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SIU Director’s Report - Case # 18-TFI-338

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 a serious injury sustained by a 23-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 21, 2018, at 11:52 p.m., the Toronto Police Service (TPS) notified the SIU of a firearms injury, which was sustained by the Complainant. The firearms injury occurred at about 11:00 p.m. at Willowridge Road, Toronto.

The Team

Number of SIU Investigators assigned: 7
Number of SIU Forensic Investigators assigned: 3

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed


Subject Officers

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


Evidence

The Scene

The scene was an apartment complex off Willowridge Road. The entrance driveway led to a circular road (roundabout) that serviced three multilevel apartment buildings on Willowridge Road. The roadway was clear and dry and the weather was clear and cold. A number of vehicles were stopped on the driveway, which led toward an apartment building on Willowridge Road where there was a slight uphill grade.

The Complainant’s vehicle was a Honda Accord and it faced towards the apartment building. There were apparent fresh scrapes in front of the vehicle and the wheels were turned to the right. The front left tire was flat. The driver’s door was open and the window was shattered. Broken glass was found on the ground outside the driver’s door, inside the driver’s seat and into the back seat of the vehicle. The gear shift was in reverse. The front left quarter panel had a total of nine bullet strikes in it. The hood of the vehicle had two bullet strikes, and there were a total of 12 bullet strikes in the driver’s side of the windshield. Three bullet strikes were noted on the steering wheel and several more into the driver’s seat headrest. The centre area of the rear window of the vehicle was shattered and there were four holes noted in the window, along with glass fragments on the trunk lid.

The Complainant's Honda Accord with several bullet holes visible on the front left quarter panel, hood and windshield.

Figure 1 - The Complainant's Honda Accord with several bullet holes visible on the front left quarter panel, hood and windshield.

A cellular telephone was noted on the front driver’s seat, along with a black semi-automatic pistol. The pistol was found to be a Ruger .380 semi-auto pistol. There were four bullets in the seated magazine and the chamber was empty. The inside of the driver’s door, the driver’s seat, centre console and front passenger seat displayed a quantity of a red blood-like substance. The asphalt roadway immediately below the open door also displayed the same substance as did an area to the east of the vehicles. A spent .38 cartridge case was located against the front left driver’s side tire. A second .38 spent cartridge was located against the driveway curb to the north and behind the Complainant’s Honda.

A TPS unmarked vehicle, which was a Nissan Altima was a few metres west of the Honda and it faced towards the front of the Honda. There were numerous spent .223 cartridges lying on the ground on the passenger side of the vehicle, between the vehicle and the curb. An empty .223 magazine lay on the ground at the rear passenger corner of the Nissan. 
 
A second TPS unmarked vehicle, which was a Dodge Avenger, was immediately behind the Complainant’s vehicle. The front bumper of the Dodge was in contact with the rear bumper of the Honda. There were two bullet strikes in the centre of the windshield of the Dodge, but they did not penetrate the windshield. A third unmarked TPS vehicle, which was a Toyota RAV4, was immediately behind the TPS Dodge. The front bumper of the Toyota was in contact with the rear right corner of the Dodge. A fourth unmarked TPS vehicle, which was a Dodge Grand Caravan, was parked further up the hill and it faced the other vehicles east towards the back of the Nissan.

At 5:55 a.m., the pistol was removed from the Honda and photographed. It was then collected by TPS forensic identification services.

The Ruger .380 semi-auto pistol which was removed from the Complainant's vehicle.

Figure 2 - The Ruger .380 semi-auto pistol which was removed from the Complainant's vehicle.

At 6:35 a.m., the scene was turned over to the TPS with a request that the scene be preserved until SIU forensic investigators returned. At 12:29 p.m., an SIU forensic investigator arrived at TPS 23 Division. A Colt C8 rifle was photographed. Two full C8 magazines were also photographed. The live cartridges were removed and counted. Each magazine had 28 rounds in each. The C8 was also equipped with a TLR-1 HP Streamlight mounted flashlight and a red dot scope. The SO’s equipment also included his load carrying body armour with pouches that held two pair of handcuffs, a sling and pepper spray. The SO’s .40 calibre Glock 27 and three magazines with nine rounds each were photographed. At 1:07 p.m., the C8 rifle and the two full magazines for the C8 were turned over to SIU FIs.

At 1:29 p.m., daylight photographs were taken of the scene. Just west of the Dodge Caravan was an apartment building. A bedroom window of a unit on the second floor of the building faced the circular drive at the front of the building and it displayed a possible bullet strike. A small piece of copper jacket and a small piece of lead from underneath the floor heating register beneath the window and the hole was located. Blood stains from the Honda were swabbed. The .38 calibre cartridges by the front left tire of the Honda and the .38 cartridge by the curb behind the Honda were seized. The Honda was sealed and transported to a secure storage facility. All TPS vehicles were turned back over to the TPS and the scene was released.

On November 23, 2018, trajectory rods were placed in the front driver’s side quarter panel and photographed. Trajectory rods were also placed in the holes in the windshield and followed to the driver’s headrest and photographed. Trajectory rods were placed in the two holes in the hood. One rod continued into the battery. One spent .380 cartridge was located on the rear passenger seat among shattered glass. A second spent .380 cartridge was located on the front passenger floor lying next to the transmission hub. A small piece of copper was located in the headliner above and behind the rear driver’s side seat. On, November 26, 2018, all exhibits were photographed and the next day all exhibits were to be submitted to the Centre of Forensic Sciences (CFS).

Exterior trajectory examination of the Complainant's Honda Accord, depicting the paths of the bullets which hit the vehicle.

Figure 3 - Exterior trajectory examination of the Complainant's Honda Accord, depicting the paths of the bullets which hit the vehicle.


Interior trajectory examination of the Complainant's Honda Accord, depicting the paths of the bullets which hit the vehicle.

Figure 4 - Interior trajectory examination of the Complainant's Honda Accord, depicting the paths of the bullets which hit the vehicle.

Scene Diagram

Scene diagram

Video/Audio/Photographic Evidence


Closed Circuit Television (CCTV) Video Report from Willowridge Road


At 10:59:55 p.m., the Honda, which was driven by the Complainant drove up the ramp and turned to go counter-clockwise in the roundabout. At 11:00:03 p.m., a Nissan Altima which was driven by WO #2, drove towards the front of the Honda and stopped nose to nose with the Honda. The front passenger door of the Nissan was seen to open before the Nissan stopped but the passenger cannot be seen to exit. Two flashes were seen from inside the Honda as soon as WO #2, WO #4 and the SO exited the Nissan. Two persons in dark clothing were seen to crouch beside the rear bumper on the driver’s side of the Altima. At 11:00:06 p.m., a dark coloured car [now known to be a Dodge Avenger, driven by WO #7] stopped behind the Honda. The headlights from another unmarked TPS vehicle stopped behind the Dodge Avenger. At 11:00:12 p.m., the Honda reversed and collided with its rear bumper into the front bumper of the Dodge Avenger. At 11:00:20 p.m., movement was seen at the driver’s door of the Honda as the Complainant exited the Honda. At the same time two plainclothes police officers dressed in dark clothes, with visible police vests were seen to run clockwise in the roundabout from the front of the building towards the Nissan and Honda. The Complainant was seen to run in a southerly direction from the Honda. At 11:07:19 p.m., a dark coloured van [now known to be Dodge Caravan which was driven by WO #8] stopped clockwise in the roundabout, behind the Nissan.

Police Communications Recordings

The radio communications started at 10:55:33 p.m., with both members of the Major Crime Unit and West Command Gun Violence Suppression Unit conversing about setting up for the takedown. At 10:59:22 p.m., WO #8 broadcast that the target was driving down Richgrove towards Willowridge Road. At 11:00:00 p.m., a unit believed to be WO #7, advised he was behind him tight. At 11:00:30 p.m., a telephone call was received from a woman at 22 Willowridge Road. The woman advised she heard numerous shots fired and she thought the shots came from 10 Willowridge Road. There were cars outside the building and people were seen to run. At 11:00:59 p.m., WO #2 broadcast “gun violence strike.” WO #2 also broadcast “Shots fired. We need a bus. One in custody and he is bleeding.” The dispatcher asked the police officer if they required an ambulance and he replied, “Yes, rush.”

Forensic Evidence

The SO’s C8 rifle was submitted along with 28 .223 calibre cartridge cases, which were for comparison to see if the C8 rifle was the source. Also submitted were two bullets which were for comparison to see if the C8 rifle was the source. Four .38 calibre Sig cartridge cases were submitted so they could be compared to the Ruger .380 semi-auto pistol, which was to be submitted by the TPS. One damaged .38 calibre fired bullet jacket fragment, which was located under a heating register, in a bedroom of an apartment on Willowridge Road was submitted for comparison to the Ruger.

The results of testing showed that there was an agreement of class and individual characteristics between the C8 rifle and the 28 .223 calibre cartridge cases. The two lead bullet cores were examined and there was no identification value. There was also an agreement of class and individual characteristics between the 4 .38 calibre cartridge cases and the Ruger semi-automatic pistol. There was also an agreement of class and individual characteristics between the damaged .38 calibre fired bullet jacket fragment located in the apartment and the Ruger semi-automatic pistol.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Drawing of Scene-WO #2;
  • Firearm Discharge Report (x2);
  • General Occurrence-the Complainant;
  • Google Maps with markings by WO #5, WO #6, WO #7, WO #8, WO #9.
  • CAD Event Details Report (x3);
  • CAD-Search;
  • Notes of all witness officers;
  • Police Firearm Acquired-CFP;
  • Procedure-Use of Force;
  • Telewarrant to Search Car-the Complainant;
  • Telewarrant to Search-the Complainant;
  • Use of Force Qualifications-the SO;
  • Witness Statement-CW #3; and
  • Communications recordings.

Incident Narrative

The material events in question are clear on the weight of the reliable information collected by the SIU in the course of its investigation, which included statements from the Complainant, a number of TPS officers who were in and around the area of the shooting at the time and several civilian witnesses. The investigation also benefitted from video recordings of the incident captured by surveillance cameras in the area, and data gleaned from the SIU’s forensic examination of the scene and items of evidence. At about 11:00 p.m. on November 21, 2018, the Complainant drove his Honda Accord onto the roundabout in front of an apartment building at Willowridge Road. He was being tracked by a number of TPS officers, who were intent on searching his vehicle for a firearm. One of those police officers, WO #2, was in an unmarked Nissan vehicle in a parking area outside the building. Upon receipt of the “takedown” signal, WO #2 drove counterclockwise in the roundabout so as to block the Complainant’s forward progress. With both vehicles stopped and facing each other nose-to-nose, WO #2 exited with his firearm drawn and pointed in the direction of the Complainant. The SO and WO #4, seated in the Nissan’s front passenger and rear driver side seats, respectively, also exited with their guns drawn. WO #2 and WO #4 were in possession of Glock semi-automatic pistols; the SO was pointing a C8 rifle. Within seconds of their exit, the SO discharged his C8 rifle 28 times in the direction of the Complainant, still seated in the driver seat of the Accord. The discharges struck the Complainant’s vehicle, including the hood and driver’s side of the windshield. Bullet strikes were also noted on the Honda’s steering, the driver’s seat headrest and the rear window, which was shattered. When the gunfire stopped, the Complainant exited his vehicle, traveled a short distance east and south, and was confronted by other officers. At their commands, the Complainant went to the ground and was handcuffed. Paramedics attended the scene and took the Complainant to hospital, where he was diagnosed with multiple lacerations and injuries to his face and both hands.

There was some evidence suggesting that the Complainant did not fire a gun at the officers, but this evidence is belied by the physical evidence. Immediately after the Complainant’s arrest, a Ruger .380 semi-automatic pistol was observed by TPS officers on the driver seat of the Honda, where it rested until it was seized by SIU forensic investigators. Four spent cartridge cases recovered by the SIU – two on the roundabout beside the Honda and two located inside the vehicle – were determined based on ballistic testing to have been fired from the Ruger. The same was true of a fired bullet jacket fragment discovered in an apartment on Willowridge Drive – it came from the Ruger. The apartment unit was located slightly north and west of the Honda and Nissan vehicles, suggesting the bullet’s trajectory would have crossed paths with the immediate area of the SO, WO #2 and WO #4 after they exited their Nissan. In the result, the evidence establishes that a firearm was located in the Complainant’s vehicle, that the firearm had been discharged in the direction of the SO, WO #2 and WO #4, and that the Complainant was the person who fired it.

The officers who confronted the Complainant were acting on the strength of a search warrant which authorized the search of the Complainant’s Honda for a firearm. The Complainant was being investigated for an incident on November 19, 2018 involving the unlawful possession of a handgun. At about 10:00 p.m. of the day in question, members of the TPS West Command Gun Violence Suppression Unit (WCGVSU) conducted a briefing at which was discussed the planned execution of the warrant. Officers with the Major Crime Unit were included in the briefing and enlisted to assist the WCGVSU. By the end of the briefing, it was agreed that the Complainant would be boxed-in by TPS vehicles in the roundabout of his apartment building, at which point officers would approach him and any passengers at gun point and have them exit the vehicle ahead of its search.

At about 11:00 p.m., the Complainant was observed by officers driving his Honda west along Richgrove Drive toward his apartment building. WO #8 of the WCGVSU trailed the Honda as it entered onto the roundabout and called for the takedown. As WO #2 rolled out to block the front of the Nissan, WO #7 maneuvered his unmarked Dodge Avenger behind the Complainant’s vehicle. As this was occurring, gunfire was exchanged between the Complainant, from the inside of the Honda, and the SO, from the outside of his Nissan. WO #2 and WO #4 took cover behind their vehicle and were soon met in that location by the SO, who had emptied his magazine and was reloading his weapon. Bleeding heavily from his face and hands, the Complainant exited the Honda and was confronted a short distance away by other officers, who quickly took him into custody without further incident. Neither WO #2 nor WO #4 fired their handgun in the exchange; in fact, the only officer who discharged a firearm was the SO.

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 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.

Analysis and Director's Decision

On November 21, 2018, the Complainant was struck multiple times by gunfire as TPS police officers attempted to execute a search warrant for his vehicle. The SO was the only TPS officer who discharged his firearm, inflicting serious injuries on the Complainant. For the reasons that follow, there are no reasonable grounds to believe the SO committed a criminal offence in connection with the Complainant’s injuries.

Whether pursuant to section 25(3) of the Criminal Code, setting the parameters for the justified use of lethal force by police officers in the lawful discharge of their duties, or section 34, which prescribes the limits for the justified use of force by anyone in defence of oneself or another from assault, I am satisfied on reasonable grounds that the SO acted lawfully when he discharged his weapon at the Complainant, inflicting serious injuries in the process. He and the other officers were within their rights in approaching the vehicle to search it pursuant to a facially valid search warrant. He and his colleagues, WO #2 and WO #4, were also entitled to do so at gunpoint. They had information, sufficient to have the search warrant issued, that the Complainant was known to be in possession of an unlawful firearm. In the circumstances, they were well-advised to have their firearms at the ready in case they were required to repel a lethal threat. Regrettably, it was precisely such a risk that materialized.

Perhaps the key question in the liability analysis regarding the SO is who fired first, the officer or the Complainant. I am unable to place any weight on the suggestion that the Complainant was shot multiple times without any provocation on his part given the evidence that a Ruger, found in his vehicle, was in fact discharged four times from within the vehicle in the direction of the officers. Of course, it is arguable that those shots may in themselves have been justified in self-defence if the SO acted prematurely in firing his C8 rifle, such as might be the case if it was the officer who was the first to discharge his weapon. The weight of the evidence, however, indicates that it was in fact the Complainant who was the instigator. In WO #4’s account of what occurred, the officer observed the Complainant with a black object in his hand or hands, followed by a muzzle flash from within the Honda which he instantly associated with a shot being fired by the Complainant. WO #2’s evidence is to similar effect; he said he saw the Complainant with a gun in his hand as he approached the front of the Honda vehicle, followed by a muzzle flash inside the car. It was only thereafter, according to WO #2 and WO #4, that they heard a string of rapid-fire gunshots, most of which would have come from the C8 rifle being discharged by the SO. Importantly, the officers’ evidence is generally consistent with the accounts proffered by the civilian witnesses who described hearing the exchange of gunfire. Finally, video recordings of the incident captured by the apartment building’s surveillance cameras, which were not of great quality given it was dark outside, the distance to the takedown and the glare created by the vehicles’ headlights, did appear to capture two, and possibly more, flashes of light emanating from inside the Honda just as the SO, WO #2 and WO #4 exited their vehicle. While these may have been caused by the involved vehicles’ headlights and/or the flashlight affixed to the SO’s C8 rifle, they are arguably also consistent with muzzle flashes from the Complainant’s handgun. On this record, I accept that the SO discharged his firearm in the reasonable apprehension that doing so was necessary to protect himself and his partners from death or grievous bodily harm at the hands of bullets fired first by the Complainant. The officer was authorized to search the Complainant’s vehicle and to take steps to do so in safety. Confronted by bullets being discharged in his direction, the SO was entitled to meet the threat with lethal force of his own. Fortunately for all involved, no one was killed.

The question turns to whether the number of shots fired by the SO was excessive. If the decision to shoot was justified at the outset, as I am reasonably satisfied it was, did firing 28 shots in total cross the line? While the number of bullets fired in the direction of the Complainant undoubtedly constituted a significant level of lethal force, they would have occurred over a span of seconds, during which time, the evidence indicates, the Complainant fired at least one additional shot beyond his initial volley. Moreover, though the Complainant was injured as the result of the officer’s gunfire, the fact he was able to reverse his vehicle and then exit from it after it was over indicates he was not incapacitated by the SO’s discharges; that is to say, he remained a legitimate danger as long as he had access to the firearm. In light of these considerations, I am unable to reasonably conclude that the threat faced by the SO throughout the exchange of gunfire materially differed from his first shot to the last so as to call into question the necessity of his final rounds. To do otherwise, in my view, would be to fail to recognize that the law does not impose a standard of perfection on officers who find themselves involved in violent and dynamic circumstances; what is required in the heat of the moment is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010]1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.).

In the final analysis, confronted by an individual armed with a gun and firing it in his direction, the SO was legally justified under section 25(3) and 34 of the Criminal Code in firing back in the reasonable belief that doing so was necessary to protect himself and his colleagues from a lethal threat. Consequently, there are no grounds to proceed with charges in this case.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit