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 injuries a 29-year-old man (the “Complainant”) suffered during an interaction with police.

Notification of the SIU
 

On February 10, 2021, at 11:34 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury.

TPS advised that on February 10, 2021, TPS police officers (five constables and one sergeant) visited the Complainant at his home near Dundas Street West and Kipling Avenue to apprehend him under a Form 2 of the Mental Health Act (MHA) at 6:50 p.m. As the Complainant was about to go into the police vehicle, he resisted and struggled with police officers. At the time, the sergeant was in the home. The five police officers were able to control the Complainant. The Complainant was taken to St. Joseph’s Health Centre (SJHC) where, at 9:50 p.m., he was diagnosed with a fracture to the right leg tibia and fibula.

The Team
 

Date and time team dispatched:     02/11/2021 at 9:53 a.m.

Date and time SIU arrived on scene:     02/11/2021 at 12:27 p.m.

Number of SIU Investigators assigned:     3

Number of SIU Forensic Investigators assigned:     0

Number of SIU Collision Reconstructionists assigned: 0

Affected Person (aka “Complainant”):

29-year-old male interviewed on March 2, 2021, medical records obtained and reviewed

Civilian Witnesses (CW)
 

CW #1     Interviewed

CW #2     Interviewed

The civilian witnesses were interviewed on February 11, 2021.

Subject Officials (SO)
 

SO #1     Declined interview and to provide notes, as is the subject official’s legal right

SO #2     Declined interview and to provide notes, as is the subject official’s legal right

The SIU was notified that the subject officials declined interviews and the release of their notes on February 24, 2021.

Witness Officials (WO)
 

WO #1     Interviewed

WO #2     Interviewed

WO #3     Interviewed

WO #4     Interviewed

WO #5     Interviewed

The witness officials were interviewed between February 17 and 19, 2021.

Investigative Delay

Interviews were conducted with all designated witness officials at the earliest opportunity taking into account their days off post-incident and the fact they were on night shift. Teleconference interviews were conducted at the start of their assigned night shifts.

Due to the Coronavirus pandemic and ongoing COVID-19 protocols, arrangements were made to have interviews with the Complainant, civilian witnesses and witness officials conducted by telephone.

The Scene 
 

The scene was located on the roadway out front of the Complainant’s house near Dundas Street West and Kipling Avenue. WO #3’s TPS police vehicle was parked on the roadway directly in front of the house.

Video/Audio/Photographic Evidence
 

TPS Communication Recordings Summary

The audio communication recordings and the event chronology are summarized below.

At 6:51:25 p.m., a woman, identified as CW #1, told the call-taker that she had a Form 2 (MHA) in her possession for the apprehension of her son, the Complainant. She explained his mental health issue was unstable, his medicine was not working, he was unstable, erratic and confrontational, he had confused thoughts, and he had been diagnosed with bipolar disorder over 20 years ago. She indicated he was currently not violent, nor had he been that day, but there was potential. She noted, “Police don’t need to arrive with their guns drawn.” The Complainant had not taken any drugs but he may have had some alcohol. She indicated that he was not aware that police had been called because she did not want him to leave. CW #1 asked if the mental health team, Mobile Crisis Intervention Team (MCIT), was available. The call-taker said they usually worked in the evenings, and that they were very busy, but she would request them. CW #1 said she would prefer that the police came sooner rather than wait for the MCIT’s availability. CW #1 spoke of a similar incident in December in which the police were very good and humane, which she appreciated. The call-taker suggested the response would be within an hour.

At 6:58:34 p.m., WO #3 and SO #1 were dispatched.

At 7:03:45 p.m., TPS supervisors were made aware of the “EDP” [1] call.

At 7:22:57 p.m., WO #3 and SO #1 were advised of the details as conveyed by CW #1. SO #1 asked if MCIT was able to respond and was advised “negative”.

At 7:50:37 p.m., WO #3 and SO #1 arrived at the scene.

At 8:07:52 p.m., WO #3 requested backup and explained that they had one man on the
ground resisting arrest. SO #2, WO #1 and WO #2 volunteered to attend.

At 8:09:24 p.m., WO #3 reported that they had the man in custody, and that other units could slow down.

At 8:11:13 p.m., WO #5 arrived at scene.

At 8:14:54 p.m., WO #4 arrived at scene.

At 8:25:17 p.m., an ambulance was requested by SO #2 for a man complaining of an injury to his right foot.

At 8:35:30 p.m., an officer indicated that the ambulance was on scene.

Nothing more of relevance to the investigation was communicated over the radio system.
   

Body Worn Camera (BWC) Summaries

The following summaries of the BWC footage of the involved officers is focused on the interaction between the TPS police officers and the Complainant at WO #3’s TPS police vehicle parked on the roadway in front of the residence.

SO #2
At 8:22:55 p.m., while waiting for the rear door to be opened, the Complainant asked about his possessions. He was told he was not getting them, and that they were in a property bag. The door was opened by WO #3. The Complainant was guided toward the opening to the back seat. He was heard to say, “Oh, fuck you…” A police officer said, “In the car man.” The Complainant said, “Ow, I think you just, ow my fucking.” A police officer said, “Hold on.” The Complainant said, “I think my ankle is broken,” and an officer said, “In the car.” The car door was closed by SO #2.

At 8:28:31 p.m., WO #5 inquired of everyone’s well-being. The Complainant was heard yelling, “I think my ankle is broken.” WO #5 spoke with the Complainant, opened the rear door and learned it was his right ankle that hurt. The sergeant verbally helped him reposition himself, so his legs were outside of the cruiser. An ambulance was called and attended. The Complainant was examined and then helped, as he hopped, to the ambulance. He was placed on a stretcher and taken to hospital. SO #2 did not assist him; he stood in the background.

SO #1
At 8:22:07 p.m., the Complainant was walked out of the kitchen area towards the front door. SO #1 held the Complainant by the right arm, and SO #2 held the left arm. The Complainant was walked down the walkway, out the front door and to the roadway.

At 8:22:43 p.m., at WO #3’s TPS vehicle, the rear door, driver’s side, was open. SO #1 controlled the right arm, and SO #2 controlled the left arm of the Complainant. The Complainant was up against the open-door frame, with SO #1 and SO #2 behind him. SO #1’s BWC was obstructed by the back of the Complainant. The Complainant stopped at the open door and yelled, “Ow!” as the police officers pushed him forward. The BWC obstructed the view of what transpired at the open door.

At 8:23:17 p.m., the Complainant yelled his ankle was broken. SO #1 stepped back and SO #2 then shoved the Complainant into the rear seat of the police vehicle. SO #2 then allowed the Complainant to enter onto the bench seat, and then shut the door closed, once both legs were inside the vehicle.

At 8:24:20 p.m., the Complainant yelled out, “I think my ankle is broken. My ankle’s broken.” SO #1 said words to the effect of, “When we went to place him in the car, [the Complainant] jumped up with his feet on the side.” WO #5 went to the window of the scout car, and asked, “What?” The Complainant repeated his ankle was broken. WO #5 opened the passenger door, and asked the Complainant to swivel around on his butt, and bring his feet out. An ambulance was called.

At 8:35:10 p.m., the ambulance arrived. A paramedic examined the Complainant’s right foot and explained the only way for it to be properly examined would be at a hospital. With assistance, the Complainant hopped to the side door of the ambulance. He was then moved to a stretcher and into the rear of the ambulance.

At 8:41:35 p.m., the paramedic asked SO #1 what caused the injury. WO #1 said they were putting the Complainant into the police vehicle, he resisted, stood up, and both police officers stepped backward. The Complainant fell to the ground.

WO #5
At 8:22:10 p.m., the Complainant walked, under police escort, from the kitchen to the front door. He walked without pain to either leg. He was escorted out the front door by SO #1 and WO #3. WO #1 and WO #2 followed.

At 8:22:29 p.m., WO #4 and WO #5 remained inside the residence, at the front door, and spoke with CW #1 and CW #2. CW #1 thanked the police officers.

At 8:23:20 p.m., WO #5 exited the residence and WO #4 stayed inside. WO #5 walked to the roadway, and stood with the attending police officers. WO #5 directed SO #1 to turn on his interior camera In-car Camera System.

At 8:24:23 p.m., the Complainant called out, “Hey, my ankles are broken.” WO #5 asked the police officers what happened. A response was heard, but not associated to one officer. An officer said, “When we went to put him in, he jacked his feet up or something.” WO #5 asked the Complainant which ankle, then asked him to swivel his legs out and told him an ambulance was called.

At 8:35:53 p.m., an ambulance arrived on scene. Paramedics examined the Complainant. The Complainant continued to ask for Tylenol or Advil. The Complainant hopped to the nearby ambulance and was placed on a stretcher

At 8:41:05 p.m., WO #5 directed WO #1 to go in the ambulance to hospital.

At 8:41:56 p.m., SO #1 explained to the male paramedic that the Complainant had his foot against the door frame, pushed himself up and fell to the ground. WO #1, now in the ambulance, moved the handcuffs from the rear to the front of the Complainant. One cuff stayed on a wrist and the second to the gurney.

At 8:47 p.m., the ambulance departed from the scene.

WO #3
At 8:22:50 p.m., the Complainant arrived at the marked police vehicle rear driver’s side door. WO #3 opened the driver’s side door and the Complainant walked up the side. SO #2 appeared to propel forward at the Complainant. Lighting was poor and the rear door blocked the view of the Complainant and SO #2 and SO #1. The Complainant appeared to come down screaming and yelled, “Ow, fuck you.” Another voice was heard, “In the car.” The Complainant said, “Ow my fucking,” followed by another voice saying, “In the car,” and the door was shut.

At 8:23:29 p.m., WO #5 arrived at the police vehicle and checked on the well-being of the officers and the Complainant, who was re-positioned with his legs outside the car.

WO #1
At 8:21:24 p.m., the Complainant was told his property would be taken with him to hospital and he challenged the validity of the Form 2. The Complainant was walked from the kitchen to the front door. He walked without complaint of injury and was escorted by SO #1 and SO #2, on either arm, as WO #3 and WO #1 followed.

At 8:23:10 p.m., the Complainant was walked to a TPS vehicle, operated by WO #3 and parked on the roadway in front of the residence. The rear door, on the driver’s side, was opened. SO #1 stood to the right of the Complainant and SO #2 stood to the left. The Complainant was walked to the open door. He placed both feet at the bottom of the door frame, which prevented his entry into the rear seat. The Complainant locked his legs and stood up, anchoring himself on the lower door frame. His head was above the top of the police vehicle, a Ford Taurus. SO #2 and SO #1 then pushed the Complainant into the rear seat area.
At 8:23:12 p.m., the Complainant called out in pain and was pushed further into the rear of the police vehicle. The Complainant sat on the rear bench seat and stated his ankle was broken. The door was slammed closed by SO #2.

At 8:23:49 p.m., WO #5 arrived at the street and directed staff. The Complainant called out his ankle was broken.

At 8:24:26 p.m., the Complainant again called out from the rear that his ankle was broken. WO #5 spoke to the Complainant, and asked what he said. The Complainant repeated his ankle was broken. WO #5 opened the rear door, had the Complainant adjust his seating position and moved his legs outside the open door.

At 8:34:07 p.m., the Complainant requested pain medication from his home. This was denied by the involved police officers. The Complainant was allowed to put his feet back into the police vehicle to keep himself warm, and the door was closed.

At 8:35:10 p.m., an ambulance arrived, and the paramedic examined the Complainant as he sat at the open door. The paramedic said he could not tell if the ankle was broken and that he would have to be taken to the hospital.

At 8:38:00 p.m., the Complainant hopped approximately three metres from the open seated door to the side door of the ambulance. He was then moved to the stretcher, while still handcuffed with his hands behind his back.

At 8:42:15 p.m., WO #1 entered the ambulance and moved the Complainant’s handcuffs from behind his back, and onto the railings of his stretcher. The Complainant was asked by the paramedic how his injury occurred. He did not give an explanation. The Complainant was offered Tylenol, Advil and an ice pack for the pain.

At 8:54:20 p.m., the ambulance left and WO #1 was on board. The paramedic once again asked the Complainant what happened with his leg and the Complainant did not respond.

At 9:10:45 p.m., the paramedic asked WO #1 what occurred that caused the injury to the Complainant’s foot. WO #1 said that the Complainant put his feet against the door frame.

WO #2
At 8:22:17 p.m., WO #2 opened the front door as police officers and the Complainant approached. As the Complainant walked, SO #2 had hold of his left arm and SO #1 had hold of his right arm. WO #3 followed behind them as did WO #1, and then WO #2. They walked to a police vehicle, parked on the roadway in front of the house.

At 8:23:04 p.m., WO #3 opened the rear driver’s side passenger door. The lighting was minimal and movement was calm, followed by a commotion. “Fuck you,” can be heard, and then, “Ow, my fucking.” SO #2 controlled the Complainant and told him to get “in the car” and the door was shut.

At 8:23:27 p.m., WO #5 was in the company of the police officers on the roadway asking about their well-being and confirmed that the Complainant would go to “St. Joe’s”. The Complainant could be heard saying, “My leg is broken.” WO #5 spoke to the Complainant through the front open door into the back of the police vehicle, “What’s that buddy? We’re going to the hospital.” He then opened the rear door and learned from the Complainant that it was his right ankle that was in pain. The Complainant was helped into a new position, still seated in the police vehicle, with his legs outside of it. An ambulance was requested.

At 8:30:26 p.m., the Complainant quietly sat in the rear of the police vehicle, breathing heavy; no one spoke while waiting for an ambulance. SO #1 remained with the Complainant who asked for painkillers. He was advised the ambulance would soon arrive and was coached to slow down his breathing.

At 8:41:59 p.m., an ambulance arrived and the Complainant was tended to by a paramedic. He was removed from the police vehicle. He could not put weight on his right foot. He hopped, assisted by SO #1 and WO #2, to the ambulance. Unable to enter the ambulance, he was placed on a stretcher and loaded into the ambulance.

Materials Obtained from Police Service 
 

Upon request, the SIU received the following records from the TPS between February 12, 2021 and March 8, 2021:

•  Notes-WO #2;
•  Notes-WO #3;
•  Notes-WO #5;
•  Notes-WO #1;
•  Notes-WO #4;
•  Computer-assisted Dispatch (CAD) Event Details Report;
•  General Occurrence;
•  Intergraph-CAD Event Details Report;
•  Training-Use of Force-WO #2;
•  Training-Use of Force-WO #3;
•  Training-Use of Force-WO #5;
•  Training-Use of Force-SO #2;
•  Training-Use of Force-WO #1;
•  Training-Use of Force-WO #4;
• Training-Use of Force-SO #1;
• 911 and TPS Communication Recordings; and
• BWC footage from all involved officers.
  

Materials Obtained from Other Sources

The SIU received the following record from other sources:

•  Medical records for the Complainant received on March 5, 2021.
  

The material events in question are clear thanks to interviews with officers who were present at the time of the incident and video recordings captured by the BWCs of the involved officers. As was their legal right, neither subject official chose to interview with the SIU or release a copy of his notes.

Shortly before 7:00 p.m. of February 10, 2021, police officers were dispatched to a home near Dundas Street West and Kipling Avenue to effect the Complainant’s apprehension. His mother, CW #1, had called police moments prior indicating that she and her husband had obtained a judicial order under the Mental Health Act compelling the Complainant’s attendance at hospital for examination. The Complainant, who suffered from bi-polar disorder, had been acting aggressively towards his parents causing them to fear for their safety as well as his.

SO #1 and his partner, WO #3, were the first to arrive at the property – a detached home. They spoke with CW #2 outside the residence, who confirmed that he and his wife had concerns about their safety and that the Complainant had only earlier that day threatened him with a knife. The Complainant was in the kitchen having dinner when the officers approached him. Over the course of the next quarter hour or so, the officers explained the purpose of their attendance, namely, to take him into custody so that he could be examined at hospital. The Complainant grew agitated, indicated he had no intention of going to hospital, and resisted as the officers moved in to arrest him.

Following a brief struggle on the kitchen floor, the Complainant was handcuffed to the front by SO #1 and WO #3. Other officers, including SO #2, began to arrive at the scene in answer to a call for assistance that SO #1 had broadcasted while the parties were physically engaged on the floor. The Complainant’s handcuffs were re-positioned to the back and he was led outside the home to a waiting cruiser.

With SO #1 holding him by one arm and SO #2 holding him by the other, the Complainant was escorted to the rear driver’s side door of WO #3’s cruiser. Once at the cruiser, with the door opened, the Complainant braced his feet on the bottom of the doorframe, locked his legs and pushed back, refusing to enter the vehicle. When his feet landed on the ground, the Complainant was pushed inside the vehicle by SO #1 and SO #2, the door closed behind him. It was in and around this time that the Complainant yelled out in pain.

WO #5, who had also arrived at the scene to lend a hand, approached the cruiser and was advised that the Complainant was in pain. He questioned the Complainant, who told him his ankle was broken. The rear door was opened and the Complainant was allowed to swing his legs outside the police vehicle while they summoned and waited for an ambulance.

With the arrival of the paramedics, the Complainant was placed on a stretcher, loaded into the ambulance and transported to hospital. He was diagnosed with fractures of the right tibia and fibula.

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 10, 2021, the Complainant, while in the custody of the TPS, suffered fractures of his lower right leg. SO #1 and SO #2, who participated in the Complainant’s custody, were identified as subject officials for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either SO #1 or SO #2 committed a criminal offence in connection with the Complainant’s injuries.

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 authorized or required to do by law. I accept that the officers were within their rights in taking the Complainant into custody. The Complainant’s parents, genuinely concerned about the Complainant’s mental health, had obtained a judicial order authorizing their son’s apprehension by police officers for purposes of a psychiatric examination.

Thereafter, there is insufficient evidence to reasonably conclude that excessive force was used by the officers. When the Complainant placed his feet on the sill of the doorframe and pushed back against the officers, refusing to get in, the officers were entitled to respond with a measure of force. The nature and extent of that force consisted of SO #1 and SO #2 counteracting the Complainant’s push with a push of their own, resulting in the Complainant being forced into the rear cabin of the cruiser. No blows of any kind were struck. On this record, I am satisfied that the force used by the officers was commensurate and proportional to the situation at hand.

In the final analysis, whether the Complainant’s fractures resulted when he landed with his feet on the ground having pushed himself off the bottom of the doorframe or was forced into the backseat of the cruiser, I am satisfied that SO #1 and SO #2 conducted themselves
 
lawfully throughout the engagement. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: April 19, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit