SIU Director’s Report - Case # 22-TFI-246
Warning:
This page contains graphic content that can shock, offend and upset.
Contents:
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.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (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.
- The names of persons, including civilian witnesses, and subject and witness officials;
- Location information;
- Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
- Other identifiers which are likely to reveal personal information about individuals involved in the investigation.
Personal Health Information Protection Act, 2004
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.Mandate Engaged
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into a serious injury sustained by a 36-year-old man (the “Complainant”).
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 serious injury sustained by a 36-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 21, 2022, at 2:55 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.Earlier on September 21, 2022, TPS received a 911 call regarding at person in crisis – the Complainant – at a business on Yonge Street. Reportedly, the Complainant was threatening to slash people with a knife. TPS officers arrived on scene and a less-lethal shotgun was fired at the Complainant. The Complainant was struck four times by the less-lethal rounds, and was taken into custody. The Complainant was subsequently taken to hospital having suffered a serious injury.
The Team
Date and time team dispatched: 09/21/2022 at 3:15 p.m.Date and time SIU arrived on scene: 09/21/2022 at 3:24 p.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
36-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on November 14, 2022.
Civilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
The CWs were interviewed on September 26, 2022, and September 27, 2022.
Subject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The SO was interviewed on November 15, 2022.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
The WOs were interviewed on October 15, 2022, and September 29, 2022.
Evidence
The Scene
The scene was inside a store on Yonge Street.
Physical Evidence
Video/Audio/Photographic Evidence [1]
Video Footage from Business
The footage, a summary of which follows, was taken on September 21, 2022.At 1:23:05 p.m., the Complainant came into the store wearing a red baseball cap, grey sweatpants, and black sneakers. He had a black T-shirt around his neck. The Complainant paced briefly and then walked to the far end of the store. He continued to pace and gesticulate with his hands.
At 1:24:29 p.m., store employee, CW #3, arrived on the main floor and watched the Complainant from a distance. This was followed by CW #1 appearing, another store employee. She briefly tried to speak with the Complainant, and then began to make a phone call.
At 1:25:20 p.m., CW #4, another employee, arrived and stood between the Complainant and CW #3. The Complainant climbed onto a counter and sat down. He continued to speak and gesticulate with his hands.
At 1:26:56 p.m., the Complainant got off the counter and walked towards the cash register. CW #4 stood in his way. The Complainant spoke briefly to CW #4 and returned to the centre of the store. CW #4 turned to speak to an employee and the Complainant walked past him to the end of the store. CW #4 subsequently followed the Complainant.
At 1:30:25 p.m., a TPS cruiser pulled up in front of the store. The SO and WO #1 exited the cruiser and entered the store. The SO carried a less-lethal shotgun with a bright orange-coloured stock. WO #1 did not have a weapon in his hand. The police officers momentarily disappeared into a corner of the store where the Complainant was located. They immediately backed up as the Complainant charged at them.
A struggle ensued, and the SO and WO #1 appeared to chase the Complainant about. The SO raised and pointed his less-lethal shotgun at the Complainant. WO #1 was on his police radio. The Complainant ran behind a pillar followed by the SO. WO #1 pointed his pistol in the direction of the Complainant. He moved close to where the SO and the Complainant were located. The view of the Complainant and the two police officers was blocked by a pillar. Soon thereafter, the Complainant was subdued and arrested.
At 1:35:25 p.m., the footage ended.
Police Communications Recordings
The recordings, a summary of which follows, were made on September 21, 2022.At 1:30:17 p.m., CW #1 called police reporting there was a man in the store - the Complainant - threatening to slash customers. The dispatcher asked CW #1 if the Complainant had a weapon. CW #1 responded that the Complainant said he had a knife, but she had not seen him holding a knife. There were about 50 customers in the store at the time, and the Complainant was blocking the exit to the store.
At 1:31:21 p.m., the dispatcher broadcast over the police radio that there was a person in crisis at a store on Yonge Street. The dispatcher provided a description of the Complainant over the police radio.
At 1:36:41 p.m., the SO reported over the police radio that the Complainant was in custody, and a less-lethal shotgun had been used.
At 1:41:54 p.m., police announced over the police radio that although it was reported the Complainant had a knife, the police officers had not seen or found any knife on him.
At 1:42:23 p.m., police radioed the dispatcher to request an ambulance for the Complainant.
At 1416:12 p.m., the police asked the dispatcher to inform paramedics that the Complainant had been shot four times with a less-lethal shotgun.
Body-worn Camera (BWC) Footage – WO #1
The recording, a summary of which follows, was made September 21, 2022.At 1:35:49 p.m., the SO and WO #1 arrived on scene at the store. The SO carried a less-lethal shotgun with an orange stock and muzzle. The police officers walked towards a man - the Complainant - wearing grey sweatpants with a black shirt resting on his shoulder. The Complainant turned and walked in an aggressive manner towards the SO.
At 1:35:57 p.m., the Complainant came at the SO. The SO aimed his less-lethal shotgun at the Complainant. The Complainant screamed, “Don’t shoot, don’t shoot.” The SO fired four successive less-lethal rounds at the Complainant. He then put the less-lethal shotgun aside and drew his CEW, pointing it at the Complainant.
The Complainant fell onto his stomach on the ground. He yelled, “Alright, you got me.” The SO put a knee on the Complainant’s left lower back. At the same time, WO #1 pulled the Complainant’s right arm up from his side and held it behind the Complainant’s back. The SO handcuffed the Complainant’s hands behind his back. The Complainant had a small blue object in his right hand [later learned to be a lip balm stick].
At 1:36:42 p.m., the police dispatcher was updated via police radio that the Complainant was in custody, and that a less-lethal shotgun had been used.
At 1:36:58 p.m., another police officer arrived and helped search the Complainant’s pockets. WO #1 asked the Complainant if he was using any drugs. The Complainant replied, “Crack.”
At 1:37:40 p.m., the Complainant was sat up. Blood was visible on the ground where he had been lying. WO #1 asked where the blood was coming from and the Complainant said that he was bleeding from his stomach.
At 1:38:40 p.m., the Complainant said, “I had you against the table, and you fucking shot me. You were lucky I didn’t have my gun. I would have shot you dead.”
At 1:40:37 p.m., the SO indicated there was a laceration on the Complainant’s stomach. The Complainant continued to struggle and threatened to fight in his handcuffs.
At 1:41:45 p.m., the Complainant’s legs were tied.
At 1:45:04 p.m., WO #2 arrived. The SO informed him of the Complainant’s injury.
At 1:45:47 p.m., the Complainant said he had punched the SO in the mouth.
At 1:50:36 p.m., WO #1 mentioned it was fortunate the SO had the less-lethal shotgun with him. The SO agreed and noted that the CEW would not have worked on the Complainant.
At 1:53:32 p.m., WO #2 told the SO and WO #1 to separately go back to the police station and remain segregated.
BWC Footage - the SO
The footage, a summary of which follows, was made on September 21, 2022.At 1:35:43 p.m., the SO entered the store. He walked towards the Complainant. The Complainant wore grey pants and a red baseball cap with a shirt slung over his left shoulder.
The Complainant saw the SO approaching him and immediately began to walk towards the SO. As he neared the SO, the Complainant raised his fist and made a motion as if to strike and charge at the SO. The SO backed up as the Complainant attacked and pushed the SO into a table. A struggle ensued between the two during which the SO broke free. The SO raised his less-lethal shotgun and pointed it at the Complainant, who continued to advance. The SO fired his less-lethal shotgun at the Complainant. Four spent ammunition casings were see ejecting from the shotgun and falling to the ground.
After the fourth round was fired, the Complainant turned and ran off. The SO slung his less-lethal shotgun over his shoulder and drew his CEW, which he pointed at the Complainant. The Complainant quickly laid down onto his stomach.
The SO approached the Complainant and ordered him to stay on the ground. WO #1 appeared with his pistol drawn pointed at the Complainant. The SO sat astride the Complainant and brought out his handcuffs. WO #1 positioned the Complainant’s left arm behind him. The SO handcuffed the Complainant’s hands one by one.
At 1:36:42 p.m., the SO updated the dispatcher advising the Complainant was in custody, and a less-lethal shotgun had been used.
At 1:37:40 p.m., the Complainant was sat up. Blood was visible on the ground where he had been lying. There were two large marks across his chest, and a red patch on the left side of his lower abdomen.
At 1:38:40 p.m., the Complainant said, “I had you against the table, and you fucking shot me. You were lucky I didn’t have my gun. I would have shot you dead.” The SO asked the Complainant about his injury. The Complainant continued to struggle with the SO and WO #1. The SO checked the Complainant’s lower left abdomen and said there was a laceration. The Complainant appeared unconcerned and continued to struggle.
At 1:45:13 p.m., WO #2 arrived. The SO informed WO #2 of the Complainant’s injury and said the Complainant was shot four times, twice on the chest, once on the back of his forearm, and once on the lower part of the stomach.
At 1:45:47 p.m., the Complainant said he punched the SO in the mouth.
WO #2 inspected the less-lethal shotgun and confirmed with the SO the number of rounds that were fired. The SO cleared a cartridge from the breech, and it fell on the floor.
At 1:50:36 p.m., WO #1 said it was fortunate that the SO took the shotgun with him. The SO agreed and said that a CEW would not have worked on the Complainant.
Materials Obtained from Police Service
The SIU obtained the following records from the TPS between September 23, 2022, and November 23, 2022:- General Occurrence Report;
- Communications recordings;
- BWC footage - WO #1;
- BWC footage - the SO;
- BWC footage – undesignated officers;
- Video footage – Business;
- Notes - WO #2;
- Notes – WO #1;
- Scene and shotgun photos; and
- Witness List.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - The Complainant’s medical records – St. Michael’s Hospital
Incident Narrative
The material events in question are clear on the evidence collected by the SIU – including interviews with the Complainant and the SO, and video footage that captured the incident – and may briefly be summarized.
In the early afternoon of September 21, 2022, the SO, in the company of WO #1, was dispatched to a store on Yonge Street, Toronto. An employee had called police to report a disturbance involving the Complainant. The Complainant was harassing and threatening customers.
With a less-lethal shotgun at the ready, the SO was the first to enter the store, followed closely by WO #1. The Complainant was at the rear of the store on the main level. At the sight of the SO, the Complainant walked aggressively in his direction, raising his right hand as if to punch the officer. The SO stepped back and was pushed by the Complainant into a store display table. He used his shotgun to block additional punches by the Complainant. WO #1 interceded from behind and pulled the Complainant away from the SO. The Complainant again rushed at the SO. As he did so, the officer, while backtracking, fired his less-lethal shotgun four times in quick succession at the Complainant.
The Complainant was struck by each of the four rounds. Following the final shot, he broke off his attack, rounded the display table and went to the floor. The SO and WO #1 followed him there and handcuffed his hands behind his back.
The Complainant was taken to hospital where, aside from some superficial lacerations caused by the less-lethal projectiles, it was discovered that one of them had penetrated his abdomen. The projectile was removed with surgery.
In the early afternoon of September 21, 2022, the SO, in the company of WO #1, was dispatched to a store on Yonge Street, Toronto. An employee had called police to report a disturbance involving the Complainant. The Complainant was harassing and threatening customers.
With a less-lethal shotgun at the ready, the SO was the first to enter the store, followed closely by WO #1. The Complainant was at the rear of the store on the main level. At the sight of the SO, the Complainant walked aggressively in his direction, raising his right hand as if to punch the officer. The SO stepped back and was pushed by the Complainant into a store display table. He used his shotgun to block additional punches by the Complainant. WO #1 interceded from behind and pulled the Complainant away from the SO. The Complainant again rushed at the SO. As he did so, the officer, while backtracking, fired his less-lethal shotgun four times in quick succession at the Complainant.
The Complainant was struck by each of the four rounds. Following the final shot, he broke off his attack, rounded the display table and went to the floor. The SO and WO #1 followed him there and handcuffed his hands behind his back.
The Complainant was taken to hospital where, aside from some superficial lacerations caused by the less-lethal projectiles, it was discovered that one of them had penetrated his abdomen. The projectile was removed with surgery.
Relevant Legislation
Section 25(1), Criminal Code -- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(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,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Section 264.1, Criminal Code -- Uttering threats
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;(b) to burn, destroy or damage real or personal property; or(c) to kill, poison or injure an animal or bird that is the property of any person.
Analysis and Director's Decision
The Complainant suffered a serious injury when he was shot by a TPS officer on September 21, 2022. The officer – the SO – was identified as the subject official in the ensuing SIU investigation. 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 injury.
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 Complainant was causing a disturbance in the store, and had harassed and threatened to slash store employees and customers. He was clearly subject to arrest for a variety of offences, including ‘uttering threats’ contrary to section 264.1 of the Criminal Code.
With respect to the force used by the SO, namely, four shots from his less-lethal shotgun, I am satisfied that it was legally justified. The Complainant was immediately violent with the officers. He assaulted the SO – pushing him backwards and punching at him – and was in the middle of another attack on the officer when the less-lethal shotgun was deployed. The scene was a retail business with customers and employees present, and deterring the Complainant and taking him into custody as soon as possible was a matter of some urgency. Importantly, each of the gunshots occurred as the Complainant was moving towards the SO with hostile intentions. In the circumstances, it would appear that the use of the weapon – designed to neutralize a threat by inflicting pain but not serious injury - fell within a range of reasonable options available to the SO. In fact, the Complainant was thwarted by the weapon and went to the floor following the fourth shot.
In the result, while it is regrettable that the Complainant suffered a serious injury in his run-in with police, there are no reasonable grounds to conclude that the SO comported himself other than within the limits of the criminal law throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 19, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 Complainant was causing a disturbance in the store, and had harassed and threatened to slash store employees and customers. He was clearly subject to arrest for a variety of offences, including ‘uttering threats’ contrary to section 264.1 of the Criminal Code.
With respect to the force used by the SO, namely, four shots from his less-lethal shotgun, I am satisfied that it was legally justified. The Complainant was immediately violent with the officers. He assaulted the SO – pushing him backwards and punching at him – and was in the middle of another attack on the officer when the less-lethal shotgun was deployed. The scene was a retail business with customers and employees present, and deterring the Complainant and taking him into custody as soon as possible was a matter of some urgency. Importantly, each of the gunshots occurred as the Complainant was moving towards the SO with hostile intentions. In the circumstances, it would appear that the use of the weapon – designed to neutralize a threat by inflicting pain but not serious injury - fell within a range of reasonable options available to the SO. In fact, the Complainant was thwarted by the weapon and went to the floor following the fourth shot.
In the result, while it is regrettable that the Complainant suffered a serious injury in his run-in with police, there are no reasonable grounds to conclude that the SO comported himself other than within the limits of the criminal law throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 19, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.