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SIU Director’s Report - Case # 19-TFD-147

Contents:

News Releases for this Case:

French:

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the death of a 21-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On June 25, 2019, at 8:43 p.m., the Toronto Police Service (TPS) notified the SIU of a firearms injury suffered by an individual who, according to the TPS, had not yet been identified. [1] The TPS advised the incident had just occurred and it involved the TPS Guns and Gangs Task Force (GGTF). The incident occurred at the intersection of Midland Avenue and Midwest Road.

According to the TPS, one member of the GGTF had been struck by a vehicle and another TPS officer had shot and injured the unknown civilian. The injured officer had been transported to Scarborough General Hospital and the civilian was transported to Sunnybrook Health Sciences Centre on an emergency run.

The Team

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

SIU investigators and forensic identification investigators were immediately dispatched to the scene.

SIU forensic investigators examined the scene and a Total Station device was used to forensically map the scene.

The TPS informed the SIU they had conducted a cursory search of the interior of a Mercedes Benz C300 (the vehicle driven by the Complainant), but they hoped to obtain a search warrant to conduct a more thorough search, related to the prior shooting incidents involving this vehicle and the individuals who were found inside the vehicle. The SIU agreed to postpone a search of the vehicle. The Mercedes Benz C300 was secured using police seals and was transported to a TPS Forensic Identification Services garage, to allow for examination in a controlled environment. On June 28, 2019, the SIU conducted further examinations of the vehicle, with the assistance of scientists from the Centre of Forensic Sciences (CFS).

The SIU reviewed surveillance video footage from two businesses at the intersection. The SIU also obtained a video recording from a business located south of the intersection.

This incident was captured on a cellular telephone by a person riding in a southbound vehicle that was stopped at the intersection. The individual who recorded the incident provided the footage to CP24 News, which broadcast the footage while SIU investigators were responding to the scene. The SIU contacted CP24 to request the name of the person who recorded the footage and to request a copy of the recording. CP24 declined both requests. Using a screen capture application, a copy of the CP24 news item was recorded for the file record. A name appears in the video identifying an individual as the source of the video. A search of Ministry of Transportation driver licence records failed to identify any motorist by that name.

Complainant:

21-year-old male, deceased


Civilian Witnesses

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

The above-named individuals were occupants of the Mercedes Benz C300 when the vehicle was stopped by the TPS. No other civilian witnesses were identified.

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 Not interviewed, but notes received and reviewed
WO #11 Not interviewed, but notes received and reviewed
WO #12 Interviewed
WO #13 Interviewed
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 Not interviewed, but notes received and reviewed
WO #23 Not interviewed, but notes received and reviewed
WO #24 Not interviewed, but notes received and reviewed
WO #25 Interviewed
WO #26 Not interviewed, but notes received and reviewed
WO #27 Not interviewed, but notes received and reviewed
WO #28 Not interviewed, but notes received and reviewed
WO #29 Not interviewed, but notes received and reviewed
WO #30 Not interviewed, but notes received and reviewed
WO #31 Not interviewed, but notes received and reviewed
WO #32 Not interviewed, but notes received and reviewed
WO #33 Not interviewed, but notes received and reviewed
WO #34 Not interviewed, but notes received and reviewed

The SIU obtained the duty notes of the designated witness officers. Following a review of those notes, only those police officers who were believed to be present or have direct relevant information regarding the incident were interviewed.


Subject Officers

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


Evidence

The Scene

Midland Avenue is oriented north/south, with two lanes of traffic in both directions. At Midwest Road there is a left turn lane for northbound traffic turning onto Midwest Road.

The Mercedes Benz C300 operated by the Complainant was in the northbound passing lane. It was surrounded by several vehicles operated by members of the TPS GGTF.

A Honda Accord was parked in front of the Mercedes Benz. That vehicle had been operated by the SO.

Three spent cartridge cases were found to the west of the Mercedes Benz.


Scene Diagram

Scene diagram

Physical Evidence


Vehicle Examination


The involved vehicles were examined at the scene.

The Mercedes Benz C300 had three bullet defects in the windshield, close to the roof support pillar (A-pillar). There was obvious powder staining on the outside surface of the windshield. Hand impressions were found on the hood of the vehicle. Those hand impressions lacked sufficient ridge detail to identify the person who deposited the impressions.

Figure 1- The front windshield of the Mercedes Benz C300 with three bullet holes on the driver's side.

Figure 1- The front windshield of the Mercedes Benz C300 with three bullet holes on the driver's side.


Figure 2 - The hand impressions on the hood of the Mercedes Benz.

Figure 2 - The hand impressions on the hood of the Mercedes Benz.


There was a very small crack on the front bumper of the Mercedes Benz, to the right of the licence plate. On the rear bumper there was a black transfer mark, below the licence plate. [2]

On the black Honda Accord parked in front of the Mercedes Benz C300, there were obvious disturbances in the dirt on the rear bumper of the vehicle. Those disturbances were consistent with a person’s legs being in contact with the vehicle, wiping the dirt away.

At the scene the TPS informed the SIU they intended to obtain a warrant to search the interior of the Mercedes Benz, and the SIU agreed to postpone a detailed examination of the vehicle until the TPS had obtained their warrant, at which time both agencies could address their investigative interests. The TPS applied forensic seals on the doors and trunk of the Mercedes Benz and the SIU applied a protective covering to the windshield of the vehicle. The vehicle was then towed to the TPS forensic identification service garage facility.

Communications Recordings

The radio transmissions of the GGTF members occurred over a police radio channel that was not recorded. The SIU received a copy of the radio transmissions from a channel used by the 43 Division Major Crime Unit officers.

At 7:56:42 p.m., someone reported the target vehicle was “on the move.” There were then reports of “northbound.” At 7:59:11 p.m., a police officer reported, “Shot fired.” Another police officer asked that the information be transmitted over the main divisional radio frequency.

Video/Audio/Photographic Evidence


CP24 Recording


The video recording of the event, provided to CP24 by an individual, appeared to have been video recorded by a passenger in the front seat of a minivan that was stopped in the southbound passing lane of Midland Avenue.

In the video a male police officer wearing shorts and a police vest, WO #5, can be seen running around the driver side of a grey Toyota Sienna minivan that had been driven into contact with the driver’s door of the Mercedes Benz C300. As WO #5 ran to the front of the Mercedes Benz, the SO was leaning against the driver side front fender of the Mercedes Benz. WO #1 was standing in front of the SO, closer to the driver’s door.

WO #5 continued to move around the driver side front corner of the Mercedes Benz and moved to a position in front of the Mercedes Benz. At that point he was between the Mercedes and the SO’s black Honda Accord that was stopped in front of the Mercedes.

Within two seconds, the Mercedes Benz moved forward, apparently pinching WO #5 between the two vehicles. The SO then discharged his firearm, causing visible damage to the vehicle windshield.

The SO then ran to the Honda Accord and pulled it forward, freeing WO #5, who limped away from the vehicles.

Other Video Recordings Obtained


A video recording from a business on the southwest corner of Midland Avenue and Midwest Road was of such poor clarity there was no useful information to be gleaned from that video.

The video surveillance cameras from a business at the northwest corner of the intersection were reviewed. The camera angles did not include a view that would have captured the incident.

A video recording from a business to the south of the intersection captured the Mercedes Benz and the TPS GGTF vehicles as they travelled northbound on Midland Avenue. The recording did not capture the incident.

Forensic Evidence


CFS Reports


At the post-mortem examination, there was small particulate material on the Complainant’s left hand. A swab was taken of that particulate matter and the SIU submitted the swab to the CFS, with a request that the material be identified. On September 5, 2019, the CFS Chemistry Section reported the swab had calcium carbonate present. The CFS reported the sample size was insufficient to identify any other compounds. The CFS reported calcium carbonate is used in building materials and as a calcium supplement.

The SO’s firearm was also submitted to the CFS. On October 25, 2019, the CFS Firearms and Toolmarks Section reported the firearm was operating properly and three bullet cases found at the scene had been ejected from the SO’s firearm.

Figure 3 - The SO's firearm.

Figure 3 - The SO's firearm.


The CFS declined to process the gunshot residue lifts taken from the windshield of the Mercedes Benz and declined to process the dashboard swabs taken from the vehicle. They took the position the incident had been captured in a video recording that was readily available for viewing. The CFS argued there seemed to be no question how this shooting occurred. The CFS turned the samples over to the SIU with the understanding they would reconsider the need for testing, should any issue arise that made the circumstances of the shooting less clear.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • A set of fingerprint records for the Complainant;
  •  General Occurrence Hardcopy report;
  • Intergraph Computer Aided Dispatch Event Detail Report;
  • List of Involved Officers;
  • Motor Vehicle Accident Report;
  • A copy of a Warrant for Arrest for the Complainant;
  • A copy of a warrant to search the involved vehicle, obtained June 28, 2019, and a copy of a sealing order related to the Information to Obtain that warrant;
  • The notebook entries of designated witness officers;
  • Push Pin officer safety alert regarding the Complainant;
  • A copy of the communications recordings;
  • In-car camera recordings from three police cruisers; and
  • A copy of TPS aerial scene photos

The SIU also received from the York Regional Police (YRP) the notebook entries of WO #25.

Incident Narrative

The circumstances surrounding this incident are clear on the evidence collected by the SIU, including statements from witness officers and passengers in the Complainant’s vehicle who were present at the time of the shooting, and a video recording of the event captured by a civilian’s cell phone. In the morning of June 25, 2019, Mercedes Benz Canada contacted the YRP to report that they had tracked the location of one of their vehicles which had been reported stolen. YRP officers were dispatched to the scene – an address on Brighton Place in Thornhill – and confirmed the vehicle’s presence. A check of the vehicle’s licence plate revealed a notation requesting officers to contact TPS. The YRP officers did just that. They were told that the Mercedes had been involved in several drive-by shootings and was associated with the Complainant – an individual wanted in connection with those shootings. The YRP officers were asked to wait for the arrival of TPS officers.

Given the potential for guns in the vehicle, the TPS mobilized one of their GGTF teams to surveil the Mercedes and, if the opportunity presented itself, arrest the Complainant. Officers with the team arrived in the area of the Brighton Place address in the early afternoon. Dressed in plainclothes and operating unmarked vehicles, they took up positions around the target car and waited to see if someone would enter it. The Complainant and three associates emerged from the address on Brighton Place and entered the Mercedes. With the Complainant driving, the vehicle left the area and made its way to Toronto. The GGTF surveillance team followed suit.

The GGTF team followed the Complainant as he travelled recklessly into the city, driving at speed on the shoulder of highways and cutting in and out of traffic to change lanes. Along the way, the Complainant made a couple of stops at strip malls wherein he appeared to engage in illicit drug transactions. Following a stop on Lawrence Avenue East, the Complainant made his way onto Midland Avenue and traveled north. As the Mercedes approached a red traffic light at the Midwest Road intersection, the GGTF team leader, the SO, called for the vehicle’s takedown.

The Complainant suddenly found his stationary car, which had come to a stop for the red light, surrounded on all sides by the GGTF team’s vehicles. The SO had positioned his Honda Accord in the passing lane of Midland Avenue directly in front of the Complainant’s car. He then reversed the vehicle a short distance to close the gap with the Mercedes. At about the same time, WO #5 brought his Subaru Outback to a stop right behind the Mercedes, as WO #1 and WO #3 parked their vehicles on the driver and passenger side of the Mercedes, respectively. The officers left their vehicles with firearms drawn and pointed at the Mercedes. They shouted commands at its driver and occupants to stop the car and show their hands. The Complainant did neither. WO #3 approached the passenger side of the Mercedes and successfully extricated the front passenger – CW #2. He then entered the Mercedes and struck the Complainant several times attempting to prevent him from operating the vehicle. As this was occurring, with WO #5 standing directly in front of the Mercedes, the Complainant drove forward and pinned the officer’s legs between the Honda Accord and the Mercedes. WO #5 shouted in pain. Immediately thereafter, the SO, standing at close range to the driver side of the Mercedes, fired three shots in rapid succession at the Complainant.

Following the shooting, the SO re-entered his vehicle and drove it forward to free WO #5. WO #5 hobbled away a short distance and lowered himself to the roadway. The Complainant, now incapacitated, was removed from the driver seat and brought to the ground, where WO #1 and WO #2 performed CPR. The three other occupants of the Mercedes were also arrested at the scene. Paramedics arrived at the scene, took over the Complainant’s care and transported him to hospital. The Complainant was subsequently pronounced dead.

Cause of Death


On June 27, 2019, a forensic pathologist conducted a post-mortem examination, at the Provincial Forensic Pathology Unit in Toronto. The preliminary cause of death was determined to be a gunshot wound to the Complainant’s chest.

The Report of Post-mortem Examination, dated September 22, 2019, confirmed the cause of death to be “gunshot wound of chest”.

The Complainant suffered three gunshot wounds. Those gunshot wounds were (in no specific order):
  • Right chest, exiting his back;
  • Left shoulder and into the left chest; and
  • Left flank of chest, travelling through his left lung, through the base of his heart, through his right lung and recovered on his right rear flank.

Relevant Legislation

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

In the evening of June 25, 2019, the Complainant was shot three times while seated in the driver seat of a vehicle on Midland Avenue in Toronto. The SO was the shooter. He, along with other members of the TPS GGTF, had surrounded the Complainant’s vehicle intending to arrest him on an outstanding arrest warrant. The Complainant died of his wounds. 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 death.

Section 34 of the Criminal Code prescribes the boundaries of justifiable force in the defence of oneself or another from an actual or threatened attack. It requires that the defensive act be reasonable with reference to the relevant circumstances, including the nature of the force or threat, whether there were other means to protect oneself or another, and whether any party to the incident used or threatened to use a weapon. I am satisfied on reasonable grounds that the SO acted with the protection of section 34 when he discharged his firearm at the Complainant.

At the time the SO fired his weapon, WO #5 had just been jammed against the Honda Accord by the forward movement of the Mercedes. While I am inclined to believe that the Complainant drove forward intentionally in an ill-fated effort to escape the police blockade, I cannot discount the possibility that he did so unintentionally, an inadvertent reaction perhaps to the highly charged events unfolding about him with an officer – WO #3 – striking him in the hands and face from the front passenger seat. Be that as it may, when the Mercedes moved forward and WO #5 screamed in pain, the SO would certainly have apprehended, reasonably in my view, that his colleague was being attacked by the Complainant’s use of his vehicle. Moreover, in the circumstances that prevailed, I have no reason to doubt that the SO believed it was necessary in the moment to shoot the Complainant to thwart the Complainant’s attack and protect his teammate from an imminent risk of death or grievous bodily harm. The issue is whether the SO’s resort to lethal force was reasonable in the circumstances.

Needless to say, WO #5’s life and limb were in clear peril as the Mercedes collided with his lower half and pinned him against the Honda Accord. The officer’s life hung in the balance with every second while he remained stuck in that position. Resolute and prompt action was required to disable the Mercedes’ operating mind – the Complainant. Just prior to the Mercedes’ forward movement, WO #1 had tried unsuccessfully to break the driver door window to get at the Complainant and WO #3, who had managed to remove the front passenger from the Mercedes, was inside the vehicle attempting to forcibly stop the Complainant from operating the car when the shots rang out. Assuming the SO was cognizant of what his teammates were doing, he might have opted to allow the officers to continue with these efforts as WO #5 was struck and pinned. Alternatively, he could have re-entered his vehicle – the Honda Accord – and moved it forward to release WO #5 (as he did after the shooting). However, as doing so risked precious additional time during which WO #5 would remain in grave danger, I am not satisfied that these were realistic options in the circumstances. In the final analysis, confronted with a clear and present risk to the life of a fellow officer, I am unable to reasonably conclude that the SO’s resort to lethal force was anything other than a commensurate, proportional and reasonable response to a lethal threat. As for the fact that multiple rounds were fired by the SO, these occurred in such rapid succession that I am unable to infer any meaningful difference in the threat level the officer would have perceived across the three shots.

In the result, as I am of the view that no reasonable grounds exist to believe that the SO acted outside the bounds of legitimate force under section 34 of the Criminal Code when he shot the Complainant, there is no basis for charges in this case and the file is closed.


Date: March 9, 2020

Original signed by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) Now known to be the 21-year-old Complainant. [Back to text]
  • 2) These very small marks do not represent any significant impact. [Back to text]