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 15-year-old male who was shot by police on July 27, 2017.

Notification of the SIU

At approximately 2:30 a.m. on July 27, 2017, the Peel Regional Police (PRP) notified the SIU of the Complainant’s firearm injury. At the time the incident was reported, the Complainant was in hospital being treated for a gunshot wound.

According to the PRP, on Thursday, July 27, 2017, at 1:50 a.m., PRP officers responded to a call for a robbery at the Bank of Montreal at 6035 Creditview Road in the City of Mississauga. A 15-year-old male, unidentified at the time of notification [now known to be the Complainant] was shot by the Subject Officer (SO). The Complainant was reported to be en route to hospital in Toronto. PRP officers were actively searching for other suspects in the robbery.

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 and obtained closed-circuit television (CCTV) images relevant to the incident.

Civilian Witness (CW) #5, CW #10 and CW #11 were not interviewed as they had no information to advance the investigation that was not already known from the extensive medical records, interviews of the CW’s and subject and witness officers, CCTV data, and PRP communications audio recordings and reports obtained during the investigation.

SIU Forensic Investigators (FIs) responded to the scene and identified and preserved evidence. They made a digital photographic record of the scene, collected physical evidence, and seized exhibits relevant to the incident.

SIU FIs examined, photographed, and tested a small, divot-like hole on the vertical exterior surface of the Bank of Montreal, above its front doors, that was in the SO’s arc of fire, to ascertain whether it had been created by a projectile from the C8 rifle the SO discharged in the direction of the Complainant . The hole was found to contain a trace amount of lead and appeared to be consistent with a bullet hole.

The CCTV data obtained by the SIU from the PRP, regarding the Petro Canada station and Kentucky Fried Chicken restaurant, were reviewed. CCTV data obtained by the SIU from the Pizza Pizza and Tim Hortons restaurants were also reviewed. The CCTV data from the Petro Canada station and Pizza Pizza restaurant depicted the Complainant’s behaviour when he was armed with a handgun several minutes before he was shot by the SO at the vestibule belonging to the Bank of Montreal. The CCTV data from the Tim Hortons restaurant was of no probative value.

Only the CCTV data obtained by the SIU from the Bank of Montreal, enhanced by the Ministry of Finance Forensic Data Recovery Unit, depicted the Complainant’s behaviour and firearm interaction with the SO, which later resulted in the Complainant’s death.

The Ministry of Finance Forensic Data Recovery Unit also provided the SIU with enhanced data in respect of the audio video recordings made by CW #1.

Complainant:

15-year-old male, deceased

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Not interviewed, next of kin

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Interviewed

CW #10 Not interviewed, had no further information to offer that was not already contained in the medical records

CW #11 Not interviewed, had no additional information to offer

Witness Officers

WO #1 Interviewed and notes received and reviewed

WO #2 Interviewed and notes received and reviewed

WO #3 Interviewed and notes received and reviewed

WO #4 Interviewed and notes received and reviewed

WO #5 Interviewed and notes received and reviewed

WO #6 Interviewed and notes received and reviewed

Additionally, the notes from three other officers were received and reviewed.

Subject Officers

SO #1 Interviewed, notes received and reviewed

On July 27, 2017, between midnight and 1:25 a.m., the Complainant was in an Audi sedan that had been reported stolen. He was accompanied by two male and two female youths, all under the age of 17 years, including CW #3.

At 1:33 a.m., the Complainant entered the Petro Canada station at 1520 Britannia Road West, in the City of Mississauga. He was alone and pointed what appeared to be a black handgun at the attendant, who then removed a quantity of cash from the register and put the cash on the counter. The Complainant then left the station without taking the cash, but returned about a minute later accompanied by two of the other male youths from the car and attempted to grab the cash that was still on the counter. The other two youths pushed the cash back toward the attendant, and away from the Complainant, and then escorted the Complainant out of the store. The station attendant called the PRP as the two male youths got back into the stolen Audi sedan and quickly left the area with the two female occupants, leaving the Complainant behind.

Immediately following the aborted robbery of the Petro Canada station, the Complainant entered the Pizza Pizza restaurant at 6065 Creditview Road and pointed the same black handgun directly at the face of the restaurant employee standing by the cash register. The employee grabbed at the handgun, but the Complainant retained it and fled from the restaurant.

By the time the Complainant was outside the Pizza Pizza restaurant, the Audi sedan and its four occupants had left the area and were not seen by the PRP officers who were responding to calls relating to the Petro Canada station and the Pizza Pizza restaurant incidents.

Before PRP officers arrived in the area of the attempted robberies, the Complainant attempted to ‘car-jack’, at gunpoint, the vehicle operated and solely occupied by CW #1, who had been in the parking lot working on her computer. CW #1 thwarted the attempted car-jacking by driving away from the Complainant but remained in the parking lot while calling the PRP on her cellular telephone. CW #1 was driving away from the Complainant when she saw him approach another vehicle and point the handgun at its operator, who also drove away from him.

CW #1 then made audio/video recordings with her cellular telephone during her communications with the PRP while she endeavoured to describe the activities of the Complainant, including his flight on foot toward the Bank of Montreal, which was in the same commercial plaza where he had attempted to steal her vehicle at gunpoint.

One of the audio/video recordings made by CW #1 recorded the SO discharging his C8 rifle at the Complainant. At roughly the same time, the SO opened his portable radio’s microphone resulting in the PRP communications audio recording being made.

After the Complainant ran north toward the Bank of Montreal at the west edge of the plaza, he entered, exited, and then re-entered the unlocked foyer of the bank at about the same time that the PRP officers arrived in the area of the Petro Canada station and the Pizza Pizza restaurant. The PRP officers [now known to be the SO and Witness Officer (WO) #3] approached the bank, from Creditview Road, in their police cruisers.

After a brief stand-off between the Complainant, who was in the doorway of the Bank of Montreal, and the SO and WO #3, who had taken cover behind their PRP vehicles on Creditview Road, the Complainant raised his handgun in the direction of the SO, who then discharged his PRP-issued C8 rifle at the Complainant striking him once in the abdomen; a second shot appears to have struck the exterior of the Bank of Montreal building.

The Complainant was transported by ambulance to a hospital, where he was admitted for surgical treatment of the gunshot wound.

Nature of Injuries / Treatment/Cause of Death

The Complainant was admitted to hospital on July 27, 2017, with a traumatic gunshot wound of his abdomen with secondary multiple organic injuries. Numerous emergent and elective surgeries were performed in efforts to stem internal bleeding and to treat systemic infections secondary to the gunshot wound. The Complainant failed to recover from his injuries and died in hospital on August 26, 2017.

At the post-mortem examination of the Complainant’s body conducted at the CFS by the CFS forensic pathologist on August 28, 2017, the provisional cause of death was found to be “gunshot wound of abdomen.”

On April 25, 2018, the Ontario Forensic Pathology Service issued its final report (which was received by the SIU on June 15, 2018) in which the pathologist observed that a deformed bullet was recovered from the left lower chest wall and that the pathological range of the gunshot wound was indeterminate. The pathologist also concluded that the Complainant died of complications from a gunshot wound to the torso.

The Scene

The scene was within the confines of the Credit Valley Town Plaza parking lot in the City of Mississauga. The area of primary interest was the Bank of Montreal branch office at the northwest corner of the plaza.

There were numerous PRP vehicles in the plaza parking lot, and on Britannia Road West and Creditview Road.

On the concrete entrance-way to the bank, there were clothing items, some copper-coloured wire, a green cigarette lighter, a blue wallet/pouch, blue ‘zip-ties’, packages of condoms, and one black running shoe.

There was a black, unmarked, PRP Dodge Ram pickup truck with its police emergency lighting system still activated stopped in front of the Bank with fresh tire gouges in the grassy boulevard between Creditview Road and the plaza parking lot, which terminated at the pickup truck.

Two cartridges cases were located at the scene; one was found on the top of the PRP vehicle operated by the SO and the other was found on the pavement near the left front end of that same vehicle.

A divot-like hole, believed to be from a projectile-strike, was observed in the stucco surface on the front exterior wall of the bank near its entrance.

Divot in Stucco

Scene Diagram

Physical Evidence

The Complainant’s Weapon

The SIU recovered a black Hechler & Koch HK.45, .177 [4.5mm] unloaded pellet pistol made in Taiwan, with an imbedded plate on the bottom of the slide bearing a serial number at the scene. The weapon was missing its carbon dioxide propellant canister necessary for the discharge of a projectile. The profile and appearance of the weapon was strikingly similar to the authentic HK.45, a 45 calibre semi-automatic handgun manufactured for the American military.

PRP AVLS (Automatic Vehicle Locator System) Data

The data below was created by the SO’s vehicle at the scene where he parked his vehicle when the Complainant had presented himself at the front of the Bank of Montreal.

The time recorded by the AVLS, as the SO was in the process of stopping and parking his vehicle, was 1:50:31 a.m. The next AVLS data entry occurred at 1:52:31 a.m., while the SO’s vehicle was stationary, after the Complainant was shot once by the SO at or about 1:51:27 a.m., as indicated by the PRP Event Chronology and communications audio recordings.

Forensic Evidence

Centre of Forensic Sciences (CFS) Submissions and Results

Submissions were made to the CFS by the SIU to determine whether the C8 rifle discharged by the SO had loaded, fired, extracted, and ejected the two fired cartridge cases found at the scene and the one damaged fired bullet recovered from the Complainant’s body. CFS results concluded that the two fired cartridge cases and one damaged bullet were in agreement of class and individual characteristics of the C8 rifle discharged by the SO.

CFS results also concluded that the semi-automatic C8 rifle operated by the SO was incapable of discharging more than one projectile with only one deliberate application of pressure to the trigger.

A submission was also made to the CFS by the SIU to determine a match of a control sample of deoxyribonucleic acid (DNA) obtained from the Complainant and biological substances on the replica handgun recovered by the SIU at the scene.

On March 12, 2018, the SIU received the CFS DNA report dated September 8, 2017, which concluded that the DNA from the swab of the textured area of the grip and slide on the imitation handgun at the scene was assessed as a mixture of DNA originating from four individuals, at least one of whom was male. A major male DNA component and three minor DNA components were determined suitable for comparison. The SIU was not in possession of the DNA from any parties, and therefore a comparison could not be performed. However, the Acting SIU Director authorized the release of the CFS report to the PRP in the event it chose to attempt to compare the male component DNA with other male DNA samples it had obtained during the course of its investigation.

Expert Evidence

At the post-mortem examination of the Complainant’s body conducted at the CFS by the CFS forensic pathologist on August 28, 2017, the provisional cause of death was found to be “gunshot wound of abdomen.”

On April 25, 2018, the Ontario Forensic Pathology Service issued its final report (which was received by the SIU on June 15, 2018) in which the pathologist observed that a deformed bullet was recovered from the left lower chest wall and that the pathological range of the gunshot wound was indeterminate. The pathologist also concluded that the Complainant died of complications from a gunshot wound to the torso.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence; the following was obtained:

CCTV Data

The data pertained to the incidents that occurred on July 27, 2017. There was no audio on any of the data. There were no time stamps on the Pizza Pizza data.

Petro Canada

• 1:25:17 a.m. – video begins. A young male employee is seen inside the store of the Petro Canada
• 1:32:30 a.m. – the store cash attendant waves to someone outside
• 1:32:47 a.m. – a male [now known to be the Complainant] enters the store. He is wearing a gray hoodie that is pulled up over his head. His right hand is in the right pocket of his hoodie and his left hand is in the left pocket of his hoodie. He approaches the cash counter where the attendant is located
• 1:33:01 a.m. – the Complainant turns to the right, away from the cash counter then turns to the left towards the attendant. The attendant then points towards the gas pump area
• 1:33:07 a.m. – the Complainant takes a gun in his right hand from his right hoodie pocket and points it at the attendant. The attendant opens the cash drawer of the till and removes a quantity of bills
• 1:33:23 a.m. – the Complainant puts the gun back into his right pocket of his hoodie. He smiles and leaves the store. The attendant puts the cash back into the cash drawer
• 1:33:45 a.m.– the Complainant returns inside the store and again has his right hand in the right pocket of his hoodie and his left hand in his left pocket. He approaches the counter where the attendant is. The attendant opens the cash drawer and takes out a quantity of bills and places them on the counter
• 1:34:01 a.m. – a young black male, wearing a black hoodie, enters the store and approaches the cash counter. The young man is at the Complainant’s left side and puts his right arm around the Complainant’s shoulder. The Complainant tries to grab the money from the counter with his left hand. The young man pushes the money back towards the cash attendant. A second young male enters the store and approaches on the Complainant’s right side. the Complainant and the two males leave the store
• 1:34:45 a.m. – the attendant is looking towards the pump area
• 1:35:17 a.m. – the attendant is making a telephone call and is writing on a piece of paper, and
• 1:37:17 a.m. – the video ends

Pizza Pizza

Camera 3 – front door

• 8:09 minutes into the video – the Complainant is seen outside the front door to the store, and
• 8:14 minutes into video – the Complainant enters through the main door and the outline of a handgun can be seen in the right pocket of his gray hoodie

Camera 4 – front counter

• 17:00 minutes into the video – the Complainant approaches the female at the front counter. The video then skips past when the incident occurred

Camera 5 – doorway towards the counter

• 4:10 minutes into the video – the Complainant enters the Pizza Pizza and goes to the counter
• 4:25 minutes into the video – the Complainant turns towards the doorway and walks toward it, and
• 4:35 minutes into video – the Complainant puts the gun into his right pocket of his hoodie and leaves

Camera 6 – cashier counter

• 18:41 minutes into video – the Complainant is at the cash counter. He has his hands inside the pockets of his hoodie
• 19:22 minutes into the video – the Complainant puts the front of his hoodie onto the cashier counter
• 19:41 minutes into the video – the female cashier walks away from the counter. A male employee comes to the cash counter and speaks to the Complainant who steps back out of the camera view then steps forward and gives the male Pizza Pizza employee a ‘high five’
• 20:20 minutes into the video – the Complainant leaves the cashier counter and goes out of sight then quickly returns
• 20:34 minutes into the video – the Complainant pulls a gun from his right hoodie pocket and points it at the face of the male at the cashier counter. The gun is a couple inches from the Pizza Pizza employee’s face. The male employee grabs the gun by the barrel and the Complainant pulls the gun back away from the male, and
• 20:38 minutes into the video – the Complainant moves back out of sight of the camera

Tim Hortons

Camera view – garbage bins

• 1:42:48 a.m. – the video begins. The imaging is grainy and difficult to make out
• 1:44:00 a.m. – a marked police vehicle arrives in the parking lot of the BMO. Other police vehicles arrive in the area with roof lights activated. There is activity at the BMO but the image is not discernible
• 1:50:55 a.m. – a male walks from the area of the Tim Hortons towards the garbage bins and looks towards the BMO, and
• 01:58:42 a.m. – the video ends

Bank of Montreal

Camera #1 – entry camera view

• 1:00 a.m. – the video begins
• 1:48:28 a.m. - the Complainant comes into view inside the BMO. He is wearing a gray hoodie that is pulled up over his head. The camera view is only of the chest area of the Complainant
• 1:48:32 a.m. - the Complainant goes out of sight
• 1:48:34 a.m. – the Complainant comes into view then goes out of sight again, and

• 1:51:01 a.m. – the Complainant comes into view then is once again out of sight

Camera #2 – the exit view

• 1:00 a.m. – the video begins
• 1:48:27 a.m. – the Complainant comes into view inside the BMO vestibule then walks towards the BMO inside door entry to the bank. Before reaching the door, the Complainant turns quickly and rushes towards the exit door. His hoodie is up over his head. His right hand is inside his hoodie right pocket and his left hand is out as he exits
• 1:49:46 a.m. – the Complainant comes into view as he approaches the BMO door and enters. His left hand is up in his throat area and his right hand has a gun in it. He walks to the inside door of the bank and uses his left hand to try and open it
• 1:51:07 a.m. – the Complainant walks toward the exit door and goes out of sight, and
• 2:00 a.m. – the video ends

Camera #3 – vestibule view

• 1:00 a.m. – the video begins
• 1:48:32 a.m. – the Complainant comes into view then goes out of view
• 1:51:02 a.m. - the Complainant comes into view again and has his hoodie up, and
• 2:00 a.m. – the video ends

Camera #4 – the ATM view

• 1:00 a.m. – the video begins
• 1:48:20 a.m. – the Complainant comes into view approaching the BMO entry door
• 1:48:24 a.m. - the Complainant opens the bank door with his left hand. He has his right hand inside the right pocket of his gray hoodie. He walks toward the inside BMO entry door then quickly turns and goes back to the exit door
• 1:48:35 a.m. – the Complainant is at the exit door with the door open looking outside. He is holding the door open with his left hand
• 1:48:55 a.m. – the Complainant lets the door close and walks to the right of the BMO door and goes out of sight
• 1:49:31 a.m. – the Complainant comes back into view outside the BMO door, he then opens the door with his left hand and pauses as he looks back. He enters and has a gun in his right hand
• 1:49:50 a.m. – the Complainant turns back and opens the exit door and pauses
• 1:49:58 a.m. - the Complainant backs up towards the doorway
• 1:50:10 a.m. – the Complainant walks to the right of the doorway and goes out of sight
• 1:50:19 a.m. – the Complainant comes into view outside of the BMO doors then walks to the right of the door and goes out of sight again
• 1:50:53 a.m. – the Complainant is at the BMO door. He stops and looks behind him then points with his right hand
• 1:51:00 a.m. – the Complainant enters the BMO. He has a gun in his right hand. He walks to the inside bank door and tries to open it with his left hand
• 1:51:06 a.m. – the Complainant turns towards the exit door and ducks and walks to the exit door. He opens the exit door with his left hand and steps outside, then steps backwards to the doorway
• 01:51:23 a.m. – the Complainant raises his right hand above his shoulder then raises his left hand and reaches behind his head then lowers his right arm which goes forward
• 1:51:30 a.m. – the Complainant buckles and falls backwards into the BMO vestibule. He lands on his stomach and is rolling from side to side. His legs and feet are keeping the BMO door open
• 1:52:20 a.m. – headlights and blue flashing lights are seen reflecting into the BMO
• 1:52:53 a.m. – a flashlight approaches the BMO door. A police officer appears, dressed in tactical gear. He has a weapon in his hands as he approaches the doorway and is pointing it at the Complainant
• 1:53:10 a.m. – a second police officer with a bald head grabs the Complainant by his lower limbs and pulls him out of the bank vestibule
• 1:53:20 a.m. - the door to the bank closes and there are police officers hovering over top of the Complainant
• 1:53:43 a.m. – a police cruiser arrives in front of the BMO. There is a flashlight shining into the bank
• 1:57:29 a.m. – two police officers in tactical gear enter the vestibule and are checking the bank. The bank is secure and the officers leave
• 1:58:38 a.m. – an ambulance arrives at the scene and paramedics are with the police officers over top of the Complainant. A stretcher is brought to the front of the bank by a paramedic, and
• 2:00 a.m. – the video ends

Camera #5 – the ATM Surveillance view

• Camera #5 provides the same view as Camera #4

CW #1’s Audio/Video Recordings

On July 27, 2017, CW #1 recorded two videos on her iPhone. Video 1 commenced at 1:50:26 a.m., and had a duration of 42 seconds. Video 2 commenced at 1:51:14 a.m., and had a duration of 9 minutes and 40 seconds.

Video 1-IMG_4215

• The cellular phone records the interior of CW #1’s vehicle as she is driving. It is then directed outside the driver’s side window. The parking lot is recorded and a marked police vehicle is visible. The cellular phone is then lowered. The interior of the vehicle is captured and at times the screen is black. The cellular phone is then raised and again the parking lot is somewhat visible, as well as flashing emergency lights
• CW #1 said, “He’s going north, he’s dancing with a grey hoodie on, a grey track pants;”
• A male voice [presumed to be the 911 call taker on the phone] said, “North, north, where?”
• CW #1 said, “He’s going north, um, north that way, um, north past the bank. He saw your car, he saw the car. Ok, the police, there’s a police car in, there’s a police car here now, that will be on him. Yeah, there are two police cars here;”
• Male voice said, “Do they see him?”
• CW #1 said, “No, they are going for him. That’s him, that’s him;”
• Two honks from a car horn
• At 00:23 into recording one gunshot is heard
• CW #1 is screaming
• CW #1 said, “(inaudible) got a gun, Oh Jesus, oh Jesus. Oh, oh, oh, oh God. That was a gun, oh Jesus. Oh, that’s the guy, oh God, who has, has a gun. He’s got the gun out;”
• Male voices heard yelling, “Ma’am shut your door;”
• CW #1 said, “Yeah, that’s the guy, ok, ok, ok, ok, don’t …;&rdquo, and
• The video and audio ends 00:42

Video 2-IMG_4216

• The cellular phone is recording from the interior, driver’s window area of CW #1’s vehicle. Initially, the cellular phone is directed towards the 99 Depot and BMO bank when a shot is heard. The cellular phone is then directed towards the parking lot where emergency vehicles are observed. The cellular phone is then directed towards the BMO where there are people moving about
• CW #1 said, “Officer, officer;”
• Male voice (presumably 911 call taker on the phone) said, “Yes;”
• CW #1 said, “There was a shot;”
• At 00:05 into the recording, one gunshot is heard
• CW #1 is screaming and banging is heard within her vehicle. CW #1 said, “Oh God, oh God, oh, my God. They shot him, no. Guys don’t shoot him. I asked you not to shoot him. Oh, my god, don’t sh…;”
• Male voice said “Ma’am, ma’am, take a deep breath;”
• CW #1 said “No, don’t shoot him. Oh God, I am responsible. No, please don’t shoot him, please, I;”
• Male voice said, “Ma’am;”
• CW #1 said, “Yes, oh my God, I think they shot him;”
• Male voice said, “Ma’am;”
• CW #1 said, “I don’t want them to kill the guy, I said (inaudible). No, I can’t believe this, oh my God. I think they shot the guy. Don’t shoot him please. I can’t believe, no;”
• Male voice said, “Ma’am;”
• CW #1 said, “I called you guys;”
• Male voice said, “Ma’am;”
• CW #1 said, “I’m the one that called you. Okay, I called you guys. Okay, don’t kill him please officer please. He’s got mental problems;”
• Male voice said, “Okay ma’am;”
• CW #1 said, “Oh my God, oh my God, I called you guys not to kill him. Please don’t kill him, please. Oh no wait, no God. Please don’t kill him.” “Oh my God, this is my fault, I know, guys don’t kill him. Please Jesus, help him. God please help him, he opened… oh yes;”
• Male voice yelling, “(inaudible) both hands up, both hands up;”
• CW #1 said, “Shoot him in the leg. He could have killed me but he didn’t. Jesus I thank you. Oh my God;”
• Male voice yelling, “Put your hands out to the side (inaudible);”
• CW #1 said, “Thank you guys, thank you, thank you (inaudible). Oh my God, oh my God, they got him, okay. Officer call 911, oh, oh, okay, deep breath. Oh my God, oh my God, oh, oh, okay deep breath. This is what one phone call can do. I got the cops;”
• Male voice yelling on loud speaker, (inaudible)
• CW #1 said, “Thank you Jesus (inaudible) thank you. Oh my God. This is from one phone call. Oh my God, okay. Oh my God, okay, I don’t know if he shot once. Oh my God he opened my car door. Jesus I thank you for protecting me. He could have shot in the car but he didn’t. I asked him nicely to shut my door and that my boyfriend was coming. Oh my God, Porscha, Joshua, I love you for life. Oh my God, oh my God. Thank you Jesus I hope he is okay. Lord he didn’t shoot me. Oh my God, oh my God. I don’t know if he is okay. I think he is bleeding. Oh my God, maybe he is dead now. Now he’s not moving. Oh my God. He is moving a little bit. Guys get the ambulance, please. Get the ambulance for him, please. I am the one that called. Please don’t let him just die there, please. Can we get an ambulance here? 911, 911 we need ambulance. Oh my God;”
• At 04:16 cellular call is made
• CW #1 said, “Guys, please help him. I’m the one that called. Can you get an ambulance to help him please;”
• 911 communicator said, “911, do you need police, fire or ambulance?”
• CW #1 said, “We need an ambulance at the Bank of Montreal;”
• 911 communicator said, “Stay on the line for ambulance;”
• Recording “We’re sorry your call cannot be completed;”
• Male voice yelling in background, “Pizza Pizza.”… (inaudible)
• Cellular call is made
• CW #1 said, “Can you help that guy;”
• Female voice said, “Okay, stay on the line;”
• Female voice said, “Ambulance what is your emergency?”
• CW #1 said, “Yeah, the police just shot the guy, I called the police. I called the police to help him and they shot him;”
• Female voice said, “I can’t hear you;”
• Female voice said, “Ma’am listen, ma’am”
• Female voice said, “Ma’am are you at Britannia and Creditview?”
• CW #1 said, “Yeah that’s me who called, but there is no ambulance;”
• Female voice said, “We have lots of help on the way;”
• CW #1 said, “But there’s no ambulance, there’s no ambulance, I think they shot the guy. There’s no ambulance;”
• Female voice said, “Ma’am listen, I need you to try and take a breath, okay. We have lots of help coming. Ambulance is on the way it is coming as fast as they can;”
• CW #1 said, “Hi, I am the one that called;”
• Female voice said, “Okay, listen, listen for a second;”
• CW #1 said, “No, the officer is coming to my car;”
• Female voice said, “Ok, hear that okay you are at Britannia and Creditview right?”
• CW #1 said, “I am the one that called, but. I hope, I hope you guys didn’t shoot him but I think you did;”
• Male voice (from outside of car) said, “I think he is okay, he’s alive;”
• CW #1 said, “He’s alive? Did they get the ambulance?”
• Female voice said, “Is there someone with you right now?”
• Male voice said, “Ambulance is on the way, what happened?”
• CW #1 said, “Thank you okay, I have an officer here, thank you ma’am, thank you;”
• CW #1 said, “I was in the parking lot on my iPhone ® and he came and he opened up my door. I didn’t even know it was unlocked. By the time I tried to lock, it didn’t lock that side so he opened it wide like all the way. And um, it was really weird because who just opens up your door wide. So I was like, I was like dumbfounded what do I say next. I said, sir can you please close my door. And he was trying to think what to do. I think he was thinking whether to shoot me or not so I said;”
• Male voice said, “But he showed you the gun?”
• CW #1 said, “But he had the gun;”
• CW #1 said, “So I said in a calm voice, my boyfriend is coming. I don’t have a boyfriend. So I said please shut my door and he shut my door. And then I drove that way, I stopped to see like if I was imagining what I saw. Then I saw him take out a gun towards the other car, the grey car that is there;”
• Male voice said, “Was there only one guy or was it two?”
• CW #1 said, “I saw him go towards a red car, but I didn’t know if the red car was somebody he was trying to accost like what he did to me or if it was somebody that he knew. I did not have my glasses when I turned my car I put my glasses on then I see him move from where he was and he started banging on the grey car over there, then with the gun with the gun in his hand. So when I saw that I said you know what I better. Then he started coming towards me again then sh.., you know what I said;”
• Male voice said, “Give me one second. There’s a possibility we might need you to come down to the station to give us a statement, okay?”
• CW #1 said, “Did you guys shoot him?”
• Male voice said, “I don’t know but I think he is okay, he was moving but they were yelling and screaming at him, so we got the gun off him and he’s not dead;”
• CW #1 said, “So you did get the gun?”
• Male voice said, “Yeah, do you have some ID on you?”
• CW #1 said, “Yeah;”
• Male voice said, “We do have the gun I picked it up;”
• CW #1 said, “Yeah, but he’s okay, my ID;”
• Male voice said, “But like I don’t know if the gun…;”
• CW #1 said, “Yeah, I told the police I don’t know if it is a toy gun or a real gun”
• Male voice said, “Looks real but I don’t know if…;”
• CW #1 said, “But I heard a shot. I don’t know if the shot came from him first or you guys;”
• Male voice said, “It might have been us;”
• CW #1 said, “I was like, oh my God, I don’t want to call the police if someone gets killed over my call right. It is not a good thing;”
• Male voice said, “Give me a second, okay;”
• CW #1 said, “Yeah, oh my God, oh my God. The ambulance is here;”
• CW #1 said, “Oh my God, I hope he is okay;”
• Radio transmission, “I require two other units to the scene with me;”
• CW #1 said, “Why did he take my ID all the way over there. Come to the station is he kidding. Just opened up my door, who does that. Oh my God;”
• CW #1 said, “For one gun, one, two, three, one, two, three, four, five, six, seven, eight, nine, ten police cars, unbelievable.”, and
• Radio transmissions follow

Communications Recordings

SIU investigators obtained and reviewed the recordings of seven 911 calls, as well as the recordings from the open microphone from the SO’s radio, and the police transmission recordings.

Materials obtained from Police Service

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

• 911 Phone Calls recordings
• Audio Copy Report-Dispatch Assistant, Support, Internal Calls
• Audio Copy Report-Divisional Radio Transmissions
• Audio Copy Report-Tactical Channel
• Automated Vehicle Locating System (AVLS) data from the SO’s vehicle
• Closed circuit television (CCTV) data from 1520 Britannia Road West, Petro Canada
• CCTV data from 6055 Creditview Road, Kentucky Fried Chicken
• Diagram of Scene from WO #3 made 2017-07-27
• Drawing of Parking Lot and Cruiser from WO #1 made 2017-07-27
• Duty Roster
• Event Chronology Reports
• Google ® satellite map marked by the SO
• Notes of WOs #1-6, the SO, and three non-designated officers
• Occurrence Details Reports
• Procedure: Use of Force
• Procedure: Critical Incident Alert
• Procedure: Response to Armed Robbery Incidents
• Procedure: Issued Authorized Weapons
• PRP C8 Carbine Rifle Operator Course
• PRP Video Interview Synopses of four non-designated civilians
• PRP Video Interview Synopsis of eight designated civilian witnesses
• Training Record for the SO
• Use of Force Report, and
• Victim and Witness List

The SIU obtained and reviewed the following materials and documents from other sources:

• Post-Mortem Report
• DNA Report from CFS
• Firearms Report from CFS
• CCTV data from 6065 Creditview Road, Pizza Pizza restaurant
• CCTV data from 6075 Creditview Road, Tim Hortons restaurant
• CCTV data from 6085 Creditview Road, Bank of Montreal
• Drawing of bullet path by surgeon
• Drawing of scene by CW #3
• Drawings of scene by CW #1
• Letter and photographs from a non-designated witness
• Medical records of the Complainant relating to this incident
• Ministry of Finance Forensic Data Recovery Unit data, and
• Video recordings made by CW #1

Section 25, 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;
   1. (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 343, Criminal Code – Robbery

343 Every one commits robbery who

1. steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property
2. steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person
3. assaults any person with intent to steal from him; or
4. steals from any person while armed with an offensive weapon or imitation thereof

On July 27, 2017, between 1:40:27 a.m. and 1:55:39 a.m., six 911 calls were received by the Peel Regional Police (PRP). The first call, received at 1:40:27 a.m., came in on the non-emergency line and originated from the Petro Canada gas station located in the plaza on Creditview Road at Britannia Road West, in the City of Mississauga. The caller advised that he had just been robbed by a male with a black handgun. His call was then switched over to the 911 call taker.

This call was recorded at 1:40:51 a.m. on the 911 line with the caller indicating that the male had asked him for money at gunpoint, but that a second male had then entered and returned the money to him. The caller advised that they were going on to another gas station. He also indicated that a second male had left in a silver Audi motor vehicle and provided the licence plate number; that number was checked by the call taker and came back to a stolen motor vehicle.

Three police officers were dispatched to the area: the SO, WO #1 and WO #3.

CCTV footage from the Petro Canada station confirmed that the Complainant had entered the store, approached the attendant, pulled out a gun with his right hand from his right hoodie pocket, and pointed it at the attendant, who then opened the cash drawer and placed a quantity of cash on the counter. The Complainant then left the store, before returning again with his right hand in the same hoodie pocket from which he had previously produced the handgun. The attendant again placed the cash on the counter, but when the Complainant went to reach for the cash, his two companions entered, pushed the cash back toward the attendant, and escorted the Complainant out of the store.

As a result, WO #2 and WO #4, a canine unit, and an undesignated officer, were all dispatched to the area.

A third call was received at 1:42:46 a.m. from CW #1 reporting that she had just been approached by a male with a black handgun in the Pizza Pizza parking lot on Creditview Road at Britannia Road West. The caller said that the male had opened her car door and appeared confused and that he had then moved to a second car and was trying to break the window. The caller was hysterical and the call taker repeatedly told CW #1 to drive away.

CW #1 described the gun as a short handgun, black in colour, and indicated that she did not know if it was real or a toy gun. When the Complainant opened her door, she told him to please close the door because her boyfriend was coming; it was then that she saw the gun in his hand. She indicated, “I hope he doesn’t shoot the person in the car.” She then indicated that the police had arrived.

CW #1 is later heard to scream, “There’s a gun” … “he has a gun out.” The remainder of her comments are as outlined above on her cell phone recording.

A fourth call was received at 1:44:35 a.m. from CW #6, who advised that he was in front of the Pizza Pizza store and that he had seen a man with a gun trying to break into a car and trying to break the window of the vehicle. He stated that they had been driving by when the male ‘literally flashed’ the gun at them and told them to stop, but they did not. He described the man as black, approximately 20 to under 25 years of age, and that the weapon was a black handgun. He said he could not tell if it was a real gun or a pellet gun and he had observed the male try to break the back window of a car with it. This caller described a black pickup truck as ‘roaming around’ the male and he believed that the woman driving was somehow related to the male. This vehicle was actually the one driven by CW #1.

A 911 call was received from an employee of the Pizza Pizza store (CW #2) at 1:47:05 a.m., indicating that he had had a gun pointed at him by a black male, approximately 18 or 19 years of age, and that the male was now possibly in the area of the Bank of Montreal. He described the weapon as a black handgun and stated that the male had asked him for money and then flashed the gun.

WO #5 and WO #6 were dispatched to the area.

The next call came in at 1:48:10 a.m. from a female employee of the Pizza Pizza store (CW #8) advising that a black male in his early 20s had come inside the store and he had a gun. She reported that he was now walking in and out of the BMO.

Two additional non-designated officers were dispatched to the scene.

CCTV footage from the Pizza Pizza store confirmed that the Complainant entered the store; the outline of a handgun is seen in the right side pocket of his hoodie. The Complainant is later seen to pull a gun from his pocket and point it at the male at the cash counter, with the gun held within a couple of inches of the employee’s face. The employee grabs the gun by the barrel and the Complainant pulls the gun back and away, and leaves the store.

The last 911 call was received at 1:55:39 a.m., from CW #1, reporting that there had been a gunshot; that “The police shot the guy,” and requesting an ambulance to attend to the man. The caller was hysterical.

The SO advised that he heard the radio call about the armed robbery at the Petro Canada station at 1:42 a.m., while he was in the area of Dundas and Mississauga Streets, and he headed in that direction. While en route, he heard two additional robbery calls to the same plaza, one from the Pizza Pizza store and one from CW #1. He recalled all of the callers describing the robber as a black male, approximately 20 years of age, wearing a grey hoodie and brandishing a black handgun. The SO accessed his C8 rifle and laid it across his lap for expediency. He indicated that he was qualified to use the C8 rifle and that his certification was current.

The SO spotted the Complainant walking across the front of the BMO entry area; he described him as a black male wearing a grey hoodie with the hood up and he was holding a black handgun in his right hand. This evidence is confirmed by the BMO CCTV recording. The SO advised the dispatcher that he had located the Complainant and that the Complainant had a handgun in his hand. He then stopped his cruiser at an opening in the hedge, against the east curb of Creditview Road, giving him a clear view of the entry doors of the BMO. The SO watched as the Complainant walked toward the front doors of the bank. The SO saw the Complainant look in his direction and he believed that the Complainant knew that the SO was there.

The SO took cover behind the front driver’s door of his police vehicle with the knowledge that if the Complainant shot at him, the engine block would stop the bullet. He then ‘racked’ his rifle, putting a round in the chamber, while he had it pointed downwards. He then took up a position with his rifle looking over the hood of his vehicle and yelled as loud as he could, several times, for the Complainant to drop the gun. He was sure that the Complainant could hear him. The Complainant opened the front door to the bank, as if to enter, but then turned and faced outward while holding the door open with the left side of his body, and holding the handgun in his right hand, down at his side. This evidence is also corroborated by the BMO CCTV footage.

The SO activated the emergency button on his portable radio to allow other officers and the dispatcher to hear his communications. This is confirmed by the police transmission communications log wherein at 1:50:56 a.m., it is noted that the SO had eyes on the male and that the male was pointing a gun. It is then noted that the SO had ‘officer initiated’ his portable radio. He continued to yell commands at the Complainant to drop the gun and he heard WO #3 doing the same.

The SO stated that he was very familiar with this plaza and the area in general, and was aware that people often hung out in the plaza. He was also aware that other officers were in the area, that there was a busy Tim Hortons nearby, and that there was residential housing behind him. The SO indicated that in addition to concerns for his own safety, he was concerned that if the Complainant were to fire his weapon, a bullet could strike a civilian or another police officer.

The SO observed the Complainant raise the handgun straight out at shoulder height and, although the gun was not pointed directly at the SO, but to his right, the SO believed that the Complainant was about to fire his weapon.

WO #1 observed the Complainant with a handgun in his right hand pointing it at someone, not himself. He described the handgun as being in the Complainant’s right hand, which was extended straight in front of his body at a 90 degree angle. The Complainant then saw WO #1 and the Complainant pointed the handgun at him. WO #1 advised that he was unable to conceal himself at that time, and he feared for his safety and backed up to his police cruiser. He heard the SO giving commands for the Complainant to put the gun down. WO #1 then heard one gunshot which he described as a loud bang. The Complainant then fell to the ground and WO #1 called over the police radio “shots fired”. WO #1 then ran to the BMO where he observed the Complainant on the ground, but still moving, and observed a handgun within one to two feet of the Complainant, which WO #1 then kicked away.

The SO said that he fired one shot at the Complainant and saw the Complainant drop the handgun and fall to the ground, back into the vestibule of the bank. This is confirmed by the CCTV footage.

WO #3 advised that he was standing to the right of the SO when the SO shot the Complainant. He described the Complainant as looking left and right and pointing the handgun upwards, from which WO #3 inferred that the Complainant looked confused and was debating what to do. WO #3 indicated that he believed that the Complainant was aware of the police presence and that he was going to shoot at them. The Complainant exited the bank holding the gun in his right hand and looked in the direction of the SO and WO #3, who were both shouting commands at him. WO #3 indicated that he was of the view that his own life was in danger.

WO #3 then advised that approximately 20 seconds passed and the Complainant raised the gun to shoulder height and pointed it directly at the SO and WO #3, while simultaneously turning his body to the left 45 degrees and exposing his right side to the officer. WO #3 was about to discharge his handgun, when he heard two gunshots fired from the SO’s location.

The SO indicated that he then notified the dispatcher that a shot had been fired and he believed that the Complainant had been hit; he then called for an ambulance but remained behind the cover of his police vehicle because the handgun was still in close proximity to the Complainant. This evidence is confirmed in the police transmissions recording log wherein it is noted that at 1:51:27 a.m., a transmission was received that “Male is down” and at 1:51:45 a.m., the “Male dropped the gun” and was “Inside the BMO,” and “Male is down but still moving.” At 1:51:53 a.m., an ambulance was dispatched.

When questioned about a second discharge of his rifle, the SO advised that he did not recall firing his rifle twice but conceded it was possible that he could have done so. The SO stated that each discharge of his rifle required a deliberate pull of the trigger, which was confirmed by subsequent examination by the CFS. Additionally, the fact that the SO’s firearm was discharged twice is confirmed: by the presence of two cartridges, one on top of the SO’s cruiser and a second near the left front of his vehicle; by the fact that two gunshots were heard on the cell phone audio from CW #1’s recording; and by the presence of a hole in the exterior of the BMO wall which tested positive for the presence of lead and indicated that one bullet had struck the wall of the bank, while the second entered the Complainant’s body.

The damaged bullet was recovered after the post-mortem examination by SIU investigators and the CFS confirmed that both cartridges and the damaged bullet were consistent with having originated from a C8 rifle. The SO indicated that he was the only officer at the scene with a C8 rifle as well as being the only one who fired his weapon. As such, it is clear that both bullets must have been discharged from the SO’s weapon.

All of the witnesses, both civilian and police, indicated that the handgun in the Complainant’s possession either appeared to be a real gun, or they were unable to discern if it was a real gun or a pellet gun/toy gun.

The Complainant was transported to hospital where he underwent numerous surgeries over the next month to repair internal damage caused by the bullet that had entered his body and the infections secondary to the gunshot wound. The medical records indicate that on August 26, 2017, the Complainant died of complications caused by his bullet wound. This finding was confirmed in the final post-mortem report, which was received by the SIU on June 15, 2018.

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 SO to qualify for protection from prosecution under section 25, it must be established that he was in the execution of a lawful duty, that he was acting on reasonable grounds, and that he used no more force than was necessary. 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, and the statements of the civilian witnesses, that the Complainant had, at the very least, either committed or attempted to commit armed robberies of both the Petro Canada gas station employees, the Pizza Pizza employees, and CW #1. Additionally, he was in possession of a weapon, or imitation thereof, in a public place. As such, there were ample grounds for the police to arrest the Complainant for the offences of robbery with an ‘offensive weapon or imitation thereof’ contrary to s.343 (d) of the Criminal Code, as well as possession of a weapon dangerous to the public peace contrary to s. 88. As such, the apprehension and arrest of the Complainant were 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 SO:

1. Believed that he, or other persons, were at risk of death or grievous bodily harm from the Complainant, at the time that the SO discharged his firearm, and
2. Whether that belief was objectively reasonable, or, in other words, whether his actions would be considered reasonable by an objective bystander who had all of the information available to the SO at the time that he discharged his firearm

With respect to the first of these criteria, it is clear from the statement of the SO that he believed that he, or others, were at risk of death or grievous bodily harm at the time that he discharged his rifle. He based that belief on his observations at the time that the Complainant had in his possession a handgun, that numerous witnesses had called in to 911 to report that the Complainant was in possession of a firearm and had used that weapon to attempt to rob them, that the Complainant was aware of the police presence but had refused to comply with repeated commands by himself and other police officers to drop his weapon, and that the Complainant was pointing the gun in the SO’s direction and it appeared that he was about to shoot. Furthermore, the SO 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 residential housing, and as such, the Complainant not only posed a danger to the life of the SO, 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 the SO did believe that he, and/or other persons, were at risk of death or grievous bodily harm from the Complainant at the time that the SO discharged his firearm.

Turning then to question 2, with respect to whether or not there were objectively reasonable grounds to believe that the SO’s life, or anyone under his protection, was at risk of death or grievous bodily harm from the Complainant, one need only refer to the objective bystanders who actually witnessed the actions of the Complainant. In each of the 911 calls, from five different witnesses, three specifically referred to the weapon in the possession of the Complainant as a gun, while two indicated that they were unable to determine whether the gun was real or not. Furthermore, based on the audio recordings, as well as the statements of various witnesses, there is no dispute that the SO, as well as other officers, repeatedly shouted out to the Complainant to drop his weapon, and he refused to do so. As such, it appears clear that the SO did not immediately resort to the use of his firearm, but attempted to resolve the issue without a deadly use of force; the Complainant, however, refused to cooperate.

I note as well that WO #3, who was standing closest to the SO, observed the Complainant to raise his gun to shoulder height and point it in the direction of the SO and WO #3, causing WO #3 to fear that his life was in danger. At that point, WO #3 advised that he too was about to discharge his firearm at the Complainant, but the SO fired first, eliminating the necessity of WO #3 doing so. On this evidence, then, it is clear that WO #3 shared the SO’s concerns for his own safety, and the safety of others, from grievous bodily harm or death.

Additionally, WO #1 observed the Complainant to point the handgun at him, and he too feared for his safety and was backing away from the Complainant to try and conceal himself from harm, when he heard the SO discharge his firearm.

Finally, while I accept that all of the civilian witnesses and the police witnesses believed that the Complainant was either in possession of a firearm, or they could not differentiate between whether it was a real handgun or a pellet gun[1], having viewed both the CCTV footage and the photograph of the weapon in the possession of the Complainant, 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 beyond dispute that the SO did not have the luxury of waiting to see if the Complainant fired the weapon at him, to determine whether or not it was a real firearm, at the risk of losing his own life or risking the lives of those around him.

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, then one is justified in using lethal force. I find in all the circumstances that the SO reasonably believed that his life, and those of his fellow officers and any civilians in the area, was in danger from the Complainant and the SO’s actions in firing upon the Complainant were therefore justified. I find that it would have been foolish and reckless for the SO to risk his own life 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 officers as if it were indeed a lethal weapon. I find that risk was not one that the SO or anyone else ought to have had to take when faced with possibly being shot by a man who, by all appearances, was armed with a gun and was an imminent danger to the SO and persons under his protection.

Finally, while this tragic loss of life is made even more so in that it involved the life of a 15-year-old, I should make note of the fact that none of the witnesses, in describing the Complainant, ever described him as being a youth, with the youngest age ascribed to him being 18 or 19 years of age and the oldest age ascribed to the Complainant being between 25 to 30, while all others put the Complainant in his early twenties. I also find that based on the description of the Complainant as contained in prior documentation provided, that being that he was some six feet in height and weighed approximately 201 pounds, and having seen his photographs, I accept that it would not have been obvious to anyone facing the Complainant that he was not a grown man, but rather that he was a youth. Having said that, however, when faced with the decision whether to shoot or be shot, I am less than confident that the Complainant’s age would necessarily have played a key role in making that decision.

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 find, therefore, on this record, that the shot that was fired and which struck and killed the Complainant was justified pursuant to s. 25(1) and (3) of the Criminal Code and that the SO, in preserving himself, or others, from threat of the infliction of grievous bodily harm or death at the hands of the Complainant, used no more force than was necessary to affect his lawful purpose. As such, I lack the reasonable grounds to believe that the actions exercised by the SO fell outside the limits prescribed by the criminal law and instead find that there are no grounds for proceeding with criminal charges in this case.

Date: June 27, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Which incidentally can also cause bodily harm and has often been classified as a firearm pursuant to the definition contained in the Criminal Code, depending on the projectile velocity. [Back to text]