SIU Director’s Report - Case # 21-OFI-232
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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 40-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 40-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On July 28, 2021 at 12:18 a.m., the London Police Service (LPS) reported the following. On July 27, 2021 at 10:29 p.m., officers from the LPS responded to a domestic disturbance call at an address on Dufferin Avenue, London. Attending officers were met by a male – the Complainant - who was on the roadway and driveway indicating, “There was going to be a blood bath.” The Complainant apparently had knives taped to both of his hands when he met the officers. Two officers deployed their Conducted Energy Weapons (CEWs) and a third officer discharged his pistol. The Complainant was struck in the left hand and in the upper right thigh. He was being treated at Victoria Hospital in London and was expected to recover.
The involved officers were the Subject Official (SO) (discharged pistol), Witness Official (WO) #1 (discharged CEW), and WO #2 (discharged CEW). The officers were at the London Police Station at 601 Dundas Avenue completing their notes.
The Team
Date and time team dispatched: 07/28/2021 at 1:13 a.m.Date and time SIU arrived on scene: 07/28/2021 at 3:30 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
40-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on July 28, 2021.
Civilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Not interviewed
The civilian witnesses were interviewed on July 28, 2021.
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed on July 30, 2021.
Evidence
The Scene
The incident occurred on and around the driveway of a residence at Dufferin Avenue, London.At 3:40 a.m., the SIU forensic investigators arrived on scene and met with an LPS sergeant, who was in charge of scene security. The officer advised that an LPS Forensic Investigative Services Officer had been assigned to examine the scene and preserve evidence on behalf of the SIU due to inclement weather. That officer explained his collection of evidence.
Scene Diagram
Forensic Evidence
On July 28, 2021, the SIU submitted the following items to the CFS for toolmark examination, and gunshot residue distance determination: • Two 9mm Luger cartridge cases;
• Adidas grey/pink top;
• Levi’s blue jeans;
• The SO’s Glock Model 45 9mm; and
• A loaded magazine with 15 cartridges.
Figure 1 - The SO's Glock pistol.
CEW Data
The data downloaded from the CEWs used by WO #1 and WO #2 revealed the following:WO #2’s CEW was triggered on July 27, 2021 at 10:30:07 p.m. [1] for a charge duration of three seconds.
WO #1’s CEW was triggered on July 27, 2021 at 10:30:26 p.m. for a charge duration of five seconds.
Video/Audio/Photographic Evidence [2]
The following is a summary of the police communications related this incident, per the LPS Detailed Call Summary.At 10:24:16 p.m. of July 27, 2021, it was noted that CW #1 had called police to report a domestic disturbance in progress at her address in which the Complainant had locked her outside.
At 10:26:08 p.m., it was noted that CW #1 had further reported that the Complainant had said there would be a “blood bath” tonight and he would slit his wrists.
At 10:26:57 p.m., CW #1 indicated that the Complainant “now has knives in his hands”.
At 10:28:12 p.m., CW #1 indicated that the Complainant had in the past mentioned he wanted ‘suicide by cop’.
At 10:30:08 p.m., it was reported that shots had been fired by police.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the LPS:• Email from LPS regarding Training and Prior Occurrences;
• General Occurrence Hardcopy;
• LPS Detailed Call Summary;
• LPS Email regarding SO notes and interview;
• Data downloaded from CEWs of CW #1 and CW #2; and
• Notes/will says of WOs.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: • Scene diagram drawn by CW #1; and
• Medical Records London Health Sciences Centre.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, which included statements from the Complainant, two civilian eyewitnesses, and two officers who were present at the time of the shooting. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
The SO was one of several officers who responded to an address on Dufferin Avenue, London, in the evening of July 27, 2021. The officers had been dispatched following a 911 call to police from CW #1, the occupant of the address. CW #1 had called to report a domestic disturbance in which her partner, the Complainant, had locked her out of the residence. In the course of providing additional information to the police call-taker, CW #1 further noted that the Complainant had armed himself with a knife and had talked about ‘suicide by cop’.
Arriving in the same police cruiser with the SO was WO #1. The officers were quickly joined at the scene by WO #2, arriving in a separate police vehicle. The Complainant emerged from the home and began to make his way towards the officers down the driveway. WO #1 took the lead in speaking with the Complainant. He asked him what was wrong and assured him the police were not interested in a confrontation after the Complainant asked whether they wanted to be stabbed. Despite repeated directions from the officers that he drop the knives in his possession and stop his advance, the Complainant continued to move in their direction.
WO #2 was the first to resort to a weapon. From a position to the left of WO #1, the officer aimed his CEW at the Complainant’s chest and deployed it. The Complainant remained on his feet and continued to close the distance. Moments later, WO #1 also discharged his CEW at the Complainant. Again, the Complainant was unaffected and continued to gain on the officer. Shortly after the second CEW discharge, the SO, located to WO #1’s right, fired his semi-automatic pistol twice. The Complainant, who was by this time at the end of the driveway near the road, fell to the ground on his back.
The officers approached the Complainant, pinned his arms to the roadway with their feet as they “cut” the knives free of his wrists, and tended to his injuries.
Paramedics arrived at the scene and transported the Complainant to hospital. He had suffered gunshot wounds to the right upper thigh and left hand.
The SO was one of several officers who responded to an address on Dufferin Avenue, London, in the evening of July 27, 2021. The officers had been dispatched following a 911 call to police from CW #1, the occupant of the address. CW #1 had called to report a domestic disturbance in which her partner, the Complainant, had locked her out of the residence. In the course of providing additional information to the police call-taker, CW #1 further noted that the Complainant had armed himself with a knife and had talked about ‘suicide by cop’.
Arriving in the same police cruiser with the SO was WO #1. The officers were quickly joined at the scene by WO #2, arriving in a separate police vehicle. The Complainant emerged from the home and began to make his way towards the officers down the driveway. WO #1 took the lead in speaking with the Complainant. He asked him what was wrong and assured him the police were not interested in a confrontation after the Complainant asked whether they wanted to be stabbed. Despite repeated directions from the officers that he drop the knives in his possession and stop his advance, the Complainant continued to move in their direction.
WO #2 was the first to resort to a weapon. From a position to the left of WO #1, the officer aimed his CEW at the Complainant’s chest and deployed it. The Complainant remained on his feet and continued to close the distance. Moments later, WO #1 also discharged his CEW at the Complainant. Again, the Complainant was unaffected and continued to gain on the officer. Shortly after the second CEW discharge, the SO, located to WO #1’s right, fired his semi-automatic pistol twice. The Complainant, who was by this time at the end of the driveway near the road, fell to the ground on his back.
The officers approached the Complainant, pinned his arms to the roadway with their feet as they “cut” the knives free of his wrists, and tended to his injuries.
Paramedics arrived at the scene and transported the Complainant to hospital. He had suffered gunshot wounds to the right upper thigh and left hand.
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 27, 2021, the Complainant was shot and injured in the course of his arrest by an LPS officer. The officer – the SO – was identified as the subject official for purposes of the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.
Pursuant to section 34 of the Criminal Code, the use of force that would otherwise amount to an offence is legally justified if it was intended to deflect a reasonably apprehended attack, actual or threatened, and was itself reasonable. The reasonableness of the force is to be assessed against 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. In my view, the force used by the SO fell squarely within the four corners of the section 34 justification.
At the outset, it bears noting that the SO, as well as WO #1 and WO #2, were lawfully placed throughout their interaction with the Complainant. They were engaged in the execution of their lawful duties as they made their way to the address on Dufferin Avenue following a call involving a domestic disturbance and the presence of weapons.
I am satisfied that the SO acted to thwart a reasonably apprehended knife attack at the hands of the Complainant. Though the officer did not come in for an interview, as was his right, the circumstances are such that one may safely infer that mindset. Despite repeated warnings to stop his advance on the officers, the Complainant continued forward, knives pointed at the officers. He remained undeterred even after two CEWs had been deployed in his direction. On this record, I am persuaded that the SO acted to protect WO #1, who appears to have been within two metres of the Complainant, and possibly even himself, not much further away, when he fired his gun. In arriving at this conclusion, it is instructive to note that WO #1 and WO #2, each similarly situated as the SO, believed that WO #1’s life was at imminent risk.
I am further satisfied that the SO’s gunfire was a reasonable use of force. To reiterate, efforts at verbal de-escalation and lesser force, namely, the CEWs, had proven unsuccessful, and the Complainant was on the precipice of reaching the officers. In the circumstances, it would appear there was very little else the SO could have done other than discharge his firearm at the Complainant if he was going to prevent a potentially lethal attack on his or WO #1’s person. Though the officers, including the SO, had retreated backwards a distance in an effort to maintain some distance between them and the Complainant, withdrawal was not a realistic option given the presence of CW #1 and her daughter in the vicinity, and legitimate concerns for their health and safety.
In the result, there are no reasonable grounds to believe that the SO comported himself unlawfully throughout his engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges against the officer, and the file is closed.
Date: November 25, 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 amount to an offence is legally justified if it was intended to deflect a reasonably apprehended attack, actual or threatened, and was itself reasonable. The reasonableness of the force is to be assessed against 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. In my view, the force used by the SO fell squarely within the four corners of the section 34 justification.
At the outset, it bears noting that the SO, as well as WO #1 and WO #2, were lawfully placed throughout their interaction with the Complainant. They were engaged in the execution of their lawful duties as they made their way to the address on Dufferin Avenue following a call involving a domestic disturbance and the presence of weapons.
I am satisfied that the SO acted to thwart a reasonably apprehended knife attack at the hands of the Complainant. Though the officer did not come in for an interview, as was his right, the circumstances are such that one may safely infer that mindset. Despite repeated warnings to stop his advance on the officers, the Complainant continued forward, knives pointed at the officers. He remained undeterred even after two CEWs had been deployed in his direction. On this record, I am persuaded that the SO acted to protect WO #1, who appears to have been within two metres of the Complainant, and possibly even himself, not much further away, when he fired his gun. In arriving at this conclusion, it is instructive to note that WO #1 and WO #2, each similarly situated as the SO, believed that WO #1’s life was at imminent risk.
I am further satisfied that the SO’s gunfire was a reasonable use of force. To reiterate, efforts at verbal de-escalation and lesser force, namely, the CEWs, had proven unsuccessful, and the Complainant was on the precipice of reaching the officers. In the circumstances, it would appear there was very little else the SO could have done other than discharge his firearm at the Complainant if he was going to prevent a potentially lethal attack on his or WO #1’s person. Though the officers, including the SO, had retreated backwards a distance in an effort to maintain some distance between them and the Complainant, withdrawal was not a realistic option given the presence of CW #1 and her daughter in the vicinity, and legitimate concerns for their health and safety.
In the result, there are no reasonable grounds to believe that the SO comported himself unlawfully throughout his engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges against the officer, and the file is closed.
Date: November 25, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The times are derived from the internal clocks of the CEWs, which are not necessarily synchronized between weapons and 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.