SIU Director’s Report - Case # 21-TFI-019

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Information Restrictions

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 
  • The name of, and any information identifying, a subject official, witness official, civilian witness or affected person. 
  • Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault. 
  • Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person. 
  • Information that discloses investigative techniques or procedures.  
  • Information, the release of which is prohibited or restricted by law.  
  • Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published. 

Freedom of Information and Protection of Privacy Act

Pursuant to section14 (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 that 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 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 
  •  The names of persons, including civilian witnesses, and subject and witness officials; 
  • 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

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

Other proceedings, processes, and investigations

Information may also have 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

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the serious injuries a 31-year-old man (the “Complainant”) suffered during an interaction with the police.

The Investigation

Notification of the SIU

On January 14, 2021, the Toronto Police Service (TPS) notified the SIU of the Complainant’s firearm-related injury.

TPS reported that on January 14, 2021, at about 8:00 p.m., TPS Drug Squad (TDS) police officers conducted a takedown of a vehicle at Midland Avenue and Eglinton Avenue East. The driver of the vehicle, the Complainant, was shot in the hand and taken to Scarborough General Hospital (SGH). A female was arrested and taken to 41 Division. The scene was being held.

The Team

Date and time team dispatched: 01/14/2021 at 9:13 p.m.

Date and time SIU arrived on scene: 01/14/2021 at 11:10 p.m.

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 2
Number of SIU Collision Reconstructionists assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on January 15, 2021.

Civilian Witnesses (CW)

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

The civilian witnesses were interviewed between January 15 and 16, 2021.

Subject Official (SO)

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

Witness Officials (WO)

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

The witness officials were interviewed on January 20, 2021.


Evidence

The Scene

This incident occurred at 2510 Eglinton Avenue East, a commercial business known as Church’s Texas Chicken, located on the north side of Eglinton Avenue East and east of Midland Avenue. The premise was a stand-alone building with a paved parking lot. The parking lot was in front and to the east of the restaurant. There were two driveways leading into the rear parking lot (east and west of the restaurant), and the parking lot and restaurant were well lit. There was a raised concrete wall with a fence on the west side of the parking lot. There were closed-circuit television (CCTV) camera heads located on the southwest corner, northwest corner and southeast corners of the restaurant.

There were seven involved vehicles, both directly and indirectly, within the scene. Only four of these vehicles were of any evidentiary value.


Vehicle 1

A Hyundai Sonata 4-door black (TPS unmarked police vehicle). This vehicle was orientated in a northerly direction in the west driveway and north of the northwest corner of the restaurant. It had extensive front end collision damage with the engine hood crumpled and pushed to the front windshield. The vehicle’s front end was in contact with the rear end of the Dodge pickup truck. The vehicle was locked, and vehicle debris was located on the driveway to the south and west of this vehicle.


Figure 1 – Hyundai Sonata

Figure 1 – Hyundai Sonata


Vehicle 2

A Dodge Ram crew cab, red 4x4 pickup truck. This vehicle was orientated in a northeast direction in the rear parking lot (west side). There were three apparent bullet strikes to the left side of the vehicle. The driver’s door was open with apparent blood staining visible to the driver’s compartment of the vehicle. There was a cellphone on the driver’s seat and a visible projectile on the driver’s floor mat. There was a trail of blood from the driver’s door to the west side raised fence line and then a pool of blood to the west of the pickup truck. The rear of the pickup truck was in contact with the front of the Hyundai police vehicle. The front left of the pickup truck was in contact with the front left of the Dodge Charger police vehicle. The left front tire was flat. The right side of the pickup truck was up against the passenger side of a parked Honda Odyssey van.


Figure 2 – Positioning of Dodge Ram pickup, Honda Odyssey and Dodge Charger

Figure 2 – Positioning of Dodge Ram pickup, Honda Odyssey and Dodge Charger


Vehicle 3

A Dodge Charger 4-door black (TPS unmarked police vehicle). This vehicle was orientated in a southwest direction in the rear parking lot of the restaurant and had extensive front left collision damage. The airbags had deployed on both the driver’s and front passenger’s side. The passenger sun visor was down showing emergency police lighting. The front left of the vehicle was in collision with the front left of the pickup truck and had extensive collision damage to the front left.


Figure 3 – Damage to the front left of the Dodge Charger

Figure 3 – Damage to the front left of the Dodge Charger


Vehicle 4

A Grey Honda Odyssey van. This vehicle was orientated in a southwest direction in the rear parking lot of the restaurant. The right side of the vehicle was in contact with the right side of the pickup truck. There was heavy collision damage to the right side of the van. There was a bullet strike to the right side of the van above the right rear window (in line with a bullet strike to the driver’s side window of Vehicle 2 that exited through the front passenger side window striking the Honda Odyssey).


Figure 4 - Bullet strike to the right side of the Honda Odyssey

Figure 4 - Bullet strike to the right side of the Honda Odyssey

Scene Diagram

Scene diagram

Physical Evidence


Cartridge Cases and Other Physical Evidence

A total of four 9mm cartridge cases were located on the west side of the parking lot and east of the raised west fence. Exhibits 1, 2, 3 and 4 were located west of the Dodge pickup truck.

To the east of the cartridge cases and west of the pickup truck was a pool of blood. Blood staining was visible on the east side concrete of the raised west border fence line and west of the cartridge cases.

Located on the ground next to the open driver’s door was a yellow toque hat and wireless earpieces in a pouch and an empty small ashtray bucket. Located south of the left front fender of the Honda Odyssey van were two pieces of bullet fragments.


The SO’s Rifle

The SO’s rifle was recovered by the SIU at TPS 31 Division, as well as a 9 x 19 magazine with 15 WIN 9 mm Luger cartridges.


Figure 5 – The SO’s CZ Scorpion rifle

Figure 5 – The SO’s CZ Scorpion rifle

Forensic Evidence


Trajectory Report

A total of four bullet strikes (BS) were observed on the Dodge pickup truck. BS #1 was to the driver’s door side window and measured 2 cm horizontal x 1.6 cm vertical. It was located 30 cm right of the left mirror window molding (facing the pickup truck) and 1.5 metres from the ground; the angle measured 5 degrees upward. The bullet continued across the front passenger compartment exiting the front passenger window and striking the right rear (above the rear passenger side window) of the Honda Odyssey.

BS #2 was to the drivers’ side door and 9 mm in diameter. The BS was located 1.3 metres off the ground, 18 cm below the window, and 52 cm right of the front door seam and 67 cm left of the rear front door seam (facing the pickup truck). The angle measured was 20 degrees downward. It had a slight right to left direction with the projectile exiting the front of the drivers’ door arm rest under the window control switches. It is believed a bullet fragment, located on top of the driver’s floor mat, would be associated with this bullet strike. It is believed a bullet fragment removed from the Complainant’s left knee was associated with this bullet strike.

BS #3 was to the left front fender and right of the front wheel (facing the pickup truck). It was located 96.5 cm from the ground and 9 cm left of the front seam. The BS was 1.1 cm horizontal x 1.5 cm vertical, the angle measured was 28 degrees downward, and the bullet path was right to left. There was a horizontal tear to the inner fender well right of the front wheel. No projectile was located that could be associated with this bullet strike.

BS #4 was located at the base of the sidewall at the start of the tread pattern of the driver’s side tire. The hole measured 4 mm in diameter. The rim was removed with portions of bullet fragment found within the tire. The bullet continued from its entrance and struck the inside sidewall at the rim bead. The bullet was lodged within the tire bead. To preserve the integrity of the bullet a portion of the sidewall was cut. As it was impossible to replicate the position of the tire at the time of the shooting, as the truck was not stopped, trajectory could not be attempted.


Figure 6 – Bullet strikes to the driver’s side of the Dodge pickup truck

Figure 6 – Bullet strikes to the driver’s side of the Dodge pickup truck


Centre of Forensic Sciences (CFS) Submissions and Results

Exhibits were forwarded to the CFS for further examination. An additional request was made for the CFS to examine the bullet fragments found in the pickup truck tire to compare them to already submitted exhibits to determine if they were fired by the SO’s Scorpion rifle. As of the date of this report, the CFS results were not yet available.

Video/Audio/Photographic Evidence [1]


CCTV Footage from Church’s Texas Chicken

The SIU received CCTV footage from Church’s Texas Chicken on January 15, 2021. The following is a summary.

At 7:48:24 p.m., [2] a red pickup truck [now known to have been a Dodge Ram operated by the Complainant] entered the rear parking lot of Church’s Texas Chicken and stopped facing northeast. A black Dodge Charger operated by WO #3 entered the lot and proceeded through a laneway on the west side of the building in between a parked grey minivan and a parked white sedan taxi. The Dodge Charger entered the rear parking lot and stopped at the driver’s rear side of the Complainant’s pickup truck.

At 7:48:37 p.m., a black sedan Honda Accord, operated by the SO, entered the rear parking lot and stopped behind the rear passenger side of the pickup truck. The emergency lights on the sun visor of WO #3’s vehicle were activated. As the SO and WO #3 exited their respective vehicles, along with WO #6, the Complainant reversed westbound through the lot, nearly striking the front of the SO’s vehicle. The Complainant continued to reverse westbound through the property. The SO followed the pickup truck on foot with a firearm drawn.

At 7:48:47 p.m., the Complainant’s pickup truck reversed down the west side laneway and side-swiped the entire passenger side of the parked grey minivan. A black Hyundai Sonata operated by WO #2 entered the lot. The SO, wearing a police vest and armed with a firearm, appeared to verbally engage the Complainant as he reversed onto the hood of WO #2’s vehicle. WO #6 ran to the east side of the property and out of camera view, while WO #3 maneuvered his vehicle to the west side of the property. The Complainant accelerated forward, towards the SO, and collided head-on with WO #3’s vehicle as the SO retreated backwards towards a fence. At 7:48:58 p.m., the SO discharged his firearm at the driver’s side of the Complainant’s pickup truck, with at least one bullet exiting the passenger side window.

WO #2’s vehicle proceeded forward and boxed-in the pickup truck to the rear. The SO appeared to continue to verbally engage the Complainant from the driver’s side door while holding him at gunpoint.

At 7:49:09 p.m., WO #2 attended the driver’s side door of the pickup truck and WO #6 approached on foot. WO #2 opened the driver’s door of the pickup truck, but the door appeared to swing shut and open again. WO #3 held the Complainant at gunpoint while positioned at the threshold of his vehicle. WO #6 emerged from the driver’s side of the parked grey minivan, went around the rear of WO #3’s vehicle, and attended the driver’s door of the pickup truck. WO #3 held the Complainant at gunpoint while on the hood of the pickup truck.

At 7:49:36 p.m., WO #6 removed the Complainant from the driver’s seat. WO #3 jumped off the hood of the pickup truck and assisted WO #6 in taking the Complainant to the ground. WO #3 and WO #6 placed the Complainant on his stomach while the SO continued to hold him at gunpoint. A uniformed police officer arrived with a first aid kit and WO #6 applied a tourniquet to the Complainant’s right hand. WO #6 and WO #3 assisted the Complainant to his knees and searched him.

The Fire Department and Emergency Medical Services (EMS) arrived on scene. The Complainant was assisted onto a stretcher, and taken to the ambulance and out of camera view.


CCTV from a Residence on Midland Avenue

The CCTV footage from a residence on Midland Avenue was received by the SIU on January 25, 2021 and reviewed. It was found to be of no evidentiary value.


Video Footage from a TTC Bus

The video footage from a TTC bus was received on January 15, 2021 and reviewed. It was found to be of no evidentiary value.


TPS 911 and Radio Communications

The 911 and radio communications were received by the SIU from TPS on January 26, 2021.

At 7:58:35 p.m., CW #3 reported she heard gunshots at the Church’s Texas Chicken and cars running into each other. She heard voices and four or five gunshots. She was calling from a nearby residence [address provided] and said the police were on scene.

A second woman called 911 and advised that police and ambulance would be required. The call was transferred to ambulance. She advised that something was going on behind Church’s Texas Chicken; someone was smashing into vehicles.

At 7:58:55 p.m., a man called 911 and advised that the police were required at a shooting and possible drive-by at Midland and Eglinton. He saw a man wearing a yellow hat and a black vest running around. He saw police in the area. One man was wearing a black sweater, black toque and had a gun. This man ran east towards Church’s Texas Chicken. He heard screeching near the dumpster. There was a guy with a blue hoodie in front of the Pizza Pizza.

At 7:58:57 p.m., a man asked the dispatcher to send EMS to Church’s Texas Chicken at Eglinton and Midland. The dispatcher advised that there had been calls at that location of gunshots and asked if everything was okay. The dispatcher contacted the Emergency Task Force and advised of a gunshot call in 41 Division.

The dispatcher called the EMS and requested attendance at Midland and Eglinton regarding gunshots. A member of the TDS called the dispatcher and advised that they had one in custody at the back of Church’s Texas Chicken, noting a personal injury collision and gunshots fired. The police officer reported that the target was injured, and to roll an ambulance.

At 8:01:29 p.m., the TTC called the dispatcher about Midland Avenue and Eglinton. A bus was driving through the area and the driver had called-in to advise that he may have video. The driver saw two cars pull into the parking lot and heard popping.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from the TPS between January 15, 2021 and February 9, 2021:
  • Computer-assisted Dispatch Event Details Report;
  • Notes-WO #6;
  • Notes-WO #5;
  • Notes-WO #2;
  • Notes-WO #1;
  • Notes-WO #3;
  • Notes-WO #4;
  • 911 Call and Radio Communications;
  • Event Synopsis;
  • General Occurrence;
  • Training Records x 5 – the SO;
  • Injury Report – the Complainant;
  • Policy-Arrest;
  • Policy-Service Firearms;
  • Policy-Use of Force Appendix A;
  • Policy-Use of Force Appendix B;
  • Policy-Use of Force;
  • Controlled Drugs and Substances Act Search Warrants;
  • Forensic Identification Service Photos;
  • Auto Squad Photos; and
  • Photos of Dodge Ram.

Materials Obtained from Other Sources

The SIU received the following records from other sources between January 15 and 28, 2021:
  • Medical Records of the Complainant-SGH;
  • CCTV from Church’s Texas Chicken;
  • CCTV from a Residence on Midland Avenue;
  • Cell phone photos from CW #2; and
  • Video footage from a TTC bus.

Incident Narrative

The material events are clear thanks to security camera footage that captured the incident in its entirety. Statements were also gathered from the Complainant, several civilian witnesses, and police witnesses who participated in the operation resulting in the Complainant’s arrest. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

Shortly before 8:00 p.m. of January 14, 2021, the Complainant, operating a red pickup truck with CW #1 as his passenger, pulled into the parking lot of Church’s Texas Chicken on the north side of Eglinton Avenue East, just east of Midland Avenue. He stopped on the east side of the lot facing north, adjacent to a convenience store, whereupon CW #1 exited and made her way to the plaza west of the restaurant. Shortly thereafter, the Complainant decided to turn his vehicle around as he waited for CW #1 to return. He drove further north and turned his truck such that it was positioned facing east in and around the northeast corner of the lot. Before the Complainant could reverse to continue his 3-point turn, a Dodge Charger drove up and came to a stop facing the driver’s side of the truck. A Honda Accord did the same by the rear passenger side of the truck. The vehicles were unmarked police vehicles and their occupants were there to arrest the Complainant for drug offences.

Moments earlier, CW #1 had walked over to a car parked in the lot of the adjoining plaza where she joined a male inside the vehicle. CW #1 provided the male a quantity of crack cocaine and received payment in return. The male was an undercover police officer – WO #1. Immediately following the transaction, WO #1 signaled that the deal had taken place, after which WO #4 and WO #5, staged in the area, approached the vehicle and arrested CW #1. At the same time, other officers moved in with their vehicles to prevent the Complainant’s departure from the area and take him into custody.

The events of January 14, 2021 were the culmination of a weeks’ long TPS Drug Squad investigation involving the Complainant and CW #1. WO #1 had previously arranged to purchase cocaine from CW #1 on January 2 and 5, 2021. On each occasion, the transaction occurred in the Midland Avenue and Eglinton Avenue East area. CW #1 had been seen arriving in a red pickup truck with the Complainant on the latter date. On January 14, 2021, the Drug Squad obtained a series of search warrants naming CW #1 and the Complainant as targets of an ongoing drug investigation and authorizing the search of the Complainant’s pickup truck. It was decided that both parties would be arrested that evening following the execution of the planned drug deal.

Upon seeing his truck surrounded by the two vehicles, the Complainant accelerated in reverse across the north end of the restaurant toward the narrow laneway along the western end of the property. The SO had exited his Accord by this time holding a CZ Scorpion rifle. The officer aimed the firearm at the truck and yelled at the Complainant as he followed the vehicle westward across the rear of the restaurant. He was joined by WO #6, who had stopped his vehicle behind the SO’s Accord and also exited with a sidearm in hand, aimed at the pickup truck, and yelling at its driver to stop.

The pickup truck continued in reverse and, with its passenger side, sideswiped the passenger side of an uninvolved minivan parked along the northwest corner of the restaurant before proceeding southward into the laneway. As it did so, the backend of the truck struck and then climbed onto the hood of a Hyundai Sonata. WO #2 was driving the Sonata and moving forward through the laneway to prevent the truck’s escape when the collision occurred. His pathway effectively blocked by the Sonata, the Complainant accelerated forward several metres and struck the front end of WO #3’s Dodge Charger. WO #3 had followed the Complainant in his vehicle as the latter initially reversed away from the officer.

The SO was a few metres in front of the pickup truck as it reversed and struck WO #2’s vehicle, thereafter, moving northward and out of the vehicle’s path as it began its forward travel again en route to striking WO #3’s Charger. The officer discharged his rifle four times in rapid succession in and around the time of the second collision.

The Complainant’s right hand was struck by one of the bullets fired by the SO. The fragment from another bullet struck the Complainant in the left knee.

Following the shooting, the Complainant was removed from the pickup truck by WO #6, placed on the ground, and handcuffed.

Paramedics attended the scene and transported the Complainant to hospital.

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

On January 14, 2021, the Complainant was shot and seriously injured by a TPS officer in the course of his arrest. The officer who discharged his weapon – the SO – was identified as the subject official 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 shooting.

Section 34 of the Criminal Code sets out the conditions under which force used in the defence of oneself or another is legally justified. It provides that the application of force does not constitute an offence where it is intended to repel a reasonably apprehended attack, actual or threatened. The force in question must also be reasonable in the circumstances, including with respect to such considerations as the nature of the force or threat; 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; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. I am unable to reasonably conclude on the evidence that the force used by the SO fell afoul of the section 34 justification.

I accept that the SO fired his weapon believing it to be necessary to protect himself, and possibly others, from a reasonably apprehended attack at the hands of the Complainant. Though the investigation was without first-hand evidence of the officer’s state of mind at the time, the circumstances surrounding the incident compel the conclusion. By the time of the gunfire, the SO had seen the Complainant operating his pickup truck in a desperate attempt to escape police apprehension. The Complainant had already struck a parked minivan and the vehicle of a fellow officer before it changed gears and accelerated in the officer’s direction from not more than a few metres away. On this record, I am satisfied that the SO shot at the Complainant harbouring a real and legitimate concern that doing so was necessary to protect himself from an imminent risk of harm. The issue turns to the reasonableness of the SO’s conduct.

In my view, the SO’s resort to his firearm was a tactic reasonably available to the officer in the circumstances. There is little doubt that the Complainant knew he was being confronted by police officers seeking to arrest him for a drug offence. The emergency lights of WO #3, which were on as he first approached the pickup truck’s driver side, and the SO’s vest with the word, “Police,” on the front, would have made that clear. There is also little doubt in the evidence that the officers had lawful grounds to arrest the Complainant given the search warrants that had been obtained and the drug transaction that had just occurred.

The Complainant failed to surrender and instead made it very apparent that he was determined to escape. He pursued his cause with reckless abandon, his truck reversing into WO #2’s vehicle, striking it violently and climbing onto the vehicle’s hood, the rear passenger’s side wheel coming within centimetres of the officer’s driver’s side windshield. Thereafter, despite the presence of the SO directly in front of the truck, the Complainant accelerated forward off of WO #2’s vehicle toward the officer. As he did so, the SO maneuvered to his right and found himself by the truck’s driver’s side as he discharged his weapon four times. By this time, the SO, and WO #2 and WO #3, were essentially under assault by the Complainant wielding a dangerous weapon – a truck obviously capable of inflicting grievous bodily harm or death.

On the aforementioned-record, given the speed and the confined quarters within which events unfolded, the latter rendering withdrawal an unrealistic option, I am satisfied that the SO was within his rights in matching the deadly threat presented by the Complainant’s operation of the truck by lethal force of his own. This is so notwithstanding the fact that the SO was no longer in the path of the pickup truck when he fired his weapon. In arriving at this conclusion, I am mindful that police officers embroiled in dangerous and dynamic situations are not expected to measure their defensive force with precision; what is required is a reasonable response, not an exacting one: R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. CA); R. v. Nasogaluak, [2010] 1 SCR 206. Faced with a serious threat to life and limb, with only split seconds in which to react to a pickup truck moving toward him and little space within which to maneuver, I am unable to fault the officer for acting as he did in the heat of the moment. Nor, given the rapidity of the shots, can it be said that the threat level the officer would have reasonably apprehended changed materially from shots one through four.

This is another case in which an officer has placed himself in a position of danger in front of a motor vehicle attempting to flee from police, thereafter, resorting to a firearm to protect themselves. In order to deter such conduct, in the interests of protecting the health and safety of their members and the community, including the target drivers, TPS has instituted a policy prohibiting officers from placing themselves in the path of an occupied motor vehicle with the intention of preventing its escape. It is also TPS policy to prohibit its officers from firing at a motor vehicle or its occupants unless there exists an immediate threat of death or grievous bodily harm by means other than the vehicle. This said, while the SO may have acted improvidently, the officer did not lose the right to defend himself when the Complainant drove at him. As I am satisfied that the Complainant did so intentionally, and was deliberately using his truck as a battering ram to break free of police vehicles and make good his escape, the SO was within his rights in attempting to incapacitate the truck’s operating mind.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: May 13, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
  • 2) Times derived from video recording. [Back to text]

Note:

The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.