SIU Director’s Report - Case # 23-PFP-271
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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 July 17, 2023, at 7:07 a.m., the Ontario Provincial Police (OPP) reported that the Complainant had an Anti-Riot Weapon ENfield (ARWEN) fired at him during a police interaction.According to the OPP, the Complainant was at the Pinehurst Lake Conservation Area on July 17, 2023. He had an incident with the park wardens and the OPP were called. When police arrived, at 2:40 a.m., the Complainant fled into the bush where he threatened to light himself on fire. The OPP set up containment. During ensuing negotiations, the Complainant had reportedly taken cocaine and crack-cocaine. At approximately 4:50 a.m., the Complainant charged from the bush and rushed at police officers. Two conducted energy weapons (CEWs) were discharged but the probes did not impact the Complainant. Two police officers then discharged their ARWENs. One ARWEN baton struck the Complainant’s lower left leg and the other struck his ribs. The Complainant was taken to Brant County Hospital uninjured, with the exception of bruises.
The Team
Date and time team dispatched: 07/17/2023 at 8:12 a.m.Date and time SIU arrived on scene: 07/17/2023 at 9:40 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned (FIs): 1
Affected Person (aka “Complainant”):
46-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on July 7, 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 Not interviewed; notes reviewed, and interview deemed not necessary
WO #7 Interviewed
The witness official was interviewed on August 14, 2023.
Evidence
The Scene
The events in question transpired in and around a bush and treed area south of the roadway that led east from the main entrance to the Pinehurst Lake Conservation Area off of Pinehurst Road, Ayr. The scene was forensically processed by a SIU FI on July 17, 2023, from 10:15 a.m.
The Pinehurst Lake Conservation Area, 469 Pinehurst Road, Ayr, was a conservation area/camping facility operated by the Grand River Conservation Authority on a nine-hectare (23-acre) parcel of land that included a lake surrounded by a forest. It offered camping, swimming, picnicking, hiking, and fishing. In the winter, it had snowshoeing and ice-fishing.
The scene proper presented a short distance from the park entrance, on the south side of the entrance road, just behind a sign that listed park admission fees. The area was scattered with two ARWEN cartridge cases, two ARWEN projectiles, CEW wire and probes, and a fire extinguisher. A fresh trail ran through the tall weeds and bush to the south of the police paraphernalia and led further into the bush to a backpack, and personal items and papers that belonged to the Complainant that had been strewn about. A fire had consumed some of the papers and turned them to ash.
The scene was photographed, and measurements were taken.
The first SIU-generated picture (below) captured, looking (essentially) west to east, the mouth of the roughly paved entrance road to the conservation area that ran east from Pinehurst Road.
Figure 1 – Pinehurst Lake Conservation Area entrance
The next picture captured the police tape-controlled area that contained the physical evidence listed above. It was within the brush/woods to the right in that image where the Complainant had hidden. He exited the bush and was struck by the ARWEN rounds in this police tape-controlled area. That same area was where the SO and other officers had staged and were communicating with the Complainant.
Figure 2 – The area of police interaction with the Complainant
Scene Diagram
Physical Evidence
The SIU forensic investigator photographed and collected the ARWEN, batons and cartridges, and the CEW paraphernalia. 
Figure 3 – The SO’s ARWEN
Figure 4 – The scene depicting the brush/wood area from which the Complainant emerged
Figure 5 – ARWEN baton projectile
Figure 6 – ARWEN cartridge case
Forensic Evidence
CEW Deployment Data - WO #6
WO #6 triggered his CEW at 4:49:17 a.m., [2] July 17, 2023, deploying cartridge one for a charge duration of one second. At 4:49:19 a.m., he triggered the CEW again for a charge duration of one second.CEW Deployment Data - WO #5
WO #5 triggered his CEW at 4:49:26 a.m., July 17, 2023, for a charge duration of five seconds. WO #5 then pressed the arc button, once at 4:49:37 a.m., and again at 4:49:43 a.m, each time delivering an additional one second burst of energy through the same wires associated to cartridge one. Video/Audio/Photographic Evidence [3]
Police Communication Recordings - Telephone
On July 17, 2023, starting at about 1:20:43 a.m., the OPP received a telephone call from a staff member at Pinehurst Lake Conservation Area, reporting a man [now known to be the Complainant] had driven his car at dangerous speeds inside the conservation area. The Complainant had told the caller he was borderline schizophrenic and paranoid. The Complainant had earlier been asked to vacate the area. The Complainant told the caller that the last time somebody found him on the road he went to the mental hospital, and that that was not happening that day. The Complainant was near the gatehouse, on foot, holding a bag and some other object in his hand, and had something stuffed in his sweater. The caller then lost sight of the Complainant and told the police that they would meet them at the front entrance of the park. The police arrived at 1:35:17 a.m.At 3:58:16 a.m., during a call from the Hamilton Paramedic Service, the OPP relayed they had contact with the Complainant, who might have a knife, was hiding in the bush, and had threatened self-harm.
Police Communication Recordings - Radio Transmissions
The first file began on July 17, 2023, at 1:23:13 a.m., as police officers were dispatched to an ‘unwanted man’ [now known to be the Complainant] call at the Pinehurst Lake Conservation Area, near the gatehouse. The Complainant was holding things in his hands and had something secreted inside his sweater.A broadcast was made when police arrived that they had located the Complainant’s unattended vehicle and ascertained his identity. His computerized database record-check revealed a history of assaulting peace officers, firearms charges, and uttering threats. Broadcasts were made that some of the police officers were searching the area for the Complainant while others stayed with his car.
A police officer next broadcast they could hear a man screaming from the bush near the front entrance of the park, but they could not see that man. Information was next broadcast that they had verbal contact with the Complainant, who was angry and told them he had a knife at his throat. During the radio transmissions, the Complainant could be heard in the background.
Emergency Response Team (ERT) members broadcast they were one minute away and had two ARWEN capable members with them.
A broadcast was made that WO #2 and the SO were assigned north side scene containment. WO #4 and WO #3 were assigned to contain south of the Complainant’s believed location. The SO next broadcast the Complainant had threatened to charge at the police officers with a knife to commit suicide by police and that he had a machete. Information was broadcast that police negotiators were at least two hours away.
The next broadcast relayed that the Complainant had threatened to set himself on fire, followed by the SO’s report that CEWs and an ARWEN had been deployed. WO #7 then broadcast the Complainant was in custody, two CEWs and two ARWEN rounds had been deployed, and the SIU should be advised followed by a broadcast that paramedics had transported the Complainant to Brantford General Hospital.
The second audio file began with a message that an unwanted man [now known to be the Complainant] had been trespassed from the Pinehurst Lake Conservation Area, was schizophrenic and under the influence of drugs and alcohol, had a history of violence towards police, and was arrestable for breaching his driving prohibition. There was concern he had weapons. ERT and police service dog help was requested to locate and arrest the Complainant.
The next broadcast relayed police officers had the Complainant’s unattended vehicle boxed-in and had placed a spike belt under the tires. Other police officers were checking his campsite.
WO #7 broadcast a request for three ERT officers, with at least one ARWEN, to attend. WO #2 and her police service dog were next dispatched before a police officer broadcast the Complainant had been found six metres inside the bush and claimed to have a knife at his throat.
A message requesting a Command Incident Control consult was made, and information followed that multiple negotiators had been contacted but none were able to respond. Two more ARWEN capable ERT members were dispatched.
The next broadcast relayed the Complainant had threatened suicide by police, followed by information he had been arrested after two CEW and two ARWEN discharges. The broadcast continued relaying the Complainant remained combative and abusive, and, except for two superficial bruises, appeared uninjured. He was transported to BGH.
Video Footage - Pinehurst Conservation Area
On July 17, 2023, starting at about 1:17:55 a.m., a car [now known to be operated by the Complainant] was captured approaching and stopping at the front gatehouse of the Pinehurst Conservation Area. One minute later, two security guards approached and spoke to the Complainant inside the vehicle. Starting at about 1:19:08 a.m., the Complainant drove away, and the two security officers ran after him.
Starting at about 1:39:18 a.m., several police vehicles approached the gatehouse. The Complainant’s vehicle was parked near the gatehouse. The police vehicles blocked it in while they inspected the vehicle.
Materials Obtained from Police Service
The SIU obtained the following records from the OPP between July 17, 2023, and July 21, 2023:- Notes – WO #1;
- Notes – WO #2;
- Notes – WO #3;
- Notes – WO #4;
- Notes – WO #5;
- Notes – WO #6;
- Notes – WO #7;
- CEW deployment data;
- Communications recordings;
- Record of computer-assisted dispatch; and
- Use of force requalification records – the SO.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between July 21, 2023, and August 1, 2023:- The Complainant’s medical records from BGH; and
- Pinehurst Conservation Area video footage.
Incident Narrative
The evidence gathered by the SIU, including interviews with the Complainant and an officer present in the vicinity at the time of the events in question, 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 early morning of July 17, 2023, OPP officers were called to the Pinehurst Lake Conservation Area. Staff had contacted police to report that the Complainant was refusing to leave and had operated his vehicle on the grounds at dangerous speeds. They wanted him off the property.
On hearing the police arrive at the park, the Complainant, on foot at the time, hid in the bush south of the roadway from the entrance. For upwards of three hours, he would remain in the bush as police officers surrounded the area and attempted to negotiate his peaceful surrender. The Complainant refused to come out. He told police that he was on drugs, had a knife, and wanted to commit suicide by police.
An OPP ERT was deployed to the property, which included the SO armed with an ARWEN. With other officers, the SO took a position a short distance north of the bush in which the Complainant was concealed. Paramedics were detailed to stage near the scene in the event they were required.
At about 4:40 a.m., the Complainant yelled that he was going to start a fire and, a short time later, did so. He continued to say that he had a knife, as well as other weapons, and that police would have to shoot him. At about 4:50 a.m., the Complainant emerged from the bush running towards the officers north of his location. He was struck twice in the torso by ARWEN rounds fired by the SO and fell to the ground.
On seeing the Complainant advancing towards them, officers had yelled at the Complainant to stop and get on the ground. As he continued to close the distance, WO #5 and WO #6 fired their CEWs at about the same time as the first of the SO’s discharges. With the Complainant on the ground, officers moved in and took him into custody.
In the early morning of July 17, 2023, OPP officers were called to the Pinehurst Lake Conservation Area. Staff had contacted police to report that the Complainant was refusing to leave and had operated his vehicle on the grounds at dangerous speeds. They wanted him off the property.
On hearing the police arrive at the park, the Complainant, on foot at the time, hid in the bush south of the roadway from the entrance. For upwards of three hours, he would remain in the bush as police officers surrounded the area and attempted to negotiate his peaceful surrender. The Complainant refused to come out. He told police that he was on drugs, had a knife, and wanted to commit suicide by police.
An OPP ERT was deployed to the property, which included the SO armed with an ARWEN. With other officers, the SO took a position a short distance north of the bush in which the Complainant was concealed. Paramedics were detailed to stage near the scene in the event they were required.
At about 4:40 a.m., the Complainant yelled that he was going to start a fire and, a short time later, did so. He continued to say that he had a knife, as well as other weapons, and that police would have to shoot him. At about 4:50 a.m., the Complainant emerged from the bush running towards the officers north of his location. He was struck twice in the torso by ARWEN rounds fired by the SO and fell to the ground.
On seeing the Complainant advancing towards them, officers had yelled at the Complainant to stop and get on the ground. As he continued to close the distance, WO #5 and WO #6 fired their CEWs at about the same time as the first of the SO’s discharges. With the Complainant on the ground, officers moved in and took him into 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 July 17, 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. In the ensuing SIU investigation of the incident, the officer – the SO – 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 discharge of the ARWEN.
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 SO and the other officers involved in the Complainant’s arrest were lawfully present and engaged in the exercise of their duties in the series of events culminating in the use of the ARWEN. The Complainant was a trespasser on the property and had threatened himself and the officers with a knife. He was clearly subject to arrest.
I am also satisfied that the force used by the SO in aid of the Complainant’s arrest, namely, two ARWEN discharges, was legally justified. The Complainant had repeatedly indicated that he had a knife – a weapon capable of inflicting grievous bodily harm and death. The officers were within their rights in taking him at his word. When the Complainant, after hours of fruitless negotiations and having just set a fire, emerged from the bush and rushed at the police, they would surely have believed that he constituted an imminent threat to their safety. The SO might have decided to withdraw or retreat, but that could well have left him and the officers around him more vulnerable to a knife attack. He might have tried to engage the Complainant physically, but that would have placed him within striking distance of a lethal weapon. On this record, it would appear that the officer acted sensibly when he chose to repel the Complainant from a distance with the use of a less-lethal weapon. If it worked, the Complainant would be momentarily and sufficiently incapacitated to allow for his safe apprehension without the infliction of serious injury – a reasonable outcome in the circumstances. That is precisely what happened.
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 fired his ARWEN twice at the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: November 14, 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 SO and the other officers involved in the Complainant’s arrest were lawfully present and engaged in the exercise of their duties in the series of events culminating in the use of the ARWEN. The Complainant was a trespasser on the property and had threatened himself and the officers with a knife. He was clearly subject to arrest.
I am also satisfied that the force used by the SO in aid of the Complainant’s arrest, namely, two ARWEN discharges, was legally justified. The Complainant had repeatedly indicated that he had a knife – a weapon capable of inflicting grievous bodily harm and death. The officers were within their rights in taking him at his word. When the Complainant, after hours of fruitless negotiations and having just set a fire, emerged from the bush and rushed at the police, they would surely have believed that he constituted an imminent threat to their safety. The SO might have decided to withdraw or retreat, but that could well have left him and the officers around him more vulnerable to a knife attack. He might have tried to engage the Complainant physically, but that would have placed him within striking distance of a lethal weapon. On this record, it would appear that the officer acted sensibly when he chose to repel the Complainant from a distance with the use of a less-lethal weapon. If it worked, the Complainant would be momentarily and sufficiently incapacitated to allow for his safe apprehension without the infliction of serious injury – a reasonable outcome in the circumstances. That is precisely what happened.
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 fired his ARWEN twice at the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: November 14, 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 CEW 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.