SIU Director’s Report - Case # 23-OFI-245
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Contents:
Mandate of the SIU
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:- Confidential investigative techniques and procedures used by law enforcement agencies; and
- Information that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- Location information;
- Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
- Other identifiers which are likely to reveal personal information about individuals involved in the investigation.
Personal Health Information Protection Act, 2004
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.Mandate Engaged
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 43-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On June 27, 2023, at 10:55 p.m., the Halton Regional Police Service (HRPS) contacted the SIU with the following information.In the early evening of June 27, 2023, HRPS police officers were dispatched to an apartment in the area of Dynes Road and Prospect Street, Burlington, regarding a disturbance involving alcohol. A man of that address, later identified as the Complainant, had brandished a handgun and pointed it at Halton Paramedic - Emergency Medical Services (EMS) paramedics. At 9:36 p.m., after the Complainant refused to comply with police commands, he pointed a handgun at police officers. A police officer, the Subject Official (SO), fired a single gunshot in response, striking the Complainant in the left arm. At 10:22 p.m., police officers arrested the Complainant, and he was transported by EMS to the Hamilton General Hospital (HGH).
The Team
Date and time team dispatched: 2023/06/27 at 11:22 p.m.Date and time SIU arrived on scene: 2023/06/28 at 12:30 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
43-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on July 4, 2023.
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
The civilian witnesses were interviewed between June 28, 2023, and August 9, 2023.
Subject Official
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on July 7, 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 Not interviewed; notes reviewed and interview deemed unnecessary
WO #9 Not interviewed; notes reviewed and interview deemed unnecessary
WO #10 Not interviewed; notes reviewed and interview deemed unnecessary
The witness officials were interviewed between June 28 and 29, 2023.
Evidence
The Scene
The events in question transpired in and around the Complainant’s residence located in the area of Dynes Road and Prospect Street, Burlington.On June 28, 2023, at 12:55 a.m., a SIU forensic investigator arrived at the address. The area around the Complainant’s apartment was under police guard.
A Hornady 5.56mm cartridge case was found on the floor in the hall, across from elevators.
The hallway scene was photographed, including the cartridge case.
The door to the Complainant’s apartment was damaged near the lower centre, and a hole was visible through the door. Staining was present on the door, frame and sill, and on the wall and ceiling across from the doorway. A larger amount of staining was on the walls, furniture, and floor within the unit. Apparent weapons were found on a couch in the living room, including an air pistol, which had the appearance of a black handgun. A second weapon had the appearance of a carbine or handgun with a shoulder stock attached, which was also an air pistol or air rifle. Knives lay on the couch and on a bed.
The interior of the unit was photographed.
At 2:46 a.m., a SIU forensic investigator attended HRPS 30 Division. Photographs were taken of the service weapon that had reportedly been discharged in the course of the incident under investigation - a 5.56mm C8 carbine rifle, with a detachable magazine containing 27 rounds of ammunition. Arrangements were made to collect the rifle from HRPS Headquarters on June 29, 2023.
At 3:15 a.m., the SIU forensic investigator returned to the scene. An in-depth search of the apartment hallway was conducted, including bright light search of the hallway on both sides of the Complainant’s unit. A horizontal gouge was found along the wall. The gouge appeared consistent with a projectile impact. The horizontal gouge was photographed. A copper-coloured deformed metal projectile was found on the floor of the hallway further down the hall. The base of the projectile showed firearms markings. The items were photographed, measured, and collected. No further items or impacts were found.
On June 29, 2023, at 7:00 a.m., a SIU forensic investigator attended at HRPS Headquarters and collected the 5.56mm C8 carbine rifle.
Physical Evidence
The following exhibits were collected by the SIU:- Item 1- Hornady 5.56mm cartridge case;
- Item 2- 5.56mm C8 carbine rifle, with a detachable magazine containing 27 rounds of ammunition; and
- Item 3-Deformed metal projectile.
Figure 1 – The C8 carbine rifle and magazine
Video/Audio/Photographic Evidence [2]
HRPS Negotiation Recordings
The HRPS negotiation recordings were requested by the SIU on June 28, 2023, and received on July 17, 2023. When reviewed, they were found to be blank. WO #6, the primary negotiator, advised in her interview that the recording equipment had malfunctioned.
Video Footage from the Apartment Hallway
The footage captured the period from 8:10 p.m. to 9:45 p.m., June 27, 2023. Police call-outs to check on and help the Complainant were captured. The Complainant refused to come out of his unit.Starting at about 8:31 p.m., the sound of a deadbolt being moved was heard and the Complainant for the first time opened and closed his door. He did not appear in the doorway.
Starting at about 8:51 p.m., the movement of the dead bolt was heard, the door opened and light from within the unit appeared on the carpet. The Complainant, without appearing in the door, threw an object [now known to be a landline telephone] across the hallway and closed the door. Questions to the Complainant about what he had thrown out were ignored, and he continued to refuse to come out of his unit. Sporadic banging was heard. Call-outs from the hallway stopped.
Starting at about 9:22 p.m., the Complainant called-out to make sure the police officers were still present.
Starting at about 9:26 p.m., the door opened and light from the unit appeared on the carpet. The Complainant’s first name was called-out and three to four seconds later he closed the door. Eighteen seconds later the door opened again.
Starting at about 9:27 p.m., the Complainant presented himself, exposing part of his upper torso and head in the centre of the doorway. He had an object in his hand. The Complainant was told that the police did not want to hurt him, and he returned to his unit. As the Complainant closed the door, he stated, “Fuck you." The SO spoke of a gun being pointed at him, and an update was supplied that the Complainant had pointed a dark object at them.
Starting at about 9:29 p.m., the Complainant called out, “Hey,” on two occasions.
Starting at about 9:29:50 p.m., it was announced that the door was opening. The Complainant was ordered to show his hands and to leave the weapons behind. The Complainant again responded, “Fuck you,” on two occasions and closed the door. Further call-outs were made for the Complainant to come out with his hands up and no weapons. Again, he responded several times, “Fuck you.”
Starting at about 9:34 p.m., a clicking was heard from within the unit. Someone mentioned that it was the sound of a gun.
At 9:34:29 p.m., the Complainant was told to leave the weapons in the room and come out with his hands up. The Complainant responded, “Fuck you.”
At 9:34:40 p.m., the Complainant appeared in the doorway, exposing the left side of his body, and pointed what looked like a gun down the hallway as he was told to come out with no weapons.
One second later, the sound of one round was heard being fired. The Complainant immediately went into his unit and closed the door. He was heard to call-out in pain. The SO said, “That was a gun,” and there was a reply, “100 percent.” The SO did not know if he hit the Complainant. The Complainant was told to come out and he replied, “Fuck you,” and continued to moan.
It was announced that the Complainant had come out and pointed a gun. The Complainant would not state if he required medical attention.
Communications Recordings
On June 27, 2023, at 5:36 p.m., a 911 call was made to HRPS by CW #1 who lived with the Complainant. CW #1 indicated that the Complainant had come home drunk and fallen in the lobby. Security assisted with a wheelchair and brought him to the unit, but CW #1 wanted an ambulance as the Complainant had a head wound from the fall.Starting at about 7:03 p.m., WO #7 was notified to respond to the Complainant’s address. He received information about the call and the fact that paramedics on scene had observed weapons in the bedroom and the Complainant had come out of the bedroom with a weapon in his hand. All available units were dispatched. WO #7 requested that the tactical unit be notified. Information was received that the Complainant was in the unit by himself.
The SO and WO #3 advised they would respond; they both had C8 rifles. WO #2 received information from the paramedics that the weapon might have been a pellet gun. An officer advised the door to the apartment was closed and police officers had an eye on it from around the corner.
Starting at about 7:16 p.m., WO #4 advised that he was speaking to CW #1 and she had advised the Complainant had a pellet gun and paramedics had seen a sword in the unit. WO #4 broadcast a description of the Complainant.
Starting at about 7:22 p.m., WO #1 advised that the arrest team was in place, and grounds for arrest were ‘point firearm’.
WO #4 tried calling the Complainant’s cell phone and landline. At first, the Complainant did not answer. He subsequently picked up the phone and hung up.
Starting at about 7:35 p.m., WO #4 had a conversation with the Complainant, who stated the police would have to breach the door as he was not coming out.
The HRPS tactical unit was not available and, at 7:37 p.m., a call was made for the Hamilton Police Service (HPS) Emergency Response Unit (ERU) to respond.
Starting at about 7:45 p.m., WO #4 advised he had spoken to the Complainant, who stated that he had something for the police. A call was put out for negotiators. The staging area would be in front of the building. WO #7 requested the canine unit to respond for containment.
Starting at about 8:11 p.m., units were advised HPS ERU and HRPS negotiators were responding.
Starting at about 8:21 p.m., the negotiation team took over making phone calls.
Starting at about 8:52 p.m., WO #2 broadcast that the Complainant had opened the door and thrown something into the hallway, which was identified as a landline telephone.
Starting at about 9:00 p.m., an officer advised that the HPS ERU had arrived at the command post.
Starting at about 9:27 p.m., WO #2 advised the Complainant had opened the door and then retreated inside the unit.
Starting at about 9:29 p.m., the door opened and the Complainant had something in his hand.
Starting at about 9:36 p.m., WO #2 broadcast, “Shots fired.” It was noted that the Complainant had pointed a gun at them. WO #2 advised one shot was fired by police. The Complainant could be heard moaning inside the unit.
Starting at about 9:45 p.m., HPS ERU took over the call-outs. The HPS ERU headed up to the door and could see the Complainant inside, and blood on the walls. The Complainant appeared to have a shotgun wound to his left arm.
At 10:19 p.m., the HPS ERU entered the unit and the Complainant was secured.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the HRPS between June 28, 2023, and August 28, 2023:- Call History;
- Call Signs;
- Video footage – apartment building;
- Chronology;
- Policy - Use of Force;
- Policy - Barricaded Persons;
- Policy - Arrest and Release;
- Policy - Incident Command;
- General Report;
- Communications recordings;
- Negotiation recordings (failed because of equipment malfunction);
- Notes-WO #7;
- Notes WO #5;
- Notes-WO #1;
- Notes-WO #9;
- Notes-WO #6;
- Notes-WO #10;
- Notes-WO #3;
- Notes-WO #4;
- Notes-WO #2;
- Notes-WO #8; and
- Training records – the SO.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between July 11 and 24, 2023: - Halton Paramedic Ambulance Call Report; and
- Medical records from the HGH.
Incident Narrative
Shortly after 7:00 p.m. of June 27, 2023, HRPS officers were dispatched to an apartment in the area of Dynes Road and Prospect Street, Burlington. Paramedics attending at the residence to check on the Complainant’s well-being following a 911 call by a family member – CW #1 – were confronted with what appeared to be a gun pointed in their direction. They had fled the unit with CW #1 in tow.
The SO, armed with a C8 rifle, arrived on the floor of the building containing the Complainant’s apartment at about 7:15 p.m. He was joined by other officers maintaining observation on the unit. They were to control the scene until such time as tactical officers could be mobilized. WO #3 and WO #1 were present with the SO near the elevators. WO #1 called-out to the Complainant asking that he exit the apartment with his hands in the air and no weapons. Telephone calls placed to the Complainant made the same request. The Complainant rejected each overture, at times reacting nonsensically, at others, with profanity or threats, at still others, not at all. He made it clear he had a gun and would shoot the officers if they entered his residence.
Trained negotiators arrived on scene and took over communications at about 8:40 p.m. Repeated phone calls to the Complainant continued to yield the same results.
At about 9:27 p.m., the Complainant again opened the door, this time exposing part of his torso, head, and a hand in the direction of the officers. He raised an arm and pointed what appeared to be a gun at the officers before returning inside and closing the door. The SO reported that he had seen a gun.
At about 9:34 p.m., as he had done the time before, the Complainant emerged partially past the threshold of the door. His face close to the door frame, the Complainant extended his left arm in the direction of the officers holding what looked like a gun. The SO took aim with his C8 rifle and fired a single shot.
The round struck the Complainant’s left arm. He immediately turned into his unit closing the door, after which the Complainant was heard groaning in pain.
As the HRPS tactical team was unavailable, the HPS ERU had been asked to deploy at the scene. They arrived on the floor of the Complainant’s apartment at about 9:45 p.m. and took charge of police operations. ERU officers entered the unit at about 10:21 p.m. and took the Complainant into custody.
The Complainant was taken to hospital and treated for a gunshot wound and related fractures to the left arm.
Relevant Legislation
Section 34, Criminal Code - Defence of Person – Use or Threat of Force
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
Section 87(1), Criminal Code -- Pointing a Firearm
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. In the instant case, I am satisfied that the SO’s firearm discharge fell within the four corners of the protection set out in the provision.
The SO was lawfully present and in the discharge of his duties when he arrived in the hallway of the Complainant’s apartment to assist in taking the Complainant into custody. The Complainant had pointed what appeared to be a firearm in the direction of paramedics attending at his residence to check on his welfare. Though the gun was a pellet gun, it gave the appearance of being a firearm of the lethal kind. In the circumstances, the officers were within their rights in seeking to arrest the Complainant for ‘pointing a firearm’ contrary to section 87 of the Criminal Code.
The SO says in his account to the SIU that he fired his weapon fearing for his life, and I believe him. The Complainant had over a protracted period claimed to have a gun and indicated he would shoot the officers if they entered his residence. He had also pointed what appeared to be a firearm at paramedics. Now confronted by the Complainant pointing an apparent firearm in his direction, the SO had every reason to believe that his life was in imminent danger and that defensive action was immediately required to protect himself. Of note, WO #1 and WO #3, similarly situated as the SO, were of the same mindset.
The resort to gunfire, lastly, constituted reasonable force. Believing, as he was entitled, that the Complainant had a gun pointed at him, it is difficult to see what other defensive course the SO might have adopted. What was required in the moment was the immediate stopping power of a firearm. Retreat or withdrawal to a position of cover were not viable alternatives. Each would have left the officer in the Complainant’s line of fire even if only for a moment, during which time the SO might have been shot. Moreover, that option would not have done for WO #1 and WO #3, who were also in harm’s way. In the final analysis, it seems to me that the SO’s conduct was commensurate with the exigencies of the moment when he chose to meet a reasonably apprehended threat of grievous bodily harm or death with a resort to lethal force of his own.
In the result, as there are no reasonable grounds to conclude that the SO comported himself other than within the limits of the criminal law when he shot the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: December 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.