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: 

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 a serious injury sustained by a 34-year-old man (the “Complainant”).

Notification of the SIU

On January 20, 2021 at 3:15 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury. The TPS advised that on January 20, 2021 at 12:16 a.m., TPS police officers were called to a domestic complaint involving the Complainant. The Complainant fled the area. He was found by police and there was an interaction between TPS police officers and the Complainant. The Complainant was taken to the ground and arrested. The Complainant told police his nose was injured. He was transported by ambulance to Toronto Western Hospital. At the hospital, the Complainant was diagnosed as having suffered a broken nose. The Complainant was subsequently released from hospital back into the custody of TPS.

The Team

Date and time team dispatched: 01/20/2021 at 1:12 p.m.

Date and time SIU responded: 01/20/2021 at 2:10 p.m.

Number of SIU Investigators assigned: 2

Affected Person (aka “Complainant”):

34-year-old male interviewed

The Complainant was interviewed on January 20, 2021.

Subject Officials

SO Interviewed, and notes received and reviewed

The subject official was interviewed on February 4, 2021.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed

The witness officials were designated as witness officials on January 20, 2021, and three were interviewed when they were back on duty on January 26, 2021. The fourth witness official was on leave and was not interviewed until February 12, 2021.

The Scene

The scene was located on the sidewalk, on the west side of Dufferin Street, roughly 75 metres south of Dundas Street West.

Video/Audio/Photographic Evidence [1]

Communications Recordings

The recordings were made on January 20, 2021, and captured the following:

At 12:00 a.m., the TPS received a 911 call from a woman regarding a domestic disturbance with the Complainant. The Complainant was alleged to have broken the windshield of her vehicle in a parking lot on Dundas Street West. When she called, the Complainant was standing outside of her vehicle. The 911 caller provided a description of the Complainant, his name, and his address.

At 12:02 a.m., the call was dispatched to multiple police units. The police dispatcher provided updates from the call-taker. The call-taker continued to talk to the 911 caller until the responding police officers arrived.

At 12:04 a.m., the 911 caller said the Complainant was no longer outside of her vehicle, but that she did not know where he was or where he went, other than she believed he did not go back into the building. She believed the Complainant was in possession of a knife. The dispatcher relayed to the responding police officers the information about the Complainant being possibly armed with a knife.

At 12:08 a.m., the 911 caller saw police vehicles arriving at the building. A patrol sergeant was notified of the radio call. WO #1 asked for an updated description and direction of travel of the Complainant. An Emergency Task Force unit came onto the channel.

At 12:10 a.m., a police officer said he was with the 911 caller and, at 12:11 a.m., WO #1 said he and WO #2 were in the area searching for the Complainant.

At 12:13 a.m., WO #1 asked if the description of the Complainant included a black hat.

At 12:14 a.m., at the request of a police officer, the dispatcher repeated the description of the Complainant and began with, “male, black.” There was a transmission apparently from WO #1 with the sounds of a struggle.

At 12:16 a.m., the SO notified the dispatcher he was on scene and that everything was in order; he requested an ambulance.

At 12:26 a.m., the SO said the ambulance was on scene.

The SO’s Body Worn Camera (BWC) footage

The recordings were made on January 20, 2021, and captured the following:

At 12:13:13 a.m., the video commenced. The SO was driving eastbound on Dundas Street West and approached a red light at the intersection of Dufferin Street. A TPS SUV cruiser [now known to be operated by WO #2] was stopped northbound on Dufferin Street at the intersection. The SO drove slowly southbound where there was a row of houses on the west side of Dufferin Street which were very close to the road.

At 12:13:24 a.m., a person dressed in dark clothing [now known to be the Complainant] was walking southbound on Dufferin Street on the west sidewalk to the right of the SO. The SO drove alongside and then past the Complainant.

At 12:13:32 a.m., the SO stopped in the southbound curb lane against the west curb and got out.

At 12:13:34 a.m., the audio commenced. The SO walked back towards the rear of his police cruiser and said, “Hey my friend, how’s it going?” The Complainant was walking southbound in front of a house [now known to be 598 Dufferin Street]. He was wearing a dark hat, dark coat, dark pants, and dark footwear. The Complainant was in the centre of the sidewalk. He was looking down at a cell phone he was holding with both hands in front of him. The Complainant stopped walking about even with the rear of the SO’s police cruiser. He turned counterclockwise to face the SO and put his cell phone in his right front jacket pocket. The Complainant had no visible injury. The SO stepped behind his police cruiser towards the Complainant and asked the Complainant his name. He appeared to stand on the roadway, facing the Complainant, who was on the sidewalk and therefore slightly higher than the SO. There appeared to be a metre or two separating the Complainant and the SO. The Complainant said his name was “John”. The SO asked the Complainant where he lived and the Complainant turned his head to the north and said, “Over there…at [redacted].” The SO asked the Complainant to clarify the address. The Complainant did. The SO asked what apartment number the Complainant lived in and the Complainant responded. The SO asked the Complainant where he was heading to and the Complainant said he was “just taking a walk”.

At 12:13:59 a.m., the SO was in front of and facing the Complainant. He asked the Complainant to “come with me for a sec”. The SO turned slightly to his right. WO #1 was visible three or four metres to the north, in front of 598 Dufferin Street, standing casually in about the centre of the sidewalk. WO #2 had exited the police cruiser which was parked five or six metres behind the SO’s cruiser. WO #2 slowly approached and stood in the lane in front of his police cruiser. The Complainant took a step north and said quickly, “What’s the problem? What’s the problem?” WO #1 took a few steps closer. WO #1’s BWC was recording. The SO said, “It’s this guy,” and the Complainant repeated, “What’s the problem?”

At 12:14:03 a.m., WO #1 reached with his right hand towards the Complainant’s left arm which was down by the Complainant’s left side. The SO asked the Complainant if he got into a fight with his girlfriend. The Complainant said he “never touched nobody or did nothing to nobody. What’s the problem?”

At 12:14:08 a.m., the SO told the Complainant to put his hands behind his back. WO #1 moved directly to the left side of the Complainant, took hold of the Complainant’s left arm, and began to move the Complainant’s left arm behind the Complainant’s back. The SO took hold of the Complainant’s right wrist with his left hand, and the Complainant’s right upper arm with his right hand. The SO moved the Complainant’s right wrist from the Complainant’s right hip area towards the centre of his back and towards where WO #1 moved the Complainant’s left arm, at about the level of the Complainant’s waist. WO #1 took hold of the Complainant’s right forearm with his right hand. The Complainant appeared compliant.

At 12:14:14 a.m., the Complainant pulled away from the SO and WO #1, and took a couple of steps to the north. The SO and WO #1 had been in the process of handcuffing the Complainant for about four seconds. WO #2 stepped in and the SO, WO #1 and WO #2 struggled with the Complainant, all while standing on the sidewalk and in the curb lane behind the SO’s police cruiser. The Complainant said two or three times, “Get the fuck off me.”

At 12:14:20 a.m., while the SO, WO #1, WO #2 and the Complainant were standing on the sidewalk struggling, the SO delivered one closed-fisted strike with his right hand to the left side of the Complainant’s face. The Complainant said, “You gonna punch me? Punch me again. You fuck.”

At 12:14:26 a.m., the SO, WO #1 and the Complainant went down towards the ground to the west on the sidewalk. WO #1 was on the Complainant’s right side and the SO was in about the centre of the Complainant’s back. The SO, WO #1 and WO #2 had struggled with the Complainant for about 12 seconds while standing, until the struggle went towards the ground. The SO’s right hand was on the back of the Complainant’s head and the collar of the Complainant’s jacket behind the Complainant’s head. With the Complainant down towards the ground the police officers continued to attempt to gain control of the Complainant. The Complainant said, “You broke my fucking nose, motherfucker.” He was not fully lying on the ground.

The police officers repeated commands for the Complainant to put his hands behind his back. The Complainant continued to thrust his body upwards. The SO told the Complainant he was going to get hit again. With his hand, WO #1 held the Complainant’s head down on or near the ground. The SO told the Complainant to stop resisting. The Complainant was perpendicular to the sidewalk with his feet to the east towards Dufferin Street. The Complainant’s head was on or very close to a raised concrete curb with short bushes lining the front lawn of 598 Dufferin Street.

At 12:15:23 a.m., the SO told the Complainant to relax as the SO, WO #1 and WO #2 struggled to handcuff him.

At 12:15:33 a.m., the SO, WO #1 and WO #2 had struggled on the ground with the Complainant for about a minute until the handcuffs were applied. Two more police officers [now known to be WO #3 and WO #4] were standing near the Complainant’s feet. One of the police officers said the Complainant was bleeding and the SO said the Complainant, “Fell onto this thing when we took him down.”

At 12:16:05 a.m., the SO requested the dispatcher send an ambulance.

At 12:16:51 a.m., the Complainant was assisted to his feet by WO #2 and WO #3. The Complainant looked around at the police officers and said, “Who punched me?” He then looked directly at the SO and said, “Look what you did to me.” The Complainant had blood coming from his nose and in the area of his mouth. The SO said, “That’s from you landing on the thing” (referring to the brick lined garden).

At 12:19:30 a.m., the Complainant was placed in the back of WO #1 and WO #2’s cruiser.

At 12:20:30 a.m., the SO tended to his right hand. He later indicated his knuckles were sore and showed a laceration and blood on the centre knuckle.

At 12:20:58 a.m., the SO spoke to WO #3 and WO #4 about blood on the ground where the Complainant’s head had been and said the Complainant’s head “went right on there”.

At 12:25:00 a.m., the ambulance arrived. Two seconds later, the Complainant was walked from the police cruiser to the ambulance and went inside.

WO #2’s BWC footage

The recording was made January 20, 2021, and captured the following:

At 12:13:57 a.m., the video commenced. WO #2 was outside of the cruiser approaching the SO and the Complainant. WO #1 was just ahead of WO #2 on the sidewalk and walking casually towards the SO and the Complainant. The SO, with his right hand tucked inside the front of his body armour vest, took hold of the Complainant’s right wrist.

At 12:14:00 a.m., the Complainant turned from facing east in front of the SO counterclockwise to face north and took three steps to the north with the SO still holding his right wrist. WO #1 stopped on the left side of the Complainant.

At 12:14:04 a.m., the Complainant stopped. The SO held the Complainant’s right wrist and WO #1 took hold of the Complainant’s left arm in the area of the Complainant’s left elbow.

At 12:14:08 a.m., the SO took hold of the Complainant’s right arm with both hands and WO #1 took hold of the Complainant’s left arm. The SO and WO #1 moved the Complainant’s arms behind his back. The Complainant stood still as the SO and WO #1 had his hands behind his back. The Complainant pulled his arms away from the SO and WO #1 and moved to the north. WO #2 stepped in to assist the SO and WO #1.

At 12:14:26 a.m., the Complainant went to the west, down to his knees. The Complainant was face down with WO #1 on top of him and to the Complainant’s right side. The SO was above WO #1 and to the left. The SO, WO #2 and the Complainant were not entirely on the ground. WO #1 attempted to take hold of the Complainant’s right arm. The Complainant pulled his right arm out of the grasp of WO #1. The SO appeared to have a hold of the Complainant’s left wrist. The Complainant would not give up his right hand. WO #2 placed one handcuff on the Complainant’s left wrist.

At 12:15:18 a.m., WO #3 and WO #4 approached. A police officer asked if the Complainant was “cuffed” and someone said, “Yes.”

At 12:16:10 a.m., the Complainant was assisted to a seated position. WO #2 searched the Complainant’s left side and removed a pair of orange-handled scissors from the Complainant’s jacket pocket. WO #2 placed the scissors on the ground. The Complainant was walked to the front of a police vehicle. WO #2 searched the Complainant’s left side. The Complainant was placed in the rear seat of the police cruiser of WO #1 and WO #2, and told he was being video, and audio recorded. WO #2 discussed the transport of the Complainant to the hospital.

WO #1’s BWC footage

The recording was made on January 20, 2021, and the majority of WO #1’s BWC footage was identical to that of the SO in relation to the interaction with the Complainant, except that the BWC of WO #1 provided a different perspective than that of the SO’s BWC during the physical interaction with the Complainant.

The material events in question are clear thanks to video footage captured by the BWCs of the involved officers, and statements from the Complainant, the SO and two other officers who participated in the Complainant’s arrest. At about midnight of January 20, 2021, a woman called 911 to report a disturbance. The woman indicated that she had been in an argument with her boyfriend – the Complainant – in a parking lot on Dundas Street West. According to the woman, the Complainant had tried to pour hot water on her and was presently punching and damaging her vehicle with her inside. She indicated that the Complainant was possibly armed with a knife. Officers were dispatched to investigate.

The SO, in a marked police SUV, arrived in the area, in and around the Dufferin Street and Dundas Street West intersection. As other officers tended to the woman, the SO attempted to find the Complainant, who had reportedly left the scene. At about 12:13 a.m., the SO located the Complainant. He was walking south on the west sidewalk of Dufferin Street approximately 70 metres south of Dundas Street West. The officer stopped his cruiser in the curb lane ahead of the Complainant, exited and walked to the rear of his cruiser.

As the Complainant approached the rear of the SO’s cruiser, looking down at his cell phone, he was asked for his name by the officer and responded, “John.” He told the SO that he was out for a walk, denied the SO’s suggestion that he had just been in a fight with his girlfriend, and asked what the problem was. The SO, assisted by WO #1, who had just arrived on scene with his partner, WO #2, in their cruiser, proceeded to take hold of the Complainant’s arms and bring them around his back.

Within seconds of the officers grabbing the Complainant’s arms, he yanked his right arm free of the SO’s grasp and attempted to flee northward. He was only able to advance a step or two before his progress was halted by the three officers, who grappled with the Complainant as he attempted to break free. The Complainant turned toward the SO at one point and was punched twice to the face by the officer. The Complainant was then forced to the ground where his face appeared to strike the ledge of a small wall bordering the front of the property at 598 Dufferin Street. The struggle continued for a brief period on the ground before the Complainant’s hands were handcuffed behind his back. The time was about 12:16 a.m.

The Complainant was lifted to his feet and placed in the rear of WO #1 and WO #2’s cruiser where he waited for the arrival of paramedics. He was taken from the scene to hospital and diagnosed with a broken nose.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

Section 29, Criminal Code - Duty of person arresting

(a) the process or warrant under which he makes the arrest; or

(b) the reason for the arrest.

On January 20, 2021, the Complainant suffered a serious injury in the course of his arrest by TPS officers in Toronto. One of the arresting officers – the SO – was identified as a subject official for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. The SO, WO #1 and WO #2 were aware via the information received on dispatch that the Complainant had reportedly just damaged his girlfriend’s vehicle in the course of a quarrel. In the circumstances, I am satisfied that the Complainant was subject to arrest.

The issue arises whether the Complainant’s arrest, though based on reasonable and probable grounds to believe that he had committed an offence, was nonetheless unlawful pursuant to section 29 of the Criminal Code. The provision provides, in part, that “[i]t is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of the reason for the arrest.”

It is arguable whether the SO complied with section 29. On the one hand, it does not appear from the BWC footage that the officer advised the Complainant of the specific offence for which he was being taken into custody before the altercation began. On the other hand, the SO did indicate, just before he asked the Complainant to put his hands behind his back, that the officers’ involvement had to do with the Complainant’s fight with his girlfriend. Shortly after that, the Complainant started aggressively resisting, suggesting it was not feasible for the officer to further particularize the reason for arrest until he was under control. In any event, as section 29(3) explicitly states that failure to comply with section 29 does not deprive the person making the arrest of protection from criminal responsibility, I am unable to reasonably conclude that the SO was not in the execution of his lawful duty for purposes of the section 25(1) analysis. The issue turns to the propriety of the force used by the SO in effecting the Complainant’s arrest.

In my view, there is insufficient evidence to reasonably establish that the force used against the Complainant was excessive. While the two punches delivered by the SO, soon after the struggle broke out and with two other officers present and assisting, were perhaps at the upper end of what was permissible in the circumstances, I am not satisfied on reasonable grounds that the force crossed the line. The law does not require police officers embroiled in volatile situations to measure their responsive force to a nicety; rather, in recognition of the dynamism of these encounters, what is required is a reasonable response, not an exacting one: R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA); R v Nasogaluak, [2010] 1 SCR 206 . The Complainant’s girlfriend told the police that the Complainant was probably in possession of a knife, which the SO was aware of. More importantly, at the time the strikes occurred, the SO’s BWC showed the Complainant was squared off with the officer and restrained by WO #1 and WO #2. It appeared as if the Complainant was struggling toward the SO. While I do not necessarily believe the Complainant was going to attack the SO (he may have just been trying to escape the two officers who held him by struggling in the subject official’s direction), that assessment is made with the privilege of time. The SO had to make a snap judgment, and I do not believe that his fear that he was going to be hit or shoved was unreasonable. In this context, I am not persuaded that the two punches, struck in quick succession in response to a reasonably apprehended assault, fell afoul of the latitude of justifiable force in the circumstances.

As for the takedown, in the course of which it appeared the Complainant struck his face on a raised curb bordering a nearby garden, I am unable to fault the officers for the grounding given the Complainant’s intent to escape and level of resistance. Moreover, while it may well be that the Complainant suffered his fracture at this time, the evidence does not reasonably establish that the takedown was unduly forceful or executed carelessly with respect to the location of the curb.

For the foregoing reasons, there are no reasonable grounds to believe that the SO conducted himself other than within the confines of the criminal law. Accordingly, there is no basis for proceeding with criminal charges against the officer, and the file is closed.


Date: May 20, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit