Explanatory note

The Ontario Government is releasing past SIU Director Reports (submitted to the Attorney General prior to May 2017) that include fatalities involving a firearm, physical altercation, and/or use of conducted energy weapon, or other extensive police interaction that did not result in a criminal charge.

Justice Michael H. Tulloch made recommendations about the release of past SIU Director Reports in the Report of the Independent Police Oversight Review, released on April 6, 2017.

Justice Tulloch explained that since past reports were not originally drafted for public release they may have to be edited substantially to protect sensitive information. He took into account that confidentiality assurances were given to various witnesses during the course of SIU investigations, and recommended that some information be redacted in the interests of privacy, safety, and security.

As recommended by Justice Tulloch, this explanatory note is being provided to assist the reader’s understanding of why certain information is redacted in these reports. Notes have also been inserted throughout the reports to help describe the nature of the information that was redacted and why it was redacted.

Law enforcement and personal privacy information considerations

Consistent with Justice Tulloch’s recommendations and guided by section 14 of the Freedom of Information and Protection to Privacy Act (FIPPA) (relating to law enforcement information), portions of these reports have been removed to protect:

  • confidential investigative techniques and procedures used by the SIU
  • information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Consistent with Justice Tulloch’s recommendations and guided by section 21 of FIPPA (relating to personal privacy information), personal information, including sensitive personal information, has also been redacted, except that which is necessary to explain the rationale for the Director’s decision. This information may include, but is not limited to, the following:

  • subject officer name(s)
  • witness officer name(s)
  • civilian witness name(s)
  • location information
  • other identifiers which are likely to reveal personal information about individuals involved in the investigation, including in relation to children
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Personal health information

Information related to the personal health of individuals that is unrelated to the Director’s decision (taking into consideration the Personal Health Information Protection Act, 2004) has been redacted.

Other proceedings, processes, and investigations

Information may have also been excluded from these reports because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Director’s report

Notification of the SIU

On July 3, 2009 at 2349 hrs, Notifying Officer of the Ontario Provincial Police (OPP) notified the SIU of the firearms death of Mr. Jeffrey Phillip Charbonneau. Notifying Officer reported that at 2300 hrs on July 3, 2009, officers from the Leeds County Detachment and Highway Enforcement Team (HET) were conducting a Reduce Impaired Driving Everywhere (RIDE) program on the Highway (Hwy) 401 off ramp at County Road (CR) 29footnote 1 in Brockville.

A pickup truck being driven by Mr. Charbonneau approached the RIDE program after exiting Hwy 401. Mr. Charbonneau spoke to an officer and then fled in the pickup truck. Officers followed the pickup truck north on CR 29. Officers attempted to stop the pickup truck by blocking it in with their cruisers. The pickup truck and the police units collided. During this process, an officer was struck by the pickup truck. Officers discharged their guns striking Mr. Charbonneau. Mr. Charbonneau was pronounced deceased at the scene. Two officers were taken to the Brockville Hospital (BH) for treatment of injuries.

The investigation

On July 4, 2009, at 0012 hrs, five investigators and three forensic investigators (FI) were dispatched to the scene. At 0205 hrs on July 4, 2009, the SIU arrived on scene and began their investigation.

At 0510 hrs, Notifying Officer briefed the SIU. As a result of the information received, Subject Officer #1 and Subject Officer #2 were designated as subject officers. On July 31, 2009, Notifying Officer informed the SIU that both subject officers declined interviews.

The scene was photographed, videotaped and measured. Material evidence relevant to the investigation was collected. SIU investigators canvassed the scene in an attempt to locate civilian witnesses to this incident.

The pickup truck was taken to the Centre of Forensic Sciences (CFS) for examination and the SIU received their report on October 16, 2009.

The following police officers were designated as witness officers on July 3, 2009, and interviewed on the dates indicated:

  • Witness Officer #1 (July 6, 2009)
  • Witness Officer #2 (July 6, 2009)
  • Witness Officer #3 (July 6, 2009)
  • Witness Officer #4 (July 6, 2009)
  • Witness Officer #5 (July 6, 2009)
  • Witness Officer #6 (July 10, 2009)
  • Witness Officer #7 (July 13, 2009), and
  • Witness Officer #8 (August 5, 2009)

Delay With Witness Officer Interviews

Witness Officer #6 and Witness Officer #7’s interviews were delayed as a result of Sensitive Personal Information. Witness Officer #6 was interviewed on July 10, 2009. Witness Officer #7’s interview was further delayed as a result of Sensitive Personal Information. Investigators were initially told by Notifying Officer that Witness Officer #8’s involvement was minimal, but after reviewing the communication tape, he/she was interviewed on August 5, 2009.

The following civilian witnesses were interviewed on the dates indicated:footnote 2

  • Civilian Witness #1 (July 4, 2009)
  • Civilian Witness #2 (July 4, 2009)
  • Civilian Witness #3 (July 4, 2009)
  • Civilian Witness #4 (July 4, 2009)
  • Civilian Witness #5 (July 5 and 27, 2009)
  • Civilian Witness #6 (July 5 and 27, 2009)
  • Civilian Witness #7 (July 5 and 23, 2009)
  • Civilian Witness #8 (July 5, 2009)
  • Civilian Witness #9 (July 5 and 23, 2009)
  • Civilian Witness #10 (July 5 and 23, 2009)
  • Civilian Witness #11 (July 5 and 23, 2009)
  • Civilian Witness #12 (July 24, 2009)
  • Civilian Witness #13 (July 17, 2009)
  • Civilian Witness #14 (July 5 and 23, 2009)
  • Civilian Witness #15 (July 3, 2009)
  • Civilian Witness #16 (July 8, 2009), and
  • Civilian Witness #17 (July 17, 2009)

The following paramedics were interviewed on the dates indicated:

  • Emergency Medical Personnel #1 (July 23, 2009), and
  • Emergency Medical Personnel #2 (August 4, 2009)

The SIU obtained and reviewed the following documents and materials from the OPP:

  • Communication Tape
  • Computer Aided Dispatch (CAD) Report
  • Duty Roster
  • Suspect Apprehension Pursuit Policy
  • Civilian Witness List, and
  • Occurrence Reports

Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence (Law Enforcement and Privacy Considerations)

Director’s decision under s. 113(7) of the Police Services Act

In my view, there are no reasonable grounds to believe that the named subject officers, Subject Officer #1 and Subject Officer #2, committed a criminal offence in relation to the firearms death of Mr. Charbonneau on July 3, 2009. In the evening of July 3rd, officers were conducting a RIDE program on Hwy 401 at the off ramp for County Road 29 in Brockville. The officers involved in the program were the two subject officers, as well as Witness Officer #1, Witness Officer #2 and Witness Officer #6. Mr. Charbonneau was driving a pickup truck, was ordered to stop and spoke to Witness Officer #1. The officer smelled the odour of an alcoholic beverage on the driver’s breath and the driver did not properly identify himself. When he/she directed Mr. Charbonneau to pull over to the side of the road, the driver fled north on CR 29, causing the officers at the RIDE program to enter into a suspect apprehension pursuit. Witness Officer #3 and Witness Officer #7 joined the pursuit in one vehicle and Witness Officer #4 joined it in another one. All officers were driving marked police cruisers except for Subject Officer #2, who was driving an unmarked Chevrolet Tahoe and Witness Officer #2, who was driving an unmarked Ford Crown Victoria.

The pursuit vehicles reached speeds of up to 150 km/h along CR 29. Mr. Charbonneau slowed down but drove through a red light at the intersection of CR 29 and Centennial Rd. and drove around two civilian vehicles on the shoulder of the roadway. At one point, an oncoming car was forced off the roadway in order to avoid Mr. Charbonneau’s pickup truck. About 6.7 km into the pursuit, Witness Officer #4 used a spike belt, causing the front tires of the pursued vehicle to be punctured. Mr. Charbonneau continued to flee. The traffic was light during the pursuit. The officers initiated a rolling block around Mr. Charbonneau’s vehicle. However, he rammed the police vehicles in front of his truck in an attempt to escape the rolling block. Witness Officer #3, in a police vehicle directly in front of the pickup truck, applied his/her brakes after the last time his/her cruiser was rammed. Witness Officer #3’s cruiser and the pickup truck came to a stop on the east shoulder of the county road approximately 13 km north of Hwy 401. (County Road 29 slowly bends into a westerly direction such that it points west at the point where the vehicles stop. Please see the map found at Appendix ‘A’. In order to remain consistent with the witnesses’ statements, CR 29 will be referred to as a north and southbound route.)

As the vehicles momentarily came to rest, Witness Officer #3 and Witness Officer #7 were in the police vehicle directly in front of the pickup truck (Vehicle #3 in the attached diagram found at Appendix ‘C’), and Witness Officer #2 in the unmarked police vehicle cruiser (Vehicle #6) directly behind the pickup truck. Subject Officer #1 stopped his/her marked cruiser (Vehicle #5) parallel to Witness Officer #2’s vehicle #6. Witness Officer #1 stopped his/her marked police vehicle (Vehicle #4) parallel to Subject Officer #1’s vehicle #5. Witness Officer #4 stopped his/her marked police vehicle (Vehicle #2) near the front of the pickup truck in the northbound lane at an angle. Subject Officer #2 stopped his unmarked Chevrolet Tahoe (Vehicle #1) after executing a ‘U’ turn towards the pickup truck (Vehicle # 7). Unfortunately, the position of the police vehicles driven by Witness Officer #4 (Vehicle #2) and Subject Officer #2 (Vehicle #1) left enough of a gap that Mr. Charbonneau could have escaped if he maneuvered his truck from the block caused by the police vehicles to his immediate front and back. In an apparent attempt to do that, Mr. Charbonneau began to ram the two police vehicles directly behind and in front of him, and caused his truck to make a hard left turn in the direction of the gap between Witness Officer #4’s and Subject Officer #2’s stationary vehicles.

In the meantime, a number of the officers had exited their vehicles. Subject Officer #2 ran toward the area of the left front corner of the pickup truck and used his baton to smash the front windshield. Witness Officer #7 left vehicle #3 and was standing with his/her weapon drawn at the rear passenger side of his/her cruiser. Subject Officer #1 was approaching the pickup truck’s driver with his/her gun drawn and smashed the driver’s side window with his baton.

Witness Officer #4 was approaching the truck through the channel created by his/her vehicle and Subject Officer #2’s. Witness Officer #1 was walking toward the rear of the truck (Please refer to schematics found at Appendix ‘B’). Many of the officers were shouting the police challenge, which Mr. Charbonneau ignored.

Mr. Charbonneau continued to ram the police vehicles blocking his egress, and succeeded in creating enough space that he could begin to point his truck toward the gap. He then rammed Witness Officer #4’s (vehicle #2) cruiser a number of times while attempting to aim his truck to escape through the gap. On Mr. Charbonneau’s last attempt to move forward toward the opening, the two subject officers discharged their firearms at the driver, Subject Officer #1 five times and Subject Officer #2 three times. One of the bullets went through the driver’s side mirror and into the skull of Mr. Charbonneau killing him instantly. His truck continued to move forward coming to rest against the rear passenger side of Witness Officer #4’s cruiser (#2).

Seven bullet defects entering the driver’s door of the pickup truck were identified, five to the driver’s side door skin and two to the driver’s side wing mirror. Of the seven bullet defects, only three penetrated the interior of the vehicle; two through the driver’s side door skin and one through the driver’s side wing mirror. The bullet paths through the driver’s side door skin are on a downward angle across the lower body of a seated driver. The path of the bullet through the driver’s side wing mirror is deflected toward the upper body of a seated driver.

There are two issues that cannot be determined. First, due to the nature of bullet projectiles from the two identical police issue hand guns, it is impossible to determine which shooter discharged which bullets and therefore which of the two subject officers was responsible for causing the death of Mr. Charbonneau. Second, because the pickup truck was moving forward at the time of the discharges and continued to move forward after the fatal shot, it is impossible to ascertain the exact location of the shooters at the critical moments. The problem of their positioning at the critical moment is further exacerbated by the fact that they were moving both before and after discharging their weapons. Finally on this point, neither subject officer provided a statement to the investigators, making it even more difficult to determine their location at the critical moment. All in all, the discharges took place in a highly dynamic and fluid circumstance in which either subject officer may have caused Mr. Charbonneau’s death.

Turning to the applicable law in these circumstances, Witness Officer #1 had the lawful authority to, first, detain Mr. Charbonneau at the RIDE program and then demand identification from him: s. 216 & s. 33 of the Highway Traffic Act. Further, the officers had the authority to enter into a suspect apprehension pursuit once he fled after refusing to identify himself: s. 3 of O.Reg. 543/99 to the Police Services Act. Mr. Charbonneau’s driving also gave further grounds to continue the pursuit because he was driving in a dangerous manner and represented a threat to public safety. The use of a rolling block was appropriate due to his callousness toward the safety of the driver of an oncoming vehicle, the light traffic and the shredded front tires which slowed the pursued vehicle down.

Once the rolling block had been completed, the officers had reasonable grounds to arrest Mr. Charbonneau for minimally dangerous driving. They also had reasonable grounds to believe that the decedent would use any means necessary to continue fleeing from them. This belief was justified by his actions up to this point in resisting the rolling block and his ramming of the two police vehicles parked directly in front and behind him in order to create enough space to turn his vehicle to the left, and then the ramming of Witness Officer #4’s cruiser. It is in my view a reasonable conclusion for the subject officers to draw that the driver would have been prepared to run over anybody in the way in an attempt to escape through the gap created by vehicles #1 and #2. The fact that officers were in the way of the truck when it likely would drive in such a deliberately reckless manner raises significant training issues, but those issues are largely irrelevant to the question at hand: did the subject officers reasonably perceive that they were in imminent threat of death or grievous bodily harm caused by the actions of Mr. Charbonneau? Alternatively, did they reasonably believe that his actions were about to cause immediate and serious injury to another person? I believe the answer to both questions is yes.

While we do not know which subject officer fired the fatal bullet, we do know that both were situated in the gap between vehicles 1 and 2, that witness officers Witness Officer #2 and Witness Officer #4 were also in the gap area, and that Mr. Charbonneau was apparently intending to drive through that gap, putting all of their lives at danger. Whichever subject officer fired the lethal shot was standing at such an angle to the pickup truck that it was almost directly in front of him and reasonably capable of running him over. Accordingly, he was justified pursuant to ss. 34(2) of the Criminal Code in shooting at the driver. The other subject officer was also justified in shooting at the driver, even though the shots were not lethal, to prevent the commission of an offence that would likely cause immediate and serious injury to another person pursuant to ss. 27(a) of the Criminal Code, that being injury or death caused by being run over by Mr. Charbonneau’s fleeing vehicle. Accordingly, each subject officer was justified in shooting at Mr. Charbonneau for different reasons, and it does not matter for the purposes of criminal liability which one fired the fatal shot.

Date: November 16, 2009

Ian Scott

Director

Special Investigations Unit

Table of Appendices

  1. Map of County Road 29
  2. Four Scenarios of Positioning of Officers Proximate to Time of Shooting
  3. Best Estimate of Final Forward Motion of Pickup Truck