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 discharge of a firearm by the police at a 20-year-old male (“Complainant #1”), a 17-year-old male (“Complainant #2”) and a 16-year-old male (“Complainant #3”).

Notification of the SIU[1]

On December 15, 2023, at 7:42 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

On December 15, 2023, at 6:00 p.m., a retail store in Scarborough was robbed at gunpoint by three males. There was no firearm discharge nor any injuries, though numerous cellular phones were stolen. A cell phone track was conducted on one of the stolen phones identifying an area where the suspect vehicle was travelling. At 6:09 p.m., the vehicle, an Acura SUV, was located near the intersection of Plunkett Road and Millwick Road. TPS officers attempted to box-in the vehicle, and it reportedly travelled towards the Subject Official (SO), who discharged his service firearm. The bullet did not strike any occupant; it entered the vehicle and lodged itself in one of the doors. There were no injuries; however, there was a motor vehicle collision as a result of the interaction. The three suspects were arrested without incident and transported to 42 Division for continued investigation. A loaded firearm was located within the vehicle, along with numerous stolen items related to the robbery.

The Team

Date and time team dispatched: 2023/12/15 at 7:55 p.m.

Date and time SIU arrived on scene: 2023/12/15 at 8:50 p.m.

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 3

Affected Person (aka “Complainant”):

Complainant #1 20-year-old male; interviewed; medical records obtained and reviewed

Complainant #2 17-year-old male; interviewed

Complainant #3 16-year-old male; not interviewed (declined)

The Complainants were interviewed between December 15 and 16, 2023.

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 Interviewed

The witness officials were interviewed between December 17 and 28, 2023.

The Scene

The events in question transpired on and around a stretch of roadway on Plunkett Road, north of Millwick Drive, Toronto.

Physical Evidence

On December 15, 2023, at 8:50 p.m., SIU investigators arrived at the scene, which was protected by uniformed TPS officers. Plunkett Road was a two-lane roadway aligned in a north-south orientation with residences on each side.

SIU forensic investigators examined a SUV on scene and identified the path of a fired round that had struck it. The round hit the SUV on the front right (passenger) side lower bumper and lodged in the front right tire. See images below.

. .

One spent case was found on the west side of the roadway to the north of the SO’s police cruiser, also found on scene.

Both the round and the spent case were collected by SIU forensic investigators.

On December 16, 2023, SIU forensic investigators collected the firearm, ammunition and magazines issued to the SO.

Forensic Evidence

The items collected by the SIU were submitted to CFS for ballistic examinations. The results of the examinations have not been returned to the SIU as of the completion of this report.

In the scene examination, one cartridge case was found on the road, one spent projectile was found in the vehicle tire, and 12 live rounds were found in the magazine.

Video/Audio/Photographic Evidence[2]

In-car Camera (ICC) Footage from Cruisers of the SO and WO #1

Starting at about 6:04 p.m., December 15, 2023, the SO was operating a police vehicle stopped on Plunkett Road, facing northbound in the southbound lane. WO #4’s vehicle appeared in the northbound lane and stopped slightly in front, leaving a gap between the two vehicles. The SO activated his emergency lights and exited the vehicle. He walked onto the road, approximately three metres in front of the left (driver) side of his vehicle, with his firearm drawn. A male pedestrian[3] walked north on the grass boulevard. A SUV approached from the north travelling south in the centre of the road. The SUV drifted west towards the male pedestrian and the SO, who shuffled towards the curb and yelled, “Put your hands up, put your hands up.”

The SUV travelled in the direction of the SO’s vehicle. WO #4 opened his cruiser door and lifted one leg out of the car. The SUV was within half-a-metre of his car door. The SO fired one round from his firearm at the SUV.

The SUV travelled through the gap between the stopped police vehicles continuing southbound. An unmarked police vehicle, driven by WO #2, followed closely in behind the SUV.

The SUV collided head on into WO #1’s police vehicle, travelling north, resulting in both vehicles’ airbags being deployed.

The SO said, “Shots fired, shots fired, tried to hit my [indiscernible].”

Complainant #2 ran from the rear of the SUV to the east, out of the camera field of view. WO #2 and WO #3 ran after him.

The SO, WO #5 and WO #1 had their firearms drawn and commanded Complainant #1 and Complainant #3 out of the SUV, after which they were subsequently arrested without further incident. Complainant #3 was identified as the driver of the SUV.

At about 6:08 p.m., WO #1 looked under the driver seat of the SUV and found a firearm.

Body-worn Camera (BWC) Footage – The SO and WO #1

WO #1’s BWC started as he drove towards Plunkett Road. He turned onto Plunkett Road at 6:05:03 p.m. A firearm shot was heard after which a SUV travelled into the front end of WO #1’s vehicle. WO #1 exited the driver’s door and carried his long arm rifle. He ordered Complainant #1 and Complainant #3 from the vehicle.

The SO’s BWC started at 6:07:02 p.m. He was standing in front of Complainant #3 and Complainant #1, who were being read their rights.

Starting at about 6:07:40 p.m., the SO said, “I thought he was going to kill me. He was driving to my vehicle.” He then said to Complainant #3, “You tried to kill me, you tried to run me over.” At 6:08:48 p.m., the SO told another police officer, “I thought he was going to kill me. He swerved his car towards me.”

Starting at about 6:10:35 p.m., the SO told a uniformed patrol sergeant he thought he was “about to see the underside of a car, and be flattened, and be really dead”. The sergeant asked how many shots were fired. The SO stated, “Just one. I tried to move out of the way, to stop him from hitting me.”

Starting at about 6:13:42 p.m., the SO told a supervisor, “I thought the guy was going to run me over. I got out of my car, and he was going to ram my car, so I was trying to make it over here [pointing to the far curb]. I thought he was going to run me over and kill me. Like over what?”

Starting at about 6:15:40 p.m., a uniformed sergeant asked the SO which direction he shot. The SO stated towards the driver because he tried to kill him.

Communications Recordings

At 5:15 p.m., December 15, 2023, police received a 911 call from a man reporting an armed robbery at a retail store. A radio operator called for units to attend.

At 5:30:39 p.m., the radio operator began relaying the geographical tracking locations of a stolen cell phone and coordinating crews.

At 6:04:38 p.m., WO #3 indicated the SUV was going south on Plunkett Road.

At 6:04:59 p.m., WO #3 said, “Take them, take them, take them.”

At 6:05:52 p.m., a police officer confirmed the car was stopped.

At 6:06:33 p.m., a firearm discharge was reported.

Materials Obtained from Police Service

The SIU obtained the following records from the TPS between December 16 and 21, 2023:

• Occurrence Report;
• List of involved officers;
• BWC recordings;
• ICC recordings;
• Computer-aided Dispatch Report;
• TPS communications recordings;
• Notes – WO #4;
• Notes – WO #1;
• Notes – WO #3;
• Notes – WO #2;
• The SO - notes excusal;
• Use of Force training records – the SO; and
• TPS policies for arrest and use of force.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on January 2, 2024:

• Complainant #1’s medical records from Scarborough Centenary Hospital.

The evidence collected by the SIU, including interviews with two of the three people inside the vehicle shot by the SO – Complainant #1 and Complainant #2 – and police eyewitnesses, as well as video footage that captured the incident, 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 December 15, 2023, the TPS received a 911 call regarding an armed robbery at a retail store in Scarborough. The suspects had reportedly brandished a knife and gun during the robbery, and made off in an Acura SUV with stolen merchandise, including cell phones. As one of the stolen phones had a geo tracker, the police were able to discern the vehicle’s movements as it travelled west into North York. Multiple TPS vehicles began to converge on the SUV.

The SO, operating a marked police vehicle, was among the officers attempting to locate the Acura SUV. Receiving word that the vehicle was on Plunkett Road, the officer fell in behind another marked police cruiser operated by WO #4 northbound on the roadway. As the cruisers cleared the intersection of Millwick Drive, WO #4 brought his cruiser to a stop by the east side curb. The SO came to a stop by the west curb a short distance behind WO #4’s cruiser. North of their location, travelling southbound on Plunkett Road from Cabana Drive, was the Acura SUV. As it approached the SO’s and WO #4’s cruisers, the Acura drifted into the southbound lane before it straightened and headed for the gap between the cruisers. It had just reached the driver’s door of WO #4’s cruiser when a shot rang out.

The SO, having exited his cruiser and taken a position by the west curb a few metres from the front of his vehicle, had fired the shot.

The Acura continued between the cruisers and collided head-on with another police vehicle. WO #1, operating the vehicle, was approaching the scene from the south attempting to close the gap at the time of the collision. The vehicle’s occupants – Complainant #1, Complainant #3 and Complainant #2 – were taken into custody.

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.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

On December 15, 2023, the TPS contacted the SIU to report that one of their officers had earlier that day discharged his firearm at a vehicle. None of the occupants of the vehicle had been seriously injured. The SIU 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 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 was lawfully placed and in the execution of his duties throughout the series of events culminating in the discharge of his firearm. The officer had cause to believe that the occupants of the Acura had just committed an armed robbery involving a knife and gun.[4] In the circumstances, he was within his rights in doing what he reasonably could, as part of the larger police response to the situation, to assist in taking the Acura’s occupants into custody. This, I am satisfied, included his participation with WO #4 in setting up a police roadblock of sorts on Plunkett Road just north of Millwick Drive.

When the SO exited his cruiser and, shortly after, fired his weapon at the Acura, he did so in self-defence. That is what he said he did in utterances soon after the collision, namely, that he feared for his life when he discharged his firearm, and there is no evidence to contradict his assertion. On the contrary, the circumstantial evidence lends credence to the SO’s claim. Principally, that evidence consists of the Acura heading towards the stopped cruisers on Plunkett Road (placing it in proximity to the SO standing outside his vehicle) and failing to stop.

With respect to the shooting, the evidence falls short of any reasonable suggestion that it was not justifiable force in self-defence. The roadblock established by the SO and WO #4, though a partial one, was a reasonable tactic. With the SO’s emergency lights on, the driver of the Acura would have known that he was approaching police and there was some prospect that he would bring his vehicle to a stop. The SO’s decision to exit his vehicle and position himself in front of the cruiser, gun drawn and pointed at the Acura as it approached his location, is more questionable. That left the SO vulnerable to the dangers of a moving vehicle which, as it turned out, was the impetus for the officer’s gunshot. However, here too the officer’s conduct was not without reason given the possibility that still exited at that point that the Acura would come to a stop. Shooting at a moving vehicle is also questionable given that gunfire is not likely to stop a vehicle in its tracks, not to mention the dangers of a vehicle not in the control of an operating mind. That said, the SO was faced with a difficult decision and only split seconds in which to make it. If he genuinely believed that his life was in danger by the operation of the Acura, and I am satisfied that he did, then incapacitating the driver made sense. This was particularly so if there was reason to believe that the driver might purposefully turn in his direction as he closed the distance with the officer. That contingency was very much a live one in this case. As the ICC video footage indicates, the Acura had briefly turned in the direction of the SO before it straightened out and was shot by the officer. Moreover, as the Acura bore down on the officers’ cruisers and it became clear it was not going to stop, there was every possibility that it would jump the curb to circumvent the blockade, potentially putting it on a collision course with the SO. On this record, I am unable to reasonably conclude with any confidence that the SO acted without the protection of section 34 when he discharged his weapon.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: April 12, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit