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 40-year-old man (the “Complainant”).

Notification of the SIU[1]

On February 21, 2024, at 3:20 p.m., the Greater Sudbury Police Service (GSPS) contacted the SIU with the following information.

On February 21, 2024, at approximately 9:43 a.m., GSPS officers attended a residence located in the area of Kathleen Street and Frood Road, Sudbury, to execute a Form 2 Mental Health Act apprehension of the Complainant. After unsuccessful attempts to apprehend the Complainant, he barricaded himself in his residence. A request for Critical Incident Command was coordinated and a team responded to the area at 11:51 a.m. The team consisted of the Mobile Crisis Rapid Response Team and negotiators. Ongoing negotiations with the Complainant were unsuccessful, and a forensic psychiatrist was requested to attend at 2:02 p.m. to aid in the Complainant’s apprehension. At 2:30 p.m., a plan to breach and hold the residence was implemented. The front door was forced open, and the Complainant approached police officers with a sword. An officer discharged his firearm. Additionally, an Anti-riot Weapon Enfield (ARWEN) and a conducted energy weapon (CEW) were deployed. The Complainant retreated inside his home and verbal communications resumed. The Complainant, screaming and crying, was encouraged to surrender. At 2:56 p.m., the Complainant exited the front door of the house, laid himself on the ground, and was apprehended by police. He was transported to Health Sciences North (HSN) by ambulance and reported to have sustained a hip and arm injury that were described as non-life threatening.

The Team

Date and time team dispatched: 2024/02/21 at 5:02 p.m.

Date and time SIU arrived on scene: 2024/02/21 at 11:59 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on February 22, 2024.

Civilian Witnesses (CW)

CW #1 Interviewed

CW #2 Interviewed

The civilian witnesses were interviewed on February 23, 2024.

Subject Officials (SO)

SO #1 Declined interview and to provide notes, as is the subject official’s legal right

SO #2 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 Interviewed; notes received and reviewed

WO #5 Interviewed; notes received and reviewed

WO #6 Interviewed; notes received and reviewed

WO #7 Interviewed; notes received and reviewed

WO #8 Interviewed; notes received and reviewed

The witness officials were interviewed between March 6 and 8, 2024.

The Scene

The events in question transpired in and around the front door of a residence located in the area of Kathleen Street and Frood Road, Sudbury.

Physical Evidence

On February 22, 2024, at 10:38 a.m., SIU forensic investigators attended the scene at the residence in the area of Kathleen Street and Frood Road. The scene was secured by uniformed members of the GSPS.

On the ground outside the home were ARWEN cartridge cases and impact projectiles.

The veranda door opened inwards to a small, cluttered enclosed veranda. The door had been forced open and was hanging on one hinge. The inner door to the residence also opened inward and had been forced open.

There were obvious signs of a disturbance and a struggle in the veranda area, and just inside the main door. An ARWEN had been deployed, and an ARWEN rifle was leaning against the veranda wall. Several green impact projectiles and ARWEN cartridge cases were found in the enclosed veranda and in the house. There was also evidence of a CEW deployment, as probes and wire were located inside the veranda and the house. Three 9 mm cartridge cases were located among the clutter in the veranda as well as a single 9 mm projectile.

There was a blood trail inside the house that led to an upstairs bedroom. Inside the bedroom was a ballistic vest with a CEW probe embedded into the front. There was another CEW probe on the floor, as well as an impact projectile. There were several edged weapons located on the bed, one of which was a long sword with a sharp edge on each side, entangled in CEW wire, and blood smears on the handle. A green military helmet was also located on the bed with blood smears along one side.

SIU forensic investigators processed and photographed the scene.

The following evidence was collected by SIU forensic investigators at the residence:

• One 9 mm projectile;
• Three 9 mm casings;
• Multiple ARWEN projectiles;
• Multiple ARWEN cartridge casings;
• Four CEW probes;
• Two CEW cartridges; and
• Ballistic vest.

Figure 1 - ARWEN projectile

The following evidence was collected by SIU forensic investigators at GSPS Headquarters:

• Service pistol of SO #1 – Sig Sauer Model P320;
• Deployed CEW cartridges of WO #5; and
• Clothing of the Complainant.

SO #1’s firearm was a Sig Sauer Model P320 9 mm semi-automatic pistol. A cartridge was located in, and removed from, the breech. Its magazine contained 16 cartridges. The weapon had a maximum capacity of 22 cartridges (21 in the magazine and 1 in the breech).

Figure 2 - SO #1’s firearm

SO #2’s ARWEN had a total of three live cartridges loaded into the five-cartridge rotary cylinder.

Forensic Evidence

CEW Deployment Data

The CEW was armed at 2:31:05 p.m., February 21, 2024. Approximately three seconds later, the trigger was pulled and the cartridge in Bay One was deployed with an electrical discharge from the weapon of .832 seconds. Immediately following this discharge, the trigger was pulled a second time and the cartridge in Bay Two was deployed with an electrical discharge from the weapon of 4.926 seconds.

Video/Audio/Photographic Evidence[2]

Police Communications Recordings – Radio

On February 21, 2024, starting at about 2:29 p.m., the recording began with a GSPS dispatcher stating, “Go ahead.” The Incident Commander (IC), WO #3, advised that they had attempted to contact the Complainant with no response. He further stated that “we are going to the second phase of our plan”, noting that they were going to try to facilitate face-to-face communications with the Complainant. WO #3 subsequently advised Emergency Response Unit (ERU) WO #4 that when the Immediate Action Team (IAT) was ready, they had “the green light”. The IAT acknowledged and advised they were moving to the door.

Starting at about 2:31 p.m., an unidentified GSPS ERU member advised that a CEW and ARWEN had been deployed and that the breach and hold had failed. The Complainant had come out with a sword and then went back inside the house. The unidentified ERU member further advised that the IAT had backed out and that “we have an injury to one officer here”. WO #3 inquired if the injured officer was okay and an unidentified ERU member advised, “Shot out, shots fired.” WO #3 asked WO #4 if he could confirm shots had been fired, which he did.

Starting at about 2:33 p.m., WO #4 advised that ERU member, WO #5, had an injury and that he was unsure of the condition of the Complainant at that time. An unknown ERU member advised that “just so the IC is aware, the subject was at the front door and had the sword”.

Starting at about 2:37 p.m., WO #4 stated, “Let’s start breaking some windows … so we can soften the room and see inside.”

Starting at about 2:38 p.m., an unknown GSPS officer advised WO #4 to “standby” as negotiators had the Complainant on the phone. Further information received was that there was a lot of screaming and yelling, and the Complainant had “hung up on us”. An unknown GSPS officer stated, “SO #1, I am going to pull you out of the stack there. Come back to one of the trucks and sit back there.”

Starting at about 2:39 p.m., “WO #6 stated that he was aware that the negotiator had spoken to the Complainant but that he had hung up.” He then asked WO #4, “Can we breach some windows here?” WO #4 replied, “Absolutely, go ahead.”

Starting at about 2:42 p.m., WO #6 advised that they had started breaking windows and that they were still trying to establish communication with the Complainant.

Starting at about 2:43 p.m., an unknown GSPS officer advised that negotiations with the Complainant had resumed over the phone.

Starting at about 2:50 p.m., an unknown GSPS officer advised that “we have got the male to surrender”.

Starting at about 2:55 p.m., WO #4 advised that the front door was opening and that he observed the Complainant coming out of the house. He further advised that the Complainant was complying with commands, had laid down, and was handcuffed. WO #4 advised that EMS was “coming up here now”. WO #6 requested and was granted permission from WO #4 to enter with the IAT and clear the interior of the house.

Video Footage – Received from CW #2

Of the five video clips, only one captured the arrest of the Complainant, at approximately 2:56 p.m., February 21, 2024, according to the video time-stamp. Unfortunately, the view was obstructed and all that was discernible are ERU members crouched down appearing to take control of the Complainant as he was on the ground on the front lawn of the Complainant’s residence.

Video Footage – Civilian

The footage captured the front lawn and the front of the Complainant’s residence. Given the diagonal position of the camera, the front view of the Complainant’s residence was somewhat obscured by a hydro pole, a medium-sized tree, and a fence along the front of the Complainant’s yard.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the GSPS between February 23, 2024, and June 24, 2024:

• Computer-assisted Dispatch Report;
• All General Occurrence and Supplementary Reports;
• Communications recordings;
• Call-signs of all involved officers;
• Negotiator recordings;
• GSPS Hostage Rescue Barricaded Persons Policy;
• GSPS Police Response to Persons in Crisis Policy;
• Action and mission plan for the apprehension of the Complainant;
• WO #3 scribe notes;
• Use of Force training records of SO #2;
• Use of Force and Firearms training records of SO #1;
• Deployment data from CEW of WO #5;
• Copy of Feeney Warrant;[3]
• Copy of Form 2 issued for the Complainant; and
• Screenshot of social media post from the Complainant.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between February 24, 2024, and March 12, 2024:

• The Complainant’s medical records from HSN;
• Doorbell camera footage provided by CW #2; and
• Video footage provided by a civilian.

The evidence collected by the SIU, including interviews with the Complainant and officers in the vicinity at the time of the incident, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU or the release of their notes.

Shortly before noon of February 21, 2024, WO #1, in the company of ERU officers, WO #5 and SO #1, arrived at a residence in the area of Kathleen Street and Frood Road, Sudbury. He was there to execute a warrant issued under the Mental Health Act to apprehend the Complainant. The officers were also in possession of a Feeney warrant authorizing a forced entry into the residence if necessary to take the Complainant into custody. The Complainant momentarily appeared at the front door of an enclosed porch attached to the house proper. He was holding a sword in his right hand. He closed the door on the officers, threatening, as he did so, to cut off their hands if they entered the house. From behind a protective shield, the officers called-out to the Complainant indicating they were there to help. There was no response from inside the house. A request went out for more ERU officers as the situation now involved an armed and barricaded individual.

Over the next couple of hours, additional police resources were deployed to the scene, including ERU officers under the control of an incident commander – WO #3. An inner and outer perimeter were established around the house. Negotiators attempted to call the Complainant’s cell phone without success. A mental health physician was consulted. At about 1:45 p.m., officers learned that the Complainant was on social media indicating that the government was corrupt, police were at his door, and it was a good day to die.

In light of the Complainant’s non-responsiveness and disconcerting social media post, concerns began to grow about his safety inside the house. It was decided that a team of ERU officers would breach the door to the house proper and hold their position. The hope was that this would facilitate dialogue with the Complainant.

At about 2:30 p.m., WO #7 forced open the front door with a ram. With him were SO #1, armed with a semi-automatic pistol, SO #2, in possession of an ARWEN, and WO #5, holding a shield. They were immediately confronted by the Complainant from a couple of metres away. A sword in his right hand and a spear in his left, the Complainant advanced towards the officers and swung his weapons repeatedly in their direction. Most of the blows were deflected by the shield but some connected with the officers. WO #5 discharged his CEW twice to no effect; the Complainant was wearing a ballistic vest preventing the penetration of at least one of the weapon’s probes. SO #2 fired his ARWEN multiple times, striking the Complainant. At about the same time, SO #1 fired three to five rounds, one of which entered and exited the Complainant’s right leg. The ERU officers took a step back and the Complainant closed the door and retreated into the house.

The officers struck in the melee – SO #1, WO #7 and WO #5 – took a moment to assess their injuries. One officer received a serious injury to his hand, requiring surgery.

About ten minutes after the altercation, officers were able to reach the Complainant by phone. The Complainant would eventually agree to exit his home and surrender. At about 2:55 p.m., the Complainant did just that and was arrested.

The Complainant was transported to hospital and diagnosed with a laceration to the left arm, bruising to his right leg and penis, a gunshot wound to the upper right thigh, and a fractured right finger.

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 gunfire from a GSPS officer February 21, 2024. He was also struck by one or more ARWEN discharges in the incident. The SIU was notified of the event and initiated an investigation naming SO #1 and SO #2 subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the subject officials committed a criminal offence in connection with the events in question.

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.

SO #1 and SO #2 were lawfully placed and in the execution of their duties throughout the series of events culminating in the use of their weapons. The police were in possession of a warrant under the Mental Health Act authorizing the Complainant’s apprehension for a psychiatric examination. They also had a Feeney warrant giving them rights to enter the Complainant’s residence to effect his apprehension.

There is little doubt that SO #1 and SO #2 fired their weapons to protect themselves from a reasonably apprehended assault at the hands of the Complainant. Though neither officer provided that evidence first-hand to the SIU (as was their legal right), the proposition is laid bare by the circumstances. Both officers were being attacked at close quarters by edged weapons in the Complainant’s possession when they reacted with force of their own.

As for the force in question – multiple rounds fired from SO #2’s ARWEN and SO #1’s semi-automatic pistol – I am satisfied it constituted reasonable force. Taking a step back, the officers who took part in the police operation that preceded the use of force comported themselves with due care and regard for the Complainant’s health. Efforts to peacefully negotiate a resolution to the standoff had been ineffective and there was a legitimate worry about the Complainant doing harm to himself when the police decided a more proactive approach was in order. With the front door forced open and the police immediately faced with an attacking Complainant, the officers were entitled to resort to a measure of defensive force. A purely physical engagement would have risked the officers being seriously injured or killed by the Complainant’s edged weapons. And retreat and withdrawal were not in the cards given the speed with which events unfolded. On this record, WO #5 and SO #2 acted reasonably when they attempted to neutralize the Complainant with their less-lethal weapons. Whether SO #1 was aware of the use of the CEW or ARWEN before he fired his gun is unclear. Be that as it may, the fact remains that he and his team members were at risk of grievous bodily harm or death. He was entitled, in the circumstances, to meet a lethal danger 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 19, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit