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 discharge of a firearm at a 16-year-old youth (“Complainant #1”) and an 18-year-old male (“Complainant #2”).

Notification of the SIU [1]

On November 21, 2023, at 2:07 p.m. the OPP contacted the SIU with the following information.

In the afternoon on November 21, 2023, Children’s Aid Society (CAS) from the Owen Sound office attended a residence in Harriston for the purposes of a well-being check on a baby at that location. The CAS worker retreated from the residence and contacted the OPP because of hostility and threats from two males in the house. The OPP responded to the residence where the two males were observed to be throwing bricks and causing damage within the home as well as an adjacent residence. Following attempts at negotiation, the two males were struck by Anti-riot Weapon Enfield (ARWEN) deployments. Both males went to the Palmerston and District Hospital. They had sustained bruising but no serious injuries.

The Team

Date and time team dispatched: 2023/11/21 at 2:37 p.m.

Date and time SIU arrived on scene: 2023/11/21 at 5:40 p.m.

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

Complainant #1 16-year-old male; interviewed
Complainant #2 18-year-old male; interviewed

The complainants were interviewed on November 22, 2023.

Subject Official

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Official

WO #1 Interviewed
WO #2 Interviewed

The witness officials were interviewed on December 8, 2023.

The Scene

The events in question transpired in and around a residence situated in Harriston.

Physical Evidence

On November 21, 2023, at 5:40 p.m., SIU forensic investigators arrived at the residence in Harriston and took digital images of the scene. The involved police equipment consisted of an ARWEN 37 mm less-lethal device. The device had been unloaded and rendered safe by Emergency Response Team (ERT) officers. It was photographed and put back in service. Two rounds had been discharged and located in the home.

Outside the front door, a black ARWEN cartridge case was lying to the right side of the doorway on the step. The second ARWEN cartridge case was lying on the floor of the doorway to the kitchen. Two green and black ARWEN projectiles were located on the kitchen floor.

Video/Audio/Photographic Evidence [2]

BWC Footage – the SO

On November 21, 2023, at 12:29 p.m., the SO and an undesignated officer were captured knocking on the door of the residence in Harriston. The Complainants’ father answered and went outside to speak to police as Complainant #1 was in the background making comments. The SO said the police were looking for a peaceful resolution to this matter, and that CAS wanted to apprehend the baby. The Complainants’ father indicated the baby’s mother had done nothing wrong and police would need a warrant to enter and apprehend the baby. The Complainants’ father also indicated his son, Complainant #1, had not taken his medication and was “freaking out."  The SO advised that CAS had an issue with the amount of people in the home. The Complainants’ father indicated there were ten people staying at the next-door residence and it was not a concern. The SO asked if police could come to a resolution and bring the baby out. Starting at about 12:32 p.m., the Complainants’ father opened the door and asked his family if that was possible and someone from inside said “no." Complainant #1 screamed, “You’re going to get smashed,” and put his hand through the upper screen in the door. The SO and the undesignated officer held the screen door closed. As Complainant #1 punched at the screen, he was joined by Complainant #2. The father stepped in and told the Complainants to stop, but they were irate with police. The OPP officers stepped away from the door as Complainant #1 stated he would “beat the fuck out of that cop” and punched at the screen. Complainant #1 would not calm down. From the house a female voice was heard saying, “They are not taking the baby,” and the sound of breaking glass could be heard.

Starting at about 12:33 p.m., the OPP officers walked away from the house. They reached the roadway and turned to see Complainant #1 tossing an object towards the police. Complainant #2 then joined his brother outside. The undesignated officer unholstered his CEW and told the Complainants to get back. Another male from the house went onto the lawn and told Complainant #2 and Complainant #1 to get back inside. Somebody stated, “You’re going to get shot.” The SO requested another unit to attend. Before the BWC was turned off, there was a brief conversation with the CAS case worker to the effect that the Complainants were freaking out and they had tried to negotiate.

Starting at about 1:13 p.m., on November 21, 2023, the SO was on the street when Complainant #1 and/or Complainant #2 threw something at a neighbour’s residence. Another police officer was heard to say that Complainant #1 was smashing a neighbour’s window. The SO, armed with his ARWEN rifle, and other police officers ran towards the front door. Glass could be heard breaking. The Complainants quickly went back inside their home. Another police officer was shown with his CEW drawn and ready. Police opened the inner door and ordered Complainant #1 to come outside. A third officer arrived. The SO positioned himself at the bottom right side of several steps that led up to the door. Continuous commands were issued to “get out now." A male and female were heard from within the residence. A police officer stood in the threshold of the doorway, but the camera was blocked by the SO’s ARWEN rifle. The inner door was subsequently closed. There were now five officers captured outside the front door area, including WO #2. Complainant #1 continued screaming from within the residence. A male voice stated, “Don’t fuckin’ do that,” as another officer stated, “We can’t let him do that.” Another male officer said, “We can’t let him do that.” Another male officer said, “For the safety of the neighbours,” and another officer said, “They got a little kid.” Yelling continued from within the residence.

Starting at about 1:14 p.m., a police officer said, “Let’s get the door open and see what we got.” Two police officers opened the door and began to make entry into the residence. The SO was positioned at the right side of the door at the threshold. Complainant #1 was at the kitchen opening at the far end of the living room. Complainant #2 pulled on a drawer and the contents were heard hitting the floor. Complainant #2 passed behind Complainant #1 as Complainant #1 grabbed a kitchen chair and prepared to throw it. The SO was at the threshold of the doorway and the ARWEN rifle was discharged twice, once at each brother who were in the kitchen. The SO continued into the kitchen and both Complainants were arrested and handcuffed with their hands behind their back.

Starting at about 1:16 p.m., WO #2 arrived in the kitchen and asked if anyone was hurt. Complainant #2 said he had been shot. WO #2 asked where the baby was located.

Starting at about 1:19 p.m., the SO placed the ARWEN rifle back in his police vehicle. Conversation was heard that they were going to get the baby now. The SO was told the neighbours did not answer their door. The SO reported that he had discharged two ARWEN rounds, and they were both hits.

At 1:20 p.m., the SO made a radio transmission about the discharges.

The evidence collected by the SIU, including interviews with police and non-police eyewitnesses, and video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.

In the morning of November 21, 2023, an OPP officer was dispatched to a home in Harriston following a call to police from a child welfare worker. The child welfare worker, at the address to check on the well-being of a baby, had been threatened and chased away by two young males – Complainant #1 and Complainant #2. With the arrival of the officer, he and the child welfare worker were allowed into the home but not for long. Complainant #1 and Complainant #2 became hostile again and started uttering threats, at which point the officer and child welfare worker left the home and a request was made for more officers.

Additional officers arrived on scene, including the SO. By this time, the child welfare worker had decided that the baby was in need of protection and should be removed from the home. Officers approached the front door at about 12:30 p.m. and spoke with the Complainants’ father attempting to negotiate the baby’s safe removal from the home. The father told them they could not enter the house without a warrant. From inside the residence, Complainant #1 and Complainant #2 threatened the officers. As the officers were leaving the front door, one of the Complainants threw an object at them.

At about 1:13 p.m., Complainant #1 and Complainant #2 emerged from the house and threw an object at their next-door neighbour’s residence, damaging a window. The SO and other officers ran towards the front door of the residence as the Complainants retreated inside. They opened the door and ordered the Complainants out to no avail. The door was subsequently closed while the officers waited outside. Minutes later, officers opened the door again and entered the residence.

Among them was the SO, armed with an ARWEN. From the threshold of the front door, the SO fired his weapon twice at the Complainants, striking each of them once. At the time, the Complainants were at the far end of the doorway in the kitchen: one was preparing to throw a chair at the officers while the other had just pulled a drawer out, emptying its contents. Officers entered the kitchen and handcuffed the Complainants without further incident.

Following their arrests, the Complainants were taken to hospital. Neither had sustained serious injury as a result of being struck by the ARWEN rounds.

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,

On November 21, 2023, the OPP contacted the SIU to report that one of their officers had discharged an ARWEN striking two males earlier that day. The SIU initiated an investigation naming 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 use of his ARWEN.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.

By the time the officers, including the SO, entered the house to take the Complainants into custody, they had uttered threats to the child welfare worker and officers, and damaged property. The Complainants were subject to arrest for those threats and mischief.

I am also of the view that the officers entered the home lawfully. Though a Feeney warrant is ordinarily required to force entry into a dwelling-house to effect an arrest, the law recognizes exceptions, such as the doctrine of fresh pursuit. One of the Complainants had just damaged a neighbour’s window and was retreating into the home as officers approached. Though those same officers did not immediately enter the home, the doctrine of fresh pursuit does not require an uninterrupted series of events into the home. In the circumstances, I am satisfied there was a sufficient temporal nexus between the offence and the officers’ chase and entry into the home giving rise to the doctrine’s application.

Once inside the home, it is apparent that the SO’s use of the ARWEN was legally justified. Given the Complainants’ hostile and violent behaviour towards the officers in the time before their entry, there was good reason to be concerned that they would resist arrest. Indeed, the evidence indicates that they had been preparing to throw items at the police when the SO fired his weapon twice. On this record, I am unable to reasonably conclude that the SO acted unreasonably when he discharged his weapon. If the weapon worked as intended, it would temporarily neutralize the Complainants allowing for a window of time during which they might be safely arrested. That is precisely what occurred.

For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO. The file is closed.


Date: March 20, 2024

Electronically approved by

Joseph Martino
Director
Special Investigations Unit