SIU Director’s Report - Case # 22-OFP-307
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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 42-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 42-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On December 1, 2022, at about 6:02 p.m., the Windsor Police Service (WPS) contacted the SIU with the following information.At approximately 2:45 p.m., the WPS had responded to a ‘person-in-crisis’ call for service. The Complainant had reportedly broken every window in a house, doused himself and the inside of his residence with gasoline, and was threatening to set himself and the house on fire. Crisis negotiators and Emergency Services Unit (ESU) members joined uniform officers on the call. After a period of negotiation, the Complainant opened the front door to the residence. It was at this time that a sponge baton from a Penn Arms 40 mm projectile launcher was deployed by the Subject Official (SO), striking the Complainant in the upper thigh. The Complainant was apprehended under the Mental Health Act (MHA) without further incident, and transported to Windsor Regional Hospital, 1030 Ouellette Avenue. The sponge baton had been seized.
The Team
Date and time team dispatched: 12/01/2022 at 6:39 p.m.Date and time SIU arrived on scene: 12/02/2022 at 2:00 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
42-year-old male; declined an interviewCivilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
The civilian witnesses were interviewed on December 2, 2022.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed on December 8, 2022.
Evidence
The Scene
The events in question transpired outside a residence in the area of Lauzon Parkway and Wyandotte Street East, Windsor. SIU investigators attended the scene on December 2, 2022. The scene was photographed, and the area was canvassed for witnesses.
Physical Evidence
On December 2, 2022, the SIU attended at the WPS Headquarters, and photographed and collected the involved Penn Arms 40 mm projectile launcher, and the cartridge and associated projectile that had been discharged from it. 
Figure 1 - Penn Arms 40 mm projectile launcher
Figure 2 - Projectile
Video/Audio/Photographic Evidence [2]
Cellular Telephone Video Footage – Witness #1
The following is a summary of the video footage provided Witness #1. The Complainant was captured breaking the glass of a second-floor window and throwing items out the window to the street below. A marked WPS pick-up truck was on the street in front of the residence. A male voice could be heard saying, “[Complainant’s first name], why are you doing this?”
WPS officers in tactical attire and a police dog could be seen behind a vehicle that was parked in the driveway of the residence. All the WPS officers had ‘POLICE’ visible on their uniforms.
A WPS officer in plain clothes carrying a loud hailer was standing next to a marked WPS pick-up truck and attempting to speak with the Complainant. The Complainant could be heard yelling, “Get away from the house or I will shoot, get away from me,” as he threw items from the second-floor window.
Cellular Telephone Video Footage – Witness #2
The following is a summary of the video footage provided by Witness #2.WPS tactical officers were captured standing by a vehicle that was parked in the driveway of the Complainant’s residence. The officers had a fire extinguisher.
A male voice could by heard speaking with the Complainant and asking what they could do to bring an end to the situation. Uniform WPS members could be seen nearby.
Objects were being thrown from the second-floor window of the Complainant’s residence towards the marked and unmarked WPS vehicles parked on the street.
Police Communications Recordings
On request of the SIU, the WPS provided the communications recordings related to the incident under investigation. The following are summaries of the pertinent recordings.911 Call
At about 11:13 a.m. of December 1, 2022, a man called 911 to report that while driving around the neighbourhood, he was approached by a man [known to be the Complainant]. The Complainant told him that he wanted to kill his own mother and that he had bi-polar and schizophrenia. The caller reported that the Complainant had made “a lot of threats” and said he had fentanyl, cocaine, and marihuana in his house.
The 911 caller described the Complainant and the location of his house.
Radio Transmissions
At approximately 11:20 a.m., a WPS dispatcher sent several WPS officers to the Complainant’s residence.
Additional WPS officers were requested to attend as the Complainant was having some kind of “psychotic break”. It was noted that WPS officers had the Complainant contained in the house and that his parents were outside the house.
The Complainant kept asking WPS officers to shoot him and taser him; his behaviour was unpredictable.
An unidentified WPS officer advised that there existed authority to apprehend the Complainant under the MHA.
The Complainant was threatening to turn the gas on and burn the house down.
It was noted that both lethal and less-lethal use of force options were required at the scene.
WPS ESU and a police service dog were requested to attend.
It was noted that the Complainant was in the house alone. He had threatened to burn the house down, had knives and would stab police officers, and had a firearm in the house and would shoot.
An unidentified WPS officer reported that the Complainant had a hammer in his hand. The Complainant had broken a windowpane in the house. The Complainant stated he had doused himself in gasoline and was threatening to blow himself up.
WO #4 advised that the Complainant had just pushed an air conditioner out of a second-floor window and broken the window.
A staff sergeant identified herself as the Critical Incident Commander and advised she was taking control of the scene. The staff sergeant advised that the mission would be “to isolate, contain, negotiate the arrest and apprehension of the Complainant. In addition, lawful authorities would be common law, and arrest authorities for threats, mischief, and MHA apprehension.”
WO #4 reported the ‘Immediate Action Plan’ would be to have ESU officers breach the door to the residence and provide lifesaving measures to the Complainant, if required. The ‘Surrender Plan’ was to have the Complainant exit the house through the main door and follow the direction of arresting officers. The ‘Break-Out Plan’, in the event the Complainant attempted to break-out on foot, contemplated the arrest team deploying, if necessary, the Penn Arms 40 mm projectile launcher and the police service dog, after which the officers would engage the Complainant once on the ground. WO #4 advised that the “line in the sand” would be the Complainant exiting the residence with both feet on the porch.
WPS Negotiator Recordings
WPS provided negotiator recordings related to the incident under investigation. The following is a summary of the pertinent information from the recordings. 03:48 minutes into the recording, the Complainant spoke with the WPS negotiator and threatened to burn the house down. A WPS negotiator attempted to calm the Complainant and establish a rapport with him.
At 04:49 minutes into the recording, the WPS negotiator called the Complainant and asked him to come out; he was hung-up on by the Complainant.
At 08:30 minutes into the recording, the WPS negotiator called the Complainant. The Complainant said, “I don’t want to talk to you,” and disconnected the call.
At 09:12 minutes into the recording, the Complainant was offering to come outside in exchange for a cigarette. The WPS negotiator directed the Complainant to exit the side door of the house and follow police direction once outside. The Complainant disconnected the call.
At 22:14 minutes into the recording, the WPS negotiator called the Complainant, and the Complainant could be heard asking the WPS negotiator if he had obtained something. Much of the call was unintelligible due to heavy background noise, but it did not appear that the WPS negotiator was successful.
At 27:38 minutes into the recording, the Complainant called the WPS negotiator and, during the conversation, indicated that he wanted to watch the news and would then come out.
At 34:50 minutes into the recording, the WPS negotiator could be heard offering the Complainant a cigarette and asking him to come out.
At 51:12 minutes, the recording ended.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the WPS between December 7, 2022, and February 3, 2023:- Policy – Mentally Ill Persons – Persons In Crisis;
- Policy – Response to Hostage Takings and Armed/Barricaded Persons;
- Record of computer-assisted dispatch;
- Communications recordings;
- Call signs and log-ons;
- Notes – WO #3;
- Notes – Officer #1;
- Notes - WO #2;
- Notes - WO #1;
- Notes – WO #4; and
- Statement - CW #2.
Incident Narrative
The evidence collected by the SIU, including interviews with police officers present at the time of the shooting and a civilian witness, gives rise to the following scenario. As was his legal right, the SO declined an interview with the SIU and to authorize the release of his notes.
In the morning of December 1, 2022, WPS officers and a social worker attended a residence in the area of Lauzon Parkway and Wyandotte Street East, Windsor. They were there following a 911 call to police. While driving in the area, according to the 911 caller, he was approached by a male – the Complainant – reporting that he suffered from bipolar disorder and schizophrenia, had illicit drugs in his home, and wanted to kill his mother. He identified the Complainant’s house. The Complainant’s mother answered the door to the officers and social worker, and called for her son to meet with them when they asked to speak with him. He refused, and instead proceeded to the basement closing the door behind him. She and her husband were subsequently escorted away from the house.
There ensued over the next several hours a stand-off between police and the Complainant. Negotiators attempted to persuade the Complainant to peacefully come out of the house. He steadfastly refused, broke the home’s windows and threw items out of them, mentioned that he was in possession of a firearm, and threatened to harm himself and set fire to the house.
ESU officers were also deployed at the scene. They set up containment around the house and made plans to take the Complainant into custody under various scenarios. Their ultimate objective was to contain the Complainant and safely arrest him as soon as an opportunity presented itself.
At about 5:40 p.m., the Complainant exited his residence through the entrance at the side of the house to retrieve cigarettes that had been left for him on the driveway by the police. When he had fully emerged through the doorway, the SO, a member of the ESU, fired his less-lethal firearm – a Penn Arms 40 mm projectile launcher that discharged a foam-tipped round. The projectile struck the Complainant in the left leg, after which WPS officers rushed the Complainant and arrested him without further incident.
It would not appear that the Complainant was seriously injured at any point in the course of his interaction with police.
In the morning of December 1, 2022, WPS officers and a social worker attended a residence in the area of Lauzon Parkway and Wyandotte Street East, Windsor. They were there following a 911 call to police. While driving in the area, according to the 911 caller, he was approached by a male – the Complainant – reporting that he suffered from bipolar disorder and schizophrenia, had illicit drugs in his home, and wanted to kill his mother. He identified the Complainant’s house. The Complainant’s mother answered the door to the officers and social worker, and called for her son to meet with them when they asked to speak with him. He refused, and instead proceeded to the basement closing the door behind him. She and her husband were subsequently escorted away from the house.
There ensued over the next several hours a stand-off between police and the Complainant. Negotiators attempted to persuade the Complainant to peacefully come out of the house. He steadfastly refused, broke the home’s windows and threw items out of them, mentioned that he was in possession of a firearm, and threatened to harm himself and set fire to the house.
ESU officers were also deployed at the scene. They set up containment around the house and made plans to take the Complainant into custody under various scenarios. Their ultimate objective was to contain the Complainant and safely arrest him as soon as an opportunity presented itself.
At about 5:40 p.m., the Complainant exited his residence through the entrance at the side of the house to retrieve cigarettes that had been left for him on the driveway by the police. When he had fully emerged through the doorway, the SO, a member of the ESU, fired his less-lethal firearm – a Penn Arms 40 mm projectile launcher that discharged a foam-tipped round. The projectile struck the Complainant in the left leg, after which WPS officers rushed the Complainant and arrested him without further incident.
It would not appear that the Complainant was seriously injured at any point in the course of his interaction with police.
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 December 1, 2022, the Complainant was shot with a less-lethal projectile fired by a WPS officer. In the ensuing SIU investigation, the officer who fired the shot – 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 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.
The Complainant was in crisis at the time of the events under investigation. He had threatened his mother, damaged household property, and indicated a willingness to harm himself. He was clearly subject to apprehension under provisions of the Criminal Code and Mental Health Act.
With the respect to the force used by the SO in aid of the Complainant’s arrest, namely, the discharge of his less-lethal firearm, I am satisfied it was legally justified. The Complainant had been behaving erratically and violently in the hours prior. He had also given the police reason to believe he was armed with a firearm and other weapons. In the circumstances, I am unable to fault the SO for attempting to temporarily neutralize the Complainant from a distance by firing his projectile launcher. If it worked, the weapon promised to distract the Complainant long enough to effect his arrest without causing serious injury. In fact, that is precisely what happened.
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 discharged his firearm, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: March 31, 2023
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 Complainant was in crisis at the time of the events under investigation. He had threatened his mother, damaged household property, and indicated a willingness to harm himself. He was clearly subject to apprehension under provisions of the Criminal Code and Mental Health Act.
With the respect to the force used by the SO in aid of the Complainant’s arrest, namely, the discharge of his less-lethal firearm, I am satisfied it was legally justified. The Complainant had been behaving erratically and violently in the hours prior. He had also given the police reason to believe he was armed with a firearm and other weapons. In the circumstances, I am unable to fault the SO for attempting to temporarily neutralize the Complainant from a distance by firing his projectile launcher. If it worked, the weapon promised to distract the Complainant long enough to effect his arrest without causing serious injury. In fact, that is precisely what happened.
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 discharged his firearm, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: March 31, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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.