Director's Report Details

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.

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: 

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 death of a 43-year-old man (the “Complainant”) during an interaction with the police. This report relates to the SIU’s investigation into the death of a 43-year-old man (the “Complainant”) during an interaction with the police.

Notification of the SIU

On April 6, 2021, at 12:10 p.m., the Ontario Provincial Police (OPP) reported the following.

At 10:15 a.m., Northumberland OPP received a call to the area of County Road 25 and Tobacco Road, Castleton, for a report of a man sitting in his vehicle yelling at passersby. Police officers arrived in the area at 11:10 a.m. The man, identified as the Complainant, exited his vehicle and approached the police officers with a baseball bat. He broke the windshield on a police vehicle with the bat, then got into his vehicle and drove at police officers. He got out of the vehicle and was shot by Subject Official (SO) #1 and SO #2.

Emergency Medical Services (EMS) had been standing by and treated the Complainant, but he subsequently died at the scene.

The Team

Date and time team dispatched: 04/06/2021 at 12:33 p.m.

Date and time SIU arrived on scene: 04/06/2021 at 1:38 p.m.

Number of SIU Investigators assigned: 3

The Scene

The Complainant sustained, and succumbed to, gunshot wounds on County Road 25, just west of Bonnet Road, Castleton. The area was rural. The primary area of focus was near a ditch on the south side of County Road 25 where the Complainant had dropped a baseball bat and collapsed. The Complainant remained there in the moderately grassy ditch that had a declining slope from County Road 25.

Physical Evidence

The physical items obtained through the investigation were identified as follows:

• CEW Taser blast door and yellow AFID;
• CEW Taser X2;
• CEW Taser cartridge cases (x2);
• Arwen 37-mm cartridge cases (x4);
• Arwen 37-mm cartridge;
• Arwen 37-mm projectiles (x4);
• CEW Taser blast door;
• Wallet;
• Breech cartridge WIN 9mm Luger cartridge – SO #1;
• Breech cartridge WIN 9mm Luger cartridge – SO #2;
• Peerless handcuffs - blood stained;
• Pulled head hair – the Complainant;
• Left hand fingernail clippings – the Complainant;
• Right hand fingernail clippings – the Complainant;
• CEW Taser probes;
• Blood Swab;
• Open package cigarettes;
• Clothing from the Complainant including a heavily bloodstained T-shirt with tears to front collar, shoulder, and mid right front;
• Projectile from superficial right back tissue;
• Projectile from right side liver;
• Fragment from right anterior diaphragm;
• Projectile from right iliac crest;
• Glock 17M 9mm pistol with Surefire model X300 Ultralight – SO #2;
• Glock 9mm model 1587-01 duty magazine with 16 WIN 9mm Luger cartridges – SO #2;
• Glock 17M 9mm pistol with Surefire model X300 Ultralight – SO #1;
• Glock 9mm model 1587-01 duty magazine with 13 WIN 9mm Luger cartridges – SO #1;
• WIN 9mm Luger cartridge cases (x5); and
• Cooper aluminum baseball bat.

Figure 1 – SO #1’s firearm


Figure 2 – SO #2’s firearm



Figure 3 – The Complainant’s baseball bat

Forensic Evidence

Centre of Forensic Sciences (CFS) Submissions

The following items were submitted to CFS on April 19, 2021 for examination:

• Complainant’s T-shirt - heavily bloodstained with tears to front collar, shoulder, and mid right front;
• Projectile from superficial right back tissue;
• Projectile from right side liver;
• Fragment from right anterior diaphragm;
• Projectile from right iliac crest;
• Glock 17M 9mm pistol with Surefire X300 Ultralight – SO #2;
• Glock 9mm model 1587-01 duty magazine with 16 WIN 9mm Luger cartridges – SO #2;
• Glock 17M 9mm pistol with Surefire X300 Ultralight – SO #1;
• Glock 9mm model 1587-01 duty magazine with 13 WIN 9mm Luger cartridges – SO #1;
• WIN 9-mm Luger cartridge cases (x5); and
• Cooper aluminum baseball bat.

CEW – WO #8 – Summary

At 11:45:03 a.m., WO #8’s CEW was triggered in connection with the deployment of Cartridge 1 from the weapon, for a 5-second duration.

At 11:45:19 a.m., WO #8’s CEW was triggered in connection with the deployment of Cartridge 1 from the weapon, for a 3-second duration.

At 11:45:24 a.m., WO #8’s CEW was triggered in connection with the deployment of Cartridge 2 from the weapon, for a 5-second duration.

OPP Vehicle Global Positioning System (GPS) Data

The SIU obtained the GPS data from nine police vehicles involved in the investigation. The GPS data reflected the route travelled by OPP police officers and the Complainant prior to arriving at the final incident location.

Video/Audio/Photographic Evidence [1]

OPP Radio Communications

Communications: Call for North Grenville units’ zone 13. It has come in as a suspicious
person. It’s northbound on Macklin Road from County Road 29 Northbound Macklin towards First Nations. I’ve got a [colour] pickup truck [make], no marker has been obtained. He was on McDonald Road when the complainant went up to the vehicle the male started yelling and screaming and told the complainant off and calling him names. The complainant is concerned the driver is having some sort of mental breakdown or health crisis. The vehicle on scene went northbound on Macklin Road to 29.
WO #1: I’m just here with this male here.
WO #1: I need more units.
Communications: [address provided].
WO #1: It’s [the Complainant], confirmed that plate.
WO #1: I did not engage, he parked right in front of me and walked up to my
driver’s side door, opened it started slamming it shut screaming at me. He punched my window.
WO #1: Yeah, he’s walking back at me screaming. I’m going to disengage him
so we can get containment and other units here. There is an elderly female in the residence she is on the patio. He’s still out front screaming. I’m not sure at what. He’s wearing a navy-blue hooded sweater, a white checkered style ball cap, grey shorts, he’s a large man, white socks, and white running shoes.
Communications: Any weapons seen?
WO #1: I didn’t see any in the truck or on him.
WO #2: Are you in a safe position?
WO #1: Yeah, I’m not engaging at all.
WO #1: He is on file with police assaultive, escape risk, carries weapons.
WO #1: He’s at the back. Go, go, go, he’s running at the cruiser with a
baseball bat.
WO #12: Orillia, he just smashed my window on the driver’s side.
SO #1: Orillia, we’re going to disengage here. Start containment. He hit a
windshield here he’s now walking southbound, rambling, and shouting. All officers are disengaging at this point.
Unknown: Is there a member with an ARWEN (Anti Riot Weapon ENfield)?
WO #6: WO #3 has an ARWEN on board, what’s your location?
Unknown: He’s out on foot at the end of the driveway, with a bat in hand and
taunting us.
Unknown: Just to confirm, male is staying outside. He’s now getting into his
vehicle.
WO #2: He’s in pursuit of our vehicle. He’s chasing police cars.
Unknown: We’ve got him at 25 and Bonnett Road, shots fired.
WO #2: We have ARWEN shots, male down.
SO #1: Shots fired. First aid being initiated. EMS order please.
Unknown: Shot with a 9mm.
Unknown: CPR (cardiopulmonary resuscitation) in progress, CPR in progress.

The following scenario emerges from the evidence collected by the SIU, which included interviews with officers who were eyewitnesses to the Complainant’s shooting. As was their legal right, neither subject official chose to interview with the SIU. They did authorize the release of their notes.

In the morning of April 6, 2021, the Complainant, who struggled with mental illness, lost touch with reality and embarked on a course of erratic behaviour. Travelling in his family’s pickup truck, he confronted two motorists with threats and profanity, even slapping one in the face. Thereafter, returning to his home in the area of County Road 25 and Tobacco Road, the Complainant approached a police officer - WO #1 - parked in a driveway across from his address and threatened her with violence. He opened and slammed her driver’s door repeatedly, and banged on the cruiser, yelling incoherently about satellites and the ‘FBI’.

WO #1 had been waiting for the Complainant to return to his home. She and other officers had been made aware of a 911 call from a motorist accosted by the Complainant, and were able to ascertain his address from the pickup truck’s licence plate number. WO #1 radioed for assistance as the Complainant’s belligerence escalated. Multiple police officers in several police vehicles answered the call.

The Complainant reacted angrily to the growing police presence. He entered his home, retrieved a metal baseball bat, and repeatedly advanced on officers with it in a threatening fashion, forcing the officers to retreat in their vehicles. On one occasion, the Complainant caught up with a cruiser being operated by WO #12 and swung the bat at the driver’s side window. The blow shattered but did not penetrate the glass.

After several minutes of this toing and froing, the Complainant entered the pickup truck parked on his driveway and began to drive in the direction of police cruisers. His first target was WO #8’s vehicle. The Complainant pursued the cruiser on his property and then through a field out onto the road, nearly colliding with the cruiser. He continued to follow the cruiser as other officers gave chase.

While travelling along the road, the Complainant turned in the direction of a couple of cruisers, forcing them to take evasive action to avoid an impact. He continued west on Pinewood School Road, and then north on Parsons Road. Again, faced with a cruiser proceeding south on Parsons Road toward him, the Complainant travelled into the southbound lane on a collision course with the vehicle, forcing the driver – WO #11 - to steer to the right.

WO #11 maneuvered back onto Parsons Road and pursued the Complainant’s pickup north until County Road 25, where both vehicles turned right to travel east. As the Complainant approached the Bonnett Road intersection, he slowed and then stopped his truck, changed gears, and reversed towards WO #11’s cruiser, striking its driver’s side. The impact sent WO #11’s cruiser rotating on the roadway before it came to a stop a short distance east of the pickup.

The pickup also came to a stop after it struck WO #11’s vehicle. Shortly after that impact, WO #3, operating a Chevrolet Tahoe, intentionally rammed into the driver’s side of the Complainant’s vehicle, driving it into the ditch on the south side of the road. WO #3’s vehicle also came to rest in the ditch, its driver’s side a short distance from, and alongside, the pickup truck’s driver’s side.

The Complainant attempted to exit via the driver’s door of his pickup truck, but was unable to as it was pinned against WO #3’s cruiser. He did, however, manage to leave through the passenger door, but not before he had been struck by rounds discharged by WO #3 firing his ARWEN through the open driver’s door window. Multiple police officers, arriving at the scene shortly after the collisions, surrounded the pickup truck. They yelled at the Complainant to stop and drop the bat he was carrying – the same bat he had wielded at his home. The Complainant was undeterred. He travelled around the back of his truck and the front of WO #3’s Tahoe, after which he turned to walk northward up the ditch in the direction of a number of officers.

SO #1 was among the officers being approached by the Complainant. The officer had been in the passenger seat of WO #3’s cruiser at the time of the collision with the pickup truck, and had exited following the impact. With his firearm in hand, SO #1 ordered the Complainant to stop his advance, retreating backwards as he did so. The Complainant continued towards the officer, and was struck four times with bullets discharged by SO #1’s 9 mm semi-automatic firearm. The time was about 11:36 a.m.

In and around the same time, SO #2 and WO #8 discharged their weapons, a firearm and a CEW, respectively. SO #2 struck the Complainant once. It is unclear whether WO #8’s CEW deployments had any effect on the Complainant, although there is evidence that the Complainant stumbled to the ground at about the same time as the first discharge before he picked himself up, resumed his advance, and was struck by gunfire.

The Complainant fell face-first in the ditch following the gunfire. Unsure whether he was completely immobilized, WO #8 discharged his CEW once again as other officers approached to take the Complainant into custody. He was rolled over and found to be bleeding from multiple gunshot wounds. Officers administered first aid and CPR pending the arrival of paramedics, who had been staging in the vicinity and were on scene within a matter of minutes.

Despite the resuscitative efforts of the first responders, the Complainant could not be revived. He was pronounced deceased at the scene.
 

Cause of Death

The pathologist at autopsy was of the view that the Complainant’s death was attributable to ‘gunshot wounds of torso’.

Section 34, Criminal Code -- Defence of person - Use of threat of force

(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.

(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.

On April 6, 2021, the Complainant was shot several times by OPP officers and died from his wounds in Castleton, Ontario. The officers who fired their weapons – SO #1 and SO #2 – were identified as subject officials 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 either of the subject officials committed a criminal offence in connection with the Complainant’s death.

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 protect against 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 with respect to such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. I am unable to reasonably conclude that the force used by SO #1 and SO #2 fell outside the protective ambit of section 34.

The officers who interacted with the Complainant were lawfully placed throughout the series of events that culminated in his death. Having received a 911 call from a citizen concerned about the Complainant’s aggressive behaviour on the roadway, the police were entitled to investigate the matter. When the Complainant reacted with violence to the presence of officers around his residence, they were further within their rights in seeking to contain and arrest him. Finally, the police were not at liberty to disengage with the Complainant as he drove off his property onto the road. He was at the time seemingly intent on catching up with WO #8’s cruiser, seeking to strike it with his pickup truck, and driving dangerously in the direction of other cruisers. In the circumstances, the officers had cause to believe that an immediate intervention was warranted in the interests of public safety.

With respect to the officers’ resort to gunfire, I am satisfied that each of SO #1 and SO #2 discharged their firearms believing it was necessary to thwart an imminent attack at the hands of the Complainant. Though neither officer interviewed with the SIU, depriving the investigation of first-hand information regarding their mindsets when they fired their guns, each of the officers makes this clear in their notes. Moreover, the circumstances that prevailed at the time lend credence to their documented assertions. The Complainant was advancing on officers, including SO #1, with a bat in hand. This was the same bat that he had used, moments ago, to swing at and strike WO #12’s driver’s door window. And this was the same person who, moments ago, had driven at cruisers, even striking one of them – WO #11’s vehicle. I am persuaded on this record that both subject officials acted to defend against a reasonably apprehended attack on SO #1. [5]

Finally, I am satisfied that the force used by the officers – a single shot by SO #2 and four by SO #1 – was not more than was reasonably necessary in defence of SO #1. By the time he fired, SO #1 had repeatedly told the Complainant to drop the bat and stop. The officer had also retreated a distance before he came up against a cruiser that was parked by the ditch. With the Complainant continuing to advance, carrying a weapon that could well inflict grievous bodily harm or death, it would not appear SO #1 acted disproportionately in resorting to his firearm. If that is true, and I am persuaded that it is, than it follows that SO #2 also acted within the confines of section 34 when she discharged her weapon believing it was necessary to protect SO #1 from a potentially lethal assault. The fact that other officers, similarly situated, were of the same mind is instructive. WO #9, for example, says that he was about to shoot the Complainant fearing for the safety of WO #8, who was being rushed by a bat-wielding the Complainant, when he heard the sound of gunfire. The same is true with respect to the speed with which events unfolded by the side of the road. Using his ARWEN, WO #3 had unsuccessfully tried to contain the Complainant inside the pickup truck, but he was able to exit the vehicle and was quickly upon the responding officers threatening to do them harm. In the circumstances, the officers simply did not have time to reflect on a strategy that might avoid a physical confrontation, much less take whatever steps might have been necessary to put one into effect.

The Complainant was of unsound mind at the time of these unfortunate events, the result of mental illness. Though the officers appear to have been aware of this fact, it does not appear that there was ever a real opportunity to bring mental health interventions to bear, were they available, given how quickly events escalated and the violence characterizing the Complainant’s behaviour that had precipitated police involvement in the first place. Be that as it may, the focus of the SIU investigation was on the immediate circumstances that surrounded the impugned use of force, namely, the shooting. [6] For the foregoing reasons, there is insufficient evidence to reasonably believe that either of SO #1 and SO #2 acted without legal justification when they shot the Complainant. Accordingly, there are no grounds for proceeding with criminal charges in this case, and the file is closed.


Date: December 6, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit