SIU Director’s Report - Case # 20-OFP-349

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Information Restrictions

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 
  • The name of, and any information identifying, a subject official, witness official, civilian witness or affected person. 
  • Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault. 
  • Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person. 
  • Information that discloses investigative techniques or procedures.  
  • Information, the release of which is prohibited or restricted by law.  
  • Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published. 

Freedom of Information and Protection of Privacy Act

Pursuant to section14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 
  •  The names of persons, including civilian witnesses, and subject and witness officials; 
  • 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

Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may also have 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

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the discharge of a firearm at a 35-year-old man (the “Complainant”) by an official.

The Investigation

Notification of the SIU

On December 14, 2020, at 3:57 p.m., Halton Regional Police Service (HRPS) reported the following:

On December 7, 2020, at 12:45 p.m., police officers responded to a call for a barricaded man [now known to be the Complainant] inside a residence, located at an address [near Upper Middle Road and Sixth Line] in Oakville.

Upon arrival, the police officers made efforts to negotiate with the Complainant. The Complainant exited the residence and the police officers continued with their communication.

To apprehend the Complainant, police officers deployed one round from an Anti Riot Weapon ENfield (ARWEN), followed by a conducted-energy weapon (CEW) discharge. The Complainant was apprehended under the Mental Health Act (MHA) and taken to Oakville Trafalgar Memorial Hospital. He was held for a mental health assessment.

The Complainant did not suffer any injuries as a result of his interactions with the police.

The Team

Date and time team dispatched:     12/15/2020 at 8:01 a.m.

Date and time SIU arrived on scene:     12/15/2020 at 3:20 p.m.

Number of SIU Investigators assigned:    4

Number of SIU Forensic Investigators assigned:    0

Affected Person (aka “Complainant”):

35-year-old male interviewed on December 15, 2020

Subject Official (SO)

SO     Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1     Interviewed, notes received and reviewed
WO #2     Interviewed, notes received and reviewed
WO #3     Interviewed, notes received and reviewed

All witness officers were interviewed on December 22, 2020.


Evidence

The Scene

The incident occurred at a residence near Upper Middle Road and Sixth Line in Oakville.


Physical Evidence


CEW Discharges – Summary of Downloaded Data

WO #3

On December 7, 2020, WO #3 was issued a CEW. According to the CEW report, between 4:26:03 p.m. and 4:26:13 p.m., WO #3’s CEW was “triggered” (meaning the trigger was depressed). The duration was ten seconds in length. It was undetermined whether the trigger entries in the data meant that the probes from the CEW were deployed, the CEW was used in a drive stun mode, or if the trigger was depressed with no contact.

Officer #1

On December 7, 2020, Officer #1 was issued a CEW. According to the CEW report, between 4:26:18 p.m. and 4:26:21 p.m., Officer #1’s CEW was “triggered”. The duration was three seconds in length. It was undetermined whether the trigger entries in the data meant that the probes from the CEW were deployed, the CEW was used in a drive stun mode, or if the trigger was depressed with no contact.

Facebook Screenshots from HRPS

The Facebook screenshots captured a text message conversation between the Complainant, his girlfriend and a trained police negotiator. The conversation commenced at 3:10 p.m. and consisted of pleas to the Complainant to come outside and communicate with the negotiator. The Complainant declined multiple times and expressed his frustration about the police officers positioned on the front lawn.


Video/Audio/Photographic Evidence


911 Communications

The HRPS provided the SIU with a copy of the 911 call made by the Complainant’s mother on December 7, 2020. The call was 5:39 minutes in length, beginning at 12:43 p.m. and concluding at 12:48 p.m.

The following is a synopsis of the 911 call.

  • The initial call received by the HRPS was a hang-up and the 911 operator called back;
  • The Complainant’s mother reported that her 36-year-old son, the Complainant, was having ‘an absolute hissy fit’;
  • The Complainant could be heard screaming in the background, “Get the fuck over here”;
  • She said her son had lost his temper, was throwing things all over the house and was screaming at her;
  • She said it was just the two of them at the house and she was scared to death;
  • When asked if the Complainant had been diagnosed with anything, his mother said he was schizophrenic;
  • She said this was the second time in two days that he had acted this way;
  • The Complainant could be heard screaming loudly, “Where the fuck is my wallet?”
  • When asked if the Complainant had any weapons, his mother said he had a bat, and that he had gone downstairs and smashed a coffee table (with the bat);
  • The Complainant continued screaming, “Where the fuck is my wallet?” When his mother responded she did not know, the Complainant shouted, “Get up here and help me find it. Now. Fuck you”;
  • The Complainant was heard screaming at his mother, calling her a ‘fucking cunt’;
  • The Complainant’s mother said she was downstairs [known to be on the main floor] and her son was upstairs. She said her son wanted her to go upstairs but she was afraid to;
  • She said her son had lost his wallet and keys;
  • The Complainant was heard screaming, accusing his mother of stealing his wallet;
  • She said her son had not hurt her but had come close to it;
  • She confirmed her address;
  • She did not know if her son had taken his medication that day. She said he had been cutting back on them;
  • The Complainant continued screaming at his mother accusing her of taking his things. He sounded to be in an uncontrollable rage;
  • When asked if her son had any weapons on him, his mother said no but he did have knives upstairs. She said he had a machete, a ceremonial knife and a hunting knife that had all been put away;
  • At 5:23 minutes into the call, a male police officer could be heard calling to her [believed to be from the front doorway]. The Complainant’s mother was asked to come outside. She said she could not because she had no shoes on and there was glass all over the floor; and
  • The 911 operator said she was letting her go so she could speak to the police officer.


Radio Communications

The HRPS provided the SIU with their communications recordings of radio transmissions relating to the incident, between 12:45 p.m. and 6:42 p.m. on December 7, 2020.

The recordings showed a running time only and were 33:09 minutes in length.

The following is a synopsis of the recordings provided and is not inclusive of all radio transmissions.

  • 00:23 min. Two police units are dispatched to the address provided by the Complainant’s mother, regarding a 911 hang-up call. On call back, his mother said her 36-year-old son, the Complainant, had lost his temper and was throwing items in the home. The Complainant had been diagnosed with schizophrenia and could be heard yelling in the background. The dispatcher further advised that the Complainant had a bat and had gone into the basement where he was smashing things.
  • The dispatcher indicated that the Complainant and his mother were the only two people in the home, and the Complainant was currently on the second floor. His mother could hear her son smashing things in the background and her son had come close to physically harming her;
  • 01:20 min. The dispatcher advised again that the Complainant suffered from schizophrenia. Reports on file indicated he had a significant knife collection in the past and had threatened to use them on police and civilians. The reports on file said he had answered the door before with a buck knife on his belt and he had a variety of knives throughout the house. His mother also said her son had ceremonial and hunting knives in his room;
  • 02:53 min. The dispatcher advised the Complainant was positive on the Criminal Name Index [CNI] showing ‘caution violent’. He was on file with a caution of being armed and dangerous. He had a record for having concealed weapons;
  • 03:25 min. An officer advised he could hear the Complainant yelling at the front, and it was not known if he was upstairs or down. He indicated they had positive containment at the front and the rear (of the home).
  • 04:00 min. The same officer broadcast that the Complainant was yelling about his wallet being taken. The Complainant was upstairs, and he could hear doors slamming upstairs;
  • 04:25 min. The officer asked if the Mobile Crisis Rapid Response Team was available and was advised they were 10-6 [busy]. The dispatcher would try to contact them; 
  • 04:50 min. The officer heard the Complainant say, “You guys better not come in. I’m not coming out, F you”;
  • 05:05 min. WO #2 advised they had three members (tactical officers) with two uniformed officers at the front for an arrest team. Also, one tactical member with a uniformed officer at the back. He asked that if K9 was responding they could go to the back as well. K9 acknowledged;
  • 05:55 min. An officer confirmed MHA apprehension authority; 
  • 06:15 min Another officer asked the dispatcher to query a specific female’s name and age. He advised that she was the Complainant’s girlfriend/fiancée, and that she could calm him down. He further informed that aside from her, nothing else de-escalated the Complainant and police presence was an agitator for him;
  • 10:43 min. WO #2 advised the Complainant was still very agitated;
  • 11:13 min. An unknown unit was heard saying, “I don’t want to fight so…”;
  • 11:22 min. WO #2 advised there were ongoing attempts to communicate. The Complainant kept yelling obscenities. The Complainant was still on the second level, on the white side [known to be the front side];
  • 12:26 min. WO #2 advised they had communication with the Complainant again. The Complainant was challenging officers to a fight;
  • 13:23 min. WO #2 advised they were trying to establish an alternate means of communication, but the Complainant just insisted on screaming through the door. They did not know if he had a phone or not;
  • 15:03 min. An officer inquired regarding criminal charges. Another officer informed there was no criminal element. Section 17 (MHA) apprehension only;
  • 15:55 min. An officer advised that the Complainant’s mother had said her son had a six-inch hunting knife beside his bed or at the foot of his bed. The Complainant called it a ceremonial knife;
  • 17:42 min. WO #2 advised the negotiators were set up and taking over communications. The dispatcher advised they had been informed that the Complainant had just smoked catnip;
  • 18:53 min. An officer advised that negotiators had made contact, but the Complainant had hung up;
  • 21:40 min. An officer informed the attending units that the mission was to safely apprehend the Complainant with the minimal amount of force necessary. He advised that section 25 (Criminal Code) was in effect throughout the duration of the call;
  • 22:37 min. WO #2 advised he could hear the Complainant banging metal together upstairs;
  • 23:19 min. WO #2 advised the Complainant was voicing out, yelling, “Stop entering my thoughts.” The Complainant then went silent again;
  • 25:30 min. WO #2 advised the Complainant was throwing items from the second to the first floor inside;
  • 25:42 min. An officer advised that negotiators were continuing to speak to the Complainant through Facebook. The Complainant said he was not coming out;
  • 27:07 min. WO #2 advised the Complainant was on the front porch, speaking to negotiators and having a smoke;
  • 27:42 min. WO #1 advised the Complainant was still sitting but not being cooperative. He then informed that the Complainant was talking about going back in (to the house) and asked permission to launch the DAP [Direct Action Plan] while he was still sitting on the porch. An officer replied, “Negative. If he makes a move to go back into the residence, you’re good to move and launch the DAP”;
  • 28:50 min. (4:26:13 p.m.) WO #1 advised a CEW had been deployed and the Complainant was being taken into custody out front. He asked for tactical paramedics to attend for the CEW probes;
  • 29:46 min. (4:34:44 p.m.) An officer advised the Complainant was being loaded into the ambulance; and
  • 30:02 min. (4:35:41 p.m.) An officer asked the dispatcher to inform the inspector the only injury to the Complainant was a CEW puncture wound.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from HRPS between December 22, 2020 and January 18, 2021:

  • Facebook Screenshots;
  • Disclosure Letter;
  • Hazard Location Request Form;
  • Occurrence Reports and Supplementary Reports (x5);
  • Police Service Dog Occurrence Report;
  • Person in Crisis Reports (x2);
  • Property Tags (x2);
  • Screenshot Address Query;
  • Screenshot Cautions and Flags;
  • Screenshot Previous HRPS Interactions;
  • Canadian Police Information Centre (CPIC) Entry Form;
  • Scenes of Crime Report;
  • Training Record-the SO-2020 Use of Force Requalification Record;
  • Training Record-the SO-ARWEN 2017 Training PowerPoint;
  • Training Record-the SO-Arwen 37 MM AR-1 Police Ordnance (Round and Casing);
  • Training Record-the SO-ARWEN Armourer and Instructor Manual;
  • Training Record-the SO-ARWEN Qualification;
  • Training Record-the SO- Persons in Crisis and Emotionally Disturbed Persons;
  • Tactical Rescue Unit (TRU) Diagram-Positioning;
  • Use of Force Report;
  • Notes-WO #1;
  • Notes-WO #3; and
  • Notes-WO #2.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant and three police officers who partook in the operation that culminated in the Complainant’s arrest, as well as a review of police communications recordings. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

At about 12:45 p.m. on December 7, 2020, a 911 call came into HRPS from the Complainant’s mother. She reported that her son – the Complainant – was in the middle of a violent rampage in the house in which he was throwing and breaking things, including with a bat. She noted that her son was schizophrenic and had knives at his disposal, including a sword, and that she was scared for her personal safety. Officers were dispatched to the address, located near Upper Middle Road and Sixth Line , Oakville.

Uniformed officers were the first on scene, arriving within minutes of the Complainant’s mother’s 911 call and while she was still on the phone with the call-taker. They ushered his mother out of the house and then set up containment around the residence.

As the situation had turned into a barricaded persons call, the HRPS mobilized a TRU team to the scene. Arriving shortly before 1:00 p.m., the team – consisting of the SO and WO #1, WO #2 and WO #3 – deployed around the home. Efforts to establish a line of communication with the Complainant ensued. WO #2, for example, shouted repeatedly into the home to get the Complainant’s attention and explain that the police were there to help. He also encouraged the Complainant to come out of the house so they could talk. The Complainant responded with profanity. He could be heard blaming his mother for his lost wallet and keys. He could also be heard challenging the police to fight him. The police responded that they were not interested in a fight.

Another officer, a trained negotiator, arrived on scene at about 2:00 p.m. and took the lead in negotiation efforts. At one point, the officer managed to organize a three-way chat via Facebook messenger involving her, the Complainant and the Complainant’s girlfriend. Though the Complainant seemed more receptive to the negotiator’s and his girlfriend’s overtures, he refused to leave the home.

Without a word of warning, the Complainant finally exited through the front door at about 4:16 p.m. and sat down on the front porch. His focus was on the negotiator, who stood in front of him at a distance of several metres. Though he remained largely unresponsive to the officers’ requests, he appeared to have calmed down to an extent; he was no longer shouting at the officers. The Complainant smoked several cigarettes quickly in a row and then announced that he was going back into the home. He stood and was making his way to the door when he was struck from behind by an ARWEN round. [1] The time was about 4:25 p.m.

By the time the Complainant moved to re-enter the home, a plan was in place whereby the TRU officers, gathered around an armoured rescue vehicle parked in front of the home, would act to prevent that from happening. The SO was the first of the TRU officers to physically engage the Complainant. It was him that had discharged his ARWEN weapon at the Complainant, striking him once in the back of the right leg. The shot did not incapacitate the Complainant, who was subsequently subjected to CEW discharges by WO #3 and Officer #1, the latter also a tactical officer who had arrived on scene with the armoured rescue vehicle. In and around the same time of the CEW discharges, WO #2 rushed toward the Complainant, still standing, with a ballistic shield in hand. He used it to momentarily pin the Complainant against the side of the doorway, after which he discarded the shield and, with the assistance of other officers, pulled the Complainant away from the doorway and down onto the ground in front of the home.

The Complainant was quickly handcuffed with his arms behind his back. Paramedics attended the scene to assess the Complainant in light of the CEW probes that had been deployed into his body.

Following his arrest, the Complainant was transported to hospital for psychiatric examination. He was not diagnosed with any serious injury.

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.

Analysis and Director's Decision

On December 7, 2020, the Complainant was taken into custody following a lengthy standoff with members of the HRPS. As an ARWEN [2] had been discharged in the Complainant’s direction just prior to his arrest, the SIU’s expanded jurisdiction under the Special Investigations Unit Act, 2019, was triggered even though no serious injury or death was inflicted. The officer who had discharged his ARWEN – the SO – was identified as the subject official for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the incident.

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. The evidence establishes that the officers, including the SO, were in the lawful discharge of their duties as they surrounded the outside of the home seeking to apprehend the Complainant under section 17 of the Mental Health Act. Given everything they knew of the Complainant’s mental health and violent behaviour inside the home, they were right to conclude that the Complainant was of unsound mind at the time and a threat to his own personal safety and the safety of others. The issue turns to the propriety of the ARWEN discharge.

In my view, the discharge of the less lethal ARWEN weapon by the SO did not amount to excessive force. By the time the SO fired his weapon, the officers had tried and failed over the course of several hours to resolve the situation peacefully. Trained negotiators had attempted in vain to placate the Complainant by speaking into the house from the outside, by phone and over Facebook messenger, even involving the Complainant’s girlfriend. Cognizant of the fact that the Complainant had access to edged weapons, the TRU team prudently, in my view, developed a plan in which officers stationed around an armoured rescue vehicle in front of the house might engage him at a safe distance with less lethal weapons, including an ARWEN and CEWs. The opportunity to do so first presented itself when the Complainant stepped out of the home onto the front porch at about 4:16 p.m. Even then, the TRU team was instructed to continue with negotiation efforts and not engage the Complainant physically until such time as it appeared he might return inside. That is exactly what happened. The tactic, in my view, was a reasonable one as re-entry into the home would prolong the standoff and its attendant risks, including the possibility of the Complainant self-harming. On this record, though it appears the ARWEN discharge did not fully neutralize the Complainant, I am unable to reasonably conclude that its use was disproportionate to the exigencies at hand.

In the result, as I am satisfied that there are no reasonable grounds to believe that the SO acted other than lawfully in firing his ARWEN at the Complainant, there is no basis for proceeding with criminal charges against the officer.


Date: March 29, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) There is a version of events proffered in the evidence which suggests that two officers separately fired their ARWENs at the Complainant at about the same time, only one round of which struck him. This evidence stands at odds with the weight of the countervailing evidence. In any event, even if two ARWEN discharges occurred, that fact would not have a material impact on the liability analysis. [Back to text]
  • 2) 'ARWEN' is an acronym for 'Anti Riot Weapon ENfield', a weapon that discharges less-lethal rounds. [Back to text]

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.