SIU Director’s Report - Case # 23-PFD-174
Warning:
This page contains graphic content that can shock, offend and upset.
Contents:
Mandate of the SIU
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
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 66-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On May 9, 2023, at 8:31 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.On May 9, 2023, at approximately 7:30 a.m., OPP were called to the area of École Secondaire Catholique on Duncan Avenue South, Kirkland Lake, for a shirtless male carrying a machete. Officers encountered the male in the school parking lot. The male would not comply with officer demands to drop the knife. He was uttering incoherent remarks and approached the officers. A conducted energy weapon (CEW) was deployed and started to be effective until a probe lost contact. The male, still armed with the machete, then approached an officer and would not comply with demands to drop the weapon. The officer shot the male with his pistol. The male was transported to Blanche River Hospital in Kirkland Lake where he was pronounced deceased at 8:09 a.m. The male had since been identified as the Complainant. The scene was being held by the OPP and involved officers were returning to the detachment to complete their notes.
The Team
Date and time team dispatched: 05/09/2023 at 11:48 a.m.Date and time SIU arrived on scene: 05/09/2023 at 4:33 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 3
Affected Person (aka “Complainant”):
66-year-old male, deceasedCivilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
The civilian witnesses were interviewed between May 9, 2023, and May 23, 2023.
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on May 17, 2023.
Evidence
The Scene
The events in question transpired in the circular driveway of École Secondaire Catholique L’Envolée du Nord, 52 Duncan Avenue South, Kirkland Lake. SIU forensic investigators (FIs) attended the scene on May 9, 2023, from 7:00 p.m. The scene was well protected with police banner tape and by uniformed officers. The scene was examined, photographed and 3-D scanned. Physical evidence was located and collected.
The school was located on the east side of Duncan Street South and the driveway led east to the front entrance before looping back. There was only room for a few vehicles to be parked. The driveway was used as a quick drop-off or pick-up location.
There were three police vehicles within the scene. All three vehicles had emergency lighting and were marked as OPP vehicles. There were two fully marked OPP vehicles in the driveway facing east towards the school. They were parked end to end next to the north curb. The third OPP vehicle was parked on the road but had reportedly been moved after the incident.
Figure 1 - École Secondaire Catholique L’Envolée with two OPP vehicles and several yellow evidence markers in the driveway.
South of the two OPP vehicles in the driveway was where much of the evidence was located. Preliminary examination of the scene noted two silver cartridge cases, evidence of CEW deployment (CEW cartridges, anti-felon identification (AFID) tags, probes, and blast doors), and a large machete which was broken where the blade met the handle. There was an intermittent trail of blood. Most of the blood was in the immediate area where the evidence was located, but there was also an area of blood approximately 25 metres east of the evidence.
Figure 2 - Blade of machete.
Figure 3 - Broken handled of machete.
Scene Diagram
Physical Evidence
The following items were collected by the SIU from the scene:- Two WIN 9mm Luger cartridge cases;
- Blade of a machete. It was rusty and had chipped paint on the metal. It measured 40.6 cm (16 inches). It had broken away from the handle;
- The wood handle of the machete. It was in two pieces and the metal at the handle was bent. Fragments of the copper jacket portion of the projectile were embedded in the wood handle. It appeared that a bullet struck the metal where it meets the handle, breaking the blade and bending the metal before pieces of the bullet embedded in the wood handle;
- Three deployed CEW cartridge cases;
- One CEW cartridge case;
- Medical debris;
- Six CEW blast doors;
- Two CEW probes;
- CEW debris – AFIDs bearing serial numbers of three deployed cartridge cases;
- Blood swabs; and
- Copper jacket fragment and lead fragment.
- Duty belt;
- One sets of handcuffs.
- A collapsible baton (ASP);
- Oleoresin capsicum spray;
- Glock 17M 9mm pistol;
- One Glock magazine with 15 – 9 mm cartridges with the headstamp “WIN 9 mm Luger”;
- A single 9 mm cartridge with the headstamp “WIN 9 mm Luger”; and
- Two Glock magazines each with 17 – 9 mm cartridges with the headstamp “WIN 9 mm Luger”.
Forensic Evidence
Firearms Report
On May 24, 2023, SIU FIs submitted two 9mm Lugar fired cartridges, a cartridge magazine, and a Glock 17M 9mm pistol to Centre of Forensic Sciences (CFS) for expert examination. The items submitted were the equipment of the subject official.On August 4, 2023, CFS provided a Firearms Report to SIU. The report confirmed that the pistol submitted, within the limits of practical certainty, had fired the cartridges located at the scene and submitted by SIU to CFS for examination.
Figure 4 - The SO's Glock 17M 9mm pistol.
CEW Data
Two CEWs were reportedly deployed in the course of the events in question. The data downloaded from Taser X2 CEW assigned to WO #2, indicated:
- At 7:36:02 a.m., [2] May 9, 2023, cartridge 1, a standard 25-foot cartridge, was deployed for five seconds.
- At 7:44:21 a.m., May 9, 2023, cartridge 1, a standard 25-foot cartridge, was deployed for two seconds.
- At 7:44:27 a.m., cartridge 2, a standard 25-foot cartridge, was deployed for six seconds.
Figure 5 - WO #2's Taser X2 CEW.
Video/Audio/Photographic Evidence [3]
The SIU searched for and obtained video records of relevance, as set out below.Video Footage Summary – École Secondaire Catholique L’Envolée Du Nord
Video footage from five cameras on the building exterior was provided to SIU on May 9, 2023. The camera system was motion-activated, resulting in discontinuous footage. Moreover, there was a consistent lapse of 30 seconds from 7:27:00 a.m., to 7:27:30 a.m., on all camera angles that was explained as a possible problem with the server or network. As a result, no CEW deployments or firearm discharges were captured by the school surveillance. Starting at about 7:19:02 a.m., the Complainant was captured running west on Second Avenue East towards Duncan Avenue South.
Starting at about 7:20:44 a.m., the Complainant walked south on Duncan Avenue South. He was wearing red shorts and had no shirt or shoes on. He held a long object in his right hand [now known to be a machete.]
Starting at about 7:20:45 a.m., the Complainant placed the machete on the ground next to a hydro pole and put his hands behind his back.
Starting at about 7:21:00 a.m., the Complainant picked up the machete with his right hand and walked south on Duncan Avenue South. The machete was pointed down to the ground and swung back and forth as the Complainant walked.
Starting at about 7:21:41 a.m., the Complainant placed the machete on the ground to his right side, sat down on the southside curb of a school driveway, and rested his arms across his knees.
Starting at about 7:25:17 a.m., the first police vehicle, a SUV, travelled southbound on Duncan Avenue South, turned left into the school driveway, and parked parallel to the northside curb.
Starting at about 7:25:20 a.m., the second police vehicle, a SUV, travelled southbound on Duncan Avenue South, turned left into the school driveway, and parked directly behind the first police vehicle.
Starting at about 7:25:32 a.m., a third police vehicle, a SUV, travelled southbound on Duncan Avenue South, and parked facing south on the west side of the street across from the school driveway.
Starting at about 7:26:08 a.m., a fourth police vehicle travelled south on Duncan Avenue South, and parked on the east shoulder perpendicular to the first two police vehicles, facing south.
Starting at about 7:26:52 a.m., WO #3 and WO #1 were captured standing in the middle of the school driveway facing south in front of the Complainant. WO #2 was at the front of the second police vehicle on the passenger side, and the SO was at the rear of the first vehicle. WO #1 and WO #3 appeared to have weapons drawn. Their arms were together and extended in front of their bodies at shoulder height.
Starting at about 7:27:01 a.m., all four police officers started to move forward, south towards the Complainant, who was still seated on the curb.
Starting at about 7:27:31 a.m., the Complainant walked east towards the school. He did not appear to be holding the machete. WO #3, WO #1, WO #2 and the SO followed behind him.
Starting at about 7:27:40 a.m., WO #1 came up behind the Complainant, placed his hands on his upper shoulder area and put his right leg in front of the Complainant’s left leg. The Complainant fell forward onto the ground.
Starting at about 7:27:42 a.m., WO #1 knelt on the ground to the west of the Complainant and WO #2 knelt to the east of him.
Starting at about 7:27:44 a.m., WO #1 turned his head down to the right as if speaking on a portable police radio, and WO #2 leaned over the Complainant.
Starting at about 7:27:59 a.m., the SO, WO #2 and WO #3 were all on the ground, leaning over the Complainant.
Starting at about 7:31:51 a.m., an ambulance travelled south on Duncan Avenue South, turned left into the school driveway, and parked to the east of the Complainant and the police officers on the ground.
Cell Phone Video Footage
The first video clip provided a view of two OPP SUV vehicles parked facing east in a school driveway with a third OPP vehicle parked facing south on the east side of Duncan Avenue South. The location of four OPP officers relative to the police vehicles was captured. From the left to the right of the video frame were the SO, WO #2, WO #1, and WO #3, each facing in a southern direction. All four police officers remained in their position until the 10-second mark of the video, when a crack is heard, followed by electrical sounds, identical to the deployment of a CEW.After the CEW deployment, the SO and WO #1 took several steps forward (south) away from the police cruisers. Both the SO and WO #1 had their arms extended forward in a position of a two-hand shooting stance.
The SO was positioned between the two SUV police vehicles parked on the school driveway. He was in a shooting stance, and appeared to be holding a black handgun. WO #1 was in a similar stance at the rear of the second SUV police vehicle parked in the driveway; however, the video frame did not provide a view of what he was holding.
WO #2 and WO #3 had most of their bodies blocked by police vehicles and no observations of their movement or actions were possible. No other persons were visible in the first video.
The second video commenced with the Complainant, wearing only red boxers, walking east on the driveway towards the school. WO #1 walked immediately behind the Complainant and WO #2 and the SO were to the left of the Complainant. At the five-second mark of the video, WO #1 and WO #2 re-holstered their pistols. At the six-second mark, WO #1 grabbed hold of both of the Complainant’s shoulders from the rear and used a leg to sweep the right leg of the Complainant. The Complainant then fell forward onto the southern driveway near the sidewalk.
WO #1 and WO #2 knelt beside the Complainant. None of the four police officers had firearms or conducted energy weapons visible in their hands.
Communications Recordings and Record of Computer-Assisted Dispatch (CAD)
On May 9, 2023, at 7:21:45 a.m., a 911 call was received from CW #7, who advised that a man [now known as the Complainant] was observed at Duncan Avenue South and Second Street, Kirkland Lake. He had no shirt and no shoes, and was only wearing shorts. He also had a large machete-style knife. When CW #7 stopped her vehicle to access her telephone, the Complainant hid the knife behind his back, then took off and ran south on Duncan Avenue South towards the French high school.At 7:23 a.m., the SO, WO #2, WO #3 and WO #1 were dispatched to investigate the matter.
The following police radio transmissions in relation to the incident began at 7:23:18 a.m.
Unit |
Elapsed Time |
Transmission |
Dispatcher |
9 seconds |
[The SO] |
The SO |
10 seconds |
Have received that call |
Dispatcher |
12 seconds |
10-4, just to broadcast the details, suspicious person call at the intersection of Duncan Avenue South and Second Street East. Complaint reporting a male at that intersection wearing no shirt, no shoes, appears to be carrying a large knife, possibly a machete. He hid the knife behind his back when the complainant stopped. Male has since taken off running south on Duncan. |
The SO |
39 seconds |
Ya, I got him sitting at the school here. The same guy from yesterday. |
WO #3 |
44 seconds |
Comm Centre, that will be the Complainant, he’s holding a machete. In the school parking lot. |
The SO |
53 seconds |
[The SO], advising I have one at gun point. He’s holding a large machete. |
Dispatcher |
58 seconds |
10-4 |
The SO |
59 seconds |
Shots fired, shots fired, we need EMS to my location right now |
Dispatcher |
1 minute4 seconds |
10-4 |
WO #1 |
1 minute 5 seconds |
Comms Centre, EMS en route, shots fired |
Dispatcher |
1 minute 9 seconds |
10-4, we are calling them now. Just one injured party? |
WO #1 |
1 minute 13 seconds |
Male down |
Dispatcher |
1 minute 16 seconds |
10-4 |
WO #1 |
1 minute 17 seconds |
Comms Centre, we’re doing emergency medical |
Dispatcher |
1 minute 24 seconds |
10-4 |
WO #1 |
1 minute 29 seconds |
If there is any other bodies at detachment, they can head this way. |
Dispatcher |
1 minute 48 seconds |
EMS is en route |
WO #1 |
1 minute 50 seconds |
Comms Centre, EMS to expedite |
Dispatcher |
1 minute 55 seconds |
10-4, they are enroute |
WO #1 |
2 minutes 5 seconds |
EMS on scene |
WO #1 |
2 minutes 37 seconds |
Comms Centre, [WO #1] we are just shutting down the area for the crime scene |
unknownmale |
2 minutes 47 seconds |
EMS is leaving the scene now |
Materials Obtained from Police Service
The SIU obtained the following records from the OPP Kirkland Lake Detachment between May 10, 2023 and May 29, 2023:- Record of CAD details;
- Call-signs for involved officers;
- Homicide Sudden Death Report;
- Notes-WO #2;
- Notes-WO #1;
- Notes-WO #3;
- Occurrence Details and Reports;
- Communications recordings;
- SIU Request Training Records – the SO;
- Temiskaming Mobile Crisis Rapid Response Team Protocol; and
- CEW data.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources: - Scrapbook notes of the Complainant;
- Firearms Report from the CFS; and
- Pre-Autopsy Report Revised
Incident Narrative
At about 7:20 a.m., May 9, 2023, OPP officers arrived in the area of École Secondaire Catholique L’Envolée Du Nord, a high school on the east side of Duncan Avenue South, south of 2nd Street. They were there following a 911 call to police made by a motorist – CW #7. CW #7 had observed a shirtless and shoeless man, wearing only underwear, carrying a machete near the school.
The Complainant was the male with the machete. He had made his way to the school and taken a seat on the southside curb of the school’s circular driveway, metres away from the roadway and chain link fence, the machete still in his possession. He was in that position upon the officers’ arrival.
The SO was the first officer on scene, bringing his police SUV to a stop by the northside curb of the circular driveway, opposite the Complainant. WO #2 was right behind him, parking their SUV right behind his. The officers exited and, from the driver’s sides of their vehicles, engaged the Complainant, directing him to drop the machete. They were soon joined by WO #1 and WO #3, the former having stopped his cruiser facing south along the east side of Duncan Avenue South, just north of the driveway, the latter having parked across from the driveway on the west side of the road.
The Complainant was of unsound mind at the time. He spoke incoherently and occasionally waved the machete above his head.
The four officers lined up side-by-side by the passenger’s sides of the police SUVs on the driveway and started to move towards the Complainant. The SO was the furthest east in formation. To his right, in order from east to west, were WO #2, WO #1 and WO #3. The SO and WO #3 had their guns out, and WO #1 and WO #2 had their CEWs drawn. The plan was to ‘Taser’ The Complainant, with lethal force at the ready in case it was needed.
As WO #1 neared to within three or four metres of the Complainant, he fired his CEW. The discharge had no effect on the Complainant, who appeared to swat one or more of the weapon’s probes from his chest with his left arm. A second CEW deployment moments later by WO #1 appeared to incapacitate the Complainant, as he fell onto his back, but only briefly. The Complainant again appeared to dislodge one or more of the probes and sat back up. A third and final CEW discharge, this time from WO #2, was also ineffective.
Following the last CEW discharge, the Complainant stood up and started to advance in the direction of the SO and WO #2, the machete in his right hand and at chest level. The officers continued to direct the Complainant to drop the weapon. As he neared to within two to three metres of the SO, the officer fired his gun twice in quick succession. One of the bullets struck the machete and broke off the blade from the handle. The other pierced the Complainant’s upper right chest.
After the shooting, the Complainant started to walk eastward in the direction of the school. WO #1 approached him from behind and tripped him to the ground. The officers began to administer emergency first-aid and called for an ambulance.
The Complainant was taken from the scene in ambulance to hospital and pronounced deceased at 8:09 a.m.
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.
Section 88(1), Criminal Code -- Possession of Weapon for Dangerous Purpose
88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.
Analysis and Director's Decision
The SO was in the lawful execution of his duties when he engaged the Complainant on the high school driveway. Given what he knew of the 911 call received by police, and his own observations of the Complainant, the officer had every reason to be concerned about public safety, and had grounds to take the Complainant into custody for ‘weapons dangerous’ pursuant to section 88(1) of the Criminal Code.
Though the SO did not interview with the SIU, I am satisfied that he reasonably apprehended an actual or threatened assault on the part of the Complainant when he fired his weapon. That inference is supported by the accounts of the other officers on scene, each of whom, similarly situated to the SO, said they believed themselves and others to be a risk of grave harm by the Complainant. It is also supported by the circumstances that confronted the SO, namely, the advance of a male holding a machete – a weapon capable of inflicting grievous bodily harm and death.
The force the SO chose to defend himself – two gunshots – was reasonable in the circumstances. He and the other officers on scene had repeatedly directed the Complainant to drop the weapon he was holding, to no avail. The officer had also seen the Complainant unaffected by three CEW discharges. In the circumstances, the Complainant constituted a real and present danger to the lives of the SO and his colleagues as he advanced upon them wielding the machete in his right hand. Withdrawal or retreat were not viable alternatives given the speed with which events unfolded and the presence of third-parties in the area, including the anticipated arrival of school-goers. Nor does it appear that the police missed a chance to deploy their mobile crisis response team to the scene, which pairs officers with mental health professionals with a view to defusing and de-escalating police-citizen encounters involving a mental health component. The presence of a weapon in the hands of the Complainant and the volatility of the situation effectively precluded that option. On this record, I am unable to reasonably conclude that the SO acted with excess when he chose to meet a threat of lethal force with a resort to lethal force of his own.
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 when he shot the Complainant, there is no basis for proceeding with charges against the officer. The file is closed.
Date: September 6, 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 times are derived from the internal clocks of the weapons, and are not necessarily synchronous between weapons and with actual time. [Back to text]
- 3) 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.