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 19, 2010 at 0300 hrs, Notifying Officer of the Toronto Police Service (TPS) notified the SIU of the firearm death of Mr. Wieslaw Duda. According to Notifying Officer, officers from 55 Division pursued a motor vehicle operated by Mr. Duda in the area of Leslie and Commissioners Streets, in Toronto. The pursuit was abandoned a short time after it started, but was resumed after Mr. Duda collided with a 55 Division police cruiser operated by officers investigating Mr. Duda’s earlier operation of the vehicle. Mr. Duda then drove west on Commissioners St. without stopping for police and at the intersection of Cherry and Commissioners St., struck Witness Officer #8 of 51 Division, who was standing on Commissioners St.

Notifying Officer further reported that Mr. Duda sustained multiple gunshot wounds from firearms discharged by Subject Officer #1, Witness Officer #19 and Subject Officer #2, and possibly by Witness Officer #6, when Mr. Duda struck Witness Officer #8. Mr. Duda was pronounced dead at the scene by Toronto Emergency Medical Service (TEMS) paramedics.

Witness Officer #8 was treated at Mt. Sinai Hospital (MSH) for minor injuries as the result of being struck by Mr. Duda’s vehicle and was released from hospital on April 19, 2010.

The investigation

On April 19, 2010, five SIU investigators and three forensic investigators (FIs) were assigned to this investigation. The first investigator arrived at the scene at 0411 hrs, on April 19, 2010, and found the scene secured by uniformed officers of the TPS.

SIU investigators interviewed civilian and police witnesses, and searched for and obtained CCTV images relevant to the incident.

The SIU FIs made a digital photographic record of the scene, collected physical evidence, and seized exhibits relevant to the incident. Mr. Duda’s vehicle and the TPS cruiser that sustained bullet strikes in the course of this incident were also seized. The FIs took measurements and completed Sokkia Total Station scale drawings of the scene. The uniforms, duty belts, firearms, and all use of force options of the officers that discharged their firearms were seized by the SIU and submitted to the Centre of Forensic Sciences (CFS) for examination, as were projectiles and parts thereof, and glass particles found at the scene.

The SIU requested and obtained assistance at the scene from Centre of Forensic Sciences (CFS) scientists having specialized skills, knowledge, and ability in respect of ballistics and projectile trajectory.

Based on information provided by the TPS, Witness Officer #1 and Witness Officer #2, and Witness Officer #3, Witness Officer #4, Witness Officer #5, Witness Officer #7, Witness Officer #9, Witness Officer #10, Witness Officer #11, Witness Officer #12, Witness Officer #13, Witness Officer #14, Witness Officer #15, Witness Officer #16, Witness Officer #17, Witness Officer #18, Witness Officer #20, Witness Officer #21, and Witness Officer #22 were designated as witness officers.

Subject Officer #1, Witness Officer #6, Witness Officer #8, Witness Officer #19, and Subject Officer #2 were designated as subject officers. After reviewing further investigative material, Witness Officer #6, Witness Officer #8, and Witness Officer #19 were re-designated as witness officers.

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

  • Automated Vehicle Location System (AVLS) data from involved TPS vehicles
  • Civilian Witness Information
  • Communication audio recordings
  • Diagram by Witness Officer #2
  • Diagram by Subject Officer #1
  • Diagram by Witness Officer #6
  • Diagram by Witness Officer #8
  • Diagram by Witness Officer #12
  • Diagram by Witness Officer #13
  • Diagram by Witness Officer #22
  • Diagram by Subject Officer #2
  • I/CAD Event Details Report ----redacted
  • In-Car Camera System images
  • Injured on Duty Report pertaining to Witness Officer #8
  • Memorandum book notes of Witness Officer #1
  • Memorandum book notes of Witness Officer #2
  • Memorandum book notes of Witness Officer #3
  • Memorandum book notes of Witness Officer #4
  • Memorandum book notes of Witness Officer #5
  • Memorandum book notes of Subject Officer #1
  • Memorandum book notes of Witness Officer #6
  • Memorandum book of Witness Officer #7
  • Memorandum book notes of Witness Officer #8
  • Memorandum book notes of Witness Officer #9
  • Memorandum book notes of Witness Officer #10
  • Memorandum book notes of Witness Officer #11
  • Memorandum book notes of Witness Officer #12
  • Memorandum book notes of Witness Officer #13
  • Memorandum book notes of Witness Officer #14
  • Memorandum book notes of Witness Officer #15
  • Memorandum book notes of Witness Officer #16
  • Memorandum book notes of Witness Officer #17
  • Memorandum book notes of Witness Officer #18
  • Memorandum book notes of Witness Officer #20
  • Memorandum book notes of Witness Officer #19
  • Memorandum book notes of Witness Officer #21
  • Memorandum book notes of Witness Officer #22
  • Memorandum book notes of Subject Officer #2
  • Occurrence Report ----redacted
  • Parade Sheet Report – 51 Division
  • Parade Sheet Report – 55 Division
  • Photographs
  • Policy and Procedure #13-16 Special Investigations Unit
  • Policy and Procedure #13-17 Memorandum Books
  • Policy and Procedure #15-01 Use of Force
  • Policy and Procedure #15-10 Suspect Apprehension Pursuit
  • Policy and Procedure #15-17 In-Car Camera System
  • Property Bag containing iPhone seized by the TPS from Civilian Witness #1
  • Property Receipt issued to Civilian Witness #1
  • Routine Order amending Policy and Procedure #15-01, effective February 18, 2009
  • Routine Order amending Policy and Procedure #15-01, effective September 1, 2009, and
  • Use of Force qualification records regarding Subject Officer #1, Witness Officer #6, Witness Officer #8, Witness Officer #19 and Subject Officer #2

Upon request, the SIU obtained and reviewed the following materials and documents from the Peel Regional Police (PRP):

  • E-mail dated May 4, 2010
  • E-mail dated May 5, 2010
  • Sensitive Personal Information
  • Sensitive Personal Information
  • Sensitive Personal Information
  • Sensitive Personal Information

The following witness officers were interviewed on the dates indicated:

  • Witness Officer #1 (June 14, 2010)
  • Witness Officer #2 (May 8, 2010)
  • Witness Officer #3 (April 21, 2010)
  • Witness Officer #4 (April 21, 2010)
  • Witness Officer #5 (April 21, 2010)
  • Witness Officer #6 (May 19, 2010)
  • Witness Officer #7 (April 23, 2010)
  • Witness Officer #8 (May 8, 2010)
  • Witness Officer #9 (April 19, 2010)
  • Witness Officer #10 (April 21, 2010)
  • Witness Officer #11 (April 19, 2010)
  • Witness Officer #12 (April 19, 2010)
  • Witness Officer #13 (April 19, 2010)
  • Witness Officer #14 (April 21, 2010)
  • Witness Officer #15 (April 21, 2010)
  • Witness Officer #16 (April 21, 2010)
  • Witness Officer #17 (April 19, 2010)
  • Witness Officer #18 (April 23, 2010)
  • Witness Officer #19 (May 10, 2010)
  • Witness Officer #20 (April 21, 2010)
  • Witness Officer #21 (April 21, 2010)and
  • Witness Officer #22 (April 23, 2010)

The subject officers, Subject Officer #1 and Subject Officer #2, were interviewed on June 16, 2010, and June 1, 2010, respectively.

The SIU obtained and reviewed the following materials and documents:

  • CCTV images recorded by Turtle Island Recycling at 51 Commissioners St.
  • CCTV images recorded by PS Productions at 80 Commissioners St.
  • CCTV images recorded by Pinewood Studios at 225 Commissioners St.
  • CCTV images recorded by Cascades Boxboard Group at 495 Commissioners St.
  • Diagram made by Civilian Witness #1
  • iPhone images recorded by Civilian Witness #1
  • Photograph of Mr. Wieslaw Duda dated March 12, 2006, and
  • TPS Pursuit and Firearm Discharge Review Final Report issued January 2008

The following civilian witnesses were interviewed on the dates indicated:

  • Civilian Witness #1 (April 19, 2010)
  • Civilian Witness #2 (April 19, 2010)
  • Civilian Witness #3 (April 21, 2010)

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 the named subject officers, Subject Officer #1 and Subject Officer #2, committed a criminal offence in relation to the firearms death of Mr. Duda at approximately 0130 hrs on April 19, 2010. Subject to certain qualifications, to be discussed below, the following is a recitation of the material facts.

On April 19, 2010 at about 0113 hrs, TPS received a 911 call reporting that a male, now known to be Mr. Wieslaw Duda, was operating a motor vehicle on Queen St. East in the vicinity of Woodbine Ave. in an erratic manner. The 911 caller reported that Mr. Duda was last seen eastbound on Queen St. East, swerving all over the road. Witness Officer #13 and Witness Officer #20 were dispatched to investigate the information received from the 911 caller and made their way to the area where Mr. Duda was last seen.

At about the same time that the 911 call was received, Subject Officer #1 and Witness Officer #8 were concluding their investigation of a gas leak at ----redacted Kingston Rd. Subject Officer #2 went to the same address to assist Subject Officer #1 and Witness Officer #8, and was about to step out of his cruiser when Mr. Duda’s vehicle, a silver Nissan Sentra four-door sedan, went by him at a very high rate of speed. Subject Officer #2 activated his emergency lights and siren, and pursued the Nissan from Kingston Rd. to the intersection of Leslie St. and Lakeshore Rd., where he terminated the pursuit in compliance with the supervisor’s directive due to increasing concerns for public safety. This pursuit constituted the first of two TPS suspect apprehension pursuits of Mr. Duda’s vehicle. During the first pursuit, Mr. Duda drove at a very high rate of speed and ignored numerous red traffic signal lights.

Subject Officer #2 lost sight of Mr. Duda’s vehicle in the industrial area of Toronto’s waterfront. After he terminated the pursuit, Subject Officer #2 continued southbound on Leslie St. to Unwin Ave. where he went westbound to Cherry St. He turned north on Cherry St. and saw Subject Officer #1 and Witness Officer #8 in the vicinity of the intersection of Cherry St. and Unwin Ave. Subject Officer #2 made a u-turn and parked on the west side of Cherry St. facing south.

At about 0129 hrs, Witness Officer #13 and Witness Officer #20 reported over the air with some distortion that their cruiser had just been struck by Mr. Duda’s vehicle while they were attempting to stop it. Subject Officer #2 was unable to discern from the radio transmission where Witness Officer #13 and Witness Officer #20 had encountered Mr. Duda. About 20 seconds later, Witness Officer #13 radioed that Mr. Duda was westbound on Commissioners St. and that he/she and Witness Officer #20 were unhurt and following Mr. Duda at a distance.

In the meantime, Subject Officer #1, Witness Officer #8 and Subject Officer #2 parked their two cruisers in the intersection of Cherry and Commissioners Streets, and exited their vehicles. Unbeknownst to those three officers, two other officers, Witness Officer #11 and Witness Officer #17 entered Commissioners St. west of the location of Witness Officer #13 and Witness Officer #20, and had commenced the second pursuit of Mr. Duda, westbound on Commissioners St. with their emergency lights and siren activated.

Other officers arrived at the intersection of Cherry and Commissioners Streets, exited their vehicles, and took up positions of cover with their pistols drawn. Witness Officer #19 arrived and exited his vehicle carrying a shotgun, and with Subject Officer #1, Witness Officer #6, Witness Officer #8, and Subject Officer #2, took up positions that afforded them cover.

At about 0131 hrs, Mr. Duda’s vehicle arrived traveling westbound at the intersection of Cherry and Commissioners Streets. It stopped momentarily just east of the intersection. Subject Officer #1, Witness Officer #8 and Subject Officer #2, who were standing in the most northerly westbound lane of Commissioners St., shouted at the driver to show his hands and get out of the car. They had their police-issued .40 calibre Glock pistols unholstered. Instead of complying with the officers’ commands, Mr. Duda accelerated in their direction. As the officers scrambled to get out of the path of Mr. Duda’s vehicle, Witness Officer #8 was struck by Mr. Duda’s vehicle. Witness Officer #8 was propelled onto the vehicle causing its windshield to shatter and rolled off. From the perspective of the subject officers, Witness Officer #8 may have been between a stationary police cruiser and the still moving Nissan. At about the same instant that Mr. Duda’s vehicle struck Witness Officer #8, Subject Officer #1, Witness Officer #6, Witness Officer #8, and Subject Officer #2 discharged a total of 32 rounds from their Glocks at Mr. Duda. Witness Officer #19 discharged his Remington 870 shotgun twice at Mr. Duda. The volley of gunfire ceased when Mr. Duda’s vehicle collided with a TPS cruiser that had been parked facing east in the most northerly lane of westbound Commissioners St.

Five .40 calibre projectiles struck Mr. Duda’s torso from the right side and caused his death. These projectiles were attributed to the firearms discharged by Subject Officer #1 and Subject Officer #2. Fortunately, Witness Officer #8 sustained only minor injuries from this incident.

Pursuant to ss. 25(4) of the Criminal Code peace officers are justified in using deadly force if they are assisting in arresting a person for a serious offence, the person takes flight, they use force believing on reasonable grounds that it is necessary for the purpose of protecting anyone from imminent or future death, and the flight could not be prevented by reasonable means in a less violent manner. Here, the subject officers had witnessed the decedent, Mr. Duda, make a seemingly deliberate attempt to run over another officer in an attempt to escape lawful custody after a lengthy and dangerous suspect apprehension pursuit. The imminent harm to Witness Officer #8 was obvious, as was the risk to others had the vehicle escaped. They were also justified in using lethal force under s. 27 of the Criminal Code which permits anyone to use as much force as is reasonably necessary to prevent the commission of certain offences that would be likely to cause immediate and serious injury. The facts here also fulfill this criteria. Accordingly, I am of the view that the subject officers were justified in using lethal force in these circumstances.

In coming to this conclusion, I took into consideration an internal Toronto Police Service directive governing suspect apprehension pursuits, which states, “Members are prohibited from discharging a firearm at the operator or occupant(s) of a motor vehicle unless there exists an immediate threat of death or grievous bodily harm to the officer(s) and/or members of the public by a means other than the vehicle.” An almost identical prohibition is contained in the ‘Use of Force’ directive. On their plain reading, officers should never use deadly force against a driver even in circumstances where imminent death of a third party will be caused by the use of a motor vehicle as a weapon. While this directive may be relevant to a determination of the appropriate use of force in other circumstances – criminal negligence causing death where an objective standard of care is a factor in determining liability comes to mind - I am of the view that I should not take it into consideration here because the force used was intentional and necessary for the purpose of protecting others from imminent harm.

I am including the following in the Chief’s letter:

I mentioned above that the recitation of the material facts was subject to certain qualifications. They are the following. The firearms discharges occurred at approximately 0130 hrs on April 19, 2010. By all accounts, Mr. Duda sustained life threatening injuries that should have made it obvious the SIU mandate ought to have been immediately invoked pursuant to s. 3 of the SIU regulation to the Police Services Act. However, the Unit was not notified until 0300 hrs, a delay of one and one-half hours. In the interim, the Toronto Police Association was notified and an Association representative and an Association lawyer met with many of the witness officers at 51 Division that morning before their SIU interviews. According to the notes of some of the witness officers, a group meeting with the lawyer took place in the 51 Division parade room. One of the witness officers was told not to write up his notes until he/she was “debriefed.” Afterwards, the Association lawyer conferred with some of them before they wrote up their notes. I am not sure how many witness officers conferred with the Association lawyer before writing up their notes because, as you will see from the attached appendix, they uniformly refused to answer the following question in their interviews: “were the notes written before you consulted with counsel?” As well as being a breach of their duty to answer all questions pursuant to s. 8 of the same regulation, it creates a problem for me fulfilling my statutory duty of determining whether probable grounds exist to decide whether a criminal offence has been committed. I can only make a determination based upon reliable information. In these circumstances, where an Association lawyer met with at least some of the involved officers before the SIU interviews, first collectively and then later individually, before at least some of them wrote up their notes, I have concerns that the notes do not reflect the independent and contemporaneous recollection of their writers. As you know, the SIU interviews and any subsequent testimony will be based upon those notes.

In the circumstances of this incident, there is other information that corroborates the statements of the involved officers such that I can place reliance on their notes and interviews, notwithstanding these issues. As I have in the past, I am asking your office to inquire into both the note writing practice and these prima facie breaches of the Police Services Act and provide me with a written response.

Date: September 20, 2010

Ian Scott
Director
Special Investigations Unit