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 discharge of a less-lethal firearm at a 38-year-old man (“the Complainant”).

Notification of the SIU

On December 10, 2021, at 2:14 a.m., the Waterloo Regional Police Service (WRPS) notified the SIU that an Anti-riot Weapon Enfield (ARWEN) had been deployed at an individual.

According to the WRPS, at 7:00 p.m. on December 9, 2021, the WRPS received a disturbance call at a residence in the area of Eagle Street North and Speedsville Road in Cambridge. A man was causing a disturbance and attempting to enter apartments, and he had discharged a fire extinguisher. WRPS officers arrived, and the man retreated to his apartment. The WRPS obtained a Feeney warrant, [1] and WRPS Emergency Response Team (ERT) members went to arrest the man, but the man threatened that he had guns in his apartment. The man came out into the hallway, and he was ordered to put his hands up but refused to do so. An officer discharged an ARWEN and struck the man.

The Team

Date and time team dispatched: 12/10/2021 at 11:31 a.m.

Date and time SIU arrived on scene: 12/10/2021 at 2:30 p.m.

Number of SIU Investigators assigned: 3

The Scene

WRPS photos from a building next to the Complainant’s residence documented round impact marks on the front door of an apartment. There was white powder throughout the hallway around the apartment, and white powder all over the door to that apartment. The round impact marks on the apartment door and the white powder were consistent with the door being struck by a fire extinguisher and a dry chemical fire extinguisher being discharged in the hallway.

At the Complainant’s residence, WRPS photographs documented broken glass in front of a door located to the right of the Complainant’ apartment. Inside the Complainant’s apartment, a white fire extinguisher was found in his kitchen garbage. The gauge on the fire extinguisher indicated it was empty. A backpack found in his cupboards contained a pair of gloves and a cotter pin (pull-pin) of the type found on fire extinguishers.

Photographs taken of the interior of the police vehicle used to transport the Complainant to the police station following his arrest documented lateral smears on the Plexiglas partition behind the driver’s seat.

Physical Evidence

The discharged ARWEN projectile and casing were provided to the SIU by the WRPS.


Figure 1 - The ARWEN projectile.

Video/Audio/Photographic Evidence [2]

Communications Recording and Computer-assisted Dispatch (CAD) Details

On December 9, 2021, at 6:54 p.m., a man called 911 to report that a man who lived in an adjacent building had discharged a fire extinguisher in the hallway of his apartment building, and powder from the fire extinguisher was all over the hallway. A person could be heard speaking to the 911 caller in the background, and the caller then reported the culprit had also tried to force open the door to an apartment. The 911 caller provided the Complainant’s first name and address.

The CAD report suggested no police officers were dispatched to that incident at that time.

At 8:56 p.m., an undesignated officer was dispatched to the Complainant’s address to back up WO #4 and WO #11. At 9:33 p.m., WO #4 reported he was just preparing to travel to the address. He stated he had just spoken to the initial 911 caller by telephone, and he reported the Complainant was outside causing trouble while carrying a shovel. At 9:37 p.m., WO #4 reported he intended to conduct a “door knock” at the Complainant’s residence.
At 11:24 p.m., WO #4 reported he had made voice contact with the Complainant, who indicated he was willing to exit his apartment. WO #4 asked that the police radio band be kept clear.

At 11:26 p.m., WO #11 reported the Complainant had opened and then closed his apartment door. WO #4 then reported that the Complainant was claiming to be in possession of a firearm, although none had been observed.

At 11:27 p.m., WO #4 reported the Complainant had opened his door and was holding something contained inside a green bag. WO #4 asked for an estimated time of arrival for the ERT. He then reported the Complainant had opened his door and had been holding some type of tube in his hand. A check on the Canadian Firearms Registry online yielded no indication the Complainant was a registered firearm owner.

At 11:30 p.m., WO #2 of the WRPS ERT reported he and WO #3, WO #8 and the SO were on their way from headquarters. WO #4 reported that the Complainant was extremely agitated. The Complainant could be heard yelling in the background of that transmission.

At 11:32 p.m., WO #4 reported the Complainant had opened his door and had a satchel over his right shoulder. WO #4 reported he was issuing commands for the Complainant to exit the apartment with his hands up.

The WRPS ERT arrived at the address at 11:35 p.m.

At 11:37 p.m., WO #4 reported the Complainant had opened his door and was using a Rubbermaid container as a shield.

At 11:39 p.m., WO #2 reported the ERT had taken over inner containment. WO #9 reported he would act as the command post for the incident. WO #2 advised WO #9 that the Complainant was irate and telling the police to leave. WO #2 reported that the Complainant had popped his head out of the apartment twice since WO #2 was in position.

At 11:41 p.m., WO #3, positioned outside, reported the Complainant was throwing items outside. WO #3 also reported that the Complainant was shining a laser pointer at police officers.

At 11:43 p.m., WO #2 reported the Complainant had stepped out of his apartment and confronted the police. He refused to show his hands and he threatened to “blast police”. The Complainant then threw a glass jar at police.

The Complainant continued to state he had a firearm and intended to shoot police officers with it.

At 11:47 p.m., WO #2 reported an ARWEN had been deployed. WO #2 reported that the Complainant had came out of his apartment, had refused to show his hands, was hit once by the ARWEN, and then returned to his apartment. The Complainant called out to the ERT members that his leg was injured.

Three additional ERT members advised WO #2 they were at headquarters and would be attending the call.

At 11:52 p.m., WO #9 arrived at the scene and issued a Direct Action Plan, instructing the ERT members to contain, isolate, and negotiate for a safe surrender, using the least amount of force necessary. WO #2 reported that the Complainant was swearing at police and saying that the police would be dead.

Negotiations continued, with the Complainant reportedly threatening to shoot police officers in the face. He reportedly stated he was developing a plan to attack police officers in the hallway. He threatened to open fire should police officers attempt to enter his apartment.

At 12:03 a.m., WO #9 indicated a victim at the scene had reported she knew someone who had seen the Complainant with a firearm, approximately one month earlier.

The ERT members continued to report that the Complainant spoke about an exchange of gunfire. The Complainant reportedly stated he intended to go to heaven that night, and he was about to engage the police in a gunfight. The Complainant stated he was loading bullets into his firearm. WO #2 reported they had instructed the Complainant to exit the apartment with his hands empty, but he refused to do so.

At 12:07 a.m., WO #9 asked whether any consideration had been given to disengaging with the Complainant, to allow him to calm down. WO #2 responded the dialogue had been lagging at points, but the Complainant continued to engage [in dialogue] with the police.

At 12:12 a.m., it was reported that the Complainant had stated he was intending to surrender, and he was asking if an ambulance had been summoned.

The Complainant told the police that he was speaking to a friend, and he would then exit his apartment. However, he then stated he did not intend to surrender. The Complainant asked for an opportunity to speak to a lawyer.

The Complainant told the police he did not believe any warrants existed. WO #9 asked the dispatcher if there was a police officer available to pick up the warrants and bring them to the scene, so they could have them in hand.

At 12:26 a.m., the Complainant stated he was going to exit his apartment. He stated he intended to secure his door, as he did not believe the police had a warrant to enter his residence. Discussions continued with the Complainant regarding him exiting the apartment with empty hands, but for his keys.

The Complainant reportedly told the police officers he was calling his lawyer. He then stated he was sending an e-mail to his lawyer. At 12:47 a.m. it was reported the Complainant had stated he was unarmed and was going to secure his apartment and surrender. However, at 12:49 a.m., it was reported the Complainant was again threatening to kill the police. A police officer reported the arrest warrants had been brought to the scene, but a Feeney warrant had not yet been obtained.

At 1:02 a.m., WO #2 reported an audio recorder had been deployed at the negotiation point.
At 1:14 a.m., it was reported the Complainant had stepped out of his apartment with his keys in hand, but he became fearsome he was going to be shot again, and he returned to his apartment. He did so again one minute later.

At 1:19 a.m., it was reported that the Complainant had been arrested.

At 1:27 a.m., ERT members reported they were entering the Complainant’s apartment to clear it for safety reasons.

As WO #4 transported the Complainant to the police station, he repeatedly reported that the Complainant was kicking at the partition inside the car and at the side windows of the vehicle.

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the WRPS:

• Scene photographs, including photographs of the Complainant’s injuries;
• A copy of the related communications recordings;
• The CAD record;
• A list of involved police officers;
• The notebook entries of the designated Witness Officials;
• A copy of the SO’s duty notes;
• Prisoner Detain (custody) Sheet for the Complainant;
• WRPS Procedure - Use of Force;
• Training record for the SO;
• Crown Brief Synopsis for two prior matters; and
• Brief Synopsis for this incident.

The material events in question are clear on the evidence collected by the SIU, and may briefly be summarized. As was her legal right, the SO chose not to interview with the SIU. She did authorize the release of her notes.

In the evening of December 10, 2021, uniformed WRPS officers attended at an apartment in the area of Eagle Street North and Speedsville Road, Cambridge. They were there following reports that the Complainant, the occupant of the apartment, had earlier attempted to forcibly enter an apartment in the apartment building across the street, and had discharged a fire extinguisher in the vicinity of that apartment.

WO #4 was among the handful of officers that had been dispatched to investigate the matter. En route to the scene, he and the other officers came to learn that there were multiple warrants outstanding for the Complainant’s arrest. The Complainant refused to open his apartment door and surrender himself to the police at their request. In fact, he did not acknowledge their presence outside his door for about the first 40 minutes or so of their attendance in the hallway. At WO #4’s request, other officers began to prepare a Feeney warrant to enter the Complainant’s apartment.

The Complainant eventually acknowledged the officers from inside his apartment, telling them to leave and that he was armed with a gun that he was prepared to use. Soon after, the Complainant opened his door and confronted the officers. He again told them to leave and threatened to shoot WO #4 in the face. The officers did not see the Complainant with a gun, but were concerned that he might very well have one as his hands were inside a satchel that he carried. WO #4 and his partner, WO #11, backed up, and WO #4 asked that tactical officers be sent to the scene.

Members of the WRPS ERT began arriving on scene at about 11:30 p.m. WO #2 was the team leader. The SO was a team member. At about 11:40 p.m., the team relieved the uniformed officers in the apartment building corridor. They stationed themselves behind positions of cover by the stairwell entrance, about seven to ten metres from the Complainant’s apartment door. From that location, WO #2, a trained negotiator, attempted to communicate with the Complainant. The Complainant refused to surrender, and continued to threaten the police officers with gunfire and death, including on several occasions when he temporarily emerged from his apartment. On one such occasion, he threw a glass jar in the direction of the officers down the hallway.

At about 11:47 p.m., the Complainant again popped out of his doorway. As he had on his previous exits, the Complainant refused to show his hands. He was struck in the inner left leg by an ARWEN projectile. The Complainant immediately retreated into his apartment again, and cried out in pain. He continued to threaten the officers.

The SO had an ARWEN at the ready throughout the brief standoff involving the ERT officers. It was she who had fired the round that struck the Complainant.

Negotiations continued with the Complainant. At about 1:20 a.m., the Complainant exited his apartment and surrendered into the custody of the police without further incident.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

The Complainant was struck by an ARWEN round discharged by a WRPS officer on December 10, 2021. The officer – 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.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.

There is little doubt that the Complainant was subject to arrest. Given what the uniformed officers had learned of the Complainant’s destructive conduct at a nearby building, which information was confirmed directly by a witness at the scene, there were grounds to take him into custody for mischief. Moreover, there were several warrants outstanding for his arrest at the time.

The force used against the Complainant, namely, an ARWEN discharge fired by the SO, was legally justified in aid of his arrest. The Complainant had given the officers cause to be concerned that he was armed with a gun that he intended to use against the officers if they did not leave. He repeatedly threatened them to that effect throughout the standoff, and refused to show his hands on those occasions he exited his unit. The police also had information suggesting that the Complainant had been seen with a gun about a month prior. On this record, I am unable to reasonably conclude that the SO acted precipitously when she fired her ARWEN at the Complainant. The weapon’s use brought with it the prospect of a less-lethal resolution of the conflict by the police from a safe distance and a position of cover. The fact that the Complainant, as it turns out, was not actually in possession of a firearm, is of no import. The officers, I am satisfied, were entitled to proceed on the assumption that the Complainant might very well be armed as he had steadfastly refused to show his hands.

In the result, as I am satisfied that the SO comported herself lawfully throughout her engagement with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: March 31, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit