Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

• Confidential investigative techniques and procedures used by law enforcement agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• Subject Officer name(s);
• Witness Officer name(s);
• Civilian Witness name(s);
• Location information; 
• Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
• Other identifiers which are likely to reveal personal information about individuals involved in the investigation.

Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into a serious injury sustained by a 71-year-old man (the “Complainant”).

Notification of the SIU

On August 14, 2020, at 4:15 p.m., the Toronto Police Service (TPS) contacted the SIU and reported the following.

On August 14, 2020, at about 10:30 a.m., the Subject Officer (SO), TPS Traffic Services (motorcycle unit), was conducting speed enforcement in the area of Islington Avenue and Ridgevalley Crescent. At this time, the Complainant was stopped for a speeding violation as well as a seatbelt infraction. When the police officer served the Complainant with his Provincial Offence Notices (PONs), the Complainant apparently approached the SO in an aggressive manner. The police officer reportedly warned the Complainant to return to his vehicle; however, the Complainant continued towards the police officer.

The SO extended his ASP baton and again cautioned the Complainant to cease his advance. The Complainant continued towards the police officer and was stuck with the baton.

The Complainant was transported to the Etobicoke General Hospital (EGH) where he was diagnosed as having suffered a fractured jaw.

Apparently, a semi-professional videographer, Civilian Witness (CW) #1, may have been filming the interaction.

 

The Team

Number of SIU Investigators assigned: 3

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Interviewed
WO #5 Interviewed

Subject Officers

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

The Scene

The incident occurred on Ridgevalley Crescent just east of its intersection with Islington Avenue.

The SIU forensic investigator did not attend the scene as it had not been secured and, therefore, there was no scene for examination. However, the SIU requested pertinent photos from the TPS.

Video/Audio/Photographic Evidence

Summary of the video footage

On August 18, 2020, at 9:28 p.m., CW #1 provided the SIU with 28 short video clips taken during the incident under investigation. The video clips were not date or time stamped. The following is a summary of the video clips:

The SO motioned with his right hand to the driver of a Toyota, the Complainant, to pull over. The SO was holding a radar speed gun in his left hand.

With his head out of the driver’s side window, the Complainant yelled inaudibly in the direction of Islington Avenue. The SO put the radar at the rear of his police motorcycle. The SO folded a long sheet of white printed paper and the Complainant called the SO an “asshole”.

As he exited his vehicle and pointed his left finger at the SO, the Complainant said, “I’m not talking to you.” The SO reached for something near the right rear side of his duty belt.

The SO walked away backwards from the Complainant, who had blood in the area of his jaw. The SO told the Complainant to “sit down, sit down on the ground”. While holding a white bloody napkin to the area of his left jaw, the Complainant said, “Good job, you asshole!” and walked towards his vehicle.

As he applied a white napkin to the area of his left jaw, the Complainant leaned against his car. CW #2 was at the trunk of his vehicle and looking in the direction of the Complainant. The Complainant walked back towards his vehicle, with the SO following behind.

CW #2 and CW #4 sat on the front lawn. The Complainant shook his head at CW #1 while he was recording.

Summary of the SO’s audio and video

The TPS provided an audio and video file recorded by the SO’s personal cellular phone during his interaction with the Complainant. The recordings did not have a date stamp and all times referenced refer to the elapsed playback time of the video recording, not the actual time.


Audio Recording

At 15 seconds into the recording, the SO say, “Good morning, how are you?” The Complainant replies, “Not good.” The SO says, “Kay, why are you not wearing your seatbelt,” and the Complainant says, “I just took it off to get my wallet.” His voice is raised. The SO says, “No you did not. That’s not what I’m seeing.” The Complainant asks, “You have a camera? I swear I just took it off.” The SO says, “Sir, stop yelling. You are not wearing the seat belt, the reason I’m talking to you, the speed limit on Islington Avenue is 50, your speed was 71.” The Complainant says, “You want to know something,” and the SO cuts him off stating, “Can I see your driver’s licence, ownership and registration?” The Complainant states, “Not until you listen to me.” The SO says, “I’m not going to listen.” The Complainant asks why he was stopped, and the SO says speeding. The Complainant asks the officer if he wants to know why he was speeding and the SO says, “No, I don’t want to know why.”

The SO repeats the request for driver’s licence, ownership and registration at one minute and two seconds into the recording. The Complainant repeatedly asks, “What is that?” The SO repeats his request. Twenty seconds later he repeats himself and the Complainant yells, “I heard you.” The SO states, “You are failing to produce it. I will give you one more chance, I will go to my motorcycle and you will get a ticket for each document you fail to provide. You have ten more seconds… Five more seconds.” The Complainant says, “Here!” The SO says, “You failed to produce ownership,” and the Complainant says, “Oh, give me a break.” The SO states, “You know what is this? This is a legal document; it has to be signed to be valid. Like a passport, driver’s licence or health card. This being signed is not validated… and your rear plate is not entirely plainly visible. That’s another offence. Speeding. Seatbelt. Fail to…”. The Complainant yells, “Fuck you, you piece of shit.” The SO continues, “… and entire plate not plainly visible.”

At two minutes and 34 seconds into the recording, the SO says, “Stay in the car, sir.” He repeats this as the Complainant says, “Fuck you.” The Complainant asks, “It’s not visible?” The SO says, “It’s not entirely plainly visible. Return to your car, sir.” The Complainant says, “No you, fuck you. Take a picture. Take a picture.” The SO says, “You take the picture, get in inside the car, sir.” A sound, potentially of an ASP baton being extended, is heard. The Complainant says, “What are you going to hit me? Is it a zapper?” The SO repeatedly says get inside the car. The Complainant tells him to fuck off and calls him a piece of shit. The SO says, “Thank you.” The Complainant says, “You know what? Ninety years too late. Gestapo! You love that eh? Fuck you.” The SO says, “Have a seat,” and the Complainant says, “Fuck you.” At three minutes and 15 minutes into the recording, the Complainant is silent.

The SO says, “Can you record this call,” and CW #1 says, “No, no, no.” The SO says he wants the call recorded and CW #1 appears to agree.

At three minutes and 45 seconds into the recording, the SO says, “Have a seat. I am not able to work unless you take a seat in the car.” He continues asking the Complainant to sit down for about 15 seconds.

The SO speaks on a police radio. At four minutes and 45 seconds in, the SO states, “It’s a journalist, he can do whatever he wants. So yes, he’s recording.” The Complainant says, “Don’t you have a job to do, you shithole?” The SO says he is doing his job. About six minutes and 30 seconds in, the SO asks CW #1 to stay because he needs him to be a witness as the Complainant will complain. There are mechanical sounds similar to a printer and, about a minute later, the SO asks CW #1 to record when he goes towards the Complainant. CW #1 agrees. About nine minutes in, it appears the Complainant says something and the SO states, “It’s coming”

At this moment, the video recording is turned on.

Video Recording

The SO held a white piece of paper in his hand, a Provincial Offences Act (POA) ticket. He approached a Toyota. The Complainant was seated in the driver’s seat with his head turned toward the SO. When the SO was just a few feet from the driver’s side door, the Complainant opened the driver’s side door.

The SO ordered the Complainant, “Stay in the car, return to your car.” The Complainant fully exited the car and began walking in the direction of the SO with his left arm fully extended in a horizontal position and his index finger pointed. The Complainant said, “I’m not talking to you,” appearing to look past the SO. The SO repeatedly ordered the Complainant to return to his vehicle.

The Complainant was a short distance from the SO. The Complainant, who appeared to be stationary, subsequently queried, “What are you doing?”

The camera frame suddenly veered to the left and a hand holding an object, cylindrical and approximately two-and-a-half centimetres in diameter, briefly came into frame. The camera frame returned to face south and captured the Complainant, who appeared unsteady on his feet and grabbed the lower left side of his face using his left hand. The Complainant removed his hand from his face, which revealed a bloody cut to the left side near the mouth approximately two-and-a-half centimetres in length. The Complainant lost his balance and used the rear driver’s side of his vehicle for support.

The SO ordered the Complainant to get down on the ground multiple times. The Complainant looked stunned as he looked at the SO.

The SO approached the Complainant and attempted to use his left arm to force the Complainant to the ground. The Complainant remained standing next to his vehicle with a shocked look on his face as he queried, “Do you know what you did?”

The SO made a radio transmission for officer assistance. He also requested an ambulance to attend the scene. The SO again ordered the Complainant multiple times to sit down on the ground. The Complainant screamed, “Stop. Fuck off.” The SO told the Complainant he was not free to leave.

The SO made a second request for assistance and an ambulance. The Complainant had moved away from his vehicle and spoke with CW #2, but their conversation was indiscernible except for the utterance “It’s Germany again, 1930.” The Complainant moved back towards his vehicle and the SO backed up from him to maintain distance.

The SO told the dispatcher, “I have very aggressive driver, I had to use baton and he’s bleeding. I need ambulance.” The SO also requested that a road sergeant attend and an officer with a conducted energy weapon. The Complainant yelled for the SO to give him the ticket. The SO ordered the Complainant to sit down and wait for the ambulance. The Complainant said he did not require an ambulance, to which the SO replied that he did need one and to sit down. The Complainant said, “You’re a professional, because you know how to not take people’s teeth out, eh?”

The SO transmitted the Complainant had calmed down, and he just needed an officer to standby now and the ambulance for a 70-year-old man, bleeding from the face. The Complainant moved approximately two metres to the left of his vehicle and in the direction of the SO.

The SO told the Complainant to return to his vehicle, to which the Complainant replied that he just wanted to see what was on ‘his’ [believed to be referring to CW #1] shirt. The SO said CW #1 was there on an unrelated matter. The Complainant made an utterance to the effect that CW #1 was recording to see how people reacted to certain situations, which failed. The Complainant again said he did not require the ambulance and requested his ticket. The SO told him the ambulance was coming.

The dispatcher requested an update to the injury to provide emergency medical services. The SO said the Complainant had a cut to the left side of the face, to which the Complainant could be heard to yell, “He knocked my teeth out, the fucker.”

The Complainant, again away from his vehicle and within a short distance of the SO, asked what the delay was. The SO reiterated he could not leave until he was checked by the ambulance as he was angry.

WO #5 exited his police cruiser. The SO said he had requested an ambulance as the Complainant was bleeding. He added, “I had to use baton, so he got struck. I missed the torso.” The SO requested that WO #5 watch for the ambulance.

Another police officer [believed to be WO #4] approached the SO and inquired about CW #1. The SO requested that WO #4 obtain CW #1’s contact details.

Summary of video taken by CW #3

The SIU obtained a recording taken by CW #3. All times referenced refer to the elapsed playback time of the video recording, not the actual time. The recording was one minute and three seconds in length. The recording captured the intersection of Islington Avenue and Ridgevalley Crescent from the west side, facing east.

At the corner of Ridgevalley Crescent stood a man [now known to be CW #1]. A police officer [now known to be the SO] paced around in the middle of the roadway of Ridgevalley Crescent. His motorcycle was positioned on the north side of Ridgevalley Crescent, just east of a stop sign.

A police cruiser operated by WO #5 with the emergency siren activated drove southbound on Islington Avenue and drove past Ridgevalley Crescent.

The Complainant was positioned up against the trunk of a vehicle with his left hand up near his face. The SO stood two to three car lengths away from the Complainant.

CW #2 and CW #4 were seated on the grass area on the south side of Ridgevalley Crescent.

Summary of CW #4’s video

CW #4 provided the SIU a copy of a five-second video he took of the incident under investigation. The video clip was not date or time stamped. The following is a summary of the video clip:

The Complainant was sitting on the grassy area on the southeast side of Ridgevalley Crescent and Islington Avenue. A police officer was bent at the waist and speaking to the Complainant. A white Toyota Matrix was parked facing east on Ridgevalley Crescent. There was a marked police SUV with its emergency lights activated and two police officers standing at its rear.

Communications Recordings

Summary of TPS Communication Recordings

The TPS provided communication recordings relevant to this incident. The following is a summary of the audio files:

At 10:36:30 – 10:36:33 a.m., an emergency alarm was activated by the SO. The officer needed assistance at Islington Avenue and Ridgevalley Crescent. He also requested that EMS and additional units to attend.

At 10:37:22 – 10:37:48 a.m., the SO radioed, “I have very aggressive driver. I had to use baton and he’s bleeding. I need an ambulance.” The SO requested that a road sergeant attend and “somebody with a taser. I have no taser”.

At 10:37:54 a.m., a 911 dispatcher called an ambulance dispatcher to request their attendance at Ridgevalley Crescent and Islington Avenue.

At 10:38:00 a.m., while the SO was requesting EMS, the following conversation ensued:
The Complainant: [Inaudible] the fucking ticket.

The SO: You have to stay here, sir. Just wait. There is an ambulance coming for you.

The Complainant: There’s - don’t need one!

The SO: You need ambulance. Sit down.

The Complainant: Yeah, why?

At 10:38:42 a.m., the SO advised that the Complainant had calmed down and requested “someone to standby” with him.

At 10:38:53 - 10:40:26 a.m., the SO radioed that a 60-year-old [later corrected to 70-year-old] male was bleeding from his face. The Complainant had a cut to his left cheek.

At 10:41:58 - 10:43:59 a.m., the SO radioed that WO #5 had passed his location. The SO radioed that WO #5 was on scene and all other units could slow down as “all was in order”. He requested an ETA on EMS.

At 10:46:30 a.m., WO #4 arrived on scene.

At 10:47:29 a.m., EMS was in the area of Kipling Avenue and Lakeshore Boulevard.

At 10:47:40 a.m., the SO made a follow-up request for a road sergeant to attend.

At 10:53:37 a.m., WO #2 said he was attending the SO’s location.

At 10:55:29 a.m., a police officer advised that the Complainant had a laceration to his left cheek and requested an ETA on EMS.

At 10:57:08 a.m., communications informed EMS was on Rathburn Road and Islington Avenue.

At 11:01:34 a.m., the SO reported that EMS had arrived.

At 11:36:13 a.m., the SO was completing his notes and heading to TSV (Traffic Services Division).

At 11:37:18 a.m., WO #1 followed EMS to EGH.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:

• Communications recordings;
• Video and audio-recordings from the SO;
• General Occurrence;
• Incident Summary Report;
• Injury Report-the Complainant;
• Notes of the WOs;
• POA Notices;
• Procedure - Arrest;
• Procedure - Speed Enforcement;
• Procedure - Use of Force and Appendices;
• TPS internal correspondence regarding the SO’s disclosure-August 17, 2020;
• TPS-Civilian Witness List; and
• Training Record-Use of Force Qualification-the SO.

Materials obtained from Other Sources

Upon request, the SIU obtained the following video/audio evidence from civilian witnesses:

• Cell phone video from CW #1;
• Cell phone video from CW #3; and
• Video from CW #4.

Upon request, the SIU obtained and reviewed the following documents from the Toronto EMS and EGH:

• Ambulance Call Report; and
• Medical Record-Etobicoke General Hospital.

The following scenario emerges from the evidence collected by the SIU, which included interviews with several civilian eyewitnesses and video recordings that captured parts of the interaction in question. At about 10:30 a.m. of August 14, 2020, the SO was performing speed enforcement at the intersection of Islington Avenue and Ridgevalley Crescent when he had occasion to pull the Complainant over for speeding. The Complainant, who had been traveling northward, pulled onto Ridgevalley Crescent and came to a stop facing east just east of Islington Avenue.

The Complainant was not happy about being pulled over. He voiced his displeasure, hurled profanity at the SO and, at one point, exited his vehicle. The SO attempted to calm the Complainant and asked him to return to his vehicle. The Complainant did so, but only for a short period.

Still angered, the Complainant exited his vehicle again and approached in the officer’s direction. He continued to take issue with what was happening and was particularly irate with another civilian – CW #1 – who, with the SO’s permission, had been variously recording the officer-citizen interaction.

The SO continued to direct the Complainant to return to his vehicle. When the Complainant advanced to within an arm’s length of the officer, the SO swung his baton. The weapon struck the Complainant resulting in a laceration to the left side of the face and a fractured right—sided mandible.

Following the baton strikes, the Complainant grabbed hold of his face and noticed he was bleeding. He yelled at the officer over what he had done but maintained his distance. The SO radioed for an ambulance and waited for additional police officers to arrive.

The Complainant was taken to hospital in an ambulance and diagnosed with his injuries.

Section 34, Criminal Code -- Defence of person - Use of threat of force

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 

(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) The act committed is reasonable in the circumstances.

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon; 

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and 

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

In the morning of August 14, 2020, the Complainant was struck and injured by the SO in the course of a traffic stop. The SO was identified as a subject officer 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 injuries.

Section 34 of the Criminal Code prescribes the ambit of justifiable force used in one’s self-defence or the defence of another. It provides protection for conduct that would otherwise amount to an offence if the conduct was intended to thwart a reasonably apprehended attack, actual or threatened, and was itself reasonable in all the circumstances. In my view, there is insufficient evidence to reasonably conclude that the force used by the SO fell afoul of the limits of justification.

It would appear on the evidence that the SO was in the lawful discharge of his duties performing speed enforcement when he clocked the Complainant’s vehicle exceeding the speed limit and pulled him over. The Complainant reacted angrily to being stopped by the officer. He verbally expressed his objections and swore at the officer. That was one thing. However, the Complainant took his disdain for what was occurring to another level when he exited his vehicle on a couple of occasions and approached the officer in a threatening fashion. Telling in this regard is the evidence of the independent eyewitnesses, each of whom expressed concern with the Complainant’s behaviour. On this record, having advised the Complainant to stand down and return to his vehicle, I am satisfied that the SO was entitled to resort to a measure of force to defend himself from what would have been a reasonably apprehended attack. The issue turns to the propriety of the force used by the SO.

I am satisfied on reasonable grounds that the officer’s resort to two swings of his ASP baton was not excessive in the circumstances. The Complainant’s belligerent demeanour and refusal to cease his advance despite the officer’s request that he do so would have given the officer cause to believe he was about to be attacked. He was entitled to protect himself. He was also entitled to protect CW #1, who was also the target of the Complainant’s ire and in the vicinity at the time. It is highly regrettable that the ASP strikes caused serious injury to the Complainant’s face. Police officers are trained to avoid striking the face with their ASP batons because of the obvious potential for serious injury. However, the evidence indicates that the SO did not intend to strike the Complainant’s head area. Rather, as the SO explained to an officer arriving at the scene following the confrontation, he had aimed an “X-pattern” [1] ASP deployment at the Complainant’s torso and inadvertently struck him in the head given his movements at the time. There is nothing in the evidence, including the video evidence, that calls into question the officer’s explanation in this regard.

I conclude by noting that the SO did not help himself in this matter. Prior to his interaction with the Complainant, the officer had been approached by a journalist – CW #1 – seeking to shoot some video footage depicting officer-citizen interactions at traffic stops. The SO, seemingly of the view that he was authorized to give that permission as long as the parties’ faces were blurred, allowed it. It is unclear to me whether the officer acted appropriately in so doing. Be that as it may, what is clear is that CW #1’s presence with a video camera apparently recording the interaction was a source of consternation for the Complainant and contributed to his anger. The SO was also unduly aggressive in his dealings with the Complainant prior to the altercation, needlessly escalating what was already a tense situation. At one point, for example, he started a countdown from ten seconds – the time he gave the Complainant to produce some paperwork or be ticketed for failing to do so. While the SO was still entitled to defend himself notwithstanding these errors in judgment, I will be raising these matters with the chief of police.

For the foregoing reasons, as I am satisfied that the SO acted reasonably by using his ASP baton to deter a reasonably apprehended attack at the hands of the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: August 16, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit