Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the death of a 25-year-old man who was shot by police on December 13, 2017 during a hostage situation at a bank.

Notification of the SIU

At approximately 2:25 p.m. on December 13, 2017, the York Regional Police (YRP) notified the SIU of the death of the Complainant.

The YRP reported that shortly after 1:00 p.m. on December 13, 2017, a man armed with what appeared to be a bomb walked into the Royal Bank of Canada (RBC) branch at Major Mackenzie Drive and Dufferin Street in the City of Vaughan. The man kept people in the bank as hostages.

The YRP reported that authorization was given to eliminate the threat posed by the man, and that he was shot and killed. The scene was then held as YRP investigators were attempting to determine the level of danger posed by the explosive device. The deceased man was still at the scene. The YRP had no information as to the identity of the deceased man at the time that the SIU was notified.

The Team

Number of SIU Investigators assigned: 8

Number of SIU Forensic Investigators assigned: 4

SIU investigators interviewed civilian and police witnesses, conducted a canvass for additional witnesses, and searched for closed circuit television (CCTV) images relevant to the incident. The SIU forensic investigator made a digital photographic record of the scene, collected physical evidence, and seized exhibits relevant to the incident.

Access to the secured scene, inside and peripheral to the bank, by the forensic investigator was delayed due to uncertainty in respect of possible explosive devices in the bank and attached to the Complainant’s person, and in the vehicle he had parked beside the bank. Once YRP police officers and supporting OPP police officers who had specialized skills had ensured that the bank and its adjoining parking area were safe, the SIU forensic investigator was afforded unhindered access to the scene.

A cellular telephone was recovered in the Complainant’s clothing by the SIU forensic investigator during the post-mortem examination at the Centre of Forensic Sciences and submitted for analysis to the Ontario Ministry of Finance Advisory and Compliance Branch. The cellular telephone had been both encrypted and password-protected by the Complainant, thus preventing analysis.

Complainant:

25-year-old male, deceased

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Interviewed

CW #10 Interviewed

CW #11 Interviewed

CW #12 Interviewed

CW #13 Interviewed

CW #14 Not Interviewed (Next-of-kin)

CW #15 Not Interviewed (Next-of-kin)

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

WO #5 Interviewed, notes received and reviewed

WO #6 Interviewed, notes received and reviewed

Police Employee Witnesses

PEW #1 Not interviewed; no relevant information to offer

Subject Officers

SO #1 Interviewed, notes received and reviewed

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right

SO #3 Declined interview and to provide notes, as is the subject officer’s legal right

SO #4 Declined interview and to provide notes, as is the subject officer’s legal right

On December 13, 2017, at about 1:00 p.m., the Complainant entered the RBC branch at Major Mackenzie Drive and Dufferin Street, in the City of Vaughan, through its main doors, brandishing what appeared to bank personnel and customers to be a semi-automatic handgun. He was carrying a backpack-style bag and alerted the bank’s occupants that he had explosives in the bag and attached to his body. The Complainant ordered everyone in the bank to get down on the floor. The Complainant pointed the handgun at the face of a customer who was about to enter the bank through the same main doors and ordered him to leave. The Complainant then quickly locked the outer double doors using a flexible bicycle cable-lock to prevent anyone from entering or exiting the bank.

The Complainant pointed his handgun at CW #7, a bank employee, and ordered her to tie up the other employees and bank customers with the Zip Ties that he had brought into the bank with him.

The Complainant ordered CW #8, a customer, to place a 911 call to the YRP, on his behalf, using the customer’s cellular telephone and to inform the YRP that unless the YRP delivered a quantity of best-quality ‘crystal meth’ to the bank and put the United States’ President, Donald Trump, on the telephone with him, he would detonate his body-worn explosives and the explosives in the backpack, thus killing all of the hostages and himself.

Over the course of the ensuing hour, the YRP deployed a significant number of uniformed police officers to secure the area. YRP police officers with specialized training in tactical, explosives technology, crisis negotiating, and sharpshooting ‘sniper’ skills, were also deployed, with several of these officers gaining discrete entry into the bank through a secondary door that had not been detected and secured by the Complainant.

The situation inside the bank was both volatile and dangerous, with the prospect of hostages and police officers inside the bank being killed or seriously injured by the Complainant. SO #1 directed the two YRP snipers, SO #2 and SO #3, who were inside the bank, to use an expression which will hereinafter be referred to as “the lethal force choice”, meaning they were to shoot the Complainant in order to terminate the threat that he posed to the hostages, other persons in the community, and the police officers inside the bank.

SO #1 articulated his directive to SO #4, who had direct authority over SO #2 and SO #3. Acting on the order of SO #4, SO #2 and SO #3 discharged their long-guns at the Complainant when they were able to get a clear and unobstructed shot. The front of the Complainant’s head was struck by two copper-jacketed rifle projectiles killing him instantly, before he was able to either detonate any explosive device or discharge the handgun that he had been pointing at the hostages and police for nearly an hour.

It was later discovered that unbeknownst to police or any of the hostages at the time of the incident, the Complainant had armed himself with an imitation .45 calibre semi-automatic handgun and the supposed explosives on his person and in his backpack were actually made of plumbing materials, plastic and electronic components, and harmless circuit-free wires.

Cause of Death

The cause of death as determined by the Pathologist at the post-mortem examination was indicated as “perforating gunshot wounds of head.”

The Scene

The scene was located inside the RBC bank located at Major Mackenzie Drive and Dufferin Street in the City of Vaughan.

Scene Diagram

Physical Evidence

At the scene of the incident, SIU forensic investigators seized the following exhibits:

• one imitation Winchester .45 calibre CO2 lead pellet pistol

• pipe bomb components including electrical wires

• one Beyblade ® palm-held toy-launcher reconfigured to appear as a ‘dead-man’ switch bomb detonator

• Zip Ties
• a flashlight
• a fabric travel bag containing miscellaneous electrical components

• a pocket-size digital scale typically used for weighing contraband drugs with possible drug substance therewith, and
• the bicycle lock used to secure the doors to the bank

Additionally, at the post-mortem examination of the Complainant, SIU forensic investigators seized two hunting-style knives that were concealed in the Complainant’s clothing.

At the scene of the incident, SIU forensic investigators also seized the following exhibits in relation to SO #1 and SO #2 of the YRP:

• one LaRue 7.62 mm semi-automatic sniper rifle
• one rifle magazine containing nine undischarged 7.62 mm cartridges
• one empty brass .308 calibre Winchester cartridge
• one Remington Model 700 bolt action .308 calibre rifle
• one rifle magazine containing 14 undischarged .308 calibre cartridges, and
• one empty silver-coloured .308 calibre Winchester cartridge

Forensic Evidence

The firearms used by SO #2 and SO #3 were submitted to the Centre of Forensic Sciences (CFS). The CFS reports on the firearms indicated that the long-guns deployed by SO #2 and SO #3 functioned as designed and were without any defects at the time they were discharged.

Biological samples obtained from the body of the Complainant during the post-mortem examination were also submitted to the CFS. The results indicated that no alcohol or narcotics were detected in the Complainant’s femoral blood or urine. This information was included in the Ontario Forensic Pathology Services’ report dated May 16, 2018, received by the SIU on June 20, 2018.

Expert Evidence

On December 15, 2017, a post-mortem examination was performed on the Complainant. At the conclusion, the pathologist determined that the cause of death was “perforating gunshot wounds of head.”

On June 20, 2018, the SIU received the Ontario Forensic Pathology Services’ report dated May 16, 2018, which, in referring to the cause of death of the Complainant, stated that death would have occurred rapidly. The report further stated that the Complainant’s medical history included an incompletely characterized psychosis identified in 2015 that was proposed in an Emergency Department psychiatric consultation as schizophrenia on the basis of a three-year history of increasing auditory hallucinations and delusions of reference. The Complainant was lost to follow-up after a trial of atypical antipsychotic therapy and clinical follow-up was recommended in emergency psychiatric consultation. The Complainant also suffered non-specific headache in 2016, and several minor face and head injuries in the period from 2009 to 2013. The report indicated that the Complainant’s suspected psychosis could be characterized as a significant contributing factor to his death, as it might have affected the Complainant’s judgment, including his decisions about threatening and taking hostages at a bank. Definitive characterization and diagnosis of the psychosis was not made.

Video/Audio/Photographic Evidence

CCTV Data

The SIU obtained a copy of the video recordings from the RBC. The video recordings were from the interior of the bank. The video was time stamped and commenced at 11:59:07 a.m. and concluded at 3:01:31 p.m. The video depicted an interaction between the Complainant and YRP officers, summarized as follows:

At 11:59:07 a.m., the video commenced and provided an interior view of the RBC branch.

The camera’s focal range overlooked the front lobby and teller area of the bank.

At 1:07:27 p.m., the Complainant entered the front entrance of the bank. He was dressed in a long, dark trench coat and wore tan construction boots. The Complainant had a black handbag in his left hand, which he placed inside the lobby before returning to the entrance doors, where he placed a lock around the door handles. The Complainant returned to the lobby and held a black handgun in the air and pointed it towards customers and staff members of the bank.

At 1:08:10 p.m., the Complainant appeared to communicate with a female [now known to be CW #7] and summoned her assistance to tie up the other hostages inside the bank. The Complainant and CW #7 used white Zip Ties to fasten the wrists of the hostages behind their backs while they lay on the floor in the lobby. The Complainant tied the remaining hostages to office chairs on the east side of the bank.

At 1:19:12 p.m., the Complainant walked towards a hallway on the south side of the lobby. The Complainant appeared to be communicating with someone [believed to be WO #1 and WO #2] who were down the hallway which served as a passageway to other offices and the lunch room. The Complainant pointed the handgun with his right hand down the hallway while he ran backwards toward the teller wickets on the north side of the bank. The Complainant accompanied a woman [believed to be CW #6] who was seated on a chair behind the teller wickets in a location that was visible to WO #1 and WO #2 from down the hallway. The Complainant pointed the handgun at the back of CW #6’s head, with his right index finger placed on the trigger. He held a grey object in his left hand [now known to be a replica detonator switch]. The Complainant appeared to maintain conversation with WO #1 and WO #2, who remained down the hallway.

At 1:26:05 p.m., the Complainant pointed the handgun toward the hallway while maintaining contact with his right index finger on the trigger. The Complainant lowered the handgun from the rear of CW #6’s head but continued to hold the replica detonator in his left hand while he continued to communicate with unseen officers down the hallway.

At 2:02:23 p.m., the Complainant appeared to be shot in his standing position behind the teller wickets and a portion of his body was observed falling to the floor. CW #6 then immediately shifted her weight off of the office chair and began to run. The other hostages also ran simultaneously toward the hallway located on the south side of the bank. Five Emergency Response Unit (ERU) police officers immediately entered the lobby from the south hallway. The police officers were dressed in grey tactical uniforms and wore helmets. They each carried an assault rifle and had thigh holsters for their handguns. The final ERU police officer appeared to be dressed in a similar grey tactical uniform but wore a black hat and held a larger rifle with a bipod located at the end of the barrel. The ERU police officers and WO #2 assisted with escorting the hostages out of the bank through the hallway that led south and out of the camera’s focal range. The police officers continued to check and clear the remaining rooms inside the bank.

At 2:03:32 p.m., an additional five ERU police officers entered through the front entrance of the bank but immediately retreated upon discovery of the black handbag initially carried in by the Complainant. The black bag was on top of the teller wicket desks.

At 2:09:00 p.m., four ERU police officers returned and conducted a visual assessment of the bank and observed the black handbag from a distance.

At 2:12:04 p.m., an ERU police officer placed a large black soft-sided box overtop of the handbag. No further assessment of the device had been completed during the camera’s recording, and at 3:01:31 p.m., the video recording concluded.

Communications Recordings

The following is the verbatim transcription of the 911 communications call placed by CW #8 to the YRP upon the direction of the Complainant. The communications included words spoken by the Complainant and recorded by the YRP as an audio file dated December 13, 2017, from 1:12:42 p.m. to 1:14:48 p.m.:

• Communications: “911, Do you require police, fire or ambulance?”
• CW #8: “Uh, police I guess.”
• Communications: “Ok, where is your emergency?”
• CW #8: “What’s the address? 1520 Major Mackenzie Drive.”
• Communications: “One, five, two, zero, Major Mackenzie?”
• CW #8: “Yep.”
• Communications: “Major Mackenzie Drive West?”
• CW #8: “Yeah.”
• Communications: “K and what’s going on there?”
• CW #8: “We’ve been told to get a gram of crystal meth here and Donald Trump on the line.”
• Communications: “I’m sorry?”
• CW #8: “We’ve been told to get a gram of crystal meth and Donald Trump on the line.”
• Communications: “And, and, who are you?”
• CW #8: “I’m uh, one of the patrons here.”
• Communications: “Ok, but sorry, where are you calling from sir?”
• CW #8: “We’re not, I’m not in control ma’am.”
• The Complainant: “Royal bank!”
• Communications: “Royal bank?”
• The Complainant: “Yes.”
• Communications: “Ok, alright.”
• The Complainant: “I have a bomb strapped and six more bombs are going to go off at six in a highly populated area.”
• Communications: “Sorry, you have a bomb strapped to where sir?”
• The Complainant: “To myself.”
• Communications: “And this is the RBC bank?”
• The Complainant: “Yes, if I don’t have a gram of crystal meth and Donald Trump on the phone before five, then all six bombs are going to go off.”
• Communications: “Ok, so listen to me. Do you want to speak to Donald Trump? Do you? Hello? Hello? Hello? Hello?”

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the YRP:

• 911 and communications audio recordings
• Critical Incident Command Certificate of SO #1
• Detailed Call Summary
• EDU Incident Report
• Incident Report-Explosive Disposal Unit
• List of Hostages (Employees and Clients)
• List of Involved Officers and Roles
• List of Potential Civilian Witnesses/Business Owners Adjacent to Scene
• Notes of WO #s 1-6 and SO #1
• Police Firearms Acquired - CFP
• Procedure: Use of Force
• Procedure: Containment and Response to Armed Persons Hostage and Barricaded Persons
• Procedure: Major Incident Command
• Procedure: Bomb Threats, Explosions and Suspicious Objects
• Sniper Certifications of SO #s 2 and 3
• Training Record (rifle re-qualification of SO #2)
• Training Record (rifle re-qualification of SO #3)
• Training Record of SO #2
• Training Record of SO #3
• Training Record of SO #4
• UCRT After Action Report – Ontario Provincial Police (OPP)
• Waterloo Regional Police Service (WRPS) Intergrated Computer Dispatch (CAD) Details
• WRPS Crown Brief Synopsis
• WRPS General Report
• WRPS List of Occurrence Involvements
• YRP Witness List
• YRP Photo and data re: the Complainant
• YRP video of interview of an undesignated Civilian Witness, and
• YRP video from YRP robotics deployed to the scene

Upon request, the SIU obtained the following documents and materials from other sources:

• CFS Firearms Report
• CFS Toxicology Report
• Post-Mortem Report dated May 16, 2018
• Drawing of Scene from ten witnesses, and
• RBC CCTV data and floor plans

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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.

25 (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservations of any one under that person’s protection from death or grievous bodily harm.

Section 27, Criminal Code of Canada – Use of Force to Prevent Commission of Offence

27 Every one is justified in using as much force as is reasonably necessary

1. to prevent the commission of an offence
   1. for which, if it were committed, the person who committed it might be arrested without warrant, and
   2. that would be likely to cause immediate and serious injury to the person or property of anyone; or
2. To prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a)

Section 34, Criminal Code - Defence of Person – Use of Threat of Force

34 (1) A person is not guilty of an offence if

1. 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
2. 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
3. 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:

1. the nature of the force or threat
2. 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
3. the person’s role in the incident
4. whether any party to the incident used or threatened to use a weapon
5. the size, age, gender and physical capabilities of the parties to the incident
6. 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;
   6. (f.1) any history of interaction or communication between the parties to the incident
7. the nature and proportionality of the person’s response to the use or threat of force, and
8. whether the act committed was in response to a use or threat of force that the person knew was lawful

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.

Section 346 (1), Criminal Code – Extortion

346 (1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.

1. Every person who commits extortion is guilty of an indictable offence and liable

1. If a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment of
   1. in the case of a first offence, five years, and
   2. in the case of a second or subsequent offence, seven years

1. (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years, and
2. in any other case, to imprisonment for life

Section 264.1, Criminal Code - Uttering threats

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

1. to cause death or bodily harm to any person
2. to burn, destroy or damage real or personal property; or
3. to kill, poison or injure an animal or bird that is the property of any person

Section 279, Criminal Code – Kidnapping/Forcible Confinement

279 (1) Every person commits an offence who kidnaps a person with intent

1. to cause the person to be confined or imprisoned against the person’s will
2. to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or
3. to hold the person for ransom or to service against the person’s will

1. Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

1. If a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
   1. in the case of a first offence, five years, and
   2. in the case of a second or subsequent offence, seven years

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;

(a.2) if the person referred to in paragraph (1)(a), (b) or (c) is under 16 years of age, to imprisonment for life and, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of the person referred to in that paragraph, to a minimum punishment of imprisonment for term of five years and

(b) in any other case, to imprisonment for life.

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

1. an indictable offence and liable to imprisonment for a term not exceeding ten years; or
2. an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months

The following factual summary of events was ascertained based on the evidence gathered from 13 civilian witnesses who were inside the RBC branch during the incident involved in this investigation. There is no dispute as to the facts.

The Incident inside the Bank:

On December 13, 2017, the RBC located at 1520 Major Mackenzie Drive West in the Community of Maple, City of Vaughan, was open for business when, at approximately 1:05 p.m., the Complainant entered the bank. There were three customers and ten bank employees in the bank at the time (including two bank employees who were hiding in their offices).

The Complainant was seen to be holding what appeared to be a handgun, which one witness described as being similar to a Glock pistol, and appeared to have a bomb strapped to his body. The bomb was described as four silver pipes with a ‘trigger switch,’ and the Complainant’s thumb was strapped down over the ‘trigger switch’ with a piece of Velcro. The handgun was in one of the Complainant’s hands, while the thumb of his other hand was secured to the ‘trigger switch’.

One of the female employees inside the bank asked the Complainant, “Are we getting robbed?” and the Complainant ordered everyone to get down on the floor.

CW #2, the assistant bank manager, observed the Complainant drop a bag or suitcase on the floor and then wave a gun about and ordered, “Everyone get on the floor”. When the Complainant asked where the bank manager was, CW #2 identified himself as the assistant manager and the Complainant directed him to lock the accordion door that separated the ATM from the branch itself. CW #2 described the Complainant as, “Not all there and not mature.” CW #2 further indicated that the Complainant had a lot of Zip Ties, a big silver handgun, what appeared to be pipe bombs strapped to a bullet-proof vest, and a metal pipe with a white cable attached to it.

CW #8, a customer in the bank at the time, described the Complainant’s jacket opening as he ran past him, exposing a bomb constructed of at least two black tubes or pipes attached to the left side of his body with a white strap.

CW #2 heard the Complainant tell a number of people to get up off the floor and sit on chairs, as he did not want them suffering.

The Complainant then approached a staff member, CW #7, and stated, “I need you! You’re gonna be my little assistant!” while handing her three packages of Zip Ties. The Complainant then bound another employee, CW #6, with her hands behind her back. When CW #6 cried out in pain, the Complainant apologized. When CW #6 then went to the floor, at the Complainant’s direction, and her eyeglasses fell from her face, the Complainant gently picked them up, folded them, and placed them onto the counter, while again apologizing. At one point, the Complainant politely asked CW #7 to turn off the Christmas music that was playing in the background inside the bank, but he sang along until she was able to do so.

The Complainant was described throughout the incident as polite, apologetic, and not physically aggressive with any of the hostages; at no time did he ask for money. He did, however, have his gun pointed at CW #6’s head, from a distance of about four inches, throughout the incident. When CW #7 began to cry, the Complainant reassured her by saying, “Don’t worry, I won’t hurt you.”

CW #12, who had been in her office with the door closed, exited when she heard the outer door, which was usually left open, close and she heard a loud voice. Upon exiting, she observed that the employees and customers inside the store were all seated in close proximity to the tellers’ counter and she surmised that a robbery was in progress. When she tried to return to her office, the Complainant pointed his gun at her and told her to come back and sit down, following which she sat on the floor with the others. The Complainant, however, told her that she could sit on a chair which was located two metres from the emergency exit. CW #12 noticed that other people who were seated on chairs had their arms strapped to the chairs with Zip Ties. The Complainant then asked CW #7, who he referred to as his “helper,” to strap CW #12 to her chair as well.

The Complainant was heard to ask if anyone else was hiding in the bank and where all the exits to the bank were located. When the Complainant asked about the door near CW #12, CW #6 advised him that it was an emergency door.

The Complainant asked who in the bank had a cell phone and a male customer, CW #8, indicated that he did, at which point the Complainant directed CW #8 to call 911. When CW #8 connected with the 911 operator, the Complainant directed CW #8 to tell her where he was calling from and that he wanted one gram of crystal meth and to speak with Donald Trump.

The recording of the 911 call, which was noted as coming in at 1:12:42 p.m. and lasted two minutes and six seconds, reveals that when CW #8 was not being clear enough about what was being demanded, the Complainant can be heard in the background yelling that they are in the “Royal Bank” and the following conversation is recorded:

• The Complainant: “I have a bomb strapped and six more bombs are going to go off at six in a highly populated area.”
• 911 Operator: “Sorry, you have a bomb strapped to where sir?”
• The Complainant: “To myself.”
• 911 Operator: “And this is the RBC bank?”
• The Complainant: “Yes, if I don’t have a gram of crystal meth and Donald Trump on the phone before five, then all six bombs are going to go off.”

When the operator tried to clarify, the Complainant took the phone and terminated the call.

When an alarm went off inside the bank, the Complainant asked who else was inside the bank and he ran towards the lunch room. At that point, CW #6 opined that they (the hostages) were all dead, but the Complainant did nothing. When the Complainant turned his back, however, and moved toward the alarm, CW #12 took the opportunity to quickly get up, while still strapped to her chair, push the emergency handle on the exit door, and run outside.

Upon exiting the bank, CW #12 saw a uniformed police officer standing outside the door with a long rifle. CW #12 ran behind a police vehicle and the emergency door swung shut behind her. She was then taken to a place of safety where she was quickly questioned by a police officer about how many persons were inside the bank, what the Complainant was doing, and whether or not he had a gun.

From inside the bank, while the bank alarm continued to sound, CW #6 saw ERU police officers outside of the bank, two of whom were visible in the doorway across the room by the RBC Insurance entrance; she estimated that these officers were located approximately 40 feet away from herself and the Complainant.

When the police officers initially entered the bank, CW #2 described the Complainant as having “freaked out” and that he grabbed CW #6 and pointed the gun at her head. CW #2 heard the Complainant tell a police officer, “I don’t want to hurt nobody,” but that he still wanted his meth.

The Complainant stood behind CW #6 and spoke with the police officers, advising that he wanted the crystal meth by 2:30 p.m. and that he had six bombs planted throughout the City of Toronto. The Complainant further told the officers that he wanted his demands met by 5:00 p.m. or he would blow himself up, with the six other bombs detonating thereafter at 6:00 p.m. CW #2 overheard the Complainant tell the officers that he had a ‘dead man’s switch’ and that if he let go, everyone would get blown up.[1] The Complainant also indicated that he had six other bombs located elsewhere, which would explode if he did not have his meth by 2:30 p.m.

CW #2 heard the Complainant tell the officer that if he got his meth by the 2:30 p.m. deadline, that by 5:00 p.m. he would tell them where the six other bombs were and that they would be able to get to them by 6:00 p.m.

CW #8 overheard the Complainant tell the police officer that a lot of people would die if the bombs exploded and, “See this? Pressure switch. I let go of this, the bomb goes off.”

One police officer, WO #2, was described as negotiating with the Complainant, and the Complainant was heard to tell him that he had suffered a head injury as a result of a fight with men who had hit him in the head with a “two-by-four” and that he had suffered brain trauma. The Complainant was also heard to tell WO #2 that he wanted the crystal meth in order that he could have “the best ride of my life” for two hours.

The Complainant, when asked about what he wanted, also yelled for the internal bank alarm to be turned off. WO #2 assured the Complainant that efforts were being made to do so and, shortly thereafter, the alarm stopped.

When WO #2 asked the Complainant what would happen after he got his demands, the Complainant advised that he needed two to three hours of peace and quiet and that he wanted to enjoy what was left of his life. The Complainant explained that he wanted three hours without interruption to enjoy his crystal meth, after it was delivered, following which at 5:00 p.m., he would disclose the locations of the six other bombs and that everyone would walk out of the bank and he would defuse the bomb on his person.

After the Complainant stated that he wanted to enjoy what was left of his life and that, “You guys know I’m dead today”, WO #2 responded that it did not have to be this way and explained that no one had to die. The Complainant responded, “Make sure my family does not know about this … you know who I am, you know what I am capable of.” The Complainant then started to push CW #6 away from himself.

When an older male customer, CW #4, tried to calm and reason with the Complainant, the Complainant referred to the incident inside the bank as being “Hell on Earth.” CW #4 implored the Complainant not to do what he was doing, as everyone had a family and children, but the Complainant just ignored him. CW #4 also heard the Complainant say that at “2:30, you leave,” while CW #2 heard him say, “If I get what I want, nobody’s gonna get hurt.”

CW #8 heard WO #2 continue to reassure the Complainant and the Complainant frequently tell the officer to “Stop pointing your gun at me.” When the officer explained that the gun was for the safety of the police officers and of the Complainant himself, that YRP officers were not going to kill him, and to put his gun down, the Complainant stated words to the effect of, “You guys know I’m dead today.”

CW #2 heard WO #2 tell the Complainant that the meth was on the way and the Complainant asked if it was fresh, after which things went quiet for a bit and the Complainant said, “Guys, get yourselves a pillow, because it looks like we’re going to be here for a while.”

WO #2 was described by various witnesses as trying to calm the Complainant and that he continuously asked the Complainant what he wanted and tried to defuse the situation without rushing; his demeanour and voice were described as calm and he was handling the situation well.

CW #13 saw two police officers situated in a single doorway that was normally secured and accessed only with a key fob. He heard the police officers attempting to negotiate with the Complainant and heard discussions about hostages and a pipe bomb. He described the police officers as trying to calmly consider the Complainant’s demands and to negotiate with him, while the Complainant sounded irate and was irrational with his demands. CW #13 described the negotiations as, “The police officers did the best job you would expect them to do with calming this man down.”

CW #11, who was hidden inside her office during the ordeal, described hearing the negotiating officer speaking with the Complainant and she described his demeanour as calm and that he engaged the Complainant in conversation. CW #11 described the conversation between the Complainant and the negotiating police officer as lasting approximately one hour. She also overheard the Complainant telling the police officer that he had last used crystal meth in 2012 and that he “liked the rush”. She also heard him speak about his head injury and how it was caused.

When the bank alarm went on and off three times, CW #11 heard WO #2 telling the Complainant not to panic.

CW #2 was of the view that the police did the right thing in this incident.

CW #10, another bank employee, observed the Complainant tell the police officers who had entered the bank to put their guns down or he would kill everyone. When CW #12 escaped through the emergency door, the Complainant returned to the tellers’ counter and pointed his gun at CW #6’s head and said he was going to shoot her. He then again told the police to put down their guns or he would kill everyone, to which a police officer responded, “Okay, okay, we are not going to shoot. What do you want?” and the Complainant made his demands. The Complainant was then heard to say that if anyone did anything wrong, he would press the remote detonator and everyone would die, and that he had placed six bombs elsewhere and that he would give them the addresses.

CW #10 also heard the Complainant ask the police officers if they were going to take him to jail, and WO #2 indicated that they were not going to do that. CW #10 heard the Complainant ask the police officers, “Which one of you is the killer?” and he displayed the remote detonator to the officers. During the lengthy conversation between the police negotiator and the Complainant, the Complainant was assured that the crystal meth had been ordered and was on its way and the Complainant responded that “If you guys help me, I won’t kill anyone.”

One customer was heard to tell the Complainant, “If you are going to kill someone, kill me, let the others go,”[2] at which point CW #10 believed that the Complainant was going to kill him, as he was between the police officers and the Complainant.

WO #2 was observed to be wearing a ballistic vest and had a rifle in his hand, while two other police officers, one of whom would come and go, were lying on the floor pointing their lasers at the Complainant’s body. The Complainant was described as standing behind the counter with his head and torso exposed to the police officers. While the Complainant was initially standing behind CW #6, where she was strapped in her chair, he gently pushed her chair toward the emergency exit and she rolled approximately six to twelve inches away from him. Once CW #6 was clear of the Complainant, a police officer shot the Complainant and other police officers then rushed into the bank and evacuated everyone.

The CCTV footage from the interior of the RBC branch revealed that the Complainant entered the bank at 1:07:27 p.m. carrying a black handbag, which he placed inside the lobby, and then returned and locked the entrance doors with a bicycle lock.

The Complainant then re-entered the lobby holding a handgun in the air which he pointed towards customers and bank employees.

At 1:08:10 p.m., the Complainant is seen to speak with CW #7, who he directed to use Zip Ties to fasten the wrists of the other hostages behind their backs as they lay on the floor; the remaining hostages were fastened to their chairs with Zip Ties.

At 1:19:12 p.m., the Complainant is seen to speak with someone outside of camera range, presumed to be the two YRP officers who had entered into the bank and were down the hallway, one of whom was negotiating with the Complainant. At one point, the Complainant is seen to point his firearm at the back of CW #6’s head, with his right index finger on the trigger. He is also seen to hold what appears to be a detonator switch in his left hand.

At 1:26:05 p.m., the Complainant is seen to point his firearm in the direction where the two YRP officers were located, while maintaining his finger on the trigger. The Complainant is then seen to lower the handgun from CW #6’s head, but continued to hold the detonator in his left hand, while speaking to the two unseen officers.

At 2:02:23 p.m., approximately 55 minutes after the Complainant had entered the bank, he was shot while standing behind the tellers’ wickets and fell to the floor. Five ERU police officers immediately entered the lobby and they, along with the negotiator from the YRP, immediately cleared the bank.

At 2:03:32 p.m., five additional ERU police officers entered through the front entrance of the bank but retreated when they observed the black handbag left by the Complainant.

At 2:12:04 p.m., an ERU officer is seen to place a large black soft-sided box over the handbag.

The Police Response:

At 1:09:33 p.m., the first 911 call was received by the YRP communications centre from a male party indicating that he had just been about to enter the RBC branch at Dufferin Street and Major Mackenzie Drive when he observed a man in a trench coat enter the bank ahead of him. The caller reported that the man turned and pointed a handgun at the caller and told him to get out of there, which he then did. The caller indicated that he believed that the gunman was not all there and was possibly mentally ill.

At 1:10:26 p.m., a call went out from the communications centre to all available units to attend the RBC with respect to a weapons call. Fifty-nine police officers responded to this initial call.

At 1:16:48 p.m., the call from CW #8, the patron inside the bank, was received by the communications centre advising the operator of the gunman’s demands. The Complainant then came on the line and advised that he had a bomb strapped to himself and six more bombs had been set to go off at 6:00 p.m. in a highly populated area and that all bombs would go off unless he received a gram of crystal meth and could speak to Donald Trump on the phone by five.

WO #1 advised that he and WO #2, both uniformed officers with the YRP, responded to the weapons call at the bank. Upon arrival, WO #1 approached the bank cautiously and tried to look inside the windows, but was unable to do so.

WO #1 and WO #2 then entered the building through a second entrance through the insurance portion of the building; WO #1 had his rifle in his hands. They searched the corridors and located three employees who were advised of the threat and directed to leave the building. Prior to leaving, one of the employees opened a locked glass door for the police officers using a key card and directed them to continue down the hall and to the left, where they would reach the main bank area.

WO #1 checked the lunchroom while WO #2 covered the corridor. WO #2 then yelled out the warning, “He has a gun, he has a gun, I see a male with a gun!” WO #1 then joined WO #2 in the doorway where they were able to see the Complainant. The police officers observed at least one employee hiding in his office, while another was sitting on the floor in the front lobby area with his hands behind his back.

This evidence is confirmed by the communications recording wherein at 1:19:52 p.m., a police officer called in and confirmed that the man inside the bank had a handgun.

WO #1 advised that he recognized that this incident met the threshold detailed in their protocol outlining procedures when dealing with an armed or barricaded person and requested additional containment for the east side of the building over his radio.

WO #2 then verbally engaged the Complainant and told him to put down his firearm while WO #1 returned to the RBC insurance office area and let other police officers into the building. When WO #1 opened the door, the alarm went off.

WO #1 was able to see the full torso of the Complainant, and observed him to be holding a black handgun which he pointed at the police officers, while WO #1 pointed his rifle at the Complainant. Both WO #1 and WO #2 repeatedly directed the Complainant to put down his weapon, but he refused to do so.

The Complainant demanded two grams of crystal meth or people would be killed in the bank; he also demanded a telephone call to Donald Trump and indicated to the police that he had a bomb.

This evidence is also confirmed by the communications recording wherein at 1:20:01 p.m., a police officer called in and stated that the male inside the bank had hostages and a bomb.

WO #1 then asked the Complainant what kind of bomb he had, and the Complainant indicated it was a pipe bomb with a ‘dead-man’s switch’ that was rigged to detonate the bomb if he should die. WO #1 also indicated that the Complainant told him that, “If I don’t get my two grams of crystal meth by 2:30, people are going to fucking die!” WO #1 responded that he wanted the situation to be resolved as peacefully as possible and asked the Complainant not to point the firearm at the police officers. WO #1 described the handgun as a black semi-automatic which appeared to be authentic.

WO #1 also observed something strapped to the Complainant’s chest and what appeared to be a detonator in the Complainant’s left hand. WO #1 observed two light-coloured wires connected to the detonator in the Complainant’s hand which ran up the sleeve of the Complainant’s coat. Since WO #1 never observed the Complainant let go of the detonator switch, he surmised that the Complainant did indeed have a ‘dead-man’s switch’ and that the bomb would explode if he let go of the switch. The Complainant also advised the police officers that there were other bombs, but he did not specify where those bombs were located. WO #1 observed the black bag that the Complainant had entered the bank with, lying on the floor to his right.

WO #1 stated that during this time, he had his rifle pointed at the Complainant and aimed between his eyes for a central nervous system shot.

This evidence is confirmed by the communications recording wherein at 1:31:28 p.m., it is indicated that the unit associated with WO #1 and WO #2 “Has shot available.”

WO #5 and SO #3, both members of the YRP ERU, made their way to the RBC bank at 1:16 p.m., after having cleared another ERU call. While en route, WO #5 learned that the uniformed officers at the bank were able to see the Complainant and he telephoned SO #4 of the ERU, one of the subject officers, and asked if a ‘Section 25 option’ (use of lethal force) could be considered based on the information available, and SO #4 approved tactical or lethal intervention, if need be.

Upon arrival at the bank, WO #5 messaged SO #2 (another subject officer) and asked if he had the “lethal force choice” available. WO #5 advised that the only intent in employing the “lethal force choice” is to stop the threat posed by, in this case, the Complainant.

Upon WO #5’s arrival at the bank, he saw that the front doors were locked with a bicycle lock and he asked that all uniformed officers stand back from the bank; he then took control of the situation pending the arrival of a more senior officer.

At 1:23:18 p.m., SO #1 (subject officer), the Commander of Support Services, and WO #4[3] were advised of the incident relating to an armed, barricaded person who was in the RBC at Major Mackenzie Drive. The information they initially were given was that the man had a handgun and hostages. SO #1 was requested to attend the RBC in that capacity. En route to the bank, SO #1 was provided with additional details including the demands made by the Complainant and the deadline imposed by the Complainant for his demands to be met. He was also advised that the bank’s main doors had been closed and locked, and that ERU police officers were also en route.

SO #1 asked the communications centre if any uniformed officers were inside the RBC and he was advised that an officer was inside and was in a position to discharge a shot at the Complainant, but that ERU officers were only 30 seconds away. SO #1 decided to await the arrival of the ERU before taking any action.

In considering the decision of whether or not to exercise the “lethal force choice”, SO #1 advised that he considered that the Complainant had pointed the handgun at hostages inside the bank, as well as at his own head; that he might have a pipe bomb strapped to his chest; that there was a children’s daycare centre beside the plaza; that a 13-year-old was in a nearby dental office under anesthetic; and, that there was the potential of a car bomb in the Complainant’s car outside of the bank.

SO #1 sought confirmation as to the number of hostages inside the bank and whether or not the detonator on the pipe bomb had a ‘dead-man’s switch,’ and how it might be safely removed.

At one point, WO #1 observed the Complainant take hold of a female hostage, presumably CW #6, and place her in front of his body. He then pointed his firearm at the woman and she seemed panicked. The Complainant then pointed his firearm at WO #1 and told him that he had better lower his rifle or someone would get hurt. WO #1 then lowered his rifle and took cover behind the door frame, where he stood near WO #2.

WO #1 stated that he observed the Complainant push CW #6 aside, as if he was goading the police officers to shoot him. WO #1 indicated that he believed that the Complainant had an explosive device and was willing to use it.

WO #1 then heard a knock at the southeast door and he allowed entry to an ERU officer, which caused the alarm to again go off. The ERU officer, believed to be SO #3, entered carrying a bolt action 308 rifle with a scope and bipod; WO #1 briefed SO #3 about what had occurred to that point, and SO #3 set up on the left side of the door frame, in a prone position on the floor, with his rifle perpendicular to him.

This evidence is confirmed by the Communication record wherein at 1:36:51 p.m., it is noted that “ERU have shot. In position.”[4]

WO #2 continued to engage the Complainant in conversation and to distract him. WO #1 at one point asked the Complainant why he was doing this and the Complainant responded that he was doing it, “For the best drug ever, crystal meth” which was the “best rush” and there was nothing else like it.

A second ERU officer then arrived, SO #2, armed with a semi-automatic rifle with a scope and bipod, and he also set up in a prone position on the floor behind WO #1.

WO #5, another member of the YRP ERU, gained access to the bank through the fire doors which were opened for him by uniformed officers. He observed three uniformed police officers standing in a single file at the interior door leading into the main area of the bank, and the two ERU snipers, SO #3 and SO #2, present and set up at the same doorway. WO #5 observed that SO #3 and SO #2 were situated one on each side of the doorway, prone on the floor, and each had an unobstructed view of the Complainant.

WO #5 instructed WO #1 to stand behind him; he also instructed all of the officers present that, if a shot was taken, they were not to advance into the bank unless he ordered them to do so, because of the active bomb threat.

At 1:37:58 p.m., the communications record had noted, “Units to get Intel on type of switch in his hand and position of hand”.

WO #5 was then updated as to the situation and received all of the information gathered to that point. WO #5 attempted to determine if there was actually a ‘dead-man’s switch’ attached to the pipe bombs, or if it was a trigger-style switch. WO #5 advised that in reviewing the planning process, he considered the fact of the presence of a handgun, the potential explosives, and the close proximity of other people to the area, and weighed options of lethal force versus immediate incapacitation. He also considered the observations of the uniformed officers that the Complainant had taken his finger off the detonator switch on more than one occasion, confirming that it was in fact not a ‘dead-man’s switch.’ WO #5 also confirmed that there was no issue with respect to the taking of a shot, as the snipers had a clear and unobstructed view of the Complainant.

WO #5 advised the communications centre with respect to the absence of a ‘dead-man’s switch’.

WO #1, WO #2, and WO #5, then continued to try to de-escalate the situation by speaking with the Complainant.

At 1:47 p.m., SO #1 arrived at the scene and set up a command post at the neighbouring Shoppers Drug Mart.

CW #12, after having escaped from inside the bank, provided the police with information that the Complainant had locked the bank doors, had used plastic Zip Ties on the staff to secure them, and had a belt-pack with bombs; this information was relayed to SO #1.

SO #1 advised that he consulted with SO #4 and WO #4 about the options available to them and SO #4 advised that they had a sniper option available and he was looking for authorization to shoot. SO #1 advised that he wanted to first ensure that the information that he had was accurate, and it was again confirmed that the Complainant had been seen to remove his thumb from the detonator switch a number of times and that it was therefore definitely not a ‘dead-man’s switch’.

Once satisfied that the bomb would not go off if the Complainant was incapacitated, SO #1 asked about the presence of police officers in and around the bank. SO #1 advised that he relied upon his training and knowledge of high-risk situations and identified his top priority as the preservation of life, which he divided into three concerns: the safety of the hostages, of the civilians in the area, and of the police officers outside of the bank. The safety of the Complainant was placed as the fourth concern in order of priority, after those first three.

SO #1 indicated that he relied on a model of decision making which he described as “necessary, risk-effective, and acceptable (NRA)” as the basis for all of the decisions that he made in his role as the primary Commander in Chief (CIC). He further elaborated that in terms of the “acceptable” requirement, he had to be assured that his decision would be acceptable to the public as well as lawful.

SO #1 also indicated that time was short, the Complainant having placed a deadline for his demands to be met by 2:30 p.m. He was also aware that if the demands were not met, explosives were to be detonated elsewhere in the GTA. SO #1 stated that the demands were not going to be met.

SO #1 considered a ‘less lethal’ option to terminate the threat posed by the Complainant, but rejected both the use of a Conducted Energy Weapon (CEW or Taser) or an ARWEN (a weapon that discharges non-lethal projectiles such as rubber bullets or beanbags) as not being able to reliably and immediately incapacitate the Complainant before he could act on his threats.

It was confirmed that the backdrop behind the Complainant was clear, following which SO #1 asked SO #4 to formulate a deliberate action plan regarding the hostages, if the sniper option was utilized. After considering all of the information available to SO #1, he authorized the sniper option to be used at the discretion of the ERU.

SO #4 then attended inside the bank and discussed the “lethal force choice” option with WO #5 and the ERU members and advised that he had spoken to the CIC and had been given approval for the “lethal force choice”.

WO #5 stated that the uniformed police officers were pulled from the bank perimeter, leaving only one uniformed police officer, the negotiator, WO #2, at the doorway to continue to speak with the Complainant. WO #5 indicated that he became aware that should the Complainant move into an adjacent room or office, either with or without the hostages, police would lose sight of him and the “lethal force choice” would be lost.

A plan was communicated that a shot was to be taken at 2:00 p.m., and WO #1 and WO #3 were dispatched to inform the officers standing on the north side wall to clear the area in case any projectiles penetrated the wall.

Two police officers were assigned to ensure that no one was behind the Complainant, and SO #3 and SO #2 were asked if they were ready. It was determined that the shot would be taken after [a four-word sequence to be used by the snipers] with both SO #3 and SO #2 pulling their trigger simultaneously upon hearing [the first alphabetical letter in the final word of the sequence (FL)]. WO #5 was to the right of SO #4 when the sequence was reviewed and observed SO #3 and SO #2 to discharge their weapons simultaneously on the (FL). They only took one shot each. After the shots, both SO #3 and SO #2 secured their weapons.

The communications records confirm that at 2:02:33 p.m., they “Just heard bang” and SO #1 indicated that he was advised that the shot had been taken and that the Complainant was down.

SO #1 made it clear that the final decision was his and that he saw the use of lethal force option as being the one which would result in the least amount of injury and loss of life, in these circumstances.

All of the civilian witnesses inside the bank and the police officers who observed the Complainant indicated that, at all times, they were of the view that the handgun in the Complainant’s possession was real, as was the pipe bomb strapped to his chest, and they feared for their lives.

The post-mortem report detailing the findings from the examination of the Complainant’s body indicates that the pathologist found the cause of death to be “Perforating gunshot wounds of (the) head;” this finding is not in dispute.

Analysis

Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. Further, pursuant to subsection 3:

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

As such, in order for the four subject officers to qualify for protection from prosecution under section 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary in the circumstances. Furthermore, pursuant to subsection 3, if death or grievous bodily harm is caused, it must be established that the police officer did so believing on reasonable grounds that it was necessary in order to preserve himself or other persons from death or grievous bodily harm.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the 911 calls, the CCTV footage, the statements of the civilian witnesses, and the evidence from the police witnesses present, that the Complainant had entered the RBC bank in possession of a dangerous weapon (s. 88 of the Criminal Code) or imitation thereof, that he had unlawfully confined the occupants of the bank (s. 279), that he was threatening them with death (s. 264.1), and he was using that threat as leverage to extort certain demands (s. 346 (1)). As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the other requirements pursuant to s.25(1) and (3), I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

The court describes the test required under s.25 as follows:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59).

The decision of Justice Power of the Ontario Superior Court of Justice in Chartier v. Greaves, [2001] O.J. No. 634, as adopted by the Supreme Court of Canada above, sets out other relevant provisions of the Criminal Code to be considered, as follows:

27. Use of force to prevent commission of offence - Everyone is justified in using as much force as is reasonably necessary

1. to prevent the commission of an offence
   1. for which, if it were committed, the person who committed it might be arrested without warrant, and
   2. that would be likely to cause immediate and serious injury to the person or property of anyone, or
2. to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a)

This Section, therefore, authorizes the use of force to prevent the commission of certain offenses. “Everyone" would include a police officer. The force must not be more than that which is reasonably necessary. Therefore, an objective test is called for. The Ontario Court of Appeal, in R. v. Scopelliti (1981), 63 C.C.C. (2d) 481, held that the use of deadly force can be justified only in either cases of self-defence or in preventing the commission of a crime likely to cause immediate and serious injury.

34(1) Self-defence against unprovoked assault - Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

2. Extent of justification - Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

1. he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes, and
2. he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm

In order to rely on the defence under subsection (2) of Section 34, a police officer would have to demonstrate that he/she was unlawfully assaulted and caused death or grievous bodily harm to the assaulter in repelling the assault. The police officer must demonstrate that he or she reasonably apprehended that death or grievous bodily harm would result to him or her and that he or she, again on reasonable grounds, believed that he/she could not otherwise preserve himself/herself from death or grievous bodily harm. Again, the use of the term ‘reasonable’ requires the application of an objective test.

Further, the court sets out a number of other legal principles gleaned from the legal precedents cited, including the following:

8. Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event
9. "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14^th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver)
10. Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances
11. "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.)

On the basis of the foregoing principles of law then, I must determine whether the four subject officers, SO #1 and SO #4, who made the decision to use lethal force and communicated the order to do so, and SO #3 and SO #2, who carried out the order and discharged the fatal shots which took the Complainant’s life:

1. Subjectively reasonably believed that they, or other persons, were at risk of death or grievous bodily harm from the Complainant, at the time that the decision to use lethal force was made, and when it was later carried out by SO #3 and SO #2, and
2. Whether that belief was objectively reasonable, or, in other words, whether their actions would be considered reasonable by an objective bystander who had all of the information available to each of these four officers at the time that the lethal shots were fired

With respect to the first of these criteria, it is clear from the statement of SO #1 (the other three subject officers having declined to provide a statement, as was their legal right) that he believed that the hostages, any civilians outside of the bank, and the police officers present, were all at risk of death or grievous bodily harm at the hands of the Complainant at the time that he made his decision, and that belief continued until the time that the lethal shots were fired.

SO #1 based that belief on the information in his possession at the time he made his decision, that being:

• That the Complainant was in possession of a firearm, that he had threatened to use that firearm to kill the hostages if his demands were not met, and that the Complainant was also in possession of a pipe bomb which he had also threatened to detonate if his demands were not met
• That numerous 911 calls had been received confirming this same information
• That the Complainant had repeatedly pointed his firearm at the head of CW #6 and the police officers inside the bank
• That the Complainant was aware of the police presence but had refused to comply with repeated commands to drop his weapon, and
• That negotiations over a significant period of time with the Complainant had been unsuccessful

Furthermore, SO #1 advised that he considered that the incident was taking place in an area where there were numerous civilians and police officers present, as well as a daycare centre and a dental office, and thus, the Complainant not only posed a danger to the life of the hostages, but to numerous other police officers and members of the public. As such, there is ample evidence to answer question 1 in the affirmative: that SO #1 did reasonably believe that numerous persons were at risk of death or grievous bodily harm from the Complainant at the time that he gave the order to use lethal force to stop the Complainant.

While the other three subject officers did not provide statements to SIU investigators outlining their concerns, it is reasonable to infer, based on the evidence (particularly as they were all privy to SO #1’s background information), that the concerns of SO #1 were shared by all other police officers present.

Turning then to question 2, with respect to whether or not there were objectively reasonable grounds to believe that the lives of the hostages inside the bank, the police officers in and around the bank, and other civilians in the immediate area and under the protection of police, were at risk of death or grievous bodily harm from the Complainant, one need only to refer to the objective bystanders who actually witnessed the actions of the Complainant.

Each of the 13 civilian witnesses interviewed from inside the bank shared the belief that the Complainant was in possession of both a firearm and a pipe bomb and that their lives were in danger. This belief was specifically enunciated by CW #6, who indicated that when the bank alarm sounded she felt that she and the others in the bank were now dead, by CW #10, who indicated that he thought that the Complainant was going to kill him as he stood between the Complainant and the police officers, and by CW #4, who was heard to tell the Complainant, “If you are going to kill someone, kill me, let the others go.”

Furthermore, based on the statements of various witnesses, there is no dispute that WO #1 and WO #2 repeatedly and calmly tried to negotiate with the Complainant to get him to drop his weapons, and he refused to do so. As such, it appears clear that the police did not immediately resort to the use of lethal force, but attempted to resolve the issue without the loss of life; the Complainant, however, refused to cooperate.

Finally, while I accept that all of the civilian witnesses and the police witnesses believed that the Complainant was in possession of a real firearm capable of causing death, having viewed both the CCTV footage and the photograph of the weapon in the possession of the Complainant myself, it is clear to me that it would be almost impossible to determine whether or not the weapon was an actual firearm. It is certainly extremely clear that the police did not have the luxury of waiting to see if the Complainant fired the weapon, or detonated the pipe bomb strapped to his chest, to determine whether or not these threats were real, at the risk of a great loss of life, particularly as the Complainant had imposed a deadline (which was quickly approaching) after which he threatened to detonate his “bomb”.

Having extensively reviewed all of the evidence, and the law relating to the justification in using force intended to cause death or grievous bodily harm when one believes on reasonable grounds that it is necessary for one’s self-preservation from death or grievous bodily harm, or the death or bodily harm of others, I find in all the circumstances that SO #1 reasonably believed that the lives of the 13 hostages, and those of the police officers and any civilians in the area, were in danger from the Complainant, and the decision to resort to lethal use of force was therefore justified in these circumstances.

I find that it would have been foolish and reckless for the police officers to risk the lives of not only the 13 hostages, but the innumerable others in the area who could be injured or killed, by waiting to see if a shot was actually fired from the weapon in the possession of the Complainant, which clearly appeared to be a firearm and which the Complainant was aiming at the hostages and police officers as if it were indeed a lethal weapon, or for the bomb to detonate at 2:30 p.m. (or sometime shortly thereafter), with its consequent great loss of life. I find that risk was not one that the police should have had to have taken, when faced with such a potentially great loss of life at the hands of the Complainant.

Finally, while this tragic loss of life is made even more so in that it involved the life of a young man who was obviously in a state of crisis, even had police known that the Complainant may have suffered from some form of mental illness, when faced with the decision whether to shoot or risk a great loss of human life, I am less than confident that this factor would necessarily have changed the decision of whether or not to resort to lethal force.

In these circumstances, I will again refer to the judgment of the Supreme Court of Canada as quoted above as being particularly apt in this particular factual scenario, in that, “It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.”

I also note that the police officers who sought to negotiate with the Complainant did not resort to the usual yelling of commands, which may have panicked the Complainant, but spoke calmly and reasonably with the Complainant for a lengthy period of time in hopes of convincing him to give up his plan without the loss of life, and that numerous of the hostages spoke favourably of the way in which WO #2 and WO #1 spoke to, and attempted to negotiate with, the Complainant.

I find, therefore, on this record, that the lethal force which took the life of the Complainant was justified pursuant to s. 25(1) and (3) of the Criminal Code and that the four subject officers, in acting to preserve the lives of the many, at the cost of the life of the Complainant, used no more force than was necessary to affect this lawful purpose. As such, I lack the reasonable grounds to believe that the actions exercised by any of the four subject officers fell outside the limits prescribed by the criminal law and instead find there are no grounds for proceeding with criminal charges in this case and none will issue.

Date: September 17, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] A ‘dead man’s switch’ is a switch that is designed to be activated if the human operator becomes incapacitated, such as through death, loss of consciousness or being bodily removed from control. [Back to text]
• 2) [2] On a balance of the evidence it appears CW #4, an older gentleman, made this extraordinary offer. [Back to text]
• 3) [3] He was second in command of the incident, and was to assume command in the event SO #1 was unable to continue his command. [Back to text]
• 4) [4] That is, a shot is available. [Back to text]