Director's Report Details

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.

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: 

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 death of a 70-year-old man (the “Complainant”).

Notification of the SIU

On August 15, 2022, at approximately 3:00 p.m., the Windsor Police Service (WPS) contacted the SIU with the following information.

At about 2:22 p.m., that day, WPS officers attended the intersection of Wyandotte Street and Ouellette Avenue. There were complaints about a man, now known to be the Complainant, in the intersection wielding a machete and threatening members of the public. One officer deployed a conducted energy weapon (CEW) and another discharged their service firearm. The Complainant was taken to the Windsor Regional Hospital Ouellette Campus (WRHOC) for a gunshot wound to the stomach.

The Team

Date and time team dispatched: 08/15/2022 at 3:19 p.m.

Date and time SIU arrived on scene: 08/15/2022 at 7:30 p.m.

Number of SIU Investigators assigned: 3

The Scene

The scene was the intersection of Ouellette Avenue and Wyandotte Street, a major intersection in Windsor.

SIU forensic investigators arrived on scene on August 15, 2022, at 8:20 p.m. The scene was video recorded and photographed. One .40 calibre cartridge case was located along with wires from a CEW. Measurements were taken for a scale scene diagram.

Scene Diagram

Figure 1 – A view west of Wyandotte Street from the southwest corner of the intersection

Physical Evidence

SIU forensic investigators collected 31 items, including one cartridge case, the SO’s WPS pistol, CEW paraphernalia, a machete, various clothing items, two cellular telephones, and a wallet with identification.


Figure 2 – The machete


Figure 3 – The SO’s firearm

Forensic Evidence

CEW Examination

Examination of the SO’s CEW indicated it had not been fired.

Examination of WO #1s CEW showed one deployment on August 15, 2022, at 2:33 p.m., for four seconds.

Video/Audio/Photographic Evidence [1]

Video Footage from Business #1

On August 17, 2022, WPS provided the SIU video footage received from a store. The video captured the Complainant purchasing a machete.

The material events in question are clear on the evidence collected by the SIU, including interviews with civilian eyewitnesses and video footage that captured the incident. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

At about 2:22 p.m. of August 15, 2022, a 911 call was received by the WPS reporting the presence of a male with a sword in the intersection of Wyandotte Street and Ouellette Avenue. Asked by the 911 operator if the male had struck anyone with the sword, the caller responded that he (the caller) had not had a chance to swing the sword as yet.

The caller was the Complainant. The Complainant was of unsound mind at the time and had been contemplating suicide. Only moments before the call to police, he had purchased a machete. The machete in hand, the Complainant entered the intersection and began yelling and swinging the machete at vehicles. Shortly after his call, a dozen passersby also contacted the police to report the Complainant’s erratic behaviour. It seems the Complainant was intent on provoking a confrontation with the police.

The SO and his partner, WO #1, arrived on scene at about 2:25 p.m. The officers dismounted their bicycles at the southwest corner of the intersection, leaving them by the Wyandotte Street curb just west of Ouellette Avenue. The SO immediately drew his firearm, took several steps towards the intersection, and motioned at the Complainant to move towards him. WO #1 was slightly behind and to the SO’s right. Immediately north of their location, stopped in the passing lane of Wyandotte Avenue, was a white pick-up truck.

The Complainant was in the middle of the intersection at the time of the officers’ arrival. He immediately started walking towards the pick-up truck and the officers’ location. The officers began to back-up in tandem along the passenger side of the pick-up truck. WO #1 drew her CEW and pointed it at the Complainant. He was repeatedly ordered to drop the machete. The Complainant did not do so. He continued to walk towards the officers with the machete lifted above his head. As he reached the mid-way point of the pick-up truck, the Complainant struck the vehicle with his machete. At about the same time, WO #1, straddling the eastbound curb and passing lanes slightly behind the pick-up truck, fired her CEW at the Complainant.

Unfazed by the CEW discharge, the Complainant continued his advance towards the officers. The SO was now in the eastbound passing lane between the pick-up truck and another vehicle, and walking backwards towards westbound traffic. He yelled at the Complainant to put down the machete and then fired his weapon once as the Complainant, the machete raised above his head, cleared the rear passenger side of the pick-up.

The Complainant was immediately felled by the gunshot, dropping the machete in the process. He had been struck in the right abdomen. The time was 2:26 p.m. About 20 seconds had elapsed from the time the SO climbed off his bicycle to the shooting.

The SO and WO #1 handcuffed the Complainant behind the back and then attempted to provide first aid for the gunshot wound. The Complainant told them to stop and indicated he had a “Do Not Resuscitate” order in his wallet.

The Complainant was transported to hospital by ambulance and underwent surgery. He was pronounced deceased at 8:17 p.m.

Section 34, Criminal Code -- Defence of person - Use or Threat of Force

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 

(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) The act committed is reasonable in the circumstances.

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon; 

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and 

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

On August 15, 2022, the Complainant was shot by a WPS officer, later that day succumbing to his injuries in hospital. In the ensuing SIU investigation, the officer who fired 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 Complainant’s death.

Section 34 of the Criminal Code provides that conduct that would otherwise constitute an offence is legally justified if it was intended to deter a reasonably apprehended assault, actual or threatened, and was itself reasonable. The reasonableness of the conduct is to be assessed in light of all the relevant circumstances, including with respect to such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. The SO’s conduct fell within the ambit of legal justification prescribed by section 34.

The SO was lawfully placed and in the execution of his duties as he proceeded to the scene and confronted the Complainant. An officer’s foremost obligation is the protection and preservation of life. Aware of the presence of a person wielding a machete in a busy public space, the SO was duty-bound to attend at the intersection to do what he could to prevent harm coming to motorists or pedestrians at the hands of the Complainant.

I am satisfied that the SO fired his gun to protect himself and his partner, WO #1, from a reasonably apprehended attack by the Complainant. The investigation is without direct first-hand evidence to this effect, the officer having exercised his right to remain silent, but the inference may safely be drawn from the circumstances. The Complainant was within two to three metres of the SO at the time, machete raised above his head, having given every indication that he was determined to assault the officers.

I am also satisfied that the SO’s gunfire constituted reasonable defensive force. The machete in the Complainant’s possession – with a blade of some 20 centimetres in length – was ostensibly capable of inflicting grievous bodily harm or death had the Complainant been allowed to advance any closer and swing it at the officers. The Complainant had been given a reasonable opportunity to drop the machete, but refused to do. Lesser force had also been attempted by WO #1 prior to the gunshot. The officer had discharged her CEW at the Complainant with no effect – the Complainant continued to move forward. Nor was retreat or withdrawal available. The incident occurred at a busy intersection with plenty of third-parties who would have been placed at continuing risk from the Complainant had the officers not intervened. On this record, I am unable to reasonably conclude that the SO acted with excess when he chose to meet an imminent lethal threat with a resort to lethal force of his own.

In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law throughout his engagement with the Complainant, there is no basis for proceeding with charges in this case.


Date: December 13, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit