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

Notification of the SIU
 

On March 14, 2021, at 1:40 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

Reportedly, on March 13, 2021, at about 10:00 p.m., officers responded to a 911 call from a loss prevention officer (LPO) at the No Frills located at 2430 Eglinton Avenue East, Toronto. The LPO was chasing a male for shoplifting a box of granola bars. The LPO caught up to the Complainant and a struggle began in the area of Kennedy Road and Eglinton Avenue East. Officers arrived and intervened in the struggle, the Subject Official (SO) apparently striking the Complainant in the face to gain control of him.

The Complainant was taken into custody and transported to the Scarborough General Hospital (SGH), where he was diagnosed as having suffered a fractured nose. He was treated, released, and held for a bail hearing.

The Team
 

Date and time team dispatched:       03/15/2021 at 10:59 a.m.

Date and time SIU arrived on scene:     03/15/2021 at 12:18 p.m.

Number of SIU Investigators assigned:     4

Number of SIU Forensic Investigators assigned:     0

Affected Person (aka “Complainant”):

20-year-old male interviewed

The Complainant was interviewed on May 5, 2021.

Civilian Witnesses (CW)
 

CW #1     Interviewed

CW #2     Interviewed

The civilian witnesses were interviewed between March 16 and 26, 2021.

Subject Official
 

SO     Interviewed, and notes received and reviewed

The subject official was interviewed on April 11, 2021.

Witness Officials (WO)
 

WO #1     Interviewed

WO #2     Interviewed

WO #3     Interviewed

WO #4     Interviewed

WO #5     Interviewed

WO #6     Notes reviewed, interview deemed not necessary

The witness officials were interviewed between March 22 and 26, 2021.

Investigative Delay

Numerous efforts were undertaken to interview the Complainant at the earliest opportunity, including written communication couriered to his last known address and efforts to contact next of kin. After several weeks, SIU investigators negotiated a time for the Complainant to be interviewed with his counsel present.

The Scene 
 

The scene was located at the southeast corner of Kennedy Road and Eglinton Avenue East, south of a bus shelter on the grass/dirt area.

Video/Audio/Photographic Evidence
 

911 Communications

On March 30, 2021, the SIU received relevant communication recordings from the TPS. A summary of the material information contained therein follows.

At 8:08 p.m., a No Frills Store Manager called 911 to report the store’s floor walker [now known to be CW #1] required police assistance for a male [now known to be the Complainant] who had fled on foot through the parking lot towards Eglinton Avenue East after being placed under arrest for shoplifting. CW #1 followed the Complainant and they appeared to be fighting on the south side of Eglinton Avenue East.

At 8:12 p.m., a second 911 call was received from a female who was seated in a vehicle in the parking lot of the No Frills watching the interaction between the Complainant and CW #1. Based on her observations, the 911 caller deduced that CW #1 was attempting to apprehend the Complainant for shoplifting. The Complainant stated he was going to punch CW #1. The Complainant and a female companion [now known to be his girlfriend] both fled the scene on foot towards Eglinton Avenue East.

At 8:16 p.m., CW #1 called 911 to report she was assaulted by the Complainant, whom she had placed under arrest. The 911 call-taker was unable to communicate with CW #1 as there were sounds of a struggle in the background. Several seconds later, CW #1 said, “Officer, he has my phone. Officer, this guy just took my phone….officer.”

The call-taker re-established verbal contact with CW #1 who confirmed police were on scene before the call was disconnected. Further attempts to connect with CW #1 were unsuccessful.

Radio Transmissions

At 8:10 p.m., WO #2 and WO #3 were dispatched to a “hot shot” call at No Frills.

At 8:18 p.m., a male officer [now known to be WO #2] was on scene but had not yet made contact with the involved persons.

Between 8:19 p.m. to 8:21 p.m., various transmissions were made by police officers trying to locate the involved persons. There was no specific transmission to identify what time any police officer located or began interacting with the Complainant.

At 8:22 p.m., a winded male officer [now known to be WO #3] advised the Complainant was in police custody and requested Emergency Medical Services (EMS) for CW #1.

TPS Booking and Cell Video

On April 29, 2021, the SIU received the booking and custody video of the Complainant from the TPS. The recordings were date and time stamped, in colour, and with audio. A summary of the material information therein follows.

At 1:51 a.m., two male uniformed officers [now known to be WO #3 and WO #2] paraded the Complainant in front of WO #5 and in the presence of two special constables. The Complainant was handcuffed with his hands to the front of his body. The Complainant was wearing sweatpants, a dark hoodie and surgical mask.

It was acknowledged that the Complainant had sustained an injury to his left eye, which appeared dark, and that he had received treatment at SGH.

During the booking process, the Complainant admitted he consumed a “couple shots” of rum between 5:30 p.m. and 6:00 p.m., and denied any narcotic consumption. A “Level 2” search was explained, authorized and performed in a private room, out of camera view. The Complainant told WO #5 that, “These two officers,” were good to him.

At 3:02 a.m., the booking process was completed, and the Complainant was escorted to a cell.

Between 3:03 a.m. and 11:57 a.m., the Complainant was in his cell.

At 11:57 a.m., the Complainant was released in the presence of special constables.


 

In-car Camera System (ICCS) Data – WO #3

On March 24, 2021, the SIU received one DVD with ICCS data from WO #3’s police vehicle. The available footage, which was date and time stamped, and contained audio, was of no probative value to advance the investigation in any meaningful way.

Cellphone Video Taken by LPO CW #1

On March 24, 2021, the SIU received a DVD from TPS containing cellphone footage obtained from CW #1 during her interaction with the Complainant. The camera was directed at the concrete sidewalk and at CW #1’s left leg. A man [now known to be the Complainant] wearing a black top, track pants and a surgical mask gestured with his hands and said, “What am I doing?” CW #1’s response was unintelligible.

The cellphone camera was blocked momentarily by CW #1’s left index finger before panning across the sidewalk and capturing the shoes of bystanders. When the camera was fixated, the Complainant, who was on his back, got up and said, “Leave me the fuck alone.”

Materials Obtained from Police Service 
 

Upon request, the SIU received the following materials and documents from the TPS between March 16, 2021 and April 29, 2021:

• 911 and Radio Communication Recordings;
• Booking and Cell Video;
• Cellphone Video taken by CW #1;
• ICCS Data from WO #3’s Cruiser;
• Injury Report;
• Notes-the SO;
• Notes-WO #1;
• Notes-WO #4;
• Notes-WO #5;
• Notes-WO #3;
• Notes-WO #6;
• Notes-WO #2;
• Contact Files – the Complainant;
• General Occurrence Report;
• Event Details Report;
• Policy-Arrest;
• Policy-Criminal Code Release, including Appendices A-D;
• Policy-Use of Force, including Appendices A and B;
• Release Documents;
• Photographs of Injuries; and
• Training Record- the SO.


 

Materials Obtained from Other Sources
 

The SIU obtained and reviewed the following records from other sources on March 30, 2021:

• Ambulance Call Report-Toronto EMS;
• Incident Summary Report-Toronto EMS; and
• EMS Incident Reports (x4).

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, the SO, several other officers who participated in the Complainant’s arrest, and a civilian eyewitness.

In the evening of March 13, 2021, the Complainant had just walked out of the No Frills grocery store at Eglinton Avenue East and Kennedy Road when he was confronted by a store security guard – CW #1. CW #1 accused the Complainant of having stolen store merchandise – a box of granola bars. The Complainant protested that he had not stolen anything and then physically resisted as CW #1 took hold of him and said he was under arrest. The two tussled on their feet for a period before the Complainant tripped and fell onto his backside. The Complainant made it back onto his feet and ran from CW #1 southward toward Eglinton Avenue East. CW #1 chased after him as the store manager contacted the police.

Officers were dispatched to the scene starting at about 8:18 p.m. The SO, working in plainclothes, heard the dispatch and was the first officer on the scene. CW #1 had caught up with the Complainant and the two were again physically engaged south of the bus shelter on the east side of Kennedy Road, south of Eglinton Avenue East. The SO parked his cruiser in the northbound passing lane of Kennedy Road at its intersection with Eglinton Avenue East, exited and ran toward the altercation.

The Complainant had hold of CW #1 and had struck her with a punch to the jaw when the SO grounded him. The two wrestled on the ground as CW #1 withdrew a distance. The officer struck the Complainant’s face three times and then climbed on his back to control him, locking his legs and arms around his body. With the assistance of two additional officers arriving on the scene, WO #2 and WO #3, the Complainant was rolled onto his stomach and his left arm secured in a handcuff. Following a further knee strike and two punches by the SO to the Complainant’s right ribs, the officers were able to secure his right arm and bring it around his back, where it was also cuffed.

Following his arrest, the Complainant was taken from the scene in ambulance to hospital, where he was diagnosed with a fractured nose.

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 March 13, 2021, the Complainant was arrested by TPS officers and suffered a serious injury in the process. One of the arresting officers – 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 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. The SO was aware that the Complainant had been observed by a store security guard stealing merchandise from the No Frills grocery store. In the circumstances, I am unable to reasonably conclude that the Complainant’s arrest was unreasonable.

Thereafter, I am not reasonably satisfied that the force used by the SO was more than was necessary to effect the Complainant’s arrest. The officer had just seen the Complainant punch CW #1 when he grabbed hold of him and tackled him to the ground. The takedown, in my view, seems a reasonable tactic to have adopted in the circumstances as time was of the essence if the SO was going to prevent a further assault on CW #1. [1] Once on the ground, the Complainant vigorously resisted the SO’s efforts to maintain control over him and was met with an initial series of three strikes to the face. The punches were not indiscriminate; rather, one followed the other when the preceding blow failed to deter the Complainant. Nor can it be said that the punches were excessive as the Complainant’s fight continued after the third punch was struck. The same can be said of the SO’s second series of strikes – two punches and a knee to the Complainant’s right side – coming as they did as the Complainant refused to release his right arm to be handcuffed. Following the last of these blows, the officers were able to overcome the Complainant’s resistance and secure his arms in handcuffs.

In the result, while I accept that the Complainant’s broken nose was incurred in the course of the force used against him by the SO, there are no reasonable grounds to believe that the Complainant’s arrest and the force brought to bear in its aid were unlawful. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: July 9, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit