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

Notification Date and Time: 05/20/2015 at 1345 hours

Notified By: Police

On May 20, 2015, at 1345 hrs Notifying Officer notified the SIU about the firearms death of Mr. Brandon Duncan.

Overview

Notifying Officer advised that at 1324 hrs, Subject Officer #1 and Subject Officer #2 were at the Emergency Department (ER) of Guelph General Hospital (GGH), 115 Delhi Street, Guelph. They were confronted by a male now known to be Mr. Brandon Duncan, covered in blood, yelling and screaming at them. Mr. Duncan was armed with a razor knife. He advanced on the police officers and they both fired. Mr. Duncan was pronounced dead at the scene.

The investigation

Response Type: Attend Immediately

Date and Time Team Dispatched: 05/20/2015 at 1356 hours

Date and Time SIU Arrived on Scene: 05/20/2015 at 1405 hours

Number of SIU Investigator(s) assigned: 8

Number of SIU Forensic Investigator(s) assigned: 3

Complainant:

Brandon Scott Duncan Deceased

Civilian Witnesses:

  • Civilian Witness #1 Initial Interview: May 20, 2015
  • Civilian Witness #2 Initial Interview: May 20, 2015
  • Civilian Witness #3 Initial Interview: May 20, 2015
  • Civilian Witness #4 Initial Interview: May 20, 2015
  • Civilian Witness #5 Initial Interview: May 21, 2015
  • Civilian Witness #6 Initial Interview: May 22, 2015
  • Civilian Witness #7 Initial Interview: May 20, 2015
  • Civilian Witness #8 Initial Interview: May 20, 2015
  • Civilian Witness #9 Initial Interview: May 20, 2015
  • Civilian Witness #10 Initial Interview: May 20, 2015
  • Civilian Witness #11 Initial Interview: May 21, 2015
  • Civilian Witness #12 Initial Interview: May 22, 2015
  • Civilian Witness #13 Initial Interview: May 23, 2015
  • Civilian Witness #14 Initial Interview: May 20, 2015
  • Civilian Witness #15 Initial Interview: May 20, 2015
  • Civilian Witness #16 Initial Interview: May 20, 2015
  • Civilian Witness #17 Initial Interview: May 21, 2015
  • Civilian Witness #18 Initial Interview: May 21, 2015
  • Civilian Witness #19 Initial Interview: May 22, 2015
  • Civilian Witness #20 Initial Interview: May 22, 2015
  • Civilian Witness #21 Did not witness the event
  • Civilian Witness #22 Initial Interview: May 20, 2015
  • Civilian Witness #23 Initial Interview: May 20, 2015
  • Civilian Witness #24 Initial Interview: May 20, 2015
  • Civilian Witness #25 Initial Interview: May 21, 2015
  • Civilian Witness #26 Initial Interview: May 21, 2015
  • Civilian Witness #27 Initial Interview: May 22, 2015
  • Civilian Witness #28 Initial Interview: May 20, 2015
  • Civilian Witness #29 Initial Interview: May 26, 2015
  • Civilian Witness #30 Initial Interview: May 26, 2015
  • Civilian Witness #31 Initial Interview: June 1, 2015
  • Civilian Witness #32 Did not witness the event
  • Civilian Witness #33 Did not witness the event
  • Civilian Witness #34 Initial Interview: June 5, 2015
  • Civilian Witness #35 Did not witness the event
  • Civilian Witness #36 Did not witness the event
  • Civilian Witness #37 Did not witness the event
  • Civilian Witness #38 Did not witness the event
  • Civilian Witness #39 Did not witness the event
  • Civilian Witness #40 Did not witness the event
  • Civilian Witness #41 Initial Interview: August 21, 2015
  • Civilian Witness #42 Did not witness the event
  • Civilian Witness #43 Initial Interview: August 21, 2015

Subject Officers:

  • Subject Officer #1 Declined
  • Subject Officer #2 Declined

Copies of notebook entries were not provided by the subject officers.

Witness Officers:

  • Witness Officer #1 Initial Interview: May 21, 2015
  • Witness Officer #2 Initial Interview: May 21, 2015
  • Witness Officer #3 Initial Interview: May 21, 2015
  • Witness Officer #4 Initial Interview: May 21, 2015
  • Witness Officer #5 Initial Interview: May 21, 2015 Follow-up Interview: May 21, 2015
  • Witness Officer #6 Initial Interview: June 24, 2015
  • Witness Officer #7 Initial Interview: June 11, 2015

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

  • Memo from GPS re CD disclosure June 5
  • Notes-Witness Officer #3
  • Notes-Witness Officer #5
  • Notes-Witness Officer #6
  • Notes-Witness Officer #4
  • Notes-Witness Officer #7
  • Policy - Use of Force
  • Policy-Notebook Maintenance and Retention
  • Policy-Notification of SIU, and
  • Service Firearms Returned - CFP

Confidential 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

I am satisfied, on reasonable grounds, that the subject officers, Subject Officer #1 and Subject Officer #2, were legally justified in shooting Brandon Duncan in the triage area of the Guelph General Hospital in the early afternoon of May 20, 2015.

The numerous witness statements, forensic evidence and surveillance videos provide a comprehensive and coherent account of the events in question.

By way of background, the deceased Brandon Duncan was well-known to the Emergency Room (ER) staff at Guelph General Hospital. Mr. Duncan had previously undergone surgery and received a colostomy Sensitive Personal Information

On May 20, 2015, at approximately 12:04 p.m., Mr. Duncan attended the ER at Guelph General. His movements throughout the hospital’s property, including the triage hallway where he was shot, are captured on video surveillance. He spent a period of time in the waiting area before entering the triage hallway at approximately 12:50 p.m. Mr. Duncan was ultimately spoken to by Civilian Witness #1, Sensitive Personal Information. Confidential Witness Statement Mr. Duncan indicated to Civilian Witness #1 that there was an issue with his colostomy bag, and that a particular component needed to be cut in order to remedy the problem. Consequently (and ill-advisedly as it turned out) Civilian Witness #1 provided Mr. Duncan with a pair of bandage scissors at approximately 12:56 p.m. They were roughly four to five-inches in length, with an additional one-inch blade. Mr. Duncan took these scissors and entered the washroom area.

The video shows that while Mr. Duncan was in the washroom, Civilian Witness #4 and her boyfriend, Civilian Witness #2, entered the triage hallway and took a seat in the waiting area at approximately 1:06 p.m. Some two minutes later, Mr. Duncan returned to the triage area from the washroom. At this point he was bleeding profusely from fresh lacerations on both of his forearms. He was also clenching the same pair of scissors he had received earlier in his right hand. The obvious inference is that he inflicted these wounds on himself with the bandage scissors while inside the washroom.

Mr. Duncan then walked up to Civilian Witness #4. He stood above her and she asked if he needed help. Mr. Duncan was mumbling incoherently in an angry tone at the time. While she was still seated, Mr. Duncan suddenly and violently grabbed ahold of the back of Civilian Witness #4’s neck with his left hand. While continuing to hold her he made attempts to jab her neck with the pair of scissors clasped in his right hand. Civilian Witness #2 intervened almost immediately in an attempt to protect his girlfriend. All three of the parties engaged in an altercation, during which Mr. Duncan maintained his grip on Civilian Witness #4 and persisted in his attempts to use the scissors as a weapon. Civilian Witness #2 was able to break Mr. Duncan’s grip on Civilian Witness #4, and push his girlfriend towards an exit door. The struggle continued between Mr. Duncan and Civilian Witness #2, with Mr. Duncan grabbing ahold of Civilian Witness #2’s upper body with his left hand. The two parties moved further south along the hallway. Ultimately, Civilian Witness #2 was able to successfully dislodge Mr. Duncan’s grip and push him away. The physical altercation between the parties lasted for just over ten seconds. In addition to being captured on video, the specifics were confirmed by multiple civilian witnesses.

At the time of the assault, Subject Officer #1 and Subject Officer #2 were in the adjacent area of the hospital separated by a set of doors. They had been assigned to assist with an unrelated Mental Health Act apprehension. Civilian Witness #4 screamed during the course of the assault upon her, and civilian witnesses who were with the officers at the time clearly heard those panicked screams. Subject Officer #1 and Subject Officer #2 then followed the cries of distress and entered the triage hallway. On the video they can be seen arriving as the assault is in progress. As they rush towards the altercation, neither officer has his/her firearm drawn.

As the officers approached Mr. Duncan, he then turned his attention on them still brandishing the scissors. Both officers drew their firearms and pointed them at Mr. Duncan who began to move towards the officers. While the surveillance recording does not capture audio, multiple civilian witnesses recounted that the officers directed Mr. Duncan to “stop”, “freeze” and “put down the weapon”. Both officers can be seen on video backing up with their firearms drawn. Mr. Duncan continues to move towards them. He is still holding the scissors in his hands as he advances quickly upon the officers. As Mr. Duncan increases his gait and closes the distance between him and the officers, both Subject Officer #1 and Subject Officer #2 discharge their firearms. The post- mortem examination revealed that Mr. Duncan was shot a total of six times, including a shot to the head that would have been “rapidly lethal”. The shooting happened very quickly, with a total of four seconds elapsing between the officers drawing their firearms and subsequently discharging them.

What I must consider is whether the discharge of the firearms was a reasonable use of force in the circumstances. If so, the shooting was justified. The applicable provision of the Criminal Code in this case is section 34(1) which provides the legal justification for the use of force in defence of self and defence of others. A person is not guilty of an offence if, at the time that they employ the force in question:

  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, taking into account several factors that are enumerated in s. 34(2), including the nature of the threat, whether any weapons were involved, the availability of alternative means to neutralize the threat and the proportionality of the response

Given the speed with which both officers had to respond to a fluid and dangerous situation I believe their actions were justified.

As soon as the officers entered the scene they could see an assault in progress involving a man armed with a pair of scissors who was acting in violent manner. The man’s arms were covered in blood and he was described by nurses who were standing very close to him as he carried out his assaults on Civilian Witness #4 and Civilian Witness #2, as angry and psychotic looking. From that point onwards, it was a matter of seconds until the shooting, at which time I have no doubt that both Subject Officer #1 and Subject Officer #2 feared for their own livesfootnote 1, the lives of one another and those of the various civilians in the immediate area. Both officers also backed up down the hallway with their firearms drawn while issuing commands to Mr. Duncan, according to numerous witnesses, to stop advancing and put down the weapon. Despite this, Mr. Duncan continued to quickly close the distance between them with his weapon drawn. Only when there were no other apparent optionsfootnote 2 available did the officers open fire almost simultaneously. Although both officers declined to participate in the SIU investigation—as is their legal right—the available evidence satisfies, on reasonable grounds, all three of the requirements set out under s. 34. Thus, there are no reasonable grounds, in my view, to believe that Subject Officer #1 and Subject Officer #2 exceeded the ambit of justifiable force in the circumstances and as a result, no charges will issue.

I will be addressing the conduct of Witness Officer #6, of the Guelph Police Association, whose actions had the potential to taint the SIU investigation, in the following manner:

During the course of the initial investigation, Witness Officer #6 attended the scene and spoke to both Subject Officer #1 and Subject Officer #2. Witness Officer #6 was then, and remains, the President of the Guelph Police Association. In his/her capacity as an association representative, he/she met with both of the subject officers and spoke with them prior to their notes being completed. Guelph Police Service policy requires that a senior member of the Police Service be present when an association member speaks to a subject officer in the course of an SIU investigation. No such officer was present with Witness Officer #6 when he spoke to either Subject Officer #1 or Subject Officer #2. Witness Officer #6 was aware of the policy requirement, but elected not to follow it. His/Her purported rationales were that he/she disagreed with the policy, and that the association had threatened a grievance with respect to that particular requirement. Understanding that I have no automatic claim to the subject officers’ notes, I still say that his/her actions were inappropriate.

As you know, the appearance of an independent and integral investigation is critical to the function of the SIU and also to maintain public confidence in policing. Fortunately in this case, it is readily apparent that Subject Officer #1 and Subject Officer #2 were acting within the scope of their duties when they shot Mr. Duncan. One of the reasons for that clarity however, is the availability of video surveillance. Had surveillance been unavailable, and this investigation been reduced to a matter of reliability and/or credibility, perhaps based much more so on the subject officers’ accounts of the incident, Witness Officer #6’s actions could have served to taint the investigative process. Without doubt Witness Officer #6’s actions contravened in fact, or at the least, perceptually, the spirit of the rule in Wood v. Shaeffer 2013 3 SCR 1053 which indicates that officers should be writing their own notes without assistance from any “counsel”. This potential problem could have been easily insulated against had he/she simply followed policy and brought a senior member of the Guelph Police Service with him/her. It is concerning to this office that Witness Officer #6 is of the view that he/she can contravene policy that is established to facilitate a transparent investigative process simply because he/she disagrees with it. Given that this is a breach of internal police policy, I will leave it to you to decide what, if any, further action is required.

Date: February 29, 2016

Original signed by

Tony Loparco
Director
Special Investigations Unit