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 35-year-old man (the “Complainant”).

Notification of the SIU

On December 11, 2020 at about 7:21 a.m., the Toronto Police Service (TPS) contacted the SIU and reported that TPS officers had earlier that day responded to Geary Avenue for a person in crisis. They encountered the Complainant and apprehended him under the Mental Health Act (MHA) as he was a danger to himself and others. He was transported to Mount Sinai Hospital (MSH) for assessment. While waiting in triage, the Complainant attempted to flee the hospital. TPS officers caught him and grounded him in the process. The Complainant complained of pain to his right leg. X-rays revealed a fractured tibia. The Complainant was admitted and would be undergoing surgery before being released. He would also be assessed as per the MHA apprehension. TPS had requested hospital surveillance camera video.

Video/Audio/Photographic Evidence

The SIU obtained video from MSH, which was picked up from MSH security by an SIU investigator on December 15, 2020, at about 10:34 a.m.

Video from MSH

The video footage showed the emergency and triage departments in relation to the interaction on December 11, 2020. MSH had multiple video cameras and five video clips were provided; however, the area where the Complainant was grounded was not covered by video, and the quality of the video was subpar.

Video One-Emergency

The video clip depicted the nurses’ station and the surrounding area in the emergency department (ED). It showed the Complainant on a stretcher after the interaction with SO and WO #2. A registered nurse injected something into the Complainant, who was in four-point restraints. The SO and WO #2 left MSH.

Video Two-Emergency Entrance

This view was of the entrance area in the ED of MSH. This video clip captured part of the Complainant trying to leave MSH and MSH guards preventing him from leaving. A male MSH guard held the Complainant by his right arm and spoke to him. The Complainant pushed the MSH guard away, threw his arms in the air and went against a stretcher. WO #2 reached out towards the Complainant and an MSH guard tried to grab him from behind. The SO faced the Complainant and held him. The cluster then moved out of camera range.

Video Three-Emergency Triage

The view was of a wall with a stretcher against it in the emergency/triage area. This video clip was not focused on any interaction. It showed shadows and partial views of people.

Video Four-Emergency Medical Services Hall

This video clip was of the ED hall, a long hallway that intersected another hallway. The camera was a substantial distance from the officers’ interaction with the Complainant and the video was of poor quality. What might have been a TPS officer was kneeling, then that person and some MSH guards carried the Complainant out of camera range.

Video Five-Emergency Waiting Room

This clip was of the nurses’ station and the waiting area in the emergency department. The Complainant walked through the waiting room, followed by the SO and WO #2, to the nurses’ station. A registered nurse was there. They followed the registered nurse out of camera view. MSH guards were present.

Materials Obtained from Police Service

The SIU obtained the following records from the TPS between December 15, 2020, and January 24, 2021:

• Civilian Witnesses List:
• General Occurrence;
• Intergraph Computer-assisted Dispatch (x3);
• Notes of SO and WOs;
• TPS Policy-Emotionally Disturbed Persons and Appendices
• TPS Policy-Medical Emergencies; and
• TPS Policy-Use of Force and Appendices.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:

• Medical records from MSH, received December 30, 2020.

The material events in question are clear on the evidence gathered by the SIU thanks to statements from the Complainant, the SO, WO #2 (also present at the time of the incident) and a number of civilian eyewitnesses, as well as video recordings of parts of the incident captured by security cameras. Shortly after midnight on December 11, 2020, the SO and WO #2 were dispatched to an address on Geary Street, Toronto. The Complainant had called 911 to report that he was despondent and suicidal. The officers were advised that the Complainant had a variety of mental health illnesses.

Once at the residence, the SO and WO #2 spoke with the Complainant, saw him crying and hitting his head, and heard him indicate he wished to kill himself. Concerned for his safety, the officers decided to apprehend the Complainant under section 17 of the Mental Health Act so he could be detained and taken to hospital for psychiatric assessment. The Complainant was placed inside a waiting ambulance and transported to MSH.

Once at the hospital, the Complainant and the officers waited in the emergency room waiting/triage area for about 45 minutes before they were asked to enter the emergency department. Once through the emergency department doors, the Complainant objected when he was further directed to enter the “crisis room”. Instead, he exited through the same set of doors through which he had entered and said he was leaving. The Complainant was claustrophobic and recounted a previous experience in which he had been left in the “crisis room” for hours.

Both officers and a number of security guards followed him out into the waiting/triage area and tried to prevail on him to return to the emergency department. The SO and WO #2 noted that he was in custody under the Mental Health Act and could not leave. When the Complainant persisted and made his way to the doors, the officers took hold of him and an altercation ensued.

The SO and WO #2 wrestled with the Complainant and, with the help of MSH security guards, were eventually able to subdue him on the floor. The Complainant was subsequently lifted onto a stretcher where he continued to struggle and was secured with a restraint system and administered a sedative by a nurse.

The Complainant complained of pain in his knee following the takedown and was diagnosed with a right tibial fracture.

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 17, Mental Health Act -- Action by police officer

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

On December 11, 2020, the Complainant, while in the custody of TPS officers, fractured his right leg. The SO was identified as the 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 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. I accept that the officers were within their rights in apprehending the Complainant under section 17 of the Mental Health Act. Given what they had been told of his 911 call and their personal observations of him at his home, they had reason to be concerned that the Complainant was labouring under a mental disorder and was at risk of doing himself harm.

Once in their charge, the SO and WO #2 were also entitled to maintain custody over the Complainant until he could be released into the care of the hospital. Accordingly, when the Complainant attempted to flee the hospital, the officers acted appropriately in preventing that from occurring. The issue is whether they used only reasonably necessary force in effecting their purpose. In my view, they did.

The SO and WO #2 wrestled with the Complainant as he flailed his body and attempted to break free from their hold. At its highest, it appears the SO may have had the Complainant in a head lock for a brief period before the parties, including one or more hospital security guards, fell to the floor. The takedown itself appears to have been accidental as much as anything else, the result of a loss of balance as the parties pushed and pulled for position. No strikes of any kind were delivered by the officers, or the guards for that matter, and the Complainant appears to have been handcuffed in short order after he had been grounded. On this record, I am unable to reasonably conclude that the force used by the officers was disproportionate to the challenge at hand.

In the result, though the Complainant’s regrettably fractured his right leg in the altercation at the hospital, likely the result of falling to the floor, I am not satisfied on reasonable grounds that either of the SO and WO #2 conducted themselves unlawfully at any time. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: March 30, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit