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 serious injuries sustained by a 34-year-old man (the “Complainant”).This report relates to the SIU’s investigation into serious injuries sustained by a 34-year-old man (the “Complainant”).

Notification of the SIU

On July 26, 2021, at 5:25 p.m., the Complainant reported the following.

On January 12, 2020, in the morning hours, the Complainant was in his residence at Mabelle Avenue when he was arrested by members of Toronto Police Service (TPS) for assaulting his wife with a weapon. He admitted that he was heavily under the influence of several drugs at the time. He was eventually taken to 11 Division and placed in a cell. During the course of his stay, he began to hallucinate and behave erratically. This included sticking his head in the toilet, screaming, and eventually trying to hang himself with parts of his shirt. He was taken out of the cell to a hallway and beaten by several police officers. One police officer apparently choked him. Handcuffs were placed on his wrists and one of the police officers pressed his knee on his handcuffed wrists. He felt immediate pain in both wrists, but the pain in the left wrist was noticeably worse.

Paramedics attended the cell area, gave him a sedative, and took him to St. Joseph’s Health Centre (SJHC) for an examination. X-rays were taken of his wrists. No fractures were detected but there was apparent tendon and soft tissue damage.

The Complainant was taken to court and eventually released on a recognizance.

The Complainant subsequently saw his family doctor. She ordered X-rays and no fractures were visible. A nerve conduction test was ordered, but this was postponed due to COVID-19.

The Complainant was referred to the fracture clinic at the Etobicoke General Hospital (EGH). The Complainant was advised that he required surgery because of damage to the tendon sheath in the area of the left thumb and wrist. The doctor was not certain if the injury was caused by handcuffs or other force.

The Complainant required surgery to both wrists. Surgery was to be performed on the left wrist first. The right wrist would be operated on at some time in the future.

The Complainant did not know the names of the involved police officers, but he could identify them. The Complainant explained that he was dissuaded from contacting the SIU earlier by his lawyer who suggested that the charge against him be dealt with first. His charge was withdrawn on June 1, 2021. The Crown apparently failed to disclose all of the cell videos as requested by counsel.

The Team

Date and time team dispatched: 07/27/2021 at 11:24 a.m.

Date and time SIU responded: 07/28/2021 at 12:45 p.m.

Number of SIU Investigators assigned: 4

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on July 28, 2021.

Subject Officials

SO Interviewed, and notes received and reviewed

The subject official was interviewed on October 8, 2021.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed

The witness officials were interviewed between August 16, 2021 and August 31, 2021.

Service Employee Witnesses

SEW Interviewed

The service employee witness was interviewed on September 1, 2021.

The Scene

Due to the historical nature of the incident, the SIU did not attend the scene.

The incident occurred in and around a cell at TPS 11 Division - a standard holding cell monitored by the police station’s video system.

Video/Audio/Photographic Evidence [1]

The SIU searched for and obtained audio, video and/or photographic records of relevance, as set out below.

Facebook Live Video

On July 28, 2021, the SIU received a copy of relevant Facebook Live video from the TPS. The video was not date or time stamped. The following is a summary of the video.

The Complainant brandished a large kitchen knife in his left hand. The blade was pointed up and away from his wife, standing behind and to the Complainant’s left. The couple appeared to be standing in a closet. The Complainant said, “Say hi, mom,” to his wife and lowered the knife down and out of camera view. The Complainant’s wife appeared to unwillingly inhale and break eye contact with the camera. The Complainant said, “Look what you guys have done. Shame on you!” He lifted the knife with the blade pointed up towards the ceiling, then back down and out of camera view.

11 Division Videos

On July 28, 2021, the SIU received a copy of the cell and booking video from 11 Division. The videos were date and time stamped; the booking video contained audio. By way of email on the same date, SIU liaison officer advised that the hallway and corridor video was retained for one year and one day. As such, the TPS no longer had that video to disclose.

Booking Room – Video #1
On January 12, 2020, between 8:59:47 a.m. and 8:59:57 a.m., the Complainant was escorted into the booking hall by two uniformed police officers. He was handcuffed with his hands behind his back. A police officer on the Complainant’s right read the notice about the booking hall under audio and video surveillance. The Complainant yelled, “Kill me!”

At 9:02:04 a.m., the Complainant said, “It takes a lot officer.” The Complainant indicated he did not know why he was arrested. He also stated he could not hear because, “I’m sick.” He did not know why he was sick. The Complainant stated he did not want to phone anyone and refused to speak with Duty Counsel. The Complainant stated he did not know if he had any illnesses. He did not respond when asked if he had hurt himself in the past. The Complainant denied he was in the care of a doctor for mental illness. The Complainant denied consuming any narcotics and denied being a drug user. He admitted he was on prescription drugs but did not specify. The Complainant requested a cigarette when the Booking Sergeant asked how he was feeling.

The arresting police officers commenced a pat down search of the Complainant on camera. The Complainant told the Booking Sergeant, “Dude, I’m not okay,” when he was asked to remove the handcuffs. “I’m not okay, period. Just kill me.”

At 9:05:52 a.m., the booking process of the Complainant was completed.

Booking Room – Video #2
At 8:42:53 p.m., paramedics arrived in the booking hall area with a stretcher and medical gear. The Complainant was heard in the background yelling, “Stop it, it hurts.”

Between 8:45:08 p.m. and 8:47:25 p.m., the Complainant yelled, “It fucking hurts,” “Stop it!” “My hand, stop it!” A man in the background said, “Stop banging your head! Stop moving!”

At 8:48:27 p.m., a female paramedic arrived in the booking hall. She was carrying a red backpack. A male voice in the background said, “Stop moving!”

At 8:54:52 p.m., the Complainant said, “You’re putting pressure on my fucking back!”

Between 8:58:11 p.m. and 8:59:31 p.m., a male’s voice in the background said, “Don’t bang your head. Extend your right arm forward.” The Complainant said, “You’re on my shoulder.”

At 9:00:51 p.m., the SEW said to one of the police officers he was injured.

At 9:03:35 p.m., police officers applied handcuffs to the head and foot of the stretcher as they waited for the sedative to take effect.

Between 9:08:51 p.m. and 9:13:43 p.m., the Complainant said, “Help me. Help me please, my wrist.” The Complainant was rolled out on a stretcher.

Cell Video
The cell video, which did not contain any audio, documented approximately 12 hours of the Complainant’s custody while the cell. The following is a summary of the video.

On January 12, 2020, at 9:06:05 a.m., the Complainant was lodged in the cell and his handcuffs were removed.

Between 9:46:47 a.m. and 11:58:00 a.m., the Complainant banged and knocked on the cell door approximately nine times with both the outside of his right hand and knuckles, and then grasped his left hand. He appeared to be in pain.

Between 12:07:58 p.m. and 12:11:58 p.m., the Complainant exited the cell and was forcefully lodged back into the cell. He was handcuffed with his hands behind his back.

Between 12:43:04 p.m. and 1:05:45 p.m., the Complainant placed his head in the toilet bowl, appearing to drink the water.

At 2:00:37 p.m., a special constable and two constables entered the cell and attempted to remove the handcuffs. The Complainant resisted the officers’ attempts.

At 2:01:56 p.m., The Complainant’s handcuffs were removed, and the officers exited the cell. The Complainant was positioned in between the toilet and bench.

At 6:55:09 p.m., the Complainant exited the cell.

At 7:13:24 p.m., the Complainant returned to the cell in the company of three sergeants, one constable and one special constable. His hands were handcuffed to the front of his body and his legs were in restraints.

Between 7:13:35 p.m. and 7:14:35 p.m., as officers held the Complainant down on the bench in the area of his back and hands, an officer attempted to remove the leg restraints. The Complainant’s handcuffs were removed. The police officers exited the cell and the door was closed.

At 7:33:22 p.m., the Complainant used a wet towel to remove fecal matter from the toilet to the sink. He then flushed the toilet.

Between 8:07:00 p.m. and 8:07:58 p.m., the Complainant ripped the bottom of his T-shirt and wrapped it around his neck. He then pulled on the pieces until he fell over, landing on the bench on his right side. The Complainant continued to pull on his T-shirt until his face turned red.

Between 8:09:10 p.m. and 8:09:20 p.m., a special constable and two constables entered the cell and attempted to remove the T-shirt from the Complainant’s neck. The Complainant was pushed onto the bench on his back as they attempted to remove the T-shirt from his neck. The Complainant pushed the officers away as one of the officers attempted to apply leg restraints.

Between 8:10:23 p.m. and 8:10:39 p.m., leg restraints were successfully applied. A fourth police officer arrived with leg shackles and attempted to apply them on the Complainant.

Between 8:11:26 p.m. and 8:14:22 p.m., one of the officers punched the Complainant in the area of his calf several times. A plainclothes police officer arrived to assist with the shackles. All the police officers exited the cell. The Complainant was lying on his back, with his hands handcuffed to the front and his legs shackled. His hands appeared red.

At 8:24:36 p.m., the Complainant stood up and attempted to fall backwards towards the toilet.

Between 8:24:41 p.m. and 8:24:59 p.m., the Complainant fell backwards, landing on his buttocks first, then striking the back of his head eight times against the toilet bowl. The Complainant was pulled out of the cell via the leg shackles and out of camera view.

Photographs

On July 28, 2021, the Complainant provided photos of his injuries to the SIU.

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the TPS:

• Booking Records-the Complainant;
• Cell Alarm Record;
• Email from TPS-retention of video;
• General Occurrence Report;
• Involved Officers List;
• Notes of the SO, WOs and SEW;
• Custody video;
• Facebook Live video;
• TPS Policy-Arrest;
• TPS Policy-Persons in Custody; and
• TPS Policy-Use of Force.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:

• Ambulance Call Report (2x);
• Letter from EGH physician;
• Medical chart-EGH Surgery;
• Medical chart-SJHC;
• Medical chart-William Osler (EGH);
• Medical Records received from the Complainant
• Medical Records-physician; and
• MRI Scans and Link received from the Complainant.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO, and several other officers who physically engaged with the Complainant on the day in question. The investigation was also assisted by video recordings from cameras in the police station that captured the incident in parts.

In the evening of January 12, 2020, the Complainant found himself in a TPS 11 Division cell. He had been arrested earlier that day following a call to police from a friend of the Complainant’s spouse. The caller had observed a Facebook Live stream in which the Complainant was in possession of a knife, acting strangely, and apparently threatening his partner.

The Complainant had ingested a cocktail of drugs and was of unsound mind at the time of the events in question. The Complainant’s behaviour in the cell was symptomatic of his paranoic and disordered state of mind – he was very belligerent and volatile, and drank from the toilet water. At about 8:07 p.m., the Complainant used his T-shirt to fashion a ligature and affixed it around his neck, tightening it with his arms until he fell over onto the cell bench.

The SEW noticed what the Complainant had done on the video screen and rushed to his cell. With him were the SO and his partner, WO #2. The officers entered the cell and pinned the Complainant front first against the bench as they struggled with him to remove the ligature from his neck. The Complainant displayed incredible strength and vigorously resisted as the officers attempted to secure his arms and legs in restraints. In the course of the struggle, the Complainant kicked WO #2 in the head, breaking his glasses. The SO was among officers attempting to control the Complainant’s legs. At one point in his efforts, the officer punched one of the Complainant’s legs a half-dozen times. In time, with the assistance of additional officers, including WO #1 and WO #4, the Complainant’s arms and legs were secured in handcuffs and shackles, respectively, after which the officers exited the cell.

Shortly thereafter, at about 8:25 p.m. officers witnessed the Complainant on video monitors again trying to hurt himself. He had fallen backwards in a purposeful effort to have his head strike the toilet behind him. Once on the cell floor, the Complainant proceeded to repeatedly hit his head off the toilet. The SO and others again rushed to the cell.

WO #1 was among the first officers to arrive. The cell door was opened and the officer took the Complainant by his shackled feet and dragged him onto the corridor outside the cell. What ensued was another strenuous struggle as the officers, up to seven of them, attempted to subdue the Complainant. The Complainant tried to bite an officer, screamed and complained of pain, and spoke nonsensically. WO #2 restrained the Complainant’s head to keep him from hitting it on the ground. Paramedics were summoned to the police station.

Paramedics arrived at the scene at about 8:40 p.m. and injected the Complainant twice with sedatives. He was placed on a stretcher, loaded into the ambulance, and taken to hospital.

Months later, in July 2021, the Complainant was diagnosed with injuries to the extensor carpi ulnaris of both arms. He subsequently underwent surgery of the left wrist.

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, 2020, the Complainant was reportedly seriously injured while in the cells area at 11 Division. His injuries were diagnosed following his release from custody. The SO, one of the officers who had dealings with him at the division, 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 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 required or authorized to do by law. The Complainant was lawfully in the custody of the police. The evidence establishes that he had been seen on a Facebook Live stream apparently threatening his partner with a knife. Once in police custody, the officers had an obligation to prevent the Complainant from harming himself. They were therefore within their rights in intervening to prevent the Complainant hurting himself, which he was clearly doing striking his head on the toilet, and arranging to have him sent to hospital for psychiatric assessment under the Mental Health Act.

There is no doubt that the officers, including the SO, fought intensely to keep the Complainant from self-harming, but I am satisfied that they did so within the remit of legally justifiable force on both occasions. The Complainant proved incredibly strong and it was everything the officers could muster to overcome his resistance and maintain him under control. Despite this, and the three punches the SO delivered during the first altercation, it appears the force used by the officers was largely limited to grappling with the Complainant. As for the SO’s punches, I am satisfied these fell within the realm of reasonably necessary force given the difficulty the officers were having in securing the Complainant’s legs. Nor was it unreasonable to secure the Complainant’s arms and legs in restraints given the violence and tendency to self-harm he has was exhibiting. As for the Complainant’s injuries, I accept they may have been incurred in the course of one, or both, of the altercations, but not as the result of excessive force used by the officer. Rather, the evidence suggests they might have been the product of the Complainant’s exertions with his arms and hands while they were handcuffed.

In the result, whether the Complainant’s injuries were caused by the officers as they struggled to prevent him from hurting himself, I am not satisfied that any of the officers, including the SO, comported themselves unlawfully. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: November 22, 2021



Joseph Martino
Director
Special Investigations Unit