SIU Director’s Report - Case # 21-TCI-256
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Contents:
Mandate of the SIU
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.
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.
Information Restrictions
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:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that 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 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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.Mandate Engaged
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 a serious injury sustained by a 38-year-old man (the “Complainant”).
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 a serious injury sustained by a 38-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On August 14, 2021, the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant. The TPS advised that on August 14, 2021, at 8:54 a.m., police officers responded to Food Basics at 255 Morningside Avenue for a report of a person with a knife. The Complainant had pulled a knife on a customer in the store and then fled. Police officers arrived and found the Complainant at the rear of the store and arrested him after a short foot chase.
En route to TPS 43 Division, the Complainant attempted to kick out the police vehicle’s windows and had a medical episode. Toronto Emergency Medical Services responded, and the Complainant was transported to Rouge Valley Health System – Centenary Health Centre Site.
While being treated for the medical issue, the Complainant complained about his left ankle being sore. An X-ray of his left ankle was taken and, at 2:35 p.m., the Complainant was diagnosed with having sustained a fractured left ankle.
The Team
Date and time team dispatched: 08/14/2021 at 6:13 p.m.Date and time SIU responded: 08/14/2021 at 6:30 p.m.
Number of SIU Investigators assigned: 3
This was a scheduled response and the scene, which was located on the south driveway of the Food Basics at 255 Morningside Avenue, was not held.
Three SIU investigators worked on this investigation at different times.
Surveillance video from Food Basics was obtained from the TPS. In-car Camera System (ICCS) recordings from the TPS and the booking video were also obtained.
Four TPS police officers were designated as witness officials and three were interviewed.
One police officer was designated as a subject official and he provided the SIU both his notes and an interview.
Contact was not made with the Complainant for the purpose of signing a medical release.
The ambulance call report was requested.
Affected Person (aka “Complainant”):
38-year-old male interviewedThe Complainant was interviewed on August 14, 2021.
Civilian Witnesses
CW #1 Not interviewed (statement received from TPS)CW #2 Not interviewed (statement received from TPS)
Subject Officials
SO Interviewed, and notes received and reviewed The subject official was interviewed on August 24, 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
The witness officials were interviewed on August 17, 2021.
Evidence
The Scene
The scene was the driveway adjacent to the south side of the Food Basics at 255 Morningside Avenue. Physical Evidence
Three knives were located on the Complainant’s person by the TPS.Video/Audio/Photographic Evidence [1]
Surveillance Video Recordings - August 14, 2021 - Food Basics
Outdoor Receiving Camera 2 was located at the middle of the outside of the building, which afforded a view facing south to the driveway and the side of an adjacent building. At 9:03:27 a.m., WO #1 was seen pointing his firearm at the Complainant, who was on the ground.
At 9:03:29 a.m., a marked police vehicle appeared in the top left corner of the screen facing westbound. At about ten metres in front of the front driver’s side of the police vehicle, WO #1 was seen and the Complainant was on the ground.
At 9:03:41 a.m., WO #1 was approached by the SO. The Complainant got up off the ground and ran in a westerly direction off the side of the screen at 9:03:49 a.m. The Complainant was followed by the SO and then WO #1.
At 9:07:14 a.m., a fully marked grey-coloured TPS police vehicle drove west from the back of the building, and parked facing west, in the driveway. The uniformed male police officer exited the police vehicle and walked westbound off the side of the screen.
At 9:09:20 a.m., two uniformed police officers were seen at a distance walking the Complainant eastbound along the passenger side of the parked police vehicle. The Complainant walked with a noticeable limp. They continued eastbound to the back of the building and the SO’s police vehicle that was parked at the southeast corner of the building.
The recording from Outdoor Receiving Camera 3 was located at the southeast corner of the building and afforded a view of the driveway on the south side of Food Basics, in a westerly direction.
At 9:03:27 a.m., WO #1 ran from the left side of the screen chasing the Complainant on foot, in a westerly direction, along the driveway on the south side of the building. WO #1 had his handgun pointed at the Complainant and the Complainant fell to the pavement. A fully marked police vehicle belonging to the SO came into the screen from the side or back of the building. The SO exited the vehicle, and approached WO #1 and the Complainant. The Complainant got up off the ground and ran in a westerly direction followed by WO #1 and the SO. The SO passed WO #1 and caught up to the Complainant near the front of the building.
At 9:03:55 a.m., the SO was seen to grab the Complainant’s left hand from the Complainant’s left side and pull the Complainant to the ground. WO #1 caught up to the parties. A fully marked police vehicle approached from the front of the building.
ICCS Footage for TPS Police Vehicles
The SO’s ICCS VideoOn August 14, 2021, at 9:03:10 a.m., a TPS vehicle operated by the SO travelled southbound along the back of Food Basics at 255 Morningside Avenue. The vehicle turned right to travel westbound. WO #1 stood with his gun pointed at the Complainant at the south side of Food Basics.
At 9:03:30 a.m., the SO exited the driver’s door of his police vehicle, and came into view of the camera at the front of his police vehicle. The Complainant was seen to run westbound, along the south side of Food Basics, away from WO #1. WO #1 chased the Complainant as did the SO. The SO passed WO #1 and caught up to the Complainant. The SO took the Complainant to the pavement at 9:03:52 a.m. The specifics of the takedown could not be seen due to the distance from the ICCS camera.
At 9:10:10 a.m., the Complainant was placed in the back seat of the SO’s police vehicle from the passenger side. He asked for his medication and was refused by the police officer. The rear passenger door was closed at 9:12 a.m.
At 9:13 a.m., the Complainant kicked the rear passenger window several times with his right foot.
On August 14, 2021, a TPS vehicle operated by WO #3 approached the southwest corner of Food Basics, or front of the store, from a northerly direction. The Complainant was seen to lie on the ground face down, and the SO and WO #1 were kneeling over the Complainant. The police officers appeared to apply handcuffs.
At 9:09 a.m., the Complainant was brought to his feet and walked to a police vehicle parked to the east. The Complainant had a police officer on each of his arms, and he appeared unsteady on his feet.
The ICCS video from a TPS vehicle operated by WO #2 had no investigative value.
Communications Recordings
At 8:54 a.m., August 14, 2021, the TPS received a call from the Food Basics at 255 Morningside Avenue. The caller advised that the Complainant was trying to steal items, and he had pulled a knife. A description of the Complainant was provided. The Complainant had left the store. Further information indicated that the Complainant had the knife in his right hand, and the knife had a grey handle and was 10 to 12 centimetres in length. The Complainant had tried to steal wine. The Complainant was last seen headed towards Lawrence Avenue.At 9:03 a.m., WO #1 broadcast that he had the Complainant at the southeast corner of the store; the SO acknowledged.
At 9:04 a.m., WO #1 advised that they had the Complainant in custody, and they had a knife on the ground.
At 9:26 a.m., the SO advised that he was transporting the Complainant to TPS 43 Division.
At 9:29 a.m., the SO advised he had to pull over at Manse Avenue and Lawrence Avenue. The SO required an ambulance as the Complainant was suffering from medical distress.
At 9:31 a.m., the SO advised it sounded like the Complainant was having a panic attack.
Booking Video
At 5:22 p.m., the Complainant was brought into the booking hall by two uniformed police officers. WO #4 was behind the counter with two bookers. At 03:34 minutes into the video, the Complainant limped into the booking hall. One of the officers had his crutches. An officer informed the Complainant that he was being video recorded, and he then read him the charge of robbery and his rights to counsel. WO #4 explained that he would be searched because he previously had a knife. WO #4 asked him about his injury and the Complainant advised he had a broken left foot. The Complainant did not explain how his foot was broken. The Complainant advised he suffered from anxiety. He advised he had mental health issues but was not suicidal. He had no disabilities apart from his broken foot and he did not need assistive devices except for the crutches.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the TPS:• Booking Video;
• Event Details Report;
• Civilian Witness List;
• Civilian Witness Statement Summary-CW #1;
• Civilian Witness Statement Summary-CW #2;
• Communications recordings;
• General Occurrence-Records Release;
• Notes of the involved officers;
• Procedure-Arrest;
• Procedure-Use of Force;
• Surveillance Video - Food Basics;
• TPS Audio Interview of three civilian witnesses;
• TPS ICCS footage;
• TPS scene photos;
• TPS scene video; and
• Use of Force Training Records for the SO.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, including video footage that captured the incident in parts, and may be briefly summarized.
In the morning of August 14, 2021, TPS received a 911 call from the Food Basics at 255 Morningside Avenue, Toronto, reporting that a male had committed theft and threatened staff with a knife. The male was the Complainant. Police officers were dispatched to the scene.
WO #1 was the first to arrive at the store, shortly before 9:00 a.m., followed quickly by the SO. WO #1 spoke with employees, confirmed the information provided at dispatch, and was advised that the Complainant had left the store heading south towards Lawrence Avenue. The officer drove around the building and located the Complainant by the southeast corner of the Food Basics.
The Complainant noticed the officer and began to run westward along the southern side of the store. Within a short distance, the Complainant tripped and fell to the ground, where he was approached at gunpoint by WO #1. He remained on the ground for a brief period before lifting himself up and resuming his flight westward.
WO #1 gave chase, as did the SO, who had arrived at the back of the building to join his partner. The SO overtook WO #1, caught up to the Complainant and forced him to the ground.
Despite some struggle on the part of the Complainant, the SO, with the help of WO #1 and another officer arriving at the scene, WO #2, handcuffed the Complainant. Two knives were seized from the Complainant in subsequent searches of his person, as was a knife that the Complainant had tossed to the ground as he ran from the police.
Following his arrest, the Complainant was transported to hospital where he was diagnosed with a broken left ankle.
In the morning of August 14, 2021, TPS received a 911 call from the Food Basics at 255 Morningside Avenue, Toronto, reporting that a male had committed theft and threatened staff with a knife. The male was the Complainant. Police officers were dispatched to the scene.
WO #1 was the first to arrive at the store, shortly before 9:00 a.m., followed quickly by the SO. WO #1 spoke with employees, confirmed the information provided at dispatch, and was advised that the Complainant had left the store heading south towards Lawrence Avenue. The officer drove around the building and located the Complainant by the southeast corner of the Food Basics.
The Complainant noticed the officer and began to run westward along the southern side of the store. Within a short distance, the Complainant tripped and fell to the ground, where he was approached at gunpoint by WO #1. He remained on the ground for a brief period before lifting himself up and resuming his flight westward.
WO #1 gave chase, as did the SO, who had arrived at the back of the building to join his partner. The SO overtook WO #1, caught up to the Complainant and forced him to the ground.
Despite some struggle on the part of the Complainant, the SO, with the help of WO #1 and another officer arriving at the scene, WO #2, handcuffed the Complainant. Two knives were seized from the Complainant in subsequent searches of his person, as was a knife that the Complainant had tossed to the ground as he ran from the police.
Following his arrest, the Complainant was transported to hospital where he was diagnosed with a broken left ankle.
Relevant Legislation
Section 25(1), Criminal Code -- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(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,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Analysis and Director's Decision
On August 14, 2021, the Complainant was diagnosed with a serious injury following his arrest by TPS officers. 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 required or authorized to do by law. Based on what the officers had been told of the Complainant’s behaviour inside the Food Basics involving an alleged theft of store merchandise and threatening behaviour with a knife, there were lawful grounds to seek his arrest.
Thereafter, I am unable to reasonably conclude that the force used by the SO, namely, a takedown, was excessive. The Complainant was fleeing lawful arrest suspected of having a knife in his possession, which he had reportedly just used to threaten a Food Basics employee. In the circumstances, it was imperative that the Complainant be taken into custody as quickly as possible without opportunity for him to access any weapons he might have on his person. The takedown, executed as the SO grabbed hold of the Complainant’s left arm and then tripped him, accomplished just that. Though the Complainant offered a level of resistance on the ground, he was quickly subdued by the officers without any of the two knives he, in fact, carried with him having been brought to bear. No strikes of any kind were delivered by the officers.
For the foregoing reasons, though the Complainant might well have fractured his ankle when he was forcibly grounded by the SO, [2] I am satisfied that the officer comported himself lawfully throughout their engagement. Accordingly, there is no basis for proceeding with charges in this case, and the file is closed.
Date: November 22, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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. Based on what the officers had been told of the Complainant’s behaviour inside the Food Basics involving an alleged theft of store merchandise and threatening behaviour with a knife, there were lawful grounds to seek his arrest.
Thereafter, I am unable to reasonably conclude that the force used by the SO, namely, a takedown, was excessive. The Complainant was fleeing lawful arrest suspected of having a knife in his possession, which he had reportedly just used to threaten a Food Basics employee. In the circumstances, it was imperative that the Complainant be taken into custody as quickly as possible without opportunity for him to access any weapons he might have on his person. The takedown, executed as the SO grabbed hold of the Complainant’s left arm and then tripped him, accomplished just that. Though the Complainant offered a level of resistance on the ground, he was quickly subdued by the officers without any of the two knives he, in fact, carried with him having been brought to bear. No strikes of any kind were delivered by the officers.
For the foregoing reasons, though the Complainant might well have fractured his ankle when he was forcibly grounded by the SO, [2] I am satisfied that the officer comported himself lawfully throughout their engagement. Accordingly, there is no basis for proceeding with charges in this case, and the file is closed.
Date: November 22, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
- 2) The evidence also gives rise to the possibility that the Complainant’s injury was incurred in his first fall from the police. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.