Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into serious injuries sustained by a 35-year-old man (the “Complainant”).

Notification of the SIU

On September 16, 2021, at 7:00 p.m., the York Regional Police (YRP) notified the SIU of an incident involving the discharge of a police firearm at a person.

Reportedly, on September 16, 2021, the YRP had obtained a Feeney warrant [1] to enter an apartment on Inverlochy Boulevard, Markham, to arrest the Complainant. At 6:34 p.m., Emergency Response Unit (ERU) police officers breached the door and the Complainant rushed at the police officers, swinging a dumbbell. The Subject Official (SO) deployed an Anti-riot Weapon Enfield (ARWEN) and the projectile struck the Complainant’s left ribs. A struggle ensued and the Complainant was arrested. The Complainant was taken to McKenzie Health to be examined for a possible rib fracture.

The Team

Date and time team dispatched: 09/16/2021 at 7:42 p.m.

Date and time SIU arrived on scene: 09/16/2021 at 10:15 p.m.

Number of SIU Investigators assigned: 5

The Scene

On September 16, 2021, an SIU forensic investigator attended an apartment on Inverlochy Boulevard regarding a firearms injury. The scene was protected by banner tape.

The address was a multi-storey apartment building. On the grassy area between the roadway and driveway, a white telephone and foldable walker were present, which had been thrown from one of the apartment balconies. Numerous pieces of broken glass were on the driveway. A glass panel of the balcony railing for a fourth-floor apartment was broken. This was directly above the broken glass found on the driveway and grass. There was also a broken window on another apartment.

The door to apartment subject to the Feeney warrant had been forced and there was damage to the door. It appeared that a battering ram had been used to breach the door. The apartment was a one-bedroom apartment, which was equipped with a small galley kitchen, living room, three-piece bathroom, and a balcony.

The apartment was messy with obvious signs of a disturbance. Loose exercise weights were on the floor. Broken pieces of furniture littered the floor in the kitchen and hallway. A weight training bench was in the living room. The upper glass window, which overlooked the balcony, was broken, and broken glass littered the balcony.

A cartridge case for a 37mm ARWEN was in the hallway outside the apartment, next to the door. The ARWEN was inside the apartment next to the open door and the projectile was in the hallway.

There was a pool of dried blood in the living room. The blood was smeared and tracked through the entire living room area. A broken extendable mop handle was in the kitchen and it appeared to be the same as a broken metal tube that lay on the grass beneath the balcony. A 4.5-kilogram dumbbell was in the kitchen under an overturned kitchen chair. Other dumbbells were next to the weight training bench.

The ARWEN cartridge case and projectile were collected, and a sample of the blood in the living room was also collected. The scene and exhibits were photographed.

The ARWEN was unloaded in the presence of an SIU forensic investigator by a ERU officer. The ARWEN was loaded with three live cartridges. The ARWEN and cartridges were photographed. A ERU officer provided a regular cartridge and a reduced energy cartridge for the ARWEN. The reduced energy cartridge was marked as such and had a black projectile. The regular cartridge did not have the reduced energy marking and the projectile was green. The deployed cartridge in this incident was not marked reduced energy and the projectile was green.

Measurements of the scene were taken.

Scene Diagram

Physical Evidence

Collected at the scene was an ARWEN cartridge case and an ARWEN projectile.

Video/Audio/Photographic Evidence [2]

Throw Telephone Video

The delivery of a throw telephone was recorded using a BWC. Four videos were recorded. The resolution was poor and the footage was from the floor, looking up, with no investigative value, except for video number two.

Video number two showed the telephone being placed on the balcony of an apartment near the Complainant’s apartment. At 4:24 p.m., ERU police officer, WO #1, stepped over the railing from the apartment. Within seconds, WO #1 dropped a telephone on the balcony floor of the Complainant’s apartment. Broken glass was observed on the concrete floor. The next view looked down to ground level.

It was subsequently learned that the Complainant had thrown the telephone over the balcony; however, this was not captured on video.

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, the SO and other officers who participated in the Complainant’s arrest. The investigation also benefitted from a review of police communications recordings and drone footage that captured the incident in parts.

In the morning of September 16, 2021, uniformed officers arrived at the Complainant’s residence – an apartment on Inverlochy Boulevard, Markham – to arrest him for theft, uttering threats, and a breach of his probation conditions. The Complainant refused to exit his apartment and surrender himself. He was incensed and began to destroy items inside his apartment. At one point, as additional officers arrived on scene, the Complainant threw a crowbar off his balcony in their direction. Over time, he would also throw a beer bottle and other objects off his balcony. As the situation had developed into a potentially violent standoff, ERU officers were deployed to the scene.

By the early afternoon, ERU members had surrounded and contained the Complainant’s apartment, manning positions in the hallway outside the apartment and on nearby balconies. Efforts were made to communicate with the Complainant to negotiate his safe surrender, but he was not receptive. The Complainant refused to pick up the phone on most occasions police negotiators tried to reach him, and responded with anger and profanity when he did answer their calls. A mental health professional brought to the scene was similarly rebuffed by the Complainant. The Complainant remained defiant throughout the incident. He placed furniture against the inward opening entrance door, and threatened officers with what would happen should they enter his apartment.

As the afternoon wore on, an entry plan started to take shape after a Feeney warrant had been obtained for the Complainant’s arrest inside the apartment. A team of ERU officers with lethal and less lethal weapons at the ready would break through the front door at an opportune moment to take him into custody. The police had been given information via the Complainant’s mother that his mental health had been deteriorating. She had also told them that her son had threatened to slit his throat should the officers enter his apartment. With this information in hand, provision was made in the plan to minimize the risk of the Complainant harming himself. In particular, it was decided that the ERU officers would only enter upon confirmation that the Complainant was away from his balcony. An officer in a neighbouring building with a spotting scope and a visual of the inside of the Complainant’s apartment through the balcony windows, and officers positioned on an adjacent balcony, would provide this information.

The SO, armed with an ARWEN, was among the team of ERU officers who would enter the apartment. Among the other officers were WO #4, who would use a ram to break through the door, WO #3, equipped with a ballistic shield and a CEW in hand, and WO #2, carrying a C8 rifle. The signal to enter the apartment came at about 6:30 p.m.

After an officer used a master key to release the dead bolt, WO #4 struck the door once with the ram. The door was breached but did not swing fully open because of items that had been pushed up behind it. As WO #4 positioned himself to strike the door again, the SO discharged his ARWEN from the hallway into the apartment. At the sound of the strike by the ram, the Complainant had run toward the door with an exercise weight in his left hand. As he approached to within five metres of the door’s threshold, his left rib area was struck by the ARWEN projectile fired by the SO. The impact temporarily immobilized the Complainant, who dropped to the floor in a crouched position.

WO #2 was the first into the apartment after the ARWEN discharge. He encountered the Complainant behind the door and dragged him into the living room area where a struggle ensued. The Complainant was in a prone position but refusing to release his arms from underneath his torso to be handcuffed. Other members of the entry team joined in the fray. WO #3 positioned himself along the right side of the Complainant’s body, which he punched three times. WO #4, on the Complainant’s left side, punched his left tricep once followed by a further punch to the shoulder blade area. WO #1, who had entered the apartment from the balcony, delivered a single punch to the Complainant’s upper right shoulder area. The officers were able to wrestle control of the Complainant’s arms and handcuff them behind his back.

The Complainant was taken to hospital following his arrest and diagnosed with a fractured left rib, a broken nose, and a lacerated spleen. He had also sustained a large welt to the left side of his torso – the result of the ARWEN projectile impact – which corresponded with the rib and spleen injuries.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

The Complainant suffered serious injuries in the course of his arrest when he was shot by a YRP officer on September 16, 2021. The YRP officer who discharged his weapon – the SO – was identified as the subject official for purposes of the ensuing SIU investigation, which is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the shooting.

Pursuant to section 25(1) of the Criminal Code, police officer are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.

By the time the SO discharged his ARWEN at the Complainant, there was a warrant in effect authorizing entry by police into his residence to effect his arrest. Accordingly, the officers were proceeding lawfully to take the Complainant into custody.

As for the propriety of the SO’s ARWEN discharge, I am satisfied that it was legally justified. The officers who breached the apartment door had good reason to believe they would be confronted with a volatile and violent individual. The Complainant had threatened their well-being in the hours before the ERU officers forced upon his door. He had also thrown objects off his balcony, including a crowbar, placing at risk the safety of officers on the ground and members of the public. And the officers were aware that he had told his mother he would cut his throat if the officers entered his apartment, which raised a real concern that he was armed with a knife. In the circumstances, it was imperative that the Complainant be neutralized at the earliest possible opportunity once the door was opened. The SO says he discharged his ARWEN on seeing the Complainant charge toward the door’s threshold with a dumbbell in his left hand. His evidence is buttressed by the account of WO #1 who, viewing the entry as it unfolded from a balcony window, saw the Complainant approach the door with an object in his right hand. On this version of events, the officers were clearly at risk of an imminent attack with a weapon in the hands of the Complainant when the SO, reasonably, in my view, fired a less lethal round at him. There is some evidence that the Complainant did not have an object in his hands. While I am not inclined to accept that evidence, the discrepancy is of little import. In light of the Complainant’s bellicose demeanour throughout the standoff, I am unable to reasonably conclude that the SO was unreasonable when he acted to temporarily immobilize the Complainant from a distance by discharging his ARWEN, whether the Complainant was holding a weapon or not. In fact, the discharge did stop the Complainant in his tracks, affording the officers time to engage him physically while he was in a position of disadvantage.

I am also satisfied that the physical force brought to bear by the officers after the ARWEN discharge, in particular, the punches struck by WO #1, WO #3 and WO #4, fell within the remit of authorized force. As he had forewarned, the Complainant fought against his arrest and struggled against the officers’ efforts to secure him in handcuffs. At the time, the Complainant, and the officers with whom he was physically engaged, were on and around broken glass and the possibility of personal injury was present in the event of a protracted struggle on the floor. In the circumstances, it would appear that the blows struck by the officers, each acting independently to subdue the Complainant, were measured and commensurate to the situation at hand. Following the last of the strikes, the officers managed to handcuff the Complainant behind his back. No further blows were struck. [3]

In the result, while I accept that his rib and spleen injuries were the result of the ARWEN discharge, and the broken nose was incurred in the melee that followed, there are no reasonable grounds to believe that the officers involved in the Complainant’s arrest comported themselves other than lawfully in the course of their engagement. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: January 14, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit