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 serious injuries a 63-year-old man (the “Complainant”) suffered.

Notification of the SIU

On 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 Team

Date 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

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.

The following scenario emerges from the evidence collected by the SIU, which included interviews with police officers and civilian witnesses present at the time of the shooting, and video recordings from security cameras in the vicinity that captured the incident. As was his legal right, the SO chose not to interview with the SIU. He did provide a written statement and authorized the release of his notes.

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.

On September 5, 2021, the Complainant was shot and seriously injured by a CKPS officer in Tilbury. The officer who pulled the trigger – 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 shooting.

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

Joseph Martino
Director
Special Investigations Unit