Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release 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 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• Subject Officer name(s);
• Witness Officer name(s);
• Civilian Witness name(s);
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the injury that a 28-year-old man (the “Complainant”) suffered.

Notification of the SIU

On February 2, 2020, at 10:31 p.m., of the Toronto Police Service (TPS) notified the SIU of the following.

On February 2, 2020, at 4:38 p.m., the TPS Emergency Task Force (ETF) executed a search warrant at an address on Marengo Drive in connection with the kidnapping of a York University student a few weeks prior. As a result, three persons were arrested. Two of the parties, Civilian Witness (CW) #2 and CW #3, were transported to TPS 32 Division. The third party, the Complainant, was transported to the North York General Hospital (NYGH), where he was diagnosed with a fractured T1 vertebra and fractured left orbital bone. The Complainant was then transferred to St. Michael’s Hospital (SMH) for further medical treatment.

The Scene

The incident occurred in the rear fenced-in yard of an address on Marengo Drive, Richmond Hill. The scene was secured by the SIU, examined and photographed.

The gate to gain access into the backyard was located on the west side of the residence and contained signs of forced entry. Leading into the backyard were several footprint impressions in the snow, indicating the presence of multiple persons. On the north side of the residence was a small porch leading to a rear patio door. Above the porch was an open window with obvious signs of damage. The distance from the window to the porch was determined to be 2.9 metres. There was a notable area, east of the porch and in between the porch and wooden fence, which contained packed down snow with numerous footwear impressions. [1] Located within this area was a 25-centimetre spike [2] that was stuck point-down in the snow.

Forensic Evidence

Centre of Forensic Sciences (CFS) Submissions and Results

The boots of SO #1 were seized and sent to the CFS for analysis. [3] In addition, a DNA sample of the Complainant was taken for comparison.

On May 27, 2020, the SIU investigator was provided with the results of the report. It was determined that no blood could be detected on either of SO #1’s boots. Therefore, no DNA profile could be developed.

Given the above results, on May 28, 2020, CFS was contacted to provide an opinion as to the likelihood of developing a DNA profile on the boots of a second identified SO, SO #2. CFS agreed to accept the boots of SO #2 for analysis. As a result, SO #2’s boots were seized [4] and sent to CFS for analysis. By way of its Biology Report dated June 23, 2020, the CFS indicated that blood was not detected on either the left or right boot of SO #2.

Expert Evidence

Forensic Pathologist’s Consultation on Orbital Fractures:

A forensic pathologist at the Provincial Forensic Pathology Unit in Toronto was consulted to provide an opinion on the facial injuries sustained by the Complainant. [5] The forensic pathologist‘s report aimed to shed light on the extent of the Complainant’s injuries in layman’s terms and speak to the mechanism of injury. The following is a breakdown of the forensic pathologist’s report:

• The left orbitozygomaticomaxillary fracture was described as fractures around the left mid-face area involving several of the bones around the left eye. The zygomatic arch was described as the bone on the side of the face that supports the mid-facial skeleton. The Complainant’s left orbital fracture ultimately resulted in the impairment of his downward gaze and required surgical intervention.

• The forensic pathologist opined that the force required to sustain zygomaticomaxillary fractures are typically caused by blows to the face, such as a kick or punch. They can also occur as the face strikes a firm surface [6] or they may occur during motor vehicle collisions. When asked to speak to the mechanism of injury, the forensic pathologist opined that the Complainant’s injury was most likely caused by a single direct blow to the left side of the face, to the front of the left cheekbone and outer aspect of the left orbit. The forensic pathologist did not believe the injury could have been caused by a blow to the top of the head, as in the Complainant’s case there were no injuries to the back of his head. Further, a kick to the face could not be excluded as a potential mechanism of injury.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following:

• An identified police car’s in-car camera footage.

A Police Car’s In-Car Camera Footage Summary

At 4:45:41 p.m., the Complainant was placed in the back seat of the police cruiser. The Complainant had a badly swollen left eye and was groaning in pain.
At 4:55:18 p.m., the Complainant, while alone in the police cruiser, uttered the following words, “I just wanted to go home”;
At 4:55:50 p.m., a paramedic attended at the police cruiser and checked the Complainant’s eye.
At 4:57:35 p.m., the Complainant uttered the following to himself, “Just about to get out, shoulda been out, I’m done.”
At 5:00:50 p.m., the paramedic returned and opened the Complainant’s left eye and then left the cruiser. A police officer attended at the police cruiser and read the Complainant his rights to counsel before telling the Complainant that he would be going to the hospital.
At 5:04:52 p.m., the Complainant said the following to himself, “My fucking head, constable kicked me, protect me, someone help me, oh my god, oh my god, oh my god, oh my god, fucked me up, fucked me up, oh my god he got me good, oh shit, can’t even open my eye.”
At 5:18:30 p.m., the Complainant exited the police cruiser and walked towards the ambulance.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from TPS:

• Computer-Assisted Dispatch for Search Warrant;
• General Occurrence Report 2020;
• Communication Recordings;
• TPS Interview with the hostage; [7]
• A Police Car’s In-Car Camera Footage;
• Notes-all WOs;
• Search Warrant for the address on Marengo Drive;
• Search Warrant Central Notes - Briefing Notes;
• TPS Policy-Executing Search Warrants; and
• TPS Policy-Incidents Requiring the ETF.

Materials obtained from Other Sources

In addition to the materials received from the TPS, the SIU obtained and reviewed the following materials from other sources:

• Medical Consultation Report by a forensic pathologist; and
• The Complainant’s SMH Medical Record.

The following scenario emerges from the weight of the evidence collected by the SIU in its investigation, which included interviews with the Complainant, a couple of CWs who were in the vicinity of the arrest, and a half-dozen witness officers. In the afternoon of February 2, 2020, a number of Major Crime Unit (MCU) officers gathered at the ETF headquarters for a briefing regarding the planned execution of a search warrant on the premises at an address on Marengo Drive, Richmond Hill. The police had reason to believe that the residence at the address – a two-storey detached home – was being used to confine the victim of a kidnapping being held for ransom.

An ETF team and MCU officers arrived at the address at about 4:30 p.m. Flash bangs were deployed by the ETF as they forced their way into the home. The hostage was located and freed.

When the ETF officers entered the home, the Complainant was inside a second-floor bedroom at the time. An associate, CW #1, was also on the second-floor at the time. From the bedroom window, the pair jumped onto the raised patio located at the rear of the property. [8] They were quickly confronted by WO #1, who ordered the Complainant and CW #1 to the ground at gunpoint. The two complied, lowered themselves prone onto the snow-covered ground beside the patio, and were approached by several ETF officers, including SO #2 and SO #1. The evidence is discrepant as to what happened next.

Incriminating evidence, if accepted as true, reveals that the Complainant was fully compliant on the ground when he was approached by an ETF officer, handcuffed, and then kicked once, and possibly twice, to the left eye, and repeatedly punched. An incriminating account says that CW #1 also went to the ground willingly with his hands behind his back and was kicked to the side of the head by an ETF officer. This incriminating account claims that the Complainant was kicked several times as he told the officers he was not resisting.

WO #1 confirms that the Complainant was compliant and on the ground, but had his head up, causing him concern that he was looking for an escape route. According to WO #1, several ETF officers ran past him and one of them – the lead officer, whom he could not identify – made contact with the Complainant’s left eye using the right toe of his boot. WO #1 was not sure whether the contact was intentional or the result of the officer slipping; he did not think it was the result of a full kicking motion. None of the other WOs interviewed by the SIU observed any of the kicks described by the incriminating evidence, although they do not appear to have witnessed the interaction from start to finish.

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,

On February 2, 2020, the Complainant sustained multiple facial fractures and a fractured spine in the course of his arrest by officers with the TPS ETF. SO #1 and SO #2 of the ETF were identified as the subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either officer committed a criminal offence.

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. I accept that the Complainant’s arrest was lawful. Without any innocent or plausible explanation, he was present in the home of a hostage whose father was being extorted for a large amount of money. The issue turns to the propriety of the force used against the Complainant.

If true, the entirety of the incriminating evidence’s rendition of events would give rise to a finding of excessive force. According to the incriminating evidence, the Complainant had effectively surrendered and was on the ground, compliant with his hands handcuffed behind his back, when an ETF officer kicked him in the side of the face. WO #1 offers some support for this narrative. Though the officer gave the appearance at his SIU interview of minimizing what he had seen, WO #1 concedes that an ETF officer approached the Complainant on the ground and, with his right boot, made contact with the left side of the Complainant’s face in what might well have been an intentional kick. The medical evidence further bolsters the incriminating evidence insofar as it suggests the facial fractures the Complainant suffered are typically the result of a kick or punch to the area. While I appreciate that this was a high-risk operation, involving as it did the attempted rescue of a hostage in circumstances in which weapons might have been present, the law still requires that any force used be reasonably necessary to the lawful task at hand. I fail to see why the strikes, of the nature described by the evidence, were necessary.

To be sure, the account presented by the incriminating evidence is not without its weaknesses. It is clear that upon becoming aware of the police presence in the home, the Complainant had designs on escape, lending some credence to the suggestion that he may have had his head up exploring his flight options and justifying the kick as a preemptive strike of sorts. All of which is to say that proving the allegation of excessive force would not be without its challenges in court.

I am mindful, however, that a charging authority must limit its assessment of the strength of the evidence to threshold considerations to avoid usurping the proper role of the court as the final arbiter of matters of fact. The issue before me is whether there are reasonable grounds to believe that the Complainant was subjected to excessive force. I believe that test is met notwithstanding the countervailing, albeit equivocal, evidence from police witnesses. Nevertheless, I am unable to proceed with charges in this case.

The obstacle to the laying of charges resides in the evidence regarding identification. Simply put, while the investigation was able to establish that it was likely either SO #1 or SO #2 who delivered the impugned strikes, it could go no further in identifying who in particular was responsible for the blow or blows. The inability of key witnesses to identify the perpetrator or perpetrators of the force in question is understandable; the ETF officers were all wearing similar outfits with masks and helmets covering their faces. Regrettably, neither the officers’ names nor badge numbers were plainly inscribed on their clothing. In the result, while I am satisfied there are reasonable grounds to believe that excessive force was used, I am unable to attribute said force to any one or more identifiable ETF officers.

The issue around the identification of tactical team officers, or other teams of officers whose faces are obscured by headwear, and its implications for police accountability is longstanding. In its investigation of the circumstances surrounding serious injuries sustained by Cecil Bernard George during the confrontation between OPP officers and First Nations protesters at Ipperwash Provincial Park, the SIU concluded there were grounds to believe Mr. George had been unlawfully assaulted but was stymied from laying charges because of a lack of evidence going to identification. There, as here, the team of officers responsible for arresting Mr. George – a crowd control unit – wore helmets that concealed their identities. The Report of the Ipperwash Inquiry [9] confirmed the SIU’s finding, noting that excessive force was used against Mr. George by unknown OPP officers in the course of his arrest. Among its recommendations, the Inquiry called upon the OPP to “ensure that the names and badge numbers of officers at public order events should continue to be inscribed visibly and prominently on outer clothing or helmets” (recommendation 12, Volume 1). I see no reason why steps should not be taken to similarly ensure that tactical team officers wear insignia that can assist in identifying them; if not their names or badge numbers, then something else.

In the final analysis, as there are no reasonable grounds to pinpoint one or another officer or officers for the force used against the Complainant in his arrest, which I believe on reasonable grounds to have been excessive and caused his facial fractures, there is no basis for proceeding with charges in this case.


Date: November 5, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit