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SIU Director’s Report - Case # 19-PFI-247

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 injuries that a 26-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On October 9, 2019, at 3:00 p.m., the Ontario Provincial Police (OPP) notified the SIU of a firearm-related injury to the Complainant.

The OPP advised that on October 9, 2019, at 1:49 p.m., OPP police officers were conducting a traffic stop on Berry Road in Toronto. The suspect, the Complainant, was wanted for outstanding warrants. When police officers tried to arrest the Complainant, he drove his car at them. One of the involved police officers drew his gun and fired at the windshield of the Complainant’s car, striking him in the hand.

At 3:40 p.m., it was further reported that the Complainant was receiving medical attention at Sunnybrook Health Sciences Centre as a result of a gunshot injury to his hand.

Toronto Police Service (TPS) was holding the scene for the SIU and the involved police officers were at TPS 22 Division.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 2

Complainants

Complainant: 26-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW 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 but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The scene was a public lane that paralleled Berry Road. This lane was identified as Kinsdale Lane and it was west of Cloverhill Road. The incident scene was approximately 150 metres west of Cloverhill Road. Kinsdale Lane was oriented in an east-west direction and Cloverhill Road was oriented in a north-south direction. Apartment buildings on Park Lawn Road, Kinsdale Boulevard, and Berry Road overlooked the area of the scene.

Near the end of the roadway, close to the entrance of the parking lot, there were several vehicles within the confines of the guarded area. These vehicles were noted as follows:

Vehicle 1


A 2008 Mercedes C300, black. This vehicle was oriented in a south/east direction near the north edge of the roadway and was surrounded by several police vehicles. There were several impact sites on the windshield. This vehicle had been in collision with vehicles 2 and 4, listed below.

Vehicle 2


A 2017 Chevrolet Equinox, grey. This vehicle was an OPP surveillance police vehicle and was oriented in a northwest direction and in collision with vehicles 1 & 4. There were two cartridge cases on the roadway near the driver’s side of the vehicle and three more cartridge cases in the windshield wiper well of the vehicle. Inside the police vehicle, the SO’s duty belt was lying on the floor, near the front passenger seat. This belt was collected later and found to contain two magazines with cartridges.

Vehicle 3


A 2017 Ford F150, grey. This vehicle was an OPP surveillance police vehicle oriented in a northwest direction and was in collision with vehicle 1.

Vehicle 4


A 2017 Dodge Ram, grey. This vehicle was an OPP surveillance police vehicle and was oriented in a northwest direction and in collision with vehicles 1 & 2. Near the front end of this vehicle, a single 9mm cartridge was located on the roadway. 

Vehicle 5


A 2014 Dodge Caravan, grey. This vehicle was an OPP surveillance vehicle and was oriented in a westerly direction, near the south edge of the roadway. There was no collision damage.

Vehicle 6


A 2014 Dodge Caravan, blue. This was an OPP surveillance vehicle and was oriented in a westerly direction, near the south edge of the roadway. There was no collision damage.

Vehicle 7


A 2017 Dodge Ram, grey. This was an OPP surveillance vehicle and was oriented in a north/west direction, east of the police vehicles surrounding vehicle 1. There was no collision damage to this vehicle.

Scene Diagram

Scene diagram

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following source:
  • Two video clips created by a civilian’s cell phone.


Two Video Clips Created by a Civilian’s Cell Phone:


The following is a summary of the two recordings:

Video clip one is 26 seconds long. The field of view looks toward the rear parking lot but is obstructed by a large tree. Several voices are heard yelling something to the effect of, “Turn your car off now!” “Throw me your keys!” and “Get on the fucking ground!” The civilian is heard to say that the police just shot a person. The voices say, “Call 911,” multiple times. A man’s voice says, “I got him, I got him,” and, “Get him out of the fucking car,” and then a man’s voice says, “We don’t care.” A man [thought to be the Complainant] can be heard yelling in pain.

Video clip two is also 26 seconds long and taken from the same vantage point as the first clip. A man’s voice is heard yelling, “Don’t move.” Then the Complainant yells twice, “She’s here against her own will.” There are multiple demands to get out of the car. At 16 seconds into the video, a siren is heard and after that there are more inaudible demands.

Firearms Information


Police Firearm


The involved firearm was a Glock Model 17M with accompanying magazine and 13 cartridges belonging to the SO.

Figure 1: A view of the firearm, its cartridge, and the ammunition.

Figure 1: A view of the firearm, its cartridge, and the ammunition.

Forensic Evidence

Five spent cartridge cases recovered from the scene were submitted to the Centre of Forensic Sciences (CFS) together with the SO’s firearm.

The CFS determined that the five fired cartridge cases found at the scene came from the SO’s pistol.


Figure 2: A view of one of the spent cartridge cases that was found at this incident's scene.

Figure 2: A view of one of the spent cartridge cases that was found at this incident's scene.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Notes of all witness officers;
  • OPP document outlining plan to arrest the Complainant
  • OPP Policy relating to Arrest and Detention;
  • OPP Policy relating to Use of Force;
  • TPS Criminal Record for the Complainant;
  • TPS Intergraph Computer-Assisted Dispatch - Event Details Report discussing this incident;
  • TPS Motor Vehicle Collision Report dealing with this incident; and
  • Training Records-Use of Force-the SO-February 10, 2020.

Materials obtained from Other Sources

In addition to the materials received from the police, the SIU obtained and reviewed the following materials from other sources:
  • Ambulance Call Reports relating to the incident;
  • CFS Firearms Report-January 30, 2020-regarding the firearm and ammunition relating to this incident;
  • Two cell phone video recordings from an individual;
  • Incident Summary Report from Toronto Paramedic Services;
  • Medical Incident Summary Report from Toronto Paramedic Services; and
  • The Complainant’s Medical Records-Humber River Hospital.

Incident Narrative

The material events in question are relatively clear on the weight of the evidence collected by the SIU, which included statements from the Complainant, the SO, the CW and several police witnesses who were present at the time of the shooting. The investigation was also aided by information derived from forensic analyses of the scene and items of evidence recovered therefrom. In the morning of the day in question, the SO and his team of plainclothes officers – WO #3, WO #4, WO #5 and WO #6 – planned to surveil the Complainant and, if the opportunity presented itself, arrest him. Each of the officers convened in southern Etobicoke where they had reason to believe that the Complainant was located. Unknown to the Complainant at the time, the police had obtained a transmission data recorder for his mobile phone and were capable of tracking his movements. Arriving in the area in their own unmarked vehicles, the officers met and agreed they would avoid arresting the Complainant inside a vehicle given the dangers that could arise were the vehicle put in motion with officers in the vicinity.

The Complainant had been operating several vehicles on the morning in question – a Chevrolet Avalanche and a Mercedes sedan. With him on these occasions was a companion – the CW. The two were in the Mercedes sedan, facing south and parked along the northern edge of a parking lot off of Kinsdale Lane, west of Cloverhill Road, when the vehicle was surrounded by unmarked police vehicles.

The SO’s Chevrolet Equinox was among the vehicles surrounding the Mercedes. Moments earlier, the team had detected the Complainant outside the vehicle in the parking lot and moved in to effect his arrest. By the time they got there, however, the Complainant was in the driver’s seat of the vehicle.

The first police vehicle to reach the Mercedes sedan was a Dodge Ram pickup operated by WO #1. WO #1 pulled the truck directly in front of the Mercedes at a 90-degree angle facing westward such that the rear passenger side of the truck was about a metre away from the sedan. Following directly behind WO #1 was the SO, who positioned his vehicle behind the Dodge Ram pickup. The third police vehicle to arrive – a Ford F150 pickup – was operated by WO #5, which WO #5 stopped at angle with its front end pointed toward the driver side of the Mercedes sedan. These officers exited their vehicles and, together with other officers who had arrived in the area but were not part of the vehicle blockade, approached the sedan with weapons drawn, ordering the Complainant to turn off the vehicle and show his hands.

At the sight of the officers, the Complainant accelerated forward and struck the rear passenger side of WO #1’s pickup. The Complainant then reversed his vehicle and accelerated forward in like fashion several more times, moving the pickup truck from its original position. As this was happening, the SO found himself near the front driver side corner of his Equinox when his left leg was struck by the rear of WO #1’s pickup as it was pushed forward by the Mercedes sedan. The officer had his firearm trained on the Complainant and directed him to stop the vehicle. The Complainant continued to operate his vehicle attempting to break through the blockade and was met with a volley of gunfire from the SO.

In total, the SO, from the driver side of his Equinox and within several metres of the Mercedes, discharged his firearm five times in rapid succession through the vehicle’s windshield. Following the shooting, the Complainant raised his hands in the air and provided the car keys to the officers as directed. He was removed from the Mercedes sedan and handcuffed, as was his front seat passenger, the CW, who was fortunate to escape unscathed in the incident.

The Complainant was taken to hospital and treated for three gunshot wounds to his right arm.

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.

Analysis and Director's Decision

In the early afternoon of October 9, 2019, the Complainant was shot and wounded by the SO of the OPP in the course of his arrest. 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 arrest and injuries.

Under section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do. Where the force in question is intended or likely to cause death or grievous bodily harm, the immunity will not attach pursuant to section 25(3) unless the officer reasonably apprehends that it was necessary to use such force to preserve oneself or another under his or her protection from death or grievous bodily harm. At the outset, I note that there were, in my view, lawful grounds to arrest the Complainant based on offences he had committed in various Ontario jurisdictions.

In his interview with the SIU, the SO explained that he fired his weapon believing it was necessary to thwart an imminent risk of death or serious injury to him and his fellow officers from the continued operation of the Mercedes sedan. I have no reason to doubt that the SO was honestly of that view at the time he resorted to gunfire. The real question revolves around the reasonableness of the officer’s belief. On this question, one looks to an objective assessment of the relevant circumstances at the time.

By the time shots were fired, the Complainant had made it clear that he had no intention of surrendering peacefully. While some evidence suggests that the Complainant believed he was being accosted by a street gang, feared for his safety, and attempted to flee, I am unable to accept this evidence as revealing the Complainant’s true interpretation of events. Other evidence reveals that his passenger, similarly situated, was immediately aware of the fact that their vehicle was being surrounded by police officers. One can only conclude that the Complainant, fully cognizant of several police officers in the vicinity of the Mercedes sedan, had little qualms about placing their lives in danger as he repeatedly rammed the police truck in front of him in a frenzied effort to escape. And risk their lives, I am satisfied, he did. In fact, on one occasion when he rammed the Mercedes sedan into the police pickup in front of him, the force of the collision pushed the rear end of the truck into the SO’s left leg. In this regard, it is telling that other officers surrounding the Mercedes sedan as it repeatedly struck the truck in front of it also believed their lives and the lives of their colleagues were in peril. On this record, I am satisfied that the SO’s apprehension of the danger that existed and the necessity of a resort to lethal force were reasonable in the circumstances.

It might be suggested that the SO, rather than remain in close proximity to the Mercedes sedan as it rammed the police truck in front of him, ought to have retreated to a position of cover. In hindsight, it might well be accurate to say that there were opportunities for the officer to distance himself from the immediate dangers being created by the Mercedes sedan. However, I am unable to fault the SO for failing to do so in the heat of the moment. In the split seconds in which the SO would have had to calculate his actions, he was faced with a full-sized sedan violently striking a police vehicle in front of him with the ever-present possibility that it might break free from the blockade and barrel down on him or other officers as it fled the scene. In the circumstances, I am unable to reasonably conclude that the SO acted without legal justification when he aimed and fired his firearm at the vehicle’s operating mind to stop it. Nor am I able to say that the five shots let off by the officer were excessive. Given the rapidity with which they were discharged over a brief moment in time, I am unable to discern any meaningful difference in the threat level that the SO would have reasonably apprehended from shots one through five.


In the result, as I am satisfied that the SO’s resort to lethal force meets the stringent test for legal justification, there is no basis for proceeding with charges in this case and the file is closed.


Date: May 11, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit