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, March 6, 2005 at 0934 hrs, Notifying Officer of the Durham Region Police Service (DRPS) notified the SIU of the firearm death of ----redacted-year-old Elyas Bariali. It was Notifying Officer’s understanding that DRPS personnel had been summoned to a Tim Horton’s outlet in downtown Oshawa, where they found a male suffering from multiple stab wounds. When interviewed, the victim reported that Mr. Bariali had stabbed him at an Oshawa rooming house at 41 Drew Street. Accordingly, the investigating officers went to 41 Drew Street, where Mr. Bariali confronted them. During the confrontation, an officer discharged his/her service pistol once, striking Mr. Bariali in the chest. Mr. Bariali was later pronounced dead at a nearby hospital.

The investigation

At 0959 hrs the same date, four SIU investigators and three SIU Forensic Identification Technicians (FIT) were dispatched to Oshawa and arrived in the city within 60 minutes. At 41 Drew Street, the SIU FIT members videotaped and photographed in and around the address and completed a Total Station survey of the incident scene. They also seized both physical and biological evidence, including a black-handled flat head screwdriver. On Monday, March 7, 2005 the FIT attended the post mortem examination of Mr. Bariali, where it was determined by a pathologist that Mr. Bariali had died from a single gunshot wound to the chest.

The SIU investigators spoke with members of the DRPS, canvassed the area surrounding the shooting scene and interviewed a number of civilian witnesses. The SIU established that Subject Officer was the officer responsible for firing the single fatal shot; he/she was designated as a subject officer. Upon advice of his/her counsel, Subject Officer refused to provide either a statement or his/her notes to the SIU.

In addition, the following DRPS officers were designated witness officers (they all provided their notes to the SIU and were all interviewed on March 9, 2005):

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

Upon request, the DRPS turned over the following material to the SIU:

  • A copy of the communication tape relevant to the incident
  • A copy of the CAD printout relevant to the incident
  • A copy of a list civilian witnesses interviewed by the DRPS
  • A copy of the DRPS Platoon list for Sunday, March 6, 2005
  • Copies of all DRPS FIU photographs and videotapes relevant to the incident
  • A copy of the DRPS Use of Force policy
  • Subject Officer’s uniform
  • Subject Officer’s service pistol
  • Copies of DRPS supplemental reports from witness officers, and
  • Copies of three CD’s (security cameras) from the Tim Horton’s outlet where the stabbing victim first reported the incident

During the subsequent SIU probe, the following civilian witnesses were interviewed on the following dates:

  • Civilian Witness #1; (March 6, 2005)
  • Civilian Witness #2; (March 6, 2005)
  • Civilian Witness #3; (March 6, 2005)
  • Civilian Witness #4; (March 6, 2005)
  • Civilian Witness #5; (March 6, 2005)
  • Civilian Witness #6; and (March 6, 2005)
  • Civilian Witness #7. (March 10, 2005)

Summary of Events

Sensitive Personal Information

On March 5, 2005 Civilian Witness #1 noticed Mr. Bariali had returned to the rooming house unannounced. On Sunday morning, March 6, 2005 Mr. Bariali met Civilian Witness #1 in the hallway of the basement and asked him if he could come into Civilian Witness #1’s room and smoke a cigarette. Civilian Witness #1 acquiesced and with Mr. Bariali closely behind, Civilian Witness #1 re-entered his room. Suddenly, without warning, Mr. Bariali began to stab Civilian Witness #1 in the back and neck with a black-handled flat-headed screwdriver. During the frenzied attack, Civilian Witness #1 sustained a number of puncture and cut wounds to his back, head and neck areas. Fearing for his life, Civilian Witness #1 fought back valiantly and was able to escape from Mr. Bariali.

Bleeding, he made his way to a nearby Tim Horton’s outlet where he called 9-1-1. As a result, three DRPS officers, Subject Officer, Witness Officer #3, and Witness Officer #1, went to 41 Drew Street intending to arrest Mr. Bariali. At the rear door of the address, Mr. Bariali, clutching a black-handled screwdriver in his left hand menacingly approached the trio. Despite repeated entreaties from all three officers to stop and drop the screwdriver, Mr. Bariali continued to advance upon the officers. Subject Officer fired a single bullet from his/her service pistol, striking Mr. Bariali in the chest. Mr. Bariali immediately fell to the ground still clutching the screwdriver in his left hand. Witness Officer #3 ran up to the supine Mr. Bariali and kicked the screwdriver out of his hand. Mr. Bariali was treated by paramedics at the scene, and later rushed to a nearby hospital, where he was pronounced dead shortly thereafter.

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 to believe that the subject officer in this case committed any criminal offence.

In this case three officers attended first a complaint of a man who had been stabbed. That man informed the police that a man had just attacked him named Elliott (later determined to be Mr. Elyas Bariali) who was wielding a screwdriver. This man told the police that his attacker could be found at a particular address and the police went there. It was there that the three officers were confronted by Mr. Bariali as he emerged from the house. The officers backed away from Mr. Bariali repeatedly ordering him to stop and drop the screwdriver but all their orders were ignored.

Although I have no direct evidence of the subject officer’s statement of mind I do have the statements of the two witness officers who were in virtually the same situation as the subject officer and I can, from their statements and from the circumstances of this incident, make reasonable inferences about the subject officer’s state of mind.

I believe that the officers reasonably feared for their lives and safety and for that of their fellow officers and other citizens (especially given what the complainant told them about being attacked by Mr. Bariali without any apparent provocation). I believe that the officers in this situation were justified in using deadly force and accordingly committed no offence.

The family has questioned why the officers did not shoot to wound Mr. Bariali. The training of officers is that they are to shoot to the centre of mass of the threat. To do otherwise exposes the officers to the risk that they will miss a leg or arm or that, even if they hit such an extremity, the attacker will not be stopped by this wound and harm will come to the officer or to some other person.

This is an unfortunate situation indeed. Mr. Bariali had a history of contact with the police but apparently none of these officers were aware of his illness. Even if they had been, given the way this situation developed and speed with which it unfolded, it is unlikely that the officers would have been able to do anything about the situation they found themselves in. They had to act quickly on the complaint they received since they had information that Mr. Bariali had just acted violently, had used a weapon and was likely still in possession of that weapon and in proximity to other people.

Date: April 20, 2005

James L. Cornish

Director

Special Investigations Unit