SIU Director’s Report - Case # 21-TCI-305
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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.
- 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 the serious injury an 28-year-old man (the “Complainant”) suffered.
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 an 28-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On September 14, 2021, at 9:00 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.TPS reported that on September 13, 2021, a TPS sergeant was at a police liaison meeting with the Centre for Addiction and Mental Health (CAMH). He was advised by an employee in risk management that they were reviewing a file in which a patient, the Complainant, had been involved in an altercation with a TPS police officer at their facility. As a result, the Complainant received a fractured orbital bone.
TPS records showed that on July 28, 2021, two 51 Division police officers were at CAMH in the waiting room. The police officers approached the Complainant to get property back that belonged to another patient. An altercation occurred, and one of the police officers struck the Complainant in the face and took him to the ground.
Two TPS 14 Division police officers transported the Complainant to Mount Sinai Hospital (MSH) where he was diagnosed with a fractured orbital bone. He was formed under the Mental Health Act (MHA).
The TPS was not aware of the injury at the time because the police officers had left the hospital after the Complainant was formed.
The Team
Date and time team dispatched: 09/14/2021 at 10:03 a.m.Date and time SIU arrived on scene: 09/14/2021 at 10:12 a.m.
Number of SIU Investigators assigned: 1
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
Interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 29, 2021.
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
The civilian witnesses were interviewed between October 6 and 27, 2021,
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 InterviewedWO #2 Not interviewed, but notes received and reviewed
WO #3 Not interviewed, but notes received and reviewed
The witness official was interviewed on September 24, 2021.
Evidence
The Scene
The interaction between the Complainant and the police officers occurred in the reception area of the CAMH facility. The scene was not examined.Physical Evidence
Operation of the SO’s Duty Belt Clip
The SO’s duty belt clip was made of plastic and consisted of a clip that fitted into a receiver. The clip had two U-shaped clips that were compressed together to fit into the receiver, and there were two slots on the sides of the receiver that the clips snapped into. In addition, there was a large button on the top of the clip that depressed to fit into the receiver and a hole in the top of the receiver that this button snapped into. To release the clip from the receiver, it was necessary to compress the U-shaped clips together at the same time as the button was depressed to allow the clip to be removed from the receiver. This would normally require two hands to accomplish.
Video/Audio/Photographic Evidence [1]
Closed-circuit Television (CCTV) Footage from CAMH
A patient was seen in the main secured waiting room. A police officer [now known to be WO #1] was seated next to the patient. A male and female police officer appeared from the west and walked towards a door on the east corner of the screen.The two TPS police officers were followed by a man [now known to be the Complainant]. The Complainant flayed his hands as he followed the two police officers. The two police officers reached the door on the east of the screen and waved bye to the Complainant.
As the Complainant turned around, a medical staff member walked up and began to speak to the Complainant. Another TPS police officer [now known to be the SO] appeared from the west of the screen and walked to WO #1. The staff member pointed the Complainant to a seat, and she proceeded to open the door for the two initial TPS police officers to leave.
The Complainant walked towards the end of the main secured waiting room on the north of the screen and sat on a chair. He then laid down on the floor, and the SO sat on a chair close to him. The staff member approached the Complainant and appeared to speak with him for a while before she walked away. The Complainant got up and sat on a chair.
WO #1 and the SO appeared to watch the Complainant from their seats. After a while, WO #1 left his seat to sit on another chair, facing the Complainant’s direction. The Complainant reappeared on screen and sat on the seat that WO #1 had vacated. A patient with a white blanket, who had been obscured by a white pillar, appeared irritated by the Complainant. He got up and flung his blanket on the floor. He walked towards the security room and appeared to complain about the Complainant, who got up from the seat. The Complainant picked up what appeared to be a telephone and a pair of glasses that the irritated patient had left on a table beside his seat. The Complainant juggled the items for a moment and began to vigorously swing his arms backwards in a circular motion.
WO #1 approached the Complainant and tried to retrieve the items. The Complainant turned to walk away, and WO #1 pulled the Complainant around by the arm. The SO joined the interaction and grabbed the Complainant’s arms. He held the arms behind the Complainant’s back and pushed him against the wall. The staff member, who had been watching, turned to walk away just as WO #1 bent to pick up the items the Complainant had dropped on the floor. Two medical staff and a security officer rushed towards the Complainant and WO #1 and the SO. WO #1 appeared to speak with the three CAMH staff.
The SO grabbed the Complainant’s arms behind the back with his left hand. He pressed the Complainant’s head downwards with his right hand to control the Complainant and began to take the Complainant out of the main secured waiting room. One of the two security officers and a medical staff followed them closely behind. As the SO and the Complainant approached the entrance to the inner secured room, the Complainant’s right hand went down towards the SO’s duty belt. As they approached an inner secured room, the SO struck two blows towards the Complainant’s head, with his fist. A struggle ensued between the SO and the Complainant.
WO #1 and two security officers rushed forwards and joined in taking the Complainant to the floor.
The Complainant was carried onto a stretcher and put in mechanical restraints by four security personnel, five medical staff, and WO #1 and the SO.
Materials Obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials from TPS between September 15 and 21, 2021:- General Occurrence-Records Release;
- Event Details Report;
- Policy - Use of Force;
- Policy - Emotionally Disturbed Persons;
- Notes-WO #3;
- Notes-WO #1; and
- Notes-WO #2.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources between October 5, 2021 and November 24, 2021: - CAMH Incident Reports;
- Medical Records from MSH; and
- CCTV Footage from CAMH.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, WO #1 (who assisted in the Complainant’s arrest), and several civilian eyewitnesses. The investigation was also assisted by video recordings from security cameras that largely captured the incident. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the evening of July 28, 2021, the SO and his partner, WO #1, were in the waiting room of CAMH with a person who had been apprehended under the Mental Health Act. The person was the Complainant. Concerned about his brother’s mental health, a man had contacted police earlier that day with an authorization he had secured to have the Complainant admitted for examination.
While waiting with the Complainant to transfer him into the custody of the facility, the Complainant began to act up and become disruptive. His conduct aggravated another patient waiting to be seen, prompting that patient to complain about the Complainant at the nursing station. The Complainant took possession of several personal items the other patient had left behind – a phone and pair of glasses - and started to juggle them. Asked by WO #1 to return the items, the Complainant refused.
The SO moved in to take hold of the Complainant’s arms from behind. The officer brought the Complainant’s arms around his back, and escorted him towards another room off of the waiting room. Within a few steps, the Complainant reached behind the SO’s back towards the officer’s duty belt. The SO reacted by punching the Complainant.
Following the SO’s punches, he, together with WO #1 and three security guards, forced the Complainant to the ground. The Complainant was subsequently placed on a stretcher, to which his limbs were secured in restraints.
An ambulance was summoned and the Complainant was transported to hospital where he was diagnosed with a fractured right orbital bone.
In the evening of July 28, 2021, the SO and his partner, WO #1, were in the waiting room of CAMH with a person who had been apprehended under the Mental Health Act. The person was the Complainant. Concerned about his brother’s mental health, a man had contacted police earlier that day with an authorization he had secured to have the Complainant admitted for examination.
While waiting with the Complainant to transfer him into the custody of the facility, the Complainant began to act up and become disruptive. His conduct aggravated another patient waiting to be seen, prompting that patient to complain about the Complainant at the nursing station. The Complainant took possession of several personal items the other patient had left behind – a phone and pair of glasses - and started to juggle them. Asked by WO #1 to return the items, the Complainant refused.
The SO moved in to take hold of the Complainant’s arms from behind. The officer brought the Complainant’s arms around his back, and escorted him towards another room off of the waiting room. Within a few steps, the Complainant reached behind the SO’s back towards the officer’s duty belt. The SO reacted by punching the Complainant.
Following the SO’s punches, he, together with WO #1 and three security guards, forced the Complainant to the ground. The Complainant was subsequently placed on a stretcher, to which his limbs were secured in restraints.
An ambulance was summoned and the Complainant was transported to hospital where he was diagnosed with a fractured right orbital bone.
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 July 28, 2021, the Complainant was seriously injured in the course of his arrest by two TPS officers. One of the 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. When the Complainant took possession of another patient’s personal property, refused to return it, and then risked damaging the items, he was subject to lawful arrest on any number of grounds, including on the basis of theft. Once in the lawful custody of the SO, the officer was entitled to control the Complainant’s movements in the interests of his safety and those around him.
Thereafter, I am satisfied that the force brought to bear by the SO, namely, a punch to the right side of the Complainant’s face followed immediately by a second punch that may or may not have struck the Complainant’s head, was legally justified. The officer had a hold of the Complainant’s arms behind his back as he escorted him towards another room in the emergency department of CAMH. In that position, the Complainant was somehow able to reach behind the SO’s back with his right hand towards the officer’s duty belt, after which the officer delivered the two punches in quick succession. The Complainant’s act, depicted in the video footage of the incident, lends credence to utterances made by the SO in the wake of the incident that he punched the Complainant fearing he was reaching for the officer’s gun. If that was the case, and I accept that the officer at least had a reasonable apprehension along those lines, than I am unable to reasonably conclude that the force used by the SO was excessive given the need to quickly and decisively bring the Complainant under control.
In the result, there are no reasonable grounds to believe that the SO comported himself other than lawfully in his dealings with the Complainant. Accordingly, there is no basis for proceeding with charges in this case, and the file is closed.
Date: January 10, 2022
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. When the Complainant took possession of another patient’s personal property, refused to return it, and then risked damaging the items, he was subject to lawful arrest on any number of grounds, including on the basis of theft. Once in the lawful custody of the SO, the officer was entitled to control the Complainant’s movements in the interests of his safety and those around him.
Thereafter, I am satisfied that the force brought to bear by the SO, namely, a punch to the right side of the Complainant’s face followed immediately by a second punch that may or may not have struck the Complainant’s head, was legally justified. The officer had a hold of the Complainant’s arms behind his back as he escorted him towards another room in the emergency department of CAMH. In that position, the Complainant was somehow able to reach behind the SO’s back with his right hand towards the officer’s duty belt, after which the officer delivered the two punches in quick succession. The Complainant’s act, depicted in the video footage of the incident, lends credence to utterances made by the SO in the wake of the incident that he punched the Complainant fearing he was reaching for the officer’s gun. If that was the case, and I accept that the officer at least had a reasonable apprehension along those lines, than I am unable to reasonably conclude that the force used by the SO was excessive given the need to quickly and decisively bring the Complainant under control.
In the result, there are no reasonable grounds to believe that the SO comported himself other than lawfully in his dealings with the Complainant. Accordingly, there is no basis for proceeding with charges in this case, and the file is closed.
Date: January 10, 2022
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]
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.