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 Sunday, May 9, 2010, at 1135 hrs, Notifying Officer of the Ontario Provincial Police (OPP) notified the Special Investigations Unit (SIU) of the firearm death of Mr. Brian Gray.

Notifying Officer reported that members of the OPP had been requested to assist a member of the Lac Seul First Nations (FN) Police in the FN community of Whitefish Bay. OPP officers from the Sioux Lookout Detachment in addition to an OPP Emergency Response Team (ERT) were deployed.

A male (now known to be Mr. Brian Gray) exited a house armed with a rifle. Mr. Gray held the rifle pointed at the base of another male’s (now known to be Civilian Witness #3) skull.

ERT officers in the inner perimeter engaged Mr. Gray and he was shot six times. He was responsive and taken to the Sioux Lookout Zone Hospital (SLZH) and was pronounced deceased.

The investigation

Three SIU investigators and two forensic investigators (FIs) were dispatched at 1200 hrs on Sunday, May 9, 2010, and arrived on scene at 2000 hrs that same date.

The SIU designated the following OPP officers as subject officers:

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

On the advice of counsel, these officers did not participate in an interview with SIU investigators nor did they provide copies of their memorandum book notes to SIU investigators.

The following OPP officers were designated as witness officers and all provided copies of their relevant memorandum book notes to SIU investigators and were interviewed on the noted dates:

  • Witness Officer #1 (May 11, 2010)
  • Witness Officer #2 (May 11, 2010)
  • Witness Officer #3 (May 11, 2010)
  • Witness Officer #4 (May 11, 2010)
  • Witness Officer #5 (May 11, 2010)
  • Witness Officer #6 (May 20, 2010)
  • Witness Officer #7 (May 20, 2010)
  • Witness Officer #8 (May 20, 2010)
  • Witness Officer #9 (May 20, 2010), and
  • Witness Officer #10 (May 20, 2010)

Witness Officer #11 from the Lac Seul First Nations Police Service (LSFNPS) was also designated as a witness officer and declined to participate in an interview with SIU investigators; however, he/she did provide copies of his/her relevant memorandum book notes to those investigators.

The following OPP officers were designated as witness officers and provided copies of their relevant memorandum book notes to SIU investigators:

  • Witness Officer #12
  • Witness Officer #13
  • Witness Officer #14
  • Witness Officer #15, and
  • Witness Officer #16

After a careful review of their notes, SIU investigators determined that these officers would have nothing to add of an evidentiary nature and a decision was made not to conduct a formal interview with them.

The SIU, requested, received and reviewed the following materials from the OPP:

  • Major Incident Scene Commanders’ Briefing Reports, updates, and charts
  • Media Release
  • Identification officers’ Sokkia Total Station device drawing of scene
  • Aerial photographs and video of scene
  • All on air communications, radio transmissions and 911 calls
  • Copies of all civilian witness interviews conducted by the OPP
  • Computer Aided Dispatch (CAD) reports
  • Event Chronology Reports
  • Unit status and history reports
  • Involved officers and member team assignment lists
  • General occurrence reports
  • Canadian Police Information Centre (CPIC) queries and results
  • Sensitive Personal Information
  • Incident Commander scribe incident notes
  • Duty Rosters
  • Global Positioning System (GPS) printouts, and
  • OPP policies, procedures, orders on Arrest, Use of Force, and Major Incident Deployments

Confidential Witness Statement

The following civilian witnesses were interviewed on the noted dates;

  • Civilian Witness #1 (May 10, 2010)
  • Civilian Witness #2 (May 10, 2010)
  • Civilian Witness #3 (May 12, 2010)
  • Civilian Witness #4 (June 10, 2010)
  • Civilian Witness #5 (June 10, 2010)
  • Civilian Witness #6 (June 10, 2010)
  • Civilian Witness #7 (June 10, 2010
  • Civilian Witness #8 (June 10, 2010)
  • Civilian Witness #9 (June 10, 2010), and
  • Civilian Witness #10 (June 10, 2010)

SIU FIs digitally photographed and videotaped the scene. They also measured the scene using the Sokkia Total Station device for forensic mapping purposes and later produced a plan drawing.

They also collected from the scene and from the SLZH, clothing, spent ammunition cases, viable rounds, firearms, ammunition magazines and blood samples.

A post-mortem examination was conducted on Mr. Gray at the Coroner’s Building in Toronto on Wednesday, May 12, 2010 by Dr. Doctor. At the post-mortem examination, a viable .30-30 round of ammunition was found in Mr. Gray’s right jacket pocket. During the post-mortem examination, six projectiles were recovered from Mr.

Gray’s left and right chest walls and several fragments from a seventh projectile were recovered from the chest and abdominal areas.

SIU FIs collected biological samples from the post-mortem examination and submitted those samples to the Centre of Forensic Sciences (CFS) for analysis. Dr. Doctor stated that his/her preliminary finding with respect to the cause of death, was due to multiple gunshot wounds. Dr. Doctor found no evidence of any close contact wounds or other trauma on Mr. Brian Gray.

The subject officers’ duty belts and OPP-issue rifles were photographed by the SIU FIs to document the use of force options available to them.

There was a delay in the completion of this report in that all submissions requesting examination were made to the CFS on May 18, 2010 and the examination results and accompanying reports were not received at the SIU until September 8, 2010.

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 the named subject officers, Subject Officer #1, Subject Officer #2 and/or Subject Officer #3 committed a criminal offence in relation to the firearms fatality of the decedent, Mr. Brian Gray on May 9, 2010 in Whitefish Bay.

In the early hours of that day, the OPP received information from the Lac Seul First Nations Police Service that Mr. Gray was firing shots near a location in the Whitefish Bay community. As an officer at the OPP Sioux Lookout detachment was organizing backup, more information was phoned in. He/She was told that someone was shot, that Mr. Gray was holding a gun to his own head, and that there were still approximately six people in a location. Further, another report came in that Mr. Gray had returned to his residence to pick up more ammunition and fired more shots in a location. Sioux Lookout OPP dispatched members of the Emergency Response Team (‘ERT’) at 0430 hrs. At approximately 0600 hrs, a woman was treated at the scene with a gunshot wound to her hand. At approximately 0800 hrs, the three subject officers who are members of ERT arrived. They received further information that Mr. Gray was still armed in a location, that Affected Person was dead, and that Mr. Gray was intoxicated and volatile.

At 0923 hrs, Mr. Gray exited a location holding Civilian Witness #3 hostage. Mr. Gray held Civilian Witness #3 from behind with his left hand holding onto the scruff of the hostage’s shirt collar. In his right hand, Mr. Gray held his rifle with the muzzle resting against the back of Civilian Witness #3’s head. The subject officers shouted numerous commands to, “Drop the gun,” and “put the weapon down,” and to “get down on the ground.” However, Mr. Gray refused to comply with the officers’ commands.

Civilian Witness #3 then dropped to the ground just as Mr. Brian Gray discharged his weapon into the air. Mr. Brian Gray emitted a loud scream and the subject officers discharged their OPP-issued rifles several times at him, striking him in the abdomen, chest and upper flanks. Mr. Gray fell to the ground, still conscious and moving. He was handcuffed and removed to an ambulance that had been staged nearby, and transported to the Sioux Lookout Zone Hospital where he succumbed to his injuries.

Mr. Gray received 11 gunshot wounds; six bullets in his left and right chest walls. There were also several fragments from a seventh projectile in his chest and abdominal areas that were recovered in his body. Three of the fired projectiles found in Mr. Gray’s body can be attributed to the rifle of subject officer Subject Officer #1 and two to the rifle of subject officer Subject Officer #2.

In my view, the subject officers were collectively and individually justified in the use of lethal force leading to the demise of Mr. Gray in these circumstances. He had already proven himself to be violent and unpredictable in the events leading up his death, including the shooting of Affected Person. He was holding Civilian Witness #3 hostage by means of

a rifle when confronted by the subject officers and refused to comply with their demands. Regrettably, Mr. Gray represented an imminent threat to the lives and safety of all those around him. Accordingly, the subject officers were justified in using lethal force either in self-defence under ss. 34(2) of the Criminal Code or to prevent the death of Civilian Witness #3 under s. 27 of the Criminal Code.

I intend to add the following to the Commissioner’s letter:

There were a number of issues that arose that impact upon the adequacy of this investigation. First, as you will see from the attached appendices, all of the witness officers refused to answer a question, an apparent breach of s. 8 of O.Reg 267/10 to the Police Services Act.

Second, the SIU was notified of this incident at 0940 hrs local time in Sioux Lookout on Sunday, May 9, 2010. SIU investigators arrived on scene at 2000 hrs. In the interim, OPP officers had conducted detailed interviews of two material civilian witnesses, Civilian Witness #3 and Civilian Witness #1, at 0840 hrs, and 1004 hrs, respectively, prior to the SIU being notified of this incident. After the SIU was notified of this incident, OPP officers continued to take further detailed statements from two other crucial civilian witnesses, Civilian Witness #11 and a second statement from Civilian Witness #3, at 1114 hrs and 1246 hrs, respectively. These interviews took place eight to nine hours prior to the arrival of the SIU investigators on scene and subsequent to the shooting. This interviewing would appear to be a breach of s. 5 of the same regulation, mandating the SIU as the lead investigative agency.

Finally, two of the three subject officers’ C8 rifles (Subject Officer #1 and Subject Officer #3) had been cleared and made safe prior to being turned over to SIU. All cartridges had been removed from the magazines, breeches and packaged separately. While we do not have an issue with the removal of the live round in the breech or removal of the magazine from the rifle, there is no safety reason to remove any cartridges from the magazine.

I would be grateful if you inquired into all of theses issues and provided my office with a written response.

Original signed by

Date: September 30, 2010

Ian Scott

Director

Special Investigations Unit