SIU Director’s Report - Case # 23-OFI-056
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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 serious injuries of 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 serious injuries of a 44-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On February 26, 2023, at 1:58 p.m., the Guelph Police Service (GPS) contacted the SIU with the following information. At 1:30 p.m., during a traffic stop at Paisley Road and Silvercreek Parkway, Guelph, the Subject Official (SO) was attacked by the driver [now known to be the Complainant] with a hatchet. The SO discharged his firearm twice striking the Complainant in the wrist and buttocks. The Complainant had been taken to the Hamilton General Hospital (HGH).
The Team
Date and time team dispatched: 02/26/2023 at 2:46 p.m.Date and time SIU arrived on scene: 02/26/2023 at 4:14 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
44-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on February 27, 2023, and March 2, 2023.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
The civilian witnesses were interviewed between February 26, 2023, and March 10, 2023.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on March 22, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed between February 28, 2023, and March 7, 2023.
Evidence
The Scene
The events in question transpired in and around the eastbound left turn lane of Paisley Road onto northbound Silvercreek Parkway. Scene Diagram
Physical Evidence
The evidence collected at the scene included the following:1 - hatchet
2 - pocketknife
3 - cartridge case
4 - cartridge case
5 - cartridge case
6 - cartridge case
7 - cartridge case
8 - cartridge case
9 - cartridge case
10 - projectile
11 - swab of staining on roadway
Figure 1 - Hatchet and pocketknife located at scene
The following items belonging to the SO were also collected by the SIU:
- “Glock” 17 Gen4 semi-automatic pistol
- magazine from pistol (10 cartridges), 1 cartridge removed from breech
Figure 2 - The SO's Glock pistol
The inspection of the Complainant’s Nissan Murano yielded the following information in connection with bullet strikes:
Impact Site – 1 (4.5mm X .08mm)
This impact perforated the driver’s side front fender door skin constructed of automotive metal and paint slightly below the headlight assembly. The projectile entered at an azimuth angle of 40° right to left (as one faced the driver’s side of the vehicle) with a descending vertical angle of 1°. The projectile continued into the headlight assembly striking several internal parts consisting of plastic and came to rest inside the assembly itself. A projectile was recovered from this site.
Figure 3 - Bullet impact under driver's side front headlight of Complainant’s vehicle with a rod placed to show bullet trajectory
Impact Site - 2 (3mm X 1.5mm)
This impact perforated the driver’s side front fender door skin constructed of automotive metal and paint approximately 9 centimetres forward of the front edge of the driver’s door. The projectile entered at an undetermined angle striking the inner structure of the fender then deflecting back to strike the outer door skin from the inside without penetration. There was no projectile recovered from this site.
Figure 4 - Bullet impact to driver’s side front fender of the Complainant's vehicle
Impact Site – 3 (2.2mm X 1.5mm)
This impact perforated the driver’s door skin constructed of automotive metal and paint right of centre. It entered at an azimuth angle of 50° right to left (as one faced the driver’s door) with a neutral vertical angle of 0°. The projectile perforated the door structure and exited into the interior of the vehicle. The projectile was recovered on the floor mat of the driver’s compartment.
Figure 5 - Bullet impact to driver's side front door of the Complainant's vehicle with rod placed to show trajectory
Impact Site – 4 (1.5mm X 1mm)
This impact perforated the driver’s side rear door skin constructed of automotive metal and paint left of centre. It entered at an azimuth angle of 65° right to left (as one faced the driver’s door) with a neutral vertical angle of 0°. The projectile perforated the door structure and exited into the interior of the vehicle where it further struck the driver’s seat back and penetrated the foam structure of the seat. The projectile was not recovered.
Figure 6 - Bullet impact to driver's side rear door of the Complainant's vehicle with a rod placed to show trajectory
Forensic Evidence
At 10:46 a.m., on March 2, 2023, the SIU submitted a “Glock” 17 Gen4 semi-automatic pistol, cartridge cases, and a projectile received from the HGH. Video/Audio/Photographic Evidence [2]
Footage from Body-worn Camera (BWC) of the SO, WO #1, and WO #2
The following is a summary of the footage captured by the BWCs of the SO, WO #1, and WO #2. Starting at about 1:25:19 p.m., on February 26, 2023, the SO and WO #1 were captured together inside a police vehicle. They looked at the mobile data terminal and pointed at the screen.
Starting at about 1:25:45 p.m., WO #1 exited the driver side of the police vehicle and walked up to the driver side window of a Nissan Murano. The Nissan was stopped in the eastbound left turn lane of Paisley Road at Silvercreek Parkway, an intersection controlled by traffic signals. The SO exited the passenger side and walked to the passenger side of the Nissan. The passenger window was partially down. The SO asked, “Did you break down?”
Starting at about 1:25:58 p.m., WO #1 looked through the front driver window at the driver - the Complainant - who was seated inside the Nissan with the windows rolled up and looking out the front window. WO #1 stepped back a few steps and took out black gloves and put them on while walking to the back of the Nissan.
Starting at about 1:26:27 p.m., the SO walked from the passenger side of the Nissan around the rear and up to the front driver side window. He knocked on the glass with his right hand and the Complainant rolled down his driver’s window halfway. The SO asked the Complainant, “Where are you headed man?” The Complainant responded, “Get out of here.” The SO asked the Complainant again, “Where are you heading?” The Complainant told the SO to leave and rolled his window partially up. The SO opened the driver’s door partially, and the Complainant pulled it closed.
Starting at about 1:26:47 p.m., the SO called for another unit over his portable radio. He opened the driver’s door with his left hand. The Complainant pulled the driver door closed and yelled, “Get the fuck out of here.”
Starting at about 1:26:52 p.m., the SO told the Complainant he smelled alcohol on his breath. The Complainant told the SO he had not been drinking. He asked the SO what was wrong with him, stated he was not drinking, and told the SO to get out of there.
Starting at about 1:27:03 p.m., the SO opened the driver’s door with his left hand. The Complainant grabbed the door with both his hands and closed it. The window was now up all the way.
Starting at about 1:27:11 p.m., the SO called for units in the area to assist.
Starting at about 1:27:12 p.m., the SO and WO #1 moved back from the driver side door of the Nissan, halfway into the westbound lane. The SO called for radio silence on his portable radio. WO #1 had drawn his firearm and had it pointed at the Nissan. The SO had his firearm out and pointed at the Nissan. The Complainant was seated in the driver’s seat of the Nissan looking out the window at the SO and WO #1. The SO told WO #1 that the Complainant had a hatchet in his hand.
Starting at about 1:27:22 p.m., the Complainant opened the driver’s door and stepped out with his left foot and his right hand by the bottom of the window. The SO and WO #1 yelled at the Complainant, “Drop it, drop it now, drop the hatchet now.”
Starting at about 1:27:29 p.m., the Complainant told the SO and WO #1 to, “Get the fuck out of here,” and sat back in the driver’s seat, closing the driver’s door. The SO and WO #1 moved further away from the driver side door of the Nissan. The SO stood in the west curb lane of traffic on Paisley Road, with WO #1 to his right. Both police officers had their firearms out, pointed at the driver side door.
Starting at about 1:27:39 p.m., [3] the Complainant opened the driver’s door, stepped out with his left foot first and then stood on the yellow road dividing line. The SO and WO #1 yelled, “Drop the hatchet.” The Complainant stepped towards the officers as the driver’s door closed.
Figure 7 - Screenshot from BWC depicting the Complainant exiting his vehicle with an object [determined to be a hatchet] in his right hand
The SO discharged his firearm seven times, striking the Complainant and causing him to fall to the ground on his back. The Complainant rolled to his right side by the driver side front tire. WO #1 broadcast over the radio, “Shots fired.”
The SO and WO #1 maintained their distance. They yelled several times, “Drop it, drop the hatchet.” [4] The Complainant was on his right side, holding his stomach. He told the police officers he dropped the hatchet on the road. The SO and WO #1 told the Complainant to get on his stomach. A hatchet was seen on the road on top of the white stop line, within arm’s reach of the Complainant.
Figure 8 - Screenshot of BWC showing hatchet next to the Complainant.
Video Footage from Civilian #1
On February 28, 2023, civilian #1 sent to the SIU video footage from a home on Silvercreek Parkway. In the caption, civilian #1 noted the time recorded was between 1:03:59 p.m., and 2:01:29 p.m. Starting at about 1:04:43 p.m., a gold-coloured car was captured pulling into the intersection and stopping in a live lane.
Starting at about 1:24:36 p.m., the GPS and a towing company were on scene.
Starting at about 1:27:35 p.m., shots were fired.
Video Footage from Civilian #2
On March 2, 2023, civilian #2 called the SIU and provided cellular telephone video. The video was 30 seconds in length. The person who had taken the video did not want to supply their name but allowed civilian #2 to forward the video to the SIU. The video was taken from inside a vehicle on Paisley Road, between Silvercreek Parkway and the Hanlon Expressway.
Near Silvercreek Parkway was a car stopped in the left turn lane. The driver side of a GPS vehicle behind the car could be seen. A Jeep was captured just before the curve on Paisley Road. Two uniform police officers were standing in the westbound lanes of Paisley Road - the SO and WO #1. The SO appeared to have his firearm out and he was in a stance, ready to fire. As the camera scanned to the right, the video screen turned an orangey colour.
The footage returned and a man - the Complainant - was outside his driver’s door. WO #1’s back was to the camera and his arms appeared in front of his chest area. The Complainant closed his driver’s door and stepped forward as WO #1 brought his gun up. Seven shots were captured as the Complainant’s right shoulder went back, and he turned clockwise. For a second, the Complainant had his back to WO #1, and he was bent forward. The Complainant continued turning as he fell and landed on the roadway and on his right side.
The Complainant rolled on his back with both his legs in the air and bent at the knee. He then went into a seated position by the front tire as he grabbed his left leg. The Complainant ended up with his back to WO #1, who took a couple steps backward. The camera scanned to the left away from the Complainant. The SO moved behind a sign. Both WO #1 and the SO moved forward but did not go right up to the Complainant.
Communications Recordings
Starting at about 1:14 p.m., civilian #3 was captured calling in to report a broken-down vehicle. Starting at about 1:24:53 p.m., the SO requested a check on the licence plate.
Starting at about 1:27:18 p.m., an officer yelled a police code. Six seconds later, it was reported the Complainant had a hatchet and, at 1:27:48 p.m., it was declared shots had been fired.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the GPS between February 27, 2023, and May 9, 2023:- Person Query – the Complainant;
- Record of computer-assisted dispatch (CAD);
- Email to SIU identifying witnesses;
- Communications recordings;
- BWC footage - SO;
- BWC footage - WO #1;
- BWC footage - WO #2;
- Exhibit List;
- Photographs;
- Crown Brief Synopsis;
- Occurrence notes;
- Notes - WO #1;
- Notes - WO #2;
- Electronic scan of scene;
- Scene Documentation Report;
- Warrant execution documentation; and
- Exhibit Processing Report.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between February 26, 2023, and March 2, 2023:- The Complainant’s medical records from Hamilton Health Sciences (HHSC);
- HHSC release of physical evidence – bullet;
- Photograph supplied by Civilian #4;
- Video footage from Civilian #1;
- Video footage from Civilian #2; and
- Video footage from Civilian #5.
Incident Narrative
The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.
At about 1:25 p.m. of February 26, 2023, the SO and WO #1 arrived in their marked SUV at the intersection of Paisley Road and Silvercreek Parkway, Guelph. A Nissan Murano had stopped in the Paisley Road eastbound left-turn lane onto northbound Silvercreek Parkway and they were there to assess the situation and render assistance.
The officers brought their SUV to a stop directly behind the Murano in the left-turn lane and exited the cruiser. WO #1 made his way to the driver side of the Murano as the SO approached the front passenger door of the vehicle and began speaking with the driver – the Complainant – through the partially opened window. He asked about the problem and was told by the Complainant that his car had broken down and he was waiting for a tow. Detecting the smell of marijuana and observing what he believed might be cannabis residue in the centre console, the SO made his way around the rear of the Murano to the driver side front door to get a better look.
The SO knocked on the closed driver’s door window and the Complainant lowered it partially. Asked where he was headed, the Complainant replied by repeatedly telling the SO to “get out of here.” The SO told the Complainant he could smell alcohol on his breath and tried to open the driver’s door. The Complainant pulled the door closed and refused to exit at the officer’s request. The SO radioed for additional officers to attend the scene and again tried to open the door, this time finding it locked. Seconds later, the SO and WO #1, the latter standing slightly behind and to his partner’s right, abruptly backed away from the Murano.
Reaching with his right hand into the front passenger compartment, the Complainant had retrieved a hatchet. With the officers now standing in the middle of the westbound lanes of Paisley Road, the Complainant opened the driver’s door and stepped outside with his left foot, repeatedly telling the officers to, “Get the fuck out of here.” The SO and WO #1 took a couple of more steps back and yelled at the Complainant to drop the hatchet. The Complainant fully re-entered the driver’s seat and closed the door. About ten seconds later, the Complainant again opened the driver’s door, the hatchet still in his right hand. This time, he exited fully and took a step in the officers’ direction before he was shot and fell to the road.
The SO had done all of the shooting. When the door opened the last time, the officer screamed, “Drop it,” and then fired a total of seven times in rapid succession. The time was 1:27 p.m.
The gunshots had sent the Complainant rotating in a clockwise direction by the side of the driver’s door before he collapsed on his right side. There, the Complainant lay between one and two minutes – the officers repeatedly telling him to roll onto his stomach away from the hatchet and he asking the officers what was wrong with them – before a third officer arrived on scene and assisted in the Complainant’s apprehension.
Following his arrest, the Complainant was transported to hospital in ambulance. He had sustained gunshot wounds to the left forearm, right hip and right buttock.
At about 1:25 p.m. of February 26, 2023, the SO and WO #1 arrived in their marked SUV at the intersection of Paisley Road and Silvercreek Parkway, Guelph. A Nissan Murano had stopped in the Paisley Road eastbound left-turn lane onto northbound Silvercreek Parkway and they were there to assess the situation and render assistance.
The officers brought their SUV to a stop directly behind the Murano in the left-turn lane and exited the cruiser. WO #1 made his way to the driver side of the Murano as the SO approached the front passenger door of the vehicle and began speaking with the driver – the Complainant – through the partially opened window. He asked about the problem and was told by the Complainant that his car had broken down and he was waiting for a tow. Detecting the smell of marijuana and observing what he believed might be cannabis residue in the centre console, the SO made his way around the rear of the Murano to the driver side front door to get a better look.
The SO knocked on the closed driver’s door window and the Complainant lowered it partially. Asked where he was headed, the Complainant replied by repeatedly telling the SO to “get out of here.” The SO told the Complainant he could smell alcohol on his breath and tried to open the driver’s door. The Complainant pulled the door closed and refused to exit at the officer’s request. The SO radioed for additional officers to attend the scene and again tried to open the door, this time finding it locked. Seconds later, the SO and WO #1, the latter standing slightly behind and to his partner’s right, abruptly backed away from the Murano.
Reaching with his right hand into the front passenger compartment, the Complainant had retrieved a hatchet. With the officers now standing in the middle of the westbound lanes of Paisley Road, the Complainant opened the driver’s door and stepped outside with his left foot, repeatedly telling the officers to, “Get the fuck out of here.” The SO and WO #1 took a couple of more steps back and yelled at the Complainant to drop the hatchet. The Complainant fully re-entered the driver’s seat and closed the door. About ten seconds later, the Complainant again opened the driver’s door, the hatchet still in his right hand. This time, he exited fully and took a step in the officers’ direction before he was shot and fell to the road.
The SO had done all of the shooting. When the door opened the last time, the officer screamed, “Drop it,” and then fired a total of seven times in rapid succession. The time was 1:27 p.m.
The gunshots had sent the Complainant rotating in a clockwise direction by the side of the driver’s door before he collapsed on his right side. There, the Complainant lay between one and two minutes – the officers repeatedly telling him to roll onto his stomach away from the hatchet and he asking the officers what was wrong with them – before a third officer arrived on scene and assisted in the Complainant’s apprehension.
Following his arrest, the Complainant was transported to hospital in ambulance. He had sustained gunshot wounds to the left forearm, right hip and right buttock.
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:
(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.
(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.
Analysis and Director's Decision
The Complainant was shot and wounded by a GPS officer on February 26, 2023. In the ensuing SIU investigation, the officer – 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.
Section 34 of the Criminal Code provides that conduct that would otherwise constitute an offence is legally justified if it was intended to deter a reasonably apprehended assault, actual or threatened, and was itself reasonable. The reasonableness of the conduct is to be assessed in light of all the relevant circumstances, including with respect to such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force.
The SO and WO #1 were lawfully placed and in the exercise of their duty when they attended at the intersection of Paisley Road and Silvercreek Parkway in connection with a vehicle that had stalled. When the SO spoke to the driver – the Complainant – and detected the odour of alcohol coming from his breath, he was also within his rights in pursuing an impaired driving investigation and attempting to arrange a breath test.
The Complainant took objection to the SO’s presence and brandished a hatchet in his direction, effectively committing an assault on the officer. The moment he did that, the SO was entitled to defend himself with reasonable force.
With respect to the force used by the SO, namely, the use of his gun to fire seven shots at the Complainant, I am satisfied that it constituted reasonable force. The weapon in the Complainant’s possession at the time – a hatchet – gave every appearance of being capable of inflicting grievous bodily harm or death. And the Complainant was clearly wielding it in a threatening fashion towards the officers. In the circumstances, when the Complainant stepped out of his vehicle with the hatchet in hand, having refused repeated direction that he drop the weapon, the SO and WO #1 were faced with a clear and present danger of lethal dimensions. The SO was entitled, in my view, to meet that risk with a resort to lethal force of his own. The use of other weapons was not a viable option given the officers’ proximity to the Complainant at the time (no more than ten metres), the need to immediately deter the Complainant’s continued advance, and the heavy jacket the Complainant was wearing at the time that could well have thwarted conducted energy weapon probes from penetrating through to the body. As for the number of shots fired – seven – these were discharged in rapid succession at a point in time when the Complainant was still on his feet and in possession of the knife, all of which leads me to conclude that there was no material difference in the SO’s reasonable apprehension of the threat confronting him through the volley of gunfire.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his engagement with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 26, 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.
The SO and WO #1 were lawfully placed and in the exercise of their duty when they attended at the intersection of Paisley Road and Silvercreek Parkway in connection with a vehicle that had stalled. When the SO spoke to the driver – the Complainant – and detected the odour of alcohol coming from his breath, he was also within his rights in pursuing an impaired driving investigation and attempting to arrange a breath test.
The Complainant took objection to the SO’s presence and brandished a hatchet in his direction, effectively committing an assault on the officer. The moment he did that, the SO was entitled to defend himself with reasonable force.
With respect to the force used by the SO, namely, the use of his gun to fire seven shots at the Complainant, I am satisfied that it constituted reasonable force. The weapon in the Complainant’s possession at the time – a hatchet – gave every appearance of being capable of inflicting grievous bodily harm or death. And the Complainant was clearly wielding it in a threatening fashion towards the officers. In the circumstances, when the Complainant stepped out of his vehicle with the hatchet in hand, having refused repeated direction that he drop the weapon, the SO and WO #1 were faced with a clear and present danger of lethal dimensions. The SO was entitled, in my view, to meet that risk with a resort to lethal force of his own. The use of other weapons was not a viable option given the officers’ proximity to the Complainant at the time (no more than ten metres), the need to immediately deter the Complainant’s continued advance, and the heavy jacket the Complainant was wearing at the time that could well have thwarted conducted energy weapon probes from penetrating through to the body. As for the number of shots fired – seven – these were discharged in rapid succession at a point in time when the Complainant was still on his feet and in possession of the knife, all of which leads me to conclude that there was no material difference in the SO’s reasonable apprehension of the threat confronting him through the volley of gunfire.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his engagement with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 26, 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]
- 3) BWC of the SO [Back to text]
- 4) BWC WO #1 [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.