BREAKING SIU: No Charges in BABAK SAIDI Shooting Death @ Morrisburg #OPP Detachment 021919

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 death of a 43-year-old man (the Complainant) as a result of being shot by a police officer on December 23, 2017.

The Investigation

Notification of the SIU

On December 23, 2017 at 12:26 p.m., the Ontario Provincial Police (OPP) notified the SIU of a fatal shooting at the Morrisburg OPP detachment. According to the OPP, the shooting occurred at approximately 12:00 p.m. after a man had attended the Morrisburg OPP detachment to sign in; he then became involved in a physical altercation with one of the OPP officers and the man was fatally shot by the officer.
No further details were available at that time.

The Team

Number of SIU Investigators assigned:  5
Number of SIU Forensic Investigators assigned:  3

Four investigators and three forensic investigators (FI) were immediately dispatched to the scene. Weather conditions on December 23, 2017 were severe, with heavy snowfall along the Highway 401 corridor. Those weather conditions severely hampered the SIU response to the scene.

The SIU reviewed a number of OPP documents and records related to this incident. The SIU issued witness officer designations to the OPP officers whose names appeared in those materials, in order to determine whether those police officers had any involvement in the incident of December 23, 2017, and to confirm information related to the December 20, 2017 incident that occurred in front of the Complainant’s residence. Based on a review of the witness officers’ notes, only those witness officers who were likely to have material information regarding the shooting death of the Complainant were interviewed by the SIU.

Complainant:

43-year-old male, deceased 

[Note : A Complainant is an individual who was involved in some form of interaction with police, during the course of which she or he sustained serious injury, died or is alleged to have been sexually assaulted.]

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

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
WO #6 Interviewed, notes received and reviewed
WO #7 Interviewed, notes received and reviewed
WO #8 Interviewed, notes received and reviewed
WO #9 Interviewed, notes received and reviewed
WO #10 Interviewed, notes received and reviewed
WO #11 Notes reviewed, interview deemed not necessary
WO #12 Notes reviewed, interview deemed not necessary
WO #13 Notes reviewed, interview deemed not necessary
WO #14 Notes reviewed, interview deemed not necessary
WO #15 Notes reviewed, interview deemed not necessary
WO #16 Notes reviewed, interview deemed not necessary
WO #17 Notes reviewed, interview deemed not necessary
WO #18 Notes reviewed, interview deemed not necessary
WO #19 Notes reviewed, interview deemed not necessary
WO #20 Notes reviewed, interview deemed not necessary
WO #21 Notes reviewed, interview deemed not necessary
WO #22 Notes reviewed, interview deemed not necessary
WO #23 Notes reviewed, interview deemed not necessary
WO #24 Notes reviewed, interview deemed not necessary
WO #25 Notes reviewed, interview deemed not necessary
WO #26 Notes reviewed, interview deemed not necessary
WO #27 Notes reviewed, interview deemed not necessary
WO #28 Notes reviewed, interview deemed not necessary
WO #29 Interviewed, notes received and reviewed

[Note : A witness officer is a police officer who, in the opinion of the SIU Director, is involved in the incident under investigation but is not a subject officer.

Upon request by the SIU, witness officers have a duty under Ontario Regulation 267/10 of the Police Services Act, to submit to interviews with SIU investigators and answer all their questions. The SIU is also entitled to a copy of their notes from the police service.]

Subject Officers

The SO Interviewed, but declined to submit notes, as is the subject officer’s legal right; submitted a consent DNA sample at the request of the SIU. 

[Note : A subject officer is a police officer whose conduct appears, in the Director’s opinion, to have caused the death or serious injury under investigation.

Subject officers are invited, but cannot be legally compelled, to present themselves for an interview with the SIU and they do not have to submit their notes to the SIU pursuant to Ontario Regulation 267/10 of the Police Services Act.]

Incident Narrative

Prior to the death of the Complainant, he was on a court-ordered condition requiring him to sign in at the Morrisburg OPP detachment every Saturday. The Morrisburg OPP detachment, however, had received a criminal complaint against the Complainant with respect to an incident from December 20, 2017, as a result of which they made a number of plans to arrest him, none of which came to fruition. They ultimately decided to arrest the Complainant when the Complainant came to the detachment to sign in on the following Saturday.

On Saturday, December 23, 2017, the Complainant attended the detachment in order to sign the register, as required. Once the Complainant had entered the OPP detachment, he was advised by the SO and WO #6 that they were placing him under arrest for a number of new criminal charges and on the basis of the breach of his statutory release and bail conditions. The Complainant then began to walk away from the officers and out of the detachment, with the two officers following and attempting to stop him from leaving.

As the Complainant approached the exit door, the SO reached out and grabbed the Complainant’s arm to take control of him and prevent him from leaving the detachment. The Complainant resisted and the two officers and the Complainant became involved in a struggle, which caused all three parties to fall through the exit door and out onto the paved area in front of the detachment, where the struggle continued.

During the course of the altercation, the SO received a laceration to his head, when he was struck with his portable radio, and he delivered several strikes to the Complainant in an attempt to restrain him. When the SOwas unable to overcome the Complainant’s resistance, he deployed his Conducted Energy Weapon (CEW) at the Complainant. The CEW, however, appeared to have no effect on the Complainant, following which the Complainant managed to grab hold of the CEW and it was discharged a second time.

Fearing that the Complainant could overpower the SO, the SO unholstered his firearm. When the Complainant continued to come at the SO, with the struggle continuing, the SO discharged his firearm five times, striking the Complainant on each occasion. The Complainant died from the injuries sustained.

The struggle between the two police officers and the Complainant was captured by the detachment surveillance video; a civilian witness who was present also observed both the struggle and the subsequent shooting.

Cause of Death

The Complainant sustained five gunshot wounds (GSWs) [1]:

• GSW #1 was to the front of his right shoulder;
• GSW #2 was to his right upper back, 2cm right of the midline;
• GSW #3 was to the right side of his upper back, 5.5cm right of the midline;
• GSW #4 was in the rear of his right shoulder; and
• GSW #5 was a superficial wound through his left thigh. 

The Complainant also had multiple abrasions to his head.

The post-mortem report, dated April 26, 2017, concluded that the cause of death was due to three of the gunshot wounds, as follows:

Recent injuries were identified, including five (5) gunshot wounds. Two of these gunshots entered the decedent’s body on the right side of the upper back and perforated both pleural cavities resulting in injury to the right and left lungs, the aorta, the esophagus, and the trachea. One of these bullets exited the body through the left side of the chest while the other was recovered from within the soft tissues of the left chest. Another gunshot wound entered the decedent’s body through the posterior aspect of the right shoulder and passed through the right pleural cavity, resulting in injury to the right lung, the pulmonary trunk, the right side of the heart, the diaphragm and the left lobe of the liver. This bullet was recovered from inside the stomach. These three gunshot wounds represent the fatal injuries.

The report concluded that the remaining two gunshot wounds “did not result in any significant vascular injury and did not contribute to death in this case.” Equally, the pathologist concluded that the bruises, lacerations, and abrasions which were located on the Complainant’s body were not “of sufficient severity to have contributed to death.” 

The pathologist concluded that, “death is attributed to gunshot wounds to the right shoulder and right side of the back.”

Evidence

The Scene

The Morrisburg OPP detachment is located south of Highway 401, on the southwest corner of the intersection of County Road 2 and County Road 31, in the village of Morrisburg. Across from the OPP detachment, on the northwest corner of the intersection, is a MacEwen Gas Bar. West of the gas bar is a Canadian Tire store.

The Morrisburg OPP detachment is housed inside a municipal building that also houses the Morrisburg fire station and the Morrisburg regional courthouse. The main entrance to the building is an entrance on 5th Street West, on the south side of the building, but given that the parking lot is on the north side of the building, the north entrance is the preferred building access for those arriving by vehicle.

Upon entering the building through the north access doors, the entrance to the OPP office is on the right side of the hallway. On entering the OPP office, there is a short hallway, with a reception desk on the right side. Further into the OPP office is the constables’ work area.

This incident occurred at the north access doors to the municipal building. Outside the north doors, there is a small alcove. A direct line telephone to OPP communications is mounted on the west wall of the alcove. A surveillance camera is mounted on the east wall of the alcove.

Scene Diagram

Physical Evidence

In the alcove at the north access doors, the SIU identified the following items:

• Five spent bullet casings;
• Two projectiles;
• A TASER International® CEW and holster;
• Three cartridge doors from TASER International® X2 CEW cartridges;
• Anti-Felon Identification (AFID) markers from two different TASER International® CEW cartridges;
• A police portable radio;
• A flashlight; and
• A defibrillator (AED).

An ambulance from the Cornwall and SDG Paramedic Service was parked in front of the alcove; the Complainant’s body was inside that ambulance at the time of the arrival of SIU investigators.

A knife that had been used by WO #10, to cut clothing away from the Complainant, was found sitting atop the telephone outside of the building; that item was released back to the OPP, as the role it played was known to the SIU.

There was quite an accumulation of snow that had fallen in the time between the incident and the attendance of the SIU, which created a challenge for the SIU forensic investigators; all available items of importance were, however, collected by the SIU. The OPP later conducted a secondary examination of the scene and collected the AFID markers left at the scene. The OPP also collected police equipment (the AED, the SO’s portable radio, [2] and WO #10’s knife) after the SIU determined those items could be turned over to the OPP.

WO #9 had collected the SO’s Sig Sauer P229 .40 calibre semi-automatic pistol and it was turned over to the SIU. The SIU also collected the uniforms and use of force equipment worn by the SO and WO #6, and later downloaded the deployment data from the CEWs carried by these two police officers.

CEW Deployment Data

The data from WO #6’s CEW indicated that she arc-tested her CEW at 6:03 that morning, but that she did not deploy her CEW at any point that day.

The data from the SO’s CEW indicated that he arc-tested his CEW at 6:29 that morning; that at 11:11:42 a.m., Cartridge One was deployed with a cycle duration of five seconds; at 11:11:52 am, Cartridge Two was deployed with a cycle duration of five seconds; and, that the device then remained armed for another 1147 seconds (19 minutes and seven seconds).

Forensic Evidence 

There were numerous submissions made to various departments of the Centre of Forensic Sciences (CFS).

The SO’s pistol, CEW, radio, ballistic vest, and a knife located inside a pocket of his ballistic vest, were swabbed and those swabs were submitted to the CFS for DNA analysis.

The SIU then examined the SO’s firearm for fingerprints, but none were identified.

The SIU submitted the SO’s firearm, a Sig Sauer P229 .40 calibre semi-automatic pistol, and his spare ammunition, to the CFS; also submitted were projectiles recovered both at the scene and during the post-mortem examination, as well as cartridge cases recovered from the scene, to confirm that all items originated from the SO’s firearm. The Complainant’s outer clothing was also submitted to the CFS to be examined for any gunshot residue, which could be used to determine the distance between the Complainant and the SO at the time that the SO discharged his firearm.

Blood taken from the Complainant at the post-mortem examination was also submitted to the CFS for toxicological analysis.
On March 6, 2018, the CFS reported that blood had been found on swabs taken from the SO’s police radio; swabs taken from the muzzle end of his handgun, however, did not reveal the presence of blood. Only the Complainant’s DNA was identified in blood found on the microphone cord of the SO’s police radio; a DNA mix from more than one contributor was identified on other surfaces of the radio. Although no blood was identified, the swabs taken from the muzzle end of the SO’s pistol revealed the presence of three DNA profiles.

On March 19, 2018, the CFS reported that the analysis of the swab taken from the muzzle end of the SO’s firearm revealed a mixture of DNA from three individuals, at least two of whom were male. The CFS reported that the mixture was likely to be a combination of the Complainant’s DNA, along with the DNA of two other persons, to a certainty of 61 million to one. [3]

On May 4, 2018, the CFS reported the DNA results from the swabs taken from the SO’s ballistic vest. The report indicated that three stained areas were swabbed on the SO’s vest, all three of which tested positive for blood. Two of those blood stains were determined to be a mixture from two males, while the other was from a single male; the Complainant was identified to have been a contributor of at least one of the mixed stains.

On June 21, 2018, the CFS reported results of comparisons between the SO’s consent DNA sample and the DNA profiles previously developed by the CFS. The CFS determined that the SO could not be excluded as a contributor to the profile mixture identified from the muzzle end of his handgun; the mixture was one sextillion times more likely to have come from the Complainant, the SO, and one other individual, than it was to have come from three other individuals.

The CFS also determined that the SO could not be excluded as the source of the single source blood stain identified on his vest, nor could he be excluded as a contributor to the mixed profiles identified on his vest.

On September 11, 2018, the CFS reported the results of the analysis of WO #9’s consent DNA sample. The CFS reported it was unlikely that WO #9 had contributed to the profile mixture developed from the SO’s firearm, although the results were not definitive enough to completely exclude her as a possible contributor. The CFSdetermined, however, that it was 19 times more likely that the mixture was from three individuals that did not include WO #9, than it was that the mixture was from WO #9 and two other individuals. The CFS analyst verbally advised the SIU that he considered WO #9 to be all but excluded, although he could not state that opinion as a scientific fact.

The third contributor to the DNA profile mix from the muzzle end of the SO’s pistol could not be identified.

On October 4, 2018, the CFS reported that the SO had been identified as the source of blood and DNAidentified on the Gerber folding knife that he had been carrying in his protective vest.

On June 22, 2018, the CFS reported the results of the firearms analysis. The CFS determined that the five spent cartridge cases collected by the SIU were all fired from the SO’s handgun. Four bullets and a bullet core were also examined by the CFS, with three of the bullets being identified as having been fired from the SO’s handgun, while the fourth bullet, and the bullet core, lacked sufficient individual characteristics in order to either identify or eliminate them as having been fired by the SO’s handgun.

The CFS identified three defects (holes) in the upper right arm of the Complainant’s jacket, as follows:

• Defect 1 was located in the front upper right shoulder area; no propellant or soot was observed;
• Defect 2 was located in the front upper right shoulder area; no propellant or soot was observed; and,
• Defect 3 was located in the right rear mid-arm area; no propellant or soot was observed.

The CFS cautioned that Defect 1 and Defect 2 could be related to a single bullet passing through the jacket while the jacket was bunched together, with Defect 3 possibly being the corresponding exit hole, if the holes had indeed been caused by a projectile.

Other defects were also identified in the Complainant’s jacket as follows:

• Defect 4 was located in the rear upper mid-back area; no lead or copper residues were detected, but propellant particles were present. The CFS could not, however, determine if the propellant particles were from a gunshot or if they had been transferred from another area of the jacket;
• Defect 5 was located in the rear right upper back area; no lead or copper residues were detected, but there was a dense pattern of propellant particles. The CFS determined that the SO’s handgun was less than two feet away from the Complainant’s jacket, but not in contact with it, when it created this defect; and
• Defect 6 was located in the rear right upper back area; no lead or copper residues were detected but some propellant particles were present. A corresponding defect in the Complainant’s underlying sweater was also found to have propellant particles. A photograph of the wound corresponding to Defect 6 showed possible powder particles surrounding it. The CFS determined that the SO’s handgun was in contact with the Complainant’s jacket when this defect was created.

The CFS identified Defect 7 in the front lower left area of the Complainant’s sweater, but no associated defect was identified in the Complainant’s jacket. The CFS opined that this could have been explained by the Complainant’s jacket possibly having been open at the time the shot was fired.

Expert Evidence

Post-Mortem Examination

On December 27, 2017, a post-mortem examination was conducted by a forensic pathologist in a facility in Ottawa.

During the examination, two CEW probes were found, one of which was caught on the inner lining on the right side chest of the Complainant’s jacket, while the second was located loose in the area of his lower left leg; neither probe was in contact with the Complainant’s skin. There was also CEW wiring found entangling the Complainant’s body.

A .40 calibre projectile fell out of the Complainant’s clothing at the beginning of the post-mortem examination.

The Complainant sustained five gunshot wounds.

GSW #1 was in the front of his right shoulder. No soot or stippling was observed at this wound. This bullet travelled through soft tissue and exited the back of his right upper arm. The direction of travel was downward and front to back.

GSW #2 was to his right upper back, 2 cm right of the body midline. There was no soot or stippling associated to this wound. This bullet travelled through the upper lobe of his left lung and through a rib, before lodging in his left side. The direction of travel was from back to front, right to left, and downwards.

GSW #3 was to the right side of his upper back, 5.5 cm right of the body midline. There was blackening of the wound edge but no soot or stippling. This bullet travelled through the back of the 3rd right rib, through the upper lobe of the right lung, perforated his aorta, esophagus and trachea, into the upper lobe of the left lung, and exited the left side of his chest. The direction of travel was back to front, right to left, and downward.

GSW #4 was in the rear of his right shoulder. There was fine particulate matter around the wound that might have been unburned gunpowder. The bullet entered the right scapula, passed through the upper lobe of the right lung, penetrated the posterior wall of the right atrium, entered the left lobe of his liver, and then into the stomach, lodging there. The direction of travel was back to front, right to left, and downward.

GSW #5 was a superficial wound through his left thigh. No soot or stippling was observed. The direction of travel was front to back and downward.

Toxicological analyses identified tetrahydrocannabinol (THC) and THC metabolites in the Complainant’s blood. 

The Complainant also had multiple abrasions to his head.

The Post-Mortem Report, dated April 26, 2017, concluded that the Complainant’s cause of death was “attributed to gunshot wounds to the right shoulder and right side of the back.”

Video/Audio/Photographic Evidence 

Detachment Video

At the municipal building which houses the Morrisburg OPP detachment there are a number of closed circuit television (CCTV) cameras mounted on the interior and exterior of the building; video from four of those cameras was obtained by the SIU. Two exterior cameras, one facing northeast and the other northwest, recorded the parking lot on the north side of the building. A third exterior camera, mounted on the east wall of the north door alcove, recorded anyone entering the building or using the direct line telephone that was mounted on the west wall of the alcove. A fourth camera was positioned inside the main lobby of the building, oriented toward the north doors of the building.

Images from the interior camera had extensive issues with background glare, as the lighting outside the building was far brighter than the lighting inside the building at the time of the shooting. The recording from that camera was sent to the Ministry of Finance (MOF) Technical Services Branch for possible enhancement; however, after attempting to enhance the video recording, the MOF reported that the camera images suffered from “blooming”, a situation whereby the camera sensors were overwhelmed by the intensity of the background light, and that nothing could be done to enhance the images.

On December 23, 2017, at 10:09 a.m., the exterior surveillance cameras recorded the SO and WO #6 exiting a secure door near the sally port/garage doors, located west of the main entrance door alcove. The SO and WO#6 entered separate police cruisers and exited the parking lot, following which both were then seen travelling northbound on County Road 31.

At 10:46 a.m., a white Honda CRV driven by CW #4 pulled up to the north doors of the building. The Complainant exited the rear passenger side door of the vehicle, walked over to the OPP direct line telephone, and picked up the handset. At 10:47 a.m., the Complainant hung up the telephone and re-entered the rear passenger side seat of the Honda CRV, and the vehicle then exited the parking lot.

At 10:54 a.m., the SO and WO #6 returned to the detachment and parked their cruisers.
They then entered the building through the sally port access door.

At 10:56 a.m., the SO opened the door of the OPP office, inside the main lobby of the building, and the SO and WO #6 entered the lobby. The SO and WO #6 had their portable radios mounted on the front of their ballistic vests. WO #6 opened one of the north building doors and she and the SO stepped outside. WO #6 placed a pen between the door and the doorframe, to prevent the door from locking behind them. Both police officers looked around the parking lot, trying to locate the Complainant. At 10:57 a.m., the SO and WO #6 re-entered the municipal building and the door closed behind them.

At 10:57 a.m., the white Honda CRV driven by CW #4 returned to the parking lot. CW #4 stopped the vehicle just east of the main building doors, with the driver’s side of the vehicle parallel to the north side of the building. The vehicle was approximately 20 metres away from the main building doors. WO #6 and the SO were standing in the lobby and WO #6 appeared to notice that a vehicle had entered the parking lot. At 10:58 a.m., WO #6 opened one of the main building doors and she and the SO stood at the door.
At 10:58 a.m., the rear passenger side door of the CRV opened and the Complainant exited the vehicle; he jogged around the rear of the vehicle and jogged over to the front doors of the building. WO #6 waved toward the CRV.

At 10:58:44 a.m., the Complainant entered the main building and the door closed behind him. 

At 10:58:51 a.m., the Complainant entered the OPP office, followed by the SO and WO #6, and the door to the OPP office closed behind them.

At 10:59:33 a.m., the OPP office door opened and the Complainant exited the OPP office, followed by WO #6 and the SO. The Complainant walked toward the north building doors, followed by WO #6 on his left side and the SO on his right side. The SO increased his pace to catch up to the Complainant, who was approximately one metre away from the north building doors, and the SO used his left hand to grab the Complainant’s left shoulder and his right hand to grab the Complainant’s right arm. WO #6 appeared to grab the Complainant’s left bicep area at the same time. The Complainant pushed open the door and all three parties, by then involved in a struggle, spilled outside.

The SO’s right hand was on the Complainant’s right shoulder, grabbing onto the Complainant’s jacket, and his left hand was on the Complainant’s left shoulder. The SO was behind the Complainant and he was pulling the Complainant backward. The SO then wrapped his left arm around the Complainant’s upper chest, and the SO’s left hand could be seen in the area of the Complainant’s face. At the same time, WO #6 was grabbing at the Complainant’s arms. The struggling mass spun around and the SO appeared to be pulling down on the Complainant.

The following events then occurred very quickly:

• At 10:59:46 a.m. – the SO drew back his right hand and delivered a punch to the back of the Complainant’s head;
• At 10:59:47 a.m. – the SO delivered two more strikes to the Complainant’s head. WO #6 continued to wrestle with the Complainant;
• At 10:59:48 a.m. – the struggling mass went down to the ground, with the Complainant landing on his left side. The SO landed on top of the Complainant and WO #6 was on her knees in the area of the Complainant’s shoulders;
• At 10:59:57 a.m. – the SO appeared to deliver a right elbow strike toward the Complainant’s head or shoulders;
• At 11:00:01 a.m. – the Complainant was then on his back and his right hand moved out from his right side. He was holding a rectangular object (believed to be the SO’s radio) in his right hand, which he quickly brought back into the struggling mass;
• At 11:00:04 a.m. – using his right hand, the SO reached for his pistol on his right hip, but he then reached across his body to his left hip. The SO then sat up slightly;
• At 11:00:07 a.m. – the SO could be seen holding something in his left hand, which he then passed to his right hand. The SO moved his right hand up past his shoulder and he was seen to be holding a CEW in his right hand. The SO then moved the CEW downward toward the Complainant, while WO #6 continued to struggle at the Complainant’s shoulders;
• At 11:00:10 a.m. – the Complainant’s left hand briefly could be seen above the SO’s right shoulder, but it then disappeared from view as he brought it back toward his body;
• At 11:00:11 a.m. – an object, possibly the SO’s CEW, appeared above the SO’s left shoulder and the Complainant’s hands were close to the object. The Complainant made a grabbing motion toward the object using his right hand;
• At 11:00:12 am – a white light, believed to be the flashlight from the SO’s CEW, could be seen at the side of the struggling mass (to the Complainant’s right side);
• At 11:00:13 a.m. – WO #6 stood up and stepped away from the struggle. She pulled something (believed to be a CEW wire) out of her sleeve. The Complainant, by that time, had rolled onto his belly, with the SO still atop his hips, and the flashlight from the CEW could be seen reflecting off the snow beside the Complainant;
• At 11:00:16 a.m. – WO #6 stepped back toward the Complainant following which she then reached for her CEW. As she did so, at 11:00:18 a.m., the Complainant’s right hand emerged from the struggle and he appeared to have the SO’s CEW in his right hand; another object (the SO’s radio and radio holster) fell away from the struggle;
• At 11:00:19 a.m. – the SO came up off of the Complainant, who then started to roll up onto his left hip. As the SO and WO #6 moved toward the east wall of the alcove, the Complainant rolled onto his back and buttocks and he could be seen to be holding the SO’s CEW in his right hand; he appeared to be holding it by gripping it over the top, not in the proper manner of holding it like a pistol. The SO reached for his handgun as the Complainant moved the CEW toward the SO, with the CEW pointed toward the SO. The SO continued to move backward toward the east wall of the alcove and the Complainant continued rising to a sitting position and moving toward the SO;
• At 11:00:21 a.m. – the SO’s pistol was clearly visible in his right hand and the Complainant, who was by then sitting up, reached with his left hand and grabbed onto the SO’s pistol, while still holding the CEW in his right hand. The SO pulled the firearm out of the Complainant’s grasp;
• All three parties then moved underneath the exterior alcove camera, and they were no longer in view of that camera; 
• At 11:00:22 a.m. – the Complainant’s right hand, still holding the CEW, could be seen sweeping through the lower corner of the exterior camera image. At the same time, a small object, likely a spent cartridge case, could be seen bouncing along the top of the snow under the telephone on the west wall. From the interior camera, which suffered from backlighting glare, it appeared that the Complainant’s hand was near the SO’s pistol at that point. The SO and the Complainant then fell to the ground and were struggling near the east wall;
• At 11:00:23 a.m.– a bullet struck the walkway in front of the building doors and it ricocheted, striking the wall underneath the outside telephone. Spalling (the breaking into smaller pieces) of the brick under the telephone could be seen;
• At 11:00:25 a.m.– WO #6 was standing in the middle of the alcove, with her CEW in both hands, facing toward the east wall;
• At 11:00:26 a.m. – the interior camera showed the SO down on the ground and in contact with the Complainant, with the SO’s right arm raised and curved toward the Complainant. The exterior alcove camera recorded a small object bouncing onto the ground (visible over WO #6’s right shoulder in the image);
• At 11:00:27 a.m.– as the SO started to stand up, another small object could be seen bouncing onto the ground (visible over WO #6’s right shoulder in the image);
• At 11:00:28 a.m.– the SO stood and moved backward toward the parking lot; and
• At 11:00:29 a.m.– the interior camera recorded the SO slipping and falling. At the same time, the exterior camera recorded an airborne object bouncing off the front doors of the building, and landing approximately three feet in front of the main doors (note: a cartridge case was later recovered from that location). The SOand WO #6 moved toward the parking lot.

The Honda CRV operated by CW #4 had not moved during these events. At 11:00:54 a.m., CW #4 opened the driver’s door and he exited the vehicle. He stood briefly at the side of the vehicle and then started to approach the front doors of the building. He appeared to ask for permission to approach and he then raised his hand as though acknowledging direction to stay away. CW #4 then walked in a southeast arc toward the front of the building.

At 11:01:41 a.m., WO #6 and the SO approached the Complainant and WO #6 knelt down at his side. As she did so, CW #4 returned to the Honda CRV and re-entered the vehicle.

At 11:02:29 a.m., WO #6 started performing CPR on the Complainant.

At 11:03:22 a.m., CW #4 drove westbound through the parking lot and left the area. 

At 11:05:00 a.m., a Hyundai Elantra, driven by civilian witness CW #9, drove westbound through the parking lot.

At 11:07 a.m., WO #5 and WO #10 arrived and took over CPR. WO #6 retrieved an AED (automated external defibrillator) from WO #5’s police cruiser and she applied it to the Complainant. On at least three occasions, prior to the paramedics arriving, police officers involved in performing CPR could be seen to briefly move away from the Complainant, most likely as the AED conducted an analysis of the Complainant’s cardiac rhythm.

WO #9 arrived at the scene at 11:12 a.m. and paramedics arrived at 11:18 a.m. The Complainant was loaded onto a stretcher at 11:19 a.m.and was taken to the ambulance.

Communications Recordings

Recording from December 23, 2017

The recording revealed that on December 23, 2017, the Complainant used the direct line telephone at the Morrisburg OPP detachment to notify the OPP communications centre that he was at the detachment to sign in. The call-taker told the Complainant that she would let police officers know that he was there. The communications centre then radioed a request for two police officers to attend the detachment for a sign in. When the SO acknowledged the request, the communications centre advised him that it was the Complainant at the detachment. WO #6 then volunteered to be the SO’s backup. WO #9 radioed that she was on her way and WO #8 stated that he too was responding.

WO #4 radioed the SO and stated, “… just be careful with him, he can go offside pretty quick.” The SOresponded, “10-4.”

Some time passed and other OPP officers asked for an update on the status of the SO and WO #6. The SOresponded that he was at the detachment but the Complainant was not there. WO #6 asked the communications centre to query a licence plate, which turned out to be assigned to an OPP vehicle. WO #6 acknowledged the information and reported that the Complainant was just then arriving at the detachment.

The next related transmission was an emergency tone transmitted by WO #6 (meaning the officer had depressed the emergency button on her radio), and the dispatcher advised there had just been a 10-78 (an ‘assistance needed’ alarm). A second emergency tone was then heard. Several OPP officers reported that they were on their way to the Morrisburg detachment.

WO #6 then requested an ambulance, reporting that shots had been fired and a man was down. WO #6 soon reported that they had a man who was vital signs absent (VSA) and they were initiating CPR.

The communications centre later asked if the police officers had the defibrillator from the detachment and one of the police officers responded that they were hooking it up. WO #10 reported the defibrillator was hooked up but that “no shock” was advised, and they were continuing with CPR. Twice more WO #10 reported that “no shock” had been advised by the AED.

Materials obtained from Police Service

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

• Memorandum book notes for WO #s 1-29;
• CEW Sign-Out Logs;
• Conditional Sentence Order for the Complainant;
• Sign in Package for the Complainant;
• A copy of the OPP Sign in Book;
• Crime Scene Control Register;
• OPP E-mail notice to OPP officers (December 21, 2017);
• Event Chronology Reports for December 20 and 23, 2017;
• Police Transmissions Communications Recording;
• 911 Call from Victim of Incident which occurred on December 20, 2017;
• OPP Facsimile transmissions to courts – regarding charges (for December 20, 2017 incident) against the Complainant;
• OPP Crown Brief – R. vs The Complainant;
• General Occurrence Report;
• OPP Information relating to the Complainant;
• OPP Ministry of Transportation Driver Query;
• OPP Witness Statement from the sales representative allegedly assaulted by the Complainant on December 20, 2017;
• OPP Witness Statement from CW #3;
• Person Profile Reports (records from multiple police services) for the Complainant;
• OPP RMS Subject Profiles and Occurrence Reports for the Complainant;
• A copy of surveillance video from the municipal building that houses the OPP detachment;
• Scenes of Crime Photos;
• Photos of Injuries to the SO;
• Aerial photos;
• An OPP copy of surveillance video from a nearby Gas Bar;
• Use of Force Training Records for the SO and WO #6; and
• Police Communications recordings.

The SIU obtained and reviewed the following materials and documents from other sources:

• Post-Mortem Report dated April 26, 2018;
• Preliminary Autopsy Findings dated December 27, 2017;
• CFS DNA Report dated March 6, 2018;
• CFS DNA Report dated March 19, 2018;
• CFS DNA Report dated May 4, 2018;
• CFS DNA Report dated June 21, 2018;
• CFS DNA Report dated September 11, 2018;
• CFS DNA Report dated October 4, 2018;
• MOF Video Enhancement Report;
• Ambulance Call Reports; and
• Incident Reports from the Cornwall and SDG (Stormont, Dundas, and Glengarry) Paramedic Services.

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(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) 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 27, Criminal Code — Use of force to prevent commission of offence

27 Every one is justified in using as much force as is reasonably necessary(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b)To prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

Section 34, Criminal Code — Defence of person – Use of threat of force

34 (1) A person is not guilty of an offence if(a) 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; (b) 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(c) 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:(a) the nature of the force or threat;(b) 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;(c) the person’s role in the incident;(d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident;(f) 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;(g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Section 222, Criminal Code – Homicide

222 (1)  A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(2)  Homicide is culpable or not culpable.
(3)  Homicide that is not culpable is not an offence.
(4)  Culpable homicide is murder or manslaughter or infanticide.
(5)  A person commits culpable homicide when he causes the death or a human being, (a)  by means of an unlawful act,(b)  by criminal negligence,

(c)  by causing that human being, by threats or fear of violence or by deception to do anything that causes his death, or(d)  by wilfully frightening that human being, in the case of a child or sick person.
(6)  Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.

Section 229, Criminal Code – Murder, Manslaughter and Infanticide

229  Culpable homicide is murder
(a)  Where the person who causes the death of a human being(i) means to cause his death, or(ii) means to cause him bodily harm that he knows is likely to cause his death, and in reckless whether death ensues or not;(b)  where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensures or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or(c) Where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

Section 267, Criminal Code — Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,(a) carries, uses or threatens to use a weapon or an imitation thereof, or(b) causes bodily harm to the complainant,is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 270(1), Criminal Code — Assaulting a peace officer

270 (1) Every one commits an offence who  (a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or(c) assaults a person(i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or(ii) with intent to rescue anything taken under lawful process, distress or seizure.

Analysis and Director’s Decision

On December 23, 2017, at 10:58:44 a.m. [4], the Complainant entered the Morrisburg Detachment of the Ontario Provincial Police (OPP), located at number 6 5th Street West, in the Village of Morrisburg, in order to sign in as he was required to do every Saturday as part of his court-ordered conditions. He was met by two OPP officers, the SO and WO #6. Shortly thereafter, an emergency tone was transmitted from WO #6’s portable radio indicating that the officers required assistance. The emergency tone was then transmitted a second time, within seconds of the first. Between 1100:23 a.m. and 1100:29 a.m., the Complainant had been shot and, thereafter, WO #6 radioed in requesting that an ambulance attend, that shots had been fired, a man was down and was vital signs absent (VSA), and the officers were initiating CPR. 

At 11:28 a.m., the 43-year-old Complainant was pronounced dead at the scene. A subsequent post-mortem examination revealed that the Complainant had been shot five times by the SO and had died as a result of three of those gunshot wounds, which had caused significant vascular damage which proved to be fatal.

An investigation was immediately launched by SIU investigators. The objective of the investigation was to determine what happened in the intervening 105 seconds between the Complainant’s entry into the detachment and the shooting of the Complainant, and to collect evidence to establish whether the use of lethal force causing the death of the Complainant was justified under the law, or if criminal charges were warranted against the police officer who caused that death.

During the course of this investigation, nine civilian witnesses were interviewed, as well as 11 police witnesses, with an additional 18 potential police witnesses providing their memorandum book notes to the SIUinvestigators for review. The SO also made himself available to be interviewed and voluntarily provided a DNAsample to the SIU in order that it could be analyzed and compared to DNA located on various items, including his CEW, firearm, and police radio, all of which were located at the scene of the shooting of the Complainant and seized by investigators. Of these 39 potential witnesses, including the subject officer, however, only four were actually present during the events leading up to the death of the Complainant, that being WO #6, the SO, CW #4, a family friend of the Complainant’s, and CW #11, the Complainant’s father. [5]
The investigation, fortunately, was critically aided by the availability of CCTV footage of the events which unfolded from the time that the Complainant arrived at the Morrisburg Detachment until he was shot in front of that same building, less than two minutes after his entering the building. SIU investigators were also aided by the police communications recordings, the various reports of analyses performed on various exhibits by the CFS, the post-mortem report, and the download data from the CEWs in the possession of the SO and WO #6 at the time. While the video from the exterior of the building, although clear, only captured a portion of the interaction between the two police officers and the Complainant, and the video from the interior of the building looking out onto the incident was somewhat hampered because of the glare from the sun, the video, combined with the eyewitness evidence which was not in dispute, was able to provide an accurate timeline of the unfolding of events, a summary of which follows. 

Unfortunately, while there were three persons present who were in a position to provide relatively fulsome accounts of the incident leading up to, and including, the shooting of the Complainant, neither the evidence of the two police officers, who were obviously involved in what can only be described as a high-adrenaline, dynamic, and fluid situation, nor that of the one civilian witness, CW #4, fully accorded with the video evidence. As such, except where there is no dispute as to the evidence, I have relied primarily upon the physical evidence to form my opinion, the eyewitness evidence appearing, for whatever reason, to be somewhat confused and/or inaccurate.

At the time of his death, the Complainant was serving a conditional sentence order which required him to remain in his home at all times, except pursuant to those exceptions as set out by the court; he was also on a bail release requiring him to report to the Morrisburg OPP detachment every Saturday between the hours of 7:00 a.m. and 7:00 p.m.

When the Complainant attended the Morrisburg OPP detachment for his required Saturday reporting, he would often have to use the direct line telephone at the front of the building to alert the OPP communications centre that he was there. [6] A police officer would then be dispatched to the detachment to allow the Complainant to enter and sign the log book, confirming that he had complied with the reporting condition of his bail. The Complainant would then be free to return home.

On December 20, 2017, the OPP had received a complaint wherein it was alleged by a civilian reportee that the Complainant was in his home on that date when he spotted someone on his property. A sales representative for an agricultural feed company, who was distributing flyers in the area, had apparently observed livestock on the Complainant’s property, as a result of which she left some sales material in the Complainant’s mailbox. When the Complainant observed this sales representative’s motor vehicle, which was unknown to him, at the end of his driveway, he ran out of his house armed with a small knife and he confronted the sales representative, who then quickly drove away and called the police. The sales representative later told the OPP that the Complainant had held a knife to her throat and threatened her. 

As a result, the OPP initially established a plan to arrest the Complainant when he attended his Alcoholics Anonymous (AA) meeting that same evening, but a cursory surveillance of the parking lot where the meeting was to be held revealed that his vehicle was not present. After contemplating the situation, the OPP then decided that the Complainant could be arrested when he attended the Morrisburg OPP detachment on the following Saturday, to sign in pursuant to his court ordered conditions.

On Saturday, December 23, 2017, CW #4, a family friend, had agreed to drive the Complainant and his father to the OPP detachment to allow the Complainant to sign in. On that date, CW #4 drove the Complainant and his father to the Morrisburg OPP detachment where, at 10:47 a.m. according to the timer on the exterior north side surveillance camera at the OPP detachment, the Complainant used the direct line telephone mounted outside the detachment to report that he was present to sign in. The Complainant was told that police officers would be sent to meet him. The Complainant, his father, and CW #4, then left the police detachment to carry out some last-minute Christmas shopping.

In an effort to arrest the Complainant for the new charges and the breach of his statutory release and bail conditions, it had been agreed that the SO and WO #6 would remain in the Morrisburg area in order to be available to arrest the Complainant when he attended at the detachment to sign in.

As a result of the call from the Complainant on the detachment telephone, the SO and WO #6 returned to the detachment and looked for the Complainant, in order to place him under arrest. Shortly thereafter, CW #4 drove the Complainant and his father back into the detachment parking lot and the Complainant exited the vehicle. The Complainant was greeted at the main doors of the building and was escorted into the OPP office by the SOand WO #6.

Once inside the OPP office, the SO advised the Complainant that he was going to be arrested. The Complainant immediately indicated he was aware of the reason for his arrest, but denied that he was at fault. The Complainant then stated that he had to tell his father that he was being arrested, and he turned and started to walk out of the building.

As the Complainant reached the outer door of the building, the SO, apparently believing that the Complainant was going to flee, grabbed onto the Complainant’s arm and shoulder to prevent him from doing so. A struggle immediately ensued between the Complainant and the two police officers, and all three parties, still struggling, moved out of the building.

During the continuing struggle, the SO had his left arm around the Complainant’s upper chest area and the Complainant bit the SO on the arm, resulting in the SO punching the Complainant three or four times, in order to get him to release his hold on the SO, following which the Complainant went to the ground with the SO on top of him. While WO #6 and the SO were attempting to gain control of the Complainant’s arms, at some point, the SO was struck in the head with an object, which the SO believed to have been his police radio, which had been attached to his vest, causing a laceration to his forehead. The SO then took out his CEW and fired a cartridge into the Complainant’s chest. The deployment did not have the desired effect, however, and the struggle continued with the Complainant managing to take control of the SO’s CEW.

The SO then backed up, while simultaneously being pushed away, from the Complainant and he took out his firearm, as the Complainant sat up with the CEW in his right hand. The Complainant then reached forward with the CEW, toward the SO, and with his left hand, he grabbed at the SO’s firearm. The SO was able to pull the firearm away, following which he discharged his firearm several times, with the Complainant sustaining five gunshot wounds.

Once the Complainant was disabled, WO #6 and the SO performed CPR on him, until other OPP officers arrived and took over. An AED was also attached to the Complainant, and, when paramedics arrived, contact was established with the base hospital. Despite the life-saving efforts performed, the Complainant was pronounced dead shortly thereafter.

The CCTV video from the detachment confirms this sequence of events, although the glare on the interior camera makes some of the detail less clear than would be optimal. Some of the less obvious detail was garnered from the statement provided by the civilian witness, CW #4, who was interviewed by SIU investigators the day after the shooting, when his memory was still fresh and there was no opportunity for him have possibly been influenced by others. [7]

As indicated earlier, four persons were present during the shooting of the Complainant, in addition to the Complainant himself. CW #4, a friend of the Complainant’s family, was seated in the motor vehicle in which the Complainant had arrived at the detachment, and observed the entire interaction between the two police officers and the Complainant after they spilled out of the detachment in a struggle. CW #4 was initially interviewed on December 24, 2017, one day after the shooting of the Complainant. In that initial interview, CW #4 provided a version of events which was quite consistent with the CCTV recording, the physical evidence, and the sequence of events as set out above. 

In the December 24, 2017 interview, CW #4 described the SO and the Complainant exiting the detachment within a minute or two of the Complainant entering the building to sign in; this is confirmed by the CCTVfootage. He observed the Complainant walking quickly with the two police officers following behind and it appeared to CW #4 that the Complainant should not be leaving the building. CW #4 observed the SO put his hand on the Complainant’s arm possibly to slow him down.

CW #4 then described the Complainant and the two police officers bursting through the north doors of the detachment, “all in a bear hug,” following which they fell to the ground. He described the physical interaction between the two officers and the Complainant as a very serious and violent wrestling match.

CW #4 described the Complainant down on the ground, on his stomach, with the SO on top of him attempting to hold him down, while WO #6 was kneeling near his shoulder attempting to restrain the Complainant. CW #4 observed the Complainant use his right arm to push WO #6’s face, chest, or upper body, away on more than one occasion, causing her to slide backwards on the snow-covered ground. On each occasion, WO #6 crawled quickly back into the struggle and it appeared to CW #4 that she was either trying to hold the Complainant’s arms, or to handcuff him.

CW #4 described the Complainant as then struggling to get up and away from the two police officers, whereupon the SO delivered two or three punches between the Complainant’s shoulder blades, using the bottom of his fist.

The Complainant then rolled onto his left side, causing the SO to lose his grip on the Complainant. CW #4 then described seeing a glimpse of some type of flash or something shiny in the area of the Complainant’s chest, which I take to refer to the first deployment of the SO’s CEW, following which the Complainant rolled onto his left side with the SO remaining positioned on the Complainant’s waist or hips. Again, all of this evidence is very consistent with, and largely confirmed by, the CCTV video.

Additionally, the CEW data confirms that the SO deployed the first cartridge in his CEW at 11:11:42 a.m., for a cycle of five seconds, and that the second cartridge was deployed at 1111:52 a.m., for an additional five second cycle. While the clock on the CEW data, unfortunately, is not calibrated to the clock on the video and the communications recordings, which appear to be in sync, it does give us a timeframe in which the two CEWcartridges were discharged, that being that the second was discharged ten seconds after the first. While the clocks are off, a counting down of ten seconds from when it appears on the video that the SO discharged his CEW appears to confirm that at the time of the deployment of the second cartridge, the CEW was no longer in the possession of the SO, but was in the hands of the Complainant.

This evidence is further confirmed by the post-mortem examination, wherein two CEW probes were found with the Complainant’s body, with one caught on the inner lining on the right side chest of his jacket, and the other was found loose in the area of his lower leg. Neither probe was in contact with the Complainant’s skin, which presumably accounts for the fact that the CEW deployment appeared to have no effect on the Complainant. Additionally, CEW wiring was found entangling the Complainant’s body. 

An examination of the scene revealed the CEW itself lying in the snow with the wires still attached, and it was retrieved and secured by SIU forensic investigators. [8]

The CCTV footage also reveals that seconds later, WO #6 is seen to stand up quickly and remove a CEWprobe and wire from inside her sleeve, which appears in the circumstances consistent with the Complainant having deployed the second cartridge in the CEW, after it came into his possession.

CW #4 described the SO then appearing to begin to take control of the Complainant, and reaching back with his right hand, perhaps to take out his handcuffs, when CW #4 heard a gunshot. He further described the Complainant as leaning on the ground, on his left elbow, and in the process of getting up, when the shot was fired, while the SO was still on the ground with his back toward CW #4, with WO #6 to the right of the Complainant. CW #4 was very clear in his initial statement that he could not discern at that time who had fired the gunshot, as he did not see any weapon and all three parties were in a cluster on the ground. [The exterior video establishes that he cannot have heard a gunshot at this time and I conclude that his perception was mistaken as the video shows that the gun was not discharged when all three parties were initially in a struggle on the ground.]

Within one to two seconds after hearing [what he perceived as] the first gunshot, CW #4 observed the Complainant squirm out from underneath the SO and begin to stand up, causing the SO to lose his positioning; the SO was still down on one knee at the time. As the Complainant and the SO rose halfway to standing, CW#4 heard a second gunshot.

The SO and the Complainant continued to struggle and the SO was observed by CW #4 attempting to restrain the Complainant, while WO #6 was approximately six feet away, but was moving toward the Complainant.

Within four seconds of the second gunshot, CW #4 described what he believed to have been a third gunshot, but he was uncertain. He described the Complainant and the SO as still being close together, with no space between them, when that possible third shot was fired. CW #4, in his interview with SIU investigators, again confirmed that he did not see a weapon, nor did the actions of any of the three involved parties suggest to him that any one of the three was responsible for the firing of the weapon.

CW #4 advised that the Complainant and the SO, while still physically engaged in a struggle, then crossed over to the east wall of the alcove outside of the police detachment, where WO #6 joined in the struggle with her CEW in hand; CW #4 also described seeing the SO’s radio microphone dangling at his knees.

Using his right arm, the Complainant then pushed the SO into the east brick wall causing the SO, with his back against the wall, to lose his footing and go down to at least his knees. This is clearly seen in the CCTV video, which confirms as accurate this version of events as initially provided by CW #4. CW #4 indicated that he believed that he then heard a fourth gunshot and described the Complainant and the SO as being close together at the time, with no gap between them. CW #4 still saw no firearm.

CW #4 then observed WO #6 walk toward the building doors and turn to her left, aiming her CEW at the Complainant, and she remained in that position for the majority of the interaction with the Complainant; this is also clearly seen on the video and confirms CW #4’s initial version of events.

CW #4 then described the Complainant moving away from the building doors, by some ten to 12 feet, where he fell forward to his knees in front of the SO. CW #4 indicated that it did not appear to him that the Complainant was surrendering. At that point, CW #4 heard a fifth gunshot, following which the Complainant fell fully to the ground. At the time of the final gunshot, CW #4 described the SO as being to the right of the Complainant’s right shoulder, between the brick wall and the Complainant, and either within two to three feet, or in actual physical contact, with the Complainant. CW #4 could not recall if the SO was upright, or on the ground with the Complainant possibly against the SO’s legs, when the fifth gunshot was fired, or thereafter.

CW #4 described the SO as then extending his right arm, with his pistol in hand, and discharging three additional gunshots. CW #4 described the SO’s firearm as being fairly close to, but not touching, the Complainant at that time, and he reiterated that the SO might not have been standing upright, as CW #4 observed that the pistol was not pointed straight downward at the Complainant, but was instead pointed diagonally across the Complainant’s body and downward. CW #4 further indicated that he believed that the Complainant and the SO were still in physical contact at that time, but were no longer in a “bear hug,” nor were they struggling.

CW #4 described the Complainant as being hit by these last three gunshots, as he saw the Complainant’s jacket “tuffed up” with each shot, as they made contact with his mid-back area. He described the gunshots as being fired from the Complainant’s right shoulder, diagonally, toward his left hip, and striking the Complainant to the left of his spine, near the left hip [9]; he further described the three gunshots wounds as being in close proximity to each other and that the three gunshots were all discharged within one and one half seconds of each other, with a slightly greater pause between the first gunshot and the next two gunshots.

CW #4 described hearing six to eight gunshots in total, but only actually seeing the last three shots fired by the SO. During the interaction observed by CW #4, including the points in time when he heard the discharge of these six to eight gunshots, CW #4, during his initial interview with SIU investigators, described the Complainant and the SO as being continuously engaged in a struggle, and that they were always either in actual physical contact, or almost touching. He further described the Complainant as at no time being compliant.

This initial version of events, as provided by CW #4 within a day of the shooting, is consistent both with the video evidence, as well as the evidence of the location of the wounds as documented during the post-mortem examination, and the physical evidence located at the scene, with the only exception being that there were in fact only five gunshots discharged in total, and not the six to eight as indicated by CW #4. It is unclear if CW #4 possibly confused the two discharges of the CEW as also being gunfire, or if he is simply mistaken in his counting of the shots in what was obviously a very traumatic, fast-moving, and shocking incident. 

CW #4 indicated that after the incident, he told the SO that he saw WO #6 with a CEW in her hand, to which the SO responded, “I discharged one into his chest”, which CW #4 understood to refer to the SO discharging his CEW at the Complainant’s chest.

CW #4 described the SO as being quiet after the shooting, and he observed him to have a cut above his left eye and blood dripping down his nose, an injury to his left forearm that looked like a bite, and he noticed that the SO’s right hand was fairly swollen. The SO was also observed to have mud or dirt on his right knee and some blood on his left pant leg, down toward his boots.

This evidence is confirmed both by the photos of the SO’s injuries, as well as the observations of the paramedics and police witnesses at the scene, who described the SO as having a cut across his forehead and bleeding from the head, a bite mark on his left forearm, with WO #6, specifically, describing the SO as appearing to be in shock after the shooting.

Immediately following the shooting of the Complainant, CW #4 was heard to make comments to the effect that the Complainant’s temperament had finally caught up with him, that he was not surprised that this had happened, due to the way that the Complainant was, and that he had seen a gun and thought that an OPPofficer had been shot.

On January 16, 2018, CW #4 provided a second statement to SIU investigators, wherein he was asked to demonstrate some of the actions of the Complainant and the two police officers that he had observed and described in his previous interview. On that occasion, less than three weeks after the shooting, CW #4’s version of events was materially consistent with his previous statement.

On March 13, 2018, however, CW #4 sent an email to the lead SIU investigator in which he provided a version of events which was now significantly different, and inconsistent with, his previous two statements. In this final version of events, CW #4, despite his earlier statements, described the SO as virtually ‘executing’ the Complainant. In this final version, CW #4 described the SO as being fully on his feet and separated from the Complainant when he shot the Complainant three times in the back. This version of events is not only inconsistent with CW #4’s two earlier statements, but is contradicted by the CCTV video of the incident and totally inconsistent with the physical evidence, particularly the bullet track as described in the Post Mortem Report. On this basis, while the statement provided by CW #4 very shortly after the shooting, and without the opportunity for memories to fade or be influenced by intervening acts, is confirmed by the physical evidence, as well as being consistent with the video evidence, and the later version of events is inconsistent with the video and the location and trajectory of the Complainant’s wounds, I accept the accuracy of CW #4’s first version of events, while rejecting the version outlined in his email of March 13, some two and one half months after the event.

Both the SO and WO #6, unfortunately, were unable to accurately recall the exact sequence of events, nor how they occurred. I have not assigned any motive on their part to obfuscate the facts, from their inability to accurately recall events, but rather find that this is an unfortunate result of the entire incident lasting no more than 105 seconds from the time that the Complainant entered the detachment, until the final shot was fired, with the discharges from the firearm taking significantly less time, and no more than a few seconds [11], and of both officers, due to their being directly involved in what cannot be described as anything other than a very violent, fast moving, adrenaline-pumping, and frightening situation, with both officers describing a fear both for their own lives and the lives of each other, likely suffering some shock and trauma as a result of the incident and being unfortunately unable to accurately recall the details of the incident. 

I find this to be especially so because some of the details omitted by the SO, in his statement to SIUinvestigators, were facts which supported his decision to discharge his firearm. In particular, I note that the SO, at no time in his statement, mentioned that the Complainant was reaching for the SO’s firearm just prior to the SO discharging the first shot at the Complainant, which is seen on the CCTV video and which fully supports the SO’s position that he felt that his life was in danger and that he had to act quickly and accordingly. 

Furthermore, while the SO did not include all of the details in his SIU interview, I note that in utterances made to a paramedic, CW #5, immediately after the incident, when the SO’s memory was still fresh, he was able to give a fuller account of what had occurred. In those utterances, the SO recounted how the Complainant had come to the OPP detachment to sign in, at which point he was to have been arrested for an outstanding charge. The SOexplained that when he and WO #6 informed the Complainant that he was being arrested, the Complainant turned around and started heading out of the detachment, at which point the SO followed and stopped the Complainant at the doors, and the Complainant began fighting with the two officers. 

The SO further recounted that the Complainant was able to grab the SO’s radio and hit him above the eye, causing a laceration [12], and that the Complainant was then able to get a hold of the SO’s CEW; with both police officers and the Complainant then receiving a shock when the CEW went off, because all of them were involved in a struggle at the time. The SO went on to tell the paramedics that the Complainant had bitten him on the arm, following which the SO had punched the Complainant to get him to stop, and that the Complainant had reached for a knife which the SO had in his protective vest, and tried to grab it. The SO further recounted that during the fight, he discharged his firearm three times.

A second paramedic, CW #6, also recalled the SO mentioning that the Complainant grabbed at the SO’s radio, his CEW, his gun, and a knife that he had stored on the front of his vest. CW #6 recalled the SO indicating that while he was trying to protect the knife from the Complainant, the Complainant took hold of his CEW and was able to discharge it, following which the Complainant again reached for the SO ’s firearm. According to the SO, as he tried to protect his firearm from the Complainant, he was struck in the head with what he believed was his radio, and he discharged his firearm.

I note that the SO, although missing some of these very relevant and material details in his SIU statement, was heard to recount these facts, including the twice grabbing at his firearm by the Complainant, to several witnesses immediately following the shooting. I can only surmise that either as a result of shock, or the passage of time, the SO had blocked out some of these details in the intervening seven months between the time of the incident and his interview [13]. As such, while I have discounted the SO’s statement to investigators as unreliable in some aspects, I have chosen instead to rely on the details provided by the SO immediately after the shooting, when his memories were fresh and not influenced by the passage of time or other matters.

On the basis of this very compelling evidence, then, I accept that: the SO pursued the Complainant as the Complainant attempted to leave the police detachment after having been placed under arrest by the two police officers; that the SO had reasonable grounds to apprehend the Complainant on charges of assault with a weapon and threatening; that once the SO reached out in order to take control of the Complainant, and prevent him from leaving, the Complainant initially assaulted the SO, with the police radio, and then bit him on the forearm; that the SO first resorted to his physical strength to try and restrain the Complainant, by delivering several punches to the Complainant, which appeared to have no effect, and that when the Complainant continued to fight the SO, the SO deployed his CEW, which was ineffective in that it did not stop the Complainant from further assaulting the SO; that the Complainant had the SO’s CEW in his hand, and was reaching for the SO ’s firearm, while the SO, having been pushed against, and having his back to, the wall, was unable to back away from the Complainant or to gain control over him; and that as the Complainant continued to struggle with the SO, while simultaneously reaching for the SO’s use of force options, and refusing to either stop struggling or to drop the CEW, the SO discharged his firearm, striking the Complainant and causing his death. 

Before proceeding to my decision, I wish to address the post-mortem report in which the forensic pathologist noted that the three gunshots from the SO’s firearm, which proved to be fatal, all entered from the back of the Complainant. While at first blush this may raise some question with respect to the justification of the shooting of the Complainant, it is without dispute, based on the video evidence, that the Complainant and the SO were involved in a struggle at the time that the SO discharged his firearm, and that the actions and position of the Complainant left the SO with few choices. 

It is further clear that while the Complainant was reaching for the SO’s use of force options [14], and was in very close proximity, if not in direct physical contact with, the SO, the SO would have had very limited choices but to discharge his firearm with his arm reaching over the back of the Complainant; had he attempted to insert his firearm between himself and the Complainant, it is very likely that he would have risked shooting himself, or having the Complainant disarm him of his firearm. On this evidence, which is supported by the CCTV videos, there appears to be very limited time and space between the SO and the Complainant, during the struggle and the assault upon the SO, for the SO to be able to discharge his firearm to the front of the Complainant while the Complainant was actively attacking the SO. [15]

The Law and Analysis

The question that remains to be answered, then, on the facts as I have found them, is whether or not the SOwas justified in using lethal force against the Complainant, or whether the discharging of his firearm at the Complainant was an excessive use of force in these circumstances and provides reasonable grounds for the laying of criminal charges against the SO for causing the death of the Complainant.

Pursuant to s. 25(1) of the Criminal Code, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. Further, pursuant to subsection 3:

(3) … 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.

As such, in order for the SO to qualify for protection from prosecution under section 25, it must be established that he was in the execution of a lawful duty, that he was acting on reasonable grounds, and that he used no more force than was necessary. Furthermore, pursuant to subsection 3, since death was caused, it must also be established that the SO discharged his firearm believing, on reasonable grounds, that it was necessary in order to preserve himself, or others, from death or grievous bodily harm.

Turning first to the lawfulness of the attempted apprehension of the Complainant, it is evident from the 911 call relating to the December 20 incident, that there were reasonable grounds to believe that the Complainant had assaulted that party with a knife and that there were therefore reasonable grounds to believe that he had committed the offences of both threatening and assault with a weapon, contrary to ss. 264.1 and 266 of the Criminal Code, respectively. As such, I am satisfied that the pursuit and attempted arrest of the Complainant were legally justified in the circumstances.

With respect to the other requirements pursuant to s.25(1) and (3), I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows:   
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):
In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]
The court describes the test required under s.25 as follows:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59).
The decision of Justice Power of the Ontario Superior Court of Justice in Chartier v. Greaves, [2001] O.J. No. 634, as adopted by the Supreme Court of Canada above, sets out other relevant provisions of the Criminal Code to be considered, as follows:
27. Use of force to prevent commission of offence – Everyone is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence(i) for which, if it were committed, the person who committed it might be arrested without warrant, and(ii) that would be likely to cause immediate and serious injury to the person or property of anyone, or
(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
This Section, therefore, authorizes the use of force to prevent the commission of certain offenses. Everyone” would include a police officer. The force must not be more than that which is reasonably necessary. Therefore, an objective test is called for. The Ontario Court of Appeal, in R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 held that the use of deadly force can be justified only in either cases of self-defence or in preventing the commission of a crime likely to cause immediate and serious injury.
34(1) Self-defence against unprovoked assault – Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Extent of justification – Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
In order to rely on the defence under subsection (2) of Section 34, a police officer would have to demonstrate that he/she was unlawfully assaulted and caused death or grievous bodily harm to the assaulter in repelling the assault. The police officer must demonstrate that he or she reasonably apprehended that death or grievous bodily harm would result to him or her and that he or she, again on reasonable grounds, believed that he/she could not otherwise preserve himself/herself from death or grievous bodily harm. Again, the use of the term reasonable requires the application of an objective test.
The court also sets out a number of other legal principles gleaned from the legal precedents cited, including the following:

(h) Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event.(i) “Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner”. The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman “cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course.” (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver).(j) Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances.(k) “It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves” (Levesque v. Zanibbi et al.).
On the basis of the foregoing principles of law then, I must determine: 

(1) Whether the SO reasonably subjectively believed that he, or others, were at risk of death or grievous bodily harm from the Complainant at the time that he discharged his firearm; and,
(2) Whether that belief was objectively reasonable, or, in other words, whether his actions would be considered reasonable by an objective bystander who had all of the information available to him that the SO had at the time that he discharged his firearm.
With respect to the first of these criteria, the statement of the SO establishes that he believed that he was at risk of death or grievous bodily harm at the time that he discharged his firearm. He based that belief on his observations at the time that both the punches that he had inflicted on the Complainant, and the subsequent deployment of his CEW at the Complainant, had been ineffective and had failed to either stop or even hinder the Complainant; that the Complainant had already assaulted him by biting him on the forearm and striking him in the head with his own police radio, from which he had received a laceration; that the Complainant had disarmed him of his CEW and had it in hand; and that, if the Complainant had managed to deploy the CEW at the SO, there was a distinct possibility that the Complainant would then disable the SO allowing him access to the SO’s firearm and other use of force options, which would quickly escalate the situation and make it far more dangerous and very likely lethal. Combined with the knowledge that the Complainant had a history of violence and unpredictable behaviour, with the SO being aware that the Complainant had previously threatened a police officer with a machete; that the Complainant had been flagged on the Canadian Police Information Centre (CPIC) as being violent; that he was now advancing on the SO and was reaching for his use of force option; that the Complainant refused either to stop or to drop the CEW; and, that the previous deployment of the CEWhad been ineffective, the situation appeared to leave only one option by which to effectively stop the Complainant from attacking the SO, that being the SO’s resort to his firearm.

On all of the information that the SO had in his possession at the time that he shot and killed the Complainant, I find that he, subjectively, had reasonable grounds to believe that his life, or the lives of others, was at risk from the Complainant and that his observations of the Complainant’s actions, as well as the information provided as to the Complainant’s history, would have reasonably caused the SO to believe that not only he, but also WO #6, was at imminent risk of being seriously injured, if not killed, by the Complainant. Furthermore, should the Complainant be able to access the SO’s other use of force options, including his firearm, it would put other persons in the community equally at risk.

In considering the reasonableness of the SO’s actions, and whether or not he considered the use of less lethal use of force options before resorting to his firearm, as confirmed by CW #4, WO #6, the video recording, the evidence located at the scene, and the CEW download data, it is clear that the SO had already resorted both to physical force and to the only other less lethal use of force option (his CEW) available to stop the Complainant, both of which had proven ineffective [16], thereby leaving only his firearm as a viable alternative. On that basis, I find that the SO, in the brief number of seconds available to him after he had deployed his CEW, and while the Complainant was quickly advancing upon him and continuing to assault him, appears to have considered all of his options before discharging his firearm.

The law relating to the justification in using force intended to cause death or grievous bodily harm establishes that if one believes on reasonable grounds that it is necessary for one’s self-preservation from death or grievous bodily harm, or the preservation of others, to resort to lethal force, then the use of that force is justifiable. Having extensively reviewed all of the evidence in this case, I find in all the circumstances that the SO reasonably believed that his life was in danger from the Complainant and thus his actions in firing upon the Complainant were justified. I find that it would have been foolish and reckless for the SO to risk losing his life by waiting for the Complainant to either again discharge the CEW, or to disarm him of his firearm, thereby putting his own life at immediate risk of serious injury or death. I further find that risk was not one that the SO ought to have had to take when faced with this very violent and unpredictable assailant.

I find, therefore, on this record, that the shots that were fired by the SO, which struck and killed the Complainant, were justified pursuant to ss.25 (1) and (3) of the Criminal Code and that the SO, in preserving himself or others from death or grievous bodily harm from the Complainant, used no more force than was necessary to affect his lawful purpose. As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the SO, despite the tragic loss of life, fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: January 11, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

• 1) The GSW numbers used are not intended to suggest the sequence of the injuries. [Back to text]
• 10) It is also possible that he heard one or more of the gunshots echo. [Back to text]
• 11) In fact, the CCTV video established that the five bullets were all fired within a maximum of six seconds during the violent struggle. [Back to text]
• 12) In addition to the laceration, the blood DNA profiles found on the radio confirm that the SO had in fact been struck by his own radio. [Back to text]
• 13) Reinforcing my view of the importance that witnesses, complainants, and subject officers, should be interviewed at the earliest possible opportunity after the event, in order to get as much information as possible while memories are still fresh and uninfluenced by extraneous factors. [Back to text]
• 14) For instance, the fact that the Complainant grabbed the SO’s gun is established by the fact that the Complainant’s DNA in the form of his epithelial (or skin) cells were taken from the muzzle end of the SO’s gun. On the other hand, no blood of any sort was found on the SO’s gun. [Back to text]
• 15) That being said, the SO thought he had initially discharged his firearm while the Complainant was approaching him, but thought he had missed, because the Complainant kept moving forward. [Back to text]
• 16) In fact, the only people the CEW seemed to affect were the SO and WO #6, who both felt the electrical shocks from the CEW’s deployment. In fact, on the CCTV video, WO #6 is seen to back away and pull the CEW wires from her person. [Back to text]
• 2) The SO’s radio was initially released back to the OPP, but once the SIU was informed the radio might have been used to strike the SO, the radio was collected from the OPP (who had properly preserved it) to be submitted to the CFS. [Back to text]
• 3) The DNA came from epithelial (skin) cells, as the CFS determined there was no blood found on the SO’s pistol. [Back to text]
• 4) These times are derived from the clock on the CCTV footage taken from the OPP detachment videos. The times on the video are unfortunately not synced with the clock used for the CEW data, or the communications recordings, but are accurate as to the passage of time. The CCTV clock appears to be approximately 11 minutes behind the CEW and communications clock. [Back to text]
• 5) The Complainant’s father, however, in his statement to SIU investigators appears to have witnessed very little of the incident, although he was seated next to CW #4 in the passenger seat of his own vehicle just in front of the detachment. He did say that he saw a male officer punching his son while they were on the ground and that WO #6 kicked him while he was still on the ground (this was not corroborated by the outdoor camera). He also stated that his son was fighting back against the police officers and he then heard two gunshots. [Back to text]
• 6) The Morrisburg OPP detachment, like most OPP detachments, is equipped with a telephone mounted outside the detachment which allows anyone to pick up the telephone and immediately be connected to the nearest OPP communications centre. [Back to text]
• 7) Although within an hour of the shooting (while waiting for the police at Tim Hortons), CW #4 told CW #11 that he did not know anything about what had happened at the shooting incident, CW #4 gave the SIU a detailed account of the incident the next day (December 24, 2017). On the other hand, CW #4’s 3rd statement to the SIU (which was emailed to the Unit on March 13, 2018 – more than 2½ months after CW #4’s initial statement to the SIU) was exponentially different than his first two accounts and he remembered the new details shortly after having had dinner with the Complainant’s family (although he stated that no one influenced his recollections). Unfortunately, given the significant conflict between his accounts, I cannot rely on his statements except where corroborated by the video or other evidence. [Back to text]
• 8) Although found in the snow, the CEW remained switched in an “on” position until CW #6 (one of the paramedics) noticed that a CEW wire was tangled up with the Complainant’s clothes and one of the officers deactivated the CEW just before the Complainant was placed in the ambulance. (This corresponds with the CEW download data which revealed that the CEW remained activated for 19 minutes and seven seconds after it was last deployed.) [Back to text]
• 9) This description would accord with and possibly explain the direction of the three fatal wound tracks described in the Post Mortem Report. [Back to text]