The province’s Special Investigations Unit has determined there is no reasonable grounds to believe slain Ontario Provincial Police Const. Marc Hovingh committed a criminal offence when he shot and killed Gary Brohman in self defence on Nov. 19, 2020 during a call for service on Manitoulin Island.
“Notwithstanding the fact that (Const.) Hovingh had succumbed to his wounds, the SIU commenced an investigation as the incident included a death at the hands of a police officer,” said the report. “The director of the Special Investigations Unit, Joseph Martino, has determined there are no reasonable grounds to believe that (Const.) Hovingh committed a criminal offence in connection with Mr. Brohman’s death.”
The SIU interviewed four officers in its investigation, as well as two civilian witnesses and notes from a third civilian witness.
The shooting occurred in Brohman’s trailer at about 11 a.m. on Nov. 19, 2020. Hovingh had entered the trailer seeking to arrest Brohman for mischief after finding what was described as an illegal marijuana grow operation near the trailer.
Soon after the officer entered the trailer, Brohman picked up a pump-action shotgun and fired his weapon three times at Hovingh, striking him twice in the thigh. Hovingh, though struck, was able to draw his sidearm and return fire, shooting in Hovingh’s direction seven times.
Brohman suffered gunshot wounds to the left side of the head (which was necessarily fatal), right cheek, and lower left arm (which travelled into his left torso and lung).
The SIU’s report states Brohman had unlawfully set up a trailer Hindman Trail on land owned by one of the civilian witnesses, who used the land for hunting purposes.
Landowner reports a trespasser
The day before the shooting, the landowner had stumbled upon the trailer because Brohman had bulldozed a road off Hindman Trail into the location of his trailer, said the report. The landowner confronted Brohman, who falsely asserted a legal interest in the property. He was told by the landowner to remove himself, but the landowner left, not wanting the argument to escalate.
The landowner contacted police, and Hovingh attended the trailer that afternoon, only to find the trailer empty.
The next day, Hovingh returned to the area with another officer after having looked into the matter and being satisfied the landowner did indeed own the land and that Brohman was trespassing.
This time, Brohman was there. He answered the door and was told to vacate the land, but he again claimed he had a legal right to be there.
At this point, the landowner and his son showed up on ATVs and talked to the officers, reasserting Brohman was to leave the area immediately. After further conversations with Brohman, the landowner offered to help by bringing in heavy equipment to transport the trailer off the land and agreed to give Brohman until noon the following day to leave. Brohman was agreeable to that plan, said the report.
Illegal grow op
As the officers and landower were leaving, Hovingh saw about 20 propane cylinders outside the trailer. Suspicious, he walked north of the trailer with the landowner and saw what he suspected to be an area used to grow pot plants, most of which had been harvested.
The second officer joined Hovingh at the suspected grow op, and estimated about $100,000 worth of marijuana had been grown on the land.
The landowner made it clear to the officers he no longer wanted to wait until the next day for Brohman to leave, and the officers agreed.
Hovingh and the other officer returned to the trailer to speak with Brohman, who largely ignored the officers. When he did respond, Brohman reminded the officers that he had until the next day to leave and told them to go away.
The officers explained that circumstances had changed and that they needed to speak to him. When Brohman continued to refuse to open the locked door, Hovingh reached into the rear bed of Brohman’s pickup truck, removed a shovel, and used it to try and pry open the door. The landowner then gave the officers an axe, which was used to successfully force open the door.
The other officer, his CEW (conductive energy weapon) drawn, entered the trailer. From the front of the trailer, he spoke with Brohman, who was located at the rear of the trailer in the bedroom area.
The officer repeatedly directed Brohman to show his hands and asked him to exit the trailer and leave the property.
Brohman refused, saying he had nowhere to go and argued that he had 24 hours to leave.
Brohman also told the officer to shut his “Taser” off, and uttered words to the effect of, “Go away. I’m not going through this again.”
Hovingh, who had been standing outside the trailer by the doorway, asked to switch places with his colleague. He stepped into the trailer in front of his colleague, who was now by the threshold of the door. As Hovingh took a couple of steps forward, Brohman turned toward the corner of the bedroom. When he turned around again, he was holding a shotgun pointed in Hovingh’s direction.
Brohman fired three shots from his shotgun. Hovingh quickly returned fire, discharging seven rapid rounds from his 9-mm semi-automatic pistol.
The other officer and the two civilians immediately took cover, the officer in the bushes, the civilians hid behind Brohman’s pickup truck. The officer reported over his radio that shots had been fired and that assistance was required immediately.
The landowner told his son to take the ATV and go to their hunting camp. He returned with firearms. He gave a shotgun to his father, who trained it at the trailer in the event Brohman was to exit the vehicle. He was concerned for the safety of hunters in the area should an armed Brohman escape the area.
The first officers to arrive at the scene after the shooting were from the UCCM Anishnaabe Police. They took over from the civilians at the pickup truck and assisted in containing the trailer while they waited for OPP ERT officers to arrive.
ERT officers arrived and entered the trailer, after which paramedics attended and began to render first aid to Hovingh and Brohman. The wounded officer was breathing but unconscious. Both individuals were rushed to hospital, where they were pronounced deceased.
In self defence
SIU director Martino said in his report the law of self-defence in Canada is rooted in Section 34 of the Criminal Code. It legally justifies conduct intended to thwart a reasonably apprehended attack, both actual and threatened, if the conduct is itself reasonable in the circumstances.
Among the considerations bearing on the reasonableness of the conduct in question are the nature of the force or threat; 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; and, whether any party to the incident used or threatened to use a weapon.
“In my view, the force used by Const. Hovingh, namely, the repeated discharge of his firearm at Mr. Brohman, fell squarely within the justification of Section 34,” Martino wrote in his report.
“When Const. Hovingh entered the trailer and was quickly confronted by Mr. Brohman, at a distance of some four to five metres away, firing a shotgun at him, he was entitled to resort to lethal force of his own. The officer’s life was manifestly in jeopardy at the time, as his subsequent passing due to shotgun wounds to the leg confirmed. And nothing short of a firearm would have provided the sort of rapid and immediately incapacitating effect that was imperative if Const Hovingh was to have any chance of saving his life.
“Withdrawal or disengagement was not an option largely because neither was available to Const. Hovingh. The officer was caught by surprise as Mr. Brohman turned toward him with a shotgun and started to fire. In the circumstances, it would appear that the officer had only split seconds to react, and may have even been wounded, by the time he drew his gun and started to fire back.
Martiono said Hovingh’s gunfire was also a reasonable response in defence of the lives and safety of his partner and the civilians, all of whom were in the vicinity of the trailer when the shots rang out.
“Faced with an armed individual shooting at him, Const. Hovingh could only have concluded that all of their lives were in imminent peril if Mr. Brohman was left unchecked and allowed to exit the trailer, particularly as (the second officer) was in the area of the trailer door’s threshold when Mr. Brohman first fired,” said Martino. “Mr. Brohman must have known that his arrest was unavoidable and he acted as if he had nothing left to lose. On this record, it is entirely conceivable that Const. Hovingh’s actions served to deter what could well have been a continuing risk to the lives and limbs of others around him.”
The issue of whether the officers were lawfully inside the trailer at the time of the shooting is one that need not be addressed, said Martin. On the one hand, it is clear that Hovingh and his colleague forcibly entered a trailer where Brohman resided without judicial pre-authorization or the existence of exigent circumstances. On the other hand, Brohman had set up his trailer unlawfully on land owned by someone else. He was a trespasser on the property whom the officers had reason to believe was engaged in an illegal marijuana grow operation.
“Be that as it may, Mr. Brohman was at no point entitled to use lethal force against the officers,” said Martino. “When he did so, whatever the officers’ status inside the trailer, they were entitled to defend themselves.”
Dozens of improvised explosive devices found
Martino said a final note is warranted about the aftermath of the shooting and, specifically, the length of time it took before police and then paramedics entered the trailer. Though the shooting happened at about 11 a.m., it was not until about 12:30 p.m., with the arrival of ERT officers, that police gained entry.
“I am unable to fault the officers on scene for waiting for ERT officers,” said Martino. “While the second officer, initially, and then other arriving officers would have known that Const. Horvingh had been injured, no one was sure about the status of Mr. Brohman. As far as they knew, he could easily have been lying in wait in the trailer still capable of inflicting grievous bodily harm or death.
“In this regard, it is telling to note that post-incident forensic analysis of the scene led to the discovery of dozens of improvised explosives and incendiary materials on the property, and numerous firearms inside the trailer.
“Moreover, a civilian witness, on hearing of the shooting, contacted police at about 3:30 p.m. to warn them of his concern that the property might be booby-trapped with pipe bombs and propane tank bombs. In the circumstances, I am satisfied that the decision to wait to deploy an ERT team – with their specialized training and resources – was an entirely prudent one.”