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:

• 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 Personal 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.

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

• 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.

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 an 18-year-old male (the “Complainant”).

Notification of the SIU[1]

On November 29, 2023, at 6:25 a.m., the OPP contacted the SIU with the following information.

On November 29, 2023, at 2:58 a.m., OPP officers, Witness Official (WO) #1 and the Subject Official (SO), located a BOLO (Be on the Lookout) alert vehicle. A male [later identified as the Complainant] had taken a taxi to Aylmer and, sometime en route, stolen the taxi from the driver at knife point. The Complainant continued into Aylmer where he stole a dog from a home. WO #1 and the SO located the taxi on Highway 3 in Malahide near Rogers Road, just outside of Aylmer. The Complainant fled on foot and was pursued by the officers; a conducted energy weapon (CEW) was deployed unsuccessfully. The Complainant advised the officers that he had a gun. The SO discharged her firearm and missed the Complainant. The Complainant was arrested and taken to St. Thomas Elgin General Hospital.

The Team

Date and time team dispatched: 2023/11/29 at 7:20 a.m.

Date and time SIU arrived on scene: 2023/11/29 at 9:45 a.m.

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

18-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on November 29, 2023.

Civilian Witness

CW Interviewed

The civilian witness was interviewed on November 29, 2023.

Subject Official

SO Declined an interview; notes received and reviewed

Witness Official

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

The witness officials were interviewed between December 4, 2023, and January 25, 2024.

The Scene

The events in question transpired on and around the open field on the southeast corner of the intersection of Talbot Line (Highway 3) and Rogers Road, Aylmer.

Physical Evidence

On November 29, 2023, at 9:45 a.m., a SIU forensic investigator arrived at Highway 3, just west of the Aylmer town centre, where a collision involving two police vehicles and one non-police vehicle had occurred east of the intersection at Rogers Road. The scene was secondary to the investigation. A Hyundai Elantra, oriented northeast in the westbound lane of Highway 3, had collision damage to the driver’s side rear corner. A marked OPP vehicle – a Ford Taurus - was oriented northeast behind the Hyundai and had collided with it. An OPP vehicle – a Dodge Durango - was oriented west in front of the Ford Taurus.

Figure 1 - The marked OPP Ford Taurus located at the scene, oriented northeast behind the Hyundai

There was a large, grass area at the southeast corner of Highway 3 and Rogers Road. This field was the residential property of an address on Rogers Road. The residence at Rogers Road faced west onto the roadway with a driveway on the north side. There were also two outbuildings on the property. An OPP Dodge Durango was found running and parked in the driveway. There was a CEW probe near the north side of the residence at Rogers Road, as well as CEW blast doors and a 9 mm Luger cartridge case within the area of a horseshoe pit area.

The CEW blast doors and a 9 mm Luger cartridge case were collected at the scene. Also, the SO’s firearm, a Glock Model 17M, one cartridge removed from the breech, and a magazine with 16 cartridges, were collected by the SIU.

Figure 2 - The SO’s firearm with one cartridge removed from the breech and 16 cartridges removed from the magazine

Forensic Evidence

WO #1’s CEW – Deployment Data

Data downloaded from WO #1’s Taser Model X2 indicate the trigger was pulled at 4:06:51 a.m.,[2] November 29, 2023, resulting in the deployment of Cartridge 1 and a corresponding charge duration of two seconds. The trigger was again pulled at 4:06:54 a.m., November 29, 2023, resulting in the deployment of Cartridge 2 and a corresponding charge duration of six seconds.

Video/Audio/Photographic Evidence[3]

OPP Communications Recordings

Elgin County Dispatch Telephone (Starting on November 29, 2023, at 3:02:44 a.m.)

At 00:18 minutes into the recording, the London Police Service (LPS) had tracked a carjacked driver’s laptop and phone to its last location at the intersection of Clarke Road and Wavell Street.

At 01:53 minutes, the Aylmer Police (AP) was provided information about the stolen taxicab and a white male suspect with a large knife. The suspect had initially requested a ride to Aylmer.

At 05:05 minutes, the suspect was identified as the Complainant. The Complainant had stolen a dog in Aylmer.

At 07:10 minutes, the Complainant was located eastbound on Highway 3 travelling towards Aylmer.

At 07:41 minutes, the Complainant was in custody near Rogers Road and Highway 3, west of Aylmer. He potentially had a firearm that had not been not located.

Sergeant’s Telephone (Starting on November 29, 2023, at 4:02:52 a.m.)

At 00:17 minutes into the recording, a stolen taxicab was reportedly travelling eastbound on Highway 3 towards Aylmer.

At 01:59 minutes, the Complainant was in custody.

At 03:41 minutes, it was noted that the armed robbery of a taxicab in London had been tracked to Aylmer. Two OPP vehicles and an AP vehicle had deployed two spike belts, with the second successful. An OPP vehicle was reportedly damaged. The Complainant had fled his vehicle and stated he had a gun. A CEW was deployed with no effect. A single shot was fired by an OPP. No injuries were reported.

Dispatch Telephone (Starting on November 29, 2023, at 4:07:14 a.m.)

At 00:12 minutes into the recording, an additional AP officer was requested to assist OPP officers as the Complainant had fled on foot, possibly in possession of a firearm. A CEW discharge had been unsuccessful.

At 02:01 minutes, the Complainant was taken into custody.

Dispatch Radio (Starting on November 29, 2023, at 2:59:38 a.m.)

The LPS reported a carjacking in the vicinity of Dundas Street and Clarke Road. The vehicle, a Hyundai taxicab, was said to be travelling eastbound on Dundas Street. The suspect was a white male [now known to be the Complainant] with a large knife. The Complainant had requested a ride to Aylmer prior to the taxicab arrival. The AP had been notified. The LPS believed the victim’s iPad they had tracked had been ditched. The Complainant had reportedly stolen a dog in Aylmer. A spike belt was successfully deployed at Rogers Road and Highway 3. The Complainant ditched the disabled vehicle and fled on foot on Rogers Road, south of Highway 3. During the foot pursuit, the Complainant told OPP officers he had a gun. A CEW deployment was not effective. The Complainant was apprehended and searched. WO #1 reported one round was discharged from an OPP officer. No injuries had been inflicted. The Complainant had made a motion to grab a firearm, but none was seen or located. While in custody, the Complainant made several suicidal comments and EMS was requested to assess. He admitted he had taken hallucinogenic drugs.

OPP In-car Camera System (ICCS) Footage

The SIU received footage from multiple OPP vehicles. The following is a summary of the cumulative footage.

Starting at about 3:49 a.m., on November 29, 2023, a police vehicle being operated by the SO travelled along Imperial Road behind a second OPP vehicle. The SO and WO #1 received information that the Complainant had been released on an ‘undertaking’ for ‘assault with a weapon’ and the AP were at South Street, Aylmer.

A police vehicle operated by an undesignated officer was captured travelling on Talbot Line with the taillights of a vehicle (now known to be a taxi) seen in the distance. The undesignated officer drove up to an OPP vehicle pulled over at the side of the road. WO #1 was in the process of pulling a tire deflation device off the roadway, as the SO stood by the driver’s door. Once the roadway was cleared, the undesignated officer activated his emergency lighting. The emergency lights seen in the distance were identified by the undesignated officer as coming from an AP vehicle. A supervisor from the OPP communications centre made a radio transmission that the AP was to take the lead, and OPP officers were free to assist the AP in pursuit of an armed robbery suspect.

Starting at about 4:05 a.m., the SO pulled back onto Talbot Line. WO #1 mentioned this being the SO’s first stop sticks. No vehicles could be seen down Talbot Line. As the taxi approached Rogers Road at low speed, WO #4 passed the vehicle and the undesignated officer closed his distance to the rear of the taxi. The front passenger’s door of the taxicab opened and immediately closed. Another OPP vehicle with its emergency lighting on, operated by WO #2, passed the undesignated officer in the oncoming lane. As WO #2 approached the taxi, the Complainant pulled into the oncoming lane of traffic. WO #2 struck the rear of the taxi, which eventually came to rest in the oncoming lane. The undesignated officer passed the taxicab as the driver’s door opened. The demands were heard: “Show me your hands,” as the undesignated officer ran to the front end of the taxi and out of sight. WO #2 said, “We got a runner,” and WO #1 said he saw the Complainant. The SO turned sharply into the oncoming lane and the Complainant was seen in the ditch running west past the front of the SO’s police vehicle. WO #2 appeared on the roadway as he chased the Complainant with his firearm drawn. WO #1 was heard to exit the police vehicle. The SO turned her police vehicle around and drove towards Rogers Road. The Complainant crossed Talbot Line and ran up the side of the road to Rogers Road. WO #2 was a distance behind, followed by WO #1. The Complainant ran south on Rogers Road. The SO had to wait for traffic and, when she made her left turn, the light from a flashlight illuminated the Complainant lying in the field by an outbuilding. The Complainant was on his back with his shoulders and head raised. The SO, her service gun drawn, walked into the field and positioned herself to the right of WO #2. A brighter light was seen (WO #1) approaching the Complainant that appeared to the left of WO #2 and closer to the Complainant. A bright light (possibly a spotlight) was placed on the Complainant from Rogers Road, and then WO #4 walked into the field and, within seconds, WO #1 walked closer. The Complainant turned towards WO #1 and was now on his right side. A second later, a flash from the SO’s firearm was captured. The Complainant was in the beginning motions of trying to get to his feet.

As WO #1 retreated, the Complainant again went onto his back and, within a second, was in a seated position with his arms behind his back supporting himself. He immediately got to his feet, ran around the outbuilding and south on Rogers Road while being chased by WO #4, WO #2 and the SO. WO #1 remained in the field before running to the SO’s police vehicle. WO #1 searched for approximately three minutes before he pulled up a driveway. The Complainant was on the ground next to a house, with WO #2, the SO and WO #4 around the Complainant and on their knees. The arrest was completed, and a search of the Complainant was being completed by WO #2.

The Complainant was walked to and placed in the rear of the SO’s police vehicle. The Complainant asked aloud why he was lucky and said “I tried to commit suicide by cop.” He spoke of leaving a “suicide note and everything”. The Complainant would speak of police brutality because the police officer smashed his head against the window and later that they broke his arm. WO #2 entered the front seat and was heard to begin giving the Complainant’s right to counsel. The Complainant said he tried to kill himself and that he said he had a gun because he wanted WO #2 to shoot him. He provided information about his mental health diagnosis and symptoms. The Complainant began making noises and appeared to be hearing voices, responding, “I don’t want to do that.” The Complainant told WO #2 he took hallucinogenic drugs. WO #2 exited the police vehicle. The Complainant made noises, shook, or nodded his head, and repeated, “Die, die, die.” He asked someone, “Why didn’t you fucking shoot me?” At times, the Complainant kicked the rear door lightly with his foot.

Materials Obtained from Police Service

The SIU obtained the following records from the OPP, LPS and AP between November 30, 2023, and December 13, 2023:

• Audio from London Yellow Taxi;
• Communications recordings;
• GPS data for three police vehicles;
• ICCS footage;
• General Occurrence Report;
• Use of Force Requalifications – the SO and WO #1;
• General Occurrence;
• General Occurrence and Charge Synopsis;
• Nightshift Log-on Sheet;
• OPP Orders: Suspect Apprehension Pursuit, Use of Force and Arrest;
• Computer-assisted dispatch summary;
• Notes – OPP and AP officers;
• Scenes of Crime Officer photos; and
• Video footage from businesses.

Materials Obtained from Other Sources

The SIU obtained the following records from the following other sources on December 8, 2023:

• Elgin EMS Ambulance Call and Incident Reports.

The evidence collected by the SIU, including interviews with officers present at the time of the events in question, gives rise to the following scenario. As was her legal right, the SO did not agree an interview with the SIU. She did authorize the release of her notes.

In the early morning of November 29, 2023, the SO was operating a marked cruiser with her coach officer – WO #1 – in the vehicle when they received a BOLO. The London Police Service had sent word of a yellow taxi that had just been carjacked by a male – the Complainant – at knifepoint. Reportedly, the Complainant had asked the cab driver to be taken to Aylmer before commandeering the taxi. The SO and WO #1 were on the lookout for the taxi in the Aylmer area when a subsequent radio broadcast by another OPP officer indicated he had located the vehicle travelling west on Talbot Line near Belmont Road. Shortly thereafter, the OPP officer radioed that the same vehicle was now eastbound on Talbot Line.

The SO and WO #1 drove to a parking lot on the south side of Talbot Line a distance west of Rogers Road where WO #1 set up a tire deflation device in anticipation of the taxi. The taxi appeared, travelled over the deflation device and continued eastbound on Talbot Line. WO #1 removed the deflation device, re-entered his cruiser with the SO, and fell in behind the OPP officer, who was directly behind the taxi.

Other police vehicles joined the convoy of cruisers behind the taxi as they passed Rogers Road and continued towards the Aylmer town centre. WO #4 of the AP positioned his cruiser ahead of the taxi and attempted to slow it down. WO #2 approached the taxi attempting to pull along its driver’s side. The taxi maneuvered to block WO #2, and the vehicles came into contact. WO #2 maintained contact with the backend of the taxi until it came to a stop in the westbound lane of Talbot Line upwards of 500 metres east of Rogers Road.

The Complainant quickly exited the driver’s door of the taxi and fled westbound on Talbot Line, yelling he had a gun and would shoot the officers. WO #2 chased after the Complainant on foot, as did WO #1, who had shortly arrived at the scene of the collision with the SO. The officers followed the Complainant as he cut across an open field by the southeast corner of the intersection of Talbot Line and Rogers Road. The Complainant tripped and fell a short distance north of a small building – the first one south of Talbot Line by Rogers Road. Officers confronted him on the ground and ordered him to show his hands and not move. By this time, the SO was also on scene and yelling commands at the Complainant. Within moments, WO #1, standing to WO #2’s left several metres from the Complainant, fired his CEW twice, neither deployment achieving neuromuscular lock-up. At about the same time as the second CEW discharge, the SO, standing to the right of WO #2, fired her gun once at the Complainant. The shot missed. The Complainant rose to his feet and continued his flight southward. The time was about 4:05 a.m.

The officers, now joined by WO #4, chased after the Complainant. They caught him a short distance away north of the residence at Rogers Road. Following a brief struggle, during which he punched WO #4 and was struck twice by WO #2’s baton, the Complainant was taken into custody.

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.

On November 29, 2023, the OPP contacted the SIU to report that one of their officers had earlier that day fired her gun at a male – the Complainant – prior to his arrest in Aylmer. 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 shooting.

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 and the other involved officers were in the execution of their lawful duties throughout the course of events leading to the firearm discharge. The officers had cause to believe that the Complainant had committed a violent crime and they were proceeding lawfully to arrest him on that basis.

The SO’s firearm discharge, I am satisfied, was intended to preserve herself and her fellow officers from a reasonably apprehended assault at the hands of the Complainant. Though the SO did not avail herself of an interview with the SIU, as was her right, the officer’s notes assert that she fired in defence of herself and others. That contention finds support in the evidence of the other officers on scene at the time of the shooting. Specifically, knowing that the Complainant had earlier wielded a knife and was now claiming to have a gun, the SO made mention of movements by the Complainant’s hands leading her to believe he was drawing a firearm. WO #1 also described a movement by the Complainant’s left arm just before the shooting that caused him concern, and WO #2 said that the Complainant had brought his hands to waist level at the time. The SO’s assertion is further corroborated by the evidence of WO #4, who, similar to the SO, described the Complainant making a motion with his hand as if he were drawing or holding a gun. The fact that the Complainant had repeatedly asked the officers to shoot him lends further credence to the SO’s evidence. Presumably, one way to provoke that happening would be to pretend to be brandishing a gun.

Lastly, the SO’s choice of defensive force was, in my view, reasonable. If the SO genuinely and reasonably believed that the Complainant was about to wield a gun, and I believe she did for the aforementioned-reasons, then a resort to a firearm made sense. What would have been needed in the moment was an application of force to immediately incapacitate the Complainant lest he have an opportunity to fire at the officers. Nothing short of gunfire had the potential to do just that, particularly given the fact that two CEW discharges had failed to immobilize the Complainant. In the result, the SO was within her rights when she chose to meet a threat of grievous bodily harm or death with a resort to lethal force of her own.

For the foregoing reasons, I am unable to reasonably conclude that the SO comported herself other than within the confines of the criminal law when she shot at the Complainant.[4] As such, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: March 28, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit