SIU Director’s Report - Case # 23-PFP-105
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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 at 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 discharge of a firearm at a 44-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On April 11, at about 12:55 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information. On April 10, 2023, Oxford County OPP were involved in a ‘barricaded person’ incident in Norwich. OPP tactical officers were engaged in the incident at a residence on Dufferin Street. The Complainant was inside the home and believed to be cutting himself. At 12:30 a.m., April 11, 2023, OPP Tactics and Rescue Unit (TRU) officers entered the home and deployed an Anti-riot Weapon ENfield (ARWEN) launcher and a police dog. The Complainant was arrested for criminal offences as well as apprehended under the Mental Health Act, and taken to the Woodstock General Hospital (WGH).
The Team
Date and time team dispatched: 04/11/2023 at 7:30 a.m.Date and time SIU arrived on scene: 04/11/2023 at 8:44 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
44-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on April 11, 2023.
Civilian Witnesses
CW Interviewed The civilian witness was interviewed on April 14, 2023.
Subject Officials
SO Declined an interview, as is the subject official’s legal right; notes receivedWitness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on April 17, 2023, and April 18, 2023.
Evidence
The Scene
The events in question transpired in and around a residence on Dufferin Street, Norwich.At the time of intake, the scene had been photographed by an OPP Scenes of Crime Officer (SOCO) officer and a decision made not to hold the scene.
Video/Audio/Photographic Evidence [1]
Cellphone Video #1
On April 17, 2023, video from the CW’s cellular telephone was received by the SIU. The video recorded the actions of the OPP at the scene. The footage captured OPP vehicles with their emergency equipment activated. A loudhailer was used by the OPP to deliver seven messages to encourage the Complainant to come out with empty hands. After no response, OPP TRU officers and an OPP dog were seen walking towards the residence. There was the sound of a bang and OPP called out, “[The Complainant], this the police.” After a short time, there was the sound of an ARWEN launcher being deployed followed by barking from the dog.
A subsequent video clip showed the Complainant being walked to a waiting ambulance, in handcuffs behind his back. There was a bandage on his left arm.
Cellphone Video #2
On April 15, 2023, a civilian submitted cellular video to the SIU. There were several video clips of the events prior to entry, but the material clips captured OPP TRU officers, and WO #1 with the OPP dog at the front door of the residence. Heard on the footage was, “[The Complainant], it’s the police.” An ARWEN launcher was deployed, and the Complainant could be heard swearing. There was barking from the OPP dog and further cursing. Shortly thereafter, the Complainant was seen being escorted out by OPP TRU officers through the front door.
OPP In-car Camera System (ICCS) Footage
None of the ICCS footage captured the Complainant, nor any of the events immediately surrounding the ARWEN discharge. Materials Obtained from Police Service
The SIU obtained the following records from the OPP Oxford Detachment (Tillsonburg) between April 13, 2023, and May 2, 2023:
- Notes of WO #1;
- Notes of WO #3;
- Notes of WO #2;
- Arrest Report;
- Event Details Report;
- Communications recordings;
- Occurrence Report;
- Supplementary Report;
- Witness List;
- ICCS footage;
- SOCO photographs; and
- Witness statement.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources: - The Complainant’s medical records from the WGH, received April 26, 2023;
- Video footage from a civilian, received April 15, 2023; and
- Video footage from the CW, received April 17, 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 chose not to interview with the SIU. He did authorize the release of his notes.
In the afternoon of April 10, 2023, after a report the Complainant was intending to shoot himself, OPP officers responded to a residence on Dufferin Street in Norwich. Officers set up containment around the address and a crisis negotiator was enlisted to attempt to resolve the situation peacefully. A loudhailer was used to encourage the Complainant to exit the address with his hands up. Later that evening, the police were eventually able to reach the Complainant on the phone.
The Complainant did not have a gun but had possession of a knife. He refused to exit the residence but did pick up a cellphone that police had left for him by the back door of the residence.
As the standoff continued into April 11, 2023, the police decided on a more proactive posture after learning that the Complainant had inflicted cuts to his neck and hands. A TRU team was directed to enter the residence and take the Complainant into custody.
The SO, a member of the TRU team, was the second into the unit. He was equipped with an ARWEN. With him were WO #1, WO #2, WO #3 and a police service dog. They encountered the Complainant in the kitchen. He was squatted down by some cabinets and holding a knife to the left side of his neck. The SO ordered the Complainant to drop the knife and then fired a single-round at close range. The ARWEN round struck the Complainant’s left thigh. The Complainant dropped the knife and was then bit in the left shoulder area by the dog and dragged prone on the floor.
The officers struggled for a period to control the Complainant’s arms but he was subdued and handcuffed behind his back.
Following his arrest, the Complainant was taken to hospital and diagnosed with several lacerations, the result of dog bites, and bruising where he had been struck by the ARWEN round.
In the afternoon of April 10, 2023, after a report the Complainant was intending to shoot himself, OPP officers responded to a residence on Dufferin Street in Norwich. Officers set up containment around the address and a crisis negotiator was enlisted to attempt to resolve the situation peacefully. A loudhailer was used to encourage the Complainant to exit the address with his hands up. Later that evening, the police were eventually able to reach the Complainant on the phone.
The Complainant did not have a gun but had possession of a knife. He refused to exit the residence but did pick up a cellphone that police had left for him by the back door of the residence.
As the standoff continued into April 11, 2023, the police decided on a more proactive posture after learning that the Complainant had inflicted cuts to his neck and hands. A TRU team was directed to enter the residence and take the Complainant into custody.
The SO, a member of the TRU team, was the second into the unit. He was equipped with an ARWEN. With him were WO #1, WO #2, WO #3 and a police service dog. They encountered the Complainant in the kitchen. He was squatted down by some cabinets and holding a knife to the left side of his neck. The SO ordered the Complainant to drop the knife and then fired a single-round at close range. The ARWEN round struck the Complainant’s left thigh. The Complainant dropped the knife and was then bit in the left shoulder area by the dog and dragged prone on the floor.
The officers struggled for a period to control the Complainant’s arms but he was subdued and handcuffed behind his back.
Following his arrest, the Complainant was taken to hospital and diagnosed with several lacerations, the result of dog bites, and bruising where he had been struck by the ARWEN round.
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.
Section 17, Mental Health Act -- Action by police officer
17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.
Analysis and Director's Decision
On April 11, 2023, the OPP contacted the SIU to report that one of their officers had fired an ARWEN at a male – the Complainant – in the course of his arrest. The SIU initiated an investigation naming the officer – the SO – 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 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 Complainant was contemplating suicide and in possession of a knife at the time of the ARWEN discharge. These and other factors gave the SO a legitimate basis to seek the Complainant’s apprehension under section 17 of the Mental Health Act.
As for the force used by the SO, namely, a single ARWEN discharge, I am satisfied it was legally justified. Approaching the Complainant to disarm him manually was a risky proposition. The Complainant was holding a knife at the time and could have used it to inflict injury on himself or the officers. On the other hand, the use of an ARWEN carried the potential of temporarily and safely neutralizing the Complainant from a safe distance. And that is precisely what occurred; the knife the Complainant was holding fell from his hand when the ARWEN round struck his leg, allowing the officers to take hold of the Complainant and arrest him. All that remained of the ARWEN strike was some bruising. [2]
In the result, as there are no reasonable grounds to conclude that the SO comported himself other than lawfully in his dealings with the Complainant, there is no basis for proceeding with criminal charges. The file is closed.
Date: August 9, 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 Complainant was contemplating suicide and in possession of a knife at the time of the ARWEN discharge. These and other factors gave the SO a legitimate basis to seek the Complainant’s apprehension under section 17 of the Mental Health Act.
As for the force used by the SO, namely, a single ARWEN discharge, I am satisfied it was legally justified. Approaching the Complainant to disarm him manually was a risky proposition. The Complainant was holding a knife at the time and could have used it to inflict injury on himself or the officers. On the other hand, the use of an ARWEN carried the potential of temporarily and safely neutralizing the Complainant from a safe distance. And that is precisely what occurred; the knife the Complainant was holding fell from his hand when the ARWEN round struck his leg, allowing the officers to take hold of the Complainant and arrest him. All that remained of the ARWEN strike was some bruising. [2]
In the result, as there are no reasonable grounds to conclude that the SO comported himself other than lawfully in his dealings with the Complainant, there is no basis for proceeding with criminal charges. The file is closed.
Date: August 9, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) 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]
- 2) Though not the focus of the SIU investigation, it would not appear that the dog bites constituted unlawful force. At the time the dog was let loose on the Complainant, the knife was still within his reach and he had yet to be taken into custody. It made sense, in the circumstances, to have the dog assist in taking the Complainant fully to the ground until he could be secured in handcuffs. [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.