SIU Director’s Report - Case # 21-OFP-210
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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 two unknown individuals.
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 two unknown individuals.
The Investigation
Notification of the SIU
On July 6, 2021 at 7:10 a.m., the Waterloo Regional Police Service (WRPS) contacted the Special Investigations Unit (SIU) and reported the following.
On July 6, 2021 at approximately 6:00 a.m., WRPS officers were investigating a stolen vehicle in the area of Grovehill Crescent, Kitchener. There was a man and woman in the stolen vehicle. The man and woman would not exit the vehicle. The police officers attempted to extract the woman in the passenger seat by smashing the window. The man in the driver’s seat put the vehicle in gear and attempted to flee; at one point, he drove directly at one of the police officers. The police officer drew his pistol and fired two rounds into the stolen truck. The driver struck some parked cars but made good his escape. It was unknown if either occupant of the stolen truck had been injured.
The Team
Date and time team dispatched: 07/06/2021 at 8:47 a.m.Date and time SIU arrived on scene: 07/06/2021 at 10:30 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Civilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
The civilian witnesses were interviewed on July 6, 2021.
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO Interviewed The witness official was interviewed on July 8, 2021.
Evidence
The Scene
The incident took place on Grovehill Crescent, Kitchener. The immediate area primarily faced in a north and south direction and was a residential street, consisting of single-family dwellings. There were three vehicles within the confines of the immediate area. There was broken vehicle glass observed directly in front of a home on Grovehill Crescent and tire marks on the east side of the road, that proceeded in a northwest direction. 
Figure 1 - The scene on Grovehill Crescent, Kitchener, with evidence markers indicating where tire marks were found.
A marked WRPS Ford Explorer, now known to be operated by the SO, was positioned in a southwest direction with damage to the front right corner and push bar.
Figure 2 - Damage to the front of the SO's police vehicle.
Two .40 calibre cartridge cases were located in the northbound lane of Grovehill Crescent and north of the vehicle operated by the SO.
Figure 3 - Two cartridge cases (covered by orange pylons) located north of the SO's police vehicle.
Figure 4 - One of the cartridge cases located at the scene.
A grey, Mercedes C300 was positioned in a southwest direction, on the west side of the road. The Mercedes had obvious damage to the front left corner and right rear corner.
Figure 5 - Damage to the front of the Mercedes.
Figure 6 - Damage to the rear of the Mercedes.
Finally, a gray Jeep Wrangler Sport was positioned in a northwest direction on the west side of the road and north of the Mercedes. The Jeep had damage to the front and had the front right wheel on the west side curb.
Figure 7 - Damage to the front of the Jeep.
Recovered Vehicle - Dodge Ram Examination
The vehicle was recovered by members of the West Grey Police Service (WGPS) behind a rural hydro station, located at 032311 Sideroad 15, Neustadt. Upon the arrival of the WGPS, the vehicle was engulfed in flames. A WGPS officer had the vehicle transported by a towing company prior to his knowledge that the SIU had initiated an investigation.
Figure 8 - The hydro station in Neustadt where the stolen vehicle was located.
Further examination by the SIU forensic investigative services concluded that the vehicle involved in the incident was a Dodge Ram 4x4 extended cab. The vehicle appeared to be grey in colour; however, due to the immense fire damage to the vehicle, the colour could not be confirmed. The Vehicle Identification Number had been damaged or removed. The vehicle’s interior and exterior were heavily damaged by fire.
Figure 9 - The Dodge truck with heavy fire damage.
Figure 9 - The Dodge truck with heavy fire damage.
There was a bullet strike to the top of the front right fender, and the right front tire was damaged and flattened by fire.
Figure 10 - The bullet strike to the front right fender with a rod placed to demonstrate trajectory.
Figure 10 - The bullet strike to the front right fender with a rod placed to demonstrate trajectory.
Further analysis of the front right fender concluded:
The interior dash compartment was assessed for evidence of a projectile with negative results. It should be borne in mind, however, that the entire dash was heavily fire-damaged.
Physical Evidence
The following items were seized on July 6, 2021. Items 4 through 6 were obtained directly from WRPS. All remaining items were seized at the scene.
Figure 11 - The SO's Glock pistol.
Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained audio and video records of relevance, as set out below.
WRPS 911 Calls
On July 6, 2021 at 5:34 a.m., WRPS received a call concerning a suspicious vehicle parked in front of a home on Grovehill Crescent, Kitchener.
A man subsequently reported he was involved in a hit and run accident at the corner of Clinton Walkers Road and Highway 7/8. The 911 call was transferred to the Ontario Provincial Police (OPP) as the accident occurred on the highway. The OPP call-taker took over the call. The man was unable to provide the licence plate for the black Dodge Ram pickup that struck his vehicle. The black Dodge Ram pickup sustained right front bumper damage, and the man’s silver Hyundai Elantra had been struck on the right rear corner, but it was still operable.
Another man reported he had an update for the black Dodge Ram pickup. At 6:30 a.m., one of his drivers noticed the black Dodge Ram pickup westbound on highway 8 headed towards Shakespeare. His driver was unable to obtain a licence plate as the black Dodge Ram pickup drove on the shoulder of the road speeding past other drivers on the wrong side of the roadway.
WRPS Radio Communications
July 6, 2021 – 5:15 a.m. to 4:00 p.m.
Cellular Telephone Video/Closed-circuit Television (CCTV)
On July 8, 2021, WRPS provided the SIU videos received from members of the public.
The two cellular phone recordings captured were publicly posted on Facebook. The following is a summary.
Recording #1 (19 seconds)
Recording #2 (20 seconds)
A screen shot of the cellphone indicated the video was captured at 6:06 a.m. on Grovehill Crescent, Kitchener.
Facebook Video
The following is a summary of a Facebook video of the incident.
CCTV Footage
On July 6, 2021 a canvass was conducted on Grovehill Crescent. A motion detector camera was located and the SIU received three clips from this camera. Only two video clips were summarized and deemed relevant. It was noted that the video clips were not time stamped but provided a time range as reflected in the file title.
Clip One
Clip Two
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the WRPS:
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources:
• A bullet strike was located 93 cm up from the ground;
• The bullet strike was 41 cm front of the front door seam of the passenger door;
• The bullet strike possessed a 43 degree right to left angle; and
• The bullet strike possessed a 5 degree descending angle.
The interior dash compartment was assessed for evidence of a projectile with negative results. It should be borne in mind, however, that the entire dash was heavily fire-damaged.
Physical Evidence
The following items were seized on July 6, 2021. Items 4 through 6 were obtained directly from WRPS. All remaining items were seized at the scene.1. Portion of front passenger window tinted
2. .40 cal S&W cartridge case
3. .40 cal S&W cartridge case
4. Glock 22 .40 calibre pistol
5. .40 cal S&W cartridge case – breech
6. Glock .40 magazine (15 capacity)
Figure 11 - The SO's Glock pistol.
Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained audio and video records of relevance, as set out below.WRPS 911 Calls
On July 6, 2021 at 5:34 a.m., WRPS received a call concerning a suspicious vehicle parked in front of a home on Grovehill Crescent, Kitchener. A man subsequently reported he was involved in a hit and run accident at the corner of Clinton Walkers Road and Highway 7/8. The 911 call was transferred to the Ontario Provincial Police (OPP) as the accident occurred on the highway. The OPP call-taker took over the call. The man was unable to provide the licence plate for the black Dodge Ram pickup that struck his vehicle. The black Dodge Ram pickup sustained right front bumper damage, and the man’s silver Hyundai Elantra had been struck on the right rear corner, but it was still operable.
Another man reported he had an update for the black Dodge Ram pickup. At 6:30 a.m., one of his drivers noticed the black Dodge Ram pickup westbound on highway 8 headed towards Shakespeare. His driver was unable to obtain a licence plate as the black Dodge Ram pickup drove on the shoulder of the road speeding past other drivers on the wrong side of the roadway.
WRPS Radio Communications
July 6, 2021 – 5:15 a.m. to 4:00 p.m.• The WO advised police communications that the truck was occupied by two people;
• Communications advised a police officer, believed to be the SO, to head towards the incident and noted they would be the closest;
• The WO asked the SO to come in on the north end of Grovehill Crescent and approach the Dodge Ram pickup from the front. The WO would move up to block the Dodge Ram pickup when the SO arrived;
• An unknown police officer announced, “Truck just struck our cars”;
• Communications asked the WO if the truck was taking off;
• Unknown police officer advised, “Vehicle fleeing”;
• A police officer acknowledged the Dodge Ram pickup vehicle was headed back towards Seabrook Drive;
• The SO advised shots were fired;
• The WO advised he was going to check south towards Huron Road;
• A police officer inquired who fired shots, and asked whether it was the suspects?
• The SO replied, “Negative”;
• Communications asked the SO if Emergency Medical Services (EMS) was required. The SO advised EMS was not required at that time;
• The WO advised he lost sight of the Dodge Ram pickup;
• The WO advised communications his lights and siren were off, and he was driving the speed limit; and
• The SO advised that the Dodge Ram pickup would have heavy front-end damage, as it had damaged his police vehicle and another vehicle on the street.
Cellular Telephone Video/Closed-circuit Television (CCTV)
On July 8, 2021, WRPS provided the SIU videos received from members of the public. The two cellular phone recordings captured were publicly posted on Facebook. The following is a summary.
Recording #1 (19 seconds)
• The cell phone footage was captured outside the front yard of a home on Grovehill Crescent. The video was captured just around the corner from the incident. A tree and two parked vehicles partially blocked the view;
• A police officer [now known to be the SO] stood on the street. There were two parked vehicles (now known to be a Mercedes Benz and a Jeep) parked close to the corner of Grovehill Crescent;
• Tires were heard squealing, and a grey Dodge pickup reversed. The WO moved out of view as the SO moved forwards towards the grey Dodge pickup;
• The grey Dodge pickup drove forwards as a police officer yelled, “Stop the car”;
• The SO moved back quickly from his position on the roadway as the grey Dodge pickup tires squealed, and accelerated quickly forwards;
• Two gunshots were fired by the SO as the grey Dodge pickup drove towards him; and
• The grey Dodge pickup accelerated away on Grovehill Crescent past the house from which the video footage was captured.
Recording #2 (20 seconds)
A screen shot of the cellphone indicated the video was captured at 6:06 a.m. on Grovehill Crescent, Kitchener.
• A WRPS SUV was parked on the opposite side of the road, positioned at an angle with the front end pointed slightly towards the centre of the roadway;
• The SO stood at the rear of the SUV police vehicle;
• A grey Dodge pickup, with its headlights on, was near the front end of the SUV police vehicle;
• A person [now known to be the WO] stood on the opposite side of the roadway near the curb in front of a parked vehicle (now known to be a Mercedes Benz). The brake lights of the Mercedes Benz were on;
• There was rear-end damage visible on the Mercedes Benz. The Mercedes Benz was on a slight angle - the front-end angled towards the curb;
• The WO’s police vehicle was visible parked facing north and a distance behind the SO’s police vehicle;
• The grey Dodge pickup was on the opposite side of the road of the police vehicles, its headlights on;
• The SO stood on the roadway with his back to camera view by the passenger side of the pickup truck, within a metre of the rear door of his police vehicle;
• The WO stood on the opposite side of the road on the grass at the curbed edge with his handgun drawn, pointed at the grey Dodge pickup;
• At 3 seconds, the grey Dodge pickup drove forwards as a police officer yelled, “Stop the car”;
• At 4 seconds, both the SO and WO pointed their handguns at the grey Dodge Ram;
• The WO lowered his handgun as the grey Dodge Ram drove passed him;
• The SO began to step back;
• The grey Dodge Ram squealed the tires and drove towards the SO;
• The SO moved quickly backwards towards his police vehicle to avoid being struck;
• At 5 seconds, the SO continued to back-up and fired his handgun as the grey pickup approached him. He was standing off to the side of the rear bumper of his police vehicle when he fired two rounds;
• At 6 seconds, the SO continued backing up and stood at the rear of his police vehicle after the grey Dodge pickup passed him. The WO stood on the roadway near the curb on the opposite side of the road;
• The grey Dodge pickup rounded the corner on Grovehill Crescent as it fled the area;
• The grey Dodge pickup had dark tinted windows; and
• The SO and WO walked towards their police vehicles.
Facebook Video
The following is a summary of a Facebook video of the incident.
• The SO stood on the road, facing south in the view between a Jeep and Mercedes;
• There was a black pickup truck facing north on Grovehill Crescent that reversed south on the street with a uniformed police officer [now known to be the WO] on the driver side of the truck, walking south with the truck as it reversed;
• A police vehicle was parked north on the east side of Grovehill Crescent;
• The SO shouted, “Get out of the car”; and
• The pickup truck accelerated forwards towards the SO, who backed up out of view. The pickup truck continued towards the SO, and two shots were heard. The pickup truck accelerated away westbound on Grovehill Crescent.
CCTV Footage
On July 6, 2021 a canvass was conducted on Grovehill Crescent. A motion detector camera was located and the SIU received three clips from this camera. Only two video clips were summarized and deemed relevant. It was noted that the video clips were not time stamped but provided a time range as reflected in the file title.
Clip One
• July 6, 2021, between 4:22 a.m. and 4:24 a.m., a dark-coloured pickup truck parked on the east side of Grovehill Crescent.
Clip Two
• July 6, 2021, from 6:01 a.m. until 6:07 a.m., a marked WRPS police SUV [now known to be operated by the WO] passed the camera, travelling east and then north on the street.
• The WO parked his police vehicle on the east side of Grovehill Crescent, south of the pickup truck. There was a driveway between the two vehicles. Both rear lights of the police cruiser were on.
• The WO’s police cruiser moved up behind the parked pickup truck. A second WRPS police SUV approached south on the street and stopped at the front end of the pickup truck [now known to be operated by the SO].
• The WO exited his police cruiser and walked up to the driver door of the pickup truck.
• The rear brake lights on the pickup truck turned on. The WO yelled, “Hey turn off the car, show me your hands.” A banging sound was heard.
• The WO yelled, “Get out of the car, get out of the car man.”
• The pickup truck reversed into the front end of the WO’s police cruiser, pushing it backwards. The WO yelled, “Get out of the car, get out of the car, man.”
• The pickup truck moved forwards, hitting the front end of the SO’s police cruiser. The pickup truck then crossed the road and struck a car parked on the west side of the street.
• The pickup truck reversed and stopped. The WO yelled, “Get out of the car.” The pickup truck accelerated northbound, and two gunshots were heard. The SO and WO were not visible due to the location of trees.
• The WO returned to his police vehicle and subsequently followed the pickup truck.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the WRPS:• 911/Radio Communications;
• Facebook posts;
• Continuity Lists for Exhibits;
• Evidence List;
• General Report;
• Notes of the WO and an undesignated officer;
• Training Record for the SO;
• Computer-assisted Dispatch Event;
• Will-state of the undesignated officer;
• Investigative Photos;
• WRPS witness statement;
• WRPS BWC recording; and
• WRPS Policy-Use of Force.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: • CCTV footage from Grovehill Crescent
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the WO (present at the time of the shooting) and a number of civilian eyewitnesses, as well as video recordings from cell phones and security cameras that captured much of the incident. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
At about 5:30 a.m. of July 6, 2021, the WRPS received a call about a suspicious vehicle parked in front of a home on Grovehill Crescent, Kitchener. The vehicle – a pickup truck – was unfamiliar to the caller.
The WO was dispatched to investigate and arrived at the location at about 6:00 a.m. The pickup truck was parked facing north along the east side of the road. The officer stopped his vehicle behind the truck facing north, exited and approached the driver’s door, and observed that there were two people in the front seats who appeared to be sleeping – a male in the driver’s seat and a female in the passenger’s seat. By this time, the officer had been informed by the police communications centre that the vehicle had been reported stolen. Returning to his cruiser – a marked SUV – the WO decided to wait for the assistance of an additional officer before approaching the truck’s occupants again.
The SO was also dispatched to the scene and arrived shortly after the WO. He parked his cruiser – a marked SUV – nose-to-nose with the truck. With that done, the WO moved his SUV to close the gap with the rear of the truck as well. The plan was to pin the vehicle and prevent it from escaping should the driver attempt to flee.
With their cruisers in place, the WO approached the driver’s door as the SO approached the front passenger’s door. The male driver awoke as the WO neared and turned on the engine of the pickup, placing the truck in gear. The WO shouted at the driver to stop the car. The officer tried to open the door, but it was locked, so he smashed out its window with his baton. On the other side of the car, the SO was attempting to do the same thing – break the passenger side window.
Once the vehicle was in gear, the driver of the truck reversed, smashing into the front end of the WO’s cruiser, and moving it a distance. He then accelerated forwards and crashed into the SO’s vehicle, also moving it. The impacts created enough space such that the driver was able to continue forwards and left past the SO’s vehicle. As it did so, the truck struck the front end of a Mercedes Benz that had been parked facing south on the other side of the road. The rear of the Mercedes Benz, in turn, was pushed into a Jeep vehicle parked behind it. By this time, both officers had their guns out and pointed at the truck, the WO off the driver’s side of the vehicle and the SO off the passenger’s side. They continued to yell at the driver to stop the vehicle.
Following the impact with the Mercedes Benz, the truck reversed a short distance before straightening out and accelerating forwards again. From a position north and east of the vehicle, the SO fired his gun twice in rapid succession at the truck as it drove in his direction. The truck continued north past the SO and then west on Grovehill Crescent, after which, following a brief pursuit by the WO, it made good its escape.
The male and female persons inside the pickup truck were not identified.
Only one of the two rounds fired by the SO appears to have struck the vehicle. The bullet impacted the forward passenger side panel of the vehicle, above the front right tire, at an acute angle.
At about 5:30 a.m. of July 6, 2021, the WRPS received a call about a suspicious vehicle parked in front of a home on Grovehill Crescent, Kitchener. The vehicle – a pickup truck – was unfamiliar to the caller.
The WO was dispatched to investigate and arrived at the location at about 6:00 a.m. The pickup truck was parked facing north along the east side of the road. The officer stopped his vehicle behind the truck facing north, exited and approached the driver’s door, and observed that there were two people in the front seats who appeared to be sleeping – a male in the driver’s seat and a female in the passenger’s seat. By this time, the officer had been informed by the police communications centre that the vehicle had been reported stolen. Returning to his cruiser – a marked SUV – the WO decided to wait for the assistance of an additional officer before approaching the truck’s occupants again.
The SO was also dispatched to the scene and arrived shortly after the WO. He parked his cruiser – a marked SUV – nose-to-nose with the truck. With that done, the WO moved his SUV to close the gap with the rear of the truck as well. The plan was to pin the vehicle and prevent it from escaping should the driver attempt to flee.
With their cruisers in place, the WO approached the driver’s door as the SO approached the front passenger’s door. The male driver awoke as the WO neared and turned on the engine of the pickup, placing the truck in gear. The WO shouted at the driver to stop the car. The officer tried to open the door, but it was locked, so he smashed out its window with his baton. On the other side of the car, the SO was attempting to do the same thing – break the passenger side window.
Once the vehicle was in gear, the driver of the truck reversed, smashing into the front end of the WO’s cruiser, and moving it a distance. He then accelerated forwards and crashed into the SO’s vehicle, also moving it. The impacts created enough space such that the driver was able to continue forwards and left past the SO’s vehicle. As it did so, the truck struck the front end of a Mercedes Benz that had been parked facing south on the other side of the road. The rear of the Mercedes Benz, in turn, was pushed into a Jeep vehicle parked behind it. By this time, both officers had their guns out and pointed at the truck, the WO off the driver’s side of the vehicle and the SO off the passenger’s side. They continued to yell at the driver to stop the vehicle.
Following the impact with the Mercedes Benz, the truck reversed a short distance before straightening out and accelerating forwards again. From a position north and east of the vehicle, the SO fired his gun twice in rapid succession at the truck as it drove in his direction. The truck continued north past the SO and then west on Grovehill Crescent, after which, following a brief pursuit by the WO, it made good its escape.
The male and female persons inside the pickup truck were not identified.
Only one of the two rounds fired by the SO appears to have struck the vehicle. The bullet impacted the forward passenger side panel of the vehicle, above the front right tire, at an acute angle.
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
On July 6, 2021, the SO of the WRPS discharged his firearm in the direction of a pickup truck being operated by a male on Grovehill Crescent, Kitchener. The male accelerated away from the officer and fled the scene. The truck was subsequently discovered by another police service – it had been set ablaze and was torched. There was no evidence to suggest that anyone in the pickup truck had been struck in the shooting. The SO was identified as the subject official in 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 the gunfire.
Pursuant to section 34 of the Criminal Code, the use of force that would otherwise constitute an offence is legally justified if it was intended to thwart a reasonably apprehended attack, actual or threatened, and was itself reasonable in the circumstances. The reasonableness of the force is to be assessed with respect to such factors as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. In my view, the evidence falls short of reasonably establishing that the SO’s gunfire fell afoul of the protection recognized by section 34.
At the outset, it bears noting that the SO and WO were in the lawful execution of their duties as they responded to the scene and approached the pickup truck. Both officers had credible information that the truck was stolen and the driver, at least, was subject to arrest for theft.
Though the SO chose not to interview with the SIU, and the investigation is therefore without firsthand information regarding his state of mind, there is a persuasive basis in the evidence to conclude that the officer acted in self-defence. Consider the scene. The officer was in close proximity to a pickup truck being operated recklessly by a male determined to avoid police apprehension. That same male had just crashed his way out of a police blockade and was accelerating in the general direction of the SO as the officer pulled the trigger. Consider, also, the evidence of persons at the scene. The WO, for example, was himself preparing to fire at the driver fearing for his safety when he decided against because of the risk of unintended casualties.
I am unable to reasonably conclude that the SO’s resort to gunfire was an unreasonable response to the exigencies of the situation. For starters, I am satisfied that the SO’s life and limb were in peril as the pickup truck accelerated in his direction. The driver of the truck had demonstrated that he was intent on escape regardless of the risk to the officers and public safety. He had just used the truck to violently force his way clear of the police SUVs, ramming into a civilian vehicle in the process. In the circumstances, the truck had essentially become a weapon in the driver’s hands, a weapon which constituted a real threat of grievous bodily harm and death to the SO.
Less clear is whether the SO’s gunfire was a rational response notwithstanding the dangers of the moment. Police policies of present typically prohibit officers from firing at a moving vehicle for the sole purpose of disabling it or preventing its escape. The logic appears clear – a bullet is unlikely to stop a moving vehicle but may well operate to unintentionally injure or kill. In fact, such a policy was in effect in relation to this shooting. However, as I believe was the case here, the SO was not shooting simply to disable the truck; he was trying to shoot the driver who was operating a vehicle in his direction. From his point of view, attempting to incapacitate the operating mind of an individual threatening to do him potentially lethal harm makes some sense. The evidence also suggests that the SO placed himself in a position of danger vis-à-vis the truck and had other alternatives to safeguard his well-being other than firing his weapon. It might have been more prudent, for example, to remain behind the protective cover of his SUV as the officer yelled commands at the truck’s occupants. That said, whatever the folly of the officer’s decision to remain in the vicinity of the truck as it revved its engine, squealed its tires, and crashed into surrounding vehicles, the SO was not disqualified from reasonably defending himself in the moment. Nor am I satisfied that the officer’s failure to withdraw or retreat rendered his conduct beyond the pale of legal protection. As the case law makes clear, officers embroiled in dangerous and volatile situations are not expected to 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; R. v. Nasogaluak, [2010] 1 SCR 206. Confronted with a large vehicle accelerating in his direction, I am unable to reasonably conclude that the SO acted without measure in the heat of the moment.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself unlawfully when he discharged his firearm. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: November 2, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 34 of the Criminal Code, the use of force that would otherwise constitute an offence is legally justified if it was intended to thwart a reasonably apprehended attack, actual or threatened, and was itself reasonable in the circumstances. The reasonableness of the force is to be assessed with respect to such factors as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. In my view, the evidence falls short of reasonably establishing that the SO’s gunfire fell afoul of the protection recognized by section 34.
At the outset, it bears noting that the SO and WO were in the lawful execution of their duties as they responded to the scene and approached the pickup truck. Both officers had credible information that the truck was stolen and the driver, at least, was subject to arrest for theft.
Though the SO chose not to interview with the SIU, and the investigation is therefore without firsthand information regarding his state of mind, there is a persuasive basis in the evidence to conclude that the officer acted in self-defence. Consider the scene. The officer was in close proximity to a pickup truck being operated recklessly by a male determined to avoid police apprehension. That same male had just crashed his way out of a police blockade and was accelerating in the general direction of the SO as the officer pulled the trigger. Consider, also, the evidence of persons at the scene. The WO, for example, was himself preparing to fire at the driver fearing for his safety when he decided against because of the risk of unintended casualties.
I am unable to reasonably conclude that the SO’s resort to gunfire was an unreasonable response to the exigencies of the situation. For starters, I am satisfied that the SO’s life and limb were in peril as the pickup truck accelerated in his direction. The driver of the truck had demonstrated that he was intent on escape regardless of the risk to the officers and public safety. He had just used the truck to violently force his way clear of the police SUVs, ramming into a civilian vehicle in the process. In the circumstances, the truck had essentially become a weapon in the driver’s hands, a weapon which constituted a real threat of grievous bodily harm and death to the SO.
Less clear is whether the SO’s gunfire was a rational response notwithstanding the dangers of the moment. Police policies of present typically prohibit officers from firing at a moving vehicle for the sole purpose of disabling it or preventing its escape. The logic appears clear – a bullet is unlikely to stop a moving vehicle but may well operate to unintentionally injure or kill. In fact, such a policy was in effect in relation to this shooting. However, as I believe was the case here, the SO was not shooting simply to disable the truck; he was trying to shoot the driver who was operating a vehicle in his direction. From his point of view, attempting to incapacitate the operating mind of an individual threatening to do him potentially lethal harm makes some sense. The evidence also suggests that the SO placed himself in a position of danger vis-à-vis the truck and had other alternatives to safeguard his well-being other than firing his weapon. It might have been more prudent, for example, to remain behind the protective cover of his SUV as the officer yelled commands at the truck’s occupants. That said, whatever the folly of the officer’s decision to remain in the vicinity of the truck as it revved its engine, squealed its tires, and crashed into surrounding vehicles, the SO was not disqualified from reasonably defending himself in the moment. Nor am I satisfied that the officer’s failure to withdraw or retreat rendered his conduct beyond the pale of legal protection. As the case law makes clear, officers embroiled in dangerous and volatile situations are not expected to 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; R. v. Nasogaluak, [2010] 1 SCR 206. Confronted with a large vehicle accelerating in his direction, I am unable to reasonably conclude that the SO acted without measure in the heat of the moment.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself unlawfully when he discharged his firearm. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: November 2, 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.