Director's Report Details

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.

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: 

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 21-year-old man (the “Complainant”).

Notification of the SIU [1]

On October 6, 2023, at 10:39 p.m., the Peel Regional Police (PRP) notified the SIU of a firearm discharge at the Complainant.

According to the PRP, on October 6, 2023, at 8:48 p.m., the Subject Official (SO) conducted a traffic stop of a vehicle driven by the Complainant. The SO attempted to arrest the Complainant, and a foot chase ensued. The SO caught the Complainant and the two struggled. The Complainant bit the SO on several occasions and the SO discharged his firearm. The bullet did not strike any person or known object, and it was unknown where the bullet might have lodged. During the struggle, Witness Officer (WO) #1 arrived and discharged his conducted energy weapon (CEW). The Complainant was arrested, and both he and the SO were transported to the Brampton Civic Hospital. It was not believed that either person had sustained a serious injury. The Complainant, on his discharge from the hospital, was to be transported to PRP and held for a bail hearing on several criminal charges.
 

The Team

Date and time team dispatched: 10/06/2023 at 10:54 p.m.

Date and time SIU arrived on scene: 10/07/2023 at 12:35 a.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

The Scene

The events in question transpired on Glidden Road, just east of train tracks, east of Kennedy Road South, Brampton.

Scene Diagram

Physical Evidence

On October 7, 2023, at 12:37 a.m., a SIU forensic investigator arrived at the scene. The weather was cool at nine degrees Celsius and the area was semi-industrial.

A dark unmarked police vehicle - a Hyundai Sante Fe - was parked in the middle of the roadway, just west of an access drive facing east. The vehicle was running and had its emergency lights activated. The vehicle was later found to be operated by WO #5, who was not involved in the incident and showed up after the fact.

On the ground around and near the vehicle were items that had been marked out on the roadway. Photographs were taken of the area, the vehicle, and the property. An additional search of the area with the use of a bright light was conducted to determine if any other evidence could be located.

Collected from the scene were:

• One silver cartridge case, which was a Hornady 9mm LUGER. [Photographs of an impact mark on the roadway were taken.]
• A gold neck chain and pendant.
• A swab of red/brown staining (possibly blood).
• Two CEW cartridges, and a CEW probe and wire.

Figure 1 - Bullet impact mark on the roadway

The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.

In the evening of October 6, 2023, the SO was on patrol operating an unmarked police vehicle. With him in the passenger seat was his partner – WO #1. The officers, members of the PRP Strategic Tactical Enforcement Policing (STEP) unit, had travelled to Kennedy Road South and Chamney Court – an area prioritized for proactive law enforcement – and come upon a parked vehicle whose licence they checked against police records. Learning that the licence plate had been reported stolen, the officers decided to wait to see who might return to the vehicle. They eventually observed a male enter the vehicle and reverse onto the driveway of a residence on Chamney Court.

The male was the Complainant. He had exited the vehicle and was quickly confronted by WO #1 and the SO telling him he was under arrest. The Complainant ran from the officers eastward on Chamney Court, crossing Kennedy Road South and continuing east on Glidden Road.

The officers chased the Complainant on foot. The SO caught up with him in the area of train tracks, some 330 metres east of Kennedy Road South. He tackled the Complainant to the ground and then struggled to arrest him. The Complainant resisted arrest, biting the officer a number of times. In the course of their altercation on the ground, the SO’s firearm discharged. The round impacted the roadway. WO #1 arrived on scene and fired his CEW at the Complainant multiple times before he was handcuffed behind the back.

Following his arrest, the Complainant was transported to hospital to have CEW probes removed from his body. He was not diagnosed with any serious injury.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

Section 86, Criminal Code – Careless use of a firearm, etc.

86 (1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.

(a) is guilty of an indictable offence and liable to imprisonment

(i) in the case of a first offence, for a term not exceeding two years, and

(ii) in the case of a second or subsequent offence, for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

On October 6, 2023, the PRP contacted the SIU to report that one of their officers had earlier that day fired his gun in the course of arresting a male – the Complainant. The SIU initiated an investigation of the incident naming the SO 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 his firearm.

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 WO #1 each told the SIU that they had observed the Complainant enter and then operate a vehicle with a stolen licence plate attached. In the circumstances, it would appear the officers were within their rights in seeking to arrest him for possession of stolen property.

With respect to the force brought to bear by the SO, I am unable to reasonably conclude that it was unlawful. The evidence establishes that the Complainant vigorously resisted his arrest by, first, engaging in a determined flight from the SO for several hundred metres and, then, fighting the officer after he had been tackled to the ground. The melee on the ground had the Complainant biting the officer on several occasions and the officer reacting by delivering two to three punches in the head. That quantum of force, in the context of a spirited altercation between the parties, falls short of being excessive.

There remains the question of the firearm discharge. There is a body of evidence that suggests the SO drew his weapon as the Complainant lay prone on the ground and fired it at him. The bullet missed the Complainant, and he reacted by swiping the gun out of the officer’s hand. On the other hand, the SO says that he and the Complainant struggled for possession of the gun after he (the Complainant) had attempted to remove it from the officer’s holster and the officer drew it to distance the weapon from his reach. The firearm accidentally discharged in the course of that struggle. There are good reasons for preferring the SO’s rendition of events on this point. The aforementioned body of evidence also suggests the Complainant had already been ‘tasered’ by another officer before the SO’s gun went off. That evidence, however, is contradicted by the officer who fired the CEW – WO #1 – who indicates the shooting happened before he arrived on scene. On this record, it would be unsafe and unwise to rest charges based solely on the more incriminating account of the shooting as there is no reason to believe it is any likelier to be closer to the truth than the SO’s story. That story, being one of accidental and inadvertent firearm discharge, cannot give rise to liability based on an intentional use of force.

Was the SO, however, careless in the use of his firearm contrary to section 86(1) of the Criminal Code? As an offence of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, the offence is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which the SO handled his firearm, sufficiently egregious to attract criminal sanction. In my view, there was not.

The SO says that the Complainant was attempting to take possession of his firearm from its holster and that he removed it in order to prevent that from happening. That seems a reasonable course of action in the circumstances. Thereafter, when the Complainant was nevertheless able to take hold of the barrel of the weapon and began to wrestle with the SO for it, the firearm is said to have discharged. That was not a surprising outcome, whether the result of one or the other party accidentally pulling the trigger while tussling with each other or the weapon impacting the ground. Be that as it may, I am not reasonably satisfied that the discharge was the result of criminally careless conduct by the officer, who had cause to fight the Complainant for control of the gun.

For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO. [4] The file is closed.


Date: January 26, 2024


Electronically approved by

Joseph Martino
Director
Special Investigations Unit