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 injuries sustained by a 26-year-old male who was shot in a residence by police on March 18, 2016.

Notification of the SIU

On March 19, 2016, at 12:45 a.m., the Peterborough Police Service (PPS) notified the SIU of the injury by firearm sustained by 26-year-old John Lai during a violent encounter at a boarding house in Peterborough less than an hour prior. PPS reported that on March 18, 2016, at 11:46 p.m., police received a call originating from a residence in regards to a woman being attacked by a man inside the home. The first officer to arrive at the scene was confronted by Mr. Lai, who was standing on the landing leading up from the side entrance. Within moments of the encounter, Mr. Lai was shot by the officer. The woman was found dead in an adjacent bedroom.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 2

SIU Forensic Investigators responded to the scene and identified and preserved evidence, including ballistics information. They documented the relevant scene by way of notes, photography, sketches and measurements.

Complainant:

26-year-old John Lai, declined to be interviewed, but medical records obtained and reviewed

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

Witness Officers

WO #1 Not interviewed, but notes received and reviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed

Scene Diagram

The Scene

On the driveway of the residence, situated at the south side of the residence near the side entrance, SIU Forensic Investigators located two .40 calibre cartridge cases. The side entry led directly to a small landing of the side-split style home. Stairs to the right led to the basement and stairs to the left led to the main floor. The door showed no signs of forced entry. On the landing just inside the door, a third .40 calibre cartridge case was found.

At the top of the staircase leading to the main floor, a hallway leads to bedrooms and the kitchen. Immediately at the top of the stairs, the body of Cindy Torbar was found. She was covered in a yellow ground sheet. Further viewing of Ms. Torbar, when uncovered by PPS police officers, revealed multiple stab wounds to her back. A large kitchen knife was by her right side.

Two projectile impact sites were located on the north wall of the bedroom. One site had perforated the north wall and exited the wall. The second site, to the immediate right of the first strike, had penetrated the wall. A projectile was found embedded in a wall stud. A search of the north side of the residence outside the home produced a projectile in the grass beneath the exit point on the wall.

Forensic Evidence

The SO’s assertion that he fired three times was verified by the forensic evidence. Two rounds were recovered at the scene and one was removed from Mr. Lai at the hospital. Three shell cases, in positions that corresponded with the SO’s evidence, were found at or near the side doorway. The SO’s handgun was examined by SIU Forensic Investigators and 12 rounds were found in the magazine and one was in the chamber. The three expended rounds accounted for a total of 16.

Materials obtained from Police Service

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

• disclosure Letter,
• general occurrence report,
• notes for WO #1, WO #2, WO #3, WO #4 and WO #5,
• occurrence summary reports,
• Peterborough police property receipts,
• police firearm acquired – CFP, and
• training records of SO.

At approximately 7:30 p.m. on March 18, 2016, WO #3 and WO #5 attended a residence on Middlefield Road in Peterborough to check on the well-being of Mr. Lai as information was received from Toronto Police Service that he had been involved in an argument with his family while he was visiting them in Toronto and he was speaking of demons and higher Gods during his visit. WO #3 and WO #5 spoke to Ms. Torbar and Mr. Lai at that time. Mr. Lai denied any suicidal thoughts, and the officers determined that they had no basis to detain him under the Mental Health Act and left the premises.

Just before midnight on March 18, 2016, members of the PPS were dispatched to the same residence in response to a 911 call. The call was initially for two men fighting within the residence, one of whom had threatened to kill himself. This call was later updated to a man and woman fighting inside the residence and the woman possibly being choked.

The SO arrived first and positioned himself at the corner of the house and waited for back-up. Once WO #3 and WO #4 arrived, the SO entered the residence. The SO immediately saw Mr. Lai standing in the bedroom at the top of the stairs holding a 10 inch butcher knife, dripping blood, in his hand. The SO yelled at Mr. Lai to drop his knife, but Mr. Lai turned towards the SO, knife in hand, and held it up instead. A woman’s body (identified as Ms. Torbar) was lying motionless on the floor in the area of Mr. Lai. Mr. Lai looked directly at the SO and muttered words to the effect of: “She’s a demon, she’s a demon.” The SO repeatedly yelled at Mr. Lai to drop the knife, but he would not. The SO drew his firearm and pointed it directly at Mr. Lai, again directing him to drop the knife. Mr. Lai retreated behind a wall.

Mr. Lai then suddenly appeared out from behind the wall and stabbed Ms. Torbar again. The SO fired one round directly at Mr. Lai. Mr. Lai stood back up, and turned towards the SO. The SO fired two more shots before Mr. Lai dropped to the floor.

Mr. Lai was transported to hospital where it was confirmed that he had sustained a fractured rib, as well as a single bullet injury to the abdomen destroying his gallbladder and shattering his right kidney, both of which then had to be removed.

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

(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,

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.

When not protected

(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.

Section 34, Criminal Code – Defence — use or threat of force

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

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

On March 19^th, 2016, the SO, WO #3 and WO #4 responded to a call to a residence in the City of Peterborough. They were responding to a call initially for two men fighting within the residence, one of whom had threatened to kill himself. This call was later updated to a man and woman fighting inside the residence and the woman possibly being choked. During the course of the interaction with police at the residence, Mr. Lai was shot and injured. He was later seen at hospital and it was confirmed that he had sustained a single bullet injury to the abdomen destroying his gallbladder and shattering his right kidney, both of which then had to be removed. A rib was also fractured.

The evidence reveals that at 11:45 p.m. on March 18, 2016, the SO, WO #3 and WO #4 were dispatched to the residence in Peterborough. At that time it was unclear exactly what the situation was, but the SO, according to his statement to SIU investigators, surmised that it was serious since three cars had been dispatched.

Upon arrival, the SO advised that he positioned himself at the southwest corner of the house and waited for back-up. This information is confirmed by civilian witnesses. Once WO #3 and WO #4 arrived, the SO walked up the driveway to the side door. At the time of the officers’ arrival at the residence, there had not yet been any information relayed to responding officers that a weapon was involved. The SO stated that the main entry door was open and he opened the screen door and walked in the residence. As he stepped on the landing inside the door of the residence, he immediately saw Mr. Lai standing in the bedroom at the top of the stairs holding a knife in his hand. The SO described the knife as dripping blood. The SO instinctively keyed his portable microphone and stated that he intended to update the communications centre but, instead, he yelled at Mr. Lai to drop his knife. Mr. Lai turned towards the SO, knife in hand, and held it up in what the SO described as an aggressive and menacing manner.

The communications tape confirms that the SO is heard yelling, “Put the knife down, put the knife ….” and that there were loud voices and shouting in the background. The SO advised that it was at that point that he first noticed that there was a body (identified as Cindy Torbar) lying motionless on the floor in the area of Mr. Lai and that the knife in Mr. Lai’s hand was a large butcher knife with a ten inch blade. The SO described Mr. Lai looking directly at the SO and muttering something to the effect of: “She’s a demon, she’s a demon,” while the SO repeatedly yelled at Mr. Lai to drop the knife, to no avail. At that point, the SO drew his firearm and pointed it directly at Mr. Lai again directing him to drop the knife. He described Mr. Lai as being startled and retreating into the bedroom and to the right, behind a wall. The SO moved to the left side of the stairway and gingerly moved up a step or two in an attempt to see where Mr. Lai had positioned himself.

The SO then described Mr. Lai suddenly appearing out from behind the wall and into the frame of the doorway, at which point he lunged forward and downward to Ms. Torbar’s body on the floor, stabbing her with the knife. At that point, the SO had no way of knowing if Ms. Torbar was dead or alive, and he fired one round from his semi-automatic pistol directly at Mr. Lai. He indicated that Mr. Lai stood back up, seemingly unfazed, and turned towards the SO while still armed with the knife. Believing that he had missed with the first shot, the SO fired a second shot and again yelled at Mr. Lai to drop the knife. When there was still no response, The SO fired a third shot at which point Mr. Lai recoiled, as if punched in the stomach, and then dropped to the floor.

The sequence of events with respect to the firing of shots is confirmed by all civilian witnesses within earshot as well as WO #3 and WO #4. WO #3 was in a position, behind the SO, to hear and see the SO yell, “Drop the knife, drop the knife, do it now, do it now!” and then discharge his firearm for the first time. WO #3 also stated that she observed Mr. Lai stab Ms Torbar, lying in front of him, with the knife, at which point the SO discharged his firearm a second time and Mr. Lai dropped the knife. All witnesses who heard the gunshots described them as one shot, followed by a very brief pause, and then two more shots, with the exception of WO #3 who only indicated hearing two shots in total.

The statement of events as related by the SO is confirmed by all civilian witnesses, by witness officers and by the scene itself, which, when examined, revealed two .40 calibre cartridge cases near the south side entrance to the home, and a third casing just inside the door. Additionally, the body of Ms. Torbar was located immediately at the top of the stairs and a large kitchen knife was by her right side. Later investigation revealed that Ms. Torbar had been stabbed numerous times.

After the fact interviews with the family of Mr. Lai and others who lived in the residence raised the issue of Mr. Lai’s deteriorating mental state. After Mr. Lai was shot, he was examined at hospital and it was concluded that he suffered from schizophrenia and auditory hallucinations.

In this case, there is no question that the SO was acting in the course of his duty when he attended the scene in response to a call about a woman being attacked by a man. Thus, the only issue that I need to consider is whether the SO was justified in shooting Mr. Lai in the circumstances. There is no doubt in my mind that he was. The applicable provisions of the Criminal Code are sections 25 and 34 which together provide the legal justification for the use of lethal force in defence of self and defence of others. Thus the use of lethal force is justified where:

s. 34(1):

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, taking into account several factors that are enumerated in s. 34(2), including the nature of the threat, whether any weapons were involved, the availability of alternative means to neutralize the threat and the proportionality of the response.

And 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 preservation of any one under that person’s protection from death or grievous bodily harm.

In all the circumstances, including the fact that the SO was faced with a man armed with a knife who had already apparently stabbed one person and was about to stab that person again, I find that the shot that was fired and struck Mr. Lai was fully justified pursuant to s.34 of the Criminal Code as being in self-defence and defence of others, and that the SO, in defending himself and others (specifically Ms. Torbar) from Mr. Lai, used no more force than was necessary to effect his lawful purpose pursuant to s.25(3) of the Criminal Code. I have no doubt on all of the evidence that the SO believed that shooting Mr. Lai was absolutely necessary, given the large kitchen knife in Mr. Lai’s hand and hearing Mr. Lai say, “She’s a demon, she’s a demon,” for the preservation of the life of the woman that Mr. Lai was attempting to stab again. As such, I am not only satisfied on reasonable grounds on this record that the actions exercised by the officer fell within the limits prescribed by the criminal law and that there are no grounds for proceeding with criminal charges in this case, but it is my view that there was no other option available to the SO than to discharge his firearm, considering all of the circumstances and the possibility that Ms. Torbar may still have been very much alive, at that moment.

Date: August 11, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit