SIU Rules Officer Justified In Nipigon Shooting Death

Posted on Thursday, January 11, 2018 15:41 PM

The province's civilian police watchdog is absolving an Nipigon OPP officer in the shooting death of a 45 year old man in that community.

The incident took place in November of 2016 when police were called to a residence by a person who wanted a man removed. 

The investigation by the Special Investigations Unit revealed at first the man came out of the home with a knife and was tasered by police. 

The man then returned inside only to charge out a second time with a knife and was shot by police and later pronounced dead. 

The director of the SIU ruled the officer was justified in firing his weapon in order to thwart a knife attack and therefore will not be charged. 

SIU Director’s Report - Case # 16-PFD-294


Issued: September 19, 2017

Warning: this page contains graphic content that can shock, offend and upset.



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 45-year-old man by an officer responding to a call to a residence in Nipigon.

The investigation

Notification of the SIU

On November 26, 2016, at 8:18 p.m., the Ontario Provincial Police (OPP) reported a firearm death that occurred at about 7:30 p.m. that evening at a residence in Nipigon. OPP officers had responded to the residence as a result of a call from Civilian Witness (CW) #7 that she wanted a man removed. Witness Officer (WO) #1 and the Subject Officer (SO) arrived on scene. The man came out of the house armed with a knife. WO #1 discharged a conducted energy weapon (CEW) and the man went back in the house. He then charged out the front door with a knife. The SOdischarged his firearm and the man was struck. The man was transported to the hospital and was pronounced deceased.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

The SIU responded to the scene and identified and preserved evidence. The relevant scenes associated with the incident were documented by way of notes, photography, sketches and measurements. The SIU attended and recorded the post-mortem examination and assisted in making submissions to the Centre of Forensic Sciences (CFS).

Complainant

45-year-old male, deceased, medical records obtained and reviewed


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

CW #9 Interviewed

CW #10 Interviewed

CW #11 Interviewed

CW #12 Interviewed

CW #13 Interviewed

CW #14 Interviewed

CW #15 Interviewed

CW #16 Not interviewed, next of kin

CW #17 Not interviewed, next of kin

CW #18 Interviewed

CW #19 Interviewed

CW #20 Interviewed

CW #21 Interviewed

CW #22 Not interviewed, next of kin

CW #23 Not interviewed, next of kin

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Not interviewed, but notes received and reviewed

WO #5 Interviewed

WO #6 Not interviewed, but notes received and reviewed

WO #7 Not interviewed, but notes received and reviewed

WO #8 Not interviewed, but notes received and reviewed

WO #9 Not interviewed, but notes received and reviewed


Police employees

PE #1 Interviewed footnote 1

PE #2 Interviewed footnote 2

Subject officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The scene

This incident occurred on the front lawn of a residence in Nipigon. The house is a single-story bungalow with a set of five concrete steps leading down from the front door. The front lawn was grass-covered with patches of snow.

Scene diagram

Scene diagram

Physical evidence

Knife

Below is a photo of the knife involved in the incident:

Evidence - photograph of knife

Forensic evidence

Centre of Forensic Sciences submissions and results

The following items were submitted to CFS:

  • .40 calibre cartridge case
  • 29½ centimetre (cm) (overall length) black-handled serrated butcher knife with a broken tip and damaged handle
  • Sig Sauer model P229 pistol (.40 calibre semi-automatic)
  • projectile removed from left pelvis area during post mortem (.40 calibre jacketed hollow-point bullet), and
  • biological samples

CFS examination determined the projectile had been fired by the Sig Sauer pistol.

The toxicology examination of the biological samples indicated there was 152 mg (per 100 ml) of ethanol (alcohol) in the complainant’s blood.

Expert evidence

Post-mortem report

The Post-mortem report indicated the following:

  1. the cause of death was a single gunshot wound to the abdomen
  2. there were contusions and abrasions that could be accounted for either by the collapse following being shot or during arrest
  3. there was a recent fracture of the left hand that could not be explained by the known series of events. The type of injury was consistent with striking an object with a closed fist, such as a “boxer’s fracture”
  4. there was no medical evidence to support the holding of a knife in a hand
  5. there was no evidence to show that the probes of a CEW made contact with skin

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

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

  • Controlled Inventory Count (Weapons Control Vault) - the SO
  • Controlled Inventory Count (Weapons Control Vault) – WO #1
  • Crime Scene Log - residence
  • Crime Scene Log – the complainant
  • Duty Roster
  • Event Details
  • General Occurrence Report
  • List of Witnesses and Statements
  • Notes of WO #1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11
  • Occurrence (Involvements)
  • Occurrence History-the complainant
  • OPP Audio Interview Synopsis for CW #3, CW #4, CW #6, CW #9, CW #11 and CW #15, and CW #19
  • OPP Audio Interview Synopsis - non-designated witnesses
  • OPP Audio Statement Notes – CW #16
  • OPP File List for video and photos
  • OPP Officer Report and Monitor Notes - non-designated witness
  • OPP Officer Report – non-designated witness
  • OPP Officer Reports - CW #2
  • OPP Officer Report – CW #10
  • OPP Property Report
  • OPP Statement Synopsis – non-designated witness
  • OPP Video Interview Summary and Monitor Notes – CW #5
  • OPP Video Interview Synopsis – CW #1
  • OPP Witness Statement Synopsis – non-designated witnesses
  • Photobrief
  • Supplementary Occurrence Report

Incident narrative

During the early evening of November 26, 2016, the complainant was at CW #7’s residence, and refused to leave when requested. CW #7 called 911, requesting police assistance to have the complainant removed from her home. The SO and WO #1 responded to the call, met CW #7 up the street from her home, and accompanied her to the residence with the intent of requiring the complainant to leave.

When the SOWO #1 and CW #7 arrived at her home, the complainant came out of the front door carrying a kitchen knife. He refused to leave. The officers ordered the complainant to drop the knife, but the complainant would not. WO #1 discharged his CEW but, although it appeared to hit the complainant, it had no effect. The complainant reentered the home and slammed the door. Within seconds, however, the complainant came out the front door with the same knife raised, charging down the steps towards the SO. The SO fired one shot while backing up, hitting the complainant in the abdomen.

The SO called Emergency Medical Services (EMS) while WO #1 administered Cardiopulmonary Resuscitation (CPR) until EMS arrived. WO #1 continued CPR in the ambulance while the complainant was transported to the hospital. Unfortunately, once at the hospital, the complainant was declared deceased. The cause of death was determined to be a single gunshot wound to the abdomen.

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.

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

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

  1. the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
  2. the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
  3. the person to be arrested takes flight to avoid arrest;
  4. the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
  5. the flight cannot be prevented by reasonable means in a less violent manner.

Section 34, Criminal Code - Defence — use or 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;

    (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.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

Analysis and director's decision

On the evening of November 26, 2016, members of the OPP responded to a domestic call at a house in Nipigon where police officers encountered and fatally shot the complainant. In my view, there are no reasonable grounds to believe that the SOcommitted a criminal offence in relation to the death of the complainant.

On November 26, 2016, the complainant received a letter advising that he owed more than $100, 000 in child support arrears. This information upset him. Later, when the complainant was at CW #7’s residence, he was drinking and he and CW #7 argued. She told him to leave but the complainant refused and told her to call the police if she wanted him removed. At 6:57 p.m., CW #7 called 911 and reported that the complainant had been drinking, was being verbally aggressive with the neighbours and refused to leave her house.

The SO and WO #1 responded to the address. At about 7:10 p.m., the two police officers arrived and spoke with CW #7 on the street. The SO and WO #1 were standing outside the house when the complainant opened the front door. He was holding a large kitchen knife in his right hand down by his side. The complainant yelled at CW #7 for having the police there. WO #1 called out to the complainant to drop the knife and told the SO to draw his firearm. WO #1 unholstered his CEW and activated it, while the SO withdrew his firearm. WO #1 moved to a position between CW #7 and the complainant, and told her to leave. CW #7 retreated to the road. The SO stood close to their police vehicle in the driveway and continued to command the complainant to drop the knife from about three to four-and-a-half metres feet away. The complainant refused to drop the knife and claimed he needed the knife for protection from CW #7. He was angry and yelled at the police officers to go away.

WO #1 stated, “Taser! Taser!” From about three metres away, WO #1 deployed his CEW in an attempt to de-escalate the situation and prevent the complainant from harming himself or anyone else. WO #1 saw the complainant wince in pain and step back inside the house. Moments later, the complainant emerged from the front door, now holding the knife pointed forward and parallel to the ground. He ran down the stairs in the SO’s direction. The SO fired one shot while backing up, and then fell backwards onto the snow covered ground. The gunshot struck the complainant in the abdomen. The complainant fell to the ground. The SO kept his firearm pointed at the complainant. WO #1 moved in from the SO’s left and went to the complainant who was lying on his right side with his face on the snow. WO #1 secured the complainant’s hands and directed the SO to call the communications centre. At 7:17 p.m., the SO broadcast over the radio that shots were fired and EMS was required. The police officers administered CPR until EMS arrived.

Following the shooting, the knife was located in the snow a short distance away from where the complainant lay. Concerned that CW #7, and potentially others, could access the knife if not secured, as the police officers were preoccupied providing care to the complainant, WO #1 had the SO pick up the knife and secure it in their police vehicle for safety reasons footnote 3 . I am thereby satisfied that the officers’ removal of the knife from the scene to prevent potential harm was reasonable given the dynamic circumstances surrounding them at the time. EMS arrived and transported the complainant by ambulance to the hospital. EMS records indicated that he had no heart beat or heart activity during his transport to hospital. At 8:04 p.m., he was pronounced dead.

It is without question that the SO and WO #1 were acting in the course of their duty when they attended CW #7’s house in response to her 911 call for assistance. The only issue necessary for me to consider is whether the shooting by the SO was justified. I am satisfied that it was pursuant to sections 34 and 25 of the Criminal Code. Section 34 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. Additionally, pursuant to section 25(3) of the Criminal Code, a police officer’s use of lethal force in the execution of duty is limited to those cases in which such force is reasonably necessary to protect against a loss of life or grievous bodily harm.

The SO and WO #1 reported that the complainant came running out of the house and down the stairs of the front porch with a knife pointed forward. He had ignored their multiple commands to drop the knife and was quickly closing the gap between them when, from a distance of about one-and-a-half metres, the SO discharged his firearm. Although the SO did not provide the SIU with an interview – as is his legal right – he did provide a copy of his notes. I have no doubt that the SO feared for his own life, that of his partner, and CW #7, as the complainant advanced quickly toward him with a large knife in hand. The SO articulated this fear and based on the circumstances I believe him. WO #1 had already tried unsuccessfully to deploy a non-lethal weapon, his CEW, and had not yet transitioned to his firearm when the complainant came at them. The post-mortem report concluded that the cause of death was a single gunshot wound to the abdomen, which was consistent with the account of the SO and the other witnesses. Accordingly, based on the foregoing evidence, I am satisfied that the SO harboured a reasonable belief when he discharged his firearm that it was necessary to do so to thwart an imminent knife attack at the hands of the complainant.

In the final analysis, the totality of the evidence satisfies section 25(3) and all three requirements of section 34 of the Criminal Code. As a result, there are no reasonable grounds to believe that the SO exceeded the ambit of justifiable force in the circumstances. Consequently, no charges will issue and this case will be closed.

Date: September 19, 2017

Original signed by

Joseph Martino
Acting Director
Special Investigations Unit


 

Updated: January 11, 2018
Published: January 11, 2018


Footnotes

  • footnote[1] Back to paragraph PE #1 is from the Lake Helen Police Department, Nipigon Detatchment.
  • footnote[2] Back to paragraph PE #2 is from the Anishinabek Police Service.
  • footnote[3] Back to paragraph The OPP seized the 29.5 cm long kitchen knife from the SO’s vehicle, and it was subsequently turned over to the SIU.