SIU Director’s Report - Case # 23-PFP-282
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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 66-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 66-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On July 23, 2023, at 11:52 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information. About a week prior to July 23, 2023, the Complainant had sent a letter to the OPP Prince Edward County Detachment indicating if police attended his residence, he would shoot them. On the morning of July 23, 2023, at 11:00 a.m., a citizen called the OPP because the Complainant was reportedly shooting a firearm on his property located in Picton. An OPP tactical unit arrived and were confronted by the Complainant armed with a long gun. Five Anti-riot Weapon ENfield (ARWEN) projectiles were deployed, two of which struck the Complainant. A police dog was also deployed contacting the Complainant, injuring his shoulder. The Complainant was apprehended and transported to Prince Edward County Memorial Hospital.
The Team
Date and time team dispatched: 2023/07/23 at 12:48 p.m.Date and time SIU arrived on scene: 2023/07/23 at 1:42 p.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
66-year-old male; interviewedThe Complainant was interviewed on July 24, 2023.
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
The civilian witnesses were interviewed on July 24, 2023.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed 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
The witness official was interviewed on July 25, 2023.
Evidence
The Scene
The events in question transpired on the exterior front grounds of a property situated in Picton.Physical Evidence
On July 23, 2023, the SIU collected five ARWEN cartridge cases and three projectiles from the scene.
Figure 1 – The SO’s ARWEN
Figure 2 – ARWEN projectile
Figure 3 – The Complainant’s rifle
Video/Audio/Photographic Evidence [2]
Police Communications Recording
Starting at about 10:18 a.m., July 23, 2023, a person contacted the OPP and reported that the Complainant was shooting a gun. The Complainant had told the caller that he would be waiting in the driveway for police. The caller further indicated that the Complainant had mental health issues. OPP checks revealed that the Complainant was flagged on police records as hating police. He blamed them for a family member’s death.
Starting at about 11:12 a.m., an officer read out a mission statement, namely, to safely contain, evacuate and negotiate the Complainant’s safe surrender with utmost regards to public safety.
Starting at about 11:23 a.m., it was noted that one person was in custody.
Starting at about 11:25 a.m., it was noted that the Complainant had sustained a dog bite injury.
Body-worn Camera Footage – The SO
Starting at about 11:09 a.m., the SO, holding an ARWEN, was captured standing by the passenger side of a tactical van near the driveway entrance of one of the Complainant’s neighbours. The camera pointed towards the Complainant’s driveway entrance. Starting at about 11:22 a.m., the SO raised his ARWEN, effectively blocking the camera’s view.
Starting at about 11:23 a.m., the SO discharged five rounds from his ARWEN. The officer then ran south with other officers towards the Complainant’s driveway entrance. The Complainant was pictured lying on a grass field north of the driveway entrance. An officer moved in and removed a dog from the Complainant’s neck area. The Complainant was turned onto his front and handcuffed behind the back.
Starting at about 11:25 a.m., OPP officers were observed providing medical help to the Complainant.
Starting at about 11:28 a.m., Emergency Medical Services was observed on scene. They provided medical assistance to the Complainant.
Materials Obtained from Police Service
The SIU obtained the following records from the OPP between July 24, 2023, and November 17, 2023:- Record of computer-assisted dispatch;
- Communications recordings;
- Body-worn camera footage;
- OPP pictures of the dog bite;
- Officer Day Shift Log;
- Witness Statements;
- Occurrence Details;
- The Complainant’s letters to the OPP;
- Notes – WO #1;
- Notes – WO #2;
- Notes – WO #3; and
- Notes – WO #4.
Materials Obtained from Other Sources
The SIU obtained the following record from other sources:- The Complainant’s medical records.
Incident Narrative
The events in question, clear on the evidence collected by the SIU, may briefly be summarized. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.
In the morning of July 23, 2023, the OPP received a call informing them that the Complainant, having fired a number of shots on his property from a rifle, had told the caller to contact the OPP, indicating he would be waiting for them outside.
OPP officers began arriving on scene and set about stopping traffic and establishing a perimeter around the Complainant’s residence. Tactical and Rescue Unit (TRU) officers, including the SO, were also mobilized.
TRU officers took up positions around a tactical van stopped facing south about 50 metres north of the driveway entrance to the Complainant’s property. The SO, on the passenger side of the van, was armed with an ARWEN. On the other side of the van was a police dog handler – WO #3 – and his dog. They received information about the Complainant’s movements in the backyard of his property from OPP officers closer to the residence. He was operating a lawn tractor, still in possession of a rifle.
Shortly after 11:20 a.m., the rifle in his right hand, the Complainant made his way on foot down his driveway towards the road. As he neared the roadway, the Complainant turned left and travelled a short distance onto the grass field north of the driveway when he was struck and felled by multiple ARWEN rounds. While on the ground, the Complainant was bit in the neck by the police dog.
The rounds – five in total – had been fired by the SO.
With the Complainant on the ground, the TRU officers rushed in, removed the dog, secured the rifle, and handcuffed the Complainant.
The Complainant was taken from the scene in ambulance to hospital where he was assessed under the Mental Health Act. He had also sustained superficial dog bite wounds.
In the morning of July 23, 2023, the OPP received a call informing them that the Complainant, having fired a number of shots on his property from a rifle, had told the caller to contact the OPP, indicating he would be waiting for them outside.
OPP officers began arriving on scene and set about stopping traffic and establishing a perimeter around the Complainant’s residence. Tactical and Rescue Unit (TRU) officers, including the SO, were also mobilized.
TRU officers took up positions around a tactical van stopped facing south about 50 metres north of the driveway entrance to the Complainant’s property. The SO, on the passenger side of the van, was armed with an ARWEN. On the other side of the van was a police dog handler – WO #3 – and his dog. They received information about the Complainant’s movements in the backyard of his property from OPP officers closer to the residence. He was operating a lawn tractor, still in possession of a rifle.
Shortly after 11:20 a.m., the rifle in his right hand, the Complainant made his way on foot down his driveway towards the road. As he neared the roadway, the Complainant turned left and travelled a short distance onto the grass field north of the driveway when he was struck and felled by multiple ARWEN rounds. While on the ground, the Complainant was bit in the neck by the police dog.
The rounds – five in total – had been fired by the SO.
With the Complainant on the ground, the TRU officers rushed in, removed the dog, secured the rifle, and handcuffed the Complainant.
The Complainant was taken from the scene in ambulance to hospital where he was assessed under the Mental Health Act. He had also sustained superficial dog bite wounds.
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
On July 23, 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 Picton. The SIU initiated an investigation naming the officer – the SO – 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 who responded to the scene had cause to believe that the Complainant had fired a long gun while making a thinly-veiled threat of gun violence against the OPP when they arrived at his property. In the circumstances, I am satisfied he was subject to arrest for ‘weapons dangerous’ under section 88(1) of the Criminal Code.
I am also satisfied that the force used by the SO in aid of the Complainant’s arrest, namely, ARWEN discharges, was legally justified. The SO and his colleagues would clearly have apprehended a real and imminent risk to their lives when the Complainant emerged on his driveway near the roadway with a rifle in hand and then turned left to walk in their direction. Moreover, the broader safety of the public was also in danger as the residents of an adjacent property were still in their home, effectively precluding a withdrawal from the scene. On this record, I am unable to reasonably conclude that the SO acted precipitously or excessively when he fired the ARWEN. If it worked, the weapon would temporarily incapacitate the Complainant, allowing the police an opportunity to safely approach to effect an arrest without the infliction of serious injury. Indeed, that is what happened.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the subject official in this case. The file is closed.
Date: November 20, 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 who responded to the scene had cause to believe that the Complainant had fired a long gun while making a thinly-veiled threat of gun violence against the OPP when they arrived at his property. In the circumstances, I am satisfied he was subject to arrest for ‘weapons dangerous’ under section 88(1) of the Criminal Code.
I am also satisfied that the force used by the SO in aid of the Complainant’s arrest, namely, ARWEN discharges, was legally justified. The SO and his colleagues would clearly have apprehended a real and imminent risk to their lives when the Complainant emerged on his driveway near the roadway with a rifle in hand and then turned left to walk in their direction. Moreover, the broader safety of the public was also in danger as the residents of an adjacent property were still in their home, effectively precluding a withdrawal from the scene. On this record, I am unable to reasonably conclude that the SO acted precipitously or excessively when he fired the ARWEN. If it worked, the weapon would temporarily incapacitate the Complainant, allowing the police an opportunity to safely approach to effect an arrest without the infliction of serious injury. Indeed, that is what happened.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the subject official in this case. The file is closed.
Date: November 20, 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.