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 Thursday, July 25, 2013, at 1758 hrs, Notifying Officer notified the SIU of a firearms injury to Deceased. Notifying Officer understood that four OPP officers had been dispatched to a dwelling on Crotch Lake in central Ontario, regarding a possible suicidal male. When the officers arrived at the address at approximately 1720 hrs, they were confronted by Deceased, who pointed a high powered rifle at them and fired. The officers responded with gunfire and Deceased was wounded. Deceased was subsequently rushed to the Kingston General Hospital (KGH) where he underwent emergency surgery. Unfortunately, Deceased succumbed to his wounds on Sunday, July 28, 2013.

The investigation

Within minutes of receiving the call, five SIU investigators and two SIU forensic investigators (Fis) were dispatched to the shooting scene. The first SIU investigator arrived at the Crotch Lake residence at 2130 hrs. The SIU Fis videotaped and photographed the scene and completed a Sokkia total station of the environs. They located nine .40 calibre spent casings and two spent projectiles (bullets) at the scene. During Deceased's autopsy on July 30, 2013, three more spent bullets were removed from his body.

Following a preliminary SIU investigation, it was learned the high powered rifle was in fact a .177 Beeman Air Rifle equipped with a scope, and it appeared the weapon was not discharged as first reported. As well, two OPP officers, Subject Officer #1 and Subject Officer #2, had discharged their respective service pistols, and Subject Officer #1 had also deployed his Conducted Energy Weapon (CEW). As a consequence, both Subject Officer #1 and Subject Officer #2 were designated as subject officers. On November 8, 2013, Subject Officer #1 waived his rights under the Police Services Act and provided a statement, but not his notes to the SIU. Subject Officer #2 declined a request from the SIU for an interview and or his notes.

In addition, the following OPP personnel were designated as witness officers. All provided their notes and were interviewed on the dates noted:

  • Witness Officer #1 (August 26, 2013)
  • Witness Officer #2 (August 26, 2013)
  • Witness Officer #3 (August 26, 2013)
  • Witness Officer #4 (August 28, 2013), and
  • Witness Officer #5 (August 28, 2013)

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

  • CID of the OPP communications related to the incident
  • A copy of the OPP subject profile of Deceased
  • A copy of the CAD printout related to the incident
  • A copy of the OPP General Occurrenc€? related to the incident
  • A copy of a transcript of a telephone call made by Deceased to the OPP
  • A copy of the OPP Event Chronology related to the incident, and
  • A copy of the OPP Incident Report

During the SIU investigation the following civilians were interviewed on the dates noted:

  • Civilian Witness #1 (July 26, 2013)
  • Civilian Witness #2 (July 26, 2013)
  • Civilian Witness #3 (July 26, 2013)
  • Civilian Witness #4 (July 28, 2013)
  • Civilian Witness #5 (July 28, 2013)
  • Civilian Witness #6 (July 28, 2013)
  • Civilian Witness #7 (July 29, 2013)
  • Civilian Witness #8 (August 2, 2013)
  • Civilian Witness #9 (August 8, 2013), and
  • Civilian Witness #10 (August 8, 2013)

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

In my view there are no reasonable grounds to believe that the named subject officers, Subject Officer #1 and Subject Officer #2, committed a criminal offence in relation to the firearm death of Deceased on July 25th, 2013.

In this investigation the sru interviewed ten civilian witnesses and five witness officers. In addition, the subject officer, Subject Officer #1, attended for an interview but did not provide his notes to the SIU. On the other hand the subject officer, Subject Officer #2, declined to give an interview or provide his notes to the Unit. Further, in coming to my decision I reviewed a scene diagram; digital recording of all OPP communications related to the incident; the CAD printout of the incident; the OPP general occurrence related to the incident; the transcript and actual recording of a phone call by Deceased to a member· of the OPP and to Civilian Witness #3 on the date of the incident; phone calls by Deceased to the OPP prior to the day of the incident; the OPP Event Chronology and the OPP Incident Report, as well as the OPP subject profile of Deceased. I also visually inspected the pellet rifle that Deceased wielded at the incident. Based on a review of this evidence and information I am of the view that I have a sufficient basis to draw the following conclusions regarding the shooting death of Deceased.

Sensitive Personal Information

However, on Thursday, July 25, 2013, Deceased also made telephone calls to various persons indicating that he would he would not be alive in very short order. His first call to that effect seems to have been left on an answering machine at 15:00 for a Civilian Witness #3. The message for Civilian Witness #3 indicated, in part, that Civilian Witness #3 need not come to visit him in August and that this was going to be his last call to him, that the he could not handle the pain anymore Sensitive Personal Information. It was clear that Deceased sounded distraught and was crying on the recording. Civilian Witness #3 contacted Durham Police to advise them of the call. Deceased also left a voice mail message for Non-Witness Officer of the OPP Professional Standards Branch at 15:51 p.m. He again sounded distraught and complained that since certain OPP officers had gotten away with beating him up, he had no reason to live, and after thanking him/her for him/her work on his behalf indicated that "I'll be dead by the time, ya, I'll be dead. I plan on going out on the boat and ah, I got it full of gas and wood, and, ah, I've got, ah, yah, you guys, I'm sorry, I hope I don't ruin your summer vacation".

Deceased then called the law office of a person to advise them Sensitive Personal Information. Civilian Witness #2, Sensitive Personal Information took the call. Deceased wanted him/her and a person to know he was "going the way of the Vikings" and that he had filled his boat with firewood and he was going to set it ablaze in the middle of a lake, and would no longer be alive at the end of the day. After calling a person, Civilian Witness #2 called the OPP at 16:37 and advised the 911 operator of his/her conversation which he/she indicated he/she had had with Deceased approximately 30 minutes before.

The first call that emergency dispatch for the OPP received about Deceased's "suicide" threats came from Civilian Witness #4 at approximately 16:16. Civilian Witness #4 told the emergency dispatch that he/she had just received a call from Deceased who had stated that he was going to get in a boat and set the boat ablaze with him in it. Civilian Witness #4, who works for the Frontenac News, knew of Deceased as the newspaper had reported on Sensitive Personal Information. He/She called his/her editor and then 911 immediately afterward.

The OPP advised the ambulance and fire department to attend a staging area at Arden and Pitt Roads approximately a kilometre away from Deceased's home in anticipation of a possible suicide attempt in a boat. The fire department indicated that they had a boat "in the water" in Arden.

Officers, Subject Officer #2, Witness Officer #1 and Witness Officer #3 and Subject Officer #1 met at the staging area (the fire department was also there) at approximately 17:00 and devised a plan to deal with the situation. There were concerns about Deceased, a large man, (6'3' 250-270lbs) as there was information that he was unpredictable and hated the police and was likely to be agitated as he had been convicted the day before of driving while suspended. Witness Officer #3 who was very familiar with Deceased was aware of this information and also told them that Deceased had three large dogs that perhaps could become aggressive.

The plan entailed that Witness Officer #1 would carry a fire extinguisher in case Deceased were to set himself on frre and to repel the dogs, if necessary. As well, Subject Officer #1 was to carry his CEW, and Witness Officer #3 armed himself/herself with a C-8 semi-automatic rifle. The four officers then drove over to Deceased's home at a location, Subject Officer #2 and Witness Officer #3 in a SUV, and Subject Officer #1 and Witness Officer #1 a cruiser. Subject Officer #2 and Witness Officer #3 parked their SUV at the top of a graveled laneway, which led to the residence. Subject Officer #1 and Witness Officer #1 parked behind them. The officers made their way down the laneway. Witness Officer #3 was flanked by Subject Officer #2 on his/her left and Subject Officer #1 on his/her right. Witness Officer #1 was following them with the extinguisher. The lane crested a hill before it sloped sharply downward in a southerly direction toward Deceased's shack/trailer, which was located to the left of the laneway. On the right side of the laneway was a picnic table.

The officers who were at the Deceased property had similar but not identical versions of the event. I believe the 'differences' can be reconciled by the speed of the incident and the different angles and perspectives which would have been available to each officer.

As the officers descended the laneway toward the trailer, Witness Officer #3 called out "Name". Suddenly, Deceased burst out of the front door of the. trailer, empty handed and naked. According to Witness Officer #3 and Witness Officer #1 he was yelling and screaming. He sprinted across to the picnic table, picked up a scoped rifle lying on the table, raised it and pointed it at the officers, from a distance described as being between 10-15 yards by Witness Officer #1 ; 50 feet 15 metres by Witness Officer #3 and 40 feet 12.2 metres by Subject Officer #1.

Witness Officer #1 indicated that he dropped the fire extinguisher and fearing for his/her life took cover behind a parked utility trailer. He/She heard the sound of a CEW discharging and a volley of gunshots. He/She said he believed that Deceased was shooting at them. He/She said when he/she looked up Subject Officer had moved behind a tree and had his gun drawn. His CEW was on the ground. Deceased, still holding the rifle, ran back towards the trailer. He/She heard "drop the gun" numerous times and saw Subject Officer #2 in front of him/her with his/her gun drawn. He/She said he/she drew his/her gun and moved to a safer position but this obscured his/her view of Deceased. Witness Officer #1 also indicated that when he/she returned to a location after the shooting he/she observed Subject Officer #2 holding Deceased's head. Both he/she and Witness Officer #3 indicated that they heard Deceased repeatedly asking Subject Officer #2 to let him die. Both Witness Officer #1 and Witness Officer #3, who travelled in the ambulance with Deceased, indicated that Deceased made a similar request in the ambulance en route to the hospital in Napanee.

Witness Officer #3 stated that as Deceased got to the picnic table he picked up a scoped rifle and pointed it directly at the four officers, who were approximately 50 feet away. Witness Officer #3 felt helpless because he/she was caught in the middle of his/her two colleagues with no cover. Deceased was ordered to drop the weapon. A volley of gunfire erupted. Witness Officer #3 did not discharge his/her C-8 rifle although he felt vulnerable and feared for his/her life because the situation felt unreal and everything happened so fast that he/she didn't have time to react. Witness Officer #3 told the SIU investigators that everything seemed "over in a split second". Witness Officer #3 believed that both Subject Officer #1 and Subject Officer #2 discharged their weapons because he/she heard the sound of gunfire from both his/her left and right sides. Deceased ran back towards his trailer with his rifle pointed at him/her and the others and collapsed on the front steps of his trailer. Witness Officer #3 indicated that when it became apparent Deceased would not get up, Subject Officer #1 and Subject Officer #2 cautiously approached him. Subject Officer #2 handcuffed Deceased's hands behind his back. Deceased was moaning, and muttering that he wanted to die. Deceased's rifle was lying next to him. Witness Officer #3 saw that Deceased had gunshot wounds to his left hand and back. Witness Officer #3 and Witness Officer #1 assisted the paramedics in removing Deceased to the ambulance, and remained in the ambulance with him.

Subject Officer #1 indicated that he had been repeatedly yelling, "Name stop" as Deceased ran to the picnic table, but that Deceased did not acknowledge the police presence or his commands. Subject Officer #1 indicated that Deceased initially had his back to him but as he swung around he observed him "clutching a rifle in both hands" The rifle had a wooden stock and a scope. He felt the rifle was -real and was pointed directly at him. Subject Officer #1 stated that he then instinctually levelled the CEW at Deceased and fired although he immediately felt, "wrong weapon and too far." He stated he was approximately 40 feet away from Deceased and knew the effective range of the CEW was approximately 25 feet. He saw the CEW wires and probes fall short of Deceased.

Almost immediately, Subject Officer #1 said he heard two gunshots from behind and to his left. Deceased began sweeping the area with the rifle, then brought it around and pointed it directly at Subject Officer #1 again, while still holding it at hip level. Still clutching the rifle in his hands, Deceased then turned and with his left side exposed to Subject Officer #1, began walking briskly toward the front porch of his residence. Subject Officer #1 immediately drew his service pistol and began tracking Deceased, who upon reaching the porch stopped at the stairway, still holding the rifle in both hands. Subject Officer #1 believed that if Deceased did not go: down, Deceased would kill him. Subject Officer #1 discharged his service pistol, he believed two or three times, at Deceased who was now at the porch stairway. Hethen covered Subject Officer #2 who was handcuffing Deceased and then instructed everyone not to touch the CEW or Deceased's rifle. He asked the others who had discharged their weapon and only Subject Officer #2 indicated he had. He later instructed Witness Officer #1 and Witness Officer #3 to accompany Deceased in the ambulance.

Although Subject Officer #2 never came in for an interview or provided his notes he did speak to Witness Officer #4, a witness officer, who had arrived at the scene at 18:30 (the shooting occurred at approximately 17:22) and was instructed to transport Subject Officer #2 back to the OPP detachment in Perth. He/She later drove him to the hospital and then home at 22:35. He/She spoke briefly to Subject Officer #2 about the incident who told him/her that the involved officers were dispatched to deal with a man threatening suicide and that Deceased came out of the house, went to the picnic table, picked up a rifle and pointed it at Subject Officer #1. He/She said that Subject Officer #2 said he fired his service pistol at Deceased and afterwards administered fust aid to him.

The ambulance attendants, while not at the scene at the time of the shooting, indicated that they had been called to a location to deal with a suicidal male. Their observations of the scene were consistent with the scene as described by the officers. Further, they observed Subject Officer #2 administering fust aid and stabilizing Deceased's head. They both indicated that the officers assisted them in getting Deceased care at the scene and helping them with their equipment so that they could work to administer aid to Deceased more expeditiously. Neither attendant however, indicated that ·they heard Deceased say that he wanted to die although one of them did hear Deceased say (jokingly) in the back of the ambulance that the officers were terrible shots.

The autopsy showed that Deceased was struck by six bullets. His cause of death was listed as "Complications from multiple gunshot wounds" Two of the shots were grazing shots and four shots entered the body entered his torso and exited. From the description of the shooting and the location of the entry and exit wounds it would appear that Deceased was not directly facing the officers when he was shot but had his left side and part of his back exposed to them. This would be suggested by the fact that the bullets entered the left side of his torso and exited the right side of his body at various points. Nothing about the scene or the nature and location of the wounds would suggest that the officer’s account of the incident was inaccurate or untruthful. From the examination of the bullets it was impossible to tell for sure whether Deceased was struck by bullets fired by both Subject Officer #2 and Subject Officer #1. All that can prove forensically is that both officers fired as two cartridges were identified as coming from Subject Officer #1's pistol; four from Subject Officer #2's and three that couldn't be excluded as having been fued from either of their guns. We know that Witness Officer #1 did not fire as he/she was carrying an extinguisher nor did Witness Officer #3 who was carrying a C-8 rifle.

Forensically, the DNA test done would confirm the officer’s account that Deceased was holding the rifle. The rifle wielded by Deceased was a Beeman .177 caliber single shot,. break open and spring loaded air rifle. When secured and made safe by Witness Officer #5 at the scene at 23:08 the rifle was cocked With a single pellet ready to be fired.

In the light of the information about his suicide threats the police in this case had a duty to apprehend Deceased under Section 17 of the Mental Health Act. They properly engaged emergency services to assist them if necessary. Because of the information they had about Deceased's unpredictability and his hatred of police Subject Officer #1 attended with a CEW and Witness Officer #3 brought a rifle to the scene. Witness Officer #1 was there with an extinguisher in case he set himself on fue as he had threatened to do.

The moment Deceased ran naked screaming and yelling to the picnic table in his yard and picked up his air. rifle which appeared to be a lethal high powered scoped rifle with a flared barrel and pointed it at the officers he initiated the sequence of actions that led to his death. Every officer said the rifle was pointed at them. Subject Officer #1 thought the rifle was pointed directly at him (as did Subject Officer #2) and said that as a result he immediately deployed his CEW, but realized instantly that it was the "wrong weapon, too far." When he discharged his service pistol he indicated he subjectively believed that Deceased intended to kill him. The other witness officers also indicated a fear of death and helplessness or vulnerability.

Objectively, factors which inform the reasonableness of this subjective fear include the following: (i) the loud music at the scene and its secluded location (ii) Deceased's alleged proclivity for violence and hatred of the police (iii) Deceased's mental state and (iv) Deceased's pronouncements about commit suicide that day and (v) the rapid speed at which the incident occurred.

While it is likely that Deceased's behaviour at the scene meets the criteria of "suicide by cop" I do not have to make that determination to conclude that no criminal offense occurred in this instance.

Having reviewed all the evidence in its totality I am duty bound to ask: Were the subject officers justified in the use of lethal force in these circumstances? I am of the view that they were and accordingly, I have no reasonable grounds to believe that Subject Officer #1 or Subject Officer #2 committed a criminal offence in relation to the unfortunate death of Deceased.

Deceased's actions-running naked, yelling and screaming and picking up what appeared to be a high powered rifle and aiming it towards the four officers-put him into a position where the officers had no other recourse-given the speed of the transaction- than to use deathly force. To do otherwise would have been to put their lives or the lives of their partners at risk.

Date: January 30, 2014

Tony Loparco
Director
Special Investigations Unit

Appendix "A"

There were no issues with the witness officers' notes in this file.