A lawyer is calling for the province’s Special Investigations Unit to look into incidents where police fire at — but don’t injure — individuals after his client’s impaired driving charges were dismissed in part because a Toronto police officer fired a shot in the direction of the unarmed man as he was walking away.

Const. Anita Watton is facing disciplinary charges under the Police Services Act for excessive use of force and failing to comply with police training standards for firearm use, following an investigation by the Toronto police Professional Standards Unit. According to the disciplinary tribunal documents, it is alleged that she fired in the direction of Sanchayan Rajasingam, though he posed no imminent threat to her or the public. A tribunal hearing is scheduled for next year. No criminal charges were laid.

When reached by the Star, Watton’s lawyer, Gary Clewley, refused to comment.

Surveillance video obtained by the Star shows the shooting, which took place shortly before 11 a.m. on March 29, 2017. In it, Watton can be seen to fire in the direction of Rajasingam as he had his back to her.

Before Watton could testify at Rajasingam’s trial, which began Monday at the Scarborough courthouse, the impaired driving charges were dismissed by Ontario Court Justice Frank Crewe at the request of the Crown.

Rajasingam’s defence lawyer, Aghi Balachandran, told the court that there should be an external investigation into the case and measures taken to prevent such a thing from happening again. He added that while Watton received medical attention following the shooting — a police witness testified she was “rattled, shaken up from the whole incident” — his client did not.

“The psychological effect of this whole experience has been great on him,” Balachandran told the court.

The SIU is an independent body which investigates incidents involving police where there is serious injury or death — a near miss from a gunshot does not qualify. However, an extensive review of policing oversight conducted by Ontario Court of Appeal Justice Michael Tulloch recommended that the SIU mandate be expanded to include all firearm discharges at a person by police.

Tulloch specifically noted discharging a firearm is the most serious use of force an officer can use and the “unjustified discharge of a firearm, regardless of the severity of any resulting injury, could constitute a serious criminal offence. For instance, even if a police officer shoots at a person and misses, it could constitute attempted murder.”

The recommendation was included in Liberal legislation that would have overhauled and strengthened police oversight mechanisms in the province. The portion of the legislation that would have expanded the SIU’s mandate was put on hold by Premier Doug Ford in July, the day before it would have gone into effect.

“If the reason the individual was not hit is a matter of (the officer’s) arm moving to the right or to the left one or two inches, then that’s a matter of luck,” Balachandran said in an interview. “Luck should not be the factor that stops an (SIU) investigation from occurring.”

Balachandran said trust between the public and the police remains a problem, but independent, thorough investigations that are “not limited to only the most serious transgressions against the public would do a lot to mend those fences.”

Rajasingam allegedly fled on foot from a “party bus” after a traffic stop conducted by Watton in Scarborough near Markham Rd. and Eglinton Ave. E.

The video obtained by the Star, which does not include audio, shows what happens immediately before and after the shooting.

It shows Rajasingam enter into the frame, running into a parking lot at 140 Adanac Dr. Watton chases him holding her gun in her left hand. He stops, she catches up to him and they stand a few metres apart. He takes five steps toward her and she takes two steps back.

Rajasingam then turns away from her and begins to walk away. She walks after him and fires the gun as he takes his fourth step, still holding it in her left hand with her right hand near her left shoulder, appearing to operate a radio.

It is impossible to tell from the video where the shot goes or how close it came to Rajasingam.

After Watton fires, she takes another step toward Rajasingam. He turns to face her, takes a step forward then stops and turns around to lie on the ground. About forty seconds later, another police car arrives and a different officer appears to handcuff Rajasingam.

“There are a lot of issues in this case,” said Crown James Dunda in court, requesting the charges be dismissed. “It is a unique case, one I’ve never seen in my years here … It is my evaluation that this case is bound not to succeed.” He cited “too many gaps in evidence because of the nature of the way events unfolded.”

Retired Toronto Police officer and use of force expert Mark Valois viewed the video at the request of the Star. His first thought was “wow, what the hell are you doing,” he said.

“I don’t understand why she did what she did,” he said. However, he stressed that there may be many variables that are not evident in the video and that he does not know what was going on in her mind. He said it is unclear what information the officer had about the suspect at the time, what happened before the video starts, and whether it could have justified her actions. It is also not possible to know what they are saying to each other from this video.

It is also unclear whether Watton had a Taser with her.

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Officers are trained to fire their guns one-handed and to fire at “centre mass” — the largest area of the body the officer can see, Valois said.

Retired Moose Jaw police chief and long-time Calgary police officer Terry Coleman, who is now a public safety consultant, would not comment on the specific case. However, he noted that in general officers tend to pull out their guns far too soon. “I understand officer safety but once a gun is drawn it tends to be fired even inadvertently,” he said.

Police officers are not trained to fire warning shots or shots to wound a suspect, he said.

Watton was previously investigated by the SIU for the fatal 2013 shooting of Malcolm Jackman outside the same building at 140 Adanac Dr. Then SIU-director Ian Scott found that Watton’s use of lethal force was justified in that case because Jackman was using a knife to hold a person hostage and had refused to drop the knife despite multiple commands.

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