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 March 1, 2024, at 6:01 p.m., the Thunder Bay Police Service (TBPS) notified the SIU of a firearm discharge incident involving the Complainant.

According to the TBPS, on March 1, 2024, at 4:31 p.m., TBPS officers responded to a shopping complex at 959 Fort William Road on information that the Complainant was waving a gun around. The Complainant was located by police officers in a green space behind Popeye’s Louisiana Kitchen waving what they believed to be a handgun. At 5:03 p.m., the Subject Official (SO) discharged and struck the Complainant with four rounds of an Anti-riot Weapon Enfield (ARWEN). The Complainant was arrested and transported to Thunder Bay Regional Health Sciences Centre. The firearm was discovered to be a replica airsoft gun.

The Team

Date and time team dispatched: 2024/03/04 at 7:00 a.m.

Date and time SIU arrived on scene: 2024/03/04 at 9:35 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

43-year-old male; declined an interview

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

WO #3 Interviewed; notes received and reviewed

WO #4 Not interviewed; notes reviewed and interview deemed unnecessary

WO #5 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed on March 14, 2024.

The Scene

The events in question transpired on a narrow green space situated between a laneway at the back of 959 Fort William Road and the Neebing McIntyre Floodway.

Figure 1 - The greenspace between 959 Fort William Road and Neebing McIntyre Floodway

Physical Evidence

The Complainant’s Ranger air pistol.

Figure 2 - The Complainant’s air pistol

The SO’s .40 mm Penn Arms Multi-Shot Launcher.

Figure 3 - The SO’s Penn Arms Multi-Shot Launcher

Multi-Shot Launcher cylinder - six round capacity with five rounds missing.

Figure 4 - The Multi-Shot Launcher cylinder, showing a six round capacity with five rounds missing

Discharged projectile [believed to be a foam baton munition].

Figure 5 - Discharged projectile

Video/Audio/Photographic Evidence[2]

Video Footage - Tbaytel, 959 Fort William Road, Thunder Bay

Starting at around 4:11 p.m., March 1, 2024, the Complainant was captured lying on the ground moving his arms back and forth.

Starting at around 4:20 p.m., a GardaWorld security vehicle was parked at the back of Tbaytel.

Starting at around 4:50 p.m., TBPS uniform and Emergency Task Unit (ETU) officers staged on the east side of Tbaytel and were looking in the direction of the Complainant.

Starting at around 4:57 p.m., three ETU officers were standing to the east of the Complainant with weapons pointed in his direction.

The footage ended.

Communications Recordings – Telephone

A GardaWorld security officer called TBPS communications reporting he saw the Complainant lying on the ground behind Popeye’s Louisiana Kitchen with what he believed to be a pistol in his pocket.

Communications Recordings – Radio

Police officers were dispatched to Fort William Road on information that the Complainant was at the rear of a store with something in his pocket, which was believed to possibly be a pistol. The Complainant appeared intoxicated. Further information provided was that the Complainant was laying on the ground with what was believed to be a gun in his hand.

Starting at about 4:35 p.m., police officers began arriving on scene.

The Complainant was said to have something in his hand. Although it could not be made out, it appeared to be a black Glock-style firearm.

The Complainant was reported to be brandishing a firearm.

The Complainant was saying he was going to shoot them.

ETU were requested.

The Complainant looked intoxicated.

The Complainant was beside a wheelchair and did not appear mobile.

The Complainant was manipulating the action lever.

The Complainant was on his knees with the gun pointed in the direction of the police officers. He was waving the gun around.

The Complainant was holding the firearm in his left hand.

The Complainant was crawling slowly towards the police officers.

The Complainant had the gun in his hand, and his back and buttocks were exposed to the police officers. They had an open shot of his back while he was looking away from them. Police officers were moving into position and were going to take the shot.

There was no ejection port seen and the Complainant’s firearm looked like an air gun. The police officer was ‘80 percent’ positive it was an air gun.

The ‘.40 mm’ was ineffective. Three rounds had struck the Complainant on the back and shoulder but he did not drop or react.

The Complainant was on his back with the gun pointed straight up.

The Complainant was given commands to drop the gun.

The Complainant dropped the gun.

A police service dog was released and engaged the Complainant.

The Complainant was on top of the gun, and it was not visible.

The Complainant was in custody.

Body-worn camera (BWC) Footage

The BWC videos provided were believed to be worn by uniform police officers deployed to an outer perimeter or traffic details, and did not capture the interaction.

The audio from one of the cameras recorded a uniform police officer providing a running description of the incident as follows.

At around 4:56:07 p.m., the police officer was at the rear of the plaza standing behind a storage container.

At around 4:56:40 p.m., the Complainant was lying on the ground and had a gun.

At around 4:57:10 p.m., the Complainant was flashing the gun around.

At around 4:57:27 p.m., the Complainant had the pistol facing towards the river.

Starting at 4:58:46 p.m., the sound of five gunshots in succession was heard. The first one missed the Complainant, while the second and third struck his shoulder. The Complainant was not moving, and the shots did not appear effective. A fifth round was discharged.

At around 4:58:59 p.m., the Complainant rolled on his side and the gun was still in his hand.

In-car camera (ICC) Footage

The videos did not capture the incident.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TBPS between March 4, 2024, and March 8, 2024:

• Names and roles of involved police officers;
• Civilian Witness List;
• Computer-assisted Dispatch Report;
• General Occurrence Report;
• Crown Brief Synopsis;
• Police communications recordings;
• BWC video;
• ICC video;
• Current ARWEN course and qualifications for the SO;
• Duty book notes of WO #1, and WO #2, WO #3, WO #4 and WO #5;
• Emergency Task Unit Manual;
• .40 mm Penn Arms Launcher Powerpoint;
• .40 mm Launcher Munitions Powerpoint;
• New Less Lethal Powerpoint;
• Policy - Use of Force;
• Policy - Arrest, Release and Detention; and
• Policy - Intermediate Weapons.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on April 18, 2024:

• Video footage from Tbaytel.

In the afternoon of March 1, 2024, TBPS officers were dispatched to the shopping complex at 959 Fort William Road, Thunder Bay. Security at the complex had contacted police to report the presence of male – the Complainant – lying on the ground behind Popeye’s Louisiana Kitchen with what appeared to be a pistol. Uniformed officers were first to arrive. The Complainant refused to drop the gun at their direction and threatened to shoot them.

ETU officers were deployed at the scene. Among them, the SO was armed with a less-lethal firearm – a .40 mm Penn Arms Multi-Shot Launcher that discharged foam baton munitions. At around 5:00 p.m., the officer fired his weapon five times in succession at the Complainant. Several of the rounds, if not all, struck the Complainant, but he remained possessed of what appeared to be a pistol. Shortly after, directed again to drop the weapon, the Complainant did so. A police dog was released and bit the Complainant’s leg, after which officers moved in and took him into custody.

The Complainant was taken to hospital after his arrest. He suffered bruising as a result of being struck by less-lethal projectiles. It is unknown whether he suffered any serious injuries.

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.

On March 1, 2024, a TBPS officer fired a less-lethal firearm at the Complainant moments before his arrest. 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 discharge of his firearm.

Pursuant to section 25(1) of the Criminal Code, 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.

Having received a report of a male brandishing what appeared to be a pistol on the grounds of a shopping complex, and having confirmed that information upon their arrival at the scene, I am satisfied the police had cause to take the Complainant into custody and do what they could to ensure public safety.

I am also satisfied that the force used by the SO, namely, several less-lethal firearm discharges, constituted justified force. While the object in the Complainant’s possession turned out to be an air pistol, the police could not have been certain of that fact, and they were entitled to proceed on the basis that it was a pistol of the lethal variety. That being the case, when the Complainant refused to rid himself of the pistol, the officers were within their rights in seeking to neutralize a potentially lethal risk by firing a less-lethal firearm at the Complainant from a distance. The use by the SO of his launcher promised to do just that without the infliction of serious injury. Though the weapon did not achieve its aims – the Complainant remained in possession of the pistol – it might well have persuaded the Complainant to surrender - shortly after the use of the launcher, the Complainant dropped the gun and was arrested.

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

Date: June 27, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit