SIU Director’s Report - Case # 16-OFD-320
Issued: March 20, 2018
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Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.
Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)
Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
- Confidential investigative techniques and procedures used by law enforcement agencies; and
- 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.
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. 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
- witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence and
- other identifiers which are likely to reveal personal information about individuals involved in the investigation
Personal Health Information Protection Act, 2004 (“PHIPA”)
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Other proceedings, processes, and investigations
Information may have also been excluded from this report 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.
The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.
“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.
This report relates to the SIU’s investigation into the death of a 35-year-old man on December 23, 2016 during the execution of a search warrant in his residence.
Notification of the SIU
The London Police Service (LPS) notified the SIU on December 23, 2016, at 7:30 a.m., of a fatal police shooting in the city. LPS reported that at approximately 6:02 a.m. that morning, a number of LPS Emergency Response Unit (ERU) officers executed a search warrant at the residence of Mr. Samuel Maloney
Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 5
SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scene associated with the incident by way of notes, photography, videography, sketches and measurements. The Forensic Investigators attended and recorded the post-mortem examination and assisted in making submissions to the Centre of Forensic Sciences (CFS).
35-year-old male, deceased
CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
WO #1 Interviewed
WO #2 Not interviewed, but notes received
WO #3 Not interviewed, but notes received
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed
WO #11 Interviewed
WO #12 Interviewed
WO #13 Interviewed
WO #14 Interviewed
WO #15 Interviewed
WO #16 Interviewed
WO #17 Not interviewed, but notes received
WO #18 Not interviewed, but notes received
WO #19 Not interviewed, but notes received
WO #20 Interviewed
WO #21 Interviewed
WO #22 Interviewed
WO #23 Interviewed
WO #24 Interviewed
WO #25 Interviewed
WO #26 Interviewed
SO #1 Interviewed, and notes and prepared statement received and reviewed
SO #2 Interviewed, and notes and prepared statement received and reviewed
SO #3 Interviewed, and notes and prepared statement received and reviewed
At approximately 6:00 a.m. on December 23, 2016, LPS Emergency Response Unit officers executed a search warrant at the residence of Mr. Maloney. The purpose of the search warrant was to arrest Mr. Maloney, and to locate and seize evidence that he had engaged in mischief to data and unauthorized use of a computer, both contrary to the Criminal Code.
A dynamic entry was used to enter the home, and once the front door was breached, eleven ERU officers quickly ran in and spread through the house. Inside at the time was Mr. Maloney, his spouse (CW #1), and their two small children.
SO #1 was the first officer to encounter Mr. Maloney. Upon SO #1 entering the front computer room, Mr. Maloney shot SO #1 in the chest with a crossbow. Believing that Mr. Maloney also possessed a firearm and was about to shoot again, SO #1 discharged his firearm at Mr. Maloney, hitting him once in the shoulder. CW #1 ran to the rear bedroom where SO #2, SO #3, and two small children were located. The room was in darkness at the time.
Mr. Maloney, holding a hatchet above his head, screamed and also ran to the rear bedroom. SO #2, who was positioned at the bedroom door, discharged his firearm at Mr. Maloney, striking him in the chest. Mr. Maloney fell to his buttocks at the bedroom doorway, still clutching the hatchet. SO #3 also discharged his firearm, striking Mr. Maloney in the head. Mr. Maloney slumped into a prostrate position, with the hatchet beneath his body. He was declared dead at the scene.
The scene was the Maloney residence in London, Ontario. It is a one-story dwelling.
The following items were seized from the scene and sent to the Centre of Forensic Sciences (CFS) for examination:
- one 9x19 mm Heckler & Koch select fire submachine gun with flashlight attachment, better known as MP5
- wwo 5.56x45 mm calibre semi-automatic rifles with slings and flashlight attachments, better known as C-8 rifles
- three 9x19 semi-automatic Glock pistols
- a quantity of ammunition connected to the aforementioned weapons
- 1 Excalibur Matrix Bulldog 400 Crossbow with scope, and
- bullet and metal fragments
It was established, from both forensic evidence and eyewitnesses at the scene, that three LPS ERU members discharged their respective weapons for a total of nine times.
Within the limits of practical certainty
Four of the cartridge cases found grouped in the back bedroom, a fifth cartridge case was found in the body bag at the post-mortem, a bullet fragment and two projectiles were found in the back bedroom, and three projectiles were located in Mr. Maloney’s body during the post-mortem were determined by CFS to be “in agreement” with SO #2’s 9mm MP5.
One of the .223 cartridge cases that was found just outside of the back bedroom door, a second .223 cartridge case found lying on the dining room floor directly across from Mr. Maloney’s computer room, a third .223 cartridge case found on the kitchen floor adjacent to the dining room, and a bullet located in the computer room were determined by CFS with practical certainty to be from SO #1’s C8 rifle.
A projectile found in the east wall of the back bedroom and a .223 cartridge case located in the hallway just outside of the door leading to the back bedroom were determined by CFS with practical certainty to be from SO #3’s C8 rifle.
The crossbow had a penetrating bullet defect on the top of the main frame approximately 11 inches [29.74 centimetres] from the front of the stirrup and a perforating bullet/projectile defect to the wind age turret on the right hand side of the scope. Examination indicates that the trajectory of the bullet striking the main frame was left to right (approximately 15 degrees) and downward (approximately 10-20 degrees) with respect to the crossbow. CFS was unable to determine the attitude of the crossbow at the time it was struck by the bullet.
Assuming the damage to the crossbow was caused by either a .223 Remington or 9x19 mm calibre bullet, a .223 bullet is indicated. After penetrating the main frame, the damaged bullet continued to travel rearward, striking and breaking the trigger assembly. It is a practical certainty that a bullet from SO #1’s C8 rifle struck the crossbow causing the damage described above.
On December 24, 2016, the Pathologist performed a post-mortem examination on the body of Mr. Maloney. The Pathologist gave the cause of death as “Gunshot Wounds to Head and Chest.”
- Gunshot wound to head and brain. The bullet entered below the left eye perforating the skull and brain and exiting left occiput (Fatal in and of itself).
- Gunshot wound to right chest. Entered below right clavicle. Injury to right lung (Potentially fatal).
- Gunshot wound anterior central chest. Injury to heart and left lung (Fatal in and of itself).
- Gunshot wound entrance above left clavicle. Injury to left lung aorta and right lung (Fatal in and of itself).
- Gunshot wound to anterior deltoid. Bullet exited left upper arm (Not necessarily fatal).
- Three bullets recovered from Mr. Maloney’s chest cavity were examined.
- Graze wound upper neck. No scientific evidence as to its origin.
Materials obtained from Police Service
Upon request the SIU obtained and reviewed the following materials and documents from the LPS:
- Communications recordings
- Scene photos
- Copy of LPS email regarding the Complainant’s posting on the cinema website with active links
- ERU Operation Plan – the Maloney residence
- General Occurrence
- LPS Exhibit Lists
- LPS Call Information
- Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9, WO #10, WO #11, WO #12, WO #13, WO #14, WO #15, WO #16, WO #17, WO #18, WO #19, WO #21, WO #22, WO #23, WO #24, WO #25 and WO #26
- Prepared statements of SO #1, SO #2, SO #3, WO #1, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9, WO #10, WO #11, WO #12, WO #13, WO #14, WO #15, WO #16, WO #20, WO #21, WO #22, WO #23, WO #24, WO #25 and WO #26
- Warrant to Search the Maloney residence, and
- Unsealed court documents (Search Warrant, Information to Obtain (ITO) and Sealing Order Application)
Section 25(1), Criminal Code - Protection of persons acting under authority
25 (1) Everyone who is required or authorized by law to do anything in the administration or enforcement of the law
- as a private person,
- as a peace officer or public officer,
- in aid of a peace officer or public officer, or
- by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose;
25 (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.
Section 34, Criminal Code - Defence — use or threat of force
34 (1) A person is not guilty of an offence if
- they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
- the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
- the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
- the nature of the force or threat;
- the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
- the person’s role in the incident;
- whether any party to the incident used or threatened to use a weapon;
- the size, age, gender and physical capabilities of the parties to the incident;
- the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
- the nature and proportionality of the person’s response to the use or threat of force; and
- whether the act committed was in response to a use or threat of force that the person knew was lawful.
Sections 219-221, Criminal Code - Criminal negligence
219 (1) Everyone is criminally negligent who
- in doing anything, or
- in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
- where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
- in any other case, to imprisonment for life.
221 Everyone who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Section 342.1, Criminal Code - Unauthorized use of computer
342.1 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction who, fraudulently and without colour of right,
- obtains, directly or indirectly, any computer service;
- by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system;
- uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or under section 430 in relation to computer data or a computer system; or
- uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c).
Section 430(1), Criminal Code - Mischief
430 (1) Everyone commits mischief who wilfully
- destroys or damages property;
- renders property dangerous, useless, inoperative or ineffective;
- obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
- obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
Section 430(5), Criminal Code - Mischief in relation to computer data
(5) Everyone who commits mischief in relation to computer data
- is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
- is guilty of an offence punishable on summary conviction.
Section 430(5.1), Criminal Codecite> – Mischief Endangering Life
(5.1) Everyone who wilfully does an act or wilfully omits to do an act that it is their duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or computer data,
- is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
- is guilty of an offence punishable on summary conviction.
Section 2(1)(g), Schedule for Part VII (Code of Conduct), Ontario Regulation 268/10, Police Services Act
2 (1) Any chief of police or other police officer commits misconduct if he or she engages in…
- Unlawful or Unnecessary Exercise of Authority, in that he or she,
- without good and sufficient cause makes an unlawful or unnecessary arrest,
(i.1) without good and sufficient cause makes an unlawful or unnecessary physical or psychological detention,
- uses any unnecessary force against a prisoner or other person contacted in the execution of duty, or
- collects or attempts to collect identifying information about an individual from the individual in the circumstances to which Ontario Regulation 58/16 (Collection of Identifying Information in Certain Circumstances – Prohibition and Duties) made under the Act applies, other than as permitted by that regulation;
- without good and sufficient cause makes an unlawful or unnecessary arrest,
Analysis and Director’s decision
On December 23rd, 2016, at approximately 6:02 a.m., the London Police Service (LPS) executed a search warrant at Samuel Maloney’s residence to arrest him for mischief to data, contrary to section 430(5) of the Criminal Code, and unauthorized use of a computer, contrary to section 342.1 (1) of the Criminal Code, and to seize his computers and other devices in the residence that may afford evidence of those offences. Because of prior incidents involving Mr. Maloney and concern for weapons in the home, the LPS Emergency Response Unit (ERU) was tasked to execute the warrant. Officers knew at the time that along with Mr. Maloney, his spouse, CW #1, and their two small children might also be in the home.
When the LPS ERU entered the home, SO #1 and WO #11 found Mr. Maloney and CW #1 in the computer room (being the middle room on the west side of the home). SO #2 and SO #3 found and remained with the two children in the rear bedroom. SO #1 confronted Mr. Maloney and Mr. Maloney shot SO #1 in the abdominal area with a crossbow. Initially unbeknownst to SO #1, the bolt from the crossbow only penetrated his ballistics vest and he was uninjured
Mr. Maloney was known to LPS. In 2007, a search warrant was executed on the residence and a cache of weapons and ammunition were recovered. Mr. Maloney and CW #1 were both charged, but only CW #1 was convicted. Through the years, Mr. Maloney was known to be anti-police, anti-government, and anti-establishment. According to WO #10, a member of the LPS ERU, he attended Mr. Maloney’s residence in July 2016, at the request of London City Works, to keep the peace while city workers cleaned up the unkempt property of Mr. Maloney. Mr. Maloney was standing in the backyard wielding an axe at the time, which unnerved the workers.
CW #1 worked for a cinema in London (the Cinema). Mr. Maloney was hired to develop software and a database for the Cinema, including a customized computer program to edit its website. Mr. Maloney was responsible for maintaining and updating the cinema website and dispersing bulletins and emails to their many subscribers. The domain for the Cinema website was stored in the server in Mr. Maloney’s basement, giving Mr. Maloney complete control of all material posted on it. In addition, Mr. Maloney was provided access to all of the computer safeguards, firewalls, and access codes for the Cinema. Mr. Maloney never conversed with or met CW #5, who was the owner of the Cinema. Any updates or requests regarding the website or the database were done through CW #1, who would pass on the request to Mr. Maloney.
On December 11, 2016, the Cinema website subscribers were sent a video by email that included an anti-Semitic diatribe, as well as a manifesto entitled “Welcome to Atlantis”, allegedly authored by Mr. Maloney. CW #5 notified the LPS of what had happened to her website.
Also on December 11, 2016, WO #25 stated that she was dispatched to Mr. Maloney’s residence to check on the welfare of CW #1 as CW #5 could not get hold of CW #1, and was concerned about her safety. WO #25 and four other officers attended the residence and, after knocking on the door for a period of time, CW #1 answered but refused to allow the police inside. She said she was fine and was not being held against her will. Later the same day, WO #25 spoke to CW #1 on the telephone, and CW#1 told her that the messaging on the Cinema website had been sent by the Palestine President. As a result of her comment, WO #25 sent a report to the LPS Hate Crime Unit.
WO #22, the officer in charge of the LPS Organized Crime Unit, advised that on December 12, 2016, he received an e-mail from a citizen relating to the promotion of hatred against Jews. The citizen reported that they received an email from the Cinema with 18 pages attached and links to videos of content that the citizen found upsetting. WO #22 reviewed the content of the e-mail and saw it was signed, “Sam Maloney aka God, aka Jesus and God’s Avatar.” WO #22 forwarded the email to WO #23, a member of the LPS Hate Crime Unit. The next day, WO #23 responded that he had consulted a Crown Attorney and that the email did not meet the threshold for inciting hatred. On December 16, 2016, WO #23 told WO #22 that he sought out assistance from WO #21, a member of the LPS Internet Child Exploitation unit. Later that day, WO #22 determined the investigation should be assigned to members of the Investigative Response Unit (IRU).
WO #23 stated that on December 12th, WO #22 advised him of an occurrence authored by WO #25 describing numerous complaints about anti-Semitic rhetoric that had been sent to them via a hacked email account of the Cinema. WO #23 reviewed the anti-Semitic emails and the manifesto and, in consultation with a Crown Attorney, concluded that it did not meet the threshold for a hate crime. WO #23 forwarded his opinion and that of the Crown Attorney to WO #22. On December 20, 2016, WO #23 attended a meeting chaired by WO #22, wherein the investigation was passed onto the IRU. WO #16, a member of the IRU, was to prepare a search warrant for Mr. Maloney’s residence. Later the same day, WO #23 spoke to CW #5, who told him that she had never met or spoken to Mr. Maloney, but hired him as her computer programmer through CW #1. CW #5 said that all of her servers for the Cinema were in the basement of Mr. Maloney’s residence. WO #23 passed this information on to WO #16.
WO #24, the supervisor of the LPS Crime Analysis Unit and the IRU, advised that on December 16, 2016, WO #22 requested his assistance regarding an investigation related to unauthorized computer access at the Cinema. WO #24 assigned WO #16 to work on the case. On December 20, 2016, WO #24 reviewed the material related to the case and noted that anti-Semitic material had been posted to the website of the Cinema and then emailed to the cinema’s business email list (approximately 6000 customers). The online material was signed ‘Samuel Maloney’. The same day, WO #24 attended a meeting regarding the incident, wherein WO #22 advised that the anti-Semitic material on the website did not meet the threshold for a hate crime.
According to WO #21, because of his experience with computer-related crime, he also attended a meeting with WO #22 on December 20th to discuss the execution of a search warrant at Mr. Maloney’s residence. WO #21 was questioned about the computer aspect of the search warrant. At the conclusion of the meeting, WO #21 and WO #24 were assigned to assist WO #16 to draft the search warrant for Mr. Maloney’s residence. The next day, WO #16 told WO #21 that the draft for the warrant was complete with the exception of several qualifying paragraphs needed from WO #21. WO #21 reviewed the draft of the search warrant and advised what needed to be added.
WO #22 told investigators that on December 20, 2016, he chaired a meeting and tasked WO #16 with writing the search warrant for Mr. Maloney’s residence. At the meeting, WO #22 reviewed the file and Mr. Maloney’s background, including Mr. Maloney’s Facebook posting which contained multiple threats and references to killing unnamed persons if they did not renounce their Jewishness by December 25, 2016. Because of the reference to Christmas Day, WO #22 wanted the search warrant to be in effect by December 21, 2016. The plan was to execute the warrant on December 23, 2016, but to arrest Mr. Maloney outside his residence, should he exit his residence prior to that date, in order to mitigate any potentially violent encounter during the execution of the search warrant. On December 22, 2016, as Mr. Maloney had not left his residence as hoped, WO #22 and WO #1 decided that the search warrant would be executed at 6:00 a.m. on December 23, 2016 by the ERU with a dynamic entry into the residence.
WO #8, a member of the LPS Digital Forensic Unit, stated that on December 21st he was approached by WO #16, who said an email had been sent from the Cinema with anti-Semitic propaganda. After reviewing the active hyperlinks, WO #8 confirmed that the author of the propaganda was Mr. Maloney. WO #8 told WO #16 that this was not a “traditional hack,” since Mr. Maloney was the administrator of the account, but was more an unauthorized use of a computer system and password, since he was now using his administrative authority for “criminal purposes” to re-direct visitors from the Cinema’s website to the “Morphis” website that he believed Mr. Maloney had created and from which he had sent emails. He advised WO #16 to word the information to obtain the search warrant [ITO] in that direction. Following a later meeting, WO #8 was tasked to enter Mr. Maloney’s residence after the search warrant had been executed and to secure the digital evidence.
WO #16 advised that he conducted a background check on Mr. Maloney and discovered that a search warrant had been executed at his residence in 2007, and a number of firearms had been seized. There was also information that Mr. Maloney had a crossbow in his residence, and had physically abused CW #1 in the past. WO#16 did not include this information in the ITO, nor did he include any background of Mr. Maloney or CW #1, or that they had small children and it was expected that some or all would be in the home at the time the warrant was executed. In Appendix B of his search warrant application, WO #16 alleged that he had reasonable grounds to believe that Mr. Maloney had committed the offences of mischief tampering with computer data, contrary to Section 430(5) of the Criminal Code, and fraudulently obtaining a computer service, contrary to Section 342.1(1) of the Criminal Code.
December 22, 2016
According to SO #1, on December 22, 2016, he and three other ERU officers were assigned to conduct surveillance on Mr. Maloney’s home, and to arrest him for mischief to data and unauthorized use of a computer if he was seen leaving the house. Mr. Maloney never left the residence that day, however, so no arrest was made.
WO #12 was the officer in charge of the LPS ERU. He advised that on December 22nd, he attended a meeting with WO #1 and WO #22, and was told that a search warrant for Mr. Maloney’s residence was to be executed on December 23, 2016 at 6:15 a.m. Because the entry was to be dynamic in nature, the LPS ERU would be utilized. WO #12 was told that the target of the search warrant was Mr. Maloney, who was known to the LPS to be anti-police, anti-government, and anti-establishment. A reference was made to a 2007 search warrant at the same address that netted a cache of firearms
Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. The starting point for this inquiry, therefore, is whether the officers present in the home that morning were in the execution of a lawful duty. This raises the issue of whether they were relying on a lawfully issued search warrant.
On December 21, 2016, WO #16 swore before a Justice of the Peace that he had reasonable and probable grounds to believe that Mr. Maloney had committed the crimes noted above. The JP authorized the search warrant to be executed between 6:00 a.m. and 8:59 p.m. on either December 21st, 22nd or 23rd. It authorized the seizure of any computer systems and data storage devices, any written documentation containing computer passwords, and any documentation pertaining to the occupants of the residence that would assist in proving their occupation of the home and control of any computer equipment found therein. The warrant did not request authorization to enter the home to arrest Mr. Maloney and, as stated earlier, it did not include any information regarding Mr. Maloney, his background, his propensity for violence, any weapons inside the home, or the presence of CW #1 or their children in the home. Even though it became apparent by the end of day on December 22nd that Mr. Maloney was not going to be arrested outside his residence, no amendment to the original warrant was sought, despite the fact that the LPS clearly knew that he was going to be inside when the warrant was executed and they intended to arrest him upon its execution.
On December 28, 2016, five days after Mr. Maloney had been shot and killed, the LPS sought and was granted a sealing order, sealing the contents of the search warrant. The warrant was unsealed on March 16, 2017 at the request of the SIU.
December 23, 2016
On the morning of December 23, 2016, LPS ERU officers attended Mr. Maloney’s residence. SO#1 advised that prior to attending the residence, between 4:58 a.m. and 5:18 a.m. that morning, there was a briefing held at the ERU office regarding the search warrant that was to be executed later that morning at the home. The briefing was conducted by WO #6 and WO #24. SO #1 was told that Mr. Maloney was arrestable for mischief to data and unauthorized use of a computer, and that SO#1 was to immediately seize any evidence, including computers, from the home to prevent their destruction. The officers were advised that there was a potential for violence due to Mr. Maloney’s intense dislike of police. The layout of the residence was provided and the target rooms were identified.
According to WO #12, at approximately 5:45 a.m., the ERU entry team met near Mr. Maloney’s residence. WO #12 and WO #15, a member of the LPS Canine Unit, took up a position at the rear of the residence. At approximately 6:05 a.m., WO #12 gave the command for the ERU team to enter the house. WO #4 advised that at 6:06 a.m. he and WO#7 breached the front door after striking it twice with a ram. They then proceeded to breach the inner door with one blow from the ram. SO #1 stated that as WO #4 and WO #7 breached the front door, he heard them yell, “Police search warrant.” As the other team members began to enter the house, they also yelled, “Police, search warrant.”
Eleven ERU officers entered the home, as follows: WO #4 and WO #7 (who were designated to breach the front door) entered first, then, in designated order of entry: WO #9, WO #6, WO #5, WO #10, SO #1, WO #11, SO #2, SO #3 and WO #12 entered. Upon entry, the officers attended the following rooms: WO #4, WO #6 and WO #9 went into the empty front office, following which WO #4 went into the living room; SO #1 and WO #11 went into the computer room, following which WO #11 went into the rear bedroom; WO #7 and WO #10 went into the kitchen and later into the basement; WO #5 and WO #12 went into the living room; and SO #2 and SO #3 went to the rear bedroom. As the police entered, they observed Mr. Maloney and CW #1 in the computer room and their two small children in the rear bedroom. All officers were armed and in full ERU uniform.
WO #7 and WO #4 advised that after breaching the outer and inner front doors, ERU members rushed into the house, with WO #7 entering the kitchen area with WO #10, and WO #4 following the last ERU officer into the living room. Both police officers then heard at least two gunshots and SO #1 announce “shot out” over the radio (the term shot out was to alert other team members that an officer had discharged his firearm). CW #1 was heard to start screaming. WO #7 saw SO #1 and WO #5 at the threshold to the kitchen. SO #1 was heard to indicate, over the radio, that he had been shot with a crossbow and that Mr. Maloney was armed with a gun. SO #1 was then heard to begin negotiations with Mr. Maloney and WO #7 heard SO #1 tell Mr. Maloney to come out with his hands up. SO #1 also asked Mr. Maloney if he wanted an ambulance, and Mr. Maloney replied that he did. Mr. Maloney asked to see a copy of the search warrant.
WO #4 took a position of cover in the empty front office with WO #6 and WO #9, and then made his way to the back of the house, where he relieved WO #12 and was instructed to take up a position to contain the west wall of the residence. WO #7, from his position, heard WO #11 request a ballistic shield to evacuate CW #1 and her children. WO #7 then heard a very loud scream coming from the bedroom area, followed closely by the sound of three or four gunshots. WO #4 indicated that he too heard three to five gunshots and then, a moment later, he heard that Mr. Maloney was down. WO #7 and WO #5 made their way to the computer room where Mr. Maloney had previously been, and saw a large camouflaged crossbow resting against the computer chair. After clearing the computer room, WO #7 made his way to the rear bedroom and saw Mr. Maloney lying on the floor.
SO #1 advised that once the door was breached and he entered the home, he first entered the living room, then continued into the dining room and into the kitchen, which was dimly lit. SO #1 then went into the small hallway which had three rooms leading from it. SO #1 heard CW #1’s voice coming from one of the two closed rooms (she was located in the computer room). Her voice was elevated, but unintelligible, and it appeared that she was aware of the police presence. SO #1 kicked the door and yelled, “Police, search warrant, get down.” The door opened about two inches [5 centimetres] and was immediately closed from within. SO #1 then heard CW #1 scream incoherently and he shouldered the door open and yelled, “Show me your hands.” When the door opened, CW #1 was sprawled on the floor. Within a second or two, SO #1 felt a distinct sharp impact no bigger than a dime to his stomach and abdomen area
SO #1 told investigators that he yelled for Mr. Maloney to drop the gun, while CW #1 ran screaming down the hallway to the rear bedroom. SO #1 attempted to negotiate with Mr. Maloney, telling him to drop his gun and come out of the room with his hands up. An angry Mr. Maloney demanded to see the search warrant, which SO #1 agreed to show him if he came out empty handed. Mr. Maloney spoke in a low tone and much of what he said could not be heard by SO #1. SO #1 asked Mr. Maloney if he had been shot and he implied that he had but would not specify the nature of the wound. Suddenly, SO #1 heard Mr. Maloney scream “Ahhhhhhh” from within the computer room, at which point he ran towards the rear bedroom with a dark object in his left hand. SO #1 heard two or three gunshots from the direction of the rear bedroom, and a thump that he believed was a body hitting the floor. SO #1 advanced down the hallway, where he heard one final gunshot. At the door leading into the bedroom, SO #1 saw Mr. Maloney lying on the floor. When SO #1 later re-entered the computer room, he observed the crossbow leaning against the swivel chair and an empty holster lying on the floor by the chair.
SO #2 stated that when he entered the residence, he went through the living room and the adjoining dining room, then back into the living room and through the hallway to the rear bedroom. As he did so, he observed SO #1 and WO #11 go to the computer room. When SO #2 approached the door to the back bedroom, he heard banging and screaming emanating from the area of the computer room, and then at least one gunshot. SO #2 entered the dark bedroom and saw two young children on a double sized bed. He looked down the hallway toward the computer room and saw WO #11 struggling with CW #1 just outside of the bathroom. WO #11 brought CW #1 into the bedroom. She was hysterical and screaming. SO #2 suddenly heard an unknown team member yell, “Shot out,” and then SO #1 shouted out that Mr. Maloney was in the computer room. SO#1 also said he had been shot in the chest but was okay. SO #2 heard SO #1 shout at Mr. Maloney, “Police, search warrant,” and heard Mr. Maloney reply, “Throw the warrant in the room.” SO #1 then asked Mr. Maloney if he needed an ambulance, and Mr. Maloney answered that he did. Mr. Maloney sounded very agitated. SO #2 was in the doorway of the back bedroom, using the door frame as cover. He raised his weapon, set at semi-automatic mode, to his left shoulder, and pointed the weapon down the hallway toward the computer room. CW #1 continued to scream behind him, and the children were crying.
Moments later, SO #2 stated, he saw a shirtless Mr. Maloney slowly emerge into the hallway from the computer room and tip toe down the hallway, while glancing to his right. SO #2 immediately activated the flashlight on his firearm and illuminated Mr. Maloney. Mr. Maloney was holding a hatchet about ear level. SO #2 shouted at Mr. Maloney, “Show me your hands, come to the middle of the room with your hands empty.” Mr. Maloney looked directly at SO #2, then slowly moved out of sight back into the recessed doorway of the computer room. SO #2 believed his life, as well as the lives of CW #1 and her children, were now in peril. WO #11 took up a low kneeling position below SO #2 at the bedroom doorway. Less than a minute later, Mr. Maloney suddenly ran out of the computer room with a hatchet held over his head, blade pointing outward. Mr. Maloney was screaming and sprinting toward the back bedroom. As Mr. Maloney reached approximately five feet [1.52 metres] from the doorway of the bedroom, SO #2 pointed his firearm at Mr. Maloney’s chest and discharged it at least once but less than five times. The bullet(s) struck Mr. Maloney in the chest, and he buckled at the waist. Mr. Maloney then fell forward, spinning with his back to the open door as he fell, and then slid down the wall. The hatchet was still in his right hand. SO #2 slowly backed away. Mr. Maloney was in a seated position with his back up against the open bedroom door when SO #3, who was kneeling down about two feet [0.61 metres] left of SO #2, fired one shot from his rifle. Mr. Maloney slumped forward to his right with the hatchet still in his right hand underneath him. WO #11 then moved in and grabbed both of Mr. Maloney’s hands and arms as if to handcuff him.
SO #3 advised that upon entry into the home, he and SO #2 proceeded through the living room and toward the rear bedroom. As they passed the computer room on the left, SO #3 heard a gunshot, and then heard CW #1 scream. The rear bedroom was dark, and as SO #3 entered, he saw a toddler standing in a crib and an infant lying on the bed. SO #3 was in the bedroom for approximately four seconds when CW #1 rushed in and grabbed her children. By that point, SO #2, SO #3 and WO #11 were also in the bedroom. SO #3 heard an officer say, “The male has a gun,” and that an officer had been shot. SO #3 feared for himself and CW #1, the children, and the other officers. CW #1 tried to exit the bedroom and SO #3 tried to physically restrain her, to no avail. CW #1 was screaming and the children were crying. SO #3 believed that the other officers had retreated out of the house following the gunfire, so he broadcast on his radio that there were still three team members in the rear bedroom. A few seconds later, he heard SO #1 negotiating with Mr. Maloney, and learned that SO #1 had been shot with a crossbow, which was still in Mr. Maloney’s possession. SO #3 considered attempting to evacuate the children via the bedroom window, while WO #11, via the radio, requested ballistic shields.
SO #3 advised that after approximately two minutes, he heard Mr. Maloney roar a constant “Arrrgh” and begin moving towards the bedroom. SO #3 heard multiple gunshots and saw SO #2 at the doorway of the bedroom firing his semi-automatic weapon. SO #3 believed SO #2 and Mr. Maloney were exchanging gunfire. When SO #2 made a sudden move back from the open door of the bedroom, SO #3 believed that SO #2 had been shot by Mr. Maloney. Mr. Maloney moved quickly past SO #2 and through the doorway and, as he passed, turned and faced SO #2 before falling on his buttocks. Mr. Maloney’s eyes were open and he was holding a dark object in his right hand. SO #3 believed it was a gun. He did not see any injuries to Mr. Maloney. From a distance of approximately four feet [1.22 metres], SO #3 fired one bullet into Mr. Maloney’s head, intending to end the threat as quickly as possible. SO #3 believed that one second had elapsed between the time that Mr. Maloney entered the bedroom and when SO#3 discharged his weapon. Mr. Maloney then fell onto his side, and appeared to be incapacitated. There was a large knife in a sheath on the left side of Mr. Maloney’s waistband, and a dark hatchet lying on the floor beside his right hand. SO #3 then realized that it was a hatchet Mr. Maloney had been wielding, not a handgun. SO #3 noticed an authentic-looking air pistol handgun lying atop a dresser in the bedroom, along with a large hatchet, or axe, in a holder at the head of the bed.
WO #11 advised that he entered the home shouting, “Police, Search Warrant” and followed SO #1 to the computer room. The door was closed so SO #1 shouldered it open and they entered. CW #1 was sitting on the floor just inside the doorway facing them, screaming that they had no right to be in her home. SO #1 leaned forward to pull CW #1 out of the computer room and she resisted. WO #11 then saw SO #1 look to his right and suddenly shout, “He’s got a gun.” SO #1 discharged his rifle toward the corner of the computer room. WO #11 immediately grabbed hold of the back of SO #1’s vest and pulled him backwards out of the computer room, across the narrow hallway, and into the dining room. As he did so, he saw CW #1 run to the back bedroom. WO #11 knew that other ERU officers had been assigned to the back bedroom, so he ran after CW #1. When he entered the bedroom, WO #11 saw a baby and a toddler atop a double bed. Also in the room were SO #2 and SO #3. The bedroom was dark. While SO #3 watched over CW #1 and her children, SO #2 posted high, while WO #11 posted low at the bedroom door. Both focused their weapons on the dining room and computer room. SO #1 then shouted out that he believed he had been shot with a crossbow but that he was okay. WO #11 heard SO #1 shouting at Mr. Maloney to exit the computer room with nothing in his hands, but Mr. Maloney would not comply. Suddenly, CW #1 slid off the bed and sat on the floor with her children in her arms, directly beside WO #11. Concerned that both CW #1 and her children were exposed and in the line of fire, SO #3 grabbed CW #1 and her children to drag them back to the bed. As SO #3 lost his grip on the toddler, WO #11 holstered his pistol and grabbed the toddler and placed him back on the bed.
WO #11 stated that he was standing at the foot of the bed with his back to SO #2, who was still pointing his firearm down the hallway, when he suddenly heard gunshots. As WO #11 turned towards SO #2, someone bumped him with such force that he fell on his buttocks at the foot of the bed, facing the open door. WO #11 saw Mr. Maloney land on his buttocks with his back up against the open door. WO #11 saw Mr. Maloney reaching out his right hand for something black in his waistband. As WO #11 unholstered his pistol and pointed it in Mr. Maloney’s direction, two gunshots rang out and Mr. Maloney fell down, onto his stomach. WO #11 was concerned that Mr. Maloney might have a firearm concealed under his stomach, and as he was unable to see either Mr. Maloney’s right arm or hand, he holstered his pistol and grabbed both of Mr. Maloney’s arms and pulled them up behind his back, at which point he observed that Mr. Maloney was limp and realized that he was dead.
WO #12 told investigators that within a minute of giving the command for the ERU team to enter the house, he heard a radio broadcast of “shot out”, indicating that an ERU member had discharged his weapon. He did not know who reported the discharge. WO #12 also heard that Mr. Maloney was inside the residence and that he had a gun, and that SO #1 had been shot with a crossbow, but that the bolt had hit his vest and he was okay. WO #12 entered the home and saw SO #1 in the living room verbally engaging Mr. Maloney. SO #1 asked Mr. Maloney if he was injured and if he wanted emergency medical services (EMS). Mr. Maloney said, “Yes” and SO #1 told Mr. Maloney to come out without any weapons. WO #12 was aware that ERU members were in the rear bedroom with two children, and that they had requested ballistic shields. WO #12 then heard a loud angry grunt from Mr. Maloney, followed by a number of gunshots. CW #1 was screaming hysterically. At about 6:11 a.m., WO #12 heard a radio broadcast that Mr. Maloney was down. CW #1 and her children were removed from the bedroom and taken to the living room. WO #12 entered the back bedroom and located what appeared to him to be a real handgun on the dresser; it was later determined to be a Diana Air 5 air pistol.
WO #10 advised that he followed WO #5 into the living room, and then moved forward and held his position at the entrance to the kitchen. Within two steps of entering the kitchen, WO #10 heard two gunshots coming from the direction of the back bedroom. He also heard over the radio “shot out,” and then heard a commotion in the area of the computer room, and saw SO #1 and WO #5 stepping back into kitchen from the hallway. WO #10 heard the word “gun” being called out, and SO #1 said he had been hit by a bolt from a crossbow, but was alright. SO #1 repeatedly told Mr. Maloney to come out of the computer room with nothing in his hands. Mr. Maloney demanded, “Show me the warrant.” SO #1 asked Mr. Maloney if he needed EMS and Mr. Maloney replied that he did. WO #10 heard police officers in the bedroom call out that they had CW #1 and her children in the back bedroom, and he heard WO #11 calling out for a shield. WO #10 then heard a loud “Ahhhhhhh” followed by two to three gunshots. After taking only a couple of steps into the dining room, WO #10 heard someone say the subject was down. WO #10 returned to the kitchen and, along with SO #2, cleared the basement of the residence. When WO #10 came back upstairs, he saw Mr. Maloney lying dead in the back bedroom.
WO #6 advised that he entered Mr. Maloney’s residence behind WO #9, and both officers entered the empty front office that was immediately to the left of the front door. Both police officers could hear CW #1 screaming in the adjacent computer room,. WO #9 advised that he peered down the hallway into the computer room and saw CW #1 with her back to a closed door, he then lit her up with a light on his rifle and yelled for her to show her hands, which she did. WO #9 advised that from his location, about eight to ten feet [2.44 to 3.05 metres] away, he could not see into the interior of the room. SO #1 then forced open the rear door to the office, inadvertently striking CW #1 and causing her to fall to the floor. WO #9 heard SO #1 yell, “Drop the gun” but could not see who else was in the room. WO #6 advised that he then heard two gunshots, while WO #9 observed SO #1 discharge his rifle three times, and then back out of the room yelling, “Drop the gun.” SO #1 then broadcast “Shot out” and indicated that he had been shot, possibly with a gun or a crossbow.
WO #6 saw SO #1 at the threshold of the computer room with his rifle pointing into the room and he broadcast “shot out” over his portable radio. WO #6 again heard CW #1 screaming and children crying. ERU members were verbally communicating with each other and shouting out. WO #6 and WO #9 moved back toward the front door, and WO #6 heard someone report that SO #1 had been struck by a crossbow but that he was okay. WO #9 saw CW #1 run toward the rear bedroom. An unknown ERU officer was heard to report that Mr. Maloney was not obeying commands to come out of the room with nothing in his hands. Someone shouted that Mr. Maloney had a gun in his hand. WO #9 asked WO #6 to secure ballistic shields, and WO #6 ran out the front door to the ERU truck to secure the shields. While outside, WO #6 heard a number of gunshots and then heard over the radio that Mr. Maloney was down.
WO #9, who was still inside the house, advised that he heard more than one gunshot and shortly thereafter saw CW #1 come out of the living room carrying her young children. WO #9 examined SO #1 for gunshot wounds and saw what he thought was either a bullet or the broken metal tip of a crossbow bolt embedded in one of SO #1’s ballistic plates in his vest, which had apparently prevented the bullet/broken tip from penetrating SO #1’s body.
WO #5 stated that after entering the house, he made his way into the living room. Less than 20 seconds after entering the residence, he heard a loud bang and someone yell, “Shot out.” He saw SO #1 back up from the computer room, yelling, “He’s got a gun.” WO #5 took up a position standing over SO #1, who was kneeling at the doorway to the kitchen covering the computer room. SO #1 told WO #5 he had been shot. WO #5 asked him if he was injured and SO #1 replied he felt good. WO #5 believed SO #1 had been shot with a gun. SO #1 attempted to negotiate with Mr. Maloney, but Mr. Maloney’s voice was angry and defiant. CW #1 continually screamed from within the back bedroom. WO #5 heard an ERU member call over the radio that they were pinned down in the back bedroom with CW #1 and her children, and that they could not safely evacuate the children without ballistic shields for protection. Approximately two to three minutes later, a shirtless Mr. Maloney ran screaming down the hallway to the back bedroom. Mr. Maloney moved so quickly that WO #5 did not have the time to raise his weapon. A second later, WO #5 heard multiple gunshots from the back bedroom area. WO #5 made his way to the bedroom and saw Mr. Maloney lying on the floor.
Section 25(1) and Section 34(1)
Under section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. On the evidence before me, it is clear that there were two purposes that were intended to be achieved the morning of December 23rd when the LPS ERU went into Mr. Maloney’s residence.
The first purpose was as set out in the search warrant - to seize Mr. Maloney’s computers as evidence of his participation in the offences alleged against him regarding the Cinema. Several officers advised of a meeting held on December 20th, where the investigation was discussed and duties were assigned. WO #22 told investigators that he chaired the meeting with numerous police officers present. There were no meeting minutes recorded. WO #22 stated that at the meeting, WO #16 was tasked with the production of a search warrant for Mr. Maloney’s residence, and WO #22 reviewed the file and Mr. Maloney’s background, including Mr. Maloney’s Facebook posting that referred to possible events occurring on December 25, 2016. WO #22 wanted the search warrant in effect by December 21, 2016, but it would be executed on December 23, 2016 as it was expected that Mr. Maloney would be arrested outside his residence prior to that date. The intended arrest of Mr. Maloney outside his residence prior to the execution of the search warrant was to avoid a potentially violent encounter with him during the execution of the search warrant on December 23, 2016.
WO #21 also told investigators that the meeting was chaired by WO #22, and it was held to discuss strategies regarding the execution of a search warrant at the residence. WO #21 was queried about the computer aspect of the search warrant, and assigned, along with WO #24, to assist WO #16 - who had never drafted a search warrant before – in drafting the warrant. WO #23 confirmed that the December 20th meeting was chaired by WO #22, and during the meeting the investigation was passed over to the LPS IRU, and WO #16 was assigned to prepare the search warrant. Later the same day, when WO #23 learned from CW #5 that all of her servers for the Cinema were in the basement of Mr. Maloney’s residence, he passed that information on to WO #16, as it would obviously be critical to the writing of the search warrant. WO #24, the supervisor of the LPS IRU, was also at the December 20th meeting. The investigation was assigned to his unit since the material did not meet the threshold for a hate crime. WO #24 tasked WO #16 to write the warrant, even though he had never participated in a warrant compilation in his career, and WO #24 would assist. WO #24 stated that he felt comfortable in guiding WO #16, as he had written hundreds of warrants in his years in Major Crime and Fraud. WO #24 reviewed the final warrant before it was signed by a JP.
WO #16 told investigators that he sought advice from the LPS Digital Forensic Unit regarding the production of the search warrant. WO #8 of that unit, after reviewing the hyperlinks, confirmed that the author of the “propaganda” was Mr. Sam Maloney and that the offence was the unauthorized use of a computer and advised WO #16 to have the information to obtain the search warrant reflect that offence.
WO #8 told investigators that after the search warrant was executed, he entered Mr. Maloney’s residence and searched CW #1’s computers and found nothing of evidentiary value. He then found numerous computers and accessories in the computer room, and a large server in the basement that serviced the multiple computers. WO #21 stated that he assisted WO #8 in photographing and securing computer devices for evidence. Assisted by members of the LPS Forensic Unit, WO #8 seized a number of computer systems and laptops, which were taken back to the LPS laboratory for further examination. In the end, nothing of evidentiary value was found. In fact, the computer and server were unable to be searched due to the high level of encryption.
The search warrant issued by the JP on December 21st clearly anticipated and authorized locating and seizing Mr. Maloney’s computer equipment, as it specifically authorized the seizure of any computer systems and data storage devices, any written documentation containing computer passwords, and any documentation pertaining to the occupants of the residence that would assist in proving their occupation of the home and their consequent control of any computer equipment found therein.
All of this leads to the inevitable conclusion that the original purpose of the search warrant was to seize Mr. Maloney’s computer equipment. Plans were clearly discussed and made in the December 20th meeting to arrest Mr. Maloney outside of his residence on either December 21st or 22nd, so that officers could enter Mr. Maloney’s residence on December 23rd pursuant to the terms of the warrant, to execute the warrant and seize the computer equipment, without Mr. Maloney’s presence. SO #1, one of the three subject officers and the first to shoot Mr. Maloney on December 23rd, told investigators that on December 22nd, he was one of four ERU members assigned to perform surveillance on Mr. Maloney’s residence, with the mandate to arrest Mr. Maloney if he was seen leaving the house. It was known that Mr. Maloney, CW #1, and their two children, were all inside the house at the time.
The second purpose of the entry by the ERU at 6:00 a.m. on December 23rd into Mr. Maloney’s residence was clearly to locate and arrest Mr. Maloney. Although the plan articulated by WO #22 in the December 20th meeting was to arrest Mr. Maloney outside of his residence on either December 21st or December 22nd, well prior to the execution of the search warrant, that did not occur. WO #22 acknowledged as much, and advised investigators that on December 22nd, he and WO #1 decided that the search warrant would be executed at 6:00 a.m. on December 23rd by the ERU, using a dynamic entry. WO #1 was the incident commander with respect to the execution of the search warrant at Mr. Maloney’s residence, and told investigators that he was fully aware of Mr. Maloney’s history and his propensity for antisocial behaviour. WO #1 stated that he was the officer who approved a dynamic entry into the residence, but claimed it was for the preservation of computerized evidence. As described by WO #12, the officer in charge of the LPS ERU, who attended a meeting with WO #1 and WO #22 on December 22nd, was specifically told that the target of the search warrant was Mr. Sam Maloney, who was known to the LPS to be anti-police, anti-government, and anti-establishment, and that the LPS ERU would be utilized because the entry was to be dynamic in nature. The briefing officers also referred to the 2007 search warrant at the same address that netted a cache of firearms. None of that information, however, was included in the ITO for the warrant.
Despite WO #1’s assertion that the dynamic entry into the residence at 6:00 a.m. (when he and the others knew Mr. Maloney would be present with his spouse and two children) was done for the preservation of computerized evidence, it is clear that the actual reason was to ensure Mr. Maloney was home, so that he could be arrested. As police were aware of Mr. Maloney’s propensity for violence, and the fact that weapons were believed to be in the home, I believe the arrest of Mr. Maloney was the true rationale behind the use of the ERU, the early (and therefore surprise) timing of the entry, and the manner of entry.
Unfortunately, the search warrant is silent on the issue of arresting Mr. Maloney. The underlying ITO is also silent on any aspects of Mr. Maloney’s background, including any information that would have justified the involvement of the ERU in the execution of the search warrant, including: the 2007 search warrant that was executed at Mr. Maloney’s residence where a number of firearms were seized; the information that Mr. Maloney had a crossbow in his residence; and the information that Mr. Maloney had physically abused CW #1 in the past. While it is unknown why this information was not included in the information placed before the Justice of the Peace when the search warrant authorization was being requested, I have no evidence, nor any reason to believe, that it was omitted for a deceitful purpose.
Obviously, without judicial authorization, none of the subject officers would be entitled to rely on section 25(1) of the Criminal Code to justify their use of force against Mr. Maloney inside his residence. Were the attending officers, however, entitled to rely on the search warrant, which was issued for the search and seizure of the computer equipment and related documentation, as judicial authorization to enter Mr. Maloney’s residence for the purpose of arresting him? More succinctly, were the officers who entered on the morning of December 23rd 2017, in the lawful execution of their duties? This issue is particularly relevant for SO #1, who specifically knew, from his duties the day before, that the intent was to arrest Mr. Maloney when they entered the home. But indeed, according to SO #1, all the attending officers were in possession of this information as a result of the briefing held earlier in the morning on December 23rd, where he and other ERU members were told that the target was Mr. Maloney and that he was to be arrested for mischief to data and unauthorized use of a computer.
In R. v. Feeney,  S.C.J. No. 49, the court found that absent certain exigent circumstances, police were prohibited from entering a dwelling house to affect an arrest in the absence of judicial authorization. In this case, the ERU officers had the judicial authorization to enter the residence provided by the search warrant to seize the computer equipment, but it was silent on the issue of Mr. Maloney’s anticipated arrest. Recently, in R. v. Rodgerson,  O.J. No. 5886 (S.C.J.), Justice Bird determined that it was unnecessary for police to obtain a separate Feeney warrant (authorizing police to enter a residence to affect an arrest), if they already had a warrant to enter the residence to seize property, even if police knew that the target was in the home and they intended to arrest him. Justice Bird relied on Justice Nordheimer’s decision in R. v. Lucas,  O.J. No. 5333 (S.C.J.), in which he had stated that requiring the police to obtain a companion authorization (or Feeney warrant) to enter the same home for which they already had a valid warrant to enter and search, would be redundant. Justice Bird also relied on the decision of Justice Pardu (as she then was) in R. v. Pierre, 2011 ONSC 3388 (S.C.J.) and the Newfoundland Court of Appeal decision of R. v. Al-Amiri,  N.J. No. 270. Although Justice Bird highlighted that the information to obtain the search warrant in her case disclosed the belief that the target would be found in the residence (which was not done here), I believe the case is still applicable. In seeking a warrant for Mr. Maloney’s residence, it would be a natural and expected conclusion to infer that Mr. Maloney would likely be there in his own home, particularly as the ITO did not advise the Justice of the Peace of the plan that Mr. Maloney was to be arrested prior to the execution of the warrant. Even though the officer in R. v. Rodgerson had requested specific authorization for a dynamic entry and set out his grounds for believing one was necessary, Justice Bird, relying on R. v. Al-Amiri and R. v. Thompson,  O.J. No. 2070 (S.C.J.), accepted that the law did not require the police to do so.
Accordingly, I find that SO #1, SO #2 and SO #3 were in the lawful execution of their duties when they entered Mr. Maloney’s residence and confronted Mr. Maloney.
The next question then becomes whether their use of force, namely shooting Mr. Maloney, was reasonably necessary in the circumstances. Clearly related to, but separate from the inquiry into the availability of section 25(1) and (3), is the issue of self-defence under section 34(1) of the Criminal Code. Pursuant to section 34(1), each of SO #1, SO #2 and SO #3 were justified in shooting Mr. Maloney if:
- The officer believed on reasonable grounds that force or a threat of force was being used against him or another person or that a threat was being made against him or another person;
- The officer shot Mr. Maloney for the purpose of defending or protecting himself or another person against that force or threat of force; and
- The shooting was reasonable in the circumstances.
Under section 34(2), in determining whether the shooting was reasonable in the circumstances, I must consider such factors as:
- The nature of the force or threat made against the officer;
- The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
- Mr. Maloney’s role in the incident;
- Whether Mr. Maloney used or threatened to use a weapon;
- The size, age, gender and physical capabilities of the parties;
- The nature, duration and history of any relationship between the parties, including any prior use or threat of force and the nature of that force or threat;
- Any history of interaction or communication between the parties;
- The proportionality of the officer’s response to Mr. Maloney’s use or threat of force; and
- Whether the shooting was in response to a use or threat of force that the officer knew was lawful.
Starting with SO #1, I accept that when he attempted to enter the computer room at Mr. Maloney’s residence, he kicked the door and yelled, “Police search warrant, get down”, and that the door was then partially opened and then closed again from inside. SO #1 then shouldered the door open, knocking CW #1 to the ground, whereupon Mr. Maloney immediately shot SO #1 with his crossbow, hitting him in the abdomen. Based on the evidence that Mr. Maloney was awake and at his computer prior to the police entry, and that there were cameras on the exterior of the residence, which would have revealed the presence of police to Mr. Maloney prior to their entry into his home, I believe that Mr. Maloney was waiting for SO #1 to enter in order that he could shoot the officer. I note that even after firing the crossbow at SO #1, Mr. Maloney continued to hold the armed crossbow in the officer’s direction. While SO#1, believing that he had just been shot (as, in fact, he had) and believing that Mr. Maloney was armed with both a crossbow and gun, and that he could be shot again, then fired three shots at Mr. Maloney, hitting him once in the shoulder. I do not believe that there is any doubt that having just been shot by a crossbow in close quarters, and reasonably expecting to be shot again, that SO #1 used any more force than was reasonably necessary in the circumstances. As such, I accept that SO #1’s actions were justified both under sections 25 (3) and 34(1).
The next officer who used force against Mr. Maloney was SO #2. He and SO #3 are in a different position than SO #1 with regards to their use of force, but in a similar position to each other. Neither SO #2 nor SO #3 were shot or physically assaulted by Mr. Maloney, as they remained in the rear bedroom with CW #1 and the children. However, at the time they interacted with Mr. Maloney, they knew that he was armed and that he had already shot their fellow officer. They also knew that he was not complying with police demands and that he was anti-police, and that he was known to possess weapons.
After Mr. Maloney shot SO #1 and was shot in return, various officers witnessed him running from the computer room with a weapon in his hand towards the rear bedroom where his spouse and small children were located. SO #1 heard Mr. Maloney scream “Ahhhhhhh” and run towards the rear bedroom with a dark object in his left hand. SO #2 stated that after Mr. Maloney saw where he was located in the rear bedroom, Mr. Maloney suddenly ran out of the computer room with a hatchet held over his head, blade pointing outward, screaming and sprinting toward the back bedroom. I am satisfied that the dark object seen by SO #1 and later by SO #3 in Mr. Maloney’s hand, as he entered the bedroom, was the hatchet observed by SO #2 (as seen in the photo included earlier), given that it was observed beside his body after he was shot by both SO #2 and SO #3. WO #11 also described Mr. Maloney reaching for something in his waistband once he entered the bedroom. Civilian witnesses also advised SIU investigators that Mr. Maloney kept a knife in his waistband. As seen above, several knives were recovered on the person of Mr. Maloney.
SO #3 also heard Mr. Maloney roar a constant “Arrrgh” as he began moving towards the bedroom, while WO #12 heard a loud angry grunt from Mr. Maloney and WO #10 heard Mr. Maloney emit a loud “Ahhhhhhh” before the final gunshots. WO #5 described a shirtless Mr. Maloney screaming as he sprinted out of the computer room and ran down the hallway leading to the back bedroom. I accept that this was how Mr. Maloney was behaving as he left the computer room and made his way to the rear bedroom. Although CW #4 indicated that he did not hear Mr. Maloney scream when he was on an open phone line with him, CW #3 advised that he did. I note that CW #4 also did not hear SO #1 indicate that he was shot, nor did he hear Mr. Maloney asking to see the warrant nor asking for medical attention, all of which I accept were said. Given the chaos of the scene in the house that morning, I am not surprised that CW #4 may not have heard everything that was heard by the persons in the house at the time. I conclude that this may have been because the phone at Mr. Maloney’s residence was kept in the computer room, and likely remained there while Mr. Maloney ran towards the rear bedroom.
During all of this, SO #2 and SO #3 were in a dark room with CW #1 and her two young children. As Mr. Maloney ran with the hatchet in his hand down the hall to the bedroom, SO #2 discharged his firearm five times in quick succession, hitting Mr. Maloney three times. On this evidence and in these circumstances, I accept that SO #2 stated belief that he faced an imminent threat was reasonable and the discharge of his firearm was justified in the circumstances in response to the threat he and the others in the room faced. I also accept that SO #2 was justified in his use of force under sections 25(3) and 34(1).
Turning then to SO #3, who was in the same situation as SO #2, and the last officer to shoot Mr. Maloney, I accept, in the circumstances where SO #3 believed that SO #2 had just been shot by Mr. Maloney (who had earlier shot SO #1), and where Mr. Maloney continued to hold a dark object (which SO #3 reasonably believed, at that time, to be a firearm
For the purposes of my decision, I have also considered whether the supervising officers who were involved in the assignment of the preparation of the search warrant and the making of decisions regarding the planning and manner of execution of the warrant, such as WO #22, WO #1, WO #12, and WO #24, should be held criminally liable for the death of Mr. Maloney.
Based on all of the information available at this time, it appears fairly clear, while the search warrant set out the suspected offences of unauthorized use of a computer (s.342.1) and mischief to data (430(5)), the underlying purpose of the execution of the search warrant was to stop a perceived terrorist attack by arresting Mr. Maloney. I come to this conclusion on the basis that there could have been no other reason for the time line making it crucial to execute the warrant prior to December 25th, 2016, the date referenced in the email authored by Mr. Maloney, and the fact that police were already in possession of all of the evidence they needed in order to determine whether or not Mr. Maloney had committed an offence under either of the two provisions of the Criminal Code for which the warrant was purportedly sought.
I find it particularly concerning that a warrant with a dynamic entry was sought after having requested, and obtained, an opinion from a Crown Attorney that the subject email did not make out an offence, as well as the information from various anti-terrorist organizations who were aware of Mr. Maloney’s “offending” email, and who were of the opinion that Mr. Maloney was of no interest to them and apparently posed no threat based on the contents of the email
While I doubt that either of the two offences set out in the search warrant were appropriate on these facts (as s.342.1 relates primarily to persons accessing computers without authorization – i.e. hacking in - which authorization Mr. Maloney had, and s.430(5), would have required the perpetrator to alter computer data, while it appears that at most Mr. Maloney was simply posting his own email),
Furthermore, the fact that the drafting of the search warrant was left to an officer who had only been with the unit for three months and had never before drafted a search warrant, and was allowed to be put before a Justice of the Peace, who judicially authorized the entry into the home to search, while it was obviously deficient, gives me even more reason to believe that the purpose of the warrant, despite what was stated on its face, was to enter and arrest Mr. Maloney, despite the fact that it must have been abundantly clear to the senior officers involved that the validity of the search warrant would likely not have been justified at any subsequent trial.
It appears that the driving force behind the decisions that were made regarding the search warrant and its execution was WO #22, the officer in charge of the LPS Organized Crime Unit. Although WO #22 chaired the meetings and sent out the emails outlining everyone’s duties regarding the drafting of the search warrant and its execution, he maintains that these decisions came out of meetings with WO #1 and WO #12. While I accept that these two officers were also present at these meetings where the planning and execution of the ultimate search of Mr. Maloney’s home was discussed, I find that the evidence is clear that WO #22 was the primary officer and the moving force behind the events that led up to the execution of the search warrant on the morning of December 23rd.
When considering the possible criminal liability of WO #22 and the other officers involved in the decisions regarding the search warrant and its execution, I believe there are two charges which might meet this case scenario: criminal negligence causing death (section 220 of the Criminal Code); and mischief endanger life (section 430(5.1) of the Criminal Code.
Under section 219 of the Criminal Code:
(1) Everyone is criminally negligent who
- In doing anything, or
- In omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, “duty” means a duty imposed by law.
The decision of the Ontario Court of Appeal in R. v. R. (M). (2011), 275 C.C.C. (3d) 45 is relevant to my consideration as the officers who were involved in deciding the manner of the execution of the search warrant were not the officers actually executing it. That case indicates that the mens rea for a party to the offence requires the aider to do something with intent to assist conduct that is criminally negligent and to know sufficient details of the assisted conduct to render that conduct criminally negligent. In essence, the party must know he is assisting in conduct that constitutes a marked and substantial departure from what is reasonable in the circumstances, although it is not necessary that the aider have subjective foresight of the consequence of the criminally negligent act he is assisting. It is sufficient to show that a reasonable person, in all the circumstances, would have appreciated a consequence (bodily harm or death) would result. In R. v. Pinske (1988), 6 M.V.R. (2d) 19 (B.C.C.A.), affirmed by the Supreme Court of Canada in  2 S.C.R. 979, it was held that foreseeability of the risk of death was not a factor which the jury should consider on the question of whether the accused’s conduct amounted to criminal negligence.
The next issue is what constitutes “a duty imposed by law.” Although there is no specific definition for the “duty” imposed on a police officer, as discussed earlier, s.25(1) of the Criminal Code sets out an exception to prosecution where a police officer, who is doing something authorized by law in the administration or enforcement of the law, is justified in “using as much force as is necessary for that purpose”. Accordingly, it could be argued that section 25(1) imposes a duty on officers to not use excessive force when doing something authorized by law in the administration or enforcement of the law. As well, s. 2(1)(g) under the Schedule for Part VII (Code of Conduct) of Ontario Regulation 268/10 of the Police Services Act, qualifies behavior that “uses any unnecessary force against a prisoner or other person contacted in the execution of duty” as misconduct. This section also clearly defines a duty of officers not to use unnecessary force. It is arguable, therefore, that the supervising officers breached their duty imposed by law by requiring this search warrant to be executed in the manner it was, as it required foreseeably unnecessary force.
However, even if it can be established that the supervising officers breached their duty imposed by law, criminal negligence, in and of itself, is not a criminal offence. Rather, the conduct must cause death (section 220) or bodily harm (section 221) to another in order to constitute criminal conduct. Accordingly, in order to establish criminal liability on the part of any of the supervising officers, including WO #22, for criminal negligence causing death, I must have reasonable grounds to believe that: (1) they had a duty not to use unnecessary force in the execution of the search warrant, (2) in executing or setting up the means of executing the warrant, they assisted or engaged in conduct that was a marked and substantial departure from what is reasonable in the circumstances, and (3) their conduct caused Mr. Maloney’s death.
In my view, based on the letter of the law, I find that I do not have reasonable grounds to believe that the officers behind the planning and decision-making process caused Mr. Maloney’s death based on the fact that there was an intervening act which broke the chain of causation leading to Mr. Maloney’s death. The decision of the Ontario Court of Appeal, as set out in R v Shilon (2006), 240 C.C.C. (3d) 401, establishes that ‘independent voluntary human intervention in the events started’ in this case by the police, ‘may break the chain of causation’. On the facts before me, Mr. Maloney, of his own volition, chose to arm himself with a loaded crossbow when he became aware that police had entered his residence (an entry he must have known about given the officers’ announcement upon entry and his outside cameras) and to fire it at close range at SO #1, striking him in the abdomen. It was only as a direct consequence of this intervening act, or ‘independent voluntary human intervention,’ on the part of Mr. Maloney, that SO#1 was forced to shoot him. Had SO#1 not been wearing his protective vest at the time, the bolt fired by Mr. Maloney could have gravely injured or killed SO#1. SO #1, believing Mr. Maloney was armed with a gun, in addition to the crossbow which he had already fired, then reacted by discharging his firearm at Mr. Maloney, striking him in the shoulder.
At that point, rather than exiting the computer room with his arms up, as directed, Mr. Maloney chose to arm himself with a hatchet, raise that hatchet above his head, and run screaming towards the dark bedroom where he knew his spouse and two infant children were located. It was a direct consequence of those intervening acts on the part of Mr. Maloney which resulted in SO #2, who was in the dark bedroom protecting the wife and children of Mr. Maloney, coming to the conclusion that they were under attack and discharging his firearm at Mr. Maloney five times, as he neared the doorway of the bedroom, striking Mr. Maloney in the chest. Within a second of Mr. Maloney arriving in the bedroom doorway, SO #3, who observed SO#2 fall backward, and believing that Mr. Maloney had shot him and was still armed with a firearm, discharged his gun at Mr. Maloney once, striking him in the head. On these facts, I am left with no doubt that Mr. Maloney was shot and killed as a direct consequence of, and in response to, his violent actions. If Mr. Maloney had complied with the officers’ demands, rather than responding in the violent manner which he did, he would not have been shot; it was these intervening acts on the part of Mr. Maloney which broke the chain of causation between the actions of the supervisory officers and his subsequent death.
Accordingly, I find that Mr. Maloney’s own voluntary intervening actions lead to his death and I do not have reasonable grounds to believe that his death was caused by the method or actual execution of the search warrant on his home that morning. As an illustration, instead of knowledge of Mr. Maloney’s hatred of the police and possession of weapons, if the supervising officers knew that Mr. Maloney had a serious heart condition and they decided, despite that fact, to perform a dynamic entry at 6:00 a.m. with eleven ERU officers, knowing or believing that Mr. Maloney was asleep at the time, and in the course of the entry Mr. Maloney had a heart attack and died, then one could argue that they directly caused his death and could be held responsible for it, as there had been no intervening acts which would have broken the chain of causation. That is not this case here.
Turning to the second possible charge under consideration, section 430 of the Criminal Code defines the offence of mischief endanger life as:
(1) Every one commits mischief who willfully
- obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
- obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
(5.1) Everyone who willfully does an act or willfully omits to do an act that it is their duty to do, if that act or omission is likely to constitute mischief causing actual danger to life… is guilty…
The language in section 430(5.1) is very similar to that used in criminal negligence, particularly with regard to one’s “duty”. Again, it appears that an officer’s duty is to not use unnecessary force in the execution of their lawful obligations. As opposed to criminal negligence, which requires proof that the accused showed a wanton or reckless disregard for the lives or safety of other persons, however, mischief requires proof that the action was likely to constitute mischief causing actual danger to life.
The case law under this section does not set out with any particularity what would constitute mischief other than that it has to “obstruct, interrupt or interfere with the lawful use” of property. There is no doubt that the events that unfolded in Mr. Maloney’s residence on the morning of December 23rd obstructed, interrupted or interfered with the lawful use of his home. The events also caused actual danger to the lives of all of its occupants - CW #1, her children, Mr. Maloney, and the officers inside. I am, however, again faced with the issue of causation. Was it the conduct of the officers who planned the execution of, or actually executed, the search warrant, that caused that actual danger to CW #1 and her children? Or was it the decisions made by Mr. Maloney, and the weapons he utilized in those decisions, that caused the danger? In the execution of the search warrant, SO #2 and SO #3 went immediately to the rear bedroom where the children were located, and remained there until the incident ended. They made efforts to get shields to remove the children. Their presence, I believe, actually ensured the safety of the civilian occupants of that room. For the same reasons discussed above, I conclude it was Mr. Maloney’s behaviour that caused the actual danger to the occupants. It was his decision to shoot a crossbow at an armed officer, instead of complying with his demands; it was his decision to ignore officers’ requests to surrender; and, it was his decision to run down the hallway towards his children, screaming, while armed with a hatchet and knives. Accordingly, I must find again that it was the intervening acts of Mr. Maloney that lead to his death and I am unable to find the necessary causal connection between the actions of police and the death of Mr. Maloney. On this evidence, I find that I do not have reasonable grounds to believe that any of the officers involved in either the planning or the subsequent execution of the search warrant committed any criminal offence and no charges shall issue.
Date: March 20, 2018
Original signed by
Special Investigations Unit
- footnote Back to paragraph Mr. Maloney’s family has consented to the release of his name.
- footnote Back to paragraph The term “practical certainty” is defined in the CFS Report. It states that since it is not possible to collect and examine samples of all firearms, it is not possible to make identification with absolute certainty. However all scientific research and testing to date and the continuous inability to disprove the principles of tool mark analysis have demonstrated that firearms produce unique, identifiable characteristics which allow examiners to reliably make identifications.
- footnote Back to paragraph A bullet located in the east bedroom wall and a cartridge case found in the hallway just outside of the door leading to the back bedroom were determined with practical certainty by CFS to have been fired from SO #3’s C8 rifle.
- footnote Back to paragraph In his SIU statement, SO #1 said that he believed that one of the three shots he discharged struck Mr. Maloney in the upper left shoulder. Moreover, when SO #1 was negotiating with Mr. Maloney, he asked him if he needed medical aid, and Mr. Maloney said he did, but would not elaborate on the nature of the medical aid required.
- footnote Back to paragraph According to CFS, it is with practical certainty that these three bullets (ie. described under heading “Gunshot wounds to Head and Chest” as (b) (c) and (d)” above) were fired from SO #2’s MP5.
- footnote Back to paragraph At the time, he felt a distinct sharp impact no larger than a dime and believed that he had been shot.
- footnote Back to paragraph In fact, CW #1 indicated to SIU investigators that at the time of the incident Mr. Maloney kept several weapons throughout the house and on his person.
- footnote Back to paragraph This was the opinion of a senior Crown Attorney in London. In addition, by December 20, 2016, senior members of the LPS were aware that the Provincial Anti-Terrorist Squad (PATS) and the Integrated National Security Enforcement Unit (INSET) had been informed about Mr. Maloney and his posts and neither group felt that it was necessary to commence an investigation. They were aware that he was anti-establishment and anti-government but was not associated or affiliated with any extremist organization or any specific group of cause.
- footnote Back to paragraph It should be noted that Mr. Maloney was never convicted of any offence relating to these firearms.
- footnote Back to paragraph After the residence was cleared, WO #9 saw what appeared to be a handgun bullet lodged in SO #1’s vest. It was on the left side of the vest about an inch [2.54 centimetres] above the bottom of the ballistic plate inserted in the vest. Upon further examination, it turned out to be the bent metal tip of a crossbow bolt.
- footnote[11"] Back to paragraph Numerous officers heard SO #1 indicate that Mr. Maloney had a gun after he was shot. The very limited lighting in the hallway compounded the uncertainty.
- footnote Back to paragraph See notes in footnote 8 on page 23.
- footnote Back to paragraph In addition to the opinions of PATS, INSET and the Crown Attorney who had access to the material that Mr. Maloney put on the website, WO #22 was well aware of the fact that Mr. Maloney was the “webmaster” of the cinema computer with total control and authorization to make changes to the content of the website. In fact, he had the cinema’s actual servers in his home. If in fact the materials he is alleged to have posted to the website constituted “unauthorized use” of the site, then it was much more likely that the “unauthorized use” was a civil matter between Mr. Maloney and the owner of the cinema than a criminal matter.