SIU Director’s Report - Case # 21-OFI-102
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This page contains graphic content that can shock, offend and upset.
Contents:
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.
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.
- 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 serious injuries sustained by a 28-year-old man (the “Complainant”).
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 serious injuries sustained by a 28-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On April 4, 2021, at 4:41 a.m., the Ottawa Police Service (OPS) notified the SIU of the following.The OPS reported that on April 4, 2021, at 3:24 a.m., police officers, Witness Official (WO) #1, WO #2 and WO #3, and the Subject Official (SO), responded to a call regarding a man walking with a sword in the area of Montreal and Ogilvie Roads.
Upon arrival, police officers were confronted by the man (now known to be the Complainant). The SO discharged his firearm and struck the man. The man was transported to the hospital.
The Team
Date and time team dispatched: 04/04/2021 at 6:04 a.m.Date and time SIU arrived on scene: 04/04/2021 at 12:11 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 3
SIU investigators interviewed all witness police officers present at the time of the firearm discharges and received duty notes from all police officers who had any involvement in the incident.
SIU forensic investigators processed the scene and, between the scene and hospital, were able to recover the four discharged projectiles.
Civilian witnesses to the incident were interviewed, and both cell phone and closed-circuit television (CCTV) video footage of the incident were secured.
Affected Person (aka “Complainant”):
28-year-old male, declined interview, medical records received and reviewedCivilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
The civilian witnesses were interviewed on April 4, 2021.
Subject Officials
SO Declined interview, as is the subject official’s legal right. Notes and will state received and reviewed. Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but narrative received and reviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Not interviewed, but notes received and reviewed
WO #8 Not interviewed, but notes received and reviewed
WO #9 Not interviewed, but notes received and reviewed
WO #10 Not interviewed, but notes received and reviewed
WO #11 Not interviewed, but notes received and reviewed
WO #12 Not interviewed, but notes received and reviewed
WO #13 Not interviewed, but notes received and reviewed
WO #14 Not interviewed, but notes received and reviewed
WO #15 Not interviewed, but notes received and reviewed
WO #16 Not interviewed, but notes received and reviewed
WO #17 Not interviewed, but notes received and reviewed
The witness officials were interviewed on April 5, 2021.
Evidence
The Scene
On April 4, 2021, at 12:12 p.m., three SIU Forensic Investigators arrived on scene located around Montreal Road and Ogilvie Road. The incident concluded in the parking lot of Popeyes Louisiana Kitchen, situated at 2000 Montreal Road. A Forensic Investigator was assigned to set up the Total Station and take measurements for a plan drawing. The entire area was cordoned off with yellow police tape and marked police vehicles in the area.
Figure 1 - The Popeyes parking lot where the shooting occurred.
A Petro Can gas station was across the street in the northwest corner of the intersection.
Four OPS marked police cruisers were in the immediate area;
• The first was a fully marked and decaled Ford Police Interceptor. It was situated on the south sidewalk just east of the Popeyes facing in a westerly direction. It was running with emergency lights activated;
• The second was a fully marked and decaled Ford Police Interceptor. It had ghost markings on the vehicle. It was situated in the turn lane on Montreal Road eastbound to Ogilvie Road southbound and was over the curb facing west. Its lights were not on and it was not running;
• The third was a fully marked and decaled Ford Police Interceptor. It was situated in the westbound centre lane of Montreal Road just west of Popeyes and was facing in a southwest direction. It was running and had its emergency lights activated; and
• The fourth OPS cruiser was a fully marked and decaled Ford Police Interceptor. This vehicle was in the Popeyes parking lot area on the west side of the building and was facing in a north direction. This cruiser was running but did not have its emergency roof lights activated.
A Forensic Investigator was assigned to attend the Ottawa Civic Hospital and retrieve the Complainant’s clothing and any other pertinent exhibits. The Investigator also attended the OPS Headquarters and photographed all witness officials’ duty belts and use of force options, and secured the subject official’s pistol and seated magazine.
Scene Diagram
Physical Evidence
Forensic Investigators located, photographed and obtained several exhibits during scene examination. In the Popeyes parking lot on the north side of the business, exhibits were located. These included:
• Four silver .40 cal cartridges cases,
• A long sword,
• An area of red blood-like staining (swab taken), and
• A white baseball cap.
The sword at the scene had an overall length of 99 centimetres (cm) or 39 inches. The blade was 64 cm in length (25 inches) and the handle was 35 cm in length (14 inches.) The sword was photographed and measured prior to it being collected by OPS forensics.
Figure 2 - The sword that was recovered from the scene.
A copper jacketed lead core bullet was located across the street on the north side of Montreal Road in the parking lot of the Petro Can gas station.
A black cell phone was located on the sidewalk on the south side of Montreal Road in front of the Popeyes restaurant.
A flattened copper jacketed lead core bullet was located on the roadway on the south side of Montreal Road in front of the Popeyes entrance driveway.
The Complainant’s clothing along with two vials containing recovered projectiles were seized at the hospital.
The SO’s pistol and magazine containing ten bullets and one bullet from the chamber of the pistol, for a total of eleven bullets, were obtained at OPS Headquarters.
Figure 3 - The SO's Glock 22 pistol
Forensic Evidence
Several exhibits were examined for submission to the Centre of Forensic Sciences (CFS):
As of the date of this report, the CFS report was not yet available.
Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained audio, video records of relevance, as set out below.
Forensic Evidence
Several exhibits were examined for submission to the Centre of Forensic Sciences (CFS):• SO’s pistol – Glock 22 - magazine with a total of eleven hollow point bullets;
• One mushroomed copper jacketed lead core bullet from the hospital;
• One mushroomed lead core bullet recovered from the Complainant during surgery;
• A red-stained T-shirt, cut open. This shirt had a small 1 cm hole in the lower 1/3 of the garment and slightly left of centre. Heavy red blood-like staining surrounded the defect. There was also a small hole in the left short sleeve of the garment. It was also approximately 1 cm in size and was surrounded by red blood-like staining. There was a corresponding hole on the other side of the sleeve; and
• A pair of shorts had two small holes in the upper right side of the garment. The first was approximately ½ cm and the second was irregular in shape. Both were surrounded by a red blood-like substance. There was a small 1 cm in size hole in the rear of the shorts on the right side approximately halfway down from the waist, and a second hole on the right side rear of the shorts.
As of the date of this report, the CFS report was not yet available.
Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained audio, video records of relevance, as set out below.911Calls
First Call At 3:24 a.m., CW #3 called to report that a male had approached him and said, “Everything was alright.” The male was now walking towards the Esso gas station. The male was described as Caucasian, about 35 years of age, wearing red, a white hat, and long shorts. He was carrying a large knife. The male was walking towards Gabriel’s.
Second Call
At 3:24 a.m., CW #2 called to report a man walking on Montreal Road and Ogilvie Road with a big knife. The male appeared to be Middle Eastern or Indian, and was wearing a red shirt, hat and blue shorts; he was barefoot.
Third Call
At 3:30 a.m., CW #5 reported a “crazy” man walking along Montreal Street and Ogilvie Road. She said a police officer had arrived alone in a vehicle, and the male carrying a large sword had struck the police vehicle. CW #5 said the police officer needed assistance. The call-taker said additional police officers were en route. CW #5 was heard saying words to the effect, “He is coming towards the car, he is going to have to shoot him, look he is going to shoot him.” At least four gunshots were heard. CW #5 told the call-taker the male just got shot.
OPS Communication Recordings
At 3:23:43 a.m., two police officers were dispatched to the area of Montreal Road and Ogilvie Road for a male walking on Montreal Road with a knife. OPS was getting a couple of calls for this male. The male was heading towards the Esso gas station. The male was described as white, and wearing a red shirt, blue shorts and white hat. The male was in front of Gabriel’s Pizza. He was holding what appeared to be a long sword.The dispatcher said the male was possibly Middle Eastern and barefoot. It did not appear he was threatening anyone with the sword, but he was holding it. The male was crossing Ogilvie Street heading towards the Metro.
The dispatcher said she was aware that a police officer [now known to be WO #1] would be arriving shortly. She would call a [request to limit transmissions] until his back up arrived.
WO #1 said the male was swinging the knife. He would wait for additional units so that they could surround him. The male was walking towards the Metro.
WO #1 said the male would not drop it, and was walking around waving it. The male was near the Popeyes.
WO #2 arrived at the scene.
The dispatcher said the subject was attacking WO #1’s vehicle.
WO #1 said the male was standing, there were three units present, and they would wait until a couple more arrived.
A male police officer said EMS was a priority. The dispatcher advised EMS was on the way - high priority.
The dispatcher said there were witnesses across the street and that an ambulance would attend their location as the people were in shock.
A male police officer said the male had been shot three times: once in the abdomen, and twice in the right leg. The police officer then said the male was also shot in the arm. The male was conscious and combative.
The dispatcher advised that the first ambulance would arrive in about four minutes. A male police officer said the ambulance was on scene.
CW #3 – video recordings
At 3:28 a.m., CW #3 used his cellular telephone to take videos of a male (now known to be the Complainant) who was carrying a sword in front of the Metro Grocer and Popeyes Chicken. The video was turned over to SIU at 4:30 p.m. The following is a summary of what was captured on the videos. Video 1 – 38 Seconds in Length
The Complainant was wearing a red-T-shirt, white ball cap and shorts on the sidewalk in front of the Metro Grocer. There was a white SUV police cruiser reversing on the street in front of the Metro Grocer. CW #3 was heard saying, “He’s holding a knife; he attacked the cop.”
Fifteen seconds into the video, the Complainant ran towards the Popeyes Chicken. He was holding the sword in his right hand. A male voice yelled, “Stop, don’t do it, drop it.”
Figure 4 - Screenshot from the video depicting the Complainant running towards the SO while brandishing a sword.
The Complainant was now in front of the Popeyes Chicken. A police officer was taking steps backward as the Complainant closed the gap between them. The police officer fired four shots.
Figure 5 - Screenshot from the video showing the distance between the SO (whose position is visible by the light on his firearm) and the Complainant moments before the SO discharged his firearm.
A white SUV police cruiser pulled in front of the Popeyes Chicken. A male police officer ran from the sidewalk area in front of the Metro Grocer towards the police officer who fired the shots. CW #3 said, “They shot him, they shot him.”
A taxi drove away from the area where CW #3 was videoing.
Video 2 – 16 seconds in length
The Complainant was on the sidewalk between the Popeyes Chicken and Metro Grocer. There was a white SUV police cruiser with the left wheels to the curb beside the Complainant who was holding a sword in his right hand. At the ten second mark of the video, the Complainant walked towards the driver’s side of the police cruiser. There was a loud bang coming from the driver’s side of the police cruiser.
Video 3 - 16 seconds in length
The Complainant was on the sidewalk in front of the Metro Grocer. CW #3 said, “He’s holding a knife, stupid.” A white SUV police cruiser with its roof lights activated was stopped facing the Metro Grocer on the roadway;
Video 4 – 13 seconds in length
A white SUV police cruiser with the emergency lights activated was captured reversing on the street in front of the Metro Grocer.
Video 5 – 13 seconds in length
A white SUV police cruiser with emergency lights activated was captured in front of the Metro Grocer.
Video 6 – 28 seconds in length
The Complainant was wearing a red T-shirt, white ball cap and shorts, and walking on the sidewalk between Popeyes Chicken and the Metro Grocer. The Complainant was carrying a sword. The Complainant raised the sword over his head in his right hand. There was a white SUV police cruiser stopped on the street in front of the Metro Grocer. The Complainant walked towards the SUV police cruiser. There were words said that were not comprehendible. The Complainant walked away from the police cruiser and the SUV police cruiser drove forward towards the Complainant. The Complainant turned and walked towards the SUV police cruiser.
Business CCTV video recording
On April 19, 2021, SIU investigators attended at a business located at Montreal Road and received CCTV footage of the Complainant walking through the parking lot. The following is a summary of the recording.At 3:27:11 a.m., the Complainant walked into the parking lot of the business. He was wearing dark shorts, red T-shirt, and white baseball cap. He was not wearing any footwear. The Complainant was carrying a large sword over his right shoulder and appeared to be looking around at the surroundings.
The Complainant, while walking, put the sword over his head and was holding it with two hands. The Complainant walked to the end of the building and made a left turn before going out of sight. The Complainant was carrying the sword in his right hand when he went out of sight.
Materials Obtained from Police Service
The SIU obtained the following records from the OPS:• Computer-assisted Dispatch call;
• Communication recordings;
• Mental Health Incidents Policy;
• Narrative of the SO, and WO #1 to WO #16
• Notes of SO, WO #1 to WO #4, and WO #6 to WO #17;
• Ottawa Hospital Patient valuables form;
• Record Management System (RMS) Hardcopy – the Complainant;
• RMS Searches regarding firearms incidents;
• Use of Force- the SO;
• Will state- WO #17; and
• Witness Statements of CW #2, CW #3 and CW #5.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: • Ottawa Civic Hospital – medical records for the Complainant.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, which included interviews with civilian and police eyewitnesses to the shooting, and a civilian’s cell phone video recording that captured the incident. As was his legal right, the SO chose not to interview with the SIU. The officer did provide a copy of his notes.
Shortly before 3:30 a.m. of April 4, 2021, citizens called 911 to report a man in the area of Montreal and Ogilvie Roads with a large knife in his possession and behaving strangely. Officers were dispatched to the area.
The man in question was the Complainant. The Complainant had retrieved a sword and made his way on foot to the intersection. It does not appear that he was in control of his mental faculties at the time. He had approached the Petro-Canada station and then travelled to the Esso station and the Anytime Fitness businesses before ending up on the southwest corner of the intersection in front of the Popeyes and Metro Grocers’ parking lot.
WO #1 was the first officer to arrive at the scene. He observed the Complainant, still in possession of the sword, and approached him in his cruiser traveling west in the curbside eastbound lane of Montreal Road. The officer stopped his vehicle in the Complainant’s vicinity and watched as he dropped his sword before quickly picking it up and advancing toward the cruiser. The Complainant neared to within striking range of the cruiser and swung his sword at the driver’s door. The sword impacted the driver’s door window. WO #1 radioed what had occurred and drove away to create distance between him and the Complainant.
WO #2 was the next officer to arrive. He approached the scene from the south, turning into the Metro parking lot and driving northward through the lot to the area of the Popeyes. The officer observed the Complainant with the sword, heard over the radio that he had just attacked WO #1’s cruiser, and decided to wait for additional officers to arrive. His intention was to surround the Complainant with cruisers, and possibly use one of them to strike the Complainant to the ground.
The SO arrived at the intersection and parked his cruiser facing west on the south sidewalk of Montreal Road in front of Popeyes. He was a distance east of the Complainant, who had been pacing back and forth on the sidewalk and parking lot area north of Metro and Popeyes, refusing repeated directions from WO #1 and WO #2 to drop the sword. The Complainant similarly paid little heed to the SO’s commands that he drop the sword.
Not more than a minute after the SO had exited his cruiser, the Complainant turned and began to run in his direction. The parties were separated by about 15 to 20 metres at this point. The officer yelled at the Complainant not to “do it” and to “stop” as he backtracked several metres in a southeast direction toward the entrance of the Popeyes. When the Complainant neared to within two to three metres of the officer, the SO discharged his firearm four times in quick succession.
The Complainant fell forward and dropped the knife from his possession. WO #2 rushed to the scene and kicked the sword further away. He, together with the SO, WO #1, and other arriving officers, assisted in handcuffing and treating the Complainant while waiting for paramedics to attend.
The Complainant suffered gunshot wounds to the following four locations: left proximal arm; left flank; left groin; and, right groin.
Shortly before 3:30 a.m. of April 4, 2021, citizens called 911 to report a man in the area of Montreal and Ogilvie Roads with a large knife in his possession and behaving strangely. Officers were dispatched to the area.
The man in question was the Complainant. The Complainant had retrieved a sword and made his way on foot to the intersection. It does not appear that he was in control of his mental faculties at the time. He had approached the Petro-Canada station and then travelled to the Esso station and the Anytime Fitness businesses before ending up on the southwest corner of the intersection in front of the Popeyes and Metro Grocers’ parking lot.
WO #1 was the first officer to arrive at the scene. He observed the Complainant, still in possession of the sword, and approached him in his cruiser traveling west in the curbside eastbound lane of Montreal Road. The officer stopped his vehicle in the Complainant’s vicinity and watched as he dropped his sword before quickly picking it up and advancing toward the cruiser. The Complainant neared to within striking range of the cruiser and swung his sword at the driver’s door. The sword impacted the driver’s door window. WO #1 radioed what had occurred and drove away to create distance between him and the Complainant.
WO #2 was the next officer to arrive. He approached the scene from the south, turning into the Metro parking lot and driving northward through the lot to the area of the Popeyes. The officer observed the Complainant with the sword, heard over the radio that he had just attacked WO #1’s cruiser, and decided to wait for additional officers to arrive. His intention was to surround the Complainant with cruisers, and possibly use one of them to strike the Complainant to the ground.
The SO arrived at the intersection and parked his cruiser facing west on the south sidewalk of Montreal Road in front of Popeyes. He was a distance east of the Complainant, who had been pacing back and forth on the sidewalk and parking lot area north of Metro and Popeyes, refusing repeated directions from WO #1 and WO #2 to drop the sword. The Complainant similarly paid little heed to the SO’s commands that he drop the sword.
Not more than a minute after the SO had exited his cruiser, the Complainant turned and began to run in his direction. The parties were separated by about 15 to 20 metres at this point. The officer yelled at the Complainant not to “do it” and to “stop” as he backtracked several metres in a southeast direction toward the entrance of the Popeyes. When the Complainant neared to within two to three metres of the officer, the SO discharged his firearm four times in quick succession.
The Complainant fell forward and dropped the knife from his possession. WO #2 rushed to the scene and kicked the sword further away. He, together with the SO, WO #1, and other arriving officers, assisted in handcuffing and treating the Complainant while waiting for paramedics to attend.
The Complainant suffered gunshot wounds to the following four locations: left proximal arm; left flank; left groin; and, right groin.
Relevant Legislation
Section 34, Criminal Code -- Defence of person - Use of threat of force
34 (1) A person is not guilty of an offence if
(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.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(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
On April 4, 2021, the Complainant was shot and wounded by an OPS officer in the course of his arrest in Ottawa. The officer in question – the SO – was identified as the subject official for purposes of the ensuing 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 Complainant’s injuries.
Pursuant to section 34 of the Criminal Code, the use of force that would otherwise constitute an offence is legally authorized if it was intended to thwart a reasonably apprehended attack, actual or threatened, and was itself reasonable in the circumstances. The section provides a non-exhaustive list of factors that are to be considered in assessing the reasonableness of the force in question, including: 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, the SO’s shooting of the Complainant fell within the four corners of the section 34 legal justification.
At the outset, it bears noting that the officers who responded to the intersection of Montreal and Ogilvie Roads, including the SO, were lawfully placed throughout the incident. An officer’s duties include the protection and preservation of life, and the investigation of crime. Both of those duties were front and centre following reports of a man wielding a large sword in a public intersection. The officers were duty bound in the interests of public safety to attempt to do what they could to disarm the Complainant and take him into custody.
It is regrettable that the Complainant, who appears to have been in the throes of a mental health crisis, could not be persuaded to put down the sword, but I am satisfied that was not for any want of reasonable efforts on the part of the officers. The officers’ repeated directions that he drop the sword went unheeded. Indeed, in one instance, the Complainant responded to the officers’ overtures by swinging his sword forcefully at the driver’s door of WO #1’s cruiser, who was fortunate to have escaped injury when the blow failed to break the window. As for the deployment of specialized mental health resources, that was simply not an option in this case given the speed with which events unfolded and the presence of a weapon in the possession of the Complainant.
Turning more specifically to the SO, I am satisfied that he did not fire his gun other than as a last resort and in the reasonable belief that it was necessary to do so to protect himself from an imminent risk of grievous bodily harm or death. There can be no doubt that the officer was confronted with a potentially lethal weapon in the hands of a man willing and able to use it. The Complainant had just attacked WO #1 with a metre-long sword. The SO did not immediately discharge his weapon as the Complainant ran toward him with the sword. Rather, the officer retreated a distance in a southeast direction while pleading with the Complainant to stop and drop the weapon. It was only when the Complainant, in full stride, had closed the distance with the officer to a matter of metres that the SO discharged his firearm. At that point in time, I am satisfied that the officer was on the precipice of being struck by the sword and used the only weapon at his disposal to immediately incapacitate the Complainant, namely, his gun. It is conceivable that the SO might have opted to deploy his conducted energy weapon to neutralize the Complainant at a distance some time prior to the gunfire. Be that as it may, his failure to do so did not preclude the SO from meeting the threat of lethal force with lethal force of his own as the Complainant bore down on the officer. As for the number of shots fired – four – these were fired in quick succession by the SO as the Complainant advanced on his location. No shots were discharged once the Complainant was on the ground. In the circumstances, I am unable to reasonably infer any material difference in the nature and extent of the threat confronted by the officer throughout the volley of shots.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than lawfully throughout his engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: July 29, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 34 of the Criminal Code, the use of force that would otherwise constitute an offence is legally authorized if it was intended to thwart a reasonably apprehended attack, actual or threatened, and was itself reasonable in the circumstances. The section provides a non-exhaustive list of factors that are to be considered in assessing the reasonableness of the force in question, including: 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, the SO’s shooting of the Complainant fell within the four corners of the section 34 legal justification.
At the outset, it bears noting that the officers who responded to the intersection of Montreal and Ogilvie Roads, including the SO, were lawfully placed throughout the incident. An officer’s duties include the protection and preservation of life, and the investigation of crime. Both of those duties were front and centre following reports of a man wielding a large sword in a public intersection. The officers were duty bound in the interests of public safety to attempt to do what they could to disarm the Complainant and take him into custody.
It is regrettable that the Complainant, who appears to have been in the throes of a mental health crisis, could not be persuaded to put down the sword, but I am satisfied that was not for any want of reasonable efforts on the part of the officers. The officers’ repeated directions that he drop the sword went unheeded. Indeed, in one instance, the Complainant responded to the officers’ overtures by swinging his sword forcefully at the driver’s door of WO #1’s cruiser, who was fortunate to have escaped injury when the blow failed to break the window. As for the deployment of specialized mental health resources, that was simply not an option in this case given the speed with which events unfolded and the presence of a weapon in the possession of the Complainant.
Turning more specifically to the SO, I am satisfied that he did not fire his gun other than as a last resort and in the reasonable belief that it was necessary to do so to protect himself from an imminent risk of grievous bodily harm or death. There can be no doubt that the officer was confronted with a potentially lethal weapon in the hands of a man willing and able to use it. The Complainant had just attacked WO #1 with a metre-long sword. The SO did not immediately discharge his weapon as the Complainant ran toward him with the sword. Rather, the officer retreated a distance in a southeast direction while pleading with the Complainant to stop and drop the weapon. It was only when the Complainant, in full stride, had closed the distance with the officer to a matter of metres that the SO discharged his firearm. At that point in time, I am satisfied that the officer was on the precipice of being struck by the sword and used the only weapon at his disposal to immediately incapacitate the Complainant, namely, his gun. It is conceivable that the SO might have opted to deploy his conducted energy weapon to neutralize the Complainant at a distance some time prior to the gunfire. Be that as it may, his failure to do so did not preclude the SO from meeting the threat of lethal force with lethal force of his own as the Complainant bore down on the officer. As for the number of shots fired – four – these were fired in quick succession by the SO as the Complainant advanced on his location. No shots were discharged once the Complainant was on the ground. In the circumstances, I am unable to reasonably infer any material difference in the nature and extent of the threat confronted by the officer throughout the volley of shots.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than lawfully throughout his engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: July 29, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [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.