Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:

• 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 Personal 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.

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

• 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.

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 serious injury of a 28-year-old man (the “Complainant”).

Notification of the SIU[1]

On April 12, 2024, at 2:47 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

At 1:35 p.m., the Subject Official (SO) and Witness Official (WO) #1 were dispatched to a residence on Nairn Avenue in Toronto regarding unknown trouble. Through the course of an ensuing investigation, police officers located the Complainant at a Tim Hortons, 1269 College Street. The Complainant was confronted by officers outside the coffee shop in relation to an outstanding warrant for his arrest. The Complainant fled but was captured by the officers, all three men going to the ground. During a struggle that followed, the Complainant stabbed the SO. The officers disengaged and created distance. WO #1 discharged his conducted energy weapon (CEW) twice and the SO discharged his service pistol. The SO and the Complainant were transported via emergency medical services (EMS) to St. Michael’s Hospital (SMH).

The Team

Date and time team dispatched: 2024/04/12 at 3:03 p.m.

Date and time SIU arrived on scene: 2024/04/12 at 4:26 p.m.

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 2

Affected Person (aka “Complainant”):

28-year-old male; interviewed[2]

The Complainant was interviewed on April 14, 2024.

Civilian Witnesses (CW)

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

The civilian witnesses were interviewed between April 12 and 22, 2024.

Subject Official (SO)

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

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Interviewed; notes received and reviewed

WO #4 Interviewed; notes received and reviewed

WO #5 Interviewed; notes received and reviewed

The witness officials were interviewed between April 15 and 16, 2024.

The Scene

The events in question transpired in the parking lot outside the front doors of the Tim Hortons, 1269 College Street, Toronto.

Scene Diagram

Physical Evidence

On April 12, 2024, at 5:37 p.m., two SIU forensic investigators arrived at the strip mall located at the southeast corner of College Street and Lansdowne Avenue. This mall had several businesses, including a Papa John’s Pizza, S Market, and a Tim Hortons. There was a paved parking lot where seven cars were parked. There was a hunting-style knife underneath a grey Toyota Prius parked directly in front of the Tim Hortons.

The scene was photographed and scanned with a Leica RTC360 scanner by SIU forensic investigators.

The SIU collected the clothing worn by the Complainant, and the SO’s full TPS uniform, duty belt, and all use of force equipment. Also collected was a TPS-issued Glock 22 pistol, with 13 rounds of ammunition. TPS policy was to load 14 rounds. SIU forensic investigators located one cartridge case on the ground outside the Tim Hortons, confirming that only one bullet was fired.

Figure 1 - The SO’s firearm with 13 rounds of ammunition

The following is an image of the knife found at the scene.

Figure 2 - Hunting knife located at scene

Forensic Evidence

Conducted Energy Weapon (CEW) Deployment Data

At 1:32 p.m., on April 12, 2024, WO #1 armed his CEW by turning the safety off. Two seconds later, WO #1 pulled the trigger and Bay 1 cartridge was deployed giving an electrical discharge from the CEW for about 1.3 seconds. One second later, WO #1 pulled the trigger a second time and Bay 2 cartridge was deployed giving an electrical discharge from the weapon for approximately 1.6 seconds.

Video/Audio/Photographic Evidence[3]

Police Communications Recordings

On April 12, 2024, starting at about 11:54 a.m., a TPS dispatcher asked for an available patrol unit to attend an address on Nairn Avenue regarding ‘unknown trouble’. The SO volunteered and was dispatched to the call, with WO #1 assisting.

Starting at about 1:00 p.m., WO #1 advised the dispatcher that there was concern about the Complainant’s safety and he requested a ping of his phone, which was unsuccessful.

Starting at about 1:14 p.m., WO #1 broadcast that the Complainant was wanted on an outstanding arrest warrant and that he was at the Tim Hortons at 1269 College Street. Given the location of the restaurant, WO #1 requested a patrol unit from 11 Division attend to assist.

Starting at about 1:32 p.m., the sound of a struggle could be heard over an open microphone, followed by the SO broadcasting, “Shots fired.” WO #1 advised the dispatcher that the SO had been stabbed. The Complainant was heard telling the SO, “Sorry I stabbed you.” The SO broadcast that one shot had been fired.

Starting at about 1:33 p.m., WO #1 broadcast that the SO had lost a lot of blood, and that a belt was being applied to his leg as a tourniquet. The SO was in and out of consciousness.

Starting at about 1:34 p.m., WO #1 broadcast that the Complainant had sustained a gunshot wound.

Body-worn Camera (BWC) Footage - WO #1

On April 12, 2024, starting at about 1:30 p.m., WO #1 was captured walking across a parking lot towards the front doors of a Tim Hortons, located at 1269 College Street.

Starting at about 1:31 p.m., the SO joined WO #1. The police officers stopped in the entrance past the exterior doors and saw the Complainant and CW #6 walking towards the inner doors. Between the two sets of doors, the Complainant was stopped and asked if his name was “[the Complainant’s first name]”. He denied that it was. CW #6 and the Complainant walked past WO #1 towards the parking lot, after which the Complainant was stopped in between the interior and exterior doors by the SO. WO #1 stood to the rear of the Complainant. The SO told the Complainant he was being detained, saying that he looked like “[the Complainant]” who was wanted for an outstanding warrant. WO #1 reached out with his right hand and held onto the left elbow of the Complainant. The Complainant kept walking.

The Complainant, WO #1, and the SO were now outside the Tim Hortons on the sidewalk. The Complainant again denied he was [the Complainant]. He said he had no identification and that all of his identification was expired. The SO held the Complainant by the left wrist, and WO #1 stood to the right of the Complainant. The SO told the Complainant he was going to be handcuffed and that he was being placed under investigative detention. He also stated the police were checking on his well-being. The Complainant pushed the SO backwards and he stumbled. The Complainant then fled between two parked cars. The SO grabbed the Complainant from behind with his right hand and both men fell to the ground. WO #1 went onto the back of the SO to assist. The SO held onto the coat of the Complainant. Both men struggled. The SO screamed out in pain.

The two officers released their grip of the Complainant, who got to his feet and faced the officers with a bloody knife in his right hand. WO #1 drew his service pistol with his left hand, and his CEW was in his right hand and pointed at the Complainant. The SO drew his service pistol with his right hand and pointed it at the Complainant. The SO had blood emanating from his right hand at the pistol grip. Both police officers pointed their firearms at the Complainant, who stood holding the bloody knife. WO #1 issued commands to drop the knife, and the Complainant shouted back, “Shoot me.” The Complainant was approximately three metres from WO #1. The SO called into his portable radio, “Officer down, officer down.[4]” CW #6 stood approximately five metres away from WO #1 and screamed at the police officers. The Complainant continued to face both police officers and yelled, “Shoot me, shoot me.” He took off his jacket and held it in his right hand. The knife was now concealed by the jacket. WO #1 discharged his CEW at the Complainant. The Complainant raised his right arm, and the discharge hit the jacket, having no effect. The Complainant turned towards the front doors of the Tim Hortons. The SO discharged his firearm into the back of the Complainant. At the same time of the firearm discharge, WO #1 discharged his CEW again. This time, the Complainant locked-up and fell to the ground.

The Complainant landed on his back. CW #6 screamed out and the SO called-out into his portable radio, “Officer down.” WO #1 warned that the Complainant had the knife, and the SO was able to keep his service pistol pointed on the Complainant. WO #1 called for assistance. A heavily bleeding SO fell to the ground. WO #1 applied pressure on the injured left leg of the SO. CW #5 walked over, took his belt off and used it to make an improvised tourniquet.

The remainder of the BWC footage captured events after the fact, such as scene control.

BWC Footage - the SO

The recording was consistent with that of WO #1, as both officers were recording the same event and stood near each other. One item of note was that after grounding the Complainant, the SO yelled, “I’ve been stabbed,” and then, “I’m gonna shoot you.[5]”

The SO stood to the right of WO #1, and behind the Complainant was the store exterior.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TPS between April 13, 2024, and April 25, 2024:

• Arrest warrant for the Complainant;
• General Occurrence Report;
• List of involved officers;
• Computer-aided Dispatch Report;
• Prosecution summary;
• Communications recordings;
• CEW deployment data - WO #1;
• In-car camera footage;
• Notes - WO #1;
• Notes - WO #2;
• Notes - WO #3;
• Notes - WO #4;
• Notes - WO #5; and
• BWC footage of all involved officers.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between April 13 and April 14, 2024:

• Video footage – S Market;
• Video footage – Tim Hortons;
• Video footage – 1269 College Street;
• Video footage – Papa John’s Pizza;
• Cellular telephone recordings – CW #7;
• Cellular telephone recording – CW #8; and
• Still digital images – CW #6.

The evidence collected by the SIU, including interviews with the police and non-police eyewitnesses, and video footage that captured the events in question, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.

In the afternoon of April 12, 2024, the SO, in the company of WO #1, arrived at the Tim Hortons at 1269 College Street, Toronto. They had come to learn that the Complainant was in the establishment and had plans to take him into custody on the basis of an outstanding arrest warrant. They had also spoken with his father earlier that day and were concerned about the Complainant’s mental health.

The Complainant was in the Tim Hortons with CW #6. The pair got up from a table and started to make their way out. As he passed the officers in the vestibule between a set of inner and outer doors, the Complainant was asked by the officers if he was “[the Complainant]”. The Complainant denied that he was and kept walking out.

WO #1 explained to the Complainant that he looked like [the Complainant] and the officers took a hold of him as they walked out the outer doors. The Complainant continued to deny his identity, indicated that he did not have any identification with him, and asked why he was being stopped. The officers explained that he was being placed in detention on suspicion that he was the person subject to a warrant. The Complainant placed a bag he was carrying on the ground and then suddenly bolted from the officers. He was immediately taken to the ground by the officers between two parked vehicles just west of the front doors. The trio wrestled on the ground for about five seconds before the Complainant was able to retrieve a knife from his person and use it to cut the SO’s left leg. Several more seconds passed and the officer, realizing that he had been stabbed, started to scream that he was going to shoot the Complainant. The SO and WO #1 rose to their feet and retreated a short distance, the former with his semi-automatic pistol in his right hand pointed at the Complainant.

The knife in his right hand, the Complainant had also risen to his feet and was standing facing north towards the officers from between the same parked vehicles. Told repeatedly to drop the knife, the Complainant did not do so. Instead, he looked at the officers and screamed back that he wanted them to shoot him. He proceeded to take off his jacket and partially turn to his right when he was struck by a CEW discharge and bullet fired at about the same time by WO #1 and the SO, respectively. The Complainant continued his turn to the right and had taken a step towards the Tim Hortons’ doors when he was struck again by another CEW discharge by WO #1. This time, the Complainant locked-up and fell front first in front of the Tim Hortons. The time was 1:32 p.m.

The Complainant was arrested and taken to hospital. He had been struck in the upper left back by a bullet.

The SO had suffered a serious laceration to the back of the left leg and was also taken to hospital.

Section 34, Criminal Code - Defence of Person – 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.

(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.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

The Complainant was shot and wounded by a TPS officer on April 12, 2024. The SIU was notified of the incident and initiated an investigation naming the SO the subject official. 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 shooting.

Section 34 of the Criminal Code provides that conduct that would otherwise constitute an offence is legally justified if it was intended to deter a reasonably apprehended assault, actual or threatened, and was itself reasonable. The reasonableness of the conduct is to be assessed in light of all the relevant circumstances, including with respect to such considerations as the nature of the force or threat; 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; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force.

The SO was lawfully placed and engaged in the execution of his duties throughout the series of events culminating in the shooting. There was a warrant in effect for the Complainant’s arrest, and the officer was proceeding lawfully to take him into custody on that basis.

With respect to the SO’s mindset at the time of the shooting, though he did not provide first-hand evidence to the SIU on this matter (as was his legal right), I am satisfied he acted to defend himself and others in the vicinity from a reasonably apprehended assault at the hands of the Complainant. That proposition is a natural and reasonable inference from the circumstances. The Complainant, having just inflicted grievous bodily harm on the SO and still in possession of the knife, was within metres of the officers and customers inside the Tim Hortons, in which direction he was turning at the time of the shooting. The officer would have had cause to believe that his life, the life of his partner, and the lives of those inside the restaurant were at risk of injury or death.

I am also satisfied that the force used by the officer – a single gunshot – constituted reasonable force. The Complainant was holding a knife which he had just used to seriously cut the SO. He refused to drop it despite the officers’ repeated exhortations and, instead, screamed that he wanted to be shot. Retreat or withdrawal were not options given the need to protect third-parties in the area and the speed with which events were unfolding. In the circumstances, whether fearing he or WO #1 were at imminent risk of a knife attack, or that the customers inside the Tim Hortons were in harm’s way, both reasonable concerns given the short distances involved and the Complainant’s behaviour, it was imperative that the Complainant be incapacitated as quickly as possible. The discharge of a firearm was a legitimate tactic in the circumstances as it had the stopping power required of the moment.[6] It should be noted in this regard that the CEW fired by WO #1 at about the same time had failed to neutralize the Complainant, who then advanced towards the Tim Hortons doors. The gunfire also did not fell the Complainant (that happened with the second of WO #1’s CEW discharges), but that was more fortuity than anything else and does not detract from the reasonableness of the weapon’s use.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: August 8, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit