Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into firearms injuries sustained by a 39-year-old man during an interaction with Toronto Police Service (TPS) officers in downtown Toronto on August 8, 2016.

Notification of the SIU

On Monday, August 8, 2016, at 6:41 a.m., TPS notified the SIU of a shooting injury to the Complainant.

TPS reported that a TPS officer involved shooting occurred in the area of Dundas Street and Yonge Street, Toronto. TPS received a 911 call at 6:30 a.m., reporting a stabbing in the area of Dundas Square. TPS police officers arrived at Dundas Street and Yonge Street. They engaged and shot a white male in his 40’s [now known to be the Complainant]. The Complainant was taken to the hospital.

The team

Number of SIU Investigators assigned: 8

Number of SIU Forensic Investigators (FIs) assigned: 3

SIU FIs attended the scene and identified and preserved evidence. The scene was digitally recorded and measured, and a scale drawing was prepared. The exhibit locations were photographed and measured to be included in the drawing. The FIs collected the police firearm used during the incident and assisted in making submissions to the Centre of Forensic Sciences (CFS) for analysis.

Complainant:

39-year-old male interviewed, medical records obtained and reviewed

Civilian witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

CW #4  Interviewed

CW #5  Interviewed

CW #6  Interviewed

CW #7  Interviewed

Witness officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

WO #4  Interviewed

WO #5  Not interviewed, but notes received and reviewed

Subject officers

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

The scene

SIU FI examined the shooting scene located on Dundas Street West, between Bay Street and Yonge Street. This area is a high-density commercial district with a complex of businesses in The Atrium on Bay Street to the north and the Toronto Eaton Centre on the south side of Dundas Street West. Dundas Street West is an east-west road with two lanes of traffic in each direction and the centre lanes are shared by street cars. There are wide sidewalks on both sides of the street and street lighting on both sides of the street.

There was one TPS marked cruiser within the scene, a 2011 Crown Victoria. It was parked in the westbound lane next to the curb and directly outside Timothy’s World Coffee (TWC). It had a bullet strike to the right rear quarter panel which penetrated the wheel well and a smaller bullet strike to the right side of the rear bumper. A third bullet strike was located in a steel door on the north side of the street, just west of TWC. There were numerous exhibits on the ground at the rear of the cruiser, under the cruiser, and along the right side of the cruiser. The exhibits included blood stained clothing that had apparently been cut from the Complainant, bullet fragments, cartridge cases, and a pool of blood. On the sidewalk between the cruiser and the business were four raised planter boxes. Cartridge cases were located in the planter boxes.

While securing the exhibits another projectile was located within the bundle of clothing cut from the Complainant.

Scene diagram

Physical evidence

The scene was searched and the following items were recovered:

• Six silver Smith &Wesson Winchester .40 caliber cartridge cases
• Projectile fragments
• Blue-handled paring knife broken at the hilt (blade 95 mm, handle 107 mm)
• Cut and blood-stained clothing, consisting of a grey suit jacket, blue dress shirt, and a blue and white tie, and
• Skechers shoes, socks, keys, a belt, BlackBerry cellphone, and a wallet with numerous pieces of identification

Below is a photo of the knife seized:

Forensic evidence

Several cartridge cases, bullet fragments (including fragments removed from the Complainant during surgery), the SO’s Glock 22 firearm, a knife, and knife handle were sent to CFS for analysis.

A Firearms Report from CFS concluded the SO’s firearm was identified, within the limits of practical certainty, as having fired four of the cartridge cases obtained at the scene. The same firearm could not be identified nor eliminated as having fired two other bullet jacket fragments. The other bullet jacket fragments, bullet core fragments, and metal fragments were of no specific identification value.

A Biology Report from CFS found there was blood on the knife handle and blade. Each had more than one contributor. However, no further testing was required as independent witnesses confirmed the Complainant was involved in a stabbing of a third party before the Complainant was shot by the SO.

The knife was tested for fingerprints with negative results.

Video evidence

Closed-circuit television (CCTV) footage was collected from:

• The Atrium’s cameras on Yonge Street north of Dundas Street and on Dundas Street between Yonge Street and Bay Street on the north side of the street, and
• The Eaton Centre

CCTV from The Atrium:

5:20:00 a.m.

Video begins

5:21:45 a.m.

An older male was walking on the sidewalk. A male [now known to be the Complainant] walked behind the older male. The Complainant reached with his right hand into the inside left pocket on his suit coat, then with two hands over his head struck the older male from behind [now known to have stabbed the older male]. The Complainant then struck the older male with a closed left fist and the older male fell to the sidewalk into an alcove. The Complainant then kicked the older male and punched him several times

5:23:18 a.m.

The Complainant had an unknown item in his left hand, and

5:23:25 a.m.

The Complainant walked back towards the older male on the sidewalk then walked away. A male [now known to be CW #3] carrying a black knapsack was near the older male on the ground. The Complainant walked away southbound on Yonge Street and west on Dundas Street

5:26:09 a.m.

The Complainant was walking on the sidewalk

5:37:51 a.m.

CW #3 walked towards the Complainant on the north side of Dundas Street west of Spring Rolls. CW #3 stopped and seemed to exchange words with the Complainant before walking away

5:56:45 a.m.

CW #3 was on the sidewalk watching the Complainant from a distance. CW #3 put the knapsack on the sidewalk and continued to watch the Complainant

5:59:40 a.m.

A security guard wearing a white shirt was on the sidewalk near CW #3 and they were both watching the Complainant from a distance

6:01:47 a.m.

A police cruiser was westbound on Dundas Street and was signaled to the curb by CW #3

6:01:55 a.m.

When the police cruiser came to a stop near the curb, a police officer in the passenger side [now known to be the SO] exited the police cruiser and was saying something to the Complainant. The SO had his firearm drawn when he exited the police cruiser. The driver [now known to WO #1] of the police cruiser exited with his firearm drawn. The SO was between the cruiser and the open passenger door. The Complainant was in the middle of the sidewalk

6:01:59 a.m.

The Complainant raised his left hand to his chest then ran towards the SO on the passenger side of the police cruiser. The SO stepped back away from the passenger door towards the rear corner of the police cruiser. There was a flash from the SO’s firearm. The officer was moving backwards away from the Complainant. The Complainant fell towards the police cruiser. As the police officer moved back there was another flash from the SO’s firearm

There were several onlookers including security guards watching the police officers

The Complainant was rolling on the ground near the rear passenger corner of the police cruiser

6:04:47 a.m.

A police cruiser travelling in the opposite direction as the first police cruiser came into sight on the roadway followed by others. The SO continued to keep a visual of the Complainant

6:12:08 a.m.

An ambulance arrived at the scene

CCTV footage from The Eaton Centre:

The CCTV footage from The Eaton Centre corroborates the digital recordings obtained from The Atrium.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from TPS:

• Communications - Summary of conversation
• General Occurrence Report
• Intergraph Computer Aided Dispatch (ICAD)
• ICAD - Event Details Report
• ICAD - Narrative Message Report
• Mobile Data Terminal (MDT) Logs - Narrative Messages
• MDT Logs - Query Activity
• Four Parade Sheet Reports for August 8, 2016
• Notes of WO #1, WO #2, WO #3, WO #4 and WO #5
• TPS Procedure for Use of Force and Equipment, including Appendix A - Provincial Ontario Use of Force Model
• TPS Procedure for Search of Persons, including Appendix B - Risk Assessment - Level of Search

Around 5:20 a.m. on August 8, 2016, an older man was walking on the sidewalk in front of The Atrium shopping centre, on Yonge Street north of Dundas Street in the City of Toronto.

CCTV cameras captured – and witnesses observed –the Complainant approach the older man and, raising his hands over his head, stab the older man in the back before striking him with his fist. Once the older man fell to the ground, the Complainant is seen kicking and punching the older man.

911 was called. Just before 6:00 a.m., the SO and WO #1 responded to a radio dispatch call about a stabbing in the area of Dundas Street and Yonge Street. A few minutes later, CW #3 steps onto Dundas Street and flags down a police cruiser, directing the SO and WO #1 to the Complainant.

The police cruiser pulled to the curb in front of the Complainant, and the SO exited the passenger door of the police cruiser with his firearm drawn. He orders the Complainant to drop his knife. The Complainant refused.

With his arm outstretched and with something in his hand, the Complainant charged at the SO. The Complainant came within approximately one to four metres of the SO when the SO discharged his firearm, hitting the Complainant multiple times in the shoulder and torso. The Complainant fell to the ground. He was holding a knife in his hand at the time.

The Complainant was rushed to hospital and treated for multiple gunshot wounds.

Section 34, Criminal Code – Defence — use or threat of force

34 (1) A person is not guilty of an offence if

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

On August 8, 2016, the SO and WO #1 responded to a radio call for a stabbing in the area of Dundas Street and Yonge Street in the City of Toronto. On searching the general area for the party with the knife, they were hailed by a witness in the area of Dundas Street located between Bay Street and Yonge Street and moments later became involved in an interaction with the Complainant. During this interaction, the SO discharged his firearm striking the Complainant.

Earlier that morning, beginning at approximately 5:21 a.m., the Complainant is seen on CCTV approaching an elderly gentleman on the sidewalk in front of The Atrium on Yonge Street north of Dundas Street in the City of Toronto. The Complainant, who was later positively identified, is seen wearing a grey suit and tie. He is seen on the video to approach the elderly male, remove an item from the inside left pocket of his suit coat and, with both hands raised over his head in what can only be described as an attack stance, he struck the older male from behind with the item that he held in his hands and then struck him with a closed left fist causing the older male to fall to the ground, whereupon the Complainant is seen to punch and kick the male several times while he was down.

This incident was observed by CW #3, who provided a statement to SIU investigators. His interaction with the Complainant is caught on the CCTV of several commercial establishments along Dundas Street between Yonge Street and Bay Street.

CCTV footage reveals that at 6:01:47 a.m., a police cruiser was travelling westbound on Dundas Street when CW #3 stepped out and indicated the location of the Complainant and directed the officers towards him.

CCTV footage further reveals that at 6:01:55 a.m., the police cruiser, which was driven by WO #1 with the SO in the front passenger seat, pulled to the curb in front of the Complainant’s location. The SO is seen to exit the passenger door of the cruiser with his firearm drawn. WO #1 exited the driver’s door, which put him in the middle of Dundas Street with the cruiser between himself and the Complainant and the SO. WO #1 had his hand on his firearm, but did not initially draw his weapon from its holster.

At this point in time, several civilian witnesses were watching the interaction between police and the Complainant. At the time of the arrival of the police cruiser, six civilian witnesses, in addition to CW #3, were in the area and observed events play out. Additionally, we are fortunate to have the vantage point of numerous different CCTV cameras located outside of various commercial premises from the beginning of this incident to its conclusion.

Although the video footage does not have any audio, from the independent and various viewpoints of the seven civilian witnesses and the CCTV footage, the evidence as to what occurred here is extremely clear. Six of the civilian witnesses related to investigators that police shouted at the Complainant to drop the knife or to drop what was in his hand. All witnesses stated, and as is clearly seen in the CCTV footage, that the Complainant then raised his left hand and ran towards the SO, who was still standing at the passenger side of his cruiser. The SO stepped back away from the Complainant. The Complainant continued to run at the officer with his arm upraised and the officer fired at the Complainant, striking him.

At 6:01:59 a.m., the CCTV footage reveals the Complainant raise his left hand to his chest then run towards the SO, who is standing on the passenger side of his cruiser. The SO is seen to step back away from the passenger door towards the rear corner of the police cruiser. The Complainant ran at the SO. There was a flash from the SO’s firearm. The officer was still moving backwards away from the Complainant. As the SO continued to move backwards, there is a second flash from the discharge of his firearm and the Complainant fell to the ground near the rear wheel of the cruiser.

There is no question that the SO was acting in the course of his duty when he attended the scene and began to address CW #3’s allegation that the Complainant had assaulted and stabbed an elderly man earlier that morning. Thus the only issue that I need to consider is whether the shooting of the Complainant was justified. There is no doubt in my mind that it was. The applicable provision of the Criminal Code is section 34(1) which provides the legal justification for the use of force in defence of self and defence of others.

A person is not guilty of an offence if, at the time that they employ the force in question:

1. they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person
2. the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force, and
3. the act committed is reasonable in the circumstances, taking into account several factors that are enumerated in s. 34(2), including the nature of the threat, whether any weapons were involved, the availability of alternative means to neutralize the threat and the proportionality of the response

On a review of all of the evidence, it is clear the Complainant had already stabbed one person on the morning in question and police were aware of that fact. Officers shouted several times at the Complainant to drop his weapon. In response to the Complainant charging at the SO, the SO was moving backwards defensively. The SO did not discharge his firearm until the Complainant ran at him in what was described as attack mode and after several demands to drop the knife were ignored. Once the Complainant was on the ground, the SO did not continue to discharge his firearm.

Although he did not speak to the SIU, it can be reasonably inferred from all of the evidence that the SO had reasonable grounds to believe that force or a threat of force was being used against him and/or his partner by the Complainant; that he discharged his firearm for the purpose of defending or protecting himself and his partner from that threat of serious bodily harm and/or death; and, that his actions were reasonable in the circumstances.

On a review of the relevant legislation and on all of the evidence, I find that the SO acted reasonably in all of the circumstances with all of the information available to him and used no more force than was necessary. On reviewing the video, it is without dispute that the Complainant’s attack on the officer was sudden and without provocation. It is also clear from the reaction of WO #1, as observed on the CCTV footage, in jumping backward and almost reactively removing his firearm from its holster in response to the sudden and violent movement of the Complainant, that WO #1 also clearly feared for the life of his partner. Although WO #1 did not discharge his firearm, he had the benefit of being on the other side of the police cruiser from the Complainant; an advantage that the SO did not have.

The full body of the evidence satisfies all three requirements of s.34 of the Criminal Code. I find, therefore, that in discharging his firearm, the SO was acting in defence of himself and others from the Complainant and used no more force than was reasonable in the circumstances. As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the officer were justified as falling within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: October 3, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit