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 injury of a 44-year-old man (the “Complainant”).

Notification of the SIU [1]

On July 25, 2023, at 9:39 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

At 7:54 p.m., that same day, TPS mobile police officers were set up on Dixon Road to locate and arrest the Complainant for Second Degree Murder. When the Complainant exited the address, he identified the police officers and discharged his firearm at them. The police officers did not return fire. A perimeter was set up, and the Emergency Task Force (ETF) and a Canine Unit (CU) responded. The Complainant was located near Kingsview Boulevard. He discharged a firearm again, killing a police service dog (PSD). The Subject Official (SO) discharged his firearm and struck the Complainant in the buttocks. The Complainant was taken to Sunnybrook Health Sciences Centre (SHSC) where he was listed in stable condition.

The Scene

The events in question transpired in the backyard of a residence situated on Kingsview Boulevard, Toronto.

Kingsview Boulevard ran in an east/west direction.

The backyard was divided by a small bush-line and a path ran in a southerly direction through the bush-line. Once through the bush, the area opened to a small field, which was secured by the presence of TPS police officers. A fence line ran along the west side of the backyard. Along the west side of the field, a form was covered by a blanket and a silver emergency blanket. This form was the PSD. The PSD was a German Shepherd wearing a TPS vest. The dog was deceased.

The body-worn camera (BWC) footage of one of the ETF officers was viewed, indicating that the area of interest was the southeast corner of the backyard lawn. Photographs of the area were taken. The area was searched, both visually and with the use of a metal detector. A total of five spent brass .223 cartridge cases were recovered.




Figure 1 - Two of five spent brass .223 cartridge cases recovered at the scene

The evidence collected by the SIU, including interviews with the Complainant and officers present at the time of the shooting, and video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the evening of July 25, 2023, undercover police officers were in the area of Dixon Road, Toronto, on the lookout for the Complainant. The Complainant was wanted in relation to a murder that had been committed with a firearm the day before and the police had reason to believe that he resided in an apartment at the building. At about 7:50 p.m., the Complainant was seen leaving the west side of the building onto a parking lot and heading towards a BMW vehicle. A takedown was called.

WO #2 travelled to the rear of the BMW in a van. The Complainant was opening his trunk and had noticed the van’s maneuver. WO #2 was exiting the van as the Complainant fled along the driver side of the BMW. As he arrived at the front driver side corner of the vehicle, he pulled a gun and turned towards WO #2, firing two rounds in his direction. WO #2 moved to find cover behind the van. He had not been struck by the gunfire.

The Complainant ran northwards through the parking lot chased by other officers. He was last observed heading into the rear yards of homes on Kingsview Boulevard, less than a kilometre from the initial shooting. The Complainant would eventually seek to conceal himself in heavy brush at the southeast corner of a backyard on Kingsview Boulevard.

Aware of his general location, police established a perimeter around the Kingsview Boulevard houses and called-in a police dog handler to help locate the Complainant. WO #1 arrived on scene with his dog, the PSD, at about 8:15 p.m. In the company of two ETF officers with C8 rifles at the ready, WO #1 began to track the Complainant at about 8:34 p.m.

The track led the officers into the backyard of a residence on Kingsview Boulevard, where the PSD signaled an interest in entering into the neighbouring yard. Followed by the ETF officers, WO #1 helped himself and the PSD over a fence line. The PSD tracked about the yard for a period and then entered the brush in the southeast corner of the yard. Within seconds of doing so, gunfire rang out.

The Complainant, his back against the rear fence of the southern border of the property line, had fired his weapon – a Glock 22 – at the dog. The SO, from a position several metres north and west of the Complainant, returned fire, discharging six rounds in total. The time was 8:38 p.m.

The Complainant was struck by one of the rounds, sustaining a wound to his right buttock. He dropped the gun in the gunfire and was arrested by the ETF officers.

WO #1 rushed into the brush after the shooting to tend to the PSD. He radioed that the PSD was down, asked for a medic, and removed the dog into an opening. The PSD would succumb to his wounds.

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.

The Complainant was shot and wounded by a TPS officer in Toronto on July 25, 2023. In the ensuing SIU investigation of the incident, the officer who fired his weapon – 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. The force used by the SO fell within the limits of the protection conferred by the provision.

The SO was lawfully placed and in the execution of his duty as he escorted WO #1 to cover him and his dog during the track of the Complainant. The Complainant was wanted for a homicide the day before and had moments earlier fired a gun at an officer. He was clearly subject to arrest.

I am also satisfied that the SO fired his weapon to repel a reasonably apprehended attack at the hands of the Complainant. Though the officer, as was his legal right, did not come in to provide the SIU with firsthand evidence about his state of mind at the time, the circumstances around the gunfire compel that conclusion. The Complainant had just fired a gun with the officers and police dog at close quarters. The SO could only have concluded that the Complainant was either firing at the officers and/or the dog and that defensive force was necessary to preserve themselves.

Finally, the resort to gunfire was reasonable in the circumstances. The officers were under lethal assault at the time, and it was necessary to neutralize the threat as soon as possible to prevent grievous bodily harm or death. The only weapon with the immediate stopping power required of the moment was a firearm. As for the number of shots fired – six – these were delivered in rapid succession such that I am satisfied the officer would have reasonably apprehended a mortal threat throughout the gunfire. Indeed, it appears that some of the SO’s shots may have been discharged as the Complainant was still firing his weapon. [3]

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


Date: November 22, 2023


Electronically approved by

Joseph Martino
Director
Special Investigations Unit