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 Friday, March 6, 2009 at 2005 hrs, Notifying Officer of the Ottawa Police Service (OPS) notified the SIU of a firearm death that occurred at 1950 hrs that evening. Notifying Officer reported that a lone male robbed the Toronto Dominion (TD) Bank at 562 Montreal Road and was subsequently fatally shot in a confrontation with two OPS officers. The involved officers were segregated and writing their notes atOPS headquarters.

The investigation

Seven SIU investigators and two forensic investigators were dispatched, arriving at the scene at 2115 hrs.

According to information from Notifying Officer and Counsel, counsel, five officers were initially designated as subject officers. None of the following four officers consented to the release of their memo book entries in relation to the incident or to interviews with the SIU:

  • Subject Officer #1
  • Subject Officer #2
  • Subject Officer #3, and
  • Subject Officer #4

The fifth subject officer was re-designated as a witness officer when examination of his/her firearm later revealed the pistol contained a full load of ammunition and was not discharged in the incident.

The following three officers were designated as witness officers and interviewed on the noted dates:

  • Witness Officer #1 (March 12, 2009)
  • Witness Officer #2 (March 11, 2009), and
  • Witness Officer #3 (March 7, 2009)

The SIU received and reviewed the following materials from theOPS:

  • Initial Duty Inspector’s Daily Briefing Report and updates
  • Media Release
  • Google map of the area
  • Memo book entries of witness officers
  • Radio transmission recordings
  • Computer Aided Dispatch (CAD) printout
  • General Occurrence Reports
  • Scribe Incident Log
  • Duty Rosters, and
  • OPS Use of Force Policy

As a result of a canvass and witness appeals by the SIU and information from theOPS, the following 17 individuals were interviewed on the noted dates:

  • Civilian Witness #1 (March 10, 2009)
  • Civilian Witness #2 (March 12, 2009)
  • Civilian Witness #3 (March 7, 2009)
  • Civilian Witness #4 (March 7, 2009)
  • Civilian Witness #5 (March 8, 2009)
  • Civilian Witness #6 (March 7, 2009)
  • Civilian Witness #7 (March 7, 2009)
  • Civilian Witness #8 (March 12, 2009)
  • Civilian Witness #9 (March 10, 2009)
  • Civilian Witness #10 (March 10, 2009
  • Civilian Witness #11 (March 7, 2009)
  • Civilian Witness #12 (March 7, 2009)
  • Civilian Witness #13 (March 7, 2009)
  • Civilian Witness #14 (March 9, 2009)
  • Civilian Witness #15 (March 10, 2009)
  • Civilian Witness #16 (March 7, 2009), and
  • Civilian Witness #17 (March 12, 2009)

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

In my view, there are no reasonable grounds to believe that any of the named subject officers, Subject Officer #1, Subject Officer #2, Subject Officer #3 or Subject Officer #4, committed a criminal offence in relation to the firearms death involving the decedent, Mr. Jeffrey. On March 6, 2009, Mr. Jeffrey robbed a Toronto Dominion Bank at 562 Montreal Road in Ottawa. He had in his possession what turned out to be a black toy pistol. He walked quickly from the bank, turning south on Center Street and then onto Paul Street when he was spotted by Witness Officer #3. Witness Officer #3 took chase, and Mr. Jeffrey sprinted south on Claude Street. At one point, Mr. Jeffrey faced Witness Officer #3 and said, “I’m going to fucking shoot you.” Witness Officer #3 communicated through his/her two-way communication radio that the suspect might be armed and he would shoot them. The four subject officers and another witness officer joined in the pursuit. At various points, he pointed the toy gun in the direction of the subject and witness officers, and the subject officers shot at him. While we will never know which subject officer fired which bullet, we do know that Subject Officer #1 discharged his/her pistol five times, Subject Officer #2 16 times, Subject Officer #3 twice and Subject Officer #4 six times. One of the bullets entered Mr. Jeffrey’s head from behind, exiting from his left cheek and led to his demise. Another bullet entered his left lower abdomen and exited the right lower back.

Pursuant to ss. 25(4) of the Criminal Code, police officers have the authority to use lethal force against a fleeing felon if they believe on reasonable grounds that the force is necessary for the purpose of protecting them or those assisting them or others from imminent death or grievous bodily harm, and the flight could not be prevented in a less violent manner. Here, the subject officers were attempting to apprehend a man who had just robbed a bank and had a replica handgun in his possession. Even though the pistol turned out to be a toy, Mr. Jeffrey behaved in a manner with respect to it that would cause a reasonable person to conclude the gun was real. First, he was running from a recently consummated bank robbery. Second, he threatened to shoot an officer and we may infer that this information was communicated to the subject officers. Third, he ran at the officers with the replica gun held in a manner strongly suggesting that he was going to shoot one of them. And finally, the replica could easily be mistaken for a real handgun.

The Supreme Court of Canada decision styled R. v. Reilly (1984), 15 C.C.C. (3d) 1 stands for the proposition that an accused may rely upon an honest and reasonable, but mistaken, belief in apprehending death or serious bodily harm before responding with force as a defence to an assault-related charge. Here, I am of the view that the subject officers had an honest and reasonable belief that the decedent was an armed fleeing felon who was prepared to use imminent lethal force against one or more of them. While the lethal bullet entered the decedent from behind, the subject officer had the authority to shoot because he/she held the reasonable belief that Mr. Jeffrey was about to shoot an officer who was assisting in the arrest. Accordingly, I cannot form the requisite grounds to believe that the subject officer who discharged the lethal bullet committed a criminal offence. Further, the other subject officers did not commit a criminal offence when they shot at Mr. Jeffrey because they too had the same reasonable, although ultimately mistaken, belief that he was about to use lethal force.

Date: May 15, 2009

Ian Scott

Director

Special Investigations Unit