News Release

News Release

SIU Concludes Firearm Injuries Investigation in Newmarket

Case Number: 14-OFI-163   

Mississauga (18 June, 2015) --- The Director of the Special Investigations Unit (SIU), Tony Loparco, has concluded that there are no reasonable grounds to charge any York Regional Police (YRP) officer with a criminal offence in relation to the injuries sustained by a 48-year-old man in July of 2014.

The SIU assigned six investigators and three forensic investigators to probe the circumstances of this incident. As part of the investigation, four witness officers and 15 civilian witnesses were interviewed. A forensic examination of the scene and exhibits was conducted (including an analysis of the 12 gauge shotguns that were used and several spent shotgun shells located at the scene), and a forensic analysis was done on the complainant’s cellular phone. In addition, the SIU accessed the YRP Communications Recording and in car video recordings that captured parts of the interaction. Both subject officers declined to participate in an SIU interview and did not provide a copy of their duty notes, as is their legal right.

The SIU investigation found that the following events took place on Tuesday, July 22, 2014:

• Shortly after midnight, an individual called 911 to report that a man with a gun was shooting out windows at the rear of a home on Davis Drive. The caller was later identified during this investigation as being the complainant.
• Five YRP officers, including the two subject officers, responded to the intersection of Lorne Avenue and Calgain Road in separate cruisers. Two police officers began slowly driving their cruisers west on Calgain Road, which leads to the rear of Davis Drive. Suddenly, both cruisers stopped and the drivers reversed their vehicles eastbound back towards their fellow officers as a result of seeing a man walking towards them with a gun in his hand. 
• All of the officers, each armed with long guns (four shotguns and one rifle), exited their cruisers and took cover behind various objects.
• The videos show the man continued walking east on the north sidewalk of Calgain Road at a brisk, determined pace. His arms and hands were down by his sides and there was a black pistol in his right hand. The officers pointed their firearms at the man. The man walked off the north sidewalk onto the roadway and walked east towards the passenger side of one of the abandoned cruisers. Multiple officers shouted commands for the man to stop, but he did not acknowledge them and made no effort to comply with their commands. As the man continued to advance on the officers, he raised the pistol in his right hand and pointed it at the officers, waving it back and forth.  
• It appears that four of the officers fired their shotguns at approximately the same time. The evidence established that one of the officers fired his weapon and missed; another officer’s weapon misfired and the two subject officers’ weapons fired and projectiles struck the complainant. The man was struck with shotgun pellets in the left side of his face, ear, neck, head and shoulder and fell to the roadway, dropping his pistol as he did so. One of the officers moved in and handcuffed the man.  

The investigation determined that days before the incident, the man had made plans to commit suicide by having a police officer shoot him on the day of the confrontation. He shared this plan with other individuals just minutes before the incident unfolded much as he had intended. After he had been shot, the man admitted to numerous individuals about what his intentions had been.

Director Loparco said, “It is clear from several provisions of the Criminal Code of Canada (34(1), 34(2),35) that what matters in assessing whether criminality exists are the circumstances perceived by the subject officers, not the man’s state of mind at the time. However, while that is true as far as it goes, the fact that the man was motivated by suicidal intentions can be important in understanding what precisely occurred and the reasonableness of the response. It lends context and credence, for example, to the eyewitness accounts and video evidence that portrayed the man as approaching the officers with single-minded purpose, ignoring all entreaties to stop, seeming bent on provoking a lethal confrontation at all costs. With this context in mind, one can better appreciate the subjective fear for their safety and the safety of their fellow officers that was expressed by officers who all indicated to the SIU that the man was about 1 ½ car lengths west of the officers when the first shot rang out. Although neither subject officer submitted to an interview, the circumstances existing at the time suggest that the same mindset may safely be inferred.”

Director Loparco continued, “In coming to my decision on this question, I looked at the conduct of the other witness officers who were in basically the same position as the subject officers and who would also have been assessing whether their lives or those of their colleagues were in danger making necessary a resort to lethal force. I note importantly that four of the five officers who were in the same general position at the crucial moments of the incident and would have very likely had very similar perspectives and assessments of the risk fired or tried to fire their weapons at approximately the same instant. The fifth officer said he ducked behind a cruiser when he heard a shot and within half a second of his looking up, the man was laying on the ground. In essence the event was basically over.

“The man’s ‘pistol’ was later found to be a black plastic PX Storm .177 calibre Beretta gas powered pellet pistol which very closely resembled an authentic Beretta semi-automatic pistol.  There was no ammunition or gas canister in the pistol at the time it was recovered at the scene of the incident. While the man was not pointing a real firearm during the incident not one of the officers was able to make out the difference at that time. However, none of them can be faulted for failing to tell the difference in this case. The man’s pellet gun when photographed under lights looks like an authentic 9mm Beretta. In the dark, as the in car cameras reveal, it would be indistinguishable from a genuine firearm. When the man neared the officers’ position at the northeast corner of Calgain Road and Lorne Avenue, his right arm raised and ‘gun’ pointed and waving in their direction, all of the officers had every reason to believe their lives were in imminent risk. Having ignored multiple calls to stop and drop his weapon, the officers were well within their rights to shoot the man as he neared to within a car length or two of their locations.”

Director Loparco concluded, “In the final analysis I am satisfied on the evidence that each of the subject officers would have reasonably believed that they had to resort to deadly force to protect themselves and their colleagues and were therefore justified in discharging his firearm. Therefore, there are no grounds to proceed with charges in this case.”

The SIU is an independent government agency that investigates the conduct of officials (police officers as well as special constables with the Niagara Parks Commission and peace officers with the Legislative Protective Service) that may have resulted in death, serious injury, sexual assault and/or the discharge of a firearm at a person. All investigations are conducted by SIU investigators who are civilians. Under the Special Investigations Unit Act, the Director of the SIU must

• consider whether the official has committed a criminal offence in connection with the incident under investigation
• depending on the evidence, cause a criminal charge to be laid against the official where grounds exist for doing so, or close the file without any charges being laid
• publicly report the results of its investigations