Explanatory note

The Ontario Government is releasing past SIU Director Reports (submitted to the Attorney General prior to May 2017) that include fatalities involving a firearm, physical altercation, and/or use of conducted energy weapon, or other extensive police interaction that did not result in a criminal charge.

Justice Michael H. Tulloch made recommendations about the release of past SIU Director Reports in the Report of the Independent Police Oversight Review, released on April 6, 2017.

Justice Tulloch explained that since past reports were not originally drafted for public release they may have to be edited substantially to protect sensitive information. He took into account that confidentiality assurances were given to various witnesses during the course of SIU investigations, and recommended that some information be redacted in the interests of privacy, safety, and security.

As recommended by Justice Tulloch, this explanatory note is being provided to assist the reader’s understanding of why certain information is redacted in these reports. Notes have also been inserted throughout the reports to help describe the nature of the information that was redacted and why it was redacted.

Law enforcement and personal privacy information considerations

Consistent with Justice Tulloch’s recommendations and guided by section 14 of the Freedom of Information and Protection to Privacy Act (FIPPA) (relating to law enforcement information), portions of these reports have been removed to protect:

  • confidential investigative techniques and procedures used by the SIU
  • 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
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Consistent with Justice Tulloch’s recommendations and guided by section 21 of FIPPA (relating to personal privacy information), personal information, including sensitive personal information, has also been redacted, except that which is necessary to explain the rationale for the Director’s decision. 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
  • other identifiers which are likely to reveal personal information about individuals involved in the investigation, including in relation to children
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Personal health information

Information related to the personal health of individuals that is unrelated to the Director’s decision (taking into consideration the Personal Health Information Protection Act, 2004) has been redacted.

Other proceedings, processes, and investigations

Information may have also been excluded from these reports 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.

Director’s report

Notification of the SIU

On Wednesday, March 7, 2007 at 0920 hrs, Notifying Officer of the Sarnia Police Service (SPS) notified the SIU that within the last hour, a member of the SPS had shot and fatally wounded 35-year-old Michael Douglas. It was Notifying Officer’s understanding that on March 7, at approximately 0418 hrs, Mr. Douglas, an involuntary patient at the local hospital’s psychiatric ward, went AWOL from that ward. Shortly thereafter, Mr. Douglas barricaded himself in the basement of a location. For the next three to four hours, all attempts by the SPS to peacefully resolve the standoff with Mr. Douglas failed, and ultimately Mr. Douglas escaped through a basement window.

Fleeing on foot, Mr. Douglas ran onto nearby a location, where he got behind the wheel of a van left idling in the driveway of a location. Two SPS officers, Subject Officer, and Witness Officer #6, attempted to arrest Mr. Douglas before he could drive off. A violent struggle ensued between Mr. Douglas and the two officers. The officers were unable to prevent Mr. Douglas from shifting the van into reverse. The van, with Subject Officer hanging on to the driver’s door/front compartment, then careened onto snow-covered a location, spinning clockwise 180 degrees, before halting momentarily. Mr. Douglas then shifted into drive, and accelerated eastbound on the street in the direction of Subject Officer. Subject Officer, who had lost his grip on the van and fallen to the street during the van’s gyration, fired his service pistol twice, striking Mr. Douglas in the left side of the chest. The van, with the mortally wounded Mr. Douglas behind the wheel, traveled for another 500 metres before it careened into a snow bank. Mr. Douglas was taken to a hospital, where he was later pronounced dead.

The investigation

The SIU immediately dispatched five investigators and three SIU forensic identification technicians (FIT) to Sarnia. The first SIU personnel arrived in the city within two hours.

The SIU FIT initially focused on two crucial areas: (1) the shooting site just outside of a location and (2) opposite a location, where the van came to a final stop. Both scenes were videotaped and photographed. The FIT collected ballistic evidence, including two .40 calibre cases, as well as physical and biological evidence from both sites.

The FIT also entered a location, where they photographed and videotaped the basement, and seized evidence deemed relevant to the investigation. The FIT also attended Mr. Douglas’s post mortem examination.

The SIU investigators liaised with the SPS, which allowed them to identify potential police witnesses. The SIU investigators also located numerous civilian witnesses and carried out an extensive canvass of a location, encompassing some 70 residences.

The van driven by Mr. Douglas was seized and sent to the Centre of Forensic Sciences (CFS) for examination by the biology, chemistry and firearms sections. In addition, the uniforms worn by Subject Officer and Witness Officer #6 underwent microscopic examination for glass and fibre evidence.

As a result of the preliminary SIU probe, Subject Officer was designated as a subject officer. Subject Officer declined to provide a statement to the SIU, as was his right, but did turn over his duty notes to the SIU

In addition, the following members of the SPS were designated as witness officers. All of the officers, except Witness Officer #7, were interviewed on March 8, 2007 (March 9 for Witness Officer #7) and provided their notes:

  • Witness Officer #1
  • Witness Officer #2
  • Witness Officer #3
  • Witness Officer #4
  • Witness Officer #5
  • Witness Officer #6, and
  • Witness Officer #7

On May 15, 2007, the SIU re-interviewed Witness Officer #6, Witness Officer #3 and Witness Officer #7.

Upon request, the SPS turned over requested material and documents to the SIU deemed necessary in furtherance of the investigation.

During the SIU probe, the following civilian witnesses were interviewed:

  • Civilian Witness #1 (March 9, 2007)
  • Civilian Witness #2 (March 8, 2007)
  • Civilian Witness #3 (March 8, 2007)
  • Civilian Witness #4 (March 8, 2007)
  • Civilian Witness #5 (March 8, 2007)
  • Civilian Witness #6 (March 8, 2007)
  • Civilian Witness #7 (March 8, 2007)
  • Civilian Witness #8 (March 9, 2007)
  • Civilian Witness #9 (March 8, 2007)
  • Civilian Witness #10 (March 9, 2007)
  • Civilian Witness #11 (March 7, 2007)
  • Civilian Witness #12 (March 9, 2007)
  • Civilian Witness #13 (March 7, 2007)
  • Civilian Witness #14 (March 9, 2007)
  • Civilian Witness #15 (March 9, 2007)
  • Civilian Witness #16 (March 7, 2007)
  • Civilian Witness #17 (March 8, 2007)
  • Civilian Witness #18 (March 8, 2007)
  • Civilian Witness #19 (March 14, 2007)
  • Civilian Witness #20 (March 8, 2007), and
  • Civilian Witness #21 (March 9, 2007)

An additional 47 people were interviewed during the canvassing process. They reported that they neither witnessed nor heard anything relevant to the shooting incident.

Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence (Law Enforcement and Privacy Considerations)

Director’s decision under s. 113(7) of the Police Services Act

Upon careful review of this extensive investigation, it is my view that there are no reasonable grounds to believe Subject Officer committed a criminal offence in connection with the shooting and death of Michael Douglas on March 7, 2007 in Sarnia.

The tragic series of events that resulted in Mr. Douglas’s death were the culmination of a precipitous spiral downward in his mental health over the last couple of weeks of his life. For whatever reason, Mr. Douglas began to lose touch with reality during this period, seeming disoriented and oblivious to his surroundings from time to time. On March 5, 2007, Confidential Witness Statements he was admitted to hospital as an involuntary psychiatric patient Confidential Witness Statement. During his stay at hospital, it appears Mr. Douglas may have expressed violent intentions to staff. In the early morning hours of March 7, 2007, Mr. Douglas made good his escape from hospital when he activated a fire alarm, causing the locked doors of the psychiatric ward to unlock. He proceeded to break into the residence of Civilian Witness #11 at a location, where he appeared confused and asked for help. Civilian Witness #11 called the police.

Several SPS officers responded and attempted to apprehend Mr. Douglas peacefully. When it appeared Mr. Douglas was not responsive, one of the officers reached out to grab his arm. This triggered a violent reaction from Mr. Douglas and a protracted physical struggle ensued between him and the officers. One of the officers sprayed Mr. Douglas’s face with pepper spray, but it had no effect. Another of the officers kicked or kneed Mr. Douglas, but this too failed to subdue Mr. Douglas. During the struggle, Mr. Douglas injured at least one and possibly more of the officers. He eventually broke free and fled down a flight of stairs into the basement of the home. The officers followed him downstairs, but quickly retreated when they observed Mr. Douglas armed with a golf club and swinging it in their direction.

What followed was a standoff off of some three to four hours, during which time members of the ERT, including Subject Officer, entered the house. The ERT leader on the scene, Witness Officer #3, ventured downstairs at an early point in the standoff with intentions of possibly using his Taser to take Mr. Douglas into custody. That plan, however, failed when he was struck in the leg by the golf club swung by Mr. Douglas, forcing the officer to withdraw back to the main floor. Negotiations followed during which the police used a variety of tactics in an effort to have Mr. Douglas peacefully surrender. Mr. Douglas’s father was brought in at one point to speak to his son, as was a mental health worker. As it turned out, these efforts proved in vain as Mr. Douglas remained unresponsive but armed throughout with the golf club in a threatening posture.

At around 0800 hours, much to the officers’ surprise, Mr. Douglas squeezed through a basement window and made his way outside. The officers had been led to believe the window was nailed shut. No security perimetre had been established around the home.

Mr. Douglas’s escape was quickly noticed and a number of ERT officers chased after him. Mr. Douglas ran south towards a location with Subject Officer and others in pursuit. It was during this foot chase that Witness Officer #3 discharged his Taser at Mr. Douglas, but missed his target. Mr. Douglas spotted a van idling in the driveway at a location and ran towards it. He managed to enter the van through the driver’s door, despite being challenged by a resident at that address. Just then Subject Officer arrived at the driver’s side door.

Subject Officer grabbed onto Mr. Douglas and attempted to forcibly remove him through the open driver’s door. Witness Officer #6, arriving shortly after, joined in the struggle. Mr. Douglas resisted strenuously and eventually managed to place the van in reverse and drive down the driveway. Witness Officer #6 indicates he attempted to get out of the way of the open door as the van reversed, but was sent spinning when the door struck his right leg. As the van continued its reverse, he observed Subject Officer’s feet dragging alongside the vicinity of the driver’s door. According to Witness Officer #6, the van spun clockwise when it reached the road and he could no longer see Subject Officer. He feared for his colleague’s life at that point, believing he might have been run over by the van. After the van stopped spinning, Witness Officer #6 heard its engine revving and tires spinning. At that moment, Witness Officer #6 states he made a decision to use whatever force was necessary to stop the van. He ran to the passenger door of the van and pulled it open, intending to shoot Mr. Douglas. Just then the van moved forward and he along with it. A moment later, according to Witness Officer #6 he heard two quick gunshots, and he let go of the van.

Subject Officer, from the other side of the van, fired the gunshots. According to Subject Officer’s notes, as the van initially started its rearward movement down the driveway, he found himself jammed between the door and the van. He was hanging onto Mr. Douglas with half his body being dragged outside of and alongside the vehicle. As the van picked up speed, Subject Officer says he felt his legs dragging under the vehicle. Believing he might be run over and killed, Subject Officer indicates he feared for his life at this point and hung onto Mr. Douglas with all his might. He was unable to maintain his grip, however, as the van entered onto the roadway and began to spin. According to Subject Officer, he fell onto the road and was almost struck by part of the van as it continued to spin. He felt disoriented but says he scrambled to his feet fearing the spinning van might yet run him over. As he was getting to his feet, Subject Officer says he saw the van turned in his direction and coming “on an angle”. It was at this instant, the officer explains, in his notes, that he believed his life was in grave danger and he made the decision to shoot the driver. Subject Officer withdrew his firearm and shot twice at the driver as he stepped backwards away from the van. The van turned away from his direction and continued east down a location.

Subsection 25(3) of the Criminal Code provides that an officer is justified in using lethal force to effect a lawful purpose where the officer believes, on reasonable grounds, that the force is necessary to preserve oneself or others from death or grievous bodily harm. It would have been better to hear directly from Subject Officer regarding his state of mind at the time of the shooting. While his notes constitute direct evidence of his mindset at the time, they do not carry the same weight, untested as they are by the interview process. That said, the notes clearly reflect that the officer believed it necessary to shoot Mr. Douglas to thwart a lethal threat. Furthermore, the scenario outlined in the officer’s notes is, by and large, corroborated by the physical evidence left at the scene.

The question is whether that expressed belief is a credible one. Having carefully examined all of the surrounding circumstances, I am satisfied there is no good reason to disbelieve Subject Officer. His evidence around the timeframe of the shooting accords with the weight of the witness evidence in material respect. For example, Witness Officer #3, who was in the vicinity of the shooting at the time, indicates that he observed the van spinning on the roadway with Subject Officer hanging onto the driver. According to Witness Officer #3, he feared that Subject Officer might be run over by the van at this time. He looked away momentarily and then looked back after he heard two gunshots to see the van traveling east down a location. Witness Officer #6, who was even closer to the action at the time of the shooting, also indicates that the van spun as it backed onto a location and that he too feared that Subject Officer might have been run over. Importantly, Witness Officer #6 indicated that he heard two quick gunshots as the van accelerated forward after completing its spin on the roadway. Confidential Witness Statements

The mindsets of other officers at the scene are also probative of the question. To reiterate, both Witness Officer #3 and Witness Officer #6 each indicated they feared for Subject Officer’s life and had decided to shoot Mr. Douglas, believing it necessary to do so, at around the same time that Subject Officer shot. While it must be said that this evidence would have been more persuasive had these officers been similarly situated to Subject Officer at the time, the fact remains they were in the vicinity and closely connected to the events as they unfolded. In these circumstances, what they believed at the time is some evidence of whether Subject Officer shared the same belief.

Finally, Subject Officer’s evidence is also supported in large measure by the forensic evidence. That evidence, as detailed in the body of this report, is consistent with two shots having been fired by Subject Officer through the closed driver’s window while Subject Officer was in close proximity to the van and, as the van moved forward, positioned in front of or to the side of Mr. Douglas with respect to the first shot and, with respect to the second shot, positioned to the side of Mr. Douglas. In assessing the location of the entrance wounds on Mr. Douglas’ body I have considered the fact that this is a dynamic situation and there is time required of everyone (including trained ETF officers) to perceive a threat and then react to that threat and all the while the parties involved in the scenario are not remaining static.

An honest belief in the necessity of the force used, however, is not sufficient to ground justification under subsection 25(3). What is also required is that the belief be based on reasonable grounds. The inquiry is an objective one, namely, would a reasonable person in the same situation as Subject Officer have believed it necessary to shoot Mr. Douglas in the interests of self-preservation. In my view, a reasonable person could have shared that belief.

The case law dictates that the reasonableness inquiry must be informed by an understanding of the surrounding circumstances as perceived by the person whose use of force is in question. Accordingly, as I have accepted the credibility of Subject Officer’s account of the events in question, it is that account that must in large measure form the factual underpinnings of the liability analysis. Subject Officer hung on to Mr. Douglas with half his body being dragged alongside a moving vehicle. Mr. Douglas ought to have known Subject Officer was in a dangerously precarious position, but gave every indication of making well his escape whatever the consequences to the officer. As Subject Officer lost his grip and fell onto the roadway as the van spun, nearly striking him in the process, he believed himself at risk of being run over. He scrambled to his feet and observed the van turned in his direction and moving forward. In close proximity to the van, moving towards him and being operated by an individual intent on escape, the officer had good reason at this moment to believe he would be struck by the van. These are the immediate facts of central concern to the reasonableness inquiry, but the broader context is also important: see R v Lavallee, 1990 1 SCR 852. By the time of the shooting, Subject Officer knew that Mr. Douglas had escaped from a psychiatric ward where he had been admitted involuntarily, that he had broken into a third party’s residence and violently resisted his arrest at the hands of the responding officers, that he had proven impervious to pepper spray and assaulted officers with a golf club, and that he had recently expressed homicidal thoughts to hospital staff.

In these circumstances, I am satisfied that a reasonable person in the officer’s position, faced with a demonstrably violent Mr. Douglas, having just been thrown from the van and almost struck by it, in close proximity to the van as it moved forward and with only a split second to decide what action to take, would have believed it necessary to shoot Mr. Douglas. It might be argued that the officer was not in fact in the direct line of the van as it accelerated forward on a location. Indeed, it may well be, as the reconstruction evidence suggests, that Subject Officer was in a lateral position to the driver by the time he discharged his weapon the second time (and possibly even the first time) and not in front of the driver and, presumably, the van. Be that as it may, it would be going too far to place any weight on too fine a parsing of the incident in this fashion. The situation was, to say the least, an incredibly stressful and dynamic one. The officer himself admits to being disoriented at the time, as might reasonably be expected. Whether the officer was in fact in line with the direction of the vehicle or off to the side at the moment of the actual shots, and I pause to emphasize that the forensic evidence is consistent with either interpretation with respect to the first shot, what is important is that the officer perceived the van to be advancing upon him when he decided to discharge his weapon. When I consider the stress and volatility of the situation in which the officer found himself, the inherent lag between a decision to react and the reaction, and the principle of the common law that officers are not expected to measure their degree of responsive force to a nicety, I find that the officer’s perception was a reasonable one and that his use of force fell within the latitude prescribed by the criminal law.

Reference to Confidential Witness Statements

These issues are valid in my view but remain outside of the mandate of this Unit to investigate.

This file is closed.

Original signed by

James L. Cornish

Director

Special Investigations Unit

Date: January 26, 2008