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 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 70-year-old man (the “Complainant”).

Notification of the SIU

The Team

The Scene

Physical Evidence

The SO’s Police Equipment

On November 3, 2021, at 6:15 p.m., an SIU Forensic Investigator met with TPS to receive and examine police equipment involved in this incident, including a ballistic vest with one pair of handcuffs and two spare Glock magazines containing 14 cartridges each. These items were examined, photographed, and then returned to TPS. Also examined was a knapsack containing three spare Glock model 27 magazines containing eight rounds each. These items were photographed, and then returned to TPS.

The SO’s firearm was a Glock Model 22, .40 calibre semi-automatic pistol. The SIU Forensic Investigator removed one cartridge from the breech. One magazine was removed from the pistol grip. This magazine contained nine cartridges. At 6:37 p.m., the SIU Forensic Investigator took possession of the firearm with magazine and cartridges.


Figure 1 – The SO’s firearm

Evidence from the Workshop

The evidence obtained by SIU Forensic Investigators from the workshop consisted of:

1.  – pistol from floor;
2.  – cartridge case from workbench;
3.  – cartridge case from floor, northeast corner of room;
4.  – cartridge case from floor, northeast corner of room;
5.  – medical waste;
6.  – bullet jacket fragment from floor, front of workbench;
7.  – swab of staining on floor suspected to be blood; and
8.  – cartridge case from centre of room amongst tools.

Figure 2 – Pistol located on the floor of the workshop

The following scenario emerges from the evidence collected by the SIU, which included interviews with police officers who were in and around the scene of the shooting, including WO #4, present throughout the events in question. The investigation also benefitted from the eyewitness evidence of a civilian, who was also in the immediate vicinity of the shooting. Importantly, the civilian eyewitness evidence was materially consistent with the police eyewitness accounts. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes. CW #3, the Complainant’s wife, also refused to participate in the SIU’s investigation.

Shortly after 12:00 p.m. of November 3, 2021, officers with the TPS Firearms Enforcement Unit (FEU) arrived at a property on Port Ryerse Road, Simcoe – the residence of the Complainant and his wife, CW #3. They had driven to the residence to execute a warrant obtained under the Criminal Code authorizing the search of the Complainant’s residence and outbuildings on the property in aid of a firearms-trafficking investigation. Firearms had been recovered in two separate police investigations, including a kidnapping, that were registered to a firearms business owned by the Complainant. [4] In neither case had the Complainant, a gunsmith, reported the firearms stolen or missing, and thus it was suspected that he or an associate had illegally traded in firearms.

WO #3 of the FEU met with his team, consisting of Officer #1, the SO, WO #4, WO #1, WO #2 and WO #5, at a destination in Hagersville. They talked about the case, examined the search warrant that had been obtained, and viewed a photograph of the Complainant. Given the Complainant’s age and the absence of an indications of violence in his past, it was decided that the team would execute a ‘soft entry’ into the residence; that is, officers would knock, announce their presence, and ask to speak with the Complainant before entering the home. According to WO #4, the team leader, had there been any articulable risks associated with the Complainant, consideration would have been given to a dynamic entry and the use of Emergency Task Force officers.

WO #4 further explained that he did not think it necessary to have OPP officers present during the execution of the search warrant. It was not unusual for officers from the FEU to travel outside their jurisdiction to execute warrants and WO #4 was confident that his team were fully qualified and equipped in this case to proceed on their own. He did contact the OPP in advance to ensure they were aware of the TPS presence and what they were doing.

The officers arrived in three unmarked police vehicles, parking them just south of the Complainant’s residence, exited, and made their way to the home. The Complainant and his wife had just returned home from a shopping trip; the Complainant was in his workshop north of the home, and his wife was unloading groceries from their vehicle. Several officers spoke with the Complainant’s wife as she made her way to the entrance of her home. They asked her where her husband was, and she answered he was in the workshop.

In the workshop with the Complainant at the time was a client - CW #2. CW #2 had recently purchased a Norinco 1911-A1 compact .45 calibre pistol, and had brought it in to the Complainant for a repair. His intention had been to drop it off and return for it later, but the Complainant convinced him to wait as the repair would only take about 15 minutes. CW #2 provided the Complainant the gun in a gun case, and observed as the Complainant performed the repair. The Complainant was putting the pistol together again – the magazine had not been reinserted in the firearm but it looked like a complete gun – when he heard sound from behind him.

The sound was coming from the approach of FEU officers – the SO, followed closely by WO #4. The officers called out, “Police, search warrant,” and, “Put your hands up,” as they neared and entered the workshop’s pedestrian door. CW #2 surmised that it was the police and raised his hands.

With their guns drawn, the SO and WO #4 quickly turned their attention to the Complainant, seated by a workbench to the left of the pedestrian door. The Complainant did not raise his hands at the officers’ repeated direction. Within seconds of their entry, he reached with his right hand towards the workbench, retrieved CW #2’s firearm, and turned with it in the officers’ direction as they yelled at him to “drop the gun”. The SO fired his gun – a Glock .40 calibre semi-automatic – four times in rapid succession, striking the Complainant and knocking him off his chair onto his back. The time was about 12:15 p.m.

Following the shooting, the officers escorted CW #2 out of the workshop, placed him on the ground and handcuffed him to the back. He was later released. WO #3 and WO #1 entered the garage and rendered care to the Complainant, including the administration of CPR.

Paramedics attended the address and took over the Complainant’s care. He was transported to hospital and declared deceased at 1:17 p.m.

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 November 3, 2021, the Complainant died as the result of gunshot wounds inflicted by a TPS officer. The officer in question – the SO – was identified as a 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 and death of the Complainant.

Pursuant to section 34 of the Criminal Code, force used in the defence of oneself or another from a reasonably apprehended attack, actual or threatened, is legally justified if the force was itself reasonable. The reasonableness of the force is to be assessed against all the relevant circumstances, including such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. In my view, the SO was within his rights under section 34 in discharging his firearm.

The SO was lawfully placed throughout the series of events culminating in the shooting. The team of FEU officers had travelled to the Complainant’s residence to search the property on the strength of a facially valid warrant obtained under the Criminal Code authorizing the search by TPS officers. [5] In obtaining the warrant, the police would have satisfied a justice that there were reasonable grounds to believe that evidence of a criminal offence would be found on the property, in this case, evidence of illegally trafficked firearms.

I am further satisfied that the FEU officers, including the SO, comported themselves reasonably in the execution of the warrant. In order to ensure there was no confusion as to what they were doing outside their home jurisdiction, they had contacted the OPP to notify them of their intentions. The team had decided on a ‘soft entry’, as opposed to a ‘hard entry’ or ‘dynamic entry’, wherein officers would knock on the door and ask to speak to the Complainant before conducting their search, properly taking into account the Complainant’s age and the absence of any documented violence in his past. That is precisely what they did, first, in respect of the Complainant’s wife by the front of the home, and then in relation to the Complainant, in respect of whom the evidence indicates that the SO and WO #4 approached the workshop announcing their status as ‘police’ with a search warrant. It is true that the SO and WO #4 entered the workshop with their guns drawn and immediately asked that the Complainant and CW #2 raise their hands, but these would appear to have been reasonable precautions in the circumstances. They were, after all, investigating a serious criminal offence and had reason to believe that there would likely be firearms in the workshop – the Complainant was a gunsmith.

While the SIU is without first-hand evidence of the SO’s state of mind at the time the shots were fired – the officer having exercised his right to remain silent – I am persuaded on the basis of the prevailing circumstances that he fired his weapon to protect himself, and, possibly, WO #4, from a reasonably apprehended assault. For whatever reason, the Complainant ignored the officers’ direction that he raise his hands. It would seem unlikely that he was mistaken as to who had entered his workshop. To reiterate, the officers had announced their presence, and they were wearing vests with the word ‘police’ on the front and back. And CW #2, also in the workshop, had quickly and correctly grasped that they were dealing with police officers, and promptly raised his hands. Thereafter, again for reasons that are unknown, the Complainant retrieved a gun that he had been working on – the one CW #2 had brought in for repair – from a nearby workbench, refused to put it down at the officers’ insistence, and pointed it in the direction of the officers. WO #4, standing beside the SO and similarly situated to his colleague, says that he feared for their lives at that moment, and that he was just about to fire his weapon to defend himself when he heard his colleague’s firearm being discharged. On this record, there is little doubt that the SO would have felt the same way.

With respect to the force used by the SO, namely, the discharge of four rounds from his firearm at the Complainant, the evidence does not reasonably establish that it was excessive force. In fact, at a distance of no more than a few metres from the Complainant, it is difficult to imagine what else the SO could have done to protect himself. As it turns out, the firearm in the Complainant’s hand was not in condition to be fired at the time, but the SO would not have known that. The gun looked like it was operable. Certainly, that was the distinct impression of WO #4 and CW #2, the latter of whom was shocked to see the Complainant retrieve and point the firearm as he did. In the circumstances, in the split seconds in which the SO had to make a life-and-death decision, I am unable to fault the officer for choosing to meet a reasonably apprehended threat of imminent and lethal force with a resort to lethal force of his own. Given the speed with which events unfolded inside the workshop, no more than about five to ten seconds on the estimate of the civilian eyewitness from the time the officers entered until the shooting, and less than that from the moment the Complainant took hold of the gun, retreat or withdrawal to a position of cover were not realistic options. Nor, given the rapidity of the shots, is there evidence to reasonably believe that the threat level had materially changed throughout the gunfire.

In the result, as there are no reasonable grounds to believe that the force used by the SO was not legally justified, there is no basis for proceeding with criminal charges in this case against the officer.


Date: March 3, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit