SIU Director’s Report - Case # 07-PFD-066
Issued: May 17, 2007
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 Saturday, April 7, 2007 at 1729 hrs, Notifying Officer of the Ontario Provincial Police (OPP) notified the SIU that an hour earlier, a member of the Renfrew detachment of the OPP had shot and fatally wounded 24-year-old Michael John Foster during a confrontation. It was Notifying Officer’s understanding that at approximately 1630 hrs, the OPP had been called to a family disturbance at a location in Renfrew. Upon arriving at the address, the police were confronted by Mr. Foster, who repeatedly refused an officer’s demands to drop at least three knives he was brandishing. Mr. Foster was shot after he threw one of the knives in the direction of the officer, and approached him with the other knives held aloft. Mr. Foster was rushed to a nearby hospital, where he was pronounced dead shortly thereafter.
The investigation
The SIU immediately dispatched four investigators and three forensic identification technicians (FIT) to Renfrew. The first investigator arrived in Renfrew within two hours of being notified. The SIU FIT personnel videotaped and photographed in and around the shooting site, a paved road paralleling a location, and seized both biological and physical evidence, including three knives and a police issued .40-calibre pistol. In addition, with the aid of a Sokkia Total Station, the FIT mapped out the shooting scene.
On April 9, 2007 a FIT attended at Mr. Foster’s post-mortem examination.
The SIU investigators liaised with Notifying Officer and as a result of the preliminary SIU probe, Subject Officer was designated as a subject officer. Subject Officer exercised the protections afforded him by virtue of the provisions of the Police Services Act and declined an SIU request for an interview and/or his duty notebook entries.
The following four members of the OPP were designated as witness officers and after turning over their notes, all were interviewed by the SIU on April 13, 2007:
- Witness Officer #1
- Witness Officer #2
- Witness Officer #3, and
- Witness Officer #4
Upon request, the OPP turned over to the SIU a number of documents and items deemed necessary in furtherance of the investigation.
During the ensuing SIU probe, the following civilian witnesses were interviewed on the dates noted:
- Civilian Witness #1 (April 7, 2007)
- Civilian Witness #2 (April 7, 2007)
- Civilian Witness #3 (April 7, 2007)
- Civilian Witness #4 (April 8, 2007)
- Civilian Witness #5 (April 8, 2007)
- Civilian Witness #6 (April 8, 2007)
- Civilian Witness #7 (April 8, 2007)
- Civilian Witness #8 (April 8, 2007)
- Civilian Witness #9 (April 8, 2007)
- Civilian Witness #10 (April 9, 2007)
- Civilian Witness #11 (April 9, 2007)
- Civilian Witness #12 (April 9, 2007)
- Civilian Witness #13 (April 9, 2007)
- Civilian Witness #14 (April 9, 2007)
- Civilian Witness #15 (April 9, 2007)
- Civilian Witness #16 (April 9, 2007)
- Civilian Witness #17 (April 9, 2007)
- Civilian Witness #18 (April 9, 2007)
- Civilian Witness #19 (April 10, 2007)
- Civilian Witness #20 (April 11, 2007)
- Civilian Witness #21 (April 11, 2007)
- Civilian Witness #22 (April 14, 2007)
- Civilian Witness #23 (April 17, 2007), and
- Civilian Witness #24 (April 17, 2007)
Confidential 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
There are no reasonable grounds in my view to believe that Subject Officer committed a criminal offence in connection with the death of Michael Foster.
Mr. Foster was shot and killed by Subject Officer at about 4:30 p.m. on April 7, 2007. I am satisfied, however, that the officer’s use of force was legally justified pursuant to subsection 25(3) of the Criminal Code.
The justification set out in subsection 25(3) is unavailable unless the officer is engaged in the lawful execution of duty at the time of the force in question and she or he believes on reasonable grounds that a resort to lethal force is necessary to protect against loss of life or grievous bodily harm.
The real question for purposes of the subsection 25(3) analysis is whether Subject Officer reasonably believed it was necessary to shoot Mr. Foster; there is no dispute that the officer was engaged in the lawful discharge of his duties at the time, having arrived at the scene in response to a domestic disturbance call and being confronted by an assailant armed with knives.
I am satisfied that a reasonable person in Subject Officer’s position at the time of the shooting could have believed it necessary to shoot Mr. Foster to thwart a danger to life and limb. A fairly clear picture emerges from the weight of the witness evidence regarding the events in question. Almost immediately upon his arrival at the scene, where he knows that Mr. Foster has been embroiled in a violent domestic disturbance, a belligerent Mr. Foster armed with three knives confronts Subject Officer. Mr. Foster approaches the officer steadfastly. He ignores Subject Officer’s repeated commands to drop his weapons and desist, instead choosing to goad the officer with taunts of “shoot me.” The officer retreats across the roadway all the while, trying to maintain a safe distance. He unholsters and points his firearm at Mr. Foster proximate to the time the latter throws one of the knives onto the roadway in the officer’s general direction. That act does not come close to harming the officer, but its import should not be underestimated. Common sense tells us that a knife thrown in the direction of another has the potential to inflict grave harm, and Mr. Foster has just established he is prepared to do just that, notwithstanding what some might regard as the modest size of the knife and the fact it was not flung with any particular force. Any reasonable person, I am satisfied, would have apprehended a marked escalation in the danger posed by Mr. Foster at this time.
In any event it appears clear that the officer perceived it as such in that it appears that he drew his weapon in response. He warned Mr. Foster that he would shoot him if he did not stop. Regrettably, none of this deterred Mr. Foster, who continued to advance upon the officer. As Mr. Foster came to within 10 feet of the officer
While the events unfolded quickly upon Subject Officer’s arrival, I believe it is fair to say the officer acted with restraint throughout. Though confronted with a man armed with three knives, he did not immediately draw his firearm; doing so only after one of the knives was thrown in his direction. Subject Officer issued repeated commands and retreated backwards for some distance, shooting only after Mr. Foster had approached to within some 10 feet and he (the officer) had reached the end of the roadway. I pause to note, whether or not a Taser deployment might have been an appropriate use of force in this case, no such device was available to either of the officers on scene. In my view, Subject Officer’s life was in clear peril at the time he shot Mr. Foster, if not sooner. To have waited any longer, in my view, would have exposed the officer’s life to an unreasonable risk.
When one also considers the broader narrative that surrounded this event, the case for justification moves from the persuasive to the compelling. Mr. Foster had just been embroiled in a violent domestic disturbance fueled by his alcohol intoxication and marked by an apparent willingness to resort to firearms, knives and other weapons against family members. How much of this would have been known to the officer is unclear as Subject Officer declined to provide any statements. It appears likely though the officer would have known parts, if not all, of this story via police radio communications en route to the scene. Regardless, all of this evidence, whether appreciated by the officer or not, is also indication of Mr. Foster’s propensity for violence and further signals the significant danger Subject Officer was in at the time: see R. v. Scopelliti (1981), 63 CCC (2d) 481. In all the circumstances, both immediate and contextual, there is no doubt in my mind that a reasonable person in the officer’s position could have believed it necessary to shoot.
The only remaining consideration is whether the officer actually believed it was necessary to shoot Mr. Foster to prevent death or grievous bodily harm. Since the officer chose not to provide any statements to the SIU, there is no direct evidence on this vital consideration. Accordingly, if in fact this mindset prevailed at the time of the shooting, I must find that it did inferentially from other evidence. Regrettably, though officers in these circumstances have every right to remain silent and to not have their silence used against them, the result is that this office is left with less than best evidence on a critical element of the justification analysis. While I must respect the domain of the trier-of-fact and limit my deliberations to threshold considerations, this office in my view must scrutinize claims of justification strictly, particularly where the force in question was deadly force. Applying this strict standard, I am satisfied that this is one of those cases where the inference may safely be drawn. In my view, the same circumstances canvassed in respect of the reasonableness of the officer’s resort to deadly force provide persuasive evidence that Subject Officer actually believed it was necessary to shoot Mr. Foster to protect himself from death or grievous bodily harm. In fact, I find it hard to imagine that the officer could have believed otherwise.
This file is closed.
Date: May 17, 2007
James L. Cornish
Director
Special Investigations Unit