SIU Director’s Report - Case # 21-OFI-293
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Mandate of the SIU
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, 2019Pursuant 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 ActPursuant 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, 2004Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.
Other proceedings, processes, and investigationsInformation 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.
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 serious injuries a 63-year-old man (the “Complainant”) suffered.
Notification of the SIUOn September 6, 2021, at 2:02 a.m., the Chatham-Kent Police Service (CKPS) reported the following.
On September 5, 2021, at 7:57 p.m., CKPS officers responded to a 911 call at a residence on Laurentia Drive in Tilbury. The occupants, the Complainant and his wife, CW #6, were home and advised the officers the 911 call had been placed in error. The Complainant was intoxicated at the time. The police officers departed.
Later that evening, at 10:52 p.m., the CKPS received a call from the Complainant stating he was going to be at the intersection of Laurentia Drive and Rose Avenue with firearms. Responding police officers returned and entered the Complainant’s residence. Witness Official (WO) #4 remained outside and observed the Complainant outside the residence with a crowbar. The Complainant’s other hand was concealed near his waistband. The Subject Official (SO), WO #1 and WO #2 exited the residence.
The Complainant was noncompliant when ordered to drop the crowbar. WO #2, WO #4 and the SO deployed their conducted energy weapons (CEWs). The Complainant then pulled an object from his waistband and pointed it at WO #1. The SO discharged his pistol and struck the Complainant twice. A third bullet struck a parked vehicle.
The officers administered first aid until paramedics arrived and transported the Complainant to Chatham-Kent Health Alliance (CKHA) hospital.
The TeamDate and time team dispatched: 09/06/2021 at 2:31 a.m.
Date and time SIU arrived on scene: 09/06/2021 at 6:13 a.m.
Number of SIU Investigators assigned: 5
SIU Forensic Investigators examined the scene, collected exhibits, took photographs, and deployed a Total Station device to forensically map the scene.
SIU investigators interviewed civilian and police witnesses.
The neighbourhood in which the incident occurred was canvassed and the SIU obtained closed-circuit television (CCTV) recordings from residences.
Affected Person (aka “Complainant”):63-year-old male declined to be interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Not interviewed (Next-of-kin)
The civilian witnesses were interviewed between September 6 and 14, 2021.
Subject OfficialSO Declined interview, as is the subject official’s legal right. Notes received and reviewed.
Witness OfficialsWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Notes reviewed; interview deemed not necessary
WO #6 Notes reviewed; interview deemed not necessary
The witness officials were interviewed between September 9 and 29, 2021.
The Scene The scene was located on the roadway in front of the Complainant’s residence on Laurentia Drive in Tilbury. Overhead street lighting was located on the south side.
West of the driveway of the Complainant’s residence, SIU Forensic Investigators identified four spent pistol cartridge cases, two CEWS (one cartridge fired from each CEW) and various CEW debris, clothing items, a crowbar, and a battery-operated drill/screwdriver. A footprint on the lawn in front of the Complainant’s residence suggested the SO’s position when he discharged his firearm.
A vehicle parked at the end of the driveway of a nearby residence on Laurentia Drive had a bullet defect in the right rear fender, near the taillight. Only small copper fragments were identified in the area between the trunk and the fender. Those fragments were photographed but left in place, as recovery was not possible without significantly damaging the vehicle.
The SO’s pistol, a Glock Model 22 semi-automatic .40 caliber pistol, was turned over to the SIU. The pistol was found to have a bullet in the chamber and 11 bullets in the magazine. The SO’s two spare magazines were found to contain 13 and 15 bullets.
Figure 1 – The SO’s firearm
Figure 2 – Drill/screwdriver and crowbar
Physical Evidence From Laurentia Drive the SIU collected CEW deployment debris (probes, wires, and blast doors), two discharged CEWs, the Complainant’s shirt and four spent cartridge cases. The SIU also collected a handheld drill and a crowbar from the scene. CKPS turned the SO’s duty belt, including his firearm, over to the SIU at the scene.
The Complainant’s clothing was also collected. His pants and underwear had a defect in the right buttock area. His T-shirt had a defect in the right shoulder. The back of his left and right boots each had an apparently new defect. The right leg of the Complainant denim pants had two defects at the bottom of the pant leg, which were believed to be associated with the defects in his boots.
CEWThe download of CEW serial number B2900032K (carried by WO #1) determined cartridge #1 was deployed on September 5, 2021 at 11:20:39 p.m. (adjusted time) for five seconds, followed by an additional two-second trigger deployment at 11:20:50 p.m.
The download of CEW serial number X290084Y6 (carried by WO #4) determined cartridge #1 was deployed on September 5, 2021 at 11:20:40 p.m. (adjusted time) for four seconds.
The download of CEW serial number X29009KMF (carried by the SO) determined cartridge #1 was deployed on September 5, 2021 at 11:20:40 p.m. (adjusted time) for five seconds.
The SO’s FirearmThe SO’s firearm was equipped with a flashlight. The firearm was found to contain one bullet in the chamber and 11 in the attached magazine. His spare magazines were found to contain 13 and 15 bullets respectively. The SO did not consent to an interview with the SIU, so his loading practices were unknown. If he was in the habit of “topping up” after loading a 15-bullet magazine into his pistol, the number of bullets expected to be loaded in his firearm would have been 16, indicating he fired four times. However, the magazine containing 13 bullets suggested the SO was inconsistent with his loading practices, and no conclusions should be drawn with respect to the number of bullets that he would usually have in his firearm by habit.
CFS Submissions and ResultsOn October 12, 2021, an SIU Forensic Investigator attended the CKHA hospital for the purpose of obtaining exhibits held by the hospital, under the authority of a release form signed by the Complainant. Two exhibit bags that had been previously sealed by an SIU Investigator were turned over to the SIU. One bag contained a bullet recovered from the Complainant. The other bag contained vials of admission blood.
On October 13, 2021, spent cartridge cases recovered at the scene were submitted to the CFS, along with the SO’s firearm. The Complainant’s jacket and ripped jeans were also submitted to the CFS. The CFS declined to accept the bullet and blood obtained from the hospital.
At the time of the preparation of this report, the CFS report had not been received by the SIU.
Video/Audio/Photographic Evidence 
CKPS Communication RecordingsOn September 5, 2021, at 10:51 p.m., a male caller [the Complainant] called 911 and stated, “Yeah, I will be at Rose and Laurentia with my guns.” The Complainant then hung up. At 10:52 p.m., the call-taker called the source telephone number, but the Complainant’s phone would not receive calls from private numbers.
At 10:52 p.m., the SO, WO #2 and WO #1 were dispatched. The SO was advised the call had come from a landline at an address on Laurentia Drive. The police officers arranged to meet. A check of police records for the Complainant indicated no firearms were registered in his name, but he had been charged with assault.
At 11:19 p.m., the SO advised the house was clear and the Complainant had not yet been located. At the same time, an officer radioed, “We got him out on the street.”
At 11:21 p.m., the SO radioed that shots had been fired and he requested an ambulance.
CCTV from Residence #1 on Laurentia Drive A video recording from a residence on Laurentia Drive recorded some of the interaction between the Complainant and the police officers. The time and date stamps on the video recording were incorrect. The following times reflect the elapsed time of the video recording, which appeared to flow in real time.
At 00:18 (18 seconds) elapsed time, the video recording captured areas of Laurentia Drive being illuminated by moving flashlights. At 00:22 and 00:23 elapsed time, two loud popping noises could be heard. At 00:26 elapsed time, police officers began ordering the Complainant to, “Put it down,” and, at 00:30 elapsed time, there was a sound that resembled a drill being activated. The light from the flashlights illuminating the street were in motion at the time. At 00:37 elapsed time, four gunshots could be heard. A woman, believed to be CW #6, and the police officers were yelling.
At 07:12 elapsed time, an ambulance entered the image.
At 00:55 (55 seconds) elapsed time, a person walked out onto Laurentia Drive, followed by another person further east. The first person, believed to be the Complainant, walked into the middle of the street and he then appeared to return to the area in front of his home. At 01:40 elapsed time, the Complainant then walked out onto the street, with three individuals following him onto the roadway. The three individuals were in a firing stance and they appeared to be holding flashlights, or firearms or CEWs with a flashlight component, activated.
At 01:55 elapsed time, three popping noises, consistent with CEW deployments, were recorded. At 01:59 elapsed time, the police officers started to yell at the Complainant to, “Put it down.” At 02:03 elapsed time, there was a sound resembling a cordless drill being activated, and, at 02:09, the sound of four gunshots was recorded. The police officers cautiously approached the Complainant, while CW #6 could be heard yelling the police had shot her husband. At 02:47 and 02:51 elapsed time, the sound resembling a drill being activated could again be heard.
CW #6 continued to call out to her husband and yell at the police officers. At 08:45 elapsed time, an ambulance arrived on scene.
CCTV from Residence #2 on Laurentia Drive On September 5, 2021 at 8:04 p.m., two police officers arrived at the Complainant’s residence and went to the front door. The conversation was indiscernible. At 8:07 p.m., a male [the Complainant] wearing a T-shirt entered the camera view, standing on his driveway. The Complainant denied he had called 911. A female [CW #6] explained to the officers that the Complainant was attempting to dial 411 and had accidentally called 911. At 8:14 p.m., the police officers told the Complainant to go to bed, and they wished him a good night and left the driveway.
At 11:18 p.m., the Complainant was on his driveway when a police officer [WO #4] emerged from the side of the house. The Complainant immediately said, “Don’t shoot my dogs.” WO #4 directed the Complainant to remove his hands from his pockets and the Complainant repeatedly replied, “No.” The Complainant began to move toward the roadway, and he asked WO #4 to turn off his light. He told WO #4, “Leave us alone. We’re tired of you people.” WO #4 directed the Complainant to remove his hands from his pocket.
The video recording did not record the shooting of the Complainant.
At 11:27 p.m., as an ambulance arrived on scene, CW #6 could be heard yelling profanities at an officer, who directed her to return inside her residence. The officer cautioned CW #6 regarding causing a disturbance. CW #6 replied, “You guys shot my husband,” and she told the officer she heard, “Plenty of officers say drop the gun. Drop it.”
Materials Obtained from Police ServiceUpon request, the SIU received the following materials from CKPS between September 9 and 29, 2021:
- Communication Recordings;
- CEW Pulse Graphs for the three deployed CEWs;
- CEW Sign Out Sheets;
- CKPS contact record for the Complainant;
- Event Chronology - 911 Call – September 5, 2021;
- Event Chronology - Weapons Call – September 5, 2021;
- General Report - Domestic Dispute;
- General Report - Weapons;
- Notes - WO #2;
- Statement (Will Say) – WO #2;
- Notes - WO #1;
- Statement (Will Say) – WO #1;
- Notes – WO #6;
- Statement (Will Say) – WO #6;
- Notes - the SO;
- Statement (Will State) – the SO;
- Notes - WO #4;
- Statement (Will State) – WO #4;
- Scene Photographs; and
- Policy for Use of Force.
Materials Obtained from Other SourcesThe SIU obtained and reviewed the following records from other sources:
- Ambulance Call Report;
- Medical Records – from CKHA;
- Medical Record – from London Health Sciences Centre;
- Cellular Telephone Video – from CW #1;
- Cellular Telephone Video – from CW #3;
- CCTV from Residence #1 on Laurentia Drive; and
- CCTV from Residence #2 on Laurentia Drive.
At about 10:51 p.m., the Complainant called 911 from his residence on Laurentia Drive, Tilbury. That was the second such call from the address in a matter of hours. At about 8:00 p.m., WO #1 and WO #4 had attended at the home following a disconnected 911 call. The officers spoke with the Complainant and his wife, CW #6, both of whom were inebriated, and were told that the couple had dialed 911 in error while attempting to call ‘411’. On this occasion, the Complainant told the call-taker that he would be at “Rose and Laurentia” with my guns” before hanging up without further explanation. Officers were dispatched to investigate.
WO #4 and WO #1 re-attended the area, this time joined by the SO and an officer the SO was coaching – WO #2. The officers parked their vehicles a distance from the residence and approached the home on foot, searching the Laurentia Drive and Rose Avenue intersection and surrounding area in the process. They were met by CW #6 at the front door of the home. She noted that the Complainant was likely in the basement and invited the officers inside to search for him. The SO, WO #1 and WO #2 entered the home as WO #4 remained outside. Within minutes, the Complainant was located by WO #4 on the front driveway of the home.
The Complainant had emerged from the side of the garage holding a crowbar in his left hand. Asked by WO #4 to put the crowbar down, the Complainant repeatedly refused as he walked down the driveway towards the road. He also refused requests to remove his right hand from the inside of the unzippered jacked he was wearing. Concerned that he was in possession of a firearm, WO #4 drew his CEW and pointed it at the Complainant.
Advised via radio that he was outside, the other three officers exited the home and took up positions around the Complainant. The Complainant was repeatedly asked to drop the crowbar and remove his right hand from his jacket, and continued to refuse as he and the officers drifted slowly westward on Laurentia Drive. At a point just north of the driveway of the home immediately west of the Complainant’s residence, believing he was retrieving a firearm from inside his jacket, WO #4, the SO and WO #1 each discharged their CEWs in the Complainant’s direction.
The Complainant dropped the crowbar to the road, but continued to stand-off against the officers as he removed his right hand from his jacket holding an object, pointing it in the general direction of the officers, and, most specifically, at WO #1. The SO retreated onto the lawn of the Complainant’s residence. From that location, at a distance of no more than about 15 metres from the Complainant, the SO fired his semi-automatic handgun four times in the Complainant’s direction. The time was about 11:21 p.m.
The Complainant fell onto his left side. He had been struck by two of the bullets: one to the right tricep, the other to the right buttock.
The SO and WO #1 rushed to the Complainant’s side and administered first aid as they awaited the arrival of paramedics. Beside the Complainant on the road was the crowbar he had been holding and a cordless screwdriver – the object mistaken for a gun in his right hand.
Section 34, Criminal Code -- Defence of person - Use or 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.
Analysis and Director's Decision
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 repel a reasonably apprehended attack against oneself or another, 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. The shooting of the Complainant by the SO fell within the remit of authorized force prescribed by section 34.
It is important to note at the outset that each of the involved officers were lawfully placed throughout the events in question. They had been dispatched following a call to police by the Complainant indicating that he was armed with firearms and present at a public intersection near his home. This was the second of two interactions with the police by the Complainant that evening. Several hours earlier, following a disconnected 911 call, officers had attended at the residence and dealt with an inebriated Complainant. In the circumstances, the officers had good reason to take the call about weapons seriously and were duty bound to investigate and take such reasonable measures as might be necessary in the interests of public safety.
While the SO chose not to speak with the SIU as was his legal right, depriving the SIU of the best evidence regarding his mindset when he discharged his weapon, I am satisfied on the basis of his written statement and the circumstantial evidence that prevailed at the time that he honestly and reasonably believed it was necessary to shoot the Complainant to protect his colleague – WO #1 – from imminent death. The Complainant had confronted the officers with a crowbar, refusing to drop it despite their repeated direction that he do so. He also kept his right hand concealed within his unzippered jacket, refusing to remove it at the officers’ commands, in what reasonably would have been perceived as an attempt to conceal and/or access a weapon, such as a firearm. On this record, when the Complainant finally did remove his right hand from his jacket, holding a cordless screwdriver that might reasonably have been perceived to be a firearm in the dark lighting conditions at the time, I accept that the SO acted to thwart what he legitimately believed to be a real and present danger of death to WO #1.
I am also satisfied that the SO acted reasonably in firing his weapon. Retreat or withdrawal were not realistic options in the circumstances. Given what he had led officers to believe in his 911 call, and his behaviour on the roadway, the officers had good cause to be concerned for the safety of residents in the area if the Complainant was left unchecked. Nor did the SO act precipitously in resorting to gunfire. The officers, including the SO, had first attempted to verbally persuade the Complainant to stand down. Thereafter, believing he was in the process of retrieving a firearm from inside his sweater, the SO, together with WO #4 and WO #1, fired their CEWs at the Complainant. It was only when the CEW discharges failed to ‘disarm’ the Complainant, and the Complainant pointed what he believed was a firearm in the officers’ direction, that the SO fired his gun. Though he was mistaken about the nature of the item in the Complainant’s hands, the SO’s mistake, I am satisfied, was a reasonable one to have made given the fraught nature of the moment, the Complainant’s efforts to deceive the officers via the information he provided in his 911 call and his deliberate gestures at the scene, and the split-second in which the SO had to make a decision about the nature of the threat the officers were facing. In arriving at this conclusion, I note that WO #4 and WO #1, similarly situated to the SO, were also of the view that the Complainant was pointing a firearm when he was shot by the SO. Finally, with respect to the number of shots fired by the SO, I am satisfied on reasonable grounds that the nature of the threat perceived by the officer did not appreciably change throughout the gunfire given the rapidity of the shots.
In the final analysis, I am unable to reasonably conclude on the evidence that the SO acted without legal justification when he reacted to a reasonably perceived threat of lethal force being brought to bear against another officer with a resort to lethal force of his own. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: January 4, 2022
Electronically approved by
Special Investigations Unit
- 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]
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.