A Toronto police officer accused of careless use of a firearm had his charge withdrawn after testifying he in fact intentionally shot a man in the arm at a midtown hotel last year following an unsuccessful undercover operation.

Three months after Ontario’s Special Investigations Unit (SIU) announced it charged Const. John De Sousa in connection with a February 2016 shooting, Crown prosecutor Peter Scrutton told court Tuesday that charge was “premised on the accidental discharge of the officer’s service weapon” during an arrest.

In fact, De Sousa claims he intended to shoot complainant Marcin Gosk in the arm on the Feb. 16, 2016, when a failed undercover operation resulted in a car chase that culminated in a confrontation between the men outside a Toronto hotel.

Gosk is facing criminal charges, including kidnapping and forcible confinement, in connection with the incident. At Gosk’s preliminary inquiry, De Sousa told court he purposely shot the suspect in the right bicep out of fear for his life.

The officer’s account, which was confirmed “in material respects” by other evidence, meant there was no reasonable prospect of conviction, Scrutton told court.

In a statement that was read out in court, De Sousa’s lawyers said the withdrawal of the charge was “the only reasonable thing that could be done.”

“We would go even further and suggest that there were never any reasonable and probable grounds to lay a criminal charge in the first place,” said the statement by Michael Lacy and Deepa Negandhi.

“From our perspective, this is a situation of overzealous SIU investigators who simply laid a charge without a sufficient evidentiary basis to do so.”

SIU spokesperson Monica Hudon said in an email Tuesday that the SIU director is mandated, under Ontario’s Police Services Act, to direct the laying of charges if there are reasonable grounds to believe that an offence has been committed.

Once the charge is laid, the Crown prosecutor takes over and decides if a charge should be withdrawn, based on requirements that ensure the Crown assesses the evidence based on reasonable prospect of conviction — “a higher standard than reasonable grounds to lay a charge,” Hudon said.

According to the Crown’s summary of the incident read in court, De Sousa was working on a kidnapping case and was part of a team attempting an undercover ransom drop in the Toronto area.

The drop was unsuccessful and the suspected kidnappers sped away, with several Toronto police officers driving unmarked cars in pursuit. Officers attempted to box in the vehicle in the area of York Mills Rd. and Leslie St., but the suspect vehicle rammed through the police cars and drove away, coming to a stop at Toronto Don Valley Hotel and Suites.

De Sousa, the first to arrive at the hotel, testified at Gosk’s recent preliminary hearing that he parked his car behind the suspect’s car, took out his gun, and saw Gosk get out of his driver’s side, his hand in a toque, and start running toward him.

De Sousa testified that he said “don’t move” and watched as a second man got out of the car, a black firearm tucked into his waistband. The officer said he then physically took control of Gosk, putting him in a bear hug, but could no longer see the second man.

Concerned for his life, the officer said he shot Gosk intentionally because he had lost sight of the second man and suspected Gosk could have a gun inside the toque he was holding.

In his statements to the SIU, Gosk said he was driving the vehicle that night, but he denies involvement with any kidnapping or any kind of physical fight with De Sousa. He says he was running toward the hotel at the time that he was shot from behind.

Scrutton told court he knew the family was “not satisfied” with the decision to withdraw.

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In an interview Tuesday, Gosk’s lawyer, Leora Shemesh, said her client’s family was “very disappointed” in the withdrawal of the charge.

“I don’t think he was treated as a victim,” she said, adding that she doesn’t think Gosk was made to understand why the charge was being withdrawn.

Wendy Gillis can be reached at wgillis@thestar.ca

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