SIU Director’s Report - Case # 21-OFI-263
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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 serious injuries a 19-year-old man (the “Complainant”) suffered.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries a 19-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On August 18, 2021, at 8:32 p.m., the Waterloo Regional Police Service (WRPS) notified the SIU of the firearm-related injury of a man. According to WRPS, officers responding to a call for service involving a suicidal male located the male at Zehrs on Ottawa Street South, Kitchener. The man came at an officer with a knife and was shot twice. He had been taken to the hospital with non-life-threatening injuries. The Team
Date and time team dispatched: 08/18/2021 at 9:04 p.m.Date and time SIU arrived on scene: 08/18/2021 at 10:45 p.m.
Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
19-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on August 23, 2021.
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
CW #10 Interviewed
CW #11 Interviewed
CW #12 Interviewed
CW #13 Interviewed
The civilian witnesses were interviewed between August 19, 2021, and September 6, 2021.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Not interviewed as not on scene, but notes received and reviewed
WO #6 Not interviewed as not on scene, but notes received and reviewed
WO #7 Not interviewed as not on scene, but notes received and reviewed
The witness officials were interviewed on August 26, 2021.
Evidence
The Scene
On August 18, 2021, at 10:50 p.m., SIU Forensic Investigators arrived on scene. The scene originated on Ottawa Street South and carried over into the Zehrs parking lot in the Laurentian Power Centre. The scene was photographed and mapped with a Total Station mapping device.
On Ottawa Street South, the SIU located two vehicles which appeared to have been in a collision. Vehicle 1 was a grey Pontiac Pursuit without licence plates. This vehicle was orientated east in the eastbound lanes of Ottawa Street South. There was minor front-end damage consistent with a collision with Vehicle 2, which was a marked WRPS police vehicle, a Ford Explorer. The police vehicle was orientated west/southwest in the eastbound lanes of Ottawa Street South.
Figure 1 – Positioning of the Ford Explorer and Pontiac Pursuit
The parking lot of Laurentian Power Centre contained physical evidence which were marked as SIU exhibits, including nine spent .40 calibre cartridge cases, and a black-handled butcher-style knife which had an overall length of 34 centimetres and a blade length of 21 centimetres.
Figure 2 – Knife found on the roadway
Figure 3 – Size of the knife
Inside a tent that had been erected by the WRPS were a number of clothing items that had been removed from the Complainant and 15 pages of a handwritten note addressed to “Officer and Friends and Family”.
At 11:45 p.m., the WRPS produced the SO’s duty belt, which contained a Conducted Energy Weapon (CEW) and holster. There was blood transfer on the holster. The CEW contained two CEW cartridges. The CEW was downloaded and found not to have been used during the incident. The holster also contained OC spray, a handcuff key, an ASP baton, and an empty radio pouch. The right side of the duty belt contained a pistol holster with a damaged top strap. A Glock model 22, .40 calibre pistol was collected as an exhibit. The pistol’s breech contained a Federal .40 calibre S&W cartridge which was logged as an exhibit. The belt contained a Glock .40 calibre magazine, with 6 Federal .40 S&W cartridges. A 15 capacity duty magazine was identified as an exhibit. A double-handcuff pouch with 2 sets of handcuffs were also on the duty belt.
Figure 4 – The SO’s firearm
Scene Diagram
Physical Evidence
A handwritten note was located on scene, one of several apparently authored by the Complainant, in which he apologized to the police officer he hoped and planned would ultimately kill him.Forensic Evidence
Centre of Forensic Sciences (CFS)
On August 26, 2021, the SIU submitted to the CFS all cartridge cases collected from the scene to be compared to the SO’s duty pistol. Also submitted were bullet fragments to be examined and compared to the SO’s duty pistol.
On September 3, 2021, the SIU requested that the SO’s duty pistol be examined for DNA, and any results be compared to the Complainant’s DNA.
By way of report dated November 9, 2021, the CFS concluded that the nine spent cartridge cases recovered at the scene had been fired from the SO’s firearm.
Video/Audio/Photographic Evidence [1]
WRPS Communication Recordings
The WRPS provided the SIU with audio and voice files from August 18, 2021, in connection with the shooting incident. The material portions of the files are summarized below. - At 6:46:42 p.m., a 911 call was received from the Complainant’s grandmother. She reported that her grandson had left a suicide note, and she provided his cellular phone carrier and telephone number.
- At 8:09:50 p.m., the SO reported over the police radio that he had the Complainant blocked.
- At 8:10:10 p.m., the SO reported that the Complainant had a knife.
- At 8:10:19 p.m., there was a transmission indicating that the Complainant had rammed the SO’s cruiser and was approaching the officer with a knife.
- At 8:11:52 p.m., an officer reported that everything was “10-4” and requested an ambulance.
- At 8:12:34 p.m., an officer advised that they would cordon off the parking lot as the Complainant had been shot.
Video Footage - Popeyes Louisiana Kitchen located at 725 Ottawa Street South, Kitchener
On August 20, 2021, the WRPS provided the SIU with video footage captured at the Popeyes Louisiana Kitchen located at 725 Ottawa Street South, Kitchener. The colour video had no audio component. The camera was pointed down on an angle from the roof area of the Popeyes Louisiana Kitchen building. The camera captured a small section of Ottawa Street South with several construction pylons on the roadway, a pedestrian crosswalk, and the bottom section of a light standard. Across the street was a small section of a grass boulevard containing trees, shrubbery, and an advertisement sign. There was a very limited view of the Zehrs parking lot.
The following is a summary of the footage:
- At 8:09:13 p.m., a WRPS SUV drove on Ottawa Street South, stopping momentarily as traffic passed and pedestrians crossed at the crosswalk.
- At 8:09:40 p.m., the WRPS SUV continued forward out of camera view. Traffic continued to flow in both directions on Ottawa Street South.
- At 8:10:00 p.m., traffic came to a standstill in the same direction the WRPS SUV had travelled.
- A Popeyes Louisiana Kitchen customer walked in the parking lot when his attention was drawn up the street in the direction the WRPS SUV had travelled. The man looked for a short time, then walked towards his van in the parking lot.
- At 8:10:22 p.m., a person (now known to be the SO) ran onto the grass boulevard from Ottawa Street South near the evergreen trees, behind an advertisement sign. He then headed towards the Zehrs parking lot.
- Due to the distance from camera, it was difficult to discern any further details pertaining to the SO.
- At 8:10:34 p.m., a person [now known to be the Complainant] walked at a quick pace towards the SO.
- Due to the distance from the camera, it was difficult to discern any further details pertaining to the Complainant.
- At 8:10:35 p.m., the SO walked out of sight behind trees and shrubbery. The Complainant continued in the SO’s direction.
- At 8:10:42 p.m., the SO appeared on the other side of the trees.
- At 8:10:47 p.m., the Complainant appeared on the other side of the trees as he continued towards the SO.
- Pedestrians watched from the Popeyes Louisiana Kitchen parking lot.
- At 8:10:56 p.m., the SO and the Complainant walked out of camera view.
- At 8:11:07 p.m., emergency lights appeared in the Zehrs parking lot as the SO and the Complainant ran into camera view through the parking lot. The camera view was obscured by trees.
- At 8:11:17 p.m., more emergency lights were visible in the Zehrs parking lot.
- At 8:11:23 p.m., WRPS police vehicles arrived in the area the SO and the Complainant had run towards. Trees obscured the camera view. Additional police vehicles continued to arrive.
Video Footage - Zehrs, 750 Ottawa Street South, Kitchener
On August 18, 2021, WRPS provided the SIU video footage obtained from Zehrs, 750 Ottawa Street South, Kitchener. There were three sources of video - the three cameras were mounted in various spots on the exterior of the store. The following is a summary of the salient portions of the footage. Video #1
- At 8:12:06 p.m., the SO could be seen walking in the Zehrs parking lot.
- At 8:12:16 p.m., the Complainant walked onto the Zehrs parking lot from Ottawa Street South following the SO.
- At 8:12:32 p.m., the Complainant walked quickly following the SO. The view of the two men was obstructed by a shopping cart carousel in the parking lot.
- When the Complainant re-appeared on the other side of the carousel, he was limping.
- At 8:12:38 p.m., the Complainant continued to walk quickly behind the SO, who was walking away from the Complainant.
- At 8:12:39 p.m., the SO, between two parked vehicles, moved quickly, followed by the Complainant.
- At 8:12:42 p.m., the SO walked quickly while the Complainant walked quickly behind him, limping.
- At 8:12:43 p.m., the SO and the Complainant could not be seen as the view was obstructed by a shopping cart storage carousel.
- At 8:12:45 p.m., the SO was lying on the parking lot, parallel to the shopping cart carousel.
- At 8:12:46 p.m., the Complainant ran to a position past the SO.
- At 8:12:48 p.m., the SO rose to his feet, and he and the Complainant struggled.
- At 8:12:58 p.m., the SO and the Complainant were both off their feet on the parking lot struggling with each other.
- At 8:13:00 p.m., WO #1 exited his cruiser and assisted the SO in controlling the Complainant.
- At 8:13:07 p.m., WO #4, and WO #2 and WO #3, arrived. Their cruisers surrounded the interaction and obstructed the view of the SO and the Complainant from this camera.
- At 8:13:13 p.m., a cruiser which had been parked at the front entrance of the Zehrs also arrived at the interaction.
- At 8:16:04 p.m., the SO, limping, bent down and picked up something from the parking lot. The article had been lying close to the final struggle between the SO and the Complainant.
Video #2
- At 8:12:56 p.m., a cruiser driven by WO #1 arrived at the interaction. The SO and the Complainant were entangled with each other on the parking lot. WO #1 exited his cruiser and ran to the SO and the Complainant.
- At 8:13:10 p.m., the SO lay on his back on the parking lot and WO #1 was standing over top of him.
- At 8:13:15 p.m., WO #2 went to the Complainant.
- At 8:13:21 p.m., the SO rolled to his right and brought himself to his feet.
- At 8:13:31 p.m., WO #2 and another male WRPS officer controlled the Complainant.
- At 8:13:42 p.m., the SO was bent over in front of one of the WPRS cruisers. WO #1 stood with him.
- At 8:13:51 p.m., the SO leaned onto one of the WRPS cruisers.
- At 8:14:22 p.m., the SO, alone, was bent over in the parking lot, west of the final interaction he had with the Complainant.
- At 8:14:52 p.m., five WRPS officers stood and knelt around the Complainant.
- At 8:15:09 p.m., an object could be seen on the parking lot, close to where the Complainant was held, on the asphalt.
- At 8:13:04 p.m., a struggle involving the SO and the Complainant could be seen on the parking lot but all detail was obscured by a tree in the camera view.
- 8:13:12 p.m., two officers ran towards the struggle, obscured from camera view by a tree.
- 8:13:25 p.m., the SO moved away from the group on the asphalt.
- 8:13:32 p.m., the SO, bent over, limped as he walked away from the struggle followed by WO #1.
- 8:13:36 p.m., the SO bent down and picked up his gun from the parking lot, just in front of one of the parked WRPS cruisers.
- 8:14:14 p.m., a group of WRPS officers could be seen moving about around the Complainant. All detail was obscured from the view by the tree.
Snapchat Video Footage
On August 19, 2021, while on scene, SIU investigators were approached by a man who wished to remain anonymous. He provided a copy of a cellular phone video that he found posted on Snapchat. The video captured was 56 seconds long. Some footage was out of focus as the cellular phone panned in different directions and zoomed in and out. The following is a summary.
- The Complainant walked towards the Zehrs parking lot on the opposite side of the street.
- The camera zoomed in, and the Complainant was seen holding an object in his right hand by his side.
- The camera then panned back to Ottawa Street South capturing a marked WRPS SUV with no emergency lights activated and angled on Ottawa Street South to oncoming traffic. A small grey vehicle was directly in front of the WRPS SUV.
- The camera panned back towards the Zehrs parking lot across the street. There were construction pylons lining Ottawa Street South, a light standard, a portion of roadway under construction, a road construction sign, and a curb that ran along the grass boulevard with two tall trees and shrubbery between the trees.
- A police officer (now known to be the SO) walked backwards in the Zehrs parking lot with his left arm extended out in front him.
- As the SO continued walking backwards he drew his firearm with his right hand. Vehicle traffic began to move on Ottawa Street South. The SO continued walking backwards to an empty area in the parking lot with both hands on his firearm.
- The Complainant walked with a knife in his right hand towards the SO. Sirens could be heard.
- The Complainant moved closer to the SO. The SO continued walking backwards. The Complainant continued, closing the gap between them while raising the knife up towards his waist area.
- The SO fired one shot with his firearm. The Complainant fell to the ground. The Complainant immediately got up and lunged towards the SO. The Complainant held the knife in his right hand at waist height away from his body.
- The SO immediately fired a second shot. The Complainant fell to the ground, and again immediately got up with the knife in his right hand and ran with a limp towards the SO.
- The SO ran backwards as the Complainant chased the SO around the Zehrs parking lot. The view of the SO was briefly lost behind a large store mall sign. The Complainant ran limping towards the SO. The SO fired a third shot.
- The view was obscured momentarily by shrubbery as the SO fired a fourth, fifth and sixth shot while the Complainant pursued the SO.
- The SO ran backwards in the Zehrs parking lot as the Complainant continued to pursue the SO.
- The SO then fired a seventh, eighth and ninth shot while running backwards still pursued by the Complainant.
- The SO lost his footing and fell to the pavement. There was a sound of metal hitting and sliding on the pavement. The view was partially obscured by a light standard, tree and shrubbery.
- The Complainant paused for a brief moment and then appeared to go after the SO’s firearm. The Complainant bent down to the ground just beyond the SO’s position. By this time, the SO was getting up. The sound of metal was heard on the pavement.
- The SO physically engaged the Complainant. The sound of metal on the pavement was heard. The view was obscured by shrubbery and moving vehicle traffic. A male voice yelled, “Get the fuck down.”
- The camera panned out as sirens were heard and three police vehicles with emergency lights activated arrived through the mall parking lot.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from WRPS between August 20, 2021, and December 15, 2021:- Computer-assisted Dispatch Report;
- Communications recordings;
- Twitter screenshots;
- Notes-WO #3;
- Notes-WO #6;
- Notes-WO #2;
- Notes-WO #7;
- Notes-WO #4;
- Notes-WO #5;
- Notes-WO #1; and
- Security camera video footage.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Medical records from Hamilton Health Sciences;
- Video footage recorded and provided by several civilian witnesses; and
- Firearms Report, dated November 9, 2021, from CFS.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with several civilian eyewitnesses and video recordings that captured the events in question. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
The Complainant had decided to end his life on August 18, 2021, by provoking a police officer into shooting him. The plan involved the purchase of a vehicle that day, which he would drive without licence plates. When stopped by the police, the Complainant would threaten the officer with a knife, compelling the officer to shoot him.
The family of the Complainant caught wind of his intention to self-harm via his social media posts, and contacted police. Police officers were dispatched to look for the Complainant, including the SO.
Shortly after 8:00 p.m., the SO located the Complainant operating a Pontiac Pursuit eastbound on Ottawa Street South, east of Strasburg Road. The officer, operating a marked police SUV and travelling westbound towards the Complainant, cut in front of the Pontiac on Ottawa Street South, south of a parking lot adjacent to Zehrs. The vehicles collided nose-to-nose.
Following the collision, the Complainant waved a knife at the officer from inside his vehicle. He then exited the Pontiac, jumped over the hood of the cruiser, and started to chase the SO, who had backtracked around his cruiser and was retreating northward. With the knife in his right hand, the Complainant pursued the officer north into the parking lot. The SO held out his left arm imploring him to stop his advance and drew his firearm when the Complainant continued after him.
At 8:10 p.m., the SO fired a single round while walking backwards as the Complainant neared to within three to four metres. The shot struck the Complainant’s right knee causing him to collapse on the ground. The Complainant quickly rose to his feet again and ran two to three steps in the SO’s direction with the knife in hand when the SO, still backtracking, fired his weapon a second time. Again, the Complainant quickly lifted himself and ran with a limp after the SO as the officer skirted westward across a grass and bush island in the parking lot, discharging his firearm seven more times as he did so. The Complainant remained on his feet.
Shortly after the final shot, the SO ran southward in the lot, lost his footing and fell front first, the firearm falling from his grip in the process. The Complainant ran past the officer on the ground and retrieved the firearm momentarily before it fell free from his hold as he was physically engaged from behind by the SO, who had righted himself by that time. The two struggled for a period of time as other officers arrived at the scene and intervened to take the Complainant into custody.
The Complainant was transported to hospital from the scene. He had sustained gunshot wounds to the left arm, and left and right legs.
The Complainant had decided to end his life on August 18, 2021, by provoking a police officer into shooting him. The plan involved the purchase of a vehicle that day, which he would drive without licence plates. When stopped by the police, the Complainant would threaten the officer with a knife, compelling the officer to shoot him.
The family of the Complainant caught wind of his intention to self-harm via his social media posts, and contacted police. Police officers were dispatched to look for the Complainant, including the SO.
Shortly after 8:00 p.m., the SO located the Complainant operating a Pontiac Pursuit eastbound on Ottawa Street South, east of Strasburg Road. The officer, operating a marked police SUV and travelling westbound towards the Complainant, cut in front of the Pontiac on Ottawa Street South, south of a parking lot adjacent to Zehrs. The vehicles collided nose-to-nose.
Following the collision, the Complainant waved a knife at the officer from inside his vehicle. He then exited the Pontiac, jumped over the hood of the cruiser, and started to chase the SO, who had backtracked around his cruiser and was retreating northward. With the knife in his right hand, the Complainant pursued the officer north into the parking lot. The SO held out his left arm imploring him to stop his advance and drew his firearm when the Complainant continued after him.
At 8:10 p.m., the SO fired a single round while walking backwards as the Complainant neared to within three to four metres. The shot struck the Complainant’s right knee causing him to collapse on the ground. The Complainant quickly rose to his feet again and ran two to three steps in the SO’s direction with the knife in hand when the SO, still backtracking, fired his weapon a second time. Again, the Complainant quickly lifted himself and ran with a limp after the SO as the officer skirted westward across a grass and bush island in the parking lot, discharging his firearm seven more times as he did so. The Complainant remained on his feet.
Shortly after the final shot, the SO ran southward in the lot, lost his footing and fell front first, the firearm falling from his grip in the process. The Complainant ran past the officer on the ground and retrieved the firearm momentarily before it fell free from his hold as he was physically engaged from behind by the SO, who had righted himself by that time. The two struggled for a period of time as other officers arrived at the scene and intervened to take the Complainant into custody.
The Complainant was transported to hospital from the scene. He had sustained gunshot wounds to the left arm, and left and right legs.
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:
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.(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.
Analysis and Director's Decision
The Complainant was shot multiple times by a WRPS officer in Kitchener on August 18, 2021. The SO, the officer who had fired his weapon, was identified as the subject official for purposes of the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the shooting and the Complainant’s injuries.
Section 34 of the Criminal Code provides that the use of force that would otherwise amount to an offence is legally justified if it was intended to thwart a reasonably apprehended attack, actual or threatened, and was itself reasonable. The reasonableness of the force is to be assessed against all the relevant circumstances, including with respect to such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. In my view, the shots fired by the SO fell within the ambit of legally justified force under section 34.
Though the SIU is without direct, firsthand evidence of the SO’s mindset at the time he discharged his weapon – the officer having chosen not to interview with the SIU – I am satisfied that he acted to defend himself from a reasonably apprehended assault. The circumstances compel the conclusion. The Complainant had given the SO every indication that he was intent on attacking the officer. He was armed with a knife and advancing quickly towards the officer, even after he had been shot, refusing repeated direction that he desist. As is now clear, it was his intention to provoke the police officer into shooting him.
I am also satisfied that the force used by the SO in defending himself was reasonable. Though faced with an individual brandishing a knife in his direction, the officer had initially attempted to de-escalate the situation. The SO walked backwards away from the Complainant while telling him to stop, asking him to consider the impact of what he was doing on his family, and prevailing on him to think of the fact that he – the SO – also had a family. The Complainant ignored the officers’ entreaties and walked quickly and deliberately at the officer, holding the knife in his right hand. It was only when the Complainant had neared to within a few metres of the SO that the officer fired a single round. The Complainant was clearly within striking distance at the time and, armed with the knife, in a position to inflict grievous bodily harm or death. The officer next fired – another single round – as the Complainant rose to his feet and ran in his direction, again nearing to within striking distance. The final seven shots all occurred as the Complainant, again on his feet with the knife still in his right hand, charged at the SO as the officer retreated. Though some of those seven shots appear to have struck the Complainant, none were able to stop his advance. In fact, it was only after the SO lost possession of his firearm as he stumbled and fell that the shooting stopped. There followed a physical altercation in which the SO was able to disarm the Complainant of the firearm he had picked up. On this record, there is little doubt that the SO acted with proportionate and reasonable force when he sought to defend himself from a knife attack with lethal force of his own.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than lawfully throughout his engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: June 17, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Section 34 of the Criminal Code provides that the use of force that would otherwise amount to an offence is legally justified if it was intended to thwart a reasonably apprehended attack, actual or threatened, and was itself reasonable. The reasonableness of the force is to be assessed against all the relevant circumstances, including with respect to such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. In my view, the shots fired by the SO fell within the ambit of legally justified force under section 34.
Though the SIU is without direct, firsthand evidence of the SO’s mindset at the time he discharged his weapon – the officer having chosen not to interview with the SIU – I am satisfied that he acted to defend himself from a reasonably apprehended assault. The circumstances compel the conclusion. The Complainant had given the SO every indication that he was intent on attacking the officer. He was armed with a knife and advancing quickly towards the officer, even after he had been shot, refusing repeated direction that he desist. As is now clear, it was his intention to provoke the police officer into shooting him.
I am also satisfied that the force used by the SO in defending himself was reasonable. Though faced with an individual brandishing a knife in his direction, the officer had initially attempted to de-escalate the situation. The SO walked backwards away from the Complainant while telling him to stop, asking him to consider the impact of what he was doing on his family, and prevailing on him to think of the fact that he – the SO – also had a family. The Complainant ignored the officers’ entreaties and walked quickly and deliberately at the officer, holding the knife in his right hand. It was only when the Complainant had neared to within a few metres of the SO that the officer fired a single round. The Complainant was clearly within striking distance at the time and, armed with the knife, in a position to inflict grievous bodily harm or death. The officer next fired – another single round – as the Complainant rose to his feet and ran in his direction, again nearing to within striking distance. The final seven shots all occurred as the Complainant, again on his feet with the knife still in his right hand, charged at the SO as the officer retreated. Though some of those seven shots appear to have struck the Complainant, none were able to stop his advance. In fact, it was only after the SO lost possession of his firearm as he stumbled and fell that the shooting stopped. There followed a physical altercation in which the SO was able to disarm the Complainant of the firearm he had picked up. On this record, there is little doubt that the SO acted with proportionate and reasonable force when he sought to defend himself from a knife attack with lethal force of his own.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than lawfully throughout his engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: June 17, 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.