SIU Director’s Report - Case # 21-OFP-181

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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.

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 the discharge of a firearm by the police at a 17-year-old male (the “Complainant”).

The Investigation

Notification of the SIU

On June 10, 2021, at 2:50 p.m., the North Bay Police Service (NBPS) contacted the Special Investigations Unit (SIU) and reported the following.

At 1:29 p.m., the NBPS received a 911 telephone call regarding a backyard trespasser who had pulled a handgun on a homeowner. Police officers responded and contained the area before requesting the assistance of the Emergency Response Team (ERT). The trespasser, the Complainant, was moving around, getting up and down, and then tucked the handgun into his waist band. An ERT police officer, the Subject Official (SO), discharged an Anti-Riot Weapon Enfield (ARWEN), striking the Complainant a few times. The Complainant was taken to the North Bay Regional Health Centre (NBRHC), and was thought to have possibly suffered a fractured nose and collar bone.

The Team

Date and time team dispatched: 06/10/2021 at 3:33 p.m.

Date and time SIU arrived on scene: 06/11/2021 at 10:00 a.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

17-year-old male interviewed, medical records obtained and reviewed

The Complainant was interviewed on June 11, 2021.


Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

The civilian witnesses were interviewed on June 14, 2021.

Subject Official

SO Interviewed, and notes received and reviewed

The subject official was interviewed on June 22, 2021.


Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

The witness officials were interviewed on June 18, 2021.


Evidence

The Scene

The incident took place in the area of Ski Club Road, North Bay. The Complainant was positioned at the rear of a property in the tall grass. The ARWEN was also discharged behind the residence. The setting was a suburban residential area with quarter-acre lots with bush and forest surrounding each lot.

Physical Evidence

The following items were seized by a Forensic Investigator:
ARWEN Cartridge Cases (x2);
• Conducted Energy Weapon (CEW) Probes (x3); and
ARWEN Projectile.

Forensic Evidence

CEW Discharge – Summary

WO #2
On June 10, 2021, WO #2 was issued a CEW. According to the CEW report, at 2:11:51 p.m., [1] WO #2’s CEW was “triggered”. The duration was 2.09 seconds in length and was from Cartridge One of the CEW. At 2:11:53 p.m., WO #2’s CEW was “triggered” again for 4.92 seconds and was from Cartridge Two.

Video/Audio/Photographic Evidence [2]

911 Telephone Communications

The following is a summary of the NBPS communications involved in this incident. The telephone calls commenced at 1:29 p.m. on June 10, 2021.


Caller #1 – CW #1

CW #1: “Yeah, I got a guy that is on my property, he’s intoxicated, he won’t leave. [address on] Ski Club Road. He’s given a name… but he’s out of it, he doesn’t make sense”;
CW #1: “He just attacked me, punched my face, knocked me down, ripped my shirt”;
NBPS: “…leave that male alone until the officers get there so it won’t get escalated”;
NBPS: “Step away from him please, I don’t want it to get worse before the officers get there please”;
CW #1: “He’s pulling a weapon”;
NBPS: “What kind of weapon, listen, what kind of weapon”;
CW #1: “I think it’s a gun”;
NBPS: “What type of gun”;
CW #1: “He’s coming to the front door”;
CW #1: “I’m in the house”;
NBPS: “What kind of gun, is it a handgun”;
CW #1: “Handgun”;
CW #1: “It’s black, looks like a 45 calibre”;
NBPS: “I need your name”;
CW #1: [provides name and phone number];
NBPS: “How old was the male”;
CW #1: “17”; and
CW #1: “He wouldn’t leave and I said I’m calling the cops. Soon as I grabbed the phone and started talking to you guys that’s when he attacked me. He’s bleeding from the nose”.

Caller #2

• Caller: “I’m right across the street with this guy with a gun, he’s knocking on my door trying to get in”;
NBPS: “Okay, guy with a gun trying to get in at [address on] Ski Club”;
• Caller: “He’s right across the street”;
NBPS: “Can you tell me what type of gun it is”;
• Caller: “I’m not sure, it’s a black pistol, he’s walking around the neighborhood right across the street from us”; and
NBPS: “We are on our way”.

Caller #3

• Caller: “Yeah, there’s a guy with a gun next door at my neighbor’s house”;
• Caller: “I don’t know, he’s next door, he’s walking around with a gun”; and
NBPS: “Okay, we have officers on the way”.


Police Radio Transmissions

• A dispatcher directed police officers to attend an address on Ski Club Road for a man banging on the door with a gun;
• Officer #1 advised that police officers could see him in the backyard;
• A police officer advised that they were calling out to him and he had the gun to his head;
• A police officer requested that WO #3 attend with the ARWEN and shield;
• Dispatch called WO #3 to advise they had a man in a backyard with a gun to his head. The police officers requested he bring an ARWEN and a shield. The man was the Complainant;
WO #2 stated that on his signal the ARWEN would be discharged; and
WO #2 asked for the paramedics to approach and that he would give the Staff Sergeant a call.

NBPS Negotiation Summary Narrative

The following is a summary of the negotiation audio recording received from the NBPS for this incident on June 10, 2021;
• Officer #1: “Put it down, we don’t want to hurt you... put the gun down… put the gun down bud, put it down”;
• Officer #1: “…put the gun down. [He’s put it in the front of his pants now]. Good job… We just need you to put it on the ground”;
• Officer #2: “…look at me for a second okay. My name is… I’m here to talk with you, I don’t want to hurt you, I know you don’t want to hurt yourself okay. You got enough sense today, lets figure this out alright, let’s just talk about it”;
• Officer #2: “… are you okay? [He could be pulling the knife or the gun …]”;
• Officer #2: “…I’m with the police everything is good, it’s okay. It looks like you’re hurt in the face, let’s get that checked out okay”;
• The Complainant: “Shoot me”;
• Officer #2: “No, we don’t want to do that… look at me”;
• The Complainant: “Do it”;
• Officer #2: “…look at me…”;
• Officer #2: “It’s hard for you and me to talk when you have a gun with you”;
• Officer #2: “I’m sorry to hear that it’s not right. You can’t reach for your back pocket like that. I can’t have a discussion with a gun”;
• The Complainant: “I’m not being arrested yet until you shoot me”;
• The Complainant: “I’ve got all these assholes to attack me, so what I fire something, they turn into big pussies”;
• The Complainant: “I’m trying to die; I’m trying to die and you don’t understand. Have you ever been addicted to anything?”
• Officer #2: “[I don’t have a good location here.] You’re right, I haven’t been addicted and I don’t know what it’s like. [Where’s the gun, it’s not in the back of his pants anymore.] Let’s talk … let’s talk about housing”;
• Officer #2: “I want to treat you with respect, how do we do that”;
• The Complainant: “Blow my head”;
• Officer #2: “No, I don’t want to do that, No, I don’t want to do that”;
• The Complainant: “Then I’m sorry officer, I know every fucking escape route there is out of here”;
• Officer #2: “I Just want to talk with you, I don’t want you to run anywhere”;
• The Complainant: “Let’s come to an agreement”;
• Officer #2: “Let’s talk about that. What type of an agreement do you want to come to?”
• The Complainant: “Shoot me”;
• The Complainant: “Shoot first”;
• Officer #2: “No, no, I want to help you, I want to help you…”;
• Officer #2: “I’m here to talk to you about what’s happening today”;
• The Complainant: “I don’t know man; all I know is I haven’t got my message out”;
• Officer #2: “Okay, let’s talk about that. [He’s coming closer to you guys]… stay right there, show me your hands, right now, hands up, get your hands up. Get down on your knees, do it now. Get down on your knees. Get down on your knees. [He’s going to shoot, get down quick, quick, quick.]”; and
WO #2: “You’re under arrest. Where’s his gun, where’s the gun, everybody stop.”

Cellular Telephone Video

The following is a summary of a cellular phone video taken by a civilian witness:
• The video showed a man [now known to be the Complainant], dressed in black clothing, on the front porch of a house. He was holding a black handgun in his left hand. The Complainant was carrying a backpack with his right hand;
• The Complainant stumbled backward off the front porch, yelling and pointing the gun at the front door;
• The Complainant walked to the side of the house, away from the front lawn; and
• The video ended.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from the NBPS between June 11 and 22, 2021:
ERT Training Certificate 2021 – the SO;
• Use of Force Training Certificate 2021 – the SO;
• Crown Brief Synopsis;
• General Occurrence Report;
• Charge List;
• Event Details Report;
• Intergraph Computer-assisted Dispatch Printout;
• Occurrence List;
• Supplementary Reports;
SIU Disclosure Letter;
• Notes-WO #3;
• Notes-WO #2;
• Notes-WO #1;
• Notes-the SO;
• Property Seizure Report;
• Use of Force Reports (x9);
• Cell phone video taken by a civilian witness;
• Communications recordings;
• Negotiations recordings;
• Scene photographs; and
• Witness statements (x3).

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from other sources on August 4, 2021:
• Medical Records – NBRHC.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant, the SO, and several police officers who witnessed the shooting. The investigation was also assisted by a review of the police communications recordings of the incident.

Beginning at about 1:30 p.m. of June 10, 2021, 911 calls were received by the NBPS from residents of Ski Club Road, North Bay. The calls concerned a male – the Complainant – who appeared intoxicated and had a handgun. One of the callers reported having been assaulted by the Complainant when he confronted him on his (the caller’s) property. Officers were dispatched to the area.

The SO was among the officers who responded to the scene in the area of Ski Club Road. The Complainant was in the backyard of the property a distance from the back of the house. At that time, Officer #1 was speaking with the Complainant, directing him to drop the gun. The Complainant replied that he wanted police to shoot him and that he had nothing to live for. Officer #1 attempted to de-escalate the situation by emphasizing that the police were not there to hurt the Complainant. The Complainant was not receptive and refused to drop the gun. Instead, he repeatedly pointed it at his head as if about to shoot himself. The discussions continued along the same lines after a trained negotiator took over from Officer #1 at about 1:50 p.m. In time, upon consultation with WO #2, it was decided that the SO, a member of the NBPS ERT, would deploy an ARWEN at the Complainant if the opportunity presented itself.

As the negotiations continued, it was reported by an officer on scene that the Complainant had placed the gun he was holding in the back waistband of his pants. The SO took aim with his ARWEN and fired once at the Complainant. The shot missed.

Shortly after the ARWEN discharge, another member of the ERTWO #3 – arrived on scene, bringing with him a ballistic shield. With the shield at their disposal, it was decided that the SO, WO #3 and WO #2 would attempt to close the distance on the Complainant, putting the SO in a better position to hit the Complainant with an ARWEN discharge. WO #2 and WO #3, who would carry the shield, were to have their CEW and firearm, respectively, at the ready.

The officers approached the Complainant from the east side of the property. At a distance of six to nine metres, the SO discharged his ARWEN again at the Complainant. The round struck the Complainant in the upper chest and he fell to the ground. WO #3, WO #2 and the SO rushed toward the Complainant, and WO #2 fired his CEW twice. The second discharge appeared to immobilize the Complainant, and he was shortly taken into custody and handcuffed. The time was about 2:10 p.m.

The Complainant was searched while on the ground and a “firearm” was located at the bottom of his right pant leg. The firearm was, in fact, a starter’s pistol.

The Complainant was taken to hospital after the incident. He had not suffered any serious injuries.

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 June 10, 2021, the Complainant was the target of two ARWEN discharges by a NBPS officer shortly before his arrest. The SO was the officer who discharged the ARWEN and, therefore, identified as the 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 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. The evidence establishes that the Complainant, though not of sound mind at the time, had assaulted a resident of a home on Ski Club Road and then brandished an apparent firearm in his direction. He was clearly subject to arrest.

With respect to the use of the ARWEN, I am unable to reasonably conclude that it amounted to excessive force. The SO had good reason to believe that the Complainant had a functioning firearm at the time; the officer could see what appeared to be a handgun in the Complainant’s possession. There was also cause to fear that the Complainant might use the weapon at any moment to harm himself or others. The Complainant was intoxicated at the time, suicidal, and behaving irrationally. In the circumstances, the use of the ARWEN to neutralize the Complainant at a distance makes sense, particularly as negotiations were proving unproductive. If successful, the Complainant’s temporary incapacitation would give the officers enough time to safely take him into custody. And that is precisely what occurred, albeit with the help of a CEW deployed by WO #2. On this record, the use by the SO of less-lethal force to meet what reasonably appeared at the time to be a threat of lethal force was a proportionate response to the situation at hand.

For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than lawfully throughout his engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: October 6, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The times are derived from the internal clock of the weapon, which is 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]

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.