SIU Director’s Report - Case # 21-TFI-168
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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.
Special Investigations Unit Act, 2019Pursuant 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 ActPursuant 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, 2004Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.
Other proceedings, processes, and investigationsInformation 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.
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 a firearm-related injury of a 19-year-old man (the “Complainant”).
Notification of the SIUOn May 30, 2021, at 7:16 p.m., the Toronto Police Service (TPS) reported that a firearm had been discharged at a fleeing vehicle. TPS advised that at 5:45 p.m., TPS Community Officers on bicycles rode into the underground garage at 58 Grenoble Drive. They were checking out a vehicle with occupants when it fled the scene. The vehicle rode over the TPS bicycles and the Subject Official (SO) discharged his firearm at the vehicle, which fled the scene. The vehicle was later located.
The TeamDate and time team dispatched: 05/31/2021 at 6:50 a.m.
Date and time SIU arrived on scene: 05/31/2021 at 12:17 p.m.
Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”) Complainant 19-year-old male interviewed, medical records obtained and reviewed
The Complainant was interviewed on June 1, 2021.
Civilian WitnessesCW Interviewed
The civilian witness was interviewed on June 1 and 2, 2021.
Subject OfficialSO 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
WO #7 Interviewed
WO #8 Interviewed
WO #9 Not interviewed, but notes received and reviewed
WO #10 Not interviewed, but notes received and reviewed
WO #11 Not interviewed, but notes received and reviewed
The witness officials were interviewed between June 2 and 17, 2021.
The Scene SIU Forensic Investigators arrived at the scene at 9:35 p.m., on May 30, 2021. SIU investigators arrived at 9:56 p.m.
The scene was the underground exit of a Toronto Community Housing Corporation (TCHC) complex located at 58 Grenoble Drive. The Mercedes had exited the underground parkade via a single vehicle exit that went up towards a ramp, which curved about 90 degrees to the right. The scene diagram below provides a visual of the ramp.
Physical Evidence 58 Grenoble Drive is a multi-level apartment building with an underground parking garage. The parking garage exit driveway runs in a northerly direction and goes up a ramp and curves to the right (east) to connect to Grenoble Drive. At the top of the ramp on the southeast corner is the unit’s garbage receptacle. A large garbage bin appears to have been moved towards the exit ramp.
The underground parking lot had sufficient lighting to illuminate it.
On the east side of the exit driveway in the underground parking garage there were numerous angled parking spots. There was a solid wall on the west side with a drainpipe. There was a tire mark on the exit driveway (west side) by the drainpipe (adjacent to parking stall #28). Gouge marks were located in the exit driveway that commenced adjacent to parking stall #24. Numerous TPS bicycles were located, some intact and some damaged. Four .40 calibre cartridge cases were located on a grass and shrub covered area. They were believed to be from the SO’s TPS firearm. There was a bag of 17 Luger .9mm cartridges along with three loose .9mm Luger cartridges located near the .40 calibre cartridge casings. These cartridges were turned over to TPS by SIU Forensic Investigators.
Examination of the Mercedes BenzAt 1:30 a.m., on May 31, 2021, an SIU Forensic Investigator examined the subject vehicle. The damage to the left or driver’s side mirror was consistent with the statement provided by WO #3, who said the Mercedes struck him when reversing.
On June 2, 2021, at 12:45 p.m., an SIU Forensic Investigator attended the CFS to examine the Mercedes further. In total, four bullets were discharged by the SO; all four struck the Mercedes, and one went through the windshield and into the right forearm area of the Complainant.
Time and Distance Calculation The Mercedes travelled about 13 metres from the location where it exited the parking garage until it went out of view of security camera video footage. The driveway leading out of the parking garage was about 3.5 metres in width. The Mercedes travelled about 13 metres per second. Assuming a constant velocity, the Mercedes travelled about 46 km/h as it exited the parking garage.
Examination of the CW’s HatA projectile went through a ball cap worn by the CW. It did not strike him, but went through his hat, just missing his head.
Centre of Forensic Sciences (CFS) SubmissionsOn June 16, 2021, an SIU Forensic Investigator submitted a request to the CFS for ballistics analysis of the projectile found in the Complainant, and the bullets and cartridges, for comparison against the SO’s TPS firearm. The CFS accepted the request. At the time of this report, there had yet to be a result provided by the CFS.
Video/Audio/Photographic Evidence The SIU obtained video footage for May 30, 2021, from the TCHC, which was gathered by the TCHC and provided to TPS under an agreement that TCHC had with TPS. An SIU investigator attended TPS on June 17, 2021, at 4:20 p.m., and downloaded the video footage from 58 Grenoble Drive.
At 5:47 p.m., the Mercedes entered the underground garage by the south garage door. Prior to the TPS involvement, there were many children and families on bicycles and walking around this densely populated complex.
At 5:50 p.m., the TPS Community Response Unit (CRU) members entered the ramp and garage including the SO. WO #6 was still on the walkway above the grassy area and, at 5:51 p.m., he rode toward the roadway leading to the garage.
At 5:51 p.m., the SO ran out of the garage and turned around near a bush and walked backwards. There was a blind spot on the camera as the outside bubble was cracked. The SO took two steps forward and then walked backwards onto the grass. Ten seconds later, the front end of the Mercedes cleared the exit to the garage; the SO had his TPS firearm out and pointed at the Mercedes.
The Mercedes struck TPS bicycles as it exited the garage, and it appeared a bicycle was underneath the Mercedes.
The SO moved further back on the grass area and he was partially obstructed by the crack in the camera housing. The SO moved his body along with the Mercedes as it passed and there was a muzzle flash seen. After the Mercedes was out of camera range, the SO was on his radio making a transmission. Six seconds later, WO #4 rode his TPS bicycle up the ramp after the Mercedes.
TPS Communication RecordingsOn June 14, 2021, at 11:14 a.m., the SIU obtained a copy of the TPS communications.
At 5:50:41 p.m., the SO reported the TPS CRU units were in the underground at 58 Grenoble investigating. At 5:51:20 p.m., the SO advised that a black Mercedes was “reversing from us”. Eight seconds later, the SO referred to a black Mercedes with no front plate, and then he was breathing heavily. TPS dispatch asked if he was chasing the vehicle and there was no reply. Shortly thereafter, he broadcast, “Vehicle fled,” and was out of breath. WO #5 broadcast that the vehicle had fled out of sight.
WO #4 reported that the Mercedes with two occupants was westbound on Grenoble Drive, then eastbound on Spanbridge Road. The last known direction was southbound on Linkwood Lane, and the Mercedes was out of sight.
WO #5 reported that TPS bicycles had been run over and a TPS firearm had been discharged; there were no injuries.
An ambulance was requested for the SO to check him out.
Materials Obtained from Police Service Upon request, the SIU received the following records from Hamilton Police Service (HPS) and TPS between June 1 and 21, 2021;
• 2021 TCHC Trespass to Property Act Authorizations;
• General Occurrence;
• TPS communication recordings;
• HPS Notes-WO #11;
• HPS Notes-WO #8;
• HPS Notes-WO #9;
• HPS Notes-WO #7;
• HPS Notes-WO #10;
• HPS Will say-WO #11;
• HPS Will say-WO #10;
• Intergraph Computer-assisted Dispatch Event Details Report;
• Notes (Excusal)-the SO;
• Notes-WO #5;
• Notes-WO #1;
• Notes-WO #2;
• Notes-WO #4;
• Notes-WO #6;
• Notes-WO #3;
• Parade Note;
• TPS Policy-Service Firearms; and
• TPS Policy-Use of Force.
Materials Obtained from Other SourcesThe SIU obtained and reviewed the following records from other sources:
• Medical records from Hamilton General Hospital (HGH);
• Medical records from Scarborough General Hospital (SGH); and
• Video footage of the TCHC building complex.
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, a civilian eyewitness, and several officers present at the time of the shooting. The incident was also captured on video by a security camera. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the afternoon of May 30, 2021, the Complainant was the front seat passenger in a Mercedes Benz sedan operated by an associate – the CW. The Mercedes Benz was accelerating away from several police officers, up an underground parking garage exterior ramp, when one of those officers – the SO – fired several rounds at the CW. One of the bullets struck the Complainant in the right forearm. Another grazed the inner right forearm of the CW. A third entered the right front of a ball cap the CW was wearing at the time, and exited the back right side of the hat. The CW and the Complainant made good their escape from the officers. Both, however, were subsequently arrested.
The Complainant and the CW had entered the parking garage, at 58 Grenoble Drive, at about 5:47 p.m. Their vehicle, left running, was stationary in an angled parking spot several metres from the entrance/exit of the garage when they were approached by multiple TPS bicycle officers. One of the officers – WO #4 – approached the driver’s side of the Mercedes while other officers took positions in front and on the passenger side of the vehicle. The officers, on patrol in the area, had noticed that the Mercedes Benz was without a front licence plate, and decided to investigate the CW for a possible Highway Traffic Act infraction.
The CW grew anxious as WO #4 questioned him and asked that he turn off his engine. He reversed the Mercedes Benz and struck a back wall, after which he placed the vehicle in drive and accelerated forward as fast as he could. His objective was to flee the officers by exiting through the parking garage open door immediately to his right and only several metres away. As the vehicle initially reversed, its driver’s side mirror struck the left arm of WO #3, who was also standing by the driver’s side at the time. As it then moved forward, it also stuck and/or drove over several of the officers’ bicycles, which had been left purposefully in front of the Mercedes to block its path.
The SO was just outside the parking garage, on a small grassy hill lining the western side of the exit ramp that curved rightward to the east and onto Grenoble Drive, as the Mercedes Benz accelerated toward him. As the Mercedes Benz neared and then drove past his location, the officer fired his handgun four times at the vehicle. The time was about 5:51 p.m.
Section 34, Criminal Code -- Defence of person - Use of threat of force
(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.
(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 May 30, 2021, the Complainant suffered a gunshot wound to the right forearm. As the shot that injured the Complainant had been discharged by a TPS officer – the SO – the SIU was notified and initiated an investigation. The SO was identified as the subject official. The investigation having concluded, I am satisfied that there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injury.
Pursuant to section 34 of the Criminal Code, force used in the defence of oneself or another from a reasonably apprehended attack, actual or threatened, is legally justified if it was reasonable in the circumstances. The reasonableness of the force in question is to be assessed in light of the relevant circumstances, including 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. There is insufficient evidence, in my view, to reasonably conclude that the force used by the SO fell afoul of the strictures set out in section 34.
At the outset, it bears noting that the SO and the other officers were lawfully placed throughout their engagement with the CW and the Complainant. Though the TPS had had their authorization to enforce the Trespass to Property Act revoked by the Toronto Community Housing Corporation, which owned the premises at 58 Grenoble Drive, there is no indication that they had been barred entry onto the grounds and were trespassers at the scene. On the contrary, the evidence indicates that TPS was expected to continue to patrol the area to enforce other provincial and federal statutes. That, it appears, is what they were doing when they sought to speak with the CW about a missing front licence plate on his vehicle.
When the CW decided to accelerate away from the officers, he placed their lives in danger as well as his own and that of his companion – the Complainant. The evidence indicates that the driver’s side mirror struck WO #3’s arm as it moved backward and came within a metre or two of other officers, including WO #5, who found herself by the passenger side of the vehicle. The events unfolded quickly in a small and confined space, with walls on either side of the parking spot in question against which officers were pinned as the Mercedes Benz fled the scene. This did not deter the CW. He reached a speed upwards of 40 km/h as he travelled past the open garage door onto the ramp, striking and mounting several police bicycles in the process. It is against this backdrop that the SO fired his weapon.
While the SO did not provide a statement to the SIU, one may reasonably infer from the aforementioned-circumstances that the officer resorted to gunfire in self-defence against a reasonably apprehended threat of force.
I am also satisfied that the shooting represented a reasonable level of force vis-à-vis the threat at hand. By the time the first of the SO’s shots were fired, the Mercedes Benz was accelerating in his direction. Though the officer was on a grassy incline off the path of the garage ramp, the SO was within metres of the Mercedes Benz and would not have been able to outrun the vehicle had it climbed the ramp curb onto the hill. That prospect was not an implausible one. By that time, the SO would have had some appreciation for the recklessness with which the CW was operating his vehicle – striking bicycles and speeding along a narrow ramp curving sharply to the right – in a bid to escape police. It would not have taken much, in my view, for that risk to have materialized. In the circumstances, I am persuaded that the SO’s resort to lethal force was commensurate to the lethal threat represented by the vehicle. Though the third and fourth shots appear to have been fired as the Mercedes Benz was traveling past the officer, I am unable to impute any material difference in the threat the officer would have reasonably apprehended throughout the gunfire given the rapidity of the shots, the fraught nature of the prevailing circumstances and the lag inherent in reaction times. In arriving at this conclusion, I am mindful of the common law principle that officers tasked with making split second decisions in the heat of dangerous and volatile situations are not expected to measure their responsive force with precision; what is required is a reasonable response, not an exacting one: R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA); R v Nasogaluak,  1 SCR 206.
That same common law principle is what bridges the gap between some present day internal police policies, which restrict the use of gunfire at occupants in a moving vehicle, and section 34 of the Criminal Code. For example, the TPS presently prohibits its officers from firing at the operator or passengers of a motor vehicle unless there exists an immediate threat of death or grievous bodily harm to officers and/or members of the public by a means other than the vehicle. Ostensibly, it may well be the case that the SO is in violation of his service’s regulations in this regard. It may also well be the case that policies of this nature represent a best practice in this area of policing. The criminal law, however, is concerned with identifying and enforcing minimum standards of behaviour. For the foregoing reasons, I am satisfied that the SO did not breach that minimum standard when he sought to protect himself from the Mercedes Benz, which had effectively become a dangerous and lethal weapon in the hands of the CW, by attempting to neutralize its operating mind.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in discharging his firearm at the CW, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: September 27, 2021
Electronically approved by
Special Investigations Unit
- 1) Done by an SIU Forensic Investigator. [Back to text]
- 2) 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]
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.