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SIU Director’s Report - Case # 17-TCI-368

Contents:

News Releases for this Case:

French:

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

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

Mandate engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury sustained by a 25-year-old man during his arrest on December 19, 2017.

The Investigation

Notification of the SIU

At approximately 5:08 p.m. on December 19, 2017, the Toronto Police Service (TPS) notified the SIU of the custody injury to the 25-year-old Complainant.

The TPS reported that on December 19, 2017, at about 5:00 p.m., members of the TPS Mobile Support Service (MSS) and the Holdup Squad were trying to apprehend two bank robbery suspects. One of the suspects was taken into custody without incident at Fairview Road and Hanson Road in the City of Mississauga. The other suspect [now determined to be the Complainant] driving a silver Mercedes sedan led police on a pursuit heading north on Hurontario Street. At some point, several unmarked police cruisers boxed in the Complainant’s Mercedes and brought it to a stop.

The Complainant exited the Mercedes and tried to evade the police on foot. During the foot chase, the Complainant brandished a firearm. One of the pursuing police officers discharged his weapon at the Complainant and missed. Subsequently, the Complainant surrendered to police. It was determined that the Complainant had sustained a foot injury and he was transported to the hospital for treatment.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 1

At approximately 6:24 p.m. on December 19, 2017, SIU investigators and forensic investigators (FIs) attended the scene.

The entire scene was photographed and documented using the Leica Total Station. A fast-moving storm front deposited heavy snowfall onto the scene in a very short period of time, changing the entire dynamics of the scene immediately. The crash scene and vehicles were captured with photography and exhibits were seized and examined.

On December 20, 2017 at 11:00 a.m., SIU FIs were asked to return to the scene in an attempt to locate cartridge cases. Forensic investigators were informed that a member of the TPS Hold up Squad had fired two shots at the Complainant and, at 1:20 p.m., they attended at a TPS Division to collect a TPS service pistol. The service pistol was turned over to the investigators by members of the TPS Professional Standards Unit.

At 1:56 p.m., FIs again returned to the scene to look for spent casings from the TPS firearm. The entire scene was again scoured in an attempt to locate the cartridge cases, without success.

Complainant:

25-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 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

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right

Neither subject officer responded to the SIU’s interview requests.


Incident Narrative

On December 19, 2017, the MSS of the TPS and the Hold-up Squad tracked two armed robbery suspects to an address in the area of Fairview Road and Hanson Road in the City of Mississauga. It was believed that the two possibly armed suspects were in the underground parking garage of a high rise apartment building at that location. The two suspects, the Complainant and a second man, were known to be associated with a silver Mercedes and a blue BMW motor vehicle.

The MSS set up outside of the parking garage to await the appearance of either suspect or their motor vehicles. The Emergency Task Force (ETF) had been notified and was on stand-by, as the TPS was aware that these two suspects had used firearms in the robberies which were believed to have been committed by them, and might still be armed and therefore dangerous.

At approximately 4:10 p.m., two motor vehicles were observed to exit the parking garage, one of which was the silver Mercedes driven by the Complainant; the signal was given by Subject Officer (SO) #1 to ‘takedown’ the motor vehicles and arrest the drivers.

While the second motor vehicle was stopped, and the suspect arrested, the Complainant attempted to flee. During the course of the police pursuit, the Complainant’s motor vehicle was rammed by five different unmarked police vehicles, in an attempt to bring his motor vehicle to a stop. The Complainant then exited his motor vehicle and attempt to flee on foot, with a number of police officers in pursuit.

At one point, the Complainant was observed to remove a firearm from his person, and SO #1 fired two shots in his direction, both of which missed. The Complainant then disposed of his firearm in a body of water and continued to run, but was apprehended shortly thereafter.

Upon being arrested, the Complainant indicated that he had been injured, and was transported to the hospital.

Nature of Injuries / Treatment

The Complainant was diagnosed with having sustained a left foot dorsolateral fracture and dislocation of the second to fifth middle and lateral cuneiform bones in the middle foot, which required surgery; wire and screws were used to repair the fracture.

The Complainant also sustained a left nasal bone fracture and a nasal splint was applied, which was to be removed a week later.

Evidence

The Scene

The scene was located in the northbound lanes of Hurontario Street, on the overpass bridge to Rathburn Road, in the City of Mississauga, where a group of motor vehicles involved in a collision was located.

The scene was located in the northbound lanes of Hurontario Street, on the overpass bridge to Rathburn Road, in the City of Mississauga, where a group of motor vehicles involved in a collision was located.


The scene was located in the northbound lanes of Hurontario Street, on the overpass bridge to Rathburn Road, in the City of Mississauga, where a group of motor vehicles involved in a collision was located.

The scene was located in the northbound lanes of Hurontario Street, on the overpass bridge to Rathburn Road, in the City of Mississauga, where a group of motor vehicles involved in a collision was located.

The scene was located in the northbound lanes of Hurontario Street, on the overpass bridge to Rathburn Road, in the City of Mississauga, where a group of motor vehicles involved in a collision was located.

The scene was located in the northbound lanes of Hurontario Street, on the overpass bridge to Rathburn Road, in the City of Mississauga, where a group of motor vehicles involved in a collision was located.

The scene was located in the northbound lanes of Hurontario Street, on the overpass bridge to Rathburn Road, in the City of Mississauga, where a group of motor vehicles involved in a collision was located.

Vehicle 1 [now determined to be the Complainant’s motor vehicle] was a 2011 Mercedes, silver in colour, which was oriented in a southeasterly direction in the centre lane. There was collision damage to the entire vehicle that could be attributed to this incident.

Vehicle 2 [TPS Surveillance Vehicle] was a 2016 Volkswagen, grey in colour, which was oriented in a northerly direction in close proximity to the passenger side of Vehicle 1. There was front end collision damage to this vehicle that could be attributed to this incident.

Vehicle 3 [TPS Surveillance Vehicle] was a 2017 Toyota Sienna, which was oriented in a northerly direction in close proximity to the right front corner of Vehicle 1. There was front end collision damage to this vehicle that could be attributed to this incident.

Vehicle 4 [TPS Surveillance Vehicle] was a 2017 Toyota Camry, black in colour, which was oriented in a north/northwesterly direction in close proximity to the front end of Vehicle 1. There was front end collision damage to this vehicle that could be attributed to this incident.

Vehicle 5 [TPS Surveillance Vehicle] a Nissan Murano, grey in colour, was oriented in a westerly direction to the northeast of the other vehicles. There was front end collision damage to this vehicle that could be attributed to this incident.

In the southbound lanes of Hurontario Street, slightly north of the collision scene, there was an off ramp for vehicles to enter onto Centreview Drive. At the bottom of this off ramp, the roadway divided to either enter Centreview Drive or to enter a ramp and continue onto City Centre Drive. Along the south edge of this ramp there was a sidewalk that was protected by a concrete barrier. The off ramp was divided by collapsible yellow poles. Three of these poles had been damaged. On the north side of the roadway there was a grass median, followed by thick brush and a fence. On the north side of the fence was a field and a stream. A firearm (believed to be that of the Complainant’s) was recovered by the TPS in this area.

A firearm (believed to be that of the Complainant’s) was recovered by the TPS in this area.

The firearm was recovered submerged in a body of water. It was presented to SIU FIs inside a plastic bag and immersed in water. The plastic bag containing the firearm was photographed by SIU FIs. Given the condition of the firearm, SIU FIs determined it could not be tested to ascertain whether it had been fired recently, nor could it be tested for fingerprints. Due to the fact that the TPS required the firearm as evidence in their armed robbery investigation, it was decided that the evidence would be turned over to TPS forensic officers.

At the bottom of the ramp, where the concrete barrier ended, Vehicle 6 was located [TPS Surveillance Vehicle], a 2015 Toyota Highlander, brown in colour. This vehicle was oriented west. There was front end collision damage to this vehicle that could be attributed to this incident.

At the bottom of the ramp, where the concrete barrier ended, Vehicle 6 was located [TPS Surveillance Vehicle], a 2015 Toyota Highlander, brown in colour.  This vehicle was oriented west.  There was front end collision damage to this vehicle that could be attributed to this incident.

At the bottom of the ramp, where the concrete barrier ended, Vehicle 6 was located [TPS Surveillance Vehicle], a 2015 Toyota Highlander, brown in colour.  This vehicle was oriented west.  There was front end collision damage to this vehicle that could be attributed to this incident.

In close proximity to this vehicle, on the sidewalk, there was an area of what appeared to be blood staining, and a pair of running shoes with socks thought to belong to the Complainant. The socks were examined for any bullet holes but nothing was found. The left sock had dried blood and a tear near the inner ankle area inconsistent with a bullet hole. A decision was made by SIU FIs for the TPS to take possession of the shoes and socks, after photography was completed, due to the fact that they required this evidence for their criminal investigation.

Scene Diagram

Scene diagram

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Expert Evidence

On December 19, 2017 at 5:59 p.m., the Complainant was admitted to hospital where he was diagnosed with having sustained a left foot dorsolateral fracture and dislocation of the second to fifth middle and lateral cuneiform bones in the middle foot. The Complainant’s foot was operated on; wire and screws were used to repair the fracture.

The Complainant also sustained a left nasal bone fracture and a nasal splint was applied, which was to be removed a week later.

The CT scan confirmed that the Complainant had sustained a:

… comminuted fracture of the medial pole of the navicular. A fracture in the proximal lateral corner of medial cuneiform. Dislocation of navicular and medial articulation. Dislocation of medial and intermediate cuneiform articulation. Intra-articular fractures of second-fourth TMT joints with dorsolateral dislocation. Comminuted fracture of distal cuboid with lateral dislocation of fifth TMT joint. Multiple small osseous fragments in the Lisfranc articulation and the TMT joints. Significant soft tissue swelling. Grossly intact tendons around the ankle”.


Mechanism of Injury

The SIU contacted a medical expert for an opinion regarding the mechanism of injury.

The expert contacted is presently a coroner and a professor at the University of Toronto. He had previously been President and Chief Executive Officer of Sunnybrook Health Sciences Centre, the Chief Coroner for Ontario, the Director of the Trauma Program at Sunnybrook, the Director of the Emergency Department Base Hospital (paramedic) Program at Sunnybrook, a trauma team physician and leader, and an expert in trauma care and forensic investigation.

The expert advised that the injury sustained by the Complainant was commonly referred to as a “Lisfranc” injury and provided a link to a medical article regarding “Indirect” Lisfranc fractures the causes of which include motor vehicle collisions, falls from heights, and athletic injuries. The mechanism for an “indirect” Lisfranc injury is usually, “indirect rotational forces and axial load through hyper plantar flexed forefoot.”

A further medical description of the cause of a “direct” Lisfranc injury was found to be, “the foot being run over by a car or truck.”

The expert said that the injury was a complicated dislocation fracture requiring “pretty significant force”.

The expert opined that the injury was not inconsistent with either the Complainant’s foot being run over by a vehicle, or being caught in an open vehicle door, when the foot was part way out of the door and the door was closed by the force of another moving vehicle striking it.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and located the following:


CCTV recording from 24 Elm Drive West, Mississauga

15:45:39 hrs The recording began. Northbound traffic on Hurontario Street was fairly light;
16:09:50 hrs A silver Mercedes [believed to be driven by the Complainant] drove north through the intersection of Hurontario Street and Elm Drive at a high rate of speed. The traffic signal was green for northbound and southbound traffic;
16:09:55 hrs Two dark coloured vehicles and two grey vehicles drove north through the same intersection at a high rate of speed. The traffic signal was green;
1610:13 hrs A black pickup truck drove through the intersection at a high rate of speed;
1611:05 hrs Three black unmarked SUVs approached the intersection with their hazard signals activated. The traffic signal was red for north and southbound traffic. The vehicles slowed down as they approached the intersection and proceeded northbound through the intersection on a red light allowing oncoming traffic to yield;
1611:30 hrs An unmarked grey sedan with a dashboard light activated and a grey SUV approached the intersection. The traffic signal remained red for northbound and southbound traffic. The vehicles slowed down as they approached the intersection and proceeded northbound through the intersection on a red light allowing oncoming traffic to yield. A marked police cruiser and an ambulance immediately followed the unmarked vehicles. Both emergency vehicles had their emergency lights activated as they proceeded northbound through the intersection;
1611:39 hrs The grey sedan performed a U-turn in the intersection, allowing the grey SUV, marked police cruiser, and ambulance, to pass by. The grey sedan followed the ambulance northbound; and
16:40:30 hrs The recording stopped.


CCTV recording from an apartment building at 3650 Kaneff Crescent, Mississauga

This recording had no evidentiary value and did not further the investigation.


CCTV recording from GO Bus 2590

At 16:00:00 hrs, the recording began. At 16:18:53 hrs, GO Bus 2590 was northbound on Hurontario Street at Rathburn Road when it drove past a multiple vehicle collision scene. A grey sedan was positioned facing southeast in the northbound lane of the Hurontario Street overpass. A silver Mercedes was also positioned facing southeast. A grey minivan and a dark coloured sedan were in contact with the passenger side of the silver Mercedes, and a dark coloured sedan was in contact with the front of the Mercedes. The driver’s door of the Mercedes was open. A grey SUV was positioned facing west, a few feet north of the boxed in Mercedes, and away from the collision. Two dark coloured police vehicles were stationary in the southbound lane of traffic on Hurontario Street. At 16:19:59 hrs, the recording stopped.


CCTV recording from Transit Bus 8158

This recording had no evidentiary value and did not further the investigation.

Communications Recordings

The recording related to December 19, 2017 was reviewed. It had no time stamp. A summary follows:

A K-9 police officer advised “We had the big takedown,” and that, “We have two bodies” and that he would be at the scene for a while;

A police officer advised the dispatcher that the arrested party [now determined to be the Complainant] was going to hospital. The Complainant was being transported by ambulance and being escorted by a police officer. The police officer would follow the ambulance to the hospital;

An Emergency Task Force (ETF) police officer advised, “Our guy [now determined to be the Complainant] is getting loaded into an ambulance, he will be going to (hospital);”

Another police officer advised that any uniform police officer could go in the ambulance with the Complainant. The police officers agreed that any Peel Regional Police (PRP) officer unrelated to the incident could escort the Complainant in the ambulance. The ETF dispatcher was asked to notify a superior that two persons were in custody and a handgun had been recovered. Furthermore, a firearm had been discharged, however, no ETF member was responsible for the discharge of a firearm. The SIU had to be notified.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Event Details Reports (x3);
  • Firearm Discharge Report;
  • General Occurrence Report;
  • Mobile Support Services Surveillance Report;
  • Notes of WO #s 1-8;
  • Police Firearm Acquired;
  • Procedure: Use of Force;
  • Procedure: Suspect Apprehension Pursuit;
  • TPS Scene Photos;
  • Summary of Conversation; and,
  • Training Records of the two subject officers.

The SIU obtained and reviewed the following materials and documents from other sources:
  • Medical Records of the Complainant relating to this incident;
  • CCTV footage from Transit Bus;
  • CCTV footage from Go Bus;
  • CCTV footage from 3650 Kaneff Crescent, Mississauga; and,
  • CCTV footage from 24 Elm Drive West, Mississauga.

Relevant Legislation

Sections 1-3, Ontario Regulation 266/10, Ontario Police Services Act -- Suspect Apprehension Pursuits

1. (1) For the purposes of this Regulation, a suspect apprehension pursuit occurs when a police officer attempts to direct the driver of a motor vehicle to stop, the driver refuses to obey the officer and the officer pursues in a motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle. 

(2) A suspect apprehension pursuit is discontinued when police officers are no longer pursuing a fleeing motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle. 

2. (1) A police officer may pursue, or continue to pursue, a fleeing motor vehicle that fails to stop,
(a) if the police officer has reason to believe that a criminal offence has been committed or is about to be committed; or
(b) for the purposes of motor vehicle identification or the identification of an individual in the vehicle. 
(2) Before initiating a suspect apprehension pursuit, a police officer shall determine that there are no alternatives available as set out in the written procedures of,
(a) the police force of the officer established under subsection 6 (1), if the officer is a member of an Ontario police force as defined in the Interprovincial Policing Act, 2009;
(b) a police force whose local commander was notified of the appointment of the officer under subsection 6 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part II of that Act; or
(c) the local police force of the local commander who appointed the officer under subsection 15 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part III of that Act. 
(3) A police officer shall, before initiating a suspect apprehension pursuit, determine whether in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle or the need to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle outweighs the risk to public safety that may result from the pursuit. 

(4) During a suspect apprehension pursuit, a police officer shall continually reassess the determination made under subsection (3) and shall discontinue the pursuit when the risk to public safety that may result from the pursuit outweighs the risk to public safety that may result if an individual in the fleeing motor vehicle is not immediately apprehended or if the fleeing motor vehicle or an individual in the fleeing motor vehicle is not identified.

(5) No police officer shall initiate a suspect apprehension pursuit for a non-criminal offence if the identity of an individual in the fleeing motor vehicle is known. 

(6) A police officer engaging in a suspect apprehension pursuit for a non-criminal offence shall discontinue the pursuit once the fleeing motor vehicle or an individual in the fleeing motor vehicle is identified. 

3. (1) A police officer shall notify a dispatcher when the officer initiates a suspect apprehension pursuit. 

(2) The dispatcher shall notify a communications supervisor or road supervisor, if a supervisor is available, that a suspect apprehension pursuit has been initiated

Section 91 (1), Criminal Code -- Unauthorized possession of firearm

91(1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted without being the holder of 
(a) a licence under which the person may possess it; and 
(b) in the case of a prohibited or a restricted firearm, a registration certificate for it.
(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.
(3) Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.

Section 95, Criminal Code – Possession of prohibited or restricted firearm with ammunition

     95 (1)  subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of 
(a)  an authorization or a licence under which the person may possess the firearm in that place; and
(b) The registration certificate for the firearm.
     (2)  Every person who commits an offence under subsection (1)
(a)  is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years, or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years

Section 249, Criminal Code -- Dangerous operation of motor vehicles, vessels and aircraft

249    (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Section 343, Criminal Code -- Robbery

343 Every one commits robbery who
(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive weapon or imitation thereof.

Section 344, Criminal Code -- Robbery with firearm

344 (1)  Every person who commits robbery is guilty of an indictable offence and liable 
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) In the case of a first offence, five years, and
(ii) In the case of a second or subsequent offence, seven years; 
(a.1)  in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

Analysis and Director's Decision

On November 17, 2017, there was an armed robbery of the Scotiabank on Ellesmere Road in the City of Toronto, during which a firearm was discharged by one of the robbers. As a result of investigation and a high quality video which captured the robbery, the Toronto Police Service (TPS) formed reasonable grounds to believe that the Complainant was one of the robbers involved and that he drove a 2012 silver Mercedes with a specified licence plate number.

On December 19, 2017, the Mobile Support Service (MSS) and the Hold-Up Squad of the TPS formed reasonable grounds to believe that the Complainant and his co-conspirator were located in a parking garage at a high rise building located on Hanson Road in the City of Mississauga. Members of the MSS attended the apartment building at 12:30 p.m. and began surveillance of the building for any sighting of the Complainant.

Present in the area of the building where the Complainant was suspected as being located were the MSS team, the TPS ETF, and Peel Regional Police (PRP) tactical officers. Members of the MSS were positioned at various points both on the street and in the underground parking lot.

At 4:10 p.m., a white Mercedes was seen to leave the parking lot, followed by the known silver Mercedes driven by the Complainant. At 4:12 p.m., once the two motor vehicles, believed to be driven by the two suspected armed robbers, left the parking area, SO #1 gave the go ahead to stop and arrest the drivers; the arrest of these two parties was classified as a ‘high risk takedown’ due to the possible presence of firearms. Both vehicles were then observed driving northbound on Hanson Road.

The plan which had been formulated was that police officers, upon the Complainant leaving the parking garage, would attempt to bring his vehicle to a stop as quickly as possible by making contact with his car.

During the course of the attempted apprehension of the Complainant, five unmarked police vehicles made contact with his Mercedes. Thereafter, a foot pursuit followed, when the Complainant abandoned his motor vehicle and attempted to flee on foot. Two shots were also fired at the Complainant, and he later went over a four foot concrete barrier from the off ramp of Hurontario Street onto Rathburn Road. During the arrest of the Complainant, he was punched on one occasion by a police officer. He was later taken to the hospital where it was determined that he had sustained a crush injury to his foot, and a broken nose.

During the course of this investigation, only one civilian witness, other than the Complainant, came forward to be interviewed. The evidence of that one civilian witness related primarily to the pursuit of the Complainant’s motor vehicle, which is not in dispute.

The Complainant alleges that as he was leaving the underground parking lot in the silver Mercedes, a minivan drove straight into him. Soon after, a second minivan drove into his Mercedes on the driver’s side, pushing his Mercedes onto a stretch of lawn, which the Complainant then drove across, as he was scared and unaware that the vehicles that had rammed him were police vehicles and he was unsure whether or not they meant to kill him.
The Complainant alleges that as he drove off, turning right onto Hanson Road and then left onto Fairview Road West, he saw several speeding cars behind him, a number of which collided with his motor vehicle at various times. The Complainant then turned left onto Hurontario Street, travelling north. The Complainant saw a car come up on his left side and strike the Mercedes near the front end, pushing it into oncoming traffic. When the Complainant then found himself on the wrong side of the centre median, another vehicle came up and struck the Mercedes, following which the Complainant was able to steer back into the proper lane of traffic, when another car struck it on the right side, causing the right side air bags to deploy. The Complainant then braked hard, causing one of the vans to strike something in front of him.

The Complainant estimated his speed at approximately 70 km/h and described traffic as being heavy. When the Complainant saw an opening, he pulled out in front of the vehicles chasing him. The Complainant indicated that he thought he was going to die, so he kept pressing on the gas pedal, while other vehicles continuously slammed into his. The Complainant stated that he then saw at least three vehicles try to block him in, following which the Complainant was unable to manoeuvre the Mercedes any longer. At that point, the Complainant recalled being on a road where, if you turned left, you would enter onto Kennedy Road, from which one could proceed onto Highway 410 South. When the Complainant tried to exit the Mercedes, another car slammed into his driver’s door, and then a second vehicle struck his trunk, causing him to lurch forward.

Upon first hearing the Complainant’s version of events, I must admit that I initially met it with incredulity. The evidence of the police witnesses and the physical evidence, however, is indeed consistent with his version of events, in that at least five unmarked police vehicles rammed the Complainant’s motor vehicle upon his exiting the underground parking garage, during rush hour and in heavy traffic, on a work day, between approximately 4:10 and 4:15 p.m., in a fairly busy area of Mississauga.

In order to fully understand the sequence of events, I will outline which officer was driving which vehicle during the attempts to stop and arrest the Complainant:

  • SO #1 was driving a 2015 Toyota Highlander; 
  • WO #1, a black Toyota Camry;
  • SO #2, a silver Toyota Sienna minivan;
  • WO #3, a grey Volkswagen Jetta;
  • WO #8, a gold SUV; and
  • WO #2, a grey Nissan Murano SUV.

Witness Officer (WO) #2, in his statement to SIU investigators, indicated that he was positioned north of the driveway to the underground garage and that it was his job to pin the passenger side of the silver Mercedes, if it came his way. After WO #2 heard over the police radio that one white and one silver Mercedes had exited the garage, he observed those vehicles to drive to the top of Hanson Road.

WO #3 indicated that as the silver Mercedes drove past his location, he drove into the driver side of the Mercedes at about 15 to 20 km/h, but that the Mercedes continued on.

WO #2 observed that one police vehicle was in front of the silver Mercedes, while a second was on the passenger side, and a third was behind it. The police vehicles tried, unsuccessfully, to box in the Complainant’s Mercedes.

WO #3 then observed another unmarked police vehicle strike the Complainant’s car, forcing it onto the lawn of a residence, after which the Complainant continued first eastbound and then northbound, onto Hurontario Street, at a high rate of speed, after passing through the intersection on a red light without stopping.

At the intersection of Burnhamthorpe Road and Hurontario Street, a second ‘takedown’ attempt was made to stop the Complainant’s vehicle. WO #2 described several MSS vehicles making contact with the silver Mercedes at Burnhamthorpe Road and, after it was struck by one of the unmarked police cars from behind, it rolled slowly westward. WO #2 then drove up to the Mercedes to pin the driver’s door shut in order to prevent the Complainant from exiting the vehicle. As WO #2 approached, he observed the driver’s door beginning to open, and he drove into the door.

This was also observed by WO #3, who described the Complainant opening his driver side door when, suddenly, an unmarked police vehicle drove into it causing the door to slam shut.

The Complainant was then observed to switch lanes and he sped off northbound in the southbound lanes of Hurontario Street, followed by WO #2. WO #2 described the Complainant returning to the proper lanes of traffic at about Robert Speck Parkway, and WO #2 followed suit.

At Rathburn Road and Hurontario Street, Subject Officer (SO) #1 initiated the final takedown, striking the Complainant’s motor vehicle from behind and causing it to spin, ending up facing southbound in the northbound lanes. Several MSS vehicles then converged on the Mercedes, boxing it in, with WO #1 driving into the passenger side of the Complainant’s car, WO #3 striking it at the rear, and SO #2 striking it on the passenger side.

Upon arrival at the scene, SIU investigators observed three motor vehicles directly in contact with the Complainant’s Mercedes, while the Toyota Highlander operated by SO #1 was a short distance away, where it had come to a stop after striking the Mercedes and pushing it forward. The other three vehicles located still in direct contact with the Mercedes were: the grey Volkswagen Jetta, having been operated by WO #3; a Toyota Sienna minivan, the airbags of which had deployed, operated by SO #2; and, a black Toyota Camry, which was operated by WO #1.

Once the Mercedes was no longer operable, the Complainant stated that he exited through the driver’s door and ran off. The Complainant, while he was running, looked to his right and saw a van speeding toward him, and he moved out of the way. Shortly thereafter, he observed another van driving towards him, and he believed that both wheels on the driver’s side drove over his left foot.

WO #2 indicated that after the Mercedes was boxed in, he drove around the stopped cars and observed the Complainant running across the southbound lanes of traffic in a northwest direction. WO #2 then drove over the centre median of Hurontario Street and across three lanes of traffic to get ahead of the Complainant. WO #2 stated that he cut the Complainant off at the top of the ramp by using his vehicle to prevent him from running further north and he observed the Complainant run into the driver’s side of his police vehicle. While WO #2 opined that this may have been the cause of the Complainant’s injury, I note that contrary to the evidence of the Complainant, WO #2 was operating a grey SUV, and not a minivan.

WO #8, like WO #2, then also drove across the centre median and drove in the southbound lanes of traffic in the direction towards which the Complainant had run.

WO #2 then exited his vehicle carrying his C-8 Carbine rifle and pursued the Complainant on foot, down the foot ramp leading to Rathburn Road West. WO #2 was roughly 20 to 30 feet behind the Complainant and he observed the Complainant to be running in a normal fashion, with no indications that he had a foot injury.

WO #8 indicated that when the Complainant was running down the foot ramp, with SO #1 and WO #2 in foot pursuit, he saw the Complainant’s right hand come up out of his jacket and then saw the Complainant turn his right shoulder towards SO #1 and WO #2. It appeared to WO #8 at that point that the Complainant threw a gun over a fence.

While SO #1 declined to provide a statement, WO #1 indicated that SO #1 had told him, after the fact, that the Complainant had pulled out a firearm during the foot pursuit and tossed it over a fence.

WO #3 indicated that he observed the Complainant throw a gun in a northerly direction towards a creek and, at the same time, he heard two shots being fired, which he believed had originated from SO #1; the Complainant continued running.

WO #3 also observed that once the Complainant reached the bottom of the foot ramp, he stopped and was unable to stand on both feet, thereafter rolling himself over the concrete barrier.

At 5:07 p.m., WO #4 located a black revolver, with two chambered rounds, submerged in the water. The firearm was photographed in place, then seized and examined.

WO #8 advised that once the Complainant was at the bottom of the ramp, the Complainant turned to face WO #8’s vehicle and then rolled over a concrete barrier separating the ramp from Rathburn Road. WO #8 described the Complainant going over the barrier feet first and then dropping roughly four to five feet down to Rathburn Road. WO #8 advised that the Complainant did not move from where he had fallen, and that upon his arrival, SO #1 was already on top of the Complainant, and was being assisted by WO #2 and WO #1.

The Complainant alleges that he was then tackled to the ground and ended up lying on his stomach, but he did not see who tackled him. He was then thrown over a four foot high concrete barrier by some people, who he could not identify.

According to WO #1, once the Complainant exited his vehicle, he was pursued on foot by SO #1 and WO #2, followed by himself. As the Complainant reached the bottom of the ramp, WO #1 described him as slowing and flinging himself over the top of the cement barrier, following which he observed SO #1 and WO #2 make contact with the Complainant and place him under arrest. Seconds later, WO #1 arrived at the arrest scene, followed by SO #2 and WO #8, who were in an unmarked police vehicle.

WO #2 described observing the Complainant start to climb over the barrier using his right arm, followed by his right leg, and then fall to the ground. WO #2 believed at that time that the Complainant had collapsed.

The Complainant indicated that he then saw five to six white police officers in plainclothes and black and grey tactical gear. The Complainant told the police officers that his foot was broken but was told to “shut up or we are going to break your leg,” at which point an officer grabbed his leg and squeezed his foot.

At one point, the Complainant alleges he was punched in the face by a police officer, following which he put his hands over his face and yelled, “I’m done. I didn’t know it was the police. I’m done!” When his hands were moved away from his face, it felt as if his nose was broken and he opined that it had been broken when the officer punched him. The Complainant then had the back of his head banged against the ground.

WO #8 stated that he observed WO #1 take control of the Complainant’s legs to stop him from kicking, while WO #8 took control of his upper body. WO #8 ordered the Complainant to stop resisting and to show his hands, but when the Complainant did not respond, WO #8 used his right fist and punched the Complainant on the top of his head as hard as he could. WO #8 placed the resistance by the Complainant as a ten out of ten for severity. After punching the Complainant, WO #8 pulled the Complainant’s arms out from under him and he was then handcuffed.

With respect to how he received his injuries, the Complainant does not allege that he was injured during the vehicular pursuit, which involved five police vehicles ramming his motor vehicle at various points. He alleges, however, that a van drove over his left foot, with both tires, crushing it and causing the injury to his foot. He also alleges that during his arrest, a police officer punched him in the face, which he believed broke his nose. The Complainant also indicated that prior to his apprehension, he was thrown over a four foot concrete barrier and, during his arrest, his head was banged against the ground and a police officer grabbed his leg and squeezed his broken foot, threatening to break it. The Complainant is not able to distinguish specifically between the many police officers involved in his pursuit and arrest, and therefore is unable to identify any specific police officer as being responsible for his injuries.

While the Complainant’s description of the police pursuit and the ramming of his motor vehicle is substantially corroborated by the police officers involved and the physical evidence at the scene, I find that his assertion that he was at no time in possession of a firearm, when he was specifically seen to pull a gun from somewhere on his person and throw it into a body of water below by at least three different police witnesses, and it was later located and photographed in that exact location, causes me some doubts as to his reliability, if not his credibility. As such, while I have relied on the Complainant’s version of events where it is materially corroborated by either the physical evidence or the evidence of other witnesses, I am unable to base my decision on the uncorroborated evidence of the Complainant alone.

I also do not accept the Complainant’s assertion that he was thrown over the concrete barrier, as numerous of the police officers present observed him to go over the barrier of his own accord and unaided by any police officer, in his bid to escape.

Based on the evidence of the Complainant, it is clear that he was not injured during the police pursuit or the ramming of his vehicle, but he was only injured after he had fled from his disabled vehicle and a van drove over his foot, with both wheels on its driver’s side.

While the evidence of WO #1, as confirmed by the physical evidence at the scene, indicates that SO #1, WO #3, WO #1, and SO #2 all drove their vehicles into the Complainant’s Mercedes during the final takedown attempt, and that those four motor vehicles remained at the collision scene, where they were located thereafter by SIU investigators with three of those vehicles still in contact with the Complainant’s vehicle, while the fourth, SO #1’s Toyota Highlander, was located stopped just prior to the point where the Complainant’s motor vehicle came to rest, it is clear that the operators of those four motor vehicles could not have driven the vehicle which allegedly drove over the Complainant’s foot, having each abandoned their motor vehicles and pursued the Complainant on foot prior to him sustaining his injury.

Furthermore, while the Complainant described two vans as driving at him while he was running away, one of which he was able to avoid, and the second which drove over his left foot, there is no evidence as to who was operating either of these two vehicles, insomuch as the Complainant was not able to describe the colour or make of either van. The evidence at the collision scene reveals only one apparently disabled van, a Toyota Sienna which had been operated by SO #2, and a large SUV, the Toyota Highlander which had been operated by SO #1, neither of which could have run over the Complainant’s foot as they remained in the area of the final collision scene.

The only evidence of any motor vehicle pursuing the Complainant in the direction that he fled, once he was on foot, was that of WO #2 who was operating a grey Nissan Murano [1], and WO #8, who drove a gold coloured SUV which never came anywhere near the Complainant. As such, if it indeed was a van that ran over the Complainant’s foot, I find it impossible to pinpoint which motor vehicle, operated by whom, may have been the vehicle involved in the Complainant’s injury.

Furthermore, it seems unlikely that as the Complainant was running, that a van could have run over his left foot with both the front and rear driver side tires, which one would think would require the Complainant to be facing the side of the motor vehicle, and not running either parallel to, or in front of, the motor vehicle. [2]

While there is some corroboration, in the form of the medical evidence that the injury to the Complainant’s foot was caused by a crush type injury [3], that the Complainant’s foot was indeed damaged by the application of some force which crushed his bones, I am unable, without significant speculation on the evidence before me, to determine who, or how, that might have occurred. In the absence of that evidence, I do not have reasonable grounds to believe that any one particular police officer drove a motor vehicle in such a manner as to cause the injury to the Complainant.

While the appropriate charge to be considered, should the driver of the van be capable of being identified, would be one of dangerous driving causing bodily harm, the definition of which is set out in the decision of the Supreme Court of Canada in R v Beatty, [2008] 1 S.C.R. 49, as requiring that the driving must be dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place, and that the driving must be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances,” in the absence of some identification evidence to pinpoint who the driver of the van who allegedly drove over the Complainant’s foot is, I lack the evidence necessary to assess that driving overall to determine whether or not the driving was dangerous in nature in the entire context of the incident.

While the one civilian witness who observed the police pursuit observed two pickup trucks and four sedans driving through an intersection against a red light, in pursuit of the Complainant’s motor vehicle, honking their horns in order to alert other motorists, there is no evidence that this group of six motor vehicles included the alleged van which ran over the Complainant’s foot.

Furthermore, since none of the unmarked motor vehicles had either GPS/Automobile Vehicle Locator (AVL) data or in-car camera systems, there is no evidence as to the speed of any of the pursuing police vehicles. While the Complainant estimated his own speed at 70 km/h while being pursued and managing to outrun the police, there appears little evidence that the police vehicles were driving at an excessive rate of speed, even could I isolate the alleged van as being one of these motor vehicles.

As such, in the absence of some evidence to identify the driver of the van which the Complainant alleges drove over his foot, I am unable to satisfy myself that there are reasonable grounds to believe that the Complainant’s injured foot was caused by the dangerous driving of an unknown police officer.

With respect to the Complainant’s allegation that a police officer, who is again unidentifiable, punched the Complainant in the face breaking his nose, I am also unable to find that the evidence is capable of satisfying me that there are reasonable grounds to believe that this occurred, in light of the diminished reliability and credibility of the Complainant, as indicated above.

I do note, however, that WO #8 indicated that he did indeed strike the Complainant on the top of the head when he was resisting his arrest, which resistance he rated as falling at a ten on a scale of one to ten in severity. While it appears unlikely that this punch to the top of the head could have caused his broken nose, even had it done so, I cannot find that this amounted to an excessive use of force in these circumstances. While taking into account that the Complainant was known to have previously been in possession of a firearm, he had successfully managed to elude police in three successive takedown attempts, he had then fled from police on foot, and had been seen to be holding a firearm on his person which only a couple of the officers had seen him discard, I have no doubt that there was a heightened sense of urgency to handcuff the Complainant as quickly as possible, in order to eliminate the risk that he continued to pose, as long as he was at large and possibly in possession of a firearm. [4]

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. As such, in order for WO #8 to qualify for protection from prosecution pursuant to s. 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.

On the evidence before me, it is clear that there was ample evidence upon which to apprehend and arrest the Complainant for the outstanding offences of armed robbery, making his pursuit and subsequent arrest actions in furtherance of a lawful duty. The question remains, however, whether or not the punch to the head of the Complainant was reasonable and justified in the circumstances. As enumerated above, taking into account the known fact of a firearm and the many efforts by the Complainant to escape, I have no hesitation in finding that the single punch inflicted by WO #8 was justified, in these circumstances, in order to restrain and handcuff the Complainant as quickly as possible and to search him for any additional weapons.

In making this finding, I have considered the direction from the Supreme Court of Canada as set out 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]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

As such, while I am unable to determine that the single punch delivered by WO #8 was the source of the Complainant’s injured nose, finding it far more likely that he was injured when he rolled over the concrete barrier and then collapsed onto the ground, even were I able to do so, I am not satisfied on these facts that there are reasonable grounds to believe that WO #8 acted outside of the limits of the criminal law in these circumstances.

With respect to the Complainant’s broken foot, in the absence of some evidence as to how and by whom this injury occurred, the evidence is incapable of satisfying me on reasonable grounds that his injury occurred as a result of any specific police officer driving in a dangerous manner. However, even if the injury was sustained, as opined by WO #2, when he drove his vehicle so as to cut off the Complainant’s escape, and the Complainant ran into his police vehicle, I would not find that action by WO #2, in this dynamic and dangerous situation, to fall outside of the limits of the criminal law. As such, as I lack the basis for the laying of criminal charges, none shall issue.


Date: November 8, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) Described as a midsized five-passenger SUV. [Back to text]
  • 2) If his foot was injured in the location that he alleges, he would have had to run 170 metres on a very damaged foot. This is hard to imagine but not impossible. [Back to text]
  • 3) The medical expert who we consulted, told the SIU that these types of injuries might be caused by motor vehicle collisions, falls from height, or might be athletic injuries, with the mechanism being indirect rotational force and axial load through hyper plantar flexed forefoot. Further, the dislocation fracture would have required a significant amount of force and thus, it would be consistent with being run over by a car or truck. [Back to text]
  • 4) There were numerous officers who heard the warning that the Complainant possessed a gun, but only a couple who saw him discard it. That being said, WO #8, who admitted punching him, was one of the officers who saw him throw the gun away. [Back to text]