Explanatory note

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

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

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

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

Law enforcement and personal privacy information considerations

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

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

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

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

Personal health information

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

Other proceedings, processes, and investigations

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

Director’s report

Notification of the SIU

Notification Date and Time: 12/02/2013 at 1102 hours
Notified By: Police

On December 2, 2013, Notifying Officer of the Durham Regional Police Service (DRPS) reported the firearm injury of Mr. Michael MacIsaac.

Notifying Officer reported that at about 1007 hrs, on December 2, 2013, officers responded to a domestic call at a location, in Ajax. A female, later identified as Civilian Witness #4, had called DRPS and said a person, Mr. Michael MacIsaac, had beaten her and fled from the house.

Officers located Mr. MacIsaac in the area of the residence and engaged him. An officer discharged his firearm and Mr. MacIsaac was struck. Mr. MacIsaac was then transported to the Rouge Valley Hospital Ajax (RVHA). His condition was unknown at the time of reporting.

Overview

Mr. Michael MacIsaac suffered from a seizure condition Sensitive Personal Information. On the days prior to December 2, 2013, Mr. MacIsaac was ill and had a number of seizures. On the morning of December 2, 2013, Mr. MacIsaac was acting out of the ordinary and had a physical altercation with Civilian Witness #7, and Civilian Witness #4. Mr. MacIsaac fled his house naked after the altercation.

Civilian Witness #4 called 911 and reported the assault. A number of civilians also called 911 and reported Mr. MacIsaac being naked in public. Officers responded and found Mr. MacIsaac in a residential neighbourhood. Mr. MacIsaac had broken a patio table while banging it against the door of a house. He had one of the legs from that table held in his hands as though it was a baseball bat.

As officers approached Mr. MacIsaac there was a confrontation and Mr. MacIsaac advanced towards Subject Officer. Subject Officer discharged his firearm twice, striking Mr. MacIsaac both times. Mr. MacIsaac was transported to hospital and pronounced dead the following morning.

The investigation

Response Type: Attend Immediately

Date and Time Team Dispatched: 12/02/2013 at 1113 hours

Date and Time SIU Arrived on Scene: 12/02/2013 at 1218 hours

Number of SIU Investigator(s) assigned: 12

Number of SIU Forensic Investigator(s) assigned: 4

Complainant

Michael MacIsaac N/A

Civilian Witnesses

  • Civilian Witness #1 Initial Interview: December 2, 2013
  • Civilian Witness #2 Initial Interview: December 2, 2013
  • Civilian Witness #3 Initial Interview: December 2, 2013
  • Civilian Witness #4 Initial Interview: December 2, 2013
  • Civilian Witness #5 Initial Interview: December 2, 2013
  • Civilian Witness #6 Initial Interview: December 2, 2013
  • Civilian Witness #7 Initial Interview: December 2, 2013
  • Civilian Witness #8 Initial Interview: December 2, 2013
  • Civilian Witness #9 Initial Interview: December 2, 2013
  • Civilian Witness #10 Initial Interview: December 2, 2013
  • Civilian Witness #11 Initial Interview: December 2, 2013
  • Civilian Witness #12 Initial Interview: December 2, 2013
  • Civilian Witness #13 Initial Interview: December 2, 2013
  • Civilian Witness #14 Initial Interview: December 4, 2013
  • Civilian Witness #15 Initial Interview: December 9, 2013
  • Civilian Witness #16 Initial Interview: December 10, 2013
  • Civilian Witness #17 Initial Interview: February 27, 2014

Subject Officer

Subject Officer Initial Interview: December 10, 2013

Copies of notebook entries were not provided by the Subject Officer.

Witness Officers

  • Witness Officer #1 Initial Interview: December 2, 2013
  • Witness Officer #2 Initial Interview: December 2, 2013
  • Witness Officer #3 Initial Interview: December 2, 2013
  • Witness Officer #4 Initial Interview: December 2, 2013
  • Witness Officer #5 Initial Interview: December 13, 2013

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

  • CAD Report ----redacted
  • Sensitive Personal Information
  • Directive-Mental Health Act (MHA)
  • Disclosure CD Provided To SIU for Incident 2013
  • Disclosure Log
  • DRPS Civilian Witness Statements
  • Durham Regional Police Report 16A - Civilian Witness #10
  • Durham Regional Police Report 16A - Civilian Witness #5
  • Durham Regional Police Report 16A - Civilian Witness #6
  • Durham Regional Police Report 16A - Civilian Witness #11
  • Durham Regional Police Report 16A - Civilian Witness #9
  • Durham Regional Police Report 16A - Civilian Witness #12
  • Duty Roster
  • General Occurrence report ----redacted
  • Identified Witnesses List
  • Sensitive Personal Information
  • Sensitive Personal Information
  • MDT Activity Logs and Messaging
  • Notes - Witness Officer #1
  • Notes - Witness Officer #3
  • Notes - Witness Officer #4
  • Notes - Witness Officer #2
  • Notes - Witness Officer #5
  • Reply to Disclosure Request SIU
  • Automatic Vehicle Locating (AVL) Data for Subject Officer’s vehicle
  • Use of Force Training History Subject Officer, and
  • Use of Force Policy

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

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

There are no reasonable grounds, in my view, to believe that the subject officer, Subject Officer, committed a criminal offence in connection with the shooting and death of Michael MacIsaac on December 2 and 3, 2013, respectively.

There is no doubt that Subject Officer shot Mr. MacIsaac twice on Dring Street in Ajax on the morning of December 2, 2013. It is clear that the gunshot wounds sustained by Mr. MacIsaac were the cause of his death, which occurred in hospital the following day. For the reasons that follow, I am satisfied that the officer’s use of lethal force against Mr. MacIsaac was legally justified notwithstanding the dire consequences.

The eyewitness accounts of the events in question provided by a number of civilians, the subject officer himself and two witness officers on scene at the time paint a fairly clear picture of what occurred. The story begins on December 2, 2013 with a violent outburst at home on the part of Mr. MacIsaac, related it seems to a medical history Sensitive Personal Information. Confidential Witness Statement . Still naked, Mr. McIsaac left the residence. Civilian Witness #4 called the police and reported the assaults.

In the minutes that followed, the police received additional calls from citizens about a male (Mr. MacIsaac) running and walking naked in the neighbourhood. Mr. MacIsaac eventually made his way onto Dring Street. He approached the driver’s side door of a Civilian Witness #9’s pickup truck and banged forcefully on the window. He then took aim at Civilian Witness #14, another motorist in the area, pounding on the hood of her vehicle and the driver’s door window. He did the same to Civilian Witness #10, who was in her vehicle parked on her driveway having just returned home at ----redacted Dring Street. Civilian Witness #10 drove away as Mr. MacIsaac approached her with a large rock retrieved from a rock garden. Mr. MacIsaac proceeded onto the front porch of Civilian Witness #10’ residence, picked up a patio table and used it to strike the front door. The table broke and Mr. MacIsaac was left holding two of its legs – made of metal and measuring about 94 centimetres in length. It is just about this time that Subject Officer, Witness Officer #2 and Witness Officer #1 arrived on Dring Street.

With the police now on scene, things moved very quickly. Civilian Witness #9 attracted Subject Officer’s attention and pointed him in Mr. MacIsaac’s direction. The officer exited his vehicle and was making his way around the rear driver’s side when he was confronted by Mr. MacIsaac moving in his direction. Mr. MacIsaac was in possession of one of the two metal poles (having dropped the other one) and was brandishing it in a threatening fashion. Fearing an imminent attack, the officer drew his firearm, pointed it at Mr. MacIsaac and ordered him to stop and drop the weapon. Mr. MacIsaac continued to advance towards the officer, prompting Subject Officer to shoot twice. Mr. MacIsaac was felled by the shots and restrained by the officers, who proceeded to administer first aid until paramedics arrived.

Subject Officer says he shot Mr. MacIsaac believing it to be necessary to thwart what he believed to be a lethal threat heading in his direction. I believe him. An honest belief in the necessity of a resort to lethal force will not avail the officer, however, unless such a belief was objectively reasonable in the circumstances. Here, too, I am satisfied the officer is on firm ground. The context is important. In what appears to have been an episode of bizarre behaviour related to a neurological condition, Mr. MacIsaac had set upon a violent course on the morning in question. He physically attacked Civilian Witness #7 and Civilian Witness #4 without warning or provocation. He then left his home unclothed and walked and ran along neighbourhood roads until finding himself on Dring Street, where he angrily confronted motorists and destroyed a patio table. Subject Officer would not have been aware of much this. However, the evidence is important because it lends credence to the officer’s fear at the time he discharged his firearm. Put simply, Mr. MacIsaac was a perceived and real threat.

Narrowing in on the circumstances that immediately prevailed at the time of the shooting, Mr. MacIsaac was moving in the officer’s direction brandishing a metal patio table leg. The witnesses gave various descriptions of the object, but a common descriptor was that it was metal and about three feet in length. About this they were right. The object, a patio table leg, in fact measures some 94 centimetres (3.08 feet) in length and consists of metal. Having personally examined the item, I have no doubt that it could be used as a weapon to inflict grievous bodily harm or death. The weight of the evidence also establishes that Mr. MacIsaac was within close proximity of Subject Officer at the time of the shooting. Again, this distance is variously described by the witnesses within a range of about five to seven feet. A short video clip taken by one of the eyewitnesses of what appears to be the immediate aftermath of the shooting depicts the subject officer within the range described by the persons. The evidence varies as to whether Subject Officer shot twice in immediate succession, or whether there was a discernible pause between the two shots. Subject Officer suggests he fired once and, noticing no apparent effect on Mr. MacIsaac and believing he might have missed his target, shot again. Some third party witnesses support the officer’s account on this score. And of those who describe consecutive shots, none say that Mr. MacIsaac was shot after he was on the ground. In the final analysis, the evidence indicates that Subject Officer was in the lawful discharge of his duties when he was confronted by a violent aggressor, armed with a metal table leg approximately one metre in length who was bearing down on him in a threatening fashion. He says that seeing Mr. MacIsaac approaching him he thought that “he was going to get his head pummeled in.” When, after ordering him to stop and drop his weapon, Mr. MacIsaac moved menacingly to within striking distance, he indicates he shot Mr. MacIsaac then while thinking, “Don’t miss, I have to shoot or he is going to drive that thing through my skull. He’s going to kill me.” In the circumstances, the officer’s fear for his life seems a reasonable one to have harboured, as was his belief that lethal force was necessary to preserve himself. Consequently, whether pursuant to section 25(3) of the Criminal Code (prescribing the ambit of justifiable force by police officers in the discharge of their duty) or section 34 of the Code (setting out the defence of self-defence), I am satisfied the shooting in question was legally justified.

Date: May 26, 2014

Original signed by

Tony Loparco
Director
Special Investigations Unit

Appendix "A"

There were no issues with this investigation.