SIU Director’s Report - Case # 21-OFD-007
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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.
- 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 death of a 27-year-old man (the "Complainant") during an interaction with the police.
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 27-year-old man (the "Complainant") during an interaction with the police.
The Investigation
Notification of the SIU
On January 5, 2021, at 2:59 p.m., the Niagara Regional Police Service (NRPS) notified the SIU that there had been an officer-involved shooting of a man whose identity was unknown at the time.NRPS reported the NRPS had responded to a business on Lundy’s Lane in Niagara Falls at 1:30 p.m., regarding a possible impaired driver. An employee of the business had reported a man and a woman were unconscious in a pickup truck. NRPS officers arrived and the occupants of the pickup truck fled in the vehicle. That same vehicle had been involved in several pursuits earlier in the day in Welland, and possibly also in Hamilton.
At 2:11 p.m., NRPS officers attempted to use a spike belt on the Niagara Parkway near York Road, without success. A rolling vehicle block was also attempted. An Ontario Provincial Police (OPP) officer had also deployed a spike belt. A Niagara Parks Police Service cruiser was then rammed.
At 2:21 p.m., the pickup truck came to a stop in a ditch at the intersection of Line 3 Road and the Niagara Parkway. At 2:22 p.m., there was a report of pepper spray being used and then there was a report of gunshots being fired. NRPS advised that there was one police officer involved in the shooting.
NRPS later reported the man had been pronounced deceased, at 3:35 p.m., at the Niagara Falls Hospital.
The Team
Date and time team dispatched: 01/05/2021 at 3:19 p.m.Date and time SIU arrived on scene: 01/05/2021 at 4:45 p.m.
Number of SIU Investigators assigned: 7
Number of SIU Forensic Investigators assigned: 3
Number of SIU Collision Reconstructionists assigned: 1
Affected Person (aka "Complainant"):
27-year-old male, deceased Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
The civilian witnesses were interviewed between January 5 and 14, 2021.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal right.The subject official was interviewed on June 14, 2021.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed
WO #11 Interviewed
WO #12 Interviewed
WO #13 Interviewed
WO #14 Notes reviewed, interview deemed not necessary
WO #15 Interviewed
WO #16 Interviewed
WO #17 Interviewed
WO #18 Interviewed
WO #19 Interviewed
WO #20 Interviewed
WO #21 Interviewed
WO #22 Notes reviewed, interview deemed not necessary
WO #23 Interviewed
WO #24 Notes reviewed, interview deemed not necessary
WO #25 Notes reviewed, interview deemed not necessary
WO #26 Notes reviewed, interview deemed not necessary
WO #27 Interviewed
WO #28 Notes reviewed, interview deemed not necessary
WO #29 Notes reviewed, interview deemed not necessary
WO #30 Notes reviewed, interview deemed not necessary
WO #31 Notes reviewed, interview deemed not necessary
WO #32 Notes reviewed, interview deemed not necessary
WO #33 Notes reviewed, interview deemed not necessary
WO #34 Notes reviewed, interview deemed not necessary
WO #35 Notes reviewed, interview deemed not necessary
WO #36 Interviewed
The witness officials were interviewed between January 5, 2021 and April 16, 2021.
Service Employee Witnesses (SEW)
SEW Notes reviewed, interview deemed not necessaryInvestigative Delay
There was a delay in obtaining an interview of a witness official, who was off-duty as a result of an injury. As a result of this witness official interview, the interview of an additional officer was deemed necessary and conducted on April 16, 2021.An interview of the SO was requested on February 19, 2021. The SIU was not informed that the SO would provide a statement to the SIU until May 31, 2021.
The SIU did not receive the post-mortem examination report until June 21, 2021.
Evidence
The Scene
The Niagara Parkway (also known as the Niagara River Parkway) is a scenic roadway that follows the contours of the west bank of the Niagara River, from Fort Erie in the south to Niagara-on-the-Lake in the north. Line 3 Road intersects the Niagara Parkway at a right angle, approximately four kilometres south of Niagara-on-the-Lake. The area is rural, with wineries and large estate residences on the west side of the road, and the escarpment of the Niagara River on the east side of the road. At the intersection there is a bicycle path/footpath and a footbridge on the east side of the Niagara Parkway. A guardrail protects the west side of the footbridge.The Complainant had been operating a red Ford F-150 pickup truck with a crew cab (four door) configuration. That truck was found in the east ditch, north of the intersection and to the east of the footpath. The pickup truck was surrounded by police vehicles to the front, rear and the driver side.
Tire marks in the soil, south of the pickup truck, were consistent with the tires of the pickup truck spinning while the vehicle was stationary, creating furrows in the soil. A mark in the asphalt next to the footbridge was consistent with the pickup truck travelling on a wheel rim, prior to leaving the roadway.
A marked OPP Chevrolet Tahoe was positioned perpendicular across the front of the pickup truck. An OPP Dodge Charger was positioned perpendicular to the driver’s door of the Chevrolet Tahoe. There was no collision damage to the passenger side of the Chevrolet Tahoe, indicating the pickup truck operated by the Complainant did not make contact with the Chevrolet Tahoe.
There was a marked OPP Ford Explorer positioned along the driver side of the Ford F-150 pickup truck. The OPP Ford Explorer had collision damage to the passenger side, consistent with having been in contact with the pickup truck. The space between the OPP Ford Explorer and the Ford F-150 pickup truck was very confined.
The window of the driver’s door of the Ford F-150 was shattered but remained in place. There was a hole in the window, consistent with a baton being driven through the window in an attempt to pry the window out of the door. The window of the rear driver side door was in a lowered position.
Inside the pickup truck the SIU identified two spent pistol cartridge cases, in the back seat area (in the scene diagram, the found cases appear to be in the box of the pickup truck, but the diagram does not account for the fact that the pickup truck was a four-door crew cab variant).
During examination of the pickup truck at the scene and in the following days, a bullet defect was identified in the front seat centre console. That defect travelled from the backseat area of the pickup truck downward and into the front console.
Scene Diagram
Physical Evidence
An examination of the pickup truck revealed at least two butane torches scattered inside the vehicle.Inside the pickup truck there was a bullet defect in the rear of the centre arm console situated between the two front seats. The trajectory of the defect was from the area of the rear driver side door window downward. The bullet exited the console and entered the lower seat of the front passenger seat.
Two spent cartridge case were recovered from the rear seat area of the pickup truck.
Figure 1 – The pickup truck boxed-in by police vehicles
Figure 2 – The SO’s firearm and magazines
Figure 3 – Driver’s side window of the pickup truck
Figure 4 – NRPS photo of items on rear passenger seat floor of the pickup truck
Figure 5 – NRPS photo of butane torch
Forensic Evidence
On February 25, 2021, the CFS reported lachrymators (elements of oleoresin capsicum (OC) “pepper” spray) were identified in swabs taken from the Complainant's nasal passages.The CFS also confirmed, on April 14, 2021, that the two spent cartridge cases found inside the pickup truck had been fired by the SO’s pistol.
Video/Audio/Photographic Evidence [1]
The SIU searched for audio, video and/or photographic records of relevance in the area of the incident. No video recordings were obtained from the residences and businesses in the area.Closed-circuit Television (CCTV) from a Business on Lundy’s Lane
The video recording from a business on Lundy’s Lane showed the red pickup truck operated by the Complainant arriving in the rear parking lot at 12:43 p.m. The Complainant improperly parked the truck across the open end of parking spaces in the parking lot. At 1:11 p.m., three people approached the driver side of the red pickup truck. One of the men used a cellular telephone to place a call.At 1:23 p.m., two NRPS SUVs arrived and pulled up in front of the red pickup truck, one at the passenger side front corner and the other at the driver side front corner. One police officer approached the driver’s door, while the other police officer placed a spike belt behind the front tires of the pickup truck. He then moved the spike belt in front of the pickup truck tires. The officer on the passenger side of the truck then knocked on the passenger side front door window. The reverse lights of the pickup truck came on and the pickup truck reversed out of the parking lot. Both police officers, with their firearms drawn, walked along either side of the pickup truck. They then holstered their firearms, returned to their vehicles, and drove out of the parking lot.
CCTV – NRPS Real Time Operations Centre (RTOC)
At 1:39 p.m., the RTOC video recording showed a NRPS SUV turning from Drummond Road onto westbound Lundy’s Lane. As the police vehicle travelled westbound, the police officer [the SO] activated the emergency lights and made a U-turn, just as the red pickup truck passed him travelling eastbound at high speed. At Drummond Road, the driver of the red pickup truck pulled into the parking lot of a Red Lobster restaurant to avoid traffic that was stopped for a red light at Drummond Road. The driver side fender of the pickup truck was missing from the vehicle.The Complainant drove southbound through the restaurant parking lot, pursued by the SO. The Complainant then pulled onto Drummond Road, drove northbound and turned eastbound onto Lundy’s Lane. The SO was still in pursuit of the pickup truck.
Lundy’s Lane became Ferry Street at the next major intersection, Main Street. At that intersection, the Complainant sped eastbound through the intersection, pursued by the SO.
Continuing eastbound, Ferry Street soon became Victoria Avenue. At 1:42 p.m., the Complainant was travelling eastbound on Victoria Avenue and drove through a red traffic signal at Clifton Hill. No police vehicles were in pursuit of him at that point.
Report of Vehicle Stolen
The red Ford F-150 pickup truck being operated by the Complainant had been reported stolen from the Hamilton area on December 15, 2020.Hamilton Police Service (HPS) Interaction with Vehicle
On January 5, 2021 at 9:05 a.m., an officer came across a suspicious vehicle parked in the Tim Hortons parking lot at 1242 Highway 8 in Winona. The red Ford F-150 truck was partially blocking the drive-through lane. The engine of the truck was running, and the driver was asleep behind the wheel. The officer queried the licence plate and determined it had been reported stolen.The driver of the pickup truck then drove away, and the vehicle was last seen travelling at high speed eastbound on Highway 8, driving toward oncoming traffic. No pursuit was initiated and there was no other engagement with the vehicle by the HPS.
The NRPS and OPP were notified of the incident.
CCTV Video from Tim Horton Restaurant - Winona
A video recording from the Tim Hortons restaurant in Winona showed a pickup truck pulling into the restaurant parking lot at 5:55 a.m. on January 5, 2021. The driver of the truck parked overtop markings intended to delineate the parking area from the drive-through lane. The headlamps of the pickup truck remained activated while the truck was parked. The video recording was not clear enough to document the number of occupants in the vehicle.At 9:12 a.m., the pickup truck, a red Ford crew-cab truck, pulled forward and turned left, out of the camera image. There did not appear to be any damage to the passenger side of the pickup truck at that point. No police vehicles were visible on the camera recording.
OPP Computer-aided Dispatch (CAD) Report and Communication Recordings
On January 5, 2021 at 11:19 a.m., a caller reported a pickup truck parked at a residence that had a damaged front end. The caller reported there were two men and a woman in the vehicle. The caller believed the vehicle was likely stolen and one of the male occupants was staggering all over the place, possibly intoxicated by drugs.At 11:30 a.m., an OPP officer reported the vehicle had fled the area travelling eastbound, but the officer was not in pursuit. At 11:31 a.m. there was a report of a spike belt being laid down and at 11:32 a.m. it was reported a driver side tire of the vehicle had hit the spike belt. The pickup truck was then reported to be travelling northbound, with OPP officers in pursuit.
At 11:34 a.m., the OPP communications sergeant ordered the pursuit terminated and the involved police officers complied. It was requested that the NRPS and HPS be advised of the pickup truck.
At 11:56 a.m., it was reported the suspect vehicle had struck a house and a parked vehicle while trying to evade police.
At 12:39 p.m., the police officer who had attended the residence reported he was on his way to the police station with one person in custody.
At approximately 1:47 p.m., an OPP officer reported he had located the suspect vehicle. The officer reported the pickup truck had driven through a red light, but the officer was not in pursuit. The officer then reported he was trying to stop the vehicle and the truck had driven over a curb. The police officer reported he was going to discontinue his efforts to stop the vehicle. He reported the tailgate of the pickup truck had fallen open.
Later (time not identified on communications recording), OPP WO #2 reported he had observation of the suspect vehicle and it was being followed by approximately eight police vehicles northbound on the Niagara Parkway. Another police officer confirmed a spike belt had been successfully deployed. An OPP officer following the suspect vehicle provided updates regarding the location of the vehicle. He reported there were approximately six police vehicles trying to box-in the vehicle, but the pickup truck driver was evading their efforts. WO #2 confirmed the right front tire of the pickup truck had been destroyed.
An OPP officer reported contact had been made with the vehicle. OPP WO #1 then reported shots had been fired. OPP WO #2 reported he had the female passenger out of the pickup truck. WO #1 reported the suspect was still in the vehicle and was sill trying to accelerate away. WO #1 then reported the truck was in ‘Park’ and the driver had been shot twice. The female passenger from the pickup truck had identified.
A OPP communications centre employee later contacted WO #1 and requested a briefing. WO #1 reported OPP officers were following NRPS vehicles and while WO #1 was setting up a spike belt, he saw vehicles colliding, and was unsure if they were NRPS vehicles or OPP vehicles. He saw the pickup truck being pinned in, but the driver of the pickup truck continued to accelerate and was able to move through a couple of vehicles before being pinned against some bushes. The pickup truck continued to move forward, and WO #1 parked near an OPP Chevrolet Tahoe that the driver of the pickup truck was trying to push out of the way. WO #1 confirmed a NRPS police officer fired the gunshots. He reported the driver of the pickup truck had rammed WO #3.
NRPS CAD Report and Communication Recordings
On January 5, 2021, at 9:52 a.m., a motorist called the NRPS to report he was following a burgundy-coloured Ford F-150 pickup truck that was “all over the road”. The caller reported the truck had damage along the side of the vehicle and it had pulled into a school in Fenwick. The caller reported a male occupant of the truck, not the driver, was unloading large plastic totes from the truck and was likely aware the caller was on the telephone. At 9:57 a.m., police officers were dispatched to the school.A police officer reported he was following the target vehicle westbound on Canboro Road, and the truck was travelling “at a pretty good clip” and passing vehicles at 130 km/h. The police officer then reported the maroon Ford pickup truck was northbound on Victoria Road and the officer was aborting his pursuit. The police officer returned to the school and spoke to the complainant. The officer reported there were three occupants in the vehicle, and he provided the licence plate. The dispatcher advised that was the same vehicle mentioned by the HPS earlier in the morning in relation to a pursuit.
At 1:28 p.m., an employee of a business on Lundy’s Lane reported there were two people unconscious in a pickup truck parked in the rear parking lot. The truck had been parked in the parking lot for approximately ten minutes. The caller reported there was damage to the driver side of the vehicle and provided the licence plate for the vehicle. The dispatcher cautioned the caller to not approach the vehicle. Police officers and an ambulance were dispatched to the location.
At 1:38 p.m. it was reported police officers were on scene. At 1:39 p.m., it was reported the pickup truck had fled eastbound on Lundy’s Lane.
A police officer [the SO] attempted to box-in the pickup truck near a Red Lobster restaurant, but the pickup truck continued to flee. The pickup truck was reported to be weaving in and out of traffic. The SO reported the road conditions were clear and they were travelling at approximately 100 km/h. At 1:41 p.m., WO #11 directed the pursuit to be aborted. The SO confirmed he had discontinued the pursuit, at Clifton Hill and Lundy’s Lane, and the pickup truck had fled through a red traffic light at that intersection. The RTOC reported the location of the pickup truck and the SO reported he was “casually driving” in the direction of the pickup truck. The Niagara Parks Police Service (NPPS) and OPP were advised of the events.
At 1:55 p.m., the OPP reported they had located the vehicle, but they were not pursuing the vehicle. At 1:56 p.m., it was reported the OPP were attempting to stop the vehicle but after a brief pursuit, at 1:57 p.m., they were no longer engaged with the vehicle.
At 2:02 p.m., WO #11 directed that no NRPS officers were to pursue the pickup truck at high speeds, and he stated the best outcome would be to have the driver abandon the vehicle and they could then have police dog handlers track the driver.
At 2:11 p.m., the vehicle was spotted by NRPS officers and a spike belt was deployed at York Road and the Niagara Parkway. At 2:12 p.m., it was reported the pickup truck was travelling eastbound at high speed.
The OPP were advised of the pursuit and became engaged. At 2:15 p.m., it was reported a passenger side tire of the pickup truck had been damaged. At 2:16 p.m., the truck was reported travelling toward Niagara-on-the-Lake.
At 2:17 p.m., WO #11 asked for a NRPS officer to move in front of the pickup truck to try to slow it. Police officers were able to do so. WO #11 continued to encourage police officers to slow the vehicle before it reached Niagara-on-the-Lake. It was reported the OPP had deployed a spike belt ahead of the pickup truck.
At 2:21 p.m., NPPS WO #23 reported he had been rammed by the pickup truck and the pickup truck was again at the front of the line of vehicles.
At 2:21 p.m., it was reported the pickup truck was in a ditch at Line 3 Road. At 2:22:13 p.m., it was reported OC spray had been deployed and, at 2:22:19 p.m., a NPPS officer reported shots had been fired. At 2:30 p.m., it was reported NRPS Emergency Task Unit (ETU) officers were removing the driver from the vehicle and initiating CPR.
At 2:38 p.m., it was reported the female passenger from the pickup truck had been identified by name (incorrect name provided, in actuality she was CW #1) and she claimed she had met the driver online the night before.
Materials Obtained from Police Services
The SIU obtained and reviewed the following records from the NRPS:- A copy of the call summary regarding police response to the business on Lundy’s Lane in Niagara Falls;
- A CCTV camera recording from the business on Lundy’s Lane;
- A CCTV camera recording from the RTOC monitoring centre;
- A list of residences canvassed by the NRPS following the incident;
- A list of civilian witnesses interviewed and copies of the civilian witness interviews;
- A copy of the radio and telephone communications recordings;
- A summary of a NRPS interview of CW #1;
- A list of items seized from the involved pickup truck;
- A Known Offender Summary for the Complainant;
- A list of occurrences involving the Complainant;
- A list of police vehicles operated by involved police officers;
- The notes of all designated witness officials;
- NRPS Training Summary for the SO;
- Photos recorded during the NRPS examination of the involved pickup truck;
- Photos of the scene, recorded prior to and following SIU examination of the scene; and
- Photos recorded of the Complainant's remains at the hospital.
The SIU obtained and reviewed the following records from the OPP:
- Communications recordings;
- The CAD report related to the pursuit of the pickup truck on the afternoon of January 5, 2021;
- The Event Details report regarding a call to a residence;
- The notes of the five designated witness officials; and
- GPS data for the involved witness officials.
The SIU obtained and reviewed the following records from the HPS:
- A general occurrence report regarding the report of a stolen pickup truck;
- A general occurrence report regarding the pickup truck being found parked at a Tim Hortons restaurant;
- A copy of a CCTV recording obtained from the Tim Hortons Restaurant in Winona;
- An e-mail explaining the police activity involved in locating the pickup truck at the Tim Hortons Restaurant; and
- A general occurrence report (unrelated event).
Materials Obtained from Niagara Parks Commission
The SIU obtained and reviewed the following records from the NPPS:- The notes of the three designated NPPS witness officials.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - A video recording of the scene recorded by CW #4 on January 5, 2021.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the SO, several civilian witnesses, and officers who observed parts of the events in question.
In the afternoon of January 5, 2021, the Complainant was in the driver’s seat of a stolen Ford F-150 pickup truck when his vehicle was forced off the road and surrounded by police cruisers. Officers exited their vehicles and converged on the pickup truck. The SO was among the officers. Within seconds, the officer would discharge his firearm twice at the Complainant.
The Complainant had been pursued on and off by police officers from several police services in the hours before the shooting. Shortly after 9:00 a.m., while parked partially blocking a Tim Hortons’ drive-through lane in Hamilton, the Complainant was awoken by an HPS officer called to the scene. With him in the truck were CW #1 and a male. The Complainant fled from the lot in the pickup truck at high speed, eastbound along Highway 8. The NRPS and the OPP were notified.
At about 9:50 a.m., a motorist contacted the NRPS to report that a pickup truck – the one the Complainant was driving – was damaged and being operated erratically. A NRPS officer located the truck and started to pursue it on Canboro Road. The pursuit was abandoned as the Complainant, reaching speeds as high as 130 km/h, travelled north on Victoria Avenue.
At 11:30 a.m., an OPP officer responding to an address in Dunnville located the vehicle but did not engage in a pursuit. The caller, concerned that the vehicle was stolen and its occupants impaired, had contacted police to report the damaged truck. One of the male occupants had disembarked from the truck prior to it leaving the area. Moments later, the truck was pursued by the OPP for a brief period before the pursuit was terminated.
The Complainant and his lone passenger, CW #1, made their way to a business on Lundy’s Lane, Niagara Falls, where they parked in the parking lot and fell asleep. They were awoken by WO #11 and WO #10, NRPS officers sent to the scene following a call to police by an employee of the business. His forward path blocked by the officers’ cruisers, the Complainant reversed out of the parking lot, after which he made his way to Lundy’s Lane and fled east at speed. The time was about 1:40 p.m.
The SO was westbound on Lundy’s Lane when he noticed the pickup truck driving past him. The officer executed a U-turn and briefly pursued the truck. The SO followed the Complainant eastward as it continued onto Ferry Street and then out of sight.
The NRPS again picked up the truck east on York Road heading towards Queenston. WO #11, in the area of York Road and the Niagara Parkway intersection looking for the truck, deployed a spike belt across the road. With him was NPPS officer – WO #23 – who did the same. The Complainant drove over one of the spike belts and continued through the intersection towards Queenston. The time was about 2:15 p.m.
The pickup truck’s front passenger tire was damaged by the spike belt and, in time, would completely come off the rim, but the Complainant continued to drive. He travelled back towards the Niagara Parkway and proceeded north at about 60 km/h. Behind him was a convoy of NRPS, NPPS and OPP vehicles with their emergency equipment activated, WO #11 among them.
Traffic on the Niagara Parkway was light and WO #11 saw an opportunity to stop the truck. He directed that NRPS cruisers maneuver in front of the Complainant to slow him down. The plan was to surround the pickup truck with police vehicles to effect a rolling block.
The Complainant seemed to understand what was happening and did what he could to prevent it. He drove in front of cruisers as they tried to pass and, when one of them did, he was able to overtake it again. A number of motorists travelling south had to take evasive action to avoid a collision.
Two OPP and two NRPS officers, each in their own vehicles, were travelling east on Line 3 Road toward the Niagara Parkway as the slow speed pursuit wound its way towards the intersection. The SO, operating a Ford Explorer, was the first among them. As the Complainant neared and then entered the intersection, the officer drove his front end into the driver side of the pickup truck. The impact pushed the truck into the guardrail of a short footbridge that ran parallel to the Niagara Parkway on its east side, across from Line 3 Road. The Complainant continued to drive forward and the pickup truck was struck again – its front driver side – by a police vehicle operated by the second of the NRPS officers – WO #7. Still, the Complainant was able to slowly drive the truck past the bridge guardrail, at which point the front driver’s corner of the truck was struck a third time – on this occasion, by the front passenger corner of a Ford Explorer operated by one of the OPP officers – WO #3.
By the third collision, the pickup truck was onto the east side grassy ditch of the roadway. The Complainant continued to accelerate forward and was able to maneuver the truck, and WO #3’s Ford Explorer with it, a distance north before the vehicle was unable to acquire any further traction and essentially became stuck. He continued to spin the truck’s wheels but, aside from fishtailing the vehicle a short distance side to side where it stood, that only served to create a fog of black smoke, the sound of a racing engine, and furrows in the ground. WO #4, the second OPP officer on Line 3 Road, positioned the passenger side of his Chevrolet Tahoe across the nose of the pickup truck. WO #10, operating a Chevrolet SUV, drove up to the rear of the truck and stopped. WO #3’s Explorer was alongside the driver side of the truck.
With the Complainant effectively boxed-in, officers exited their cruisers and rushed towards the pickup truck. They yelled at the Complainant to stop the truck and put his hands up. He ignored those directions and continued to depress the accelerator. The front driver’s door was shut and efforts to open it, including attempts to break the window, were unsuccessful. At one point, WO #7 and WO #23 deployed bursts of OC spray into the truck through the open driver side rear window.
Though bothered by the spray, the Complainant did not surrender. He reached with his right arm towards the floor of the backseats and started to rifle through a duffle bag. The SO, standing by the open driver side rear window with his gun drawn and pointed at the Complainant, told him to stop reaching into the bag. Concerned that the Complainant was retrieving a gun, the officer took aim at his exposed right shoulder and shot once. As the Complainant continued to reach into the rear compartment, and came up with his right hand with what the SO feared was a gun, the SO fired a second round. This one was aimed at the back of the driver’s seat. The Complainant fell back into the driver’s seat following the second shot and became largely still.
Realizing that the Complainant had been shot and was in need of medical attention, WO #11 climbed into the rear seats of the truck and attempted to extricate him from the vehicle. With the help of NRPS ETU officers arriving on scene, the Complainant was removed and emergency medical care provided while waiting for paramedics to attend.
The Complainant could not be revived at hospital and was pronounced deceased.
Cause of Death
The pathologist at autopsy concluded that the Complainant’s death was attributable to ‘gunshot wound of back’. The Complainant had suffered only one gunshot wound – a penetrating gunshot wound of the right upper back. The bullet, retrieved from the sternum, had travelled back to front and slightly right to left through the body.
In the afternoon of January 5, 2021, the Complainant was in the driver’s seat of a stolen Ford F-150 pickup truck when his vehicle was forced off the road and surrounded by police cruisers. Officers exited their vehicles and converged on the pickup truck. The SO was among the officers. Within seconds, the officer would discharge his firearm twice at the Complainant.
The Complainant had been pursued on and off by police officers from several police services in the hours before the shooting. Shortly after 9:00 a.m., while parked partially blocking a Tim Hortons’ drive-through lane in Hamilton, the Complainant was awoken by an HPS officer called to the scene. With him in the truck were CW #1 and a male. The Complainant fled from the lot in the pickup truck at high speed, eastbound along Highway 8. The NRPS and the OPP were notified.
At about 9:50 a.m., a motorist contacted the NRPS to report that a pickup truck – the one the Complainant was driving – was damaged and being operated erratically. A NRPS officer located the truck and started to pursue it on Canboro Road. The pursuit was abandoned as the Complainant, reaching speeds as high as 130 km/h, travelled north on Victoria Avenue.
At 11:30 a.m., an OPP officer responding to an address in Dunnville located the vehicle but did not engage in a pursuit. The caller, concerned that the vehicle was stolen and its occupants impaired, had contacted police to report the damaged truck. One of the male occupants had disembarked from the truck prior to it leaving the area. Moments later, the truck was pursued by the OPP for a brief period before the pursuit was terminated.
The Complainant and his lone passenger, CW #1, made their way to a business on Lundy’s Lane, Niagara Falls, where they parked in the parking lot and fell asleep. They were awoken by WO #11 and WO #10, NRPS officers sent to the scene following a call to police by an employee of the business. His forward path blocked by the officers’ cruisers, the Complainant reversed out of the parking lot, after which he made his way to Lundy’s Lane and fled east at speed. The time was about 1:40 p.m.
The SO was westbound on Lundy’s Lane when he noticed the pickup truck driving past him. The officer executed a U-turn and briefly pursued the truck. The SO followed the Complainant eastward as it continued onto Ferry Street and then out of sight.
The NRPS again picked up the truck east on York Road heading towards Queenston. WO #11, in the area of York Road and the Niagara Parkway intersection looking for the truck, deployed a spike belt across the road. With him was NPPS officer – WO #23 – who did the same. The Complainant drove over one of the spike belts and continued through the intersection towards Queenston. The time was about 2:15 p.m.
The pickup truck’s front passenger tire was damaged by the spike belt and, in time, would completely come off the rim, but the Complainant continued to drive. He travelled back towards the Niagara Parkway and proceeded north at about 60 km/h. Behind him was a convoy of NRPS, NPPS and OPP vehicles with their emergency equipment activated, WO #11 among them.
Traffic on the Niagara Parkway was light and WO #11 saw an opportunity to stop the truck. He directed that NRPS cruisers maneuver in front of the Complainant to slow him down. The plan was to surround the pickup truck with police vehicles to effect a rolling block.
The Complainant seemed to understand what was happening and did what he could to prevent it. He drove in front of cruisers as they tried to pass and, when one of them did, he was able to overtake it again. A number of motorists travelling south had to take evasive action to avoid a collision.
Two OPP and two NRPS officers, each in their own vehicles, were travelling east on Line 3 Road toward the Niagara Parkway as the slow speed pursuit wound its way towards the intersection. The SO, operating a Ford Explorer, was the first among them. As the Complainant neared and then entered the intersection, the officer drove his front end into the driver side of the pickup truck. The impact pushed the truck into the guardrail of a short footbridge that ran parallel to the Niagara Parkway on its east side, across from Line 3 Road. The Complainant continued to drive forward and the pickup truck was struck again – its front driver side – by a police vehicle operated by the second of the NRPS officers – WO #7. Still, the Complainant was able to slowly drive the truck past the bridge guardrail, at which point the front driver’s corner of the truck was struck a third time – on this occasion, by the front passenger corner of a Ford Explorer operated by one of the OPP officers – WO #3.
By the third collision, the pickup truck was onto the east side grassy ditch of the roadway. The Complainant continued to accelerate forward and was able to maneuver the truck, and WO #3’s Ford Explorer with it, a distance north before the vehicle was unable to acquire any further traction and essentially became stuck. He continued to spin the truck’s wheels but, aside from fishtailing the vehicle a short distance side to side where it stood, that only served to create a fog of black smoke, the sound of a racing engine, and furrows in the ground. WO #4, the second OPP officer on Line 3 Road, positioned the passenger side of his Chevrolet Tahoe across the nose of the pickup truck. WO #10, operating a Chevrolet SUV, drove up to the rear of the truck and stopped. WO #3’s Explorer was alongside the driver side of the truck.
With the Complainant effectively boxed-in, officers exited their cruisers and rushed towards the pickup truck. They yelled at the Complainant to stop the truck and put his hands up. He ignored those directions and continued to depress the accelerator. The front driver’s door was shut and efforts to open it, including attempts to break the window, were unsuccessful. At one point, WO #7 and WO #23 deployed bursts of OC spray into the truck through the open driver side rear window.
Though bothered by the spray, the Complainant did not surrender. He reached with his right arm towards the floor of the backseats and started to rifle through a duffle bag. The SO, standing by the open driver side rear window with his gun drawn and pointed at the Complainant, told him to stop reaching into the bag. Concerned that the Complainant was retrieving a gun, the officer took aim at his exposed right shoulder and shot once. As the Complainant continued to reach into the rear compartment, and came up with his right hand with what the SO feared was a gun, the SO fired a second round. This one was aimed at the back of the driver’s seat. The Complainant fell back into the driver’s seat following the second shot and became largely still.
Realizing that the Complainant had been shot and was in need of medical attention, WO #11 climbed into the rear seats of the truck and attempted to extricate him from the vehicle. With the help of NRPS ETU officers arriving on scene, the Complainant was removed and emergency medical care provided while waiting for paramedics to attend.
The Complainant could not be revived at hospital and was pronounced deceased.
Cause of Death
The pathologist at autopsy concluded that the Complainant’s death was attributable to ‘gunshot wound of back’. The Complainant had suffered only one gunshot wound – a penetrating gunshot wound of the right upper back. The bullet, retrieved from the sternum, had travelled back to front and slightly right to left through the body. Relevant Legislation
Section 25, 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.
(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservations of any one under that person’s protection from death or grievous bodily harm.
(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if
(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;(c) the person to be arrested takes flight to avoid arrest;(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and(e) the flight cannot be prevented by reasonable means in a less violent manner.
(5) A peace officer is justified in using force that is intended or is likely to cause death or grievous bodily harm against an inmate who is escaping from a penitentiary within the meaning of subsection 2(1) of the Corrections and Conditional Release Act, if
(a) the peace officer believes on reasonable grounds that any of the inmates of the penitentiary poses a threat of death or grievous bodily harm to the peace officer or any other person; and(b) the escape cannot be prevented by reasonable means in a less violent manner.
Analysis and Director's Decision
On January 5, 2021, the Complainant was shot by a NRPS officer and died from his wounds. 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 death.
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. In the case of lethal force, section 25(3) further provides that such force is not justified unless the officer reasonably believed at the time of its use that it was necessary for their preservation or the preservation of another person under their protection from death or grievous bodily harm. In the instant case, I am unable to reasonably conclude that the SO acted outside the scope of the protection recognized by section 25 of the Code.
By the time of the shooting, the officers present at the scene, including the SO, had reasonable grounds to believe that the Complainant was driving a stolen vehicle and that he had operated the vehicle with reckless disregard for the lives and safety of pedestrian and vehicular traffic around him. In the circumstances, the officers were within their rights in seeking to arrest the Complainant.
I am also satisfied that the SO, at the time of the shooting, discharged his weapon in the reasonable belief that it was necessary to do so to protect himself from death. That is what he told the SIU in his interview, and there is insufficient evidence in the record to not take the officer at his word. More particularly, the SO believed the Complainant was reaching for a gun when he initially discharged his firearm, and that the Complainant had retrieved a gun and was about to shoot at the time of the second shot. Though it is clear that the SO’s apprehensions were mistaken - there was no gun in the pickup truck and the Complainant did not have a gun at his disposal during the shooting – I am not persuaded that his mistakes were unreasonable in the circumstances.
Consider the context. By the time his truck was effectively immobilized by the side of the road, the Complainant had led police officers from four police services on an hours’ long rampage through the streets of several jurisdictions. The lives of third-parties had been directly imperiled as the Complainant ran stop signs and red lights, grossly exceeded the speed limit, travelled in oncoming lanes of traffic, and struck objects along his path. No reasonable person would have been in any doubt of the Complainant’s dogged determination to escape police apprehension at any cost.
Consider also the immediate circumstances that prevailed at the time of the shooting. Despite being surrounded by officers and cruisers on all sides, the Complainant continued to try and break free of the police blockade. He revved the engine and steered from side to side, kicking up smoke and dirt into the air, and reasonably causing the officers to fear for their safety should the truck acquire traction and become mobile. Set against this scene, I am unable to fault the SO for approaching the open rear driver side window with his gun drawn and pointed at the Complainant. Thereafter, when the Complainant reached back with his right arm into a duffle bag in the rear compartment of the truck, the SO had reason to be concerned that he was attempting to access a firearm. In the circumstances, the officer was entitled to defend himself from an imminent and reasonably apprehended danger to life and limb. Thereafter, when the SO believed he saw a firearm in the Complainant’s hand, he was similarly justified in meeting a potentially lethal attack with lethal force of his own.
To reiterate, the Complainant did not actually have a gun, nor access to a gun, at the time of the SO’s gunfire. However, it is important to take note of several pieces of evidence that lend themselves to the reasonableness of the SO’s mistaken beliefs. First of all, there actually was a duffle bag in the rear compartment of the pickup truck which the Complainant was, on the clear weight of the evidence, reaching into when he was shot. Second, the truck contained handheld butane torches that the Complainant had used that day to vaporize and inhale methamphetamine. The torches, fashioned in the shape of a garden hose nozzle, could conceivably have been misperceived as a gun in the fraught circumstances that existed at the time. Third, the Complainant’s front seat passenger, CW #1, said that the Complainant was actually holding one of these torches, trying to consume more drugs, as the truck was surrounded by officers. Lastly, one of these butane torches was found not far from the Complainant’s right hand after the shooting.
In the result, as I am satisfied that the SO comported himself within the limits of the criminal law when he fired his weapon twice at the Complainant, there are no grounds for proceeding with criminal charges in this case.
Date: December 22, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. In the case of lethal force, section 25(3) further provides that such force is not justified unless the officer reasonably believed at the time of its use that it was necessary for their preservation or the preservation of another person under their protection from death or grievous bodily harm. In the instant case, I am unable to reasonably conclude that the SO acted outside the scope of the protection recognized by section 25 of the Code.
By the time of the shooting, the officers present at the scene, including the SO, had reasonable grounds to believe that the Complainant was driving a stolen vehicle and that he had operated the vehicle with reckless disregard for the lives and safety of pedestrian and vehicular traffic around him. In the circumstances, the officers were within their rights in seeking to arrest the Complainant.
I am also satisfied that the SO, at the time of the shooting, discharged his weapon in the reasonable belief that it was necessary to do so to protect himself from death. That is what he told the SIU in his interview, and there is insufficient evidence in the record to not take the officer at his word. More particularly, the SO believed the Complainant was reaching for a gun when he initially discharged his firearm, and that the Complainant had retrieved a gun and was about to shoot at the time of the second shot. Though it is clear that the SO’s apprehensions were mistaken - there was no gun in the pickup truck and the Complainant did not have a gun at his disposal during the shooting – I am not persuaded that his mistakes were unreasonable in the circumstances.
Consider the context. By the time his truck was effectively immobilized by the side of the road, the Complainant had led police officers from four police services on an hours’ long rampage through the streets of several jurisdictions. The lives of third-parties had been directly imperiled as the Complainant ran stop signs and red lights, grossly exceeded the speed limit, travelled in oncoming lanes of traffic, and struck objects along his path. No reasonable person would have been in any doubt of the Complainant’s dogged determination to escape police apprehension at any cost.
Consider also the immediate circumstances that prevailed at the time of the shooting. Despite being surrounded by officers and cruisers on all sides, the Complainant continued to try and break free of the police blockade. He revved the engine and steered from side to side, kicking up smoke and dirt into the air, and reasonably causing the officers to fear for their safety should the truck acquire traction and become mobile. Set against this scene, I am unable to fault the SO for approaching the open rear driver side window with his gun drawn and pointed at the Complainant. Thereafter, when the Complainant reached back with his right arm into a duffle bag in the rear compartment of the truck, the SO had reason to be concerned that he was attempting to access a firearm. In the circumstances, the officer was entitled to defend himself from an imminent and reasonably apprehended danger to life and limb. Thereafter, when the SO believed he saw a firearm in the Complainant’s hand, he was similarly justified in meeting a potentially lethal attack with lethal force of his own.
To reiterate, the Complainant did not actually have a gun, nor access to a gun, at the time of the SO’s gunfire. However, it is important to take note of several pieces of evidence that lend themselves to the reasonableness of the SO’s mistaken beliefs. First of all, there actually was a duffle bag in the rear compartment of the pickup truck which the Complainant was, on the clear weight of the evidence, reaching into when he was shot. Second, the truck contained handheld butane torches that the Complainant had used that day to vaporize and inhale methamphetamine. The torches, fashioned in the shape of a garden hose nozzle, could conceivably have been misperceived as a gun in the fraught circumstances that existed at the time. Third, the Complainant’s front seat passenger, CW #1, said that the Complainant was actually holding one of these torches, trying to consume more drugs, as the truck was surrounded by officers. Lastly, one of these butane torches was found not far from the Complainant’s right hand after the shooting.
In the result, as I am satisfied that the SO comported himself within the limits of the criminal law when he fired his weapon twice at the Complainant, there are no grounds for proceeding with criminal charges in this case.
Date: December 22, 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.