SIU Director’s Report - Case # 17-OFD-135

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.

Information restrictions

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.

Mandate engaged

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 31-year-old man during his attempted apprehension on June 3^rd, 2017.

The investigation

Notification of the SIU

At approximately 3:19 a.m. on Saturday, June 3^rd, 2017, the Ottawa Police Service (OPS) notified the SIU of a firearm death.

The OPS reported that on June 3^rd, 2017, at 2:19 a.m., an OPS officer transmitted via radio that he was involved in a shooting at Murray Street and Dalhousie Street in the City of Ottawa. Other police officers arrived after the incident. At the time of the SIU notification, the OPS reported that three males were shot and two were fatally wounded.

The team

Number of SIU Investigators assigned: 7

Number of SIU Forensic Investigators assigned: 2

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, diagrams and measurements. The Forensic Investigators attended and recorded the post-mortem examination and assisted in making submissions to the Centre of Forensic Sciences.

Complainant

31-year-old male, deceased

Civilian witnesses

CW #1 Interviewed

CW #2 No interview, next of kin

CW #3 Deceased

CW #4 Interviewed

CW #5 Declined an interview with SIU

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Interviewed

During the course of this investigation, the Program Manager, Corporate Security, for the City of Ottawa, advised that he had raw video footage relating to events surrounding the fatal shootings inside the municipal parking garage located near 137 Murray Street. SIU investigators obtained copies of these video recordings on June 4^th, 2017.

The closed circuit television (CCTV) video recordings captured two potential witnesses later identified as CW #5 and CW #8. The video showed the Complainant fatally shooting CW #3 as CW #5 entered the garage. The video also showed CW #8 paying for parking at a kiosk machine, situated on the north side of the garage. The video captured the subject officer (SO) running into the garage with his service pistol drawn and then disappearing out of camera view. The video footage did not capture the confrontation between the Complainant and the SO.

CW #5 was contacted by the SIU on June 3^rd, 2017 and declined to be interviewed. CW #8, however, was later located and consented to be interviewed on June 27^th, 2017.

It was learned from CW #8’s interview that he had a passenger inside his car at the time of this incident. The passenger was identified as CW #9. SIU investigators contacted CW #9 and he agreed to be interviewed by the SIU on July 20^th, 2017.

Additional civilian witnesses

The remaining civilian witnesses were not interviewed because they did not witness the events inside the municipal parking garage and could not offer any evidentiary value to this investigation. The majority of these witnesses were present when the Complainant had an altercation with another civilian. In the course of that altercation, that civilian was shot. According to these witnesses, the Complainant shot that civilian at the Market Cleaners, located at 286 Dalhousie Street. After the shooting, the Complainant fled the scene on foot and was pursued by CW #5, CW #3, and a group of unidentified males, northbound on Dalhousie Street toward Murray Street. CW #3 and CW #5 continued to chase the Complainant into the municipal parking garage located on Murray Street where the Complainant fatally shot CW #3.

Witness officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

Subject officers

SO #1 Interviewed, and notes received and reviewed

Incident narrative

On Saturday, June 3^rd, 2017, at 2:19 a.m., the SO was driving a fully marked OPS vehicle patrolling Ottawa’s Byward Market Area. While patrolling the area, the SO’s attention was drawn to three males carrying a street sign walking eastbound on Murray Street. The SO approached the males, at which time he heard the sound of a single gunshot in the vicinity of Dalhousie and Murray Streets.

The SO exited his police vehicle and looked toward the direction of Dalhousie Street, where he observed a group of males chasing a thin male (now known to be the Complainant) on foot northbound on Dalhousie Street, moving westbound onto Murray Street. The SO returned to his police vehicle and made a U-turn to drive westbound on Murray Street, which is an eastbound one way street, in order to catch up to the Complainant. As the SO passed the group of males (two of the males in the group believed to be CW #5 and CW #3), one of the males pointed at the Complainant and shouted, “It was him,” indicating to the SO that the Complainant had fired the single gunshot on Dalhousie Street.

The SO pulled alongside the Complainant, drew his service pistol, and tried to affect a gunpoint arrest of the Complainant from inside his police vehicle. The SO ordered the Complainant to stop, but he refused to comply. The SO began pursuing the Complainant on foot eastbound on Murray Street, to a municipal parking garage located near 137 Murray Street.

The SO heard another single gunshot. As the SO entered the parking garage, a male (now known to be CW #3) stumbled out of the parking garage clutching his chest. The SO saw the Complainant running up a ramp southbound toward section 3 of the parking garage.

The SO continued to pursue the Complainant inside the parking garage, with his service pistol drawn, as he continuously shouted at the Complainant to stop and to get down on the ground. The Complainant suddenly turned and pointed his firearm at the SO. The SO discharged nine shots from his service pistol. The Complainant went down in between two parked cars and the SO was not sure if any of the shots had struck the Complainant. The SO maintained his position behind a concrete pillar while he waited for other police units to arrive.

Other police officers arrived and the Complainant was found deceased between the parked cars, bleeding from an apparent gunshot wound to the head.

The Coroner pronounced the Complainant dead at the scene. CW #3 was transported to hospital where he was pronounced dead at 3:13 a.m.

Cause of Death

On Monday, June 5^th, 2017, the Forensic Pathologist performed a post-mortem examination on the Complainant. Upon completion of the post-mortem examination, the Pathologist indicated that the cause of death was a gunshot wound to the head.

Evidence

The Scene

The first shooting took place at Market Cleaners located at 286 Dalhousie Street in the City of Ottawa. Evidence of a spent 9mm brass cartridge case was located on the sidewalk, as well as a small pool of blood, medical debris and a baseball cap. North of Market Cleaners near Murray Street, two 9mm brass cartridge cases and a grey hoody sweater were located. Around the corner, west of the intersection of Murray Street and Dalhousie Street, two more 9mm brass cartridge cases were located. A brass 9mm cartridge case ejected from the Complainant’s pistol was also located near the gate arm in the parking garage.

The nine cartridge cases and one live round ejected by the SO’s service pistol on the third level of the parking garage were in a tight grouping consistent with his position when he took cover behind a concrete pillar.

The nine fired cartridge cases from the SO’s service pistol were approximately 14 metres from where the Complainant lay on the third level of the parking garage. The Complainant’s body was located in between two parked vehicles on the north side of the concrete pillar. Three motor vehicles parked along the south side of the parking garage displayed bullet strikes fired from the SO’s service pistol and were within ten metres of the Complainant’s body. The Complainant was lying face down on the pavement with his hands handcuffed behind his back. There was a pool of blood around his head and a 9mm pistol lying next to the right side of his body. A second ejected live round from the SO’s service pistol was found on the south side of the parking garage near a concrete pillar. It is believed the live round was ejected when the SO conducted a magazine change while moving to the south side of the parking garage to take cover behind the pillar.

Scene Diagram

Physical evidence

Involved firearms

The involved firearms, spent cartridge cases, and cartridges located at the scene are indicated on the SIU diagram as prepared by SIU FI as follows:

• Items 007 to 017 are Lugar 9mm cartridge cases and cartridges are attributable to the SO’s Glock 17 Gen 4 with attached flashlight. The Lugar 9mm ammunition is assigned to tactical officers as part of their use of force equipment, and
• Item 6 is the sole 9mm cartridge case conclusively attributable to the Complainant’s Star, 9mm semi-automatic pistol, with the serial number ground off. The firearm was located next to his body.

Forensic evidence

At the time of writing this report, the SIU has not received the formal copy of the Coroner’s report, however, the Pathologist’s conclusion at the time of the post-mortem, that the cause of death was “a gunshot wound to the head,” is consistent with the evidence obtained.

The SO’s and the Complainant’s guns were sent for forensic firearms and tool mark examination. Further CFS examinations of the Complainant’s 9mm pistol were conducted to generate DNA profiles and restore the obliterated serial number.

The obliterated serial number from the Complainant’s gun was partially restored.

The SIU received the Firearms Report on January 22^nd, 2018. The report concluded, within the limits of practical certainty, that the cartridge test fired from the SO’s gun matched the silver cartridge casings found at the shooting scene. Further, the Complainant’s gun had a glitch, in that its magazine had a tendency to activate the gun’s ‘internal safety’, causing the gun to not fire until the magazine was adjusted and seated properly.^{footnote 1[1]}

The Biology Report was received by the SIU on August 4^th, 2017. That report indicated that the blood of CW #3, who was shot by the Complainant, was on the Complainant’s gun at three locations. Additionally, the Complainant’s DNA was on one of the cartridges fired by the SO.

Finally, the SIU received the Toxicology Report on February 28^th, 2018. It indicated the presence of ethanol and THC in the Complainant’s system.

Video/audio/photographic evidence

City of Ottawa CCTV video footage

The footage in the videos provided by the Program Manager of Corporate Security for the City of Ottawa, corroborated the evidence of the involved police officers and civilian witnesses. The video from the parking garage shows the Complainant shooting CW #3, then running further into the parking garage.

Shortly afterwards, CW #5 is seen to run into the garage followed by the SO, who had his service pistol drawn and was running in the same direction as the Complainant. The SO then disappeared from camera view. The remaining video images captured CW #8 reversing his vehicle and exiting the parking garage in an easterly direction toward the Clarence Street exit. Images of WO #1 and WO #2 are captured entering the parking garage from the Murray Street exit with their service pistols drawn shortly afterwards.

The images of the SO and the Complainant are not captured on video at the time that the SO discharged his service pistol.

Communications recordings

The 911 calls and the communications recording of the events of June 3^rd, 2017, leading up to the Complainant’s death are consistent with the CAD and the witness statements. In addition, the radio communications corroborated the statements of the involved police officers, civilian witnesses, and the OPS supporting documentation.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPS

• Recordings of 911 calls
• Police Transmission Recordings:
• CPIC Query-the Complainant
• General Occurrence Report
• ICAD
• Notes of WO #s 1-4 and the SO
• Police Firearms Acquired - CFP
• Procedure 6.07-Use of Force, and
• Written Statements of WO #s 3 and 4, and the SO

Relevant legislation

Section 25(1) and (3), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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 preservations of any one under that person’s protection from death or grievous bodily harm.

Section 27, Criminal Code of Canada – Use of Force to Prevent Commission of Offence

27 Every one is justified in using as much force as is reasonably necessary

1. to prevent the commission of an offence
   1. for which, if it were committed, the person who committed it might be arrested without warrant, and
   2. that would be likely to cause immediate and serious injury to the person or property of anyone; or
2. To prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a)

Section 34, Criminal Code - Defence of Person – Use of Threat of Force

34 (1) A person is not guilty of an offence if

1. 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
2. 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
3. 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:

1. the nature of the force or threat
2. 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
3. the person’s role in the incident
4. whether any party to the incident used or threatened to use a weapon
5. the size, age, gender and physical capabilities of the parties to the incident
6. 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;
   1. (f.1) any history of interaction or communication between the parties to the incident
7. the nature and proportionality of the person’s response to the use or threat of force, and
8. whether the act committed was in response to a use or threat of force that the person knew was lawful

Section 88(1), Criminal Code - Possession of weapon for dangerous purpose

88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

Section 91 (1), Criminal Code – Unauthorized possession of firearm

91(1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted without being the holder of

1. a licence under which the person may possess it, and
2. in the case of a prohibited or a restricted firearm, a registration certificate for it

(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.

(3) Every person who commits an offence under subsection (1) or (2)

1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
2. is guilty of an offence punishable on summary conviction

Section 239, Criminal Code – Attempt to Commit Murder

239 (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable

1. if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
   1. in the case of a first offence, five years, and
   2. in the case of a second or subsequent offence, seven years

(a.1) in any other case 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

1. in any other case, to imprisonment for life

Section 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. causes bodily harm to the complainant

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Analysis and director’s decision

On June 3^rd, 2017, a group of persons exited a nightclub/restaurant on Clarence Street in the City of Ottawa. Witnesses in the area then observed what appeared to be an altercation between those exiting the restaurant and one lone male on the street; this altercation was observed to move down Dalhousie Street toward Murray Street. Shortly afterwards, the lone male was observed to draw a firearm and shoot one of the males from the group that had exited from the restaurant. That male was later transported to hospital and was treated; he survived his injuries.

Following the shooting of that male party, a number of his friends pursued the shooter towards the parking garage at the intersection of Dalhousie and Murray Streets. CCTV footage from the inside of the parking garage revealed that the shooter, later identified as the Complainant, entered the parking garage where he appeared to make contact with the gate arm which extended across the exit from the parking garage and fell to the curb; a second male, CW #3, is then seen to run into the garage after the Complainant. As CW #3 nears the location where the Complainant is still down on the ground, CW #3 appears to jump as if to kick the Complainant. Before CW #3 makes contact with the Complainant, however, the Complainant is seen to produce his firearm and shoot CW #3.

CW #3 then immediately turns and runs/stumbles back to the entrance to the garage where he collapses and is assisted by his friend, CW #5, while the Complainant runs further into the garage and out of camera range. Within seconds of the Complainant entering the garage, a uniformed police officer from the OPS, the SO, is seen to enter the garage in pursuit of the Complainant. The SO is holding his firearm out in front of him with the attached flashlight on. The SO also runs further into the garage and out of camera range. Shortly thereafter, nine gun shots are heard and the Complainant is later located between two cars, face down on the ground. When turned over, a 9mm pistol was located lying to the right of the Complainant’s body and the Complainant was found to have sustained a gunshot wound to the head. The Complainant was pronounced dead. A subsequent post-mortem examination determined the cause of death to be as a result of a single gunshot wound to the head. CW #3, who had been shot by the Complainant, also succumbed to his injuries and was later pronounced dead at hospital.

Forensic examination at the scene revealed a 9mm spent brass cartridge case on the sidewalk in the area where the first male was shot, along with a small pool of blood and medical debris. This spent case was attributed to the firearm of the Complainant. Further north from the location where the first male was shot, two additional 9mm brass cartridge cases were located and, around the corner and just west of the intersection of Dalhousie and Murray Streets, two more 9mm brass cartridge cases were located. One final brass 9mm cartridge case ejected from the Complainant’s pistol was located near the gate arm in the parking garage.^{footnote 2[2]}

Nine cartridge cases and one live round ejected from the SO’s service pistol were located on the third level of the parking garage in a tight grouping consistent with having been fired from the SO’s pistol from the position where he took cover behind a concrete pillar.

The Complainant’s body was located approximately 14 metres (45 feet) from where the nine fired cartridge cases from the SO’s firearm were located. His body was located lying between two parked vehicles north of the concrete pillar where the SO took cover. Three motor vehicles parked along the south side of the parking garage displayed bullet strikes from shots fired from the SO’s firearm.

During the course of this investigation, seven civilian witnesses who were present on the night in question were interviewed; the friend of CW #3, CW #5, who was with him at the time that he was shot, declined to provide a statement. The SO provided a statement to investigators, as well as his memorandum book notes of the incident; additionally, four WOs who responded to the SO’s call for assistance were also interviewed and provided their notes to investigators for review. The 911 recordings, the police transmission recordings and log, and the CCTV video from the parking garage were also reviewed by SIU investigators. There is no dispute as to the facts.

The SO advised that he was driving in his fully marked police vehicle eastbound on Murray Street when he noticed three young males stealing a street sign from a construction site and running off with it. The SO was engaging these three males when he heard a single gunshot from the vicinity of Dalhousie Street and he got out of his truck and looked over the roof of his vehicle, where he noticed a group of males running northbound on Dalhousie Street toward Murray Street.

This is confirmed by three independent civilian witnesses, two of whom observed the Complainant run eastbound on Murray Street and the three males from the alcove pursue him towards a municipal parking garage. About ten seconds later, witnesses observed the SO in foot pursuit of the males running eastbound on Murray Street towards the parking garage. One gunshot was then heard and, about 20 seconds later, a series of nine additional gunshots being fired consecutively were heard and CW #3 was observed lying on the ground bleeding in front of the parking garage, while a second male was yelling for help.

Another witness confirmed that he too observed a black male believed to be the Complainant running eastbound on Murray Street with two males, believed to be CW #3 and CW #5, chasing him into the parking garage. Shortly after the males entered the parking garage, the witness heard what he thought were three or four gunshots and he saw CW #3 exit the parking garage and fall to the ground, while CW #5 initially continued to pursue the Complainant, but then returned to assist CW #3. About ten to 15 seconds later, the witness heard the sound of what he thought were ten gunshots coming from inside the garage and he called 911.

The SO advised that he re-entered his vehicle and drove westbound on Murray Street, where he was able to see that a group of males was chasing the Complainant. As he neared, the males pursuing the Complainant yelled words indicating that the Complainant was the male who had fired the gunshot. As the SO neared the Complainant’s location, he drew his firearm and pointed it out the window at the Complainant and yelled at him, identifying himself as a police officer, and telling him to get on the ground and to show his hands. The SO advised that he activated the light on his firearm and observed the Complainant to look directly at him, stop, make a 180 degree turn, and then run eastbound on Murray Street. The SO advised that he could not see at that point whether or not the Complainant had a weapon in his possession.

The SO was unable to turn his vehicle around, so he exited and began a foot pursuit, while he transmitted over the police radio that he was in pursuit of an armed male. This is confirmed by the radio transmission recordings wherein the SO is heard to transmit, “I think we’ve got a gunshot here … got one male running towards Dalhousie on Murray – sorry, St. Pat’s.” The recording reveals that the officer is clearly running and is breathing heavily. The SO advised he initially lost sight of the Complainant as he ducked into a small parking lot, but then spotted him again running eastbound on Murray Street with the same group of males returning and resuming the chase. The SO advised that he closed the gap between himself and the Complainant to about 15 metres, when the Complainant turned into the underground parking garage. Within a second of the Complainant entering the parking garage, the SO heard another gunshot.

This evidence is confirmed both by the CCTV footage from the entrance to the parking garage, as well as the evidence of three civilian witnesses.

One witness observed the Complainant enter the parking garage, trip over the gate arm, and stumble against the metal hand railing; he then heard gunshots coming from behind the Complainant. The Complainant was observed holding a handgun in his right hand and pointing it at the witness, but then he turned towards Murray Street and fired off three rounds. CW #3 was then seen to fall backwards near the garage exit and the Complainant ran in the direction of the parking ramp holding the gun in his right hand, and he was lost from sight.

Two other witnesses observed the Complainant run into the garage and stumble against a median pillar, following which he fell to the ground. CW #3 was then seen to enter the parking garage after the Complainant and he was about to leap onto the Complainant when the Complainant pulled out a gun and shot CW #3. The Complainant then got back to his feet and ran onto the ramp to the upper level of the garage while CW #3 stumbled backwards out of the garage onto Murray Street. The SO was then observed to run into the garage with his firearm drawn and was heard to yell out twice, “Drop the gun, drop the gun.” The SO was seen near a pillar beside the ramp and two muzzle flashes from the SO’s gun were seen and two gunshots were heard.

The SO advised that he entered the garage about two seconds after he heard the gunshot and he saw CW #3 stumble backwards out of the parking garage clutching his chest with blood spewing from his mouth. The SO advised that he saw the Complainant ahead in the underground garage running up the centre ramp to the second level and he yelled at him to drop the gun and show his hands. The SO advised that the Complainant turned and looked directly at him but continued to run. As the Complainant was running up the ramp, he looked over his left shoulder and pointed the gun directly at the SO with his right hand. The SO advised that he could see the barrel of the Complainant’s firearm and that he had no doubt whatsoever that the Complainant was prepared to kill him.

The SO advised that he immediately discharged a volley of shots from his firearm at the Complainant, which he estimated as some six to eight shots. He observed the Complainant dive between two parked cars and the SO was unable to ascertain if any of the shots he fired had actually made contact with the Complainant. The SO, in anticipation of the Complainant reappearing and there being a further exchange of gunfire, changed the magazine in his firearm, swapping out his half empty magazine and replacing it with a full magazine and taking cover behind a concrete pillar, where he remained until other units arrived.

The SO then again transmitted over the radio, which is confirmed by the recording where he is heard to say “from Dalhousie into the underground parking – he’s heading over to Clarence”, then seconds later, “Gunfire here – I’ve got a male – he’s got a handgun – shots exchanged – we’re in the underground parking between Clarence and Dalhousie.” And then, “Male’s down on the ground. I don’t know if I hit him or not. Many shots exchanged.” And 11 seconds later, “I got one male that’s been hit by his gunfire … he’s bleeding out. He was hit in the stomach, it looks like he’s on St. Pat’s at the entrance to the parking garage.”

From the SO’s first transmission indicating that he thought there was a gunshot, until his final transmission indicating that CW #3 was bleeding out at the entrance to the parking garage, only 76 seconds had elapsed.

Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. Further, pursuant to s. 25(3):

(3) … 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 … from death or grievous bodily harm.

As such, in order for the SO to qualify for protection from prosecution under s. 25, it must be established that he was in the execution of a lawful duty, that he was acting on reasonable grounds, and that he used no more force than was necessary. Furthermore, pursuant to subsection 3, since death was caused, it must also be established that the SO used lethal force believing on reasonable grounds that it was necessary to do so in order to preserve himself or others from death or grievous bodily harm.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the gunshot heard by the SO, along with the utterances yelled by the males pursuing the Complainant (in which they indicated that he was the person responsible, and the SO’s own observations of the shooting of CW #3, which followed almost immediately upon the Complainant entering the underground garage and pointing his firearm at the SO) that the SO, at the very least, had reasonable grounds to believe that the Complainant was guilty of possession of a restricted or prohibited weapon, weapons dangerous, assault with a weapon, and attempt murder, along with a slew of other charges. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the other requirements pursuant to s.25 (1) and (3), I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

The court describes the test required under s.25 as follows:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59).

The decision of Justice Power of the Ontario Superior Court of Justice in Chartier v. Greaves, [2001] O.J. No. 634, as adopted by the Supreme Court of Canada above, sets out other relevant provisions of the Criminal Code to be considered, as follows:

27. Use of force to prevent commission of offence - Everyone is justified in using as much force as is reasonably necessary

1. to prevent the commission of an offence
   1. for which, if it were committed, the person who committed it might be arrested without warrant, and
   2. that would be likely to cause immediate and serious injury to the person or property of anyone, or
2. to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a)

This section, therefore, authorizes the use of force to prevent the commission of certain offenses. “Everyone" would include a police officer. The force must not be more than that which is reasonably necessary. Therefore, an objective test is called for. The Ontario Court of Appeal, in R. v. Scopelliti (1981), 63 C.C.C. (2d) 481, held that the use of deadly force can be justified only in either cases of self-defence or in preventing the commission of a crime likely to cause immediate and serious injury.

34(1) Self-defence against unprovoked assault - Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

2. Extent of justification - Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
   1. he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes, and
   2. he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.^{footnote 3[3]}

In order to rely on the defence under subsection (2) of Section 34, a police officer would have to demonstrate that he/she was unlawfully assaulted and caused death or grievous bodily harm to the assaulter in repelling the assault. The police officer must demonstrate that he or she reasonably apprehended that death or grievous bodily harm would result to him or her and that he or she, again on reasonable grounds, believed that he/she could not otherwise preserve himself/herself from death or grievous bodily harm. Again, the use of the term ‘reasonable' requires the application of an objective test.

Further, the court sets out a number of other legal principles gleaned from the legal precedents cited, including the following:

8. Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event
9. "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14^th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver)
10. Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances
11. "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.)

On the basis of the foregoing principles of law then, I must determine whether the SO:

1. Reasonably believed that he was at risk of death or grievous bodily harm from the Complainant at the time that he discharged his firearm, and
2. Whether that belief was objectively reasonable, or, in other words, whether his actions would be considered reasonable by an objective bystander who had all of the information available to the SO at the time that he discharged his firearm

With respect to both of these criteria, it is clear from the statement of the SO that he believed that he was at risk of death or grievous bodily harm at the time that he discharged his firearm. He based that belief on his observations that the Complainant had already allegedly shot two other men and was now pointing his firearm directly at the SO. The SO indicated in his statement that there was no doubt in his mind that the Complainant was prepared to kill him. On this evidence, and based on the information in the possession of the SO at the time, it is clear that he had reasonable grounds to believe that he was at risk of death or grievous bodily harm from the Complainant at the time that he discharged his firearm and given the totality of the circumstances that his belief was objectively reasonable in the circumstances.

Furthermore, the evidence that the Complainant had already shot both the first male outside of the restaurant, and then CW #3, is evidence of the type that was found to be relevant in the decision of the Ontario Court of Appeal in Regina v. Scopelliti [1981] O.J. No. 3157, for the following reasons:

It is well established that where self-defence is raised, evidence not only of previous assaults by the deceased on the accused, but also of previous acts of violence by the deceased, known to the accused, towards third persons, is admissible to show the accused’s reasonable apprehension of violence from the deceased. Evidence of the deceased’s reputation for violence, known to the accused, is admissible on the same principle: see R. v. Drouin (1909), 15 C.C.C. 205 and commentary at 207; R. v. Scott (1910), 15 C.C.C. 442; Wigmore on Evidence, 3^rd ed., vol. II (1940), at pp. 44-52; Phipson on Evidence, 12^th ed. (1976), at pp. 188, 228.

Obviously, evidence of previous acts of violence by the deceased, not known to the accused, is not relevant to show the reasonableness of the accused’s apprehension of an impending attack. However, there is impressive support for the proposition that, where self-defence is raised, evidence of the deceased’s character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased.

On a review of all of the evidence, it is clear that the Complainant, who is observed on video to shoot CW #3 and who it was believed, based on information received by the SO, had fired his gun once earlier that evening, had both the ability and the willingness to fire his weapon and was not reluctant to do so. On that basis, when he turned and pointed his firearm at the SO, the SO had no reasonable option other than to fire at the Complainant in order to save his own life; no other use of force option at his disposal would have had the ability to save his life in these circumstances.

Having extensively reviewed all of the evidence, and the law relating to the justification in using force intended to cause death or grievous bodily harm when one believes on reasonable grounds that it is necessary for one’s self-preservation from death or grievous bodily harm, one is entitled to use lethal force. I find in all of the circumstances that the SO reasonably believed that his life was in danger from the Complainant and thus he was justified in the use of lethal force. I find that it would have been foolish and reckless for the SO to risk his own life by waiting to see if the Complainant would actually fire upon him, when it was clear that he had already fired on one, if not two, men in the preceding minutes; and I find that risk was not one that the SO ought to have had to take when faced with a possible life or death situation with a man who, by all appearances, was armed and was an imminent danger to the SO and perhaps other individuals in the vicinity.

I find, therefore, on this record, that the shots that were fired, one of which struck and killed the Complainant, were justified pursuant to s.25(1) and (3) of the Criminal Code and that the SO, in preserving himself from death or grievous bodily harm from the Complainant, used no more force than was necessary to affect his lawful purpose. As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: March 16, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit