SIU Director’s Report - Case # 23-OFP-016
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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 39-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 39-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On January 10, 2023, at 1:45 p.m., the Brantford Police Service (BPS) contacted the SIU with the following information.On January 10, 2023, at 1:30 p.m., a City of Brantford bylaw officer attended a park to clear a homeless encampment. The bylaw officer interacted with the Complainant. The Complainant became confrontational after being told that he had to leave. While putting on his backpack, the Complainant threatened to shoot the bylaw officer and cut his head off. The bylaw officer contacted the BPS, who located the Complainant a short distance away near the Veterans Memorial Parkway. The Complainant was confronted and refused to remove his hands from his pockets. He was struck by an Anti-riot Weapon ENfield (ARWEN) that was deployed on three occasions by one BPS Emergency Response Team member, the Subject Official (SO). The Complainant also had a conducted energy weapon (CEW) discharged at him by a uniform patrol officer, Witness Official (WO) #1. The Complainant was arrested and transported to the Brantford General Hospital.
The Team
Date and time team dispatched: 01/10/2023 at 2:21 p.m.Date and time SIU arrived on scene: 01/10/2023 at 2:50 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
39-year-old male; declined an interviewCivilian Witness (CW)
CW Interviewed The civilian witness was interviewed on January 12, 2023.
Subject Official (SO)
SO Declined interview, as is the subject official’s legal right; notes received and reviewed .
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Not interviewed; notes received and reviewed
The witness officials were interviewed on January 13, 2023.
Evidence
The Scene
The events in question transpired on the south side of Veterans Memorial Parkway, approximately 300 metres southwest of its intersection with Gilkison Street, Brantford. Three ARWEN projectiles were found at the scene, as well as their spent cartridges.
Figure 1 - Scene of the incident
Figure 2 - ARWEN projectile
Figure 3 - Spent ARWEN cartridge
Physical Evidence
Forensic Evidence
CEW Data Download
The CEW deployed by WO #1 was a Taser X2 Model. The CEW, when examined by the SIU, had one intact cartridge in one bay. The second bay was empty. The data downloaded from the weapon indicated that cartridge one was fired for a charge duration of five seconds. The same cartridge was subsequently associated with charge durations of eight and five seconds.
Figure 5 - CEW
Video/Audio/Photographic Evidence [2]
911 Telephone Call
At 1:13 p.m., on January 10, 2023, the CW, a Brantford bylaw officer, called 911. He reported having attended the Gilkinson Flats and Trail, which was along the Grand River. He had come across an individual [now known to be the Complainant], who stated that he had a gun and was going to shoot the CW and his colleagues. The gun was not seen. The Complainant further stated he was going to cut their heads off. According to the CW, the Complainant was by himself. He had picked up a black backpack and put it on. The Complainant’s appearance was described. The CW had driven further up the trail, but the Complainant was still heard yelling. The CW agreed to meet with a BPS officer at the Sports Complex on Gilkinson Street.
Radio Communications
At 1:26 p.m., the SO advised that a citizen had flagged him down for a man dressed in black on Gilkinson Street, near the Veterans Memorial Parkway bridge. A search of the area began and, at 1:28 p.m., the SO reported the Complainant walking on the Veterans Memorial Parkway towards Mount Pleasant Street on the south side of the roadway.At 1:28 p.m., WO #2 reported she was with the Complainant. The SO stated the arrest should be at gunpoint. Thirteen seconds later, WO #1 arrived, followed by the SO 38 seconds later. WO #2 reported that the Complainant was argumentative and uncooperative, and refusing to lie prone on the ground.
At 1:30:55 p.m., it was announced an ARWEN had been deployed.
At 1:30:58 p.m., it was announced a CEW had been deployed.
At 1:32 p.m., the SO reported that the Complainant had been secured.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the BPS between January 11 and January 28, 2023:- 2022 ARWEN Training Presentation;
- 2022 Use of Force Qualifications;
- Witness Statement - CW;
- Witness Statement - bylaw officer 1;
- Witness Statement - bylaw officer 2;
- Course Training Standard 2022 ARWEN 37T AND ARWEN ACE;
- Record of computer-assisted dispatch;
- Communications recordings;
- Scene photos;
- Involved Person List;
- Property Report;
- Notes - SO;
- Notes – WO #2;
- Notes – WO #1;
- Notes – WO #3
- General Report – WO #3;
- Crown Brief Synopsis - WO #3;
- Supplementary Reports; and
- Downloaded data from CEW.
Incident Narrative
The events in question are clear on the evidence collected by the SIU and may be briefly summarized. As was his legal right, the SO declined an interview with the SIU. He did authorize the release of his notes.
In the early afternoon of January 10, 2023, the Complainant was walking west on the south sidewalk of Veterans Memorial Parkway, several hundred metres west of Gilkison Street, when he was confronted by a police officer at gunpoint.
The officer was WO #2. She was responding to the area following a 911 call reporting that a male had just threatened to shoot bylaw enforcement officers at a nearby park.
The CW, bylaw officer 1 and bylaw officer 2 had attended the park to investigate a report of a male who had set up a camp. Confronted by the male threatening to shoot them with a gun in his possession, the officers had fled the park and called 911 to report the incident.
WO #2 pulled up in her cruiser in the eastbound lane of Veterans Memorial Parkway, several metres west of the Complainant. The officer told him to stop and show his hands, and he did. The Complainant refused, however, to lower himself to his knees when directed to do so and became argumentative with WO #2.
WO #1 was the next officer on scene. He took up a position beside WO #2 and ordered the Complainant to his knees. Following some back and forth, in which the officer explained why he was being arrested, the Complainant went to his knees. When further told to lie prone on the ground, the Complainant refused.
The SO was the next to arrive. He joined the other officers armed with an ARWEN. Within moments of his arrival, the Complainant dropped his hands and was struck by three rounds fired by the SO.
Immediately after the ARWEN discharges, WO #1 deployed his CEW, after which the three officers rushed the Complainant and forced him flat on the ground. The CEW was deployed again but appeared to have no effect on the Complainant. His arms were quickly controlled by the officers and handcuffed behind his back.
In the early afternoon of January 10, 2023, the Complainant was walking west on the south sidewalk of Veterans Memorial Parkway, several hundred metres west of Gilkison Street, when he was confronted by a police officer at gunpoint.
The officer was WO #2. She was responding to the area following a 911 call reporting that a male had just threatened to shoot bylaw enforcement officers at a nearby park.
The CW, bylaw officer 1 and bylaw officer 2 had attended the park to investigate a report of a male who had set up a camp. Confronted by the male threatening to shoot them with a gun in his possession, the officers had fled the park and called 911 to report the incident.
WO #2 pulled up in her cruiser in the eastbound lane of Veterans Memorial Parkway, several metres west of the Complainant. The officer told him to stop and show his hands, and he did. The Complainant refused, however, to lower himself to his knees when directed to do so and became argumentative with WO #2.
WO #1 was the next officer on scene. He took up a position beside WO #2 and ordered the Complainant to his knees. Following some back and forth, in which the officer explained why he was being arrested, the Complainant went to his knees. When further told to lie prone on the ground, the Complainant refused.
The SO was the next to arrive. He joined the other officers armed with an ARWEN. Within moments of his arrival, the Complainant dropped his hands and was struck by three rounds fired by the SO.
Immediately after the ARWEN discharges, WO #1 deployed his CEW, after which the three officers rushed the Complainant and forced him flat on the ground. The CEW was deployed again but appeared to have no effect on the Complainant. His arms were quickly controlled by the officers and handcuffed behind his 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 January 10, 2023, the Complainant was struck several times by less-lethal rounds discharged by a BPS officer. The officer – the SO – was identified as the subject official in the ensuing SIU investigation. 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.
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.
geThe Complainant matched the description of the male who had threatened to shoot bylaw enforcement officers. In the circumstances, he was subject to arrest at the time of the ARWEN discharges.
I am further satisfied that the ARWEN rounds fired by the SO constituted legally justifiable force. The officer had reason to believe that the Complainant had just threatened to kill bylaw enforcement officers and was in possession of a gun. In the circumstances, there existed a need to take him into custody as quickly as possible. The use of the ARWEN held the prospect of accomplishing that objective from a safe distance without causing serious injury. It should be noted that the weapon was only brought to bear after the officers had attempted to have the Complainant adopt a prone position on the ground without success, and the Complainant was seen to drop his arms towards his waist, where he might conceivably have had a gun. It should further be noted that the ARWEN rounds did not incapacitate the Complainant, but, in combination with the CEW use, did serve to distract him enough that the officers felt comfortable in approaching to take him into custody.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his engagement with the Complainant. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: May 10, 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.
geThe Complainant matched the description of the male who had threatened to shoot bylaw enforcement officers. In the circumstances, he was subject to arrest at the time of the ARWEN discharges.
I am further satisfied that the ARWEN rounds fired by the SO constituted legally justifiable force. The officer had reason to believe that the Complainant had just threatened to kill bylaw enforcement officers and was in possession of a gun. In the circumstances, there existed a need to take him into custody as quickly as possible. The use of the ARWEN held the prospect of accomplishing that objective from a safe distance without causing serious injury. It should be noted that the weapon was only brought to bear after the officers had attempted to have the Complainant adopt a prone position on the ground without success, and the Complainant was seen to drop his arms towards his waist, where he might conceivably have had a gun. It should further be noted that the ARWEN rounds did not incapacitate the Complainant, but, in combination with the CEW use, did serve to distract him enough that the officers felt comfortable in approaching to take him into custody.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his engagement with the Complainant. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: May 10, 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.