SIU Director’s Report - Case # 21-OFP-105
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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 the discharge of a firearm by the police at a 37-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 the discharge of a firearm by the police at a 37-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On April 5, 2021, at 1:18 p.m., the Brantford Police Service (BPS) notified the SIU of a discharge of a firearm at a person.Reportedly, on April 4, 2021, at 1:21 p.m., an ambulance was parked on Grey Street. A man with a machete approached the paramedics and threatened them. Police officers arrived and recognized the man as the Complainant who was wanted on a warrant. The Complainant retreated to his house and refused to come out. At some point, the Complainant advanced towards the police officers with a knife in his right hand and a sword in his left.
An Anti-riot Weapon Enfield (ARWEN) was deployed but did not affect the Complainant. A conducted energy weapon (CEW) was also deployed and also failed to affect the Complainant, who again retreated into his house where he barricaded himself.
A perimeter was created, and the Halton Regional Police Service (HRPS) and Waterloo Regional Police Services (WRPS) attended to assist. A negotiator made attempts to convince the Complainant to surrender and an ambulance was waiting to assess the Complainant upon his capture.
The Team
Date and time team dispatched: 04/06/2021 at 6:58 a.m.Date and time SIU arrived on scene: 04/06/2021 at 9:20 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
37-year-old male interviewedThe Complainant was interviewed on June 28, 2021.
Subject Official (SO)
SO Declined interview and to provide notes, as is the
subject official’s legal right. Will say provided.
Witness Officials (WO)
WO #1 Notes reviewed, interview deemed not necessary
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Interviewed
WO #5 Notes reviewed, interview deemed not necessary
The witness official was interviewed on April 20, 2021.
Witness Officials (WO)
WO #1 Notes reviewed, interview deemed not necessaryWO #2 Notes reviewed, interview deemed not necessary
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Interviewed
WO #5 Notes reviewed, interview deemed not necessary
The witness official was interviewed on April 20, 2021.
Evidence
The Scene
The scene was attended and processed by SIU Forensic Investigators on April 7, 2021, at the conclusion of the four-day stand-off. Grey Street is a two-lane residential street that travelled east and west. The residence was a house designed for single family occupancy. Physical Evidence
Evidence collected from the scene included several ARWEN baton projectiles and cartridge cases, a CEW cartridge and deployed CEW paraphernalia, and an oleoresin capsicum canister.The nature of the ARWEN projectiles is such that they cannot be matched to the ARWEN responsible for their launch.
The SO’s ARWEN was inspected and photographed.
Video/Audio/Photographic Evidence
Police Communications Recordings
Requested by the SIU on April 9, 2021, and received on April 22, 2021, the communications recordings began on April 4, 2021, at 1:20 p.m.The recordings specific to the ARWEN deployment began at 1:48:39 p.m. A police officer broadcast the Complainant had returned to the driveway saying he was going to kill the police, calling them clones. He had a knife in his left hand and a sword in his right hand. The Complainant could be heard yelling in the background.
At 1:49:38 p.m., a police officer [believed to be the SO] broadcast, “ARWEN, ARWEN, ARWEN!”
At 1:49:47 p.m., a police officer broadcast the Complainant ran into the backyard. Another police officer said a CEW had been deployed but was not effective.
Radio communications continued until 1:27 p.m. of the next day, but the BPS had no further physical interactions with the Complainant.
Video Footage from Residence #1
A witness uploaded a cellular telephone video to the SIU website on April 8, 2021. That video recorded the April 7, 2021 interaction between the Complainant and the OPP. The witness was contacted and made available a second video, recorded from a home security system. The security camera video began at 1:46 p.m., April 4, 2021, and was 45 seconds long.
A BPS police vehicle was parked on the south side of Grey Street, faced west. A man’s voice [believed to be WO #4] said, “Drop it […inaudible…] you will be shot if you come past that line.” The Complainant responded, “This line?” His speech was slow and slurred. A conversation ensued between WO #4 and the Complainant: “Do you understand?” “That line right there?” “Put that down, Yes.” “That line?” “Put that down or, [inaudible as the Complainant speaks as well] “That one? The grass one?” The Complainant could be heard saying something about learning, a standoff, the government and last time, but it was indecipherable due to voices closer to the microphone. He then said, “You have a laser in my eye.” [Inaudible again.] The Complainant, now angry, said, “Get it out of my eyes, you’ve got guns and you’re holding a taser are you retarded?” WO #4 responded, “We need you to put that weapon down okay, we can all go away if you put that down.” “After that, you just walk away… Fuck you.”
Video Footage from Residence #2
Another witness contacted the SIU and provided copies of four segments of audio/video recordings recorded from the witness’ residence during the prolonged interaction between the Complainant, the BPS and other police agencies. The times and dates associated with the security system clips were supplied by the witness, not embedded in the video itself. For purposes of the summary, all time references are the time counter of play-back, not the actual time.The first video clip began at 1:13 p.m., April 4, 2021, ran for 21 minutes and 10 seconds, and included audio. At 05:11 into the clip, the Complainant was in the driveway of his residence, a large sword in his right hand. The audio was poor because a vehicle idled nearby.
At 06:04, the Complainant raised a sword to shoulder height and pointed it in a north-westerly direction, before he retreated out of sight, along the side of his house.
At 08:21, the Complainant’s breakfast was delivered to his front porch.
At 09:04, a BPS police officer crossed in front of the Complainant’s residence and looked down the side of the residence before returning. At 10:12, that same police officer returned and stood at the corner of the Complainant’s property. At 10:45, that police officer walked back and along the south sidewalk. A police vehicle arrived on Grey Street, passed the residence and made a U-turn. That police vehicle [now known to have been operated by WO #4] and a second police vehicle stopped in front of the Complainant’s residence and blocked the camera’s view.
At 11:25, a man [now known to be the Complainant] said, “This is my fucking property, you do not need to be here.” A faint conversation was heard but was overshadowed by ambient noise.
Police activity continued in the area and, at 13:50, a man approached a police officer and spoke with her as he pointed at the Complainant’s residence. A voice [now known to be the witness who provided the video] said the Complainant had a weapon.
At 17:40, the Complainant said, “…after that you going to just walk away?”
At 21:14, a voice [believed to be WO #4] said, “Put that down, put it down… put it down,” followed by the Complainant yelling, “Get off the ground, you do not need to be here!”
The home security video ended, but the same witness also provided a cellular telephone video recording of the additional interaction between the Complainant and BPS police officers on April 4, 2021. It began at 4:09 p.m., ran for one minute and seven seconds.
The following conversation was captured between BPS police officers and the Complainant, who was off camera. The Complainant said, “It’s all about the spirit,” his voice then rose in volume and intensity, and he said, “Fucking standoff.” The BPS members raised their weapons and pointed them down the driveway. WO #4 spoke to the Complainant, but his words were not captured due to the low volume of his voice and ambient noise. The conversation continued with the Complainant using a loud aggressive tone. WO #4 spoke calmly and repeatedly said, “Stop there,” and, “Stop there and put the weapon down okay…stop moving toward us. Stop moving!”
The sounds of an ARWEN and a CEW being deployed were heard.
At 0058 (counter time), probe wires extended from WO #4’s CEW. Another officer moved quickly toward the Complainant, slowly followed by other police officers but they stopped after advancing about three metres and retreated to their positions of cover.
Materials Obtained from Police Service
Upon request, the SIU received the following materials and documents from BPS between April 9, 2021 and May 6, 2021:• Feeney Warrants (x2);
• Warrant to Arrest;
• Computer-assisted Dispatch Details;
• Communication Recordings;
• Arrest, Security, Prisoner Care and Control Policy;
• Course Training Standard - ARWEN;
• Emergency Response Team (ERT) Training Log;
• Supplemental Log;
• ERT Firearms Academic;
• Notes – WO #4;
• Police Response to Persons with Mental Illness or Emotionally Disturbed Policy;
• Policy-Officer Note Taking;
• PRIDE Crown Brief Synopsis – WO #5;
• PRIDE General Report – WO #5;
• PRIDE Supplementary Report – WO #1;
• PRIDE Supplementary Report – WO #2;
• PRIDE Supplementary Report – WO #3;
• PRIDE Supplementary Report – WO #4;
• Supplementary Occurrence Report- the SO;
• Use of Force Requalification – the SO; and
• Use of Force Policy.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: • Video footage from Residence #1 on April 4, 2021; and
• Video footage from Residence #2 on April 4, 2021.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may be briefly summarized. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes. He did provide the SIU a prepared statement in relation to the incident.
In and around 1:00 p.m. of April 4, 2021, the Complainant approached paramedics on Grey Street brandishing a sword in their direction. Police were called.
Officers confronted the Complainant, who had by then retreated to the driveway of his home on Grey Street. The Complainant was agitated, spoke incoherently, and threatened to kill the officers while holding a sword in his right hand.
The SO was among the officers that took up a position in front of the Complainant’s home. Other officers included WO #4, who took the lead in speaking with the Complainant, and WO #1 and WO #3, the latter two with their firearms at the ready. The SO was tasked with deploying an ARWEN, if the need presented itself. WO #4 repeatedly directed the Complainant to put his sword down. The Complainant did not do so. In fact, having entered his home at one point, he re-emerged with a knife in his left hand (the sword still in his right hand).
As WO #4 continued with his efforts to have him drop his weapons, the officer made it clear to the Complainant, who paced back and forth, that he was not to cross a certain line on the driveway delineated by a crack in the pavement. WO #4 explained that the officers would be forced to take action if he did so. The Complainant taunted the officers by advancing toward the line before retreating.
At about 1:50 p.m., the Complainant stepped over the line and continued to approach in the direction of the officers, who were in the area of the sidewalk and roadway in front of the home. The SO fired his ARWEN once. The round struck the Complainant in the upper right chest. Just after the ARWEN discharge, WO #4 discharged his CEW. The probes failed to make an effective connection. Neither use of force immobilized the Complainant nor dislodged the weapons from his possession, but they did stop his forward movement and cause him to retreat inside his home.
The officers on scene did not pursue the Complainant into the residence. The standoff with police, including officers with Guelph Police Service and Ontario Provincial Police, called-in to assist, would continue for several days. The Complainant was the target of additional ARWEN discharges during that time, which are the subject of other SIU investigations (21-PFP-112 and 21-OFP-113). He was ultimately taken into custody without having suffered any serious injury.
In and around 1:00 p.m. of April 4, 2021, the Complainant approached paramedics on Grey Street brandishing a sword in their direction. Police were called.
Officers confronted the Complainant, who had by then retreated to the driveway of his home on Grey Street. The Complainant was agitated, spoke incoherently, and threatened to kill the officers while holding a sword in his right hand.
The SO was among the officers that took up a position in front of the Complainant’s home. Other officers included WO #4, who took the lead in speaking with the Complainant, and WO #1 and WO #3, the latter two with their firearms at the ready. The SO was tasked with deploying an ARWEN, if the need presented itself. WO #4 repeatedly directed the Complainant to put his sword down. The Complainant did not do so. In fact, having entered his home at one point, he re-emerged with a knife in his left hand (the sword still in his right hand).
As WO #4 continued with his efforts to have him drop his weapons, the officer made it clear to the Complainant, who paced back and forth, that he was not to cross a certain line on the driveway delineated by a crack in the pavement. WO #4 explained that the officers would be forced to take action if he did so. The Complainant taunted the officers by advancing toward the line before retreating.
At about 1:50 p.m., the Complainant stepped over the line and continued to approach in the direction of the officers, who were in the area of the sidewalk and roadway in front of the home. The SO fired his ARWEN once. The round struck the Complainant in the upper right chest. Just after the ARWEN discharge, WO #4 discharged his CEW. The probes failed to make an effective connection. Neither use of force immobilized the Complainant nor dislodged the weapons from his possession, but they did stop his forward movement and cause him to retreat inside his home.
The officers on scene did not pursue the Complainant into the residence. The standoff with police, including officers with Guelph Police Service and Ontario Provincial Police, called-in to assist, would continue for several days. The Complainant was the target of additional ARWEN discharges during that time, which are the subject of other SIU investigations (21-PFP-112 and 21-OFP-113). He was ultimately taken into custody without having suffered any serious injury.
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.
Section 17, Mental Health Act -- Action by police officer
17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.
Analysis and Director's Decision
On April 4, 2021, during the initial stages of what would become a four-day standoff with police at his home on Grey Street, the Complainant was struck with a less-lethal ARWEN round fired by a BPS officer. The officer who fired his weapon – the SO – was identified as a 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 his ARWEN discharge.
Section 34 of the Criminal Code sets out the limits of the justified use of force in defence of oneself or another. Defensive force of this nature is legally authorized if it is intended to protect against a reasonably apprehended attack, actual or threatened, and is itself reasonable. Whether the force is reasonable is to be assessed against all the relevant circumstances, including such considerations 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 the instant case, the issue is whether there are reasonable grounds to believe on the evidence that the SO transgressed the limits of section 34 in discharging his ARWEN at the Complainant. In my view, there are not.
The SO and the other officers who responded to the scene were lawfully placed throughout their engagement with the Complainant. Though the Complainant does not appear to have been in control of his mental faculties at the time, he had threatened paramedics attending at an unrelated call with a sword. In the circumstances, there were lawful grounds to seek the Complainant’s apprehension, whether under the Criminal Code or section 17 of the Mental Health Act.
I am also satisfied that the SO’s ARWEN discharge was a reasonable use of force in the defence of a reasonably apprehended attack by the Complainant. The Complainant was in a highly agitated and combative mood. Without provocation, he had just approached paramedics with a sword and then threatened responding officers who converged at his residence with death. He refused all entreaties to drop his sword and, in fact, armed himself with an additional edged weapon. The officers bided their time while making it clear to the Complainant that they would act if he moved past a certain point in their direction. The Complainant did so and walked to within a few metres of the officers’ location. With the sword and knife in his possession at the time, the Complainant represented a clear and present danger of bodily harm and even death to the officers. The officers were entitled to defend themselves, and to do so at a distance without putting their safety in even greater jeopardy by physically engaging the Complainant. On this record, I am satisfied that the SO’s resort to less-lethal force – an ARWEN discharge – was a measured and commensurate response to the risks at hand. [1]
For the foregoing reasons, as there are no reasonable grounds to believe that the SO comported himself unlawfully in the use of his ARWEN, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: August 3, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Section 34 of the Criminal Code sets out the limits of the justified use of force in defence of oneself or another. Defensive force of this nature is legally authorized if it is intended to protect against a reasonably apprehended attack, actual or threatened, and is itself reasonable. Whether the force is reasonable is to be assessed against all the relevant circumstances, including such considerations 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 the instant case, the issue is whether there are reasonable grounds to believe on the evidence that the SO transgressed the limits of section 34 in discharging his ARWEN at the Complainant. In my view, there are not.
The SO and the other officers who responded to the scene were lawfully placed throughout their engagement with the Complainant. Though the Complainant does not appear to have been in control of his mental faculties at the time, he had threatened paramedics attending at an unrelated call with a sword. In the circumstances, there were lawful grounds to seek the Complainant’s apprehension, whether under the Criminal Code or section 17 of the Mental Health Act.
I am also satisfied that the SO’s ARWEN discharge was a reasonable use of force in the defence of a reasonably apprehended attack by the Complainant. The Complainant was in a highly agitated and combative mood. Without provocation, he had just approached paramedics with a sword and then threatened responding officers who converged at his residence with death. He refused all entreaties to drop his sword and, in fact, armed himself with an additional edged weapon. The officers bided their time while making it clear to the Complainant that they would act if he moved past a certain point in their direction. The Complainant did so and walked to within a few metres of the officers’ location. With the sword and knife in his possession at the time, the Complainant represented a clear and present danger of bodily harm and even death to the officers. The officers were entitled to defend themselves, and to do so at a distance without putting their safety in even greater jeopardy by physically engaging the Complainant. On this record, I am satisfied that the SO’s resort to less-lethal force – an ARWEN discharge – was a measured and commensurate response to the risks at hand. [1]
For the foregoing reasons, as there are no reasonable grounds to believe that the SO comported himself unlawfully in the use of his ARWEN, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: August 3, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
This report is being translated. The French version will be published as soon as possible.
Endnotes
- 1) Though WO #4’s CEW discharge was not the focus of the investigation, I would also think that his use of force was legally justified under section 34 for substantially the same reasons, notwithstanding the fact that neither the CEW nor ARWEN discharge disarmed the Complainant. [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.