SIU Director’s Report - Case # 23-OFP-031
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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 43-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 43-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On January 30, 2023, at about 8:21 a.m., the Halton Regional Police Service (HRPS) contacted the SIU with the following information.On January 30, 2023, the HRPS were called to an apartment on Bronte Street South, Milton, where officers had an interaction with the Complainant. During the incident, Subject Official (SO) #1 discharged a bean bag round from a service shotgun, and SO #2 discharged an Anti-riot Weapon ENfield (ARWEN).
The Team
Date and time team dispatched: 01/30/2023 at 9:29 a.m.Date and time SIU arrived on scene: 01/30/2023 at 11:00 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 3
Affected Person (aka “Complainant”):
43-year-old male; interviewedThe Complainant was interviewed on February 6, 2023.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
The civilian witnesses were interviewed between January 30, 2023, and February 11, 2023.
Subject Officials
SO #1 Declined interview, as is the subject official’s legal right; notes received and reviewed SO #2 Declined interview, as is the subject official’s legal right; notes received and reviewed
.
Witness Officials (WO)
WO #1 Not interviewed; notes received and reviewed 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 Interviewed
WO #7 Interviewed
The witness officials were interviewed between February 3 and 13, 2023.
Evidence
The Scene
The interaction between police and the Complainant occurred at an apartment on Bronte Street South, Milton. The areas of interest to the SIU included the threshold of the apartment door and within the interior of the apartment. The door and door frame were damaged around the handle and lock areas, as well as the upper hinge corner. The fridge had been pulled out from the wall. Loose debris and broken glass were on the floor of the entry and kitchen area within the apartment. Conducted energy weapon (CEW) wire, anti-felon identification discs (AFIDs), and CEW probes were among the debris on the floor inside the door to the apartment. Two small black-handled kitchen knives were located on the floor. A claw hammer and a roofing hatchet were found lying within the apartment.
Figure 1 – ARWEN
Figure 2 – ARWEN projectile
Figure 3 – Less-lethal shotgun
Figure 4 – Less-lethal bean bag cartridge
Physical Evidence
Physical items collected from the scene are listed in the chart below.
Forensic Evidence
CEW Data Download – WO #7
The data downloaded from WO #7’s CEW indicate that the weapon was triggered at 6:01:11 a.m. [2] for a charge duration of three seconds. It was then triggered at 7:20:51 a.m., 7:20:58 a.m. and 7:23:11 a.m. for charge durations of six, five and eight seconds, respectively.
CEW Data Download – Officer #1
The data downloaded from Officer #1’s CEW indicate that the weapon was triggered at 7:21:43 a.m., 7:21:56 a.m. and 7:22:08 a.m. for charge durations of five, 11 and 11 seconds, respectively. Video/Audio/Photographic Evidence [3]
911 Call
At 25 seconds into the recording, CW #1 called 911 and reported that the Complainant was either on “coke or crack”. He was out of control, screaming and banging at things inside his apartment unit. The dispatcher informed CW #1 that they would send police officers over as soon as possible, and if the Complainant’s situation escalated, the caller should call 911 again.Radio Communications
At 36 seconds into the recording, the dispatcher announced the receipt of a call about a resident of an apartment on Bronte Street South, Milton. The caller [now known to be CW #1] reported that the Complainant was screaming and banging at things inside his unit. The caller described the Complainant as a 30 to 43-year-old man, who resided alone in the unit and was believed to be on “crack”, as he was known to use drugs.It was broadcast that the Complainant was ‘positive’ for firearms possession, restrictions on firearms, and the making of threats.
At one minute and 10 seconds into the recording, the dispatcher reported the Complainant was in the apartment building hallway and smashing things.
At two minutes and 11 seconds into the recording, WO #2 reported that the Complainant had locked himself inside his unit and was yelling. The HRPS officers were attempting to talk to the Complainant through the door. WO #2 announced that there were grounds to apprehend the Complainant under the Mental Health Act and requested the attendance of a police officer with a shield.
At two minutes and 46 seconds into the recording, a police officer [now known to be Officer #2] stated that they were trying to communicate with the Complainant, but he was very agitated.
At three minutes and 26 seconds into the recording, Officer #2 announced that the Complainant had been told there were grounds for his apprehension under the Mental Health Act, and that police were authorized to apprehend him. However, the Complainant refused to come out of the unit and called the officers “fake”. The Complainant was reported to be in a manic state. He had barricaded himself in his apartment. The arrest team were positioned in the hallway with an immediate action plan if he surrendered, as well as a breakout plan should he fail to.
The police officers were concerned for the safety of the residents of the building as the Complainant was using something to slam the door from inside the unit.
At eight minutes and 11 seconds into the recording, Emergency Medical Services were called to attend. A police officer informed the dispatcher that they were still trying to communicate with the Complainant, but there was no real communication from him.
At ten minutes and seven seconds into the recording, the Complainant continued to maintain that the police officers were fake, and he refused to cooperate. He threatened that he was going to end the police officers’ lives. A police officer [now known to be WO #1] advised that the Complainant had briefly exited from his unit with a screwdriver in his hand. A less-lethal shotgun had been deployed but missed the Complainant.
The Complainant threatened to cut the police officers, and that he would not be taken alive.
Police announced that they would breach the door if there was any sign of death, or if the Complainant was going to harm himself.
At 15 minutes and 48 seconds into the recording, it was reported that a “HQ99” would be taking over command of the incident with a mission to safely apprehend the Complainant, who was suffering from a mental health crisis. A doorway line was established for an action plan. Should the Complainant cross the line, he was to be apprehended with as little force as possible. The Complainant claimed that he had an axe with him, with which he was hitting things, and that he intended to use the axe on the police officers. The Complainant poured water on the floor and claimed that he had rigged the door with water, electricity and metal.
At 22 minutes and 10 seconds into the recording, WO #5 and WO #7 attempted to establish communication with the Complainant. A ‘deliberate action plan’ to arrest the Complainant was announced. The Tactical Rescue Unit (TRU) reported that reconnaissance electronics had been deployed inside the unit, and several knives were seen on the floor in the kitchen area. The Complainant had grabbed the device and walked towards the TRU team.
At 27 minutes and eight seconds into the recording, TRU announced contact with the Complainant and that a CEW had been deployed. There was dialogue with the Complainant, but he had become more agitated. The Complainant had retreated into the inner part of the bedroom and refused to comply with demands to come out and open his hands, which he had behind his back. TRU officers were not immediately entering the room because they could not see a hand and what he had in it. The Complainant’s left hand was bleeding. He was holding something in his hands behind his back, but they were unsure what it was.
At 29 minutes and 45 seconds into the recording, TRU announced that the Complainant was threatening to take out at least two police officers. The Complainant threatened to use a firearm against the TRU officers. The TRU sergeant advised that they should continue to negotiate with the Complainant.
At 30 minutes and 59 seconds into the recording, TRU announced that the Complainant appeared to have a weapon in his right hand and had announced that he had a handgun in his hand, while holding it at the low ready position.
At 31 minutes and 47 seconds into the recording, TRU announced that the Complainant had blood on his two hands, but they still could not see what he was holding. The TRU sergeant asked to know the source of the injury. The TRU officers said they were not the source.
At 32 minutes and 39 seconds into the recording, TRU requested permission to proceed with the arrest. The Complainant threatened to kill the TRU officers. The TRU sergeant advised that the negotiation should continue.
At 33 minutes and 25 seconds into the recording, it was reported that the Complainant had requested to be shot and was also saying he would shoot at the TRU officers. He advised that he had broken a mirror, and that was what had led to his injury.
At 34 minutes and 46 seconds into the recording, TRU announced that the Complainant’s hands were empty. An ARWEN had been deployed, but the Complainant continued resist arrest. Shortly after, it was announced that the Complainant was in custody, but the officers were working on handcuffing him.
At 35 minutes and 33 seconds into the recording, TRU announced that the Complainant had been handcuffed and he was being walked out of the unit to remove the CEW probes on him. The Complainant was being taken to Milton District Hospital.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the HRPS between January 30, 2023, and February 21, 2023:- Call History;
- Notes-WO #3;
- Notes-WO #4;
- Notes-WO #2;
- Notes-WO #5;
- Notes-WO #1;
- Notes-SO #2;
- Notes-WO #7;
- Notes-WO #6;
- Notes-SO #1;
- Occurrence and Supplemental Reports;
- Scenes of Crime Report;
- Supplementary Report - Property;
- Communications recordings;
- CEW data;
- Identification photographs; and
- Training records.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Video footage provided by CW #1.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and officers on scene at the time of the events in question, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU. They did, however, authorize the release of their notes.
Shortly after 1:00 a.m. of January 30, 2023, the HRPS received a 911 call about a disturbance happening in an apartment on Bronte Street South, Milton. CW #1 had called to report that the Complainant was screaming and banging at things inside his apartment. Police officers were dispatched to the scene.
Several HRPS patrol officers were the first to arrive at the address. A belligerent Complainant greeted them outside his apartment. He yelled at the officers and accused them of not being real officers, after which he returned inside his residence and closed the door behind him. Efforts were made by the officers to communicate with the Complainant through the door, but to no avail. The Complainant remained highly agitated, screaming and uttering profanities. He threatened to kill the officers and warned that he would not be taken alive. The officers decided that they would arrest the Complainant in the event he opened his door and crossed the doorway threshold.
At about 2:30 a.m., the Complainant opened his door. He had a screwdriver in a hand raised above his head. SO #1 took aim and fired a less-lethal firearm in the Complainant’s direction. The projectile – a bean bag round – missed the Complainant but struck the door frame. The Complainant retreated into his apartment, closed the door, and continued to threaten the officers from inside. He indicated at one point that he was armed with an axe.
TRU officers arrived outside the apartment and took over from the uniformed officers at about 5:00 a.m. They too attempted and found little success in communicating with the Complainant through the door. At about 5:50 a.m., it was decided that the door to the apartment should be forced open and further negotiations attempted from the open entranceway.
Using a breaching tool, WO #7 opened the door. A refrigerator had been placed against the door from the inside. A remotely operated camera was sent into the apartment to ascertain the Complainant’s location. The Complainant appeared from a back bedroom and charged towards the officers at the door. The Complainant failed to stop when directed, and was struck by CEW probes fired by WO #7. The deployment stopped the forward advance of the Complainant, who retreated to the bedroom doorway. From that position, the Complainant said he had a gun and would use it to kill the officers.
At about 7:20 a.m., the Complainant moved back into his bedroom, prompting the TRU officers to make their way to the open bedroom door. Within moments, with the Complainant seated on a dresser, SO #2 fired his ARWEN three times in his direction. Struck once, the Complainant jumped off the dresser and ran across the room. He was tackled to the floor by WO #7 with the use of a ballistic shield.
The Complainant struggled with WO #7, at times tugging on the officer’s clothing in the area of his pistol. WO #7 and Officer #1 deployed their CEWs, and the former delivered a series of punches, following which the Complainant was handcuffed behind the back.
Shortly after 1:00 a.m. of January 30, 2023, the HRPS received a 911 call about a disturbance happening in an apartment on Bronte Street South, Milton. CW #1 had called to report that the Complainant was screaming and banging at things inside his apartment. Police officers were dispatched to the scene.
Several HRPS patrol officers were the first to arrive at the address. A belligerent Complainant greeted them outside his apartment. He yelled at the officers and accused them of not being real officers, after which he returned inside his residence and closed the door behind him. Efforts were made by the officers to communicate with the Complainant through the door, but to no avail. The Complainant remained highly agitated, screaming and uttering profanities. He threatened to kill the officers and warned that he would not be taken alive. The officers decided that they would arrest the Complainant in the event he opened his door and crossed the doorway threshold.
At about 2:30 a.m., the Complainant opened his door. He had a screwdriver in a hand raised above his head. SO #1 took aim and fired a less-lethal firearm in the Complainant’s direction. The projectile – a bean bag round – missed the Complainant but struck the door frame. The Complainant retreated into his apartment, closed the door, and continued to threaten the officers from inside. He indicated at one point that he was armed with an axe.
TRU officers arrived outside the apartment and took over from the uniformed officers at about 5:00 a.m. They too attempted and found little success in communicating with the Complainant through the door. At about 5:50 a.m., it was decided that the door to the apartment should be forced open and further negotiations attempted from the open entranceway.
Using a breaching tool, WO #7 opened the door. A refrigerator had been placed against the door from the inside. A remotely operated camera was sent into the apartment to ascertain the Complainant’s location. The Complainant appeared from a back bedroom and charged towards the officers at the door. The Complainant failed to stop when directed, and was struck by CEW probes fired by WO #7. The deployment stopped the forward advance of the Complainant, who retreated to the bedroom doorway. From that position, the Complainant said he had a gun and would use it to kill the officers.
At about 7:20 a.m., the Complainant moved back into his bedroom, prompting the TRU officers to make their way to the open bedroom door. Within moments, with the Complainant seated on a dresser, SO #2 fired his ARWEN three times in his direction. Struck once, the Complainant jumped off the dresser and ran across the room. He was tackled to the floor by WO #7 with the use of a ballistic shield.
The Complainant struggled with WO #7, at times tugging on the officer’s clothing in the area of his pistol. WO #7 and Officer #1 deployed their CEWs, and the former delivered a series of punches, following which the Complainant was handcuffed 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 January 30, 2023, the HRPS contacted the SIU to report that two of their officers had fired less-lethal firearms in the course of an encounter with a male – the Complainant – earlier that day. The SIU initiated an investigation, naming the officers – SO #1 and SO #2 – as the subject officials. 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 in connection with the discharge of their weapons.
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.
I am satisfied that the subject officials were lawfully placed and in the execution of their duty when they sought to arrest the Complainant. By the time of the first firearm discharge – the less-lethal shotgun fired by SO #1 – the Complainant had threated to kill the officers outside his door and was exhibiting highly manic and irrational behaviour. He was clearly subject to arrest under the Criminal Code and the Mental Health Act.
I am further satisfied that the two less-lethal firearm discharges were legally justified. [4] Turning first to SO #1’s use of the less-lethal shotgun and the bean bag round it fired, the officer was at the time reacting to the presence of a volatile and violent Complainant holding a screwdriver over his head. Considered in the context of the Complainant’s threatening behaviour to that point, I am unable to fault the officer for attempting to temporarily immobilize the Complainant from a distance with the use of his weapon. Had it worked and the Complainant been struck, it could well have been that an arrest would have been made at that point without serious injury and further force being brought to bear by the officers. I am of the view that SO #2’s ARWEN discharges are defensible for essentially the same reasons. Indeed, by that time, the Complainant had given the officers reason to believe he was armed with a firearm. In all of this, it should be noted that the officers had attempted to de-escalate the situation through dialogue before resorting to their weapons. Regrettably, the Complainant was of unsound mind at the time and unable to respond in kind.
For the foregoing reasons, 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. As such, there is no basis for proceeding with criminal charges in this case.
Date: May 30, 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.
I am satisfied that the subject officials were lawfully placed and in the execution of their duty when they sought to arrest the Complainant. By the time of the first firearm discharge – the less-lethal shotgun fired by SO #1 – the Complainant had threated to kill the officers outside his door and was exhibiting highly manic and irrational behaviour. He was clearly subject to arrest under the Criminal Code and the Mental Health Act.
I am further satisfied that the two less-lethal firearm discharges were legally justified. [4] Turning first to SO #1’s use of the less-lethal shotgun and the bean bag round it fired, the officer was at the time reacting to the presence of a volatile and violent Complainant holding a screwdriver over his head. Considered in the context of the Complainant’s threatening behaviour to that point, I am unable to fault the officer for attempting to temporarily immobilize the Complainant from a distance with the use of his weapon. Had it worked and the Complainant been struck, it could well have been that an arrest would have been made at that point without serious injury and further force being brought to bear by the officers. I am of the view that SO #2’s ARWEN discharges are defensible for essentially the same reasons. Indeed, by that time, the Complainant had given the officers reason to believe he was armed with a firearm. In all of this, it should be noted that the officers had attempted to de-escalate the situation through dialogue before resorting to their weapons. Regrettably, the Complainant was of unsound mind at the time and unable to respond in kind.
For the foregoing reasons, 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. As such, there is no basis for proceeding with criminal charges in this case.
Date: May 30, 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 times are derived from the internal clocks of the weapons, and are not necessarily synchronous between weapons and with actual time. [Back to text]
- 3) 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]
- 4) Though not the focus of the SIU investigation, it would appear that the force used by the officers other than the less-lethal firearms, namely, CEW discharges by WO #7 and Officer #1, and WO #7’s hand strikes, were also legally justified in light of the Complainant’s resistance and the exigencies of the situation, including the possibility that the Complainant was armed with a gun. [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.