SIU Director’s Report - Case # 23-PFP-160
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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 40-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 40-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On May 1, 2023, at 12:42 p.m., the Ontario Provincial Police, Kenora Detachment, contacted the SIU with the following information. At 10:22 a.m. (Central Time), OPP officers were conducting foot patrol in McLeod Park in the City of Kenora when they observed the Complainant lying across live railway tracks. Officers approached the Complainant, who stood up and charged at officers brandishing a knife. Officers drew their firearms and the Complainant fled. One officer retreated to his cruiser where he obtained an Anti-riot Weapon ENfield (ARWEN). A short time later, the Complainant was located and, again, he charged at officers while holding a knife. An ARWEN was discharged. The Complainant ran to the middle of a train trestle, and additional resources were summoned. The Complainant surrendered a short time later and was arrested for several criminal offences. He had not suffered any serious injuries.
The Team
Date and time team dispatched: 05/01/2023 at 2:19 p.m.Date and time SIU arrived on scene: 05/04/2023 at 4:00 p.m.
Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
40-year-old male; interviewedThe Complainant was interviewed on May 2, 2023, and May 4, 2023.
Civilian Witness (CW)
CW Interviewed The civilian witness was interviewed on May 10, 2023.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal right.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed between May 7, 2023, and May 16, 2023.
Evidence
The Scene
The events in question transpired in McLeod Park, Kenora, and, more specifically, on railway tracks and bridge in the area of the park.On May 2, 2023, at 2:15 p.m., a SIU forensic investigator (FI) attended McLeod Park in Kenora. The park was a typical urban park with grass areas and pathways. It had a small play area and a gravel parking lot. There were two sets of railway tracks that travelled east / west located on the north side of the park. The train tracks led to two bridges overtop a river. There was no evidence observed at the scene.
Figure 1 - Train bridge at McLeod Park, Kenora
Physical Evidence
On May 2, 2023, a SIU FI attended the OPP Kenora Detachment. At that time, he met with the Complainant, who was awaiting his bail hearing. He refused to allow photographs to be taken of where the ARWEN projectile contacted his body. The SIU FI examined the ARWEN weapon that had been discharged. It was fully loaded with five, AR-1 cartridges. The SIU FI reviewed a sealed OPP evidence bag. He opened it and observed one AR-1 cartridge case and the polymer projectile. This was reportedly the projectile and cartridge case that had been fired at the Complainant.
The items were photographed and retained as exhibits.
Figure 2 – ARWEN
Figure 3 - ARWEN projectile
Video/Audio/Photographic Evidence [2]
Video Footage – The CW
On May 2, 2023, at 2:13 p.m., seven audio/video recordings were provided to the SIU by the OPP, which had received them from the CW. The recordings were taken approximately 30 metres from the incident location [middle of train bridge]. The recordings did not reveal a date or time, and showed two OPP officers standing on the bridge above and to the right of the Complainant who was seated on a steel girder below. The verbal exchanges between OPP officers and the Complainant could not be heard.
Communications Recordings
On May 15, 2023, the OPP provided the SIU with communications recordings and the computer-assisted dispatch (CAD) record related to the incident under investigation.On May 1, 2023, starting at about 11:22 a.m., WO #2, WO #3, the SO and WO #1 were reportedly on foot patrolling in McLeod Park. They came across the Complainant lying on train tracks and were concerned for his well-being. The SO and WO #1 approached the Complainant, who was in possession of a knife and stick. A ‘stop train’ order was requested.
Starting at about 11:27 a.m., the Complainant walked towards the officers with knife in hand. He threw rocks and railway spikes at them. The SO deployed one round from an ARWEN, but this had no effect and the Complainant ran onto the train bridge, where he climbed over the railing.
A request was made to have the Fire Department stage below in the event a water rescue was needed.
Starting at about 11:29 a.m., an OPP negotiator attended the scene.
Starting at about 12:00 p.m., the Complainant dropped the knife, and he was given a cup of hot chocolate.
The Complainant was subsequently taken into custody, transported to the OPP detachment, and held for a bail hearing.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP Kenora Detachment between May 5, 2023, and May 16, 2023:- General Occurrence Report;
- CAD;
- Interaction List involving the Complainant;
- Notebook entries – WO #2;
- Notebook entries – WO #3;
- Notebook entries – WO #1;
- ARWEN Training / Requalification Records – SO;
- Scenes of Crime Officer photographs;
- Communications recordings; and
- Civilian witness information.
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 or authorize the release of his notes.
In the morning of May 1, 2023, the SO and WO #1, on foot patrol in McLeod Park, Kenora, came across the Complainant lying on live railway tracks. Concerned for his well-being, the officers approached the Complainant to check on his welfare. As they neared, the Complainant rose to his feet and advanced on the officers holding a knife. The officers drew their firearms and the Complainant turned away.
Additional officers – WO #2 and WO #3 – arrived on scene. Together, the officers approached the Complainant, who was then a short distance away on a railway bridge over a body of water. The Complainant appeared of unsound mind. He attempted to tie the knife around his right hand with some string and paced on the bridge, at one point advancing on the officers and throwing rocks and a railway spike in their direction. The SO, armed with an ARWEN, fired the weapon at the Complainant during one of his advances, striking him in the lower back.
Following the ARWEN discharge, the Complainant, still in possession of the knife, climbed over the railing of the bridge and sat on the ledge. Other officers arrived on scene and negotiations followed. After a period of time, the Complainant threw the knife and a pipe he had been holding into the water below, and climbed back onto the bridge. He was arrested and taken into police custody.
In the morning of May 1, 2023, the SO and WO #1, on foot patrol in McLeod Park, Kenora, came across the Complainant lying on live railway tracks. Concerned for his well-being, the officers approached the Complainant to check on his welfare. As they neared, the Complainant rose to his feet and advanced on the officers holding a knife. The officers drew their firearms and the Complainant turned away.
Additional officers – WO #2 and WO #3 – arrived on scene. Together, the officers approached the Complainant, who was then a short distance away on a railway bridge over a body of water. The Complainant appeared of unsound mind. He attempted to tie the knife around his right hand with some string and paced on the bridge, at one point advancing on the officers and throwing rocks and a railway spike in their direction. The SO, armed with an ARWEN, fired the weapon at the Complainant during one of his advances, striking him in the lower back.
Following the ARWEN discharge, the Complainant, still in possession of the knife, climbed over the railing of the bridge and sat on the ledge. Other officers arrived on scene and negotiations followed. After a period of time, the Complainant threw the knife and a pipe he had been holding into the water below, and climbed back onto the bridge. He was arrested and taken into police custody.
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 May 1, 2023, the OPP contacted the SIU to report that one of their officers had earlier that day fired an ARWEN at a male – the Complainant. The officer – 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 discharge of his firearm at the Complainant.
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 subject to arrest at the time of the ARWEN discharge. He had effectively committed an assault on officers when he advanced in their direction brandishing a knife.
The use of the ARWEN by the SO, in my view, constituted reasonably necessary force in aid of the Complainant’s arrest. The Complainant had repeatedly been asked to drop the knife and refused to do so while on the bridge. Instead, he continued to behave with hostility towards the officers, encroaching on them with the knife and throwing things in their direction. On this record, the force used by the SO would appear a legitimate tactic to temporarily neutralize the Complainant from a safe distance without the infliction of serious injury. While the ARWEN round did not dispossess the Complainant of the knife, it did thwart his continued advance on the officers. Fortunately, following a period of talks between the Complainant and police, he was persuaded to disarm himself and surrender peacefully to police.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law throughout his engagement with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: August 29, 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 subject to arrest at the time of the ARWEN discharge. He had effectively committed an assault on officers when he advanced in their direction brandishing a knife.
The use of the ARWEN by the SO, in my view, constituted reasonably necessary force in aid of the Complainant’s arrest. The Complainant had repeatedly been asked to drop the knife and refused to do so while on the bridge. Instead, he continued to behave with hostility towards the officers, encroaching on them with the knife and throwing things in their direction. On this record, the force used by the SO would appear a legitimate tactic to temporarily neutralize the Complainant from a safe distance without the infliction of serious injury. While the ARWEN round did not dispossess the Complainant of the knife, it did thwart his continued advance on the officers. Fortunately, following a period of talks between the Complainant and police, he was persuaded to disarm himself and surrender peacefully to police.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law throughout his engagement with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: August 29, 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.