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 26-year-old man (the “Complainant”).

Notification of the SIU[1]

On December 24, 2023, at 3:20 a.m., the York Regional Police (YRP) contacted the SIU with the following information.

On December 24, 2023, at 1:52 a.m., a woman [later identified as Civilian Witness (CW) #1] reported a home invasion in progress at her residence located in the area of Martin Grove Road and Woodridge Avenue, Vaughan. She indicated that three men with handguns had come into the home. YRP officers arrived on scene at 1:57 a.m. Among them was the Subject Official (SO), who fired his service pistol three times. Two of the three men fled, and the other was arrested after a struggle. The arrested man [later identified as the Complainant] did not sustain any serious injury.

The Team

Date and time team dispatched: 2023/12/24 at 4:01 a.m.

Date and time SIU arrived on scene: 2023/12/24 at 6:43 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

26-year-old male; not interviewed (declined)

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

The civilian witnesses were interviewed on December 24, 2023.

Subject Official

SO Declined interview, as is the subject official’s legal right; notes received and reviewed

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed on January 16, 2024.

The Scene

The events in question transpired inside a residence in the area of Martin Grove Road and Woodridge Avenue, Vaughan.

The front door of the residence had been breached. The edge of the door was damaged, and the door frame broken at the latch plate for the deadbolt.

On the floor inside the main entrance, six cartridge cases were found. Traffic pylons had been placed beside the cartridge cases to mark their location and prevent them from being moved. The pylons were placed by the attending police service after the incident.

Across from the entry door, defects were seen in the wall, doorframe, and door face of the laundry room. Impact damage was also seen to a washing machine and dryer in the room. A further defect was seen on the wall of the hall.

A black and brown-coloured semi- automatic pistol was lying on the floor in the vicinity of the kitchen. This was reportedly dropped by one of the suspects.

At the rear of the home, a blue and yellow Walmart bag was on the ground outside an open window that accessed a basement room. The bag contained pry bars, screwdrivers, and other hand tools.

Overall photographs of the residence and exterior were taken.

Physical Evidence

Six cartridge cases were marked and documented by a SIU forensic investigator. These were all .40 S&W cartridge cases.

Two projectiles, one fragmented, were recovered from the laundry room.

A copper jacket of a fragmented projectile was located at the front of the washer.

A deformed copper and lead projectile was in clothing in the dryer after it penetrated the side of the dryer and passed through the frame.

Additional projectile impacts had damaged the wall, door frame and outer panels of the laundry room door, as well as an additional impact to the side of the dryer, which had not penetrated through. One additional impact struck the wall beside the doorway leading from the hall into the kitchen.

During the examination and secondary search, a single shoe, believed to have been dropped by a home invader, gloves, and recovered cellular phones were located inside the home. These items were collected by YRP, as was a bag with tools from outside the rear window, while the SIU collected the cartridge cases and projectiles / fragments.

The SIU took possession of the SO’s service pistol and duty belt with additional items, including expandable baton, oleoresin capsicum spray, conducted energy weapon, handcuffs, and additional magazines with ammunition.

The attached magazine contained nine rounds of ammunition with one additional round in the chamber. The spare magazines each contained a full load of 15 rounds of ammunition. The scene exam indicated six rounds had been discharged. This constituted a full complement of 46 rounds carried by the SO.

The SO’s firearm was a Glock, model 22 .40 calibre pistol.

Figure 1 – The SO’s firearm and magazine

On December 26, 2023, the SIU was advised by YRP that two additional projectiles had been recovered from the laundry room area. One was located in the laundry room door and the other in a pillow that was on top of the dryer. The two outstanding projectiles were lodged inside the frame of the dryer and in a support column in the wall beside the kitchen doorway.

Video/Audio/Photographic Evidence[2]

Police Communications Recordings – 911

On December 23, 2023, at 1:52 a.m., a woman called 911 to report a robbery and home invasion in progress at a residence in the area of Martin Grove Road and Woodridge Avenue, Vaughan. Someone had entered the house and tried to rob them [now known to be the residence of CW #1 and her family].

At 1:53 a.m., on the open line, someone was heard saying, “Give me the phone. Where is the money?” The line remained open.

At 1:53 a.m., an unidentified male said, "Do not move." Someone could be heard through the open line moving around. An unidentified male was then heard saying, “Why are you moving? Why are you moving?” The unidentified male said something about money and a female said, “That’s all I have.”

Police Communications Recording - Radio

The police dispatcher asked for any available units to attend the residence and reported hearing on the open 911 line someone saying, “Give me the phone, where’s the money,” and, “Do not move.”

The SO advised he was en route and had seen a black vehicle driving away from the area at a high rate of speed. Approximately five minutes later, the SO reported, “Shots fired,” and, “I have one male in a closet area and another towards a back room.”

WO #2 reported he was on scene and the SO announced that “we are not sure where these males are”. The SO advised “There was a firearm on one of these individuals that was at the back of the house heading towards the back yard.”

An unknown male officer in the residence reported over the air, “I got a firearm in here, near the kitchen.”

At approximately nine minutes into the recording, the SO advised that police officers had one person in custody in the garage [later known as the Complainant].

Several unidentified officers reported over the air that they could still hear someone else running northbound in the wooded area behind the residence. WO #2 advised police officers that, as the suspect might be armed, officers were to set up a perimeter and await the arrival of Emergency Response Unit. WO #1 advised that, according to a family member, only two suspects entered the residence and that no officers or family members in the residence were injured. WO #2 advised that Emergency Medical Services was only required for the Complainant as he was injured “as a result of the struggle”.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the YRP between December 24, 2023, and March 17, 2024.

• Computer-aided Dispatch Report;
• Witness List;
• General Occurrence Report;
• In-car camera footage;
• Police communications recordings;
• Notes – WO #2;
• Notes – WO #3; and
• Notes – WO #1.

The evidence collected by the SIU, including interviews with civilian eyewitnesses and police present at the time of the events in question, gives rise to the following evidence. As was his legal right, the SO did not agree an interview with the SIU. He did authorize the release of his notes.

Shortly before 2:00 a.m., December 24, 2023, the YRP received a 911 call from a residence in the area of Martin Grove Road and Woodridge Avenue, Vaughan. A resident of the address – CW #1 – had called police to report a home invasion in progress. Moments earlier, a male had entered the home through the front door wearing a ski mask. He had briefly taken another female resident of the home by the neck and threatened her with a small statue before fleeing through the front door. A family member locked the door behind him. At about the same time, two other intruders, also wearing masks, made their way up from the basement onto the main floor and confronted the home’s occupants. One of them was visibly armed with a handgun. He had noticed CW #1 on the phone (with 911) and took it away from her. CW #1 and the rest of her family – about a half-dozen in the house – were ordered to the second floor.

The intruders demanded that the family tell them where the money was. One of them threatened to kill the family if they did not cooperate. A bedroom was ransacked. When it appeared that one of the family members was having a panic attack, another family member – CW #1 – was allowed to go to the main floor kitchen to get some water accompanied by the intruders. She was in the kitchen at the rear of the house when someone broke through the locked front door.

That someone was the SO. He and WO #1 were the first to arrive at the scene. Hearing screams from within the residence and deciding they needed to act, the SO body-checked the door several times before it swung open. Entering first through the door’s threshold, his firearm drawn, the officer observed both intruders ahead of him by a staircase pillar. One of them was holding a handgun. He called-out to them as they ran away. A voice from the second-floor was heard yelling that his family member – CW #1 – was in harm’s way. The SO fired in the direction of the intruder fleeing down the hallway towards the kitchen. He then fired several times as the other intruder – the Complainant – ran across the hallway towards the interior access door to the garage.

In total, the SO discharged six rounds. There is no indication that anyone was struck.

The intruder who fled towards the kitchen exited through rear doors and made good his escape. He discarded his firearm inside the house before he left. The gun was later recovered by investigators.

The Complainant attempted to conceal himself in the garage between a parked car and wall. He was found in that location minutes later by the SO, who had been joined in the search by another officer arriving on scene – WO #2. Following a short struggle on the ground, in which he resisted arrest and was punched multiple times by the SO and WO #2, the Complainant was handcuffed behind the back and 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 24, 2023, the YRP notified the SIU that one of their officers had earlier that day fired his pistol at suspects in a home invasion in Vaughan. 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 that culminated in the discharge of his firearm. Knowing that CW #1 and her family members were under attack inside their home, the SO was duty-bound to do what he reasonably could in the circumstances to prevent harm coming to the residents. Forcing entry into the home fell clearly within the officer’s prerogative at the time.

Though the SO did not avail himself of a SIU interview, as was his legal right, I am satisfied that the officer fired his weapon believing it was necessary to protect the residents, and he and his partner, from a risk of grievous bodily harm or death. The officer knew that intruders had invaded the home. The screams he heard coming from within the home confirmed they were still there. He would also have had good reason to believe that the intruders were armed. On this record, having come face to face with the intruders as he entered the home, it is apparent that the SO acted to protect himself and those around him from a real and present danger.

I am also satisfied that the officer’s gunfire constituted reasonable defensive force. The SO’s life, the life of his partner – WO #1, and the lives of the home’s occupants were at imminent risk the moment the officer entered the home and found himself within metres of the intruders, one of whom was holding a gun. The officer could not be sure precisely where the family were but he knew they were nearby and that one of them was particularly at risk. In the circumstances, I am unable to reasonably conclude that the SO acted precipitously or with excess when he fired at the intruders. Though he had only seen one gun, the officer had every reason to believe that the other intruder – the Complainant – was also armed with a weapon. He could also not be sure where the intruders were running when he fired his gun, that is, whether they were running towards family members. In the circumstances, it was imperative that both intruders be immediately incapacitated, and only a firearm had the stopping power required to meet the exigencies of the moment.

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

Date: April 22, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit