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 the serious injuries a 47-year-old trans female (the “Complainant”) suffered during an interaction with the police.

Notification of the SIU
 

On January 12, 2021, at about 3:40 a.m., the Toronto Police Service (TPS) contacted the SIU to report the following.

On January 11, 2021, Major Crime Unit (MCU) police officers arrested the Complainant in the area of 1675 Wilson Avenue on an outstanding warrant for assault. The Complainant was taken to the ground during the arrest and then transported to 41 Division where she complained of a sore shoulder. At 9:33 p.m., the Complainant was taken to Scarborough General Hospital and diagnosed with a fractured right shoulder blade and two fractured ribs.

Upon release from hospital, the Complainant was returned to 41 Division to await a bail hearing.

The Team
 

Date and time team dispatched:     01/12/2021 at 7:37 a.m.

Date and time SIU arrived on scene:     01/12/2021 at 9:00 a.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”):

47-year-old trans female interviewed on January 19, 2021 [1]

Subject Officials (SO)
 

SO #1     Declined interview, as is the subject official’s legal right. Notes received and reviewed.

SO #2     Interviewed on February 18, 2021, but declined to submit notes, as is the subject official’s legal right.

Witness Officials (WO)
 

WO #1     Interviewed

WO #2     Interviewed

The witness officials were interviewed on January 21, 2021.

The Scene 
 

The scene was not attended or processed by SIU investigators.

Wilson Avenue ran, predominantly, east to west and was marked for two lanes of traffic in each direction. The south side of Wilson Avenue was commercially occupied by businesses including the Toronto Plaza Hotel and, west of that, automotive businesses including the Beverly Hills Auto Centre and Super Tire and Auto. The businesses were separated from the roadway by a sidewalk of common width and a grassy boulevard. The north side of Wilson Avenue was populated by low-rise apartment buildings. Beverly Hills Drive ran southbound, only, from Wilson Avenue. The intersection was controlled by traffic lights.

The first image below is a Google Maps satellite capture of the intersection at Wilson Avenue and Beverly Hills Drive, with north oriented toward the top of the page. The image was captured in 2021, and has been marked to show the distance from approximately the middle of the western driveway access to the Toronto Plaza Hotel, to the mid-way point of the concrete planter boxes near Beverly Hills Drive – a distance of about 100 metres.

The second image, captured by Google Maps, shows the planter boxes the Complainant fell over as they appeared in November 2020. The camera view is from north to south. The Toronto Plaza Hotel was outside the image to the left and Beverly Hills Drive was outside the image to the right.


Figure 1 - Google Maps satellite image of the intersection at Wilson Avenue and Beverly Hills Drive


Figure 2 - Google Maps image depicting the planter boxes

Video/Audio/Photographic Evidence
 

Booking Hall Video

Requested on January 15, 2021, the video that captured the Complainant’s time at 41 Division beginning on January 11, 2021, was received by the SIU on January 25, 2021. The following is a summary.

January 11, 2021

At 8:43 p.m., a staff sergeant and WO #1 were in the booking hall. WO #1 left the room and, at 9:44 p.m., returned with the Complainant. WO #1 told the Complainant the booking hall was audio and video recorded, and the Complainant said his “shoulder feels like it is broken, and my hands are bleeding”. WO #1 summarized the Complainant’s arrest and listed his charges for the staff sergeant. The Complainant was asked a series of questions.
During the questioning, the Complainant said, “My shoulder is absolutely killing me.” The staff sergeant asked what happened, and the Complainant told him, “I got tackled, it feels like it is broken,” then turned to WO #1 and said, “Like fuck man.”

The staff sergeant told the Complainant the handcuffs on his wrists would be removed soon and paramedics would be called to assess his injuries. He also told the Complainant he recognized he was trans and asked if he had a preference in the gender of police officer who would search him. The Complainant said he did not care. A male officer conducted that search and the Complainant’s cellular telephone was seized. He was very unhappy about that and said he wanted it back.

At 8:54 p.m., the Complainant was led from the booking hall.
January 12, 2021

At 2:28 a.m., the Complainant entered the booking hall. The Complainant was told he was being returned to a cell having returned from the hospital. The Complainant said he wanted to make a telephone call because he just had his “ribs crashed in and my shoulder broken”. He also said someone pretended to be a criminal and said they owed him money. He was, “rushed” and feared the people who “rushed” him were going to shoot him. He again asked to make a telephone call and was told he could. At 2:29 a.m., the Complainant was escorted from the booking hall.

At 5:54 p.m., a special constable brought the Complainant into the booking hall, and told him he made bail and they needed to get through some paperwork. He was again told the booking hall was audio and video recorded. The Complainant signed release papers and a receipt for the return of his property, and apologized for giving the police officers “a hard time”. He was told it was okay and that they understood he was in pain.

At 5:58 p.m., the Complainant left the booking area.
       

Communication Recordings

Requested from TPS on January 14, 2021, communication recordings were received by the SIU on January 22, 2021. The following is a summary of the recordings.

On January 11, 2021, at 5:58 p.m., WO #2 broadcast that he and his team were headed out, and there was discussion about what division they would be in for notification purposes.

At 5:59 p.m., WO #2 advised police officers that he “reached out” to the Complainant and told him they would be there at 7:30 p.m., and that the Complainant confirmed he would meet them.

At 6:00 p.m., WO #2 advised the communications operator he was at 1677 Wilson Avenue (Toronto Plaza Hotel). WO #1 told communications he was on the same detail.

At 6:38 p.m., WO #2 advised the team that once all was in place, he would send a message and wait for the Complainant to come. The area was big enough, but because he noticed drug activity and a police vehicle unrelated to their assignment in the front of the hotel, he would tell the Complainant he did not want to meet him in front of the hotel.

At 6:47 p.m., WO #2 broadcast he was in the area, and asked, “[WO #1] are you here yet buddy?” WO #1 responded he had followed him in. WO #2 asked, “[SO #2] are you good buddy?” SO #2 confirmed he was and WO #2 told the team he was going to message the Complainant. He again asked, “You guys all set up in the back lot there?” The team confirmed they were.

At 6:57 p.m., WO #2 asked the team to move to the Superior Tire parking lot and indicated that the Complainant would be there in five minutes. At 6:58 p.m., WO #2 said he would voice out when he saw the Complainant walking down the sidewalk.

At 6:59 p.m., WO #2 relayed that the Complainant had messaged he went to the back of the hotel. WO #2 was going to message him to walk toward them and that he would be forced to come along the sidewalk because of the fence line.

At 7:00 p.m., WO #2 told his team he was on foot in the parking lot.

At 7:02 p.m., someone asked if it was the Complainant he had seen walking down the sidewalk and WO #2 replied he was sure it was. Seconds later, WO #2 confirmed it was the Complainant on the sidewalk.

At 7:03 p.m., WO #1 relayed to the communications operator that they had one in custody at Wilson Avenue and Beverly Hills Drive, and to let the division know. He also asked for a prisoner transport wagon from the division.

At 7:04 p.m., a police officer broadcast he assumed he was not needed and was leaving to start paperwork. A couple of police officers responded, “We’re good.”

At 7:04 p.m., the communications operator dispatched a prisoner transport wagon to the call and told the arrest team it may be coming from downtown.

At 7:08 p.m., WO #1 asked the communications operator for an estimate on the arrival time for the transport wagon and the operator reiterated it was coming from downtown.

At 7:09 p.m., the transport wagon broadcast they were en route, and asked for an address. Four minutes later the transport wagon broadcast they would arrive to the arrest team in 14 minutes. That was followed by the communications operator asking for an acknowledgement of that from the arrest team. There was no response and a couple attempts were made to reach them. There was no response until 7:17 p.m., when WO #1 responded to the communications operator, who told him 31 Division was trying to reach them.

At 7:18 p.m., a 31 Division police officer asked WO #1 whom they had in custody. They were told and the 31 Division unit replied they were looking for a different person.

At 7:27 p.m., the transport wagon arrived and, seven minutes later, broadcast they were en route to 41 Division with the Complainant and gave their starting mileage.
At 7:35 p.m., WO #2 broadcast he and his team were returning to 41 Division.

At 8:00 p.m., the transport wagon arrived at 41 Division, and cleared at 8:46 p.m.

At 9:06 p.m., 41 Division broadcast that the Complainant had reported being in “some pretty bad shoulder pain” and requested paramedics attend. Two minutes later, the radio room called for an ambulance to attend the sally port at 41 Division.

At 9:17 p.m., 41 Division reported to the radio room that paramedics had assessed the Complainant and he needed to go to the hospital. Police officers were requested to escort the Complainant. That escort detail reported they were accompanying the Complainant to the hospital at 9:24 p.m. They arrived at the hospital at 9:41 p.m.

Materials Obtained from Police Service 
 

Upon request, the SIU received the following materials and documents from TPS between January 14, 2021 and April 12, 2021:

•  Intergraph Computer-assisted Dispatch Event Details Report;
•  Communications Recordings;
•  Booking Video;
•  Notes – WO #1;
•  Notes – SO #1;
•  Notes – WO #2;
•  Injury Report;
•  General Occurrence;
•  Arrest Warrant;
•  TPS Policy-Arrest;
•  TPS Policy-Use of Force;
•  TPS Policy-Use of Force-Appendix A; and
•  TPS Policy-Use of Force-Appendix B.
  

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, SO #2 and two other officers who took part in an arrest. As was his legal right, SO #1 chose not to interview with the SIU. He did, however, authorize the release of his notes.

In the afternoon of January 11, 2021, 41 Division MCU officers, led by WO #2, met to make plans to arrest the Complainant. There was a warrant outstanding for the Complainant’s arrest in relation to an assault he had allegedly perpetrated in December 2020. WO #2 had information indicating that the Complainant was residing near Wilson Avenue and Jane Street. Posing as someone who had money for the Complainant, WO #2 had texted the Complainant and agreed a meeting with him in the area of the Toronto Plaza Hotel, 1677 Wilson Avenue later that evening.

In plainclothes and unmarked cars, WO #2 and his team, consisting of WO #1 and SO #1 and SO #2, made their way to the area of the hotel. Noticing that a police cruiser was out front of the hotel on other business, WO #2 contacted the Complainant again and asked to meet him a short distance west of the hotel by the Super Tire and Auto. The Complainant agreed and the officers parked their vehicles in the vicinity of the business.

At about 7:00 p.m., the Complainant made his way westward on the south sidewalk of Wilson Avenue. As he reached the area of the Super Tire and Auto, he was approached by SO #2. Upon being advised by SO #2 that he was an officer, the Complainant ran away.

By the time the Complainant began his flight, SO #1 and WO #2 had emerged from their vehicles nearby and joined SO #2 in foot pursuit. Within seconds, SO #1, approaching the Complainant’s left side, caught up with the Complainant and pushed him toward a planter box housing bushes. The Complainant toppled over the planter onto the ground.

SO #2 and SO #1 approached the Complainant on the ground and attempted to arrest him. The Complainant, in a prone position on the ground, refused to release his arms from underneath his torso. With SO #1 controlling the Complainant’s feet, SO #2 wrestled with the Complainant to gain control of his arms and was eventually successful in prying them free, after which they were placed behind his back and handcuffed.

Following his arrest, the Complainant was assisted by the officers onto the ledge of one of the planters in the area. A prisoner transport wagon arrived in the area and took the Complainant to 41 Division, where he was booked and lodged in a cell.

The Complainant complained of pain while in custody and was taken in ambulance to hospital where he was reportedly diagnosed with a fractured shoulder blade, a fractured collar bone, and fractured left-sided ribs.

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,

The Complainant was seriously injured while being arrested by TPS officers on January 11, 2021. Two of the arresting officers – SO #1 and SO #2 – 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 of the subject officials committed a criminal offence in connection with the Complainant’s arrest.

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. The officers were acting on the strength of a warrant out for the Complainant’s arrest and were therefore within their rights in seeking to take him into custody.

I am also satisfied that neither SO #1 nor SO #2 used excessive force in effecting the Complainant’s arrest. The Complainant demonstrated that he was intent on evading arrest. Confronted by officers, he immediately fled on foot west along the businesses that lined the southside of Wilson Avenue west of the Toronto Plaza Hotel. In the circumstances, the officers were entitled to resort to a measure of force to bring the Complainant’s flight to an end. The push that felled the Complainant, delivered from behind by SO #1, would appear a proportionate and commensurate use of force. Though it likely resulted in some if not all of the Complainant’s injuries, the force with which the Complainant hit the ground was as much a result of the Complainant’s own momentum as it was the force applied by SO #1.

Once on the ground, the Complainant resisted arrest by refusing to surrender his arms from underneath him, but was eventually handcuffed by SO #2. No strikes of any kind were delivered by the officers; rather, SO #2, at times pushing down on the Complainant’s back with his arms to gain leverage, was able to exert his greater muscular power to wrest control of the Complainant’s arms. Here too, though there is some prospect that this force by SO #2 caused or contributed to the Complainant’s injuries, I am unable to reasonably conclude it was more than was needed to place the Complainant in handcuffs given the Complainant’s resistance at the time.

There is a suggestion in part of the evidence that the Complainant was kneed by one of the officers while on the ground. There are a number of reasons why it would be unwise and unsafe to lend credence to this evidence. But, even if true, I am not satisfied that the nature and extent of this purported force was unlawful in light of the evidence that the Complainant was resisting arrest and had yet to be handcuffed at the time.

In the final analysis, as there is insufficient evidence to reasonably believe that either SO #2 or SO #1 comported himself other than lawfully throughout their interaction with the Complainant, there is no basis for proceeding with criminal charges against either officer. The file is closed.


Date: May 3, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit