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 34-year-old man (the “Complainant”).

Notification of the SIU[1]

On October 15, 2023, at 12:51 a.m., the Waterloo Regional Police Service (WRPS) contacted the SIU with the following information.

On October 15, 2023, WRPS police officers were dispatched to an address near Sunnyhill Road and Franklin Boulevard, Cambridge, following a report of a disturbance. Upon arrival, the Complainant was observed to be armed with an edged weapon. An interaction of some nature occurred and an officer – the Subject Official (SO) – reportedly discharged his firearm at the Complainant causing unknown injuries. Region of Waterloo Emergency Medical Services (EMS) responded to the scene and took the Complainant to hospital.

The Team

Date and time team dispatched: 2023/10/15 2:09 a.m.

Date and time SIU arrived on scene: 2023/10/15 3:15 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on November 8, 2023.

Civilian Witness

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

The civilian witnesses were interviewed between October 15, 2023, and October 17, 2023.

Subject Official

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

Witness Official

WO #1 Interviewed

WO #2 Interviewed

The witness officials were interviewed on October 16, 2023, and December 1, 2023.

Investigative Delay

There was a delay in interviewing the Complainant due to his medical condition and the fact he wanted to consult with counsel first.

WO #1 and WO #2 were interviewed the day after the incident; however, due to obtained video, which gave rise to questions about the number of shots and the timing between shots, both witness officials were re-interviewed on December 1, 2023.

Delay was also incurred because of the inherent complexity of the case.

The Scene

The events in question transpired on and around the driveway of a residence near Sunnyhill Road and Franklin Boulevard, Cambridge.

Physical Evidence

On October 15, 2023, two SIU forensic investigators attended the scene. The weather was overcast and cool, with a temperature of nine degrees Celsius.

Sunnyhill Road, running roughly east to west from Franklin Boulevard, was a residential street with detached houses on both sides. The incident location was on a driveway in the area.

Overall photographs were taken to document the scene and a preliminary search located several cartridge cases, a kitchen knife, and a projectile. The cartridge cases were in two groups, with one being on the driveway, and the other, a smaller group, on the driveway of a neighbouring property. The items were marked for collection and for capture in subsequent 3D scene scans.

Figure 1 – Knife

Figure 2 - Cartridge case

At 5:28 a.m., a SIU forensic investigator met with a police officer, who had obtained the clothing and police equipment of the SO. Photographs were taken of the uniform, use of force options and other equipment. The duty pistol, a Glock Model 45, 9 X 19 (9mm) with an attached magazine and seven live rounds of ammunition, was collected. Also collected were two additional fully-loaded seventeen-round spare magazines. The service pistol, magazines and ammunition were secured as evidence and for possible future testing. The other equipment was returned to the police officer for retention by the service.

Figure 3 - The SO’s pistol

It was determined that ten shots had been fired during the incident.

A further search of the area was completed with a metal detector and bright light, and through the foliage. A total of nine cartridge cases, one deformed projectile, one projectile impact to a cruiser (the SO’s cruiser), and the kitchen knife were marked out, photographed, and collected. The impact damage was on the left side, rear corner of the marked police vehicle. The police vehicle was parked on the side of the street, across the driveway where the incident transpired.

Figure 4 - Projectile impact to rear of the SO’s cruiser

At 6:40 a.m., a SIU forensic investigator received two projectiles recovered during surgery from the Complainant, along with a bag of clothing.

The property at the scene was photographed and collected.

A further search was made of the area under daylight conditions for any additional impact damage or items of evidence. Nothing further was located.

At 10:18 a.m., one additional projectile removed during surgery from the Complainant was received.

All items were secured and transported to the SIU for storage and processing.

On October 16, 2023, a SIU forensic investigator attended the WRPS headquarters in Cambridge to attempt to recover the projectile that had struck the police vehicle. Photographs were taken of the police vehicle, damage, and the process undertaken to examine the vehicle. It was determined that the projectile had travelled from front to back at a slight ascending angle. The projectile had penetrated through the outer body metal in front of the rear left signal assembly. Fragments of copper and lead were recovered and photographed. They were secured as evidence and retained.

Video/Audio/Photographic Evidence[2]

In-car Camera (ICC) Footage – WO #2’s Cruiser – Front Camera

At 12:16 a.m., October 15, 2023, three WRPS police vehicles were observed parked side by side on the plaza lot at 480 Hespeler Road. WO #2 followed a fully marked police vehicle [now known to be the SO] onto Hespeler Road. Both police vehicles travelled with their roof lights activated to Harvey Street where the lights were turned off, after which the ICCS deactivated.

ICC Footage – The SO’s Cruiser – Front Camera

At 12:16 a.m., October 15, 2023, three WRPS police vehicles were observed parked side by side on the plaza lot at 480 Hespeler Road.

At 12:20 a.m., the SO turned south onto Harvey Street.

Starting at about 12:21 a.m., the SO turned west onto Sunnyhill Road. The officer acknowledged a radio dispatch that the subject in an investigation, the Complainant, was flagged as violent. The SO requested an ambulance be dispatched. The SO parked his police vehicle on the side of the street in front of a residence where the incident occurred. He exited his cruiser, and he and two other uniformed WRPS police officers walked down a driveway on the right side of the residence. The SO left the radio in his vehicle turned on, and the volume made it difficult to hear sound outside of the vehicle.

Starting at about 12:22 a.m., WO #1 and WO #2 walked towards the rear yard of a neighbouring residence, while the SO walked towards the front door of the residence. All police officers had flashlights in hand. At 12:22:33 a.m., WO #1 and WO #2 ran towards the front door of the residence the SO had attended.

Starting at about 12:23:19 a.m., movement could be seen in the darkened driveway to the left of the residence in an area where there was a concrete stairway. A figure [now known to be WO #2] could be seen with both arms extended out in front. WO #2 pointed towards the top of the staircase. WO #1 moved quickly on the path to the front door with his flashlight turned on. He took up a position in front of the vehicle in the driveway.

Starting at about 12:23:58 a.m., WO #2 moved east in the driveway with his arms still pointing to the area at the top of the stairs. A second figure - the SO - held a flashlight pointed towards the top of the stairs as he stood at the bottom of the stairs. The SO suddenly started to back up quickly.

Starting at about 12:24:12 a.m., one of the police officers on the driveway, with arms extended in front of his body, suddenly started to move backwards.

Starting at about 12:24:20 a.m., the Complainant was seen moving east along the top of a retaining wall. He moved his arms and hands erratically around his head. An object was seen extending from the area of his right hand. The Complainant was illuminated by the flashlights of the police officers. He turned and moved back, out of sight.

Starting at about 12:24:25 a.m., one of the police officers [believed to be WO #1] moved towards the side of the SO’s parked police vehicle; his shadow was illuminated on the east wall of the property. The Complainant was seen running along the top of the wall.

Between about 12:24:31 a.m., and 12:24:33 a.m., the sound of six gunshots was heard and the Complainant dropped and rolled off the retaining wall.

Between about 12:24:34 a.m., and 12:24:36 a.m., three more shots were heard along with a man’s voice. It could not be made out what was said. Round nine had a different sound to it [believed to be the sound of a police vehicle being struck with a round.]

Starting at about 12:24:42 a.m., the sound of the Complainant screaming in pain was captured, as were multiple male voices.

Starting at about 12:24:50 a.m., a single gunshot was heard. An officer’s shadow was captured on the side of the residence, his arms extended in front of him as he backed up. WO #1’s shadow with flashlight raised could be seen behind the SO. WO #1 also backed up and used his right hand to grab hold of the SO back and lead him backward. After the tenth shot, “Drop the knife,” and, “Fuck,” were heard from at least two different voices.

Starting at about 12:24:56 a.m., the SO, his handgun pointed in a two-handed grip, came into view along with WO #1, who had a flashlight in his left hand raised to his shoulder and his right hand holding the SO’s vest.

Starting at about 12:25:36 a.m., WO #1 told the SO to holster his gun.

Video Footage – Residence at Sunnyhill Road

Starting at about 12:22 a.m., October 15, 2023, three uniformed police officers – the SO, WO #2 and WO #1 - walked up the driveway of the residence with flashlights in their hand. WO #2 and WO #1 continued down the driveway, and the SO took the pathway towards the front door of the residence. A police vehicle was parked at the foot of the driveway just east of the front door. A man’s voice was heard, after which WO #2 and WO #1 ran down the driveway to the pathway of the front door. A man’s voice said, “[The Complainant], come out of there.”

Starting at about 12:23:32 a.m., WO #1 was captured standing in the driveway, a flashlight in his left hand and pistol in his right hand. The Complainant could be heard rambling and a command of, “Drop the knife,” was heard. The Complainant continued, “What is this, why is this so fucked…[indiscernible]…that is why you have to do it, that is why you have to fucking do it, that’s the rule, that’s the fucking rule.” A faint man’s voice could be heard speaking with the Complainant, but the words were indiscernible.

Starting at about 12:23:57 a.m., WO #1 turned and ran towards the front of the residence, flashlight in hand and turned on, after which he turned into the driveway with a handgun in his hand.

Starting at about 12:24:01 a.m., the Complainant continued to say, “You have to do it, you must, you have to do it…I ask you for justice.” The Complainant said, “I ask you for justice.” A male’s voice replied, “I don’t want to hurt you.”

Starting at about 12:24:25 a.m., the Complainant said, “Shoot, shoot.” A police officer with an activated flashlight in hand was seen to back up just to the south side of a parked police vehicle near the driver’s door.

At 12:24:26 a.m., the sound of six guns shots was heard in a span of approximately two seconds.

At 12:24:30 a.m., voices were heard and the police officer at the back of a cruiser [believed to be WO #2] moved to the centre of the street, after which a second volley of three shots was fired. The three shots were followed repeatedly by commands of, “Drop the knife.”

At 12:24:45 a.m., a single shot was fired. WO #1 was seen near the driver’s door of a police vehicle.

Police Communication Recordings

On October 15, 2023, at 12:16 a.m., CW #1 called the WRPS and reported she needed police assistance at Sunnyhill Road. She stated she had been attacked by the Complainant; a struggle was heard in the background. CW #1 advised she was hiding in the bathroom and CW #2 had the Complainant pinned down.

The dispatcher asked CW #1 if the Complainant had any weapons and she responded that she did not think so, but that the Complainant was near her kitchen. CW #1 advised that the Complainant and CW #2 had been drinking earlier and they had consumed “weed chocolate” while sitting around a fire. She believed the weed chocolate was strong and was affecting the Complainant very poorly. She thought he was having some type of psychotic episode. CW #1 was told that the police were coming.

At 12:16 a.m., police officers were dispatched.

At 12:18 a.m., the SO requested EMS.

Starting at about 12:20 a.m., police officers were advised that the Complainant was positive for a criminal record and flagged as being violent. The SO acknowledged that he had read that it was a sexual offence, and again asked for EMS to respond. The SO asked that the radio channel be kept free.

Starting at about 12:23 a.m., the SO said, “He has a knife, one.”

Starting at about 12:24 a.m., a police officer broadcast, “Shots fired, shots fired,” and the sound of one gun shot was heard.

At 12:24:39 a.m., an unknown police officer said, “He is on foot, he is …”.

At 12:24:58 a.m., the SO stated, “Shot multiple times.”

Materials Obtained from Police Service

The SIU obtained the following records from the WRPS between October 17, 2023, and October 23, 2023:

• List of Charges – the Complainant;
• Communications recordings;
• ICC footage;
• Notes of WOs;
• Subject Occurrence History – the Complainant;
• List of All Involved Police Officers;
• General Reports;
• Crown Brief Synopsis;
• WRPS Criminal Investigation Management Plan;
• WRPS Training Report – the SO; and
• WRPS Policy – Use of Force;

Materials Obtained from Other Sources

The SIU received the following records from the following other sources between October 17, 2023, and November 22, 2023:

• Video footage – Address on Sunnyhill Road;
• The Complainant’s medical records from Hamilton Health Sciences; and
• Ambulance Call Reports.

The evidence collected by the SIU, including interviews with the Complainant and police and non-police witnesses to the events in question, and video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the early morning of October 15, 2023, the SO, WO #1 and WO #2, each in separate cruisers, responded to a call for service at Sunnyhill Road, Cambridge. CW #1 had called police to report that the Complainant had just entered her residence and assaulted her. CW #1 told 911 that CW #2 was in a struggle with the Complainant in the home.

The officers made their way to the front door of the home and were greeted by CW #2. The Complainant was in sight in the kitchen just left of the front door. He retrieved a knife and began to approach the officers.

The SO drew his firearm and ordered the Complainant to drop the knife as he and WO #1 and WO #2 retreated backwards. The Complainant exited the front door and continued to approach the officers. The SO, WO #2 behind him, made his way down a set of steps leading to a driveway that was shared with an adjacent residence. The Complainant was repeatedly directed to drop the knife.

The Complainant did not drop the knife. With the officers now on the driveway, he stepped onto a low concrete retaining wall that lined the driveway. Within moments, with the knife in his right hand, the Complainant began to run on the top ledge of the wall towards the officers. He had taken a half-dozen or so steps when he was met with a volley of gunfire.

The shots – six in total – were fired by the SO. He would fire an additional three rounds in quick succession within two seconds of the sixth shot when the Complainant, who had rolled off the retaining wall onto the driveway after the first volley, rose or was rising to his feet, the knife still in hand. About 14 seconds after that, the officer fired his last round at the Complainant. The Complainant was again rising to his feet at the time. The Complainant remained on the ground following the tenth discharge.

The officers approached the Complainant and handcuffed him. WO #1 packed his wounds with dressings while waiting for paramedics to attend.

The Complainant suffered multiple gunshot injuries, including wounds to the chest, abdomen, and both legs.

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.

The Complainant was seriously injured in Cambridge by police gunfire on October 15, 2023. 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 injuries.

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, WO #1 and WO #2, were lawfully placed and in the execution of their duties through the series of events leading to the shooting. They were aware of an attack that had reportedly been perpetrated by the Complainant against CW #1, and were within their rights in attending at the scene to do what they reasonably could to investigate the complaint, preserve the peace, and ensure public safety.

With respect to the SO’s gunfire, I am satisfied that the officer fired his weapon intending to protect himself, and very possibly his colleagues, from a reasonably apprehended knife attack at the hands of the Complainant. Though the SO did not interview with the SIU to provide that evidence firsthand, as was his legal right, the proposition is a reasonable inference from the circumstances discerned by the investigation. These included a knife in the Complainant’s hands, the refusal by the Complainant to drop the knife despite the officers’ repeated commands that he do so, and the Complainant attempting to right himself in the vicinity of the officers, knife in hand, following the first and second volley of gunfire.

I am also satisfied that the evidence falls short of reasonably suggesting the gunfire was unwarranted. On each occasion that the SO fired – the first two volleys and the final round – the Complainant presented in a threatening manner with a knife, a weapon capable of inflicting grievous bodily harm or death, and was within, or approaching, striking distance of the officers. On this record, it would appear that the SO’s defensive force was commensurate with the nature of the threat he was attempting to deter. The final shot is perhaps more subject to scrutiny given the length of time that elapsed from the end of the second volley. Arguably, the SO could have used that time to seek a position of cover from which to continue to demand that the Complainant drop the knife and surrender himself. That said, the situation was a highly volatile and dynamic one, and there was the risk of the Complainant turning the weapon and his hostilities on CW #1 and/or CW #2 were the officers to withdraw a distance. In light of these considerations, I am unable to reasonably conclude that the SO acted unreasonably when he chose to comport himself as he did.

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

Date: September 17, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit