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 death of a 31-year-old man (the “Complainant”).

Notification of the SIU[1]

On February 19, 2024, at 9:42 p.m., the Waterloo Regional Police Service (WRPS) notified the SIU of a fatal police-involved shooting.

The WRPS reported that at approximately 8:55 p.m. WRPS officers responded to a disturbance call near Brybeck Crescent and Karn Street in Kitchener. When police officers arrived on scene, they were confronted on the street by a man armed with a machete. During the interaction, a police officer discharged a firearm at the man, hitting him in the chest. The man was rushed to Grand River Hospital, where he succumbed to his injuries.

The deceased was identified as the 31-year-old Complainant.

The Team

Date and time team dispatched: 2024/02/19 at 9:55 p.m.

Date and time SIU arrived on scene: 2024/02/19 at 11:36 p.m.

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 3

Affected Person (aka “Complainant”):

31-year-old male; deceased

Civilian Witness

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

The civilian witnesses were interviewed between February 20, 2024, and March 20, 2024.

Subject Official

SO Declined interview, as is the subject official’s legal right; notes received and reviewed

Witness Official

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

The witness officials were interviewed on February 29, 2024.

The Scene

The scene was at an apartment building near Brybeck Crescent and Karn Street in Kitchener. There was a grass lawn and sidewalk between the building and Brybeck Crescent. At the time of the incident the lawn was covered in snow, but the sidewalk had been cleared of snow. Snow had been transferred onto the sidewalk from an object that slid on the lawn.

A police vehicle, the vehicle operated by the SO and WO #2, was parked in front of the building. A second police vehicle, operated by WO #1, was also parked in front of the building. Both vehicles were equipped with an in-car camera system (ICCS).[2]

On the roadway and boulevard between the two vehicles the SIU recovered two pistol cartridge cases, the Complainant’s shoes, conducted energy weapon (CEW) debris and some coins. A machete was found lodged in the front push bar of the SO and WO #2’s police vehicle. A small blood stain was found on the roadway under the front bumper of the SO and WO #2’s police vehicle.

Figure 1 - The front of the SO and WO #2’s police vehicle with a machete, indicated by a red circle, lodged in the push bar

Figure 2 - Machete recovered from the push bar

A sheath for the machete was found in WO #1’s police vehicle. With the aid of a forensic light source a number of CEW anti-felon identification tags were located in the snow in the space between the two police vehicles.

The SO’s pistol and magazine were turned over to the SIU. The Glock Model 45 pistol, in 9 mm chambering, was found to have one cartridge in the chamber, and 15 cartridges in the magazine. The magazine capacity for the SO’s firearm was 17 cartridges.

Figure 3 – The SO’s Glock Model 45 pistol

An inventory of the SO’s duty belt revealed he was equipped with all of the usual use of force options, including oleoresin capsicum spray, an expandable baton, handcuffs, two pistol magazines, his pistol, a CEW, and two CEW cartridges.

The SIU was provided the CEWs carried by the SO, WO #1 and WO #2 for downloading.

The SIU also collected a CEW cartridge from WO #2’s CEW.

From the hospital, the SIU collected the Complainant’s grey winter jacket, a CEW dart that was lodged in his jacket, a sweater, a shirt, two pairs of pants, one with a CEW dart in the right leg, and other clothing worn by the Complainant.

The apartment building had a security camera mounted on the front of the building and there was a security camera in the front lobby of the building. On Saturday, February 24, 2024, a SIU forensic investigator was provided access to the building security camera system and the SIU copied video files from three cameras showing the lobby, door and roadway in front of the building, and a distant view of the shooting scene.

Scene Diagram

Forensic Evidence

CEW Deployment Data

The data downloaded from the CEWs carried by the SO and WO #1 confirmed those CEWs were not deployed during this incident.

On February 19, 2024, at 8:38:47 p.m., WO #2’s CEW was armed.

At 8:38:48 p.m., Cartridge 1 of the CEW was deployed, for one second.

At 8:38:52 p.m., the CEW was activated a second time, for five seconds.

Video/Audio/Photographic Evidence[3]

Body-worn Camera (BWC) and ICCS Recordings

At the time of the incident, only the SO and WO #2 were out of their vehicle on Brybeck Crescent in front of the apartment building. WO #1 was just arriving in front of the building and his ICCS recorded the incident. WO #2 had not been issued a BWC. The SO’s BWC recorded the following information.

At 8:36:54 p.m., the recording started as the SO and WO #2 travelled on Brybeck Crescent. The SO pointed towards the apartment building.

At 8:37:09 p.m., the SO exited the police vehicle. The Complainant was at the front of the apartment building and, at 8:37:17 p.m., he entered the building.

At 8:37:23 p.m., the Complainant exited the building, and the SO activated his BWC.[4]

Figure 4 – Screenshot from the BWC, depicting Complainant outside the apartment building with a machete in his hands

At 8:37:26 p.m., the Complainant started to run towards WO #2 and the SO, and the SO raised his pistol.

Figure 5 - Screenshot from the BWC footage, depicting the Complainant running toward the SO with a machete in his hand

Aiming lasers from WO #2’s CEW appeared on the Complainant’s jacket and WO #2 deployed his CEW. The Complainant fell onto the snow-covered lawn, and slid and rolled onto the sidewalk. The aiming lasers of the CEW were still visible on his body.

At 8:37:29 p.m., the Complainant was on his stomach on the sidewalk and was motionless for a very brief time. The SO reported on the radio, “Taser deployed.”

At 8:37:30 p.m., the Complainant started to rise onto his feet.

Figure 6 - Screenshot from BWC footage, depicting the Complainant starting to get up from the ground with a machete in his hand

WO #2 called out that he was “re-deploying” and the sound of his CEW cycling again could then be heard. The Complainant was moving towards WO #2 while either crouching or falling towards the officer, the machete raised in his right hand. The Complainant stumbled somewhat, and his left hand contacted the boulevard.

Figure 7 - Screenshot from BWC footage, depicting the Complainant crouching or falling forward, and stumbling, towards WO #2 with the machete raised in his right hand. This still captures the approximate moment a gunshot was heard.

At 8:37:31 p.m., the SO’s first gunshot was fired as the Complainant was stumbling towards WO #2. The SO fired his second gunshot as the Complainant was falling to the roadway. WO #2’s CEW could still be heard cycling at the time.

Figure 8 - Screenshot from the BWC, depicting the Complainant falling towards the ground in proximity to WO #2. The second gunshot was heard at this approximate moment.

At 8:37:36 p.m., WO #2’s CEW stopped cycling and the SO reported, “Shots fired.”

The Complainant’s right arm was moving, he was moaning, and he was on the roadway under the front bumper of the SO and WO #2’s police vehicle. Police officers yelled at him to stay down and the SO yelled, “Let go of the machete or you’re going to get it again.” The SO was breathing very heavily. The Complainant’s legs were observed to be moving. He was then convulsing, and he rolled onto his side.

At 8:38:26 p.m., WO #1 asked the SO how many shots were fired and how many hits. The SO responded, “Two, I think.”

At 8:39:41 p.m., the Complainant’s brothers exited the building and they called out, questioning why the police shot their brother. WO #2 yelled at them to stay back.

At 8:40:38 p.m., the SO holstered his pistol and walked over to Karn Street, away from the immediate scene.

At 8:42:44 p.m., the SO gestured back towards the scene and said, “He just kept coming.”

At 8:43:28 p.m., the police officer comforting the SO asked him, “He didn’t actually hit you? He didn’t get close enough?” The SO responded, “No, no, he had it in his hand and he kept coming.”

WO #5 arrived following the incident. His BWC recording was also reviewed.

At 8:43:35 p.m., WO #5 approached the SO and asked him if he was okay. The officer comforting the SO responded that the SO was fine. That officer then asked the SO, “You sure he didn’t touch you or anything?” The SO responded, “No, he was going towards WO #2.” The SO further stated, “No, he wasn’t close to me, he was going towards WO #2, so if anything…But it was [sounded like he said, “In the sheath”] and he kept coming after the taser.”

WO #1’s vehicle was coming to a stop on Brybeck Crescent as the Complainant ran towards WO #2 and the SO. His ICCS recording was consistent with the events captured on the SO’s BWC. The ICCS recording showed the Complainant stumbling towards WO #2, with the sheath in his left hand and the machete raised in his right hand, as the SO fired his first gunshot. The Complainant’s back was towards the SO when both gunshots were fired.

Apartment Building Footage

Three apartment buildings along Brybeck Crescent contained camera systems. At the time of this incident, the cameras at one of the buildings were not functioning.

The video recording from one building was too distant to be of significant value, but it did record the SO and WO #2 arriving. It also recorded them yelling commands prior to the SO discharging his firearm.

The SIU obtained images from two cameras at the apartment building where the incident occurred, one camera mounted inside the front entrance vestibule and one mounted externally above the front entrance. Those two cameras afford the following observations.

The video recording mounted outside the entrance showed the walkway along the front of the building towards the driveway. There was a small brick partition/wall that divided the walkway from the front lawn of the building. The front lawn was covered in snow. A sidewalk, cleared of snow, divided the front lawn from the boulevard.

At 8:50:41 p.m.,[5] the WRPS vehicle driven by WO #2 travelled on Brybeck Crescent. The Complainant was outside the apartment building. He was wearing a winter coat, a hooded garment with the hood raised, and pants. He was looking towards the police vehicle as he stepped over the brick partition wall and approached the front door of the building.

At 8:50:45 p.m., the Complainant entered the building vestibule, as the cruiser occupied by the SO and WO #2 came to a stop on the street in front of the building. The Complainant was carrying the sheathed machete in his left hand.

The Complainant used the building intercom/access system to enter the interior of the building.

At 8:50:51 p.m., WO #2 exited the vehicle.

At 8:50:58 p.m., as WO #2 stepped onto the sidewalk in front of the apartment building, the front door of the building opened, and the Complainant exited the building.

At 8:51:00 p.m., the Complainant stepped up onto the small partition wall outside the entrance and he transferred the sheathed machete to his left hand. WO #2 removed his CEW from its holster.

At 8:51:01 p.m., the Complainant stepped onto the front lawn and was extracting the machete from its sheath. As soon as he stepped onto the lawn, he started to run towards WO #2. Someone yelled, “Drop it.”

At 8:51:02 p.m. WO #2 deployed his CEW, and the Complainant fell onto the lawn and rolled onto the sidewalk. Officers yelled at him, “Get down, stay down.”

At 8:51:05 p.m., the Complainant started to stand again.

At 8:51:06 p.m., the Complainant was on his feet and started running towards WO #2, who called out, “I’m gonna re-deploy.”

At 8:51:07 p.m., two gunshots were fired, and the Complainant fell onto the roadway, under the front bumper of WO #2’s cruiser.

Civilian Witness Footage

The SIU obtained video recordings from civilian witness - CW #3. The video recordings provided by CW #3 were recorded following the shooting and were of poor quality. They showed the activity on the street following the shooting and did not assist in understanding the shooting.

Materials Obtained from Police Service

The SIU obtained the following materials from the WRPS between February 20, 2024, and March 4, 2024:

• Scene photographs;
• Fingerprints of the Complainant from two previous incidents;
• Telephone communications recordings;
• Radio communications recordings;
• ICCS recordings;
• BWC recordings;
• The notebook entries of all designated witness officials;
• The notebook entries of the SO;
• Use of Force Policy;
• Personal occurrence history for the Complainant;
• Computer-aided dispatch (CAD) record;
• List of involved police officers and the vehicles they were operating;
• Training records - the SO;
• Occurrence and General Reports for previous apprehensions of the Complainant; and
• The Occurrence Report and the CAD record regarding a related disturbance that occurred after the Complainant’s death.

Materials Obtained from Other Sources

On February 24, 2024, the SIU obtained video surveillance recordings from two apartment buildings. They were downloaded by a SIU forensic investigator who attended the building complex.

CW #3 provided the SIU copies of video recordings he recorded following the shooting.

The evidence collected by the SIU, including interviews with police and non-police witnesses, and video footage that captured the incident, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU. He did authorize the release of his notes.

In the evening of February 19, 2024, the SO and his partner, WO #2, were on patrol in their cruiser when a call came over their radio of a disturbance unfolding near Brybeck Crescent and Karn Street, Kitchener. CW #2 had contacted police seeking assistance for a family member – the Complainant – who was said to be of unsound mind and in possession of a machete. With WO #2 driving, the officers made their way to the building, arriving at about 8:37 p.m. WO #2 stopped the cruiser outside the Complainant’s apartment building and both officers exited the vehicle.

The Complainant had left the building and ventured outside at the time his brother called police. He was in the middle of a psychotic episode. The Complainant had briefly re-entered the building as the SO and WO #2 were pulling up to the address before he emerged again to confront the officers.

The SO exited the cruiser and walked in front of the vehicle onto the east sidewalk of Brybeck Crescent, drawing his firearm and pointing it at the Complainant. Upon exiting the cruiser, WO #2 also moved in front of the vehicle, the SO to his right a short distance. The SO yelled at the Complainant to “drop it” as the Complainant climbed over a small wall separating the entranceway to the building from the snow-covered front lawn and began to run towards the officers. He held a machete in his right hand and the machete’s sheath in his left. The Complainant had taken two or three strides towards the officers when he was struck by WO #2’s CEW discharge. He fell and slid onto the sidewalk before he rose to his feet and advanced towards WO #2, the machete still in his right hand. WO #2 deployed his CEW again but the Complainant continued forward. A moment later, as the Complainant was now on the grass boulevard on the other side of the sidewalk, the SO fired his weapon twice. The Complainant tumbled to the ground in front of the cruiser, coming to rest on his back partially underneath the vehicle’s push-bar assembly.

From a distance, the officers directed the Complainant to drop the machete and roll onto his front. The Complainant was not, in fact, holding the machete; it had become wedged in the cruiser’s push-bar as he fell forward. They were mistaking the machete sheath, which remained in his left hand, for the machete. With the arrival of additional officers and the use of a shield, officers approached the Complainant about four minutes after the shooting. They pulled him out from under the cruiser and administered first-aid and CPR.

The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to gunshot wounds to the torso.

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.

Section 215, Criminal Code - Failure to Provide Necessaries

215 (1) Every one is under a legal duty

(c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and

(ii) is unable to provide himself with necessaries of life.

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if

(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

Sections 219 and 220, Criminal Code - Criminal Negligence Causing Death

219 (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

The Complainant passed away on February 19, 2024, in Kitchener, the result of a police shooting. 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 Complainant’s death.

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 was engaged in the execution of his lawful duties throughout the course of the events culminating in the shooting. Having received a call about a person in possession of a machete and mentally unwell, the officer was within his rights in attending at the scene to do what he reasonably could to prevent harm coming to that person or the public.

As to the elements of the defence, I am satisfied that the SO fired his weapon to repel what he reasonably apprehended to be an attack on his partner, WO #2. Though the officer did not avail himself of an opportunity to provide that evidence firsthand to the SIU in an interview, as was his legal right, that was the import of his notes and post-incident utterances to other officers, and there is no reason to doubt them considering the situation: the Complainant was in possession of a machete, charging at WO #2, and in striking distance of the officer at the time of the shots.

I am also satisfied that the SO’s resort to gunfire constituted reasonable force. The Complainant was in possession of a machete – a weapon capable of inflicting grievous bodily harm or death – and had given the officers every indication he was intent on using it. Moments after the officers’ arrival at the scene, the Complainant emerged from the building and ran towards the SO and WO #2, the machete held in his right hand. WO #2 fired his CEW, but it was only partially effective. The Complainant fell for an instant before quickly righting himself and continuing his advance. WO #2 fired his CEW a second time, which did little to stop the Complainant. An instant later, with the Complainant now no more than a metre from WO #2, the machete raised in his right hand, the SO fired two shots in quick succession. On this record, it is apparent that the SO was within his rights when he chose to meet an imminent threat of grievous bodily harm or death to WO #2 with a resort to lethal force of his own. What was required in the moment was the immediate stopping power of a firearm – no other interventions would have sufficed to defeat the threat.

Given the delay of several minutes before the officers on scene approached the Complainant after the shooting to render aid, the offences of failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 of the Criminal Code, respectively, were also considered. Both require something more than a simple want of care to give rise to liability. The former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is premised on even more egregious conduct that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the neglect constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the question is whether there was any want of care on the part of the involved officers, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or caused his death. In my view, there was not.

It is clear in hindsight that the Complainant had been mortally wounded by the SO’s gunshots and needed immediate medical attention, but the officers could not have been certain of the state of his condition at the time or whether he remained a threat. There was confusion among them whether the Complainant remained in possession of the machete. In fact, he was no longer holding the machete, but he still had the machete sheath, which was mistaken for the weapon. Given the fraught circumstances of the moment, the machete sheath in his possession and the machete nearby, I accept there was a need to act with deliberation and caution in approaching the Complainant. In the circumstances, I am unable to reasonably conclude that a delay of several minutes constituted a marked departure from a reasonable standard of care.

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

Date: June 18, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit