SIU Director’s Report - Case # 16-OFD-014
Issued: September 14, 2016
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: 01/16/2016 at 2135 hours
Notified By: Police
On Saturday, January 16, 2016, at 2135 hrs, Notifying Officer of Durham Regional Police Service (DRPS) reported the firearm death of Deceased.
Notifying Officer reported that a shooting had occurred at about 2120 hrs, at a location, Port Perry. A male (now known to be Deceased) with a knife was shot by Subject Officer.
Deceased was taken to the hospital (now known to be Lakeridge Health Port Perry (LHPP), where he was pronounced dead. Subject Officer was covered in blood and was being decontaminated and checked at the same hospital. The regional coroner, Dr. Doctor, was notified at 2239 hrs.
The investigation
Response Type: Attend Immediately
Date and Time Team Dispatched: 01/16/2016 at 2200 hours
Date and Time SIU Arrived on Scene: 01/16/2016 at 2338 hours
Number of SIU Investigator(s) assigned: 5
Number of SIU Forensic Investigator(s) assigned: 3
Complainant
Deceased Deceased
Civilian Witnesses
- Civilian Witness #1 Sensitive Personal Information ‐Did not witness the incident
- Civilian Witness #2 Sensitive Personal Information ‐Did not witness the incident
- Civilian Witness #3 Initial Interview: January 17, 2016
- Civilian Witness #4 Initial Interview: January 17, 2016
- Civilian Witness #5 Initial Interview: January 17, 2016
- Civilian Witness #6 Initial Interview: January 17, 2016
- Civilian Witness #7 Initial Interview: January 17, 2016
- Civilian Witness #8 Initial Interview: January 17, 2016
- Civilian Witness #9 Initial Interview: January 17, 2016
- Civilian Witness #10 Initial Interview: January 18, 2016
- Civilian Witness #11 Initial Interview: January 20, 2016
- Civilian Witness #12 Sensitive Personal Information
- Civilian Witness #13 Sensitive Personal Information
- Civilian Witness #14 Sensitive Personal Information
- Civilian Witness #15 Sensitive Personal Information
- Civilian Witness #16 Sensitive Personal Information
- Civilian Witness #17 Sensitive Personal Information
Subject Officer
Subject Officer Initial Interview: January 27, 2016
Copies of notebook entries were not provided by the subject officer.
Witness Officers
- Witness Officer #1 Initial Interview: January 20, 2016
- Witness Officer #2 Initial Interview: January 17, 2016
- Witness Officer #3 Initial Interview: January 17, 2016
- Witness Officer #4 Initial Interview: January 17, 2016
- Witness Officer #5 Initial Interview: January 17, 2016
- Witness Officer #6 Not Relevant
- Witness Officer #7 Not Relevant
- Witness Officer #8 Not Relevant
- Witness Officer #9 Not Relevant
- Witness Officer #10 Not Relevant
- Witness Officer #11 Not Relevant
Upon request the SIU obtained and reviewed the following materials and documents from the DRPS:
- Detailed Call Summary
- 911 Calls and Communications Recording
- Directive‐Reporting the Use of Force
- Disclosure Log‐2016‐01‐17
- General Occurrence ----redacted
- General Occurrence ----redacted
- Notes‐Witness Officer #4
- Notes‐Witness Officer #1
- Notes‐Witness Officer #5
- Notes‐Witness Officer #3
- Notes‐Witness Officer #2
- Notes‐Witness Officer #6
- Notes‐Witness Officer #7
- Notes‐Witness Officer #8
- Notes‐Witness Officer #9
- Notes‐Witness Officer #10
- Notes‐Witness Officer #11
- Typewritten list of all medical and EMS personnel (provided by DRPS)
- Will Say‐Witness Officer #5
- Witness List, and
- Witness Statement and Contact Info‐Civilian Witness #10
Director’s decision under s. 113(7) of the Police Services Act
I am satisfied, on reasonable grounds, that the subject officer, Subject Officer, was legally justified in shooting Deceased on January 16, 2016. The numerous witness statements, physical evidence, forensic analysis, 911 audio recordings and police radio recordings provide a clear and coherent account of the pertinent events. The full body of available evidence leads me to the conclusion that Subject Officer was acting in self‐defence when he discharged his firearm, and fatally wounded Deceased.
On the evening of January 16, 2016, Deceased consumed a significant amount of alcohol.
Deceased’s belligerence escalated to the point where Confidential Witness Statements Deceased then went to the kitchen and removed a large butcher knife from the cutlery drawer. He went to the living room and began to make stabbing motions at his chest. Civilian Witness #9 grabbed hold of the knife and wrestled it away from Deceased. In the course of doing so, he/she sustained a cut to his/her right thumb. After getting hold of the knife he/she threw it to the floor and kicked it underneath the couch. Confidential Witness Statements
Civilian Witness #4 and Civilian Witness #8 moved outside to the front porch and called 911 at approximately 9:05 p.m. The call was frantic, and the heated altercation could be overheard on the call. Because Civilian Witness #4 was panicked, Civilian Witness #8 took hold of the phone. He/She conveyed that Deceased had a knife, was threatening to kill himself and was a danger to everyone present. The 911 call operator instructed Civilian Witness #4 and Civilian Witness #8 to get inside Civilian Witness #8’s car for their own safety. Civilian Witness #8 remained on the line with the 911 call operator as Subject Officer arrived on scene.
As Civilian Witness #4 and Civilian Witness #8 were on the line with 911, Civilian Witness #9 came out of the house to the front porch. He/She called 911 at 9:06 p.m. He/She was crying and panicked at the time, and conveyed that Deceased had a knife and was drunk. Deceased came outside with the knife in his right hand, and again started making stabbing motions towards his chest while screaming “I want to die”. He/She remained on the line as the police arrived.
Subject Officer was dispatched to the scene at a location at 9:06 p.m. He was in his police uniform at the time, and operating a fully marked Durham Regional Police Service scout car. Subject Officer was advised that the call concerned a suicidal man armed with a knife, who was trying to kill himself. While en route he received further updates from the dispatcher indicating that the suspect (Deceased) had a person (Civilian Witness #9) cornered in the house. Subject Officer arrived on scene at approximately 9:07 p.m. He parked his scout car across the foot of the driveway of a location, just south of the driveway of a location. As the officer exited his vehicle, Civilian Witness #4 jumped out of a sedan parked just west of the driveway of a location. He/She was frantic and grabbed onto Subject Officer, screaming “He’s going to kill us – you have to get up there!” He looked towards the house and could hear a female voice (Civilian Witness #9) screaming from the porch. Civilian Witness #4 yelled, “You have to get up there – he’s going to kill Civilian Witness #9!”
Subject Officer had heard that Witness Officer #3 had also been dispatched to the call. He/She was armed with a conducted energy weapon, whereas Subject Officer was not. Subject Officer walked up the driveway towards the house. As he did, he became aware of Deceased walking down the driveway towards him. He was approximately 25 feet away from the officer. Subject Officer aimed his flashlight at Deceased, and quickly realized that he was armed with a butcher knife. Deceased was pressing the blade of the knife against his own chest. When Subject Officer realized that Deceased had a knife he pulled out his firearm with his left hand and pointed it at Deceased. It is at this point where the witness accounts diverge.
According to Subject Officer, as soon as he drew his firearm he yelled “Police – don’t move, drop the knife”. Deceased was said to look at Subject Officer and respond by saying “no”. Subject Officer then began retreating down the driveway by walking backwards. He moved down the middle of the roadway until he eventually got to a point where he was beside the rear bumper of his scout car. During this time, Deceased ambled from the driveway to the centre of the roadway, just northwest of the police cruiser. Subject Officer repeated his police challenge multiple times. He also hit the emergency button on his portable radio, and indicated that he had Deceased in custody at gunpoint. Deceased started to advance on Subject Officer. He again responded to the police challenge to drop the knife by saying “no”. He continued to walk slowly towards Subject Officer. Subject Officer repeated his police challenge, and Deceased was said to respond by saying “Fuck you – shoot me.”
Deceased then increased his pace as he moved towards Subject Officer, although he did not break into a run. As he did so, he repositioned the knife so that it was no longer pointing at his own chest. He instead pointed it at the officer. He began repeating with increasing volume “shoot me, shoot me, shoot me”. During this entire period, Subject Officer’s intention was to buy time for Witness Officer #3’s arrival, so that he/she could use his/her conducted energy weapon. As Deceased continued to advance on Subject Officer, he felt that he had nowhere to go. Deceased was advancing on Subject Officer quicker than he was able to back away.
Subject Officer considered his training, and decided that it would be unwise to resort to the use of his baton or pepper spray, given that he was faced with potentially deadly force in close proximity. He concluded that the only use of force option available to him was his firearm. Based on Deceased’s continued uttering of the phrase “shoot me”, his resolute expression and the speed with which he was advancing, Subject Officer concluded that that he was in imminent danger of being stabbed. In order to protect himself, he fired his gun twice in rapid succession. He was aiming for Deceased’s centre of mass. Deceased was about 10‐15 feet away from the officer at the time.
After Subject Officer discharged his firearm, Deceased staggered a few feet to the southeast near the front boulevard between two locations. He fell into a snowbank face first, with his own arms pinned beneath the weight of his body. Subject Officer issued a number of demands to Deceased to produce his hands, but Deceased did not respond. Subject Officer saw that there was a great deal of blood on the snowbank, so he asked dispatch for a rush on the ambulance. Despite the fact that another officer was not present to assist, Subject Officer felt the circumstances necessitated tending to Deceased, and medically assessing him. Subject Officer flipped Deceased so that he was face up. The knife fell to the ground and Subject Officer picked it up and threw it down the roadway. Subject Officer began applying pressure to the chest wound that Deceased had sustained. He also determined that Deceased was still exhibiting vital signs. Subject Officer continued to apply pressure to the wound until Emergency Medical Services arrived on scene. The time period from when Subject Officer arrived on scene to the point where he discharged his firearm was approximately 52 seconds.
One witness account stands in stark contrast to the version of events recounted by Subject Officer. Civilian Witness #10 was a visiting a person at a location on January 16, 2016. He/She was standing outside of the residence when his/her attention was drawn to the front porch of a location. There was a disturbance characterized by screaming, although Civilian Witness #10 could not hear what was being said. He/She also could not see anything besides silhouettes. Civilian Witness #10 believed the porch was approximately 200 feet away from him/her,
Civilian Witness #10’s version of events gives me pause. If he/she is correct, and Deceased was standing still with his hands at his side when he was shot, then it would undermine any claims of fear of imminent bodily harm from the subject officer. Moreover, his/her account reflects a second shot being fired after Deceased was already incapacitated, and presumably was no longer a threat. Such a course of action could very likely satisfy the evidentiary requirements for a finding of excessive force. However, for the following reasons I cannot accept Civilian Witness #10’s version of events as accurate. First, Civilian Witness #10 indicates that after Deceased collapsed following the first shot, Subject Officer fired a second shot some seconds later. This is contradicted by the accounts of multiple witnesses to the shooting who all recounted hearing two shots in rapid succession,
Subject Officer presented this Unit with a compelling and consistent version of events. It is also corroborated by the recorded 911 calls and radio communications. On the 911 call placed by Civilian Witness #4 and Civilian Witness #8, Civilian Witness #8 states that Deceased is walking towards the officer who is backing away from him, and that Deceased had the knife placed against his own chest at the time. On the 911 call placed by Civilian Witness #9, Subject Officer can be heard yelling “get on the ground, drop the knife”. Both of these features captured on the 911 calls are consistent with the statement Subject Officer provided to this Unit, and confirmatory of his account. Deceased can also be heard on the police radio channel saying “kill me” to Subject Officer, which also accords with Subject Officer’s narrative.
There is no question that Subject Officer was acting in the course of his duty when he attended the scene. The only issue that I need to consider is whether the shooting was justified. The applicable provision of the Criminal Code 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:
- 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
- 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
- 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
Upon seeing Subject Officer, the evidence establishes that Deceased decided to advance upon him with a knife. During that period, Subject Officer conducted himself with an aim to stalling Deceased until Witness Officer #3 arrived with a conducted energy weapon. However, his efforts were to no avail. He issued repeated police challenges directing Deceased to drop the knife and get on the ground. Deceased ignored him. He backed away from Deceased from the driveway all the way to his police cruiser. Deceased continued to advance on him. Deceased then increased his pace with the knife pointed towards the officer, yelling “shoot me” and “kill me”. Subject Officer considered alternative use of force options to his firearm. However, he concluded that neither his baton nor his pepper spray would be appropriate in a situation involving close quarter combat with an opponent wielding an edged weapon. Both his thought process and his conclusion in this regard cannot be faulted. Aside from wielding a butcher knife and displaying both hostility and combativeness, Deceased was a physically imposing man weighing approximately 240 pounds.
Subject Officer indicated that he felt that he would be stabbed by Deceased if he did not fire his gun. This was a more than reasonable conclusion given the circumstances. The officer was faced with a dangerous and dynamic situation that unfolded quickly over a mere 52 seconds. Subject Officer’s fear for his own safety was both objectively and subjectively reasonable and his actions were directed towards protecting himself from imminent bodily harm. His decision to fire his gun was reasonable in the circumstances, and he only did so when he had no other options.
In the final analysis the totality of the evidence satisfies all three requirements of section 34 of the Criminal Code. As a result, there are no reasonable grounds to believe that Subject Officer exceeded the ambit of justifiable force in the circumstances. Consequently, no charges will issue.
Date: September 14, 2016
Original signed by
Tony Loparco
Director
Special Investigations Unit
Footnotes
- footnote[1] Back to paragraph Sensitive Personal Information
- footnote[2] Back to paragraph The 911 call from Civilian Witness #4 and Civilian Witness #8 certainly confirms the panic in his/her voice. Civilian Witness #4 is heard screaming in the background while Civilian Witness #8 is talking to the 911 call taker. While he/she is generally incoherent in the background of the call at one point you can hear Civilian Witness #4 telling someone (presumably Subject Officer) “Civilian Witness #9 is screaming, my Civilian Witness #9 is screaming.”
- footnote[3] Back to paragraph In the distant background of the 911 call made by Civilian Witness #9 you can hear a police challenge similar to the one Subject Officer indicated that he gave followed by two gun shots in quick succession.
- footnote[4] Back to paragraph In fact the distance between the end of the driveway at two locations as measured on the map was approximately ----redacted feet.
- footnote[5] Back to paragraph In fact when looking towards the incident scene he/she said he/she could not make out the gender of the individuals and could see their silhouettes.
- footnote[6] Back to paragraph See the interviews of Civilian Witness #9, Civilian Witness #6, Civilian Witness #11, Civilian Witness #7 and Civilian Witness #5, in addition to the statement provided by Subject Officer.
- footnote[7] Back to paragraph At the 2 minute and 41 second mark in the recording you hear two shots in quick succession.
- footnote[8] Back to paragraph At the same point in the Civilian Witness #9 recording you hear “get to the ground, drop the knife” prior to the shots.
- footnote[9] Back to paragraph At the 2 minute 36 second mark on the police radio communication recording.