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 injury a 56-year-old man (the “Complainant”) is reported to have suffered during an interaction with the police.

Notification of the SIU
 

On March 5, 2021, at 11:00 a.m., the SIU was notified by an Assistant Crown Attorney of an injury sustained by the Complainant.

It was reported that the Complainant was arrested by Toronto Police Service (TPS). During the course of the subsequent court proceedings, the Complainant’s counsel alerted the Crown to the fact that the Complainant may have suffered a broken rib at the hands of TPS officers.

TPS had reportedly been contacted by another Assistant Crown Attorney, and indicated that no force was used when the Complainant was arrested, and that his injury occurred prior to police contact.

The Team
 

Date and time team dispatched:     03/05/2021 at 2:00 p.m.

Date and time SIU arrived on scene:     03/05/2021 at 2:25 p.m.

Number of SIU Investigators assigned:     5

Number of SIU Forensic Investigators assigned:     1

Affected Person (aka “Complainant”):

56-year-old male interviewed, medical records obtained and reviewed

The Complainant was interviewed on March 18, 2021.

Subject Officials (SO)
 

SO #1     Interviewed, and notes received and reviewed

SO #2     Interviewed, and notes received and reviewed

The subject officials were interviewed on April 26, 2021.

Witness Officials (WO)
 

WO #1     Notes reviewed, interview deemed not necessary

WO #2     Interviewed

WO #3     Notes reviewed, interview deemed not necessary

WO #4     Interviewed

WO #5     Interviewed

WO #6     interviewed

WO #7     Notes reviewed, interview deemed not necessary

The witness officials were interviewed between March 30, 2021 and April 3, 2021.

Investigative Delay

The investigation delays are attributed to the reporting of the incident. The incident was reported to the SIU on March 5, 2021. The arrest of the Complainant was January 13, 2021.

The Complainant’s counsel asked to be present when the initial interview with the Complainant was conducted. Coordinating the interview with counsel present could not be done until March 18, 2021.

Both subject officials consented to providing interviews. Arranging the interviews with their counsel added to the delays.

The Scene 
 

The incident is alleged to have occurred in the hallway between the booking area and cells at TPS 32 Division, 30 Ellerslie Avenue, Toronto.

An SIU Forensic Investigator attended TPS 32 Division and photographed the areas of the police facility where the Complainant had been present during his detention on January 13, 2021.

Video/Audio/Photographic Evidence
 

In-car Camera System (ICCS) Footage

On request of SIU investigators, TPS provided the ICCS footage from the TPS police cruiser operated by SO #1 and SO #2 on January 13, 2021. The following is a summary of what was captured in the footage.

12:01:43 a.m., the police cruiser was stopped on Yonge Street while police officers spoke to persons outside the vehicle.

12:09:23 a.m., the Complainant was placed in the rear driver’s side of the police cruiser without incident. The Complainant was handcuffed with his hands behind his back. The Complainant was told he was being recorded while in the vehicle. The Complainant told the police offer to “fuck off”. The Complainant had slurred speech and appeared intoxicated.

12:26:40 a.m., the Complainant was removed from the cruiser. The handcuffs were removed, and a search of his person conducted.

12:31:30 a.m., the Complainant was placed back into the police cruiser, handcuffed behind his back and wearing a PPE mask.

12:37:19 a.m., the police cruiser was en route to 32 Division. The Complainant appeared to be dozing off in the rear seat.

12:39:08 a.m., the police cruiser stopped outside the sally port door of 32 Division. SO #2 was asking basic questions of the Complainant, such as his address and telephone number. The Complainant did not answer. SO #1 opened the rear cruiser door and asked COVID screening questions of the Complainant. He did not answer verbally, but shook his head.

12:51:53 a.m., the Complainant said, “I am in medical distress, I need medical attention right, now.” He was asked what was wrong but did not reply.

12:53:00 a.m., the Complainant said, “I need help, medical attention, now.” SO #2 asked what the problem was, and he replied, “Don’t feel well, now.” SO #2 told him that they would look after him shortly.

12:59:28 a.m., the Complainant said, “Pull the car inside, I told you so,” referring to the sally port garage. SO #2 and SO #1 opened the rear door to allow the Complainant out. The Complainant said, “Are you going to rough me up now, are you stupid? Are you drunk? I am that is why I asked you.” The Complainant was escorted through the sally port to the door of the booking area without incident. The Complainant’s walk was staggered, and the officers assisted him while walking.

32 Division Booking and Cell Area Video

TPS forwarded four custody videos involving the Complainant. The following is a summary of what was contained in the recordings.

Sally Port

The video was dated January 13, 2021 and time-stamped 1:00:44 a.m. It concluded at 1:01:18 a.m.

The video showed SO #1 and SO #2 as they walked the Complainant towards the booking area. The Complainant was handcuffed with his hands behind his back and walked without apparent injury.

SO #1 and SO #2 stopped halfway through the sally port and looked at the wall with placards. One of the officers read out loud and advised the Complainant that the area they were entering was audio and video taped. They then continued and walked into the cell area.

 
Booking Camera #1

The video was dated January 13, 2021 and time-stamped 1:01:16 a.m. It concluded at 1:15:16 a.m.

SO #1 and SO #2 stood next to the Complainant at the booking desk. Both officers were in uniform and had facial coverings for COVID-19. The Complainant wore a fleece top, slacks, running shoes and a face mask. The Complainant was handcuffed with his hands behind his back. The officers read from a wall placard indicating that the area was monitored with audio and video cameras.

WO #6 entered the booking area and took his place behind the desk. He was joined by WO #4. The Complainant’s backpack was searched by SO #1. The contents were removed and placed on the booking counter. SO #1 located three prescription bottles with medication. The prescription bottles were placed on the booking counter.

SO #2 and SO #1 identified the Complainant verbally to WO #6. The Complainant refused to answer any questions relating to his arrest, rights, medications, etc. The Complainant was turned around and faced a concrete wall, adjacent to the booking desk. His handcuffs were removed. His person, clothing and shoes were searched. The Complainant called SO #1 and SO #2 assholes. The Complainant was walked out of the booking area, without handcuffs on.

Booking Camera #2

The video was dated January 13, 2021 and time-stamped 4:11:00 p.m. It concluded at 4:12:04 p.m.

The video was of the booking counter - no one was initially on camera. The booking special constable, wearing a powder blue shirt, walked into view. WO #3 and WO #4 walked into view. They escorted the Complainant to the booking desk. The Complainant was handcuffed with his hands in front of his body.

The special constable advised the Complainant he was to be taken to hospital, and his property would be taken with him. The Complainant walked out of the custody area, under escort. He had no apparent physical injury or illness.

Sally Port

The video was dated January 13, 2021 and time-stamped 4:11:57 p.m. It concluded at 4:13:46 p.m.

The Complainant was escorted from the booking area, to the rear door of a police cruiser. The Complainant walked without injury and was seated in the rear seat on the driver’s side. WO #4 drove the police cruiser out of the sally port.

 
Cell Video

TPS provided the SIU with a copy of the cell video from 32 Division for the date January 13, 2021, relating to the Complainant’s incarceration on that day. There was no audio component to the video. The following is a summary of what was captured on the footage.

At 1:15:29 a.m., the Complainant was escorted into the cell area via a door from the booking hall. He walked of his own accord - not handcuffed - with SO #1 at his left rear and SO #2 at his right rear.

The Complainant walked into cell number three and sat on the metal bed. Once the cell door was closed, SO #2 tossed a running shoe through the bars to the Complainant. The Complainant bent over, put the shoe on his left foot and tied the lace. He did not appear to have any difficulty bending down.

The Complainant then laid on the bed and remained in the cell until his release. He was up and down several times throughout the night to urinate. He gave no indication that he was injured.

Several different police officers checked on the Complainant throughout the night. At 11:34:47 a.m. and again at 1:08:04 p.m., a special constable attended at the cell with a mobile phone. The special constable held the phone toward the Complainant who appeared to participate in a conversation.

At 4:11:31 p.m., the Complainant was removed from the cell by uniformed police officers, handcuffed and walked out of the camera’s view. He was able to walk on his own and did not display any signs that he was injured.

Communications Summary

The following is a summary of the police communications relating to the Complainant’s time in custody on January 12 and 13, 2021.

Starting at about 11:54:39 p.m., a TTC employee called 911 advising that a TTC employee had been assaulted at the Finch / Yonge station. A male person [known to be the Complainant] reportedly punched the TTC employee in the face, and paramedics were not required.

She described the Complainant’s appearance. The Complainant was walking south on Yonge Street, south of Finch Avenue.

SO #2 and SO #1 were dispatched and given the information provided by the TTC employee. WO #1 put himself on the call and responded as well.

Starting at about 12:00:15 a.m., SO #1 and SO #2 advised they had one person in custody and all was in order.

Starting at about 12:36:06 a.m., SO #1 and SO #2 advised they would be transporting a 56-year-old male to 32 Division. They gave their starting mileage as 957.
Starting at about 12:38:52 a.m., SO #1 and SO #2’s cruiser arrived at 32 Division. The recordings concluded.

Materials Obtained from Police Service
 

Upon request, the SIU received the following materials and documents from TPS between March 18, 2021 and April 22, 2021:

• Custody Video;
• Communication Recordings;
• ICCS Video Footage;
• Notes-WO #7;
• Notes-SO #1;
• Notes-WO #4;
• Notes-WO #5;
• Notes-WO #1;
• Notes-WO #2;
• Notes-WO #3;
• Notes-WO #6;
• Notes-SO #2;
• General Occurrence Report;
• Intergraph Computer-assisted Dispatch Report; and
• Involved Officer List.

Materials Obtained from Other Sources
 

The SIU received the following record from other sources on March 18, 2021:

• Medical Records - North York General Hospital.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, SO #1 and SO #2, and other police personnel who had dealings with the Complainant. The investigation was also assisted by video recordings that captured much of the Complainant’s time in custody.

Just before midnight of January 13, 2021, the Complainant was arrested by SO #1 and SO #2 in and around the intersection of Yonge Street and Finch Avenue, Toronto. Police had been called to the area by the TTC, reporting that one of their employees had been punched in the face by a male at the Finch / Yonge station. SO #1 and SO #2, working together, were closest to the scene and the first to arrive. With the assistance of TTC members in the area, who pointed out the male in question, the officers quickly located the suspect and handcuffed him. The male was the Complainant.

The Complainant was placed in the officers’ cruiser and taken to 32 Division. SO #1 and SO #2 escorted the Complainant into the station, presented him to WO #6 to be booked, searched him, and took him to a cell.

At about 3:40 p.m. of January 13, 2021, the Complainant complained of difficulty breathing and asked to go to the hospital. The Complainant was taken to hospital by WO #3 and WO #2 where he was diagnosed with a fractured right rib. At some point during their trip to, or time at, the hospital, the Complainant indicated that his injury was the result of being attacked by officers at 32 Division. Specifically, he disclosed that three officers kicked him in the right ribs and the back of his legs as he was taken into the hallway from the booking area before being placed in cells.

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 January 12, 2021, the Complainant was arrested and subsequently taken to hospital in police custody where he was diagnosed with a serious injury. 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 subject official 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 authorized or required to do by law. There is nothing in the evidence to suggest that the Complainant’s arrest at the hands of SO #1 and SO #2 was unlawful. On the contrary, given the information they had received about the complaint to police that had come in from the TTC, which included a description of the male who was said to have punched a TTC employee, and the officers’ observations at the scene of a male – the Complainant – who matched the description and was being singled-out by TTC personnel, it would appear there were reasonable grounds to take the Complainant into custody.

Thereafter, the evidence falls short of any reasonable conclusion that the Complainant was the victim of excessive force on the part of police officers. The Complainant’s account to this effect is insufficiently reliable to warrant being put to the test before a trier-of-fact. He says that officers repeatedly kneed and kicked his ribs and legs while handcuffed in the hallway between the booking area and the cells at 32 Division. The video recording of his departure from the booking area into the hallway establishes, however, that he was not handcuffed. Nor was he handcuffed when he was lodged in the cell, as is clearly depicted in the custody video. There is also evidence that the Complainant’s injury was inflicted prior to his arrest by SO #1 and SO #2. While waiting with SO #2 in the cruiser before his booking, the Complainant is captured on the ICCS footage telling the officer that he was not feeling well and requesting medical attention. The Complainant’s apparent involvement in a physical altercation with a TTC employee that prompted his arrest, and his admission to a special constable while in custody that he had hurt his ribs in a fight, lend further credence to the prospect that his injury had nothing to do with his dealings with police officers. In light of these and other frailties associated with the Complainant’s evidence, it would be unwise and unsafe to rest charges on the strength of his word alone.

As for the remainder of the evidence, including that from SO #1 and SO #2, the two officers who escorted the Complainant to cells, there is no indication of any untoward conduct on the part of the police. While both officers say that the Complainant dropped his weight to the floor while in the hallway en route to the cells, the only force used by the officers was that which was necessary to lift him up, after which he continued into the cells on his own power.

In the result, as I am unable on the aforementioned-record and analysis to reasonably conclude that either of SO #1 and SO #2 comported themselves other than lawfully throughout their interactions with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: June 28, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit