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 Sunday, March 17, 2013, at 2140 hrs, Notifying Officer of the Toronto Police Service (TPS) reported a firearms injury of an unknown person, who was later identified as Mr. Zoltan Hyacinth. According to Notifying Officer, at approximately 2052 hrs, members of the Guns and Gang Task Force (GGTF) attempted to arrest Mr. Hyacinth at Keele Street and Sheppard Avenue. Mr. Hyacinth pulled out a gun and was subsequently struck by a projectile from the gun he produced. The scene was secured pending SIU arrival. Mr. Hyacinth was taken to Sunnybrook Health Sciences Centre (SHSC), and his condition was unknown at the time of notification.

A female who was with Mr. Hyacinth, (later identified as Civilian Witness #6) had also been arrested and was taken to 31 Division.

Overview

On or about Thursday, March 14, 2013, officers from 32 Division became involved in a robbery investigation wherein Mr. Hyacinth and Civilian Witness #6 were suspects. During that investigation information surfaced regarding Mr. Hyacinth possessing a gun. The information was passed onto the GGTF. On or about Saturday, March 16, 2013, members of the GGTF commenced surveillance on Mr. Hyacinth and observed him conducting what appeared to be hand to hand drug transactions.

On March 17, 2013, at approximately 1600 hrs, members of the GGTF held a briefing to discuss a plan to locate and arrest Mr. Hyacinth. The briefing was attended by Witness Officer #2, and Witness Officer #1, Subject Officer #2, Witness Officer #6, Subject Officer #3, Witness Officer #3, Subject Officer #1, Notifying Officer, Witness Officer #4, Non-Witness Officer #1, Witness Officer #5, Non-Witness Officer #2, Witness Officer #7, and Non-Witness Officer #3.

After the briefing, Witness Officer #7 began preparing search warrants for Mr. Hyacinth’s address of a location, and for Civilian Witness #6’s address of a location. The other members of the GGTF went out to locate and arrest Mr. Hyacinth and Civilian Witness #6. Eventually, Mr. Hyacinth and Civilian Witness #6 were located and followed to a plaza at Keele Street and Wilson Avenue.

At approximately 2046 hrs, Mr. Hyacinth drove into the drive thru of the Burger King, located at

1077 Wilson Avenue. At this time, Witness Officer #2, who was the road boss, called for the take down of Mr. Hyacinth’s vehicle. Members of the GGTF boxed in Mr. Hyacinth’s vehicle with Witness Officer #2 parking in front of and face to face with Mr. Hyacinth’s vehicle while Subject Officer #1 parking behind Mr. Hyacinth’s vehicle. The officers then rushed Mr. Hyacinth’s vehicle and attempted to remove him from the vehicle and arrest him.

Witness Officer #4, Subject Officer #1, Subject Officer #2 and Subject Officer #3 went to the driver’s side of Mr. Hyacinth’s vehicle and encountered difficulties arresting him. Initially, the officers could not remove Mr. Hyacinth from the vehicle as it was in gear and moving. Mr. Hyacinth was also seat belted into the vehicle. Mr. Hyacinth was advised he was under arrest and he began to physically resist the officers and would not come out of his vehicle. The struggle between officers and Mr. Hyacinth eventually ended up on the ground outside of Mr. Hyacinth’s vehicle. Subject Officer #1 was most directly involved in attempting to pin Mr. Hyacinth to the ground and handcuff him. Subject Officer #2, who was also involved in the ground fight, observed a firearm in Mr. Hyacinth’s right hand during the ground fight. The firearm discharged three times and Mr. Hyacinth sustained a single fatal gunshot wound to his head.

The investigation

On March 17, 2013, at approximately 2153 hrs, the SIU dispatched four investigators and three forensic investigators (FIs). Investigators arrived on scene at 2245 hrs and commenced an 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, bullet fragments and one projectile, three copper coloured spent cartridge cases, a Ruger .40 Calibre handgun, and a Silver coloured Pontiac Sunfire bearing Ontario marker # ----redacted.

The SIU did not examine the Glock firearms of 12 GGTF officers as there was no indication that a TPS firearm had been discharged.

The SIU designated Subject Officer #2, Subject Officer #3 and Subject Officer #1, who were the most “hands on” during the struggle, as subject officers. On May 1, 2013, all three officers provided the SIU with a comprehensive statement detailing their involvement in the incident and copies of their duty notes.

The SIU designated the following seven officers as witness officers. All were interviewed on the dates noted:

  • Witness Officer #1 (March 18, 2013)
  • Witness Officer #2 (March 18, 2013)
  • Witness Officer #3 (March 18, 2013)
  • Witness Officer #4 (March 18, 2013)
  • Witness Officer #5 (March 18, 2013)
  • Witness Officer #6 (April 4, 2013)
  • Witness Officer #7 (April 4, 2013)

The SIU requested the following material from the TPS. If available, the material was received and reviewed:

  • Copies of on scene commanders, patrol supervisors, unit commanders or senior officers, on duty and senior officer’s reports to the Chief of Police
  • Copy of all radio transmission tapes or communications tapes pertaining to the incident
  • Copy of any transmission made by any Mobile Digital or other computerized device relative to the incident
  • Copy of the CAD printout relevant to the incident
  • Copy of Police Witness List
  • Copy of Civilian Witness list and any statements made
  • Copies of any photographs and/or videotape taken relevant to the incident
  • Copies of any plan drawings or sketches of the incident scene
  • Duty and supplementary reports
  • Platoon/detachment/division shift schedules
  • Copy of briefing and debriefing notes whether oral or written
  • Prisoner Log
  • Record of Arrest and Supplementary reports
  • Videotape of custody in station/detachment
  • Training and posting history of subject officer
  • Damage to Vehicle and Property Report
  • Copy of Vehicle Pursuit Report
  • Copies of Press Releases
  • Repair and Maintenance records for any involved police vehicles
  • Breathalyzer Report
  • Copies of Centre of Forensic Science Submission Reports
  • Post Mortem Report
  • Ministry of Transport Form SLR401 (Accident Report)
  • Technical Traffic Accident Investigator’s Field Notes, sketches and Reconstruction Report
  • Copy of current service general order of procedures relevant to the incident
  • Copy of current training material taught or provided regarding techniques or procedures relevant to the incident
  • Automatic Vehicle Locator (AVL)
  • CIPS Report
  • Occurrence Reports
  • Injury Reports
  • A copy of Mr. Hyacinth’s fingerprints
  • Copy of the Scene log, and
  • Names of all civilian witnesses identified by TPS and copies of interview

On March 18, 2013, the SIU obtained and reviewed a copy of the Burger King security video which records the area of the drive thru. There are no audio recording capabilities associated to the video. The following is a chronological summary of the events captured on the video for March 17, 2013:

20:46:44 hrs
Mr. Hyacinth’s vehicle entered the drive thru,
20:47:18 hrs
officers from the TPS GGTF enter the drive thru and box in Mr. Hyacinth’s vehicle with unmarked surveillance vehicles,
20:47:29 hrs
the officers open Mr. Hyacinth’s driver’s side door and a struggle commences,
20:47:33 hrs
the officers remove Civilian Witness #6 from the vehicle through the front passenger side door without incident,
20:48:10 hrs
Civilian Witness #6 is led away from Mr. Hyacinth’s vehicle,
20:48:28 hrs
it appears as though officers extract Mr. Hyacinth from the vehicle by his feet with force and that a struggle on the ground is taking place,
20:48:42 hrs
officers who are standing up appear to quickly disperse away from where the struggle is taking place on the ground, and
20:49:15 hrs
an officer gets up off the ground and heads towards the rear of Mr. Hyacinth’s vehicle and to the rear of a surveillance vehicle, the officers begins takes off his/her jacket and drops his/her pants and appears to be checking himself/herself.

On March 19, 2013, the Lead SIU Investigator and Lead FI attended the post-mortem examination of Mr. Hyacinth at the office of the Chief Coroner, in Toronto.

On April 15, 2013, the SIU designated Witness Officer #9 and Witness Officer #10, who arrived on scene after the incident and provided scene security, as witness officers. It was apparent neither officer witnessed the incident so no interviews were conducted.

On April 18, 2013, the SIU contacted the following civilian witnesses, who were present at the Burger King at the time of this incident. All civilian witnesses reported they did not witness the incident:

  • Civilian Witness #1
  • Civilian Witness #2
  • Civilian Witness #3
  • Civilian Witness #4

On April 18, 2013, the SIU contacted Civilian Witness #5, who is employed at the Burger King and was working during the time of the incident. Sensitive Personal Information Civilian Witness #5 initially agreed to be interviewed by SIU investigators, however on April 19, 2013, he/she refused to provide a statement.

On June 12, 2013, the SIU sent the Sturm Ruger handgun which was located on scene to the Centre for Forensic Science (CFS) to have the hand guns firing pin impression compared to the impressions left on the cartridges which were located on scene.

On July 16, 2013, the SIU received the results of the CFS examinations of the firearm, the three spent cartridge cases and the two projectiles collected from the scene. The CFS conclusion was that the Ruger pistol was identified, within the limits of “practical certainty” as having fired the

three cartridge cases and one of the projectiles. To assist with defining practical certainty, CFS provide the following excerpt; ‘since it is not possible to collect and examine samples of all firearms, it is not possible to make an identification with absolute certainty. However, all scientific research and testing to date and the continuous inability to disprove the principles of toolmark analysis have demonstrated that firearms produce unique, identifiable characteristics which allow examiners to reliably make identifications. Firearms/Toolmark identification in an empirical science that relies on objective observations and a subjective interpretation of microscopic marks of value.

The Scene

Scene diagram

The SIU located a semi-automatic Sturm Ruger handgun, serial number ----redacted on scene behind V-1. The handgun was initially located by TPS officers on the driver’s side of V-2, however after the struggle Subject Officer #3 moved the handgun for safe keeping. The handgun was found by the SIU to be in a loaded condition, meaning the slide was forward, the hammer was in a cocked back position and there was a “live,” unspent cartridge in the chamber. The weapon had a magazine inserted into its handle, which contained eight unspent cartridges. The magazine had the capacity to hold 11 cartridges.

The SIU located three spent cartridges, one projectile and two projectile fragments on scene, underneath V-2. The cartridges and projectiles were not included on the scene diagram due to the diagram being a one dimensional image.

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

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 #2, Subject Officer #3 and/or Subject Officer #1, committed a criminal offence in relation to the firearm death of Mr. Hyacinth on March 17, 2013. All subject officers provided their notes and statements to the SIU, the contents of which largely square with other aspects of this investigation. Most notably, there was a videotape of some of the material events. Also, as discussed below, a Centre of Forensic Sciences Firearms & Toolmarks Identification Report matched three bullet cartridges found at the scene with the handgun in the possession of the deceased, Mr. Hyacinth.

In mid-March, Mr. Hyacinth and Civilian Witness #6, became suspects in a robbery. Officers from 31 Division also had information that the decedent had a gun. This information was passed on to the Guns & Gangs Task Force (‘GGTF’) whose members began surveillance on the two suspects. They also learned that Mr. Hyacinth had previous weapons related charges. On March 16th, as a result of their surveillance related activities, he was observed in hand-to-hand drug transactions.

On March 17th, members of the GGTF had a meeting to discuss a plan to locate and arrest Mr. Hyacinth. As a result of further surveillance, Mr. Hyacinth was observed with Civilian Witness #6 driving into a Burger King located near Wilson Avenue and Keele Street in a silver Pontiac Sunfire. The GGTF road boss, Witness Officer #2, decided this would be a good opportunity to take down the vehicle and arrest its two occupants. As Mr. Hyacinth drove up in a northerly direction to the speaker box on the west side of the Burger King to place his order, unmarked vehicles from the GGTF boxed in his Sunfire from the front and back. Approximately twelve plainclothes GGTF officers approached the Sunfire to effect the arrests. They informed both of the car’s occupants they were police officers and that they were being arrested for robbery. Civilian Witness #6 was quickly apprehended without incident and escorted away from the vehicle. However, Mr. Hyacinth had no intention of complying with the officers’ demands. He refused to leave his vehicle and initially tried to place his foot on the gas pedal in an apparent attempt to push one of the police vehicles out of the way. One of the subject officers, Subject Officer #1, began pulling Mr. Hyacinth’s legs out of the Sunfire while another officer was unbuckling the decedent’s seatbelt. Subject Officer #1 then started pulling Mr. Hyacinth’s left arm in an attempt to extricate

him from the car. The struggle was intense enough that a CCTV security videotape installed by the Burger King franchise to monitor activities at the speaker depicted the Sunfire shaking up and down for a protracted period. Eventually, Subject Officer #1 managed to pull Mr. Hyacinth out of the Sunfire. In the process of removing the decedent, subject officer Subject Officer #2, who was near the driver’s door, said he yelled out, “he’s got a gun.” By this point, Subject Officer #1 was holding him in a bear hug such that Mr. Hyacinth’s back was pressed against the officer’s chest area. The subject officer dropped Mr. Hyacinth to his knees by using his body weight and then forced him to the ground. Subject Officer #1 momentarily released his right hand because the hood of his winter coat was blocking his vision. He said he heard at least two shots fired in rapid succession, and then felt Mr. Hyacinth’s body go limp. Subject Officer #1 stood up and ordered other officers to handcuff Mr. Hyacinth. The subject officer moved away from Mr. Hyacinth who was bleeding profusely from his head. Subject Officer #1 can be seen on the security video being checked by another officer for possible firearm injuries.

As Mr. Hyacinth was being handcuffed, it was obvious that he had sustained at least one firearm wound to his head. A .40 calibre Ruger semi-automatic pistol was found near Mr. Hyacinth’s body. Two officers commenced CPR while paramedics were called to the scene. He was transported to Sunnybrook Health Sciences Centre where he was declared deceased. A subsequent post-mortem examination found the cause of death to be a contact gunshot wound to the head. The entrance wound was to the right side of the head above and behind the right ear. The bullet projectile exited the left side of the head above the left ear.

The SIU seized the Ruger pistol as well as cartridge cases and fired bullet and bullet fragments from the scene. The Ruger had the capacity to hold eleven bullets and had eight remaining in its clip. Three fired .40 calibre cartridge cases were found in the vicinity of the rear side driver’s door of the Sunfire. Subsequent testing by a Firearms examiner from the Centre of Forensic Sciences determined that the seized Ruger fired those three cartridge cases. There was also a bullet projectile found lodged in the rear tire tread of the front driver’s tire. This projectile was determined to have been fired from the same Ruger pistol.

When one pieces together the autopsy findings, the scene photographs, the Burger King CCTV security videotape, the Ruger pistol and bullet parts, along with the involved officers’ statements, the most likely scenario of events after Mr. Hyacinth was removed from his vehicle is the following. As he was taken to the ground by Subject Officer #1 near the rear driver’s side door of the Pontiac Sunfire, Mr. Hyacinth brought a Ruger pistol which had been secreted on his person with his right hand up to the area of his head. At this point, Mr. Hyacinth’s body was either flat or almost flat on the ground and perpendicular to his car with his head very close to the rear driver’s door. Subject Officer #1 had his body weight on top of the decedent. Mr. Hyacinth discharged the gun three times in quick succession as it was pointed in a northerly direction almost parallel to the ground, presumably in an attempt to shoot one or more officers involved in his arrest. Instead of effecting his purpose, he shot himself in the head, causing his own demise.

The involved officers had the lawful authority to arrest Mr. Hyacinth – they had credible information that he was involved in a recent robbery and drug transactions, and may have been in possession of a gun. When Mr. Hyacinth refused to leave his vehicle, they had the lawful authority to use reasonable force to forcibly remove him from the vehicle. Given my conclusion that Mr. Hyacinth shot himself in the head with his own weapon after he was wrestled to the

ground, I am of the view that the police actions in this incident cannot attract any criminal liability - he was the inadvertent author of his own misfortune.

I intend to add the following to the Chief’s letter:

There are two procedural issues that arise in this investigation. First, there was a fifty minute delay in notifying the SIU in circumstances where the decedent had sustained a grievous gunshot injury and the SIU mandate would have been obvious. Further, as you are aware, in an SIU incident, the affected police service must stop conducting its own investigation and defer to the SIU as the lead. Here, the SIU lead investigator met with Non-Witness Officer #4 at 2303 hrs, and learned that the police had canvassed the Burger King staff and secured a copy of the drive thru security video. The SIU discussed with him/her whether there were any outstanding suspects and were advised there were none. The SIU requested that your service turn over the video and cease all canvassing activities related to on scene videos. The TPS agreed to do so. On March 18, 2013, the SIU learned from the staff at the Burger King that a member of your service had obtained 2 copies of the drive- thru video and had only provided one copy to the SIU. I would be grateful if you inquired into these two issues and provided my office with a written response.

Date: July 29, 2013

Original signed by

Ian Scott
Director
Special Investigations Unit

Appendix

All officers interviewed during this investigation answered all of the SIU's questions. There were no concerns with their responses.