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 Privacy Act (“FIPPA”)

• 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. 

• 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”)

Other proceedings, processes, and 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 22-year-old man.

Notification of the SIU

The Scene

 
The deceased, the Complainant, was located near the back of the store near the cooler area. The Complainant was handcuffed and lay on his back with his head orientated primarily south. His right foot was crossed over his left foot. In close proximity was a firearm, which was later found to be a Glock model 23 .40 calibre semi-automatic handgun. The slide was locked back and the magazine inserted in the weapon.


Figure 2- the handgun that was found next to the Complainant's body.

The Complainant wore black track pants, red underwear, sandals and socks. Upper body clothing had been cut back by EMS, exposing the front of the body. EMS medical paraphernalia was found attached to the deceased’s chest. There was a large pooling of suspected blood to the left of the deceased on the floor. The deceased was photographed as found, prior to further examination by the Coroner.

A conducted energy weapon (CEW) lay on the carpet inside the entrance. Both cartridges were inserted into the weapon and it had not been deployed. Cartridge cases, projectiles and bullet fragments were also close by. Cartridge cases were located on ice cream coolers, which were situated on both sides of the front door. Beneath one cooler to the left was a can of oleoresin capsicum (OC) spray. Store shelving in the centre area of the store was in disarray and several items of product lay scattered on the floor. Further cartridge cases, projectiles and bullet fragments were located throughout the central part of the store. A second can of OC spray lay on the floor near shelving. To the right as you entered the store was an automatic teller machine (ATM) and in this area more cartridge cases were located. Past the ATM machine was the entrance hallway that led to the washroom area. On the floor immediately outside the washroom door were two pry bar tools and two sledge hammers. Amongst these tools, more projectiles and bullet fragments were located.

The door to the washroom swung inward to the right. The door had noticeable signs of having being forced open. The door latch had been compromised and the extended dead bolt bent. There was staining on the floor outside the door of an oily residue suspected to be OC spray. On the floor inside the washroom were several cartridge cases, projectiles and more of the oily residue. Behind the door was a gym bag and on the sink was a piece of clothing and a cellular telephone. To the left of the sink was a garbage receptacle that had several impact sites. A “wet floor” safety pylon, which had impact sites, was in the middle of the washroom.


Figure 3 – the interior of the washroom with oily residue (likely from the OC spray) and cartridge cases/bullet fragments marked with yellow evidence markers.

 
Impact sites were located in the cooler section at the back of the store. Many of the glass doors to the coolers had been compromised and shattered, and product inside the cooler had also been struck. Impact sites were noted on shelving in the middle of the store. An iced drink display to the left of the cooler also had been struck. An impact site was also observed on the ceiling above the cooler section near the washroom.


Figure 4 - some of the impact sites located in the cooler section adjacent to the washroom.

The SIU’s investigation into the Complainant’s death consisted of interviews with two civilian witnesses and four witness officers, as well as a review of police records and communications. None of the five subject officers consented to an interview or to provide a copy of their notes, as was their right; however, the gas station’s CCTV was received and captured the shooting from multiple angles. This footage was consistent with the statements of the witness officers present during the shooting. The facts surrounding the Complainant’s death are accordingly clear.

At around 4:45 a.m. on September 22, 2018, HRPS officers were dispatched to a two vehicle collision on the QEW near Burloak Drive in Burlington. One of the drivers, now known to be the Complainant, had fled from the collision. A local taxi company was contacted and advised they received a call from the Complainant near the scene. The Complainant had sounded disoriented and was at the Esso Gas Bar on Appleby Line and Harvestor Road. HRPS WO #7 attended the gas station and located the Complainant in the washroom. Over the next couple of minutes, multiple officers arrived at the gas station including HRPS WO #1, SO #2 and SO #3. The officers confirmed with CW #1 that the Complainant matched the driver’s description and intended to arrest him for failing to remain. The four police officers stood outside the washroom, identified themselves and tried to convince the Complainant to exit the washroom voluntarily. The Complainant refused and they could hear him speaking on his cell phone.

At about this time, OPP WO #3 was investigating the motor vehicle collision. He noticed a lot of blood inside the Complainant’s vehicle, notably in and around the rear console, as if he had reached for something. A blue bandana with white tear drop marks was also found. WO #3 thought the Complainant may be a gang member which would explain why he fled the collision. At around 5:20 a.m., he notified dispatch that he had found gang insignia inside the Complainant’s vehicle and that he did not know whether he had any weapons.

More police officers continued to arrive at the Esso gas station, including WO #3, OPP SO #5, and HRPS SO #1 and SO #4. The Complainant became increasingly agitated while the officers tried to convince him to come out; he swore at them and told WO #1, “I will go to heaven before I ever come out to police.” The CCTV footage showed two officers, SO #2 and WO #1, holding ballistic shields and pointing CEWs towards the washroom door. SO #4 deployed OC spray underneath the door in an effort to get the Complainant to exit the washroom. The Complainant coughed but did not come out. SO #2 holstered his CEW and put his hand on his firearm. At 5:34 a.m., SO #1 and SO #4 breached the washroom door with a pry bar and a sledge hammer. At this point, based on a review of the CCTV footage, it appeared that none of the police officers had their firearms drawn. When the door opened, WO #1 saw the Complainant seated by the sink with a handgun pointed in the police officers’ direction. The Complainant shot at the officers multiple times through the washroom wall and open door. The bullets struck WO #1 twice in the right thigh and caused wounds to SO #2’s leg and thumb. The police officers reacted by rushing towards the front entrance of the gas station. Regrettably, the officers were unable to exit because the front door had been locked and could only be unlocked using a button accessible by the attendant, who had taken cover underneath a counter. The officers tried unsuccessfully to open the door for a few seconds and then the majority drew their firearms and pointed them in the direction of the washroom. [1] The Complainant exited the washroom and ran along a row of coolers at the back of the store while the officers shot at him. WO #7 heard the Complainant say, “I’m out, I’m out,” but was unsure what exactly he meant. From the CCTV footage, it appeared that the Complainant had a black object, such as a firearm, in his hands while he was running. The Complainant crouched with the object and then fell forward onto his stomach where he became motionless on the floor. A black handgun was found on the floor a few feet from his body. SIU investigators determined that the handgun was out of bullets.

Paramedics entered the gas station to assess the Complainant but found no pulse. The Complainant was declared dead. A post-mortem examination of the Complainant’s body revealed that he had six gunshot wounds: five to his left side (left upper arm, forearm, chest, torso and buttock) and one to his right side (right buttock). One wound was fatal because the bullet perforated his lungs and heart.

SIU investigators seized the firearms of officers involved in the shooting and learned that five officers likely discharged their firearms. These officers were designated as subject officers. From examining the subject officers’ firearms and assuming that they were loaded to capacity, it was determined that SO #5 discharged his firearm a maximum of four times, SO #2 discharged his firearm maximally once, SO #3 discharged his firearm up to five times, SO #1 discharged his firearm no more than three times and SO #4 discharged his firearm once at most. [2]

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

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

Section 252, Criminal Code – Failure to stop at scene of accident

(a) another person,

(b) a vehicle, vessel or aircraft, or

(c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

On September 22, 2018, the Complainant was killed after exchanging gunfire with several HRPS officers and one OPP sergeant in an Esso Gas Bar in Burlington. The Complainant was located by the police inside the gas station’s washroom after fleeing from the scene of a motor vehicle collision. The officers asked the Complainant to exit the washroom but he refused. As a result, the officers forced the door open only to discover the Complainant pointing a handgun in their direction. The Complainant shot a volley of bullets towards the officers, emptying his magazine and hitting two HRPS police officers. When the Complainant ran from the washroom, the police officers shot towards him, inflicting six gunshot wounds on the Complainant’s body. The Complainant was mortally wounded and declared dead at the scene by paramedics.

Regardless of which of the subject officers ultimately shot the Complainant, it is clear that none of the officers committed a criminal offence in relation to his death. Pursuant to section 25 of the Criminal Code, police officers are permitted to use force in the course of their lawful duties so long as the officer acts on reasonable grounds and the force is necessary. Section 25(3) of the Criminal Code imposes additional restrictions where the use of force is likely to cause death or grievous bodily harm, as is the case where a police officer shoots someone. The officer must believe the force is necessary to protect himself or herself, or another person, from death or grievous bodily harm and this belief must be both subjectively held by the police officer and objectively reasonable in the circumstances (R. v. Nasogaluak, [2010] 1 S.C.R. 206).

It is evident that the officers were acting in the course of their lawful duties when they shot at the Complainant. They were investigating a driver fleeing from a collision, and knew the Complainant had called a taxi from a location near the scene of the collision, sounded disoriented and matched the suspect’s description. As a result, the officers had reasonable grounds to believe he was the fleeing driver and therefore the Complainant could be arrested for failing to stop at the scene of an accident contrary to then section 252 of the Criminal Code.

In these circumstances, it is similarly evident that the police officers believed shooting the Complainant was necessary to protect themselves from grievous bodily harm and that this belief was objectively reasonable. While none of the subject officers consented to an interview, it can be inferred from the circumstances that the officers perceived a grave threat and believed shooting the Complainant was necessary to protect themselves. I find this belief reasonable because the Complainant presented an imminent and significant threat to the officers and they had no other reasonable way to protect themselves. The Complainant had just shot two police officers, and was still in possession of a firearm when he exited the washroom. While the Complainant said, “I’m out, I’m out,” as he ran along the back of the store, perhaps indicating he was out of bullets, his behaviour was otherwise inconsistent with a person who was surrendering. He did not relinquish possession of the firearm and there is no evidence he tried to negotiate a surrender with the police officers in any meaningful way. When he darted from the washroom with a firearm in his hands, he placed the police officers in his line of fire and therefore presented a significant risk of immediate bodily harm or death to them should he continue shooting at the officers. The police officers were justified in taking steps to protect themselves and had no reasonable alternative than to shoot at the Complainant. The police officers were unable to flee due to the locked door, and the layout of the gas station provided no adequate place to take cover. Other available use of force options, such as a CEW, were inappropriate in the face of a person armed with a firearm. Nor was trying to negotiate acceptable given the immediacy and gravity of the risk of harm including death. As such, I believe the officers acted reasonably and were justified under section 25 of the Criminal Code when they shot at the Complainant.

In summary, it is possible that up to four HRPS officers and one OPP sergeant shot at the Complainant; however, I do not believe that any officer committed a criminal offence in relation to the shooting. The Complainant was the first to shoot, striking two police officers, and was armed with a handgun when he exited the washroom. He continued to pose an imminent and serious risk of grievous harm or death to the officers when the officers returned fire. In the result, I find the officers’ actions proportionate, reasonably necessary and justifiable under law. No charges will issue and the file will be closed.


Date: May 24, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit