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:

• 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 Personal 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.

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 death of a 37-year-old man (the “Complainant”).

Notification of the SIU[1]

On December 7, 2023, at 11:30 p.m., the York Regional Police (YRP) contacted the SIU with the following information.

On December 7, 2023, at approximately 10:15 p.m., YRP officers responded to a domestic disturbance at an address on Crowder Boulevard in Newmarket related to people fighting and smashing things in an apartment. Officers arrived at the building and were met in the stairwell by the Complainant, who confronted them armed with a hammer. One of the officers discharged their pistol and the Complainant was hit. The shot was fatal.

The scene was being held for the SIU. The involved police officers and their weapons were back at the Newmarket police station.

The Team

Date and time team dispatched: 2023/12/08 at 12:53 a.m.

Date and time SIU arrived on scene: 2023/12/08 at 2:03 a.m.

Number of SIU Investigators assigned: 7

Number of SIU Forensic Investigators assigned: 4

Affected Person (aka “Complainant”):

37-year-old male; deceased

Civilian Witness

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

The civilian witnesses were interviewed between December 8, 2023, and December 13, 2023.

Subject Official

SO Interviewed, but declined to submit notes, as is the subject official’s legal right

The subject official was interviewed on December 18, 2023.

Witness Official

WO #1 Interviewed

WO #2 Interviewed

The witness officials were interviewed on December 11, 2023.

The Scene

The events in question transpired in and around the ground floor stairwell opposite the elevator situated west of the main entrance of a building located on Crowder Boulevard, Newmarket.

Scene Diagram

Physical Evidence

On December 8, 2023, at 2:03 a.m., SIU investigators arrived at Crowder Boulevard, Newmarket. The scene was protected by uniformed police officers from YRP.

The building on Crowder Boulevard was an apartment complex. On the ground level was an elevator situated to the west of the main entrance and on the south side of a hallway.

The scene was located inside a stairwell on the ground floor. The stairwell was to the west of and diagonally opposite the elevator, on the north side of the hallway. There was a door to enter the stairwell.

The stairwell itself was comprised of a hallway leading from the door to an external emergency exit door on the north side of the building. There was a long solid wall on the east side and a short wall on the west side that ran for about two metres and stopped at the staircase. The staircase was on the west side of this hallway and had a small landing at the bottom. The stairs led to the upper levels of the complex.

The Complainant’s body was located in the stairwell hallway, on his back, with his head near the east side wall and his feet on the staircase landing. A hammer was located on the ground, near his right shoulder. Numerous shell cases were noted on the staircase and in the stairwell hallway.

Figure 1 - The hammer located at the scene

SIU forensic investigators examined the scene inside the stairwell and identified multiple spent cartridges, projectiles and a magazine from the SO’s firearm, and a hammer with a yellow handle. In total, 14 spent cartridge cases, three projectiles and several copper jacket fragments were collected.

SIU forensic investigators collected the firearm, bullets and magazines issued to the SO.

Figure 2 - The SO’s Glock pistol

In the scene examination, 14 cartridge cases and one live round of ammunition were found in the stairwell. Three projectiles were found in the stairwell area and 11 were found in the Complainant’s body at autopsy.

Forensic Evidence

The firearm, bullets and magazines issued to the SO collected by SIU forensic investigators were sent to the Centre of Forensic Sciences (CFS) for ballistic examinations.

On December 9, 2023, the bullets and fragments removed from the Complainant during his autopsy were also submitted to the CFS.

The results of the examinations have not been returned to the SIU as of the completion of this report.

Video/Audio/Photographic Evidence[2]

Video Footage from Apartment Building on Crowder Boulevard

On December 8, 2023, SIU investigators obtained video footage from the apartment building on Crowder Boulevard. The footage was date and time-stamped, and absent audio. The time-stamps, converted below to reflect actual time, were three minutes behind actual time.

The footage captured the hallway outside the elevator, stairwell doors and the basement car park. It did not capture inside the stairwell where the shooting occurred.

Starting at about 10:13 p.m., December 7, 2023, the Complainant and CW #1 came out of an apartment and went to the elevator. They both entered the elevator and exited in the basement level car park. The Complainant carried a hammer with a yellow handle in his left hand.

CW #1’s car [now known to be driven by the Complainant] then exited the parking garage leaving CW #1 in the car park. She unsuccessfully tried to exit the garage.

Starting at about 10:25 p.m., the Complainant re-entered the parking garage in CW #1’s car. A visibly scared and upset CW #1 ran through the car park back to the basement hallway. The Complainant walked through the parking garage with the hammer in his top right pant pocket with the yellow handle sticking out.

During this time, CW #3 took the elevator to the ground level [now known to be on her way to let the police officers into the building]. The Complainant and CW #1 appeared to have an argument in the basement car park.

Starting at about 10:27 p.m., CW #1 pressed the elevator button to call the elevator. At this time, CW #3 made her way to the front doors on the ground level, while the Complainant and CW #1 continued to appear to argue while waiting for the elevator. The elevator arrived and both entered it. At this time, on the ground level, the SO, WO #1 and WO #2 had entered the complex and were talking to CW #3 outside of the elevator. CW #3 pressed the elevator button to call the elevator, and WO #1, the SO and then WO #2 stepped through the stairwell door.

As the last glimpse of WO #2 crossed the threshold of the stairwell door, the elevator door began to open. CW #2 had entered the image from the west and was almost even with the stairwell door.

At 10:28:54 p.m. (two seconds after the last glimpse of WO #2 entering the stairwell), the elevator door was fully open.[3] CW #3 appeared to indicate to the police officers. At 10:28:55 p.m. (one second after the elevator door opened, and three seconds after the last glimpse of WO #2 crossing the threshold of the stairwell door), the Complainant stepped out of the elevator and started to cross the hallway. He was removing the hammer from his right pant pocket with his right hand. The Complainant ran across the hallway and through the stairwell doorway.

The Complainant was fully into the stairwell three seconds after the elevator door was fully opened and five seconds after the last glimpse of WO #2 crossing the threshold of the door to the stairwell. CW #3 and CW #2 looked directly into the stairwell.

CW #3 and CW #2 then both covered their ears consistent with the moment the SO discharged his firearm. Three seconds later, CW #1 ran out of the elevator and ran east down the hallway, past the lobby and past CW #4, who was walking towards the elevator from the other side of the lobby.

Communications Recording

911 Calls

On December 7, 2023, at 10:14 p.m., a caller requested “police” indicating that it “sounds like someone’s trying to kill a woman”. He said that a woman was screaming, provided a potential unit number, and indicated he heard smashing and a male voice screaming. Another caller reported screaming, yelling, banging, and possibly a gunshot. She was relaying information from another tenant who saw a male and female heading into an elevator.

At 10:30 p.m., three callers reported gunshots [now known to be calls made after the SO fired his firearm].

Radio

On December 7, 2023, at 10:17 p.m., police dispatch requested all available units to an address on Crowder Boulevard for a loud disturbance and the possibility of a weapon being involved with no confirmation of which apartment was involved.

At 02:59 minutes into the recording, WO #1 requested EMS. He said shots were fired and the suspect “came at us with hammer”. WO #1 indicated that the suspect was down, and they were in a staircase.

At 04:36 minutes into the recording, WO #1 advised CPR had commenced.

At 05:28 minutes into the recording, WO #1 advised that compressions and life-saving measures were being stopped, and the male was pronounced deceased at 10:38 p.m.

Materials Obtained from Police Service

The SIU obtained the following records from the YRP between December 8, 2023, and December 14, 2023:

• Communications recordings;
• Computer-aided dispatch report;
• In-car camera system footage;
• General Occurrence Reports;
• Mobile Data Terminal logs;
• Notes - WO #1;
• Notes - WO #2;
• CW #1 video statement;
• Next-of-kin contact details;
• A copy of known fingerprints for the Complainant;
• YRP Policy - Use of Force;
• Use of Force – training records -the SO;
• Use of Force – training records - WO #1; and
• Use of Force – training records - WO #2.

Materials Obtained from Other Sources

Between December 14, 2023, and February 16, 2024, the SIU obtained the following records from the following other sources:

• Ontario Forensic Pathology Service - Preliminary Autopsy Findings Report; and
• York Region Paramedic Services report.

The evidence collected by the SIU, including interviews with the SO and other police and non-police eyewitnesses, and video footage that captured the incident in parts, gives rise to the following scenario.

In the evening of December 7, 2023, the SO, in the company of his partner, WO #2, were dispatched to an address on Crowder Boulevard, Newmarket. 911 calls had been received from occupants of the building describing a domestic dispute between a male and a female in what was believed to be a unit of the building. The officers joined with WO #1, also responding to the call, at the building. The three officers were escorted into the building’s foyer by one of the 911 callers, CW #3, who led them to an elevator west of the main entrance. The time was about 10:28 p.m.

The SO, WO #2, WO #1, and CW #3, spoke by the elevator for about 40 seconds, after which the officers entered through a door into a stairwell across the hallway from the elevator. As the last of them had cleared the threshold of the door, the elevator arrived on the main floor and the doors opened. Inside was the Complainant and CW #1.

The Complainant and CW #1 were the subject of the 911 calls. In contravention of a no-contact order, the Complainant had attended at CW #1’s apartment that day. There, the two had an altercation resulting in police being called. CW #1 left the apartment and entered the elevator with the Complainant. The two travelled to the parking level where the Complainant stranded CW #1 and took her vehicle, returning after about 15 minutes. They were making their way back up to CW #1’s apartment when the elevator stopped at the main floor.

On seeing CW #1 in the elevator, CW #3 called out to the officers through the stairwell door to let them know she was the female they were looking for. Immediately thereafter, the Complainant emerged from the elevator and rushed towards the stairwell door, removing a hammer from a right front pocket as he did so. By this time, WO #1, who had entered the stairwell first, was almost at the top of the first flight of stairs. The SO was behind him near the bottom of the stairs. WO #2, the last through the door, had yet to step onto the staircase. The officers were alerted to the Complainant, who screamed out. He held the hammer in his right hand at chest level as he closed the distance on the officers. WO #2 moved to his right towards an exit door to create distance as the Complainant approached the staircase. The Complainant was within a metre of the SO when the officer, his gun drawn, fired 14 times in his direction.

The gunfire felled the Complainant. He toppled forward and came to rest at the foot of the staircase. The SO handcuffed him behind the back and started to provide emergency first-aid.

A paramedic attended the scene and pronounced the Complainant deceased. The time was 10:38 p.m.

Cause of Death

The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to ‘multiple gunshot wounds’. The Complainant had been struck by 13 of the 14 bullets fired by the SO.

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 passed away of gunshot wounds inflicted by a YRP officer on December 7, 2023. The SIU was notified of the incident and initiated an investigation naming the SO 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 death of the Complainant.

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, WO #2 and WO #1 were lawfully placed and in the execution of their duties throughout the series of events culminating in the shooting. The officers were on their way to a unit of an apartment building to investigate what they had reason to believe was a domestic dispute that had turned violent.

I am satisfied that the SO fired his gun to protect himself from a reasonably apprehended assault by the Complainant. At the time of the gunfire, the Complainant was moving towards the SO with a hammer in his right hand giving every indication he was about to swing it at the officer. The officer was clearly under attack and acted to defend himself.

I am also satisfied that the SO’s resort to gunfire constituted reasonable force in self-defence. The officer was at risk of grievous bodily harm or death had the Complainant been able to swing the hammer in his direction. And the risk was imminent. The Complainant had neared to about a metre of the officer when the SO fired. What was needed in the circumstances was force capable of immediately incapacitating the Complainant. The SO might have considered the use of a conducted energy weapon, but the weapon did not have the stopping power of a firearm. That was particularly true in this case as the Complainant was wearing a coat that could well have prevented the weapon’s probes from penetrating to the skin. The number of shots fired – 14 – is subject to legitimate scrutiny but does not ultimately divest the officer of the protection of section 34. It appears that the gunfire occurred in rapid succession and mostly as the Complainant was upright. There is evidence that the last few shots were discharged as the Complainant was falling or on the floor. However, given the speed with which events unfolded, the tension of the moment, and the delay associated with reaction times, I am unable to conclude that any part of the SO’s gunfire was something other than a reasonable response to the threat presented by the Complainant.

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

Date: April 5, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit