SIU Director’s Report - Case # 22-OFP-203
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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 police at a 32-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 police at a 32-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On August 11, 2022, at 9:00 p.m., the Thunder Bay Police Service (TBPS) contacted the SIU with the following information.On August 11, 2022, at 3:50 p.m., police officers attempted to apprehend the Complainant. The Complainant, a murder suspect, had barricaded himself in a residence near Dawson Road and the Thunder Bay Expressway, Thunder Bay. At 8:59 p.m., the Complainant came outside of the residence and upwards of three Anti-riot Weapon ENfield (ARWEN) projectiles were discharged, after which the Complainant was taken into custody.
The Team
Date and time team dispatched: 08/11/2022 at 10:13 p.m.Date and time SIU arrived on scene: 08/12/2022 at 3:00 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
32-year-old male; declined interviewCivilian Witness (CW)
CW InterviewedThe civilian witness was interviewed on August 16, 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 Interviewed WO #2 Interviewed
WO #3 Not interviewed; notes received and reviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Not interviewed; notes received and reviewed
WO #6 Not interviewed; notes received and reviewed
The witness officials were interviewed on August 15, 2022.
Evidence
The Scene
The scene was a residence near Dawson Road and the Thunder Bay Expressway, Thunder Bay. Physical Evidence
On August 12, 2022, SIU forensic investigators attended the TBPS headquarters at 200 Balmoral Avenue, Thunder Bay. They were escorted by a TBPS forensic investigator to the Scenes of Crime Office and two locked and secured lockers. The lockers were opened with the following results.Locker #2 contained an ARWEN 37-mm rifle used by SO #1. The ARWEN was equipped with a sling. The magazine drum capacity was 5 cartridges. There were 5 ARWEN 37-mm cartridges also in the locker.
Locker #3 contained an ARWEN 37-mm rifle used by SO #2. The ARWEN was equipped with a sling. The drum capacity was 5 cartridges. There were 3 ARWEN AR-1 37-mm cartridges also in the locker.
SIU forensic investigators also attended the residence on August 12, 2022.
There were two ARWEN cartridge cases on the side of the driveway – exhibits #1 and #2.
An ARWEN projectile – exhibit #7 - was in the approximate middle of the driveway between the residence and a neighbouring house, and was contained within a plastic hanger.
An ARWEN projectile – exhibit #5 - was in the grass and southeast of #7.
An ARWEN projectile – exhibit #6 - was in the grass and southwest of #7.
An ARWEN projectile – exhibit #9 - was in the grass and south of #6.
Two ARWEN cartridge cases – exhibits #3 and #4 - were located on the grass in a corner of the neighbour’s yard.
An ARWEN cartridge case – exhibit #8 - was in the grass south of #3 and #4.
A pull pin for a percussion grenade was located on the driveway near the rear entrance to the residence. A cell phone and a deployed percussion grenade were by the rear entrance landing area.
A thorough examination of the scene with hand tools failed to reveal the fifth ARWEN projectile.
SIU forensic investigators collected the exhibits.
Figure 1 – ARWEN
Figure 2 – ARWEN cartridge cases
Figure 3 - ARWEN projectile
Video/Audio/Photographic Evidence [1]
Computer-assisted Dispatch (CAD) Report
On August 12, 2022, the SIU requested that the TBPS provide the CAD of their interaction with the Complainant on August 11, 2022. On August 15, 2022, the TBPS provided the SIU with the CAD Report. The following is a summary of the information contained in the record.The CAD originated with a telephone call to the TBPS at 2:42 p.m., from the Complainant’s sister. The event was characterized as a family dispute in progress.
TBPS dispatch radioed a call for response to an address near Dawson Road and Thunder Bay Expressway.
The Complainant’s sister had been notified by another family member that her brother was in the residence. She also advised that the TBPS were looking for her brother.
At 3:32 p.m., Officer #1, a sergeant, contained the area and stopped all traffic.
At 4:13 p.m., an action plan was created. Officer #1 instructed that anyone exiting the residence was to be detained for questioning. The Complainant was to be arrested at gunpoint and the Emergency Task Unit (ETU) was to be informed.
At 4:39 p.m., Officer #1 advised that ETU was on scene and had moved into close containment.
At 5:06 p.m., a woman exited the residence, received medical attention, and was released unconditionally.
At 5:45 p.m., ETU members began loud-hailing. An unknown man and women exited the residence. They were detained. The women advised police that the Complainant was in the residence passed out on a bed in the basement. Loud-hailing began for the Complainant.
At 5:55 p.m., an inspector took over command and had a valid arrest warrant for the Complainant for Second Degree Murder.
At 6:52 p.m., the Complainant yelled out that he had a gun and told police to fuck-off.
At 6:55 p.m., the Complainant appeared at the back of the house with a bottle of booze in his hand. WO #1 attempted to negotiate with the Complainant.
At 6:59 p.m., the Complainant challenged police, attempting to take photographs of police with his cellular telephone. The Complainant went back into the residence and closed the door; he was clearly intoxicated. The Complainant advised police to come inside the residence and find him. No firearms could be seen on the Complainant.
At 7:03 p.m., the Complainant was told that he was arrestable for Second Degree Murder.
At 7:12 p.m., the Complainant exited the residence, stood on the landing with nothing in his hands, and told police to shoot him. At 7:14 p.m., WO #4 and WO #5 moved up to deploy a controlled energy weapon (CEW). The Complainant went back into the residence and was heard bashing things around inside.
Negotiators attempted to put a throw phone by the back entrance landing. The Complainant exited the residence onto the landing - nothing was in his hands. The Complainant stepped onto the pavement. The Complainant then retreated inside the residence. The Complainant returned to the rear entrance landing and appeared quite upset. An ARWEN was deployed, and a round hit the Complainant’s centre mass, and two additional projectiles hit the Complainant’s lower extremities. The Complainant retreated inside the residence.
At 8:31 p.m., a plan was made to enter the residence. The ETU would make their way to the back door to locate the Complainant. A distraction device was to be deployed on the landing. The plan was approved.
At 8:42 p.m., the side door was breached and a CEW deployed. The Complainant was taken into custody.
Emergency Medical Services (EMS) attended and the Complainant was taken to the Thunder Bay Regional Hospital. He was medically cleared and transported to the TBPS station.
Communications Recordings
On August 11, 2022, the SIU requested that the TBPS provide it the communications recordings of their interaction with the Complainant on August 11, 2022. On August 15, 2022, TBPS provided the communications recordings. The following is a summary of the recordings.At 11:40 a.m., TBPS dispatch radioed a call for a response to an address near Dawson Road and Thunder Bay Expressway for a family dispute in progress.
Officer #1 advised that the Complainant was in the basement of the residence.
At 6:52 p.m., the Complainant yelled out that he had a gun and told police to fuck-off.
At 6:55 p.m., the Complainant appeared at the back of the house with a bottle of liquor in hand. WO #1 attempted to negotiate with the Complainant.
At 7:03 p.m., the Complainant was advised that he was arrestable for Second Degree Murder.
At 7:12 p.m., the Complainant exited the residence, stood on the landing with nothing in his hands and told police to shoot him. The Complainant entered the residence and was heard bashing things around inside.
At 7:36 p.m., negotiators attempted to put a throw phone on the back landing.
At 8:20 p.m., an ARWEN was deployed. One projectile hit the Complainant at center mass, and two projectiles struck his lower extremities. The Complainant retreated back inside the residence.
At 8:24 p.m., a plan was made to enter the residence through the side door. ETU was to make their way to the back door and locate the Complainant and assess any injuries. Their duty was to preserve life. A distractionary device was deployed on the landing.
At 8:41 p.m., the side door was breached and a CEW was deployed. The Complainant was taken into custody. EMS attended.
At 8:44 p.m., the ETU commander advised all units to leave everything as it was and not to touch anything that was deployed.
At 8:57 p.m., the Complainant was taken to the Thunder Bay Regional Hospital by EMS.
At 11:33 p.m., the Complainant was cleared medically. He was subsequently transported to the TBPS station.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TBPS between August 12, 2022, and October 28, 2022:- CAD Report;
- Supplementary Occurrence Report;
- CEW Download;
- Involved Official Attendance List;
- Communications recordings;
- Body-worn camera footage;
- Notes – WO #5;
- Notes – WO #3;
- Notes – WO #1;
- Notes – WO #6;
- Notes – WO #4;
- Notes – WO #2;
- Arrest Release and Detention Policy;
- Use of Force Reporting Policy;
- Use of Force Policy; and
- Armed and Barricaded Persons Policy.
Incident Narrative
The evidence gathered by the SIU, including interviews with officers present at the time of the events in question, gives rise to the following scenario. As was their legal right, SO #1 and SO #2 chose not to interview with the SIU or authorize the release of their notes.
In the afternoon of August 11, 2022, a 911 call was received by the TBPS of a domestic disturbance in progress at a residence near Dawson Road and the Thunder Bay Expressway, Thunder Bay. The caller noted that the Complainant was present in the residence, and that he was wanted for questioning by the TBPS. The Complainant was a person of interest to the TBPS. In fact, he was wanted in connection with a murder investigation.
Uniformed officers were the first to arrive at the scene and set about containing the residence. Traffic was cut-off from the roadway, and persons in the vicinity told to remain in their homes. ETU officers were also dispatched and began arriving at the house at about 4:30 p.m. Among them were SO #1 and SO #2, each with ARWENs at their disposal. The officers assumed positions around the house and its two entrances – one at the side of the house; the other at the rear of the residence.
There ensued a standoff of several hours during which persons from inside the home exited and surrendered to police. With the use of a loudhailer, officers called out to the Complainant to exit the home and surrender as they had a warrant for his arrest. Attempts were made to ascertain the Complainant’s whereabouts inside the house. All these efforts proved futile.
At about 6:45 p.m., an officer observed the Complainant stick his head out a basement window. Told to show his hands by the officer, the Complainant pulled his head back in from the window, pronounced that he had a firearm, and told the officers to “fuck-off”. Shortly thereafter, the Complainant emerged onto the landing at the rear entrance of the residence. He appeared intoxicated and holding what looked like a bottle of clear alcohol. The Complainant would return inside the home and exit again, several times, on occasion telling the officers to shoot him. A throw phone was also placed on the rear landing, and the Complainant encouraged to use it via the loudhailer.
At about 8:20 p.m., the Complainant again exited the home. This time, he was struck multiple times by ARWEN rounds fired by SO #1 and SO #2, the former discharging his weapon three times, the latter – twice. The impacts did not have their desired result – the Complainant was able to re-enter the home.
At about 8:40 p.m., the ETU deployed a distractionary device and entered the home via the side entrance, locating the Complainant at the bottom of a set of stairs. A CEW was deployed by an officer – WO #4 – and the Complainant was temporarily immobilized. ETU officers approached the Complainant and secured him in handcuffs behind the back.
In the afternoon of August 11, 2022, a 911 call was received by the TBPS of a domestic disturbance in progress at a residence near Dawson Road and the Thunder Bay Expressway, Thunder Bay. The caller noted that the Complainant was present in the residence, and that he was wanted for questioning by the TBPS. The Complainant was a person of interest to the TBPS. In fact, he was wanted in connection with a murder investigation.
Uniformed officers were the first to arrive at the scene and set about containing the residence. Traffic was cut-off from the roadway, and persons in the vicinity told to remain in their homes. ETU officers were also dispatched and began arriving at the house at about 4:30 p.m. Among them were SO #1 and SO #2, each with ARWENs at their disposal. The officers assumed positions around the house and its two entrances – one at the side of the house; the other at the rear of the residence.
There ensued a standoff of several hours during which persons from inside the home exited and surrendered to police. With the use of a loudhailer, officers called out to the Complainant to exit the home and surrender as they had a warrant for his arrest. Attempts were made to ascertain the Complainant’s whereabouts inside the house. All these efforts proved futile.
At about 6:45 p.m., an officer observed the Complainant stick his head out a basement window. Told to show his hands by the officer, the Complainant pulled his head back in from the window, pronounced that he had a firearm, and told the officers to “fuck-off”. Shortly thereafter, the Complainant emerged onto the landing at the rear entrance of the residence. He appeared intoxicated and holding what looked like a bottle of clear alcohol. The Complainant would return inside the home and exit again, several times, on occasion telling the officers to shoot him. A throw phone was also placed on the rear landing, and the Complainant encouraged to use it via the loudhailer.
At about 8:20 p.m., the Complainant again exited the home. This time, he was struck multiple times by ARWEN rounds fired by SO #1 and SO #2, the former discharging his weapon three times, the latter – twice. The impacts did not have their desired result – the Complainant was able to re-enter the home.
At about 8:40 p.m., the ETU deployed a distractionary device and entered the home via the side entrance, locating the Complainant at the bottom of a set of stairs. A CEW was deployed by an officer – WO #4 – and the Complainant was temporarily immobilized. ETU officers approached the Complainant and secured him in handcuffs behind the back.
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 August 11, 2022, the Complainant was the subject of multiple ARWEN discharges by TBPS officers. The officers – SO #1 and SO #2 – were identified as the subject officials in the ensuing SIU investigation. 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.
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.
The officers who converged at the residence were within their rights in seeking to take the Complainant into custody. There was a warrant in effect for the Complainant’s arrest on charges of second-degree murder.
With respect to the force at issue, namely, the ARWEN rounds fired by SO #1 and SO #2, I am satisfied that it was legally justified. The officers had cause to fear that the Complainant was armed. A firearm, which had yet to be located, had been used in the murder for which the Complainant was wanted, and the Complainant himself had told the officers at the scene that he was armed with a gun. In the circumstances, I am unable to fault the subject officials for attempting to temporarily incapacitate the Complainant from a distance with the use of their less-lethal weapons. If successful, the impacts caused by the ARWEN rounds would allow other officers to move in and safely effect the Complainant’s arrest before he could bring any weapons to bear. As it happened, the ARWENs did not have their intended effect, and the Complainant was able to re-enter the residence. It would be another half-hour or so before the ETU were ordered to enter the home and take him into custody, and then only after another less-lethal weapon was used – a CEW.
In the result, as there are no reasonable grounds to believe that either SO #1 or SO #2 comported themselves other than lawfully in their dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 9, 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.
The officers who converged at the residence were within their rights in seeking to take the Complainant into custody. There was a warrant in effect for the Complainant’s arrest on charges of second-degree murder.
With respect to the force at issue, namely, the ARWEN rounds fired by SO #1 and SO #2, I am satisfied that it was legally justified. The officers had cause to fear that the Complainant was armed. A firearm, which had yet to be located, had been used in the murder for which the Complainant was wanted, and the Complainant himself had told the officers at the scene that he was armed with a gun. In the circumstances, I am unable to fault the subject officials for attempting to temporarily incapacitate the Complainant from a distance with the use of their less-lethal weapons. If successful, the impacts caused by the ARWEN rounds would allow other officers to move in and safely effect the Complainant’s arrest before he could bring any weapons to bear. As it happened, the ARWENs did not have their intended effect, and the Complainant was able to re-enter the residence. It would be another half-hour or so before the ETU were ordered to enter the home and take him into custody, and then only after another less-lethal weapon was used – a CEW.
In the result, as there are no reasonable grounds to believe that either SO #1 or SO #2 comported themselves other than lawfully in their dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 9, 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.