SIU Director’s Report - Case # 23-OCI-083
Warning:
This page contains graphic content that can shock, offend and upset.
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 injury of 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 serious injury of a 42-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On March 13, 2023, at about 9:38 p.m., the London Police Service (LPS) contacted the SIU with the following information. On March 11, 2023, at about 5:15 a.m., LPS officers attended 621 Kipps Lane in London following a report of a deceased individual located within a hallway. Preliminary investigation at the scene led LPS officers to the Complainant’s apartment. There were two men in the unit initially. One man subsequently left, leaving only the other man in the unit – the Complainant - who barricaded himself. At approximately 7:30 p.m., investigators developed reasonable grounds to arrest the Complainant for the murder of the deceased man. LPS Emergency Response Unit (ERU) officers entered the apartment. The Complainant discharged a single shot from a shotgun and struck two LPS officers. LPS disengaged but later deployed tear gas and effected the Complainant’s arrest at 8:30 p.m. On March 12, 2023, the Complainant complained of pain to his wrist and jaw and was subsequently escorted to London Health Sciences Centre (LHSC) Victoria Hospital. X-rays indicated there was a crack to the Complainant’s left ulna bone.
The Team
Date and time team dispatched: 03/14/2023 at 8:36 a.m.Date and time SIU arrived on scene: 03/14/2023 at 10:00 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
42-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on March 14, 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 Interviewed
WO #4 Interviewed
The witness officials were interviewed on March 20, 2023.
Evidence
The Scene
The events in question transpired in and around the Complainant’s apartment located at 621 Kipps Avenue, London. Video/Audio/Photographic Evidence [2]
Video Footage – Facebook
On March 14, 2023, the SIU obtained and reviewed the livestream the Complainant had posted on Facebook.
Video Footage – 621 Kipps Lane
A SIU investigator attended 621 Kipps Lane and reviewed the elevator video. The video was grainy and showed little evidence to forward the investigation.Communications Recordings and Computer-assisted Dispatch (CAD)
At 7:04 p.m., the ERU made efforts to determine the location of the Complainant in the apartment. At 7:18 p.m., the Complainant, who had possibly been sleeping, asked about his pet and then slammed the bedroom door shut. The Complainant was told the pet was safe.
The next plan was to open the bedroom door and deliver gas into the bedroom, but that was stalled due to ongoing negotiations. The Complainant wanted beer and cigarettes.
At about 7:26 p.m., permission was given to the ERU that if the Complainant was not behind the door and further into the room, the team could break cover, pop the door, and enter with a police dog and both lethal and less-lethal options.
At 7:33 p.m., the plan was to open the bedroom door, use the Mark 9 tear gas gun and, depending on what was seen, deploy the dog. The gas was released and, at about 7:36 p.m., it was reported the Complainant was not in custody and a ERU member [now known to be Officer #1] had been hit with something. It was reported that it appeared there was a gunshot to the arm, and either pellets or birdshot had struck him. ERU members retreated from the apartment. Emergency Medical Services were requested.
No shots had been fired by ERU officers. The Complainant continued to request beer and cigarettes.
The next plan was to have members of the ERU team set up and deploy gas though the bedroom window. Attempts to negotiate with the Complainant continued.
At 8:13 p.m., gas was deployed through the bedroom window; the only response by the Complainant was coughing.
At 8:21 p.m., six rounds of 40 milliliter gas were deployed. A total of 11 rounds were deployed. No response was heard or seen by the Complainant, and a plan to deploy gas from the balcony of a neighbouring apartment began.
At 8:26 p.m., it was reported that the Complainant had given a muffled response. He showed his hands, which were empty, came out into the living room and was listening to directions.
At 8:29 p.m., the Complainant was taken into custody.
At 8:31 p.m., it was reported that the apartment was being cleared.
At 8:35 p.m., a shotgun had been found in the closet.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the LPS between March 16 and 30, 2023:- CAD Report;
- Communications recordings;
- Notes – WO #1;
- Notes – WO #3;
- Notes – WO #2;
- Notes – the SO;
- Notes – WO #4;
- General Occurrence Report;
- Photographs;
- Action Notes;
- Written Statement – WO #1;
- Written Statement – WO #3;
- Written Statement – WO #2; and
- Written Statement – WO #4.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources:- Video footage from 621 Kipps Lane, London, received March 21, 2023;
- Facebook data; and
- Medical records from LHSC Victoria Hospital, received March 22, 2023.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and officers present at the time of the events in question, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU. He did authorize the release of his notes.
In the morning of March 11, 2023, LPS officers were dispatched to the apartment building at 621 Kipps Lane, London, following a call about a person lying unconscious with blood around him on a corridor. Officers arrived to find the person – Civilian #1 – unresponsive with stab wounds. He would succumb to his injuries.
A preliminary investigation led officers to the Complainant’s apartment. There were two males present at the time of the officers’ arrival – Civilian #2 and the Complainant. Civilian #2 exited the apartment but the Complainant refused to do so.
At about 4:20 a.m. that day, about an hour before the 911 call that sent officers to the building, the Complainant had also called police seeking the removal of an inebriated male – Civilian #1. Shortly thereafter, he had called 911 again to cancel his request for service.
There ensued a stand-off during which police attempted to negotiate the Complainant’s exit from the apartment. As the situation involved a barricaded person, whose social media posts during the events that day depicted him with a firearm, an ERU team was also deployed at the scene. After more than a dozen hours, it was decided that the ERU team would enter the apartment to take the Complainant into custody.
At about 7:36 p.m. an ERU team was inside the residence and forced open the bedroom door. Armed with a shotgun and present in the bedroom, the Complainant fired at the officers. Pellets from the blast struck Officer #1 and Officer #2, the former in the eye, the latter in the left hand, left temple and right forearm. The team immediately withdrew from the apartment and the injured officers were transported to hospital.
Beginning at about 8:13 p.m., the ERU deployed rounds of tear gas into the apartment’s bedroom. Suffering from the effects of the tear gas, the Complainant indicated that he wished to surrender. He complied with police commands that he dispossess himself of the shotgun and walk backwards to the front door of the apartment.
As the Complainant arrived at the door, he was grabbed by police and taken to the floor. The SO kneed and punched the Complainant on the ground, and assisted in handcuffing him behind the back. The time was about 8:30 p.m.
Following his arrest, the Complainant was taken to hospital and diagnosed with a fracture of the left forearm.
In the morning of March 11, 2023, LPS officers were dispatched to the apartment building at 621 Kipps Lane, London, following a call about a person lying unconscious with blood around him on a corridor. Officers arrived to find the person – Civilian #1 – unresponsive with stab wounds. He would succumb to his injuries.
A preliminary investigation led officers to the Complainant’s apartment. There were two males present at the time of the officers’ arrival – Civilian #2 and the Complainant. Civilian #2 exited the apartment but the Complainant refused to do so.
At about 4:20 a.m. that day, about an hour before the 911 call that sent officers to the building, the Complainant had also called police seeking the removal of an inebriated male – Civilian #1. Shortly thereafter, he had called 911 again to cancel his request for service.
There ensued a stand-off during which police attempted to negotiate the Complainant’s exit from the apartment. As the situation involved a barricaded person, whose social media posts during the events that day depicted him with a firearm, an ERU team was also deployed at the scene. After more than a dozen hours, it was decided that the ERU team would enter the apartment to take the Complainant into custody.
At about 7:36 p.m. an ERU team was inside the residence and forced open the bedroom door. Armed with a shotgun and present in the bedroom, the Complainant fired at the officers. Pellets from the blast struck Officer #1 and Officer #2, the former in the eye, the latter in the left hand, left temple and right forearm. The team immediately withdrew from the apartment and the injured officers were transported to hospital.
Beginning at about 8:13 p.m., the ERU deployed rounds of tear gas into the apartment’s bedroom. Suffering from the effects of the tear gas, the Complainant indicated that he wished to surrender. He complied with police commands that he dispossess himself of the shotgun and walk backwards to the front door of the apartment.
As the Complainant arrived at the door, he was grabbed by police and taken to the floor. The SO kneed and punched the Complainant on the ground, and assisted in handcuffing him behind the back. The time was about 8:30 p.m.
Following his arrest, the Complainant was taken to hospital and diagnosed with a fracture of the left forearm.
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
The Complainant was seriously injured in the course of his arrest by LPS officers on March 11, 2023. One of the officers – the SO – was identified as the subject official in the ensuing SIU investigation of the incident. 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 Complainant’s arrest and injury.
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 ERU were within their rights in seeking to take the Complainant into custody. By the time of their entry into the apartment, a warrant authorizing the Complainant’s arrest in connection with the murder of Civilian #1 had been obtained by the police.
With respect to the force used by the SO in aid of the Complainant’s arrest, namely, several knee and hand strikes, I am unable to reasonably conclude that it was not legally justified. The Complainant had about an hour earlier fired a shotgun at police officers, injuring two of them. And there were grounds to believe that he was involved in the stabbing death of Civilian #1. Given his record of violence that day, the SO would reasonably have been concerned that the Complainant might still be armed and capable of causing further harm even after seeming to surrender to police. When that concern is coupled with the evidence of another officer who participated in the Complainant’s arrest, indicating that the officers had some difficulty in securing control of the Complainant’s left arm, it makes sense that the SO would want to resort to a series of strikes to deter any further aggression pending the Complainant’s restraint in handcuffs.
In the result, whether or not the Complainant’s injury was incurred in the altercation that marked his arrest, there are no reasonable grounds to conclude that the SO comported himself other than within the limits of the criminal law throughout their engagement.
Date: July 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.
The ERU were within their rights in seeking to take the Complainant into custody. By the time of their entry into the apartment, a warrant authorizing the Complainant’s arrest in connection with the murder of Civilian #1 had been obtained by the police.
With respect to the force used by the SO in aid of the Complainant’s arrest, namely, several knee and hand strikes, I am unable to reasonably conclude that it was not legally justified. The Complainant had about an hour earlier fired a shotgun at police officers, injuring two of them. And there were grounds to believe that he was involved in the stabbing death of Civilian #1. Given his record of violence that day, the SO would reasonably have been concerned that the Complainant might still be armed and capable of causing further harm even after seeming to surrender to police. When that concern is coupled with the evidence of another officer who participated in the Complainant’s arrest, indicating that the officers had some difficulty in securing control of the Complainant’s left arm, it makes sense that the SO would want to resort to a series of strikes to deter any further aggression pending the Complainant’s restraint in handcuffs.
In the result, whether or not the Complainant’s injury was incurred in the altercation that marked his arrest, there are no reasonable grounds to conclude that the SO comported himself other than within the limits of the criminal law throughout their engagement.
Date: July 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.