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 the police at a 43-year-old man (the “Complainant”).

Notification of the SIU[1]

On January 12, 2024, at 4:25 a.m., the Brantford Police Service (BPS) contacted the SIU with the following information.

At 3:30 a.m., Witness Official (WO) #1 pulled into the Petro Canada gas station at 450 Fairview Drive and observed a suspicious vehicle. WO #1 called for assistance and placed a spike belt in front of the vehicle. The Subject Official (SO) and WO #2 arrived to assist. The Complainant drove off over the spike belt towards the SO, who discharged his firearm several times. There followed a short pursuit before officers completed a rolling stop. The Complainant was arrested and taken to Brantford General Hospital (BGH) reporting he had swallowed ‘crystal meth’. The Complainant had an outstanding warrant with Peel Regional Police (PRP) for weapons offences.

The Team

Date and time team dispatched: 2024/01/12 at 4:47 a.m.

Date and time SIU arrived on scene: 2024/01/12 at 6:37 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

Affected Person (aka “Complainant”):

43-year-old male; interviewed

The Complainant was interviewed on January 17, 2024.

Subject Official (SO)

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

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

The witness officials were interviewed on January 19, 2024.

The Scene

The events in question transpired on and around the grounds of the Petro Canada gas station at the southeast corner of Fairview Drive and West Street, Brantford.

Scene Diagram

Physical Evidence

On January 12, 2024, at 6:37 a.m., SIU investigators arrived at the scene, which was protected by uniformed BPS officers.

The incident had reportedly occurred directly next to, and on the south side of, the gas station convenience store. To the south of this area was a wooden fence boundary of the gas station. SIU forensic investigators examined the scene. Five spent cartridge cases were located scattered on the grounds of the gas station. Damage was observed to a wooden fence on the south side of the gas station.

Figure 1 – Damage to fence

The Complainant’s van was located in the westbound lane, east of the intersection of Woodyatt Drive and Roy Boulevard, where it had reportedly been intercepted by BPS officers. SIU forensic investigators examined the vehicle and identified the path of four fired rounds, which were determined to have hit the front passenger side door and window. One of those rounds travelled through the vehicle, directly in front of the driver’s seat, and hit the driver’s door. A second round travelled through the vehicle and hit the centre console, next to the gear stick. The third and fourth rounds travelled into the vehicle and hit the dashboard in front of the front passenger seat.

Figure 2 - Front passenger door with trajectory rods

Figure 3 - Trajectory rods

The path of the fifth fired round was not identified.

Three projectiles were located inside the vehicle.

Forensic Evidence

On January 12, 2024, the firearm, bullets and magazines issued to the SO were collected by SIU forensic investigators. The items were submitted to Centre of Forensic Sciences for ballistic examinations. The results of the examinations have not been returned to the SIU as of the completion of this report.

The SO’s service-issued Glock firearm was capable of being loaded with 18 cartridge rounds - one round in the breech and 17 rounds in the magazine. SIU forensic investigators removed 13 live cartridge rounds from the firearm and magazine. Five spent cartridge cases were found in the car park. The officer’s two spare magazines were both loaded to capacity with 17 rounds.

Figure 4 - The SO’s firearm

Video/Audio/Photographic Evidence[2]

Video Footage – Petro Canada

The Complainant’s white van was parked in the car spot on the south side of the gas station store. At 28 seconds into the recording, WO #1 arrived and parked his marked police vehicle near the rear passenger side door of the van. WO #1 entered the store. He returned to his police vehicle and parked it directly behind the van, after which he deployed tire deflation devices under the van.

Seven minutes and 45 seconds into the recording, another marked BPS police vehicle [now known to be driven by WO #2] parked in front of the van and a marked BPS police vehicle [now known to be driven by the SO] parked on the passenger side of the van.

At eight minutes and ten seconds into the recording, WO #2 pointed a flashlight towards the window. WO #1 appeared to be on the driver’s side, but a view of him was obstructed. The van reversed rapidly into the front end of WO #1’s police vehicle and pushed it back a distance. The van then drove forward and struck WO #2’s and the SO’s police vehicles, pushing them out of the way. WO #2 leaped out of the way to avoid being struck by the van and the SO back-pedalled while pointing his firearm at the van. WO #1 ran towards his police vehicle. The van circled around at high speed and mounted a grass median, became airborne, and disappeared out of camera view [where it was known to have struck a wooden boundary fence]. Before the van mounted the median, the SO had holstered his firearm.

The van re-appeared on camera view as it exited the gas station, eastbound on Fairview Drive. WO #1 entered his police vehicle, activated his emergency lights, and followed the van. The SO and WO #2 remained at the scene.

BPS Communications Recordings

At 3:30 a.m., on January 12, 2024, WO #1 was at 450 Fairview Drive [now known to be a Petro Canada gas station] and reported a vehicle stopped, idling in a parking spot. The windows of the vehicle were covered, preventing him from seeing the occupant. He had blocked the vehicle from the rear. WO #1 was advised to deploy a tire deflation device, standby, and wait for other officers to arrive. WO #1 reported that he had deployed the tire deflation device behind the tires of the vehicle.

At 3:35 a.m., WO #1 reported the vehicle had tried to “take off” and struck a police vehicle. An officer shouted, "Shots fired, shots fired."

At 3:38 a.m., a sergeant requested to know if the shots were fired at the officers. A unit [now known to be the SO] responded he fired the shots because the vehicle tried to run over him and the other officers.

WO #1 reported details of the Complainant and the damaged van and its location.

At 3:39 a.m., WO #1 announced that the right tires of the Ford van had blown out and a "rolling block" was to be initiated. Soon afterward, he announced that the Ford van had struck one of the police vehicles.

At 3:41 a.m., an officer announced that the Complainant was in custody, and they were checking the Complainant for any gunshot injury.

At 3:47 a.m., a police officer reported that no one had sustained gunshot wounds, but the Complainant admitted he swallowed crystal meth and requested an ambulance. It was confirmed the Complainant was not injured and he was wanted on a warrant by PRP. He was taken to BGH by ambulance.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the BPS between January 12, 2024, and January 17, 2024:

• Supplementary Occurrence Report;
• Computer-aided Dispatch Report;
• BPS communications recording;
• Notes – WO #1
• Notes – WO #2;
• Subject Profile Report – the Complainant;
• BPS Policy – Use of Force; and
• Training records – the SO.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on January 12, 2024:

• Video footage from the Petro Canada located at 450 Fairview Drive, Brantford

The evidence collected by the SIU, including an interview with the Complainant and police officers who were present at the time of the events in question, as well as video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the early morning of January 12, 2024, WO #1 pulled into a Petro Canada gas station at the southeast corner of Fairview Drive and West Street, Brantford. He noticed a van parked facing east in the parking spot at the south side of the gas station store. The vehicle was idling and its front windows were covered with cardboard. The officer contacted his communications centre and was directed to deploy a spike belt behind the van’s rear tires and wait for other officers to arrive. WO #1 did so, bringing his cruiser to a stop front first behind the van.

WO #2 and the SO arrived in separate cruisers within minutes. The former stopped front-first in front of the van; the latter positioned his vehicle front-first beside the front passenger side of the van. The officers exited their cruisers and approached the front passenger side of the van, the SO shining a flashlight into the vehicle. Moments later, the van reversed and crashed into WO #1’s cruiser. It then accelerated forward, striking and moving WO #2’s and the SO’s cruisers before turning sharply right into a U-turn.

As the van moved forward through their cruisers, WO #2 and the SO retreated towards the passenger side of the latter’s cruiser. The SO, his firearm in his right hand, fired five times in the direction of the Complainant at close range as the van continued to arc around the officers, making good its escape from the gas station. The time was about 3:35 a.m.

WO #1 entered his cruiser and pursued the van. The Complainant’s van was eventually stopped a distance east of the gas station and he was taken into custody. He had not been struck by any bullets, nor had he otherwise sustained a serious injury.

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 January 12, 2024, the BPS contacted the SIU to report that one of their officers had earlier that day discharged his firearm at a male – the Complainant. 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 incident.

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 and WO #2, were lawfully placed and in the execution of their duties throughout the events culminating in the gunfire. Having come across a vehicle parked illegally (in a spot reserved for persons with physical disabilities), its engine idling in the middle of the night and its front windows covered by cardboard, the officers were within their rights in approaching the driver to inquire what was going on.

Though without direct evidence of the officer’s mindset at the time he fired his weapon, the SO having availed himself of his legal right to not interview with the SIU, I am satisfied that he resorted to force to protect himself and his colleagues from a reasonably apprehended assault. That is what he asserted in utterances to WO #2 shortly after the event. And that is what a review of the video footage that captured the event would suggest. In it, one sees the van breaking through the police blockade and turning sharpy right, with WO #2 and the SO in proximity to the moving vehicle as the latter fires. It is very likely, in my view, that both officers feared they were about to be run over at the time the shots were discharged.

I am also satisfied that the SO’s choice of force, namely, gunfire, constituted reasonable force. At the time he fired his weapon, he and WO #2 were within metres of a moving vehicle whose driver had made clear his intentions of accelerating away from the scene. They were clearly in harm’s way. In particular, WO #2 was directly in front of the accelerating vehicle before running towards the passenger side of the SO’s cruiser. On this record, there was some prospect that incapacitating the Complainant would bring the van’s movements, or even just its acceleration, to an end. Either contingency would mitigate the risk of harm coming to the officers. Of course, removing the operating mind of the van was associated with its own risks, such as the van continuing out of control to cause harm to the officers or third-parties. The decision was a difficult one and the officer had only split-seconds in which to make it. In the circumstances of this highly dynamic and dangerous event, with little pedestrian traffic in the area given the time of night, I am unable to reasonably conclude that the SO acted without justification when he decided to meet a threat of grievous bodily harm or death with a resort to lethal force of his own.

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

Date: May 9, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit