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SIU Director’s Report - Case # 19-TFI-254

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 29-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On October 26, 2019, at 4:40 a.m., the Toronto Police Service (TPS) reported the firearm-related injury of the Complainant.

The TPS reported that sometime before 4:00 a.m., a man [later identified as Civilian Witness (CW) #3] called 911 and reported a man [later identified as the Complainant] with a firearm involved in a road rage incident with him. CW #3 provided the 911 operator with a partial licence plate number of the vehicle involved in the road rage.

Police officers later located the vehicle involved in the road rage incident in a drive-thru of a Tim Hortons located on Jane Street. An altercation ensued between the police officers and the Complainant, as a result of which a police officer discharged his firearm at the Complainant. The Complainant was later arrested.

The Complainant was subsequently transported to Sunnybrook Health Sciences Centre with an injury to his leg and shoulder. 
 

The Team

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

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located at the drive-thru lane of a Tim Hortons located at the northeast corner of the intersection of Jane Street and Falstaff Avenue. The SIU investigators canvassed for witnesses and Closed-Circuit Television (CCTV) in the area.

Figure 1 - The Tim Hortons where the incident occurred.

Figure 1 - The Tim Hortons where the incident occurred.


Figure 2 - The drive-thru of the Tim Hortons was the scene of the shooting. The Complainant’s white Infinity struck a cement post and an apparent bullet hole is visible in the driver’s side door.

Figure 2 - The drive-thru of the Tim Hortons was the scene of the shooting. The Complainant’s white Infinity struck a cement post and an apparent bullet hole is visible in the driver’s side door. 


The scene was secured by the SIU, examined, photographed, and documented by a total station. The SIU forensic examination of the scene revealed relevant items of evidence as follows:

  •  Seven [1].40 caliber Smith & Wesson cartridge cases.
  • One .40 caliber Smith & Wesson pistol.
  • The Complainant’s cellular phone.
  • The Complainant’s clothing and other miscellaneous [2] items.

Scene Diagram

Scene diagram

Physical Evidence

The SO’s uniform, vest, boots, two spare magazines, and his Glock model service firearm were collected by the SIU. The SO’s belt including firearm holster, asp baton, one pair of handcuffs, flashlight, and a cannister of oleoresin capsicum spray was photographed by the SIU.

Forensic Evidence


Firearm Examination – the SO


An examination of the SO’s firearm revealed that it was loaded with one cartridge in the breech and five in the magazine. Each spare magazine was loaded with 14 rounds of ammunition.

Figure 3 - The SO's Glock pistol.

Figure 3 - The SO's Glock pistol.


Forensic Analysis of the Complainant’s Vehicle – White Infinity


The SIU conducted a forensic examination of the white Infinity vehicle. The vehicle appeared to have bullet holes and had been dusted for fingerprints from a previous incident. The previous bullet holes were covered using electrical tape and painted with white paint. It was later confirmed by the TPS that the vehicle had been forensically examined by the TPS on July 13, 2019, in relation a firearms incident that occurred on July 9, 2019.

A .40 caliber Smith & Wesson pistol was recovered from the driver’s side floor of the white Infinity.

Figure 4 - A Smith & Wesson pistol was located on the white Infinity's driver's side floor.

Figure 4 - A Smith & Wesson pistol was located on the white Infinity's driver's side floor.


The SIU FIS examined the vehicle and found eight new bullet holes on the passenger side area of the white Infinity. This is consistent with the number of bullets discharged from the SO’s firearm.

Figure 5 - Trajectory examination of four bullet holes located on the passenger-side area of the Infinity.

Figure 5 - Trajectory examination of four bullet holes located on the passenger-side area of the Infinity.


Firearm Examination – white Infinity


An examination of the firearm located on the driver’s floor of the Infinity revealed that it was loaded with one cartridge in the breech and ten in the magazine. All the cartridges were stamped and did not resemble any of the cartridges used in the SO’s firearm. 

Centre of Forensic Sciences (CFS) Submissions and Results


The Complainant’s clothing was sent to CFS for distance determination between the SO and the Complainant when the SO discharged his firearm at the Complainant. The CFS determined that there was no gunshot residue on the Complainant’s clothing.

Video/Audio/Photographic Evidence


In-Car Camera System (ICCS) Recordings


The SIU received and reviewed ICCS recordings from several TPS vehicles that arrived at the scene. The ICCS recordings did not have any relevant footage to further this investigation.

CCTV Recordings – Tim Hortons


The SIU received and reviewed the CCTV recordings from the Tim Hortons. The recordings, which did not have any audio, depicted the following:

  • At 3:52:30 a.m. A white vehicle [later identified as the Complainant’s vehicle] entered the rear parking lot of the Tim Hortons. The white Infinity entered the drive-thru lane of the Tim Hortons and stopped beside the menu order board; 
  • At 3:52:39 a.m. A police vehicle [later identified as being driven by the SO] arrived at the rear parking lot of the Tim Hortons and stopped parallel to the white Infinity. Two police officers [later identified as the SO and WO #5] exited the police vehicle and approached the passenger side door of the white Infinity;
  • At 3:52:57 a.m. The white Infinity drove forward in the drive-thru lane and collided with a cement post;
  • At 3:54:12 a.m. The SO retrieved a rifle from the trunk of his police vehicle and approached the white Infinity;
  • At 3:54:28 a.m. Several police officers arrived at the scene;
  • At 4:00:28 a.m. Emergency Medical Services arrived at the scene.

Communications Recordings


TPS 911 & Communication Recordings


The SIU received and reviewed the 911 and the police communications recordings from the TPS. The recordings depicted the following:
  • At 3:29 a.m. CW #3 contacted 911 and reported that a man [later identified as the Complainant] in a white Infinity had stopped in front of his vehicle and approached him with a firearm;
  • At 3:40 a.m. The dispatcher transmitted for police officers to attend;
  • At 3:43 a.m. The dispatcher transmitted that CW #3 would wait fora police officer at a church located on Jane Street. The dispatcher transmitted the description of the man driving the white Infinity and provided a partial licence plate number of the vehicle. WO #1 asked the dispatcher to query the partial licence plate number and directed the SO and WO #5 to search the area of Falstaff Avenue;
  • At 3:49 a.m. The dispatcher transmitted that the white Infinity was involved in a previous violent incident and incidents involving firearms;
  • At 3:52 a.m. WO #2 transmitted that the white Infinity had entered the parking lot of a Tim Hortons. The SO and WO #4 transmitted that there had been multiple gunshots;
  • At 3:53 a.m. The SO requested an ambulance. WO #6 transmitted that a firearm was located inside the white Infinity and that a man [later identified as the Complainant] had sustained a gunshot wound;
  • At 3:54 a.m. An ambulance arrived at the scene.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Computer-Aided Dispatch report relevant to the incident;
  • Notes of the Witness Officers and Subject Officer;
  • ICCS from the police vehicles; and
  • TPS Communications Recordings.

Materials obtained from Other Sources

The SIU also obtained and reviewed CCTV recordings captured by surveillance cameras at the Tim Hortons in question.

Incident Narrative

The SO and his partner, WO #5, arrived at the Tim Hortons store on Jane Street and Falstaff Avenue. The SO, who was driving, stopped his police vehicle approximately two metres from the white Infinity and he and WO #5 exited. The SO cautiously approached the passenger side door of the Infinity with his firearm out and pointed toward the driver of the Infinity, the Complainant.

At 3:52 a.m., a transmission was received by the TPS communications centre that multiple shots had been fired and that the Complainant had sustained a gunshot wound and required the attendance of an ambulance. The Complainant was later treated at hospital for gunshot wounds to his right shoulder blade, his right forearm, and his left thigh.

An examination of the scene and the SO’s sidearm revealed that he had discharged his firearm eight times.

The material events in question are largely apparent from the weight of the evidence collected by the SIU, which included interviews with the main players, the Complainant and the SO, as well as statements obtained from five civilian and six police witnesses. The investigation further benefitted from a review of the communications recordings, the CCTV footage from the Tim Hortons store, and forensic analyses of the scene, the SO’s firearm and the Complainant’s vehicle.

At 3:52:39 (time depicted on CCTV footage) a.m. of October 26, 2019, a police vehicle is seen, on the CCTV recording from the Tim Hortons store, arriving at the rear parking lot of the Tim Hortons and stopping parallel to the white Infinity, which was at the menu board in the drive-thru lane. The SO and WO #5 are both seen to exit the police car and approach the passenger side door of the white Infinity. The SO and WO #5 both cautiously approached the Infinity with their firearms drawn.

The SO observed the driver, the Complainant, seated in the driver’s seat and he yelled, “Police!”, “Stop, show me your hands!”, and directed the Complainant to get out of the car. WO #5, who had to walk around the rear of the police vehicle because he was exiting from the passenger side, lagged behind the SO; WO #5 also yelled, “Police, don’t move!” The SO observed the Complainant to briefly raise his hands and he was heard to say, “Don’t shoot me,” following which he then moved his right hand towards his lap and retrieved a firearm, which he raised in a firing position. The SO, fearing for his life and that of WO #5 and the Tim Hortons’ employees, immediately discharged his firearm. The Complainant then put his vehicle in motion and drove forward, while the SO was still discharging his firearm.

A subsequent examination of the scene and of the SO’s firearm revealed that the SO fired eight shots, which was further confirmed by the presence of eight new [3] bullet holes in the passenger side area of the Infinity.

The white Infinity travelled forward approximately six metres before it collided with a cement post and came to rest. This is also seen on the CCTV footage, which revealed the vehicle driving forward in the drive-thru lane at 3:52:57 a.m. (time depicted on the CCTV recording).

Several additional police officers then arrived and approached the Infinity with weapons drawn. The Complainant was observed attempting to exit his vehicle, whereupon WO #6 yelled at him to get on the ground. The officers then approached and arrested the Complainant.

At 3:53 a.m., WO #6 transmitted to the communications centre that he had located a firearm inside the Infinity.

Later examination of the scene by SIU forensic investigators revealed a .40 caliber Smith & Wesson pistol on the floor of the Infinity, on the driver’s side, loaded with one cartridge in the breech and ten in the magazine.

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.

(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 October 26, 2019, at approximately 3:29 a.m., a 911 caller reported that he had just had a white Infinity motor vehicle stop in front of his motor vehicle, after which the driver had exited and approached the caller holding a firearm. A description of the motor vehicle and a partial licence plate number were provided. This information was transmitted to TPS officers, who were directed to proceed to the area of Jane Street and Falstaff Avenue in the City of Toronto.

The only evidence contradicting that outlined above indicates the SO approached the passenger side of the Complainant’s vehicle and pointed a firearm at him. The Complainant told the SO not to shoot him. At that very moment, the drive-thru attendant directed the Complainant through the speaker at the menu board, to drive forward, as a result of which he did. There was a gunshot and the Complainant immediately stopped his vehicle. He had been struck by a bullet. This evidence also indicates the Complainant did not have a firearm with him at the time of this incident.

This evidence is implausible in respects and materially inconsistent with the reliable evidence gathered in this matter by SIU investigators, and I am therefore unable to accept this version of events. For example, it is the dubious that the Complainant would drive forward because he was directed to do so by the Tim Hortons’ employee, despite a fully uniformed police officer pointing a firearm at him and yelling at him to get out of the car. As is the indication that the Complainant did not have a firearm with him, which is contradicted not only by the presence of the firearm in the driver’s side footwell, but also by the evidence of CW #3, the 911 caller, who observed the Complainant get out of the white Infinity and point a firearm at him. Moreover, the suggestion the Complainant brought his vehicle to a stop when there was a gunshot is contradicted both by the CCTV footage and by the fact that he was observed to come to a stop only when he collided with the cement post.

Whether considered pursuant to the frameworks set out in section 25(3) or 34 of the Criminal Code, the first setting out the test for legal justification in the case of lethal force used in the execution of a police officer’s duty, the other outlining the parameters of force that is excusable in defence of oneself or another, I am satisfied on reasonable grounds that the conduct of the SO did not run afoul of the limits prescribed by the criminal law. The SO was acting pursuant to his duties when, following a 911 call received by the communication centre, and being aware that the driver of a white Infinity had pulled a firearm against another motorist in what was described as a ‘road rage’ incident, he carried out an investigation when he came upon the described vehicle in the area where the reported incident had occurred. It is clear that when the SO and WO #5 exited their police vehicle and approached the white Infinity with their firearms drawn, they were acting in the course of their duties in that they were investigating the 911 caller’s complaint. Additionally, as the information received indicated that the driver of the Infinity was in possession of a firearm which he had already pointed at another civilian, it would have been imprudent and dangerous for SO and WO #5 to approach the Infinity without their weapons at the ready.

In the SO’s interview with SIU investigators, he indicated that when the Complainant reached for a firearm and raised it in a firing position, the SO feared for his own life, as well as that of WO #5 and the employees of the Tim Hortons. I accept that the SO, when faced with a man holding a firearm raised in his direction, genuinely and reasonably believed that shooting the Complainant was necessary to protect both himself, and those around him, from loss of life or grievous bodily harm.

I do not accept that the SO only discharged his firearm after the Complainant began to drive away from him, but rather, as supported by the reliable evidence, that the SO discharged his firearm when the Complainant raised his firearm in the officer’s direction. I draw no negative inference from the fact that the SO continued to discharge his weapon when the Complainant simultaneously began to drive forward. As the shots appear to have occurred in quick succession, I am unable to meaningfully infer any material difference in the threat level that the SO would have reasonably apprehended in such a volatile and highly-charged situation. In arriving at this conclusion, I am mindful that the law does not require perfection of officers confronted with having to make split-second decisions in dangerous situations; what is required is a reasonable response, not an exacting one: R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA).

On this record, I am unable to reasonably conclude that the SO, while under a legitimate apprehension that discharging his firearm was necessary to protect his own life, and those around him, from a lethal threat, acted unreasonably in so doing notwithstanding the significant injuries incurred by the Complainant. As such, as there is no basis to form reasonable grounds to believe that a criminal offence has been committed by the SO, no charges will issue and this file is close.


Date: March 30, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) The SIU Forensic Investigators were able to recover seven of the eight cartridge cases. It was determined that one of the cartridge cases may have fallen through a drainage grate and could not be recovered. [Back to text]
  • 2) The miscellaneous items did not have any investigative value. [Back to text]
  • 3) An examination of the Infinity revealed that there were older bullet holes in the vehicle as well, from a previous incident, which had been covered using electrical tape and painted over. A search of police records revealed that this same vehicle had been involved in a firearms-related event on July 9, 2019. [Back to text]