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SIU Director’s Report - Case # 19-TFI-300

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 injury that a 43-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On December 8, 2019, at 2:55 a.m., the Toronto Police Service (TPS) notified the SIU of a firearm-related injury.

On December 7, 2019, at 11:56 p.m., TPS received information from Parking Enforcement officers regarding a stolen vehicle in 51 Division. On December 8, 2019, at 1:28 a.m., TPS officers pursued the stolen vehicle to the area of Vanauley Street and Queen Street West, Toronto. The driver of the stolen vehicle travelled northbound on Vanauley Street into a dead-end laneway. The driver of the stolen vehicle reached the end and made a U-turn.

As police officers exited their police vehicles, the driver of the stolen vehicle rammed one of the unoccupied police vehicles. One of the police officers discharged his firearm at the driver (now known to be the Complainant) and struck the Complainant’s hand.

The Complainant was transported by ambulance to St. Michael’s Hospital.

The scene was being held by TPS officers.

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 2

Complainants

Complainant: 43-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


Subject Officers

SO Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The scene is a laneway located on the south side of a YMCA building. The laneway enters a parking lot situated behind the YMCA building, located on Vanauley Street in the City of Toronto. This laneway turns north and becomes 6.4 metres wide and 19.0 metres long. It then widens into a dead-end space (the parking lot) which is 14.2 metres wide and 22.5 metres long. The laneway is paved and is bordered by buildings and fencing. There was nominal lighting located at various points from buildings serviced by the laneway.

Scene Diagram

Scene diagram

Physical Evidence

There was collision damage on the front and the back of a 2008 Toyota Sienna. There was evidence of severe collision damage on WO #2 and WO #5‘s police vehicle and minor collision damage located on the front bumper of WO #3 and the SO’s police vehicle.

Forensic Evidence


Forensic Firearms and Toolmark Examination


The SO’s .40 caliber service pistol, two spent cartridge cases, and one detachable cartridge magazine, with 15 unfired cartridges, were submitted to the CFS for forensic examination.

Figure 1: A view of the SO's firearm.

Figure 1: A view of the SO's firearm.


By way of report dated February 20, 2020, the CFS determined that the spent cartridge cases recovered from the scene had been discharged from the SO’s firearm.


Figure 2: A view of one of the spent cartridges.

Figure 2: A view of one of the spent cartridges.

CEW Data Download


SIU Fl extracted information from WO #2’s CEW. The data indicated that the weapon had been deployed three times around the time of the incident, with each deployment associated with a charge duration of five seconds.

At the time of this incident, the Complainant was wearing many layers of clothing. Upon further forensic examination of the Complainant’s clothing, one probe was found in the back of his jacket.

Expert Evidence


Trajectory Examination


The vehicle operated by the Complainant at the time of this incident was a 2008 grey Toyota Sienna. Two impact sites were observed on the front windshield of the vehicle. The remainder of the vehicle’s exterior surfaces showed no signs of further bullet impacts.

Examination of the two impact sites indicated that one measured 1.2 cm by 2.2 cm in diameter. The physical evidence suggested the discharged projectile struck the windshield. This impact entered the windshield at a 94° left to right angle and continued through at a vertical downward angle of 4°. The path of this impact continued beyond the windshield to a secondary impact site on the top of the dashboard, which was made of automotive vinyl and foam. This impact site was near the right side above the speedometer and perforated the dashboard material and exited. The trajectory path extended beyond the dashboard, indicating a path extending to the top of the steering wheel and continuing to an undisclosed location. There were no further impact sites beyond the steering wheel. No projectile was recovered within the confines of the interior. A bullet fragment was recovered in the interior window frame of the driver’s side door.

The other bullet impact, where a second projectile perforated the windshield from the top edge of the windshield, measured 1 cm by 1 cm in diameter. This impact entered the windshield at a 59° left to right angle, with a vertical downward angle of 3°. The path of this impact continued beyond the windshield and through the area of the driver’s seat compartment to a secondary impact site located on the driver’s side B-pillar. The impact perforated automotive plastic to enter the interior structure of the pillar and continued to perforate the seat belt webbing contained inside the pillar, then striking the interior metal framework, which it failed to penetrate. A projectile was recovered from the interior of the vehicle located at the base of the driver’s side B-pillar.

The SIU Reconstructionist Conclusions


The SIU reconstructionist’s examination concluded that the Complainant stopped the Toyota Sienna in the YMCA parking lot and then reversed the vehicle southbound, reaching speeds of 10 km/h, and striking the front bumper of police Vehicle #1 with the van’s rear bumper. The Complainant then drove the van forward in a northly direction, driving over tree saplings and reinforcement bars while performing a U-turn in an attempt to exit the parking lot. The Complainant accelerated at a speed of 38 km/h before colliding with the front of TPS police Vehicle #2.

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 sources:
  • YMCA Surveillance Footage; and
  • In-Car Camera System (ICCS) Footage from the Police Cars.


YMCA Surveillance Footage


The YMCA building, located on Vanauley Street, had CCTV cameras around the exterior of the building. The property manager of the YMCA downloaded colour video footage from four cameras relevant to this investigation and gave the footage to the SIU. The video footage indicated a minute discrepancy on the timestamps between cameras. The video footage did not have audio capability.

YMCA Camera 16 – Patio 1

This camera view provided recorded video footage of the parking lot located at the northeast corner of the YMCA building. The video shows two parked cars located at the east side of the parking lot - a white vehicle facing north and a dark-coloured vehicle facing south.

Starting at 1:35:44 a.m., the Toyota Sienna driven by the Complainant is seen travelling northbound on the east side of the parking lot. The van can be seen stopping on the east side of the parked cars. Emergency lights of a police vehicle can be seen reflecting off the fences in the YMCA parking lot. Shortly thereafter, WO #3 and the SO’s police vehicle enters the south end of the camera’s view.

Starting at 1:35:50 a.m., the Toyota Sienna is seen reversing and colliding into the front bumper of WO #3 and the SO’s police vehicle. The video images show the SO running along a wooden fence with his service pistol drawn. The Toyota Sienna moves forward, northbound, driving over trees and reaching a dead end, followed by WO #3 driving behind the Toyota Sienna. WO #3 stops his police vehicle. He is followed by the SO running westbound across the parking lot toward a parked white car; he has his service pistol still drawn. As the Toyota Sienna makes a U-turn at the end of the parking lot, the Complainant drives the vehicle toward the SO. The SO stops at the left back corner of a white parked car and points his firearm directly at the moving Toyota Sienna. The evidence suggests it was at this juncture that the SO discharges his service pistol at the Toyota Sienna’s windshield. The Toyota Sienna continues to accelerate directly at the SO, and the officer moves quickly to avoid being struck by the van. It appears, at this interval, that the SO discharges his service pistol a second time. None of the video footage captures muzzle flashes from the SO’s firearm.

The Toyota Sienna continues to travel fleeing from the officers. It then drives out of the view of camera.

This video footage concluded at 2:02 a.m. and had nothing more of evidentiary value.



YMCA Camera 17 – Patio 2

This portion of video footage shows the north side of the YMCA, situated west of the parking lot. The footage captured the Complainant turning the Toyota Sienna around to head back in a southerly direction. This footage did not capture any police vehicles or police officers.

YMCA Camera 18 – South Side Corner

This camera was situated to capture the east side laneway, showing the south laneway which enters Vanauley Street. Starting at 1:36:32 a.m., the Toyota Sienna van, driven by the Complainant, was captured turning north from the laneway coming from Vanauley Street. The van travels out of the camera’s view after making the turn.

Starting at 1:36:38 a.m., video footage captures WO #3 and the SO’s police vehicle turning north, following the van into the parking lot. WO #3 and the SO’s police vehicle’s emergency lights are activated. Starting at 1:36:45 a.m., video images capture WO #4 and WO #2’s white SUV police vehicle making a turn to travel northbound and then driving out of view of the camera. WO #4 and WO #2’s police vehicle has its emergency lights activated.

The video then captures WO #1 and WO #5’s police vehicle reversing toward the direction of Vanauley Street and exiting the camera’s view.

Starting at 1:37:01 a.m., video images capture smoke coming from the north corner of the YMCA building, indicating that the collision between the van and WO #4 and WO #2’s police vehicle had occurred. Starting at 1:37:05 a.m., images capture the Complainant running in a southwesterly direction toward parked cars being chased by the SO. Video images capture the SO grabbing the Complainant’s shoulders and they both fall forward to the ground between two parked cars. Video footage shows the involved police officers converging on the Complainant. There was no video footage that captures what transpired while the officers were engaged with the Complainant on the ground.

YMCA Camera 19 – Parking Area

This camera’s view depicts the parking lot and the laneway at the east side of the YMCA building. The laneway from the parking lot to Cameron Street is visible at the south end.

Starting at 1:35 a.m., video footage captures the Toyota Sienna travelling northbound from Vanauley Street, then moving out of the camera’s view.

Starting at 1:35:07 a.m., images capture WO #3 and the SO’s police vehicle following the Toyota Sienna van from the Vanauley Street laneway, turning northbound, and stopping at the north end of the YMCA parking lot. The emergency lights are activated on the police vehicle.

Starting at 1:35:11 a.m., video images capture the Toyota Sienna van reversing and colliding into the front bumper of WO #3 and the SO’s police vehicle. The SO exits the passenger side of the police vehicle and points his firearm toward the van. Video images show WO #4 and WO #2’s police vehicle simultaneously turning from the Vanauley Street laneway as they enter the YMCA parking lot and park their police vehicle to face north behind WO #3 and the SO’s police vehicle. Video images capture the Complainant continuing to operate the Toyota Sienna northbound followed by WO #3’s police vehicle with the SO following on foot, as they leave the camera’s view. Images capture WO #4 and WO #2 exiting their police vehicle and leaving it unoccupied, blocking the laneway and not allowing an exit out of the parking lot. Further footage shows WO #4 running to the back wall of the YMCA building, while WO #2 runs northbound out of the camera’s view.

Starting at 1:35:22 a.m., video images capture the Toyota Sienna van re-entering the camera’s view driving southbound and ramming into WO #4 and WO #2’s police vehicle, pushing the police vehicle back. WO #4 runs closer to the YMCA building to move away from being struck by the van during the collision. WO #5 can be seen at the southeast corner of the video screen near the laneway to Cameron Street. Starting at 1:35:27 a.m., the SO, WO #2, WO #3 and WO #4 run toward the driver’s side door of the van. Video footage from this camera’s view does not capture the Complainant exiting or fleeing from the van.

Starting at 1:36:24 p.m., the SO and two other police officers are seen walking north back to the area where it was believed the SO discharged his firearm.

ICCS Footage


The TPS provided the SIU with ICCS video for police vehicles identified, for this report’s purposes, as Vehicle #1, Vehicle #2, and Vehicle #3. All involved police vehicles were equipped with ICCSs with audio capabilities. The recordings captured views of the back seat and the front windshield of all three police vehicles.

Vehicle #1 was a fully marked TPS police vehicle. At the time of this incident, it was occupied by WO #3 as the driver and the SO as the passenger.

Vehicle #2 was a fully marked TPS police vehicle, a Sports Utility Vehicle (SUV). The SUV was occupied by WO #4 as the driver and WO #2 as the passenger.

Vehicle #3 was a fully marked TPS police vehicle. It was occupied by WO #1 as the driver and WO #5 as the passenger.

All three TPS police vehicles were involved in the pursuit of the Complainant, who was operating a Toyota Sienna van. The pursuit was initiated at 1:28:27 a.m. when the Complainant failed to stop as directed by WO #3 and the SO, and concluded at 1:35:36 a.m., when the van collided with TPS Vehicle #2.

ICCS video of TPS Vehicle #1 (WO #3 and the SO)

At 1:26:50 a.m., the audio component of the video was activated but delayed by several seconds, which caused it to be out of sync with the video footage. Furthermore, the audio component was of poor quality.

WO #3 and the SO received information from a radio transmission relating to an address on Sackville Street, north of Dundas Street East, Toronto. They were further advised by a police dispatcher that the vehicle was a 2008 Toyota Sienna van and a licence plate number was provided. Upon their arrival, the ICCS captured footage of the Complainant driving southbound on Sackville Street, moving toward the west curb behind a stopped car. Outside the police vehicle, the SO’s voice could be heard shouting, “Stop the car, stop the car.” The Complainant pulled back into the southbound lane of Sackville Street, drove around the east side of the police vehicle, and out of the camera’s view. WO #3 and the SO broadcast that they were in pursuit of the van and gave chase.

Starting at 1:35:10 p.m., video footage captured WO #3 and the SO following the van eastbound into a laneway off of Vanauley Street. WO #3 and the SO’s police vehicle turned north and travelled around the YMCA building to enter the east parking lot. The van was found stopped near two parked cars. As WO #3 and the SO advanced on the van, the van’s reverse lights were immediately activated, and it reversed into the front bumper of WO #3 and the SO’s police vehicle. The collision can be heard on the audio recording. The van then continued northbound driving over small trees. It was last seen turning to travel westbound at the end of the parking lot. At 1:35:28 a.m., the van was no longer in view of the ICCS and the video ended at 1:36:17 a.m.

Shortly afterward, audio recordings captured a radio transmission of shots fired and the sound of screaming in the background, followed by two male voices having a conversation. One male voice was heard saying, “Just Relax.” Further parts of the conversation were drowned out on the audio recordings due to radio transmissions and police sirens. Other parts of the conversations could be heard, with a male voice asking, “Are you okay?” and a second male voice responding, “Yeah I’m okay. Fuck me.” One of the male voices is believed to be the SO’s.

TPS Vehicle #2 (WO #4 and WO #2)

WO #4 and WO #2 became involved in the pursuit at 1:31:40 a.m. They were the second police vehicle involved in the pursuit driving directly behind WO #3 and the SO’s police vehicle. A radio broadcast can be heard from WO #2 indicating that he would take over the radio communications aspect of the pursuit.

Starting at 1:35:14 a.m., WO #4 and WO #2 followed WO #3 and the SO east into the laneway off Vanauley Street and then around the back of the YMCA building toward the parking lot. WO #3 and the SO’s police vehicle could be seen stopped and facing a wooden fence at the end of the parking lot. WO #4 and WO #2’s vehicle stopped behind WO #3 and the SO’s police vehicle.

ICCS footage revealed the SO exiting from the cruiser and following the Toyota Sienna on foot. Further video footage showed the SO continuing to walk northbound in the YMCA parking lot and along the fence line located on the east side of the parking lot. He then ran westbound across the parking lot and behind a parked white car. WO #2 and WO #4 can be seen exiting their police vehicle and running northbound in the parking lot.

ICCS images captured the van making a U-turn around the parked cars at the north end of the parking lot and then accelerating in the direction of the SO. WO #2 can be seen running between parked cars and police Vehicle #1 toward the area, while WO #4 runs eastbound to the side of the YMCA building. The Toyota Sienna van continues to drive in the direction of the SO. Some of the video images are obscured by an officer blocking the camera’s view of the SO’s back. The camera does not capture the SO pointing his service pistol at the van. The video, however, captures the van driving directly at the SO, who then jumps to his left to avoid being struck. Shortly thereafter, a radio broadcast of “shots fired” can be heard. The van is then seen ramming into the front bumper of police Vehicle #2, pushing it backwards from its parked position. Steam can be seen coming from the engine block. The Complainant is then seen exiting the driver’s side door of the van and fleeing southbound. The SO is chasing the Complainant with his gun pointed in his direction. Male voices can be heard yelling in the background, but the words are not discernable.

Starting at 1:35:44 a.m., the Complainant is still running southbound with the SO, WO #2, and WO #4 in foot pursuit. All involved officers exit the camera’s view and the video ends at 1:48:25 a.m.

TPS Vehicle #3 (WO #1 and WO #5)

WO #1 and WO #5 joined in the pursuit at 1:31:40 a.m. as they crossed Parliament Street travelling westbound on Queen Street East. At 1:35:16 a.m., they turned eastbound from Vanauley Street into the laneway at the south side of the YMCA building. At 1:35:24 a.m., they turned northbound around the back of the YMCA building and stopped behind police Vehicle #2. Video images captured WO #2 exiting the passenger side of police Vehicle #2 and running northbound out of the camera’s view.

Starting at 1:35:30 a.m., ICCS footage captured WO #5 exiting the passenger side of his police vehicle (Vehicle #3) and stopping near the right side of the bumper of police Vehicle #2. Further ICCS footage captured WO #1 reversing his police vehicle into a laneway south of the YMCA building to avoid a collision with police Vehicle #2, when the van collided with police Vehicle #2 (WO #2 and WO #4’s police vehicle). Immediately after the collision, the Complainant is captured exiting the driver side of the van and running southbound across the parking lot toward a garbage dumpster. The SO is visible chasing the Complainant on foot and tackling him to the ground near two parked cars. They are then hidden from view.

Shortly thereafter, an audio recording captures a car door opening, which is believed to be the SO entering police Vehicle #3. The audio captures heavy breathing and a male voice (believed to be the SO) saying, “Fuck, fuck, fuck me.” A second male’s voice can be heard speaking with the SO, but the words are inaudible. The SO responds, “He ran into us…(inaudible)… I turn around, he’s turning right toward me. I fired two shots, I almost got run over.” Further inaudible conversation continued between the two police officers, but it appears they moved outside the police vehicle.

Starting at 1:39:38 a.m., a radio transmission from a radio dispatcher is heard, informing the police dispatcher that the involved officer would be attending his (the radio dispatcher’s) police vehicle. At 1:45:11 a.m., the radio dispatcher made a second radio transmission requesting an ambulance to attend for a police officer with a particular badge number (now known to be the SO). At 1:51:45 a.m., the radio dispatcher advised the dispatcher that a numbered ambulance was at the scene and the officer (the SO) was on board with WO #1.

Police Communications Recordings


Radio Communications


TPS radio communication recordings of the events on Sunday, December 8, 2019 leading up to the Complainant’s arrest were found to be consistent with the YMCA video footage, the Computer-Assisted Dispatch printouts, and the TPS ICCS’s video recordings. The radio communications were also consistent with the statements of the Complainant, the involved police officers, and the TPS supporting documentation.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • General Occurrence Hardcopy;
  • Intergraph Computer-Assisted Dispatch Unit History Report;
  • Notes-all WOs;
  • TPS ICCS Footage;
  • Police Firearm Acquired;
  • Policy-Arrest;
  • Policy-Use of Force;
  • TPS interactions with the Complainant; and
  • Training Records-Use of Force Qualification for the SO.
  • Materials obtained from Other Sources
In addition to the materials received from the TPS, SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records; and
  • Video recordings of the events in question captured by surveillance cameras affixed to buildings in the area of the incident.

Incident Narrative

At 1:35:44 [1] a.m., the ICCS video from the police cruiser operated by WO #3 captured the stolen Toyota Sienna minivan travelling eastbound into a laneway off of Vanauley Street, with the police cruiser following directly behind. The CCTV footage then captured the van stopping beside some parked cars. Immediately thereafter, the reflections of the emergency lighting system on WO #3 and the SO’s police vehicle can be seen, followed by the vehicle itself entering the parking lot and advancing toward the stolen motor vehicle. A second police vehicle - an SUV with WO #4 and WO #2 on board - is seen to enter the parking lot behind WO #3’s cruiser. Its emergency lighting system is also activated.

The SO is captured on the ICCS video exiting the cruiser and following the Toyota Sienna on foot and then walking northbound along the fence line on the east side of the parking lot. WO #4 and WO #2 are also seen to exit their police vehicle, leaving it unoccupied and blocking the laneway, not allowing an exit out of the parking lot. These officers then run northbound in the parking lot.

At 1:35:50 a.m., the reverse lights are activated on the van, and the van reverses and crashes into the front bumper of WO #3’s police cruiser. The van then moves forward and is seen driving over several small trees and reaching a dead end. The van is followed by WO #3, who is still driving the police cruiser. WO #3 stops his cruiser behind the minivan, while the SO is seen running westbound across the parking lot with his service pistol out. The Toyota van is then seen travelling southbound toward the SO. The SO stops at the left back corner of a parked car and points his firearm directly at the moving Toyota van. The ICCS video captures the van driving directly at the SO, who then jumps to his left to avoid being struck. While there is no audio on the CCTV footage, and no muzzle flash is seen from the SO’s firearm, it appears that it is at this point that the SO discharges his firearm once.

The Toyota continues to accelerate directly at the SO, forcing him to again move quickly to avoid being struck by the van. At this point, the SO appears to discharge his firearm a second time, striking the windshield of the van again. The Toyota van continues to travel away from the officers.

The Toyota is then seen ramming into the front bumper of WO #4 and WO #2’s police SUV, pushing the vehicle back from its parked position. WO #4 runs away from his police vehicle in order to avoid being struck by the van during the collision. WO #1, who had just arrived, reverses his police vehicle into a laneway to avoid a collision with WO #4’s police vehicle as it is being pushed back by the stolen minivan.

The SO, WO #2, WO #3 and WO #4 are then seen to run towards the driver’s door of the van. The Complainant exits the driver’s door of the stolen van and flees southbound. The SO chases after the Complainant with his gun pointed in his direction. WO #2, WO #3 and WO #4 also run in that direction. The SO is seen to catch up to the Complainant and tackle him to the ground, after which he is placed under arrest and handcuffed.

Shortly after the Complainant’s arrest, the ICCS video from the SO’s police vehicle records him entering the cruiser, following which he says, “He ran into us ... (inaudible) ... I turn around, he’s turning right toward me. I fired two shots. I almost got run over!”

Examination of the stolen motor vehicle revealed two bullet impact sites in the front windshield.

The SIU collision reconstructionist’s report revealed that the Complainant had accelerated to a speed of about 38 km/h when he was driving in the direction of the SO, before colliding with the front of WO #4 and WO #2’s police vehicle.

There is no suggestion that the Complainant was punched or kicked or that any undue force was used by any police officer after he was tackled to the ground and arrested.

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.

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

(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 preservation of any one under that person’s protection from death or grievous bodily harm.

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if
(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.

(5) A peace officer is justified in using force that is intended or is likely to cause death or grievous bodily harm against an inmate who is escaping from a penitentiary within the meaning of subsection 2(1) of the Corrections and Conditional Release Act, if
(a) the peace officer believes on reasonable grounds that any of the inmates of the penitentiary poses a threat of death or grievous bodily harm to the peace officer or any other person; and
(b) the escape cannot be prevented by reasonable means in a less violent manner.




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.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

Analysis and Director's Decision

On December 8, 2019, at approximately 1:21 a.m., a Parking Enforcement Officer observed a stolen motor vehicle in the area of Sackville Street, Toronto, and notified the TPS, who dispatched officers to the area. Upon their arrival, the responding officers, WO #2 and the SO, observed the Complainant enter the stolen motor vehicle and flee. The police officers pursued the stolen vehicle to a parking lot behind the YMCA on Vanauley Street. During their efforts to arrest the Complainant for possession of the stolen motor vehicle, the SO twice discharged his firearm at the vehicle, both times striking the windshield of the vehicle, with one bullet striking the Complainant’s hand.

The Complainant was later seen at hospital, where it was discovered that he had a bullet fragment lodged in his hand, which had caused a fracture. The bullet fragment was surgically removed.

The SO was identified as the subject officer for purposes of the SIU investigation. 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 injury.

While the SO opted not to provide a statement to SIU investigators (as was his legal right), based on the statements provided by the Complainant, one other civilian and five police witnesses, as well as video footage from CCTV cameras at the YMCA and ICCS recordings, the facts were established. On a review of this evidence, for the reasons that follow, I am unable to form reasonable grounds to believe that the actions of the SO, in resorting to a use of lethal force, were excessive in these circumstances and there is, therefore, no basis for the laying of criminal charges.

Whether considered pursuant to the frameworks set out in section 25(3) or 34 of the Criminal Code, the former setting out the test for legal justification in the case of lethal force used in the execution of a police officer’s duty, the latter 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.

It is clear that when the SO and WO #3 followed the Complainant as he was fleeing in the stolen motor vehicle, they were acting in the course of their duties in that they were attempting to arrest the Complainant for an offence which they found him to be committing at the time, namely, possession of a stolen motor vehicle. Thereafter, as soon as the Complainant led the officers in a police pursuit and then rammed their police vehicle, they had further grounds to arrest him for additional criminal offences. As such, the officers were clearly acting within the scope of their lawful duties when they attempted to stop and arrest the Complainant.

When the Complainant then began to drive directly at the SO, as is clearly seen in the video footage, after having already rammed their police vehicle, it is clear that the SO was at risk of grievous bodily harm, if not death. In fact, other officers present at the time immediately preceding the SO discharging his firearm believed that at least one or more of the officers were at risk of being run over by the Complainant. WO #2, in particular, took cover between two police vehicles in order to avoid being injured himself. Based on the comment made by the SO, as captured on the ICCS audio, the subject officer also feared that he was going to be run over by the Complainant and the Toyota minivan. On this basis, as supported by the video, I accept that the SO genuinely and reasonably believed that shooting the Complainant was necessary to protect himself, or his colleagues, from loss of life or grievous bodily harm. While such action could not be expected to halt the van in its tracks, disabling its operating mind might go some ways to mitigating the immediate dangers posed by the van’s continued operation.

On the aforementioned-record, I am unable to reasonably conclude that the SO, under a legitimate apprehension that discharging his firearm was necessary to protect himself and/or his colleagues from a lethal threat, acted unreasonably in so doing, notwithstanding the injury to 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, or by any police officer present during the apprehension of the Complainant, no charges will issue, and this file is closed.


Date: June 22, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) There is some discrepancy as to times, as not all of the sources of video were synchronized. [Back to text]