SIU Director’s Report - Case # 22-OFP-068
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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 discharge of a firearm by the police at a 47-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 discharge of a firearm by the police at a 47-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On March 7, 2022, at 11:48 a.m., the Peel Regional Police (PRP) notified the SIU that police had discharged a firearm at the Complainant in the course of his arrest. The Complainant resided at an address on Southampton Drive, Mississauga.According to PRP, on March 7, 2022, at 9:58 a.m., PRP officers responded to the Complainant’s residence for a serious domestic assault. When PRP officers arrived, the wife of the Complainant, was found to have been stabbed and struck with a hammer. Their 11-year-old son was also stabbed in the shoulder. The Complainant was found in the garage naked holding a toddler and both of them were covered in blood. The Complainant had a knife in his hand and a hammer at his feet. At approximately 10:17 a.m., the Subject Official (SO) and Witness Official (WO) engaged the Complainant with firearms drawn and, when an opportunity presented itself, arrested him. During the arrest, the SO’s firearm discharged, not striking anyone.
The Complainant was found to have a self-inflicted stab wound to his leg which occurred before PRP arrived. He was taken to St. Michael’s Hospital (SMH) via ambulance. His wife and 11-year-old son were also taken to hospital.
The Team
Date and time team dispatched: 03/07/2022 at 1:00 p.m.Date and time SIU arrived on scene: 03/07/2022 at 2:50 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
47-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on March 9, 2022.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Not interviewed, but notes received and reviewed
WO #8 Not interviewed, but notes received and reviewed
The witness officials were interviewed between March 8 and 9, 2022.
Evidence
The Scene
The firearm discharge occurred at a residence on Southampton Drive, Mississauga. The incident took place within the confines of the garage at the threshold of the entry into the residence, from the garage. There was red staining, a black knife handle and a conducted energy weapon (CEW) probe on the garage floor. Nearing the door leading into the residence, a spent cartridge case was found and a projectile strike in the door leading to the residence. Metal fragments were found on the opposing side of the door, in a rug and into the floor.
A trajectory examination revealed that the projectile struck the hinge side of the door, just above the hinge, 24 centimetres from the bottom of the door. The projectile entered the door and continued downwards at approximately a 45-degree angle.
A pick-up truck was parked outside the garage.
The PRP had reportedly retrieved a knife blade found outside of the garage in the driveway prior to SIU’s arrival.
Figure 1 – The SO’s rifle
Figure 2 - Projectile strike in the door
Physical Evidence
Forensic Evidence
CEW Analysis Report – WO #1
CEW Analysis Report – WO #2
Video/Audio/Photographic Evidence [2]
PRP Radio Communications
There were no date and time stamps associated with the recordings so the Event Chronology was used for an approximation of times in the summary that follows.At 10:00 a.m., on March 7, 2022, someone called 911 and reported that there was a man [now known to be the Complainant] at an address on Southampton Drive screaming at a woman. The Complainant was naked, his hand was bloody, and he was holding a knife. It was further reported that the Complainant was hitting and trying to kill the woman. He hit her in the face with a hammer. The Complainant had gone back into the residence with the weapons, leaving the woman on the ground bleeding, but moving.
A second 911 call was made by a different caller, who reported that an 11-year-old boy ran from the Complainant’s residence stating his father was stabbing his mother. The caller went to the garage - the garage door was open and he saw a naked Complainant stab his wife. He was told to leave by the Complainant. The caller felt the woman would not live. During the call, he learned the 11-year-old boy had a younger brother, a toddler, who was last seen upstairs. There was a stab wound to the right arm and back of the 11-year-old.
At 10:00 a.m., WO #6, WO #8 and a sergeant were sent to a ‘weapons dangerous’ call at the Complainant’s address on Southampton Drive, at the rear. Numerous other units including WO #1 and the SO from the Emergency Response Unit (ERU) were dispatched.
At 10:06 a.m., WO #7 arrived and requested a rush on the ambulance. The woman was conscious and a civilian was assisting with first aid. WO #7 confirmed that neighbours said the Complainant was inside his residence.
At 10:10 a.m., WO #8 reported that the Complainant was talking to police with a child in hand.
At 10:11 a.m., an officer reported the child had been recovered safely, and they were still attempting to apprehend the Complainant.
At 10:15 a.m., an officer reported that the Complainant had stabbed himself in the leg.
At 10:17 a.m., another officer confirmed the Complainant was in custody.
Body-worn Camera (BWC) Footage – WO #7
The footage, a summary of which follows, was recorded on March 7, 2022. At 10:05 a.m., WO #7 arrived in the area of the Complainant’s residence. In the distance, a woman – the Complainant’s wife – was sitting in front of a residence with her back to the BWC; a lot of blood was on her and the ground around her.
At 10:06:40 a.m., WO #7 ran back to his police vehicle for medical supplies. When WO #7 returned, a woman joined him to assist with the Complainant’s wife’s medical attention.
WO #7 took a position at the front driver’s side of a pick-up truck, which blocked the view of the BWC. At 10:10:15 a.m., somebody yelled, “He’s out front.” WO #7 yelled to drop the kid.
WO #7 returned to the Complainant’s wife and, with the assistance of the woman, carried her to the front of a nearby residence.
At 10:11:10 a.m., the sound of a gunshot was heard.
BWC Footage – WO #2
At 10:10 a.m., WO #2 arrived and ran up to the garage of the Complainant’s address. A police officer [now known to be the SO] was situated at the back of a pick-up truck and another was at the front, both on the driver’s side. The Complainant’s wife, covered in blood, was sitting in front of a neighbour’s residence, being assisted by another woman. At 10:10:53 a.m., the Complainant’s wife was carried away by WO #7 and the woman assisting, and an ERU member [now known to be WO #1] joined the SO. Three seconds later, WO #1 went around the back of the pick-up, followed by the SO. At 10:11:04 a.m., both WO #1 and the SO entered the garage. WO #1 was on the far side of the garage.
At 10:11:07 a.m., WO #2 was at the opening to the garage. “Drop the kid,” was heard. WO #1 and the SO were on either side of a cardboard box that was in front of the Complainant. WO #1 stated, “Drop the kid or going to be shot.” In the darkness at the back of the garage, the Complainant’s upper body was in view with his left arm partially outstretched.
WO #1 approached and blocked the right arm of the Complainant. At 10:11:08 a.m., a green dot appeared on the Complainant’s left arm. A white light briefly illuminated the Complainant from the SO’s direction as WO #1 began to lean and bend forward towards the Complainant.
As WO #1 came closer to the Complainant, his right arm was outstretched. WO #1 continued into the doorway as the SO followed behind.
At 10:11:09 a.m., WO #1 was bent over and, as the SO’s left leg was bent and his foot was off the ground, a gunshot was heard. [3]
As WO #1 was on top of the Complainant, he yelled, “Get the kid.” At 10:11:20 a.m., the SO turned towards the BWC with the child in hand. He gave the child to a police officer [now known to be WO #3].
The footage continued to capture the arrest of the Complainant by four to five police officers. CEWs were discharged. Commands directing the Complainant to put his hands behind his back were repeated.
At 10:11:25 a.m., WO #1 asked if anybody was hurt.
At 10:12:50 a.m., the Complainant was successfully handcuffed behind his back.
At 10:20:45 a.m., after the house was cleared, WO #1 came into the landing and asked, “Did my rifle go through his chest?” WO #1 proceeded to check the Complainant’s chest and shoulder area.
At 10:24:10 a.m., the SO stated he was going to talk to the sergeant and left the garage.
BWC Footage - WO #3
WO #3 was at the side of the Complainant’s residence - the front end of the pick-up truck was captured in the footage. WO #3, with his CEW in hand, advanced to the front corner of the residence. Two uniformed police officers were by the hood of the pick-up truck. A third police officer arrived and walked down the driver’s side to the back of the pick-up truck.At 10:10:51 a.m., WO #1 arrived with his carbine rifle in hand. Eight seconds later, WO #1 came around the back of the pick-up truck, followed by the SO. The camera captured WO #1 and the SO entering the garage. A uniformed police officer [now known to be WO #2] positioned himself at the opening with his firearm out in the ready position. The audio captured, “Drop the kid or going to be shot.”
At 10:11:10 a.m., a gunshot was captured. WO #2 holstered his firearm and went to the interior door. WO #2’s body blocked the view of WO #1 and the SO. The Complainant could not be seen. The SO stood up with the child in hand. WO #2 took the child and handed it to WO #3. WO #3 passed the child off to somebody, but the child blocked the camera view.
BWC Footage - WO #4
At 10:11 a.m., WO #4 arrived. Nine seconds later, WO #4 entered the garage to the Complainant’s residence. There was one police officer between WO #4 and the door leading into the residence. A police officer [now known to be WO #2] stood in the interior doorway with his attention towards the ground. The Complainant was lying on his stomach, naked from the waist down.WO #2 had a CEW in hand and applied about a discharge above the right buttocks, at the waistline. Police officers shouted, “Put your hands behind your back.” The Complainant yelled in pain but did not surrender his hands.
WO #2 moved to the right side of the Complainant and, with the CEW, applied a drive stun to the back of the Complainant’s left upper thigh.
At 10:12:51 a.m., the handcuffing was completed.
At 10:15 a.m., the Complainant stated he was stabbed in his leg. Police officers applied a tourniquet to his leg.
Cell Phone Video Footage
On March 7, 2022, the SIU obtained video footage from a civilian. The following is a summary of the footage. The top of a pick-up truck could be seen parked on the roadway blocking the Complainant’s driveway. The garage door was open. A parked PRP vehicle was also visible.
At 10:12 a.m., WO #3 stood to the left of the open garage door.
WO #1 was at the back of the marked police vehicle parked across from the Complainant’s residence. WO #1 crossed the road and walked towards the back of the pick-up truck on the driver’s side. The SO was seen on the driver’s side of the pick-up truck, pointing a rifle into the open garage.
WO #1 came to be behind the SO and then began to go around the back of the pick-up truck, followed by the SO. WO #1 was positioned on the left side opening of the garage. The SO was on the right side. Both had their rifles pointed into the garage as they entered. WO #1 and the SO disappeared as they began to move closer together. WO #3 moved and looked into the garage on the left side. WO #2 walked towards the garage opening on the right side. A white flash was subsequently seen coming from the back of the garage.
WO #2 and WO #3 attended the back of the garage out of sight. Shortly after, a uniformed police officer had a child carried under his arm taking him out of the garage.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the PRP between March 7 and 29, 2022:- BWC footage;
- Event Chronologies (x2);
- Driver Record Card;
- Exhibit List;
- Involved Officers;
- The SO’s training and weapons records to March 2022;
- The SO’s Basic Tactical Operator and Tactical Carbine Certificates 2021;
- Notes-WO #3;
- Notes-WO #6;
- Notes-WO #1;
- Notes-WO #2;
- Notes-WO #8;
- Notes-WO #4;
- Notes-WO #5;
- Notes-WO #7;
- Occurrence Report;
- Person Details Report;
- Communications recordings;
- Scene photographs; and
- CEW data download.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Medical Record SMH – the Complainant; and
- Cell phone video footage from a civilian.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant and officers present at the time of the shooting. The incident was also captured on police BWC footage. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the morning of March 7, 2022, the Complainant, for reasons unknown, embarked on a series of violent acts involving his family. He attacked his wife with a knife and hammer, and inflicted stab wounds on his 11-year-old son. The son fled to a neighbour’s residence and reported what was occurring. The neighbour contacted police. Another neighbour witnessed portions of the assault on the wife that took place outside the residence. She too called police.
Within moments of the 911 calls, PRP officers began arriving on scene – a residence on Southampton Drive, Mississauga. Some took up positions behind a pick-up truck parked perpendicular to the open garage door at the rear of the home. The Complainant was seated at the rear of the garage on the ledge of the open doorway that accessed the interior of the home. He was holding another son – a toddler – against his chest. Told repeatedly by the officers to release the child, the Complainant did not.
In the company of his partner – WO #1, the SO, both of the PRP ERU, arrived on scene at about 10:10 a.m. The SO took up a position by the driver’s side rear of the pick-up truck parked in front of the garage; WO #1 by the driver’s side front. Assessing the situation as one in need of immediate intervention, WO #1 moved towards his partner to initiate an entry into the garage. The plan was to quickly approach the Complainant from both sides of the garage and to incapacitate him at the first opportunity, with the use of their C-8 rifles if necessary, which both officers held at the ready.
The Complainant observed the officers enter the garage but did not release his child as ordered. He remained seated on the ledge of the doorway as WO #1 approached from his right, and the SO from his left. As WO #1 neared to within arm’s length of the Complainant, the officer used the muzzle of his rifle to strike him in the chest. Quickly thereafter, the SO fired his C-8 rifle, after which the officers forced the Complainant flat on the landing just inside the doorway.
There ensued a physical struggle between the ERU officers, joined by uniform officers entering the garage, and the Complainant. The toddler was freed from the Complainant’s hold and removed from the garage as the altercation continued. The Complainant was subjected to multiple CEW deployments and punches, and was eventually handcuffed behind his back.
At hospital following his arrest, the Complainant was diagnosed with a right-sided rib fracture.
The SO’s gunshot did not strike the Complainant. The projectile struck the door just above the lower hinges and entered the interior of the home without causing injury to anyone.
In the morning of March 7, 2022, the Complainant, for reasons unknown, embarked on a series of violent acts involving his family. He attacked his wife with a knife and hammer, and inflicted stab wounds on his 11-year-old son. The son fled to a neighbour’s residence and reported what was occurring. The neighbour contacted police. Another neighbour witnessed portions of the assault on the wife that took place outside the residence. She too called police.
Within moments of the 911 calls, PRP officers began arriving on scene – a residence on Southampton Drive, Mississauga. Some took up positions behind a pick-up truck parked perpendicular to the open garage door at the rear of the home. The Complainant was seated at the rear of the garage on the ledge of the open doorway that accessed the interior of the home. He was holding another son – a toddler – against his chest. Told repeatedly by the officers to release the child, the Complainant did not.
In the company of his partner – WO #1, the SO, both of the PRP ERU, arrived on scene at about 10:10 a.m. The SO took up a position by the driver’s side rear of the pick-up truck parked in front of the garage; WO #1 by the driver’s side front. Assessing the situation as one in need of immediate intervention, WO #1 moved towards his partner to initiate an entry into the garage. The plan was to quickly approach the Complainant from both sides of the garage and to incapacitate him at the first opportunity, with the use of their C-8 rifles if necessary, which both officers held at the ready.
The Complainant observed the officers enter the garage but did not release his child as ordered. He remained seated on the ledge of the doorway as WO #1 approached from his right, and the SO from his left. As WO #1 neared to within arm’s length of the Complainant, the officer used the muzzle of his rifle to strike him in the chest. Quickly thereafter, the SO fired his C-8 rifle, after which the officers forced the Complainant flat on the landing just inside the doorway.
There ensued a physical struggle between the ERU officers, joined by uniform officers entering the garage, and the Complainant. The toddler was freed from the Complainant’s hold and removed from the garage as the altercation continued. The Complainant was subjected to multiple CEW deployments and punches, and was eventually handcuffed behind his back.
At hospital following his arrest, the Complainant was diagnosed with a right-sided rib fracture.
The SO’s gunshot did not strike the Complainant. The projectile struck the door just above the lower hinges and entered the interior of the home without causing injury to anyone.
Relevant Legislation
Section 86, Criminal Code – Careless use of a firearm
86 (1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.(2) Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.
(3) Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable offence and liable to imprisonment
(i) in the case of a first offence, for a term not exceeding two years, and
(ii) in the case of a second or subsequent offence, for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Section 25(1), Criminal Code -- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(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,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Analysis and Director's Decision
On March 7, 2022, the PRP contacted the SIU to report that one of their officers had discharged a firearm in the course of the arrest of a male – the Complainant. 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 firearm discharge.
In an utterance to WO #1 in the immediate aftermath of the incident, the SO explained that he was in the act of shooting the Complainant when the opportunity passed as WO #1 struck him with the rifle and he (the SO) no longer had a safe shot. Being committed to the shot, the SO managed to divert his aim to the right of the Complainant (the Complainant’s left) before pulling the trigger. As there is nothing in the evidence to disprove the SO’s assertion, I accept it for purposes of these reasons. That being the case, the question becomes whether the SO exercised due care in connection with the use of his firearm.
The offence that arises for consideration is careless use of a firearm contrary to section 86 of the Criminal Code. As an offence of penal negligence, a simple want of care will not suffice to ground liability. Rather, the offence is premised on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. In my view, there is insufficient evidence to reasonably conclude that the discharge by the SO of his firearm amounted to a marked departure from a reasonable standard of care.
The SO was at all times lawfully placed throughout the series of events culminating in the Complainant’s arrest. Called to the scene of what effectively was a hostage situation, where moments prior the assailant – the Complainant – had reportedly inflicted serious injuries on his wife and son, the officer was duty bound to do what he could to prevent further harm from materializing to the toddler in the Complainant’s arms.
The decision by the SO and WO #1 to storm the garage was a reasonable one. The Complainant had violently attacked his wife and 11-year-old son, was in the garage holding his toddler and refusing to release him, and remained possibly in the possession of the knife and hammer that he had just used against his family. In the circumstances, one can understand the need to take prompt action to incapacitate the Complainant in the fashion the officers did. The use of their weapons from a distance was effectively ruled out given the presence of the child in the Complainant’s arms.
The decision to fire the weapon is open to scrutiny. If the SO had the presence of mind to alter his aim as his partner physically engaged the Complainant, how is it he was not able to refrain from pulling the trigger? That said, in the highly fraught circumstances in which the SO found himself, I am unable to dismiss the officer’s explanation that he was able to do one but not the other, namely, reposition his firearm but not stop himself from firing. Nor does the fact that the SO had decided to shoot the Complainant, and had his rifle aimed in his direction, alter the liability analysis. At the time of these events, the officers had good reason to believe that the toddler’s life was at imminent risk of grievous bodily harm or death at the hands of the Complainant. A resort to lethal force on this record would not appear to have been disproportionate to the exigencies of the moment.
In the result, as I am satisfied that the SO did not transgress the limits of care when he fired his C-8 rifle, there are no grounds for proceeding with criminal charges against the officer. [4]
Date: July 5, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
In an utterance to WO #1 in the immediate aftermath of the incident, the SO explained that he was in the act of shooting the Complainant when the opportunity passed as WO #1 struck him with the rifle and he (the SO) no longer had a safe shot. Being committed to the shot, the SO managed to divert his aim to the right of the Complainant (the Complainant’s left) before pulling the trigger. As there is nothing in the evidence to disprove the SO’s assertion, I accept it for purposes of these reasons. That being the case, the question becomes whether the SO exercised due care in connection with the use of his firearm.
The offence that arises for consideration is careless use of a firearm contrary to section 86 of the Criminal Code. As an offence of penal negligence, a simple want of care will not suffice to ground liability. Rather, the offence is premised on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. In my view, there is insufficient evidence to reasonably conclude that the discharge by the SO of his firearm amounted to a marked departure from a reasonable standard of care.
The SO was at all times lawfully placed throughout the series of events culminating in the Complainant’s arrest. Called to the scene of what effectively was a hostage situation, where moments prior the assailant – the Complainant – had reportedly inflicted serious injuries on his wife and son, the officer was duty bound to do what he could to prevent further harm from materializing to the toddler in the Complainant’s arms.
The decision by the SO and WO #1 to storm the garage was a reasonable one. The Complainant had violently attacked his wife and 11-year-old son, was in the garage holding his toddler and refusing to release him, and remained possibly in the possession of the knife and hammer that he had just used against his family. In the circumstances, one can understand the need to take prompt action to incapacitate the Complainant in the fashion the officers did. The use of their weapons from a distance was effectively ruled out given the presence of the child in the Complainant’s arms.
The decision to fire the weapon is open to scrutiny. If the SO had the presence of mind to alter his aim as his partner physically engaged the Complainant, how is it he was not able to refrain from pulling the trigger? That said, in the highly fraught circumstances in which the SO found himself, I am unable to dismiss the officer’s explanation that he was able to do one but not the other, namely, reposition his firearm but not stop himself from firing. Nor does the fact that the SO had decided to shoot the Complainant, and had his rifle aimed in his direction, alter the liability analysis. At the time of these events, the officers had good reason to believe that the toddler’s life was at imminent risk of grievous bodily harm or death at the hands of the Complainant. A resort to lethal force on this record would not appear to have been disproportionate to the exigencies of the moment.
In the result, as I am satisfied that the SO did not transgress the limits of care when he fired his C-8 rifle, there are no grounds for proceeding with criminal charges against the officer. [4]
Date: July 5, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The times are derived from the internal clocks of the weapons, which are not necessarily synchronous between weapons and with actual time. [Back to text]
- 2) 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]
- 3) WO #2’s BWC was the closest to the gun shot. The gun shot was a millisecond before the clock changed to 10:11:10 a.m. [Back to text]
- 4) While the focus of the investigation was on the firearm discharge, I am also satisfied that the other force used against the Complainant - ranging from the rifle strike by WO #1, the multiple CEW discharges, and the punches delivered by WO #1 – was legally justified pursuant to section 25(1) of the Criminal Code. The Complainant was clearly subject to lawful arrest given the attacks he had reportedly perpetrated on his wife and son. He was also subject to a measure of force when he chose not to release his toddler at the officers’ directions and then struggled with the officers as they attempted to secure him in handcuffs. Given the need to quickly and decisively take the Complainant into custody, the quantum of force used by the officers fell within the range of what was reasonable at the time. Once handcuffed, no further force was used on the Complainant. [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.