SIU Director’s Report - Case # 22-OFP-096
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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 42-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 42-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On March 31, 2022, at 8:52 p.m., the Greater Sudbury Police Service (GSPS) notified the SIU of the following.On March 30, 2022, officers had responded to a domestic dispute at a residence in Sudbury. The police officers formed grounds to arrest the Complainant. He had left his residence before officers arrived. On March 31, 2022, at 3:48 p.m., officers learned that the Complainant was at his father’s residence near Lasalle Boulevard and Falconbridge Road. When officers arrived, the Complainant refused to exit the residence, so the officers obtained a Feeney warrant. [1] At 7:29 p.m., the Complainant exited the residence with a hatchet in hand. One of the officers deployed an Anti-riot Weapon ENfield (ARWEN) twice. The Complainant was taken into custody and transported to the police station. No serious injuries had been incurred.
The Team
Date and time team dispatched: 03/31/2022 at 9:52 p.m.Date and time SIU arrived on scene: 03/31/2022 at 11:35 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
42-year-old male; interviewedThe Complainant was interviewed on March 31, 2022.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal right. Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
The witness officials were interviewed between April 6 and 11, 2022.
Evidence
The Scene
On April 1, 2022, at 2:14 a.m., the SIU forensic investigator arrived at the scene, an apartment building near Lasalle Boulevard and Falconbridge Road in Sudbury.Three of the apartment windows were broken, with debris was lying in the snow as well as inside the apartment itself. The entry door had numerous screws that had been through the door into the door frame. There was a yellow prybar/hammer/wrench tool on the floor just inside the entry.
In the kitchen was a drill, and numerous screws on the counters. A spent silver aerosol gas grenade was lying on the kitchen floor. The kitchen window was smashed, and glass littered the tile floor. A kitchen chair was tipped over and part of the window frame was over top of the chair.
The living room window was also smashed. There was glass on the couch. A lime green ARWEN projectile was lying on a seat cushion in the corner of the couch. A second ARWEN projectile was on the floor.
There was glass littered on the bed and floor of a bedroom. A black hatchet (overall measurement was 34 centimetres) was found in a second bedroom.
Physical Evidence
On April 1, 2021, the SIU forensic investigator collected two ARWEN projectiles at the scene. The first was lying on a seat cushion in the corner of the couch. The second lay on the floor in the centre of the room.At the police station, the SIU forensic investigator collected two spent ARWEN cartridges.
Figure 1 – ARWEN
Figure 2 – One of the two ARWEN projectiles
Figure 3 – Aerosol gas grenade
Figure 4 – The hatchet
Video/Audio/Photographic Evidence [2]
The SIU obtained audio records of relevance, as set out below.
911 Recording
On April 8, 2022, the GSPS provided the SIU a 911 recording in relation to a domestic violence and theft incident. The following is a summary of the recording.On March 30, 2022, at 1:57:34 p.m., the Complainant’s girlfriend reported a domestic violence and theft incident. The Complainant had stolen a dog and cellular phone, and was living at his father’s residence. The Complainant had punched, choked and bitten her, and she was afraid to confront the Complainant to get the dog.
GSPS Radio Communications
On April 8, 2022, the SIU received the police radio communications recording. The recording was time stamped and started on March 31, 2022, at 2:09:33 p.m. The following is a summary of the recording.Between 2:09:33 p.m. and 3:46:31 p.m., there were attempts to locate and contact the Complainant. WO #2 advised a dispatcher that the Complainant had told the officers to come back with a warrant. The police officers contacted investigators to get a Feeney warrant.
Between 4:17:06 p.m. and 4:23:51 p.m., WO #2 reported the Complainant was barricading the door with a door stop and using power tools. The Complainant said police were lucky he did not have their guns. WO #2 was negotiating to get the Complainant’s father out of the residence.
At 4:51:05 p.m., WO #9 communicated to all police officers the existence of two plans, one of which required a warrant.
At 5:13:07 p.m., the SO indicated that the Complainant’s father had exited the residence.
Between 5:34:40 p.m. and 6:04:07 p.m., WO #9 reported that the Complainant was using a drill to screw screws into the door to barricade it, and he was not responding to police callouts.
At 6:07:29 p.m., the dispatcher told WO #9 the Feeney warrant had been granted and WO #8 was bringing it to the scene.
At 6:54:43 p.m., WO #9 communicated to the dispatcher and all police officers that WO #8 was the incident commander. The mission statement was to execute the warrant and arrest the Complainant as safely as possible. The approved ‘deliberate action plan’ was to breach and hold. Upon breach, police officers would listen and assess, directing the Complainant to surrender, coming to the sound of police officers’ voices. If the Complainant did not respond or refused, police officers would switch to the ‘alternative action plan’, which was to introduce Oleoresin Capsicum Vapor (OCV) gas deep into the kitchen and living room area to get the Complainant to surrender. One team consisted of the SO with an ARWEN, WO #4 with a carbine and WO #7 – to act as the breacher at the living room window. Another team consisted of WO #3 with an ARWEN, WO #6 with a carbine, and WO #2 – to act as the breacher at the kitchen window. WO #1 would deploy the OCV gas into the windows. The entry team was WO #9, and WO #3, WO #6 and WO #1. They would enter the kitchen window.
Between 7:20:39 p.m. and 7:21:08 p.m., WO #9 radioed to the dispatcher that the teams were in position and breaching the windows. They had made contact with the Complainant and given him verbal commands.
At 7:22:01 p.m., WO #9 communicated that OCV gas was used, and the Complainant had thrown it back. The Complainant had a hatchet in his hand. The police officers were giving him verbal commands while he was throwing items at police.
At 7:24:48 p.m., WO #9 radioed to WO #8 a request to breach the other windows to see into the bedrooms where the Complainant was hiding. WO #8 approved the breach. It was reported that the Complainant had thrown a hatchet in the officers’ direction and was surrendering to police.
At 7:28:48 p.m., WO #9 notified the dispatcher that the Complainant had been arrested by police.
At 7:29:34 p.m., SO reported to the dispatcher that an ARWEN had been deployed.
Materials Obtained from Police Service
Upon request, the SIU received the following records from GSPS between April 1 and 8, 2022:- Communications recordings;
- Annual Use of Force Recertification - SO;
- Arrest Warrant (Feeney);
- General Occurrence Report;
- Policy - Arrest;
- Policy - Use of Force;
- Policy - Hostage Rescue-Barricaded Persons;
- Notes- WO #9;
- Notes- WO #7;
- Notes- WO #1;
- Notes- WO #4;
- Notes- WO #2;
- Notes- WO #6;
- Notes- WO #3;
- Notes- WO #5;
- Notes- WO #8;
- Officer and Witness list; and
- Victim Statement.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following record from other sources: - Ambulance Call Report from the Emergency Medical Services.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and several officers present at the time of 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.
In the afternoon of March 31, 2022, WO #2 and WO #5 arrived at the Complainant’s residence to take him into custody. The Complainant had reportedly struck his girlfriend the night before and the police were there to arrest him for assault. The Complainant’s father answered the door and advised the police that his son was present but would not present himself to be arrested without a warrant. The Complainant then also attended at the door and slammed it shut. He proceeded to threaten the officers through the locked door as they repeatedly asked that he surrender. WO #2 contacted WO #9 and briefed him on the situation. The decision was made to seek a Feeney warrant.
WO #9 arrived on scene at about 4:25 p.m. and assumed command of police operations. With the arrival of additional police officers, including tactical officers, it was decided that the police would set up containment around the basement apartment and attempt to negotiate a peaceful surrender of the Complainant. WO #2 continued to call out to the Complainant seeking to have him turn himself in. The Complainant continued to refuse. At about 6:40 p.m., WO #8 arrived and assumed responsibility as the incident commander. By that time, a Feeney warrant had been issued authorizing a forcible entry into the apartment by the officers to effect the Complainant’s arrest. With the warrant in effect, the police changed course and adopted a more proactive posture. Two teams of tactical officers would breach the apartment’s kitchen and living room windows, whereupon they would direct the Complainant to surrender into their custody. If he refused, tear gas would be shot into the apartment in an effort to force him out.
At about 7:20 p.m., with the approval of WO #8, WO #9 gave the go-ahead to the tactical teams to break the windows. Once broken, the SO shouted into the apartment directing that the Complainant emerge with nothing in his hands. When he refused to do so, WO #6 fired two cannisters of tear gas into the apartment through the broken kitchen window and about 30 seconds apart. The Complainant retrieved the first and threw it back outside in the direction of the officers. Following the second tear gas deployment, the Complainant went to his bedroom and returned to the living room with a hatchet in his hands. The SO armed with an ARWEN and standing within metres of the smashed out living room window, fired his weapon twice at the Complainant. It is not known whether either ARWEN projectile struck the Complainant.
Shortly after the ARWEN discharges, the Complainant dropped the hatchet and told the officers he was ready to surrender. At their commands, he positioned himself on the floor of his apartment in the area of his living room. Tactical officers entered through the broken windows and arrested the Complainant without further incident.
The Complainant did not suffer any serious injuries in his dealings with the police.
In the afternoon of March 31, 2022, WO #2 and WO #5 arrived at the Complainant’s residence to take him into custody. The Complainant had reportedly struck his girlfriend the night before and the police were there to arrest him for assault. The Complainant’s father answered the door and advised the police that his son was present but would not present himself to be arrested without a warrant. The Complainant then also attended at the door and slammed it shut. He proceeded to threaten the officers through the locked door as they repeatedly asked that he surrender. WO #2 contacted WO #9 and briefed him on the situation. The decision was made to seek a Feeney warrant.
WO #9 arrived on scene at about 4:25 p.m. and assumed command of police operations. With the arrival of additional police officers, including tactical officers, it was decided that the police would set up containment around the basement apartment and attempt to negotiate a peaceful surrender of the Complainant. WO #2 continued to call out to the Complainant seeking to have him turn himself in. The Complainant continued to refuse. At about 6:40 p.m., WO #8 arrived and assumed responsibility as the incident commander. By that time, a Feeney warrant had been issued authorizing a forcible entry into the apartment by the officers to effect the Complainant’s arrest. With the warrant in effect, the police changed course and adopted a more proactive posture. Two teams of tactical officers would breach the apartment’s kitchen and living room windows, whereupon they would direct the Complainant to surrender into their custody. If he refused, tear gas would be shot into the apartment in an effort to force him out.
At about 7:20 p.m., with the approval of WO #8, WO #9 gave the go-ahead to the tactical teams to break the windows. Once broken, the SO shouted into the apartment directing that the Complainant emerge with nothing in his hands. When he refused to do so, WO #6 fired two cannisters of tear gas into the apartment through the broken kitchen window and about 30 seconds apart. The Complainant retrieved the first and threw it back outside in the direction of the officers. Following the second tear gas deployment, the Complainant went to his bedroom and returned to the living room with a hatchet in his hands. The SO armed with an ARWEN and standing within metres of the smashed out living room window, fired his weapon twice at the Complainant. It is not known whether either ARWEN projectile struck the Complainant.
Shortly after the ARWEN discharges, the Complainant dropped the hatchet and told the officers he was ready to surrender. At their commands, he positioned himself on the floor of his apartment in the area of his living room. Tactical officers entered through the broken windows and arrested the Complainant without further incident.
The Complainant did not suffer any serious injuries in his dealings with the police.
Relevant Legislation
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 31, 2022, the GSPS contacted the SIU to report that a male – the Complainant – had been the subject of two ARWEN discharges in the course of his arrest earlier in the day. The SIU initiated an investigation naming the shooter – the SO – as the subject official. 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 use of the ARWEN.
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 authorized or required to do by law.
Based on the information received from the Complainant’s girlfriend about the violence reportedly inflicted upon her by him the day before, I am satisfied that there were grounds to arrest the Complainant at the time in question. Their entry into the apartment to effect the arrest was also authorized by warrant.
I am further satisfied that the police operations that unfolded in and around the apartment, including the discharge by the SO of his ARWEN twice in the Complainant’s direction, were reasonable and lawful. The police were right to contain the residence with a police perimeter and seek the Complainant’s arrest. They had cause to believe that the Complainant had committed a violent assault on his girlfriend and threatened the initial officers who attended at the apartment to arrest him. The assault on the apartment would also appear a reasonable tactic in the circumstances. The police had given the Complainant ample opportunity to peacefully surrender and it had become apparent that he was not about to do so any time soon. The use by the SO of the ARWEN occurred last in a series of escalating police interventions and was commensurate with the exigencies of the moment. The Complainant refused to give himself up when the windows were broken and he must have known his arrest was imminent. He then proved adept at being forced out by the tear gas – picking up at least one of the canisters fired into the apartment and throwing it back outside. It was only after the Complainant had been seen with a hatchet, a weapon capable of inflicting grievous bodily harm and death, that the SO decided to deploy the ARWEN twice. On this record, I am unable to reasonably conclude that the officer acted precipitously when he acted to neutralize a potentially lethal threat with a resort to less-lethal force of his own.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his engagement with the Complainant, there is no basis for proceeding with criminal charges against the officer. The file is closed.
Date: July 29, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 authorized or required to do by law.
Based on the information received from the Complainant’s girlfriend about the violence reportedly inflicted upon her by him the day before, I am satisfied that there were grounds to arrest the Complainant at the time in question. Their entry into the apartment to effect the arrest was also authorized by warrant.
I am further satisfied that the police operations that unfolded in and around the apartment, including the discharge by the SO of his ARWEN twice in the Complainant’s direction, were reasonable and lawful. The police were right to contain the residence with a police perimeter and seek the Complainant’s arrest. They had cause to believe that the Complainant had committed a violent assault on his girlfriend and threatened the initial officers who attended at the apartment to arrest him. The assault on the apartment would also appear a reasonable tactic in the circumstances. The police had given the Complainant ample opportunity to peacefully surrender and it had become apparent that he was not about to do so any time soon. The use by the SO of the ARWEN occurred last in a series of escalating police interventions and was commensurate with the exigencies of the moment. The Complainant refused to give himself up when the windows were broken and he must have known his arrest was imminent. He then proved adept at being forced out by the tear gas – picking up at least one of the canisters fired into the apartment and throwing it back outside. It was only after the Complainant had been seen with a hatchet, a weapon capable of inflicting grievous bodily harm and death, that the SO decided to deploy the ARWEN twice. On this record, I am unable to reasonably conclude that the officer acted precipitously when he acted to neutralize a potentially lethal threat with a resort to less-lethal force of his own.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his engagement with the Complainant, there is no basis for proceeding with criminal charges against the officer. The file is closed.
Date: July 29, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Obtained via the scheme set out in section 529 and 529.1 of the Criminal Code and named after the Supreme Court of Canada decision in R. v. Feeney, [1997] 2 SCR 13, a Feeney warrant authorizes the forcible entry by police officers into a dwelling-house to effect an arrest. [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]
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.