SIU Director’s Report - Case # 19-OFI-074
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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 serious injuries sustained by a 22-year-old man (the “Complainant”).
Notification of the SIUOn April 11, 2019 at 1:05 a.m., the Greater Sudbury Police Service (GSPS) notified the SIU of the Complainant’s firearm-related injury.
The GSPS reported that on April 10, 2019, at about 10:49 p.m., GSPS tactical police officers along with Ontario Provincial Police (OPP) police officers conducted a high-risk vehicle stop in the Esso gas station location at Regent Street, Sudbury. The vehicle stop was in relation to a man wanted for robbery. During the stop, a GSPS tactical officer discharged his firearm several times, striking the Complainant in the leg and arm. The Complainant was transported to Health Sciences North (HSN) where he was presently undergoing surgery for his injuries. A second occupant in the vehicle (a woman) may have suffered a broken finger; however, her injuries were not confirmed. The gas station lot was secured.
The TeamNumber of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 3
Complainant:22-year-old male, not interviewed 
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
Witness OfficersWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Notes reviewed, interview deemed not necessary
WO #10 Notes reviewed, interview deemed not necessary
WO #11 Interviewed
WO #12 Interviewed
WO #13 Interviewed
Additionally, the notes from 24 other officers were received and reviewed.
Subject OfficersSO Declined interview and to provide notes, as is the subject officer’s legal right
The SceneThe scene was a parking area just outside the store of the Esso gas station located on Regent Street, Sudbury.
A white Ford F-150 crew cab 4X4 was parked facing the gas station building, partially on the curb. The front of the vehicle had damaged the propane storage tanks, which were stored against the front of the gas station. There was one apparent projectile hole in the windshield. The rear window had several holes and the glass was shattered, but held in place by the window tinting. There was an ASP resting on top of the tonneau cover. The passenger window had been smashed and the glass was shattered, but held in place by the window tinting. The driver’s window had a hole just above the lower frame and the glass was smashed, but held in place by the window tinting. There was damage to the rear bumper.
Figure 2 - The front windshield of Ford F-150 with an apparent projectile hole.
Figure 3 - Rear window of the Ford F-150 with multiple holes visible. An ASP baton rests on the truck bed cover.
Figure 4 - The passenger-side window of the Ford F-150 appears smashed.
Figure 5 - The driver's-side window with a hole just above the frame.
A black RAM 2500 Heavy Duty truck unmarked police vehicle had a push bar on the front and there were minor scuff marks, which indicated it made contact with the rear bumper of the white F-150. It was positioned behind the F-150 and there was a scuff mark on the hood of the vehicle and two small cracks in the windshield.
A black, four-door Suburban, unmarked police vehicle was positioned facing the right rear tire of the Ford. It was apparent that it made contact in the area of the right rear tire pushing the Ford sideways. Another black RAM 2500 Heavy Duty truck unmarked police vehicle was positioned next to the right front of the Ford, but it did not appear to have made contact.
There were tire marks on the ground from the Ford being pushed sideways by the Suburban and there were tire marks between the rear bumper of the Ford and the front of the RAM, indicating there had been movement and contact between the two vehicles.
There were two rifle cartridge cases: one near the left rear side and the other at the right rear corner of the Ford. There was a pool of blood outside the open driver’s door of the Ford.
Physical EvidenceThe SIU collected one .223 cartridge case on the ground near the left rear side of the Ford F-150; one .223 cartridge case on the ground at the right rear of the Ford F-150; and, one .223 cartridge case from the tire tread of the left rear tire of the Ford F-150.
The SIU also obtained one C8 magazine with 24 .223 cartridges and one .223 cartridge from the chamber of the SO’s C8 rifle.
Figure 6 - The SO's C8 rifle.
Upon inspection, the Ford F-150 pickup truck the Complainant was driving was found to contain a cut down 12-guage double-barrel shotgun located at the foot of the rear seat behind the driver’s seat. The weapon contained two cartridges in the chamber.
Forensic Evidence On April 15, 2019, the SIU submitted a shot shell, the SO’s C8 carbine and three cartridge spent cases to the CFS.
On September 9, 2019, the SIU received the CFS Firearms Report with the following conclusions:
The Item 2 and 3 cartridge cases were identified, within the limits of practical certainty, as having been fired by the same firearm. Due to damage and insufficient individual characteristics for comparison, the Item 4 cartridge case could neither be identified nor eliminated as having been fired by the same firearm as Items 2 and 3; however, they all shared similar discernible class characteristics. Due to damage and/or insufficient individual characteristics for comparison, the Item 2, 3 and 4 cartridge cases could neither be identified nor eliminated as having been fired by the Item 1 rifle; however, they all shared similar discernible class characteristics.
Summary of Esso Gas Station Video
WO #12 exited his vehicle with a firearm drawn and pointed at the driver side of the truck. The Complainant reversed into WO #12’s truck. The SO moved across the front passenger side toward the driver side with his rifle drawn and pointed at the Complainant inside his vehicle. WO #11 ran behind his vehicle and WO #12 moved back from the Ford. WO #7 travelled behind the Esso and parked on the rear passenger side of the Ford.
The SO approached the front driver side window. The Complainant drove forward and made contact with propane tanks in front of the Esso with great force. A hole is discernible in the lower section of the front driver side window, just above the lower window frame. WO #7 used his vehicle to push the rear passenger side of the Ford.
The SO, with his carbine pointed toward the Complainant, opened the front driver’s door of the Ford. The Complainant frantically shook his right arm and then exited the vehicle and went onto the ground on his right side. The SO and WO #12 pointed their firearms at the Complainant, who continued to shake his right hand. WO #12 handcuffed the Complainant with his hands behind his back.
Two paramedics arrived with a stretcher for the Complainant. The Complainant was placed onto the stretcher and the paramedics took him away from the scene. The tactical officers escorted CW #1 away from the scene.
Summary of Aerial Footage
The video showed the aftermath of the takedown of the Ford parked on an angle toward the Esso building. The Ford was boxed in by three dark police vehicles with their emergency lights activated.
WO #3 to Communications Centre
A police officer [either OPP WO #7 or WO #6] informed the suspect vehicle was a stolen white Ford F-150 with a black tonneau cover and black tinted windows. A licence plate was provided.
The OPP reported the Complainant was northbound on Long Lake Road just past the Harley Davidson dealership. The Complainant stopped at a red light on St. Charles Street and then drove northbound on Long Lake Road toward the Four Corners, Paris and Regent Streets. The OPP reported the Complainant turned into Plaza 69 and then the Petro Canada. The Complainant travelled across Regent Street into the Esso parking lot. The OPP reported, “We got Sudbury moving in. He’s parked on the south side of the Esso, nose in. He’s parked…I see the tac guys pulling in now. He’s ramming him. Shots fired. One in custody. You might want to roll an ambulance at this location. Two in custody.”
A police officer [believed to be WO #4] reported the target vehicle was on Long Lake Road looking for a gas station and just passed the Harley Davidson dealership. The target was on Plaza 69 and WO #4 reported they had received a “green light” to take down the target vehicle. The target was at the Petro Canada gas station at Plaza 69. The suspect was not getting gas and returned to Regent Street and crossed into the Esso gas station. WO #4 reported they were pulling in behind the Ford.
The police dispatcher requested that WO #3 take over the scene. A police officer reported the Complainant’s injuries were two gunshots in his left leg and two gunshots in his left arm.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the GSPS and OPP Sudbury Detachment:
- Arrest Report-the Complainant;
- Arrest Report-CW #1;
- Communications recordings;
- Computer-Assisted Dispatch;
- Crash Data Retrieval Data;
- Crown Brief;
- Daily Arrest Record;
- Event Details;
- Field Sketch;
- GSPS Witness List;
- GSPS Internal Memo re SIU Investigation;
- GSPS Involved Officer List;
- GSPS note re ESSO station's staff;
- GSPS Officer Schedule;
- GSPS Scene Video;
- GSPS Total Station Data;
- Info for Bail Hearing-the Complainant;
- Notes of all witness officers and 24 undesignated officers;
- Occurrence Report;
- Involved Officers;
- OPP Aerial Video;
- Probation Order – CW #1 (x2)
- Procedure-Use of Force;
- Scene Registry;
- Team Use of Force Report;
- Training Record-Defence Tactics-the SO; and
- Training Record-Firearms Qualifications-the SO.
Materials obtained from Other SourcesUpon request, the SIU obtained and reviewed the following document from the Sudbury Emergency Medical Services and the HSN:
- Ambulance Call Report (x2); and
- Medical Record from HSN for CW #1.
Upon request, the SIU obtained CCTV video collected from the ESSO gas station.
The GSPS tactical team was mobilized and met at the police station to discuss the situation and plan their intervention. Officers in unmarked tactical trucks would deploy ahead of the suspects’ path of travel and intercede to take them into custody after they had come to a stop.
At about 10:45 p.m., the tactical team received word from the OPP, whose officers were still tailing the Complainant and CW #1, that they were traveling north on Long Lake Road in Sudbury toward the Four Corners intersection. The tactical officers convened in the area. WO #4, WO #12 and WO #13 were together in a tactical truck, and WO #1, WO #2 and the SO in another. They followed the pickup truck as it turned into Plaza 69 on the northwest corner of the intersection before exiting to cross Regent Street into the Esso gas station.
As the pickup truck parked with its front pointed toward a propane gas tank display cabinet against the wall of the gas station shop, the decision was made to box it in with the use of the tactical vehicles. Arriving first on scene some 30 seconds after the pickup truck came to a stop, WO #12 drove to within a metre of the vehicle’s rear. Seconds later, trucks driven by WO #1 and WO #11 came to a stop with their front ends adjacent to the pickup on its passenger and driver sides, respectively. The officers exited their vehicles with guns drawn, surrounded the pickup truck and ordered its occupants to show their hands.
Realizing that he had been cornered by the police, the Complainant started his engine and accelerated rearward directly into the front of WO #12’s vehicle. The force of the impact sent the tactical vehicle backward a short distance. The Complainant continued to accelerate backward against the tactical truck, spinning his wheels, but failed to create any further space between the vehicles. Some 15 seconds after the initial collision, the Complainant accelerated forward and crashed into the propane gas tank display. Immediately thereafter, an SUV, with the OPP officers who had followed the suspects into Sudbury and onto the gas station, used its front end to push the rear passenger side of the pickup truck about a metre or more. Seconds after that, the SO opened the driver’s door whereupon the Complainant emerged from the pickup truck and went to the ground. The Complainant was subsequently handcuffed by WO #12 and taken to hospital having sustained bullet wounds to his left arm and leg. CW #1 was also removed from the pickup truck and arrested.
The SO was the only officer who discharged his firearm – a C8 rifle. The weight of the evidence, including a count of the rounds contained in his firearm after the shooting (25), information about the customary number of rounds loaded by tactical team officers in their C8 rifles (28) and the number of spent cartridge cases found at the scene (3), indicates that the SO fired his weapon three times. While the evidence regarding the officer’s position at the time the shots were fired is imprecise, it suggests the SO was standing in front of the pickup truck when he first fired and had travelled to the driver side of the vehicle near the driver’s door when the second two rounds were let off in quick succession.
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 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.
Analysis and Director's Decision
Whether considered pursuant to section 25(3) of the Criminal Code, setting out the limits of permissible force used by police officers that is intended or likely to cause death or grievous bodily harm, or section 34, prescribing the boundaries of justifiable force in the defence of oneself or another from an actual or threatened attack, I am satisfied on reasonable grounds that the SO acted lawfully when he discharged his firearm and caused injury to the Complainant. The former provides police officers with immunity from criminal liability provided the force in question was reasonably necessary in aid of an act that they were required or authorized to do by law and they acted under a reasonable apprehension that said force was necessary to meet a threat of death or grievous bodily harm to oneself or another. The latter requires that the defensive act be reasonable with reference to the relevant circumstances, including the nature of the force or threat, whether there were other means to protect oneself or another, and whether any party to the incident used or threatened to use a weapon.
As was his legal right, the SO declined to be interviewed by the SIU or authorize the release of his notes. The SIU is therefore without first-hand information regarding the officer’s state of mind at the time he fired his rifle. That said, I accept that the SO feared for his life when he discharged his weapon based on the circumstantial evidence and an utterance he made to a fellow officer in the wake of the incident.
A GSPS officer was among the tactical officers deployed that night. He, together with two team members, arrived at the Esso station in their vehicle moments after the shooting had occurred. In an exchange with the SO, says the GSPS officer, the officer told him he was scared he was going to be run over by the pickup truck and believed he had to stop the Complainant. I have no reason to doubt the reliability of the GSPS officer’s evidence. Nor do I doubt that the SO’s statements accurately reflect how he felt at the time of the shooting. While potentially self-serving, those statements attract a level of authenticity for their relative contemporaneity with the events in question. Their reliability is further bolstered by the perceptions of similarly situated officers present at the time. For example, several officers in and around the pickup truck when the shooting happened believed the Complainant represented a real and present risk to their lives and safety should he manage to free his vehicle from the police blockade. Specifically, they feared that the Complainant would strike an officer with the pickup truck, particularly those situated on the driver side of the vehicle which was his most likely escape route. To reiterate, the SO was positioned on the driver side of the pickup truck in close proximity to the vehicle.
The analysis turns to the reasonableness of the SO’s apprehensions and the action he took. The officer was positioned in front of the pickup truck when he first shot at the Complainant through its windshield. The Complainant was in the process of accelerating rearward into the tactical truck behind him at the time. That action would have given the officers the impression, and did in fact so impress the witness officers who spoke with the SIU, that the Complainant was bent on escaping police custody by ramming his truck free of the police vehicles. While one might question the wisdom of taking up such a vulnerable position, the fact remains that the SO was completely exposed to an immediate and potentially lethal risk in the event the Complainant decided to accelerate forward. The shot did not incapacitate the Complainant and, as it turns out, he did in fact travel forward mere seconds after the SO’s initial discharge, smashing into the propane gas tank display cabinet with significant force. Fortunately, the SO had re-positioned himself beside the driver side of the truck by that point. In the circumstances, I have no difficulty in concluding that the SO’s beliefs and corresponding action in relation to the first discharge were reasonable.
More difficult is the question of reasonableness in connection with the second two shots discharged by the SO. These were fired at close range into the driver’s seat compartment of the pickup truck some 16 seconds after the first shot. At that time, the SO was not in front of the pickup truck; he was standing along the driver side within a metre or so of the driver’s door. Arguably, he was no longer in any imminent peril by the movement of the truck. In the circumstances, was a resort to lethal force and the SO’s belief in its necessity reasonable? I believe they were.
The law countenances an officer’s mistaken belief in the necessity of force of one kind or another so long as the belief was reasonably held. That is, might a reasonable person in the officer’s shoes have been similarly mistaken? Moreover, the law does not require that officers caught up in volatile and dangerous situations measure their responsive force with precision; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak  1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. CA). Consider the SO’s situation. He would have been briefed that the Complainant was considered armed and dangerous. He was wanted for armed robbery, suspected of having a shotgun in his possession and known for forcing police vehicles out of the way during attempted stops. As the SO left his tactical truck and moved toward the pickup truck, it would have become immediately clear that the Complainant had no intention of surrendering peacefully. He had rammed the police vehicle behind him around the time the SO initially discharged his weapon and continued to operate the pickup truck following the first shot despite armed police officers ordering him to stop at gunpoint. In fact, it appears the pickup was accelerating forward when the SO let off two additional rounds in quick succession into the driver’s door window just before it smashed into the propane gas tank display.
Was retreat an option? Perhaps, but I am unable to find fault with the SO’s decision to not give way as the Complainant attempted to maneuver out of the police barricade. The Complainant had in recent days engaged in a course of violent and reckless behaviour that threatened the lives and safety of the public around him. His conduct on the day in question when faced with an overwhelming show of force by the police was no different. Indeed, I am persuaded that the Complainant would not have willingly desisted but for the SO’s intervention. I am further persuaded that the Complainant would have remained a grave risk to public safety had he managed to escape. On this record, the officers, including the SO, were within their rights in seeking to effect the Complainant’s arrest as soon as possible and to stand their ground in doing so.
There is also the matter of the sawed-off shotgun that was recovered from the pickup truck following the shooting. To be clear, there is no indication in the evidence that the Complainant ever wielded the firearm during the incident. None of the police witnesses questioned by the SIU mentioned seeing a gun in the Complainant’s possession and the SO said nothing of a firearm when explaining to a GSPS officer why he did what he did. Nevertheless, most if not all of the witness officers who were present at the time alluded to the likely presence of a shotgun in the pickup truck in describing the danger they were facing. The shotgun’s presence in the pickup truck gives credence to the officers’ concerns. I am satisfied that the same concerns would have weighed on the SO’s mind to some degree as he approached the truck.
While it may be in the cold light of hindsight that the SO’s life was not in any immediate danger when he fired his second and third rounds, the officer’s belief to the contrary and his corresponding firearm discharges were in my view reasonable nonetheless. On the aforementioned record, confronted with a violent and armed individual determined to escape police apprehension and seemingly without any qualms about using his pickup truck to effect his purpose, the SO had good cause in the heat of the moment to believe that the truck’s continued operation represented a threat to life and limb necessitating the use of lethal force to disable its driver.
For the foregoing reasons, I am unable to reasonably conclude that the shooting was anything other than lawful force in aid of the Complainant’s arrest pursuant to section 25(3) and/or section 34 of the Criminal Code. Consequently, there is no basis to proceed with charges in this case and the file is closed.
Date: March 30, 2020
Electronically approved by
Special Investigations Unit
- 1) The Complainant declined to be interviewed or to consent to the release of his medical records. [Back to text]
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.