SIU Director’s Report - Case # 23-PFI-452
Warning:
This page contains graphic content that can shock, offend and upset.
Contents:
Mandate of the SIU
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.
Information Restrictions
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:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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.Mandate Engaged
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 serious injuries sustained by a 40-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On November 1, 2023, at 10:20 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.On November 1, 2023, at 12:01 a.m., police officers from the Six Nations Police (SNP) [Ohsweken] were called to an address regarding the Complainant. Reportedly, the Complainant had confronted a security officer with a rifle and knife. There was no firearm discharge or altercation at that time, and the Complainant fled to a residence on Chiefswood Road Ohsweken. SNP police officers attended, contained the residence and contacted the OPP, which dispatched a tactical unit based out of the OPP London Detachment. The OPP made efforts to resolve the situation; however, the Complainant refused to exit the home and surrender. At 8:00 a.m., the Complainant discharged his firearm from the residence and bullets struck a tactical vehicle situated nearby, causing concern for public safety. At 10:00 a.m., OPP Tactics and Rescue Unit (TRU) police officers broke down the front door to the residence with their armoured rescue vehicle (ARV). The Complainant shot at the police officers from within the residence. An aerosol irritant was discharged into the residence and, a short time later, the Complainant exited. Once outside, the Complainant discharged a firearm and a bullet struck an OPP tactical officer in the head. In response, the Complainant was shot multiple times with bullets and Anti-riot Weapon Enfield (ARWEN) rounds. The Complainant survived the interaction and was taken via ground ambulance to the Hamilton General Hospital (HGH).
The Team
Date and time team dispatched: 2023/11/01 at 10:30 a.m.Date and time SIU arrived on scene: 2023/11/01 at 12:15 p.m.
Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
40-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on November 8, 2023.
Civilian Witness
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
The civilian witnesses were interviewed between November 5 and 17, 2023.
Subject Official
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Declined interview and to provide notes, as is the subject official’s legal right
SO #3 Declined interview and to provide notes, as is the subject official’s legal right
Witness Official
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary
WO #9 Notes reviewed, interview deemed not necessary
WO #10 Notes reviewed, interview deemed not necessary
The witness officials were interviewed on November 5 and 6, 2023.
Evidence
The Scene
The events in question transpired on and around the exterior grounds of a property located at Chiefswood Road, Ohsweken.Physical Evidence
November 1, 2023
On November 1, 2023, at 1:25 p.m., two SIU Forensic Investigators (FIs) arrived at a staging location at Chiefswood Road. The OPP provided background information about the incident, after which the SIU FIs met with OPP officers who were assigned to conduct forensic examinations related to the OPP’s parallel criminal investigation. It was ascertained that a member of the OPP TRU had custody of police equipment that had been used in the incident under investigation. At 2:15 p.m., a SIU FI took photographs of an ARWEN 37 mm, less-lethal firearm. The weapon had reportedly been used by SO #2, and one round had been discharged from the five-round rotary drum magazine. Photographs were taken of a second ARWEN 37 mm. The second ARWEN had reportedly been used by SO #1, and one round had been discharged from the five-round rotary drum magazine.
Figure 1 - SO #2's ARWEN
A SIU FI took photographs of a ballistic helmet reportedly worn by SO #2. The helmet showed impact damage to the front left above the rim in the region of the forehead. The interior material was bulged and appeared to be the result of projectile impact. The helmet was documented and photographed.
Figure 2 - Impact damage to helmet
At 2:39 p.m., a SIU FI received a C8 rifle - Colt Model C8A2 .223 calibre reportedly used by SO #3. The rifle had a detachable magazine, which contained 18 rounds of ammunition. The service standard operating procedure was to load the magazine with 28 rounds of ammunition, suggesting ten rounds had been discharged from the weapon. The rifle was photographed and collected.
At 2:50 p.m., a SIU FI received a second C8 rifle - a Diemaco Model C8CQB .223 calibre reportedly used by SO #1. The rifle had a detachable magazine which contained 21 rounds of ammunition. Seven rounds had been discharged from this firearm. The weapon was photographed and collected.
Figure 3 - SO #1's C8 rifle
At 3:17 p.m., SIU FIs attended the incident location at Chiefswood Road. The scene, which was rural-residential, had been secured by OPP and SNP police officers. Chiefswood Road ran roughly north/south in direction with the address in question located on the side of the road. A driveway provided access onto the property. There were ditches on both sides of the road.
To the south side of the drive and set back from the road and ditch was a trailer. Significant damage had been done to the west end of the trailer, where the front door had been. A wooden deck extended from the side of the trailer
Further back from the road and to the north of the trailer and deck was a black ARV with OPP markings. On the front of the vehicle, extending towards the trailer, was a long rectangular hydraulic ram, which appeared to have been used to breach the trailer. On the top of the vehicle was a circular turret-style hatch with the cover open and facing towards the trailer. Numerous less-lethal items, including ARWEN cartridges, distraction devices and gas grenades, were on the roof around the open hatch. The rear doors of the vehicle were open. Two discharged ARWEN cartridge cases were behind the vehicle. Projectile impacts were visible on the upper right front corner and left side of the ARV. The paint at these locations was removed and body metal visible with a small indent on the surface. To the rear of the vehicle, tire marks extended backward up the driveway, indicating the vehicle had moved forward from another position. About ten metres up the drive, ARWEN cartridge cases were located.
To the south of this area, behind a parked white Ford automobile, were boxes, a wire spool and bags marked with OPP identifiers containing tactical communication gear. To the rear right corner of the ARV was a parked vehicle. On the grass to the rear right corner of this vehicle, ten silver cartridge cases appearing to be rifle calibre were found. To the east side of the same silver vehicle and located south of the armoured vehicle, an additional seven similar silver cartridge cases were found on the ground.
To the east and south was an embankment which ran alongside the edge of the property. Closer to the trailer along this embankment were several articles of clothing and medical debris. The clothing was in damaged condition and stained. To the west of the deck of the trailer, lying on the ground, was a brown and black rifle. Near the rifle was a closed folding knife of a switchblade design. West of the rifle and close to the embankment was a .22 calibre live round of ammunition.
Figure 4 - Brown and black rifle located at the scene
Among the debris on the deck beside the trailer appeared to be a Remote Aerial Piloted System (drone), which was damaged. Among the debris, which was part of the trailer wall, a green and black ARWEN projectile was seen, with a second green and black projectile lying inside the trailer. There was yellow powder covering parts of the interior of the trailer which appeared to be a mixture of tear gas and fire extinguisher contents. Several ARWEN gas projectiles were seen in the debris. Several gas canisters marked as ‘OC’ and ‘CS’ were seen in the debris. On the floor near the centre of the trailer was a folding chair and a quantity of fabric that appeared to be scorched or burned. Three discharged fire extinguishers were found on the drive and roadway nearby. At the entrance drive to the property, near the roadway, were several .22 calibre cartridge cases and one live round. Photographs were taken to document the scene and items observed.
November 2, 2023
Further information was obtained that an additional vehicle was involved prior to the Complainant arriving at the address, and that this vehicle had reportedly travelled over a spike belt. The vehicle was parked at the end of the drive near a residence to the west and north of the trailer. Both front tires were flat. Photographs were taken of the vehicle and its condition. At 1:15 p.m., SIU FIs completed a collection of the cartridge cases, and the scene was released to the OPP.
November 23 & 24, 2023
On November 23, 2023, information was received that the OPP had located a projectile within clothing that had been removed from the Complainant. On November 24, 2024, a SIU FI attended the Tillsonburg OPP Forensic Identification Services Unit and obtained a sealed bag which contained the projectile in a sterile container. The projectile was taken to the SIU for storage. The projectile was a copper-jacketed deformed projectile with evidence of staining. Video/Audio/Photographic Evidence [2]
In-car Camera System (ICCS) and Body-worn Camera (BWC) Footage
Sixteen OPP BWC videos and six OPP ICCS videos were obtained. The footage, in its entirety, was captured from a distance (the outer perimeter) and was of little investigative value.Facebook Screen Shots – CW #5’s Cellphone
The SIU received screen shots from CW #5’s cellular telephone taken of the Complainant’s Facebook account which showed that at 2:06 a.m., November 1, 2023, the Complainant accused the OPP and Canadian government of assaulting him and breaking the law.At 2:15 a.m., the Complainant held a large machete in his hands and, at 2:54 a.m., the Complainant had a large bottle of Bacardi Rum in one hand and a .22 calibre rifle in the other.
At 4:01 a.m., a large headlight emanated from the property where the Complainant’s trailer was located.
At 7:59 a.m., an ARV with a ram extended was immediately in front of the Complainant’s trailer.
At 9:16 a.m., the ARV’s ram was positioned within a few metres of the Complainant’s trailer.
Cellphone Video Footage - CW #5
Eight videos were taken from the cellphone.At 8:11 a.m., November 1, 2023, an ARV with ram extended was captured moving marginally forward and backward near the Complainant’s trailer.
At 8:14 a.m., the Complainant shouted, “Murderers,” and an unknown police officer told the Complainant they did not want to hurt him or be hurt.
At 8:25 a.m., the ARV moved slowly forward and reversed three times to pierce the trailer with the ram. The Complainant was ordered, “Stop shooting at police. Walk out without the firearm so no one gets hurt.” Commands of, “Drop the firearm. Do it now,” were repeated.
At 8:35 a.m., the ARV ram connected with the trailer three times and tore away small sections of the trailer. The loudspeaker repeated, “[The Complainant], come on out.”
At 9:13 a.m., the ARV ram maintained its position within a metre of the trailer. The loudspeaker announced, “No one wants to get shot at. What do you want us to do now?”
At 9:27 a.m., the ARV approached the trailer slowly, and several TRU police officers exited from the rear of the ARV. Tear gas canisters were thrown into the trailer, and a loud bang was heard from concussion grenades. The Complainant emerged from the trailer and immediately went back inside. The Complainant fired multiple shots and emerged from the trailer with a rifle at shoulder height pointed in the direction of the ARV. Multiple shots were fired in quick succession from OPP police officers. The Complainant fell and rolled to his left out of view.
Cellphone Video Footage – Civilian
On November 7, 2023, the SIU received two cellular telephone videos. The camera captured the front door of the trailer and the right side of the ARV as it approached and reversed from the front of the trailer. There was no time or date-stamp on the video.In the first video, the ARV moved forward and its ram struck the trailer front door, pushing the trailer door and wall inward. Five gunshots were heard to come from inside the trailer, and the sound of the shots were heard to strike the ARV. The ARV reversed back and forth, and one shot was fired from within the trailer.
In the second video, smoke was seen to come from inside the trailer. The ARV was positioned with arm extended by a wooden railing in front of the trailer. The Complainant appeared on the deck with his rifle at shoulder height. Someone shouted, “He’s coming out.” The Complainant stepped forward and took a couple steps to his left, but remained on the deck. The Complainant went back into the smoke and moved to his right side. Somebody yelled, “He’s back in.” The Complainant then appeared back on the right side of the deck (from the ARV perspective) with the rifle held in his left hand and just above his waist. The Complainant raised the rifle and fired one shot, which was followed by what was believed to be an ARWEN shot. The Complainant disappeared into the smoke as somebody yelled, “Get in. Get in.” The Complainant reappeared on the deck and the OPP began shooting. The Complainant came off the deck with the gun pointed towards the ARV before falling forward and rolling to his left side over top of a white object on the ground. The video ended as somebody said, “He’s.”
Video Footage - Drone
The footage was recorded post-incident and was of little investigative value.Video Footage – York Regional Police (YRP) Air Support
At 2:19:44 a.m., November 1, 2023, the Complainant entered a trailer located on the left side of a driveway.At 2:26:00 a.m., the Complainant left the trailer and walked to a shop located at Chiefswood Road. He had an unidentified object in his hands. The Complainant was at the store for approximately 20 minutes.
At 2:48:26 a.m., the Complainant was seen to leave the store and walk back to the trailer with something in his right hand; the object could not be identified.
At 3:14:40 a.m., clouds appeared, and the video ended.
Police Communications Recordings
On October 31, 2023, just prior to 11:50 p.m., a call was received from security personnel from a business located on Chiefswood Road about an unknown man [now known to be the Complainant] who was on foot with a pump-action shotgun and machete. The Complainant had been heard to say, “It’s open season on cops.” The Complainant was last seen walking on Chiefswood Road.Multiple SNP units arrived around Chiefswood Road and were advised not to activate emergency lights or sirens. All officers had body armour.
On November 1, 2023, at 12:05 a.m., shots were fired by a rifle. No injuries were incurred.
At 12:26 a.m., a command post (CP) was established. EMS were staged. The airport was notified of a no-fly zone as drones would be utilized.
The estimated time of arrival (ETA) for TRU was 2:00 a.m., and the ETA for ten Emergency Response Team members and a police service dog was 45 to 90 minutes. OPP Aviation was not available, and YRP Aviation had an ETA of 45 minutes.
At 12:30 a.m., a drone was deployed.
At 1:14 a.m., information confirming the identity of the person with the rifle/shotgun as the Complainant was reported.
At 1:30 a.m., a SNP vehicle drive-by revealed vehicle details. The Complainant was seen near the vehicle when it departed. A spike belt was successful on two tires as the vehicle evaded SNP, then returned to the area of the Complainant’s trailer.
At 1:39 a.m., four shots were fired at police on Chiefswood Road from the southwest side of the road.
At 1:47 a.m., the Complainant walked northbound on Chiefswood Road towards a business. A TRU mission statement was read, “To isolate and contain the affected area and arrest the suspect, keeping the safety of the police, public and suspect paramount.”
The Complainant walked between his trailer and the business multiple times. He was in possession of a long gun.
At 3:03 a.m., CW #1 reported information about the Complainant’s mental health, and that he stayed in his trailer alone and was in possession of a .22 rifle.
At 3:14 a.m., the TRU arrived at the CP, and OPP negotiators were en route. Multiple gunshots were fired from the Complainant’s trailer, followed by sporadic shots later.
At 3:39 a.m., the TRU mobilized in the area of Chiefswood Road. TRU officers attempted negotiations, and the Complainant refused to exit his trailer.
At 7:31 a.m., the TRU breached the trailer with the ARV and, at 7:34 a.m., the Complainant fired multiple rounds at the ARV. At 7:40 a.m., TRU deployed tear gas into the trailer, but the Complainant remained barricaded. The ARV continued to dismantle the trailer.
At 8:41 a.m., the Complainant was visible inside the trailer as he sat on a chair and smoked a cigarette while pointing a rifle at the ARV.
At 9:30 a.m., the TRU deployed distraction devices and, at 9:41 a.m., EMS was escorted onto the scene.
At 1022 a.m., Six Nations Fire Department cleared the scene.
TRU Chat Group Dispatch – Screen Shots
On November 1, 2023, at 1:39 a.m., a CP was designated. A shooting had occurred on Chiefswood Road. At 2:22 a.m., a picture of the Complainant was posted and, in a separate post, the Complainant’s driver’s licence profile information was posted.
At 2:42 a.m., a screen shot from the Complainant’s Facebook account was posted, in which he held a rifle and looked towards Chiefswood Road. A second image was a Global Positioning System (GPS) screen shot depicting a police unit 38 kilometres away with an arrival time of 3:20 a.m. A screen shot of the Complainant was posted, as he sharpened a machete. A second image was a GPS screen shot of a unit on Highway 403, 37 kilometres away with an arrival time of 3:20 a.m.
At 3:29 a.m., a handwritten note was posted, which read, “Mission: To isolate and contain the affected area and arrest the suspect, keeping the safety of the police, public and suspect paramount.” Three screen shots of YRP aviation aerial images were posted and, at 4:49 a.m., a screen shot of the front door of the Complainant’s trailer was posted.
Negotiator Chat Group
On November 7, 2023, the SIU received information pertaining to the OPP negotiators. The information identified the five negotiators involved, a text-thread identified as ‘Crisis Negotiator’s Group Chat’ from their time of call-out until the conclusion of this event, and a twelve-minute telephone conversation with the Complainant.Within the text messages was a thread of interest at 5:28 a.m. A psychiatrist indicated it would be tough to negotiate as the Complainant was already not rational and he had disorder of thought. It was agreed to attempt to give the Complainant access to a throw phone and gauge his response. The rest of the text messages had no investigative value.
Phone Communications - Negotiators
An officer was engaged in conversation with the Complainant about his employment. The officer confirmed the police were on his property, and the Complainant responded, “I have identified them as murderers.” His agitation rose and he claimed immunity from any Canadian laws. His primary concern was to have the police off his property. The officer reiterated his desire to keep everyone safe and a willingness to work through the situation. The Complainant referenced a prior incident in Brantford where he alleged that he was attacked with a M-16 assault rifle.The Complainant made broad allegations of genocide and murder against police officers throughout North America. The Complainant said he had a bag with goodies, which he could use to defend himself from the police murderers. With no clear connection during the conversation, the Complainant ended the call with frustration.
Materials Obtained from Police Service
The SIU obtained the following records from the SNP and OPP between November 1, 2023, and December 6, 2023: - BWC footage;
- Computer-assisted dispatch information;
- Cellphone footage from civilian;
- Drone footage
- General Report (SNP);
- List of negotiators;
- Notes of WO #1;
- Notes of WO #2;
- Notes of WO #4;
- Notes of WO #5;
- Notes of WO #6;
- Notes of WO #7;
- Notes of WO #8;
- Notes of WO #9;
- Notes of WO #10;
- Notes of SNP officers;
- OPP Crisis Negotiator Group Chat;
- OPP Involved Officers List;
- OPP TRU teams and call-signs;
- OPP TRU Chat Group.
- SNP report about the Complainant;
- Uniform officer call-signs;
- Will-say of SNP officers;
- YRP air footage;
- 2023 Training Report – SO #1;
- 2023 Training Report – SO #2; and
- 2023 Training Report – SO #3.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources between November 1, 2023, and January 9, 2024:- Facebook video – CW #5; and
- The Complainant’s medical records from HGH.
Incident Narrative
Shortly before midnight of November 1, 2023, SNP officers were dispatched following a call to police about a male – the Complainant – who had displayed a machete and firearm at security personnel at an establishment on Chiefswood Road while saying that it was “open season” on police officers. As officers approached the Complainant’s residence on Chiefswood Road in separate cruisers, they came under fire from the Complainant. The officers set up a perimeter around the area and called for the assistance of the OPP.
An OPP TRU team under the command of WO #1 was deployed. They were briefed on the events involving the SNP officers and convened at the command post that had been established in Chiefswood Road and Highway 54 at about 3:10 a.m. By this time, it was determined that the Complainant was at his trailer located south of the driveway of an address on Chiefswood Road, just west of the roadway. A mission statement was pronounced, namely, to isolate and contain the area around the Complainant and to arrest him with paramount importance placed on his safety and that of the police and the public.
The TRU team arrived on scene at about 0405 hours inside an ARV. The vehicle was reversed into the driveway beside the front of the trailer. Inside the vehicle were SO #2, SO #3 and SO #1, as well as WO #1, WO #2 (the driver), WO #3 and WO #6. WO #6 was a dog handler and was with his dog. WO #4 and WO #5 took up sniper positions east of Chiefswood Road. With the use of a loudhailer, WO #1 repeatedly called-out to the Complainant directing him to exit the trailer with his hands up and empty. The officer explained that the police wanted to resolve the situation peacefully. The Complainant did not always respond. When he did, he made it clear he had no intention of exiting.
The Complainant was of unsound mind at the time. He believed himself to be an investigator and OPP officers murderers. In his possession was a rifle.
At about 4:30 a.m., after TRU officers had broken the east facing window on the trailer, the Complainant appeared at the window with his rifle. At about 5:50 a.m., and again at about 6:00 a.m., the Complainant fired multiple rounds out of the trailer window.
In light of the growing threat to public safety presented by the Complainant’s use of the rifle, the police decided to adopt a more proactive posture with the introduction of tear gas into the trailer. It was hoped the tactic would force the Complainant out of the trailer. It did not. Rather, gas canisters thrown into the trailer prompted the Complainant to discharge additional rounds out the window.
At about 7:30 a.m., the TRU embarked on a further tactical escalation. They decided to use the ARV’s extended arm to ram through the front door of the trailer at its western end. As the ARV approached and then breached the door, the Complainant fired at the vehicle striking it and damaging the windshield. Additional gas was deployed into the trailer through the doorway via ARWEN discharges, again, to no avail. The Complainant remained inside the trailer. At about 8:15 a.m., on seeing an OPP drone flying by the trailer door, the Complainant shot it down and then directed multiple rounds at the ARV.
The situation came to a head at about 9:30 a.m. From up in the ARV’s turret, SO #1 threw two smoke canisters into the trailer through the door. As smoke bellowed from the trailer, the Complainant emerged onto the trailer deck outside the door with his rifle in hand, closest to the passenger side of the ARV. It appears he was struck by an ARWEN impact round at this time fired by SO #1 from the turret. The Complainant would re-position himself by the driver’s side of the ARV, still on the deck, before returning to the passenger side and firing his rifle. SO #2, from a position behind the ARV, fired his ARWEN at the Complainant at about the same time as his protective helmet appears to have been struck by a round discharged by the Complainant. Seconds later, SO #1, from the turret, and SO #3, from a position at the rear of the ARV, returned fire with their C8 rifles, the former discharging seven rounds, the latter, ten. The Complainant was felled. SO #3, WO #3 and WO #6 came from behind the ARV and handcuffed the Complainant.
The Complainant was transported to hospital in Hamilton and treated for multiple gunshot wounds.
Relevant Legislation
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.
Analysis and Director's Decision
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 TRU team was lawfully placed and in the execution of their duties throughout the series of events culminating in the shots fired from their ARWENS and C8 rifles. They had reason to believe that the Complainant had fired a gun at SNP officers. And they were also present on and around the grounds by Chiefswood Road when the Complainant repeatedly fired his rifle in their direction. On this record, the Complainant was clearly subject to arrest and the TRU officers were within their rights in seeking to take him into custody.
With respect to the ARWEN rounds fired by SO #1 and SO #2, and the C8 discharges by SO #1 and SO #3, I am satisfied the officers used their weapons in defence of themselves and their colleagues from a reasonably apprehended assault. Though none of the officers interviewed with the SIU, as was their legal right, the circumstances surrounding the shots fired by the officers compel that conclusion. By the time the subject officials resorted to their weapons, the Complainant had discharged multiple rounds in the direction of TRU officers. It was clear that that he had no qualms about shooting an officer and was intent on doing so. Faced with a lethal threat, it is apparent that the officers acted to preserve themselves from grievous bodily harm or death when they shot at the Complainant.
I am also satisfied that the force used by the officers constituted reasonable force. The ARWEN discharges were certainly in order. Had they worked, one or the other of the impact rounds would have temporarily incapacitated the Complainant, perhaps even dispossessing him of his rifle, permitting the officers a window of time within which to safely effect an arrest without the infliction of serious injury. It is also evident that the use of the C8 rifles by SO #1 and SO #3 was not off limits. The Complainant had fired at the officers and was preparing to shoot again when he was downed by a barrage of gunfire. The Complainant constituted a clear and present danger to the lives and limbs of the officers and the officers were entitled to meet that threat with a resort to lethal force of their own. Indeed, in the final exchange of gunfire between the parties, it appears that a round fired by the Complainant either directly struck or ricocheted into SO #2’s protective helmet. While the number of C8 shots fired by SO #1 and SO #3 is subject to legitimate scrutiny, I am unable to reasonably conclude that they exceeded the remit of authorized force in the circumstances. The shots began as the Complainant was pointing his firearm in their direction (ostensibly preparing to fire again), continued in rapid succession, and ended within a second or two of the Complainant falling to the ground. Given the tension of the moment, the speed with which events unfolded, and the delay inherent in reactions times, I am satisfied that the risk reasonably apprehended by the officers persisted from the first through the last shot.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the subject officials. The file is closed.
Date: March 1, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Unless otherwise specified, the information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.