SIU Director’s Report - Case # 21-PFP-142
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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 a firearm discharge at a 22-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 a firearm discharge at a 22-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On May 5, 2021, at 3:12 p.m., the Ontario Provincial Police (OPP) notified the SIU of the following.The OPP reported that on May 5, 2021, at 2:50 p.m., members of the OPP Emergency Response Team (ERT) and North Bay Police Service (NBPS) ERT surrounded the Complainant, who was in a car in a parking lot at an address on Lakeshore Drive, North Bay. The Complainant was wanted on a warrant for armed robbery, prohibited firearm and fail to comply. The Complainant refused to exit his car and one of the OPP ERT members discharged an Anti-Riot ENfield (ARWEN) at the back window of the car. The Complainant put the car in park, exited and gave up. He did not sustain any injuries and was arrested.
The Team
Date and time team dispatched: 05/05/2021 at 3:59 p.m.Date and time of SIU response: 05/05/2021 at 8:00 p.m.
Number of SIU Investigators assigned: 5
Affected Person (aka “Complainant”):
22-year-old male, interviewed,The Complainant was interviewed on May 5, 2021.
Civilian Witnesses
CW Interviewed The civilian witness was interviewed on May 5, 2021.
Subject Officials
SO Declined interview, as is the subject official’s legal right. Notes received and reviewed. Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on May 11, 2021 and May 17, 2021.
Evidence
The Scene
The incident occurred in the driveway north of a business on Lakeshore Drive, North Bay. This area was a busy commercial area with typically heavy vehicle and foot traffic. Police Communications
The following is a summary of the information contained in the Computer-Aided Dispatch (CAD) report of the incident.At 2:28:24 p.m., a radio transmission was recorded indicating that the Complainant had just been seen entering the passenger seat of pickup truck with the CW in the driver’s seat.
At 2:28:50 p.m., a radio transmission was recorded indicating that the pickup truck was heading to Lakeshore Drive.
At 2:29:07 p.m., a radio transmission was recorded indicating that the truck was on the northside of the parking lot of a business.
At 2:32:22 p.m., a radio transmission was recorded indicating that the Complainant was in custody.
Video/Audio/Photographic Evidence
The SIU searched for audio, video and/or photographic records of relevance, with negative results. Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the OPP North Bay Detachment and NBPS:• CAD Chronology;
• Communication recordings;
• Crown Brief Synopsis – the Complainant;
• General Occurrence Report;
• The SO - ARWEN Training Record;
• NBPS – Operations / Incident Plan;
• NBPS Event Details;
• NBPS Forensic Identification Supplementary Report;
• NBPS List of Involved Officers;
• Notes of SO and WOs;
• Occurrence Summary; and
• Use of Force Report (x2).
Incident Narrative
The following scenario emerges on the evidence collected by the SIU, which included interviews with the Complainant, a civilian eyewitness, and officers who took part in the Complainant’s arrest. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.
In the afternoon of May 5, 2021, the SO was part of an OPP ERT team that had been brought in to assist NBPS officers in arresting the Complainant. The Complainant was wanted for a number of violent and firearm-related offences. The Complainant was also considered a high-risk subject as the police were in receipt of information that he had with him a firearm.
The Complainant, while a passenger in a pickup truck operated by an associate, the CW, was tracked a short distance from a residence on Lee Avenue to a parking lot at Lakeshore Drive. Just as the CW was about to turn onto Lakeshore Drive from the driveway that ran along the north side of a restaurant, his truck was surrounded by officers in police vehicles.
WO #2, a NBPS officer, was among these officers. He had pulled his vehicle to a stop at an angle toward the driver’s door of the vehicle, after which he exited with a C8 rifle pointed at the CW. The officer ordered the CW to shut off the engine and show his hands. The CW complied.
The SO was among the OPP officers who also converged on the pickup truck. He had stopped his vehicle a distance behind the truck and approached it on foot with an ARWEN at the ready. The Complainant remained in the passenger seat despite repeated commands that he exit. The SO took aim at the passenger door window and discharged two rounds from his ARWEN, both of which bounced off the truck without penetrating it. The officer re-positioned himself and fired two additional rounds, which partially broke the window.
Following the break of the window, the Complainant exited the truck and was handcuffed without further incident. Neither he, nor the CW, suffered any serious physical injury in the course of the incident.
In the afternoon of May 5, 2021, the SO was part of an OPP ERT team that had been brought in to assist NBPS officers in arresting the Complainant. The Complainant was wanted for a number of violent and firearm-related offences. The Complainant was also considered a high-risk subject as the police were in receipt of information that he had with him a firearm.
The Complainant, while a passenger in a pickup truck operated by an associate, the CW, was tracked a short distance from a residence on Lee Avenue to a parking lot at Lakeshore Drive. Just as the CW was about to turn onto Lakeshore Drive from the driveway that ran along the north side of a restaurant, his truck was surrounded by officers in police vehicles.
WO #2, a NBPS officer, was among these officers. He had pulled his vehicle to a stop at an angle toward the driver’s door of the vehicle, after which he exited with a C8 rifle pointed at the CW. The officer ordered the CW to shut off the engine and show his hands. The CW complied.
The SO was among the OPP officers who also converged on the pickup truck. He had stopped his vehicle a distance behind the truck and approached it on foot with an ARWEN at the ready. The Complainant remained in the passenger seat despite repeated commands that he exit. The SO took aim at the passenger door window and discharged two rounds from his ARWEN, both of which bounced off the truck without penetrating it. The officer re-positioned himself and fired two additional rounds, which partially broke the window.
Following the break of the window, the Complainant exited the truck and was handcuffed without further incident. Neither he, nor the CW, suffered any serious physical injury in the course of the incident.
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 May 5, 2021, an OPP officer discharged his ARWEN rifle at the Complainant in North Bay in the course of the Complainant’s arrest. The officer in question – the SO – was identified as the subject official for purposes of the ensuing SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with his use of the ARWEN.
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. There is no suggestion raised in the evidence that the police were without a lawful basis to effect the Complainant’s arrest for serious criminal offences.
With respect to the SO’s four ARWEN discharges, I am unable to reasonably conclude that they constituted excessive force. The officers involved in the operation to arrest the Complainant had cause to be concerned that the Complainant was armed with a firearm. They had received intelligence reports to that effect and were aware of the nature of the offences that the Complainant was alleged to have committed. Indeed, a revolver was recovered from the pickup truck in the centre console after the Complainant’s arrest. In the circumstances, confronted with a potentially lethal threat, I am satisfied that the SO acted reasonably when he resorted to his less-lethal ARWEN in an attempt to neutralize the Complainant. The tactic was successful; though the Complainant was not struck, he was persuaded to exit the pickup truck and surrender peacefully shortly after the third and fourth rounds were discharged, breaking the passenger door window.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully throughout his engagement with the Complainant, there is no basis for proceeding with criminal charges against the officer. The file is closed.
Date: September 1, 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. There is no suggestion raised in the evidence that the police were without a lawful basis to effect the Complainant’s arrest for serious criminal offences.
With respect to the SO’s four ARWEN discharges, I am unable to reasonably conclude that they constituted excessive force. The officers involved in the operation to arrest the Complainant had cause to be concerned that the Complainant was armed with a firearm. They had received intelligence reports to that effect and were aware of the nature of the offences that the Complainant was alleged to have committed. Indeed, a revolver was recovered from the pickup truck in the centre console after the Complainant’s arrest. In the circumstances, confronted with a potentially lethal threat, I am satisfied that the SO acted reasonably when he resorted to his less-lethal ARWEN in an attempt to neutralize the Complainant. The tactic was successful; though the Complainant was not struck, he was persuaded to exit the pickup truck and surrender peacefully shortly after the third and fourth rounds were discharged, breaking the passenger door window.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully throughout his engagement with the Complainant, there is no basis for proceeding with criminal charges against the officer. The file is closed.
Date: September 1, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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.