SIU Director’s Report - Case # 21-TFI-118
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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.
Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:
- The names of persons, including civilian witnesses, and subject and witness officials;
- Location information;
- Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
- Other identifiers which are likely to reveal personal information about individuals involved in the investigation.
Personal Health Information Protection Act, 2004
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.
Mandate Engaged
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into serious injuries sustained by a 54-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 54-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On April 13, 2021 at 9:22 a.m., the Toronto Police Service (TPS) notified the SIU of a police-involved shooting that had just taken place at an address on Shuter Street. A man had been shot by police officers and transported to St. Michael's Hospital. The Team
Date and time team dispatched: 04/13/2021 at 10:29 a.m.Date and time SIU arrived on scene: 04/13/2021 at 10:45 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 3
Affected Person (aka “Complainant”):
54-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on June 30, 2021 and July 27, 2021.
Civilian Witnesses
CW #1 Interviewed CW #2 Interviewed
The civilian witnesses were interviewed on April 15, 2021 and May 29, 2021.
Subject Officials
SO #1 Interviewed, and notes received and reviewed SO #2 Declined interview and to provide notes, as is the subject official’s legal right
SO #1 was interviewed on May 6, 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
The witness officials were interviewed between April 14, 2021 and April 22, 2021.
Investigative Delay
The conclusion of this report was delayed while SIU investigators waited for an opportunity to interview the Complainant, who underwent a lengthy hospital stay for his gunshot wounds.Evidence
The Scene
The Complainant’s apartment is a single bedroom apartment. There is a galley style kitchen immediately inside the apartment entrance. To the left of the entrance doorway is a hallway leading to the bathroom and the bedroom. To the right of the doorway there is a living room.In the hallway, to the left of the apartment doorway, the SIU found a Conducted Energy Weapon (CEW) and a CEW probe on the hallway floor. At the apartment doorway there was a CEW probe stuck in the door frame. CEW Anti-Felon Identification (AFID) tags were found on the floor in front of the apartment doorway. To the right of the apartment doorway the SIU found CEW cartridges, wires and a CEW probe. Two spent pistol cartridge cases were also found on the floor, as was a black police jacket/sweater. The jacket/sweater had SO #2’s name on it.
The apartment door had two bullet holes, on the right side of the door. Both shots penetrated through the inside surface of the door and one of the projectiles struck the hallway wall opposite the door. A bullet was recovered from the bullet defect in the wall.
Two spent pistol cartridge cases were located on the floor of the Complainant’s bathroom.
A blood trail led through the living room area to the area where the Complainant was found, in the space between the dining area and the kitchen.
A jacket found on the floor of the dining room was soaked in blood and there was a defect in the right sleeve. A projectile was recovered from the sleeve.
Physical Evidence
As discussed in the section relating to the scene, two spent pistol cartridge cases were found outside the apartment door, and there were two bullet holes in the apartment door, both consistent with SO #1 firing twice at the door. Two spent cartridge cases were recovered from the bathroom of the Complainant’s apartment, and SO #2’s pistol is believed to have been missing two cartridges, both consistent with SO #2 firing her pistol twice.CEW AFIDs were identified inside and outside the Complainant’s apartment door, consistent with a CEW being discharged while the door was open. A CEW probe was recovered from the door frame of the apartment front door.
SIU investigators attended St. Michael’s Hospital in an effort to collect any bullet fragments that might have been removed from the Complainant; however, attempts to obtain this evidence were unsuccessful.
Forensic Evidence
Weapon Examinations
WO #1 had deployed his CEW during this incident. On April 13, 2021, an SIU forensic identification investigator downloaded the internal data from that CEW. The data revealed WO #1 deployed his CEW at 9:00:07 a.m., [1] firing Cartridge 1. At 9:00:10 a.m., he fired Cartridge 2.SO #2’s pistol, a Glock Model 22 semi-automatic in .40 calibre, was found to contain 12 cartridges. Her spare magazines both contained 14 cartridges. SO #2 did not consent to an interview, so it is unknown whether she was in the practice of “topping up” her pistol. If her practice was to simply insert a magazine into her pistol and load a cartridge into the breech, the count of the live ammunition found in her pistol would suggest she had fired two shots. Two spent cartridge cases were located inside the Complainant’s apartment and given that SO #2 was the only police officer inside the apartment when shots were fired, the two spent cartridge cases confirm SO #2 fired twice.
SO #1’s pistol, also a Glock Model 22 semi-automatic in .40 calibre, was found to contain 13 cartridges. His spare magazines each contained 14 cartridges. During his SIU interview, SO #1 stated his pistol would have been loaded with 15 cartridges. Two cartridges had been fired by SO #1.
Figure 1 - A subject official's Glock Model 22.
On Tuesday, April 20, 2021, the SIU submitted the following items to the Centre of Forensic Sciences (CFS) for forensic analyses:
• Two spent cartridge cases recovered from the hallway;
• Two spent cartridge cases recovered from the Complainant’s bathroom;
• The bullet recovered from the wall inside the doorway;
• The bullet recovered from the jacket found in the dining room;
• SO #1’s pistol;
• SO #2’s pistol;
• The Complainant’s T-shirt; and
• The jacket recovered from the dining room.
At the time of submission of this report, the SIU had not received the results of the CFS analyses.
Video/Audio/Photographic Evidence [2]
The SIU obtained the following video records of relevance:• A surveillance camera recording from Shuter Street received August 4, 2021.
The video recording documented WO #1 and WO #2 arriving at Shuter Street at 7:46 a.m. WO #2 was carrying a manila envelope, which is believed to have contained the Form 47 [3] they were executing. WO #2 and WO #1 exited an elevator on the floor where the Complainant lived.
At 8:47 a.m., SO #1 and SO #2 arrived and took an elevator to the Complainant’s floor. SO #1 was wearing a yellow Community Response Unit jacket, while SO #2 was wearing a dark blue police uniform sweater or light jacket.
At 8:55 a.m., WO #4 and three bicycle unit police officers took an elevator to the Complainant’s floor. At 8:56 a.m., WO #3 took an elevator to the third floor. WO #5 and another plainclothes officer arrived at 9:06 a.m. and rode an elevator to the Complainant’s floor.
At 9:12 a.m., all of the involved police officers were escorted from the building by WO #3, WO #4 and WO #5. SO #2 was no longer wearing her dark blue sweater/jacket.
Computer Aided Dispatch (CAD) Report / Communications Recording
On April 9, 2021, at 12:10 p.m., a nurse from Centre for Addiction and Mental Health (CAMH) called TPS 51 Division to report a Form 47 had been issued for the Complainant because he had missed appointments to receive his medications. The nurse reported the Complainant suffered from schizophrenia. She agreed to deliver the form to 51 Division.At 12:29 p.m., the police dispatcher asked for police officers to attend the Complainant’s residence. There were no police officers available.
The CAD report stated the Complainant was known to be violent and had pulled a knife on people in the past. The Complainant was identified as suffering schizophrenia and he was known to often entertain squatters in his apartment. The nurse from CAMH had advised that the Complainant could be expected to be violent with police officers. The CAD report also stated the Complainant was wanted by TPS 51 Division. The CAD report noted the Complainant was wanted on an endorsed bench warrant.
At 4:57 p.m., police officers were dispatched to the Complainant’s apartment. At 5:33 p.m., the police officers reported there was no response at the door, and they intended to try again in a couple of hours. At 8:04 p.m., the officers reported they were back on the call. At 12:23 a.m. (April 10, 2021) the police officers reported the Complainant was not home and there were no sounds coming from within the apartment.
On April 12, 2021, at 9:08 a.m., the CAMH nurse called the TPS. She reported the Complainant was at the CAMH clinic at the time of the call. The Complainant was claiming that snakes were attacking him. He wished to be taken to a hospital, but the clinic staff were uncomfortable traveling with him in a taxicab. The TPS agreed to dispatch police officers to take the Complainant to the hospital; however, no police officers were available to respond to the matter at that moment.
At 9:31 a.m., the nurse called the TPS again and reported the Complainant had left the clinic. The nurse remarked the Complainant had a long history of aggression.
At 9:53 a.m., police officers collected the Form 47 from TPS 51 Division, and they attended the Complainant’s apartment. At 10:20 a.m., the officers reported they had knocked on the Complainant’s door several times. There was loud music playing inside the apartment, but nobody answered the door. The police officer suggested putting the call back into the call queue, to be addressed by other officers later.
At 4:29 p.m., other police officers were dispatched to the Complainant’s apartment. At 6:04 p.m., the police officers reported they had knocked on the Complainant’s door but there was no answer.
On April 13, 2021, at 12:12 a.m., police officers attended the Complainant’s apartment. At 1:40 a.m., the responding police officers reported they had conducted multiple door knocks but received no answer. They asked that the assignment be held for the day shift.
At 7:31 a.m., WO #1 and WO #2 were dispatched to the Complainant’s apartment. They were cautioned that the Complainant was known to be violent, suffered from schizophrenia and had pulled knives out in the past. At 7:35 a.m., the dispatcher contacted the Emergency Task Force (ETF) and the ETF agreed to monitor the call. At 7:37 a.m.., the ETF advised they were monitoring the 51 Division radio band.
At 8:37 a.m., SO #2 asked to be marked being on the call.
At 8:53 a.m., a female police officer called out over the radio, “Shots fired!” A male police officer excitedly then also reported shots had been fired.
At 9:15 a.m., a male police officer reported SO #1 and SO #2 were being taken to hospital for critical injuries related to stress.
Materials Obtained from Police Service
The SIU obtained the following records from the TPS between April 13, 2021 and August 3, 2021:• A copy of the communications recordings;
• A copy of the General Occurrence Report;
• The CAD report;
• The notebook entries of all designated witness officials;
• The notes of SO #1;
• Record of TPS interactions with the Complainant;
• A copy of the Complainant’s mugshot;
• A copy of the Form 47 issued for the Complainant;
• A copy of the CEW issuance log;
• Photos of SO #2, taken by WO #5;
• Scene photographs;
• TPS Policy – Emotionally Disturbed Persons;
• TPS Policy – Use of Force;
• Use of Force training confirmation for SO #1; and
• Use of Force training confirmation for SO #2.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: • A copy of the Complainant’s medical record from St. Michael’s Hospital; and
• A copy of surveillance recordings from Shuter Street.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, one of the two subject officials – SO #1, two other officers present at the time of the shooting, and a civilian who witnessed the incident in part. As was her legal right, the other subject official – SO #2 – chose not to interview with the SIU or release a copy of her incident notes.
In the morning of April 13, 2021, WO #1 and WO #2 attended an apartment on Shuter Street to apprehend its occupant – the Complainant. In effect at the time was a bench warrant that had been issued when the Complainant failed to appear at a court date and a Form 47, the latter issued by CAMH authorizing the return of the Complainant to the facility for being in violation of a community treatment order. WO #1 knocked on the door, and the Complainant answered by opening the door before quickly slamming it shut on the officers. Thereafter, the officers continued to knock and call out to the Complainant encouraging him to open the door, to no avail.
WO #1 and WO #2 sought advice from senior officers as to how to proceed. The deployment of the Mobile Crisis Intervention Team (MCIT) was discussed, but it was determined they were unavailable that day before 11:00 a.m. At about 8:00 a.m., WO #5 advised the officers that a Feeney warrant [4] would be sought, and that they should continue to monitor the door waiting for the arrival of additional officers and the issuance of the warrant.
SO #2 and SO #1 arrived to assist WO #1 and WO #2 at about 8:50 a.m. SO #2 kicked at the door to get the Complainant’s attention. After a period, the Complainant opened the door about halfway. He was holding a large knife.
There ensued a struggle at the doorway’s threshold in which SO #2 was being pulled into the apartment by the Complainant as SO #1, behind her, grabbed and tried to pull her away from the door. In the fracas, SO #2 ended up inside the apartment unit on her back. With the door still open, WO #1 fired his CEW in the direction of the Complainant standing by the doorway. One of the probes struck SO #1. WO #1 discharged his CEW a second time, again to no effect.
Shortly after the CEW discharges, with the door now closed and locked with only SO #2 and the Complainant inside, SO #1 fired his gun twice at the door. In and around the same time, SO #2 fired her gun twice at the Complainant from inside the apartment. The Complainant was struck three times – once each to the left and right arms, and once to the abdomen.
Following the second of SO #1’s shots, SO #2 yelled out that she was opening the door and then did so. The Complainant was on the kitchen floor of the apartment. SO #1, WO #1 and WO #2 entered the unit and provided first aid to the Complainant.
Paramedics soon attended the address and transported the Complainant to hospital.
In the morning of April 13, 2021, WO #1 and WO #2 attended an apartment on Shuter Street to apprehend its occupant – the Complainant. In effect at the time was a bench warrant that had been issued when the Complainant failed to appear at a court date and a Form 47, the latter issued by CAMH authorizing the return of the Complainant to the facility for being in violation of a community treatment order. WO #1 knocked on the door, and the Complainant answered by opening the door before quickly slamming it shut on the officers. Thereafter, the officers continued to knock and call out to the Complainant encouraging him to open the door, to no avail.
WO #1 and WO #2 sought advice from senior officers as to how to proceed. The deployment of the Mobile Crisis Intervention Team (MCIT) was discussed, but it was determined they were unavailable that day before 11:00 a.m. At about 8:00 a.m., WO #5 advised the officers that a Feeney warrant [4] would be sought, and that they should continue to monitor the door waiting for the arrival of additional officers and the issuance of the warrant.
SO #2 and SO #1 arrived to assist WO #1 and WO #2 at about 8:50 a.m. SO #2 kicked at the door to get the Complainant’s attention. After a period, the Complainant opened the door about halfway. He was holding a large knife.
There ensued a struggle at the doorway’s threshold in which SO #2 was being pulled into the apartment by the Complainant as SO #1, behind her, grabbed and tried to pull her away from the door. In the fracas, SO #2 ended up inside the apartment unit on her back. With the door still open, WO #1 fired his CEW in the direction of the Complainant standing by the doorway. One of the probes struck SO #1. WO #1 discharged his CEW a second time, again to no effect.
Shortly after the CEW discharges, with the door now closed and locked with only SO #2 and the Complainant inside, SO #1 fired his gun twice at the door. In and around the same time, SO #2 fired her gun twice at the Complainant from inside the apartment. The Complainant was struck three times – once each to the left and right arms, and once to the abdomen.
Following the second of SO #1’s shots, SO #2 yelled out that she was opening the door and then did so. The Complainant was on the kitchen floor of the apartment. SO #1, WO #1 and WO #2 entered the unit and provided first aid to the Complainant.
Paramedics soon attended the address and transported the Complainant to hospital.
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
The Complainant was shot and injured by two TPS officers in his apartment in Toronto on April 13, 2021. The officers – SO #1 and SO #2 – 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 either subject official committed a criminal offence in connection with the shooting.
Pursuant to section 34 of the Criminal Code, force used in the defence of oneself or another from a reasonably apprehended attack, actual or threatened, is legally justified if the force itself was reasonable in the circumstances. In assessing the reasonableness of the force in question, one is to look at 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. I am unable to reasonably conclude on the evidence that the discharge by SO #1 and SO #2 of their firearms was not authorized by section 34.
The involved officers, including SO #2 and SO #1, were lawfully placed at all times throughout their engagement with the Complainant. They were in the hallway by his apartment door seeking to enforce two lawful processes – a Form 47 under the Mental Health Act and a bench warrant – when the skirmish before the gunfire ensued. On this record, there is no suggestion of any unlawful entry by the officers onto private premises. [5]
SO #1 told SIU investigators that he fired his gun in a desperate effort to save SO #2’s life, which he feared was in imminent peril at the time. There is nothing in the record to cast doubt on the authenticity of the officer’s stated mindset. With respect to SO #2, there is no direct evidence bearing on her state of mind at the time she fired her weapon as she declined to provide a statement to the SIU, as was her right. That said, the circumstances surrounding SO #2’s discharges strongly suggest she was acting to protect her life – she had just been yanked into the apartment by a knife-wielding Complainant and was alone with him at the time of the gunfire. Moreover, the officer confided as much to WO #5 a short time after the incident while at hospital.
While the evidence of what precisely occurred in the apartment in the moments surrounding SO #2’s gunfire is scant, the little that is known does not suggest that the officer acted unreasonably in discharging her gun twice at the Complainant. Finding herself alone in a locked apartment with an armed and erratic the Complainant, it would appear that the officer was entitled to meet a lethal threat with lethal force of her own.
The real issue relates to the propriety of SO #1’s gunfire. At the time, the evidence establishes that the apartment door was closed. In effect, the officer was shooting blind into the apartment through the door, potentially placing the life of the very person he was trying to save – SO #2 – at risk, as well as any other person who might have been present in the unit.
On the other hand, if SO #1’s conduct was risky, I am satisfied it was a calculated risk. He had just seen SO #2 being dragged into the apartment, the door closed behind her, by an armed and violent Complainant. Having tried and failed to force open the door physically, the officer decided that he had no other option if he was going to save SO #2’s life than to fire his weapon in the direction he had last seen the Complainant and away from where he had observed SO #2 on the ground. Though the officer says he discharged his firearm within a second or two of the door closing, the evidence indicates that at least ten seconds had elapsed. Needless to say, that gap in time would have only increased the risk to SO #2 in the apartment of an errant discharge by SO #1 given the increased prospect of a change in her location. That said, I am mindful of the common law principle that officers embroiled in dangerous and volatile situations need not measure their responsive force to a nicety; what is required is a reasonable response, not an exacting one: R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. CA); R. v. Nasogaluak, [2010] 1 SCR 206. In the heat of the moment, with only seconds to decide and SO #2’s life hanging in the balance, the evidence falls short of a reasonable belief that the force used by SO #1 was disproportionate to the exigencies at hand.
For the foregoing reasons, there are no reasonable grounds to believe that either of SO #2 and SO #1 comported themselves other than lawfully throughout their engagement with the Complainant. [6] Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: August 11, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 34 of the Criminal Code, force used in the defence of oneself or another from a reasonably apprehended attack, actual or threatened, is legally justified if the force itself was reasonable in the circumstances. In assessing the reasonableness of the force in question, one is to look at 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. I am unable to reasonably conclude on the evidence that the discharge by SO #1 and SO #2 of their firearms was not authorized by section 34.
The involved officers, including SO #2 and SO #1, were lawfully placed at all times throughout their engagement with the Complainant. They were in the hallway by his apartment door seeking to enforce two lawful processes – a Form 47 under the Mental Health Act and a bench warrant – when the skirmish before the gunfire ensued. On this record, there is no suggestion of any unlawful entry by the officers onto private premises. [5]
SO #1 told SIU investigators that he fired his gun in a desperate effort to save SO #2’s life, which he feared was in imminent peril at the time. There is nothing in the record to cast doubt on the authenticity of the officer’s stated mindset. With respect to SO #2, there is no direct evidence bearing on her state of mind at the time she fired her weapon as she declined to provide a statement to the SIU, as was her right. That said, the circumstances surrounding SO #2’s discharges strongly suggest she was acting to protect her life – she had just been yanked into the apartment by a knife-wielding Complainant and was alone with him at the time of the gunfire. Moreover, the officer confided as much to WO #5 a short time after the incident while at hospital.
While the evidence of what precisely occurred in the apartment in the moments surrounding SO #2’s gunfire is scant, the little that is known does not suggest that the officer acted unreasonably in discharging her gun twice at the Complainant. Finding herself alone in a locked apartment with an armed and erratic the Complainant, it would appear that the officer was entitled to meet a lethal threat with lethal force of her own.
The real issue relates to the propriety of SO #1’s gunfire. At the time, the evidence establishes that the apartment door was closed. In effect, the officer was shooting blind into the apartment through the door, potentially placing the life of the very person he was trying to save – SO #2 – at risk, as well as any other person who might have been present in the unit.
On the other hand, if SO #1’s conduct was risky, I am satisfied it was a calculated risk. He had just seen SO #2 being dragged into the apartment, the door closed behind her, by an armed and violent Complainant. Having tried and failed to force open the door physically, the officer decided that he had no other option if he was going to save SO #2’s life than to fire his weapon in the direction he had last seen the Complainant and away from where he had observed SO #2 on the ground. Though the officer says he discharged his firearm within a second or two of the door closing, the evidence indicates that at least ten seconds had elapsed. Needless to say, that gap in time would have only increased the risk to SO #2 in the apartment of an errant discharge by SO #1 given the increased prospect of a change in her location. That said, I am mindful of the common law principle that officers embroiled in dangerous and volatile situations need not measure their responsive force to a nicety; what is required is a reasonable response, not an exacting one: R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. CA); R. v. Nasogaluak, [2010] 1 SCR 206. In the heat of the moment, with only seconds to decide and SO #2’s life hanging in the balance, the evidence falls short of a reasonable belief that the force used by SO #1 was disproportionate to the exigencies at hand.
For the foregoing reasons, there are no reasonable grounds to believe that either of SO #2 and SO #1 comported themselves other than lawfully throughout their engagement with the Complainant. [6] Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: August 11, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) These times are derived from the CEW’s internal clock, which are not necessarily synchronized with actual time. [Back to text]
- 2) 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]
- 3) Apprehension under section 33.4 of the Mental Health Act of a person who is under a community treatment order. [Back to text]
- 4) Obtained via the framework set out in section 529 and 529.1 of the Criminal Code, and named after the Supreme Court of Canada decision in R v Feeney, [1997] 2 SCR 13, a Feeney warrant authorizes the forcible entry by police officers into a dwelling-house to effect and arrest. [Back to text]
- 5) It appears that the officers were aware of the Complainant’s history of mental illness. Indeed, he had been flagged on police records as an emotionally disturbed person, which raises the question whether the MCIT ought to have been used in the Complainant’s apprehension. The MCIT brings together a specially trained police officer with a mental health professional to deal with calls for service involving emotionally disturbed persons. The evidence indicates that the MCIT was not available that day until 11:00 a.m., but of course this begs the question why the police simply did not wait until that time to engage the services of the team. No good reason was proffered in answer to that question. It might well have been the case that such a team would have found greater success in dealing peacefully with the Complainant. Be that as it may, it is to an extent speculation to conclude that the MCIT would have fared any better than the officers in question. Nor am I of the view that the officers were disentitled to the protection of section 34 even were I to conclude they acted precipitously in proceeding without the MCIT. [Back to text]
- 6) As I am satisfied that there is no reason to believe the gunfire fell outside the realm of legal justification per section 34 of the Criminal Code, I am similarly satisfied that WO #1’s CEW discharges, a lesser use of force that preceded the gunfire, were authorized in the defence of SO #2. [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.