SIU Director’s Report - Case # 22-OFP-230
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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 section 14 (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 44-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 44-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 8, 2022, at 1:38 a.m., the Hamilton Police Service (HPS) contacted the SIU with the following information.
On September 8, 2022, shortly after midnight, Witness Official (WO) #4 located the Complainant at Main Street and Victoria Street in Hamilton. WO #4 attempted to engage the Complainant as he was wanted on outstanding warrants for firearm offences. The Complainant fled on foot and WO #4 pursued the Complainant alerting the police dispatcher he was doing so and providing a direction of travel. While giving chase, WO #4 saw the Complainant holding a firearm. WO #4 and other police officers contained the Complainant in a parking lot on East Avenue North between King William Street and King Street. They tried to communicate with the Complainant but were unsuccessful. Several police officers deployed their conducted energy weapons (CEWs) at the Complainant and the SO fired one shot from his service pistol. The bullet missed the Complainant and struck a house.
The Complainant was uninjured other than being struck by CEW probes, which were removed by paramedics. The Complainant was transported by ambulance to St. Joseph’s Hospital (SJH). He was treated and released from hospital back into the custody of police.
The Team
Date and time team dispatched: 09/08/2022 at 1:40 a.m.Date and time SIU arrived on scene: 09/08/2022 at 2:24 a.m.
Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 1
The Complainant was interviewed on September 8, 2022.
Civilian Witness (CW)
CW Interviewed
The civilian witness was interviewed on September 15, 2022.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal right
The subject official was interviewed on January 3, 2023.
Witness Officials
WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Not interviewed; notes received and reviewed
The witness officials were interviewed between September 13 and 27, 2022.
Affected Person (aka “Complainant”):
44-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 8, 2022.
Civilian Witness (CW)
CW Interviewed The civilian witness was interviewed on September 15, 2022.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on January 3, 2023.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Not interviewed; notes received and reviewed
The witness officials were interviewed between September 13 and 27, 2022.
Evidence
The Scene
The scene was contained within the municipal parking lot west of East Avenue North, between King Street East and King William Street.East Avenue North ran in a general north - south direction. King Street East was located to the south and King William Street was located to the north. Residences, including multi-unit and multi-levels, were on both sides of the street to the south, and single-family residences were to the north.
There was overhead streetlighting on the west side of the roadway. There was an alleyway that led west from East Avenue North and was bounded by a multi-storey strip complex to the south and a wooden fence enclosing a municipal parking lot to the north. The municipal parking lot was ‘Car Park number 72’ and was bounded by wooden fences to the north and south.
Overhead lighting was present on both the south and north sides of the parking lot. The parking lot was accessed from both East Avenue North and an alleyway.
Scene Diagram
Physical Evidence
Located in the northeast area of the parking lot were the following items:Exhibit #1 A 40 calibre cartridge case.
Exhibit #2 An area of CEW cartridge components.
Exhibit #3 An area of CEW cartridge components.
Exhibit #4 Two quarters and a dime.
Exhibit #5 A CEW probe removed from the south side of the north fence, 65 centimetres up from the pavement.
Exhibit #6 A bullet strike to the south side of the north fence, 131 centimetres up from the pavement. The trajectory was level and at a 97-degree angle. The bullet continued through two pieces of fence boarding and exited on the north side of the fence. The bullet continued across the front lawn of residence #1 at East Avenue North and lodged into the south wall of residence #2 at East Avenue North. The bullet strike to the south wall was 127 ½ centimetres from the ground and 109 centimetres west of the southeast corner of the residence. A small three-centimetre by three-centimetre hole was cut into the stucco to facilitate the removal of the bullet.
Figure 1 – Bullet hole in fence
The Complainant’s Pistol
The pistol was a Glock model 42, 380 auto pistol. There was a magazine in the pistol with a six-bullet capacity that contained five bullets. There was no bullet in the breech.The pistol was photographed and retained by the SIU.
Figure 2 – The Complainant’s pistol
The SO’s Pistol
At 9:11 a.m., SIU forensic investigators attended a HPS police station and received the SO’s service pistol - a Glock Model 22 Gen.4 40 calibre pistol. A 40-calibre bullet was in the breech. The pistol’s magazine had a capacity of 15 bullets and contained 13, 40 calibre bullets.The SO’s duty belt was produced and photographed. The belt contained: a CEW in its holster; an ASP baton; OC spray; a pistol holster; and, a double magazine pouch containing two Glock magazines with a capacity of 15 bullets each and each containing 14 bullets.
Figure 3 – The SO’s pistol
Police CEWs
WO #2Cartridge one was deployed on September 8, 2022, at 12:06:48 a.m., with a trigger duration of eight seconds.
WO #1
Cartridge one was deployed on September 8, 2022, at 12:05:47 a.m., with a trigger duration of six seconds.
WO #10
Cartridge one was deployed on September 8, 2022, at 12:05:34 a.m., with a trigger duration of four seconds.
Cartridge two was deployed, at 12:05:45 a.m., with a trigger duration of five seconds.
Figure 4 – CEW
Figure 5 – CEW cartridge
Video/Audio/Photographic Evidence [1]
Communications Recordings
The recording, a summary of which follows, was made on September 8, 2022. At 00:00 minutes into the recording, WO #4 reported he was in a foot pursuit with a male – the Complainant - who was wanted in a shooting.
WO #4 was northbound on East Avenue and the Complainant had his hand in his waistband.
At 00:49 minutes into the recording, WO #4 reported the Complainant had a firearm and was putting it in his mouth.
The dispatcher reported over the police radio – male putting firearm in his mouth.
At 01:26 minutes into the recording, WO #4 advised the dispatcher he was chasing the Complainant west through an alley.
At 04:16 minutes into the recording, a police officer asked over the police radio if they had a police dog available, and the dispatcher answered, “Negative.”
At 05:33 minutes into the recording, WO #4 reported the Complainant was in custody. He requested paramedics for the Complainant, who had been, “Tasered.”
WO #4 reported he was in municipal car park number 72.
Video Recordings – Security Cameras
On September 7, 2022, at 10:58:56 p.m., the footage began with a view of an alley.At 10:59:36 p.m., a man - the Complainant - entered the view of the camera. The Complainant wore dark shoes, a hoodie, and short pants. He used his right hand and held something to his mouth. The Complainant left the view of the camera.
At 10:59:42 p.m., a police officer entered camera view with his pistol extended in his left hand.
At 10:59:43 p.m., another police officer entered camera view. Both police officers then exited the camera view.
The remainder of the footage was of no evidentiary value.
**********
On September 7, 2022, at 10:30:00 p.m., the footage began with a level view of municipal car park number 72.
At 10:59:37 p.m., the Complainant entered camera view, walked westbound through an alley, and exited the bottom left frame.
At 10:59:43 p.m., two police officers, with their arms raised in front of them, walked westbound through an alley, and exited the camera view.
At 11:00:05 p.m., the Complainant walked into the municipal car park followed by the police officers. He walked east across the parking lot and the police officers positioned themselves in a triangle formation in front of the Complainant. The Complainant walked west across the parking lot and the police officers followed.
At 11:00:26 p.m., another police officer entered camera view running across the parking lot, joining the other police officers. The police officers and the Complainant exited camera view.
At 11:00:49 p.m., more police officers ran across the parking lot.
At 11:01:13 p.m., the Complainant walked east at the north end of the parking lot and the police officers followed with their hands raised in front of them.
At 11:01:50 p.m., the police officers stood in front of the Complainant with their hands raised in front of them.
At 11:03:14 p.m., the police officers surrounded the Complainant. Due to the distance of the camera, it was not clear what occurred.
At 11:19:17 p.m., paramedics arrived and tended to the Complainant.
At 11:23:44 p.m., the Complainant was placed on a gurney and moved to an ambulance.
**********
On September 7, 2022, at 10:54:59 p.m., the footage began with an aerial view of municipal car park 72 with a focus on the north fence. The majority of the lot was obscured by a roof.
At 11:00:00 p.m., the Complainant entered camera view and walked east across the parking lot. A police officer walked east across the parking lot.
The Complainant walked west across the parking lot and stood in front of a vehicle. The Complainant held something to his head. Two police officers stood in front of the Complainant with their hands raised in front of them.
The Complainant walked east and mounted a railing. Three police officers stood in front of the Complainant and two more police officers approached and stood behind a vehicle.
At 11:01:41 p.m., the Complainant stepped off the railing. He paced back and forth. A police officer stood in front of the Complainant.
At 11:02:07 p.m., two police officers joined the other two police officers behind the vehicle.
At 11:03:07 p.m., four police officers moved forward towards the Complainant with their arms in front of them.
At 11:03:13 p.m., ten police officers surrounded the Complainant. Due to the distance of the camera from the action, it was unclear what had occurred.
At 11:23:19 p.m., paramedics arrived.
At 11:23:42 p.m., the Complainant was transported to a waiting ambulance.
The remainder of footage was of no evidentiary value.
Video Recording – Canadian Tire
On September 8, 2022, at 12:00:00 a.m. of the recording, the footage began with a view of a gas bar at Canadian Tire.At 12:00:02 a.m. of the recording, a fully marked police SUV travelled along the edge of the sidewalk, and stopped.
At 12:00:04 a.m. of the recording, the SUV cruiser activated its emergency lights. A police officer [now known to be WO #4] exited the cruiser. A man [now known to be the Complainant] ran across the parking lot with WO #4 following behind. The Complainant circled the gas bar kiosk and ran out of camera view with WO #4 following behind.
The remainder of the footage was of no evidentiary value.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the HPS between September 12, 2022, and October 11, 2022:• General Report;
• Communications recordings;
• Email of involved officers;
• Copy of RPG warrant;
• Video footage - Canadian Tire;
• Video footage – security cameras
• Policy-Use of Force;
• Policy-Shooting Incidents;
• Policy-Arrest;
• Event Chronology;
• Notes – WO #7;
• Notes – WO #5;
• Notes – WO #6;
• Notes – WO #2;
• Notes – WO #3;
• Notes – WO #8;
• Notes – WO #9;
• Notes – WO #4;
• Notes – WO #1;
• Notes – WO #10; and
• Supplementary Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: • The Complainant’s medical records from SJH.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, and police officers present at the time of the events in question, gives rise to the following scenario.
At about midnight of September 8, 2022, the Complainant, with a gun in his possession, was in a foot chase with a HPS officer. The officer – WO #4 – had come across the Complainant in the vicinity of the gas station at Main Street East and Victoria Avenue South, and recognized him as being wanted in relation to a series of firearm-related offences. The Complainant had failed to stop at the officer’s direction and fled north on Victoria Avenue South, east on Main Street East, and then north on East Avenue South. The Complainant would retrieve a pistol from his waistband – a Glock – on East Avenue South and place it in his mouth, saying he would shoot himself.
WO #4 broadcast the foot pursuit, the identity of the suspect, and the fact that he had a gun and was pointing it at himself. He chased the Complainant until they ended up on the grounds of the municipal parking lot northeast of the King Street East and East Avenue North intersection. There ensued a minutes-long standoff on the parking lot as other officers arrived at the location in response to WO #4’s transmissions.
The Complainant paced in the parking lot telling the officers he would shoot himself and refused to go back to jail. He held the pistol in his right hand, intermittently moving it from inside his mouth to the side of his head, and refused all entreaties that he drop the weapon.
About ten officers, including the SO, had gathered at the scene to confront and contain the Complainant. They had amassed south of the Complainant’s position and faced north towards him. The Complainant walked east and west, back and forth, a short distance from the wooden fence that lined the north end of the lot. The SO and others had drawn and were pointing their firearms, while other officers had their CEWs at the ready. WO #1 took the lead in efforts to de-escalate the situation. The officer could not assuage the Complainant or convince him to surrender peacefully.
Approximately two minutes into the negotiations, an officer discharged his CEW at the Complainant. This was followed shortly by a shot fired by the SO. The CEW failed to neutralize the Complainant and the bullet missed its target. An additional volley of CEW deployments met their mark and immobilized the Complainant. This allowed several officers to move in, remove the gun from the Complainant’s right hand, and place him on the ground where he was handcuffed. The Complainant had not suffered any serious injuries.
At about midnight of September 8, 2022, the Complainant, with a gun in his possession, was in a foot chase with a HPS officer. The officer – WO #4 – had come across the Complainant in the vicinity of the gas station at Main Street East and Victoria Avenue South, and recognized him as being wanted in relation to a series of firearm-related offences. The Complainant had failed to stop at the officer’s direction and fled north on Victoria Avenue South, east on Main Street East, and then north on East Avenue South. The Complainant would retrieve a pistol from his waistband – a Glock – on East Avenue South and place it in his mouth, saying he would shoot himself.
WO #4 broadcast the foot pursuit, the identity of the suspect, and the fact that he had a gun and was pointing it at himself. He chased the Complainant until they ended up on the grounds of the municipal parking lot northeast of the King Street East and East Avenue North intersection. There ensued a minutes-long standoff on the parking lot as other officers arrived at the location in response to WO #4’s transmissions.
The Complainant paced in the parking lot telling the officers he would shoot himself and refused to go back to jail. He held the pistol in his right hand, intermittently moving it from inside his mouth to the side of his head, and refused all entreaties that he drop the weapon.
About ten officers, including the SO, had gathered at the scene to confront and contain the Complainant. They had amassed south of the Complainant’s position and faced north towards him. The Complainant walked east and west, back and forth, a short distance from the wooden fence that lined the north end of the lot. The SO and others had drawn and were pointing their firearms, while other officers had their CEWs at the ready. WO #1 took the lead in efforts to de-escalate the situation. The officer could not assuage the Complainant or convince him to surrender peacefully.
Approximately two minutes into the negotiations, an officer discharged his CEW at the Complainant. This was followed shortly by a shot fired by the SO. The CEW failed to neutralize the Complainant and the bullet missed its target. An additional volley of CEW deployments met their mark and immobilized the Complainant. This allowed several officers to move in, remove the gun from the Complainant’s right hand, and place him on the ground where he was handcuffed. The Complainant had not suffered any serious injuries.
Relevant Legislation
Section 34, Criminal Code -- Defence of Person - Use or Threat of Force
34 (1) A person is not guilty of an offence if
(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.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.(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.
Analysis and Director's Decision
On September 8, 2022, the HPS contacted the SIU to report that one of their officers had about an hour prior discharged his firearm at a male – the Complainant – in the course of his arrest. In the ensuing SIU investigation, 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 shooting.
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. In my view, the force used by the SO fell within the provision’s ambit of legal justification.
The SO was lawfully placed and in the execution of his duties when he responded to the scene and took part in the police operation to take the Complainant into custody. The Complainant was clearly subject to arrest. He was wanted for a number of firearm-related offences and was in possession of a firearm that constituted a threat to the public.
The SO’s evidence is that he fired his weapon to protect himself from an imminent attack by the Complainant. I accept that the officer’s apprehensions were honestly and reasonably held at the time. There is little doubt that the Complainant was a real and present threat to the safety of the officers around him. Though he had indicated an intention to only harm himself, and appears not to have explicitly pointed the gun at any of the officers, the situation was fraught with danger and very dynamic, particularly with respect to the movement of the Complainant’s gun. In the circumstances, one can appreciate how an officer might come to believe – as the SO did – that the Complainant’s gun was being pointed in their direction, whether or not that was the Complainant’s intention.
I also accept that the shooting by the SO amounted to reasonable force. If, as I am satisfied, the SO honestly and reasonably believed the Complainant was about to fire a gun in his direction, it is difficult to see what else the SO could have done to save himself from grievous bodily harm or death. The officer might have resorted to his CEW, as other officers did, but that weapon did not bring with it the immediate stopping power of a firearm – as was illustrated in the instant case when the initial CEW deployment appears not to have incapacitated the Complainant. As it turns out, subsequent CEW discharges did incapacitate the Complainant while the SO’s shooting was off target and ineffective. Be that as it may, that outcome was more a matter of happenstance than a reflection of unreasonableness inherent in the SO’s conduct.
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 when he fired his gun at the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: January 6, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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. In my view, the force used by the SO fell within the provision’s ambit of legal justification.
The SO was lawfully placed and in the execution of his duties when he responded to the scene and took part in the police operation to take the Complainant into custody. The Complainant was clearly subject to arrest. He was wanted for a number of firearm-related offences and was in possession of a firearm that constituted a threat to the public.
The SO’s evidence is that he fired his weapon to protect himself from an imminent attack by the Complainant. I accept that the officer’s apprehensions were honestly and reasonably held at the time. There is little doubt that the Complainant was a real and present threat to the safety of the officers around him. Though he had indicated an intention to only harm himself, and appears not to have explicitly pointed the gun at any of the officers, the situation was fraught with danger and very dynamic, particularly with respect to the movement of the Complainant’s gun. In the circumstances, one can appreciate how an officer might come to believe – as the SO did – that the Complainant’s gun was being pointed in their direction, whether or not that was the Complainant’s intention.
I also accept that the shooting by the SO amounted to reasonable force. If, as I am satisfied, the SO honestly and reasonably believed the Complainant was about to fire a gun in his direction, it is difficult to see what else the SO could have done to save himself from grievous bodily harm or death. The officer might have resorted to his CEW, as other officers did, but that weapon did not bring with it the immediate stopping power of a firearm – as was illustrated in the instant case when the initial CEW deployment appears not to have incapacitated the Complainant. As it turns out, subsequent CEW discharges did incapacitate the Complainant while the SO’s shooting was off target and ineffective. Be that as it may, that outcome was more a matter of happenstance than a reflection of unreasonableness inherent in the SO’s conduct.
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 when he fired his gun at the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: January 6, 2023
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.