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SIU Director’s Report - Case # 19-TFI-070

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 an 18-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On April 7, 2019 at 8:25 a.m., the Toronto Police Service (TPS) notified the SIU of a firearm-related injury that occurred that morning. The TPS reported on that morning, TPS West Command Gun Violence Suppression Unit (WCGVSU) attended 235 Sherway Gardens Road to execute a search warrant, searching for a firearm in connection with a school shooting earlier that week. Emergency Task Force (ETF) Team 1 was also present.

ETF police officers breached the door and entered the apartment at 6:02 a.m. Two police officers engaged a male in one of the bedrooms and the male, identified as the Complainant, was shot once in the forearm by Witness Officer (WO) #1.

The Complainant was arrested for attempted murder in relation to the investigation that gave rise to the search warrant and was taken to St. Joseph’s Health Centre (SJHC) for treatment by emergency medical services.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2

Four investigators and two forensic investigators (FI)s were assigned and launched an investigation, arriving at the scene at 10:17 a.m.

As a result of information provided by the TPS, it was revealed that the Subject Officer (SO) was in fact the police officer who discharged the firearm and not WO #1. The SO was designated as a subject officer.

The Complainant was interviewed at SJHC on April 7, 2019.

The apartment scene was secured by TPS following the entry in execution of the search warrant and immediately after the shooting. The scene was subsequently examined by SIU FI prior to TPS police officers searching the premises on the strength of the warrant. The SO’s uniform and use of force options, including his TPS-issued MP5 rifle, were collected by the SIU for examination and documentation.

A canvass of the property revealed closed-circuit video recordings were captured by security cameras mounted throughout the building, including the common area corridor on the fifth floor, where this incident occurred.

Complainant:

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


Civilian Witnesses

CW #1 Not interviewed (Complainant’s Physician)
CW #2 Not interviewed (Not Available)

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 Not interviewed, but notes received and reviewed
WO #9 Not interviewed, but notes received and reviewed
WO #10 Interviewed
WO #11 Not interviewed, but notes received and reviewed
WO #12 Not interviewed, but notes received and reviewed
WO #13 Not interviewed, but notes received and reviewed
WO #14 Not interviewed, but notes received and reviewed
WO #15 Not interviewed, but notes received and reviewed
WO #16 Not interviewed, but notes received and reviewed
WO #17 Not interviewed, but notes received and reviewed
WO #18 Not interviewed, but notes received and reviewed
WO #19 Not interviewed, but notes received and reviewed
WO #20 Not interviewed, but notes received and reviewed
WO #21 Not interviewed, but notes received and reviewed
WO #22 Interviewed


Subject Officers

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


Evidence

The Scene

This incident occurred in a fifth-floor condominium at a high-rise residential building at 235 Sherway Gardens Road. The Complainant was shot in close proximity to the closet in a bedroom of the unit.

In an area on the bedroom floor there appeared to be pooling of blood in front of the sliding mirror closet door. A spent cartridge case was within the bloody spill, as was a circular damaged area to the hardwood flooring. A heavily damaged projectile was extracted from the flooring, stopped at the concrete deck immediately below the finished floor.

Physical Evidence

The Heckler & Koch MP5 submachine gun issued to the SO.

Figure 1 – The Heckler & Koch MP5 submachine gun issued to the SO.


The SO's uniform and equipment placed onto a mannequin. The placement of items was done without exact knowledge of how the SO wore the items. Placement was through common knowledge only.

Figure 2 - The SO's uniform and equipment placed onto a mannequin. The placement of items was done without exact knowledge of how the SO wore the items. Placement was through common knowledge only.

Forensic Evidence

The SO’s rifle and magazines case were collected by SIU FI at ETF headquarters after the weapon had been unloaded. The two magazines were loaded with 27 cartridges in one and 28 in the other.

The rifle, magazine and spent cartridge case were submitted to the Centre of Forensic Sciences (CFS) for examination. 

The CFS Firearms Report, dated September 17, 2019, concluded that the spent cartridge case recovered at the scene was discharged from the SO’s MP5 rifle. It further concluded that the rifle was not prone to accidental discharge.

The firearm was a Heckler and Koch MP5 (machine pistol 5) 9 mm fully automatic rifle with ambidextrous safety. That is, the safety switch can be accessed on both sides of the firearm.

The damaged projectile removed from the hardwood flooring was too damaged for examination.

Video/Audio/Photographic Evidence


Condominium Closed Circuit Camera Recordings:


Various cameras about the building recorded the police presence. Cameras outside the building and in public spaces captured the ETF team and plainclothes police officers arriving and staging on the fifth floor. A camera in the fifth-floor corridor revealed only ETF police officers initially entered the apartment. Paramedics were seen bringing a stretcher to the apartment, loading the Complainant and wheeling the stretcher to the elevator before any other police officer entered the apartment.

Communications Recordings

The communications recordings captured preparations to execute the warrant.

At 6:36:09 a.m., in the first recording of the entry, a police officer transmitted a seemingly urgent request for medics to attend the fifth floor.

In a later transmission, the dispatcher advised someone an individual was being transported to hospital for unknown reasons and that she did not know why as the police officers on scene did not report the situation over the radio.

At 7:08:12 a.m., a male asked WO #7 to call him at the station.

At 12:03:48 p.m., it was reported that police officers were en route to 31 Division station with an 18-year-old prisoner.

The transmission recordings were otherwise unremarkable and there were no recordings of the ETF members’ direct communications during the entry.

TPS Reports

The General Occurrence Report noted the Complainant struggled with the SO and WO #5 during the arrest and that “during the struggle, one of the officer’s [sic] firearm discharged striking [the Complainant] in the right forearm…”

The report also noted execution of the search warrant “yielded nothing of evidentiary value,” meaning no firearm was located.

The Firearm Discharge Report, completed by WO #1, indicated the SO’s MP5 was unintentionally discharged once during “Physical confrontation with subject.”

The Use of Force Report [1] section title “Reason for Use of Force” contained a number of options. In this case, “Protect self”, “protect public”, “effect arrest”, “prevent commission of offence”, and “prevent escape” were selected. Other options, notably, “Accidental” and “Other” that could be detailed, were not selected.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Communications Recordings;
  • Computer-Assisted Dispatch Event Details Report;
  • ETF Personal Inventory;
  • Firearm discharge report;
  • General Occurrence Summary;
  • Names and addresses of persons at 235 Sherway Gardens Road;
  • Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9, WO #10, WO #11, WO #12, WO #13, WO #14, WO #15, WO #16, WO #17, WO #18, WO #19, WO #20 and WO #21;
  • Police Firearms Acquired – Canadian Firearm Program;
  • Procedure-Executing a Search Warrant;
  • Procedure-Incidents Requiring the ETF;
  • Procedure-MP5 submachine gun;
  • Record of Arrest-the Complainant;
  • Search Warrant Briefing package;
  • Telewarrant to Search;
  • Training Record-Use of Force-the SO; and
  • Use of Force Report.

Incident Narrative

The material events in question leading to the moments prior to the shooting are not in dispute. Early in the morning on April 7, 2019, the TPS WCGVSU, led by WO #10, secured a warrant to search a condominium in the building at 235 Sherway Gardens Road. They had reason to believe that the Complainant, the suspect in a shooting that occurred outside a middle school on April 4, 2019, was present in the unit and armed with a firearm. The warrant authorized the police to search the residence and seize firearms and ammunition in connection with the shooting. 
 
Given the possible presence of firearms in the residence, WO #10 made arrangements to have Team 1 of the ETF secure the residence ahead of his team’s entry to execute the warrant. WO #1 was in charge of the ETF team. The team met with WO #10 outside the target building and were briefed on the situation. It was decided that the ETF would conduct a “dynamic entry” in the residence, a tactic whereby officers seek to neutralize potential threats via the element of surprise by rushing into a scene following the deployment of a distraction device.

About 6:30 a.m., WO #1 and his team of ETF officers used a ram to force open the door of the unit. A distraction device was then deployed in the residence just before the officers, announcing their presence and search warrant authority, entered. The SO was among the officers that gained entry. The officer, armed with an MP5 rifle, made his way to a bedroom at the southeast corner of the unit where the Complainant had been sleeping. Joined by WO #5, the SO entered the bedroom and engaged physically with the Complainant shortly before his rifle discharged.

Following the shooting, paramedics attended the unit, loaded the Complainant onto a stretcher and took him to hospital. The unit was searched for weapons with negative results.

Relevant Legislation

Section 86, Criminal Code – Careless use of a firearm

86 (1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.

Analysis and Director's Decision

The Complainant suffered a wound to the right firearm when he was arrested and shot by a TPS officer on April 7, 2019. The officer, the SO, was a member of the ETF charged with securing a residence ahead of the execution of a search warrant when the shooting occurred. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injury.

The immediate circumstances surrounding the firearm discharge are less than clear. There is some evidence the Complainant rolled out of bed upon hearing the distraction device, knelt on the floor with his hands up and was confronted by an officer. The officer kneed him in the back causing him to fall forward. This evidence further indicates the Complainant was handcuffed and prone on the floor when a second officer shot him as he was searching a nearby closet. There was, in fact, a second officer who was present at the time of the shooting – WO #5. WO #5 acknowledges that he was in the process of searching the bedroom closet when he heard a muffled pop. Turning to ask what had happened, he was told by the SO that he had not fired and then, shortly after, in an implicit admission that he had in fact discharged his weapon, that “it [the MP5 rifle] must’ve got snagged or caught on something.” According to WO #5, the SO and the Complainant were engaged in a struggle of sorts at the time of the shooting. As was his legal right, the SO declined to provide his account via an interview with the SIU or the provision of his notes.

At the outset of the liability analysis, I should say that I have no reasonable grounds to believe that the shooting was an intentional act on the part of the SO. Though the officer did not provide the SIU a statement, his utterances to WO #5 in the immediate wake of the shooting, whose recollection I have no reason to doubt, clearly suggest the SO had not intended to discharge his firearm. Moreover, the remainder of the evidence is not inconsistent with the notion of an accidental discharge. There is no evidence that the officer acted deliberately when the Complainant, while prone on the bedroom floor, was shot through the right forearm. While one cannot completely discount the possibility of an intentional shooting, the spontaneity and contemporaneity of the SO’s remarks lead me to believe the shooting was inadvertent. That being the case, the issue turns to whether the SO is criminally responsible for the Complainant’s wound on some theory of penal negligence.

The offence that arises for consideration is careless use of a firearm contrary to section 86 of the Criminal Code. As a criminal offence, mere negligence will not suffice to ground liability. What is required is conduct that amounts to something more than a simple departure from the level of care that a reasonably prudent person would have observed in the circumstances, namely, a marked deviation from a reasonable level of care: R v Gosset, [1993] 3 SCR 76. At one level, the fact that the SO’s firearm was discharged unintentionally suggests some level of carelessness on the officer’s part. Needless to say, the MP5 rifle was a dangerous weapon and the officer was obliged to ensure he maintained proper care and control of the firearm so as to avoid accidental discharge and the prospect of needless injury or even death.

The evidence of potential neglect on the part of the SO, however, must be assessed in light of what else is known and not known about the officer’s encounter with the Complainant. Thus, for example, the weight of the evidence indicates the two were struggling on the bedroom floor as the shot went off or just prior to the discharge. WO #5, who was present in the room at the time, described the SO as being involved in a “commotion” with the Complainant that took the two from a location near the bed toward a closet at the other end of the room. While there is some evidence the Complainant did not resist his arrest, the reliability of this evidence is open to challenge given this evidence was clearly in error in other respects. For example, this evidence also indicates WO #5 was the shooter, not the SO, and suggests that the Complainant was handcuffed when he was shot. However, the weight of the evidence establishes the Complainant was restrained following the shooting by a third officer who entered the bedroom.

The officers also had reason to believe that the Complainant was in possession of a firearm as they entered the residence, a firearm which he had allegedly used in the commission of a shooting offence outside a school several days earlier. The search warrant they had secured for the residence and the briefing that they had received prior to storming the unit made that clear.

It is also apparent that the ETF officers had moved away in recent years from using “Y-slings” to harness their weapons, which had proved problematic in at least one prior incident involving the discharge of an ETF officer’s rifle.

As for what remains a mystery, it is unknown whether the SO had his finger on or off his MP5 rifle’s trigger during his encounter with the Complainant. While much is left in the discretion of individual ETF officers based on their level of skill and experience, it would appear recognized best practice to keep one’s finger off the trigger in order to avoid accidental discharges until such time as the officer has decided to fire the weapon.

It is most unfortunate that the Complainant was unintentionally shot and wounded. Conversely, it is most fortunate that his wound was not any more serious than it was or even lethal. The SO carried the firearm – an MP5 rifle – which discharged and resulted in the injury to the Complainant’s right forearm. He was duty bound to handle his firearm safely so that it did not fire accidentally. Arguably, the officer fell short in that duty. The issue for determination, however, is whether there is evidence to reasonably establish a sufficient want of care on the SO’s part warranting criminal sanction. In my view, given the extenuating circumstances that prevailed at the time, there is not.

The SO was in the lawful execution of his duty when, pursuant to a search warrant, he and other ETF officers entered the unit. In particular, given everything he knew of the Complainant and his reported participation in a shooting days’ prior, the SO was within his rights in taking the Complainant into custody. He was also well-advised to suspect the Complainant might have ready access to a firearm; that concern was, after all, the reason why the ETF had been called out to assist in the first place. Consequently, one understands why the SO might have had his MP5 rifle at the ready as he confronted the Complainant and then engaged with him on the bedroom floor. Moreover, it seems clear that the SO and the Complainant were engaged in a struggle on the floor around the time of the MP5 discharge.

One strongly suspects that the struggle is somehow at the root of the gun being fired. Perhaps the trigger snagged on the officer’s equipment-laden vest and went off; this was WO #5’s impression when he asked the SO what had happened. Maybe the officer depressed the trigger unwittingly or reflexively while distracted by the physical confrontation in which he was engaged.

In any event, given the constellation of factors at play – the Complainant’s lawful arrest, the possibility of an illicit firearm, a struggle of some nature and extent - I am unable to reasonably conclude that the SO’s firearm discharged inadvertently because of a marked lack of care on the part of the officer. The analysis might have been different were there some indication that the SO had his finger on the trigger as he tussled with the Complainant but, to reiterate, there is no positive evidence of that and some evidence to contrary effect. In the result, I am not satisfied on reasonable grounds that the care exercised by the SO over his firearm, or lack thereof, transgressed the limits of care prescribed by the criminal

law. There is therefore no basis to proceed with criminal charges against the officer and the file is closed.


Date: February 5, 2020

Original signed by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) The Use of Force Report was a “team” report pertaining to the use of force used by multiple ETF members during the execution of the search warrant. [Back to text]