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 35-year-old man (the “Complainant”).

Notification of the SIU[1]

On March 22, 2024, at 8:46 p.m., the Ontario Provincial Police (OPP) notified the SIU of a firearm discharge incident.

According to the OPP, the OPP Thessalon Detachment received a 911 call at 7:14 p.m. reporting that the Complainant was at the Thessalon Pavilion causing a disturbance. Witness Official (WO) #2 was the first to arrive. He encountered the Complainant, who had an X-Acto knife. WO #2 discharged his CEW to no effect. The Subject Official (SO) arrived, and the Complainant rushed at the officers. The SO discharged his firearm striking the Complainant in the arm. The Complainant was transported to the hospital in Thessalon and then to hospital in Sault Ste. Marie.

The Team

Date and time team dispatched: 2024/03/22 at 10:03 p.m.

Date and time SIU arrived on scene: 2024/03/23 at 10:30 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

Affected Person (aka “Complainant”):

35-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on March 24, 2024.

Civilian Witnesses (CW)

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

The civilian witnesses were interviewed between March 23 and 25, 2024.

Subject Official (SO)

SO Interviewed; notes received and reviewed

The subject official was interviewed on May 13, 2024.

Witness Officials (WO)

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

The witness officials were interviewed on April 2, 2024.

The Scene

The events in question transpired in and around a gazebo located off a bend in the road on the water side of Frances Street, a short distance northwest of Ontario Street, Thessalon.

Scene Diagram

Physical Evidence

Prior to the arrival of SIU, tarps were placed over evidence to ensure its preservation overnight. The location itself resembled a park, situated northwest of the intersection at Frances Street and Ontario Street, Thessalon. It featured grassy terrain with a nearby gazebo and several benches scattered around. Two 9mm cartridge cases were located next to the park driveway and north of the gazebo. Other items scattered around were medical debris, cut clothing, a white duvet blanket with one CEW probe attached, and a utility knife with the blade exposed.

Figure 1- Knife located at scene

The SO’s firearm – a Glock 17M 9X19 – was capable of holding 17 cartridges in the magazine. With an additional cartridge loaded in the breech, the weapon had a total capacity of 18 cartridges. After the incident, a count revealed that the weapon held 16 cartridges.

Figure 2 - The SO’s firearm

Forensic Evidence

Conducted Energy Weapon (CEW) Deployment Data – WO #2

On March 22, 2024, at 7:43:44 p.m., the trigger was depressed, Cartridge One was deployed, and energy was discharged for five seconds. At 7:43:50 p.m., the trigger was depressed again, and energy was discharged for two seconds.[2]

Video/Audio/Photographic Evidence[3]

In-car Camera (ICC) Footage - WO #3

The video footage from the ICC of WO #3’s cruiser was of no evidentiary value.

Police Radio Communications

Recording 1, dated March 22, 2024, and lasting 17 minutes and 22 seconds, captured multiple phone calls between OPP Communications Centre personnel and various ranking members of the OPP. The subjects discussed included the notification of EMS about the shooting, and Thessalon Hospital about the anticipated arrival of a gunshot victim.

Recording 2, lasting seven minutes and 42 seconds, was summarized with the assistance of the Computer-assisted Dispatch (CAD) Report. At approximately 7:39 p.m., WO #2 reported via radio to the OPP Communications Centre dispatcher, stating his location, that shots had been fired, and that EMS was needed. He noted that the Complainant was armed with a knife and had been shot twice. By 7:42 p.m., a tourniquet had been applied to the Complainant. EMS arrived on the scene at 7:52 p.m. and, by 8:05 p.m., WO #2 and WO #3 accompanied EMS in transporting the Complainant to Thessalon Hospital. Due to his condition, the Complainant was later transferred to the Health Sciences North Hospital, Sudbury.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the OPP between March 25, 2024, and June 6, 2024:

• Arrest Report;
• CAD Report;
• Notebook Entries – the SO, and WO #3, WO #2 and WO #1;
• Police communications recordings; and
• ICC footage – WO #3.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between April 9 and 15, 2024:

• The Complainant’s medical records from Health Sciences North, Sudbury.

The evidence collected by the SIU, including interviews with the Complainant, the SO and several police eyewitnesses to the events in question, gives rise to the following scenario.

In the evening of March 22, 2024, WO #2 located the Complainant near a gazebo northwest of the intersection of Frances Street and Ontario Street. Together with the SO, and WO #1 and WO #3, WO #2 was looking to take the Complainant into custody on the strength of a Mental Health Act warrant. The warrant had been obtained earlier in the day. WO #2 radioed his colleagues, who soon joined him at the scene.

The Complainant was of unsound mind at the time and contemplating self-harm. He had earlier picked up a retractable knife from an abandoned building and resolved to hurt himself or prompt police officers into hurting him.

WO #2 exited his cruiser, neared the Complainant and observed the knife in his right hand. The officer attempted to speak to the Complainant but to no avail. As the Complainant neared his location, the officer drew his firearm and directed him to drop the weapon.

With the arrival of the SO, and WO #1 and WO #3, further efforts were made to de-escalate the situation. WO #1 told the Complainant that they were there to help. Again, the Complainant was largely unresponsive. Instead, he changed directions slightly and started to move towards WO #3. WO #2 seized the opportunity to maneuver behind the Complainant with the intention of discharging his CEW at his back. The officer fired twice but neither discharge was successful. The Complainant began to advance on WO #2.

The SO yelled at the Complainant to stop and drop the weapon. The Complainant continued to advance and had neared with within two to five metres of WO #2 when the SO fired twice.

The gunfire felled the Complainant. WO #2 and WO #1 proceeded to handcuff him.

Following his arrest, the Complainant was transported to hospital and diagnosed with gunshot wounds to the upper left arm and left chest.

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 seriously injured by police gunfire in Thessalon on March 22, 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 his colleagues were within their rights in seeking to take the Complainant into custody. They were acting on the strength of a Mental Health Act warrant authorizing the Complainant’s apprehension.

The SO told the SIU that he fired his weapon believing it necessary to protect WO #2 from a knife attack by the Complainant. There is nothing in the evidence to raise doubt about the officer’s assertion. The Complainant was armed with a knife capable of causing grievous bodily harm or death, had brandished it at the officers in a threatening fashion, and was approaching striking distance of WO #2 when the SO fired his weapon. In the circumstances, the Complainant had given the SO cause to believe that defensive action was necessary.

With respect to the force used by the SO, namely, two shots from his semi-automatic pistol, I am satisfied that it was reasonable. A physical engagement to intervene would have risked serious injury given the knife in the Complainant’s hands. Less-lethal force - WO #2’s CEW - had already been tried and failed because of the layers of clothing the Complainant was wearing. The discharge of oleoresin capsicum spray would not have had the kind of stopping power required of the moment. And retreat or withdrawal were not viable options given the speed with which events were unfolding and the likelihood of an imminent knife attack on WO #2. On this record, I am unable to conclude that the SO acted unreasonably when he chose to meet a threat of lethal force 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: July 18, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit