1 was boxed in, approximately 30 feet from them at the south end of the building, and he was attempting to approach them and would not comply with their commands.
At 6:28:48 p.m., a police officer broadcast that shots had been fired and that Complainant #1 was down. An ambulance was requested. A police officer broadcast that a Sudbury transit employee had been injured by shrapnel. The police officers indicated that Complainant #1 had been struck on his left hip and that they were trying to control the bleeding. A police officer informed the dispatcher that a CEW had been deployed.
The police officers attempted to get information from Complainant #1, but he kept chanting “White Power”.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the GSPS:
- 911 Call Recording;
- Police Transmissions Communications Recording;
- CPIC Response Report-GSPS;
- Event Chronology;
- General Report;
- GSPS Witness Statement of CW #4;
- Notes of WO #s 1-3 and 17 Undesignated Police Witnesses;
- Officer Involvement List;
- CEW Download Data;
- Will States from undesignated GSPS Officers; and,
- Witness List.
The SIU obtained and reviewed the following materials and documents from other sources:
- DNA report dated June 14, 2018 from the CFS;
- Firearms report dated May 15, 2018 from the CFS:
- Medical Records of Complainant #1 related to this incident, obtained with his consent;
- Medical Records of Complainant #2 related to this incident, obtained with his consent;
- Cell Phone Recording of Incident by CW #3; and,
- CCTV Recording from Bus Terminal.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(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,
Section 27, Criminal Code -- Use of force to prevent commission of offence
(a) to prevent the commission of an offence(i) for which, if it were committed, the person who committed it might be arrested without warrant, and(b)To prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or
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.
Section 88(1), Criminal Code -- Possession of weapon for dangerous purpose88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.
Section 267, Criminal Code -- Assault with a weapon or causing bodily harm
(a) carries, uses or threatens to use a weapon or an imitation thereof, or(b) causes bodily harm to the complainant,
Analysis and Director's Decision
As a result of the call, police were immediately dispatched to the bus terminal with witness officer (WO) #2 and WO #3 arriving first, and WO #1 and the subject officer (SO) arriving seconds later. WO #1, WO #3, and WO #2 were each armed with their service pistols, while the SO carried a C-8 Carbine rifle; WO #1 and WO #3 also had CEWs in their possession. During the course of the interaction with police, both of WO #1 and WO #3 discharged their CEWs on one occasion each, and the SO discharged his C-8 Carbine rifle three times. Complainant #1 was shot once in his left flank, while Complainant #2 had a small fragment, from a bullet, strike his left shin.
During the course of this investigation, six civilian and three police witnesses were interviewed, in addition to the two Complainants. Fortunately, the fact are relatively easy to make out as the majority of interaction was recorded both by a CW, on his cell phone, and by the CCTV located in the bus terminal. The video footage, combined with the evidence of the witnesses, has allowed for an accurate and reliable summary of the incident to be formulated, which follows. There is no dispute as to the facts.
While the interview with Complainant #1 was very brief, he did tell SIU investigators that he had been in the bus terminal on the afternoon of April 1, 2018, that he had been armed with two knives, one in each hand, that the police officers had ordered him to drop the knives, which orders he ignored, following which he charged at the police officers and was first struck by a CEW and then shot in the left flank. Complainant #1 indicated that his reasoning in charging at the officers with the knives was that he wanted to end his life.
The CCTV footage confirms that Complainant #1 arrived at the bus terminal on the afternoon of April 1, 2018, and he is seen thereafter to be pacing inside the terminal with two knives, one in each hand.
At approximately 6:10 p.m., CW #2, a security officer working at the bus terminal, was in the security office viewing the security monitors, when he observed Complainant #1 holding a knife to his own neck and pacing up and down at the south end of the terminal building. CW #2 stated that he then stepped out of his office to investigate, and Complainant #1 made eye contact with him, while still holding the knife to his neck. CW #2 then re-entered his office and attempted to lock the door, but CW #2 charged at the door and began to kick it, while CW #2, unable to get the door locked, braced the door and held it closed to prevent Complainant #1 from entering. CW #2 indicated that he feared for his life at that point.
CW #2 then contacted Complainant #2, the security supervisor, by radio and advised him that he was calling 911. Complainant #1 left the security office door and resumed his pacing in the terminal.
Complainant #2, who had been upstairs in the terminal, then came down to the first floor where he too observed Complainant #1 and began to walk towards him; Complainant #2 observed Complainant #1 to have a knife in each hand. When Complainant #1 spotted Complainant #2, he started to quickly move toward him, and Complainant #2, concerned for his safety, turned to enter the security office. As he neared the security door, CW #2 reached out, grabbed Complainant #2, and pulled him into the office. The two men then held the door to the office closed, while Complainant #1 attempted to force his way in. CW #2 then called 911.
Moments later, two uniformed GSPS police officers, WO #2 and WO #3, arrived at the bus terminal, and Complainant #2 knocked on the exterior window to alert the officers of Complainant #1’s location inside the terminal.
The first two officers’ arrival time was at 6:25 p.m. When they first entered the terminal they observed Complainant #1, about 30 feet away at the south end of the terminal, pacing from side to side with two knives, one in each hand, with the blades pointing upward. Both police officers yelled at Complainant #1 to, “Drop the knives!” Complainant #1 was observed to look at the officers, but ignored the commands to drop the knives, instead taking a few steps towards the officers, who then moved back and away from Complainant #1. The police officers then directed the other civilians in the area to vacate the building.
WO #2 subsequently drew his service pistol and directed WO #3 to draw his conducted energy weapon (CEW), which he then did. WO #2 said that it was his hope that if Complainant #1 charged at them, and was struck with the CEW, that he would drop his weapons and WO #2 could go ‘hands on’ with him.
At approximately 6:28 p.m., WO #1 and the SO arrived at the terminal. The SO advised the communications centre, via his radio, that he would be deploying his carbine assault rifle. This is confirmed by the police transmission communications recording as a call originating from the SO, and received by the dispatcher at 6:27:52 p.m.
The SO then ran toward the terminal, while WO #1 followed on foot with his hand on his holstered service pistol; these officers entered the terminal through the west side doors. The SO then took up a position at the west side wall; WO #1 moved to the left of the SO, at a distance of about five feet; WO #2 was to the left of WO #1; and, WO #3 was to the left of WO #2. The four police officers stood the width of the corridor, with the SO standing closest to the wall with the entrance foyer wall behind him. The line of four police officers was approximately 30 feet from the location of Complainant #1, and they continued to yell at him to drop the knives.
CW #3, a witness in the terminal at the time, estimated that the police officers commanded Complainant #1 to drop his weapons/knives some 15 to 20 times.
This evidence is confirmed and recorded both on the cell phone video of CW #3, as well as the CCTV footage from the bus terminal.
WO #1 drew his CEW, which he pointed at Complainant #1’s centre mass, while the SO levelled his carbine rifle at Complainant #1, and WO #2 had his side arm trained on Complainant #1 with WO #3 doing the same with his CEW.
WO #1 gave the shouted warning, “Taser, Taser!” in order to alert his colleagues that he intended to discharge his CEW.
Suddenly, Complainant #1 grunted, yelled, and charged at the line of police officers, with both arms up and the knife blades pointed towards the officers. Each of the officers is observed on the videos as jumping backwards and away from Complainant #1, with the exception of the SO, who came up against the glass wall of the entrance foyer, which was directly behind him.
WO #1 indicated that he discharged his CEW when Complainant #1 was about 20 feet away, but when he saw that the CEW discharge was ineffective, and Complainant #1 continued in his forward movement, he dropped his CEW and reached for his service pistol.
WO #3 advised that he discharged his CEW when Complainant #1 was within 15 feet of the officers, but it too was ineffective and did not stop Complainant #1.
Both WO #1 and WO #3 observed one or both of the probes from their respective CEWs make contact with Complainant #1’s chest and abdominal area, but it did not slow Complainant #1, as he continued to run at the officers.
From the video, it appears that Complainant #1 was more focused on the three police officers who were backing away from him than he was on the SO, who was standing to his far left, backed into the corner between the exterior wall of the terminal and the glass enclosure of the foyer to the entrance doors.
WO #2 sated that he backed up and pointed his firearm at the centre mass of Complainant #1, who was closing the distance between himself and the police officers very quickly; WO #2 had his finger on the trigger of his firearm ready to discharge.
As Complainant #1 ran forward, toward the three retreating officers, he came to a position where he was parallel to the SO, and the SO turned toward him and discharged his rifle three times as Complainant #1 proceeded past him, striking Complainant #1 in the left flank. Two of the three bullets were later found to have struck the security office, the corner of which was directly across from the SO, with one bullet fragment penetrating the wall and striking Complainant #2 in the left shin.
WO #2 indicated that because he was squeezing the trigger of his firearm as Complainant #1 was nearing, he originally believed that it was he who had discharged his firearm when he heard the first gunshot, but when it was followed immediately by two more, he realized that it was the SO who had fired on Complainant #1.
When the bullet struck Complainant #1, he fell to the floor screaming, while the knives flew out of his hands and landed ahead of him, skidding across the floor.
The police officers immediately moved in to handcuff and provide medical assistance to Complainant #1, while one of the officers shouted into his radio, “Shots fired! Shots fired!” When questioned by WO #1 as to his identity, Complainant #1 was heard to repeatedly mumble, “White power.”
Pursuant to s. 25(1) of the Criminal Code, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. Further, pursuant to subsection 3:
(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 … from death or grievous bodily harm.
As such, in order for the SO to qualify for protection from prosecution under section 25, it must be established that he was in the execution of a lawful duty, that he was acting on reasonable grounds, and that he used no more force than was necessary. Furthermore, pursuant to subsection 3, if death or grievous bodily harm is caused, it must further be established that the police officer did so believing on reasonable grounds that it was necessary in order to preserve himself or others under his protection from death or grievous bodily harm.
Turning first to the lawfulness of Complainant #1’s apprehension, it is clear from both the 911 call and the direct observations of the four police officers present, as well as upon the evidence of the two Complainants and the six civilian witnesses, that Complainant #1 was in possession of weapons that were dangerous to the public peace, contrary to s. 88 of the Criminal Code, and he was arrestable for that offence. As such, the apprehension and arrest of Complainant #1 were legally justified in the circumstances.
With respect to the other requirements pursuant to s.25(1) and (3), I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak  1 S.C.R. 206, as follows:
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):
In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]
The court describes the test required under s.25 in the following words:
Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer's belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves,  O.J. No. 634 (QL) (S.C.J.), at para. 59).
The decision of Justice Power of the Ontario Superior Court of Justice in Chartier v. Greaves,  O.J. No. 634, as adopted by the Supreme Court of Canada above, sets out other relevant provisions of the Criminal Code to be considered, as follows:
27. Use of force to prevent commission of offence - Everyone is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and(ii) that would be likely to cause immediate and serious injury to the person or property of anyone, or
(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
This Section, therefore, authorizes the use of force to prevent the commission of certain offenses. “Everyone" would include a police officer. The force must not be more than that which is reasonably necessary. Therefore, an objective test is called for. The Ontario Court of Appeal, in R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 held that the use of deadly force can be justified only in either cases of self-defence or in preventing the commission of a crime likely to cause immediate and serious injury.
37(1) Preventing assault - Everyone is justified in using force to defend himself or anyone under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.(2) Extent of justification - Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.
Further, the court sets out a number of other legal principles gleaned from the legal precedents cited, including the following:
(h) Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event.(i) "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver).(j) Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances.(k) "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.).
On the basis of the foregoing principles of law then, I must determine whether the SO:
(1) Subjectively, reasonably believed that he, or other persons under his protection, were at risk of death or grievous bodily harm from Complainant #1 at the time that he discharged his firearm; and,
(2) Whether that belief was objectively reasonable, or, in other words, whether his actions would be considered reasonable by an objective bystander who had all of the information available to the SO at the time that he discharged his firearm.
With respect to the first of these criteria, it is clear from the statement of the three WOs (the SO having declined to provide a statement to SIU investigators, as is his legal right) that they believed that they were at risk of death or grievous bodily harm at the time that Complainant #1 charged at them with his two knives raised in the air and pointed in their direction, as a result of which the SO discharged his firearm.
The three WOs appear to have based this belief on the information in their possession at the time, that being:
- That Complainant #1 was in possession of two large hunting style knives;
- That a 911 call had been received outlining this same information;
- That Complainant #1 was aware of the police presence but had refused to comply with repeated commands to drop his weapons;
- That the deployment of two CEWs, which had made contact with Complainant #1, had been ineffective; and,
- That Complainant #1 was continuing to charge at the police officers with his weapons raised and was quickly closing the distance between them, putting them at extreme risk.
As such, while the SO did not provide a statement, there is ample evidence that the three witness officers reasonably believed that they were at risk of death or grievous bodily harm from Complainant #1 at the time that the SO discharged his firearm. Since each of the four police officers present were in possession of the same information at that time, I find that the beliefs by the three witness officers that their lives were at risk of death or grievous bodily harm would have been shared by the SO. As such, I believe that there is ample evidence to answer question 1 in the affirmative, that the SO, subjectively, had reasonable grounds to believe that he, or the other three police officers present, were at risk of death or grievous bodily harm from Complainant #1 at the time that he discharged his firearm.
Turning then to question 2, with respect to whether or not there were objectively reasonable grounds to believe that the lives of the police officers inside the terminal were at risk of death or grievous bodily harm from Complainant #1, one need only refer to the objective bystanders who actually witnessed the actions of Complainant #1, as follows:
- A number of the witnesses, and Complainant #1 himself, confirmed that numerous demands had been made by the police officers for Complainant #1 to drop his weapons, all of which were ignored by Complainant #1;
- Complainant #2 and CW #2, who barricaded themselves inside the security office, both indicated that they feared for their safety from Complainant #1;
- CW #4, a Greater Sudbury Transit employee, indicated that Complainant #1 got very close to the three police officers with the knives poised and pointed in their direction, before the SO discharged his rifle;
- CW #5 indicated that she believed that Complainant #1 was purposely attacking the police officers and was within eight feet of the officers when he was shot;
- CW #2 heard the police officers yell “Stop!” at Complainant #1 several times, as he ran toward them screaming, with the two knives raised on either side of his head;
- CW #1, an employee of the terminal, described Complainant #1 running toward the police officers with the knife, as if he was going to attack and kill the officers, and opined that the SO did what he had to do in those circumstances; and,
- CW #3 described Complainant #1 as having two large knives which he described as “Hunting knives and take your life knives,” which he pointed out in front of him as he sprinted towards the officers in what he described as being in a “Ready to die” fashion, while he quickly closed the gap between himself and the police officers.
Additionally, the fact that WO #1 dropped his CEW, after the ineffective deployment, stepped back, and was reaching for his firearm, and that WO #2 already had his firearm in hand and was squeezing the trigger, when the SO discharged his rifle, appears to clearly substantiate that each of these two officers also felt that their lives were at risk from Complainant #1, and that they were each willing to resort to lethal force to protect themselves from death or grievous bodily harm.
Furthermore, based on the statements of various witnesses, there is no dispute that the four police officers repeatedly tried to convince Complainant #1 to drop his weapons, that less lethal use of force options were resorted to prior to the gunshots being fired, and that all officers retreated from Complainant #1, and were continuing to do so, while Complainant #1 continued to advance on the officers with his weapons poised. As such, it appears clear that police did not immediately resort to the use of lethal force, but attempted first to resolve the situation by other means.
Finally, having viewed both the CCTV footage, and the footage as captured by CW #3 with his cellphone, it is clear that this was a fast-moving and fluid situation, with Complainant #1 suddenly charging at the police officers with weapons raised, while the officers first resorted to the use of the CEWs, before then jumping back and retreating to save themselves. On this evidence, I am unable to find that the SO had any other viable option at that time to save the lives of his colleagues, other than the resort to lethal force. I note, however, that as soon as Complainant #1 was hit and went to the floor, no further shots were fired.
The law relating to the use of force intended to cause death or grievous bodily harm establishes that when one believes on reasonable grounds that it is necessary for one’s self-preservation from death or grievous bodily harm, or the preservation of others from death or bodily harm, then one is justified in using lethal force. Having extensively reviewed all of the evidence, I find in all the circumstances that the SO reasonably believed that the lives of the other three police officers were in immediate danger from Complainant #1, and that his decision to resort to a lethal use of force was therefore justified in this case.
I find that it would have been foolish and reckless for the SO to risk the lives of these three police officers by waiting to see if Complainant #1 actually stabbed one of them, when that was clearly his intent as he charged at the officers. I find that risk was not one that SO #1 should have had to take, when faced with such a potential loss of life at the hands of Complainant #1.
Finally, while this tragic incident is made even more so in that it involved a young man who was obviously in a state of crisis, even had police known that Complainant #1 may have suffered from some form of mental illness, when faced with the decision whether to shoot or risk a loss of human life, I am less than confident that this factor would necessarily have changed the decision of whether or not to resort to lethal force.
In these circumstances, I will again refer to the judgment of the Supreme Court of Canada as quoted above as being particularly apt in this particular factual scenario, in that “It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.”
I find, therefore, on this record, that the lethal force resorted to by the SO, which lead to the serious injury sustained by Complainant #1, and the less serious injury sustained by Complainant #2, was justified pursuant to s. 25(1) and (3) of the Criminal Code, and that the SO, in preserving the lives of his three colleagues, used no more force than was necessary to affect this lawful purpose. As such, I lack the reasonable grounds to believe that the actions exercised by the SO fell outside the limits prescribed by the criminal law and instead find there are no grounds for proceeding with criminal charges in this case.
Date: February 22, 2019
Original signed by
Special Investigations Unit
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.