Director's Report Details

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.

Freedom of Information and Protection of 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.

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

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

This report relates to the SIU’s investigation into the death of a 37-year-old man (the “Complainant”).

Notification of the SIU

On January 18, 2020 at 12:40 p.m., the Toronto Police Service (TPS) notified the SIU that a man had been shot by members of the TPS Guns and Gangs Task Force (GGTF).

According to the TPS, sometime after 12:00 p.m. the GGTF located the Complainant in the area of McCowan Road at Town Centre Court. The Complainant was the suspect in a homicide investigation. GGTF officers discharged firearms, striking the Complainant. The Complainant then surrendered to officers. The TPS reported the injuries did not appear to be life-threatening.

At the time of notification, the TPS did not have the Complainant’s information or any officer information.

The Scene

The incident under investigation occurred on McCowan Road, east of a condominium building on Town Centre Court.

Immediately following the shooting of the Complainant, it began to snow heavily, making scene examination difficult.

The Complainant was operating a red GMC Sierra pickup truck owned by his employer. The red pickup truck was pinned-in by four vehicles operated by GGTF members. Other GGTF vehicles were nearby.

A marked TPS patrol vehicle was parked to the east of the red pickup truck. That patrol vehicle had arrived at the scene prior to the shooting.

The Complainant’s pickup truck had numerous bullet strikes on the driver’s side, the windshield and the roof.

Four .223 calibre rifle cartridge cases and eight .40 calibre handgun cartridge cases were recovered from the scene. A projectile was also recovered at the scene. The TPS later turned over a projectile recovered from the Complainant during surgery at the hospital.

Scene Diagram

Forensic Evidence

Report from the Centre of Forensic Sciences (CFS)

The SIU submitted to the CFS the two pistols and the rifle discharged during the incident. The spent cartridge cases recovered at the scene were submitted to the CFS to determine their source weapon.

The CFS determined SO #1’s pistol was the source of five spent cartridge cases recovered at the scene. Three cartridge cases were identified as having come from SO #2’s pistol. The four rifle cartridge cases recovered at the scene were confirmed to have been ejected by the rifle carried by SO #3.

A count of the ammunition available in each firearm post-shooting indicates that SO #3 fired his weapon four, and possibly up to seven, times; SO #1 fired his weapon five, and possibly six, times; and, SO #2 fired his weapon five, and possibly six, times.

All three firearms were determined to be functioning properly.

Expert Evidence

Report of Post-Mortem Examination

The Report of the Post-Mortem Examination dated September 15, 2020 and received by the SIU on October 28, 2020, attributed the Complainant’s death to “complications of gunshot wounds to the chest and left arm”.

The pathologist noted five gunshot wound tracks to the chest and/or left arm. One of the wound tracks was associated with two wounds. There were, according to the pathologist, two additional wounds which could have been the result of gunfire, but which might also have arisen from surgical intervention.

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:

• Various Civilian Witnesses’ recordings of the incident.

Various Civilian Witnesses’ Recordings of the Incident

The incident under investigation occurred on McCowan Road, east of a condominium building on Town Centre Court. The witnesses who provided video recordings of the events all resided in that condominium building, in units with balconies on the east side of the building.

The videos obtained showed the Complainant’s pickup truck boxed-in by a number of GGTF vehicles. There was a Ford Escape stopped directly in front of the Complainant’s red pickup truck, a Honda Civic stopped against the rear of the red pickup truck, a black Honda Accord stopped on an acute angle against the driver’s door of the pickup truck and a Chevrolet Impala stopped on an acute angle against the front passenger door of the pickup truck. Further back from the rear of the Complainant’s pickup truck there was a Dodge Caravan and a Subaru Outback.

The roads were snow-covered, and it was snowing lightly at the time of the shooting. According to Environment Canada, at 12:00 p.m. the temperature was minus four degrees Celsius.

CW #4’s video recording started with a view of the Complainant’s pickup truck and several police officers standing close by with their firearms drawn. One police officer stood at the front driver’s side corner of the pickup truck, pointing a C8 rifle at the Complainant. Two other plainclothes police officers stood on the driver’s side of the black Honda Accord that had been positioned against the driver’s door of the Complainant’s pickup truck.

On the passenger side of the Complainant’s truck, toward the rear of the vehicle, stood three plainclothes police officers. One of the three police officers opened the rear passenger side door of the pickup truck and two of the officers entered the rear seat of the truck. Those officers were quickly ordered to, “Get out.” Police officers yelled at the Complainant to show his hands. The police officers inside the pickup truck exited the vehicle and retreated a few steps away from the vehicle.

Police officers continued to yell at the Complainant to keep his hands up.

A marked TPS patrol vehicle arrived and parked in the northbound lanes of McCowan Road, close to the Complainant’s pickup truck. Two uniformed officers, known to be WO #4 and WO #5, exited the vehicle and began to direct traffic.

The plainclothes police officers continued to yell commands to the Complainant. At 06:05 minutes of elapsed time in CW #4’s recording, the three plainclothes police officers closest to the driver’s door of the pickup truck discharged their firearms, retreating from the vehicle as they fired their weapons.

The police officers then took a position of cover behind one of the GGTF vehicles. From a position behind the Subaru Outback parked at the rear driver side of the pickup truck, officers ordered the Complainant to put his hands out the window of the truck.

At 20:24 minutes of elapsed time in the video recording, six police officers started to move toward the driver’s door of the pickup truck. The Complainant was extricated from the vehicle through the driver’s door window.

CW #2 recorded the events as they unfolded. His recording revealed that the police at one point were yelling, “Put your hands up. Don’t do it. Keep your hands on the wheel!” Approximately one second after those words, the police started to fire their firearms at the Complainant.

CW #2’s video recording also showed the police officers retreating to a position of cover, from where they repeatedly issued commands for the Complainant to put his hands out the window.

At the time of the shooting, CW #3 was travelling southbound on McCowan Road. As he prepared to turn into a side street just north of the incident scene his dash camera recorded the sound of multiple gunshots.

CW #3 arrived in his condominium unit and video recorded the scene below. His video recording showed a number of police officers taking cover behind a Subaru Outback that was parked on the driver side of the Complainant’s truck. In the recording, police officers could be heard yelling, “Put your hands out the window!” The police officers also yelled, “Both your hands out the window, do it now!” and, “Stop moving around!”

CW #3 later recorded the police officers removing the Complainant from the pickup truck by pulling him out of the driver’s door window and onto the hood of the police vehicle stopped against the driver’s door of the pickup truck. The Complainant was then placed on the ground in front of the vehicle. One of the police officers handling the Complainant could be seen shaking his hand, as though trying to cast off blood from his hand, at the 03:19 minutes elapsed time mark of the video.

A video recording provided by another civilian started at the point the Complainant was being removed from the pickup truck. The video recording did not add any further details regarding the events.

An Apple FaceTime video recording provided by CW #1 began at 12:11 p.m. There was no audio portion to the video recording. The video recording captured the Complainant sitting in the driver’s seat of the pickup truck. He appeared to be breathing heavily. He looked around the inside of the truck and appeared to be somewhat disoriented. He then reached down toward the floor area on the passenger side of the vehicle and he retrieved a large bottle containing a clear yellow liquid, now known to be antifreeze. He opened the container and consumed the entire contents of the bottle.

The Complainant turned the telephone camera toward the exterior of the truck and the camera recorded an image of a marked police cruiser parked nearby. The Complainant appeared to shout to someone. The Complainant then resumed his ongoing conversation with CW #1. He appeared to grimace in pain during their conversation.

At 02:17 minutes into the recording, CW #1 attempted to call the Complainant’s father. He did not answer, and the CW #1 then called the Complainant again.

At 04:48 minutes into the recording, the Complainant answered the call. He appeared to be in pain as they spoke. The Complainant divided his attention between speaking to CW #1 and yelling out the window of the truck. The Complainant turned toward the driver’s door window repeatedly and appeared to reach toward the window, perhaps trying to comply with the police commands to place both hands out of the window. However, he then fell back into the seat, wincing in pain.

The Complainant dropped his cellular telephone onto the floor of the pickup truck and from that point there was no image of what was transpiring inside the vehicle.

Communications Recordings

At 12:05 p.m., a member of the TPS GGTF requested a patrol car at the intersection of McCowan Road and Town Centre Court. The GGTF member reported they were intending to arrest a man who was sitting in a vehicle, but the man was refusing to exit the vehicle and was refusing to obey orders. The GGTF asked for patrol units to block the intersections from pedestrian movement. Two marked patrol cars were dispatched.

At 12:08 p.m., the GGTF member requested an ambulance. Another member of the GGTF reported they had a 35-year-old male who had been shot.

The Emergency Task Force (ETF) was asked to monitor the situation.

At 12:17 p.m., an open microphone captured officers yelling, “Put your hands up!”

At 12:21 p.m., a police officer reported the subject only had one hand out of the vehicle. At 12:22 p.m., WO #6 reported the Complainant had placed both of his hands out of the vehicle.

Arrangements were later made to transport six members of the GGTF to hospital, in relation to critical incident stress.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:

• A copy of the related communications recordings;
• Computer Aided Dispatch (CAD) Report;
• Criminal Record – the Complainant;
• General Occurrence-Full Case;
• Known File Impressions (fingerprints) of Deceased Complainant;
• Notes of all designated witness officers;
• TPS Procedure - Use of Force;
• TPS Procedure - Service Firearms;
• TPS Procedure - C8 Rifle;
• TPS Search Warrant-the Complainant’s Motor Vehicle; and
• TPS-Information and Warrant in the First.

Materials obtained from Other Sources

In addition to the materials received from the TPS, the SIU obtained and reviewed the following materials from other sources:

• Copies of the Ambulance Call Reports from the Toronto Paramedic Services;
• A copy of the medical records from SHSC;
• Several video recordings created by civilian witnesses;
• An Apple FaceTime video recording of a telephone call between the Complainant and his common-law partner, CW #1, provided by CW #1;
• The Report of Post-Mortem Examination, dated September 15, 2020, from the Coroner’s Office; and
• A Firearms Report, dated April 2, 2020, from the CFS.

The material events in question are relatively clear on the weight of the evidence collected by the SIU, which included interviews with the Complainant, several TPS officers present at the time of the shooting, and a number of civilian witnesses who heard and saw portions of the incident. As was their legal right, the subject officers declined to interview with the SIU or authorize the release of their notes. The investigation was also assisted by video recordings of the shooting captured by the cell phones of some of the civilian witnesses, the autopsy results, and forensic examination of the scene and items of evidence.

The Complainant was wanted by the TPS as the suspect in the murder of a woman on January 13, 2020. The woman, a sex worker, had been found badly injured in the bathtub of an apartment on Bay Mills Boulevard by police officers and firefighters responding to a fire call. On January 16, 2020, an arrest warrant was issued on the strength of an information charging the Complainant with her first-degree murder.

Operating unmarked vehicles, a GGTF team took up surveillance of the Complainant on January 18, 2020 with the intention of arresting him once his identity had been confirmed. WO #3 was in charge of the team, which consisted of the subject officers, SO #1, SO #2 and SO #3, as well as WO #1 and WO #2. The team was involved as the Complainant had prior convictions for firearm-related offences and there was a concern that he could be armed.

The Complainant was located by the team at his place of work where he was seen to exit and drive away in a red pickup truck. The GGTF team followed the pickup truck as it eventually turned onto McCowan Road and made its way southbound. As the convoy of vehicles approached Town Centre Court, SO #1 called for a takedown of the pickup truck once it cleared the intersection on a green light.

At word of the takedown, the officers used their vehicles to surround and stop the pickup truck in the middle southbound lane approximately 30 metres north of the next traffic-controlled intersection. SO #2 and SO #3 positioned their vehicles in the middle southbound lane directly in front of, and behind, the pickup truck, respectively. SO #1 stopped the passenger side nose of his vehicle at an acute angle with the driver side front door of the pickup truck. WO #2 did the same with the driver side front corner of his vehicle to the front passenger side door of the truck. WO #1’s vehicle came to a stop directly behind SO #3’s car, and WO #3’s vehicle came to rest alongside the driver side of WO #1’s vehicle.

The officers exited their vehicles and, except for SO #3, rushed toward the pickup truck with their sidearms drawn. SO #3 was armed with a C8 rifle. From a position at the driver side of the pickup truck, and with their firearms pointed at the Complainant, WO #3, and SO #2, SO #3 and SO #1, yelled at the Complainant to remain still but keep his hands where they could see them. Over the next ten to 15 minutes, the officers continued to issue these directions at the Complainant as he alternately raised and lowered his hands, and rocked back and forth, and side to side, in his seat. The Complainant asked why he was being arrested. He was told the arrest would be fully explained to him after he was safely in police custody. The officers were concerned that news of his arrest on a murder charge would further agitate the Complainant, so they decided to keep that information from him.

At one point during the standoff, SO #2 and WO #1 entered the pickup truck through the rear passenger side door attempting to take custody of the Complainant. The Complainant caught sight of the officers and lowered his hands. There followed a brief struggle in which the Complainant was able to shake free of WO #1’s hold of his right arm. The officers exited the vehicle through the same door just after the Complainant took a swing at WO #1.

Once out of the vehicle, SO #2 joined SO #3 and SO #1 by the driver’s side of the pickup truck. From not more than two to three metres of the Complainant’s open window, they continued to order him to keep his hands raised and/or on the steering wheel, and implored him, “Don’t do it.” At about 12:08 p.m., SO #2, SO #3 and SO #1 each fired their weapons at the Complainant, retreating backwards as they did so.

The Complainant was shot five times. He remained conscious following the shooting and was able to contact his common-law wife – CW #1 – by phone. Portions of their conversation occurred via the FaceTime video app, and were video-recorded without any audio. At one point, the Complainant picked up a clear plastic bottle and drank its liquid content, which was antifreeze.

From positions of cover behind their vehicles, the officers ordered the Complainant to show both his hands. The Complainant shouted back that he had been shot and could not lift his arm. This back and forth went on until about 12:22 p.m., some 14 minutes after the shooting, when the Complainant was finally able to place both hands through the driver’s door window. Because the driver’s door was pinned shut by SO #1’s vehicle, the Complainant was extricated by the officers through the open window, handcuffed and placed on the ground.

Shortly after his arrest, paramedics who were on standby in the area arrived at the scene, assessed the Complainant, and took him to hospital. He underwent several surgeries for his injuries and was treated for kidney failure arising from his ingestion of antifreeze. He eventually developed clots in his left leg while in hospital, and passed away on February 3, 2020.

The number of spent cartridge cases recovered at the scene, coupled with analyses of the subject officers’ firearms, indicates that SO #3, SO #2 and SO #1 discharged their firearms four (and possibly five), five (and possibly six) and five (and possibly six) times, respectively.

No firearm was recovered from the Complainant’s vehicle.

Cause of Death

The pathologist at autopsy attributed the Complainant’s death to complications of gunshot wounds to the chest and left arm.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

Section 25(3), Criminal Code -- When not protected

(a) the process or warrant under which he makes the arrest; or

(b) the reason for the arrest.

On January 18, 2020, the Complainant suffered multiple gunshot wounds at the hands of TPS police officers in the course of his arrest. He was taken to hospital and subsequently died on February 3, 2020. SO #1, SO #2 and SO #3 each discharged their firearms in the course of the incident and were identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the officers committed a criminal offence in connection with the shooting of the Complainant.

Pursuant to 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 authorized or required to do by law. In the case of lethal force, section 25(3) further provides that such force is not justified unless the officer believes on reasonable grounds that it was necessary for her or his self-preservation or the preservation of any one under their protection from death or grievous bodily harm. On the record developed by the SIU, I am unable to reasonably conclude that SO #2, SO #3 and SO #1 transgressed the limits of legal justification when they fired their weapons at the Complainant.

Clearly, the GGTF team members were in the lawful execution of their duties when they stopped the Complainant’s pickup truck and attempted to take him into custody. The Complainant was wanted for the murder of a woman that had occurred on January 13, 2020. In fact, there was a warrant for his arrest in connection with the crime.

With respect to the subject officers’ state of mind at the time, while there is no direct evidence as to what they were thinking, I am not satisfied with any degree of confidence that they lacked a reasonable belief in the necessity of a resort to lethal force to protect themselves from a risk of death or grievous bodily harm. Consider the officers’ apprehension of the threat level as they covertly tailed the Complainant and then stopped his vehicle in the middle of the roadway. They knew the Complainant was wanted in the brutal murder of a woman only days earlier. They also knew that the Complainant had a criminal record that included convictions for violence and firearms-related offences. In the circumstances, common sense dictates that the Complainant would have been approached with extreme caution as a person who was potentially armed and dangerous. That was the tenor of the witness officers’ evidence, whose assessment I have little doubt would have been shared by the subject officers.

The Complainant’s behaviour once surrounded by the GGTF officers would have done little to alleviate their concerns. Though surrounded with nowhere to go and guns pointed at him at close range, the Complainant chose not to cooperate with the officers’ repeated commands that he maintain his hands in a position where the officers could see them. The request was a legitimate one considering the officers’ reasonable fear that the Complainant might be armed with a weapon. Instead, the Complainant chose to raise and lower his hands in a fashion he must have known would escalate tensions, and argued with the officers as to the reason for his arrest. Pursuant to section 29 of the Criminal Code, persons executing arrest warrants have a legal duty, where it is feasible to do so, to notify the person to be arrested of the reason for the arrest. Given the exigencies of the situation, and what in my view was the officers’ reasonable concern that alerting the Complainant of his arrest on a murder charge might further escalate the situation, I am not satisfied that the officers were in breach of their duty. When SO #2 and WO #1 entered the rear passenger area of the pickup truck and took hold of his right arm, the Complainant reacted violently, pulling his arm away and taking a swing at WO #1. In short, the Complainant gave every indication of someone who was not going to peacefully surrender.

Finally, the moments immediately preceding and following the shooting are particularly instructive. WO #1, positioned behind the pickup truck, observed the Complainant’s chin dip toward his knees and heard other officers saying, “Don’t lower your hands. Stop. Don’t do it,” around the time shots rang out. WO #3, standing near the rear passenger driver side of the pickup truck, indicates she heard SO #3 say, “No one wants to get hurt. Don’t reach into your jacket,” just before the Complainant pulled his jacket forward with his left hand and reached into it with his right hand. At that point, according to WO #3, she feared the Complainant was reaching for a weapon and heard multiple consecutive gunshots. WO #3’s evidence in this regard must be taken with a grain of salt. Though I accept, based on the corroborative evidence of other officers, that she observed the Complainant make some type of a gesture in the moments before the shots were fired, it is not clear to me that she would have been able to see him reaching into his jacket with his right hand given her position behind and to the left of the Complainant. Each of the three subject officers moved backwards as they discharged their weapons, a retreat they continued after the shooting to positions of cover behind police vehicles. Thereafter, it was not until another 14 minutes had elapsed that the officers felt comfortable enough to approach the pickup truck to take the Complainant into custody. On this evidence, it appears that the officers had cause to believe that the Complainant was accessing a firearm and constituted an immediate danger to the lives of those around him at the point of gunfire.

On the foregoing record, I am satisfied that there is insufficient evidence to believe with any degree of certainty that SO #2, SO #3 and SO #1 acted without legal justification when they shot and wounded the Complainant. On the contrary, it seems likely that each of the three officers harboured an honest belief in the necessity of a resort to lethal force in defence of their own lives (and possibly others) and that such belief was reasonable in the circumstances. It does not appear, at least as far as the witness officers are concerned, that they considered the use of a Conducted Energy Weapon (CEW) a viable option. Given the nature of the threat the officers reasonably believed the Complainant represented, and the winter clothing the Complainant was wearing that would have detracted from the weapon’s ability to penetrate to the skin in order to immobilize the subject, I do not believe the failure of the officers to use a CEW negates the reasonableness of their conduct. Each of the officers was in very close proximity to the Complainant and would have been in his direct line of fire had he, as I believe they reasonably feared, been able to access a firearm. With respect to the number of shots fired, it is important to note that these occurred at the same time and in rapid succession such that I am unable to meaningfully impute any difference in the threat level each of the officers would have reasonably perceived throughout the volley of shots. Nor, in my view, do considerations of possible withdrawal or retreat change the legal calculus. The standoff occurred on a public roadway with motorists and pedestrians in the vicinity. In the circumstances, the officers would have been hard-pressed to disengage from the Complainant or deal with him at a distance without unduly jeopardizing public safety.

In the result, while I accept that the officers’ gunfire contributed to the Complainant’s unfortunate death, there are no reasonable grounds to believe that SO #2, SO #3 and SO #1 acted unlawfully in the course of this incident. Accordingly, there is no basis for proceeding with criminal charges against the officers.


Date: November 9, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit