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 death of a 29-year-old man (the “Complainant”).

Notification of the SIU

On October 28, 2021, at 4:54 a.m., the London Police Service (LPS) notified the SIU of a firearm-related death. Reportedly, at 3:46 a.m., officers had responded to a break and enter call at George Street and Mill Street. Three men were observed fleeing the scene. In an alley behind 660 Richmond Street, officers saw one of the men. A struggle ensued to arrest the man and the man began to choke one of the officers. At 3:51 a.m., an officer discharged his firearm once and struck the man. The man [now known to be the Complainant] was taken to Victoria Hospital and pronounced dead at 4:24 a.m. An officer was being treated for injuries.

The Team

Date and time team dispatched: 10/28/2021 at 5:37 a.m.

Date and time SIU arrived on scene: 10/28/2021 at 6:15 a.m.

Number of SIU Investigators assigned: 8

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

29-year-old male, deceased

Civilian Witnesses (CW)

CW #1 Not interviewed (Next-of-kin)
CW #2 Not interviewed (Next-of-kin)
CW #3 Interviewed
CW #4 Interviewed

The civilian witnesses were interviewed between October 28 and 29, 2021.

Subject Official (SO)

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed
WO #2 Not interviewed, but notes received and reviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Not interviewed, but notes received and reviewed
WO #11 Not interviewed, but notes received and reviewed
WO #12 Interviewed
WO #13 Interviewed
WO #14 Interviewed
WO #15 Interviewed
WO #16 Interviewed
WO #17 Interviewed
WO #18 Interviewed

The Scene

The scene was located in the rear parking lot of 660 Richmond Street. There was a pedestrian walkway between Units 6 and 7 at 660 Richmond Street. The walkway travelled east from the street between the buildings to the parking lot at the rear.


Figure 1 – The pedestrian walkway entrance from Richmond Street



Figure 2 – The rear parking lot area of 660 Richmond Street

Scene Diagram

Physical Evidence

The evidence collected at the scene included the following:

• Cartridge case;
• Grey toque;
• Left hand glove;
• Pair of handcuffs;
• Ziplock bag and shaving kit bag with personal effects;
• Tim Hortons card;
• Medical waste;
• Broken plastic clip;
• Swab of material from hood of WO #1’s vehicle;
• Broken eyeglass lens; and
• An eyeglasses arm.

Figure 3 - Cartridge case



Figure 4 – Pair of handcuffs


Figure 5 – Mark on the hood of WO #1’s police vehicle

Forensic Evidence

The SIU submitted to the Centre of Forensic Sciences (CFS) the SO’s Glock Model 45 9mm semi-automatic pistol, Glock magazine and 9mm cartridge case. Also, the Complainant’s blood and urine were submitted to the CFS.

On January 17, 2022, the SIU received the CFS Firearms Report confirming that the one fired cartridge case was fired from the SO’s Glock.


Figure 6 - The SO’s firearm and magazine

Expert Evidence

Video/Audio/Photographic Evidence [1]

LPS Communications Recordings

The LPS provided a copy of their communications recordings pertinent to the incident. The following is a summary of the information captured on the recordings.

At 3:32 a.m., WO #3 and WO #2 were directed to cancel an ‘assist agency’ service call and respond to a ‘suspicious person’ call on Oxford Street.

At 3:45:51 a.m., WO #2 reported there were lots of guys running in the area doing a “break and enter” by St. George. WO #2 said three men had a ladder on a house at St. George Street and Mill Street. The men had run north. WO #3 was not in the police vehicle and WO #2 was driving north.

The dispatcher reported that the three men were on foot and were in the middle of a break and enter at St. George and Mill Street. WO #3 said the men had run to John Street. One of the men was wearing a grey T-shirt. WO #3 lost the man around 170 John Street.
WO #2 told WO #3 that the man was seen coming out and he would be in the block.

Officers were directed to set up a perimeter from John Street and Richmond Street to St. George Street and Richmond Street. Officers advised of the positions they were taking.
The dispatcher asked for a description and was told all the men appeared to be in their early twenties. One of the men had a grey T-shirt on and the other men had thin or small builds and were dressed in dark clothing. WO #2 said that one of the men had come out on John Street but did not cross the street. It was believed that the three men had not left the block. WO #3 said he had chased the man in grey clothing up beside 170 John Street. It was not known where the other men went.

At 3:51:01 a.m., WO #1 said, “Shots fired,” and an ambulance was needed. WO #1 said the police were okay and the shooting was by Station Park [The Park Hotel, formerly Station Park Hotel]. The location was clarified as being at the rear of Oscar Taylor's. WO #4 said there were enough officers at the scene and advised the other officers to keep the perimeter. WO #4 said a medical assessment had been started on the Complainant. Someone asked if any of the men had a backpack on and WO #3 said he could not say.

At 3:53 a.m., WO #4 said CPR was being conducted. WO #8 said compressions had started.

At 3:54 a.m., WO #4 said it was reported that the Complainant had been running in an easterly direction across from Tim Hortons on Richmond Street. Another officer said he had seen a man walking northbound with a backpack on.

At 3:56 a.m., WO #4 told Emergency Medical Services (EMS) there was a shot to the neck with no apparent exit wound.

At 3:57 a.m., WO #4 asked for a second ambulance for WO #1, who possibly had broken ribs.

At 3:58 a.m., WO #4 directed that all the resources be cut from the ‘break and enter’ and assigned everyone to the shooting.

At 4:24 a.m., it was reported that the Complainant was deceased.

Video Footage from Business #1 on Richmond Street

The SIU retrieved video footage from Business #1 on Richmond Street in London.

On October 28, 2021, at 3:46 a.m., a man [known to be the Complainant] was walking southbound on the west sidewalk of Richmond Street. The Complainant was around the Robert Image Studio, Tattoo & Piercing located at 691 Richmond Street. At 3:47 a.m., the Complainant walked by the Farhi Holdings sign and a police vehicle passed him going southbound on Richmond Street. He stopped and looked into a window.

At 3:48 a.m., the Complainant was beside the recycling bins. He was wearing dark clothes, an outer jacket with a hood which covered his head, and a COVID mask. The Complainant continued walking, put something in his mouth, and then put his right hand into a fanny pack worn to the right side of the waist.

At 3:48:31 a.m., the Complainant walked out of the view of the camera. About eight seconds later, a second police vehicle drove southbound on Richmond Street in the curb lane and, within another five seconds, emergency lights flickered off the building.

At 3:48:59 a.m., the video ended.

Video Footage from Business #2 on Richmond Street

The SIU received a copy of video footage from Business #2 on Richmond Street. The footage was time-stamped one hour ahead of the actual time.

On October 28, 2021, a man [known to be the Complainant] walked south on the west sidewalk of Richmond Street. The Complainant was beside two businesses at 723 Richmond Street. The Complainant crossed Piccadilly Street and continued southbound past 717 Richmond Street. The Complainant continued walking to the area of London Pizza, located at 711 Richmond Street, north of the railway tracks that crossed Richmond Street.

Video Footage from a Business on Pall Mall Street

The SIU received a copy of the video footage from a business on Pall Mall Street.

At 3:48 a.m., there were emergency lights travelling northbound on Richmond Street. At 3:49:50 a.m., a LPS police SUV was positioned facing westbound on Pall Mall Street at the intersection of Richmond Street with the emergency lights activated. At 3:51:32 a.m., the police vehicle reversed and travelled eastbound on Pall Mall Street. About five seconds later, the police vehicle turned right into the laneway at the east end of the hotel. Over the next 13 seconds, four police vehicles (sedans) and a LPS SUV drove east on Pall Mall Street and made a left turn into the laneway. At 3:54 a.m., four police vehicles returned to Pall Mall Street and drove onto Richmond Street.

Video Footage from a Residence on St. George Street

The SIU received video footage from a residence on St. George Street. The video captured two men running south across the backyard of the address. A police officer with a flashlight followed behind in their path after they had left the screen.

Municipal Cameras at Intersection of Richmond Street and Pall Mall Street - Video Footage

The SIU received video footage from municipal cameras located at the intersection of Richmond Street and Pall Mall Street.

At 3:42:30 a.m., footage from one of the cameras captured a yellow cab driving northbound through Pall Mall Street, stopping at the east curb. The driver remained in the cab. At 3:47:27 a.m., a police vehicle (sedan) drove south on Richmond Street as a man [known to be the Complainant] walked southbound on the west sidewalk of Richmond Street. At 3:48:15 a.m., the police vehicle reversed through Richmond Street and Pall Mall Street in the southbound lane of Richmond Street. At 3:48:42 a.m., the police vehicle turned right on Mill Street as the Complainant approached Mill Street. At 3:48:44 a.m., another police vehicle (sedan) drove to Mill Street and stopped before turning right. A second later, the emergency roof lights were activated - the Complainant was standing nearby and facing the police vehicle. At 3:48:57 a.m., the police vehicle moved forward and turned right on Mill Street, out of sight.

A police SUV travelled north on Richmond Street and activated its emergency lights. The Complainant stayed on the curb. At 3:49:11 a.m., the Complainant stepped onto Richmond Street and crossed the road. The headlights of a vehicle were south of the railroad tracks.

At 3:49:21 a.m., the Complainant was partially blocked by the front left corner of the yellow cab parked at the east curb of Richmond Street. About two seconds later, the Complainant stepped from the road onto the sidewalk. The southbound vehicle was at the Tim Hortons and the LPS SUV made a U-turn. Two seconds later, a LPS SUV [known to be driven by WO #1] drove north on Richmond Street through the intersection of Pall Mall Avenue.

The following scenario emerges from the evidence collected by the SIU, which included an interview with one of the two police officers present at the time of the events in question – WO #1. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the early morning hours of October 28, 2021, the Complainant was walking south on Richmond Street. He crossed Piccadilly Street and continued towards the intersection of Mill Street. Just before Mill Street, the Complainant crossed from the west side to the east side of Richmond Street.

At about the same time as the Complainant was making his way south on Richmond Street, LPS officers were responding to reports of a break and enter in progress at St. George Street and Mill Street. WO #2 had broadcast the incident. He and his partner, WO #3, had come across three males attempting to use a ladder to break into a home. The males had fled at the site of the officers and WO #3 was in foot pursuit of two of them. A description of the suspects was provided – two were said to be clad in black clothing.

The SO and WO #1, the latter operating their marked SUV, were among the officers responding to the area. As they travelled north on Richmond Street, they observed a male – the Complainant – crossing the road north of Mill Street. Suspecting that the male might be one of the suspects, WO #1 slowed down as the SO called out to the Complainant. [As it turned out, the Complainant was not involved in the reported break and enter, but the police would not know this until after the incident.] 

The Complainant continued to walk eastward across the east sidewalk of Richmond Street and through a pathway between the businesses of ‘Cloud 29’ and ‘Miso Sushi’. The pathway opened up into a parking lot that serviced several establishments in the area. The Complainant had just made it past the pathway when he stopped to acknowledge the presence of the police SUV behind him.

WO #1 had turned his cruiser onto the pathway to follow the Complainant. Some 20 metres into the pathway, he stopped the vehicle and the SO exited. The officer explained to the Complainant that he was being detained for a break and enter investigation, and asked if he had any weapons on him. WO #1 joined his partner and the Complainant. He had removed his handcuffs and was planning to use them on the Complainant while they searched him for weapons.

At their direction, the Complainant turned westward to face away from the officers. Within moments, however, as WO #1 approached with handcuffs in hand, the Complainant jerked free from the SO’s hold and ran away from the officers. He had taken several strides when the officers caught up, each grabbing hold of an arm. The three struggled on their feet for a period before the officers brought the Complainant to the ground.

WO #1 landed on his front and felt the weight of the other parties collapsing on top of him. His microphone fell loose from his body in the fall. He retrieved it and tried to broadcast what was happening, but there was too much traffic on the air to get through. Soon after, WO #1 experienced what he described as a “rear naked chokehold” by the Complainant.

The Complainant had wrapped an arm around WO #1’s neck and was tightening his grip. He maintained his grip for approximately 45 to 60 seconds, and only let go after he was shot in the neck.

The SO, aware that WO #1 was being choked by the Complainant, had fired the shot at close-range. He announced over the radio that “shots” had been fired.
The Complainant quickly lost consciousness and WO #1 began chest compressions. Other officers responding to the “shots fired” broadcast arrived and assisted with first aid.

Paramedics attended the scene and assumed primary care over the Complainant. He was taken to hospital where further efforts at resuscitation were unsuccessful. At 4:24 a.m., the Complainant was pronounced deceased.

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.

The Complainant was shot and killed by a LPS officer on October 28, 2021. The officer – the SO – was identified as the subject official in 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 Complainant’s death.

Pursuant to section 34 of the Criminal Code, force used in the defence of oneself or another against a reasonably apprehended attack, actual or threatened, is legally justified provided the force itself was reasonable. The reasonableness of the force is to be assessed against the circumstances that prevailed at the time, including such factors 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; the person’s role in the incident; and, the nature and proportionality of the person’s response to the use or threat of force. The shooting fell within the limits of the section 34 justification.

In R v Mann, [2004] 3 SCR 59, the Supreme Court of Canada affirmed the power of police officers to briefly detain persons for investigation where there exist reasonable grounds to suspect that they are implicated in a particular crime. Even though, as it later turned out, the Complainant was not involved in the reported break and enter, those grounds arguably existed in connection with the Complainant as he generally fit the description of one of the parties seen fleeing from WO #2 and WO #3 (male, small build, in their 20s, wearing dark clothing), and was in the vicinity of the reported break and enter.

What is less clear is whether the officers were entitled to search the Complainant. This, per Mann, supra, they were not entitled to do short of a reasonable belief that their safety or the safety of others was at risk. Moreover, any such search is generally to be limited to a protective pat-down search. While it appears that the Complainant was compliant with the detention in its initial stages in the parking lot, it was the attempted handcuffing ahead of a search that seems to have set him off. He might well have had a point. As there was no affirmative indication of any weapons having been brought to bear by the suspects in the break and enter, the use of handcuffs might have been an overreach on the part of the officers. That said, if the Complainant was entitled to resist what may have been an unlawful detention, he was not entitled to use potentially deadly force.

The uncontested evidence is that the Complainant had WO #1 in a chokehold, that WO #1 could not break free of the chokehold, and that the officer was unable to breathe and was beginning to lose consciousness when the SO discharged his weapon. That was the account of WO #1. And there is no evidence that contradicts it. [3] Though the SO did not come in for an interview, there is evidence of utterances he made to other officers in the wake of the incident to the effect that he shot the Complainant as he was choking WO #1. In the circumstances, I am satisfied that the SO fired his weapon at the Complainant with the intention of protecting WO #1 from a reasonably apprehended assault.

I am also satisfied that the resort to gunfire by the SO was reasonable. Based on the available evidence, WO #1’s life was on the line – his breathing had been restricted by the Complainant’s chokehold for a protracted period and he was about to pass out when the SO fired his weapon. Weighed one against the other, the use of lethal force by the officer was not disproportionate to the chokehold and the imminent risk it had created of death or grievous bodily harm to WO #1.

Nor am I satisfied that the shooting was unreasonable from a broader perspective. Here, one must ask whether the shooting was necessary to protect WO #1, or whether some lesser use of force would have sufficed. It would not appear, for example, that the SO used his CEW or pepper spray to try to neutralize the Complainant. Nor is there any evidence establishing conclusively that the SO resorted to his baton or made efforts to physically weaken the Complainant’s hold on WO #1. Had they been pursued, it could be that one or another of these efforts might have been successful in defending WO #1. In the absence of a statement from the SO, however, it is difficult to assess what if any thought he gave to these tactics. The officer might well have had good reason to avoid use of his CEW or pepper spray given the dynamics of the struggle on the ground between WO #1 and the Complainant. Nor is it certain that the SO did not attempt to physically deter the Complainant by way of his baton or a hands-on application of force. Though the autopsy failed to turn up any definitive signs of injury that might have been inflicted in this fashion, I am satisfied that the absence of evidence in this case does not equate with evidence of absence. Indeed, it is hard to believe that the SO would have stood idly by for a period of time before discharging his weapon as his partner – WO #1 – was being choked on the ground. On this record, the evidence falls short of a reasonable conclusion that the SO acted precipitously and without legal justification when he decided to meet a lethal threat to WO #1’s life with a resort to lethal force of his own.

In the result, as there are no reasonable grounds to believe that the SO comported himself unlawfully in shooting the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: June 13, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit