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 55-year-old man (the “Complainant”).

Notification of the SIU

On June 17, 2021, at 2:00 a.m., the Toronto Police Service (TPS) notified the SIU of an injury that occurred the previous day. The TPS reported that on June 16, 2021, at 3:35 p.m., the Subject Official (SO) was driving into the rear parking lot of 31 Division station via a security gate when a male walked through the gate into the parking area. The SO challenged the male, later identified as the Complainant, who became assaultive toward the SO. The Complainant was arrested by the officer with the assistance of Witness Official (WO) #2.

The Complainant was taken into 31 Division station where he complained of a sore back and was subsequently taken to Etobicoke General Hospital. At 12:35 a.m., the Complainant was diagnosed with transverse fractures to the L1 to L4 vertebrae.

The Scene

The incident occurred in the parking lot of TPS 31 Division, 40 Norfinch Drive, Toronto.

As this incident was reported over 11 hours after it occurred, there was no scene for examination and no physical evidence collect.

Video/Audio/Photographic Evidence[1]

The SIU requested and received digital recordings from 31 Division station security cameras and body-worn cameras (BWC) worn by two police officers involved in this incident.

Recordings from 31 Division station security cameras recorded the Complainant walking into the open gateway at 3:35 p.m., ahead of a black Dodge Journey, immediately after the gate opened when WO #1 released it with a security pass.

Unfortunately, none of the cameras around the station exterior were oriented to record the area where the arrest was effected. A camera mounted near the sallyport recorded the Complainant being escorted to the area at 3:46:41 p.m., after he was arrested.

Recordings from WO #2’s BWC started after the Complainant was handcuffed. The Complainant was seen with what appeared to be fresh abrasions above his right eyebrow and above his right knee. When the camera’s audio recording was activated,[2] the SO detailed the reasons for the Complainant’s arrest and the charges he faced. When he said the Complainant was being charged with assaulting police and added, “Specifically me,” the Complainant retorted, “After you kicked my fucking ass?” to which the SO responded, “No. Before.” The SO went on to say, “Force was used during the arrest. The injury to his head is likely from the arrest. I didn’t notice it before. The one from his knee is definitely from the arrest.” He also said, “Several strikes to his kidney. Says he doesn’t have any soreness to it right now, but he might. But he was punched several times in the back to secure his hands back during the arrest.”

In speaking with the police officers, the Complainant told one he was arrested when “I just rode through” the parking lot.[3] When WO #2 told the Complainant he walked in and pointed out that the bicycle in view was his (WO #2’s), the Complainant appeared surprised, saying, “I walked in? Where’s my bike then? Ah fuck guys, seriously?”

When WO #2 verbally engaged with the Complainant, telling him he should have left the premises when given the opportunity, the Complainant challenged him, responding, “What are you, military?” When the Complainant asked for an ambulance, WO #2 asked him his age. The Complainant said he was 60-years-old.[4]

The following scenario emerges from the weight of the evidence, which included interviews with the Complainant and officers involved in his arrest. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the afternoon of June 16, 2021, the Complainant walked onto the secure parking lot of 31 Division at 40 Norfinch Drive, Toronto. He did so just ahead of an unmarked police vehicle, whose driver had opened the security gate to enter onto the grounds. The police vehicle travelled past the Complainant and stopped, after which the front seat passenger – the SO – exited. Asked what he was doing and cautioned that he was trespassing, the Complainant told the officer to “fuck off” and then adopted an aggressive posture. He batted away an arm the SO had raised in his direction.

The driver of the police vehicle, WO #1, seeing what had just occurred, rushed towards the Complainant, grabbed him by the upper body, and threw him to the ground. He and the SO, joined in short order by several other officers from the station alerted to the commotion, struggled with the Complainant on the ground.

The Complainant, in a prone position, refused to release his arms from underneath his body, and was punched to the right side multiple times by the SO. Following the strikes, the officers were able to wrestle free the Complainant’s arms and handcuff them behind his back.

The Complainant was taken to hospital after his arrest and diagnosed with fractures of the lower back.

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 June 16, 2021, the Complainant suffered serious injuries in the course of his arrest by TPS officers on the grounds of 31 Division. 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 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 authorized or required to do by law. The Complainant trespassed on the grounds of 31 Division, refused to leave when directed, and assaulted the SO by swatting away an arm he had extended in a defensive posture. The Complainant was clearly subject to arrest.

I am further satisfied that there is insufficient evidence to reasonably conclude the SO, or any of the other involved officers, used excessive force in taking the Complainant into custody. The evidence establishes that the Complainant adopted a combative posture toward the SO when asked what he was doing, and then proceeded to strike one of the officer’s arms. In the circumstances, I accept that the takedown executed by WO #1 was a tactic reasonably available to the officer as it promised to immediately deter any further aggression on the Complainant’s part by placing him at a positional disadvantage. The Complainant resisted strenuously on the ground, and it ultimately required the combined strength of at least four officers to wrestle control of his arms. On this record, I am not reasonably persuaded that the punches struck by the SO and the use by WO #1 of his knee on the Complainant’s back, to keep him down on the ground, constituted unnecessary and disproportionate force. Once the handcuffs were applied, no further force was used.

There is some evidence that the Complainant was kicked and stomped by officers for five to ten minutes; however, it would be unsafe to rely on this evidence without corroboration. The BWC captured the source of this evidence asserting factual statements that were clearly not accurate, and the source had also consumed alcohol in excess prior to the events in question, calling into question their ability to accurately perceive and recall the incident. In light of these and other frailties in this evidence, it is not sufficiently cogent to warrant being put to the test by a trier of fact.

In the result, while the Complainant’s back was fractured in the physical altercation that marked his arrest, there are no reasonable grounds to believe his injuries were the result of unlawful conduct on the part of the involved officers, including the SO. Accordingly, there is no basis for proceeding with charges in this case, and the file is closed.

Date: December 20, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit