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SIU Director’s Report - Case # 19-TFI-023

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 50-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On January 30, 2019, at 9:42 p.m., the Toronto Police Service (TPS) reported the following:

On January 30, 2019 at 7:45 p.m., TPS officers from the Public Safety Response Team responded to Sam’s convenience store located on 236 Sherbourne Street in Toronto for a man [now known to be the Complainant] with a knife. The Complainant was chasing customers inside the store. Two TPS police officers entered the store and one of them was carrying a modified shotgun which discharged less than lethal projectiles. The shotgun was discharged several times and struck the Complainant in the left hand.

The Complainant was taken to St. Michael’s Hospital where he was diagnosed with a fracture to his left hand. 
 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned:

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Notes reviewed, interview deemed not necessary


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

Sam’s convenience store was located at 236 Sherbourne Street. The front entrance of the store was located on the east side of the store and the front cashier register counter was located to the north of the store. There were three rows of shelves that contained merchandise / groceries in each one and each row was oriented from north to south of the store. On the south side of the store were refrigeration units that contained frozen grocery items.

Three shot shell cases were found on the floor between the north end of the centre row of shelves and the front counter. There were also three soft projectiles and shot shell wadding on the floor between the centre row of shelves and the row closest to the front door.

A knife was located on the floor between the row of shelves furthest west of the store and the refrigeration units along the west wall. A large blood stain was located on the floor near the southeast corner of the store. It appeared that several merchandise items had been knocked off the shelves and onto the floor and there was blood staining on the floor from the front of the aisle to the rear.

Figure 1 - Interior of Sam's Convenience Store. Three shotgun shells are visible on the floor.
Figure 1 - Interior of Sam's Convenience Store. Three shotgun shells are visible on the floor.



Physical Evidence


Figure 2 - The knife that was found inside Sam’s Convenience Store.
Figure 2 - The knife that was found inside Sam’s Convenience Store.


Figure 3 - The SO's less-lethal shotgun.
Figure 3 - The SO's less-lethal shotgun.

Video/Audio/Photographic Evidence


Sam’s Convenience Store Video Footage Summary


On January 31, 2019, SIU investigators were able to secure a copy of video footage from Sam’s convenience store. CW #2 indicated that the timestamp on the video was not synchronized with the actual time. It was later determined that the timestamp of the video was eight minutes and 33 seconds behind the actual time of when the incident took place.

The following is a summary of what the video footage revealed on January 30, 2019:

  • At 7:34:35 (actual time 7:43:08) p.m., there were multiple customers milling around the front area of the store. The Complainant entered via the main entrance door. He made aggressive and threatening gestures towards the customers. The Complainant had a large knife in his right hand. The blade was parallel with the ground and pointing behind him;
  • There was pushing and shoving between the Complainant and the other customers;
  • The Complainant appeared to chase individual customers around the store with the knife. He was pointing the knife at some customers and ignoring others;
  • The Complainant walked down aisle two and knocked several items off the shelves onto the floor;
  • As he walked around the store, the Complainant’s mouth was opening and closing as if he was yelling;
  • At 7:36:04 (actual time 7:44:37) p.m., CW #2 was on the phone;
  • At 7:36:40 (actual time 7:45:13) p.m., the Complainant and a male customer struggled at the front of the store. The Complainant raised the knife towards the customer’s head;
  • At 7:38:00 (actual time 7:46:33) p.m., the Complainant continued to chase customers around the store; one customer in particular he appeared to focus on had his hair in a bun, and was wearing a parka with a fur-lined hood and a dark shirt with a yellow symbol on the front;
  • At 7:38:33 (actual time 7:47:06) p.m., as best viewed on camera 07, two uniformed TPS officers entered the store via the main entrance door;
  • The first police officer to enter [now known to be the SO] had a shotgun;
  • The second police officer to enter [now known to be WO #1] had a C-8 rifle;
  • CW #2 pointed towards the Complainant who was in aisle two towards the rear of the store, facing east, and interacting over the shelving display with a customer who was in aisle one;
  • The SO and WO #1 had their firearms raised and pointed in the direction of the rear of the store where the Complainant was located;
  • A customer wearing a dark parka with a reflective “X” on the back, a green shirt underneath, jeans, white runners, and a green hat, was standing at the front of the store near aisle three, watching;
  • At 7:38:37 (actual time 7:47:10) p.m., the SO stopped at the front of aisle two with his shot gun pointed down aisle two towards the rear of the store;
  • The Complainant was near the end of aisle two;
  • WO #1 stopped at the front of aisle 1 with his firearm pointed down aisle one towards where a customer was situated and towards the rear of the store;
  • As best viewed on camera 04, the Complainant turned a quarter-turn counter clockwise to face the SO. The Complainant advanced a few steps towards the SO with his arms raised to his chest;
  • The Complainant looked directly at the SO;
  • The Complainant had his left arm bent and in front of his chest, and his right arm above his left arm. The knife was in the Complainant’s right hand. The blade was pointed down and in front of the Complainant’s left forearm. Camera 05 showed the Complainant’s movements somewhat better than camera 04 due to the angle of the camera;
  • Between the time stamps 7:38:39 (actual time 7:47:12) and 7:38:41 (actual time 7:47:14) p.m., about six to eight seconds after entering the store, and as the Complainant continued looking at the SO and moved towards him, the SO discharged his firearm four times in the direction of the Complainant. In the video, puffs of smoke were visible from the shot gun, and a projectile bounced off the Complainant;
  • As best viewed on camera 05, as the Complainant moved towards the SO he continued to face the SO and look directly at the SO with his arms crossed and the knife in front of him;
  • As the Complainant stopped, he turned one-quarter turn clockwise so that his left side was presenting towards the SO;
  • As best viewed on camera 07, with each discharge, the SO shuffled backwards towards the front counter;
  • WO #1 shuffled to his right towards the SO and pointed his firearm down aisle two towards the Complainant;
  • At 7:38:42 (actual time 7:47:15) p.m., the Complainant turned clockwise so his back was towards the SO. He then moved down aisle two towards the rear of the store;
  • At 7:38:45 (actual time 7:47:18) p.m., as viewed on camera 03, towards the end of aisle two, the Complainant put his right arm behind him and threw the knife to his right, over the shelving display towards the west side of the store;
  • At 7:38:46 (actual time 7:47:19) p.m., as viewed best on camera 02, the knife went over aisle three, over the shelving display between aisles three and four, and bounced off the freezers on the west wall;
  • At 7:38:47 (actual time 7:47:20) p.m., the knife landed in aisle four, spun around and came to rest;
  • At 7:38:48 (actual time 7:47:21) p.m., as best viewed on camera 01, the Complainant was at the end of aisle two at the rear of the store;
  • At 7:38:49 (actual time 7:47:22) to 7:38:53 (actual time 7:47:26) p.m., the Complainant was at the rear of the store in between aisles one and two, looking up towards the front of the store;
  • At 7:38:51 (actual time 7:47:24) p.m., the Complainant was at the rear of the store and laid down on the ground;
  • At 7:38:58 (actual time 7:47:31) p.m., the SO and WO #1 moved from the front of the store towards the rear of the store where the Complainant was lying. The SO went down aisle one and WO #1 went down aisle two; and
  • At 7:39:35 (actual time 7:48:08) p.m., six additional police officers arrived.

Communications Recordings


911 / Communications Summary


On January 30, 2019, at 7:43 p.m., CW #2 called 911 and reported that he needed the police to attend Sam’s convenience because there was a man [now known to be the Complainant] with a “big knife” and that he was trying to kill another person. While CW #2 was speaking to the operator, commotion and noise could be heard in the background.

  • At 7:47 p.m., the SO and WO #1 could be heard in the background saying several times “Police. Drop the knife.”
  • At 7:47:12 p.m., a pop sound could be heard in the background.
  • At 7:47:14 p.m., another pop sound could be heard.
  • At 7:47:15 p.m., a very clear “Drop the knife” could be heard. “Do it now” could be heard.
  • At 7:47:18 p.m., CW #2 said the police were on scene.
  • At 7:47:20 p.m., “Get on the ground,” could be heard.
  • At 7:47:27 p.m., “Let me see your hands,” “Do it now,” could be heard.
  • At 7:47:32 p.m., CW #2 hung up the phone.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Computer Aided Dispatch Event Details;
  • General Occurrence Report;
  • Notes of the SO and witness officers; and
  • Communications Recordings.

Materials obtained from Other Sources

The SIU obtained and reviewed the following material from other sources:
  • The Complainant’s medical records; and
  • Sam’s Convenience Store Closed-Circuit Television recordings for January 30, 2019.

Incident Narrative

The events in question are clear thanks to statements obtained by the SIU from the SO and his partner, WO #1, who was also present at the time of the shooting, as well as interviews with the Complainant and the two civilian eyewitnesses, and video recordings from the store’s camera system that captured the incident from start to finish. Shortly after 7:30 p.m. on January 30, 2019, CW #2 called 911 to report there was a man – the Complainant – wielding a large knife in Sam’s convenience store and threatening to kill another customer. Moments earlier, the Complainant had entered the store carrying the knife and waving it at frightened customers. He was particularly fixated on one such patron whom he chased around the store.

The SO and WO #1 were in the area when they received word of the call and the first officers at the scene, arriving within minutes. The SO armed himself with a sock gun – a shotgun loaded with less lethal ammunition consisting of granular material contained in a Kevlar sac. The weapon is designed to temporarily immobilize a subject by inflicting pain but does not penetrate the body. WO #1 took possession of a C8 rifle. The officers entered the store at about 7:45 p.m. as panicked customers were exiting. They quickly located the Complainant, who was at the rear of the store in a middle aisle, still holding the knife. With their weapons trained on the Complainant, the officers ordered him to drop the knife. The Complainant advanced toward the officers with the knife still in his right hand. The SO, standing directly in front of the Complainant, retreated backward a short distance and fired his weapon four times as the Complainant neared to within four metres of the officer.

The Complainant was struck by one and possibly more rounds from the SO’s shotgun. Following the fourth discharge, the Complainant, still standing, reversed course and walked toward the rear of the store at its southern end, throwing the knife away as he did so. The officers ordered him to the floor. The Complainant eventually complied, placing himself prone on the floor as officers moved in to secure him in handcuffs.

Aside from the less lethal shotgun rounds that were aimed in his direction, no other significant force was used by the officers in taking the Complainant into custody. The knife used by the Complainant was recovered by the SIU on the store’s floor in the aisle between the refrigeration units lining the western wall and the last row of shelving; its blade measured over 15 centimetres.

Following his arrest, the Complainant was taken to hospital where his injuries were diagnosed and treated.

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.

Analysis and Director's Decision

In the evening of January 30, 2019, the Complainant was struck by rounds fired by the SO in a convenience store located at 236 Sherbourne Street, Toronto. The impact of the rounds caused the Complainant to suffer serious injuries, including a fracture to his left hand. The Complainant was arrested shortly after the shooting. For the reasons that follow, I am satisfied there are no grounds to believe the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force is reasonably necessary in the execution of an act that they are required or authorized to do by law. Based on the information at their disposal from the 911 call and their own observations of the Complainant at the scene, it is evident that the Complainant was subject to lawful arrest for his assaultive and threatening behaviour with a knife.

I am further satisfied that the SO was legally justified in shooting the Complainant. The Complainant was armed with a dangerous weapon capable of inflicting grievous bodily harm or death. He had also demonstrated a propensity to use it prior to the officers’ arrival. The SO and WO #1 confronted the Complainant and gave him an opportunity to surrender peacefully. To no avail, they ordered him to drop the knife. Disengagement was not an option as there were people still in the store whose safety would be placed at risk were the officers to exit the premises. The SO did, however, retreat to the extent he could as the Complainant advanced quickly on him while discharging his shotgun four times at the Complainant. The SO did so, as he explained, fearing for his own life as well as his partner’s. His apprehension, in my view, was reasonable in the circumstances given the distance between him and the Complainant, the knife in the Complainant’s right hand, the confined space in which the incident unfolded, and the Complainant’s determination as he closed in on the SO. While none of the discharges felled the Complainant or were successful in directly disarming him, they did stall the Complainant’s forward progress and get his attention. Moments later, the Complainant tossed away the knife and took to the floor at the officers’ requests.

In conclusion, I am unable to reasonably conclude on the foregoing record that the force used by the SO transgressed the limits prescribed by the criminal law. Confronted with a real and imminent risk to life and limb, the officer, in my view, reasonably believed that shooting the Complainant was necessary to meet that risk and effect the Complainant’s arrest. Consequently, there are no grounds for proceeding with charges against the SO and the file is closed.


Date: November 4, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit