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 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 35-year-old man (the “Complainant”).

Notification of the SIU [1]

The Team

The Scene

Physical Evidence

Forensic Evidence

CEW Deployment Data – The SO

The evidence collected by the SIU, including an interview with a police eyewitness 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.

At about 12:21 a.m., August 1, 2023, the SO and his partner, WO #3, arrived at a house situated on Sherwood Avenue, Scarborough. A resident of the home – CW #1 – had called police to report that the Complainant had been behaving strangely and sent a threatening text to his roommate – CW #4. The officers met CW #1 outside and he let them into the house. CW #1 explained that the Complainant had just come out of the bathroom after a couple of hours, had a knife, and had threatened to cut CW #4.

With the SO in the lead, the officers descended a flight of stairs to the basement, rounded a corner and made their way cautiously down a corridor. Their CEWs drawn, the SO and WO #3 had made it about halfway to the end of the hallway when the Complainant emerged from the room – a kitchen – at the far left side of the hallway. He had a knife in his right hand. The officers backtracked several steps and the SO fired his CEW. The Complainant appeared unaffected; he remained standing with the knife in hand. The SO and WO #3 repeatedly ordered the Complainant to drop the knife and drew their firearms. The Complainant squared up at the officers, yelled something in anger, and took a step towards the SO. The SO fired his weapon four times in quick succession.

The Complainant stopped his forward movement, remained standing a second or two, and moved to his left into another room. The officers would enter the room and find the Complainant on a bed. He had sustained multiple gunshot wounds and was bleeding. The SO and WO #3 placed the Complainant into the recovery position and attempted to reassure him.

Paramedics attended at the address and took the Complainant to hospital where he was treated for injuries to both hands and the torso.

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 on August 1, 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 SO’s gunfire fell within the four corners of the justification set out in the provision.

The SO was lawfully placed and engaged in the execution of his duties in the series of events leading to the shooting. He and his partner had been invited into the home to check on the Complainant, who had been exhibiting strange and disturbing behaviour, and to investigate a threat he had made against another resident.

The shooting, I am satisfied, constituted defensive force. Though the officer did not come in for an interview, as was his right, the circumstances make plain that the SO fired his weapon to protect himself from a knife attack by the Complainant. The Complainant was holding a knife, had failed to drop it as directed, and was advancing on the officer when the SO discharged his firearm. Tellingly, WO #3, who was similarly situated to the SO, told the SIU he feared for their lives when the shooting happened.

I am also satisfied that the shots fired by the SO amounted to reasonable force. The Complainant had withstood a CEW deployment, disregarded repeated direction that he drop the knife, and was within three or four metres of the officer, advancing, when the SO discharged four rounds in rapid succession. The parties were confined within a narrow hallway at the time and there was little if any opportunity for retreat or withdrawal by the officers. On this record, I am persuaded that the Complainant constituted an imminent danger to the lives of the officers and that the SO was within his rights when he chose to meet a lethal threat with a resort to lethal force of his own.

For the foregoing reasons, there is no basis for proceeding with criminal charges against the subject official. The file is closed.


Date: November 29, 2023


Electronically approved by

Joseph Martino
Director
Special Investigations Unit