Director's Report Details

• 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 section 14 (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.

 
Number of SIU Forensic Investigators (FIs) assigned: 2

Affected Person (aka “Complainant”):

35-year-old male; deceased

Civilian Witnesses

CW #1 Not interviewed; declined
CW #2 Interviewed
CW #3 Interviewed
CW #4 Not interviewed; interview deemed unnecessary
CW #5 Interviewed
CW #6 Interviewed; interview deemed unnecessary

The civilian witnesses were interviewed between January 22 and 23, 2022.

Subject Official

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 Interviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Not interviewed; notes received and reviewed
WO #6 Not interviewed; notes received and reviewed
WO #7 Not interviewed; notes received and reviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Not interviewed; notes received and reviewed
WO #11 Interviewed
WO #12 Interviewed
WO #13 Interviewed

The witness officials were interviewed between January 24, 2022, and March 16, 2022.

Investigative Delay

The investigation was delayed awaiting the receipt of the Report of Post-mortem Examination from the Coroner’s Office.

 

Cartridge Cases

Three cartridge cases were located at the scene.

Forensic Evidence

Firearm Examination

The SIU submitted a Glock 22 Gen 4 pistol collected from the SO to the Centre of Forensic Sciences (CFS) Firearms and Toolmarks Section for analysis.

The SIU also submitted three cartridge cases found at the scene to the CFS Firearms and Toolmarks Section for analysis.

The Firearms and Toolmarks Section concluded that the pistol was identified within the limits of practical certainty as having fired the three cartridge cases found at the scene.

The SIU submitted a semi-automatic pistol located in the satchel worn by the Complainant to the CFS Firearms and Toolmarks Section for analysis. It functioned correctly as designed as a semi-automatic pistol.

GPS Data –SO’s Cruiser

On January 24, 2022, the SIU requested that YRP provide the SIU the GPS data from the cruiser operated by the SO. On January 26, 2022, the YRP provided the data, a summary of which follows.

Starting at 9:04 p.m., the SO travelled south on Woodbine Avenue, west on Perth Avenue, north on Cochrane Drive, then south on Cochrane Drive and west on Cochrane Drive. The officer entered the parking lot on the west side of 575 Cochrane Drive. He drove in a circle around the parking lot, exited, and travelled north on Cochrane Drive, and then east on Cochrane Drive to East Valhalla Drive.

The SO drove north on East Valhalla Drive, and entered the parking lot at 50 East Valhalla Drive. He drove around the building and stopped before exiting back onto East Valhalla Drive northbound. At 9:16 p.m., he turned east on Highway 7 and travelled to Fairburn Drive where he turned to travel southbound. He turned east into the parking lot of the Go Place.com Spa and into the southwest section of the parking lot where the vehicle remained.

Video/Audio/Photographic Evidence [1]

Radio Communications

On January 24, 2022, the SIU requested that the YRP provide it the pertinent radio communications recordings of their interaction with the Complainant. On January 24, 2022, the recordings were received by the SIU, a summary of which follows.

The SO advised dispatch, “Can I get a second to my location.”

Various police officers responded.

The SO advised dispatch, “Shots fired, shots fired.”

The SO again advised dispatch, “Shots fired.” Dispatch asked the SO for his location. Dispatch told police officers that the SO was at Fairburn Drive and Montgomery. The SO said he was okay. Dispatch asked the SO if he had been injured, and he replied that he was fine.

The SO told dispatch that he required EMS. The SO told dispatch he had the gun.

Various YRP officers advised they were on scene. WO #2 told dispatch that a female was in custody.

A police officer confirmed that the driver was shot. A police officer told dispatch that the ambulance could approach the scene.

WO #2 advised dispatch that a firearm was located. WO #2 subsequently advised that CPR was in progress.

 

Video Footage – Business

On January 22, 2022, the SIU obtained video footage from a business located at 3215 Highway 7.
The video was 30 minutes in length, and started on Friday, January 21, 2022, at 9:15:00 p.m. The video captured the parking lot situated west of the Go Place.com Spa on the south side of Highway 7, east of Fairburn Drive. The following is a summary of the footage.

At 9:15:50 p.m., a white Hyundai [now known to be driven by the Complainant] travelled westbound in the parking lot on the south side of Highway 7. The Hyundai stopped at the corner of the parking lot, east of Fairburn Drive, facing south. The Complainant exited through the driver side door, went to the rear of the Hyundai, and stood facing a snowbank, east of Fairburn Drive.

At 9:16:35 p.m., the SO’s YRP police vehicle parked behind the Hyundai. The Complainant approached the driver side of the police vehicle, and appeared briefly to interact with the SO through the driver side window of the police vehicle.

At 9:18:07 p.m., the SO exited his police vehicle and walked to the driver side of the Hyundai. The Complainant followed and stood on the driver side, towards the rear of the vehicle.


Figure 5 – Screenshot of video

At 9:20:21 p.m., the SO grabbed hold of the Complainant. The Complainant broke free from the SO’s grasp. The Complainant ran through the parking lot. The SO followed him around a parked white SUV and then returned to the Hyundai.


Figure 6 – Screenshot of video


Figure 7 – Screenshot of video

At 9:20:40 p.m., the Complainant entered the driver side of the Hyundai, while the SO attempted to pull him out. The Hyundai began to reverse slowly, then stopped. The Hyundai then reversed rapidly turning in a westward direction and travelling up a snow embankment. The SO remained with the Hyundai in the area of the open driver side door as it reversed up the embankment.


Figure 8 – Screenshot of video



Figure 9 – Screenshot of video


Figure 10 – Screenshot of video

At 9:20:51 p.m., the SO discharged his firearm while standing outside the open driver side door. The passenger side door opened. The SO then walked around the front of the Hyundai to the passenger side and stood in front of his police vehicle.


Figure 11 – Screenshot of video

At 9:22:43 p.m., other police officers began arriving at the scene. Several police officers assisted with providing CPR to the Complainant.

At 9:35:12 p.m., two York Region Paramedic Services ambulances arrived.

In-car Camera System (ICCS) Video Footage

On January 24, 2022, the SIU requested that the YRP provide it the ICCS footage of their interaction with the Complainant. On January 25, 2022, YRP provided the SIU with various police officers’ ICCS footage. The ICCS footage did not capture the shooting incident; it captured images of events after the shots were fired. The following is a summary of the pertinent footage.

WO #2 advised dispatch, “I’m with him now, uh, cars in the ditch, uh, he looks okay, just one second, put me on this please.” WO #2 was the second police officer on scene.

The SO was heard telling WO #2, “He’s in the car.” WO #2 said, “What?” The SO replied, “Guy’s the shooter.” WO #2 replied, “Okay.”

WO #2 approached the white Hyundai from the passenger side with his firearm drawn, and had the following exchange with the SO, who was off camera. WO #2: “Have you located anything?” The SO: “No, I haven’t searched the car yet. He almost ran me over, guy almost killed me.”

WO #2 asked CW #1, lying on the snowbank behind the vehicle’s open door, “Are you okay?” She was heard saying, “Yeah I’m okay.” WO #2 helped her to her feet, and she was taken into custody.

The Complainant was pulled out of the Hyundai.

WO #2 advised dispatch, “Firearm located,” and dispatch replied, “Firearms are located.”

WO #2 advised dispatch, “CPR in progress,” and one of the police officers began administering CPR to the Complainant. Various police officers took turns administering CPR until the EMS arrived.

Video Footage – CW #5

On January 24, 2022, at 10:50 a.m., the SIU received a cell phone video from CW #5. The video was not date or time-stamped. The following is a summary of the 34-second-long video.

At time ‘0’, the video opened with a view of a white Hyundai parked on the southwest side of the parking lot, east of Fairburn Drive, south of Highway 7, along a snowbank facing southbound. The snowbank was illuminated by the headlights of a marked police vehicle stopped behind the rear bumper of the white Hyundai. The emergency equipment on the police vehicle was not activated.

At 1 second into the video, the white Hyundai reversed onto the snowbank while the horn sounded. The passenger and driver side doors were open as the vehicle was in motion. A visual of the occupant(s) in the vehicle was not clear. There appeared to be no vehicular contact between the white Hyundai and the police vehicle.

The passenger side door closed after the Hyundai came to a rest. The rear bumper rested on the snowbank and the front faced the pavement.

At 5 seconds into the video, the front passenger door opened and a person wearing a fur-hooded jacket [now known to be CW #1] emerged with an item in her right hand.

At 6 seconds into the video, as CW #1 laid on her right side on the snowbank, two persons - the Complainant and the SO - were entangled in the driver’s seat.

At 8 seconds into the video, the SO moved backwards from the driver’s door with something [believed to be his firearm] in his hand. The Complainant was slumped over the centre console.

At 10 seconds into the video, while walking around the front of the Hyundai towards the passenger side, the SO transitioned an item [believed to be his firearm] from his right hand to his left, employing his right hand to use a radio on his right shoulder. CW #1 placed both hands up.

At 19 seconds into the video, the SO stood at the passenger side facing CW #1.

At 34 seconds into the video, the video ended.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the YRP between January 23, 2022, and March 1, 2022:

• General Occurrence;
• Communications recordings;
• Detailed Call Summary;
• Unit History – Designated Officials;
• ICCS footage;
• YRP Canadian Police Information Centre record - the Complainant;
• Notes – WO #12;
• Notes – WO #7;
• Notes – WO #9;
• Notes – WO #10;
• Notes – WO #11;
• Notes – WO #2;
• Notes – WO #8;
• Notes – WO #3;
• Notes – WO #5;
• Notes – WO #6;
• Notes – WO #4;
• Notes – WO #13;
• Notes – WO #1;
• Communication Procedure;
• ICCS Procedure;
• Stopping and Investigating Motor Vehicles Procedure;
• Traffic Management, Enforcement and Road Safety Procedures; and
• Use of Force Procedure.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:

• Video footage – businesses around scene of incident;
• Cell phone recording from CW #5; and
• The Report of Postmortem Examination – Coroner’s Office (received October 2022).

At about 9:15 p.m., the Complainant, driving a white Hyundai Elantra, brought his vehicle to a stop facing south beside a snowbank in the parking lot at the southeast corner of the intersection of Highway 7 and Fairburn Drive, Markham. With him in the front passenger seat was a female – CW #1. The Complainant exited the vehicle, which was kept running, closed the driver’s door, and walked to the rear of the Hyundai towards the snowbank. It appeared as if he was preparing to urinate (both arms seemingly down by his crotch area). The Complainant paused momentarily before taking up a position beside the passenger side of the Hyundai where it appeared as if he was relieving himself into the snowbank. There he stood for approximately 25 seconds until a marked police SUV pulled up and came to a stop just east and north of the Hyundai, facing west.

The SO was operating the SUV. Prior to his arrival, the officer had been patrolling other parking lots in the area. The Complainant walked over to the driver’s door of the cruiser and remained there for several seconds, presumably engaged in some form of conversation with the SO, after which he walked to the front of the police vehicle. About a minute later, the officer exited the cruiser and walked a short distance towards the driver’s door of the Hyundai. The Complainant followed him towards to the driver side of the Hyundai, standing by the rear tire.

In that position, separated by a metre or two, the Complainant and the SO stood speaking to one another. This continued for about two minutes until the Complainant suddenly reached for the driver’s door handle and attempted to open the door. The SO immediately intervened to prevent the Complainant from doing so, and the two grappled with one another for several seconds. The Complainant broke free of the officer’s grasp and ran east in the parking lot. The SO chased after him as the Complainant rounded a parked vehicle and doubled-back towards the Hyundai.

 
This time, arriving at the Hyundai, the Complainant managed to open the door and enter the driver’s seat despite the officer’s efforts. The SO, right on the Complainant’s heels, reached in through the open driver’s door and took hold of the Complainant. The officer attempted to remove the Complainant from the Hyundai even as the vehicle began to slowly travel backward. It had reversed about a metre when it stopped momentarily before accelerating in a northwesterly arc past the cruiser and up the snowbank.

 
Three to four seconds elapsed from the moment the Hyundai picked up speed until it came to a stop on an incline on the snowbank – its back end facing west and raised above the front end, oriented east. Another three seconds elapsed before the front passenger door opened and CW #1 exited, falling onto the snowbank in the process. During this period, the driver’s door still open, the SO extricated himself from the driver compartment of the Hyundai and discharged his firearm once, and, likely, up to three times at the Complainant. It appeared the Complainant was attempting to exit the Hyundai via the open front passenger door when he was struck by one or more of the gunshots and collapsed – his head coming to rest on the front passenger seat, his feet on the driver’s seat.

The SO maneuvered around the front end of the Hyundai towards its passenger side, his gun aimed into the open passenger door from a distance of several metres. He remained in that approximate position for the next minute-and-a-half to two minutes until the arrival of another officer at the scene – WO #2. WO #2 walked to the CW, still on the snowbank beside the Hyundai, assisted her to her feet and escorted her to his vehicle, parked just south of the Hyundai. Other officers began to arrive on scene.

The Complainant was pulled by officers from the Hyundai through the open front passenger door about four-and-a-half minutes after the gunfire. CPR was performed by officers until the Complainant’s care was assumed by paramedics arriving on scene. A gun was located on the Complainant’s person at this time by one of the officers – WO #2. It was found in a satchel the Complainant wore around his chest.
The Complainant was taken to hospital and pronounced deceased at 10:17 p.m.

Cause of Death

The pathologist at autopsy attributed the cause of the Complainant’s death to ‘Gunshot wounds of torso’.

The Complainant had been struck by three bullets, two of which entered the same entry wound in the left abdomen. The third bullet also entered the left abdomen. The wound paths were left to right, upward, and front to back. None of the projectiles exited the body: one was recovered from the right lateral mid-neck; another from the right upper posterior-lateral torso; and, the third from the right mid-posterior torso.

34 (1) A person is not guilty of an offence if

(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:

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.

 
There is much about this incident that remains unknown. The SO, as was his legal right, has not explained why he initially engaged the Complainant in the parking lot. It may be that the officer, who appears to have been patrolling parking lots in the area, was doing just that when he pulled into the parking lot at the southeast corner of Fairburn Drive and Highway 7, observed the Complainant attempting to relieve himself, and decided to investigate a possible by-law infraction.

 
One also wonders why the SO tried to detain or arrest the Complainant, as one must conclude occurred when the officer first prevented him from entering his vehicle, subsequently chased after him, and then attempted to forcibly remove him from the driver’s seat. Had the Complainant refused to identify himself so that a ticket could be issued, thereby leaving himself open to lawful arrest?

 
The answers to these questions are important. If the SO had no lawful reason to arrest or detain the Complainant, then the Complainant was entitled to resist that process. In the absence of any evidence to this effect, however, and in circumstances suggesting a plausible scenario in which the officer was in the legitimate discharge of his duties, the investigation does not give rise to a reasonably grounded belief that the SO was acting outside the scope of his lawful authority.

 
While the SIU is without first-hand knowledge of the officer’s mindset when he fired his weapon, it seems likely that the SO shot the Complainant attempting to defend himself from a reasonably apprehended attack. That is the import of the utterances the SO made to certain officers arriving after the shooting, namely, that he fired his weapon believing he was about to be killed by the Hyundai in the Complainant’s control, and there is nothing in the evidence to contradict it. On the contrary, the circumstantial evidence lends credence to the assertion. It is apparent on the video footage that captured much of the incident that the Complainant was desperate to get away. One can understand why. Unknown to the SO at the time, the Complainant was in possession of a loaded firearm - a Glock Model 23 located in a satchel removed from his person after the shooting. The Complainant was looking at very serious criminal charges had the weapon been discovered by the officer, which it certainly would have following an arrest. Though perhaps not his intention to hurt or assault the SO, the Complainant’s frenzied efforts to escape apprehension in his vehicle gave the officer reason to believe that his life was in imminent danger. With the SO hanging on through the open driver’s door, partly within and without the driver’s compartment of the Hyundai, the Complainant accelerated backwards at speed, slamming into and climbing onto a snowbank of some height. Within seconds of the impact with the snowbank, having removed himself from the Hyundai and still in the area of the open driver’s door of the vehicle, the SO remained in a position of peril. The Complainant was still active in the Hyundai and it would have been reasonable for the officer to fear that he might try to put the vehicle in motion again; indeed, the officer who turned the Hyundai’s ignition off noted it was in drive gear. On this record, it would appear that the SO had cause to want to stop the Hyundai from moving and, once stopped, to keep it from moving again, by discharging his weapon to incapacitate the Complainant.

I am further satisfied that the SO’s gunfire constituted reasonable force in self-defence. If the officer reasonably feared that his life was at imminent risk with the continued operation of the Hyundai, and I accept that he did, then it makes sense that he would want to stop the Hyundai as quickly as possible. One of the ways this could be accomplished is by resort to his firearm. Conceivably, the SO might have opted for lesser force– perhaps the use of a CEW or physical strikes to the Complainant’s person – but nothing stood to immediately immobilize the Complainant as the use of a firearm, especially in light of the officer’s precarious position at the time. This was certainly true of the SO’s predicament as the Hyundai was in motion, and also true with respect to the shot or shots fired by the officer after the vehicle had come to a stop on the snowbank. Video footage of this part of the transaction seems to show the SO disengaging from the Complainant and taking a step or two back from the open driver’s door before firing his weapon. At the time, the officer was still in close proximity to the Hyundai and in a position of danger in the event the Complainant, who was still active in the vehicle, managed to put it in motion again. That contingency, I am persuaded, and the need to take swift action to prevent the Complainant moving the Hyundai again, would have been top of mind for the SO given what had just occurred. In the final analysis, given the speed with which events unfolded and the volatility of the situation, I am unable to reasonably conclude that the SO acted without justification for deciding in the heat of the moment to meet a threat of grievous bodily harm or death with a resort to lethal force of his own.
 
In the result, while it is a tragedy that the Complainant lost his life in the interaction with the SO, there are no reasonable grounds to believe that the officer comported himself other than within the limits of the criminal law. As such, there is no basis for moving forward with criminal charges in this case. [2] The file is closed.


Date: December 30, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit