SIU Director’s Report - Case # 22-PFP-138
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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 72-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 72-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On May 28, 2022, at 7:44 p.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.The Complainant had been involved in an argument with his wife, following which he gathered up his firearms, put them in his boat, and went out onto Georgian Bay. While on the water, the Complainant pointed his gun at other boaters and made threats. The OPP marine unit located the Complainant out on the water and confronted him. The Complainant appeared to be reaching for another weapon when the OPP deployed an Anti-Riot Weapon ENfield (ARWEN), which was effective. The Complainant was apprehended and taken to Southern Georgian Bay General Hospital under the Mental Health Act. It was believed that the Complainant had not suffered a serious injury.
The OPP had towed the Complainant’s boat to the Honey Harbour Boat Club. It was being secured for SIU examination.
The ARWEN had also been secured for the SIU.
The Team
Date and time team dispatched: 05/28/2022 at 9:01 p.m.Date and time SIU arrived on scene: 05/28/2022 at 10:00 p.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
72-year-old male; interviewedThe Complainant was interviewed on May 31, 2022.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Not interviewed
CW #5 Not interviewed
The civilian witnesses were interviewed between May 29, 2022, and May 31, 2022.
Subject Officials (SO)
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Declined interview and to provide notes, as is the subject official’s legal right
Witness Officials (WO)
WO #1 Not interviewed; notes received and reviewed WO #2 Not interviewed; notes received and reviewed
Evidence
The Scene
SIU investigators did not attend the scene. The scene was identified as a water course close to Tomahawk Island in Georgian Bay.
Shortly after the incident, a SIU forensic investigator (FI) examined the boats involved at the Honey Harbour marina.
Physical Evidence
On May 28, 2022, a SIU FI examined two marine vessels involved in the incident.The Complainant’s Vessel
- 18-foot boat, white and black.
- The vessel was equipped with a 115-hp outboard motor.
- The vessel had a Bimini top with clear plastic side panels.
- There were numerous strikes to the left (port) side panel consistent with ARWEN projectile strikes.
- Located in the left (port) side gunnel storage area were two long firearms: a Cooey Model 84, 12-guage shotgun (this shotgun was not loaded with any ammunition), and a Mossberg semi-automatic .22 calibre rifle with sling (the rifle was not loaded with any ammunition or magazine). The rifle was equipped with a sling.
OPP Vessel
- 2007 23-foot Hike vessel.
- This was an OPP patrol vessel equipped with graphics as designed by the OPP.
- On board this vessel was a rifle – a .22 calibre Cooey bolt action, model 39 rifle with an attached Weaver scope - reportedly removed from the Complainant’s vessel. The rifle was not loaded.
On May 29, 2022, at 12:01 a.m., the OPP produced an ARWEN 37 mm rifle – tactical issue. Three ARWEN AR-1 cartridge cases were also produced. A total of five ARWEN cartridges were fired from this rifle with all the projectiles and two of the cartridge cases landing in Georgian Bay. The ARWEN was examined and returned to the OPP.
At 12:15 a.m., the OPP produced an ARWEN 37 mm rifle. Four ARWEN AR-1 cartridges were also produced. One ARWEN cartridge was fired from this rifle with the cartridge case and projectile landing in Georgian Bay. The ARWEN rifle and 4 cartridges were returned to the OPP.
Figure 1 – Mossberg semi-automatic .22 calibre rifle
Figure 2 - ARWEN AR-1 cartridge cases
Figure 3 – ARWEN 37 mm rifle
Video/Audio/Photographic Evidence
Video Footage #1
The video, not dated, was 30 seconds in length. It was shot from what appeared to be a deck.A small boat with a canopy was captured positioned just off the stone shoreline and pointed towards another near Tomahawk Island. An OPP boat approached the boat [now known to be the Complainant’s boat] from its left side and was about three to four boat-lengths away. Four OPP tactical members were situated at the front of the OPP boat, with another midway down the right side. Commands to “raise your hands” from multiple sources were heard. The word “ARWEN” was heard followed by about six discharges. The OPP boat was about one boat-length away after the last discharge.
In the background a man stated, “He picked up a gun.”
The commands, “Don’t move,” were heard as the OPP boat contacted the left side of the boat. Further commands of, “Don’t move,” were heard as the Complainant’s boat rotated clockwise and became parallel with the right side of the OPP boat. Commands of, “Put your hands up where I can see them,” were given.
Ten seconds after contact, two OPP members entered the front of the bowrider, and somebody stated, “Tie it off.” A third OPP officer entered the boat on the left side.
A speed boat [now known to be CW #2 and her husband’s boat] passed between the OPP boat and Tomahawk Island.
All OPP members went under the canopy, which fell into the boat.
The Complainant was never clearly seen in the video.
Video Footage #2
The footage did not capture the actions of the Complainant within the boat or the OPP actions during his apprehension.911 Calls
On May 28, 2022, at 2:46 p.m., CW #1 called the OPP to report her husband, the Complainant, was having a mental health crisis. The Complainant was drifting in his boat because she had hidden the boat key, and was yelling and screaming at neighbours, as well as into the air. The Complainant had guns in the boat.CW #1 explained her husband’s mental health history and that, in the last three days, the Complainant had stopped taking some of his medications. He had also stopped eating and had not been sleeping.
At 3:10 p.m., CW #1 called back and reported the guns in the boat were not loaded because, that morning, she had located and unloaded the guns, and took all the ammunition.
At 3:46 p.m., CW #1 called police and stated her husband was in the middle of Portage Bay. At 4:09 p.m., CW #1 called to let the OPP know the Complainant’s whereabouts. When asked about suicide concerns, CW #1 replied she honestly did not know.
At 5:03 p.m., CW #1 reported the Complainant was by Thompson Island, but nobody had an eye on him at that time.
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On May 28, 2022, at 3:21 p.m., CW #5 called the OPP to report the Complainant was out in his boat with a gun. The Complainant held a gun with a scope across the front of his body and was yelling profanities. The Complainant was trying to call CW #5 out and to show himself. He repeatedly called CW #5 a coward when he did not leave his place of cover.
CW #5 would again contact the OPP on four occasions to report the location of the Complainant as reported by other cottagers.
********
On May 28, 2022, at 9:48 p.m., CW #2’s husband reported that, at the time the OPP was fully engaged with the Complainant, he and his wife were in a boat about 50 yards away. CW #2’s husband felt it was some type of exercise, but CW #2 believed there was a firearm discharged. CW #2’s husband questioned if they had been in danger.
If the Complainant had a firearm, CW #2’s husband wanted to thank the OPP.
The remainder of the 911 calls did not further the SIU investigation.
OPP Communications
On May 28, 2022, at 2:49 p.m., a Marine Unit was notified that the Complainant had stopped taking his medications and was floating in his boat. He did not have the keys. There were guns in the boat and the Complainant was screaming at neighbours.Information from CW #1 was then received that there was no ammunition in the boat.
A request was made for a second boat, and an OPP helicopter, Tactical Response Unit (TRU) and Emergency Response Unit (ERT) members (and the ERT Remotely Piloted Aircraft System), and negotiators.
A broadcast advised that the Complainant could be arrested for ‘pointing a firearm’.
Broadcasts indicated that the TRU team had made an arrest, and an ARWEN had been discharged. The Complainant was uninjured.
Materials Obtained from Police Service
Upon request, the SIU obtained the following materials from the OPP between June 6 and June 9, 2022:- Event Details report;
- Communications recordings;
- Notes - WO #2;
- Notes - WO #1;
- Notes – undesignated officers (x6);
- Detachment Log-on Sheet;
- Interview Synopsis- CW #1;
- List of Involved Officers;
- Occurrence Report; and
- WhatsApp Chat with Georgian Bay (May 28, 2022).
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU or to authorize the release of their notes.
In the afternoon of May 28, 2022, the OPP received a 911 call from the Complainant’s wife, CW #1. The CW #1 was calling to report that her husband was in mental distress. He was currently adrift in his boat with guns on board – two rifles and a shotgun. He had reportedly been yelling at neighbours as he sailed by their locations. A short time later, CW #5 also contacted the OPP. He indicated that the Complainant was out on his boat holding a gun, yelling profanities and calling him a coward. The OPP deployed marine units, a helicopter, a drone, and tactical officers to the scene – the waterways of Georgian Bay between Tomahawk Island and Honey Harbour.
The Complainant was in crisis at the time of the events in question. He had set off in the boat from his home on Portage Island seemingly intent on provoking a confrontation with the police that would result in his death.
OPP officers located the Complainant and approached him on their vessels. A drone was flown near the Complainant’s craft to surveil the situation. The police asked the Complainant to raise his hands without any weapons in them. Aware of the Complainant’s state of mind, they explained that they wished to help him.
The Complainant refused to do as he was directed. Instead, as a police boat approached his location, the Complainant retrieved one of his rifles. Two of the officers – SO #2 and SO #1 – reacted by firing their ARWENS at the Complainant. SO #2 fired five times. The SO #1 fired once. None of the rounds struck the Complainant.
Following the use of the ARWENS, the police boat collided with the Complainant’s vessel, knocking him off balance. Officers quickly boarded the Complainant’s boat and took him into custody.
In the afternoon of May 28, 2022, the OPP received a 911 call from the Complainant’s wife, CW #1. The CW #1 was calling to report that her husband was in mental distress. He was currently adrift in his boat with guns on board – two rifles and a shotgun. He had reportedly been yelling at neighbours as he sailed by their locations. A short time later, CW #5 also contacted the OPP. He indicated that the Complainant was out on his boat holding a gun, yelling profanities and calling him a coward. The OPP deployed marine units, a helicopter, a drone, and tactical officers to the scene – the waterways of Georgian Bay between Tomahawk Island and Honey Harbour.
The Complainant was in crisis at the time of the events in question. He had set off in the boat from his home on Portage Island seemingly intent on provoking a confrontation with the police that would result in his death.
OPP officers located the Complainant and approached him on their vessels. A drone was flown near the Complainant’s craft to surveil the situation. The police asked the Complainant to raise his hands without any weapons in them. Aware of the Complainant’s state of mind, they explained that they wished to help him.
The Complainant refused to do as he was directed. Instead, as a police boat approached his location, the Complainant retrieved one of his rifles. Two of the officers – SO #2 and SO #1 – reacted by firing their ARWENS at the Complainant. SO #2 fired five times. The SO #1 fired once. None of the rounds struck the Complainant.
Following the use of the ARWENS, the police boat collided with the Complainant’s vessel, knocking him off balance. Officers quickly boarded the Complainant’s boat and took him into custody.
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 May 28, 2022, the OPP contacted the SIU to report that an ARWEN had been fired at a person – the Complainant – earlier that day. The SIU initiated an investigation naming two officers as subject officials – SO #1 and SO #2. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the incident.
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.
SO #1 and SO #2 were in the lawful execution of their duties when they approached the Complainant’s boat seeking to take him into custody. The information they had been provided by his wife and others of a man in crisis with possession of several firearms gave them authority to apprehend the Complainant under section 17 of the Mental Health Act. The fact that he had also reportedly displayed a firearm at CW #5 made him subject to arrest for ‘pointing a firearm’ under section 87 of the Criminal Code.
With respect to the force used in aid of the Complainant’s arrest, namely, the discharge of ARWENs in his direction, I am satisfied it was legally justified. Given everything they knew of the Complainant’s circumstances, the police were not free to simply allow him free rein on the water. The Complainant had behaved belligerently with persons on various islands he passed, sometimes holding firearm, requiring a proactive response from the police in the interests of public safety. As they approached the Complainant, the officers on the boat gave him opportunity to surrender peacefully if he would raise his hands. When the Complainant did not do so and, instead, retrieved his rifle, the message to the police was clear - their lives were at imminent risk from gunfire. This, despite the fact that CW #1 had earlier advised the police that she had removed the ammunition from the guns; the police had to assume that the firearm was loaded. On this record, the discharge of less lethal weapons - the ARWENs – would appear a measured and proportionate response to the exigencies at hand. If they worked as planned, the Complainant would be temporarily incapacitated, without the infliction of serious injury, allowing the officers time to safely effect his arrest. That none of the rounds actually struck the Complainant is of no consequence to the analysis.
In the result, as there are no reasonable grounds to believe that either SO #2 or SO #1 comported himself unlawfully in firing their ARWENs at the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: September 23, 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.
SO #1 and SO #2 were in the lawful execution of their duties when they approached the Complainant’s boat seeking to take him into custody. The information they had been provided by his wife and others of a man in crisis with possession of several firearms gave them authority to apprehend the Complainant under section 17 of the Mental Health Act. The fact that he had also reportedly displayed a firearm at CW #5 made him subject to arrest for ‘pointing a firearm’ under section 87 of the Criminal Code.
With respect to the force used in aid of the Complainant’s arrest, namely, the discharge of ARWENs in his direction, I am satisfied it was legally justified. Given everything they knew of the Complainant’s circumstances, the police were not free to simply allow him free rein on the water. The Complainant had behaved belligerently with persons on various islands he passed, sometimes holding firearm, requiring a proactive response from the police in the interests of public safety. As they approached the Complainant, the officers on the boat gave him opportunity to surrender peacefully if he would raise his hands. When the Complainant did not do so and, instead, retrieved his rifle, the message to the police was clear - their lives were at imminent risk from gunfire. This, despite the fact that CW #1 had earlier advised the police that she had removed the ammunition from the guns; the police had to assume that the firearm was loaded. On this record, the discharge of less lethal weapons - the ARWENs – would appear a measured and proportionate response to the exigencies at hand. If they worked as planned, the Complainant would be temporarily incapacitated, without the infliction of serious injury, allowing the officers time to safely effect his arrest. That none of the rounds actually struck the Complainant is of no consequence to the analysis.
In the result, as there are no reasonable grounds to believe that either SO #2 or SO #1 comported himself unlawfully in firing their ARWENs at the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: September 23, 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.