Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

• Confidential investigative techniques and procedures used by law enforcement agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• Subject Officer name(s);
• Witness Officer name(s);
• Civilian Witness name(s);
• Location information; 
• Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
• Other identifiers which are likely to reveal personal information about individuals involved in the investigation.

Personal Health Information Protection Act, 2004 (“PHIPA”)

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

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injuries a 31-year-old man (the “Complainant”) suffered.

Notification of the SIU

On October 31, 2020, at 3:45 a.m., the Timmins Police Service (TPS) reported that at 1:41 a.m., the same date, police officers responded to a break and enter in progress at a residence on Commercial Avenue, Timmins. When Witness Officer (WO) #2 and the Subject Officer (SO) arrived, they saw two men get into a vehicle with a female driver. The vehicle drove away, but the police officers intercepted it at Rea Street and Bannerman Avenue. Both police officers got out to deal with the two men. One of the men started to fight with the SO and WO #2 went to assist.

As WO #2 walked towards the fight, the man the SO was fighting pulled out a gun and fired two rounds at WO #2. The SO then discharged his firearm and struck the man in the stomach area.

An ambulance arrived and transported the man to the Timmins District Hospital (TDH); he was subsequently taken to the Health Sciences North Sudbury (HSNS). The man was identified as the Complainant.

The second suspect escaped. The Ontario Provincial Police (OPP) was called in to assist with the search for the unknown man.

The woman was identified as the Civilian Witness (CW).

The scene was secured.


 

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 2

Complainant:

31-year-old male interviewed, medical records obtained and reviewed

Civilian Witness

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed

Subject Officer

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

The Scene

The scene was located on the west side of Rea Street, just north of the intersection with Bannerman Avenue.

Rea Street ran in a north to south direction, and Bannerman Avenue ran in an east to west direction. There were no roadway markings on either Rea Street or Bannerman Avenue. Stop signs controlled vehicle movement along Bannerman Avenue. The weather conditions at the time were cloudy, dry and windy with a temperature of one degree Celsius. Snow was located on the edges of the paved roadway and sidewalks.

Four vehicles were involved in the incident and all were located on Rea Street:

Vehicle 1 was a Nissan Kicks, which was a black four-door vehicle. This vehicle was parked along the west edge of the roadway facing south. The front driver’s and passenger’s doors were open, and the driver’s window was fully down. The front passenger window was down several centimetres.

Vehicle 2 was a Dodge Charger, which was a black four-door vehicle. The vehicle was a fully marked TPS police cruiser. This police vehicle was parked in the southbound side of Rea Street to the north and east of vehicle 1.

Vehicle 3, a Ford police responder pickup truck, was a black four-door vehicle. The vehicle was a fully marked TPS police vehicle. This police vehicle was stopped on Rea Street in the middle of the road facing in a northwest direction, and south and east of vehicle 1.

Vehicle 4 was a Ford F-150, which was a red four-door pickup truck. This vehicle was unattended and parked along the west edge of the roadway of Rea Street, facing south directly north of vehicle 1.

Several items of interest were located in the area on the ground, which included:

• A black Ruger pistol lying on the west sidewalk, south of vehicle 1 (item 1);
• Item 2 was red staining on the west sidewalk just north of item 1;
• Item 3 was one spent copper cartridge case on the west sidewalk of Rea Street, located just west of the rear passenger door of vehicle 1;
• Item 4 was one spent copper cartridge case on the west sidewalk of Rea Street, located just north and west of the rear passenger corner of vehicle 1;
• Item 5 was one copper jacket lodged in the front lower passenger door of the TPS cruiser, vehicle 2;
• Item 6 was one silver .40 calibre cartridge case located on the ground at the rear driver’s side wheel of vehicle 4; and
• Item 7 was one silver .40 calibre cartridge case lying on the ground at the rear passenger corner of the TPS vehicle 2.

Several other items were located on the ground around vehicles 1 and 4. These included loose Canadian currency, and three cellular telephones, along with a set of handcuffs, black gloves, a cellular telephone charger, two lighters and pieces of damaged grill from the front of vehicle 4.

A small apartment building was located in the southeast corner of the intersection of Rea Street and Bannerman Street. Located in the siding on the north wall of the building was a round entry hole into the vinyl siding. [1] This was photographed and measured.

Sufficient measurements to construct a planned drawing of the scene were taken and the scene was videotaped and photographed.

The items of interest listed above were collected along with a swab of the red staining on the sidewalk.

On October 31, 2020, at 6:05 p.m., the scene was released to the TPS.

Scene Diagram

Physical Evidence

On October 31, 2020, at 6:20 p.m., SIU Forensic Investigators attended the TPS. The firearm from the subject officer was collected and photographed. It was a Glock 22 Gen 4. The two spare magazines contained fifteen live rounds each. The magazine that had been seated in the firearm contained thirteen live rounds. The duty belt of the witness police officer was photographed; however, the equipment had previously been removed and securely stored. The only equipment on the belt was a baton and pepper spray.

On November 1, 2020, at 9:00 a.m., TPS turned over to SIU Forensic Investigators one large sealed bag. It was said to contain all of the clothing from the hospital belonging to the Complainant. Two additional sealed bags were also turned over to SIU Forensic Investigators. These two bags contained the items that were located after the Complainant had been moved from the hospital and included a COVID mask.

On November 2, 2020, at 4:40 p.m., an SIU Forensic Investigator arrived at the HSNS and was provided with a projectile under seal. This projectile was said to have been surgically removed from the Complainant.

On November 13, 2020 at 1:24 p.m., selected exhibits were submitted to the Centre of Forensic Sciences (CFS) for examination.



Figure 1 – The SO’s Glock 22


Figure 2 – The Complainant’s Ruger pistol

Video/Audio/Photographic Evidence

In-car Camera System (ICCS) Report for October 31, 2020

Video footage was received for the three TPS police vehicles driven by WO #1, the SO and WO #2, for the time frame 1:00 a.m. until 2:00 a.m., on October 31, 2020. The ICCS system recorded all movements of the vehicles and monitored Global Position System (GPS) locations, GPS speed, roof light activation, braking system activation, siren activation and microphone activation, and date and time.

Video from the SO’s police vehicle

At 1:29:07 a.m., the SO, operating a fully marked TPS police vehicle, a Dodge Charger, drove west on Commercial Avenue towards Rea Street. The SO slowed at the intersection of Rea Street and then suddenly turned south onto Rea Street from Commercial Avenue.

At 1:29:44 a.m., the brake lights, then headlights of a vehicle [now known to have been a Nissan] parked on the west side of Rea Street just north of Bannerman Avenue, activated. The vehicle was parked in front of a red Ford F-150 pickup truck.

At 1:30:05 a.m., the SO crossed Bannerman Avenue, immediately made a three-point turn, and proceeded back north on Rea Street past the Nissan. He then made a U-turn and stopped just north of the Nissan and beside the red Ford F-150. No roof lights were activated on the police vehicle.

At 1:31 a.m., the SO approached the driver’s door of the Nissan by walking in front of his police vehicle.

At 1:31:19 a.m., the Nissan brake lights came on and the Nissan started to roll southbound. The SO was approximately one metre from the driver’s door with his flashlight illuminating the driver’s window. The Nissan brake lights came back on as the Nissan jolted to a stop. The driver’s window of the Nissan opened and the SO leaned in.

At 1:31:32 a.m., WO #2 approached southbound on Rea Street and stopped beside the Nissan, one car length away, before making a U-turn and positioned his vehicle facing north just south of the Nissan. The SO was still at the driver’s door of the vehicle and received documents from the driver. The SO walked over to WO #2’s police vehicle and spoke to him. The SO started to walk back toward the Nissan, while WO #2 moved his vehicle into a position 45 degrees to the Nissan with its headlights pointed at the Nissan.

At 1:33:08 a.m., WO #2 exited his police vehicle, and walked toward the passenger side of the Nissan. The SO stood three metres to the east of the rear driver’s side corner of the Nissan and spoke on his police radio. WO #2 shone his flashlight into the front passenger seat area of the Nissan, and the SO walked towards the driver side door of his police vehicle. The SO then walked past the front of his police vehicle and went to the rear passenger side of the Nissan with WO #2.

At 1:35:35 a.m., WO #2 spoke with the front passenger of the Nissan, while the SO walked around his police vehicle and approached the driver’s side rear door of the Nissan and opened the door.

At 1:35:48 a.m., the SO returned his flashlight to his vest carrier, and then removed his handcuffs.

At 1:35:53 a.m., the SO stepped toward the open rear driver’s side door and reached in with his left hand toward the rear passenger [now known to have been the Complainant]. The Complainant’s left foot came out the Nissan.

At 1:35:55 a.m., an unknown man in the front passenger seat exited the Nissan. The Complainant’s exit from the rear of the vehicle appeared to be blocked by the SO. The Complainant could be seen to reach for the door frame. The unknown front passenger ran east across the front of the Nissan with his left hand holding his jacket tight to his waist. He went behind WO #2’s police truck, southbound on Rea Street, and eastbound on Bannerman Avenue. The Complainant wrestled with the SO and the Complainant tried to exit the Nissan, while the SO attempted to block his exit from the Nissan. The Complainant’s left hand could be seen on the left hip of the SO.

At 1:36:02 a.m., the Complainant stood chest to chest with the SO with his hands gripping the upper arms of the SO. The two men were still in the rear doorway of the Nissan. WO #2 ran around the front of the Nissan and could be seen to signal with his flashlight to WO #1 to follow the unknown man, so WO #1 drove southbound on Rea Street. The SO continued to struggle with the Complainant who was clearly taller than the SO and of equal or greater size.

At 1:36:05 a.m., WO #2 delivered a punch with his right hand (containing the flashlight) to the head and face of the Complainant. The Complainant appeared to attempt to climb up and over the Nissan.

At 1:36:08 a.m., the Complainant stood on the door frame of the vehicle and reached over the door and punched at the head of WO #2 with his right arm striking WO #2. The SO delivered four blows to the back of the Complainant’s head with his right hand, while the SO still held onto his handcuffs. WO #2 delivered three right-handed punches toward the Complainant’s head as he climbed up the vehicle.

At 1:36:18 a.m., the Complainant retreated along the side of the Nissan and a metallic item could be seen dropping from the area of the SO’s right hand and bouncing off the leg of the Complainant and onto the roadway. (A set of handcuffs were later found on the ground near this location.) The SO was to the right of the Complainant, and WO #2 was to the Complainant’s back. The Complainant turned toward WO #2. The SO could be seen reaching for his service pistol with his right hand as all three parties left the field of vision.

At 1:36:19 a.m., the Complainant and WO #2 collided into the front of the red Ford F-150, and then WO #2 scrambled toward the side of the SO’s police vehicle.

At 1:36:21 a.m., the Complainant began to run southbound on the west sidewalk, at the rear passenger corner of the Nissan, when he went stiff and fell face first to the ground.

At 1:36:22 a.m., WO #2 could be seen reaching for the side of the TPS vehicle as he fell toward it.

At 01:36:31 a.m., WO #2 walked from the passenger side of the SO’s police vehicle, with his pistol in both hands, and towards the Complainant.

At 1:36:43 a.m., WO #1 with his roof lights activated turned right onto Rea Street from Bannerman Avenue, and stopped behind WO #2’s police truck. WO #1 then went to the passenger side of the Nissan. WO #1 appeared on the west sidewalk at the passenger side of the Ford F-150, with his gun in both hands.

At 1:37:08 a.m., the SO with his service pistol in his right hand walked from the rear of the Nissan, stood in front of his police vehicle, and broadcast on his police portable radio. The SO then holstered his pistol and was approached by WO #1 who examined the front of his vest with a flashlight before returning to the passenger side of the Nissan. The SO opened the driver’s door of the Nissan, removed the CW from the vehicle and walked her to the rear of the SO’s police vehicle. The CW was handcuffed and placed in the back of the SO’s police vehicle.

At 1:43:50 a.m., Emergency Medical Services (EMS) arrived on scene.

 
Video from WO #2’s Police Vehicle

At 1:31:17 a.m., WO #2 drove his fully marked TPS Ford police responder pickup truck, which was a fully marked police vehicle, southbound on Rea Street South. The SO’s police vehicle was observed stopped beside a red Ford F-150, with a small dark car [now known to have been a Nissan] parked in front of the pickup. The roof lights on the SO’s vehicle were not turned on. The headlights and taillights were on, and the SO was at the driver’s door of the Nissan. WO #2 drove past the vehicle stop and made a U-turn to the right in the intersection of Bannerman Avenue and Rea Street before going north on Rea Street.

At 1:32:05 a.m., WO #2 stopped his vehicle on Rea Street and then backed up positioning his vehicle parallel to the Nissan approximately six metres south of the SO’s vehicle. WO #2 backed up his police vehicle and re-positioned it on a 45-degree angle facing the Nissan. The roof lights of his vehicle and the SO’s vehicle were not activated.

At 1:33:14 a.m., WO #2 approached the passenger side of the Nissan and shone his flashlight into the front passenger window. He illuminated an unknown man in the front passenger seat. The SO stood by the rear passenger door of the Nissan. The driver was still seated in the vehicle and the driver’s window was open. WO #2 looked into the back seat of the vehicle, and the unknown man in the front passenger seat reacted to a comment made by WO #2. The man raised both of his hands up to his shoulders, palms forward and then lowered them to his lap again. WO #2 illuminated the rear seat of the vehicle and a third person was visible in the back seat [now known to have been the Complainant].

At 1:33:34 a.m., the Complainant appeared to flip something over in the back seat while WO #2 watched. The SO walked behind the Nissan and joined WO #2 on the west sidewalk at the rear of the Nissan and had a conversation.

At 1:35:33 a.m., WO #2 reached for the door handle of the front passenger door, while the SO walked around the rear of the vehicle to the rear driver’s side door and opened it. Both police officers had flashlights in their hands.

At 1:35:44 a.m., the SO had his flashlight in his right hand, turned it off and looked down at the front of his vest. The SO was bent at the waist and reached into the back seat and then appeared to struggle with the Complainant. The man in the front passenger seat exited the Nissan and faced WO #2. The unknown man turned slowly toward the south and then ran southbound. The Complainant attempted to exit the back seat as the SO attempted to keep him in the vehicle. WO #1 drove his TPS police vehicle southbound on Rea Street from Commercial Avenue.

At 1:36:03 a.m., WO #2 rounded the front of the Nissan in pursuit of the fleeing unknown man; however, his attention was drawn to the SO. The Complainant emerged from the back driver’s side seat and WO #2 turned toward the rear driver’s door. WO #2, with his flashlight in his right hand, motioned to WO #1 to follow the fleeing man.

At 1:36:06 a.m., WO #2 delivered a right-hand strike to the head of the Complainant, over the back driver’s side door as the SO continued to struggle with the Complainant. The Complainant was turned toward the vehicle, still within the open door with his hands on the roof of the Nissan. The SO was behind the Complainant and WO #2 was to his left on the other side of the car door. The Complainant threw a punch with his right hand at WO #2 and hit WO #2’s left shoulder and neck area.

At 1:36:10 a.m., the Complainant reached with his right hand into his coat and tried to pull something out. The SO delivered three strikes with his right hand as the Complainant attempted to pull something from his coat pocket.

At 1:36:16 a.m., WO #2 delivered two to three rapid strikes toward the Complainant, with his flashlight still in his hand. The Complainant’s chest was at the roof line of the vehicle. The Complainant moved north along the side of the Nissan away from WO #2’s strikes, and the SO was still to his back. WO #2 pushed the car door closed and followed. The Complainant was bent at the waist facing west. WO #2 rushed toward the Complainant’s left side. The Complainant turned to his left and now faced WO #2 with the SO to his left.

At 1:36:19 a.m., the Complainant had his back to the Ford F-150, and he had an object in his right hand (now known to have been a pistol). WO #2 lunged toward him while the SO moved north along the side of the Ford pickup. Debris could be seen falling to the ground from the front of the Ford Pickup (found later to have been a smashed grille). The Complainant moved to his right between the vehicles and toward the west sidewalk. WO #2 faced the Complainant and was reeling to his left attempting to avoid something, and then tripped and fell backward onto the side of the SO’s police vehicle. His flashlight went airborne and landed on the hood of the Ford.

At 1:36:21 a.m., the SO stopped, turned and fired his service pistol twice at the Complainant who was on the west sidewalk near the rear of the vehicle. The Complainant was last seen to lock up and fall face first to the ground. The Complainant rolled onto his right side and raised his hands in surrender as WO #2 moved toward him with his pistol drawn.

At 1:37:06 a.m., WO #1 arrived and handcuffed the Complainant with his hands behind his back. WO #1 checked the SO’s vest for damage and then WO #2. The SO removed the CW from the driver’s seat of the Nissan and placed her in the back seat of his police vehicle.

Video from WO #1’s Police Vehicle

At 1:35:52 a.m., the police vehicle, which was operated by WO #1, travelled south on Rea Street and a TPS Dodge Charger [now known to be the SO’s police vehicle] was seen parked on the west side of road. The SO’s police vehicle had its headlights on, but no roof lights, and a red Ford pickup was parked on the right side of it.

At 1:35:56 a.m., a TPS marked pickup truck [now known to WO #2’s police truck] was stopped facing northwest with its headlights on, and no roof lights on. WO #2’s police truck was just north of Bannerman Avenue. A police officer [now known to have been the SO] could be seen near the driver’s side rear of a car [now known to have been a Nissan], parked in front of the Ford pickup.

At 1:36:03 a.m., an unknown man in dark clothes ran south on Rea Street, and east on Bannerman Avenue, from the rear of WO #2’s truck.

At 1:36:04 a.m., WO #2 moved from the front of the Nissan toward the open driver’s side rear door and signaled with his flashlight for WO #1 to follow the unknown man, who fled east on Bannerman Avenue.

At 1:36:13 a.m., WO #1 drove eastbound on Bannerman Avenue and the unknown man was out of sight. WO #1 made a U-turn and returned to the SO and WO #2’s location.

At 1:36:46 a.m., WO #1 parked behind WO #2’s vehicle and activated his roof lights. The SO could be seen emerging from the rear of the Nissan and moving to the centre of the street. He could be heard over the police radio advising that a party had fled on foot and requesting a canine (K-9) unit.

At 1:37:36 a.m., WO #1 approached the SO and checked on his condition before he returned to the passenger side of the Nissan.

At 1:38:10 a.m., the SO attended the driver’s door of the Nissan and the CW. She was handcuffed and then placed in the back of the SO’s police vehicle.

Closed-circuit Television (CCTV) Recording From a Residence on Rea Street South

SIU investigators canvassed for witnesses and CCTV within the area of the incident. A CCTV recording was obtained from a residence on Rea Street South. The quality of the video footage was very poor due to the glare of headlights and there was no audio component to the video.

On October 31, 2020, at 1:27:33 a.m., three individuals were seen to walk from Commercial Avenue onto Rea Street South. The three individuals passed a black car with Ontario plates.

At 1:28:34 a.m., three other individuals were seen to walk quickly towards the parked black Nissan and get into the vehicle.

At 1:29:27 a.m., the driver of the black Nissan flashed the headlights six times, then turned off its headlights.

At 1:29:43 a.m., a TPS police vehicle drove southbound on Rea Street, south off Commercial Avenue. The black Nissan’s headlights were turned on.

At 1:30:02 a.m., the TPS police vehicle made a turn on Bannerman Avenue and drove northbound to Rea Street South. The police vehicle passed the black Nissan, executed a U-turn on Commercial Avenue, and drove southbound on Rea Street South. The police cruiser parked by the rear passenger side of the black Nissan.

At 1:31:22 a.m., a TPS F-150 pickup truck drove southbound on Rea Street South and did a U-turn on Bannerman Avenue. The pickup truck parked on a 45-degree angle and faced the black Nissan.

At 1:35:50 a.m., another TPS cruiser drove southbound on Rea Street South and parked in the vicinity of the first police vehicle.

At 1:36:16 a.m., what appeared to be two white flashes (which were possible gun shots) were seen to come from the west side of the parked black Nissan.

At 1:36:41 a.m., a TPS police vehicle was seen to drive westbound on Bannerman Avenue and turned northbound onto Rea Street South with its lights flashing. It parked just past the F-150 pickup truck.

At 1:39:58 a.m., two TPS police officers could be seen on the sidewalk by the corner of Bannerman Avenue.

Police Communications Recordings

TPS 911 Call

At 1:25 a.m., on October 31, 2020, a man called the police to advise that someone was breaking into his home located at a residence on Commercial Avenue. The caller was alone in his home. No one else resided there except him and the doors were locked. The man advised that someone, whom he did not know, threw a beer bottle at the side window causing it to break. The caller did not know if there were weapons involved.

At 1:27 a.m., police officers arrived on scene, and the caller and the dispatcher disconnected the telephone line.

TPS Communications

On October 31, 2020, at 1:25 a.m., TPS received a 911 call for a break and enter at a residence on Commercial Avenue. The SO saw someone run from the residence prior to the call and checked the area. He initiated contact with a vehicle [now known to be a Nissan Kicks] that had been parked on Rea Street. The driver of the vehicle was the CW.

Attempts were made to extract two men from the Nissan. The SO and WO #2 had struggled to get the Complainant out of the back of the vehicle.

At 1:36:24 a.m., the SO yelled, “Shots fired, shots fired.” The Complainant had shot two rounds at the SO and WO #2.

At 1:37:20 a.m., the SO asked for radio silence as a male suspect had fled on foot, running eastbound on Bannerman Avenue.

At 1:37:55 a.m., EMS was requested.

At 1:38:09 a.m., the SO broadcast that the Complainant was shot once in the abdomen. A description of the fleeing unknown man was broadcast. Canine and containment were requested. EMS were called to the location.

At 1:47:19 a.m., the Nissan was secured, and the scene locked down.

At 1:55:36 a.m., the Complainant was transported to the TDH.

Forensic Evidence

CFS Submissions and Results

The CFS returned the following results of their examination of firearms and ballistic exhibits submitted to them:

• The SO’s Glock pistol fired the two recovered silver .40 calibre cartridges cases;
• The SO’s Glock did not fire the bullet jacket fragment, which was located embedded in the cruiser front passenger door;
• The SO’s Glock could neither be eliminated nor identified as having fired the damaged bullet recovered from the Complainant; and
• There was no firearm discharge residue on the Complainant’s clothing - coat - so no attempt could be made to have a distance estimation examination completed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:

• Computer-assisted Dispatch Event Details Reports;
• Communications Audio;
• Communications 911 Call;
• Event Details Report;
• General Occurrence Report;
• General Report;
• ICCS footage from the cruisers of the involved officers;
• Notes-WO #2;
• Notes-WO #1;
• Notes-the SO;
• Occurrence-List of Officers Involved;
• Operating Procedure - Use of Force;
• Operating Procedure - Arrest of Persons;
• Policy - Arrest;
• Policy - Use of Force;
• Supplementary Occurrence Reports (x5);
• Training Report-Use of Force and Firearms;
• Video Statement of 911 caller; and
• Witness Statement (Video Synopsis)-911 caller.

 

Materials obtained from Other Sources

The SIU obtained and reviewed the following records from non-police sources:

• Medical records - HSNS;
• Medical records - TDH; and
• Video from a Residence on Rea Street South.

The material events in question are clear on the evidence collected by the SIU thanks to statements from the Complainant and WO #2, and video footage of the incident captured by the ICCSs of the SO’s and WO #2’s cruisers. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

At about 1:36 a.m. of October 31, 2020, the Complainant was shot once in the lower back by the SO. The Complainant was felled by the shot, landing on his front onto the sidewalk before rolling onto his back. An officer arriving at the scene shortly after the shooting, WO #1, handcuffed the Complainant’s arms behind his back, after which WO #2, present at the time of the shooting, treated the Complainant’s wound while waiting for paramedics.

The train of events culminating in the Complainant’s shooting began minutes before when officers were dispatched to an address on Commercial Avenue following a 911 call from a resident about a break and enter in progress. The SO, in the vicinity of the property, was the first officer to arrive at the scene. The officer observed a man running from the residence on Commercial Avenue. The same man joined two other individuals at the corner of Commercial Avenue and Rea Street South. Suspecting these persons had something to do with the reported break and enter, the SO followed them in his cruiser south on Rea Street South and watched as they entered a Nissan Kicks. The vehicle was parked facing south on the west side of Rea Street South, just north of Bannerman Avenue. Behind it was a parked red pickup truck.

The SO stopped his cruiser parallel with the pickup truck, also facing south, and exited to speak with the driver – the CW. He sought and received the CW’s licence and vehicle registration, and then went to speak with WO #2, just arriving at the scene. WO #2 had stopped his cruiser south of the Nissan facing northwest toward the vehicle’s front end. The officers concluded they had enough to detain the parties inside the Nissan for investigation of the break and enter, and decided to start by speaking with the two males outside the vehicle.

The Complainant objected as the SO opened the rear driver’s side door of the Nissan and attempted to place him under detention. The officer reached in to take hold of the Complainant, prompting a physical altercation between the two. The struggle continued outside the vehicle, at which point the officer called for WO #2’s assistance.

WO #2, who had been dealing with another male seated in the front passenger seat of the Nissan, ran around the front of his cruiser and approached the melee. From behind the open rear door, the officer punched the left side of the Complainant’s head. The Complainant reacted by reaching over the open door and attempting to punch back at WO #2. The parties continued to grapple with each other, and the Complainant was struck by additional punches to the head by WO #2 and the SO. Shortly thereafter, the struggle transitioned toward the back of the Nissan - between the back end of the vehicle and the front of the red pickup truck. It was in and around this time that the Complainant retrieved a handgun from inside a coat pocket.

WO #2 was the first to see the firearm and yelled out, “Gun.” The officer scrambled to seek cover between the pickup truck and the SO’s cruiser. As he did so, the Complainant’s firearm was discharged twice. Neither round struck the officer.

The SO, who had heard WO #2 call out, “Gun,” retreated to a position behind the pickup truck and his cruiser, drew his sidearm, and fired twice at the Complainant. By the time of the officer’s shots, the Complainant had made it onto the sidewalk before he was struck and grounded by a single bullet.

WO #2 approached the Complainant, and kicked the handgun, which had fallen from the Complainant’s right hand as he dropped to the ground, further away from the Complainant.

Paramedics arrived at the scene and transported the Complainant to hospital. He was diagnosed with a fractured spine and underwent surgery to remove the bullet.

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.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

On October 31, 2020, the Complainant was shot by a TPS officer and suffered serious injuries in the process. The TPS officer in question – the SO – was identified as the subject officer 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 shooting.

Pursuant to section 34 of the Criminal Code, force used in the defence of oneself or another against a reasonably apprehended attack, actual or threatened, is legally justified if it was reasonable in the circumstances. The assessment of reasonableness is to be made on the basis of the circumstances that prevailed at the time, such as: the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. In my view, there is insufficient evidence to reasonably conclude that the force used by the SO fell afoul of the limits of justifiable force prescribed by section 34.

At the outset, it is important to note that the SO was lawfully placed and engaged in the execution of his duties when he first confronted the Complainant. He had seen one of the males inside the Nissan running from the residence at which the reported break and enter had just occurred. In the circumstances, I am satisfied that the SO’s suspicions that the occupants of the Nissan were implicated in the break and enter were based on reasonable rounds, thereby authorizing the Complainant’s detention for purposes of investigation: R. v. Mann, [2004] 3 SCR 59.

Thereafter, the officers were entitled to resort to a measure of force to protect themselves when the Complainant physically contested his detention and produced a handgun, and I am satisfied they did so within the confines of the law. By the time the Complainant retrieved his gun, he and the officers had been immersed in a short but vigorous physical struggle. [2] It was clear that he had no intention of submitting to the officers if he could help it. Against this backdrop, WO #2 and the SO could only surmise, as I am confident they did, that their lives were at imminent risk when two rounds were discharged from the Complainant’s firearm, at least one of which was aimed in their general direction. At the sight of the gun, WO #2 scrambled for cover between the pickup truck and the SO’s cruiser, parked behind the Nissan, and was fortunate not to have been struck by a bullet. The SO, who did the same, quickly returned fire at the Complainant. He discharged two rounds, one of which entered the Complainant’s lower back and promptly incapacitated him. On this record, I am unable to fault the SO for meeting what was clearly a lethal threat with lethal force of his own. Lesser force, such as a CEW discharge, was unlikely to be successful as the Complainant was wearing a winter jacket. Moreover, the circumstances did not permit of simple containment from a position of cover given the proximity of the parties and the necessity in the moment to quickly denude the Complainant of his ability to discharge the firearm, which he still had hold of when he was shot. Nor does the fact that the Complainant was wounded in the back strip the shooting of legal justification. This was not the case of an individual clearly more interested in fleeing police than causing grievous bodily harm or death. Rather, two rounds had just been fired from the Complainant’s weapon when the SO discharged his weapon. In light of the dynamism of the moment, and accounting for the lag inherent in reaction times, the evidence does not reasonably establish that the Complainant was anything less than a clear and present danger to the lives of WO #2 and the SO when he was shot.

For the foregoing reasons, there are no reasonable grounds to believe that the SO acted unlawfully when he discharged his firearm at the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: June 21, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit