SIU Director’s Report - Case # 23-PFP-246
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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 46-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 46-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On June 29, 2023, at 12:55 a.m., the Ontario Provincial Police (OPP) reported a firearm – an Anti-riot Weapon ENfield (ARWEN) – had been discharged at a person during his arrest.According to the OPP, on June 28, 2023, at 8:30 p.m., the OPP received a call from a homeowner who, having been video alerted by his telephone, and was watching on that telephone, reported that his house in Goderich was being broken into. OPP officers attended and saw a man run from the house and hide in a shed in the backyard. The man held a gun. They later believed they heard the gun being racked by the man while inside the shed. The man eventually fled the shed and was met with ARWEN and Police Service Dog (PSD) deployments that served to facilitate his arrest. He was taken to the Goderich Hospital to be assessed and discharged, untreated, having sustained no serious injuries.
The Team
Date and time team dispatched: 06/29/2023 at 6:13 a.m.Date and time SIU arrived on scene: 06/29/2023 at 10:10 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
46-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on June 29, 2023.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Not interviewed; notes reviewed, and interview deemed not necessary WO #2 Not interviewed; notes reviewed, and interview deemed not necessary
WO #3 Not interviewed; notes reviewed, and interview deemed not necessary
WO #4 Not interviewed; notes reviewed, and interview deemed not necessary
WO #5 Not interviewed; notes reviewed, and interview deemed not necessary
WO #6 Interviewed
The witness official was interviewed on August 19, 2023.
Evidence
The Scene
The events in question transpired in and around a shed located at the rear of a property in Goderich. The property was attended and photographed by a SIU forensic investigator on June 29, 2023, at 2:38 p.m. The scene had been photographed, and the ARWEN baton had been removed by the OPP, before SIU members attended.
Physical Evidence
ARWEN
A SIU forensic investigator photographed the ARWEN and ARWEN baton that struck the Complainant.
Figure 1 – The ARWEN
Figure 2 – ARWEN baton projectile
The Complainant’s Replica Firearm
The OPP located a pistol in the shed that was subsequently determined to be a replica firearm. The pistol was collected and photographed by the OPP.
Figure 3 – The pistol located in the shed
Video/Audio/Photographic Evidence [2]
Police Radio Communications and Computer-assisted Dispatch (CAD)
On June 28, 2023, starting at about 8:27 p.m., a man contacted the OPP by telephone to report someone was trying to break into his home in Goderich. He was alerted to the matter by his home security system. By way of the security system, he had seen and spoken with a man [now known to be the Complainant]. The Complainant looked like he was on drugs and had been at both the front and side doors.Starting at about 8:28 p.m., police officers were dispatched. They arrived a short time later.
Starting at about 8:43 p.m., a police officer broadcast they had identified the Complainant by name and the Complainant was in the backyard holding a handgun in his right hand. Other police officers indicated they were en route, and an ambulance was contacted to be on standby.
Starting at about 8:46 p.m., a broadcast was made indicating the Complainant was in a shed at the back of the property screaming at the police officers. Emergency Response Team (ERT) and PSD units were requested.
Starting at about 9:00 p.m., police officers indicated that the Complainant was still in the shed, and they had had verbal contact with him. A police officer transmitted there were reasonable grounds to arrest him for break and enter and weapons offences.
A surrender plan was broadcast identifying two officers as the arrest team. A second broadcast was made stipulating the Complainant should be contained until a safe surrender could be negotiated.
Starting at about 9:46 p.m., a broadcast was made by the SO and WO #3, who had less-lethal ARWEN capabilities and were with a PSD handler and dog. Additional transmissions identified the command post and security perimeter locations.
Starting at about 9:55 p.m., the SO and WO #3 broadcast the Complainant was searching through tool drawers inside the shed and shouting nonsense. He had a drywall knife and shouted, “Get him boys.”
Starting at about 10:04 p.m., the SO and WO #3 broadcast the Complainant had still not surrendered, was still shouting, and, between ERT members and regular uniform members, full containment of the area had been made.
Starting at about 10:08 p.m., a police officer broadcast he had heard the Complainant flipping the safety on and off of the firearm he had in the shed.
Starting at about 10:47 p.m., a police officer broadcast the Complainant did not appear to have the firearm in his hand and was letting air out of tires.
Starting at about 11:01 p.m., a police officer broadcast the Complainant was at the door of the shed holding some kind of homemade edged weapon. It was next broadcast the Complainant had taken two steps out of the shed holding a wooden paddle with nails protruding.
Starting at about 11:16 p.m., ERT was given authority to intercept the Complainant before he re-entered the shed if that could be done safely. That included permission for ARWEN and PSD deployment.
Starting at about 11:18 p.m., the SO and WO #3 broadcast the Complainant had gone back in the shed and closed the doors. The police officers no longer had a view of him.
The next broadcast made was, “He’s out, (indecipherable).” A second police officer broadcast the Complainant was out of the shed, and ARWEN and PSD contacts had been made. He next broadcast the Complainant was in custody and handcuffed. A police officer asked if paramedics were on scene and was told they had left ten minutes ago. A broadcast followed that the Complainant was going to be taken to the front of the house for assessment by paramedics, and confirmation was broadcast that both an ARWEN deployment and a PSD bite had occurred.
A police officer broadcast the firearm the Complainant had been holding was a plastic replica and was left in the shed. Another broadcast indicated that the firearm had been recovered from the floor of the shed and appeared to be a pellet gun. A further broadcast indicated that a police officer was in an ambulance with the Complainant and en route to the hospital.
In-car Camera (ICC) Footage
None of the ICC video files contained evidence helpful to the investigation.Body-worn Camera (BWC) Recordings
Though police officers attending to this matter were equipped with BWC equipment, no BWC video footage was recorded as the OPP policy regarding ERT interactions requires those members to disable their BWC equipment while engaging with a suspect.Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between July 4, 2023, and July 21, 2023:- Police communications recordings;
- Record of CAD;
- Scene photographs;
- ICC recordings;
- BWC recordings;
- ARWEN and Use of Force Requalification Records – the SO;
- Notes – WO #6;
- Notes – WO #2;
- Notes – WO #3;
- Notes – WO #5;
- Notes – WO #4; and
- Notes – WO #1.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following record from other sources:- The Complainant’s medical records, received on October 5, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and a police eyewitness, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.
In the evening of June 28, 2023, OPP officers were dispatched to a residence in Goderich following a call to police from the homeowner. The caller, who was out of town at the time, had called to report that he had received an alert from his security system and was able to see via remote video that a man was unlawfully on his property.
The man was the Complainant. The Complainant was of unsound mind at the time. Believing the property belonged to him, he had ventured onto the premises and made his way into the backyard shed intending to build something.
Police officers arriving on scene confronted the Complainant and observed him with what appeared to be a handgun. As the Complainant made his way into the shed with the ‘gun’, officers established a perimeter and endeavoured to negotiate his safe surrender. A police dog handler and his dog were mobilized, as was less-lethal weaponry.
Over the course of about two-and-a-half hours, officers were kept at bay as the Complainant continued to preoccupy himself inside the shed. On one occasion, he appeared to be manipulating his ‘gun’, on another, he temporarily exited brandishing a knife, and yet another, he came out waving a paddle fixed with protruding nails. The officers continued their efforts at dialogue, but a hostile Complainant was not receptive.
At about 11:15 p.m., the Complainant emerged from behind the closed shed doors and moved in the direction of the police. A police dog was released and bit the Complainant. At about the same time, the SO, armed with an ARWEN, fired his weapon, striking the Complainant in the groin. The Complainant was felled by the force, engaged by officers on the ground, and handcuffed without incident.
The Complainant was taken to hospital, assessed, and treated for minor dog bites.
In the evening of June 28, 2023, OPP officers were dispatched to a residence in Goderich following a call to police from the homeowner. The caller, who was out of town at the time, had called to report that he had received an alert from his security system and was able to see via remote video that a man was unlawfully on his property.
The man was the Complainant. The Complainant was of unsound mind at the time. Believing the property belonged to him, he had ventured onto the premises and made his way into the backyard shed intending to build something.
Police officers arriving on scene confronted the Complainant and observed him with what appeared to be a handgun. As the Complainant made his way into the shed with the ‘gun’, officers established a perimeter and endeavoured to negotiate his safe surrender. A police dog handler and his dog were mobilized, as was less-lethal weaponry.
Over the course of about two-and-a-half hours, officers were kept at bay as the Complainant continued to preoccupy himself inside the shed. On one occasion, he appeared to be manipulating his ‘gun’, on another, he temporarily exited brandishing a knife, and yet another, he came out waving a paddle fixed with protruding nails. The officers continued their efforts at dialogue, but a hostile Complainant was not receptive.
At about 11:15 p.m., the Complainant emerged from behind the closed shed doors and moved in the direction of the police. A police dog was released and bit the Complainant. At about the same time, the SO, armed with an ARWEN, fired his weapon, striking the Complainant in the groin. The Complainant was felled by the force, engaged by officers on the ground, and handcuffed without incident.
The Complainant was taken to hospital, assessed, and treated for minor dog bites.
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 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 Complainant was struck by an ARWEN projectile just before his arrest in Goderich on June 28, 2023. In the ensuing SIU investigation of the incident, the SO – the officer who fired the ARWEN – was identified as the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the ARWEN discharge.
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.
By the time the SO fired his weapon, the officer had grounds to take the Complainant into custody. At minimum, given his possession of a knife and what appeared to be a gun, the Complainant was subject to arrest for ‘weapons dangerous’ contrary to section 88 of the Criminal Code.
As for the SO’s use of the ARWEN, I am satisfied that it constituted justified force in aid of the Complainant’s arrest. Though the Complainant was only armed with a plastic replica gun, the officers would have had reason to believe that it was an actual firearm capable of inflicting grievous bodily harm or death. They had also witnessed him wielding a knife and a paddle spiked with nails. In the circumstances, it made sense to want to temporarily incapacitate the Complainant from a distance before moving in to effect his arrest; a hands-on engagement would have clearly placed the officers at significant physical risk. The ARWEN (and the use of the dog) accomplished just that, without the infliction of serious injury.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO.
Date: October 27, 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.
By the time the SO fired his weapon, the officer had grounds to take the Complainant into custody. At minimum, given his possession of a knife and what appeared to be a gun, the Complainant was subject to arrest for ‘weapons dangerous’ contrary to section 88 of the Criminal Code.
As for the SO’s use of the ARWEN, I am satisfied that it constituted justified force in aid of the Complainant’s arrest. Though the Complainant was only armed with a plastic replica gun, the officers would have had reason to believe that it was an actual firearm capable of inflicting grievous bodily harm or death. They had also witnessed him wielding a knife and a paddle spiked with nails. In the circumstances, it made sense to want to temporarily incapacitate the Complainant from a distance before moving in to effect his arrest; a hands-on engagement would have clearly placed the officers at significant physical risk. The ARWEN (and the use of the dog) accomplished just that, without the infliction of serious injury.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO.
Date: October 27, 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.