The Ontario Special Investigation Unit's (SIU) investigation into the fatal police shootings of a one-year-old boy and his father has stretched far beyond the 120-day limit introduced in 2019, a length of time one lawyer calls 'outrageous'.

The incident followed the child's abduction by his father on Nov. 26, 2020 from a home in Trent Lakes, north of Lakefield, public SIU statements say.

OPP officers sent to rescue the child found the father's truck in Kawartha Lakes, east of Lindsay. The truck rammed an OPP cruiser and an unrelated vehicle, seriously injuring one of the officers.

Three officers opened fire on the truck. The boy was pronounced dead at the scene, and his father died later in hospital.

In February of 2021, the SIU said that the two had been killed by police gunfire (the father had a handgun with him in the truck).

The last public update on the case was in November of 2021, when the SIU said the investigation was "currently in a hold pattern" due to delays in forensic testing by the FBI.

"This remains an open investigation," SIU spokesperson Kristy Denette wrote in an email to QP Briefing on June 7. "I’m unable to provide a specific timeline for conclusion."

The SIU investigates cases of death or serious injury linked to police, and makes a decision on whether to lay criminal charges.

Legislative changes in 2019 set a 120-day time limit on SIU investigations. If investigations go over that time, the SIU director is supposed to make a public statement about the delay every 30 days, something the SIU has been doing.

If the investigation continues to July 19, it will have reached five times the 120-day limit.

"The investigation ... is currently ongoing. It would be inappropriate for the Ministry of the Attorney General to comment further or become involved in any aspect of the SIU investigation," ministry spokesperson Brian Gray wrote in an email.

Toronto lawyer Barry Swadron calls the delay "outrageous."

"It's hard to think that there is any excuse for extending it so long," he says. "I can’t fathom why it's taking so long."

Former SIU director Ian Scott is puzzled at the length of the investigation.

"There's something unusual about this, and I don’t know what it is. The tension is obviously between producing responses relatively quickly and doing a thorough investigation. I was always at the view that if it took more time, it took more time."

"There's clearly something on the radar screen that they want an answer to, and they don't have it at this point, so it's holding things up."

Both are perplexed by the decision to involve the FBI, pointing out that the SIU has forensic capabilities of its own, and access to the Centre for Forensic Sciences.

"I don't think we ever went to the U.S. for ballistics issues, when I think about it," Scott says.

He suspects that it may be very difficult to work out which officer's weapon had which effects, which will be central to taking the case to court.

"I would imagine that was the reason it was sent to the FBI because there would have been some issue with respect to the attributing the bullet to the particular gun. What seems to be relatively straightforward is sometimes not, because the bullets can be deformed. So the attribution can be difficult, and maybe that's what took them down to the FBI."

Once fired, bullets often have microscopic details that can link them to the barrel of the specific gun they're fired from.

But many types of Glock handguns, like those carried by the OPP, don't work that way because of the way the barrel is made. The OPP did not respond to questions about whether this was true of their issued sidearms.

"The attribution issues can be very difficult with Glocks, if not impossible," Scott says. "That may be the reason why this just taking the time it’s taking."

On the other hand, Swadron says, if the question turns out to be unresolvable, investigators should say so and move on.

"I think the answer is they should come clean and say the reason there can't be accountability is there is no possible way that we can put the finger on any of these police officers. If that's the situation, well, why don't they come clean and say that that’s the situation?"

The three officers involved have not made statements to the SIU as of June 28 of this year, Hudon said. They are not required to.

Scott points out that "there's no such thing as a perfect investigation."

"There could be more information, but you do have to draw a line, at some point, just say, look, it's time to close the case, I've got enough information to make a considered decision and provide reasons."

The situation has the potential for criminal charges, Swadron argues; since officers were sent to find the boy, they knew he was present.

"They knew, or should have known, if they're rescuing or seeking to rescue the baby, that if they use their firearms, that they could harm the baby."

However, without linking the boy's death to a weapon fired by a specific police officer, a prosecution will go nowhere, Swadron says.

"You can’t call each one of the three cops one-third responsible — it doesn't work that way. You have to say: 'This cop did it. Ballistics show that his gun is the one that fired the fatal shot.'"

SIU probe into toddler’s shooting death by OPP is at 579 days and counting

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