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 serious injuries sustained by a 48-year-old man (the “Complainant”).

Notification of the SIU[1]

On December 15, 2023, at 12:31 a.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

According to the OPP, on December 14, 2023, at approximately 2:30 p.m., police officers responded to an address on Twin Sister Lakes Road, Marmora, for an ‘unwanted person’ call. Reportedly, the property owner wanted the Complainant removed as he had threatened to harm him and burn down the camp. Upon police arrival, the Complainant had barricaded himself in the cabin, which was known to have firearms inside. The Complainant made threats to engage police in a shootout, resulting in the deployment of the OPP Emergency Response Team (ERT) and negotiators. As negotiations continued, the Complainant discharged a firearm out the window of the cabin. As a result, the OPP Tactics and Rescue Unit (TRU) were dispatched to the scene. On December 15, 2023, at 12:08 a.m., the Complainant discharged three more rounds from his firearm at police, resulting in one tactical member discharging his C8 carbine and striking the Complainant in the shoulder. The Complainant was taken into custody and transported by Emergency Medical Services (EMS) to Campbellford Memorial Hospital (CMH) where he remained in stable condition.

The Team

Date and time team dispatched: 2023/12/15 at 1:25 a.m.

Date and time SIU arrived on scene: 2023/12/15 at 7:00 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 3

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on December 15, 2023.

Civilian Witness

CW Interviewed

The civilian witness was interviewed on December 15, 2023.

Subject Official

SO #1 Declined interview and to provide notes, as is the subject official’s legal right

SO #2 Declined interview and to provide notes, as is the subject official’s legal right

Witness Official

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

WO #8 Interviewed

WO #9 Interviewed

The witness officials were interviewed between December 21, 2023, and January 11, 2024.

The Scene

The events in question happened in and around a cabin located at Twin Sister Lakes Road, Marmora.

The scene at Twin Sister Lakes Road was a large, forested lot of land with a cabin. The laneway leading from the main road to the cabin was difficult to traverse by vehicle. There were felled trees along the laneway that had reportedly been dropped by the Complainant to slow or prevent the movement of vehicles.

On December 15, 2023, at 7:00 a.m., three SIU forensic investigators arrived. They mapped the scene and completed an examination.

Scene Diagram

The green line, in the diagram above, suggests SO #1’s sightline between his approximate position when he shot the Complainant, and the Complainant’s location by the south-side cabin window.

Physical Evidence

The following items were collected by the SIU in the course of the investigation:

1. SO #1’s Colt Model C8CQB .223 semi-automatic rifle

 

Figure 1 - SO #1’s Colt C8 rifle

2. SO #2’s 37 mm ARWEN

Figure 2 - SO #2’s ARWEN

3. The Complainant’s firearm on the floor of the south-side bedroom

Figure 3 - The Complainant’s firearm

Forensic Evidence

The Complainant’s shotgun was left at the scene for OPP investigators to process as part of their criminal investigation.

SO #1’s C8 rifle was collected by the SIU. Its submission to the Centre of Forensic Sciences was deemed unnecessary.

SIU forensic investigators photographed shot shell pellet defects on the side of a set of exterior lockers on the east side of the woodshed and in a truck topper on the southeast side of the woodshed.

Video/Audio/Photographic Evidence[2]

Communications Recordings

Radio

At around 10:25 a.m., December 14, 2023, a police officer was dispatched to the Central Hastings Detachment on information the CW wanted the Complainant removed from his hunting camp.

At an unknown time, WO #3 and other police officers were en route to an address at Twin Sister Lakes Road, Marmora.

At an unknown time, the Complainant was unwilling to come out and speak with police officers. He indicated he would fight the police and government.

Telephone

At around 10:13 a.m., December 14, 2023, the CW called the OPP Communications Centre from outside the Central Hastings Detachment and reported the Complainant was threatening to burn everything down at the hunting camp. There were guns available although he did not know if the Complainant would use them. The Complainant was said to possibly have mental health issues or feeling the effects of some kind of substance.

At around 2:52 p.m., WO #3 requested a return phone call from the Critical Incident Commander. WO #3 provided a sergeant of the Communications Centre an overview of the incident and there were discussions regarding obtaining a warrant for an address on Twin Sister Lakes Road. WO #3 was told that TRU and ERT were notified.

At an unknown time, the Complainant indicated he had nothing against the police and that if he had wanted to do something they would be gone because they were sitting ducks. He said the situation was escalating for no reason, and it was WO #3 that escalated it through demeanour and tone. WO #3 got his back up because he thought they had an agreement for him to leave in a week, but WO #3 wanted to come in and check things out.

At an unknown time, the Complainant was urged to walk out of the cabin with his hands up. It was said that the TRU members present were there to help him. The Complainant asked if the police wanted him to come out, at which point he became agitated and threatened war.

At an unknown time, the Complainant indicated there were guns in a cabinet, but he did not have keys for it.

At an unknown time, the Complainant cautioned the police to be careful what they were walking into. They had no idea what he was capable of, and it was all pretty silly and based on hearsay that he was going to burn something down. It was really out of proportion, and he felt like he wanted to do something.

At an unknown time, the Complainant was getting his machete out and yelled out the cabin for the police officers to come on in.

At an unknown time, the Complainant yelled to break the windows and just shoot him. He asked if they wanted him to die and if they were playing games.

At an unknown time, the Complainant did not want to come out. He was tired and needed a five-minute break.

At an unknown time, a police officer continued to encourage the Complainant to come out. He declined and said he was tired and not going anywhere.

At an unknown time, the Complainant said he was in the trees, was watching the members of TRU approaching the hunting camp from the laneway, and had a bead at their heads.

Body-worn Camera (BWC) Footage

At around 7:13 p.m., December 14, 2023, police officers were telling the Complainant to come out with nothing in his hands. He responded with obscenities and told them to get off his property. He was holding an illuminated flashlight. The police officers inquired of the Complainant if he possessed guns. He replied with obscenities.

At 7:50:21 p.m., the Complainant discharged one gunshot from the south side window.

Materials Obtained from Police Service

The SIU obtained the following records from the OPP between December 15, 2023, and January 3, 2024:

• Names and roles of involved police officers;
• Arrest Report;
• Crown Brief Synopsis;
• Computer-assisted dispatch report;
• Telephone and radio communications recordings;
• In-service training records - SO #1 and SO #2;
• Remotely piloted aircraft video footage;
• BWC video footage:
• Scene photographs;
• Critical Incident Information Report;
• Policy - Use of Force;
• Policy - Armed and Barricaded Persons; and
• Duty Book Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7 and WO #8.

Materials Obtained from Other Sources

The SIU obtained the following records from the following other sources between January 8, 2024, to February 20, 2024:

• The Complainant’s medical records from CMH; and
• The Complainant’s medical records from Kingston General Hospital.

The evidence collected by the SIU, including interviews with the Complainant and police officers present at the time of the events in question, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU or the release of their notes.

In the early afternoon of December 14, 2023, OPP officers with the Central Hastings Detachment arrived at the front gate of the camping grounds situated at Twin Sister Lakes Road, Marmora. The owner of the grounds, the CW, had that morning attended at the detachment to file a report against the Complainant. The two had quarreled and the Complainant had threatened to burn the camp. The CW wanted the Complainant removed. The officers at the gate phoned the Complainant and asked him to come and speak with them. He refused and warned that there would be trouble if they came onto the property to get him.

As the police had information that the Complainant had access to a shotgun and a rifle kept in a cabin set back from the main road, a team of TRU officers was deployed to the scene. They arrived and began to make their way towards the cabin at about 5:30 p.m. A critical incident commander took charge of police operations and negotiators were assigned. The Complainant was contacted by phone and encouraged to exit the cabin and surrender peacefully into police custody. He was not receptive. At one point, as the standoff entered the evening hours, the Complainant told negotiators that he wanted the police to shoot him. At about 8:00 p.m., the Complainant discharged a shotgun out the open window on the south side of the cabin. Though none of the TRU officers were hit, WO #7 was narrowly missed.

Negotiations continued for several more hours in vain. When the Complainant stopped responding to negotiators altogether, distraction devices were deployed with the hope of prompting a response. Shortly after 11:00 p.m., SO #2 fired his ARWEN twice at one of the cabin’s windows breaking it. In response, the Complainant positioned himself at the window and fired his shotgun again – three times – in a southwest direction. From about 30 – 40 metres southwest of the cabin, SO #1 returned fire. He discharged a single round from his C8 rifle, striking the Complainant in the left shoulder.

A wounded Complainant exited the cabin and was taken into custody. He had sustained a gunshot wound to the lateral left shoulder, a shattered left humerus, left rib fractures and a partial collapse of the left lung.

Section 25(1), Criminal Code - Protection of Persons Acting under Authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

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.

The Complainant was shot and wounded by OPP police gunfire in Marmora on December 14, 2023. The SIU was notified of the incident and initiated an investigation naming SO #1 and SO #2 subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the investigation.

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, including SO #1 and SO #2, were lawfully placed and in the execution of their duties throughout the series of events culminating in the discharge of their weapons. They had been let onto the grounds of the camp by the property owner – the CW – who had led police to believe that the Complainant had access to firearms, had threatened to burn down the camp, and was of unsound mind at the time. On this record, and knowing that he was subject to a court order prohibiting the possession of firearms, the police had a duty to do what they reasonably could to take the Complainant into custody and prevent him hurting himself or others.

I am satisfied that SO #1 fired his weapon – a C8 rifle – in defence of his person and that of other officers. Though the officer did not avail himself of an opportunity to provide direct evidence to this effect via an interview with the SIU, as was his legal right, the circumstances compel the conclusion. The Complainant had just fired his shotgun three times in the direction of SO #1. SO #1’s life and the life of other officers in the vicinity, most emphatically, WO #9, located immediately to his right, were at imminent risk of grievous bodily harm or death, and there was a need in the moment for defensive measures.

I am also satisfied that the force used by SO #1 was reasonable in the circumstances. To reiterate, he and others were being fired at by the Complainant. Their lives were in peril. Withdrawal or retreat were not viable options given the exigencies of the situation, namely, continuous live fire. In the circumstances, nothing less than return gunfire had the prospect of bringing that threat to an end. Indeed, WO #9, who was similarly situated to SO #1 when the Complainant fired his weapon three times, says that he believed his life was in danger and was about to pull the trigger on his C8 when SO #1 acted. On this record, I am unable to reasonably conclude that SO #1 acted with excess when he chose to meet a threat of lethal force with a resort to lethal force of his own.

With respect to the ARWEN discharges by SO #2, the relevant legal framework is set out in section 25(1) of the Criminal Code. Pursuant to the provision, 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.

The ARWEN rounds fired into the cabin, meant to break a window and rouse the Complainant after an extended period of non-communication, constituted justifiable force. The Complainant had effectively brought negotiations to an end and, with that, diminished the possibility of a peaceful resolution to the standoff. Doing something to get him talking again – either because of the distraction caused by a shattered window or now being able to communicate through an open window – seems a legitimate tactic despite the risk that one or both of the ARWEN rounds might have struck the Complainant.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: April 12, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit