SIU Director’s Report - Case # 21-PFD-402
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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 57-year-old man (the “Complainant”).
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 57-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On November 25, 2021, at 11:37 a.m., the OPP contacted the SIU and reported the following.On November 25, 2021, at approximately 10:05 a.m., the Subject Official (SO) attended a rural address near Highway 49 and Highway 37 to investigate a theft of gasoline complaint. Upon arrival at the residence, he encountered a male [now known to be the Complainant] armed with a rifle. The male pointed the rifle at the SO. The SO drew his pistol and fired a single round [now known to be seven rounds] and then disengaged. The SO called for back-up and waited for their arrival. When the additional officers arrived, they went back onto the property to look for the male with the rifle. They located him deceased on the rear deck of the residence.
The Team
Date and time team dispatched: 11/25/2021 at 1:50 p.m.Date and time SIU arrived on scene: 11/25/2021 at 3:08 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 3
The SIU Forensic Investigators (FIs) completed the scene examination, collected shell cases, video-recorded and took photographs of the scene, and measured the scene with a Total Station device for forensic mapping purposes.
The area was canvassed for witnesses.
A .44 calibre rifle, an indented cartridge and the SO’s pistol were forwarded to the Centre of Forensic Sciences (CFS) for examination.
Affected Person (aka “Complainant”):
57-year-old male, deceasedSubject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on December 3, 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Notes reviewed; interview deemed not necessary
The witness officials were interviewed on November 27, 2021.
Evidence
The Scene
On November 25, 2021, the SIU FIs arrived at the scene near Highway 49 and Highway 37, Bobcaygeon.The area was rural and sparsely populated. The residence was a single-family house with an attached garage. An un-marked silver 4-door Ford Police Interceptor (Taurus) was in the driveway of the residence and in front of the closed garage door to the residence. The vehicle was running with the right front door open.
There was an open pedestrian door to a garage at the rear of the residence. There was a vehicle inside the garage.
There was a closed pedestrian door with access to the rear landing of the residence. There was an OPP business card of the SO with hand printed on it: “Call me please.”
There was a deck at the rear of the residence. There was a hand railing that went around the edges of the deck. There was an apparent bullet strike to the underside of the handrail - 0.7 metres from the side of the residence. The bullet graze measured about 8 centimetres in length in the wood handrail. There was an open door from the residence that allowed the only access onto the deck. The Complainant was on the deck and covered with a blue tarp.
The Complainant was on his back with his head towards the south and his feet towards the north. His right leg was straight while his left leg was bent at the knee and his lower leg was under his right leg. His left arm was under his torso while the right arm was at his right side. He was dressed in slippers (left slipper off), blue jeans with black belt, dark plaid button long sleeve shirt – buttons opened exposing chest. There was an area of heavy blood pooling between the residence and the Complainant. Heavy blood staining was present to his exposed skin areas and clothing.
A Winchester Model 94AE .44 calibre lever action rifle was located on the southwest corner of the deck. The muzzle was pointing towards the residence. The lever action was partially open. The hammer was back or cocked. The rifle was blood stained. A .44 calibre cartridge was in the breech. The primer of the cartridge appeared as if it had been struck.
Figure 1 - The Winchester Model 94AE .44 calibre lever action rifle.
A Jennings model J-22 pistol was in the right rear pocket of the Complainant. The pistol was loaded with a .22 calibre cartridge and a magazine with five .22 calibre cartridges. The pistol was in the safe mode.
Figure 2 - The Jennings model J-22 pistol.
The scene was examined with metal detectors and hand tools with a total of seven 9 mm cartridge cases located in the area of the rear walkway.
The main floor consisted of bedrooms, bathroom, living room, dining room, and kitchen. There were two rifles on a wall rack in a bedroom.
There were pads of paper with Ontario daily COVID numbers recorded in the living room on a small table. There were two rifles on top of the dining room table.
Physical Evidence
On November 26, 2021, the SIU collected the ammunition, magazines, and the SO’s pistol, consisting of the following: • Glock 17M pistol with an attached Sure-Fire flashlight.
• The first spare magazine contained ten live 9 mm cartridges. The second spare magazine contained 17 live 9 mm cartridges. The pistol contained 17 live 9 mm cartridges in the magazine and one live cartridge in the breech.
Figure 3 - The Glock 17M pistol.
Video/Audio/Photographic Evidence [1]
The SIU obtained audio and video records of relevance, as set out below. Drone Footage
On November 25, 2021, the SIU received video footage taken by an OPP drone. The following is a summary of the footage - there were no time stamps or audio associated with the recording.The drone focused on the residence and surrounding property, hovering above the home. A body could be seen lying on the rear deck, visible from the waist down; the upper body was not visible because of the roof overhang. As the drone repositioned, it captured the Complainant face down on the back wooden deck outside a door leading into the house. His head was facing to the right. The Complainant was wearing blue jeans, a blue top, and shoes. His head was at the base of the door threshold, and his body was on a 45-degree angle away from the house. The Complainant’s right arm was underneath his body, his left arm was out to the left on a 90-degree angle at the elbow. As the drone zoomed in closer and circled, a rifle was seen underneath the Complainant pointing to the left. Most of the rifle was underneath the body of the Complainant, with the barrel pointing away from his body. His left hand was not on the rifle. The Complainant was not moving.
Communications Recordings
On December 1, 2021, the SIU received the OPP communications recordings. There were no time-stamps. The following is a summary of the recordings.At 10:03:01 a.m., the SO yelled, “Shots fired, [address], I need back up. I’m backing up, there was a male around back, he had a rifle, he pointed it at me. Last on the rear deck of the residence, he was on the ground when I backed off. He was on the rear deck balcony out there; I can’t hear him now. I’m out front of the house behind cover, so I’m going to wait for backup. I don’t have sight right now; he was at the rear of the house.”
The SO provided additional information, indicating that he had looked over to the deck and had seen a boot on the ground. He believed the male was lying on the back deck.
An ‘Initial Action Plan’ was discussed in which road containment would be established, the Emergency Response Team (ERT) would be deployed, and a command post would be established.
It was reported that nine ERT members were going to the scene, and that a drone would be deployed as well.
It was reported that the drone would be used to attempt to get a response from the male. The drone was able to capture one of male’s hands - the other hand appeared to be under his body. It was noted that the images depicted something red, like blood, underneath the male.
It was reported that the drone captured what appeared to be a long gun underneath the body of the male.
A request was made to have Emergency Medical Services (EMS) move into the area. Officers were inside the residence and on the back deck, and they were to escort the paramedics to the male on the back deck. It was noted that the male did not have a pulse.
It was reported that tactical officers had cleared the residence, and that EMS personnel were on property being escorted by ERT officers.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the OPP Kawartha Lakes (City of) Detachment:- Drawing (Sketch) of Scene by the SO;
- Notes of WOs;
- Occurrence Reports (x3)
- Drone footage; and
- Communications recordings.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the Kawartha Lakes Emergency Medical Service: - Incident Report and Ambulance Call Report.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the SO and two other officers who attended at the shooting scene in its aftermath. The investigation was also assisted by a forensic examination of the scene and items of evidence.
At about 10:00 a.m. of November 25, 2021, the SO found himself in the rear yard of a home located near Highway 37 and Highway 49, Bobcaygeon. He was there to speak to the Complainant in relation to the theft of gas from a Shell gas station that morning. The officer had earlier been to the gas station and viewed video of the theft. In fact, the SO had also been to the home the day before to investigate another theft of gas from the same station in September in which the Complainant was also the suspect. On that occasion, the officer had left after he was unable to reach anyone inside the home. On this occasion, the SO knocked on the ground-level door at the rear of the home. Again, there was no response, but the officer could hear music coming from inside the house. The music became louder and louder until, some seconds later, the SO heard the sliding door of the back deck open, north of his location, and a man appear.
The man was the Complainant. He had exited onto the elevated back deck holding a rifle in his left hand – a Winchester Model 94AE .44 calibre lever action rifle. The Complainant walked past a barbeque on the deck, turned to face the SO and told him to, “Get out of here,” as he lifted and pointed the rifle at the officer.
At the sight of the Complainant pointing the gun in his direction, the SO shouted at him to, “Drop the gun,” as he retreated several steps and drew his pistol. Starting from a position approximately six to seven metres south of the Complainant’s location on the deck, the officer discharged seven rounds in quick succession. The Complainant was struck by the SO’s gunfire and fell to the deck floor. The SO continued backwards around the side of the house and out to his cruiser, parked in the front driveway of the property, where he radioed that shots had been fired and asked for assistance. The time was 10:03 a.m.
WO #1 and WO #2 heard the SO’s transmission and arrived on scene within about 15 minutes. The SO briefly explained to them what had occurred. As they were uncertain whether the Complainant had been incapacitated, they decided to keep a position of cover behind WO #1’s police vehicle while they waited for additional help to arrive.
Over the course of the next hour, tactical officers began arriving on scene and set about trying to determine the Complainant’s condition. With the use of a drone, the Complainant’s presence on the back deck was eventually confirmed, as was the fact that he appeared lifeless. Officers entered the home and the back deck. Assured that the area was safe of possible threats, they escorted paramedics to the scene. The Complainant was deceased.
At about 10:00 a.m. of November 25, 2021, the SO found himself in the rear yard of a home located near Highway 37 and Highway 49, Bobcaygeon. He was there to speak to the Complainant in relation to the theft of gas from a Shell gas station that morning. The officer had earlier been to the gas station and viewed video of the theft. In fact, the SO had also been to the home the day before to investigate another theft of gas from the same station in September in which the Complainant was also the suspect. On that occasion, the officer had left after he was unable to reach anyone inside the home. On this occasion, the SO knocked on the ground-level door at the rear of the home. Again, there was no response, but the officer could hear music coming from inside the house. The music became louder and louder until, some seconds later, the SO heard the sliding door of the back deck open, north of his location, and a man appear.
The man was the Complainant. He had exited onto the elevated back deck holding a rifle in his left hand – a Winchester Model 94AE .44 calibre lever action rifle. The Complainant walked past a barbeque on the deck, turned to face the SO and told him to, “Get out of here,” as he lifted and pointed the rifle at the officer.
At the sight of the Complainant pointing the gun in his direction, the SO shouted at him to, “Drop the gun,” as he retreated several steps and drew his pistol. Starting from a position approximately six to seven metres south of the Complainant’s location on the deck, the officer discharged seven rounds in quick succession. The Complainant was struck by the SO’s gunfire and fell to the deck floor. The SO continued backwards around the side of the house and out to his cruiser, parked in the front driveway of the property, where he radioed that shots had been fired and asked for assistance. The time was 10:03 a.m.
WO #1 and WO #2 heard the SO’s transmission and arrived on scene within about 15 minutes. The SO briefly explained to them what had occurred. As they were uncertain whether the Complainant had been incapacitated, they decided to keep a position of cover behind WO #1’s police vehicle while they waited for additional help to arrive.
Over the course of the next hour, tactical officers began arriving on scene and set about trying to determine the Complainant’s condition. With the use of a drone, the Complainant’s presence on the back deck was eventually confirmed, as was the fact that he appeared lifeless. Officers entered the home and the back deck. Assured that the area was safe of possible threats, they escorted paramedics to the scene. The Complainant was deceased.
Cause of Death
The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to a ‘gunshot wound of left shoulder’. The Complainant had sustained two gunshots. One was to the top of the left shoulder. The other was to the lower left abdomen.Relevant Legislation
Section 34, Criminal Code -- Defence of person - Use or threat of force
34 (1) A person is not guilty of an offence if
(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.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(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.
Sections 219 and 220, Criminal Code -- Criminal negligence causing death
219 (1) Every one is criminally negligent who
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and(b) in any other case, to imprisonment for life.
Analysis and Director's Decision
The Complainant died at his home in Bobcaygeon on November 25, 2021, from gunshot wounds inflicted by an OPP officer. The officer in question – the SO – was identified as the subject official for purposes of the ensuing SIU investigation of the shooting. 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.
Section 34 of the Criminal Code codifies the law of self-defence in Canada. It provides that force used to repel a reasonably apprehended attack, actual or threatened, is legally justified provided the force was itself reasonable. The reasonableness of the force is to be assessed in light of 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. In my view, the force used by the SO, namely, seven gunshots from his semi-automatic pistol, fell within the ambit of the protection set out in section 34.
The SO was in the lawful discharge of his duties at the time of the events in question. Having viewed video footage of the Complainant seemingly stealing gas from a gas station earlier that morning, and aware that the Complainant was also suspected of a previous gas theft from the same station, the officer was within his rights in attending at the Complainant’s home to speak to him about the offences. Given that there was no accessible entrance at the front of the home, I am also satisfied that the SO was entitled to walk along a dedicated pathway to the rear of the home where an accessible doorway was located.
There is nothing in the information collected by the SIU to cast doubt on the SO’s evidence that he fired his weapon believing it was necessary to protect himself from being shot by the Complainant. On the contrary, the circumstances lend credence to the officer’s mindset. Faced with what appeared, and was, a fully functioning rifle aimed in his direction, in the hands of an individual refusing to drop it as directed to do so by the officer, I am satisfied that a reasonable person would have immediately apprehended the need to defend themselves from an imminent risk of grievous bodily harm or death with whatever was at their disposal, in this case a firearm.
I am further satisfied that the officer’s gunfire was a reasonable use of force. The SO was literally facing the barrel of a gun that had been deliberately raised and pointed in his direction from a short distance away by the Complainant. Though the officer did take a few steps backwards, there is little question that his life remained in imminent peril at the time he decided to fire his weapon. That is to say, retreat, though an option, and one which the SO had adopted momentarily, was not a complete answer to the clear and present danger posed by the Complainant in the circumstances. In this respect, it is telling to note that there is evidence suggesting the Complainant did indeed attempt to fire on the officer – a live cartridge removed from the breech of his weapon appeared as if its primer had been struck. Be that as it may, whether he did or did not attempt to fire his weapon, the Complainant had given the officer every indication that he was ready and capable of doing so at any time. As for the number of shots fired by the SO, there is no evidence to establish that the Complainant was something other than a clear and present danger throughout the gunfire, and that the gunfire was therefore excessive, given the speed with which the shots were fired, the dynamism of the moment and the fact that the Complainant was struck by only two of the seven shots.
The Complainant did not receive medical attention for approximately two hours following the shooting, raising the question of a possible want of care on the part of the police causing or contributing to his death. The offence that arises for consideration along these lines of inquiry is criminal negligence causing death contrary to section 220 of the Criminal Code. The crime is reserved for serious cases of negligence that demonstrate a wanton or reckless disregard for the lives or safety of other persons. Simple negligence is not sufficient to give rise to liability. Rather, what is required, in part, is conduct amounting to a marked and substantial departure from the level of care that a reasonable person would have observed in the circumstances.
In my view, there is no evidence to reasonably conclude that the SO or any of the officers who took part in the operations around the Complainant’s home after the shooting transgressed the limits of care prescribed by the criminal law. The SO, and then WO #1 and WO #2, the initial officers at the scene, did not know what the Complainant’s condition was precisely. Though it would appear that the Complainant had been completely debilitated by the shooting, the officers would not have known that and understandably decided to proceed with caution given the firearm that had been in the Complainant’s possession. In the circumstances, I am satisfied that the decision to await the arrival of tactical officers and the deployment of additional police resources, such as a drone, was a prudent one in the interests of safety. Once the drone confirmed the presence of the Complainant on the back deck, seemingly motionless and no longer an active threat, and officers were able to enter the home and ensure it was safe, there is no indication of any lack of dispatch in having paramedics attend to render care. Unfortunately, the Complainant was by that point deceased.
For the foregoing reasons, as there are no reasonable grounds to believe that the Complainant’s death was the result of unlawful conduct on the part of the SO or other officer, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: March 24, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Section 34 of the Criminal Code codifies the law of self-defence in Canada. It provides that force used to repel a reasonably apprehended attack, actual or threatened, is legally justified provided the force was itself reasonable. The reasonableness of the force is to be assessed in light of 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. In my view, the force used by the SO, namely, seven gunshots from his semi-automatic pistol, fell within the ambit of the protection set out in section 34.
The SO was in the lawful discharge of his duties at the time of the events in question. Having viewed video footage of the Complainant seemingly stealing gas from a gas station earlier that morning, and aware that the Complainant was also suspected of a previous gas theft from the same station, the officer was within his rights in attending at the Complainant’s home to speak to him about the offences. Given that there was no accessible entrance at the front of the home, I am also satisfied that the SO was entitled to walk along a dedicated pathway to the rear of the home where an accessible doorway was located.
There is nothing in the information collected by the SIU to cast doubt on the SO’s evidence that he fired his weapon believing it was necessary to protect himself from being shot by the Complainant. On the contrary, the circumstances lend credence to the officer’s mindset. Faced with what appeared, and was, a fully functioning rifle aimed in his direction, in the hands of an individual refusing to drop it as directed to do so by the officer, I am satisfied that a reasonable person would have immediately apprehended the need to defend themselves from an imminent risk of grievous bodily harm or death with whatever was at their disposal, in this case a firearm.
I am further satisfied that the officer’s gunfire was a reasonable use of force. The SO was literally facing the barrel of a gun that had been deliberately raised and pointed in his direction from a short distance away by the Complainant. Though the officer did take a few steps backwards, there is little question that his life remained in imminent peril at the time he decided to fire his weapon. That is to say, retreat, though an option, and one which the SO had adopted momentarily, was not a complete answer to the clear and present danger posed by the Complainant in the circumstances. In this respect, it is telling to note that there is evidence suggesting the Complainant did indeed attempt to fire on the officer – a live cartridge removed from the breech of his weapon appeared as if its primer had been struck. Be that as it may, whether he did or did not attempt to fire his weapon, the Complainant had given the officer every indication that he was ready and capable of doing so at any time. As for the number of shots fired by the SO, there is no evidence to establish that the Complainant was something other than a clear and present danger throughout the gunfire, and that the gunfire was therefore excessive, given the speed with which the shots were fired, the dynamism of the moment and the fact that the Complainant was struck by only two of the seven shots.
The Complainant did not receive medical attention for approximately two hours following the shooting, raising the question of a possible want of care on the part of the police causing or contributing to his death. The offence that arises for consideration along these lines of inquiry is criminal negligence causing death contrary to section 220 of the Criminal Code. The crime is reserved for serious cases of negligence that demonstrate a wanton or reckless disregard for the lives or safety of other persons. Simple negligence is not sufficient to give rise to liability. Rather, what is required, in part, is conduct amounting to a marked and substantial departure from the level of care that a reasonable person would have observed in the circumstances.
In my view, there is no evidence to reasonably conclude that the SO or any of the officers who took part in the operations around the Complainant’s home after the shooting transgressed the limits of care prescribed by the criminal law. The SO, and then WO #1 and WO #2, the initial officers at the scene, did not know what the Complainant’s condition was precisely. Though it would appear that the Complainant had been completely debilitated by the shooting, the officers would not have known that and understandably decided to proceed with caution given the firearm that had been in the Complainant’s possession. In the circumstances, I am satisfied that the decision to await the arrival of tactical officers and the deployment of additional police resources, such as a drone, was a prudent one in the interests of safety. Once the drone confirmed the presence of the Complainant on the back deck, seemingly motionless and no longer an active threat, and officers were able to enter the home and ensure it was safe, there is no indication of any lack of dispatch in having paramedics attend to render care. Unfortunately, the Complainant was by that point deceased.
For the foregoing reasons, as there are no reasonable grounds to believe that the Complainant’s death was the result of unlawful conduct on the part of the SO or other officer, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: March 24, 2022
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.