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 by police at a 30-year-old man (the “Complainant”).

Notification of the SIU[1]

On December 17, 2023, at 1:00 a.m., the Ottawa Police Service (OPS) contacted the SIU with the following information.

On December 16, 2023, at 11:17 p.m., the Subject Official (SO) and Witness Official (WO) #1 followed a stolen vehicle into a residential complex at 251 Donald Street, Ottawa. The police officers initiated a traffic stop and approached the vehicle. A woman [now known to be the CW] exited the front passenger side and left the door open. The driver [now known to be the Complainant] put the vehicle into reverse and accelerated at a high rate of speed. The open passenger door struck WO #1, knocking him to the ground and dragging him a short distance. Fearing for his partner’s safety, the SO discharged four bullets into the stolen vehicle, three of which struck the windshield. The vehicle collided with another police vehicle before fleeing northbound through the complex. The Complainant abandoned the stolen vehicle and ran away. Police officers searched the area but were unable to locate him. It was not known if he was struck by a bullet, though there was no blood observed within the vehicle.

The Team

Date and time team dispatched: 2023/12/17 at 1:21 a.m.

Date and time SIU arrived on scene: 2023/12/17 at 9:48 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 3

Affected Person (aka “Complainant”):

30-year-old male; not interviewed (declined)

Civilian Witness (CW)

CW Interviewed

The civilian witness was interviewed on December 17, 2023.

Subject Official (SO)

SO Interviewed, but declined to submit notes, as is the subject official’s legal right

The subject official was interviewed on January 11, 2024.

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Interviewed; notes received and reviewed

The witness officials were interviewed on December 18, 2023.

The Scene

The scene was a shared asphalt driveway that accessed two apartment buildings at 251 and 255 Donald Street. The driveway travelled north from Donald Street with a single row of parking along the west side. A chain-link fence bordered each side of the driveway.

Figure 1 – The driveway

The SO and WO #1’s police vehicle (foreground, above and below) was a marked Ford Explorer with an external emergency light package. The emergency lights were illuminated, and the vehicle was about 60 metres north of Donald Street. It was parked facing northwest.

Figure 2 – The rear of SO and WO #1’s vehicle

WO #3’s police vehicle (below) was a marked Ford Explorer stopped about 30 metres north of Donald Street facing north. There was substantial collision damage to the front end and the driver’s airbag had deployed. The vehicle had been pushed backwards approximately one metre at impact.

Figure 3 – WO #3’s vehicle with front end damage

There was a second scene north of the shooting scene where the Hyundai Elantra was abandoned. It had damage to the left rear corner and rear portion. There were apparent bullet defects to the vehicle: one to the driver’s door, a second to the driver’s windshield wiper blade and windshield, and a possible third to the driver’s wiper arm where it attached to the base. One fired bullet was visible on the passenger seat.

Figure 4 – The Hyundai Elantra

Scene Diagram

Physical Evidence

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

• The SO’s Glock 17Gen5 semi-automatic firearm; and

Figure 5 – The SO’s Glock

• Four discharged cartridge cases. Directly south of the SO and WO #1’s police vehicle was a parking stall. Near the right rear wheel of their police vehicle was a silver cartridge case. Three more silver cartridge cases were found on the asphalt behind a vehicle parked in a parking stall south of the police vehicle.

Forensic Evidence

Centre of Forensic Sciences (CFS) Firearms Report

SIU forensic investigators submitted the SO’s pistol to CFS for analysis to determine if it could be identified or eliminated as having fired the four recovered cartridge casings. The CFS report, dated March 5, 2024, confirmed within the limits of practical certainty that the SO’s pistol did fire each of the four cartridge cases.

Expert Evidence

Trajectory Analysis

Figure 6 – Trajectory of the bullets into the Hyundai Elantra

On December 18, 2023, SIU forensic investigators attended the OPS examination garage where the Hyundai Elantra had been secured. The bullet defects were carefully examined with the following findings.

The bullet that caused the defect to the driver’s door appeared to perforate the door skins and travel into the vehicle. It perforated the centre console and penetrated the passenger door, coming to rest within the door skin. The exterior of the passenger door skin had been pushed out from inside and the outward dent had the shape of a fired bullet.

The bullet that caused another defect perforated the rubber blade of the driver’s wiper arm and then perforated the windshield. That defect was probed with an endoscope camera, but the bullet path could not be determined beyond the windshield. A trajectory rod was placed through the wiper blade and windshield to demonstrate the path (see diagram above).

There was a third defect to the base of the driver’s wiper arm, but it did not appear to penetrate.

Video/Audio/Photographic Evidence[2]

Video Footage - Saint Charbel Parish, 245 Donald Street

On December 16, 2023, starting at 11:19:36 p.m., a Hyundai Elantra (driven by the Complainant) was captured travelling westbound on Donald Street with its headlights illuminated. The front right turn signal was activated and the vehicle slowly turned right (northbound) into 251 Donald Street. A police vehicle driven by WO #1 was westbound on Donald Street, directly behind the Complainant’s vehicle, and followed it into the complex.

At around 11:19:55 p.m., the Complainant drove up the driveway, signalled a left turn and turned left (west) into a parking space and stopped. WO #1 passed the Complainant’s parked vehicle, pulled in beside it on the passenger side and stopped.

At around 11:20:03 p.m., WO #1 opened the driver’s door as the emergency roof lights were activated.

At around 11:20:09 p.m., WO #1 stood beside the back passenger door of the Complainant’s vehicle. He had his pistol drawn and pointed at the vehicle while telling the Complainant, and the front passenger, the CW, to show their hands and get out of the car. The SO stood by the front passenger side of the Complainant’s vehicle with his pistol drawn and pointed at an angle towards the ground.

At around 11:20:16 p.m., the CW opened the passenger door. The police officers repeatedly told the Complainant to turn the ignition off.

At around 11:20:20 p.m., the Complainant’s vehicle reversed, stopped momentarily and then continued reversing. The front passenger door was partially open.

At around 11:20:22 p.m., as the vehicle reversed, it began to turn in a southerly direction. The open passenger door struck WO #1 and pushed him into the side of the police vehicle. WO #1 bounced off the police vehicle and back into the side of the Complainant’s vehicle. WO #1 was wedged between the police vehicle and the Complainant’s vehicle as the front end turned into him.

At around 11:20:24 p.m., the SO stood in front of the Complainant’s vehicle and discharged a single round at the Complainant.

At around 11:20:25 p.m., WO #1 fell to the pavement behind the police vehicle. The Complainant’s vehicle reversed into a cement curb, stopped, drove forward, and stopped again.

At around 11:20:28 p.m., the CW got out of the vehicle. The SO walked to the front and faced the Complainant with his pistol pointed at the front windshield and told him repeatedly to stop the car or he would shoot him. The Complainant reversed the vehicle southbound towards Donald Street. WO #3 entered the driveway of 251 Donald Street with the police vehicle’s emergency lighting illuminated.

At around 11:20:36 p.m., the Complainant’s vehicle collided with the front of WO #3’s police vehicle pushing it back slightly. The Complainant’s vehicle stopped for several seconds before driving forward in a northerly direction back towards where the SO and WO #1 were. The SO continued to tell the Complainant to stop the vehicle, or he would shoot him.

At around 11:20:43 p.m., the Complainant’s vehicle accelerated forward as the SO stood on the west side of the driveway by a parked vehicle. The SO discharged his pistol three times at the driver’s side of the Complainant’s vehicle as it travelled past him. WO #1 was still on the ground behind the police vehicle as the Complainant approached.

At around 11:20:46 p.m., as the Complainant’s vehicle passed, WO #1 crawled from the back of the police vehicle.

Police Communications Recordings

At around 11:17 p.m., December 17, 2023, the SO and WO #1 were following a stolen white Hyundai that had two occupants.

At around 11:19 p.m., the Hyundai pulled into 251 Donald Street.

At around 11:20 p.m., WO #3 advised the Hyundai had attempted to flee and smashed into his vehicle. Shots were fired.

At around 11:21 p.m., the SO advised WO #1 was rammed by the vehicle and had sustained a leg injury.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the OPS on December 21, 2023:

• Video footage - 245 Donald Street;
• Names and roles of involved police officers;
• Crown Brief Summary;
• Computer-assisted dispatch report;
• Duty Roster;
• Communications recordings;
• Civilian Witness List;
• Event Data Recorder (EDR) data - OPS vehicle;
• EDR data - Hyundai Elantra;
• Scene photographs;
• In-service training qualification records - the SO;
• Duty Book Notes - WO #1;
• Duty Book Notes - WO #3;
• Duty Book Notes - WO #2;
• Policy - Use of Force; and
• Policy - Suspect Apprehension Pursuit.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between December 17, 2023, and March 5, 2024:

• Video footage - 273 Donald Street; and
• Firearms Report - CFS.

The evidence collected by the SIU, including interviews with the SO and a police and non-police eyewitness, as well as video footage that captured the incident, gives rise to the following scenario.

In the evening of December 17, 2023, the SO was on patrol with his partner, WO #1, in their marked cruiser when they came across a Hyundai Elantra without its lights on. The SO ran a check on the licence plate and learned that it had been reported stolen. WO #1, driving, followed the Hyundai as it travelled west on Donald Street.

The Complainant was operating the Hyundai. With him in the front passenger seat was an acquaintance, the CW. The Complainant turned right into a driveway at 251 Donald Street and pulled into a parking space about 60 metres north of the roadway. The Hyundai was oriented west and facing a chain-link fence.

WO #1 followed the Hyundai into the driveway and pulled into the parking spot just north of the Hyundai, front first. Their cruiser stopped, the SO activated the emergency roof lights and both officers exited the vehicle. Each had their firearm drawn. WO #1 approached the passenger door and ordered the Hyundai’s occupants to get out of their vehicle. The CW opened the front passenger door and was about to exit the Hyundai when the Complainant started the vehicle’s engine. The officers repeatedly directed the Complainant to ‘turn the car off”. The Complainant placed the vehicle in gear and started to reverse out of the parking spot. The open car door struck WO #1 who was wedged between the driver’s side of the cruiser and the passenger side of the Hyundai. The contact spun the officer. As the Hyundai continued to reverse in a southeast direction, its front passenger side corner struck WO #1 in the right hip. At about the same time, the SO, from a position in front of the Hyundai, fired his gun once in the direction of the Complainant. WO #1 fell behind the rear of the cruiser and cried out in pain. The time was 11:20 p.m.

The Complainant continued to reverse and struck a curb that lined the east side of the driveway. He drove forward a short distance to straighten out and then continued in reverse, accelerating southward. The SO, his gun still pointed at the Complainant, tracked the vehicle on foot and continued to direct that he stop the car. The Hyundai reversed approximately 20 metres when its rear crashed into the front end of a police cruiser. WO #3, the driver of that cruiser, was responding to the scene to assist the SO and WO #1. By this time, standing by the rear of another parked vehicle, the SO was about 10 to 15 metres northwest of the Hyundai on the driveway.

His rearward progress thwarted, the Complainant placed the gear in drive and accelerated forward up the driveway. The SO fired at him three times as the Hyundai approached and then passed his location. None of the shots struck the Complainant. He continued forward, past WO #1 on the ground, travelled a further distance north and then abandoned the Hyundai. He would later be located and arrested by police.

Section 34, Criminal Code - Defence of Person – Use or Threat of Force

34 (1) A person is not guilty of an offence if

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) The act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

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

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

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

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

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

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

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

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

On December 17, 2023, the OPS contacted the SIU to report that one of their officers had discharged his firearm the day before at a vehicle. 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 WO #1 were lawfully placed and in the execution of their duties throughout the series of events leading to the shooting. Having checked the licence plate of a vehicle that had come to their attention on patrol and learning that it had been reported stolen, they were within their rights in stopping the vehicle to investigate the theft.

The shots discharged by the SO, I am satisfied, were defensive in nature. The first was primarily intended to protect WO #1 from death or grievous bodily harm. The officer was being pinned by a moving vehicle at the time – his life was clearly in danger. The second volley of shots – three in succession – were aimed as much at the SO’s self- preservation as WO #1’s. By this time, it was apparent that the Complainant had no qualms about operating his vehicle recklessly to evade police apprehension, even if that meant striking or running over third-parties. He had just crashed into WO #1 and the front end of a police cruiser, and was now accelerating forward in the direction of the SO – mere metres away – and WO #1 – injured and still on the ground. The lives of both officers were in imminent peril by the purposeful driving of the Complainant at the time shots number two through four were fired.

I am also satisfied that the SO’s resort to gunfire was reasonable. Doing something to incapacitate the Complainant made sense in the circumstances, even if it meant that might result in an out-of-control moving vehicle. That contingency was a real one, but no less real than that the officers were moments way from being struck and possibly killed by the vehicle, and mitigated to an extent by the fact that the Hyundai was being operated in the confined space of a driveway with chain-link fences on either side and no pedestrian traffic in the area, with the exception of the CW. Only gunfire had the potential to immediately incapacitate the Complainant.

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

Date: April 15, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit