SIU Director’s Report - Case # 22-OFD-264
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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 death of a 25-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 death of a 25-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On October 10, 2022, at 2:12 a.m. the York Regional Police (YRP) notified the SIU of an injury to the Complainant. According to the YRP, on October 9, 2022, at 11:50 p.m., YRP officers attended Universal Eventspace, 6250 Vaughan Valley Boulevard, for a male reportedly in possession of a firearm, which had been brandished. One of the YRP officers discharged their C8 carbine at the Complainant, striking him in the thigh. The Complainant had been taken to Sunnybrook Health Sciences Centre and, at the time of notification, was in surgery.
The Team
Date and time team dispatched: 10/10/2022 at 2:39 a.m.Date and time SIU arrived on scene: 10/10/2022 at 5:20 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators (FIs) assigned: 3
Affected Person (aka “Complainant”):
25-year-old male; deceasedCivilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Not interviewed; declined
CW #8 Interviewed
The civilian witnesses were interviewed between October 10, 2022, and December 21, 2022.
Subject Officials (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on January 17, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Not interviewed; notes received and reviewed
WO #6 Interviewed
WO #7 Not interviewed; notes received and reviewed
WO #8 Not interviewed; notes received and reviewed
WO #9 Not interviewed; notes received and reviewed
The witness officials were interviewed between October 12, 2023, and October 18, 2022.
Investigative Delay
Delay was incurred in the investigation owing to the complexities of the investigation, the volume of evidence collected, workload pressures, and the necessity of waiting for the Report of Postmortem Examination. Evidence
The Scene
The events in question occurred in and around the main ballroom of the Universal Eventspace, 6250 Highway 7, Vaughan. On Monday, October 10, 2022, at 5:20 a.m., SIU investigators arrived at the venue.
Figure 1 - The front entrance of Universal Eventspace
Universal Eventspace was a large event centre. There was an elevated stage set-up on the west wall, and there were food vendors and bars serving alcoholic beverages. A concert ran at the facility on the date in question from 3:00 to 11:00 p.m.
The interaction between the Complainant and YRP officers commenced in the lobby by the southside front doors, and then progressed into the Studio 4 main ballroom.
Figure 2 - Interior of the main ballroom
Scene Diagram
Physical Evidence
Significant items of evidence collected during the investigation included: - The SO’s 5.56 x 45mm calibre Colt model C8 semi-automatic rifle.
Figure 3 - The SO's C8 rifle
- Glock Model 26 semi-automatic pistol recovered near the Complainant. The pistol had a 9mm Luger unfired cartridge in the chamber and nine 9mm Luger unfired cartridges in the ten-capacity seated magazine.
Figure 4 - The Glock pistol recovered near the Complainant
Figure 5 - Photograph of scene depicting where the Glock firearm was recovered
Forensic Evidence
Centre of Forensic Sciences (CFS) Biology Report
SIU FIs submitted a swab of the grip of the recovered Glock 26 pistol, and a control sample of the Complainant’s blood/serum to CFS to explore if DNA profiles could be developed to determine if he could be excluded as a contributor.
The CFS Biology Report, dated December 10, 2022, indicated there was DNA from three people located, including at least one male. The conclusion as provided by the Forensic Scientist was as follows:
The STR DNA results are estimated to be greater than one trillion times more likely if they originate from the Complainant and two unknown people than if they originate from three unknown people unrelated to him.
Figure 5 - Photograph of scene depicting where the Glock firearm was recovered
- Blood pool behind the stage, believed to be final resting place of the Complainant.
- Bullet hole from the SO’s C8 rifle. The discharged bullet was recovered from behind the wall by YRP and provided to SIU.
- A discharged bullet from the SO’s C8 rifle was recovered on the ground near the black disposable gloves. This was recovered by YRP and provided to SIU.
- Two discharged bullets from the SO’s C8 rifle were recovered from the Complainant during the autopsy and collected by SIU.
- Four discharged cartridge cases from the SO’s C8 rifle were collected by the SIU.
Forensic Evidence
Centre of Forensic Sciences (CFS) Biology Report
SIU FIs submitted a swab of the grip of the recovered Glock 26 pistol, and a control sample of the Complainant’s blood/serum to CFS to explore if DNA profiles could be developed to determine if he could be excluded as a contributor. The CFS Biology Report, dated December 10, 2022, indicated there was DNA from three people located, including at least one male. The conclusion as provided by the Forensic Scientist was as follows:
The STR DNA results are estimated to be greater than one trillion times more likely if they originate from the Complainant and two unknown people than if they originate from three unknown people unrelated to him.
Firearms Report
SIU FIs submitted the SO’s C8 rifle, four fired cartridge cases, and four damaged bullets to CFS for examination. The request was to determine if the four recovered discharged cases recovered at Universal Eventspace, along with the four recovered bullets (two from Universal Eventspace and two from the autopsy of the Complainant) matched the SO’s C8 rifle. The CFS Firearms Report, dated January 31, 2023, was received by SIU confirming the C8 rifle matched the four discharged cases and the four bullets.
Expert Evidence
Report of Postmortem Examination
The pathologist at autopsy concluded that the Complainant’s death was attributable to “gunshot wounds of torso”.The Complainant had suffered five penetrating and perforating gunshot wounds:
- One wound was located above the right hip. The bullet travelled upwards and right to left, and was found lodged in the left chest.
- One wound was located lateral to the right hip. The bullet travelled upwards and right to left, and was found lodged in the left flank.
- One wound was located inferior to the right gluteal fold. The bullet travelled downwards and back to front, and exited the inferomedial right thigh.
- One wound was located on the lateral right thigh. The bullet travelled back to front without significant vertical or lateral deviation, and exited the central anterior right thigh.
- One wound was located on the inferomedial aspect of the left posterior thigh. The bullet travelled back to front, and exited the inferolateral left anterior thigh.
Video/Audio/Photographic Evidence [2]
Universal Eventspace Video Footage – Lobby and Ballroom Cameras
In the evening of October 9, 2023, the Complainant was captured walking in the lobby carrying two Styrofoam food containers in his left hand. His right hand was in the front pocket of his hooded sweatshirt. The SO and WO #3 entered the lobby from the left of the Complainant as he walked past. The SO pointed his C8 rifle at the Complainant as he approached from behind him on his left side.
The Complainant removed a firearm from the right pocket of his hooded sweatshirt and placed it in the front waistband or pocket of his pants.
Figure 6 - Screenshot of video depicting the Complainant holding a firearm in his right hand.
The Complainant looked over his left shoulder while appearing to hold the firearm through the front of his pants with his right hand. He began to run south towards the ballroom.
Figure 7 - Screenshot of video depicting the Complainant looking over his left shoulder at the SO while keeping his right hand in the area of his waistband, presumably holding the firearm he had placed there
The SO pushed the Complainant with the barrel of his C8 rifle as he turned right (west) into the Studio 4 ballroom doors. The Complainant dropped his food and continued to run into the ballroom.
The Complainant entered the Studio 4 ballroom from the lobby, followed by the SO. The Complainant appeared to be holding the firearm through the front of his pants with his left hand, while his right arm was raised upwards.
Figure 8 - Screenshot of video depicting the Complainant entering the ballroom with his left hand down by his waistband, presumably holding the firearm, and his right arm in the air
The Complainant ran between the mini stages towards the rear of the main stage.
The Complainant ran west and turned north towards the rear of the main stage. The SO followed closely behind. The Complainant’s right arm was raised while his left arm remained at his side.
Figure 9 - Screenshot of video depicting the Complainant running towards the main stage in the ballroom with his left hand near his waistband. The SO follows closely behind him
The Complainant’s body reeled back, and then stumbled, which is believed to be the moment he was first shot.
Figure 10 - Screenshot of video depicting the Complainant when he is believed to have been initially shot by the SO
Figure 10 - Screenshot of video depicting the Complainant when he is believed to have been initially shot by the SO
The Complainant rotated clockwise and collapsed behind the stage, out of the view of the camera.
In-car Camera System (ICCS) Footage
The ICCS video captured an officer driving to the scene post-incident, and then parking in the lot of Universal Eventspace. There was nothing captured on the video that was of evidentiary value or appeared to further the investigation.Police Radio Recordings
Starting at about 11:50 p.m., WO #2 radioed dispatch advising that they had been notified of a male [now known to be the Complainant] in the event centre with a firearm. A description was provided. WO #2 indicated that he, WO #1, and the SO were going inside. Starting at about 11:51 p.m., WO #5 told the officers not to enter. They were to position themselves at the exits and obtain licence plates of vehicles leaving.
WO #2 advised dispatch that the Complainant had a black handgun tucked in the front of his waist.
WO #3 advised dispatch they could see the Complainant and he was wearing a hoodie.
Starting at about 11:52 p.m., WO #2 advised, “Shots fired. Shots fired.”
WO #3 advised dispatch they needed Emergency Medical Services (EMS) as shots had been fired and the Complainant had been shot.
Starting at about 11:53 p.m., WO #2 advised the Complainant was down with a leg wound. He was bleeding badly and they were applying a tourniquet to his leg - they needed a rush on EMS.
Starting at about 11:54 p.m., WO #1 advised they had located a firearm and that they were in the main stage area.
Body-worn Camera (BWC) Footage – WO #9
WO #9’s BWC captured eight still photographic images of notepaper containing the names and contact information of employees working the venue. The images were reviewed and deemed to be of no value in furthering the investigation. Materials Obtained from Police Service
Upon request, the SIU received the following materials from the YRP between October 11, 2022, and January 24, 2023:- General Occurrence Report;
- Communications recordings;
- Record of computer-assisted dispatch;
- ICCS video footage;
- BWC video footage;
- Notes – WO #1;
- Notes – WO #3;
- Notes – WO #2;
- Notes – WO #6;
- Notes – WO #4;
- Notes – WO #5;
- Notes – WO #8;
- Notes – WO #9;
- Notes – WO #7;
- SO – Annual Use of Force Requalification, 2022;
- SO – C8 Patrol Rifle Requalification, 2022;
- Policy – Equipment Management;
- Policy – Containment and Response to Hostage Situations and Barricaded Persons who are Armed;
- Policy – Safe Storage of Police Firearms; and
- Policy – Use of Force.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Video footage from Universal Eventspace;
- Preliminary Autopsy Findings Report from the Ontario Forensic Pathology Service (OFPS);
- Report of Postmortem Examination, dated March 14, 2023, from the OFPS;
- Biology Report from CFS;
- Firearms Report from CFS.
Incident Narrative
The weight of the evidence collected by the SIU, including interviews with the SO and civilian and police eyewitnesses to the events in question, and video footage that captured the incident in parts, gives rise to the following scenario.
In the evening of October 9, 2022, the SO and other YRP officers were present in the parking lot of the Universal Eventspace, 6250 Highway 7, Vaughan, a banquet hall. The officers were in the area in the event policing services were needed as there was a large gathering at the premises for live music performances. At about 11:50 p.m., CW #5 exited the hall to speak with the officers. He explained that a male had displayed a gun in the lobby.
The male was the Complainant. He was in possession of a loaded Glock model 26 semi-automatic pistol.
The SO was among the officers present, together with WO #2, WO #6, WO #3 and WO #1. The officers radioed what they had been told and were directed by a sergeant to set up containment around the facility but not to enter. The SO armed himself with a C8 rifle and entered the vestibule of the venue where he remained for several minutes telling people to leave and preventing persons from entering. Standing beside him, WO #3 observed the Complainant in the lobby through the interior glass doors and pointed him out to the SO. The officers, joined by WO #1, decided to enter the lobby to apprehend the Complainant.
The Complainant was walking southward with containers of food in his left hand. He noticed the officers behind him but continued to walk even as they ordered him to stop, get down, and show his hands, removing a pistol from the right pocket of his hooded sweater and placing it in his right pant pocket or waistband as he did so. The Complainant quickened his pace and eventually turned right and entered a set of doors into the main hall.
The SO had caught up with the Complainant at the doors to the main hall and struck him in the back with the barrel of his C8 rifle. The impact caused the Complainant to stumble and momentarily lose balance, but he was able to right himself and continue into the hall. The SO followed at a distance of one to three metres, his rifle pointed at the Complainant, and WO #3 and WO #1 behind him, still shouting commands. With the Complainant now travelling northwesterly approaching the rear of the main stage that had been erected in the hall, the SO discharged his firearm twice.
The Complainant flinched and stumbled forward face-first to the floor behind the stage. Within moments, the Complainant rolled onto his left side and reached with his right hand towards his waistband, at which point he was shot twice more by the SO. [3] The Complainant raised his arms above his head and was handcuffed.
The officers on scene, including the SO, began to administer first-aid. Tourniquets were fastened to both of the Complainant’s legs. He was subsequently transported to hospital and passed away the next day.
The Complainant’s semi-automatic firearm was located by the southwest corner of the stage behind which he had run.
Cause of Death
The pathologist at autopsy concluded that the Complainant’s death was attributable to “gunshot wounds of torso”.
In the evening of October 9, 2022, the SO and other YRP officers were present in the parking lot of the Universal Eventspace, 6250 Highway 7, Vaughan, a banquet hall. The officers were in the area in the event policing services were needed as there was a large gathering at the premises for live music performances. At about 11:50 p.m., CW #5 exited the hall to speak with the officers. He explained that a male had displayed a gun in the lobby.
The male was the Complainant. He was in possession of a loaded Glock model 26 semi-automatic pistol.
The SO was among the officers present, together with WO #2, WO #6, WO #3 and WO #1. The officers radioed what they had been told and were directed by a sergeant to set up containment around the facility but not to enter. The SO armed himself with a C8 rifle and entered the vestibule of the venue where he remained for several minutes telling people to leave and preventing persons from entering. Standing beside him, WO #3 observed the Complainant in the lobby through the interior glass doors and pointed him out to the SO. The officers, joined by WO #1, decided to enter the lobby to apprehend the Complainant.
The Complainant was walking southward with containers of food in his left hand. He noticed the officers behind him but continued to walk even as they ordered him to stop, get down, and show his hands, removing a pistol from the right pocket of his hooded sweater and placing it in his right pant pocket or waistband as he did so. The Complainant quickened his pace and eventually turned right and entered a set of doors into the main hall.
The SO had caught up with the Complainant at the doors to the main hall and struck him in the back with the barrel of his C8 rifle. The impact caused the Complainant to stumble and momentarily lose balance, but he was able to right himself and continue into the hall. The SO followed at a distance of one to three metres, his rifle pointed at the Complainant, and WO #3 and WO #1 behind him, still shouting commands. With the Complainant now travelling northwesterly approaching the rear of the main stage that had been erected in the hall, the SO discharged his firearm twice.
The Complainant flinched and stumbled forward face-first to the floor behind the stage. Within moments, the Complainant rolled onto his left side and reached with his right hand towards his waistband, at which point he was shot twice more by the SO. [3] The Complainant raised his arms above his head and was handcuffed.
The officers on scene, including the SO, began to administer first-aid. Tourniquets were fastened to both of the Complainant’s legs. He was subsequently transported to hospital and passed away the next day.
The Complainant’s semi-automatic firearm was located by the southwest corner of the stage behind which he had run.
Cause of Death
The pathologist at autopsy concluded that the Complainant’s death was attributable to “gunshot wounds of torso”. 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 YRP officer in Vaughan on October 9, 2022. The following day, he succumbed to his wounds. In the SIU investigation that followed, 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 Complainant’s death.
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 was lawfully placed and engaged in the execution of his duty when he confronted the Complainant intending to take him into custody. Though he had been told by a superior officer to set up containment but not enter the facility, the officer explained that he disregarded that direction believing there was a real risk of gunplay by the Complainant and an urgent need for police intervention. Given what he knew of the Complainant’s earlier conduct, namely, that he had brandished a gun at persons in the hall, and his continued presence on the premises with other people around, the officer’s concerns were not without foundation.
I am satisfied that the SO acted to protect himself from a reasonably apprehended attack when he shot the Complainant. That was what the officer told the SIU, and his evidence is supported by the prevailing circumstances at the time. While the SO did not see the Complainant with a gun, the officer had reason to believe that the Complainant was in possession of a gun, a weapon he had apparently been willing to show and threaten persons with moments earlier. And the Complainant was now running away from the officer while keeping his left hand near his waistband, refusing to stop and show his hands as directed, and occasionally bringing his right hand down by his front waistband and looking back towards the officer. With respect to the first volley of two shots, the Complainant’s conduct would have given rise to a reasonable fear that he was retrieving a gun to use on the officer and that immediate defensive force was necessary. The same is true of the second volley of shots. Even though the Complainant was now on the floor, he was turning onto his left side and reaching again towards his waistband with his right hand when the SO fired. [4]
The nature and extent of the force used by the SO was also reasonable. If the SO reasonably feared, as I am satisfied he did with respect to each of his two volleys, that the Complainant was about to imminently retrieve a gun on his person and shoot him, then it is difficult to see what other defensive option the officer had available to preserve himself. There was, in that moment, an immediate need to incapacitate the Complainant, and the officer’s firearm was the only weapon available in the circumstances with the clearest potential of doing just that. It might be argued, harkening back to the initial direction given officers that they not confront the Complainant, that the SO ought never have placed himself in the position he did. Whatever the merits of that view, it must be said that there were also clear and demonstrable reasons for doing otherwise given the real threat that the Complainant represented. Thereafter, once the SO had engaged the Complainant, neither retreat nor withdrawal were viable options given the speed with which events unfolded and the presence of third-parties in the facility.
In the result, as there are no reasonable grounds to conclude that the SO comported himself other than within the limits of the criminal law when he shot the Complainant, there is no basis for proceeding with charges against the officer. The file is closed.
Date: July 12, 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 was lawfully placed and engaged in the execution of his duty when he confronted the Complainant intending to take him into custody. Though he had been told by a superior officer to set up containment but not enter the facility, the officer explained that he disregarded that direction believing there was a real risk of gunplay by the Complainant and an urgent need for police intervention. Given what he knew of the Complainant’s earlier conduct, namely, that he had brandished a gun at persons in the hall, and his continued presence on the premises with other people around, the officer’s concerns were not without foundation.
I am satisfied that the SO acted to protect himself from a reasonably apprehended attack when he shot the Complainant. That was what the officer told the SIU, and his evidence is supported by the prevailing circumstances at the time. While the SO did not see the Complainant with a gun, the officer had reason to believe that the Complainant was in possession of a gun, a weapon he had apparently been willing to show and threaten persons with moments earlier. And the Complainant was now running away from the officer while keeping his left hand near his waistband, refusing to stop and show his hands as directed, and occasionally bringing his right hand down by his front waistband and looking back towards the officer. With respect to the first volley of two shots, the Complainant’s conduct would have given rise to a reasonable fear that he was retrieving a gun to use on the officer and that immediate defensive force was necessary. The same is true of the second volley of shots. Even though the Complainant was now on the floor, he was turning onto his left side and reaching again towards his waistband with his right hand when the SO fired. [4]
The nature and extent of the force used by the SO was also reasonable. If the SO reasonably feared, as I am satisfied he did with respect to each of his two volleys, that the Complainant was about to imminently retrieve a gun on his person and shoot him, then it is difficult to see what other defensive option the officer had available to preserve himself. There was, in that moment, an immediate need to incapacitate the Complainant, and the officer’s firearm was the only weapon available in the circumstances with the clearest potential of doing just that. It might be argued, harkening back to the initial direction given officers that they not confront the Complainant, that the SO ought never have placed himself in the position he did. Whatever the merits of that view, it must be said that there were also clear and demonstrable reasons for doing otherwise given the real threat that the Complainant represented. Thereafter, once the SO had engaged the Complainant, neither retreat nor withdrawal were viable options given the speed with which events unfolded and the presence of third-parties in the facility.
In the result, as there are no reasonable grounds to conclude that the SO comported himself other than within the limits of the criminal law when he shot the Complainant, there is no basis for proceeding with charges against the officer. The file is closed.
Date: July 12, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- ) [Back to text]
- 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) Four spent cartridge cases from the SO’s C8 rifle were located at the scene, suggesting he discharged four rounds. The pathologist at autopsy, however, identified five entry wounds, suggesting the possibility that five rounds were fired, albeit the possibility exists that two of those wounds (most likely the left thigh wound and one of the right leg wounds) were caused by the same bullet. [Back to text]
- 4) This finding is based primarily on the SO’s evidence since the Complainant had fallen behind the stage and was out of view of the surveillance cameras after the first volley of shots. While I do not accept the SO’s evidence in its entirety, most material aspects of his statement are confirmed by the video evidence and the SO appeared to be an honest witness because he was candid about not seeing the Complainant brandishing the firearm. The Complainant rolling to his left on the floor before he was shot is also consistent with the physical evidence, which indicates the Complainant sustained two bullet wounds near his right hip which travelled right to left and upwards. [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.