Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release 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 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• Subject Officer name(s);
• Witness Officer name(s);
• Civilian Witness name(s);
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into serious injuries sustained by a 22-year-old man (the “Complainant”).

Notification of the SIU

On April 11, 2019 at 1:05 a.m., the Greater Sudbury Police Service (GSPS) notified the SIU of the Complainant’s firearm-related injury.

The GSPS reported that on April 10, 2019, at about 10:49 p.m., GSPS tactical police officers along with Ontario Provincial Police (OPP) police officers conducted a high-risk vehicle stop in the Esso gas station location at Regent Street, Sudbury. The vehicle stop was in relation to a man wanted for robbery. During the stop, a GSPS tactical officer discharged his firearm several times, striking the Complainant in the leg and arm. The Complainant was transported to Health Sciences North (HSN) where he was presently undergoing surgery for his injuries. A second occupant in the vehicle (a woman) may have suffered a broken finger; however, her injuries were not confirmed. The gas station lot was secured.

The Scene

The scene was a parking area just outside the store of the Esso gas station located on Regent Street, Sudbury.

The following story emerges from the weight of the evidence collected by the SIU. On April 10, 2019, the OPP contacted the GSPS to seek their assistance. They were tracking a white pickup truck heading north toward the Sudbury area. Its occupants, the Complainant and his passenger, CW #1, were wanted in connection with a recent armed robbery and firearms offences. The GSPS were cautioned that the Complainant was suspected of having a shotgun in his possession and was known to have fled from attempted police stops in the past, striking police vehicles in the process.

The GSPS tactical team was mobilized and met at the police station to discuss the situation and plan their intervention. Officers in unmarked tactical trucks would deploy ahead of the suspects’ path of travel and intercede to take them into custody after they had come to a stop.
At about 10:45 p.m., the tactical team received word from the OPP, whose officers were still tailing the Complainant and CW #1, that they were traveling north on Long Lake Road in Sudbury toward the Four Corners intersection. The tactical officers convened in the area. WO #4, WO #12 and WO #13 were together in a tactical truck, and WO #1, WO #2 and the SO in another. They followed the pickup truck as it turned into Plaza 69 on the northwest corner of the intersection before exiting to cross Regent Street into the Esso gas station.

As the pickup truck parked with its front pointed toward a propane gas tank display cabinet against the wall of the gas station shop, the decision was made to box it in with the use of the tactical vehicles. Arriving first on scene some 30 seconds after the pickup truck came to a stop, WO #12 drove to within a metre of the vehicle’s rear. Seconds later, trucks driven by WO #1 and WO #11 came to a stop with their front ends adjacent to the pickup on its passenger and driver sides, respectively. The officers exited their vehicles with guns drawn, surrounded the pickup truck and ordered its occupants to show their hands.

Realizing that he had been cornered by the police, the Complainant started his engine and accelerated rearward directly into the front of WO #12’s vehicle. The force of the impact sent the tactical vehicle backward a short distance. The Complainant continued to accelerate backward against the tactical truck, spinning his wheels, but failed to create any further space between the vehicles. Some 15 seconds after the initial collision, the Complainant accelerated forward and crashed into the propane gas tank display. Immediately thereafter, an SUV, with the OPP officers who had followed the suspects into Sudbury and onto the gas station, used its front end to push the rear passenger side of the pickup truck about a metre or more. Seconds after that, the SO opened the driver’s door whereupon the Complainant emerged from the pickup truck and went to the ground. The Complainant was subsequently handcuffed by WO #12 and taken to hospital having sustained bullet wounds to his left arm and leg. CW #1 was also removed from the pickup truck and arrested.

The SO was the only officer who discharged his firearm – a C8 rifle. The weight of the evidence, including a count of the rounds contained in his firearm after the shooting (25), information about the customary number of rounds loaded by tactical team officers in their C8 rifles (28) and the number of spent cartridge cases found at the scene (3), indicates that the SO fired his weapon three times. While the evidence regarding the officer’s position at the time the shots were fired is imprecise, it suggests the SO was standing in front of the pickup truck when he first fired and had travelled to the driver side of the vehicle near the driver’s door when the second two rounds were let off in quick succession.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

Section 34, Criminal Code -- Defence of person - Use of threat of force

(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.

(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.

In the evening of April 10, 2019, the Complainant was in a pickup truck with his girlfriend parked at an Esso gas station on Regent Street in Sudbury when his vehicle was suddenly surrounded by the police. Officers with the GSPS had followed the truck to the location intending to arrest its occupants. Within seconds of the officers’ arrival, the Complainant was shot and wounded by gunfire discharged by the SO – the subject officer in the SIU investigation that ensued. 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.

Whether considered pursuant to section 25(3) of the Criminal Code, setting out the limits of permissible force used by police officers that is intended or likely to cause death or grievous bodily harm, or section 34, prescribing the boundaries of justifiable force in the defence of oneself or another from an actual or threatened attack, I am satisfied on reasonable grounds that the SO acted lawfully when he discharged his firearm and caused injury to the Complainant. The former provides police officers with immunity from criminal liability provided the force in question was reasonably necessary in aid of an act that they were required or authorized to do by law and they acted under a reasonable apprehension that said force was necessary to meet a threat of death or grievous bodily harm to oneself or another. The latter requires that the defensive act be reasonable with reference to the relevant circumstances, including the nature of the force or threat, whether there were other means to protect oneself or another, and whether any party to the incident used or threatened to use a weapon.

As was his legal right, the SO declined to be interviewed by the SIU or authorize the release of his notes. The SIU is therefore without first-hand information regarding the officer’s state of mind at the time he fired his rifle. That said, I accept that the SO feared for his life when he discharged his weapon based on the circumstantial evidence and an utterance he made to a fellow officer in the wake of the incident.

A GSPS officer was among the tactical officers deployed that night. He, together with two team members, arrived at the Esso station in their vehicle moments after the shooting had occurred. In an exchange with the SO, says the GSPS officer, the officer told him he was scared he was going to be run over by the pickup truck and believed he had to stop the Complainant. I have no reason to doubt the reliability of the GSPS officer’s evidence. Nor do I doubt that the SO’s statements accurately reflect how he felt at the time of the shooting. While potentially self-serving, those statements attract a level of authenticity for their relative contemporaneity with the events in question. Their reliability is further bolstered by the perceptions of similarly situated officers present at the time. For example, several officers in and around the pickup truck when the shooting happened believed the Complainant represented a real and present risk to their lives and safety should he manage to free his vehicle from the police blockade. Specifically, they feared that the Complainant would strike an officer with the pickup truck, particularly those situated on the driver side of the vehicle which was his most likely escape route. To reiterate, the SO was positioned on the driver side of the pickup truck in close proximity to the vehicle.

The analysis turns to the reasonableness of the SO’s apprehensions and the action he took. The officer was positioned in front of the pickup truck when he first shot at the Complainant through its windshield. The Complainant was in the process of accelerating rearward into the tactical truck behind him at the time. That action would have given the officers the impression, and did in fact so impress the witness officers who spoke with the SIU, that the Complainant was bent on escaping police custody by ramming his truck free of the police vehicles. While one might question the wisdom of taking up such a vulnerable position, the fact remains that the SO was completely exposed to an immediate and potentially lethal risk in the event the Complainant decided to accelerate forward. The shot did not incapacitate the Complainant and, as it turns out, he did in fact travel forward mere seconds after the SO’s initial discharge, smashing into the propane gas tank display cabinet with significant force. Fortunately, the SO had re-positioned himself beside the driver side of the truck by that point. In the circumstances, I have no difficulty in concluding that the SO’s beliefs and corresponding action in relation to the first discharge were reasonable.

More difficult is the question of reasonableness in connection with the second two shots discharged by the SO. These were fired at close range into the driver’s seat compartment of the pickup truck some 16 seconds after the first shot. At that time, the SO was not in front of the pickup truck; he was standing along the driver side within a metre or so of the driver’s door. Arguably, he was no longer in any imminent peril by the movement of the truck. In the circumstances, was a resort to lethal force and the SO’s belief in its necessity reasonable? I believe they were.

The law countenances an officer’s mistaken belief in the necessity of force of one kind or another so long as the belief was reasonably held. That is, might a reasonable person in the officer’s shoes have been similarly mistaken? Moreover, the law does not require that officers caught up in volatile and dangerous situations measure their responsive force with precision; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. CA). Consider the SO’s situation. He would have been briefed that the Complainant was considered armed and dangerous. He was wanted for armed robbery, suspected of having a shotgun in his possession and known for forcing police vehicles out of the way during attempted stops. As the SO left his tactical truck and moved toward the pickup truck, it would have become immediately clear that the Complainant had no intention of surrendering peacefully. He had rammed the police vehicle behind him around the time the SO initially discharged his weapon and continued to operate the pickup truck following the first shot despite armed police officers ordering him to stop at gunpoint. In fact, it appears the pickup was accelerating forward when the SO let off two additional rounds in quick succession into the driver’s door window just before it smashed into the propane gas tank display.

Was retreat an option? Perhaps, but I am unable to find fault with the SO’s decision to not give way as the Complainant attempted to maneuver out of the police barricade. The Complainant had in recent days engaged in a course of violent and reckless behaviour that threatened the lives and safety of the public around him. His conduct on the day in question when faced with an overwhelming show of force by the police was no different. Indeed, I am persuaded that the Complainant would not have willingly desisted but for the SO’s intervention. I am further persuaded that the Complainant would have remained a grave risk to public safety had he managed to escape. On this record, the officers, including the SO, were within their rights in seeking to effect the Complainant’s arrest as soon as possible and to stand their ground in doing so.

There is also the matter of the sawed-off shotgun that was recovered from the pickup truck following the shooting. To be clear, there is no indication in the evidence that the Complainant ever wielded the firearm during the incident. None of the police witnesses questioned by the SIU mentioned seeing a gun in the Complainant’s possession and the SO said nothing of a firearm when explaining to a GSPS officer why he did what he did. Nevertheless, most if not all of the witness officers who were present at the time alluded to the likely presence of a shotgun in the pickup truck in describing the danger they were facing. The shotgun’s presence in the pickup truck gives credence to the officers’ concerns. I am satisfied that the same concerns would have weighed on the SO’s mind to some degree as he approached the truck.

While it may be in the cold light of hindsight that the SO’s life was not in any immediate danger when he fired his second and third rounds, the officer’s belief to the contrary and his corresponding firearm discharges were in my view reasonable nonetheless. On the aforementioned record, confronted with a violent and armed individual determined to escape police apprehension and seemingly without any qualms about using his pickup truck to effect his purpose, the SO had good cause in the heat of the moment to believe that the truck’s continued operation represented a threat to life and limb necessitating the use of lethal force to disable its driver.

For the foregoing reasons, I am unable to reasonably conclude that the shooting was anything other than lawful force in aid of the Complainant’s arrest pursuant to section 25(3) and/or section 34 of the Criminal Code. Consequently, there is no basis to proceed with charges in this case and the file is closed.


Date: March 30, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit