SIU Director’s Report - Case # 23-OFD-203
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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 57-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On May 28, 2023, at 12:29 a.m., the Hamilton Police Service (HPS) contacted the SIU with the following information. On May 27, 2023, at 5:39 p.m., HPS received a call that a woman had been shot at an address on Jones Road, Stoney Creek. HPS officers attended and negotiated with the Complainant. He had shot his tenants, Tenant #1 and Tenant #2, both of whom were deceased. At 10:08 p.m., the Complainant shot at HPS Emergency Response Unit (ERU) officers. An ERU officer returned fire. At 11:52 p.m., the Complainant was pronounced deceased.
The Team
Date and time team dispatched: 05/28/2023 at 12:29 a.m.Date and time SIU arrived on scene: 05/28/2023 at 1:35 a.m.
Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 4
Affected Person (aka “Complainant”):
57-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 Interviewed
The civilian witnesses were interviewed between May 28 and 29, 2023.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on July 6, 2023.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
The witness officials were interviewed between May 28, 2023, and June 19, 2023.
Evidence
The Scene
The events in question transpired in and around a residence located on Jones Road, Hamilton.The residence consisted of a dwelling-house with attached garage. The front door of the residence was damaged and was resting on the ground. The door glass and metal insert were resting next to it. The door had been removed from its frame. The garage door was damaged, partially folded, and resting on the ground.
A HPS armoured vehicle (Tactical Vehicle) was in the driveway. The vehicle’s ramrod was extended. Two additional vehicles, a Chevrolet SUV and a pick-up truck, were in the driveway.
A fired cartridge case was resting on the ground near the driveway entrance, behind the Chevrolet. Two high-powered, small rifles were resting on the driveway. These items were resting near the front of the Chevrolet SUV.
Glass, blood, and spent cartridge cases were visible on the floor inside the residence in front door foyer area. The Complainant was resting on his front, in a pool of blood, and facing downwards.
A Glock pistol was resting near the arm rest of chair by a desk in a corner of the garage. A rifle was resting against another chair in the garage. Another rifle was resting on the floor and two rifle magazines on a table.
Scene Diagram
Physical Evidence
The scene, a residential property on Jones Road, was complex and involved the entire property. The homicides HPS were investigating had taken place in a defined area of the property.
The HPS interaction with the Complainant occurred at the front of the property.
SIU and HPS investigators determined that physical evidence relating to each agency’s investigations would be handled separately.
During the SIU scene examination, numerous fired cartridge cases, unfired cartridges, magazines, and firearms were identified as possibly being associated to the double homicide and the volley of shots directed towards the police. Two damaged bullets were located across the street. Firearms, ammunition, and cartridges, found in the area of the Complainant’s body, were collected.
The rifle that was in the SO’s possession and a single cartridge located outside the armoured vehicle were seized.
SIU collected cartridges, projectile fragments, and the involved firearms from the scene examination. A total of 50 exhibits were collected for examination, including:
- Scorpion Model: EVO 3S1 (x2);
- DPMS Panther Arms Model: LR-308; and
- Heckler and Koch Model: HK 416 Calibre: 5.56mm x 45 – the SO.
Figure 1 - Scorpion carbine pistols on the driveway
Figure 2 – The SO’s Heckler and Koch rifle
Figure 3 - DPMS Panther Arms rifle
Forensic Evidence
On June 15, 2023, SIU forensic investigators submitted 44 exhibits to the Centre of Forensic Sciences (CFS) for expert examination. The items submitted were cartridges, projectile fragments, and the involved firearms from the scene examination. On August 4, 2023, CFS provided a Firearms Report to SIU. The report concluded:
- The Scorpion carbine pistols and the DPMS Panther Arms rifle were prohibited firearms as defined in the Criminal Code of Canada.
- The modified detachable magazines suitable for use with the Scorpion carbine pistols were prohibited devices as defined in the Criminal Code of Canada.
- The Scorpion carbine pistols and the DPMS Panther Arms rifle were determined, within the limits of practical certainty, to have fired the cartridges located at the scene and submitted by SIU to CFS for examination.
- The Heckler and Koch, Model HK 416 rifle, was determined, within the limits of practical certainty, to have fired the cartridge located at the scene and submitted by SIU to CFS for examination.
Video/Audio/Photographic Evidence [1]
Cellular Telephone Video Footage from Witness #1
The SIU received the cell phone video footage from a civilian witness, Witness #1, on May 28, 2023, in connection to the incident under investigation.On May 27, 2023, the video captured two uniformed HPS officers crouched on the passenger side of a fully marked police sedan vehicle with their firearms drawn and held at the ready.
The camera angle shifted and a person with a light blue shirt and black vest that read, “Cadet,” knelt beside a truck.
The video footage did not capture any HPS interaction with the Complainant.
HPS Robot Video Footage
The SIU received the robot video footage from the HPS on June 6, 2023.On May 27, 2023, the footage opened with a view of the outer perimeter of the residence on Jones Road, Stoney Creek. The robot drove up the driveway past an armoured HPS vehicle.
The robot approached the open front door and pieces of the door and shattered glass that covered the porch. As the robot entered the residence into the foyer, the video captured a door to the rear of the foyer that had an arcing swath of blood on it. Two black rifles rested on the threshold. The robot arm grasped onto one of the rifles, removed it from the residence, and transported it to the front of the armoured police vehicle, where it was dropped. The robot returned to the residence and removed the second rifle in the same manner.
The robot returned to the residence and searched the area. The robot opened the door at the rear of the foyer, giving a view of the interior of the garage.
A man - the Complainant - rested on the floor on his stomach between a coffee table and a couch. There was blood in the area.
At 00:22:36 hrs of the video run time, a police officer asked the Complainant to make a movement and he would receive medical assistance. The Complainant did not move. The announcement was made two more times with no response from the Complainant.
The robot entered the garage and approached the Complainant. The robot arm grabbed the Complainant’s left foot with no response from the Complainant. The robot searched the garage area and located a black rifle resting against a bucket.
A second video clip captured the HPS ERU entering the residence.
Video Footage from the Residence
The SIU obtained the video footage from the home security system of the residence on June 7, 2023. The security system had cameras cover the entire property.Side Yard
On May 27, 2023, the video opened with a view of the side yard of the residence and a portion of the road. A man, Tenant #2, and a second man, the Complainant, used swift arm movements as they engaged in an argument. A woman, Tenant #1, entered from the left camera frame. The Complainant exited the side yard and entered another door to the backyard of the residence.
The Complainant entered the left camera frame, exited one area of the side yard, and entered the adjacent side yard with his right arm raised. The Complainant carried a firearm in his right hand. Tenant #2 raised his hands and looked towards the residence. The Complainant entered the left camera frame briefly with his right arm raised in front of him. The Complainant discharged his firearm twice at Tenant #2, and Tenant #2 fell from the camera view.
Tenant #1 ran into the camera frame to Tenant #2 and the Complainant continued to discharge his firearm. Tenant #1 emerged from behind a vehicle and ran onto the road. The Complainant followed her and continued to discharge his firearm. Tenant #1 fell to the ground. The Complainant stood over her and discharged his firearm, and Tenant #1 fell backward.
The Complainant walked back to the side yard and exited the left camera frame.
Front Yard
On May 27, 2023, the video opened with a view of Jones Road. Two HPS police vehicles and an unmarked sedan passed the residence. A marked vehicle (possibly, an ambulance) passed the residence.
Three fully marked HPS vehicles arrived and stopped in front of the residence. Police officers exited the vehicles and ran. Several police officers walked back and forth in front of the residence. A pick-up truck was captured parked to the right side of the driveway and two fully marked HPS police vehicles were parked on Jones Road.
A black armoured HPS vehicle slowly made its way into the left camera frame, turning into the driveway of the residence and lowering a ram at the front of the vehicle.
Intermittent flashes of light reflected on the trees and background area. A succession of flashes went off against the shrubbery and house in the distance. The HPS armoured vehicle accelerated towards the residence and reversed.
The HPS robot travelled up the driveway from behind the armoured vehicle and out of the right camera frame towards the residence. The armoured vehicle reversed the length of the driveway, lowered the ram, and accelerated into the house. The armoured vehicle reversed, pulling with it a piece of the garage door. The armoured vehicle reversed the length of the driveway and raised the ram. The armoured vehicle reset the ram and accelerated to the front of the driveway. Police officers exited the vehicle on the driver’s side.
Five uniformed HPS tactical officers rounded the rear of the armoured vehicle and approached the house in a stack formation with their long guns at the ready on the passenger side of the vehicle.
HPS 911 and Communications Recordings
HPS provided the 911 recordings in relation to this incident on May 27, 2023. 911 Call #1
On May 27, 2023, Caller #1 reported that Tenant #1, was at her residence with her fiancé, Tenant #2, and they were in an argument with their landlord, the Complainant. Tenant #1 and Tenant #2 were arguing with the Complainant over money. There was a history of the Complainant arguing and threatening Tenant #1 throughout the time she lived there. The Complainant had a drinking problem. The Complainant threatened Tenant #1 and shouted at her for extra money. The Complainant said, “Okay, you’ve got one second to pay,” left momentarily, and returned with a firearm.
Tenant #1 screamed several times, told the Complainant she would pay the money, and shouted for Caller #1 to call the police. Tenant #1 told Caller #1 the Complainant had a firearm. There was a sound of the phone dropping, and the sound of gunshots.
911 Call #2
On May 27, 2023, Caller #2 reported a shooting at an address on Jones Road. The Complainant had shot Tenant #1. A description of the Complainant was provided. The Complainant had a pistol-type firearm. The Complainant chased a blood-soaked Tenant #1 out of the residence and shot her on the street, after which he walked back into the house.
911 Call #3
On May 27, 2023, Caller #3 reported five gunshots and people running around shouting at a residence on Jones Road. A woman ran into the street followed by someone who went back into the house.
911 Call #4
On May 27, 2023, Caller #4 reported the Complainant shooting on the street. The Complainant shot Tenant #1, who screamed. Another person rested beside a pick-up truck.
911 Call #5
On May 27, 2023, Caller #5 reported that someone, who appeared to be a female, was shot and dead on the street. The Complainant, who had shot the female, lived across the street.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the HPS between May 31, 2023, and June 7, 2023: - Conducted energy weapon recertification-the SO;
- Communications recordings;
- Robot video footage;
- Digital Video Recorder Examiner Export Reports;
- General Occurrence Report;
- Incident Summary;
- Event Chronology;
- Officer call signs;
- Notes-WO #2;
- Notes-WO #4;
- Notes-WO #1;
- Notes-WO #8;
- Notes-WO #3;
- Notes-WO #6;
- Notes-WO #7;
- Notes-WO #5;
- Police Sniper Certifications – the SO;
- Policy – ERU;
- Policy – Hostage - Barricaded Persons;
- Policy - Persons in Crisis;
- Sudden Death Report – the Complainant;
- Supplementary Occurrence Reports; and
- Use of Force Recertification-the SO.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources: - Firearms Report from the Centre of Forensic Sciences, received August 3, 2023;
- Cellular telephone video footage from Witness #1, received May 28, 2023; and
- Screen shot text message from Witness #2, received May 31, 2023.
Incident Narrative
At about 5:38 p.m. of May 27, 2023, the Complainant shot and killed his two tenants – Tenant #1 and Tenant #2 – outside his home on Jones Road, Hamilton. There had been a falling out among them regarding a reported issue in the area of the house where the tenants resided, and who was going to pay for damage done to some property in and around the home. The parties argued beside the house. When it was clear that Tenant #1 and Tenant #2 had no intention of paying, the Complainant entered his home and returned with a gun. He first shot Tenant #2 and then turned his weapon at Tenant #1, discharging it multiple times in her direction as she ran away. She collapsed on the road. The Complainant stood over her, fired several more times, and then re-entered his home.
Starting at about 5:40 p.m., multiple people who witnessed the shooting called police.
Uniformed officers, the first to arrive on scene, set up a perimeter around the house. A command post was established in a parking lot in the area. WO #9 took charge as the incident commander. Under his command, crisis negotiators and a team of ERU officers were deployed to the scene.
There ensued an hours-long standoff in the course of which negotiators attempted, with limited success, to reach the Complainant inside the home. On one occasion, the Complainant asked over the phone whether the persons he had shot were deceased. Advised that they were, he said he was sorry and asked that police convey his apology to the families, after which he hung up. On another occasion, speaking through his family member with whom he was talking on the phone, the Complainant demanded that the ERU’s armoured vehicle, which had taken a position on the front driveway of the home, leave. The police refused to remove the vehicle, but did reverse it a distance on the driveway further away from the home.
The Complainant was more receptive to family members, with whom he talked during the standoff. He repeatedly apologized for what he had done, indicated he would not emerge from his predicament alive, and suggested he would fight the police. Much of this information was fed to the police negotiators and officers on scene. The fact that the Complainant was the registered owner of multiple handguns and rifles, and might possess unregistered firearms as well, was also conveyed to police.
The SO was among a crew of ERU officers who eventually took up inside the armoured vehicle. The vehicle allowed for a close-up look of the home while providing protection against gunfire and a rapid reaction capability in the event the Complainant exited the home with firearms. It was also intended to prevent the Complainant from fleeing the home in one or the other of the vehicles parked on the driveway.
At about 10:10 p.m., the Complainant fired multiple rounds from inside the house in the direction of the armoured vehicle. At about 10:32 p.m., he discharged another barrage of shots through the front door at the armoured carrier. On this occasion, the SO, positioned behind the turret hatch of the armoured vehicle, took aim at the hole in the front door through which it appeared gunfire was coming and fired a single round from his HK416 rifle. The shooting from the home stopped instantly.
The Complainant had been mortally wounded. From his position behind the front door in the foyer of the home, the Complainant was able to make it into his garage through an interior door. That is where he was ultimately located by ERU officers, lying face down on the floor.
Following the shooting, the ERU officers used the armoured vehicle’s front ram to break through the front door. A robot was sent inside to search for the Complainant. The robot found two firearms in the foyer – Scorpion rifles – and returned them outside. It then re-entered the home and located an unresponsive Complainant in the garage. The ram of the armoured vehicle was again used, this time to breach the exterior garage door. ERU officers entered the garage and found a lifeless Complainant. Beside the Complainant were additional firearms, magazines, and ammunition. The Complainant was pronounced deceased on scene at 11:52 p.m.
Cause of Death
The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to a gunshot wound to the 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
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’s use of lethal force fell within the ambit of legally justified force prescribed by the provision.
The SO was lawfully placed and in the execution of his duties throughout the police operation outside the residence on Jones Road, Hamilton, that culminated in the shooting of the Complainant. The foremost obligation of the police is the protection and preservation of life. When the Complainant shot and killed his two tenants and then holed up in his house, the police, including the SO among their ranks, were duty bound to respond to the scene to protect the public and take the Complainant into custody.
There is no doubt that the SO acted to defend himself, his colleagues, and the general public from a reasonably apprehended attack when he shot the Complainant. The Complainant was firing through his front door at the armoured vehicle on his driveway at the time, and there were people – officers and civilians – present within his arc of fire. In the circumstances, the officer had every reason to believe that his life, and the life of third-parties, was in imminent peril and that responsive force was required to defend against loss of life or grievous bodily harm.
It is also clear that the SO’s use of his firearm was reasonable in the circumstances. He and the other officers inside the armoured carrier were under heavy fire at the time from the Complainant. Attempts at negotiations had not proven fruitful and this was now the second volley of sustained gunfire within minutes by the Complainant. There was no reason to believe that continued negotiations might turn a corner or that retreat was possible without endangering the other residents in the neighbourhood or police officers maintaining a perimeter. Rather, what was necessary was the Complainant’s immediate incapacitation from a distance in order to stop the gunfire. The only weapon with a reasonable chance of doing just that was a firearm. In fact, the SO’s single shot struck the Complainant and put an end to the shooting. On this record, I am satisfied that the SO’s decision to match lethal force with lethal force of his own was a commensurate and proportionate response to the exigencies of the moment.
In the result, as there are no reasonable grounds to conclude that the SO’s comported himself other than within the limits of the criminal law when he shot the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: September 25, 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]
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.