Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the serious injuries of 35-year-old man (“Complainant #1”) and a 34-year-old woman (“Complainant #2”).

Notification of the SIU [1]

On October 18, 2023, at 11:36 a.m., the Ontario Provincial Police (OPP) notified the SIU of a police shooting resulting in a chest wound for an individual (subsequently identified as Complainant #1).

According to the OPP, earlier that day, an OPP cruiser was rammed by a vehicle driven by Complainant #1. A police officer had discharged his firearm at the vehicle in the Town of Seaforth (OPP Huron County Detachment). Complainant #1’s vehicle fled the scene and was later involved in two other motor vehicle collisions.

The Scene

The events in question transpired on and around the parking area of a residence in the area of Main Street North and Highway 8, Seaforth.

Physical Evidence

The building associated with the parking lot was a two-story detached home. There was a gravel driveway on the side of the home. At the end of the driveway was an area for vehicles to park, parallel to the home. There were three uninvolved vehicles parked behind the home at the time of the shooting.

Beyond the vehicle furthest from the home was a grassy area that revealed tire marks. The tire marks led in an arc to the north side of the house, and continued between the house and another house and out onto the street. The right-side tire marks were most prominent. There were other tire marks in the grass that obscured the left-side tracks. The right-side tire marks were denoted with evidence cones indicating the path of the vehicle from the grassy area to the street.

The grassy area was scanned with metal detectors. Three silver 9 mm cartridge cases were found in the grass on the north side of the tire marks.

A fence separated the driveway from the neighbours to the south. There was some concern that a stray projectile had perforated the fence. A neighbour pointed out a hole in the fence that she reported was new. The hole was examined and discounted as a bullet strike.

The white SUV [in which Complainant #2 and Complainant #1 were occupants at the time of the shooting under investigation] was subsequently involved in a motor vehicle collision in the area of Huron Street and North Street North, Clinton.

SIU forensic investigators attended the area.

The vehicle was oriented in a southerly direction in the southwest quadrant of the intersection. The vehicle had collision damage to the left front corner and driver door. There were two visible defects to the front windshield. The vehicle had a visible defect to the front right passenger door skin under the window. There was also a visible non-penetrating defect to the front passenger window. The driver’s steering wheel and knee air bags had deployed. The vehicle was dirty and had collision damage to the left front corner. The hood was examined and there were disturbances in the dust that were enhanced using fingerprint powder. Three area of interest were identified.

The evidence collected by the SIU, including interviews with Complainant #1, Complainant #2 and police eyewitnesses, as well as video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

In the morning of October 18, 2023, the OPP received a 911 call regarding an automobile theft. The caller reported that his truck, with a trailer attached, had just been stolen from the Tim Hortons in Seaforth. OPP officers, including the SO, operating an unmarked police pick-up, were dispatched to try and locate the vehicle.

WO #1 was the first officer to spot the truck and trailer. It was travelling westbound on Browntown Road from Brussell Line. The officer radioed his observations and followed the vehicle a distance before losing sight of it. With the assistance of other officers, the truck was eventually found abandoned without its trailer. Further investigation established that the truck’s driver had travelled to the home of a nearby resident where he explained that he had run out of gas and asked to use the phone.

The driver was Complainant #1. He had phoned a female acquaintance – Complainant #2 – and asked her to come by and pick him up. The two had left the area together in a white SUV before the police attendance at the residence.

The white SUV was located by the SO, with WO #1 now his passenger in the unmarked pick-up. Complainant #2 and Complainant #1 were in the SUV stopped at a Tim Hortons in Wingham. With other officers, including WO #2, the SO followed the SUV as it left the Tim Hortons and made its way to a residence in Seaforth.

Unaware that they were being followed, Complainant #2 pulled into the parking lot of the residence, drove down the driveway along the south side of the house, and parked east of several other vehicles behind the house, facing north. Within seconds, she noticed a car pull up behind her vehicle and officers approaching either side of the SUV.

The car that had pulled up behind the SUV was WO #2’s unmarked Nissan Altima. The SO’s truck had followed the Altima to the back of the property. The officers had exited their vehicle and taken up positions around the SUV – WO #1 was by the front passenger door, WO #2 was by the driver’s door, and the SO was standing in front of the SUV nearer the passenger side. The officers repeatedly ordered Complainant #2 and Complainant #1 out of the vehicle. Within seconds, Complainant #2 placed the vehicle in drive and drove forward, striking the SO. In or around that time, the officer, who had his firearm out, fired two shots in quick succession and, following a momentary pause, a third shot. The SUV turned to the left and accelerated away between two residences on Main Street North. The time was 10:33 a.m.

The officers returned to their vehicles to pursue the SUV but were ordered to stand down.

Complainant #2 dropped Complainant #1 off at the Clinton Public Hospital, where he was arrested later that morning by police. He had sustained a bullet wound to the lower left chest wall, where the projectile came to be lodged in soft tissue, and shrapnel wounds along the medial aspect of the proximal left arm.

Complainant #2 was arrested days later. She had been struck by a bullet that lodged in the soft tissue of the upper thorax posteriorly.

Section 34, Criminal Code - Defence of Person – 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. 

(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:

                        (a) the nature of the force or threat;

(b) 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;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) 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;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

On October 18, 2023, Complainant #1 and Complainant #2 sustained bullet wounds in the course of a police shooting. The SIU was notified of the incident and initiated an investigation, naming the officer who fired his weapon – the SO – the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the injuries to Complainant #1 and Complainant #2.

Section 34 of the Criminal Code provides that conduct that would otherwise constitute an offence is legally justified if it was intended to deter a reasonably apprehended assault, actual or threatened, and was itself reasonable. The reasonableness of the conduct is to be assessed in light of all the relevant circumstances, including with respect to such considerations as the nature of the force or threat; 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; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force.

The SO was lawfully placed and engaged in the lawful execution of his duties in the series of events leading to the discharge of his firearm. Given what he knew of the 911 call reporting an automobile theft and what he learned in his subsequent investigations of the perpetrator’s movements, he had cause to believe that the passenger in the SUV – Complainant #1 – was subject to arrest for possession of stolen property.

The evidence further and reasonably establishes that the SO fired his weapon to protect himself from a reasonably apprehended assault. Though the officer did not come in for an interview, as was his legal right, he wrote as much in his notes and there is evidence in the circumstances that prevailed at the time of the shooting to suggest he is right. Principally, this includes evidence that the SUV being operated by Complainant #2 was moving forward in the officer’s direction and had, in fact, struck the SO just before the shooting. There is contrary evidence suggesting the shooting occurred as the SUV was stationary. That evidence, however, is problematic. It does not line up with what Complainant #2 is said to have told an acquaintance of what happened after the incident. In the final analysis, I am satisfied the version of events proffered by the SO is likelier to be closer to the truth on this point than the more incriminating evidence.

I also accept that the evidence falls short of any suggestion that the shooting constituted unreasonable force in defence of oneself. Accepting, as there are reasonable grounds for doing, that the SUV was moving forward and had, in fact, struck the SO just before he fired his weapon, the officer had every reason to believe that he was at imminent risk of grievous bodily harm or death. In the circumstances, one can understand why the officer believed that firing his weapon at the driver of the vehicle – Complainant #2 – was necessary in self-defence. As the operating mind of the SUV, there was a chance that her incapacitation would bring the threat to an end. That chance, I am satisfied, was a real one even as the reality of these situations must be acknowledged, namely, that a moving vehicle is not likely to immediately stop moving with a driver who has been shot. In the heat of the moment, with only split seconds to decide on a course of action with one’s life hanging in the balance, the criminal law would not deprive an officer from acting as the SO did. In arriving at this conclusion, I note that retreat was not a viable option given how quickly events unfolded around the SUV. I further note that the forensic evidence, including shots that entered the passenger side of the windshield and another that struck the front passenger door, is not inconsistent with the SO having fired in the direction of Complainant #2, at all times reasonably believing his life at risk, in light of the highly dynamic nature of the incident, in which both the SUV and the SO were likely moving throughout the period of gunfire, and the inherent lag between perception and reaction times.

In the result, while it is highly unfortunate that Complainant #1 was wounded in the crossfire, I am unable to reasonably conclude that the SO is criminally liable for his injuries, or Complainant #2’s injuries, given the protection section 34 confers on his conduct. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: February 15, 2024

Electronically approved by

Joseph Martino
Director
Special Investigations Unit