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 the serious injuries a 25-year-old man (the “Complainant”) suffered.

Notification of the SIU

On December 15, 2021, at 3:19 p.m., the York Regional Police (YRP) notified the SIU of a firearms-related injury to the Complainant.

YRP advised that on December 15, 2021, at 1:53 p.m., a robbery occurred at the Scotiabank located at 2900 Steeles Avenue in Markham. A lone man entered the bank and was provided a sum of cash. Police responded to the bank to initiate their investigation. Shortly thereafter, a police officer searching the area [now determined to be the Subject Official (SO)] came into contact with the Complainant, who was armed with a handgun and a knife. The SO drew his pistol and discharged one round at the Complainant. The Complainant was transported to Sunnybrook Health Sciences Centre (SBHSC) reportedly conscious and breathing.

The Team

Date and time team dispatched: 12/15/2021 at 4:42 p.m.

Date and time SIU arrived on scene: 12/15/2021 at 5:20 p.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2

Affected Person (aka “Complainant”):

25-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on December 16, 2021.

Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed

The civilian witnesses were interviewed on December 16, 2021.

Subject Official (SO)

SO Interviewed, but declined to submit notes, as is the subject official’s legal right

The subject official was interviewed on January 14, 2022.

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

The witness officials were interviewed between December 17 and 21, 2021.

The Scene

On December 15, 2021, at 5:55 p.m., SIU Forensic Investigators arrived at the scene.

The scene was located off Simonston Boulevard, which was oriented in an east and west direction. There was a parking area that was part of a townhouse complex. A property management office building was situated on the lot. The parking lot was situated between 449 and 451 Simonston Boulevard. There was a brick privacy wall on the north side of the parking lot in behind the office. The wall ran east and west.

A YRP Ford Explorer was parked in the southern section of the parking lot. The cruiser straddled the sidewalk and was partially resting in the driveway leading into the parking lot. The cruiser was oriented in a northwest position. A lone, white vehicle occupied a parking space in the parking lot. This vehicle was parked and was facing west. The area was cordoned off with yellow security tape.

This shooting scene was located on a walkway or footpath and grassy area on the other side of the brick wall. The walkway and grassy area allowed pedestrians to access the rear sections of the townhomes on Simonston Boulevard and Dersingham Crescent. Dersingham Crescent was oriented in an east and west direction and was north of Simonston Boulevard. The walkway was lit by lamp posts along the path. Trees and grassy areas formed part of the walkway.

A single lamp post lit the area of interest. Items of interest were resting on a walkway and a grassy area, north of the brick wall. These items included a knife, a black handgun (Glock replica BB gun), a satchel purse, a plastic bag containing cash bills, a hat, a balaclava, and three cellular phones. Medical debris and two first-aid kits were resting nearby. These items were collected by the SIU Forensic Investigators.

The parking lot and the shooting scene were photographed by SIU Forensic Investigators.

Two spent cartridge cases were located in the grassy area next to a brick privacy wall situated at the rear of 27 Dersingham Crescent.

SIU Forensic Investigators inspected and proved safe the black handgun - a BB gun (a Glock pistol replica). The BB gun had an inserted magazine.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and the SO.

Shortly before 2:00 p.m. of December 15, 2021, YRP officers were dispatched to deal with a robbery in progress at the Scotiabank located at 2900 Steeles Avenue East, Markham. A bank employee had called police to report that a male dressed in black with a mask had threatened to shoot a teller before being provided cash in a bag and leaving. The suspect was last seen travelling north through an adjoining mall.

The SO was among the officers making their way to the scene. The officer came to learn that the suspect had exited the mall via a north exit and began to patrol the area looking to locate him. As he did so, the SO received information from the dispatcher relating to the suspect’s direction of travel. With benefit of this information, the SO made his way in his cruiser onto Simonston Boulevard, a block north of the mall. There, he observed a male who generally fit the description of the suspect.
The male in question was the Complainant. He had been walking west on the north side of Simonston Boulevard towards Don Mills Road when, at the sight of the cruiser, he turned right to run north into the driveway at 449A Simonston Boulevard. The property served as the superintendent’s office of a townhome complex in the area. As he did so, the Complainant retrieved a BB gun from his possession and pointed it at the SO.

The SO pulled partially into the driveway, exited and gave chase on foot. He yelled at the Complainant that he was under arrest and to stop. The officer followed the Complainant around the superintendent’s office into a small courtyard area, and through the courtyard northward towards Dersingham Crescent.

The Complainant refused to stop for the officer and continued his flight west towards the last townhome west in a row of townhomes – 37 Dersingham Crescent – where he turned to run south and then east behind the townhomes. He repeatedly turned towards the officer during the chase, pointing his gun at him and threatening to shoot. Having again returned to the courtyard area, the Complainant turned a corner southward and hid behind a bush and brick wall.

Suspecting that the Complainant was hiding behind the bush and brick wall, the officer cautiously rounded the corner. As he did so, the SO was confronted by the Complainant. Within seconds, the officer drew his sidearm and discharged two rounds in rapid succession.

The Complainant had moved away from the wall to directly confront the officer. He brought his gun up from his waist, held it in both hands, and aimed it at the SO when he was fired upon by the officer. He was struck twice and fell to the ground.

The SO maintained the Complainant at gun point until additional officers arrived at the scene. He handcuffed the Complainant and assisted in providing him first-aid pending the arrival of paramedics.

The Complainant was taken to hospital and treated for a penetrating gunshot wound to the area of his left shoulder and a graze wound to the upper left arm.

Section 34, Criminal Code -- Defence of person - Use or threat of force

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 

(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) The act committed is reasonable in the circumstances.

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon; 

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and 

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

The Complainant was shot and seriously injured by a YRP officer on December 15, 2021. The officer – the SO – was identified as a subject official in the ensuing SIU investigation. The investigation is now completed. 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.

Section 34 of the Criminal Code codifies the law of self-defence in Canada. It provides that force used in the defence of oneself from a reasonably apprehended attack, actual or threatened, is legally justified if it was reasonable. The reasonableness of the force is to be assessed in light of the prevailing circumstances at the time, including with respect to such factors as the nature of the force or threat, the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force, whether any party to the incident used or threatened to use a weapon, and the nature and proportionality of the person’s response to the use or threat of force. It is apparent on the evidence that the force used by the SO fell within the parameters of the section 34 justification.

The SO was lawfully placed and in the performance of his duties during the events culminating in the shooting of the Complainant. Given what he had learned of the recently committed bank robbery nearby, which involved the threatened use of a firearm, the officer was within his rights in seeking to stop the Complainant on Simonston Boulevard. The Complainant generally fit the description of the suspect that had been broadcast over the police radio, was in a location where police information suggested he might be, and had fled from the officer upon being spotted.

The SO indicated that he fired his weapon fearing for his life and believing it was necessary in self-defence. There is nothing in the evidence to cast doubt on the officer’s evidence in this regard, and everything to confirm it. Though the Complainant was not in possession of an actual firearm, the BB gun he wielded would have appeared to be a lethal firearm to any reasonable person caught up in the fraught circumstances of the moment. And, for whatever reason, it appears the Complainant was intent on convincing the officer he was about to be shot with an actual firearm. He had pointed the gun at the SO repeatedly as he fled around the townhome complex, threatening to kill him, and very deliberately emerged from his place of hiding aiming the gun at the officer.

For the same reasons, I am satisfied that the SO acted reasonably when he chose to fire two shots at the Complainant. Faced with an individual who had made it clear that he had no intention of surrendering peacefully, and a gun that he had every reason to believe was a fully functioning firearm capable of inflicting grievous bodily harm or death, it is clear that the SO acted reasonably when he chose to meet a reasonably apprehended lethal threat with a resort to lethal force of his own. Indeed, it would not appear that there were any other options available to the officer to safely deal with his predicament. He was no more than six or seven metres from the Complainant at the time and fully exposed, effectively precluding any notion of withdrawal or retreat to a position of cover. And lesser force, such as the use of pepper spray, a CEW or physical engagement, would have placed the officer’s life in real danger if they were not immediately incapacitating – an unreasonable risk in the circumstances.

In the result, as there are no reasonable grounds to believe that the SO comported himself unlawfully in the events leading to and including the shooting, there is no basis for proceeding with criminal charges against the officer. The file is closed.


Date: April 14, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit