SIU Director’s Report - Case # 17-OFD-379

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 shooting death of a 35-year-old man (the Complainant) on December 30, 2017 during an interaction with police.

The investigation

Notification of the SIU

At approximately 2:09 a.m. on December 30, 2017, the Peel Regional Police (PRP) notified the SIU of the firearm death of a man in Mississauga. At the time of the notification, the man had not yet been identified.^{footnote 1[1]}

The PRP reported that at approximately 12:38 that morning, a complaint had been received that a man had approached a female pedestrian while armed with a machete. Police officers attended the area but could not initially locate the man. PRP police dog handlers and tactical unit police officers were then dispatched, along with a police dog, to search for the man. The dog was able to lead the police officers to a residence on Torino Crescent, in the City of Mississauga, where the police officers located the Complainant.

The PRP further reported that the man then ran up to the front door of a residence and kicked at the door. One of the tactical police officers deployed an ARWEN [Anti-Riot Weapon Enfield, a ‘less-lethal’ weapon] but it was not effective. A police dog handler then fired his pistol and the man was struck. The man had been taken to St. Michael’s Hospital without any vital signs.

The Team

Number of SIU Investigators assigned: 8

Number of SIU Forensic Investigators assigned: 3

The SIU immediately dispatched six investigators and three forensic identification investigators, to attend the scene and the hospital where the Complainant had been taken.^{footnote 2[2]} Later that day, a Polish speaking SIU investigator was added to the investigation to act as a family liaison to the Complainant’s family in Poland, as he did not have any family in Canada.^{footnote 3[3]}

The SIU photographed and video recorded the scene. A Total Station device was employed to forensically map the scene. Scene evidence was collected.

An SIU forensic investigator took possession of the ARWEN that had been deployed during the incident and also took possession of the subject officer’s (SO’s) pistol and spare ammunition. Photographs were taken of the SO, in uniform and with all his equipment, in order to document the use of force options carried by him at the time of the incident.

On December 31, 2017, a forensic pathologist conducted a post-mortem examination at the Ontario Forensic Pathology Service facility in Toronto. The preliminary cause of death was determined to be a gunshot wound to the Complainant’s chest.

There was a significant issue with respect to confirming the Complainant’s identity. A name had been provided by the Complainant’s landlord, but no documentation could be found to confirm that identity. The SIU met with officials from the Consulate General of the Republic of Poland in Toronto, and made arrangements to have the local police in Poland show the Complainant’s family a photograph that had been taken during the post-mortem examination. On January 8, 2018, the Polish Consulate provided the SIU written confirmation that the Complainant had been positively identified by two of his aunts, who are his closest living relatives.

The area of the shooting was canvassed numerous times to identify any potential witnesses or video surveillance devices.

Complainant:

35-year-old male, deceased

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

Witness Officers

WO #1 Notes reviewed, interview deemed not necessary

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

WO #5 Interviewed, notes received and reviewed

WO #6 Interviewed, notes received and reviewed

WO #7 Notes reviewed, interview deemed not necessary

WO #8 Notes reviewed, interview deemed not necessary

WO #9 Notes reviewed, interview deemed not necessary

WO #10 Notes reviewed, interview deemed not necessary

WO #11 Notes reviewed, interview deemed not necessary

WO #12 Notes reviewed, interview deemed not necessary

WO #13 Notes reviewed, interview deemed not necessary

WO #14 Interviewed, notes received and reviewed

WO #15 Notes reviewed, interview deemed not necessary

WO #16 Notes reviewed, interview deemed not necessary

WO #17 Interviewed, notes received and reviewed

WO #18 Notes reviewed, interview deemed not necessary

WO #19 Notes reviewed, interview deemed not necessary

The SIU reviewed the notebook entries of all of the designated witness officers. However, only those police officers who were present for the event, or had dealings with the involved police officers soon afterward, were interviewed.

Subject Officers

SO Interviewed, and notes received and reviewed

Incident narrative

In the late evening of December 29, 2017, the Complainant was observed on Willowbank Trail in the City of Mississauga, a street near his residence, where he approached several people asking them where “Ewa” (pronounced Eva in English) was. The Complainant displayed a large machete/knife to people while speaking to them, and was reported to have used the knife to slash at one of the 911 callers, who managed to avoid being cut by the weapon. At least two individuals called 911 to report the situation.

The Complainant then returned to Torino Crescent, where he confronted a neighbour, telling the neighbour that he had consumed cocaine that evening.

Several police officers responded to the area and attempted to establish a perimeter in order that a police service dog could be deployed to track the as yet unidentified Complainant. Two police dog handlers, a Police Service Dog (PSD), and two tactical unit police officers responded to the area and began to move down Shelby Crescent, a street that intersects with Torino Crescent. As they approached Torino Crescent, the officers spotted the Complainant, who matched the description provided in the 911 calls as being the man with the machete, standing at the front of a residence across the street from his own. One of the police officers called out to the Complainant, who then immediately ran across the road to his residence.

The Complainant was seen kicking at the front door of the residence, as the four police officers took up positions at the end of the driveway. The Complainant then came away from the front door and walked toward the driveway. As he walked around the rear of a car that was parked in the driveway, the Complainant raised the same weapon that he had been seen brandishing earlier, a machete style knife with a 12 inch (30 cm) blade. Police immediately directed the Complainant to drop the weapon but, instead, the Complainant moved towards the officers with the machete/knife in hand. As the Complainant was swiftly approaching the SO, the SO, who feared for his life and that of his colleagues, discharged his firearm. Simultaneously, one of the tactical unit police officers who was armed with an ARWEN (an anti-riot weapon), discharged a single shot at the Complainant’s lower leg. While the ARWEN projectile struck the Complainant in the shin, one of the shots fired by the SO struck him in the chest. Police officers quickly approached to assist the Complainant, who was found to be vital signs absent. Shortly thereafter, paramedics arrived and also attempted life saving techniques on the Complainant, following which he was transported to hospital, where the Complainant was pronounced dead at 1:51 a.m. on December 30, 2017.

Cause of Death

The Post-Mortem Report, which the SIU received on October 2, 2018, determined the cause of death to be a gunshot wound to the left chest.

Evidence

The Scene

John Cabot Secondary School and St. Vincent de Paul Secondary School are located next to each other at Willowbank Trail and Rathburn Road in the City of Mississauga. Behind the schools are yards and a small green space, known as Shelby Park. A small walkway leads from the schoolyards through Shelby Park to Shelby Crescent.

Walking eastward on Shelby Crescent from the walkway, the first street one encounters is Torino Crescent.

The residence on Torino Crescent, where the Complainant was subsequently determined to be residing at the time, is located at the northwest corner of Torino Crescent and Shelby Crescent. A paved driveway leads to a single car garage at the front of the house. To the right of the garage is a walkway leading to the front door of the residence.

On December 30, 2018, there were snowbanks of shovelled snow along either side of the driveway and a sedan was parked on the right side of the driveway, nose in toward the garage at the end of the driveway, furthest from the street. On the left side of the driveway, approximately halfway up the driveway from Torino Crescent, medical debris and a large machete style knife were located lying on the pavement.

An ARWEN projectile was located in the snowbank to the left of the garage. The spent ARWEN cartridge case was found on Torino Crescent, to the left of the driveway. Also found on Torino Crescent at the end of the driveway were three spent pistol cartridge cases.

At the time of his death, the Complainant was wearing a grey, black, and white “urban camo” patterned jacket, faded blue jeans, black Adidas boots with white soles, and a black hooded sweatshirt, under which he wore a multi-coloured button-up shirt. A can of beer was found in one of his jacket pockets.

The knife recovered from the scene was a Camillus “Carnivore X” machete-style knife^{footnote 4[4]} with a 12 inch (30 cm) blade. The cutting edge of the machete had a sharpened edge, and the top of the knife was serrated, to allow for sawing. At the tip of the machete there was a wire cutting hook. The handle of the machete had been covered with black electrical tape.

Scene Diagram

Physical Evidence

The weapon observed in the Complainant’s possession.

Forensic Evidence

Firearms and Centre of Forensic Sciences (CFS) Examination Results

The SIU collected the SO’s firearm, a Smith and Wesson M&P .40 calibre semi-automatic pistol, following the incident. An examination of the firearm determined there were ten cartridges in the magazine and one cartridge in the chamber. The SO’s spare magazines were each loaded with 14 cartridges.

The SO’s pistol and spare ammunition were submitted to the CFS on January 12, 2018, for distance determination and other analyses; also included in that submission was the outermost clothing worn by the Complainant.

On May 1, 2018, the SIU received the Firearms Report from the CFS. On June 11, 2018, a case conference was convened involving the pathologist, the Regional Supervising Coroner, the CFS firearms examiner, the SIU Lead Investigator, and the SIU Lead Forensic Investigator. Following that case conference, the CFS issued an amended firearm report in order to more clearly explain the positioning of bullet defects. That amended report was received by the SIU on July 27, 2018.

The SO’s pistol was found to be operating correctly and the three spent .40 calibre cartridge cases recovered from the end of the driveway were confirmed to have been fired from the SO’s pistol.

Given that the SIU found 11 rounds of ammunition in the SO’s firearm, and his spare magazines contained 14 rounds of ammunition, it is probable that the SO fired three shots^{footnote 5[5]}, which is consistent with the number of spent cartridge cases recovered from the scene.

A bullet recovered from the Complainant’s right side was found embedded in the muscle of the right back^{footnote 6[6]} and was determined to have been fired from the SO’s pistol. Another projectile, recovered from the Complainant’s right arm, was found to be consistent with the ammunition carried by the SO, but there were insufficient characteristics to positively identify the projectile as having come from the SO’s pistol.

Several [suspected] bullet defects were observed in the Complainant’s jacket. There was a series of three defects that were possibly associated, two of which were in the left sleeve of his jacket and a third in the left rear torso of the jacket. The initial CFS report had concluded that if those three defects were caused by a single bullet, the bullet travelled from left to right, entering the outer part of the left sleeve and exiting the inner side of the sleeve before then entering the left torso section of the jacket. The defects in the sleeve, however, and the defect in the side of the jacket, could have been caused by two separate projectiles.

During the case conference on June 11, 2018, there was discussion regarding the bullet fragments recovered from the Complainant’s left elbow, which could not have come from the essentially intact bullets that were recovered from the muscles in his back and shoulder. Therefore, the defects in his sleeve were more likely to have been caused by a different bullet than the bullet that caused the defect to the left rear torso area of the jacket.

There was a single defect in the left side chest of the jacket. The CFS determined that if that defect had been caused by a bullet, the bullet travelled from left to right, entering the jacket on the left side.

There was another set of defects in the right chest area of the Complainant’s jacket. Had those defects been caused by a bullet, the CFS concluded, the bullet would have passed from left to right, entering the jacket on the right chest area.

There was no firearm discharge residue in the area of any of the defects in the Complainant’s jacket, making it impossible to perform a distance analysis. The type of firearm carried by the SO, however, a Smith and Wesson M&P .40 calibre semi-automatic pistol, would not generally deposit discharge residues beyond 36 inches, according to the expert opinion of the CFS; this would suggest the distance between the Complainant and the SO was at least 36 inches at the time that the SO discharged his firearm.

Toxicology Submissions and CFS Examination Results

On January 12, 2018, the SIU submitted biological samples, obtained from the Complainant during the post-mortem examination, to the CFS for toxicological analyses.

The toxicology results were received by the SIU with the Post-Mortem Report on October 2, 2018. It indicated that the Complainant had methamphetamine in his system within the range deemed to be consistent with recreational use of the drug.

DNA Submissions and CFS Examination Results

On February 26, 2018, the SIU submitted swabs, from the machete/knife recovered at the scene, to the CFS for handler DNA analysis. On March 26, 2018, the CFS reported there was only one DNA profile developed from the swabs from the machete/knife, that being from the Complainant.^{footnote 7[7]}

Expert Evidence

Post-Mortem Findings

The Complainant was approximately six feet tall (183 cm) and weighed 195 pounds (89 kgs). He had multiple superficial lacerations running along the insides of both forearms. There were similar lacerations to his left inner calf and right thigh. There is no known explanation for those lacerations.

There was a bullet defect in the Complainant’s outer left elbow and a bullet defect in his inner elbow. Bullet fragments were recovered from the inside of his left elbow.

There was a bullet defect in his left upper ribs, in the area underneath his armpit. The bullet that caused that injury was recovered from his right side.

There was a bullet wound to his right chest, midway between his right clavicle and his right nipple; fabric, believed to have been insulation from his jacket, was found in that wound. That bullet was recovered from his right upper arm/shoulder area.

There was also a non-penetrating bullet wound in his mid-sternum (breast bone), between his two nipples. The breast bone was fractured but not perforated.

On the Complainant’s right shin there was a superficial impact injury, circular and approximately 35 mm in diameter, consistent with an impact from an ARWEN projectile.^{footnote 8[8]}

The Post-Mortem Report, which the SIU received on October 2, 2018, determined the cause of death to be a gunshot wound to the left chest. The toxicology report found methamphetamine in the Complainant’s system, within ranges expected with recreational use.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, but none were located. Photographs taken by CW #4 were reviewed, but did not further the investigation as they did not reveal the incident taking place.

Communications Recordings

Radio Communications Recordings/Computer Aided Dispatch (CAD) Report

A review of the police recordings revealed the following:

At 12:37 a.m., a male caller [CW #5] called 911 to report that he had been chased by a middle-aged man who was swinging a knife at him. CW #5 told the call-taker that the man appeared to be quite unstable and was carrying a large kitchen knife and that he had been chasing CW #5 and asking, “You want this? You want this?” while swinging the knife at him.

CW #5 further reported that his girlfriend [CW #3] had called him earlier to report that she was being chased by someone; as she was speaking with CW #5, she was heard screaming, “Get away, get away.”

CW #5 described the male with the knife as being Caucasian, but having dark features and dark hair, and wearing a black and white mixed pattern jacket. He was also wearing a hooded sweater, with the hood pulled up over his head. CW #5 reported that the man did not appear to be intoxicated, he just looked like someone who wanted to hurt somebody.

CW #5 explained he had yelled out “Police” when the male was attacking him, following which the man ran away, into the fields behind John Cabot Secondary School.

At 12:38 a.m., the CAD report reveals that police officers were dispatched to the area to investigate a male running after people with a large knife. The responding police officers were advised that the subject had run between the schools near John Cabot Secondary School. The subject was described as being a tanned white male, six feet tall, in his early 30s, with short black hair and dark features, and wearing a white and black mixed pattern jacket. The police officers were advised that the 911 caller’s girlfriend had also been chased by a man who was armed with a knife.

Among the police officers dispatched to the incident were two police dog handlers, the SO and WO #4, and members of the PRP tactical unit, WO #2 and WO #3.

At 12:53 a.m., WO #5 reported that a witness [CW #2] had seen the subject in a field behind John Cabot Secondary School, 15 to 20 minutes earlier. The tactical team of WO #s 2 and 3, and the SO, reported that they were with WO #5. WO #5 asked for a perimeter to be established around the schools;

At 1:04 a.m., the SO reported that he and WO #4 were conducting a canine track with the tactical unit officers.

At 1:09 a.m., the SO reported that the subject had run northbound and into a house.

Twenty-five seconds later, the SO reported they needed an ambulance, and that shots had been fired.

At 1:12 a.m., the SO requested a rush on the ambulance, as the subject was nonresponsive.

At 1:13 a.m., the SO reported that CPR was being initiated.

At 1:51 a.m., the Complainant was pronounced dead at hospital.

Materials obtained from Police Service

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

• Audio Copy Report of the 911 Phone Calls
• Audio Copy Report of the Police Radio Transmissions
• Event Chronology (dispatch details) Report
• The memorandum notebook entries of WO #s 1 - 19
• PRP General Procedure: Canine Unit, and
• Use of Force training records for the SO

The SIU obtained and reviewed the following materials and documents from other sources:

• Paramedic incident reports (x5)
• Ambulance call reports (x3) from the Peel Emergency Medical Service
• Incident report from the Mississauga Fire and Emergency Service
• DNA Report from CFS
• Firearms Report from CFS
• Amended Firearms Report from CFS
• Toxicology Report from CFS
• Preliminary Autopsy Findings
• Post-Mortem Report, and
• Photos of Scene taken by CW #4

Relevant legislation

Section 25(1), 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;
   6. (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.

Analysis and director’s decision

The Incident

In the early morning hours of December 30, 2017, CW #3 was walking her dog on her way to meet her boyfriend when she noticed a man standing approximately five metres from her as she was walking on Willowbank Trail toward Saint Vincent de Paul Secondary School in the City of Mississauga. CW #3 noticed that the man was stumbling and had a black item of about six to eight inches in his left hand, held down by his side. CW #3 crossed the street in order to avoid the man, but when she looked behind her, she noticed that he had followed and had begun to chase her. The man then began to make barking noises imitating CW #3’s dog. CW #3 ran back toward her residence while calling her boyfriend, CW #5, as she did so. As she ended the call, CW #3 noticed that the man had stopped following her.

CW #5 was walking on the roadway in the area of John Cabot Secondary School to meet up with CW #3 when he received her call. While on the phone with CW #3, CW #5 heard her yell, “Get away from me! What are you doing?” CW #3 then advised CW #5 that a man was chasing her and she was running back to her house.

CW #5 then saw a shadowy figure approximately 500 metres in front of him on Willowbank Trail. The two men made eye contact, following which the man began to run toward CW #5. As the man neared, CW #5 saw that the man was holding a silver knife in his right hand of about 12 to 14 inches in length. The man lunged at CW #5 and yelled, “Do you want this? Do you want this?”

CW #5 became afraid and began to run toward CW #3’s house. As he ran past the man with the knife, he fell onto the roadway and the man then caught up to him as he was getting back up. The man started to jab and slash at CW #5, while continuously asking him, “Do you want this?” CW #5 managed to evade being slashed or stabbed by bending backwards and away from the man. CW #5 was then able to get back to his feet and, as he began to run again, he told the man that he was going to call the police; this appeared to deter the man, who then ran into the schoolyard of John Cabot Secondary School.

At 12:37 a.m., a 911 call came in to the Peel Regional Police (PRP) communications centre from CW #5. CW #5 is recorded as having advised the 911 call taker that he was being chased by a middle-aged man who was swinging a knife at him. CW #5 further reported that the man with the knife appeared to be quite unstable and began to chase him, while continuously asking CW #5, “You want this? You want this?” and swinging a large kitchen knife at him. CW #5 also reported that his girlfriend, CW #3, had called him to report that she was being chased by someone and that he had heard her screaming into the phone, “Get away! Get away!”

CW #5 went on to provide a fairly detailed description of the man, including his features and his clothing. CW #5 reported to the 911 call taker that the male did not appear to be intoxicated, but seemed intent on hurting someone. CW #5 described the man as having run away into the fields at John Cabot Secondary School when he yelled out, “Police!”

At 12:38 a.m., the dispatcher notified uniformed officers of the incident, providing both the man’s description and his direction of travel.

Approximately three minutes after CW #3 had initially spoken to CW #5, he called her again to tell her that he too had had an altercation with the man with the knife and that he had contacted police and they were responding. CW #3 then returned to the area where CW #5 was located, where she saw him speaking with police. CW #5 observed that at that time there were three marked police vehicles that had arrived in the area. The police officers spoke to both CW #3 and CW #5, with CW #5 confirming the information that he had already provided to the 911 call taker that he had been chased by a man with a knife.

CW #2, who was walking his dog at approximately 12:30 a.m.in the area of Shelby Park, behind the adjoining schoolyards of St. Vincent de Paul and John Cabot Secondary Schools, heard a person screaming and about five minutes later, saw a man walking towards him from the west side of the school. The description of the man matched that provided by both CW #3 and CW #5. CW #2 observed the man to be staggering, very jumpy, and slurring his words, and he surmised that the man was under the influences of a combination of drugs and alcohol. He described the man as having a thick Eastern European accent.

When the man came to within about one and one half metres of CW #2, CW #2 noticed that he had a machete or knife in his left hand, with a blade of approximately 12 inches in length and a width of about one and one half inches, with a pointed tip and a jagged edge on one side, and a smooth edge on the other. CW #2 was concerned about what the man intended to do.

The man asked CW #2 if he knew Eva, and CW #2 responded that he did not. The man then walked away toward a path leading out of the park, while sliding the knife up his left sleeve, concealing it, as he walked away.

About 15 minutes after CW #2’s interaction with the man, a police vehicle arrived and CW #2 spoke to the officer, providing him with the direction in which the man had been seen leaving the park. CW #2 also told the police officer about the machete/knife.

A second police cruiser and a truck were then seen to enter the park, and CW #2 observed a number of police officers, one of whom had a police dog on a leash. CW #2 then left the park and began to walk home, when he again saw the man, this time in front of a residence on Torino Crescent. CW #2 described the man as pacing back and forth on the sidewalk, but he did not see the machete/knife at that time. CW #2 returned to his residence and did not see what happened thereafter.

At approximately 12:45 to 12:50 a.m., CW #4 was driving home when he observed both a police cruiser and a police SUV in the parking lot of the school. As CW #4 turned onto Torino Crescent, he saw a man, who was not known to him, walking southbound on Torino Crescent near Shelby Crescent, and then turn to walk northbound.

CW #4 pulled into his driveway, where he again saw the same man, this time standing in front of a neighbour’s house. The description of the man provided by CW #4 matched that previously provided by other witnesses of the man with the knife, including both his features and his clothing, with the exception that CW #4 did not see the man with anything in his hands.

CW #4 exited his vehicle and asked the man if he was alright. CW #4 described the man as speaking with a Polish accent. The man asked him, “Do you know Eva?” and CW #4 responded that he did not. He in turn asked the man if he had a place to go, to which the man again asked him if he knew Eva. CW #4 described the man as behaving in a paranoid manner and continuously looking over his shoulder. The man admitted to CW #4 that he had ingested cocaine.

Shortly thereafter, CW #4 observed a marked police vehicle driving along Shelby Crescent, and an unmarked truck driving along Torino Crescent.

The man advised CW #4 that he lived at the residence and began to look inside CW #4’s vehicle, asking if anyone was inside. The man told CW #4, “I hope I don’t see you on the other side,” and then said that he thought someone had killed his mother for $100, 000; the man appeared to be angry at that point. CW #4 then entered his house. Shortly thereafter, he could hear male voices yelling outside and later saw that there were two police cruisers, with emergency lighting activated, on the street.

According to the EMS records, paramedics were notified at 1:11 a.m. to attend a residence on Torino Crescent in the City of Mississauga in response to a call for a man “involved in police incident. Police state that they engaged PT (patient). PT was then VSA (vital signs absent) and CPR started by police on scene.” The first EMS unit arrived at the residence at 1:14 a.m. and the paramedics were advised that the man had been shot by police. Upon assessing the patient, paramedics noted that he had two wounds to his chest, with one on the right side and one on the left side of the upper chest, as well as two wounds to the man’s left arm which the paramedics believed to be bullet holes. At no time following the arrival of paramedics did the male show any signs of life. He was then transported to hospital where, within minutes of his arrival, he was pronounced dead.

The focus of this investigation revolves around what occurred in the 34 minutes between the time of the first 911 call, at 12:37 a.m., and the call for the attendance of paramedics, at 1:11 a.m., during which the Complainant was shot by police and subsequently died. The Complainant was later identified and was found to have been residing at the residence on Torino Crescent where he was shot.

During the course of this investigation, eight civilian witnesses were interviewed, four of whom had contact with the Complainant prior to his interaction with police. Additionally, the memorandum book notes of 19 police officers were reviewed, with seven police witnesses, who were present at the time of the interaction with the Complainant or arrived immediately thereafter, being interviewed. The subject officer, the SO, also made himself available to be interviewed and provided his memo book notes for review. In addition to the eye witness evidence, investigators had access to, and reviewed, the 911 call recordings as well as the police transmission communications recording, the physical evidence at the scene, and the various expert opinions and reports generated from both the post-mortem and an examination of the physical evidence by the Centre of Forensic Sciences (CFS). While there were no civilian witnesses present to observe the actual shooting of the Complainant, the evidence of all four of the police officers who were present is consistent with both the physical evidence and the evidence of the civilian witnesses as to the behaviour of the Complainant on the night in question. There is no dispute as to the facts.

The Police Response

According to the event chronology report, which is generated by the Communications Centre, the 911 call from CW #5 was received at 12:37:47 a.m.; by 12:38:50, the first notification had been sent out to a uniformed patrol car; and at 12:39:01, the first officer was dispatched to attend the area. The notification broadcast advised that a man was running after people with a large knife. Four additional officers were then dispatched, with a K-9 officer, the SO, and his dog being dispatched at 12:40:42 a.m. Thereafter five additional officers were also dispatched, with the first officer arriving at John Cabot Secondary School at 12:48:20 a.m. and meeting with CW #5 and CW #3.

At 12:54:35, after speaking with CW #2, WO #5 updated the dispatcher as to the direction in which the Complainant had been heading when last seen.

The SO

According to the SO, when he arrived at the location of John Cabot Secondary School, he was advised of the description of the male being sought, as well as where he was last seen at the rear of the two schools. Immediately following the SO’s arrival, two tactical team officers, WO #3 and WO #2, also arrived. The officers were advised that the male with the knife had last been seen walking on a pathway near the southwest corner of Shelby Crescent, and the SO drove to that area, where he again met up with WO #3 and WO #2, as well as a second K-9 officer, WO #4.

While each of the K-9 officers had a dog with them, it was decided that WO #4’s dog would be used to try and track the suspect, with the SO providing back-up to WO #4, and WO #3 and WO #2, from the tactical unit, would provide additional back-up. Each of the officers was armed with a sidearm, while WO #3 was also armed with an ARWEN (a less-lethal use of force option). During the tracking, WO #4 and his dog were in the lead, with the SO directly behind, and WO #3 and WO #2 bringing up the rear.

At 1:04:22 a.m., the communications recording reveals that the SO advised that he and the second K-9 officer, WO #4, were tracking the Complainant’s location with the assistance of a police service dog, and that members of the tactical unit were also accompanying the K-9 officers.

When the search did not locate the male with the knife, all four officers decided to head back toward Shelby Crescent.

Visibility was described as good due to adequate artificial lighting which reflected off the snow. The four officers were walking on the sidewalk, attempting to locate a driveway they could use to go down to the roadway, when the SO saw the man he believed they were looking for, approximately 50 metres ahead of them. The man met the physical description and was wearing the same clothing as described by the three witnesses who had spoken to police. The SO alerted the other officers of the man’s presence ahead.

The Complainant was observed to be walking northbound on Torino Crescent, and appeared, to the SO, to be going from door to door. The SO yelled out to the Complainant, “Hey, it’s the police! Show me your hands! I’m going to come and talk to you.” The Complainant was then seen to run westbound across Torino Crescent; no knife was seen at that time. At that point, the Complainant was lost from sight, but officers heard two loud noises, which they associated with someone trying to kick in a door. According to the SO, at that point he started to fear that the Complainant was trying to kick in a door to enter one of the residences and that he might hurt or kill someone inside a house, or perhaps take a hostage.

At 1:09:32 a.m., the SO reported that the suspect had run into a house.

The SO and the other three officers then turned the corner from Shelby Crescent to Torino Crescent and entered the driveway of what was later discovered to be the Complainant’s residence, although they did not initially see the Complainant.

As the SO stood on the driveway, WO #4 and his dog were to the SO’s right, while WO #3, with the ARWEN, was to the rear of the SO, and WO #2 was behind WO #3.

There was a car parked in the driveway of the residence and the SO was able to see through the windows of that car to where the Complainant was standing and, based on the clothing and physical description he had been given, he was satisfied that this was the same party who had been reported as wielding a knife and chasing civilians.

The Complainant was then observed to walk around the rear end of the parked car, where he raised a knife in his right hand with the bl^{footnote 9[9]}

The SO immediately drew his firearm and issued the police challenge, “Police, don’t move!” The SO heard the Complainant yell something in response, but he was incoherent and could not be understood. The SO held his sidearm in both hands and pointed toward the Complainant. The Complainant looked directly at the SO. The distance between the SO and the Complainant at that point was estimated to be approximately 20 feet (6.096 m), with the Complainant being closer to the garage.

The SO described the Complainant as pausing, seeming to lower his arm fractionally, possibly nodding, as if having made a decision, and then raising the knife up again and charging directly at the SO, running straight down the driveway at him. According to the SO, he feared for his life and that of his colleagues, as well as the public. The SO indicated that he believed that he was going to get “cut and hacked up”, and that if he were to attempt a hands-on arrest of the Complainant, that he or the other officers might be seriously hurt. The SO estimated that the Complainant was approximately 20 feet away from him when he discharged his firearm, shooting at the Complainant’s ‘centre mass’ in order to stop the threat that he posed.

At 1:09:57, 25 seconds after the SO had reported first seeing the Complainant, he reported that shots had been fired and an ambulance was required, but that all officers were “okay”.

As the SO discharged his firearm, he heard one of the other officers call out several times to the Complainant to, “Drop the knife!”, and heard the ARWEN being discharged directly beside him simultaneous to his discharge of his firearm. The Complainant was then seen to fall to the ground, onto his back, with the knife still in his right hand and resting on his torso. In hindsight, the SO indicated that he felt that neither the deployment of a Conducted Energy Weapon (CEW) or sending in the police dog would have been appropriate in these circumstances, and in light of the Complainant’s reported behaviour prior to their arrival, his behaviour in the presence of the four police officers, and the possible risk to the public, the SO believed that discharging his firearm was his only available option.

WO #3

WO #3 indicated that as he and the other three officers were walking eastbound on Shelby Crescent toward Torino Crescent, he heard one of the other officers ask, “Is that our guy?” at which point WO #3 observed the Complainant standing in the driveway of a house wearing the clothing as previously described by the witnesses; WO #3 then confirmed that this was the man they were looking for. WO #3 indicated that the four officers continued toward the Complainant for approximately one second, before the Complainant noticed them and ran across the street to a house. Several of the police officers were yelling, “Police! Stop!” WO #3 then ran across Shelby Crescent, taking a wide path as he was concerned that the Complainant might still be armed with a knife.

WO #3 heard the kicking at the door and believed that the Complainant was trying to break into a house. The officers continued to yell at the Complainant to stop for police. Approximately one second later, when the kicking noises stopped, WO #3 observed the Complainant walk down the front steps of the house and behind a car parked on the driveway, where he then stepped out and stopped. WO #3 also estimated the Complainant’s distance from the police officers as being about 20 feet, when the Complainant ‘squared off’ against the officers. WO #3 described the Complainant as dipping his right shoulder down with his right hand concealed behind his back, and, after a half second pause, the Complainant quickly raised a knife, which he was holding in his right hand, to head level, let out a loud guttural scream, and then quickly advanced towards the officers with a purposeful walk. The officers continued to yell at the Complainant to stop.

WO #3 advised that it was his belief that the Complainant was going to kill the four police officers, and, as the Complainant approached to about 15 feet (4.572 m) from the officers, WO #3 released the safety on the ARWEN and pulled the trigger, aiming for the Complainant’s legs. As he discharged his ARWEN, WO #3 simultaneously heard what he believed were two gunshots, and the Complainant immediately crumpled to the ground.

WO #4

WO #4 advised that as they searched for the man armed with a knife in the area of the two high schools, his dog was not ‘in scent’. Once on Shelby Crescent, however, the dog snapped his head to the right with his nose to the ground, indicating that he was ‘in scent’, and the four police officers headed eastbound toward Torino Crescent, with the dog pulling hard and fast. When they were two houses from Torino Crescent, WO #4 heard the SO indicate, “This looks like our guy,” and saw a male running across Torino Crescent toward a residence, where WO #4 briefly lost sight of him; the dog, however, was barking and pulling hard in the direction where the man had run.

All four police officers then ran toward the residence and WO #4 could hear sounds that seemed like someone kicking at a door. As the four officers arrived at the residence, WO #4 saw the Complainant walking down the stairs from the front door area and behind a car parked on the driveway. WO #4 was standing at the end of the driveway with the three other police officers to his left. The Complainant then came out from behind the car and stood just behind the rear car door. The dog was barking and WO #4 called out to the Complainant to get down on the ground.

WO #4 then observed the Complainant to raise his right hand, in which he held a 12 inch machete-style knife. The Complainant raised the knife above his head and began to yell at the officers, while the officers yelled commands at the Complainant to drop the knife. The Complainant was standing approximately 20 feet from the officers when he then began to walk towards them with purpose. WO #4 stepped back, pulling the dog with him, as he attempted to draw his firearm. WO #4 could see that WO #3 had his ARWEN and that the SO had drawn his sidearm. WO #4 then heard two gunshots and saw the Complainant drop to the driveway.

WO #2

WO #2 advised that as he and the other three officers were heading along the south sidewalk toward Torino Crescent, WO #4 and the SO were walking ahead of himself, while WO #3 was behind him. WO #2 saw the Complainant at the northeast corner of Torino and Shelby and all four officers began to walk toward him, as he started to walk northbound. WO #2 yelled out to the Complainant, “Police!” following which the Complainant then ran to a residence on Torino and the officers ran after him. WO #2 described WO #4 as being first in line, followed by the SO, WO #3, and then himself.

Once across the street, WO #2 heard sounds as if someone were trying to break down a door and he took a position in a mound of snow on the south side of the driveway, placing himself to the left of WO #3, with the SO and WO #4 at the bottom of the driveway. WO #2 saw the Complainant as he was on the steps leading to the front door of the residence, next to the garage. WO #2 drew his firearm and yelled at the Complainant to show his hands. The Complainant then walked behind the parked vehicle and toward WO #2, with his right hand down low and tight to the rear of his leg; the Complainant was not listening to the police commands.

WO #2 realized that he was in a bad position if the Complainant were to move forward, so he moved back toward the bottom of the driveway. As he was doing so, he saw the Complainant raise his right hand, in which he held a knife, to his head level, and begin to grunt and charge at the police officers positioned at the end of the driveway. WO #2 described the Complainant as moving fast and aggressively toward the officers, while he and the other officers were yelling at the Complainant to drop the knife. WO #2 stated that he realized how little room there was between the Complainant and the police officers, as a result of which he was afraid that either the Complainant would hurt one of the police officers, or the Complainant would get shot. WO #2 then yelled, “ARWEN up!” and WO #3 discharged one round from his ARWEN. At the same time that WO #2 heard the ARWEN being discharged, he also heard another “pop” and saw the Complainant stop and then fall onto his back on the driveway, some 10 to 15 feet from the bottom of the driveway beside the parked car. WO #2 then saw smoke coming from the SO’s firearm and realized that the Complainant had been shot.

At 1:11:07, the ambulance was reported to be en route to the location. At 1:12:14 a.m., a second request was received from the SO, asking to put a rush on the ambulance as the male was unresponsive.

WO #2 then told the others that he would be moving up to the Complainant’s location and asked them to cover him. As he approached, he observed that the Complainant had a large knife with a silver serrated blade next to his right hand and he moved it away with his foot. WO #2 then asked the Complainant if he was okay and what his name was, but the Complainant was unresponsive. WO #2 did a quick pat down search of the Complainant and located a can of beer in his pocket. The Complainant was then handcuffed. WO #3 yelled out that CPR was started at 1:13 a.m. and he started chest compressions as WO #2 tilted the Complainant’s head back to open his airway.

At 1:13:06 a.m., the SO reported that CPR had been initiated by the police officers present.

At 1:13:34 a.m., a sergeant on scene reported that a machete had been located lying on the driveway.

At 1:13:39 a.m., an officer is recorded as reporting that the ambulance was at the scene, and at 1:25:28 a.m., the Complainant was en route to hospital, arriving at 1:50:18 a.m. At 1:51 a.m., the Complainant was pronounced dead.

On this evidence, I find that the radio transmissions made to the dispatcher by the officers on scene, which provide a timeline as to how events unfolded, are materially consistent with the evidence of the four police officers.

Additionally, the subsequent forensic evidence was consistent with, and provided some corroboration for, the evidence of the four police officers. At the scene, a large black handled silver machete/knife was located on the driveway where the Complainant was lying. A forensic examination of the 12” machete/knife identified DNA on the handle of the machete/knife as being from the Complainant, confirming that it had been in his possession; no other DNA was located.

An empty ARWEN cartridge was located at the bottom of the driveway, confirming the evidence of WO #3 that he had discharged one round from his ARWEN, while the post-mortem examination confirmed that the Complainant had in fact been struck in the shin by the ARWEN projectile.

Found within two feet (0.6 m) of the ARWEN cartridge were two empty bullet cartridges, which forensic examination positively confirmed as having come from the SO’s firearm, confirming the evidence of the SO that he was the officer who discharged his firearm at the Complainant. The post-mortem examination confirmed that the Complainant had four gunshot wounds, although only three cartridges were located at the scene. The final Post-Mortem Report of the examination of the Complainant, which was received by the SIU on October 2, 2018, confirmed that a gunshot wound to the left chest led to the Complainant’s death. All of the cartridge casings and two of the bullets were confirmed by the CFS as originating from the SO’s firearm.^{footnote 10[10]}

Finally, the evidence of each of the four police officers is consistent with each other, despite the fact that they were immediately separated, within minutes following the shooting of the Complainant, in order that they could not discuss their evidence and to prevent any opportunity for, or perception of, collusion. Having found that the evidence of each of the officers is consistent with the others, as well as with the physical evidence and the communications recordings, I am satisfied that the version of events provided by them is an accurate history of what occurred.

The Law and Analysis

The question that remains to be answered, then, on the facts as I have found them, is whether or not the SO was justified in using lethal force against the Complainant, or whether the discharging of his firearm at the Complainant was an excessive use of force in these circumstances and provides reasonable grounds for the laying of criminal charges.

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 subsection 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 or the preservation of any one under that person’s protection from death or grievous bodily harm.

As such, in order for the SO to qualify for protection from prosecution under section 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 further be established that the SO discharged his firearm believing on reasonable grounds that it was necessary in order to preserve himself, or others, from death or grievous bodily harm.

Turning first to the lawfulness of the attempted apprehension of the Complainant, it is clear from the content of the 911 call from CW #5, which information was forwarded to the police officers responding to the call, as well as the confirmation by all three of the civilian witnesses at the scene, (CW #5, CW #3, and CW #2), that there were reasonable grounds to believe that the Complainant was in possession of a weapon dangerous to the public peace, contrary to s. 88 of the Criminal Code, as well as having used that weapon to threaten or assault another person, in that he slashed and stabbed at CW #5, albeit unsuccessfully, contrary to s. 267. As such, I am satisfied that 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

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.

The court also 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:

1. Whether the SO subjectively believed that he, or his colleagues, were 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 him that the SO had at the time that he discharged his firearm

With respect to the first 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 both his observations at the time and his knowledge of the Complainant’s past behaviour, as related by CW #5 and CW #3.

With respect to the information received by the SO, he was aware that the Complainant had earlier slashed and stabbed at CW #5 with the machete/knife,^{footnote 11[11]} that he was still armed with that weapon, as seen by him when the Complainant came out from behind the car and raised up his right arm in which he held the weapon, and that he was now charging directly at the SO, running down the driveway, with the machete/knife raised. According to the SO, he feared not only for his own life, but that of his fellow officers, and the public at large. Specifically, the SO indicated that he believed that he was going to be “cut and hacked up”, as a result of which he discharged his firearm in order to stop the threat posed by the Complainant.

On all of the information that the SO had in his possession at the time he shot and killed the Complainant, I find that he, subjectively, had grounds to believe that his life was at risk from the Complainant and that his observations of the Complainant’s actions, as well as the information provided by the civilian witnesses, would have reasonably caused the SO to believe that he and his colleagues were at imminent risk of being seriously injured, if not killed, by the Complainant.

In considering the reasonableness of the SO’s actions and whether or not he considered the use of less lethal use of force options before resorting to his firearm, the SO indicated in his statement that he and the other officers had continually shouted to the Complainant to drop his weapon, which appeared to have fallen on deaf ears. He also indicated that neither sending in the police service dog, nor discharging a CEW, would have been effective in these circumstances. Having considered that it was unlikely that the dog would have been a match for a 12 inch machete being wielded by a six foot, 195 pound man, and that the Complainant was dressed for the winter weather and was wearing a coat, which could have prevented an effective deployment of a CEW as the probes would have made contact with his exterior clothing, as opposed to his skin, I have no hesitation in finding that this assessment was reasonable in these circumstances. On that basis, it is clear that the SO, in the brief 25 seconds or less available to him, appears to have exercised all due caution in dealing with the Complainant and considered all of his options before he discharged his firearm.

With respect to whether or not there were objectively reasonable grounds to believe that the life of the SO, or of his fellow officers, were at risk, one need only refer to the evidence of each of the three other police officers present, each of whom had drawn their own service pistol, with the exception of WO #3 who deployed the ARWEN, as a result of fearing for their own lives and those of their colleagues. I note that WO #3 indicated that at the time that the Complainant advanced on the officers, WO #3 thought that the Complainant was going to kill him and the other officers, while WO #4 stepped backwards away from the Complainant, pulling his dog back with him, as he too attempted to draw his firearm, and WO #2 indicated that he was afraid that either the Complainant was going to hurt one of the police officers, or he would get shot.

Furthermore, based on the evidence of all four of the police officers, I find that the Complainant, when he initially stepped out from behind the parked car in the driveway, was approximately 20 feet from the officers, who were standing at the bottom of the driveway. I also find that he then moved quickly forward and charged at the officers, specifically focusing on the SO. As such, while the evidence of the SO was that the Complainant was 20 feet from him when he discharged his firearm, in fact the distance between the two might have been closer. The evidence of WO #2, who was standing behind the SO and perhaps had a clearer line of sight than did the SO, who was directly in the line of the Complainant, was that the Complainant had in fact closed the gap between himself and the police officers to 10 to 15 feet, before WO #3 was able to discharge the ARWEN,^{footnote 12[12]} and the SO his firearm.^{footnote 13[13]}

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, or the preservation of others, from death or grievous bodily harm, I find in all the circumstances that the SO reasonably believed that his life was in danger from the Complainant and that his actions in firing upon the Complainant were justified. I find that it would have been foolish and reckless for the SO to risk his life, and those of his colleagues, by waiting for the Complainant, with machete raised, to close the gap between himself and the officers thereby putting their lives at immediate risk of serious injury or death. I further find that risk was not one that the SO ought to have had to take when faced with possibly being “cut or hacked up” by a man who had already stabbed at and slashed at a civilian witness and appeared to be an imminent danger to the SO and his three fellow officers.

I find, therefore, on this record, that the three shots that were fired by the SO, which struck and killed the Complainant, were justified pursuant to ss.25 (1) and (3) of the Criminal Code and that the SO, in preserving both himself and WO #3, WO #2, and WO #4, from death or grievous bodily harm from the Complainant, used no more force than was necessary to effect his lawful purpose. As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the SO, despite the tragic loss of life, fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: October 5, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit