SIU Director’s Report - Case # 23-PFP-082
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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 23-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 23-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On March 13, 2023, at 1:37 p.m., the Ontario Provincial Police (OPP) notified the SIU that an Anti-riot Weapon ENfield (ARWEN) had been discharged at the Complainant.According to the OPP, at 10:31 a.m., members of the OPP Street Crime Unit (SCU) and the OPP Tactical and Rescue Unit (TRU) made mobile observations of the Complainant, who was operating a vehicle in the St. Catharines area. The Complainant was reported to have a number of outstanding warrants. Surveillance continued eastbound on Highway (Hwy) 401 into the Oshawa area. The Complainant was observed at 1:00 p.m. to stop his vehicle on the shoulder of Hwy 401 and exit on foot. OPP officers followed the Complainant to 900 Colonel Sam Drive in Oshawa where, attempting to effect an arrest, the Subject Official (SO) discharged four ARWEN rounds at the Complainant, striking him in the leg. Although the Complainant declined medical treatment from the tactical medics on scene, he was transported by emergency medical services to Lakeridge Health Hospital where he was assessed and admitted to ingesting narcotics just prior to the interaction.
The Team
Date and time team dispatched: 03/13/2023 at 2:15 p.m.Date and time SIU arrived on scene: 03/13/2023 at 7:30 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators (FIs) assigned: 1
Affected Person (aka “Complainant”):
23-year-old male; declined an interviewCivilian Witness (CW)
CW Interviewed The civilian witness was interviewed on March 13, 2023.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed; notes reviewed and interview deemed not necessary
WO #5 Interviewed
The witness officials were interviewed between March 18, 2023, and April 3, 2023.
Evidence
The Scene
The events in question transpired in a field and wooded area north from Colonel Sam Drive, east of 900 Colonel Sam Drive, Oshawa. 
Figure 1 - Wooded area north of Colonel Sam Drive
On March 13, 2023, at 4:50 p.m., a SIU FI attended 900 Colonel Sam Drive in Oshawa. The scene was secured by an OPP officer. The area was a snow-covered forested area. Facing north, the distance from the north curb of Colonel Sam Drive to a steep hill and railway tracks was approximately 100 metres.
Footprints leading to and from this area were visible in the snow. The environmental conditions were cold and damp with light snow flurries.
Approximately 80 metres from the north curb, the SIU FI located one ARWEN round. Continuing northbound, just before the slope’s rise, another ARWEN round was located. Two additional ARWEN rounds were located on the slope, near one another, slightly north of where the other rounds were seized.
Figure 2 - One of four ARWEN rounds located at scene
The involved ARWEN weapon itself was secured within a box in the trunk of an OPP inspector’s vehicle. The SIU FI removed the item from the trunk, photographed it and then returned it to the inspector.
Figure 3 – ARWEN
Physical Evidence
The SIU collected the following items:1. Deployed combined tactical systems mini bang;
2. Deployed Vanguard 1 mini bang;
3. Four ARWEN fired cartridge cases;
4. One unfired cartridge case;
5. One ARWEN shotgun; and
6. Four fired ARWEN batons.
Video/Audio/Photographic Evidence [2]
Footage from OPP Aerial Surveillance
The footage commenced on March 13, 2023, at 12:36:46 p.m., with an aerial view of an area south of Hwy 401, north of 900 Colonel Sam Drive. The Complainant was captured running southbound from Hwy 401 across a field onto a set of rail tracks, after which he walked a short distance west along the tracks. The Complainant wore black clothing and a baseball hat, and he carried a backpack. The helicopter followed the Complainant as he then walked southbound off the tracks and across a forested area, onto the north side of Colonel Sam Drive, where he paced back and forth. At 12:42:33 p.m., the Complainant stood by a power pole that was situated next to 900 Colonel Sam Drive. A grey cargo van entered the camera frame on Colonel Sam Drive and stopped in the lanes of the road next to the Complainant, who ran north into the wooded area. Five uniformed officers holding long weapons exited the van and ran after the Complainant.
At 12:42:38 p.m., a puff of smoke was observed and a third OPP officer in line threw something, and a puff of smoke came from it. [3]
Figure 4 - Screenshot of video showing arrival of officers in a grey van and a puff of smoke from a distractionary device
Figure 5 - Screenshot from video showing officers chasing the Complainant into a wooded area with a second puff of smoke visible in the upper left corner of the image
The Complainant was seen to climb a steep embankment and onto train tracks with the OPP officers running behind him. The Complainant stumbled and ran east along the tracks, eventually falling. He then removed his backpack and threw it northbound into the woods, after which he began running east along the tracks. A short time later, the Complainant stopped and knelt on the ground. Two OPP officers approached and pushed him onto his stomach, and he was then handcuffed.
Figure 6 - Screenshot from video depicting the Complainant falling on the railway tracks
Figure 7 - Screenshot from video depicting the Complainant throwing backpack into a forested area
Figure 8 - Screenshot from video depicting the Complainant being handcuffed after he was pushed to his stomach
At 12:46:25 p.m., an OPP officer announced that an ARWEN had been deployed but it was unknown if the rounds contacted the Complainant.
At 12:48:34 p.m., an OPP officer was seen picking up the Complainant’s discarded backpack. About two minutes later, it was announced that a Glock 9mm gun was located within.
Figure 9 - Screenshot of video depicting officer picking up the Complainant's backpack
The video concluded at 12:58:46 p.m.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between March 17, 2023, and May 10, 2023:- The Complainant – General Occurrence / Arrest Report;
- The Complainant – Crown Brief Synopsis;
- List of Interacting Officers;
- Notes – WO #4;
- Notes – WO #5;
- Situation Mission Execution Administration and Logistics and Command and Communications Plan;
- Aerial surveillance video;
- Policy – Arrest;
- Policy – Use of Force; and
- Training records – The SO.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may briefly be summarized. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the morning of March 13, 2023, a TRU team, including the SO, was mobilized to assist in the arrest of the Complainant. The Complainant was wanted on warrants for assault and weapons charges, and the OPP SCU had him under surveillance that day. He had been located in the St. Catharines area operating a pick-up truck and was subsequently tracked travelling east towards the Oshawa area.
At about 12:30 p.m., the TRU team received word that police aerial surveillance was reporting the Complainant’s pick-up stopped on the south shoulder of Highway 401. Further reports indicated he had exited the vehicle, run south across train tracks and was now on the north side of Sam Colonel Drive. The TRU team, together in a van, travelled to the area of 900 Sam Colonel Drive, where they confronted the Complainant.
On seeing the van stop and officers exiting the vehicle towards him, the Complainant ran north into a field carrying a backpack. He was running up a hill towards train tracks when he was struck multiple times by ARWEN rounds. Undeterred by the impacts, the Complainant made it to the railway lines, fleeing east a short distance along the tracks before running out of steam and surrendering to the pursuing officers. Prior to doing so, he had ditched the backpack he was carrying into an area north of the tracks.
The SO was the officer who had fired the ARWEN. He had discharged a total of four rounds as he chased after the Complainant.
The backpack was recovered at the scene and found to contain a loaded semi-automatic Glock pistol.
In the morning of March 13, 2023, a TRU team, including the SO, was mobilized to assist in the arrest of the Complainant. The Complainant was wanted on warrants for assault and weapons charges, and the OPP SCU had him under surveillance that day. He had been located in the St. Catharines area operating a pick-up truck and was subsequently tracked travelling east towards the Oshawa area.
At about 12:30 p.m., the TRU team received word that police aerial surveillance was reporting the Complainant’s pick-up stopped on the south shoulder of Highway 401. Further reports indicated he had exited the vehicle, run south across train tracks and was now on the north side of Sam Colonel Drive. The TRU team, together in a van, travelled to the area of 900 Sam Colonel Drive, where they confronted the Complainant.
On seeing the van stop and officers exiting the vehicle towards him, the Complainant ran north into a field carrying a backpack. He was running up a hill towards train tracks when he was struck multiple times by ARWEN rounds. Undeterred by the impacts, the Complainant made it to the railway lines, fleeing east a short distance along the tracks before running out of steam and surrendering to the pursuing officers. Prior to doing so, he had ditched the backpack he was carrying into an area north of the tracks.
The SO was the officer who had fired the ARWEN. He had discharged a total of four rounds as he chased after the Complainant.
The backpack was recovered at the scene and found to contain a loaded semi-automatic Glock pistol.
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 March 13, 2023, the Complainant was struck by rounds fired by an OPP officer from an ARWEN just prior to his arrest. In the ensuing SIU investigation of the incident, 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 use of his ARWEN.
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 SO and the other TRU members were within their rights in pursuing the Complainant to take him into custody. There were warrants in effect at the time authorizing his arrest.
With respect to the SO’s use of the ARWEN in aid of the Complainant’s arrest, I am satisfied that it constituted reasonable force. The Complainant was known to carry firearms and was wanted for arrest on serious charges. His capture, therefore, was a matter of pressing public interest. When the Complainant ran from the police, the officers were entitled to resort to a measure of force to prevent his escape. The use of the ARWEN would seem a reasonable tactic in the circumstances as it stood to temporarily immobilize the Complainant without inflicting grievous bodily harm or death. As it was, the Complainant was able to prolong his flight a short distance following the discharges, but that too is some evidence that the use of the weapon by the officer was not excessive.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully when he fired his ARWEN, there is no basis for proceeding with criminal charges in this case. The file is closed.
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 SO and the other TRU members were within their rights in pursuing the Complainant to take him into custody. There were warrants in effect at the time authorizing his arrest.
With respect to the SO’s use of the ARWEN in aid of the Complainant’s arrest, I am satisfied that it constituted reasonable force. The Complainant was known to carry firearms and was wanted for arrest on serious charges. His capture, therefore, was a matter of pressing public interest. When the Complainant ran from the police, the officers were entitled to resort to a measure of force to prevent his escape. The use of the ARWEN would seem a reasonable tactic in the circumstances as it stood to temporarily immobilize the Complainant without inflicting grievous bodily harm or death. As it was, the Complainant was able to prolong his flight a short distance following the discharges, but that too is some evidence that the use of the weapon by the officer was not excessive.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully when he fired his ARWEN, there is no basis for proceeding with criminal charges in this case. The file is closed.
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]
- 3) The puff of smoke came from the two fired distractionary devices. [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.