SIU Director’s Report - Case # 22-PFP-105
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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 35-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 35-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On April 7, 2022, at 2:42 p.m., the Ontario Provincial Police (OPP) notified the SIU of an incident involving the discharge of a firearm at a person at an address in Inverary. The OPP advised that on April 7, 2022, the Complainant called 911, and reported that he had breached his release conditions and that the OPP should come and get him. The Complainant’s family then called the OPP and reported that the Complainant was having a mental health crisis. After some discussion, the Complainant’s family said he had a knife and a ball bearing gun, and he was barricaded.
The OPP activated the Tactical Rescue Unit (TRU) team to deal with the situation. After the TRU team had contained the area, the Complainant fled out of a window, and he was shot by a TRU member with a sock round. The Complainant was struck in the hand, and he sustained a bruise.
The Complainant was apprehended under the Mental Health Act (MHA) and transported to the Kingston General Hospital, where it was determined after medical examination that he had not suffered a serious injury.
The Team
Date and time team dispatched: 04/07/2022 at 3:28 p.m.Date and time SIU arrived on scene: 04/07/2022 at 3:45 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
35-year-old male; declined to be interviewedCivilian Witness (CW)
CW Interviewed The civilian witness was interviewed on April 8, 2022.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Not interviewed; statement and notes received and reviewed WO #2 Interviewed; statement and notes received and reviewed
The witness official was interviewed on April 12, 2022.
Evidence
The Scene
On April 7, 2022, at 4:30 p.m., an SIU Forensic Investigator (FI) attended a residence in Inverary in connection with a firearm discharge investigation. The residence at the address was a single-family, one-storey property. There was a detached garage and shed at the back of the property. The exterior of the residence and property, as well as the entrance, the kitchen and a bedroom were photographed. The exterior window screen of the bedroom window leaned against the house, under the window.At 5:38 p.m., the SIU FI attended at the Odessa OPP Detachment and met with an officer, who presented a 12-gauge Mesa Tactical ‘Sock Gun’ and an OPP evidence bag, which contained a discharged 12-gauge sock round and shell casing. The weapon was photographed, and the discharged round and casing were collected.
Physical Evidence
A 12-gauge sock round and shell casing were obtained by the SIU.
Figure 1 – sock round and shell casing
Figure 2 – shotgun
Video/Audio/Photographic Evidence [1]
OPP In-car Camera System (ICCS) Footage
The OPP provided the ICCS footage for one of their vehicles involved in the incident under investigation – an SUV. Rainfall interfered with the clarity of the recording. The following is a summary of the footage.The SUV arrived at the residence of the Complainant’s sister, a short distance from where the Complainant was located. The footage did not capture the deployment of a less lethal shotgun. The video depicted the Complainant handcuffed standing at the edge of a driveway in the company of TRU officers. The Complainant was searched, and then led to the rear of an OPP marked SUV and placed in the rear seat. The OPP SUV left the scene.
Communications Recordings
The following is a summary of the pertinent police communications.On April 7, 2022, at 11:49 a.m., the Complainant called the OPP and reported he had breached his conditions. He wanted the police to attend his residence and arrest him. He further indicated he needed help and wanted to be taken to the hospital. The Complainant stated he was calm and would be calm with the police when they arrived; however, after numerous attempts by the call-taker to obtain the Complainant’s location within the residence, he refused to divulge that information and hung-up the phone. Repeated attempts by the call-taker to call the Complainant back were unsuccessful - the Complainant kept hanging up the telephone. The call-taker noted that the Complainant sounded paranoid.
At 12:45 p.m., a family member of the Complainant informed the OPP that the Complainant was in possession of a knife, and that he was in a psychotic state.
Subsequent communications dealt with the coordination of OPP members attending the scene, updated information, and the notification of an OPP TRU team to attend the call.
At 1:54 p.m., a TRU officer broadcast that the Complainant was in custody.
Materials Obtained from Police Service
Upon request, the SIU obtained the following materials from the OPP between April 11, 2022, and April 18, 2022:- Event Details report;
- Notes- WO #2;
- Notes- WO #1;
- Arrest and Detention Policy;
- Communications recordings;
- ICCS footage;
- Use of Force Training Memo;
- Use of Force Policy; and
- Training Transcript- SO.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU.
At about 11:50 a.m. of April 7, 2022, the Complainant was in mental distress when he placed a call to police. The Complainant informed the call-taker that he had breached the terms of his release and that officers should be sent to his home to arrest him. He further advised that he needed help and wanted to be taken to the hospital. When asked, the Complainant refused to disclose where he was located inside his home and hung-up the phone. Repeated attempts by the call-taker to re-establish communications were unsuccessful. Officers were dispatched to the Complainant’s address.
After hearing from the Complainant, the police got a hold of a family member – the CW – who was at his sister’s home at the time. The CW informed the police that the Complainant was in a mental health crisis, had earlier been seen with a knife, and possibly had access to a firearm in the house.
As the situation involved a barricaded person in possession of a weapon, an OPP TRU team was also dispatched to the residence. The TRU officers took charge of the scene, setting up a perimeter around it. The SO was among the tactical officers taking part in the operation. He was equipped with a less lethal ‘sock gun’ and positioned at the rear of the residence. Continued efforts to speak with the Complainant, via telephone and loud hailer, were to no avail.
Shortly before 2:00 p.m., the Complainant, from his bedroom located at the south side of the home, opened the window, pushed out the window screen, and leapt through the opening. Righting himself, he started running in the direction of the SO and refused to stop at the direction of the police.
The SO fired his less lethal shotgun as the Complainant advanced on him. The sock round struck one of the Complainant’s hands. The Complainant fell to the ground and was approached by WO #1. The officer handcuffed the Complainant without incident, stood him up, and escorted him to investigators out front of the home.
The Complainant was taken to hospital and underwent a psychiatric examination. He was not diagnosed with any serious physical injury.
At about 11:50 a.m. of April 7, 2022, the Complainant was in mental distress when he placed a call to police. The Complainant informed the call-taker that he had breached the terms of his release and that officers should be sent to his home to arrest him. He further advised that he needed help and wanted to be taken to the hospital. When asked, the Complainant refused to disclose where he was located inside his home and hung-up the phone. Repeated attempts by the call-taker to re-establish communications were unsuccessful. Officers were dispatched to the Complainant’s address.
After hearing from the Complainant, the police got a hold of a family member – the CW – who was at his sister’s home at the time. The CW informed the police that the Complainant was in a mental health crisis, had earlier been seen with a knife, and possibly had access to a firearm in the house.
As the situation involved a barricaded person in possession of a weapon, an OPP TRU team was also dispatched to the residence. The TRU officers took charge of the scene, setting up a perimeter around it. The SO was among the tactical officers taking part in the operation. He was equipped with a less lethal ‘sock gun’ and positioned at the rear of the residence. Continued efforts to speak with the Complainant, via telephone and loud hailer, were to no avail.
Shortly before 2:00 p.m., the Complainant, from his bedroom located at the south side of the home, opened the window, pushed out the window screen, and leapt through the opening. Righting himself, he started running in the direction of the SO and refused to stop at the direction of the police.
The SO fired his less lethal shotgun as the Complainant advanced on him. The sock round struck one of the Complainant’s hands. The Complainant fell to the ground and was approached by WO #1. The officer handcuffed the Complainant without incident, stood him up, and escorted him to investigators out front of the home.
The Complainant was taken to hospital and underwent a psychiatric examination. He was not diagnosed with any serious physical injury.
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.
Section 17, Mental Health Act -- Action by police officer
17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.
Analysis and Director's Decision
On April 7, 2022, the Complainant was struck outside his home in Inverary by a less lethal shotgun round fired by an OPP officer. The SIU was notified of the incident and initiated an investigation. The officer who discharged his weapon – the SO – was identified 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 his shotgun.
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.
Based on what they knew of the information that had been provided to police by the Complainant and a family member, the TRU officers had cause to believe that the Complainant was of unsound mind and a danger to himself and others. His apprehension under section 17 of the MHA, therefore, was lawful.
As for the force used by the SO – a single discharge of a less lethal shotgun – there is no evidence to reasonably establish it was unwarranted. The officer had reason to believe that the Complainant was armed with a knife and not thinking straight. The Complainant had also given indication he was not going to surrender peacefully, despite having contacted police for help in the first place – he had refused to communicate with police officers during the standoff and was now running in the direction of the SO. On this record, I am satisfied that the SO acted reasonably when he sought to protect himself from a possible knife-attack by firing a sock round at the Complainant from a distance. Indeed, the discharge appears to have halted the Complainant’s advance, after which he was taken into custody without serious injury.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his dealings with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: August 5, 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 required or authorized to do by law.
Based on what they knew of the information that had been provided to police by the Complainant and a family member, the TRU officers had cause to believe that the Complainant was of unsound mind and a danger to himself and others. His apprehension under section 17 of the MHA, therefore, was lawful.
As for the force used by the SO – a single discharge of a less lethal shotgun – there is no evidence to reasonably establish it was unwarranted. The officer had reason to believe that the Complainant was armed with a knife and not thinking straight. The Complainant had also given indication he was not going to surrender peacefully, despite having contacted police for help in the first place – he had refused to communicate with police officers during the standoff and was now running in the direction of the SO. On this record, I am satisfied that the SO acted reasonably when he sought to protect himself from a possible knife-attack by firing a sock round at the Complainant from a distance. Indeed, the discharge appears to have halted the Complainant’s advance, after which he was taken into custody without serious injury.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his dealings with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: August 5, 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.