Director's Report Details

SIU Director’s Report - Case # 22-TFI-185

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Contents:

Mandate of the SIU

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.

Information Restrictions

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: 
  • The name of, and any information identifying, a subject official, witness official, civilian witness or affected person. 
  • Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault. 
  • Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person. 
  • Information that discloses investigative techniques or procedures.  
  • Information, the release of which is prohibited or restricted by law.  
  • Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published. 

Freedom of Information and Protection of Privacy Act

Pursuant to section14 (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following: 
  • Confidential investigative techniques and procedures used by law enforcement agencies; and 
  • Information that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 
  • The names of persons, including civilian witnesses, and subject and witness officials; 
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation. 

Personal Health Information Protection Act, 2004

Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may also have been excluded from this report 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.

Mandate Engaged

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 injury of an 18-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 20, 2022, at 6:48 a.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

On July 20, 2022, at about 6:00 a.m., TPS officers executed a search warrant at a residence located near Simcoe Street North and Windfields Farm Drive in the City of Oshawa. During the warrant execution, there was an interaction with a male [now known to be the Complainant] at the residence. One TPS officer discharged his firearm, striking the Complainant, who was transported to Sunnybrook Health Sciences Centre (SHSC) by Emergency Medical Services (EMS). The Complainant’s condition at the time of SIU notification was unknown. The TPS units involved in the incident were the Homicide Unit, Mobile Support Services, and the Emergency Task Force (ETF).

The Team

Date and time team dispatched: 07/20/2022 at 7:04 a.m.

Date and time SIU arrived on scene: 07/20/2022 at 9:30 a.m.

Number of SIU Investigators assigned: 6
 
Number of SIU Forensic Investigators assigned: 3

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on July 22, 2022.

Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed

The civilian witnesses were interviewed on July 20, 2022.

Subject Official (SO)

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Not interviewed; notes received and reviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8[1] Not interviewed; notes received and reviewed

The witness officials were interviewed between July 21, 2022, and August 17, 2022.
 

Evidence

The Scene

The scene was located in a laneway behind a residence in the area of Simcoe Street North and Windfields Farm Drive, Oshawa.

On July 20, 2022, at 9:30 a.m., SIU investigators arrived at the residence. At the time of the SIU investigators’ attendance, the laneway was cordoned off by yellow ribbon - “POLICE LINE DO NOT CROSS”. The entry/exit points were further guarded by uniform police officers with the DRPS.

Physical Evidence

The location of evidentiary items was in the laneway, mainly between two garages. The location contained the following two firearms: [2]

1 - “Glock” Model 48 [9mm] Semi-automatic Pistol

This firearm had been proven safe and was found with the slide locked back and ammunition removed. There was one cartridge nearby on the ground and a magazine that contained more cartridges.

2 - “Unknown Make” 9mm Semi-automatic Pistol

This firearm had been proven safe and was found with the slide locked back and ammunition removed. There were two cartridges nearby on the ground and a magazine that contained more cartridges.

All exhibits at the scene were photographed in situ by SIU and TPS forensic investigators.
SIU forensic investigators completed a map of the scene, denoting the location of articles of evidence.

Evidence from Scene

1 – cartridge case
2 – cartridge case
3 – black jacket
4 – black pouch
5 – right sandal
6 – left sandal
7 – black pants
8 – underwear
9 – bullet jacket fragment

Located on a drainage downspout between two garages was a perforated defect. This defect had a right (east) to left (west) orientation.

While at the scene, SIU forensic investigators also collected the following items:

  • the SO’s TPS-issued firearm
  • 1 “Glock” Model 22 .40 cal semi-automatic pistol
  • 1 cartridge removed from the breech
  • 1 magazine containing 11 cartridges.


Figure 1 – Cartridge cases


Figure 2 – Bullet jacket fragment


Figure 3 – The two non-TPS-issued firearms


Figure 4 – The SO’s firearm and magazine

Forensic Evidence

Centre of Forensic Sciences (CFS) Submissions

On August 18, 2022, a SIU forensic investigator uploaded a CFS Case Submission for items seized at the residence.

Video/Audio/Photographic Evidence [3]

Audio/Video Footage from a Residence

On July 21, 2022, the SIU obtained audio/video footage from a residence. The following is a summary of relevant footage.

Camera 1
On July 20, 2022, at 5:38 a.m., the recording captured 12 ETF officers as they proceeded to the residence where the Complainant was located. A short time later, the audio recording captured, “Police. Search Warrant,” yelled twice, followed by two loud bangs.

Camera 2
At 5:59 a.m., the SO was observed as he slowly walked westbound in the laneway. He stopped, looked back, and gestured with his left hand to come forward. After several seconds, the SO left the field of view and a TPS SUV [driven by WO #2] was observed as it travelled west at a slow speed. Within seconds, two gunshots were heard and a second SUV [containing WO #4 and WO #5] entered the view travelling towards the rear of the residence. Each TPS officer exited their respective vehicles and provided protection for the scene. A short time later, an EMS unit attended the scene.
 

Body-worn Camera (BWC) Footage – WO #2

On July 20, 2022, the TPS provided the SIU with WO #2’s BWC footage. Both audio and video qualities were found to be good. The footage clearly depicted the actions and comments of TPS officers within its field of view. What follows is a summary of the pertinent footage.

Upon the BWC activation by WO #2 on July 20, 2022, at 5:29 p.m., he was captured operating a TPS Ford Explorer SUV cruiser [specially designed for canine responsibilities] as he entered the rear laneway of the residence. As the camera began to record, WO #2 drove slowly in a westward direction in the laneway. Several feet in front of WO #2 was the SO as he walked towards the residence.[4] Although a portion of WO #2’s BWC was obstructed by his right hand as it held the steering wheel, a person [now known to be the Complainant] was captured dropping down to the laneway from a second level patio [now known to be the residence subject to a search warrant]. Immediately, WO #2 accelerated and stopped on the opposite side of the laneway, adjacent to the garage. Upon exiting, WO #2 removed his canine and the SO came into full view as he pointed his firearm at the Complainant, who lay motionless in a prone position on the laneway between the address of the search warrant and the neighbouring residence. Two handguns were seen on the ground. One was near the Complainant’s left foot and another was situated near the Complainant’s right foot. The SO yelled commands to the Complainant to not move.

Shortly thereafter, WO #4 and WO #5 arrived and they provided firearm support for WO #2 and the SO as they pointed their firearms upwards towards the patio, where ETF officers [WO #1 and WO #3] shouted commands at an individual they were interacting with. Shortly thereafter, the sound of a deployed CEW was heard and WO #2 transmitted over his TPS radio that a paramedic would be needed at the laneway. An ETF paramedic arrived on scene.

The SO searched the Complainant and turned him over onto his back. The SO then moved the two firearms to a location on the ground a short distance away. Medical attention was administered to the Complainant by an ETF paramedic.

WO #4 was later observed to remove the magazines from the two firearms, including the removal of cartridges that were chambered within each firearm. Both firearms were then replaced on the ground and the scene secured via TPS officers.

Sometime later, the Complainant was placed into an EMS ambulance and transported to hospital.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TPS and DRPS between July 20, 2022, and October 4, 2022:
  • Warrant to Search;
  • Computer-aided Dispatch Report;
  • Communications recordings;
  • Notes Excusal- the SO;
  • Notes- WO #7;
  • Notes- WO #2;
  • Notes- WO #3;
  • Notes- WO #6;
  • Notes- WO #1;
  • Notes- WO #5;
  • Notes- WO #4;
  • Notes- WO #8 (DRPS);
  • DRPS General Occurrence [authored by WO #8];
  • BWC footage of WO #2;
  • Policy - Arrest;
  • Policy - Obtaining a Search Warrant;
  • Policy - Executing a Search Warrant;
  • Policy - Use of Force; and
  • Policy - Soft Body Armour.
  • Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:
  • Toronto EMS Call Report;
  • Medical Records – SHSC;
  • Cellphone video footage from CW #1; and
  • Video footage from a residence.

Incident Narrative

The evidence collected by the SIU, including interviews with the Complainant and video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO declined an interview with the SIU or to authorize the release of his notes.

At about 5:30 a.m. of July 20, 2022, the Complainant was a guest at a friend’s place – a residence near Simcoe Street North and Windfields Farm Drive, Oshawa – when TPS officers entered to execute a search warrant. He was one of a cohort of acquaintances present in the residence; they were spending the night at the home. Among the group was an individual wanted in the murder of an individual in Toronto the month before.
The officers entering the home were members of the ETF. As individuals within the premises were suspected of possessing weapons, their job was to detain the occupants and render the location safe ahead of members of the TPS Homicide Unit entering the residence to conduct the search. In pursuit of their objective, the ETF executed a ‘dynamic entry’ – a tactic by which the officers would forcibly enter the premises, deploy distraction devices, and use the elements of surprise, speed and overwhelming force to neutralize possible threats before they materialized.
 
At the sight of the officers inside the premises, their firearms drawn, the Complainant decided to escape. Located on the second-floor patio at the time, over top the garage, the Complainant scaled the railing and hung temporarily on the outer side before dropping in a controlled fashion to the ground below. On his person at the time were two semi-automatic handguns.

TPS officers, including the SO, had been positioned at the rear of the residence where the garage was located in anticipation of persons attempting to flee upon entry of the ETF. The SO was east of the location at the time and had slowly been approaching the rear of the residence on foot when, noticing the Complainant hanging from the railing, he ran to the scene. The Complainant had just landed on his feet when the officer screamed at him to drop the gun. A moment later, from a position southeast of the Complainant, the SO fired his handgun twice.
Only one of the two rounds struck the Complainant. The bullet entered and exited the Complainant’s right thigh.

The Complainant collapsed after the shooting and was arrested. He was provided medical attention by a tactical paramedic present at the scene and was subsequently transported to hospital.

Two semi-automatic handguns were recovered at the scene beside the location of the Complainant’s collapse.

Relevant Legislation

Section 34, Criminal Code -- Defence of person - Use or Threat of Force

34 (1) A person is not guilty of an offence if
(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.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(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.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

Analysis and Director's Decision

The Complainant was shot and seriously injured by a TPS officer on July 20, 2022. In the ensuing SIU investigation, the officer – the SO – was identified as the subject official. The investigation 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.

Section 34 of the Criminal Code provides that conduct that would otherwise constitute an offence is legally justified if it was intended to deter a reasonably apprehended assault, actual or threatened, and was itself reasonable. The reasonableness of the conduct is to be assessed in light of all the relevant circumstances, including with respect to such considerations 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. In my view, there is insufficient evidence to reasonably conclude that the force used by the SO was not legally justified per section 34.

It bears noting at the outset that the SO was lawfully placed throughout his engagement with the Complainant. The officer was part of a team of officers who had convened at the address in Oshawa to assist with the execution of a facially valid search warrant. In light of the Complainant’s presence on the premises, said to contain items (including firearms) and persons implicated in the murder of an individual weeks prior in Toronto, and his flight from the scene upon the entry of the ETF officers, the SO had lawful grounds to detain the Complainant for investigation: R v Mann, [2004] 3 SCR 59.

With respect to the shooting, I am satisfied that it constituted conduct on the part of the SO intended to deter a reasonably apprehended threat. Though the investigation is without direct firsthand evidence of the officer’s state of mind – the SO having chosen (as was his legal right) not to interview with the SIU – the circumstantial evidence renders the proposition a likely one. Consider the context in which the events unfolded – the search of a premises thought to contain firearms and a murder suspect. Consider also what the SO would have appreciated as he confronted the Complainant – an individual intent on escape holding a firearm and failing to drop it immediately at the officer’s direction. On this record, it would seem highly probable that the SO fired his weapon believing it was necessary to protect himself from a real risk of death or grievous bodily harm at the hands of the Complainant.

Lastly, the two shots fired in quick succession by the SO, I am satisfied, amounted to reasonable force in self-defence. The firearm in the Complainant’s hand constituted a grave and imminent threat to the officer’s life and limb. Whether the Complainant intended to use it against the SO or even had it pointed at the officer at the time of the shooting is contested on the evidence. In any event, the SO, placed in the position he was, and with only split seconds in which to react to the situation in front of him, could only assume that the Complainant might well fire his weapon. In the circumstances, when the Complainant failed to drop the gun he was holding at the SO’s direction, the officer was entitled to meet a threat of lethal force with a resort to lethal force of his own. No other weapon available to the officer had the same potential, required in the moment, to immediately neutralize the danger posed by the Complainant. Nor were retreat or withdrawal reasonably available options for the SO; by the time the officer would have apprehended a firearm in the Complainant’s possession as he neared to within a few metres of his position, those alternatives were essentially foreclosed.

In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his confrontation with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.



Date: November 17, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Member of the Durham Regional Police Service (DRPS). [Back to text]
  • 2) Neither firearm was TPS-issued. [Back to text]
  • 3) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
  • 4) The SO wore a T-shirt and blue jeans. No police ballistic vest was worn. [Back to text]

Note:

The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.