SIU Director’s Report - Case # 13-TFD-108

Explanatory note

The Ontario Government is releasing past SIU Director Reports (submitted to the Attorney General prior to May 2017) that include fatalities involving a firearm, physical altercation, and/or use of conducted energy weapon, or other extensive police interaction that did not result in a criminal charge.

Justice Michael H. Tulloch made recommendations about the release of past SIU Director Reports in the Report of the Independent Police Oversight Review, released on April 6, 2017.

Justice Tulloch explained that since past reports were not originally drafted for public release they may have to be edited substantially to protect sensitive information. He took into account that confidentiality assurances were given to various witnesses during the course of SIU investigations, and recommended that some information be redacted in the interests of privacy, safety, and security.

As recommended by Justice Tulloch, this explanatory note is being provided to assist the reader’s understanding of why certain information is redacted in these reports. Notes have also been inserted throughout the reports to help describe the nature of the information that was redacted and why it was redacted.

Law enforcement and personal privacy information considerations

Consistent with Justice Tulloch’s recommendations and guided by section 14 of the Freedom of Information and Protection to Privacy Act (FIPPA) (relating to law enforcement information), portions of these reports have been removed to protect:

• confidential investigative techniques and procedures used by the SIU
• 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
• witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Consistent with Justice Tulloch’s recommendations and guided by section 21 of FIPPA (relating to personal privacy information), personal information, including sensitive personal information, has also been redacted, except that which is necessary to explain the rationale for the Director’s decision. 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
• other identifiers which are likely to reveal personal information about individuals involved in the investigation, including in relation to children
• witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Personal health information

Information related to the personal health of individuals that is unrelated to the Director’s decision (taking into consideration the Personal Health Information Protection Act, 2004) has been redacted.

Other proceedings, processes, and investigations

Information may have also been excluded from these reports 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.

Director’s report

Notification of the SIU

On April 26, 2013, at 1314 hrs, Notifying Officer of the Toronto Police Service (TPS) notified the SIU of the shooting death of an unknown male, who was later identified as Deceased. According to Notifying Officer, officers responded to the Toronto Dominion (TD) Bank, located at 2428 Eglinton Ave East, Toronto, regarding a suspicious male armed with a machete. A TPS officer discharged his pistol, and Deceased was vital signs absent (VSA) at the scene.

Overview

On April 26, 2013, at approximately 1237 hrs, the TPS received a 911 call from Civilian Witness #5 of the TD Bank. Civilian Witness #5 reported that Deceased was observed walking around the TD Bank with a machete attached to his side. At 1238 hrs, the TPS dispatched upwards of six cruisers to respond to the area.

At approximately 1243 hrs, Subject Officer #1, Witness Officer #2, Subject Officer #2 and Witness Officer #3 arrived at the intersection of Eglinton Avenue East and Kennedy Road, where the TD bank is located. The officers observed Deceased walking eastbound along Eglinton Avenue, in the south side crosswalk. Subject Officer #1 and Witness Officer #2 exited their cruiser and called out to Deceased to get his attention. Deceased did not acknowledge the officers and continued to walk eastbound on the sidewalk.

As Deceased approached the building located at 2425 Eglinton Avenue, he began to walk in a south-easterly direction towards the building’s entrance. The officers walked in an easterly direction approximately three to five metres behind Deceased. Deceased was facing away from the officers when he stopped walking. He removed his jacket and as he turned to face the officers he drew a machete out of his waist band area. Deceased held the machete above his shoulders. The officers drew their firearms and pointed them at Deceased and ordered him to drop his weapon. Deceased did not obey the officers’ commands, instead began to advance towards the officers with the machete still held above his head. Subject Officer #1 and Subject Officer #2 discharged their firearms, striking Deceased. Deceased collapsed to the ground and was taken into custody. Deceased was eventually transported to the Sunnybrook Hospital where he was pronounced dead.

The investigation

On April 26, 2013, within minutes of the notification, the SIU dispatched five investigators, augmented by three forensic investigators (FIs) to the scene of the shooting. The first SIU investigator arrived on scene at 1400 hrs, and commenced the investigation.

The SIU FIs videotaped and photographed in and around the shooting scene. The FIs also mapped out the scene with the aid of a Sokkia Total Station. They seized a number of items of evidentiary value, including but not limited to four spent projectile casings, Subject Officer #1 and Subject Officer #2’s duty belts and all their use of force options, and a black handled machete. Evidence considered relevant to the investigation was later sent to the Centre of Forensic Sciences (CFS) for examination.

Based on the initial information received from the TPS, the SIU designated Subject Officer #1 and Subject Officer #2 as subject officers. Both officers consented to be interviewed and provided a copy of their notes. Subject Officer #2 was interviewed on June 14, 2013 and Subject Officer #1 on June 17, 2013.

On April 26, 2013, at 1930 hrs, SIU FI seized Subject Officer #1 and Subject Officer #2’s service issued Glock 22 handguns. Subject Officer #1’s handgun had one live cartridge in the chamber of the pistol and ten cartridges in the magazine from in the pistol. Both of Subject Officer #1’s spare magazines contained 14 cartridges in each. Subject Officer #2’s handgun had one live cartridge in the chamber and 12 cartridges in the magazine from her pistol. Both of her spare magazines had 14 cartridges in each.

On April 28, 2013, the SIU Lead Investigator and Lead FI attended the post-mortem examination of Deceased at the Office of the Chief Coroner, in Toronto.

The SIU designated the following TPS officers as witness officers. All provided their notes and were interviewed on the dates noted:

• Witness Officer #1 (April 26, 2013)
• Witness Officer #2 (April 26, 2013)
• Witness Officer #3 (April 26, 2013)
• Witness Officer #4 (April 26, 2013)
• Witness Officer #5 (April 26, 2013)
• Witness Officer #6 (April 28, 2013), and
• Witness Officer #7 (April 28, 2013)

Upon request, the TPS provided the following material to the SIU:

• Copy of communications tape relative to incident
• Copy of CAD relative to incident, and
• Sensitive Personal Information

The following civilian witnesses were interviewed on the dates indicated:

• Civilian Witness #1 (April 26, 2013)
• Civilian Witness #2 (April 26, 2013)
• Civilian Witness #3 (April 26, 2013)
• Civilian Witness #4 (April 26, 2013)
• Civilian Witness #5 (April 26, 2013)
• Civilian Witness #6 (April 26, 2013)
• Civilian Witness #7 (May 3, 2013)
• Civilian Witness #8 (May 16, 2013)
• Civilian Witness #9 (May 16, 2013)
• Civilian Witness #10 (May 16, 2013)
• Civilian Witness #11 (May 16, 2013), and
• Civilian Witness #12 (May 16, 2013)

The SIU obtained a copy of the video contained on Civilian Witness #3’s iphone, which he/she claimed recorded the shooting incident. After a careful review of the video it appears that Deceased had been shot seconds earlier and was in fact lying on the sidewalk when Civilian Witness #3 commenced recording the incident. Civilian Witness #3 did not capture the shooting, he/she captured the aftermath.

The Scene

The scene was located on the south east corner of the Eglinton Avenue and Kennedy Road intersection. The incident took place in very close proximity to the building located 2425 Eglinton Avenue. The following items were retrieved from the scene: four cartridge cases, a machete, two bloody shirts yellow & brown, a red hat, a wash cloth, a black jacket, a machete sheath, keys, a blood stain and medical debris.

Confidential witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence (Law Enforcement and Privacy Considerations)

Director’s decision under s. 113(7) of the Police Services Act

In my view, there are no reasonable grounds to believe that subject officers, Subject Officer #1 and/or Subject Officer #2, committed a criminal offence in relation to the firearms death of Deceased on April 26, 2013. Both subject officers provided their notes and statements to the SIU, the contents of which square with the many statements taken from both civilian witnesses and witness officers.

In the early afternoon of April 26^th, multiple officers were dispatched to 2428 Eglinton Avenue East in response to a suspicious male armed with a machete. The subject officers along with two other witness officers were the first to arrive and saw the male, later identified as the decedent, walking eastbound along Eglinton Avenue East near Kennedy Road. Subject Officer #1 saw Deceased, who matched the previously provided description, walking eastbound through the crosswalk on the south side of Eglinton Avenue. He exited the cruiser and tried to get his attention while following him along the south sidewalk of Eglinton Ave. At the same time, subject officer Subject Officer #2 exited her police vehicle. The two subject officers were joined by witness officers Witness Officer #3 and Witness Officer #2. Deceased stopped walking, took off his jacket, turned around, reached into his waistband, and produced a sheathed machete. He removed the sheath from the machete, and started advancing toward the four officers. The involved officers began backing up and yelling at Deceased to drop his knife. In the vicinity were citizens walking on the sidewalk and behind the officers was a flow of traffic on Eglinton Avenue. Deceased was holding the knife in his left hand with the blade upward and facing toward the two subject officers. All officers drew their handguns and pointed them at the decedent. Deceased continued to close the distance between himself and the officers with the machete in his hand, and not responding to their repeated commands to ‘drop the knife”. At one point, he raised the machete above his head. When the distance between the officers and Deceased was reduced to approximately two metres, both subject officers discharged their firearms - Subject Officer #1 three times and Subject Officer #2 once. Deceased fell to the ground. The involved officers approached him and handcuffed his wrists behind his back because he was still conscious and resisting. Shortly after, he lapsed into unconsciousness and an officer performed CPR until paramedics arrived. Deceased was transported to Sunnybrook Hospital where he was pronounced deceased. A post-mortem examination determined the cause of death to be gunshot wounds to the torso.

In my view, this use of lethal force by the subject officers was justified. Deceased represented a serious and imminent threat to both the subject officers and the two witness officers as he approached them with a machete which he refused to drop. As the distance closed in between the involved officers and the man brandishing this weapon, I am of the view that the subject officers had a reasonable apprehension of imminent death or bodily harm to both themselves and the other involved officers in circumstances where there was no reasonable alternative but to use lethal force.

Date: July 17, 2013

Original signed by

Ian Scott
Director
Special Investigations Unit

Appendix A

All involved officers answered the notebook related questions without any issue or concerns.