SIU Director’s Report - Case # 21-PFP-112
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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 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 at a 37-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On April 7, 2021, at 5:10 p.m., the Ontario Provincial Police (OPP), West Region, reported a firearm discharge at a person.The OPP advised that on April 7, 2021, at approximately 4:00 p.m., OPP West Region Tactical Response Unit (TRU) members engaged the Complainant, who was armed with a sword. Three police officers fired a total of seven Anti-riot Weapon Enfield (ARWEN) rounds at the Complainant, who was ultimately arrested.
The Complainant had been taken to Brantford General Hospital with a possibly broken wrist. He was to be returned to the custody of the Brantford Police Service (BPS) and held pending a bail hearing.
NB This incident is related to SIU investigations 21-OFP-105 and 21-OFP-113, which involved a prolonged standoff with a barricaded Complainant that began on April 4, 2021, with the BPS.
The Team
Date and time team dispatched: 04/07/2021 at 6:15 p.m.Date and time SIU arrived on scene: 04/08/2021 at 9:15 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
37-year-old male interviewedThe Complainant was interviewed on June 28, 2021.
Subject Officials
SO #1 Declined interview and to provide notes, as is the subject official’s legal right
SO #2 Declined interview and to provide notes, as is the subject
SO #2 Declined interview and to provide notes, as is the subject
official’s legal right
SO #3 Declined interview and to provide notes, as is the subject
SO #3 Declined interview and to provide notes, as is the subject
official’s legal right
Witness Officials
WO #1 Interviewed
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Interviewed
WO #4 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary
The witness officials were interviewed between April 26, 2021 and July 21, 2021.
Witness Officials
WO #1 Interviewed WO #2 Notes reviewed, interview deemed not necessary
WO #3 Interviewed
WO #4 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary
The witness officials were interviewed between April 26, 2021 and July 21, 2021.
Service Employee Witnesses
SEW Designated for notesEvidence
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 conducted energy weapon (CEW) cartridge and deployed CEW paraphernalia, and an oleoresin capsicum canister.
Figure 1 - One of the ARWEN projectiles recovered from the scene.
The nature of the ARWEN projectiles is such that they cannot be matched to the ARWEN responsible for their launch.The ARWENs discharged by SO #1, SO #2 and SO #3 were inspected and photographed.
Figure 2 - One of the subject officials' ARWENs
Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained audio, video and photographic records of relevance, as set out below:
Communication Recordings
Requested on April 9, 2021, and received on April 19, 2021, the SIU reviewed the tactical communications recordings between WO #1, and the TRU teams between 3:55 p.m., and 4:21 p.m., on April 7, 2021.
At 3:55:39 p.m., WO #1 broadcast he was going to go over the plan again, so everyone was on the same page. On initiation, Bravo team would breach the rear window, deploy gas, and a CEW. He warned the team not to be so close to the window that they could be hit if the Complainant came out with a spear. Concurrently, the Alpha team would deploy gas from the front side. If the CEW was effective, Bravo team would voice that out to the Alpha team which would move in. If the CEW was ineffective Alpha team would move back out.
If the Complainant came out of the washroom and was agitated, the Alpha team would deploy ARWENs from the front side, Bravo team would move to the right side, breach the window and deploy the ARWEN if possible. Alpha team would then move in and effect the arrest if they could do so safely.
A canine team was authorized to be deployed if the Complainant came out with nothing in his hands. If at any point during the plan, the Complainant was not subdued or deemed safe to be taken into custody, Alpha team could pull out and they would reset.
At 4:14:24 p.m., WO #1 gave permission to execute the plan and asked to be advised when they were ready. One of the TRU members radioed the Complainant had a weapon in his hand.
At 4:14:41 p.m., a TRU member broadcast that if the Complainant came much closer, they would be forced to act, but hopefully they could go ahead with the plan. At 4:16:28 p.m., a TRU member radioed that the Complainant said the TRU were escalating the situation, and that he had picked up on the fact the TRU were wearing gas masks. The Complainant was talking to them with the door open and had an edged weapon in his hand; he moved a couple of steps toward them. At 4:17:27 p.m., the Complainant walked back into the bathroom.
WO #1 informed the team he had control and, at 4:17:43 p.m., authorized the execution of the plan. One of the TRU members radioed that the Complainant had run back into the bathroom and grabbed something. That TRU member yelled, “Drop it,” and that the ARWEN and gas had been deployed. At 4:18:17 p.m., a TRU member said they were having trouble seeing, from the smoke. They had trouble locating the Complainant. At 4:19:18 p.m., a TRU member said, “Window.” Another TRU member said the Complainant was in the backyard. The police dog barked and, at 4:20:14 p.m., a TRU member radioed the Complainant was in custody, conscious and talking.
Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained audio, video and photographic records of relevance, as set out below:Communication Recordings
Requested on April 9, 2021, and received on April 19, 2021, the SIU reviewed the tactical communications recordings between WO #1, and the TRU teams between 3:55 p.m., and 4:21 p.m., on April 7, 2021. At 3:55:39 p.m., WO #1 broadcast he was going to go over the plan again, so everyone was on the same page. On initiation, Bravo team would breach the rear window, deploy gas, and a CEW. He warned the team not to be so close to the window that they could be hit if the Complainant came out with a spear. Concurrently, the Alpha team would deploy gas from the front side. If the CEW was effective, Bravo team would voice that out to the Alpha team which would move in. If the CEW was ineffective Alpha team would move back out.
If the Complainant came out of the washroom and was agitated, the Alpha team would deploy ARWENs from the front side, Bravo team would move to the right side, breach the window and deploy the ARWEN if possible. Alpha team would then move in and effect the arrest if they could do so safely.
A canine team was authorized to be deployed if the Complainant came out with nothing in his hands. If at any point during the plan, the Complainant was not subdued or deemed safe to be taken into custody, Alpha team could pull out and they would reset.
At 4:14:24 p.m., WO #1 gave permission to execute the plan and asked to be advised when they were ready. One of the TRU members radioed the Complainant had a weapon in his hand.
At 4:14:41 p.m., a TRU member broadcast that if the Complainant came much closer, they would be forced to act, but hopefully they could go ahead with the plan. At 4:16:28 p.m., a TRU member radioed that the Complainant said the TRU were escalating the situation, and that he had picked up on the fact the TRU were wearing gas masks. The Complainant was talking to them with the door open and had an edged weapon in his hand; he moved a couple of steps toward them. At 4:17:27 p.m., the Complainant walked back into the bathroom.
WO #1 informed the team he had control and, at 4:17:43 p.m., authorized the execution of the plan. One of the TRU members radioed that the Complainant had run back into the bathroom and grabbed something. That TRU member yelled, “Drop it,” and that the ARWEN and gas had been deployed. At 4:18:17 p.m., a TRU member said they were having trouble seeing, from the smoke. They had trouble locating the Complainant. At 4:19:18 p.m., a TRU member said, “Window.” Another TRU member said the Complainant was in the backyard. The police dog barked and, at 4:20:14 p.m., a TRU member radioed the Complainant was in custody, conscious and talking.
Video Footage from Residence
A witness contacted investigators and provided a copy of a segment of audio/video recordings from the witness’ residence during the prolonged interaction. The video provided was recorded on a home security system. The times and dates associated with the video were supplied by the witness. The clip began at 4:07 p.m., April 7, 2021, and ran for eight minutes and 59 seconds.Two unmarked OPP police vans were parked in front of the Complainant’s residence. At 00:42 (video run time), the sound of glass breaking was heard [TRU members breaking the rear bathroom window], a dog barked, followed by second barking dog and the sound of six to seven popping sounds - the deployment of ARWEN rounds. At 01:23, smoke emanated from the front window of the residence, the result of CS (2-chlorobenzylidene malononitrile) munitions deployed through the bathroom window. At 01:48, a man yelled, “Show me your hands!”
Materials Obtained from Police Service
The SIU obtained following records from the Western Region Headquarters (London) of the OPP between April 9, 2021, and April 16, 2021:• OPP Members at Barricaded Male Incident, Brantford;• Communication recordings;• Notes of WOs;• OPP Disclosure Response List;• OPP Occurrence; and• OPP Training Records for SO #1, SO #2 and SO #3.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: • Video footage from residence.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and a witness officer who was present at the time of the shooting. The investigation was also assisted by a video recording from a security camera in the area that captured the incident in parts. As was their legal right, the subject officials chose not to interview with the SIU or authorize the release of their notes.
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.
BPS 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.
There ensued a days-long stand-off between the police and the Complainant involving multiple police services and the use of ARWENs on several occasions. The first of those incidents occurred on April 4, 2021 and the second, on April 6, 2021. Each of those events was the subject of separate SIU investigations (21-OFP-105 and 21-OFP-113, respectively). The instant case relates to the third and final transaction with the Complainant involving the use of ARWENs by OPP officers.
Two teams of OPP TRU officers relieved BPS officers and took up positions in front and at the rear of the Complainant’s home at about 2:30 p.m. of April 7, 2021. The officers at the front of the home could see the Complainant inside through the open front door. He was near the rear bathroom and still holding a large sword. WO #4 spoke with the Complainant and attempted to persuade him to come out of the house unarmed. The Complainant was not receptive and demanded that the police leave his property. Members of the OPP’s Critical Negotiation Team arrived on scene but were unable to make any inroads. The Complainant threatened to cut off the heads of police officers and put their bodies through a woodchipper. A forensic psychiatrist was consulted by the OPP, who was of the view that there was little prospect of the Complainant peacefully surrendering.
Shortly after 4:00 p.m., with the approval of the critical incident commander on scene, the TRU teams initiated an operation to take the Complainant into custody. The plan was for the team at the back of the house to deploy tear gas through a window. That was to be shortly followed by the deployment of tear gas from the front of the house into the basement and attic to prevent the Complainant moving to seek refuge in those locations. The objective was to move a disoriented Complainant from his stronghold location into a position where, if the opportunity presented itself, he could be taken safely into custody, if necessary, with the use of a CEW or an ARWEN.
The TRU officers donned their gas masks, broke a rear window, and deployed tear gas into the rear of the home. The Complainant reacted by moving from the area of the bathroom on the main floor toward the front of the home. He remained in the possession of his sword and failed to disarm himself despite police commands from the front of the home that he do so. As he neared the officers at the front of the home, SO #1, SO #2 and SO #3 fired their ARWENs at him one, four and two times, respectively. The Complainant was struck, dropped the sword he was holding and ran back toward the bathroom, where he attempted to climb through the broken window. TRU officers took hold of the Complainant as he did so, pulled him through the window onto the ground, and handcuffed him.
Paramedics tended to the Complainant at the scene following his arrest, and he was eventually taken to hospital. The Complainant reportedly suffered fractures of his left hand, and welts to his chest, forehead and abdomen, presumably, from ARWEN rounds that struck him in the course of the stand-off.
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.
BPS 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.
There ensued a days-long stand-off between the police and the Complainant involving multiple police services and the use of ARWENs on several occasions. The first of those incidents occurred on April 4, 2021 and the second, on April 6, 2021. Each of those events was the subject of separate SIU investigations (21-OFP-105 and 21-OFP-113, respectively). The instant case relates to the third and final transaction with the Complainant involving the use of ARWENs by OPP officers.
Two teams of OPP TRU officers relieved BPS officers and took up positions in front and at the rear of the Complainant’s home at about 2:30 p.m. of April 7, 2021. The officers at the front of the home could see the Complainant inside through the open front door. He was near the rear bathroom and still holding a large sword. WO #4 spoke with the Complainant and attempted to persuade him to come out of the house unarmed. The Complainant was not receptive and demanded that the police leave his property. Members of the OPP’s Critical Negotiation Team arrived on scene but were unable to make any inroads. The Complainant threatened to cut off the heads of police officers and put their bodies through a woodchipper. A forensic psychiatrist was consulted by the OPP, who was of the view that there was little prospect of the Complainant peacefully surrendering.
Shortly after 4:00 p.m., with the approval of the critical incident commander on scene, the TRU teams initiated an operation to take the Complainant into custody. The plan was for the team at the back of the house to deploy tear gas through a window. That was to be shortly followed by the deployment of tear gas from the front of the house into the basement and attic to prevent the Complainant moving to seek refuge in those locations. The objective was to move a disoriented Complainant from his stronghold location into a position where, if the opportunity presented itself, he could be taken safely into custody, if necessary, with the use of a CEW or an ARWEN.
The TRU officers donned their gas masks, broke a rear window, and deployed tear gas into the rear of the home. The Complainant reacted by moving from the area of the bathroom on the main floor toward the front of the home. He remained in the possession of his sword and failed to disarm himself despite police commands from the front of the home that he do so. As he neared the officers at the front of the home, SO #1, SO #2 and SO #3 fired their ARWENs at him one, four and two times, respectively. The Complainant was struck, dropped the sword he was holding and ran back toward the bathroom, where he attempted to climb through the broken window. TRU officers took hold of the Complainant as he did so, pulled him through the window onto the ground, and handcuffed him.
Paramedics tended to the Complainant at the scene following his arrest, and he was eventually taken to hospital. The Complainant reportedly suffered fractures of his left hand, and welts to his chest, forehead and abdomen, presumably, from ARWEN rounds that struck him in the course of the stand-off.
Relevant Legislation
Section 25(1), Criminal Code -- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Analysis and Director's Decision
On April 7, 2021, the Complainant was the subject of multiple ARWEN discharges by three OPP officers in his home in Brantford. The discharges immediately preceded the Complainant’s arrest and the end of a four-day stand-off that also involved officers with the Waterloo Regional Police Service, the Guelph Police Service and the Brantford Police Service. SO #1, SO #2 and SO #3 – the OPP officers who fired their ARWENS – were identified as subject officials for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials committed a criminal offence in connection with the shooting and the Complainant’s arrest.
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. By the time of the OPP’s interventions in this case, a warrant authorizing the forcible entry of police officers into the Complainant’s home to arrest him was in effect. That warrant was prompted by the Complainant’s threatening behaviour toward paramedics on his street and his subsequent conduct in relation to the police response that followed. In the circumstances, I am satisfied that the officers were proceeding to lawfully take the Complainant into custody at the time of the ARWEN discharges.
I am further satisfied that the force used by the SO #1, SO #2 and SO #3 was legally justified. The discharge of their ARWENs was part of a coordinated plan to immobilize and disarm the Complainant, and end a protracted stand-off. That plan, I am satisfied, was a reasonable one. The Complainant had previously been unaffected by single and double ARWEN discharges. In fact, he even had occasion to post on Facebook pictures of the bruises he had suffered as a result of those ARWEN rounds. In the circumstances, I am unable to fault the decision to fire multiple ARWEN rounds simultaneously at the Complainant as a reasonable and proportionate escalation of force.
A reasonable plan, however, will not justify the use of force unless the force in question was reasonably necessary in the moment. Here, too, I am satisfied it was. The Complainant was still in possession of a sword capable of inflicting grievous bodily harm and death as he neared the subject officials’ location. Given the broader context, involving repeated threats against the officers’ lives, and the exigencies of the moment, I am unable to conclude that any of the subject officers acted unreasonably when they attempted to neutralize the Complainant at a distance via their ARWENs. As it turned out, one of the discharges appears to have dislodged the sword from the Complainant’s possession, after which he was quickly in the custody of the police.
For the foregoing reasons, there are no reasonable grounds to believe that the subject officials comported themselves other than lawfully throughout their engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: August 3, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. By the time of the OPP’s interventions in this case, a warrant authorizing the forcible entry of police officers into the Complainant’s home to arrest him was in effect. That warrant was prompted by the Complainant’s threatening behaviour toward paramedics on his street and his subsequent conduct in relation to the police response that followed. In the circumstances, I am satisfied that the officers were proceeding to lawfully take the Complainant into custody at the time of the ARWEN discharges.
I am further satisfied that the force used by the SO #1, SO #2 and SO #3 was legally justified. The discharge of their ARWENs was part of a coordinated plan to immobilize and disarm the Complainant, and end a protracted stand-off. That plan, I am satisfied, was a reasonable one. The Complainant had previously been unaffected by single and double ARWEN discharges. In fact, he even had occasion to post on Facebook pictures of the bruises he had suffered as a result of those ARWEN rounds. In the circumstances, I am unable to fault the decision to fire multiple ARWEN rounds simultaneously at the Complainant as a reasonable and proportionate escalation of force.
A reasonable plan, however, will not justify the use of force unless the force in question was reasonably necessary in the moment. Here, too, I am satisfied it was. The Complainant was still in possession of a sword capable of inflicting grievous bodily harm and death as he neared the subject officials’ location. Given the broader context, involving repeated threats against the officers’ lives, and the exigencies of the moment, I am unable to conclude that any of the subject officers acted unreasonably when they attempted to neutralize the Complainant at a distance via their ARWENs. As it turned out, one of the discharges appears to have dislodged the sword from the Complainant’s possession, after which he was quickly in the custody of the police.
For the foregoing reasons, there are no reasonable grounds to believe that the subject officials comported themselves other than lawfully throughout their engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: August 3, 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.