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SIU Director’s Report - Case # 19-OFI-193

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 serious injuries sustained by a 26-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 13, 2019, at 9:15 p.m., the York Regional Police (YRP) notified the SIU of the serious injury sustained by the Complainant during a high-risk takedown an hour prior. The YRP reported that at 8:20 p.m., police officers were following a vehicle on Steeles Avenue West. The vehicle had been reported stolen from Windsor and was traveling westbound towards Islington Avenue. The vehicle became stopped in traffic and during the arrest, shots were fired by one YRP police officer and the Complainant suffered non-life-threatening injuries.

The Team

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

Complainant:

26-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 Notes reviewed, interview deemed not necessary
WO #4 Interviewed


Subject Officers

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


Evidence

The Scene

The arrest and shooting of the Complainant occurred on Steeles Avenue West at the intersection of Islington Avenue.

Scene DiagramScene diagram

Physical Evidence

Figure 1- The belt of the SO, including his use of force options.

Figure 1- The belt of the SO, including his use of force options.

Forensic Evidence


Centre of Forensic Sciences (CFS) Chemistry Report


On October 7, 2019, CFS issued their report on the examination of the Neon’s windshield. The vehicle driven by the Complainant had been delivered to the CFS for examination of the impact holes to the windshield in order to determine the sequencing in which the impacts were made.

Figure 2 - The bullet holes in the windshield of the Complainant's Neon.

Figure 2 - The bullet holes in the windshield of the Complainant's Neon.

There were seven impacts to the windshield labelled 2 to 8 and start at the lowest impact and moving upwards. (Impact #1 was to the hood of the vehicle). The diagram below shows the approximate location of the impact site and the corresponding number. The Forensic Scientist reported that:

  • impact 8 was before 7.
  • impact 7 was before 6.
  • impact 6 was before 5.
  • impact 3 was before 4.
  • impact 4 was before 5.
It could not be determined if impacts 3 and 4 occurred before or after impacts 6, 7, or 8. the sequence of 2 could not be determined.

Figure 3 - A diagram labelling the bullet holes in the windshield and showing order of impact.

Figure 3 - A diagram labelling the bullet holes in the windshield and showing order of impact.


Firearms Report


The Firearms Report from the CFS was received by the SIU on November 1, 2019. The purpose of the test was to determine the match of the eight cartridge cases found at the scene and in the suspect vehicle to a police firearm.

The examination established that all eight cases were associated with the SO’s handgun.

Video/Audio/Photographic Evidence


In-Car-Camera System (ICCS) Video Summary-WO #2


On August 13, 2019, at 8:20 p.m., WO #2 drove onto an open plaza lot on Steeles Avenue West. He positioned his cruiser at the lot entrance facing southbound. Westbound vehicular traffic on Steeles Avenue was heavy. Neither his roof lights nor siren were activated.

A compact burgundy Neon, later known to be a stolen vehicle, travelled westbound on Steeles Avenue in front of WO #2’s vehicle. The Neon was in the second lane from the north curb. A white Ford Escape, driven by WO #4, followed westbound in the second lane from the north curb. Two vehicles were between the Escape and the Neon.
WO #2 attempted to enter Steeles Avenue West but a white SUV cruiser, driven by the SO, accelerated in front of him in the first lane of the north curb. Neither the SO’s cruiser lights nor siren were activated. WO #2 entered onto Steeles Avenue West and followed the SO’s cruiser.

The SO was in the first lane from the north curb. This lane became a turning lane for traffic turning north onto Islington Avenue. The SO’s cruiser lights were now activated. The SO angled his cruiser in front of a stopped dark compact vehicle. His cruiser was positioned on a 45-degree angle and was in its turning lane and into the second lane from the north curb. The SO exited his cruiser. His gun was unholstered and he ran towards the stolen vehicle. Voices heard off camera shouted, “Get out of the car, get out of the car,” and, “Put the car in park, put the car in park, put the car in park.” The SO was now in camera view and quickly walked backwards. Both of his hands held the handgun and his arms were 90 degrees to his body parallel to the ground.

The SO walked backwards in front of his cruiser and behind a red SUV. The stolen Neon was heard with its engine revving high, then low. The Neon drove towards the SO as he continued to walk backwards away from the Neon. As the SO backpedaled, he fired eight rounds into the windshield of the Neon.

The Neon accelerated forward and rammed the driver’s side of the red SUV. The Neon’s engine continued to rev high and low. The SO was not struck by the Neon because he moved to his left. A police officer, believed to be WO #2, yelled, “Shots fired, shots fired, shots fired.” The Neon’s engine was still revving. The driver, now known to be the Complainant, appeared to be incapacitated. Either WO #1 or WO #4 yelled, “Get out of the car.”


ICCS Video Summary - the SO


The SO’s vehicle was mobile in the north curb lane of Steeles Avenue West. A red SUV civilian vehicle was directly in front of the SO’s vehicle and slowed to a stop at Steeles Avenue at Islington Avenue. The SO’s police vehicle was stopped at a 45-degree angle from the first lane at the north curb, into the second lane from the north curb.

Unidentified voices, believed to be WO #1 and WO #4, yelled, “Get out of the car, get out of the car. Put the car in park, put the car in park.” The SO exited his vehicle off camera. WO #1 and WO #4 yelled, “Police don’t move. Police don’t move.” The engine of the stolen Neon was heard revving, up and down, multiple times.

The SO backpedaled and came into camera view. He walked backward between the front of his SUV and the rear of a red SUV. The SO had his service firearm out to the front and pointed left, towards the Neon. The Neon entered the field of view from the left and moved quickly towards the SO. The SO backpedaled to the right of the field of view and fired several shots at the Neon. Gun shots are heard as they are discharged.

The front passenger side corner of the Neon rammed the stopped red SUV, at the driver’s back bumper. The SO was between the two vehicles and avoided being struck by the Neon.

The Neon continued to rev its engine after being hit by the rounds. The SO moved off camera to the right.

WO #2 yelled, “Shots fired. Shots fired. Vehicle still revving its engine. Driver appears to be incapacitated. Female holding onto the driver.” Either WO #4 or WO #1 yelled, “Get out of the vehicle, get out of the vehicle. Walk forward to me.” The SO was now at the front of the Neon and re-holstered his firearm. The Neon blocked the camera view, as police officers started CPR on the Complainant, while the SO watched. The SO stated, “He drove right at me.”

Communications Recordings

On August 13, 2019, at 8:14 p.m., WO #1 broadcast that he and WO #4 were following a suspicious vehicle on Steeles Avenue West. The police officers were operating an unmarked SUV at the time. Within a minute, the vehicle was confirmed to have be stolen from Windsor the previous day. The stolen vehicle continued on Steeles Avenue West and passed Old Weston Road at 8:18 p.m. At 8:20 p.m., WO #1 aired a brief description of the two occupants. At 8:21 p.m., the stolen vehicle became stopped in traffic at the intersection of Steeles Avenue West at Islington Avenue. Shots were fired, and emergency medical services requested.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the YRP:
  • Call History;
  • General Occurrence with Stolen Vehicle Report;
  • General Occurrence;
  • Notes of all witness officers;
  • Two ICCS videos from two involved police cruisers; and
  • The communications recording.

Incident Narrative

The material facts in question are evident on the information collected by the SIU, which included statements from a number of police and non-police witnesses present at the time of the shooting, data derived from forensic examination of the SO’s firearm and cartridge cases recovered from the scene and, critically, video recording of the incident captured by cruiser cameras. At about 8:15 p.m. on August 13, 2019, WO #1 and WO #4 were together on patrol in an unmarked police cruiser traveling west on Steeles Avenue West when their attention was drawn to a Neon vehicle. The vehicle overtook them traveling upwards of 100 km/h and was cutting in and out of traffic. The officers followed the vehicle, ran a check on its licence plate and learned that it had been reported stolen the day before. They decided to stop the vehicle when an opportune time presented itself and asked for the assistance of officers in marked cruisers.

The Complainant was driving the Neon. With him in the passenger seat was CW #1. As the Complainant came to a stop at a red light on Islington Avenue, WO #4 pulled his cruiser directly behind the Neon and called for a takedown of the vehicle over the radio. By that time, two marked police SUVs had responded and were ready to participate in the vehicle stop: one driven by the SO, the other by WO #2. WO #1 and WO #4 were the first officers out of their vehicle. WO #1 went to the passenger side and told CW #1 to show him her hands. She did so. WO #4 approached the driver’s side door of the Neon and repeatedly ordered the Complainant to put his vehicle in “park”. As WO #4 did so, the SO exited his vehicle, which he had stopped in the westbound curb lane angled toward the Neon, and positioned himself in front of the vehicle. Each of the officers had their guns drawn and pointed at the Neon. The Complainant did not place his vehicle in park or raise his hands. Rather, he accelerated forward and to the right in an effort to flee the scene. As he did so, the SO fired his weapon eight times in the direction of the Complainant, striking him five times through the Neon’s windshield. The Complainant’s Neon struck the driver’s-side rear of a vehicle stopped in front of it and to the right, and came to a stop.

The Complainant was removed from the Neon by WO #2 and WO #4. He was arrested for theft and attempted murder. The officers provided the Complainant first aid until the arrival of paramedics, whereupon he was transported to hospital. CW #1 did not suffer any serious injuries as a result of the incident.

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.

Analysis and Director's Decision

On August 13, 2019, the Complainant was shot multiple times in the course of his arrest by the SO of the YRP. The Complainant was driving a Plymouth Neon at the time. He was taken from the scene to hospital and treated for gunshot wounds. On my assessment of the evidence, I am satisfied there are no reasonable grounds to believe that 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 insofar as the force does not exceed what was reasonably necessary in the execution of an act that they were required or authorized to do by law. Where the force in question was intended or likely to cause death or grievous bodily harm, as was the case in the SO’s shooting of the Complainant, section 25(3) further provides that such force is not justified unless it was applied in the reasonable belief that it was necessary to protect against a threat of death or grievous bodily harm.

I begin by observing that the decision to arrest the Complainant, and to stop his vehicle in order to do so, appears to have been a lawful one. While one may question the wisdom of officers swarming the Complainant’s vehicle, with firearms drawn, at a congested intersection with plenty of uninvolved motorists in the vicinity, the fact is the officers had reliable information that he was in possession of a stolen vehicle and therefore subject to arrest. The issue turns to the propriety of the force used by the SO in aid of the Complainant’s arrest.

As was his legal right, the SO did not provide a statement to the SIU and thus the investigation is without first-hand evidence of the officer’s state of mind at the time. However, the circumstances surrounding the shooting are such that it can safely be inferred the SO discharged his weapon in the honest belief that it was necessary to do so because his life was at stake. The video recording of the shooting is especially compelling. It establishes that the Complainant’s Neon was accelerating forward in the direction of the SO, prompting the SO to start shooting as he backpedaled away from the Neon. The officer was within a metre or two of the front-end of the Neon throughout the gunfire. In the aftermath of the shooting, the SO is recorded by a cruiser camera saying to another officer that the Neon “drove right at me”, from which I take the SO was offering an explanation for his conduct rooted in a fear that the vehicle was about to strike him. On this record, I am prepared to impute a genuine apprehension on the part of the SO that shooting the Complainant was necessary to protect himself from possible death or grievous injury.

The question becomes whether the SO’s belief was reasonable in the circumstances. In my view, it was. The Complainant had no intention of surrendering peacefully when confronted by police officers. He ignored repeated commands that he place his vehicle in park and instead accelerated forward in an effort to escape despite firearms being pointed in his direction. As the Neon moved forward and to the right, or north, it placed itself in the direct path of the SO. The officer moved backward as the Neon approached him and discharged his firearm in close proximity to the vehicle as he did so. Six of the eight shots the SO fired occurred as the Neon was in motion toward him. In the circumstances, I am satisfied that the SO’s belief that a resort to lethal force was necessary to protect against a lethal threat, as the Neon bore down on him, was reasonably held throughout the first half-dozen shots.

The final two shots by the SO occurred immediately after the Neon had stopped its forward progress and essentially come to a stop. Strictly speaking, it does not appear that the SO’s life was in any immediate jeopardy at the time and his belief to the contrary was in error. Nevertheless, I accept that the officer’s mistaken belief was reasonable. Consider the speed with which events unfolded and the innate tension of the situation – faced with a vehicle at close range moving in his direction and with only split seconds at his disposal to decide how he was going to react, the dissipation of the threat apparent in hindsight was likely not as clear to the SO in the heat of the moment. Consider also the frequency of the eight shots – the gunfire occurred in quick succession with no discernible break between the first six shots and the final two. That is, the eight shots constituted in substance a single volley of gunfire. In the circumstances, I am unable to ascribe any material differences in the SO’s mindset or the reasonableness of his beliefs from shots one through eight. To do otherwise, in my view, would be to fail to pay heed to the common law dictate that police officers embroiled in dangerous situations are not expected to measure their responsive force with precision; while the law requires a reasonable and proportionate response, it does not demand an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. CA).

There are police services in the province that prohibit their officers from shooting at vehicles in motion for the sole purpose of stopping them. Presumably, the thinking is that a large moving object whose mechanical function or operating mind has been incapacitated by gunfire is a significant public safety concern. The YRP is one such service. It is important to appreciate, however, that this shooting was not such a case. The SO’s purpose in shooting at the Neon and, more specifically, the driver of the Neon – the Complainant, was not simply or even primarily to prevent its flight from police. It was, first and foremost, an act of self-defence. While it does not appear on the evidence that the Complainant intended to place the SO’s life in peril at any time, that was in fact what occurred when he drove in the officer’s direction. Moreover, while the SO set the stage to some extent for the shooting by positioning himself directly in front of a vehicle with its engine running, the criminal law is ultimately concerned with whether the force in question was justified or not at the moment of its application. With these considerations in mind, and for the aforementioned reasons, I am unable to conclude that the SO used excessive force when he shot at the Complainant, whose conduct he reasonably believed was placing his life at risk.


Date: December 9, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit