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 a serious injury sustained by a 21-year-old male on September 12, 2017. During the same incident, a 37-year-old male also sustained an injury although the extent of his injury is unknown.

The investigation

Notification of the SIU

The SIU was notified of the incident by the police. On September 12, 2017, at 7:15 p.m. an officer with the Ottawa Police Service (OPS) notified the SIU of firearm injuries to the two Complainants.

The officer reported that on September 12, 2017, at 6:15 p.m., members of the OPS were conducting a mobile surveillance on the Complainants in relation to a firearm offence. The OPS officers attempted to stop the Complainants’ vehicle by boxing it in during an attempt to arrest them. Complainant #1 pointed a firearm at the officers and the officers discharged their service pistols. Complainant #1 was shot in the shoulder and was transported by ambulance to a hospital. Complainant #2 sustained an ear injury believed to have occurred when he was grazed by a bullet. Complainant #2’s ear injury was not considered a serious injury. He was treated by paramedics at the scene and returned to police custody.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 2

The SIU arrived on scene on September 13, 2017, at 12:32 a.m., and immediately began an investigation. Civilian witnesses were identified and interviewed. SIU investigators canvassed the area where the incident occurred in an attempt to locate video surveillance footage relevant to this incident. No video footage was discovered.

The same day, the OPS obtained a search warrant for Complainant #2’s vehicle and executed it as part of the OPS’s parallel investigation of the Complainants. Once the OPS completed their search, SIU Forensic Investigators forensically examined the vehicle.

The scene was also forensically examined, video recorded, photographed, and measured. Evidence considered relevant to the investigation was later sent to the Centre of Forensic Sciences for examination.

Complainants

Complainant #1 Declined to be interviewed or consent to release of medical records

Complainant #2 Declined to be interviewed or consent to release of medical records

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Notes reviewed, interview deemed not necessary

WO #4 Notes reviewed, interview deemed not necessary

WO #5 Interviewed

WO #6 Interviewed

WO #7 Notes reviewed, interview deemed not necessary

Subject Officers

SO #1 Interviewed

SO #2 Interviewed

Incident narrative

SO #2 and SO #1 are members of the OPS and on September 12, 2017, both SO #1 and SO #2 were wearing civilian clothes and police vests marked with the word “police”. SO #1 had a balaclava, also marked with the word “police”, which she wore during the incident to protect her identity. SO #1 and SO #2 drove separate unmarked police vehicles.

Sometime between 4:15 p.m. and 4:30 p.m., the OPS initiated surveillance on Complainant #1, a suspected drug dealer who was believed to be in possession of a firearm. The OPS followed Complainant #1 to the parking lot of a restaurant where Complainant #1 entered the passenger seat of a red Toyota. Complainant #2 was in the driver’s seat of the Toyota and drove Complainant #1 through various residential areas. Members of the OPS believed they saw Complainant #1 perform at least three drug transactions and display characteristics of an armed subject. At around 5:50 p.m., Complainant #2 and Complainant #1 drove into a residential parking lot. SO #2 had already positioned his vehicle in the east end of the parking lot. Through his rear-view mirror, he observed the Toyota reverse into a parking space two spaces to the north of where his vehicle was parked.

At around 5:56 p.m., WO #6, who was the officer in charge, ordered a tactical take-down of the Complainants. He believed that there was enough evidence to arrest the Complainants for drug trafficking and weapons related offences, and thought that the parking lot was a safe place to do so because there were no civilians present at that time. WO #2 drove his pickup truck into the parking lot and stopped it at a 45-degree angle in front of the passenger’s side of the Toyota. As he did this, SO #2 exited his vehicle with his service pistol drawn. He walked towards the driver’s side of the Toyota and was about five or six feet away when SO #1 drove towards him, almost striking him. SO #1 positioned her vehicle to block the front driver’s side of the Toyota – boxing the Toyota in to prevent the Complainants’ escape.

What happened next occurred very quickly. SO #1 un-holstered her service pistol and exited her vehicle. She observed Complainant #1 pointing a handgun directly at her and believed her life was in jeopardy. Immediately and without saying anything, SO #1 discharged her service pistol at him once. SO #2, who had run around the left rear of SO #1’s vehicle, heard a “pop” and saw a hole in the windshield near the driver’s side of the Toyota. SO #2 did not know if the shot came from inside or outside the Toyota, but saw Complainant #1 pointing a handgun at SO #1 and believed an occupant inside the Toyota had shot at her. Complainant #1 turned the handgun to point it directly at SO #2. SO #2 thought Complainant #1 was going to shoot him and fired his service pistol at Complainant #1 while he backed away to get cover. SO #1 observed SO #2 firing two rounds from her peripheral vision and SO #2 told the SIU he thought he shot Complainant #1 two times, but forensic evidence demonstrated that SO #2 discharged his service pistol three times. This discrepancy does not impact the credibility of the officers considering the weight of the uncontradicted evidence which corroborates their narrative of the incident. On all accounts, SO #2 discharged his firearm multiple times in rapid succession and it is quite possible that he was unaware he discharged his firearm a third time.

Eventually, Complainant #1 ducked his head under the dashboard of the Toyota and raised both of his arms to surrender. SO #2 and SO #1 started shouting, “Police don’t move!” SO #2, working with WO #6 and WO #2, pulled Complainant #1 out of the passenger seat of the Toyota and onto the ground, where he was handcuffed. The officers observed a black semi-automatic handgun with a brown handle lying on the passenger floor of the vehicle with its barrel covered by a sock. WO #2 told the SIU that he was alarmed and picked up the handgun because Complainant #2 was still in the vehicle. WO #6 pulled Complainant #2 over the passenger seat and onto the ground. After Complainant #2 was removed, WO #2 placed the handgun back into the vehicle in its initial location. There is no evidence to suggest that WO #2 inappropriately touched the handgun, and I find that in the circumstances, his actions were reasonable and necessary to preserve officer safety.

While Complainant #1 was being arrested he apologized to the officers, stating, “I’m sorry, I’m sorry, I thought you guys were trying to rob me.” Several officers heard Complainant #1 saying that he thought the police were “Arabs” or “some Middle Eastern guys.” Even though Complainant #1 may have initially mistaken the subject officers’ identities, I am satisfied that SO #1 and SO #1 were readily identifiable as police officers by their police vests and SO #1’s balaclava.

After he was handcuffed, Complainant #1 complained that his shoulder hurt. WO #6 checked him for injuries and noticed a through and through gunshot wound on Complainant #1’s left shoulder. Complainant #2 also had blood on his left ear and complained of soreness in his ear and head. An ambulance was called to attend the scene. Complainant #2’s ear injury was not considered serious and was treated by the paramedics at the scene.

Evidence

The Scene

Scene diagram

The shooting took place in a parking lot in a residential complex in Ottawa. Complainant #2’s red Toyota was backed into a parking space and parked to face west. There were two civilian vehicles, a red Mitsubishi and a grey Hyundai, parked on the northeast side of the parking lot near Complainant #2’s vehicle. There were six OPS surveillance vehicles parked in positions which surrounded Complainant #2’s red Toyota.

SO #1’s surveillance vehicle, a grey Mitsubishi, was situated in a north-easterly direction blocking the driver side of Complainant #2’s vehicle. WO #2’s surveillance vehicle, a grey GMC pickup truck, was parked on an angle blocking the front bumper and the passenger side of Complainant #2’s vehicle. SO #2’s surveillance vehicle, a brown Nissan, was parked between the two civilian vehicles, a red Mitsubishi and a grey Hyundai. WO #5’s surveillance vehicle, a grey Ford, was situated in a north-easterly direction parked behind WO #2’s pickup truck. WO #1’s surveillance vehicle, a grey Kia, was positioned in a north-easterly direction parked closely behind SO #1’s grey Mitsubishi.

Complainant #2’s Toyota had several bullet impact sites on the front hood and the windshield. The passenger door of the red Toyota was open, showing a clear view of a semi-automatic pistol lying on the floor with a sock covering the barrel. The external hammer of the weapon was pulled back in a firing position. Due to a pending Controlled Drugs and Substances Act (CDSA) search warrant for the vehicle it was not entered and the weapon was not seized by SIU Forensic Investigators. Also within close proximity of Complainant #2’s vehicle were two credit cards and a cellular phone on the passenger side. A pair of shoes was located away from the scene placed on a curb.

Evidence of four spent .40 calibre cartridge cases was located at the scene and are indicated on the SIU diagram as prepared by SIU Forensic Investigators as follows:

  • One spent .40 calibre cartridge case located near the right front bumper of WO #5’s Ford
  • A second spent .40 calibre cartridge case located near the front driver side tire, of SO #1’s Mitsubishi
  • A third spent .40 calibre cartridge case found near the driver side back tire of SO #1’s Mitsubishi, and
  • A fourth spent cartridge case found lying on a windshield wiper on the passenger side of SO #1’s Mitsubishi

Physical Evidence

Forensic Examination of Complainant #2’s Toyota:

On September 13, 2017, at 3:20 p.m., SIU Forensic Investigators attended a secure OPS forensic facility to assist in the examination of Complainant #2’s vehicle. SIU Forensic Investigators were able to forensically examine the interior and exterior of the Toyota, locating impact sites on the hood and the windshield of the vehicle. A projectile was recovered from the engine compartment of the red Toyota.

A Browning Arms 9mm calibre pistol found lying on the passenger floor of the Toyota was secured at the scene by the OPS in the presence of an SIU Forensic Investigator. A sock covered the barrel of the pistol and the external hammer was pulled back. The magazine was removed from the pistol and it was discovered that the pistol had an unfired cartridge in the chamber. The serial number was filed off the pistol. There was no evidence to suggest the weapon was discharged.

Examination of Complainant #1’s Clothing:

Complainant #1’s black hoodie was forensically examined by SIU Forensic Investigators and revealed a partially deconstructed projectile fused to the hoodie’s material near the left side of the neckline.

Expert Evidence

On November 6, 2017, a Centre for Forensic Science Forensic Analyst concluded that SO #2 discharged a total of three shots from his service pistol and SO #1 discharged one shot from her service pistol.

Materials obtained from Police Service

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

  • Two Emails Re: info for Balaclavas
  • Event Details Report
  • General Occurrence Reports (4)
  • Mugshot-Complainant #1
  • Mugshot-Complainant #2
  • Notes from WO #1, WO #2, WO #5, and WO #6
  • Notes from WO #2 and WO #5 (typed)
  • OPS Balaclava assignment list
  • OPS Drug Unit Surveillance Report-WO #1
  • Person Hardcopy (RMS History)-Complainant #1
  • Person Hardcopy (RMS history)- Complainant #2
  • Policy 5.10 Drug Investigations
  • Policy 5.17 High risk vehicle stops
  • Policy 6.07 Use of Force
  • Policy 9.10 Surveillance
  • Radio communications
  • RMS History (Person Hardcopy)- Complainant #1
  • RMS history (Person Hardcopy)-Complainant #2
  • SIU Investigations Sign-out sheet from OPS
  • Surveillance training records
  • Training Records for WO #1, WO #2, WO #5, WO #6, SO #1 and SO #2, and
  • Will State for WO #1 and WO #6

Relevant legislation

Sections 25, 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 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

Analysis and director’s decision

On September 12, 2017, Ottawa Police Service (OPS) officers arrested Complainant #1 and Complainant #2 for drug trafficking and firearm offences. During the arrest, Complainant #1 pointed a handgun at the subject officers, SO #1 and SO #2, who responded by shooting at Complainant #1 four times. Complainant #1 sustained a bullet wound to the left shoulder and Complainant #2, who was seated in a vehicle next to Complainant #1, sustained a non-serious injury to his left ear. For the reasons that follow, I am satisfied on reasonable grounds that the officers’ use of force did not exceed the limits permitted by law. As such, there are no grounds to believe SO #1 or SO #2 committed a criminal offence in connection with the Complainants’ injuries.

The SIU’s investigation included, but was not limited to, interviews with both subject officers, four witness officers and six civilian witnesses. The Complainants declined a request for an interview and did not consent to the release of their medical records. The involved officers’ statements are internally consistent and predominately corroborated by the civilian witness statements and forensic evidence.

On this record, it is clear that the subject officers bear no criminal responsibility for the Complainants’ injuries. Under s. 25 of the Criminal Code, SO #1 and SO #2 were permitted to use reasonable force against the Complainants while acting in the execution of their lawful duties. The officers lawfully arrested the Complainants under s. 495(a) of the Criminal Code, which allows a police officer to arrest a person without a warrant who they believe on reasonable grounds has committed an indictable offence. Prior to his arrest, the OPS received information that identified Complainant #1 as a person who was trafficking drugs and in possession of a firearm. OPS officers then observed Complainant #2 driving Complainant #1 through various residential neighbourhoods, where persons approached the vehicle on three occasions and behaved in a fashion indicative of drug transactions according to the officers’ training. Further, OPS officers witnessed Complainant #1 making various adjustments to the waistband of his pants, which pursuant to their training was behaviour consistent with his being armed. I am satisfied this was sufficient evidence to establish reasonable grounds to execute Complainant #1’s arrest. The officers also had reasonable grounds to arrest Complainant #2 because, as Complainant #1’s driver, he was a party to the drug transactions.

The question to be answered is were SO #1 and SO #2 justified in using lethal force against Complainant #1 in these circumstances. Section 25(1) of the Criminal Code provides that a police officer is justified in using force to effect a lawful arrest, provided he or she only uses as much force as was necessary in the circumstances. Section 25(3) of the Criminal Code prohibits the use of force likely to cause death or grievous bodily harm, unless the officer believes it is necessary to protect him or herself, or another person, from death or grievous bodily harm. Clearly, if Complainant #1 pointed a handgun directly at the subject officers as they profess, there is no doubt that the subject officers’ subjective beliefs that their lives were in danger would result in the reasonable belief that the use of lethal force was necessary to protect their lives. SO #1 indicated that she believed that Complainant #1 was about to shoot her, and SO #2, who was unsure who had fired the initial shot, believed that Complainant #1 had just shot at SO #1 and was going to shoot at him. Responding to the immediate threat of death by shooting at Complainant #1, as opposed to using other use of force options, was reasonably necessary in these circumstances.

In addition, SO #1 and SO #2 were justified in shooting at Complainant #1 because the shooting was done in self-defence. Section 34 of the Criminal Code states that police officers may use force in self-defence where such force is intended to repel a reasonably apprehended attack and is reasonable in all the circumstances. Relevant circumstances include the nature of the threat, the extent to which the threat of violence was imminent, whether weapons were involved and the proportionality of the defensive force measured against the danger in question. The uncontradicted evidence establishes that Complainant #1 pointed a firearm at SO #1 and SO #2 immediately before they shot at him. Further, their actions demonstrate a measured response to the threat of violence against them. The undisputed evidence indicates that after Complainant #1 raised his hands, and the danger to the subject officers’ lives had passed, the subject officers immediately ceased firing upon Complainant #1. In the circumstances it was objectively reasonable for the subject officers to believe that the firearm presented a serious and immediate risk to their lives. Thus, responding with swift and lethal force was proportionate and necessary, and therefore a justified response to the danger.

In sum, I am satisfied that the discharge of the subject officers’ firearms at Complainant #1 was justified under both ss. 25 and 34 of the Criminal Code. Accordingly, I do not have reasonable grounds to believe that SO #1 or SO #2 committed a criminal offence in connection with the complainants’ injuries and no charges will issue.

Date: July 12, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit