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SIU Director’s Report - Case # 18-TFD-172

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 death of a 36 year-old man on June 7, 2018.

The Investigation

Notification of the SIU

On June 7, 2018, at 12:54 a.m., the TPS reported a firearms injury of an unknown man, which occurred at 74 Hymus Road in Toronto on June 7, 2018 at 12:06 a.m. The firearms injury was later changed to the firearms death of the Complainant.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 3

Complainant:

36-year-old male, deceased


Civilian Witnesses

CW #1 Not interviewed (Next-of-kin)
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed

Additionally, the notes from three other police officers were received and reviewed.


Subject Officers

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


Incident Narrative

On June 6, 2018, at around midnight, the Complainant got into a physical altercation with civilian witness (CW) #2 at the Muckish Irish Pub in Scarborough. Multiple witnesses, including witness officer (WO) #4 (an off-duty police officer), noticed that the Complainant was in possession of a handgun. The Complainant left the pub through its rear exit and invited CW #2 to take things outside. WO #4 called 911 to report that the Complainant had a firearm. 

Multiple TPS officers responded and subject officer (SO) #1 and WO #2, and SO #2 and WO #3 were the first to arrive. WO #4 met them in the rear parking lot of the Muckish Irish Pub and directed them to a white Mercedes. The Complainant sat in the driver’s seat of the Mercedes.

The officers approached the vehicle, ordering commands for the Complainant to get out of the car. The Complainant ignored the commands and, when SO #1 opened the driver’s side door, pulled out a handgun and shot SO #1 in the chest.

SO #1 shot towards the Complainant three times, but his handgun jammed. He is unsure if he or the Complainant shot first and shot as a reaction to seeing a firearm pointed at him. He felt the impact of being struck by the bullet, stumbled backwards in shock and looked for blood. The bullet pierced his memo book and shattered the glass on the cellphone he kept in his chest pocket, but was stopped by his bulletproof vest. SO #2 stood next to SO #1 and also shot towards the Complainant several times, emptying an entire magazine. WO #2 was equipped with a C8 rifle and shot once towards the Complainant’s face, but the bullet missed and became lodged in the sunroof of the Mercedes.

The shooting happened very quickly, in a matter of seconds. Afterwards, the Complainant was slumped over with his face in the passenger seat of the Mercedes. He still had a handgun underneath his torso.

WO #1, WO #5 and WO #6 arrived quickly at the scene. WO #3, WO #5, and WO #6 reached into the vehicle to secure the Complainant and WO #3 moved the handgun away from him. The officers then removed the Complainant from the vehicle and performed CPR on him until the EMS arrived. The Complainant was later pronounced dead and six bullets were removed from his body.

Evidence

The Scene

On June 7, 2018, at 4:32 a.m., SIU investigators began photographing the scene located at 74 Hymus Road, which was the Muckish Irish Pub, situated at the north east corner of Hymus Road and Warden Avenue in Toronto. The parking lot for the bar was at the east side of the building and entrance to the parking lot was gained from Hymus Road. There were several vehicles parked in the parking lot belonging to patrons of the bar and also some abandoned vehicles. There were two vehicles involved in this incident that are described under the heading "Physical Evidence”.

Physical Evidence

Vehicle 1: white 2014 Mercedes


This vehicle was orientated west in the sixth stall from the south edge on the east side of the parking lot. The driver’s door was open and the four-way flashers were activated. This vehicle was not running. There were several impact sites on the windshield and on the driver’s side of the vehicle. The interior of the vehicle showed transfer and pooled staining of suspected blood on both the front driver’s seat and the front passenger seat. There were projectiles, cartridge cases, personal effects and a large amount of money on the passenger front seat and floor area in clear view. On the seat was a purse that contained more cell phones, personal identification, and two fully loaded Glock 9mm magazines. On the centre console was another projectile. On the floor of the driver’s seat area was a large capacity magazine capable of dispensing 50 cartridges. On the floor on the rear passenger seat was a similar magazine.

In the area of the parking lot close to the driver’s door of the Mercedes were several cups placed by TPS police officers for securing the scene of evidence. This evidence included cartridge cases, a black plastic holster, an empty .40 calibre Glock magazine, and a small machined part. Also included amongst this evidence was EMS medical waste and further staining of suspected blood. In the centre of the parking lot and slightly north of Vehicle 1 was the following vehicle.

Vehicle 2: grey 2017 Ford Interceptor


This was a marked TPS cruiser. Emergency lighting and siren were present but not activated. This cruiser was running and an in-car video camera was mounted on the dashboard. 
 

Vehicle 3: white Ford SUV Interceptor


This TPS cruiser was parked on Hymus Road and was used to escort EMS from the incident and then returned post incident. 
 

Police Property Seized


At 6:44 a.m., SIU forensic investigators met with TPS police officers who had been assigned to protect evidence placed in a police vehicle parked near the scene. The duty belt and equipment and the ballistic vest of police officer SO #1 was removed from the trunk and taken to the SIU forensic investigators’ truck. The following service pistols were collected and photographed.

Police Service Pistol and related ammunition collected from scene Glock Model 22 with a cartridge case “stove piped” in the ejection port, a magazine and 11 cartridges. The duty belt, which showed use of force options available, was photographed and returned to the TPS officers. SO #1’s ballistic vest with all equipment in place was photographed. SO #1 cell phone and notebook were removed from the front pouch and impact sites were noted on both. The impact sites were photographed and the cell phone and the ballistic vest were collected. SO #1’s notebook was returned to the TPS officers.

The interior of SO #1's ballistic vest showing the impact of a bullet.
Figure 1: The interior of SO #1's ballistic vest showing the impact of a bullet.


At 7:26 a.m., SIU forensic investigators (FIs) met with a TPS officer, who had been assigned to protect evidence placed in the trunk of another TPS police vehicle. The following items were removed and collected for evidence. A Police Colt CA82.223 cal. service rifle and related ammunition was collected from the scene. One cartridge was removed from the breech. The magazine and 26 cartridges were removed from the rifle. A Glock Model 26 9mm semi-automatic pistol with one cartridge, one magazine and five cartridges were photographed and removed from the scene.

The Complainant's Glock 26 handgun.
Figure 2: The Complainant's Glock 26 handgun.


At 11:10 p.m., SIU FIs attended TPS Division 41 to further collect the police equipment of the police officers involved in the incident. A TPS officer turned over the duty belt with use of force options and uniform of WO #2 and they were photographed. It was noted that WO #2’s service pistol had not been fired and it was unloaded. All of WO #2’s equipment was returned. SO #2’s uniform and equipment were photographed. One spare Glock magazine from the duty belt was collected and the remaining equipment was returned. At 1:55 p.m., an SIU forensic investigator collected the following equipment that was secured in the trunk of a TPS police vehicle that was parked outside at Division 41: A Glock Model 22, with one cartridge removed from the breech and a magazine with 13 cartridges. All collected evidence from the scene and at Division 41 was secured at the SIU.

Expert Evidence

Trajectory Examination:


During the scene examination on June 7, 2018, a trajectory examination of the Mercedes was conducted while it was parked in the parking lot of 74 Hymus Road. On June 12, 2018, a SIU forensic investigator attended the secured facility where the Mercedes was stored to review impact sites recorded at the scene and complete an examination of the interior of the vehicle. A total of 12 impact sites were recorded at the scene to the exterior surfaces of the Mercedes. Eleven of the impact sites originated from sources at the front driver’s side front corner and the driver’s side rear corner of the vehicle. One impact site could be related to a source from the front of the vehicle in general. Two additional impact sites were recorded during the second examination in the interior. One of these impact sites originated from a source from inside the vehicle and the second impact site was undetermined.

The trajectory of some of the bullets fired at the Complainant’s vehicle.
Figure 3: The trajectory of some of the bullets fired at the Complainant’s vehicle.

Vehicle 1: 2014 Mercedes Benz


Fourteen impact sites were found on the vehicle.

Impact #1 perforated the metal exterior of the left front fender of the vehicle near the “A” pillar base. Bullet fragments were located inside the “A” pillar structure, which is the metal support structure between the front windshield and the driver’s door.

Impact #2 also perforated the metal exterior of the left front fender of the vehicle. Bullet fragments were located inside the “A” pillar structure.

Impact #3 perforated the metal windshield trim near the “A” pillar, which caused automotive glass to be present inside the vehicle. Several projectiles were recovered within the interior of the vehicle and within the “A” pillar.

Impact #4 perforated the windshield of the vehicle at the dashboard; however, a projectile could not be located.

Impact #5 perforated the windshield of the vehicle near the driver’s side area, and a projectile could not be located.

Impact #6 perforated the windshield of the vehicle near the passenger front seat area and several projectiles were recovered near the front passenger seat area.

Impact # 7 penetrated the metal skin of the roof and struck the window frame of the sunroof and a bullet fragment was recovered.

Impact #8 perforated the metal door skin of the driver’s side rear door and a projectile was recovered from the inner structure of the seat back.

Impact #9 perforated the automotive glass of the driver’s door window and a projectile was not recovered.

Impact #10 penetrated the metal door skin at the front edge of the driver’s side rear door struck the rear door frame and rubber molding recorded as Impact #11 and a bullet jacket fragment was recovered.

Impact #12 perforated the steering wheel and exited to a secondary impact site on the inner frame of the steering wheel and bullet fragment was recovered.

Impact #13 related to impact #14 and impact #15, which perforated the driver’s side sun visor and a projectile was not recovered. 

Summary of Exhibits Collected and Centre of Forensic Sciences (CFS) Testing:


Collected from the scene were 15 .40 calibre cartridge cases, which were located on the parking lot, outside of the Mercedes. There was also one .40 calibre (police Glock 22) cartridge case found jammed inside SO #1’s Glock 22, which made a total of 16 police .40 calibre rounds fired. SO #1 had 11 bullets in his magazine in addition to the one jammed cartridge case inside his Glock, which had a total capacity of 15 bullets, provided the magazine was full. SO #1 in his statement stated that he had 14 rounds in each magazine at the start of his shift and he also said that he was unsure how many times he fired his pistol. An empty magazine from SO #2 was collected from the scene and his police Glock 22 had 13 bullets in the magazine and one bullet in the chamber. Provided SO #2’s magazines were full the assumption would be that he fired his gun 16 times. One .223 calibre (police C8 rifle) cartridge case was located at the scene of the shooting outside the Mercedes and one .223 projectile was located in the sunroof of the Mercedes, which was consistent with the fact that WO #2 said that he fired his C8 rifle once. WO #2’s C8 rifle had 26 rounds in the magazine and one in the chamber. A C8 rifle magazine would hold 28 rounds at full capacity. Four 9 mm cartridge cases were located at the scene of the shooting inside the Mercedes, which belonged to the Glock 26, which the Complainant was in possession of. The magazine could hold a total of 10 rounds and there were five rounds in the magazine.

A total of 21 cartridge cases were located at the scene, which included 16 police .40 calibre rounds, one .223 calibre round and four 9 mm rounds fired. Thirteen projectiles were collected from the scene and one projectile was collected from SO #1’s bullet proof vest. Six projectiles were removed from the Complainant during the post-mortem examination.

All police service weapons with accompanying magazines and ammunition were submitted to the CFS for comparison purposes and distance determination. The Complainant’s outer clothing was submitted for distance determination as was SO #1’s ballistic vest for distance determination. All cartridge cases, projectiles and bullet fragments collected from the scene, post mortem and the Mercedes were also submitted for comparison purposes.

On March 14, 2019, the SIU received the CFS Firearms Report. CFS’s comparison analysis determined, within the limits of practical certainty, that three of the cartridge cases were fired from SO #1’s Glock 22, 13 of the cartridge cases were fired from SO #2’s Glock 22, and four of the cartridge cases were fired from the Complainant’s Glock 26. The final cartridge case, the .223 calibre round, could not be forensically matched to WO #2’s C8 rifle but could not be excluded either. None of the projectiles could be matched forensically to any of the firearms nor could they be excluded.

The report also stated that SO #1’s ballistic vest and the Complainant’s trousers and hoodie were examined for firearm discharge residue patterns but none were observed. As a result, no further distance determination examinations were performed.

Video/Audio/Photographic Evidence

In-Car Camera System (ICCS) Footage:


This police cruiser was operated by SO #1 and WO #2. The footage was time and date stamped.

At 12:05:35 a.m., the police cruiser turned eastbound onto Hymus Road. It drove past the entrance to the Muckish Irish Pub parking lot and performed a U-turn. At 12:05:59 a.m., the police cruiser drove westbound back towards the Muckish Irish Pub parking lot entrance. There was a marked TPS SUV police cruiser [now known to be operated by WO #3], which turned onto Hymus Road from Warden Avenue. The SUV police cruiser stopped on Hymus Road near and at a right angle to the entrance to the pub parking lot and the police cruiser driven by SO #1 drove into the parking lot entrance.

At 12:06:06 a.m., as SO #1’s cruiser approached the parking lot, a man wearing a white T-shirt [now known to have been off-duty WO #4], stood at the rear entrance of the pub. There was a white car with the front lights on, parked, facing west towards the pub building. The white car [now known to have been a white Mercedes], was the first car in a line of vehicles parked on the east side of the parking lot. WO #4 took something out of his right pants pocket [now known to be a police badge] and walked towards the police cruiser. At 12:06:10 a.m., the police cruiser stopped and a portion of the front of the Mercedes remained in camera view. An unknown light source (possibly WO #3’s SUV cruiser pulled into the parking lot), and momentarily illuminated the driver’s side of the Mercedes. At 12:06:12 a.m., a woman [now known to have been CW #6], exited the pub through a rear door and stood beside WO #4.

At 12:06:19 a.m., a uniform police officer [now known to have been SO #1], walked past the front of the police cruiser towards the Mercedes. SO #1 had a flashlight in his right hand pointed towards the Mercedes and he walked out of camera view. Two men exited the rear of the pub and stood against the building. WO #4 stood in the parking lot and looked towards the Mercedes. CW #6 and the two men went back into the pub through the rear door.

At 12:06:27 a.m., WO #4 took a few steps into the parking lot towards the Mercedes. He appeared to speak to SO #1 and a man’s voice was heard to say, “That’s him.” Voices were heard to shout, “Get out of the car, get out of the car, get out of the car now, get out of the car.” WO #4 turned and walked back towards the rear door of the pub.

At 1206:33 a.m., a uniform police officer walked from the passenger side across the front of the police cruiser. The police officer held a flashlight in his left hand and pointed it towards the Mercedes. He had his right hand across his chest as if using his portable radio microphone. WO #4 turned back and looked in the direction of the white Mercedes. Voices were heard continually shouting, “Get out of the car, get out of the car.”

At 12:06:37 a.m., two uniform police officers walked from the driver’s side towards the front of the white Mercedes. As they reached the front of the Mercedes, gunshots were heard. One of the police officers [now known to have been WO #2] had a C8 rifle pointed towards the Mercedes. The flashlight attached to WO #2’s C8 was illuminated. The view of WO #2 was obscured by the second police officer [now known to have been SO #2], who had his pistol pointed towards the car. Four muzzle flashes came from SO #2’s pistol.

At 12:06:39 a.m., WO #2 backed away from the front of the Mercedes with his C8 pointed towards it. SO #2 ran down the driver’s side of the Mercedes and out of the camera’s view. WO #4 walked back towards the pub entrance door and put his fingers in his ears.

At 12:06:41 a.m., the driver’s side front indicator light on the Mercedes flashed. WO #2 lowered his C8 and ran towards the passenger side of SO #1’s cruiser and out of camera view. The communications dispatcher was heard to say “10-4 shots fired….where abouts are you [WO #3]….shots fired, shots fired…10-4 shots fired I will get an ambulance going.” WO #4 stood outside the pub and looked towards the Mercedes. At 12:06:55 a.m., a uniform police officer walked past the front of the police cruiser, from the driver’s side, with his pistol drawn and pointed in the direction of the Mercedes. A man’s voice said, “we need a rush on the ambulance we have one officer shot….get an ambulance there.” At 12:07:09 a.m., the police officer went out of camera view and returned and took up a position close to the driver’s side front headlight of the Mercedes and pointed his pistol slightly downward. WO #2 walked backwards from the driver’s side to the front of the Mercedes with his C8 pointed downward slightly. WO #2 went to the passenger side of the Mercedes with his C8 pointed towards the vehicle and opened the front passenger door.

At 12:07:25 a.m., a man’s voice said, “Show us your hands, show us your hands.”

At 12:07:26 a.m., a police officer [now known to have been WO #1], with his pistol drawn in his right hand walked from the driver’s side to the front of SO #1’s cruiser. WO #1 was on his portable radio and broadcast “we have a white car” and broadcasted its license plate. He holstered his pistol, took out his conducted energy weapon (CEW) and joined WO #2 at the front passenger door of the Mercedes. WO #1 walked to the front of the Mercedes and broadcast “(inaudible)…..dispatch….one shot …(inaudible)….in the passenger side of the vehicle, there is a gun under his chest, he is not moving, rush ambulance please.” The dispatcher replied, “anymore suspects?” WO #1 replied “(Inaudible)…..that’s the man that had the gun.” The radio dispatcher replied “10-4 that’s the male that had the gun.” WO #1 walked back to the front passenger door of the Mercedes and a man said, “you can see the gun here.” The radio dispatcher asked how many people had been shot. WO #1 replied, “We are trying to resolve the situation here. One person shot so far.” The dispatcher replied, “10-4 I need to confirm it is not a police officer.” WO #1 replies “(inaudible)……one officer was shot in……. the chest but he is conscious and breathing.”

At 12:09:51 a.m., WO #1 walked towards WO #4 who stood outside the back door of the pub. He turned around and walked over to WO #2 at the front passenger side of the Mercedes. WO #2 appeared to hold a handgun in his left hand and WO #1 looked at it. Both WO #1 and WO #2 walked out of camera view to the driver’s side of the white Mercedes.

At 12:10:15 a.m., SO #1’s cruiser was driven further into the parking lot and the Mercedes was no longer visible.

At 12:11:05 a.m., WO #2 stood in front of the hood of police cruiser. He had a C8 strapped across his chest and he held it with his right hand. He had a handgun in his left hand. He slung the C8 in front of his body and put the handgun into his right hand and removed the magazine. He got down onto his knees and his hands went out of camera view.

Communications Recordings

At 12:00:11 a.m., June 7, 2018, WO #4 called 911 and reported that the Complainant had left 74 Hymus Road [now known to be the Muckish Irish Pub] and the Complainant was is possession of a black semi-automatic handgun. A description of the Complainant was given.

At 12:01:06 a.m., the dispatcher broadcast the information to TPS SO #2 and WO #3, TPS SO #1 and WO #2 and TPS WO #5 and WO #6. At 12:01:53 a.m., the information was dispatched and it was unknown if the Complainant had left the area and there was no direction of the make of the vehicle.

At 12:05:48 a.m., SO #1 and WO #2 said that they were on the scene at Warden Avenue and Hymus Road and there were no persons on foot or any moving vehicles in the area. At 12:06:19 a.m., SO #2 and WO #3 advised that they had a man on the right and then there was the sound of one gunshot. The transmission was three seconds in length.

At 12:06:24 a.m., the sound of a gunshot was heard and WO #3 broadcast “shots fired, shots fired” and the sound of eight gunshots could be heard for a duration of two seconds.

At 12:06:33 a.m., the dispatcher asked “where abouts”? and WO #3 replied at the location. At 12:06:37 a.m., the dispatcher broadcast he would get an ambulance.

At 12:06:38 a.m., an unknown policeman broadcast that they require a rush on the ambulance that one police officer had been shot. At 12:07:07 a.m., WO #1 advised that they had a car right in the driveway.

At 12:07:46 a.m., the dispatcher asked if any unit could supply any information on the suspect.

At 12:07:51 a.m., WO #1 stated that one person was shot in the passenger side of the vehicle. The gun was under his chest and he was not moving. This was the man who had the gun. Put a rush on the ambulance. At 12:08:08 a.m., WO #1 stated that it’s the man who had the gun. At 12:08:39 a.m., WO #1 indicated that all police officers are accounted for. One officer shot but he is not hurt right now. Shot to the chest and he is conscious and breathing.

Materials obtained from Police Service

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

  • Communications Recordings;
  • Deceased Firearm Acquired - CFP;
  • Event Details Reports;
  • Fingerprint Charts;
  • Firearm Discharged Reports;
  • General Occurrence Report;
  • ICCS Footage;
  • Known File Impressions of Deceased;
  • Notes of SO #1, WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, and three additional police officers;
  • Police Firearms Acquired - CFP;
  • Procedure on Gathering and Preserving Evidence;
  • Procedure on Use of Force and Equipment;
  • RCMP File Cancellation of Deceased;
  • Statement of Findings;
  • Training Record (C8 Qualification)- WO #2; and
  • Training Record (Use of Force) - SO #1, SO #2 and WO #2.

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).

Analysis and Director's Decision

On June 7, 2018, just after midnight, the Complainant was shot and killed by Toronto Police Service (TPS) officers in Scarborough. The Complainant came to the attention of the TPS when an off-duty police officer called 911 after seeing the Complainant in possession of a handgun. Four TPS officers located the Complainant inside a vehicle in the parking lot of the Muckish Irish Pub and commanded the Complainant to exit the vehicle; however, he ignored them and pulled out a black handgun. The Complainant shot subject officer (SO) #1 once in the chest, but the bullet was stopped by SO #1’s bulletproof vest. SO #1 returned fire but he does not know who fired the first shot. SO #2 also shot towards the Complainant several times, and witness officer (WO) #2 (who was equipped with a C8 rifle) shot once towards the Complainant’s head. The Complainant was struck by multiple bullets and was killed.

SO #1 and SO #2 were designated as subject officers in the SIU’s investigation as it was determined that they had shot the Complainant. WO #2 was designated a witness officer because the projectile from his C8 rifle was located in the sunroof of the vehicle and it was clear that it had not struck the Complainant.

The SIU’s investigation consisted of interviews with one subject officer (SO #1), six WOs and six civilian witnesses (CWs), along with a review of police communication recordings and in-car camera system (ICCS) footage. SIU investigators also submitted cartridge casings and projectiles recovered at the scene, and articles of the Complainant and SO #1’s clothing to the Centre of Forensic Sciences (CFS) for analysis. Based on the totality of this evidence the circumstances surrounding the Complainant’s death are clear.

On the evening of June 6, 2018, the Complainant met with two friends at the Muckish Irish Pub in Scarborough. WO #4, an off-duty police officer, was inside the pub speaking with CW #4. CW #2 was also there with three of his friends. Just before midnight, CW #2 and the Complainant got into a physical altercation. Witnesses described this altercation differently, although at some point it became clear that the Complainant had a handgun. [1] The Complainant exited the pub and walked towards the rear parking lot, inviting CW #2 to take things outside as he left.

After the Complainant left the pub, WO #4 called 911 to report that the Complainant was in possession of a black semi-automatic handgun. The call occurred at 12:00:11 a.m. on June 7, 2018, and WO #4 provided the Complainant’s description. It was not known at the time whether the Complainant had left the area, and WO #4 was unable to provide a description of his vehicle or his direction of travel.

At approximately 12:01 a.m., the dispatcher broadcasted the information from the 911 call. TPS officers SO #1, SO #2, WO #2, WO #3, WO #5 and WO #6 responded.

SO #1 and WO #2 were partners that night and shared a marked police vehicle. They arrived at the parking lot behind the Muckish Irish Pub at approximately 12:06 a.m. They drove part way into the parking lot and exited their vehicle. WO #3 and SO #2 were in a marked SUV police vehicle and parked behind them. WO #5 and WO #6 were still en route when the shooting occurred.

The ICCS was activated on SO #1 and WO #2’s police vehicle and its footage showed a line of vehicles parked on the east side of the parking lot. A white Mercedes was the first vehicle in the line and partly obscured from the camera’s field of view as the police vehicle drove into the parking lot. WO #4 and CW #6 were standing near the west side of the parking lot, near the rear door of the Muckish Irish Pub. WO #4 approached the TPS officers and said “that’s him.” At this moment, WO #4 recognized the Complainant sitting in the driver’s seat of the white Mercedes and motioned the officers to the vehicle. The interaction that followed occurred primarily off camera. [2]

SO #1 and WO #2 approached the white Mercedes along with SO #2 and WO #3. SO #1 and SO #2 were equipped with Glock handguns, although it is unclear when they drew their firearms. WO #2, who was equipped with a C8 rifle, pointed his firearm at the Complainant. The Complainant reportedly looked away from the officers and towards his centre console. The officers reportedly told the Complainant to get out of the car and to show them their hands. The Complainant did not comply and rolled the driver’s side window up.

WO #2 stepped to the left, in front of the vehicle, to get cover and SO #1 approached the driver’s side door with his service pistol in his hands. SO #2 stood next to SO #1 near the front driver’s side bumper. SO #1 reached to open the door and was surprised to find that it was unlocked.

At this moment, both SO #1 and WO #2 reported observing the Complainant with a handgun. SO #1 said the gun was pointed at him and he felt that his life was in danger. A single “pop” was heard and SO #1 felt what he described as a “torpedo” hitting his chest. SO #1 also discharged his firearm towards the Complainant but he was unsure who fired first. He described shooting the Complainant as a reaction to seeing the gun pointed at him. SO #1 was also unsure how many times he fired, although the physical evidence suggests he shot his gun three times but that the last bullet jammed. [3]

WO #2 recalled seeing the Complainant shoot SO #1. He described hearing a single shot, seeing the Mercedes’ driver’s window shatter and seeing SO #1 bend over and grab his upper left chest. WO #2 immediately trained the red light of his C8 rifle on the Complainant’s face and took one shot from a distance of about two feet. [4] As he did this SO #2, who stood to his right, also unleashed a volley of shots towards the Complainant. [5]

WO #3 was standing about 30 feet away and witnessed the altercation. He saw the Complainant rolling down his window and heard someone shout “gun” followed by several gunshots. SO #1 took a couple of steps back and appeared to be shot. WO #3 did not discharge his firearm because there were other officers in front of him.
The shooting was also witnessed by a CW and several other witnesses also heard the shooting. WO #4 was in the parking lot, walking back to the pub, when he heard “lots of gunfire” coming from multiple weapons. He said the shots occurred over a five second interval. At first he heard one shot and then multiple shots – the first shot sounded different. [6]

The sound of gunfire was recorded on the police radio communications which captured the sound of ten gunshots between 12:06:19 a.m. and 12:06:33 a.m. – a 14 second period. [7] It was quickly broadcasted that shots had been fired, that there should be a rush on an ambulance, that one police officer was shot and that one person was shot inside a vehicle.

After the shooting, SO #1 moved back in shock. He repeated aloud that he had been shot and looked down but could not see any blood. He noticed that a bullet was jammed in his service firearm.

The Complainant had slumped over, face down, in the front passenger seat of the vehicle. His clothing and face were bloody and a handgun was still underneath his left torso.

WO #1, a sergeant, was near the Muckish Irish Pub when he heard the exchange of gunfire. He drove to the scene and ran to the parking lot with his service pistol drawn. When he arrived SO #1 was still near the front driver’s corner of the white Mercedes and told him that he had been shot but that he was okay. WO #1 instructed SO #1 to move away from the scene.

WO #5 and WO #6 also arrived on scene and assisted with removing the Complainant from the vehicle. WO #6 entered the rear driver’s side of the Mercedes, WO #5 went into the front driver’s side and WO #3 went into the front passenger side. WO #2 approached the passenger door and reported seeing the Complainant take three shallow breaths. He kept his C8 trained on him. WO #1 also approached the vehicle with his conducted energy weapon drawn. WO #2 saw the muzzle of a firearm protruding from under the Complainant’s left chest and WO #3 removed the firearm. WO #2 said that WO #3 set the firearm on the pavement next to the vehicle, but WO #6 said that WO #3 placed the firearm on the floorboard of the passenger’s side of the Mercedes.

The Complainant was handcuffed and his body was moved out of the driver’s side door and placed onto the ground. His clothing was cut from his body and a black firearm holster fell from his waistband. SO #2 and WO #3 started chest compressions.

WO #2 noticed that there were civilians in the parking lot and picked up the Complainant’s firearm with his ungloved hands. He went to the front of his police vehicle and removed the magazine in front of the ICCS. He said he was not detailed to clear the Glock and he picked up the gun in the heat of the moment; however, WO #1 indicated to the SIU that he ordered WO #2 to seize the firearm and prove it safe. In any event, WO #2 reportedly placed the firearm, its magazine and a spent shell into an evidence bag which he secured in the trunk of his cruiser.

The EMS eventually arrived and transported the Complainant to the Scarborough General Hospital (SGH) where he was pronounced dead. A post mortem examination was performed on his body on June 8, 2018, and the cause of death was found to be multiple gunshot wounds. It is unknown if SO #1 or SO #2, or both, ultimately shot the bullets responsible for the Complainant’s death.

SO #1’s ballistic vest was seized by the SIU and a projectile was recovered from the left chest area of the vest. The bullet had pierced SO #1s memo book and shattered the glass on his cellphone which he kept in his left chest pocket. SO #1’s skin was not pierced by the bullet but he reportedly had a red mark close to his heart.

The SIU also examined the white Mercedes and noted that there were projectiles, cartridge cases and large amounts of money in the front passenger seat area. There was a purse on the seat that contained two fully loaded Glock 9mm magazines. Two large capacity magazines, capable of holding 50 bullets, were also found in the vehicle.

The question that must be asked in these circumstances is whether SO #1 and SO #2 were acting lawfully when they discharged their firearms at the Complainant, resulting in his death. In my opinion, their use of force falls clearly within the scope of force that police officers are permitted to use by ss. 25(1) and (3) of the Criminal Code.

Pursuant to section 25(1) of the Criminal Code of Canada, a police officer is, if he or she acts on reasonable grounds, 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 any one under that person’s protection from death or grievous bodily harm.

As such, in order for SO #1 and SO #2 to qualify for protection from prosecution under section 25, it must be established that they were in the execution of their lawful duties, that they was acting on reasonable grounds, and that they used no more force than was necessary to effect their duty. Furthermore, because the officers used force likely to cause death or grievous bodily injury when they shot the Complainant, subsection 3 imposes the additional requirement that they believe on reasonable grounds that this level of force was necessary in order to preserve themselves or another person from death or grievous bodily harm.

It is clear that SO #1 and SO #2 were acting in accordance with a lawful duty when they responded to a 911 call reporting that the Complainant was in possession of a handgun. The officers had reasonable grounds to believe the Complainant was in possession of a firearm contrary to s. 91(1) of the Criminal Code and could arrest him pursuant to s. 495(1) of the Criminal Code. The officers were also acting in accordance with their common law duty to protect life (see R. v. Godoy, [1999] 1 S.C.R. 311) by investigating the call related to a firearm and attempting to arrest the Complainant, who was identified as the suspect by WO #4.

With respect to the other requirements pursuant to sections 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.

Further, the court sets out a number of other legal principles gleaned from the legal precedents cited, including the following:

(a) 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.
(b) "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).
(c) 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.
(d) "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, I must accordingly determine whether:

(1) SO #1 and SO #2 believed that it was necessary to discharge their firearms because they were at risk of death or grievous bodily harm from the Complainant; and
(2) Whether their subjective belief was objectively reasonable, or, in other words, whether their actions would be considered reasonable by an objective bystander who had all of the information available to them at the time that they discharged their firearms.

On the evidence before me, I have no hesitation finding that SO #1 and SO #2 believed the use of lethal force was necessary because they were at risk of death or grievous bodily harm. SO #1 said that he felt his life was in jeopardy when he saw the Complainant point a handgun at him. SO #2 did not provide the SIU with a statement which, in other circumstances, might make it challenging to assess his subjective belief in the risk of harm. However, WO #2 was standing next to SO #2 and said he saw what appeared to be a firearm in the Complainant’s hands, heard the sound of a gunshot and saw SO #1 react as if he had been shot. I conclude that these circumstances were also apparent to SO #2 and that the only reasonable inference is that he subjectively perceived a risk of death or grievous bodily harm to SO #1, himself and others present at the scene.

I can also readily conclude that it was objectively reasonable for the officers’ to believe that shooting the Complainant was necessary because they were at risk of death or grievous bodily harm. The TPS officers were aware that they were responding to a 911 call reporting that the Complainant was in possession of a firearm. They were directed to the Complainant who was in the Mercedes and commanded him to exit the vehicle, but he ignored them. When the Complainant was confronted by SO #1, the evidence establishes that he produced a firearm and pointed it at him. SO #1 does not know if he or the Complainant fired the first bullet, although a witness said that the Complainant fired the first bullet and WO #2 and WO #4 said the first bullet sounded different than the gunfire that followed. Regardless of whether the Complainant or SO #1 fired the first shot, I am satisfied that an objective bystander would believe the officers shooting the Complainant was justified in these circumstances. The Complainant pointed a firearm at SO #1, creating a real risk of immediate and significant harm (including death) to SO #1. The officers were entitled to act accordingly to protect themselves. I also note that, although the police officers shot upwards of twenty times, all the evidence establishes that this shooting occurred over the course of seconds and that during this period the Complainant was also shooting his gun. [8] In these circumstances, the police officers returning fire until they were satisfied that the Complainant was no longer a threat was absolutely necessary, proportional and justifiable.

In summary, I am unable to find that I have reasonable grounds to believe that either SO #1 or SO #2 committed a criminal offence in relation to the Complainant’s death. It is clear that the Complainant produced a firearm and shot SO #1. Irrespective of who shot first, the Complainant presented a grave risk to SO #1 when he pointed a firearm at him. As such, the officers shooting at the Complainant to neutralize that threat falls clearly within the scope of force permitted by law. Thus, no charges will issue and the case will be closed.


Date: March 28, 2019


Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) Three witnesses inside the bar observed the Complainant in possession of a handgun. Additionally, CW #2 who did not see the gun, did see the Complainant motion to his waistband as if he had a handgun. [Back to text]
  • 2) The ICCS captured several male voices shouting “get out of car”, SO #2 and WO #2 pointing their firearms towards the vehicle and four muzzle flashes emanating from SO #2’s handgun. The Complainant is not visible inside the vehicle. [Back to text]
  • 3) SO #1’s Glock 22 had a total capacity of 15 bullets although he reported that he loaded each magazine with 14 bullets. After the shooting, SO #1’s handgun had 11 bullets in its magazine and one jammed in the chamber, consistent with him firing his handgun three times. The CFS Firearms Report also confirmed, within the limits of practical certainty, that three of the cartridge cases submitted to CFS for testing were fired from SO #1’s handgun. [Back to text]
  • 4) The physical and forensic evidence confirmed that WO #2 took a single shot. One .223 calibre cartridge case was recovered from the scene and, although it could not be matched definitively to WO #2’s C8 rifle, it could not be excluded. WO #2’s C8 rifle had a capacity for 28 rounds and, after the shooting, it contained 26 bullets in its magazine and one in its chamber – consistent with one shot having been fired. [Back to text]
  • 5) SO #2 is believed to have discharged his Glock 22 between 13 to 16 times. After the shooting, SO #2’s handgun had 13 bullets in its magazine and one in its chamber. An empty magazine was also found at the scene. Provided each magazine was filled to their capacity of 15 rounds, SO #2 discharged his handgun 16 times. However, the CFS Firearms Report concluded, within the limits of practical certainty, that 13 of the submitted cartridge cases were fired from SO #2’s handgun. [Back to text]
  • 6) WO #2 also said that the first shot was different and sounded “muffled.” [Back to text]
  • 7) It should be noted that the broadcast was not continuous and had gaps where nothing was transmitted. It is quite possible that other shots were fired during this period. [Back to text]
  • 8) The SIU discovered four 9 mm cartridges located inside the Mercedes which belonged to the Complainant’s handgun, which was a Glock 26. The handgun’s magazine had a capacity for ten rounds and five rounds were in the magazine. The CFS Firearms Report also concluded that the four cartridge cases were found, within the limits of practical certainty, to have been fired by the Complainant’s Glock 26. [Back to text]