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.

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: 

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 death of a 54-year-old man (the “Complainant”).

Notification of the SIU

On December 9, 2021, at 3:35 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

On Friday, October 29, 2021, at 4:27 a.m., the TPS received a call reporting a gunshot in the area of Kennedy Road and Ellesmere Road. A police officer arrived at the location at 4:33 a.m., searched the area, and located a man who was “down”. The police officer thought the man was intoxicated and not related to the call for service. After three [1] more police officers arrived, it was realized the man had been shot.

The involved police officers were identified as Subject Officials (SO) #2, SO #1, and SO #3.

In-car camera system (ICCS) recordings had since revealed the police officers stood around and did not administer first-aid to the injured man, who was found conscious and breathing.

Paramedics arrived at 4:40 a.m. and transported the man to hospital where he later died.

The TPS advised that the incident had been reviewed by TPS homicide investigators, who were concerned that the responding police officers did not administer first-aid. As a result of the concern, the TPS ‘complaints section’ reviewed the incident and were likewise concerned. The matter was then referred to the Professional Standards Branch (PSB), who shared the concerns and led to the SIU notification.

The deceased man was identified as the Complainant.

The Team

Date and time team dispatched: 12/10/2021 at 11:35 a.m.

Date and time SIU arrived on scene: 12/10/2021 at 12:31 p.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

54-year-old male; deceased

Civilian Witnesses (CW)

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

The civilian witnesses were interviewed between February 7, 2022, and April 7, 2022.

Subject Officials (SO)

SO #1 Declined interview and to provide notes, as is the subject official’s legal right
SO #2 Declined interview and to provide notes, as is the subject official’s legal right
SO #3 Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed
WO #2 Not interviewed; notes received and reviewed
WO #3 Interviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Not interviewed; notes received and reviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Not interviewed; notes received and reviewed
WO #10 Not interviewed; notes received and reviewed
WO #11 Not interviewed; notes received and reviewed
WO #12 Not interviewed; notes received and reviewed
WO #13 Not interviewed; notes received and reviewed

The witness officials were interviewed between December 30, 2021, and January 11, 2022.

Service Employee Witnesses (SEW)

SEW #1 Interviewed
SEW #2 Not interviewed; notes received and reviewed
SEW #3 Not interviewed; notes received and reviewed
SEW #4 Not interviewed; notes received and reviewed
SEW #5 Not interviewed; notes received and reviewed

The service employee witness was interviewed on December 31, 2021.

Investigative Delay

This investigation was delayed by completion and receipt of the Report of Post-mortem Examination.

The Scene

This incident was reported to the SIU about six weeks after it occurred. As such, there was no scene for examination.

As requested by the SIU, TPS released material relevant to the investigation that had been collected as part of their homicide investigation. Material included ICCS recordings, forensic services’ photographs, and surveillance video recordings from the area around where the incident occurred.

The events in question occurred outside the entrance to the Circle K convenience store at 1480 Kennedy Road in Scarborough. The convenience store was located at the southwest corner of Kennedy Road and Ellesmere Road, where an Esso gas station was also situated and associated with the store operation.

The investigation revealed that, on arrival at the scene, SO #2 parked his cruiser oriented with the front end towards the entrance to the convenience store. SO #1 parked to the right of SO #2’s cruiser.

Forensic Evidence

A post-mortem examination was conducted on October 30, 2021, by pathologist, CW #4.

The post-mortem report was received by the SIU on Wednesday, March 30, 2022.

The report detailed there was “a perforating gunshot wound of the chest, entering the left upper anterior chest, with a wound track through the left and right chest cavities that includes injuries of the upper lobe of the left lung, the esophagus, and the lower lobe of the right lung, and exiting the right mid-upper back.”

Associated injuries included damage to internal organs, hemorrhaging, approximately 2000 cc of blood in the right chest cavity and 250 cc in the left cavity, as well as hemorrhagic wound tracks through the left and right lungs and the esophagus.

Toxicological examinations revealed the Complainant’s blood contained fentanyl, methamphetamine, amphetamine and flualprazolam.

CW #4 concluded the Complainant died of a gunshot wound of the chest. The fatal wound caused significant hemorrhage and inhibited normal breathing. Although fentanyl and methamphetamine were present at concentrations that can be associated with toxic effects, and the effects of flualprazolam could have contributed to depressive effects of fentanyl, CW #4 noted there was overlap between concentrations of these drugs that have been considered incidental to the cause of death and concentrations in deaths attributed to drug toxicity and, given the history, circumstances, and findings on post-mortem examination, these substances did not contribute to the cause of death.

In meeting with the SIU lead investigator, CW #4 advised that “there was no injury to the aorta”.

With respect to the volume of blood in the Complainant’s chest cavity, CW #4 advised it was important to note that the Complainant’s left chest cavity was opened in surgical intervention and, as such, he could not account for how much blood was lost from the injury versus medical intervention. CW #4 noted there was some blood staining on the Complainant’s clothing, but he could not comment about how much blood emanated from the Complainant at the scene.

With respect to any first-aid that could have been administered at the scene, CW #4 said that depended on the level of training of the involved police officers in terms of their capability to provide immediate resuscitative care. CW #4 recalled the patient was alert and speaking during initial contact and there was no indication CPR efforts were required. CW #4 believed that if the patient was alert and talking, there was no indication to start CPR but once he became unresponsive as the paramedics arrived, they were trained “for more high-level intervention”. That intervention, a needle thoracostomy, that became required after the patient became unresponsive “requires a higher level of training” and would not be performed on an alert and responsive patient.

CW #4 opined that with his sort of significant injury there was not much that could have been done, short of getting to the hospital promptly where higher level medical and surgical intervention could have been pursued. Further, CW #4 was not certain if anything could have been done as the patient was responsive and it would have been more of a situation of recognizing the seriousness of the situation and making sure medical attention was received.

CW #4 did not know the level of first-aid training police possess and, short of dressing wounds, he did not think there was much else the police officers could have done to address the internal injuries. The most important thing was to ensure medical intervention was prompt.

Video/Audio/Photographic Evidence [2]

Photographs

Photographs released by TPS to the SIU included seven that appeared to be taken by SO #3. Four of the photographs were taken during the SOs’ interaction with the Complainant prior to the arrival of paramedics. The digital file information data associated with the photographs indicated they were taken at 4:37 a.m.

The photographs captured the Complainant crouched on his knees on the concrete pad in front of the convenience store entrance.

Additional photographs included photographs of the deceased in situ at Sunnybrook Health Science Center (SHSC), post-mortem examination photographs and photographs taken at what appeared to be a residence.

ICCS Recordings

Recordings from the cruisers assigned to the SOs captured their interaction with the Complainant prior to the arrival of emergency medical services. SO #2’s cruiser had a clear view with good audio reception from his wireless microphone. SO #1’s ICCS did not record audio during the incident. SO #3’s ICCS view of the Complainant was obstructed by SO #1’s cruiser.

The ICCS recordings revealed that SO #2 and SO #1 arrived at the scene together at around 4:33:14 a.m. Both cruisers parked with their ICCSs aligned towards the entrance to the convenience store. The police officers arrived at the Complainant at about 4:33:30 a.m.

At 4:34:10 a.m., SO #2’s ICCS captured SO #1 approaching the Complainant. He made no physical contact with the Complainant, who was crouched on his knees with his head to the ground while the two police officers stood by asking him for information about the suspect. SO #1 then entered the convenience store while SO #2 remained outside. After several more inquiries about the suspect, the Complainant yelled, “I don’t fucking know,” and told SO #2 the event would have been captured on camera. When SO #2 asked the Complainant if he needed to lie down on his back, the Complainant said he did not know.

At 4:35:50 a.m., the Complainant said, “I’m going to die.” SO #2 walked away and began speaking into a portable radio microphone while he was heard updating the dispatcher with a description of the suspect and advising that the victim was robbed of his ODSP [3] cheque.

When SO #3 arrived, SO #2 approached the Complainant, who shouted, “Help me,” three times. SO #2 lowered himself and asked if he could look at him. The Complainant turned onto his right side as SO #2 lowered himself while SO #3 stood by and then also lowered.

Both police officers then stood while SO #1 exited the store. The police officers moved about the surrounding area, moving away from the Complainant while at times he shouted, “Help me,” another five times and said, “I have a family.” On several occasions, he said, “I’m gonna die,” and, “I’m gonna fucking die.” At 4:37:30 a.m., SO #2 responded, “You’re not going to die, okay,” while repeatedly asking where the incident happened.

SO #1 then said, “Let’s have your wallet,” and asked the Complainant if he had any identification documents. He then asked the Complainant to confirm his name. SO #2 told the Complainant to lie down on his back or on his side. Instead, the Complainant repositioned to crouch on his knees. As he did, a series of flashes were seen in the area where the Complainant was positioned. [4]

After SO #3 ran to his cruiser, SO #1’s ICCS captured him returning to the scene at 4:37:50 a.m. At this time, SO #3 took four photographs of the Complainant, who was crouched on his knees in front of the convenience store doors.

At that time, the Complainant continued yelling, “Help me,” and, “I’m gonna die,” as he yelled in pain. He repositioned onto his left side and SO #2 lowered himself near the Complainant and told him to try to remain still. When the Complainant again said, “I’m gonna die,” SO #2 responded, “Do you know who he was?” The Complainant continued saying, “I can’t breathe,” and, “I’m gonna die.” SO #2 told him he was not going to die and to take deep breaths. SO #2 then told the Complainant an ambulance was on the way. The Complainant again said, “I’m gonna die,” three times.

SO #2 told him a paramedic was there and to lie down as they would need to see his stomach. At 4:40:26 a.m., the Complainant appeared to become motionless as he lay supine. From that time, SO #2 asked the Complainant, “What’s your name?” 12 times as the paramedic, now known to be CW #3, approached. Immediately thereafter, the police officers and paramedic tried to arouse the Complainant, asking his name and saying, “Come on. Stay with us,” and, “Come on buddy. Wake up.”

From CW #3’s arrival, it appeared the Complainant remained motionless and unresponsive.

The material events in question are clear on the evidence collected by the SIU, which included interviews with paramedics and the ICCS footage from police cruisers that largely captured the incident. As was their legal right, none of the subject officials agreed to an interview with the SIU or authorized the release of their notes.

Shortly before 4:30 a.m. of October 29, 2021, the TPS received a 911 call from an Uber driver reporting the sound of a gunshot in the area of Kennedy Road and Ellesmere Road. Police officers were dispatched to investigate.

The Complainant had been shot in the upper left anterior chest. Following the shooting, he had made it into the Circle K store at the southwest corner of Kennedy Road and Ellesmere Road where he asked the clerk for help and collapsed on the floor. The Complainant exited the store and was located just outside the front door by the first arriving officers.

SO #1, SO #2 and SO #3 arrived on scene at about 4:33 a.m. Initially of the view that the Complainant was unrelated to the call for service, they quickly ascertained that he had in fact been shot. They reported this to their communications centre and asked for an ambulance at about 4:34 a.m.

While they waited for the arrival of paramedics, the Complainant writhed in pain and repeatedly said that he was dying. He was told that he was not dying and to remain still by SO #2. SO #3 took several photos of the Complainant on the ground. The bullet wound was not treated by any of the officers.

The first paramedic on scene was CW #3, arriving at about 4:40 a.m. She was soon joined by firefighters. The Complainant lapsed into unconsciousness at about this time. He was loaded into an ambulance and taken to hospital.

The Complainant arrived at SHSC at about 5:07 a.m. He was pronounced deceased at 5:45 a.m.

The pathologist at autopsy attributed the cause of the Complainant’s death to a gunshot wound of the chest.

Section 215, Criminal Code - Failure to Provide Necessaries

(c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and

(ii) is unable to provide himself with necessaries of life.

(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

Section 220, Criminal Code -- Criminal negligence causing death or bodily harm

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

The Complainant passed away in Toronto on October 29, 2021. As he had interacted with TPS officers in the moments before he lost consciousness, the SIU was notified of the matter and initiated an investigation. The officers in question – SO #1, SO #2 and SO #3 – were identified as the subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officers committed a criminal offence in connection with the Complainant’s death.

The offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215(2)(b) and 220 of the Criminal Code, respectively. As an offence of penal negligence, the former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is reserved for even more serious cases of neglect demonstrating a wanton or reckless disregard for the lives or safety of other persons. Liability is not made out unless the impugned conduct constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the issue is whether there was any neglect on the part of the subject officials, sufficiently egregious to attract criminal sanction, that endangered the life of the Complainant or caused his death. In my view, there was not.

The officers were in the execution of their lawful duties when they responded to the intersection of Kennedy Road and Ellesmere Road following a call about a gunshot in the area. Having located a male in need, and discerning that he had been shot and needed medical intervention, they acted appropriately in promptly requesting the assistance of paramedics.