Director's Report Details

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.

This report relates to the SIU’s investigation into the shooting injuries sustained by a 30-year-old man during an interaction with Toronto Police Service officers on February 20, 2016.

Notification of the SIU

On Saturday, February 20, 2016, at 8:18 a.m., the Toronto Police Service (TPS) notified the SIU that TPS officers responded to a holdup alarm at a Toronto Dominion (TD) Bank. The SIU was notified that as police officers arrived, a masked man exited the bank and fired at the police officers. TPS reported that a police officer fired and struck the man, who was taken to hospital. TPS advised that the incident was still ongoing. The bank was locked down by the Emergency Task Force. A second suspect was believed to be inside the bank.

The team

Number of SIU Investigators assigned: 6

Number of SIU Forensic Investigators (FIs) assigned: 3

SIU FIs identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, videography, sketches and measurements. The FIs collected all police firearms used during the incident, and assisted in making submissions to the Centre of Forensic Sciences (CFS) for analysis.

Complainant

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

CW #8 Interviewed

CW #9 Interviewed

CW #10 Interviewed

CW #11 Interviewed

CW #12 Interviewed

CW #13 Interviewed

CW #14 Interviewed

CW #15 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

WO #8 Interviewed

WO #9 Not interviewed, but notes received and reviewed

WO #10 Not interviewed, but notes received and reviewed

WO #11 Not interviewed, but notes received and reviewed

WO #12 Interviewed

WO #13 Interviewed

WO #14 Interviewed

WO #15 Interviewed

WO #16 Not interviewed, but notes received and reviewed

Subject officer

SO Interviewed, and notes received and reviewed

The scene

The TD Bank is located on the south west corner of Kipling Avenue and The Queensway. The two entrances to the parking lot surround the building to the south and to the west. One entrance is off The Queensway and one off of Kipling Avenue. The following vehicles were on the lot:

Police vehicle 1

This is a marked police vehicle displaying graphics as designed by the TPS. Emergency lighting and equipment were installed, but not operating. The engine was turned off. The police vehicle was oriented in a north easterly direction in the west parking lot area near the entrance off of The Queensway.

Police vehicle 2

This is a marked police vehicle displaying graphics as designed by the TPS. Emergency lighting and equipment were installed, but not operating. The engine was turned off. The police vehicle was oriented in an easterly direction.

In close proximity to these two vehicles there are three cartridge cases and one bullet jacket fragment..

Police vehicle 3

This was a marked police vehicle displaying graphics as designed by the TPS. Emergency lighting and equipment were installed, but not operating. The engine was turned off. The police vehicle was oriented in a south westerly direction blocking the entrance off of Kipling Avenue.

Civilian vehicle 1

The vehicle was parked along the west edge of the parking lot facing west.

A single impact site entered the left back bumper corner at an angle of 53° left to right if facing the rear of the vehicle. This projectile perforated further metal components of the vehicle travelling through the trunk and then perforating the rear seat, travelling to the right rear passenger door, where it perforated the inner door panel to the inner frame of the door. A projectile was recovered from the inner door.

Civilian vehicle 2

The vehicle was parked near a small median area near the south west corner of the building and was facing east.

Two impact sites were examined on this vehicle as follows. Impact Site 12 struck the rear tailgate door skin at an undetermined angle. The travel of the projectile was left to right as if facing the rear of the vehicle. The projectile failed to penetrate and ricocheted off of the back panel.

The projectile perforated the metal skin of the fender entering the inner structure. A secondary impact site was at a non-penetrating site behind the tail light assembly when it was removed.

Civilian vehicle 3

The vehicle was parked in the south west corner of the parking lot oriented in a north easterly direction. There was no evidence of impact sites on this vehicle.

There were numerous cartridge cases on the parking lot, median and sidewalk adjacent to the building from the area of the Civilian Vehicle #5 to the south side of the building. The area of clothing and personal effects was situated south west from Civilian Vehicle #5.

There were ten impact sites on the east wall of the neighbouring Hakim Optical building, 1325 The Queensway. The nine projectiles or jacket fragments were removed from the wall. The impact angles of all sites were undetermined.

Scene diagram

Physical evidence

Complainant’s firearm

A .22 cal. semi-automatic pistol was collected.

TPS use of force options

The use of force options of the SO and WO #12, WO #13, WO #14 and WO #15 were photographed. All TPS firearms used during this incident were recorded and collected by the SIU:

SO’s firearm

A Glock 22 .40 caliber semi-automatic pistol contained one cartridge in the chamber and seven cartridges in the magazine. The other two magazines were examined and they contained 14 cartridges each.

CFS confirmed that, in all, six shots originated from the SO’s firearm.

WO #12’s firearm

A Glock 22 .40 caliber semi-automatic pistol contained one cartridge in the chamber and eight cartridges in the magazine. The other two magazines were examined and they contained 14 cartridges each.

Five shots were confirmed by CFS to have originated from WO #12’s firearm.

WO #13’s firearm

A Glock 22 .40 caliber semi-automatic pistol contained one cartridge in the chamber and 11 cartridges in the magazine. The other two magazines were examined and they contained 14 cartridges each.

Two shots were confirmed by CFS to have originated from WO #13’s firearm.

WO #14’s firearm

A Glock 22 .40 caliber semi-automatic pistol contained one cartridge in the chamber and 12 cartridges in the magazine. The other two magazines were examined and they contained 14 cartridges each.

One shot was confirmed by CFS to have come from WO #14’s firearm.

WO #15’s firearm

A Glock 22 .40 caliber semi-automatic pistol contained one cartridge in the chamber and nine cartridges in the magazine. The other two magazines were examined and they contained 15 cartridges each.

Five shots were confirmed by CFS as having originated from WO #15’s firearm.

Forensic evidence

The complainant’s clothing, biological sample and personal effects were collected at the scene. Three articles of the complainant’s clothing were submitted to the CFS for shooting distance determination. As no residue was found on any of the clothing damaged by bullets, the CFS did not conduct distance determination testing of the complainant’s clothing.

SIU FI submitted all cartridge cases and the projectile collected from the scene for comparison to police officers’ firearms. All police firearms were accompanied by magazines and cartridges for comparison. The SIU FI also submitted a swab of a bullet jacket fragment for examination to determine if a relevant profile suitable for comparison could be generated. The CFS DNA Report showed that DNA was detected at a level below the reliable limit of the quantitation system.

Video/audio/photographic evidence

Summary of the in-car video from police cruiser

In-car video from one of the police cruisers showed that WO #15 activated his police cruiser emergency lights and siren. He drove westbound on The Queensway, turned left onto Kipling Avenue and entered a driveway on the east side of the TD Bank. WO #15 parked his police cruiser on an angle, faced westbound towards the TD bank parking lot.

The video shows the SO walking northbound in the parking lot. The SO stood and at times crouched down on the passenger side of a dark SUV.

WO #15 exited the driver side of the police cruiser with his firearm drawn and walked northbound away from camera view. The SO appeared to have his firearm drawn with both hands, and pointed northbound. The SO took several steps backwards.

CW #5 ran southbound in the parking lot behind the SO, and the complainant followed behind her. CW #5 fell to the ground.

The SO had his firearm pointed directly at the complainant. The SO fell to the ground at the front passenger side of the vehicle and the complainant fell down to the ground. Several police officers appeared from the north with their firearms drawn and surrounded the complainant.

The video recordings of additional police vehicles were reviewed and did not present further evidentiary value.

Communications recordings

Police officers were dispatched to 1315 The Queensway for a duress code hold up alarm.

The SO reported that he saw a white man wearing a mask exiting the bank just as they pulled up. WO #3 covered the south entrance. The man entered the back door of the bank. Additional police were dispatched, in addition to ETF members.

WO #3 reported that he saw a woman employee with the white man. They were walking towards the east entrance of the bank. The man was inside the bank, wearing a brown jacket, and black face mask. It appeared he was holding the woman hostage.

The SO reported that the man was exiting the bank with two women and a handgun. Reported shots had been fired and requested an ambulance. The man was in custody. He discharged his firearm. The man had gunshot wounds to the stomach. He was conscious, breathing and talking.

Materials obtained from the TPS

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

• COMM-summary of communication
• firearm discharged report-SO, WO #12, WO #13, WO #14, WO #15
• general occurrence
• ICAD-event details report
• injury illness report
• WO notes
• SO use of force training
• police firearms acquired - CFP, and
• police use of force policies.

Shortly before 8 a.m. on February 20, 2016, TPS officers responded to a duress/alarm call at the TD Bank located at 1315 The Queensway in the City of Toronto. Soon after arrival, police officers saw a man [now known to be the complainant] wearing a black ski mask exit the southwest door of the bank. As soon as the complainant saw the police officers, he went back inside the bank and shut the door. The SO relayed this information to dispatch.

More TPS police vehicles and multiple police officers arrived at the bank, and a perimeter was set up. WO #3 saw the complainant through the window, inside the bank. This WO broadcast over the radio that he saw the complainant with a woman. The complainant appeared to hold the woman hostage. He pointed for the woman to move south in the bank.

Shortly after, the emergency door on the west side of the bank building reopened, and CW #4 and CW #5 exited the bank. The complainant, still wearing the mask on his face, exited the bank behind the two hostages. The complainant was using the hostages as a shield, by holding them close together with both his arms wrapped around them on each side, and he had a pistol in his right hand pointed at one of the hostages.

The hostages were pushed by the complainant towards the passenger side of a silver vehicle parked on the west side of the parking lot. The SO, who had taken cover behind an SUV, drew his firearm and walked approximately 6 to 7.5 metres towards the silver vehicle. . The SO stopped walking and yelled out to the complainant to drop his gun. The complainant yelled something back at the SO, but this was not discernible as the complainant’s voice was muffled by the face mask covering his mouth.

Within seconds, the passenger door of the silver vehicle opened. The complainant told the hostages to get into the car and pushed them towards the vehicle. Instead, the hostages managed to run away from the complainant in the SO’s direction. The SO had his firearm aimed at the complainant, but could not discharge it because the hostages were in his line of sight. The SO yelled at the complainant to put the gun down, but the complainant did not comply with the instruction. As soon as the hostages were out of the way, the complainant raised his firearm, looked directly at the SO and pointed his firearm at the SO. The SO and the complainant fired at each other. As the SO was running backwards to take cover behind the SUV and discharging his firearm, he tripped over a concrete planter at the front of the SUV and fell to the ground. In all, six shots originated from the SO’s firearm.

During the course of the interaction, four other officers also discharged their firearms, but none struck the complainant. Two shots were confirmed by CFS to have originated from WO #13’s firearm. Five shots were confirmed by CFS to have originated from WO #12’s firearm. One shot was confirmed by CFS to have come from WO #14’s firearm. Five shots were confirmed by CFS as having originated from SO #15’s firearm.

The complainant ran south in the parking lot and fell to the ground on his right side. As the complainant still had the firearm in his right hand, officers shouted at him to throw the firearm away. The complainant did so, and he was handcuffed. He was transported to hospital for treatment of a gunshot wound to his abdomen.

Criminal Code of Canada - Defence — use or threat of force

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

(a) 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;

(b) 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

(c) the act committed is reasonable in the circumstances.

Factors

(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:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Criminal Code of Canada - 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.

Idem

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

When not protected

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

Fortunately, through the cooperation and assistance of 15 civilian witnesses, the subject officer and 16 police witnesses, including five officers who discharged their firearms, as well as an in car camera, the evidence is clear as to what occurred during the incident resulting in the injury of the complainant. I am satisfied that the first gunshot fired was fired after the complainant had turned to face the SO and had raised his firearm and was pointing it directly at the SO. I am unable to say with any certainty whether that first shot was fired by police or by the complainant, but I find that, in the circumstances where the complainant was facing a police officer with his arm extended and his firearm pointed at the officer, that both subjectively and objectively, any person would have had reasonable grounds to believe that force was being used against them or another person and that firing a shot at the individual at that point would have been solely for the purpose of defending themselves or the other person, pursuant to s.34 of the Criminal Code. It is further fully evident from all of the statements that that first shot did not make contact and that the shot that struck the complainant was only fired after the complainant had fired his weapon twice in the direction of the SO. It was clear that, at that point, the risk of serious bodily harm or death to the officers or civilians would have been substantially increased had the officers not returned fire at that time.

I find, therefore, that the shot that was fired and struck the complainant was fully justified pursuant to s.34 of the Criminal Code as being in self-defence and defence of others and that the SO, in shooting the complainant, used no more force than was necessary to effect his lawful purpose pursuant to s.25(3) of the Criminal Code. As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and therefore no charges will issue.

Date: June 21, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit