Director's Report Details

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.

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 discharge of a ‘less-lethal’ firearm at a 47-year-old man (the “Complainant”).

Notification of the SIU

On November 15, 2021, at 11:42 a.m., the Toronto Police Service (TPS) notified the SIU of a firearm discharge at a person [later identified as the Complainant].

The TPS indicated that police officers had dealt with the Complainant at an address on The West Mall. Witness Official (WO) #5 discharged his conductive energy weapon (CEW) and the Subject Official (SO) discharged two rounds from a less-lethal shotgun, which struck the Complainant. The Complainant was taken to Trillium Health Partners-Mississauga Hospital (THP-MH) where he was treated. The involved police officers had returned to TPS 22 Division and the scene was being held.

The Team

Date and time team dispatched: 11/15/2021 at 12:05 p.m.

Date and time SIU arrived on scene: 11/15/2021 at 12:55 p.m.

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

47-year-old male not interviewed;[1] medical records obtained and reviewed

Civilian Witnesses

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

The civilian witnesses were interviewed on November 15, 2021.

Subject Officials

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

The SIU was notified on December 6, 2021, that the SO would not give the SIU an interview.

Witness Officials

WO #1 Not interviewed, but notes received and reviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed

The witness officials were interviewed on November 17, 2021.

The Scene

On November 15, 2021, at 2:05 p.m., a SIU Forensic Investigator (FI) attended a bank at The West Mall. The bank had a small vestibule entranceway, which allowed access to the ATM machines and the interior of the bank. The ATM machines could be separated from the interior of the bank through sliding glass partitions, which were not in place at the time of the incident. The bank had a welcome desk, several teller desks, two sit-down meeting desks and several offices. There were video cameras throughout the common areas.

Present on the floor, in the common area, were two deployed shotgun shells, two CEW cartridges, CEW debris (including internal components, anti-felon identification tags (AFIDS) and probes). Also present were two small beanbags, known as ‘socks’, which were the projectiles from the less-lethal shotgun. There was a TPS evidence bag containing clothing items near the projectile evidence, and a blue suitcase was in a waiting area by the front doors. A deployed shotgun shell was close to the welcome desk, while the remainder of the items were deeper within the common area.


Figure 1 - A deployed shotgun shell.


Figure 2 - CEW debris and a beanbag deployed from the less-lethal shotgun.

The exterior of the bank was photographed, along with interior of the bank showing the overall layout and the location of the evidence.

Physical Evidence

Two opaque deployed shotgun shells, two socks, four CEW probes, wires, AFIDS and two deployed CEW cartridges were collected. The evidence bag contained a red baseball hat, blue sweatpants, two glass drug pipes, and other personal effects.

At 4:00 p.m., a SIU FI attended at TPS 22 Division, and was provided with the less-lethal shotgun and a CEW in an evidence bag. The shotgun was identified as ‘338’, which was stamped into the barrel and on a sticker. It was a 12-gauge Remington 870. The sliding fore stock and butt of the shotgun were bright orange and clearly marked, “Less Lethal”. There was an ammunition holder on the side holding 6 shotgun shells. Some of the shotgun shells were marked “2581 Socks” but the markings had worn off the other shotgun shells. There were an additional two similar shotgun shells in the magazine. The shotgun was photographed.


Figure 3 - The less-lethal shotgun.

Forensic Evidence

The CEW in the evidence bag could not be downloaded, so it was taken to the SIU office.

On November 17, 2021, the evidence from the scene was examined and photographed at the SIU office. The serial numbers on the AFIDS matched the serial numbers on the deployed CEW cartridges. The activity log from the CEW was downloaded and examined, and there appeared to be two deployments around the time of the events in question.

• Cartridge 1 was deployed for 1 second at 10:25:36 a.m.; and
• Cartridge 2 was deployed for 3 seconds at 10:25:38 a.m.

The activity log indicated that the time stamp for the deployments at the bank was 4 minutes and 32 seconds fast. The above noted times for the deployments were the corrected times.

Video/Audio/Photographic Evidence[2]

BWC Footage

The recorded video footage of the BWCs worn by five of the TPS police officers was reviewed. The recordings were identified by the police officers’ badge numbers: the SO, WO #1, WO #2, WO #3 and WO #5.

WO #5’s BWC Footage
WO #5’s camera was active from 10:00 a.m. to 10:38 a.m. He was the first police officer on scene. On his approach to the front door of the bank, the Complainant could be seen through the window, inside the bank. The Complainant wore a red baseball hat, a grey-hooded sweater, a green winter vest, a surgical-type mask and blue jeans. The Complainant’s left hand was in his left pants pocket and he pointed at WO #5.

WO #5 asked the Complainant to come outside and speak, and the Complainant reached into his left waist area of his vest with his right hand and appeared to reach for something. The Complainant told WO #5 that he was a fake police officer, and the Complainant asked WO #5 to shoot him. The Complainant was agitated and uneasy - he paced back and forth. WO #5 asked the Complainant what was in his pocket, and the Complainant responded, “Something that is going to hurt you.” The Complainant asked WO #5 if he had a real gun. WO #5 did not have anything in his hands.

The Complainant identified himself and spoke irrationally. He told WO #5 that he was either going to shoot himself or someone else. WO #5 asked the Complainant how he was going to accomplish that. The Complainant did not say he had a gun, but did say he had a single bullet. The Complainant stated that he would not remove his hand from his vest as it was his lifeline, because he was going to be hurt if he took his hand out of his vest.

At 10:09 a.m., WO #1 and WO #2 arrived on scene - neither had a weapon drawn. WO #2 began to take over the conversation with the Complainant.

At 10:20 a.m., WO #3 arrived at the front of the bank and looked in at the Complainant, after which he was briefed by WO #2. WO #3 called for the SO with the less-lethal shotgun, and for two CEWs.

At 10:21:02 a.m., WO #5 ran into the bank with his CEW in his right hand and followed the Complainant, who had turned to run deeper into the bank with his right hand still in his vest. WO #5 yelled to the Complainant to get down. At the teller counter, the Complainant stopped and turned towards WO #5. The Complainant pulled a black object out from inside his vest, which was later found to be a rolled-up pair of black track pants. At 10:21:07 a.m., WO #5 fired his CEW at the Complainant while he yelled, “Get down.” The Complainant turned to his right and flinched as one CEW probe hit him in the upper right rear shoulder. The discharge was not effective. The Complainant turned again toward WO #5, who fired his CEW a second time. The SO also fired a round from the less-lethal shotgun.

The sound of the CEW could be heard cycling, and the SO fired a second round. The second CEW discharge was effective with neuromuscular incapacitation being achieved. The Complainant went stiff and fell uncontrolled to the ground. The Complainant was hit with a sock round from the shotgun.

The Complainant was physically restrained by WO #5 on his left side upper body. WO #2 was at the Complainant’s left side lower body, and WO #3 was at the right side controlling the Complainant’s legs. WO #4 was on the right-side and controlled the shoulders. Handcuffs were applied to the Complainant’s wrists, with his hands behind his back, and leg restraints were placed on his ankles. The Complainant was rolled on his side, and a glass pipe and a pair of black track pants were found under his chest.

Paramedics examined the Complainant in the bank before he was removed to the hospital.

WO #5 unloaded the expended cartridge from his CEW and dropped them on the floor, where the Complainant had fallen.

The Complainant told the attending paramedics that he had smoked crystal methamphetamine while in the bank.

WO #1’s BWC Footage
WO #1’s camera was active from 10:10 a.m. to 10:21 a.m. He spoke briefly with WO #5 at the front of the bank and then went to the rear door of the bank, later returning to the front where he turned his camera off.

WO #2’s BWC Footage
WO #2’s camera was active for a stretch between 10:10 a.m. and 10:40 a.m. On his arrival, he took up a position to the left of the ATM vestibule and listened as WO #5 spoke with the Complainant. At 10:11 a.m., he moved to a position behind WO #5 and then took over conversation with the Complainant.

At 10:20 a.m., WO #2 updated WO #3 on his arrival and informed him that bank staff were still inside the bank and the police officers would have to go in if the Complainant moved toward the interior of the bank.

WO #3 planned to have the SO, with the less-lethal shotgun, go into the bank first, followed by two CEW-equipped police officers. WO #5, with his CEW drawn, entered the bank as the other police officers were getting into position. WO #2 followed WO #5 and then went right while WO #5 moved to the left. The footage that followed mirrored that of WO #5’s BWC, from a different perspective.

The bank manager, CW #3, could be seen behind the desk that was behind the Complainant.

WO #3’s BWC Footage
WO #3 arrived on scene at 10:20 a.m. He had a short discussion with WO #2 to the left of the doorway. He stated that a CEW needed to be deployed and asked for two police officers with CEWs. The SO arrived on the scene with the less-lethal shotgun. WO #3 changed his direction and asked the SO to lead two police officers with CEWs into the bank.

At 10:21:01 a.m., WO #5 suddenly rushed into the bank followed by WO #2 and the SO, the latter with an orange-coloured, less-lethal shotgun. WO #3 followed and, as he turned into the bank, WO #5 was to his left, the SO was in the centre and WO #2 was to the right. The Complainant was at the tellers’ counters. The sound of the deployment and cycling of a CEW could be heard, and WO #3 said to the SO, “Shoot him.” A second CEW deployment was then heard almost at the same time as the shotgun was fired. WO #3 then said, “Shoot him again,” and the shotgun was fired a second time. The two CEW deployments and two shots were within seconds. The last shotgun firing occurred as the Complainant was faceup on the floor having just fallen due to the CEW deployment. The Complainant was then handcuffed and shackled.

The SO’s BWC Footage
The SO’s camera was active from 10:20 a.m., after he left his vehicle with his less-lethal, orange shotgun in his left hand and moved across the front of the bank. The safety was still engaged on the weapon and the action was locked forward. He followed WO #2 into the bank. WO #5 had his CEW drawn, and was in front of WO #2 as the SO entered the interior bank door. As he turned the corner to the left to follow WO #5, WO #2 had moved to the right. WO #5 fired his CEW at the Complainant. WO #5 fired a second time and there was neuromuscular incapacitation and the Complainant started to fall towards the floor. The shotgun could not be seen in the SO’s hands due to the position of the camera on his vest. Once the Complainant was on the ground and subdued by several police officers, he stood back and watched as the Complainant was handcuffed and shackled.

The video did not show the SO fire the shotgun because of the position of the camera, and the sound of the shotgun could not be heard since the microphone was turned off.

Bank Security Camera Video Footage

The bank provided the SIU with surveillance video, which had no sound. The video captured the interaction between the Complainant and TPS police officers on November 15, 2021. There were four cameras, which included the ATM vestibule, the exterior door of the bank, the teller wicket area, and the vestibule between the two front doors.

At 9:20 a.m., the Complainant entered the bank vestibule - he was jittery and restless. Two bank employees communicated with the Complainant and the Complainant left the bank.

At 9:32 a.m., the Complainant entered the bank with his left hand inside the front pocket of his vest. CW #3 spoke to the Complainant at 9:34 a.m., and then made a telephone call.

At 10:01 a.m., WO #5 approached the exterior front door. The Complainant yelled at WO #5. The Complainant kept his right hand inside his vest.

More police officers arrived and, at 10:21 a.m., the Complainant suddenly turned away from the police officers and took a few steps further into the bank. WO #5 with his CEW drawn followed the Complainant into the bank. The SO with a less-lethal shotgun followed WO #5. Near the teller counters, the Complainant turned to face the police officers. The Complainant fell to the ground out of sight of the cameras, and the police officers approached.

Police Communications

On November 15, 2021, at 9:35 a.m., the TPS received a call from CW #3, the bank manager at a bank located on The West Mall. CW #3 indicated there was a man loitering in the waiting area and the man was smoking something, which was possibly a drug. The man [later identified as the Complainant] appeared to be under the influence of something and had refused to leave when asked to do so.

At 9:51 a.m., CW #3 called the TPS a second time and advised that the Complainant was still in the waiting area, and that he had told CW #3 that he had a knife and a revolver, and wanted to end his own life.

At 9:53 a.m., WO #4 and WO #5 were dispatched.

At 9:57 a.m., dispatch advised that the Emergency Task Force (ETF) were monitoring the call.

At 10:00 a.m., WO #5 advised he was on scene and, at 10:01 a.m., WO #4 was on scene.

At 10:02 a.m., WO #4 advised dispatch that the Complainant was erratic and would not take his hand out of his pocket - he appeared to be holding onto something. WO #4 requested that EMS respond.

At 10:05 a.m., WO #1 and WO #2 were dispatched and, at 10:06 a.m., WO #3 was dispatched.

At 10:10 a.m., WO #5 advised that the Complainant still had his hand in his pocket, and that he was communicating with the Complainant.

At 10:13 a.m., WO #1 requested that dispatch contact CW #3 to have someone open the rear door to the bank. At 10:16 a.m., WO #1 advised he could not access the rear door of the bank and he advised dispatch that they might require the services of the ETF as the Complainant had refused to leave the bank.

At 10:21 a.m., WO #3 advised that the Complainant was in custody and, at 10:22 a.m., the SO advised that a less-lethal shotgun and a CEW had been deployed.

At 10:40 a.m., WO #4 advised he was on board an ambulance and, at 10:54 a.m., WO #4 advised that the ambulance had arrived at THP-MH.

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the TPS:

• General Occurrence Report;
• Event Details Report;
• Communications recordings;
• Scene photographs;
• Notes of the WOs;
• Procedure - Arrest;
• Procedure - Use of Force;
• Procedure - Less Lethal Shotguns;
• BWC footage; and
• TPS Firearm Discharged Report.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:

• Ambulance Call Report from Toronto Emergency Medical Services;
• Video footage from the bank; and
• Photos from CW #3 (depicting the Complainant sitting in waiting area).

The material events in question are clear on the evidence collected by the SIU, which included interviews with police and civilian witnesses, and a review of video footage from the BWCs of several police officers and security cameras that captured the incident in its entirety. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the morning of November 15, 2021, TPS officers were called to a bank on The West Mall. The bank manager, CW #3, had called 911 to report the presence of a man – the Complainant – loitering in the waiting area of the bank, apparently consuming drugs and refusing to leave. CW #3 further reported that the Complainant had indicated that he was in possession of a gun and knife, and wanted to end his life.

WO #5 arrived on scene at about 10:00 a.m. and began to speak to the Complainant from outside the bank. The Complainant, standing by the second interior door into the bank, was not receptive to the officer’s overtures. He refused to leave the bank or remove his right hand from inside the front of his jacket. The Complainant did not say he had any weapons, but did acknowledge having a bullet with him. Other officers began arriving at the bank, including WO #2, who took a turn at speaking to the Complainant attempting to de-escalate the situation.

WO #3 arrived on scene at about 10:20 a.m. By that time, the employees of the bank and a single customer had been ushered into the basement of the premises by the bank manager. WO #3 was quickly briefed on the situation and decided that the Complainant should be immediately apprehended. His plan was to have two officers armed with CEWs and another officer with a less-lethal shotgun move in to take the Complainant into custody.

At about 10:21 a.m., WO #5 observed the Complainant stepping away from the second interior door to move into the bank proper. The officer ran after the Complainant with his CEW drawn, yelling at the Complainant to stop. He was followed into the bank by WO #2 and the SO in that order, the latter with his less-lethal shotgun at the ready. Several metres into the bank, WO #5 fired his CEW at the Complainant’s back. The discharge had no effect. The officer fired his weapon again within seconds. This time, the Complainant froze and fell to the floor. As he was falling, the SO fired his less-lethal shotgun at the Complainant. He, too, fired a second sock round in quick succession.

With the Complainant on the floor, the officers moved in and handcuffed him behind the back.

The Complainant was taken from the scene to hospital in ambulance.

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,

On November 15, 2021, the TPS contacted the SIU to report that one of their officers had discharged a less-lethal shotgun at a man – the Complainant – in the course of his arrest earlier that day. The SIU initiated an investigation, identifying the SO as the subject official. The investigation is now concluded. 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.

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 required or authorized to do by law.

The officers, including the SO, were engaged in the lawful execution of their duties when they decided to take the Complainant into custody. The Complainant had failed to leave private premises when asked to do so, had indicated he was in possession of weapons, and was threatening to do himself harm. In the circumstances, there were a variety of grounds to lawfully arrest the Complainant.

With respect to the force used by the officers against the Complainant, I am satisfied that it was legally justified. The Complainant had led officers to believe that he was armed with a weapon or weapons, including, possibly, a gun, and that he was planning to kill himself. Given the state the Complainant was in, the officers also had cause to be concerned about the safety of other persons in the bank. In the circumstances, having tried and failed to de-escalate the situation through negotiations at the doorway, the officers acted reasonably to chase the Complainant into the bank when he began to move in that direction. Thereafter, when he failed to stop at WO #5’s direction, it would appear that a resort to less-lethal force from a distance was required if he was to be safely and immediately incapacitated and prevented from doing harm to himself or others. The CEW and less-lethal shotgun discharges accomplished just that. While the sock rounds fired by the SO may have occurred just as the Complainant was falling and had fallen, I am satisfied that he remained a reasonably apprehended threat until such time as his hands had been restrained. As it turns out, the Complainant was not in fact armed with a knife or gun, but neither the SO nor the other officers could have known that at the time.

In the result, as there is no evidence to reasonably conclude that the SO or the other officers who dealt with the Complainant comported themselves other than lawfully throughout their engagement, there is no basis for proceeding with criminal charges in this case.

Date: March 8, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit