SIU Director’s Report - Case # 22-TFP-258
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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 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.
- 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 the discharge of a firearm at a 55-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 the discharge of a firearm at a 55-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 30, 2022, at 10:25 p.m., the Toronto Police Service (TPS) notified the SIU of a less-lethal firearm discharge by a TPS officer involving the Complainant.According to the TPS, on September 30, 2022, at 8:10 p.m., the Complainant was observed inside a restaurant located in the area of Royal York Road and The Queensway, Etobicoke. He was rummaging and had entered a prohibited area within the premise. When the owner approached the Complainant, he fled to the intersection of The Queensway and Royal York Road. TPS received complaints that the Complainant was wielding a knife and had made an unsuccessful carjacking attempt. As police arrived, the Complainant fled to an apartment building on The Queensway. He was observed armed with a knife, and holding it to his neck. Police officers attempted to negotiate with the Complainant. At a point in time when the Complainant lowered his arm, two police officers deployed their Conducted Energy Weapons (CEWs), while one police officer fired a less-lethal firearm (Modified Remington 870). The Complainant was taken into custody and lapsed into unconsciousness. Two doses of naloxone were administered, and the Complainant was transported by Emergency Medical Services (EMS) to St. Joseph’s Health Centre. The Complainant was conscious and stable at the time of notification.
The Team
Date and time team dispatched: 09/30/2022 at 10:43 p.m.Date and time SIU arrived on scene: 10/01/2022 at 12:45 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
55-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on October 1, 2022.
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on October 25, 2022.
Evidence
The Scene
On September 30, 2022, SIU forensic investigators attended an apartment at The Queensway. There was damage to the door frame and the locking mechanism. Inside the apartment, several CEW probes were located.There was one less-lethal sock round on the floor.
The less-lethal shotgun was collected by the SIU from the TPS, photographed, and released back to the TPS. Only one round had been discharged from the weapon.
Figure 1 - Less-lethal firearm
Physical Evidence
Forensic Evidence
Data associated with the CEWs deployed by WO #1 and WO #2 were downloaded and evaluated with the following results.WO #1’s CEW was fired on two occasions during the incident: at 8:37:53 p.m. [1] (for an electrical charge duration of one second); and, at 8:37:54 p.m. (for an electrical charge duration of five seconds).
WO #2’s CEW was fired on one occasion: at 8:49:17 p.m. (for an electrical charge duration of 1 second).
Figure 3 - CEW
Video/Audio/Photographic Evidence [2]
Communications Recordings
The following is a summary of the police communications recordings in connection with the incident.911 Call
On September 30, 2022, at 8:10 p.m., someone from a restaurant on The Queensway called 911 and reported that a man [now known to be the Complainant] had trespassed in the basement and stolen from the restaurant. The Complainant then fled on foot headed westbound on The Queensway. He was chased by employees and customers of the restaurant.
A second 911 call was received from the owner of the restaurant. He had chased the Complainant to the intersection of Royal York Road and The Queensway. The Complainant had pulled a knife on the owner. The Complainant had also unsuccessfully attempted to steal a vehicle from a woman by dragging her out of her vehicle.
A third 911 call noted that the Complainant had broken into an apartment at The Queensway.
Radio Transmissions
A description was broadcast of a male in his 50’s, approximately six-foot tall with a heavy build, and wearing a black short-sleeve shirt, blue jeans, and a Toronto Blue Jays hat.
At 8:13 p.m., WO #2 was dispatched to the call.
At 8:18 p.m., WO #2 requested a less-lethal firearm at the scene.
At 8:23 p.m., a less-lethal firearm was on-scene.
Undesignated Official #1 [3] advised he had located the apartment the Complainant had entered. Undesignated Official #1 had observed the Complainant inside the apartment, who had not responded at the door.
At 8:27 p.m., police officers entered the apartment, and spoke with the Complainant. He had a knife to his neck and refused to follow police directions.
At 8:29 p.m., EMS were requested to attend the location.
At 8:31 p.m., the Complainant had removed the knife from his neck but still held it in his hand. Police officers continued to talk with him. The Complainant said he wanted to die.
At 8:38 p.m., the Complainant was in custody. Two CEWs had been deployed and a less-lethal firearm had been fired.
At 8:43 p.m., the Complainant was diaphoretic with laboured breathing. He continued to talk to police officers.
At 8:44 p.m., the Complainant had lost consciousness.
At 8:47 p.m., police officers administered two doses of naloxone.
At 8:49 p.m., EMS and fire services arrived on-scene.
Body-worn Camera (BWC) Footage
The following is a summary of the video captured by the BWCs of 12 officers with involvement in the incident. On September 30, 2022, at 2022 p.m., WO #1 and WO #2 stood outside an apartment building at The Queensway. They attempted to locate the Complainant, who was reported to have a knife. They knocked on apartment doors and shone flashlights into windows. A light turned on inside an apartment and they observed the Complainant. They called out to him and received no reply.
At 8:26 p.m., Undesignated Official #2 kicked open the apartment door and police officers entered the apartment. Undesignated Official #2 announced the presence of police officers and ordered anyone in the apartment to get on the ground. The police officers entered a bedroom which led to a narrow hallway. Undesignated Official #2 walked down the hallway with a C8 rifle pointed ahead of him.
The SO followed with a less-lethal firearm pointed at the floor. WO #1 and WO #2 followed with CEWs in their hands.
Multiple police officers shouted at the Complainant to show his hands as he hid behind a wall at the end of the narrow hallway. The Complainant immediately requested a negotiator.
The Complainant threatened to kill himself with his weapon. Police officers gathered near the end of the hallway. Undesignated Official #2 stepped into the kitchen to better communicate with the Complainant while the other police officers kept their distance. The SO and WO #1 were at the end of the hallway. WO #2 was behind them.
Undesignated Official #2 removed his C8 rifle and handed it backwards to other police officers in the hallway to get the Complainant to put down his weapon. The Complainant removed the weapon from his neck but continued to hold it in his hand. The Complainant complained about the laser lights emitted from the CEW. He was offered the opportunity to speak with a nurse. He was also offered food, drinks, and an opportunity to call his family, but he declined.
At 8:38 p.m., the Complainant sat down in a chair and had no weapons in his hands. WO #1 approached slowly with his CEW aimed at the Complainant. The Complainant stood up suddenly and reached towards his waist with his right hand. WO #1 deployed both cartridges of his CEW in probe mode from the hallway. The SO moved into the room with the Complainant and deployed his less-lethal firearm. WO #2 moved into the kitchen and deployed one cartridge of her CEW in probe mode.
The Complainant was struck in his lower right abdomen by the less-lethal firearm round. He moved towards the corner of the room and hunched over. Police officers took the Complainant to the ground and handcuffed his hands behind his back.
While being handcuffed, the Complainant said, “I can’t breathe, I can’t breathe.” There was no police officer applying pressure to the Complainant’s neck or chest which would restrict air flow.
The Complainant showed an immediate decrease in his level of awareness and did not respond appropriately to attempts to rouse his attention. Police officers searched his pockets and found a pair of large tweezers and a crack pipe, but no knife.
At 8:41 p.m., the Complainant was attended to by the nurse from the Mobile Crisis Intervention Team, and was placed in the recovery position.
At 8:44 p.m., police officers noted the Complainant was unconscious with snoring respirations and laboured breaths.
At 8:48 p.m., WO #2 administered a dose of naloxone, which was ineffective.
At 8:52 p.m., EMS arrived and attended to the Complainant.
Materials Obtained from Police Service
The SIU obtained the following records from the TPS between October 17, 2022, and November 1, 2022:• General Occurrence Report;
• Computer-assisted Dispatch Report;
• Communications recordings;
• BWC footage;
• Involved Officers List:
• Notes – WO #1;
• Notes – WO #2;
• CEW data;
• Policy - Arrest;
• Policy - Persons in Crisis;
• Policy - Incident Response;
• Policy - Less-lethal Shotguns;
• Policy - Conducted Energy Weapon; and
• Witness List.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:• Medical records - St. Joseph’s Health Centre.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, including police BWC footage that captured the incident, and may briefly be summarized. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the evening of September 30, 2022, the Complainant was confronted by police officers inside an apartment at The Queensway, Toronto. The apartment was not his. The Complainant had broken into the residence following a series of events that saw him chased away from a restaurant nearby. The Complainant had trespassed onto the property and stolen from the premises. He was chased away by restaurant staff and customers to The Queensway and Royal York Road. The Complainant unsuccessfully attempted to carjack a woman’s vehicle in the area of the intersection before making his way to an apartment at The Queensway.
The police had received several 911 calls reporting the Complainant’s misdeeds and movements. In one of the calls, the caller reported that he had been threatened by the Complainant with a knife. Police were dispatched and made their way to the area where the Complainant had last been seen.
When the Complainant refused to voluntarily exit the apartment, multiple officers entered the unit with weapons drawn. Among the officers was the SO armed with a less-lethal shotgun. WO #1 and WO #2 were also among the contingent that entered the apartment – both with their CEWs at the ready. Undesignated Official #2, a C-8 rifle in hand, was the first to confront the Complainant. From the kitchen looking into the living room, Undesignated Official #2 took the lead in speaking to the Complainant.
The Complainant held a pair of tweezers to his neck, which the officers mistook as a knife, and refused to disarm himself. Over a period of about ten minutes, Undesignated Official #2 attempted to de-escalate the situation by offering the Complainant help of various sorts. The Complainant was not receptive. At one point, the Complainant placed the tweezers inside a pocket and took a seat on a chair in the living room. Shortly thereafter, however, he stood from the chair, appeared to reach towards his jacket pocket with his right hand, and was met with CEW discharges and a less-lethal round fired by the SO.
From a position in a hallway leading to the living room, WO #1 was the first to discharge his CEW. Immediately thereafter, WO #2 and the SO fired their weapons. The Complainant was struck by a sock round from the SO’s less-lethal shotgun in the torso, the impact causing him to hunch over. Multiple officers moved into the living room, took a hobbled Complainant to the floor, and assisted in handcuffing him.
The Complainant lapsed into medical distress shortly after his arrest. Naloxone was administered by the officers at the scene.
The Complainant was transported to hospital where he recovered without having suffered any serious injury.
In the evening of September 30, 2022, the Complainant was confronted by police officers inside an apartment at The Queensway, Toronto. The apartment was not his. The Complainant had broken into the residence following a series of events that saw him chased away from a restaurant nearby. The Complainant had trespassed onto the property and stolen from the premises. He was chased away by restaurant staff and customers to The Queensway and Royal York Road. The Complainant unsuccessfully attempted to carjack a woman’s vehicle in the area of the intersection before making his way to an apartment at The Queensway.
The police had received several 911 calls reporting the Complainant’s misdeeds and movements. In one of the calls, the caller reported that he had been threatened by the Complainant with a knife. Police were dispatched and made their way to the area where the Complainant had last been seen.
When the Complainant refused to voluntarily exit the apartment, multiple officers entered the unit with weapons drawn. Among the officers was the SO armed with a less-lethal shotgun. WO #1 and WO #2 were also among the contingent that entered the apartment – both with their CEWs at the ready. Undesignated Official #2, a C-8 rifle in hand, was the first to confront the Complainant. From the kitchen looking into the living room, Undesignated Official #2 took the lead in speaking to the Complainant.
The Complainant held a pair of tweezers to his neck, which the officers mistook as a knife, and refused to disarm himself. Over a period of about ten minutes, Undesignated Official #2 attempted to de-escalate the situation by offering the Complainant help of various sorts. The Complainant was not receptive. At one point, the Complainant placed the tweezers inside a pocket and took a seat on a chair in the living room. Shortly thereafter, however, he stood from the chair, appeared to reach towards his jacket pocket with his right hand, and was met with CEW discharges and a less-lethal round fired by the SO.
From a position in a hallway leading to the living room, WO #1 was the first to discharge his CEW. Immediately thereafter, WO #2 and the SO fired their weapons. The Complainant was struck by a sock round from the SO’s less-lethal shotgun in the torso, the impact causing him to hunch over. Multiple officers moved into the living room, took a hobbled Complainant to the floor, and assisted in handcuffing him.
The Complainant lapsed into medical distress shortly after his arrest. Naloxone was administered by the officers at the scene.
The Complainant was transported to hospital where he recovered without having suffered any serious injury.
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.
Analysis and Director's Decision
On September 30, 2022, the TPS contacted the SIU to report that one of their officers had fired a less-lethal shotgun at a person – the Complainant. 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 discharge of his firearm.
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.
Based on what the officers knew of the 911 calls that had been received by the police, reporting the Complainant’s misconduct at the restaurant and on the streets, and his presence in an apartment that was not his, they were lawfully proceeding to arrest him when their weapons were deployed.
With respect to the force that was brought to bear by the officers, namely, CEW discharges and a single round fired from a less-lethal shotgun by the SO, I am satisfied that it was legally justified. Led by Undesignated Official #2, the officers had attempted to resolve the matter peacefully through negotiations. The Complainant was resolute, however, in refusing to disarm himself. In the circumstances, when the Complainant, having put away his tweezers and taken a seat, rose to his feet and reached for his pocket, the officers were understandably concerned that he was about to retrieve his weapon and attempted to prevent that from happening. They might have chosen to rush at the Complainant and neutralize him physically, but that would have risked injury coming to the officers or the Complainant had he taken hold of the weapon before they could reach him. In contrast, the use of the CEWs and less-lethal shotgun carried the prospect of incapacitating the Complainant from a safe distance without the infliction of serious injury. In fact, that is precisely what occurred.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully when he fired his less-lethal shotgun at the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 27, 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.
Based on what the officers knew of the 911 calls that had been received by the police, reporting the Complainant’s misconduct at the restaurant and on the streets, and his presence in an apartment that was not his, they were lawfully proceeding to arrest him when their weapons were deployed.
With respect to the force that was brought to bear by the officers, namely, CEW discharges and a single round fired from a less-lethal shotgun by the SO, I am satisfied that it was legally justified. Led by Undesignated Official #2, the officers had attempted to resolve the matter peacefully through negotiations. The Complainant was resolute, however, in refusing to disarm himself. In the circumstances, when the Complainant, having put away his tweezers and taken a seat, rose to his feet and reached for his pocket, the officers were understandably concerned that he was about to retrieve his weapon and attempted to prevent that from happening. They might have chosen to rush at the Complainant and neutralize him physically, but that would have risked injury coming to the officers or the Complainant had he taken hold of the weapon before they could reach him. In contrast, the use of the CEWs and less-lethal shotgun carried the prospect of incapacitating the Complainant from a safe distance without the infliction of serious injury. In fact, that is precisely what occurred.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully when he fired his less-lethal shotgun at the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 27, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The times are derived from the internal clocks of the weapons, and are not necessarily synchronous between weapons and with actual time. [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]
- 3) An “undesignated official” is an official who has not been designated as a subject official or a witness official by the SIU. [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.