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SIU Director’s Report - Case # 17-TFI-355

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 (the Complainant) during his arrest on December 1, 2017.

The Investigation

Notification of the SIU

At approximately 12:05 a.m. on December 2, 2017, the Toronto Police Service (TPS) notified the SIU of the firearm injury to the Complainant.

The TPS reported that on Friday, December 1, 2017, at approximately 11:15 p.m., TPS officers responded to a 911 call for a home invasion robbery. When the police officers arrived, they were confronted by a man [later identified as the Complainant] with a firearm. The police officers shot at the Complainant.

The Complainant sustained a gunshot wound to his arm and was subsequently transported in an ambulance to hospital.

The Team

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

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, notes received and reviewed


Incident Narrative

On Friday, December 1, 2017, at approximately 11:15 p.m., CW #3 was in his neighbour’s backyard when he called 911. He reported that four unknown men with firearms were trying to rob his house. CW #3 then told the operator that the four men had fled and were running southbound on Benshire Drive in the City of Toronto.

At approximately 11:17 p.m., the SO and WO #3 were driving on Benshire Drive when they saw four men running towards Bendale Junior Public (BJP) School. The SO and WO #3 exited their vehicle and ran after the men.

One of the men [later identified as the Complainant] was lagging behind the other men. The SO and WO #3 followed the Complainant into the school yard. The Complainant was carrying a canister of bear repellent spray. He discharged the spray at WO #3 and continued to run around the portable classrooms. The Complainant was holding something which appeared to be a firearm and pointed it towards the SO. The SO believed the Complainant had a firearm in his hands. He discharged his firearm multiple times at the Complainant.

The Complainant began to run. The SO ran after the Complainant. He then saw the Complainant raising his arm towards WO #3 in a similar manner to that of shooting a firearm. The SO discharged his firearm at the Complainant again.

The Complainant ran and hid behind a large industrial garbage bin. The SO and WO #3 approached the Complainant and arrested him. The Complainant sustained a gunshot wound to his right arm and was transported to hospital in an ambulance.

Nature of Injury/Treatment

On Saturday, December 2, 2018, the Complainant underwent surgery for a single gunshot wound to his right arm.

The bullet entered the volar surface on the lateral side of the Complainant’s upper right forearm and travelled through muscle striking the lateral side of the distal humerus before it came to rest behind the right humerus bone. The bullet was retrieved from the Complainant’s right forearm.

A medical opinion received indicated that in order for the bullet to have entered the Complainant’s right forearm in the manner it did, the Complainant would have had to have been facing the person who fired at him.

Evidence

The Scene

The scene was located in the school yard of BJP School located at 61 Benshire Drive in the City of Toronto. There were four portable classrooms around the school yard. A school bus was parked in the parking lot. The SO’s police vehicle was parked perpendicular to the school bus. Two large industrial garbage bins were located in the parking lot.

The scene was located in the school yard of BJP School located at 61 Benshire Drive in the City of Toronto.  There were four portable classrooms around the school yard. A school bus was parked in the parking lot. The SO’s police vehicle was parked perpendicular to the school bus. Two large industrial garbage bins were located in the parking lot.

Due to the nature of the initial call of a home invasion, the SIU agreed to conduct a parallel investigation with the TPS.

The scene was secured by the SIU, examined, photographed, and documented by a Total Station. SIU FI examination of the scene revealed relevant items of evidence as follows:

  •  A 25 calibre semi-automatic pistol with five cartridges in the magazine and one in the breach was located near the east side wall of portable classroom number four;
A 25 calibre semi-automatic pistol with five cartridges in the magazine and one in the breach was located near the east side wall of portable classroom number four

A 25 calibre semi-automatic pistol with five cartridges in the magazine and one in the breach was located near the east side wall of portable classroom number four

A 25 calibre semi-automatic pistol with five cartridges in the magazine and one in the breach was located near the east side wall of portable classroom number four

  • Six cartridge cases, a magazine [later identified as coming from the SO’s firearm] loaded with seven cartridges and a key [later identified as the SO’s police vehicle key] were located north of portable classroom number three;
  • Four cartridge cases [later identified as being fired from the SO’s firearm] were located in between portable classrooms one and two;
  • A projectile was located from portable classroom number two and a bullet fragment was located from portable classroom number one;
  • A grey hooded sweater and a canister of bear repellent spray were located behind the two industrial garbage bins;
A grey hooded sweater and a canister of bear repellent spray were located behind the two industrial garbage bins

A grey hooded sweater and a canister of bear repellent spray were located behind the two industrial garbage bins

  • A trail of blood was located between portable classroom number one and behind the two industrial garbage bins; and
  • Three garbage bags containing marijuana were located near the school bus [the bags were later transferred to TPS FI for the purpose of their investigation]. 

Scene Diagram

Scene diagram

Physical Evidence

Firearm Examination

The SO’s uniform, vest, and duty belt, including ASP baton, handcuffs, one spare magazine and his Glock 22 service pistol, were seized and photographed by the SIU.

An examination of the SO’s firearm revealed that it was loaded with one cartridge in the breech and ten in the magazine, indicating that three projectiles had been discharged. The spare magazine was loaded with 14 rounds of ammunition.

Another magazine from the SO’s firearm, which had been discarded, was located on the ground on school property. An examination of that magazine revealed that it had seven cartridges remaining, indicating that seven had already been discharged.

WO #3’s uniform, vest, and duty belt, including ASP baton, handcuffs, two spare magazines and his Glock 22 service pistol, were seized and photographed by the SIU.

An examination of WO #3’s firearm revealed that it was loaded with one cartridge in the breech and 13 in the magazine, indicating that it had not been discharged. Each spare magazine was loaded with 14 rounds of ammunition.

Forensic Evidence

Several items seized at the scene including the uniforms of the SO and WO #3 were submitted to the Centre of Forensic Sciences (CFS).

On Wednesday, February 28, 2018, the SIU received the results from the CFS, which revealed that elements of Capsaicin (CAP) (an irritant used to deter mammals, often found in ‘bear spray’) and Dihydrocapsaicin (DHC) (also an irritant) were present on WO #3’s uniform pants.

Video/Audio/Photographic Evidence

Closed Circuit Television (CCTV) Recordings.

The SIU canvassed for CCTV within the area of the alleged home invasion and found a camera at the front entrance of CW #3’s residence. The recordings depicted the following:

  • At 11:12:14 p.m., three men [one of them later identified as the Complainant] wearing hooded sweaters are seen in the front entrance door to CW #3’s residence; 
  • At 11:17:11 p.m., the Complainant and two unknown men run southbound towards BJP school followed by CW #3;
  • At 11:18:10 p.m., a police vehicle [later identified as that being used by the SO and WO #3] drove northbound on Benshire Drive towards the school.


In-Car Camera System (ICCS) Recordings from the SO and WO #3’s Police Vehicle

The SIU received and reviewed the ICCS from the police vehicle of the SO and WO #3. The ICCS recordings depicted the following:

  • At 11:17:20 p.m., the SO and WO #3 arrived on Benshire Drive. WO #3 transmitted over the radio that they had arrived at the scene;
  • At 11:17:27 p.m., the SO entered the parking lot of the school. A school bus was parked in the school parking lot. A man [later identified as the Complainant] ran behind the school bus on a pathway leading into the school yard; and
  • At 11:17:31 p.m., the SO and WO #3 exited their police vehicle and WO #3 transmitted over the radio that he was in a foot pursuit.


ICCS Recordings from the Police Vehicle of WO #1 and WO #2

The SIU received and reviewed the ICCS from the police vehicle of WO #1 and WO #2. The ICCS recordings did not have any information to further this investigation other than the following:

  • At 11:18:16 p.m., as WO #2 and WO #3 arrived at the school, a man [later identified as CW #3] was crouched near a school bus talking on his cellular phone. CW #3 saw the police vehicle of WO #1 and WO #2 and pointed them in the direction to the front of the school bus.

Communications Recordings

911 Communication Recordings

The SIU investigators obtained and reviewed the 911 communication recordings for the relevant incident.

According to the 911 communications recordings, at 11:14 p.m., CW #3 was in his neighbour’s backyard when he called 911 and reported four black men with two firearms trying to rob his house. The communication recordings depicted the following:

  • At 11:17:11 p.m., CW #3 chased and yelled at the four men [one of them later identified as the Complainant] that the police officers were on their way;
  • At 11:17:52 p.m., CW #3 told the operator that two police officers [later identified as the SO and WO #3] had arrived;
  • At 11:17:52 p.m., six gunshots were discharged [later identified as coming from the SO’s firearm]; 
  • At 11:18:07 p.m., four gunshots were discharged [later identified as coming from the SO’s firearm];
  • At 11:18:15 p.m., CW #3 told the operator that the Complainant and the other three unknown men had firearms and the police officers [later identified as the SO and WO #3] were shooting at them; and
  • At 11:19:13 p.m., CW #3 told the operator that he did not know how many people were injured. CW #3 was asked by the dispatcher to return to his home. 


TPS Communication Recordings

The SIU investigators obtained and reviewed the TPS communication recordings for the relevant incident. The TPS communication recordings depicted the following:

  • At 11:14:43 p.m., the SO and WO #3 were dispatched to attend CW #3’s residence; 
  • At 11:15:19 p.m., WO #1 and WO #2 were dispatched to attend CW #3’s residence; 
  • At 11:15:41 p.m., the dispatcher told the SO, WO #3, WO #1, and WO #2 that CW #3 was calling from his neighbour’s backyard;
  • At 11:16:42 p.m., WO #3 transmitted over the radio that they were ten seconds away from CW #3’s residence;
  • At 11:17:41 p.m., WO #3 was heard telling a person [later identified as the Complainant] to stop. He told the dispatcher that he was in a foot pursuit;
  • At 11:18:00 p.m., WO #3 transmitted over the radio that shots were fired; 
  • At 11:18:13 p.m., WO #3 transmitted over the radio that shots were fired at the BJP school; and
  • At 11:18:32 p.m., WO #3 transmitted over the radio that one person [later identified as the Complainant] was in custody.


Computer Aided Dispatch (CAD) Report

The SIU investigators obtained and reviewed the CAD report relevant to the incident. The CAD report reflected the information in the TPS communications recordings, the 911 call recording, and the ICCS recordings.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • List of Accused Parties;
  • Event Details Report;
  • Computer Aided Dispatch (CAD) Summary;
  • Firearm Discharge Report;
  • General Occurrence Report (redacted);
  • Notes of WO #s 1-3 and the SO;
  • 911 Call Recording;
  • Police Transmissions Communication Recording;
  • ICCS videos from police vehicles of the SO and WO #3, and the police vehicle of WO #1 and 2;
  • Summary of Conversation; and
  • Written Witness Statement of CW #7.

The SIU obtained and reviewed the following materials and documents from other sources:
  • CFS Chemistry Report;
  • CFS DNA Report;
  • Medical Records of the Complainant relating to this incident, (obtained with his consent); and
  • CCTV footage from residence of the home invasion robbery.

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 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.

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.

Section 348(1), Criminal Code -- Breaking and entering with intent, committing offence or breaking out

348 (1) Every one who 
(a) breaks and enters a place with intent to commit an indictable offence therein,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or
(ii) entering the place with intent to commit an indictable offence therein,
is guilty
(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

Analysis and Director's Decision

On November 1, 2017 at approximately 11:14:29 p.m., a 911 call was received by the TPS from CW #3, the occupant of a residence in the City of Toronto. CW #3 advised that he had observed four masked armed men break down his front door and enter his home and that they were robbing him at that very moment. CW #3 indicated that he had run out of the back door of his residence when he observed the masked robbers at his front door on his surveillance monitors, and he was calling police from his neighbour’s backyard after escaping from his home.

The surveillance video from CW #3’s residence confirms that three men wearing hooded sweaters are at his front door.

As a result of the initial call from CW #3, four police officers in two different police vehicles were dispatched to CW #3’s residence, with the first two, the SO and WO #3, being dispatched at 11:14:43 p.m. in one cruiser, and WO #1 and WO #2 being dispatched at 11:15:19 p.m., in a second.

At 11:16:42 p.m., the police transmissions communications recording reveals WO #3 calling in to the dispatcher and advising that they were ten seconds away from CW #3’s residence.

During the course of the 911 call, CW #3 can be heard on the communications recording yelling, “Police are on their way, boys!” after which he indicated that he was now chasing the men, two of whom he indicated were armed with firearms.

The surveillance video reveals the three men then running southbound toward the BJP School, followed by CW #3.

Shortly thereafter, the police cruiser with the SO and WO #3 is then seen on the surveillance video, driving toward the school.

The 911 call recording reveals CW #3 then indicating that the police had arrived and that he had observed two police officers on the scene at the school.

According to the ICCS video from the SO’s cruiser, he and WO #3 arrived at the school parking lot at 11:17:27 p.m., and a man, the Complainant, can be seen running behind the school bus on a pathway leading into the school yard.

At 11:17:31 p.m., the ICCS video reveals the SO and WO #3 exiting their police vehicle; WO #3 is also recorded on the communication recording as indicating that he was in a foot pursuit.

At 11:17:41 p.m., WO #3 can be heard on the communications recording telling someone to stop.

Shortly thereafter, a number of gun shots can be heard in the background of CW #3’s 911 call. When questioned by the call taker, CW #3 confirmed that they were indeed gunshots. A second volley of gunshots was then heard in the background.

At 11:18:00 p.m., WO #3 can be heard on the police recording confirming that shots had been fired.

At 11:18:16 p.m., the ICCS video from the police vehicle of WO #1 and WO #2 shows them arriving at the school. The video further reveals CW #3 crouching near the school bus on school property, still talking on his cell phone to the 911 call taker. CW #3 is then seen to point WO #1 and WO #2 in the direction of the front of the school bus.

At 11:18:32 p.m., WO #3 is heard to indicate that they had one suspect in custody. Ambulance services were then notified and asked to rush to the scene. An officer was also heard to transmit that two armed suspects were still outstanding.

During the course of this investigation, seven civilian witnesses, in addition to the Complainant, were interviewed, as well as three police witnesses. The subject officer also provided a statement to investigators. Additionally, investigators had access to the 911 call recording, the police transmission communications recordings, the ICCS videos, and the surveillance video from CW #3’s residence. Despite the many witnesses interviewed, only the Complainant and the SO and WO #3 were actually present during the shooting of the Complainant.

According to the Complainant, he and his two unnamed cohorts ran from CW #3’s home toward the school. The Complainant was carrying a canister of bear repellent spray; he indicated that he was unaware of what his co-conspirators were carrying.

As the Complainant and the other two men were running towards the school, the Complainant observed a police vehicle pull into the school parking lot. The Complainant ran toward the school with the bear repellent in his hands. While the Complainant claimed he did not know the whereabouts of the other two men, he himself was trying to get away from the police.

At one point, the Complainant saw a police officer behind him with a flashlight and his firearm pointed at the Complainant; from the description provided by the Complainant, this officer was WO #3. WO #3 repeatedly told the Complainant, “Stop, police, don’t move.” The Complainant ignored the officer and continued to run. The Complainant indicated that he then “accidentally” discharged the bear repellent as he ran, because the canister had a flimsy trigger.

WO #3 then fired at the Complainant five times, while the Complainant continued to run. As he approached the end of the row of portables, the Complainant saw a second police officer with his firearm and his flashlight in his hands; from the description provided by the Complainant, this police officer was the SO. The SO also yelled, “Police, police,” but the Complainant continued to run out of the school yard toward Benshire Drive.

As the Complainant ran, he accidentally dropped the canister of bear spray onto the ground causing it to again accidentally discharge into the air. The Complainant did not see the bear repellent canister again after he dropped it on this occasion.

The Complainant then claims to have heard another approximately 15 gunshots, and he was struck in the right forearm after the first five gunshots had been fired. The bullet struck him very close to his elbow and all 15 shots were in rapid succession. The Complainant indicated that he had nothing in his hands at the time and that the SO was behind him, and slightly to the northeast of his location, when the SO fired at him.

The Complainant continued to run toward Benshire Drive, when he was struck by another bullet, which grazed his right eyebrow, following which he changed direction and began to run beside the portables. The Complainant, although he indicated that his intention was to surrender, advised that he then ran another approximately 30 metres, and hid behind a dumpster.

A few seconds later, the SO arrived at the rear of the dumpster and located the Complainant hiding there; the police officer told him to put his hands up, and the Complainant indicated that he did so. The SO then grabbed the Complainant by the shirt and pushed him toward the ground. A few seconds later, WO #3 arrived.

The Complainant indicated that he told the two police officers that he had been shot, and they told him not to move. One of the police officers said that the Complainant had tried to spray him with the bear repellent and one of the police officers held his firearm to the left side of the Complainant’s head and told him not to move.

The Complainant opined that both the SO and WO #3 shot at him because the bear repellent spray had accidentally discharged.

Before going into the version of events as provided by the SO and WO #3, I will note that the following evidence, as provided by the Complainant, is contradicted by the physical evidence:

  • The Complainant indicated that WO #3 shot at him five times; WO #3’s firearm and spare magazines were all examined and it was confirmed, as indicated by WO #3, that he never discharged his firearm;
  • The Complainant claimed that he dropped the bear repellent canister after he was fired upon by WO #3, but before he was fired upon by the SO, and that he never saw it again after he dropped it. The Complainant then continued to run until he hid behind the garbage dumpster. This evidence is inconsistent with the location of the bear repellent spray, which was located behind the garbage dumpster where the Complainant hid and was eventually located;
  • Based on these same facts, since the bear spray apparently travelled with the Complainant to its final resting place behind the garbage dumpster where he hid, despite his assertion that he had nothing in his hands when the SO fired at him, it is clear that he did have something in his hands;
  • An expert medical opinion concluded that the Complainant was facing the person discharging his firearm when he was shot in the forearm, since the bullet had entered in the forearm and then travelled toward the elbow, which could not have occurred had he been struck from behind. This contradicts the Complainant’s assertion that he was running away from the SO and that the SO was somewhere behind him when he was shot. Based on this expert evidence, I find that the Complainant was facing the SO when the SO discharged his firearm;
  • The Complainant also claimed that he was running away from the SO, when, after already having discharged his firearm 15 times, the SO again shot at the Complainant and he was grazed in the right eyebrow. While the medical records confirm that the Complainant had a laceration to his right eyebrow, at no time was this attributed to a gunshot wound. The record clearly notes “patient was involved in a police involved shooting suffering a GSW (gunshot wound) to the right forearm, laceration to right eyebrow”. Clearly the Complainant could not have been grazed by a bullet across his eyebrow, if he was running away from the SO, as he claims;
  • The physical evidence confirmed that the SO had initially discharged his firearm seven times (based on the remaining cartridges in the first magazine, which he then removed and replaced), and then, after placing a new magazine into his firearm, discharged it an additional three times, for a total of ten discharges in two separate incidents. The Complainant, on the contrary, alleges that there were three separate incidents of firearm discharges, those being five discharges from WO #3 (who did not discharge his firearm), then 15 from the SO, in a separate incident, and finally one remaining discharge which grazed the Complainant’s eyebrow as he was running away; and
  • The Complainant’s claim that it was his intention to surrender, after he had been shot, appears inconsistent with his actions of continuing to run and then hiding behind the dumpster; at no time did the Complainant actually give himself up to police.

According to the SO, as he and WO #3 arrived on Benshire Drive, he saw four unknown men running southbound on Benshire Drive toward the BJP School. Two of the men, one of whom was later identified as the Complainant, ran on a pathway leading into the school yard from the parking lot. The SO drove into the parking lot and exited his police vehicle and ran after the Complainant.

WO #3 indicated that as soon as the SO stopped the car, he exited and ran around the school bus leading into the school yard. WO #3 observed two men running toward the school yard but he did not know the location of the SO at that time. WO #3 ran past the portables after the two individuals. He then observed the Complainant about 30 feet ahead of him and he yelled at the Complainant to stop running. WO #3 indicated that he yelled, “Police! Stop!” four times and then ran after the Complainant. WO #3 observed the Complainant with something in his right hand, following which he lost sight of the Complainant and WO #3 stopped running.

WO #3 advised that he slowed and approached the portables cautiously as he did not know if the Complainant was just around the corner. As he came around one of the portables, WO #3 saw the Complainant with his hands in front of him holding an object that WO #3 equated as being similar to holding a firearm. WO #3, who was approximately 30 feet from the Complainant, feared for his safety and immediately drew his firearm.

As WO #3 pointed his firearm at the Complainant, he felt a burst of spray towards him and then observed that the Complainant was in possession of a canister of bear repellent. WO #3 took a few steps backward as a result of coming into contact with the bear spray. The Complainant then again ran away and WO #3 lost sight of the Complainant as he went around the portable classroom, where it was very dark.

As WO #3 followed in the same direction, he heard several gunshots and he immediately relayed that information over his police radio. He then observed the Complainant running away from the portables toward the parking lot, followed by the SO. WO #3 observed the SO with his firearm drawn and estimated that he was approximately 10 feet behind the Complainant.

WO #3 then lost sight of both men as he ran toward the parking lot.

The SO stated that he repeatedly yelled at the Complainant to stop and get on the ground. The SO described the area near the portables as poorly lit and he was unaware of the location of WO #3 at that time. The SO observed the Complainant turn around and remove an object from his left waistband and point it at the SO in a manner described by the SO as similar to pointing a firearm. The SO believed that the Complainant was going to shoot him and he feared for his safety, as a result of which he unholstered his firearm and shot at the Complainant multiple times.

The Complainant then turned and ran way and the SO discarded his magazine and reloaded his firearm with a second magazine and followed. The SO described himself as being approximately 20 feet behind the Complainant and, after he had run about 30 feet, he saw the Complainant raise his hands and point the object in his possession at WO #3, again in a manner which the SO associated with pointing a firearm. The SO feared for the safety of WO #3 and he immediately discharged his firearm multiple times at the Complainant, but the Complainant continued to run away.

This evidence is confirmed by that of CW #3, who was present in the school yard and observed the Complainant point a black coloured object, which he described as being similar to a firearm, at WO #3. He indicated that he heard WO #3 repeatedly yell at the Complainant to put his hands on his head and to get on the ground; the Complainant did neither. CW #3 then observed the SO shoot at the Complainant.

CW #3 indicated that he then heard ten more gunshots, and when he looked out from behind the police vehicle, he observed the SO on his knees behind a large industrial garbage bin with his hands on his face and he described the SO as appearing traumatized.

The SO stated that he lost sight of the Complainant behind three large industrial garbage bins. When the SO ran around the bins, he located the Complainant crouched behind one of the bins. The SO told the Complainant to get on the ground, and then the SO pushed him down towards the ground. The Complainant then lay on the ground with his right arm underneath his body. The SO feared that the Complainant might still be in possession of a firearm, and he began to pull on the Complainant’s right hand. WO #3 then arrived and assisted and they were able to remove the Complainant’s arm from beneath his body and he was handcuffed.

WO #3 also advised that he next came upon the SO and the Complainant behind an industrial garbage bin where he observed the SO struggling with the Complainant. WO #3 observed the large bear repellent spray canister next to the Complainant. The Complainant had his hands underneath his body and WO #3 assisted the SO in getting the Complainant’s hands out and he was handcuffed.

The SO then performed a pat-down search of the Complainant, at which time his hand came away with blood, as a result of which he immediately radioed for an ambulance. The SO also observed a large canister of bear repellent spray near the garbage bins.

WO #3 indicated that the SO told him that he thought that the Complainant had a firearm.

The evidence provided by both the SO and WO #3, and by CW #3, is confirmed by the various recordings which I have already outlined above.

Pursuant to s. 25(1) of the Criminal Code of Canada, 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) 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 preservation of anyone 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, if death or grievous bodily harm is caused, it must further be established that the police officer did so believing on reasonable grounds that it was necessary in order to preserve himself, or anyone under his protection, from death or grievous bodily harm.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the 911 call from CW #3 that the Complainant was one of four men [1] that had just broken into his home and “robbed” him and that the men were armed. On the basis of that information, which was relayed by the dispatcher to the responding officers, it is clear that when the SO and WO #3 saw four men running away from CW #3’s residence toward the public school [2], that they had reasonable grounds to believe that these were the armed robbers described by CW #3. As such, the pursuit and apprehension of the Complainant was 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.

Further, the court 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 believed that he, or WO #3, was 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 the SO at the time that he discharged his firearm.

In assessing the actions of the SO, I have taken into account that he was in possession of the following information at the time that he discharged his firearm:

  • Four masked men had just committed a home invasion robbery and the men had been reported as having been observed by the homeowner to be armed with firearms;
  • All four of those men (although later information strongly suggests that there were actually only three robbers) were chased to the BJP School;
  • The SO observed four men running to the school, (although one of them was later determined to be CW #3);
  • The SO was unaware of the location of WO #3 at the time that he initially observed the Complainant;
  • The Complainant ignored repeated commands to stop and get on the ground;
  • The parking lot was poorly lit, especially in the area between the school portables and behind the garbage dumpsters;
  • The Complainant had been seen by the SO to remove an object from his waistband, an area of the body which is commonly associated with the location of a firearm, and point it at the SO in a fashion reminiscent of how someone would point a firearm; and
  • The SO next observed the Complainant raising his hands and pointing the unknown object at WO #3, again in a fashion similar to how someone would point a firearm.

On all of the information the SO had in his possession at the time he shot and injured the Complainant, I find that the SO, subjectively, had reasonable grounds to believe that his life was at risk from the Complainant and that the Complainant’s actions, as well as the information provided by the dispatcher from CW #3 that they were in pursuit of armed robbery suspects, would have reasonably caused the SO to believe that the Complainant had a firearm pointed first at the SO, and then at WO #3, and that on each occasion there was a risk of being shot by the Complainant.

Additionally, unbeknownst to the SO at the time, a firearm was later located on the school property, on the ground near school portable number 4, the last in the line of portables.

I note that the location of this firearm places it in the same location as the Complainant, when he described himself as getting to the end of the portables where he encountered the SO. I also note that this is the location from which he then ran, claiming that he dropped the bear spray canister. While the bear spray canister was not located in this location, I note that the discarded firearm was, which causes me to consider the strong probability that the SO, WO #3, and CW #3, actually did observe the Complainant in possession of a firearm, as was their independent belief at the time, which the Complainant then discarded or dropped as he ran away from the SO. Clearly, as the bear spray was located in the immediate area where the Complainant was hiding, that is not what he dropped as he ran away from the SO.

I find further support in this conclusion based on the evidence that CW #3 advised that prior to the discharge of the first shots by the SO, he observed the Complainant to point an object, which he described as being similar to a firearm but which he also specifically noted was black in colour. The bear spray canister was red in colour, while the discarded firearm located in the immediate area was indeed black.

While this evidence alone may be insufficient to conclusively establish that just prior to the SO firing upon the Complainant, that the Complainant was pointing a firearm at him, combined with the information already in the SO’s possession at the time that the suspects were armed, I do not doubt that the SO reasonably believed that he was, at that time, facing an armed suspect who had a firearm pointed at him, and later at WO #3, causing him to fear both for his own life and that of WO #3.

While after having repeatedly reviewed all of the evidence, it is still unclear to me whether or not the Complainant was in possession of the firearm later located in the area and had pointed it at the SO, or if he pointed the bear spray canister in a fashion reminiscent of a person pointing a firearm (which I find less likely). I certainly have a strong suspicion that the Complainant did indeed point a firearm at the SO, which I base on the evidence of the SO and CW #3, who observed the Complainant point a black object at the SO, which CW #3 suspected was a firearm, and the evidence of WO #3 when he first observed the Complainant pointing something, combined with the later finding of the firearm in that very location.

I find it highly probable that when the SO then discharged his firearm at the Complainant, which would clearly have constituted self-defence pursuant to s. 34 of the Criminal Code, it caused the Complainant to drop his firearm, after which he ran in his continuing efforts to evade the police. Later, when confronted by WO #3, since he had already dropped his firearm, the Complainant then pulled out the bear repellent canister, which he then kept with him until he hid behind the garbage dumpster, where it was observed by both the SO and WO #3, and later retrieved by investigators.

While this evidence may not be sufficient to prove beyond a reasonable doubt that the Complainant pointed a firearm at the SO (although it might), I find that the evidence, based on the information available to the SO at the time, was sufficient to justify the SO discharging his firearm. 
 
The facts on this record bring to mind the particular dictum as quoted by Justice Power in Chartier v. Greaves that:

"Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". … (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).

Clearly, while I have had the opportunity to review all of the evidence at great length, the SO, ‘in the exigencies of the moment’, did not have the luxury of ‘minutely dissecting the significance of the events, or to reflect calmly upon the decisions to be taken’, nor did he have the luxury of waiting to see if the Complainant would discharge a firearm, and thereby risk his own life, as well as that of WO #3.

I find, therefore, on this record, that the evidence satisfies me that the shots that were fired, one of which struck and injured the Complainant, were justified pursuant to s.25 (1) and (3) of the Criminal Code and that the SO, in preserving himself and WO #3 from death or grievous bodily harm from the Complainant, used no more force than was necessary to effect his lawful purpose.

As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the SO, in discharging his firearm at the Complainant, fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case and none shall issue.


Date: November 1, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) This was what was reported, although the video only shows three men trying to break into CW #3’s home. [Back to text]
  • 2) It is probable that one of these men was CW #3, who was chasing the men who had broken into his home. [Back to text]