Director's Report Details

• 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. 

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 

• 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.

 

Affected Person (aka “Complainant”):

34-year-old male; declined to be interviewed

Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 [1] Not interviewed (declined)

The civilian witness was interviewed on March 9, 2022.

Subject Officials (SO)

SO #1 Declined interview and to provide notes, as is the subject official’s legal right
SO #2 Declined interview and to provide notes, as is the subject official’s legal right

 

Witness Officials (WO)

WO #1 Interviewed
WO #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

The witness officials were interviewed on March 17, 2022.

With the assistance of the OPP, the SIU attended and processed three scenes where there had been police interaction with the Complainant: Nuttall Road, north of Highway 582 South, Hurkett; Highway 582 South, south of Highway 11/17; and, the Highway 11/17 arrest scene.

Nuttall Road ran north from Highway 582 South. The road was a dead-end road that was upwards of 200 metres in length. The roadway was snow-covered with pushed snowbanks on either edge of the roadway.

Highway 582 South had two exits/entrances from Highway 11/17. The second scene was the eastern most exit/entrance from Highway 11/17. The roadway was snow-covered with pushed snowbanks on either edge of the roadway. The snowbanks on the east side of the roadway were approximately 1.5 metres high. On the east side of the roadway there was bush with trees.

A Kia vehicle was oriented in a northerly direction with the left (driver) side on top of the snowbank and the right (passenger) side on the downward slope of the snowbank.
A foot trail in the snow was located leading east from the passenger side of the vehicle into the bush.

The arrest location was on the eastbound lane of Highway 11/17. A foot trail was evident coming from the bush, approximately 400 metres east of Highway 582.

Scene Examination

Nuttall Road

• There appeared to be an impression of a vehicle in the east snowbank that was perpendicular across the roadway.
• Two OPP exhibit markers were on scene denoting the locations of .223-calibre cartridge cases. One was on the roadway and north of the apparent roadblock caused by the vehicle across the roadway and the other was in the east snowbank and north of the apparent roadblock.
• Both exhibits had been secured by OPP forensic officers.
• There was evidence of the west snowbank having been recently struck around the apparent roadblock. It appeared as if a vehicle had recently travelled into and over the west snowbank to avoid the roadblock.
• Photographs were taken of the scene and markers.

Highway 582 South, South of Highway 11/17

• On the west side of the roadway was an area with exhibit placards. Each placard denoted the location where a .223 cartridge case had been recovered and collected by the OPP.
• On the east side snowbank was a tarped vehicle. The vehicle was a black Kia Magentis SX.
• The vehicle was oriented in a northerly direction with the left (driver) side on top of the snowbank and the right (passenger) side on the downward slope of the snowbank.
• Tire tracks to the south of the vehicle indicated that the vehicle was being operated in a northerly direction on Highway 582 when it struck the east snowbank continuing to the top of the snowbank before coming to a rest.
• There was a foot trail in the snow that led east from the passenger side of the vehicle into the bush.
• Located on the east side of the roadway and just south of where the vehicle left the roadway was an open spike belt container with the spike belt removed but not deployed and all the spikes still protected with rubber spike covers.
• There was also a pylon placed on the roadway with numerous rubber spike belt spike protectors on the roadway in this area.
• An OPP officer had reportedly located a .40-calibre cartridge case in the snow between the location of the Kia passenger side of the vehicle and the foot trail leading into the bush to the east.
• The area was photographed.

Highway 11/17 Arrest Scene

• The arrest location was on the eastbound lane of Highway 11/17. A foot trail travelled in a northerly direction from the bush and was approximately 400 metres east of Highway 582. An area was marked on the highway (location of a cellphone) and on the south shoulder (location of a pistol). The area was photographed.

Figure 1 – Kia in the east side snowbank of Highway 582 South

Physical Evidence

Involved Vehicles

OPP Vehicle 1

• Dodge Charger 4-door, dark blue.
• This was an unmarked police unit displaying graphics and lighting as designed by the OPP. The vehicle had bucket seats in the front.
• There was a bulge in the metal of the exterior front passenger door above the door handle. The right front passenger window was also cracked but without penetrating damage.
• There was an apparent defect to the interior of the right front door – 13 centimetres up from the top of the armrest and 8.5 centimetres forward of the “B” pillar.
• The interior door panel was removed, and a defect was in the metal frame of the door.
• Three pieces of bullet fragments were in the bottom of the door.

OPP Vehicle 2

• Ford Taurus 4-door, black and white.
• This was a marked police unit displaying graphics as designed by the OPP.
• This vehicle had fresh collision damage to the right rear corner.

Kia Magentis SX 4-door black

• The vehicle had heavy tinting to the windows.
• The right rear wheel to the vehicle had been damaged during the removal of the vehicle from the snowbank.
• The rear window – left side - was smashed, and there were markings consistent with ASP strikes.
• The left rear passenger door window and opera window were smashed, with marks on the window frame consistent with ASP baton strikes.
• A total of 17 defects were located to the driver’s side front fender and door.
• Three defects were located on the fender.
• 14 defects were to the driver’s door, including one to the base of the rear-view side mirror.
• Four defects were noted to the “A” frame roof support and upper driver’s door frame.
• One defect was noted to the front windshield – lower right side.
• Numerous defects were noted to the moonroof and headliner of the vehicle.
• The driver’s side window was in the down position.
• The front passenger window was in the down position.
• There was fresh collision damage to the front end of the vehicle.
• There was fresh scuff marks and collision damage to the front right fender.
• There was fresh scuffing and collision damage to the right side of the vehicle.
• The vehicles gear shift selector was in “D”.
• A projectile was seized from the floor area between the front seat and door.

A detailed trajectory examination of the vehicle was conducted. It appeared that all the defects to the driver’s side of the vehicle and the inner head liner were consistent with the final resting location of the vehicle on top of the snowbank with the driver’s side higher than the passenger side.




Figure 2 – Bullet holes in the driver’s side door of the Kia

Firearms

Glock 22 Gen .40-calibre pistol

• The pistol was dirty with road dirt.
• The magazine had a capacity of 15 cartridges and appeared to be unpinned.
• The magazine contained three – Federal 40 S&W hollow point cartridges.
• There was a loose Federal 40 S&W hollow point cartridge from the breech in the exhibit box.
• There appeared to be an indentation in the primer of the breech cartridge.
• The serial numbers appeared to have been ground off the Glock.

Figure 3 - The Glock 22

The three OPP rifles used in this incident were examined as follows.

C-8 Rifle – SO #2

• Colt 5.56 and attached sling.
• Two magazines and one separate .223 cartridge – headstamp “FC60”.
• Magazine 1 – two cartridges.
• Magazine 2 – 28 cartridges. [2]

Figure 4 – SO #2’s C8 Rifle


C-8 Rifle – SO #1

• Colt 5.56 and attached sling.
• Two magazines with no separate breech cartridge.
• Magazine 1 – 25 cartridges – headstamp “FC60”.
• Magazine 2 – 28 cartridges.

Figure 5 – SO #1’s C8 Rifle

C-8 Rifle – CW #2 (First Nations Constable)

• Colt 5.56 and attached sling.
• Two magazines with separate breech cartridge – headstamp “FC223 REM”.
• Magazine 1 – empty.
• Magazine 2 – 28 cartridges.

Figure 6 – CW #2’s C8 Rifle

Forensic Evidence

On April 13, 2022, the SIU submitted the cartridge cases located at the Nuttall Road scene and Highway 582 scene to the Centre of Forensic Sciences (CFS) for examination. The three C-8 rifles were also submitted for examination.

At the time of this report, the CFS reports had not yet been received by the SIU.

Video/Audio/Photographic Evidence [3]

OPP Telephone Recordings

Between 12:39 p.m. and 12:45 p.m., the OPP answered a call from Thunder Bay Police Service regarding a vehicle BOLO and a male who would be armed with a firearm, had been involved in a shooting – the Complainant – and was heading towards Toronto having left the area approximately 15-20 minutes ago driving a black Kia sedan. The victim had been shot in the arm; he was conscious. They were trying to obtain more information.

 
OPP Dispatch Recordings

The OPP broadcast the BOLO alert to Thunder Bay and Nipigon units.


OPP Radio Communications Recordings

It was broadcast that OPP units were trying to determine the best place to set up a roadblock. The monitoring sergeant, WO #1, was going to set up just west of Davis Road due to an incline in the road that would prevent the subject vehicle and driver from seeing them until very late – a spike belt would be deployed.

A broadcast went out that there was to be no police pursuit if the suspect became alerted to police presence and fled from police.

It was broadcast that the suspect vehicle was still on 11/17, and that it then was stopped in front of the spike belt. The suspect was reported to have turned around heading back to Thunder Bay.

A sergeant confirmed that nobody was pursuing the vehicle, that the suspect had left the area going west towards Thunder Bay, and that they were following at a safe distance at speeds of 85 km/h. One female had been removed from the car and was with WO #2.

It was broadcast that the suspect had locked himself in on Nuttall Road off Highway 582. An officer was setting up a spike belt at the entrance to Nuttall Road.

It was reported by WO #1 that shots had been fired – the suspect had taken one shot at the officer and he was now heading towards SO #1.

It was reported that the east entrance was completely blocked at Highways 582 and 11/17. A subsequent broadcast indicated that shots had been fired. The vehicle was off the road, there was uncertainty regarding possible injuries, and a request was made for an ambulance.

A broadcast was made that the vehicle was completely off the road and disabled, and had been heading directly at officers.

The suspect was reported on foot in the bush, east side of Highway 582.

WO #3 subsequently broadcast that he had the subject at gunpoint, and he was currently down on the ground at Sawmill Bay Road and Hurkett Loop Road. The subject was in custody and a weapon had been recovered.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the OPP between March 11, 2022, and April 6, 2022:

• Event Details Report;
• Internal Service Training (IST) Records – SO #2;
• Notes-WO #6;
• Crown Brief Synopsis;
• Occurrence Details and Reports;
• IST Training Records – SO #1;
• Global Positioning System Gate Data (two vehicles);
• IST Training Records-CW #2;
• Notes-WO #2;
• Notes-WO #4;
• Notes-WO #1;
• Notes-WO #3;
• SIU Disclosure List;
• Photo Briefs;
• Notes-WO #5; and
• Communications recordings.

In the afternoon of March 8, 2022, the Thunder Bay Police Service issued a BOLO for a Kia vehicle travelling eastward from Thunder Bay. The vehicle and one of its occupants – the Complainant – had been involved in a shooting in Thunder Bay.

 
The BOLO was received by OPP officers in the region. SO #1, WO #2 and WO #1 were having lunch in Red Rock when, on hearing the alert, they decided to try to stop the Kia. SO #1 headed west towards Pearl on Highway 11/17, spotted the Kia – a black Kia Magentis – and began to follow it eastward at a distance. In the meantime, WO #2 and WO #1 drove in their separate cruisers to the area of Highway 11/17 and Davis Road where they stopped their vehicles and deployed their spike belts across the eastbound lane of the highway.

The Kia, operated by a woman, CW #1, came to a stop before the spike belt. At the direction of WO #1, CW #1 turned off the engine, dropped the keys onto the roadway through the open driver’s door window, and exited the vehicle with her hands up. With CW #1 out of the vehicle, the Complainant, seated in the back of the Kia, climbed into the driver’s seat, reached out through the open driver’s door window to retrieve the keys, and re-started the car. He reversed before travelling forward, executing a U-turn and fleeing west on Highway 11/17.

 
SO #1, who had been behind the Kia in his cruiser, pursued the Complainant westward, as did WO #1 behind him in his vehicle. SO #1 followed the Kia as it turned south onto Stewart Lake Road towards Hurkett and then made its way east on Highway 582 towards Nuttall Road. WO #1 had proceeded further west on Highway 11/17 and entered Highway 582 from its western most exit/entry. He proceeded east towards Nuttall Road where he stopped to meet with SO #1 at the foot of the road. The Complainant had turned to travel north on Nuttall Road – a dead-end road.

It was decided that WO #1 would proceed north up Nuttall Road to try to locate the Kia while SO #1 set up a roadblock with his cruiser and a spike belt across the roadway. About halfway up Nuttall Road – a distance of about 100 metres – SO #1 noticed the Kia travelling south towards him. The Complainant was holding a gun pointed out through the open window. Believing he was about to be shot as the vehicles passed each other, the officer leaned over towards the middle of his cruiser. The Complainant fired his handgun into WO #1’s cruiser through its open driver’s door window. The bullet missed the officer and struck the inside of the front passenger door. WO #1 broadcast that the Complainant had shot at him.

The Complainant continued south on Nuttall Road and veered to the right over a snowbank to circumvent SO #1’s roadblock. From outside his vehicle, SO #1 fired two or three rounds [4] from his C-8 rifle towards the vehicle and the Complainant at around this time.

The Complainant continued his flight travelling south, east and then north on Highway 582 towards Highway 11/17. He encountered another roadblock involving a spike belt and police vehicles about 50 metres south of Highway 11/17, and again tried to drive around the blockade over a snowbank on the eastern side of the roadway. On this occasion, however, the Kia became stuck on the top of the snowbank. The Complainant, with his gun in hand, exited the Kia through the front passenger side and fled into the bush on the east side of the road. There is evidence that he fired his weapon at least once in the direction of the officers manning the roadblock – SO #2 and First Nations Constable CW #2. Both officers fired their C-8 rifles at the vehicle and the Complainant in and around the time of these events. SO #2 discharged 25 or 26 rounds, [5] while First Nations Constable CW #2 fired 27 or 28 times. [6]

The OPP set up a perimeter in the area to contain the Complainant.

 
About a couple of hours after he fled into the bush, the Complainant emerged onto Highway 11/17 and surrendered to an OPP officer. A firearm – a Glock .40-calibre semi-automatic pistol – was located a distance from him on the south shoulder of the highway. The Glock had a magazine containing three cartridges. The magazine was capable of holding 15 cartridges.

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

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.

25 (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservations of any one under that person’s protection from death or grievous bodily harm.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. In the case of lethal force, section 25(3) further provides that an officer is not sanctioned in its use unless they reasonably believe it is necessary in their own preservation or the preservation of anyone under their protection from death or grievous bodily harm. I am unable to reasonably conclude on the evidence gathered by the SIU that the discharges of their C-8 rifles by SO #2 and SO #1 were not legally justified under section 25.

 
The officers were lawfully placed and in the execution of their duties at the time of the events in question. Having received the BOLO alert regarding an attempted homicide recently attempted by the Complainant in Thunder Bay and his flight from the city in a Kia, the OPP officers were within their rights in seeking to stop the Kia and apprehend the Complainant. They tried to do this on three separate occasions – at the initial stop of the Kia on Highway 11/17 in the area of Davis Road, in the course of the events on Nuttall Drive, and at the blockade on Highway 582 south of Highway 11/17. Indeed, before the gunfire by SO #1 on Nuttall Road and SO #2 on Highway 582, the police also had grounds to arrest the Complainant in connection with the shot he had fired at WO #1.

As I am unable to arrive at an understanding of what precisely occurred at the time of the shootings with any degree of confidence, I am unable to reasonably conclude that either subject official acted without legal justification in firing his weapon. Each of the main players refused to provide a statement to the SIU – the Complainant, and SO #2 and SO #1. And what evidence there is – derived from forensic examinations of the scene and items of evidence, and interviews with WO #2 and WO #1 – lends itself to the proposition that the subject officials might well have fired their rifles in the reasonable belief that it was necessary to protect themselves from grievous bodily harm or death. This evidence consists of: the BOLO alert indicating that the Complainant was armed with a gun and had shot someone with it that day, and the shot taken by the Complainant at WO #1 and WO #1’s broadcast of the shooting over the police radio – all of which establish the Complainant’s propensity for lethal violence at the times in question and the subject officials’ apprehension of same; the evidence of the Complainant’s reckless and dangerous driving attempting to evade police apprehension, including an utterance from SO #2 captured on the communications recordings to the effect that the Complainant was driving right at him and First Nations Constable CW #2 around the time they fired their rifles, in concert with forensic evidence placing most if not all of the police shots that struck the Kia on the front end or the front driver’s side of the vehicle (none were established to have impacted the rear of the vehicle) [8] – suggesting the possibility of gunfire directed at the vehicle or its operating mind (the Complainant) to neutralize the Kia as a weapon; and, evidence of a spent .40-calibre cartridge case in the area of the Kia where it became stuck on the snowbank – raising the possibility that the Complainant had fired at SO #2 and/or First Nations Constable CW #2 when they discharged their rifles. While the sheer number of shots fired by SO #2 - up to 26 rounds - gives rise to concern, in the absence of some reasonably-based factual context suggesting the gunfire was excessive, I am unable to conclude that it was not legally justified.

For the foregoing reasons, there are no reasonable grounds to believe that either of SO #1 and SO #2 comported themselves unlawfully when they fired their weapons in the direction of the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: July 6, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit