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 serious injury of a 28-year-old man (the “Complainant”).

Notification of the SIU[1]

On February 10, 2024, at 2:28 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.

On February 10, 2024, at 1:06 a.m., OPP received a 911 call from a Civilian Witness (CW), reporting a domestic violence incident involving her husband, the Complainant. The CW reported that the Complainant, in the basement of their home in Northumberland County, was intoxicated and in possession of a shotgun. The line disconnected, and attempts were made to re-establish contact with the CW. In the meantime, OPP officers began travelling to the scene and, arriving, formed a perimeter around the home. A short time later, the Complainant exited with a rifle and discharged one round at officers. One OPP officer discharged their firearm, striking the Complainant in the lower right abdomen. Emergency Medical Services (EMS) attended, and the Complainant was transported to the Northumberland Hills Hospital (NHH) in Cobourg. The Complainant was conscious and expected to survive.

The Team

Date and time team dispatched: 2024/02/10 at 2:55 a.m.

Date and time SIU arrived on scene: 2024/02/10 at 6:30 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

Affected Person (aka “Complainant”):

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

Civilian Witness

CW Interviewed

The civilian witness was interviewed on February 10, 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 February 13, 2024.

The Scene

The events in question transpired on the grounds of a residence in Northumberland County.

On the lawn outside the front entrance of the house was a rifle with its muzzle directed towards the home. The bolt action was closed.

Physical Evidence

Firearm Examination

SIU forensic investigators collected and examined one Glock Model 17M 9mm semi-automatic pistol. The firearm was assigned to the SO at the time of the incident. The SO’s firearm had a magazine capacity of 17 rounds, with the option of an additional round being loaded into the breech,[2] for a maximum carrying capacity of 18 rounds. A count of the rounds from the SO’s firearm revealed 17 rounds, suggesting the officer discharged a maximum of one round.

Figure 1 – The SO’s firearm and magazine

Video/Audio/Photographic Evidence[3]

Police Radio Communications

On February 10, 2024, at 1:06 a.m., OPP communications received a 911 call from a woman requesting police, after which the line disconnected.

At 1:08 a.m., the communications operator noted that the call was from the CW with an address in Northumberland County. Several calls were made to the CW with no success. Text messages were sent to the telephone number.

At 1:15 a.m., a further attempt was made by the communications operator and the CW answered. She indicated that her husband was drunk, and that he had a gun and had destroyed the house. She stated that the shotgun was in the basement and her husband did not have it with him, and that he was leaving. As the operator attempted to confirm the name of her husband, the line disconnected.

Around 1:33 a.m., the SO broadcast, “He’s got a firearm,” over the police radio. She further stated that units had retreated and were keeping an eye on a male [the Complainant]. The SO directed officers [WO 1 and WO #2] to stay behind a tree and requested that the communications operator make another attempt to contact the CW. The operator reported negative results for the contact attempt.

Around 1:35 a.m., the SO advised over the police radio that she was near the back of the house and the other officers were behind the tree. She indicated that the Complainant had a firearm in his hand and had been drinking. She advised WO #1 and WO #2 to keep an eye on him and instructed them not to approach. The SO also requested an Emergency Response Team and a Tactical Response Unit.

A male voice confirmed that he could see the Complainant from behind the tree. The SO requested that communications again attempt to contact the CW and tell her to come to the back of the house. A male voice advised that he could see the CW on the main floor near the back of the house.

At around 1:41 a.m., a male voice stated that the Complainant had gotten up and entered the house. The SO asked one of the officers to go to the side of the house and the other to remain behind the tree to set up containment. The Complainant had returned to the front of the house and was sitting on a step.

At 1:44 a.m., a male voice stated, “Shots fired,” by the Complainant. He indicated that the Complainant had shot straight ahead and not at anything.

At 1:45 a.m., the SO requested EMS and stated that they had, “One male in custody.”

At 1:47 a.m., a male voice confirmed that the Complainant was shot by police and had a wound to his lower belly. He stated that the Complainant was conscious and breathing.

At 1:56 a.m., the Event Chronology entry indicated EMS had arrived on scene.

At 2:17 a.m., the Event Chronology indicated the Complainant was being transported to NHH. Starting at 3:20 a.m., the Event Chronology indicated the Complainant would be transported to Sunnybrook Health Sciences Centre via air and officers would fly with him.

At 6:18 a.m., the Event Chronology indicated that the Complainant had life-threatening injuries and was being prepped for surgery.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the OPP between February 12 and 15, 2024:

• Arrest Report;
• Notes – WO #1;
• Notes – WO #2;
• Event Chronology;
• In-car camera footage;[4] and
• Communications recordings.

The evidence collected by the SIU, including interviews with police and non-police witnesses, gives rise to the following scenario. As was her legal right, the SO chose not to interview with the SIU or authorize the release of her notes.

In the early morning of February 10, 2024, the SO, travelling in her cruiser, and two constables (WO #1 and WO #2), in another cruiser, made their way to a residence in Northumberland County. A 911 call had been received from the CW, a resident of the address with her spouse – the Complainant. Though the call was disconnected, a police operator was eventually able to re-connect with the CW. She reported that the Complainant was in possession of a firearm.

The Complainant, inebriated and belligerent, had returned to the residence from an evening out. He had assaulted the CW and accessed a long gun, which he proceeded to fire in the basement. By the time of the officers’ arrival at his house at about 1:30 a.m., the Complainant was seated on the steps of his front porch, a rifle and ammunition by his side.

The officers parked their vehicles and exited to approach the Complainant. From a position of cover behind a parked pickup truck a short distance from the front porch, the SO attempted to speak with the Complainant. The Complainant indicated he was not interested in talking and made references to killing himself or having the police kill him. Asked to put his gun away, the Complainant refused and warned the officers not to come any closer. Several minutes elapsed and the officers changed locations. The SO, aware that the CW was still inside the house, made her way to the rear of the residence where she hoped to be able to evacuate her safely. The constables took positions a distance from the home to keep a lookout and maintain a perimeter.

At about 1:45 a.m., the Complainant, having re-entered and then emerged from the house onto the front porch, raised his rifle and fired a single shot. It is not clear whether he fired at any officer in particular. Within 30 to 60 seconds of that shot, and possibly as little as ten seconds on the evidence, a further shot was discharged. This time, the SO had fired her sidearm at the Complainant. The Complainant, struck in the lower torso, keeled over. Officers approached the Complainant and took him into custody. He complained that he had not been shot higher and explained that he had hoped for ‘suicide by police’.

The Complainant was taken from the scene to hospital where he was treated for gunshot injuries.

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.

The Complainant was shot and wounded by an OPP officer on February 10, 2024. The SIU was notified of the incident and 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 and WO #2, were lawfully placed and engaged in the execution of their duties throughout the series of events culminating in the police shooting. Having received a call about a domestic disturbance involving a firearm, the officers were within their rights in attending at the scene to do what they reasonably could to prevent harm coming to any of the residents and ensure public safety.

I am unable to reasonably conclude that the SO discharged her weapon without the requisite mindset required by section 34, namely, an intention to thwart a reasonably apprehended assault. Though the investigation is without first-hand evidence to that effect, the officer having availed herself of her right to silence, the circumstances strongly suggest the SO acted to defend herself and her colleagues from harm. The Complainant, who had been threatening to use his firearm, had just seconds before fired his rifle in the vicinity of the officers, not to mention his spouse and other family members inside the home.

Nor am I able to reasonably conclude that the SO acted other than reasonably when she fired her weapon at the Complainant. The shooting, in my view, was the final act in a course of conduct that was commensurate with the exigencies of the moment. The officer had attempted to de-escalate the situation through dialogue, ensured the safety of the constables by directing them to positions of cover, and arranged to have specialized OPP units attend the scene. Deciding that the risk to public safety was too great to wait any longer, the SO decided, at great risk to her personal safety, to venture to the rear of the house to attempt a rescue of the CW. That decision was a reasonable one as it was clear that the Complainant’s behaviour was deteriorating quickly, as would soon be evidenced by the discharge of his rifle. As for the shooting itself, there is nothing in the evidence to reasonably suggest it was something other than a discriminant and proportionate response to a risk of grievous bodily harm or death from the Complainant. Though the SO did not immediately counter the Complainant’s rifle discharge by firing back, I am unable to dismiss the possibility that the officer fired her weapon believing it was reasonably necessary to prevent additional and imminent gunfire from the Complainant – he had seconds ago fired his rifle; she, her colleagues, and the CW were still in positions of danger; and, the Complainant was seemingly intent on ‘suicide by police’ and had an interest in wanting to appear as if he was firing on police.

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

Date: June 7, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit