SIU Director’s Report - Case # 24-TFP-422

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Mandate of the SIU

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.

Information Restrictions

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.

Mandate Engaged

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 21-year-old man (the “Complainant”).

The Investigation

Notification of the SIU[1]

On October 2, 2024, at 6:27 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

On October 2, 2024, at 4:52 p.m., plainclothes officers with 53 Division Major Crime Unit (MUC) located a vehicle – a Honda Civic – associated with a robbery in an underground parking garage near Yonge Street and Eglinton Avenue East, Toronto. After conducting a cursory investigation, arrangements were made to tow the vehicle for further investigation. At around 5:30 p.m., two males approached the vehicle and were confronted by plainclothes officers. One of the males produced a firearm and shot Witness Official (WO) #1 in the abdomen before he fled the area. As this occurred, the Subject Official (SO) confronted the second male and an altercation ensured. The SO discharged his firearm but missed. The second male was arrested and taken to 13 Division. WO #1 was transported to Sunnybrook Health Sciences Centre (SHSC).

The Team

Date and time team dispatched: 2024/10/02 at 6:40 p.m.

Date and time SIU arrived on scene: 2024/10/02 at 7:19 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

Affected Person (aka “Complainant”):

21-year-old male; interviewed

The Complainant was interviewed on October 3, 2024.

Civilian Witnesses (CW)

CW #1 Interviewed

CW #2 Interviewed

The civilian witnesses were interviewed between October 7, 2024, and October 9, 2024.

Subject Official (SO)

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Not interviewed; notes received and reviewed

WO #2 Not interviewed; notes reviewed and interview deemed unnecessary

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

Evidence

The Scene

The events in question transpired in an underground parking garage near Yonge Street and Eglinton Avenue East, Toronto.

The area of interest ran in a south to north direction on a slight downgrade.

An unmarked police vehicle, a grey Dodge Caravan, was parked at the south end of the lane, at the top of the incline, facing north. There were several other vehicles parked in various spots on either side of the driving lane, ending with a Ford F150 at the north end of the driving lane at the bottom of the incline, facing south.

Several exhibits were located on the driving lane, including: a spent .40 calibre cartridge, a piece of copper jacket, a lead fragment, two white sandals, a Taurus pistol with a light, a pair of gloves, and a lighter. In front of the Ford F150 at the north end, there was a cellular telephone and a second spent silver cartridge. Around the corner, east of the F150, were a pair of handcuffs.

There was a defect in the concrete wall, above the F150 at the north end of the parking garage, that appeared to be a possible bullet strike. The defect was 2.283 metres above the ground. The mark was examined but no projectile was located.

Scene Diagram

Scene Diagram

Physical Evidence[2]

The SIU collected the following physical evidence from the scene:

  • Spent .40 calibre cartridge
  • Copper jacket fragment
  • Lead fragment
  • Glock 22 pistol and magazine
  • 13 x .40 calibre bullets, and
  • Black Hawk holster

Video/Audio/Photographic Evidence[3]

TPS Communications Recordings

Starting at about 4:41:54 p.m., the SO called dispatch and requested a tow truck to an underground parking garage at an address near Yonge Street and Eglinton Avenue East. He and WO #1 had reportedly located a Honda Civic involved in several robberies.

Starting at about 5:29:13 p.m., the SO requested that additional units rush to the scene. The SO said, “We have both the accused.” The remainder of the transmission was inaudible.

Starting at about 5:29:34 p.m., an open microphone captured the sound of a single gunshot.

Starting at about 5:29:50 p.m., the SO yelled, “Shots fired, shots fired.” There was yelling heard in the background. Several units asked to be assigned to the call.

Starting at about 5:30:20 p.m., an officer announced on the police radio the direction of travel of the vehicle that was to be towed.

Starting at about 5:30:38 p.m., the SO advised that WO #1 had been shot in the side and requested an ambulance to the first level of the underground parking garage.

Starting at about 5:31:08 p.m., the SO advised that WO #1 had been shot in the abdomen.

Starting at about 5:31:44 p.m., an officer confirmed that WO #1 had been shot in the stomach and requested an ambulance.

Starting at about 5:32:09 p.m., an officer confirmed that WO #1 was conscious and breathing, and the bullet wound appeared to be a “through and through”.

Starting at about 5:32:19 p.m., an officer aired that the SO had one of the involved males [now known to be CW #1] in custody and the other male [now known to be the Complainant] had fled the scene in a vehicle.

Starting at about 5:32:32 p.m., the dispatcher requested that all available units attend near Yonge Street and Eglinton Avenue East for a police officer-involved shooting.

Starting at about 5:33:23 p.m., an officer advised the firearm involved in the shooting was in a parking spot.

Starting at about 5:34:51 p.m., an officer broadcast that the suspect vehicle was last seen on Soudan Avenue, and not being followed.

Starting at about 5:35:05 p.m., an unidentified police officer said that the person responsible for the shooting had fled the scene in a stolen vehicle and that he [the officer] was in the underground parking garage with a person in custody [now known to be CW #1]. A firearm had been recovered.

Starting at about 5:36:38 p.m., EMS had reportedly arrived on scene.

Video Footage – Underground Garage – Camera #1

The camera was located at the southeast corner of the underground garage.

Starting at about 5:33:05 p.m., the Complainant and CW #1 were captured walking together northbound.

Starting at about 5:33:10 p.m., the Complainant turned around and saw WO #1 running towards them. WO #1 chased the Complainant through the parking lot and out of camera frame. The SO entered the frame and was captured running towards CW #1, carrying a police vest in his left hand. CW #1 put his hands up and kneeled on the ground. The SO kicked him twice and positioned himself on top of CW #1.

Starting at about 5:33:25 p.m., a vehicle [now known to be CW #2’s Toyota] travelled southbound through the parking lot, past the SO and CW #1. The SO got up from the ground, put his police vest on and assisted CW #1 up from the ground. CW #1 was handcuffed with his hands behind his back. While holding onto CW #1, the SO shuffled back towards an unmarked police vehicle [now known to be a Dodge Caravan] and pointed to where he wanted CW #1 to go. The SO went out of frame.

Starting at about 5:34:33 p.m., the SO re-appeared wearing a police vest. He was crouched directly over and in front of CW #1. He said something into the portable police radio in his right hand, turned left, looked back in a northerly direction, and put his portable radio away. The SO reached for his firearm with his right hand. A light could be seen north of his location [now known to be the light attached to the Complainant’s firearm].

Starting at about 5:34:57 p.m., the Complainant was captured running in a southerly direction towards the SO. The light on a firearm he was holding was illuminated and visible. The Complainant ran to his right and out of camera frame. The SO had both arms stretched out in front of his body and was holding his firearm. The light of the Complainant’s firearm was visible on the ground. The SO discharged one round from his firearm.

Starting at about 5:35:15 p.m., a vehicle reversed out of a parking spot [now known to be a Honda driven by the Complainant] and travelled southbound out of camera frame.

Starting at about 5:35:32 p.m., the SO and CW #1 entered the frame. CW #1 was handcuffed with his hands behind his back. The SO had a hold of him. He put CW #1 on his stomach on the ground. The SO re-holstered his firearm.

Starting at about 5:36:28 p.m., WO #1 walked in a southerly direction. A police officer walked towards him and escorted him towards the exit.

Starting at about 5:38:13 p.m., the officer walked to the firearm with the light on, on the ground. He did not touch the firearm.

Starting at about 5:41:43 p.m., the SO assisted CW #1 from the ground and brought him to the unmarked police vehicle.

Video Footage - Underground Garage – Camera #2

The camera was located in the northwest corner of the underground parking garage.

Starting at about 5:32:59 p.m., two men – the Complainant and CW #1 - walked around the far-left corner. Two other males [now known to be WO #1 and the SO] got out of a Dodge. The SO ran towards CW #1 with a police vest in his left hand. The SO positioned himself on top of CW #1 and handcuffed him behind his back. WO #1 chased the Complainant on foot northbound through the parking lot. The Complainant’s shoes fell off as he ran.

Starting at about 5:34:01 p.m., WO #1 was on the bottom left of the screen, holding the Complainant’s neck in a headlock and pulling him towards him.

Starting at about 5:34:16 p.m., the SO put his police vest on. He rolled CW #1 on his side and then assisted him to a standing position. CW #1 was handcuffed behind his back. The SO shuffled as he walked with CW #1 towards an unmarked police vehicle [now known to be a Dodge Caravan].

Starting at about 5:34:56 p.m., the Complainant was seen running in a southerly direction through the underground parking lot.

Starting at about 5:35:03 p.m., the Complainant dropped a flashing light [now known to be a handgun with a strobe light attached] and ran out of camera view.

Starting at about 5:35:15 p.m., a vehicle [now known to be the Honda driven by the Complainant] reversed out of a parking space.

Starting at about 5:36:03 p.m., WO #1 was captured walking in a southerly direction, holding his abdomen with his left hand and his right hand appearing to holster his firearm. WO #1 walked towards the SO and the unmarked police vehicle.

Starting at about 5:36:34 p.m., a police officer entered the frame and approached WO #1. They walked towards the exit.

Starting at about 5:38:13 p.m., a police officer ran in a southerly direction and then walked over to an object [now known to be firearm] that was flashing. He did not touch the firearm.

Video Footage - Underground Garage – Camera #3

The camera was located in the northwest corner of the underground parking garage.

Starting at about 5:32:26 p.m., a Toyota Corolla was captured parked, front end towards a wall. A person - CW #2 - entered the Toyota and reversed from the parking spot. He drove the Toyota towards a parking spot where a white Ford F150 was parked.

Starting at about 5:33:18 p.m., the Complainant ran in front of the Corolla and was struck. The Complainant tumbled forward, collided with the Ford F150 and fell to the ground. He was being chased by WO #1.

Starting at about 5:33:23 p.m., the Complainant was captured lying motionless on the ground. WO #1 took control of the Complainant. He got on top of him and put the Complainant’s right arm behind his back. The Complainant dropped his cellular telephone on the ground beside his head. WO #1 rolled the Complainant onto his stomach and retrieved his handcuffs with his right hand. The Complainant started to resist and roll himself. The Complainant and WO #1 struggled.

Starting at about 5:34:27 p.m., while on the ground with WO #1, the Complainant reached into his waistband area on the right side. WO #1 was on top of the Complainant, trying to control him. There were several flashes of light [now known to be from the light attachment on the Complainant’s firearm] from under their bodies.

Starting at about 5:34:50 p.m., WO #1 rolled onto his back holding the left side of his abdomen. The Complainant stood and fled. He had a firearm in his right hand. WO #1 was on the ground, lying on his back and looking at his lower left abdomen area.

Starting at about 5:34:58 p.m., WO #1 took out his firearm with his right hand, while lying on his back, and pointed it his right. He stood up and walked out of the camera view.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the TPS between October 3, 2024, and November 1, 2024:

  • List of involved officers
  • Communications recordings
  • Notes – WO #3 and WO #2, and WO #1
  • General Occurrence Report
  • Event Details Report
  • TPS History - the Complainant
  • TPS scene photos

Materials Obtained from Other Sources

The SIU obtained video footage from the underground parking garage on October 10, 2024.

Incident Narrative

The evidence collected by the SIU, including interviews with civilian witnesses and video footage that captured the incident, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.

In the afternoon of October 2, 2024, the SO and his partner, WO #1, were investigating a series of robberies and looking for a stolen Honda Civic associated with the crimes. They located the vehicle parked in the underground parking of a building near Yonge Street and Eglinton Avenue East, Toronto. They spoke to people at the building and confirmed that individuals connected with the Civic were also implicated in the robberies under investigation. The officers sealed the vehicle’s doors and arranged to have a tow service remove it to a secure location. As they waited in an unmarked van parked south of the Civic’s location for the tow operator to arrive, the officers noticed two males making their way towards the Civic – both suspects in the robberies.

The Complainant and CW #1 were the males. As they neared the Civic, they were confronted by the SO and WO #1. The officers had emerged from the van in plainclothes. The SO was holding a police vest in his left hand as he approached CW #1. CW #1 dropped to his knees as directed and was handcuffed by the officer. The Complainant ran from WO #1. Unknown to the officer at the time, the Complainant had a handgun in the area of his right waistband.

WO #1 ran northwards after the Complainant and watched as he was struck by a vehicle making its way towards the parking exit. The impact sent the Complainant tumbling into the front end of a pick-up truck parked facing south. WO #1 took hold of the Complainant on the ground and brought his arms behind the back. The Complainant freed his arms from the officer’s hold and attempted to stand up. There followed a struggle in which the parties grappled with each other for upwards of a minute – the Complainant attempting to break loose of WO #1’s hold, and WO #1 trying to keep him on the ground. As the parties wrestled, the Complainant retrieved his firearm with his right hand. Moments later, with the officer front-first on the Complainant’s back, the two still on the ground, the Complainant’s gun discharged. WO #1 rolled off of the Complainant, his left hand holding his lower left abdomen where he had been shot.

The Complainant rose to his feet and started to run southward towards the Civic. As he neared the Civic, the Complainant dropped the gun and turned to the right in the direction of the driver’s side of the vehicle. At about the same time, the SO fired a shot in his direction. The Complainant entered the Civic, reversed out of the parking spot, and fled the scene. He would later turn himself in to police.

The SO was by the front of the police van dealing with CW #1 when he observed the Complainant running in his direction and discharged his weapon. The bullet missed the Complainant.

Relevant Legislation

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.

Analysis and Director’s Decision

On October 2, 2024, the TPS notified the SIU that one of their officers had fired his gun at a male. The SIU initiated an investigation and identified the SO 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 discharge of his firearm.

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 and WO #1 had evidence that the stolen Civic was connected with the robberies they were investigating. They also had evidence that the Complainant and CW #1 were associated with the Civic and the robberies. On this record, I am satisfied the officers were within their rights in seeking to take the pair into custody.

I am also satisfied that the SO fired his weapon to defend himself from a reasonably apprehended assault at the hands of the Complainant. Though the SO did not provide any firsthand evidence to this effect, as was his legal right, the circumstances surrounding his use of force naturally give rise to the inference - a male wanted on violent crimes, and desperately attempting to evade arrest, running in his direction holding a firearm. There is also evidence that WO #1 called out to the SO about a gun moments after he had been shot, and that the SO would have been aware of his partner’s warning as the Complainant ran in his direction. The fact that the SO appears in the video footage to have fired a split-second after the Complainant dropped his firearm on the ground does not, in my view, disqualify the officer from the defence. If the SO’s life was no longer strictly at risk the exact moment he pulled the trigger, his apprehension of a lethal threat remained a reasonable one in light of the fraught situation in which the officer found himself and the allowance that must be made for the delay inherent in reaction time.

Finally, the shot fired by the SO constituted, in my view, reasonable force in self-defence. If the officer believed that his life was in danger because of the advance of the Complainant and the gun in his hands, an apprehension supported by the evidence, than it would appear he had little option but to resort to the immediate stopping power that only gunfire could provide if he was going to preserve himself. Withdrawal or retreat were not realistically available to the officer given the speed with which events were unfolding.

For the foregoing reasons, I am satisfied that the use by the SO of his firearm fell within the protection of section 34. As such, there is no basis for proceeding with criminal charges against the officer. The file is closed.

Date: January 30, 2025

Electronically approved by

Joseph Martino

Director

Special Investigations Unit

Endnotes

  • 1) Unless otherwise specified, the information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s findings of fact following its investigation. [Back to text]
  • 2) It should be noted that a projectile was not located. There was a defect above a Ford F150 at the north end of the parking garage that appeared to be a bullet strike. [Back to text]
  • 3) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]

Note:

The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.