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 23-year-old man (Complainant #1) and the death of a 23-year-old man (Complainant #2).

Notification of the SIU [1]

On November 25, 2022, at 8:34 a.m., the York Regional Police (YRP) contacted the SIU with the following information.

Earlier that day, at 7:13 a.m., plainclothes officers had been conducting surveillance of individuals believed to be responsible for several recent violent home invasions. While outside a residential address on Eyer Drive, Markham, Subject Official (SO) #1 and SO #2 discharged their firearms, and two individuals were struck by bullets. One of the individuals was pronounced deceased at the scene. The other was transported to Sunnybrook Health Sciences Centre (SHCS) with serious injuries. Two additional individuals were also taken into custody without incident or serious injury.

The Team

Date and time team dispatched: 11/25/2022 at 9:10 a.m.

Date and time SIU arrived on scene: 11/25/2022 at 9:48 a.m.

Number of SIU Investigators assigned: 7

The Scene

The events in question transpired on and around the driveway of the property located at a residential address on Eyer Drive, Markham.

The scene was protected with YRP banner tape and uniform police officers upon the arrival of SIU investigators.

Eyer Drive was a residential area with large single-family homes on the east and west sides of the road. The road travelled north and south. The south end of Eyer Drive intersected with Calvert Road and the other end intersected with Rodlick Road.

There were five vehicles within the scene:

1. One unmarked YRP vehicle - a black Ford F150 pick-up truck. The vehicle was parked in the driveway of an address on Eyer Drive facing the garage doors. There were apparent bullet defects to the driver’s side window and the rear window. A few cartridge cases were scattered on the driveway and grass.
2. One white BMW X6, 4-door SUV. The vehicle was parked in the northbound lane, facing north, on the street at the foot of the driveway, directly behind the black Ford F150 pick-up truck. It had apparent bullet defects to the right side of the vehicle. Complainant #2 [deceased] was on the pavement near the driver’s door.
3. One unmarked YRP vehicle - a grey Ford F150 pick-up truck. The vehicle was parked facing south in the northbound lane, directly in front of the BMW. There was no apparent damage to this vehicle.
4. One unmarked YRP vehicle - a blue Mazda 4-door. It was parked behind the BMW facing north. There was no apparent damage to this vehicle.
5. One unmarked YRP vehicle - a black Acura 4-door SUV. The vehicle was parked behind the Mazda facing north. There was no apparent damage to this vehicle.

The body of Complainant #2 was concealed and protected by means of a YRP tent erected prior to the arrival of SIU investigators.

The two vehicles directly involved in the interaction were the white BMW [owned by Complainant #2] and the unmarked black Ford F150 pick-up truck.

Below are photographs taken by SIU forensic investigators, depicting each vehicle as found.


Figure 1 - Bullet defects to the Ford F150 pick-up truck


Figure 2 - Bullet defects to the Ford F150 pick-up truck


Figure 3 - Interior view from the Ford F150 pick-up truck

The evidence collected by the SIU, including interviews with Complainant #1 and each of the two subject officials, and a review of video footage that captured the incident in parts, gives rise to the following scenario.

At about 7:00 a.m. of November 25, 2022, Complainant #1 and Complainant #2 were occupants in a BMW X6 that was stopped on Eyer Drive, Markham. With them in the vehicle were CW #5 and CW #4.

Not long after the BMW had come to a stop, a pick-up truck entered onto a driveway north of the BMW’s location at Eyer Drive. Inside the truck were SO #1 and SO #2. The officers were part of a task force of sorts that had been organized to track down the BMW X6 and another vehicle, which had been identified as being involved in a series of home invasions in Markham between September and November. That morning, officers from various YRP units, including the hold-up squad, guns and gangs, tactical, and ‘Air2’ – a YRP helicopter – had been deployed to assist in the search of the suspect vehicles. SO #1 and SO #2 – in plainclothes and an unmarked vehicle – were part of a mobile intelligence team used in the operation. The BMW had been located hours earlier and followed by various members of the team, in the course of which it became apparent that the driver of the BMW was aware that he was being followed. SO #1 and SO #2 had swapped vehicles to re-establish their anonymity, and then travelled to Eyer Drive to resume surveillance on the BMW.

Complainant #2 backed out of the driveway they were on, travelled north, and came to a stop on the east side of the roadway along the entrance of the driveway where SO #1 and SO #2 had parked, effectively blocking the egress of the truck. Complainant #2 and CW #5 exited the BMW, approached the driver’s door of the pick-up truck, and then walked back to the car. Moments later, both Complainant #2 and CW #5, the former armed with a knife, again returned to the truck. They approached the driver’s door and started shouting at the occupants of the truck demanding to know who they were and why they were following them. The driver of the truck rolled down the window and explained to Complainant #2 and CW #5 that they had mistaken them for someone else. Complainant #2 pounded on the driver’s door window causing it to shatter – it remained intact, however, because of the tint film holding it together.

Within a short period, Complainant #1, who had been seated in the rear passenger seat of the BMW, exited the vehicle and approached the driver’s side of the truck. He had with him a loaded shotgun. Complainant #1 raised his firearm and stuck the barrel of the weapon through the window opening at the head of SO #1. The officer yelled, “Gun,” ordered Complainant #1 to drop the weapon, and then began to fire his handgun numerous times through the driver’s window. SO #2, seated in the front passenger seat, did the same, firing across the body of his partner out through the driver’s door window.

Complainant #1, Complainant #2 and CW #5 fled from the pick-up truck. CW #5 ran northward past the front lawn of the property. Complainant #1 and Complainant #2 ran westward towards the BMW. As Complainant #2 rounded the front driver’s side of the vehicle, he was struck by a bullet to the left side of the head that resulted in his death. Complainant #1 had made it inside the front passenger seat. He shifted into the driver’s seat - taking several bullet strikes to the body in the process - but was without the vehicle’s key and could not place the BMW in motion. Complainant #1 exited the vehicle through the driver’s door intending to retrieve the key from Complainant #2, and took another gunshot in the left shoulder.

SO #1 and SO #2 had each emptied their magazines. The latter had continued to shoot through the rear window of the pick-up truck in the direction of Complainant #1 and Complainant #2 as they ran back towards the BMW. He is likely the officer responsible for felling Complainant #2 and inflicted some, if not all, of Complainant #1’s gunshot wounds. After he had emptied his magazine, SO #1 reloaded his weapon and exited the truck, taking up a position of cover in front of the vehicle and then behind the open driver’s door. Seeing what he believed was Complainant #1 reaching into the backseat of the BMW from the driver’s seat, and fearing he was reaching for a firearm, the officer fired three more shots in his direction. SO #2 had also reloaded his weapon and continued to fire from within the pick-up truck towards the BMW. He, too, ended his gunfire with a number of shots fired at Complainant #1 as he sat in the driver’s seat.

Other officers of the tracking team began to arrive at the scene just as the last shots were being fired. WO #1 pulled up in his Mazda 6 south of the BMW, took a position behind his vehicle, and yelled at Complainant #1 to exit the BMW. Complainant #1 raised his arms, left the BMW, and laid on the roadway with his hands over his head. Complainant #1 was arrested, as was CW #4, who had remained within the driver’s side backseat of the vehicle throughout the event.

In total, SO #1 fired 16 rounds from his semi-automatic Glock pistol. SO #2 fired 29 times from his semi-automatic Glock.

Complainant #1 was transported to hospital from the scene and diagnosed with gunshot wounds to the left flank, lower left back, left upper back and the left shoulder.

CW #5 was also arrested at the scene. It does not appear that he suffered any serious injuries in the event.

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.

Complainant #2 was shot and killed by a YRP officer on November 25, 2022. His associate, Complainant #1, was also shot in the same incident and suffered serious injuries. In the ensuing SIU investigation, the YRP officers who had fired their guns – SO #1 and SO #2 – were identified as subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the death of Complainant #2 and the wounding of Complainant #1.

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.

SO #1 and SO #2 were lawfully placed and in the discharge of their duties when they were confronted on the driveway of the residence of Eyer Drive by Complainant #1, Complainant #2 and CW #5. They were engaged in a legitimate surveillance operation of a BMW, which vehicle they had reason to believe had been involved in multiple home invasions in Markham. That belief came from video footage from the home or homes that had been attacked in the past several months by armed intruders.

I am satisfied that SO #1 and SO #2 were acting to defend themselves, each other, and, in the latter stages of the exchange, other officers, from a reasonably apprehended assault at the time of the gunfire. The circumstances that prevailed at the time give credence to the officers’ evidence in this regard, each of whom said in their SIU interviews that they fired their guns fearing their lives were at stake. Confronted with a shotgun, the officers had every reason to believe that they were at imminent risk of grievous bodily harm or death. That fear, in my view, held true throughout the barrage of gunfire. Even though Complainant #1 had fled from the officers’ vehicle after the first volley of shots, SO #1 and SO #2 had reason to believe that he remained possessed of the weapon and capable of discharging it in their direction at any moment. Moreover, given what they knew of the home invasions under investigation at which firearms had been brandished, there was also reason to believe that additional firearms would be found in the BMW.

I am also satisfied that the force used by the officers constituted reasonable defensive force. Certainly, with respect to the initial gunfire that followed soon after Complainant #1 pointed his shotgun at SO #1, the officers had every right to meet a threat of lethal force with a resort to lethal force of their own. Give the nature of the threat at the time – nothing less than imminent death – one cannot fault the officers for firing at Complainant #1 through the driver’s door window of the pick-up truck.

The issue turns to whether the same can be said of the multiple gunshots that were discharged as Complainant #1 and Complainant #2 fled down the driveway towards their BMW. Here, too, I am unable to reasonably conclude that the officers acted beyond measure. In the cold light of hindsight, it might be said that the risk of death had receded, but it would be difficult to suggest that the risk had disappeared even from this vantage point. Complainant #1 still had possession of the shotgun and the officers, particularly in the heat of the moment, would have been rightly concerned that he would fire the weapon at them. That would have been particularly true as he rounded the corner of the BMW and assumed a position of cover behind and within it. Adding to their concerns at this time was information that had been gleaned from the home invasions investigation indicating the possibility of multiple firearms within the BMW. [7]

In the result, there are no reasonable grounds to believe that either of SO #1 and SO #2 fell afoul of the criminal law in connection with the gunshot injuries sustained by Complainant #1. They were at all times throughout their gunfire acting within the limits of legally justifiable force as prescribed by section 34 of the Criminal Code. The same may be said vis-à-vis the death of Complainant #2. Even though he himself was not armed with a firearm, he was a party with Complainant #1 in the initial attack on the officers, joined with Complainant #1 in his flight towards the BMW where it was suspected additional firearms were stored and could be accessed, and would have been in the same line of fire as Complainant #1 when he was struck with what likely was a round fired by SO #2. As such, there is no basis for proceeding with criminal charges against the subject officials. The file is closed.


Date: March 24, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit