SIU Director’s Report - Case # 21-TCI-318

Warning:

This page contains graphic content that can shock, offend and upset.

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.

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 serious injuries sustained by a 26-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 23, 2021 at 4:34 p.m., the Toronto Police Service (TPS) contacted the SIU and reported the following information.

At about 6:25 a.m. that morning, TPS officers responded to an address on Bevdale Road in Toronto for a home invasion. A male suspect had jumped from a second-floor window and fled the residence on foot. With the assistance of a police dog, the male was located hiding in the bushes a short distance from the scene. The man resisted arrest and was subdued by the police dog.

The man was taken to North York General Hospital (NYGH) and diagnosed with fractured ribs and a punctured lung along with some dog bites.

The man, identified as the Complainant, was to be held at 32 Division for a bail hearing in the morning.

The Team

Date and time team dispatched: 09/23/2021 at 5:28 p.m.

Date and time SIU responded: 09/23/2021 at 5:29 p.m.

Number of SIU Investigators assigned: 7

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

26-year-old male interviewed; medical records obtained and reviewed

The Complainant was interviewed on November 24, 2021.

Civilian Witnesses

CW Interviewed

The civilian witness was interviewed on October 15, 2021.

Subject Officials

SO Interviewed, and notes received and reviewed

The subject official was interviewed on December 16, 2021.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Interviewed
WO #8 Interviewed

The witness officials were interviewed between October 27, 2021 and November 29, 2021.
 

Evidence

The Scene

The scene of the Complainant’s arrest was in the backyard of a home on Bevdale Road, Toronto. The Complainant was found behind a small above-ground pool, beside the fence and near some bushes.

Video/Audio/Photographic Evidence [1]

Police Communications Summary

On September 23, 2021, at 6:24 a.m., the TPS Communications Centre received a telephone call from a female requesting police at an address on Bevdale Road. The sound of a struggle and raised voices were audible in the background. The caller said there was an intruder [now known to be the Complainant] in her house, and her son was holding him down on the floor. She said the Complainant was unknown to her and he had broken into her house and tied up her daughter. She said the Complainant was trying to get up and her son needed help.

At 6:26 a.m., the police radio call was dispatched to 32 Division units advising of an incident in progress call for service involving an intruder inside a home on Bevdale Road. Multiple police officers told the dispatcher they were responding.

The dispatcher provided timely updates from the call-taker, who kept the caller on the telephone until the responding police officers were with her.

The caller requested an ambulance for her daughter. The caller said the Complainant had a gun, but it was not real and it was laying on the floor. She later said the gun was on her bed. The caller’s son took the phone from his mother and said the Complainant had broken into their house. He was out of breath and said he pinned the Complainant down and had him confined in his sister’s bedroom. He provided a description of the Complainant. He said he had never seen the Complainant and that the Complainant told him he had gone into the wrong house. He said the Complainant had tied up his teenage sister’s wrists using a laptop computer charging cord.
At 6:30 a.m., a police officer said he had arrived at the home. On the phone the knock at the door was heard. The caller’s son invited the police officer into the residence and directed the police officer to his sister’s bedroom. He then told the call-taker that the Complainant had escaped out the window.

At 0631 a.m., WO #6 said the Complainant had jumped out a second story window and requested a TPS police service dog (PSD) be dispatched. WO #1 and Emergency Task Force (ETF) officers said they were responding.

At 6:33 a.m., a police officer said a replica airsoft firearm was recovered from the bedroom, and that the Complainant was last seen about seven minutes prior to the police having arrived.

At 6:36 a.m., WO #1 notified dispatch he was on scene.

At 6:53 a.m., ETF police officers, the SO, WO #2, WO #3, WO #4, WO #5, WO #7 and WO #8, arrived on scene.

At 6:56 a.m., WO #1 notified dispatch he was commencing a search for the Complainant down the street.

At 7:06 a.m., a police officer said the drone had been deployed, and a police officer asked the dispatcher to conduct a search on the Complainant’s vehicle that was parked on Bevdale Road.

At 7:34 a.m., the TPS Communications Centre received a phone call from a man [now known to be the CW] advising that, at 7:16 a.m., a man - the Complainant - had been in his backyard, although he was no longer there. He spoke of finding a broken fence and that the Complainant had been hiding at the very back of the property behind his pool. At 7:35 a.m., the dispatcher broadcasted the CW’s information.

At 7:38 a.m., WO #5 said he had detected a heat source in the backyard.

At 7:39 a.m., an ETF officer said ETF officers were at the address.

At 7:40 a.m., an ETF officer said they believed they “had” the Complainant.

At 7:41 a.m., an ETF officer confirmed they had the Complainant in custody.

At 7:42 a.m., an ETF officer asked the Tactical Paramedics to meet them and indicated they had the Complainant with them.

At 7:42 a.m., WO #1 notified the dispatcher a Scenes of Crime Officer was required to attend to photograph a dog bite.

At 7:44 a.m., an ETF officer asked other members of ETF how many Conducted Energy Weapons (CEWs) had been deployed. An ETF officer responded that one CEW had been deployed and one cartridge discharged with an unknown number of cycles. He said he had the spent CEW cartridge.

At 8:22 a.m., a police officer said the Complainant was being transported by ambulance to NYGH.
 

Surveillance Footage

The SIU obtained video from a surveillance camera at the scene of the arrest. There were three, 12-second long clips of video with garbled audio. The camera was motion-activated. The camera appeared to be behind an above-ground pool.

On September 23, 2021, at 7:02 a.m., a board was pulled off the wooden fence from the other side. The Complainant crawled through the opening into the backyard.

At 7:16 a.m., the Complainant was very close to the camera. The left side of his torso and his head were visible. He appeared to be on his knees with his head down, in his hands, almost on the ground, and very still and quiet. He briefly lifted and turned his head and looked at the camera, then put his head back down.
 

Cell Phone Video from the CW

The CW recorded one minute and nine seconds of the interaction on his cell phone. He said to someone in the background, “They got him.”

The recording did not capture the initial contact between ETF police officers and the Complainant. When the video commenced, the Complainant had already been pulled out into the open space from the confines of behind the pool.

The audio on the recording was very low, but the voices were consistent with verbal police commands. For most of the recording the camera auto-focused on the screen of the window the CW was recording through rather than on the interaction, making it very difficult to see what was going on.

Three ETF officers were engaged with the Complainant as he was on the ground. WO #1 and his leashed PSD were standing a few metres back from where the interaction was taking place and watching. An ETF officer was standing to WO #1’s left also observing the interaction.

About 44 seconds into the video, the Complainant was stood up and walked out from beside the pool. He was handcuffed behind his back. A quick pat down search was completed and the Complainant was walked across the lawn towards the gate to the front of the residence and out of camera view.

Body-worn Camera (BWC) Footage Summary – WO #6

WO #6’s camera was active from 7:08 to 8:05 a.m.

On September 23, 2021, at 7:10 a.m., WO #6 was securing an area on Bevdale Road with yellow caution tape. Contained within that area, and the focus of WO #6’s attention, was a parked and unoccupied white compact, four-door hatchback Toyota Matrix belonging to the Complainant.
WO #6 approached two men standing in the middle of Bevdale Road, one of whom was wearing a TPS uniform. The other man was wearing a business suit and was also believed to be a TPS police officer. WO #6 told the police officers that when he arrived at the address on Bevdale Road, he was directed by the frantic female resident to go upstairs. He went upstairs where he was met by the woman’s son, who told him the Complainant was in the bedroom. WO #6 said he opened the bedroom door and observed the window to be open and absent of a screen. WO #6 entered the bedroom and, when he looked out the window, he noticed personal belongings laying on the asphalt driveway below. WO #6 said as he was exiting the house, he spoke to the woman’s daughter and was told she had been tied up with phone cords and chargers for an hour. She said the Complainant punched and assaulted her.

WO #6 told the other police officers the son heard the commotion and jumped in, tackled the Complainant and was holding him down while his mother called the police. About seven minutes elapsed from the last time the Complainant was seen in the bedroom to when the police officers arrived.

At 7:21 a.m., WO #6 approached the Complainant’s vehicle and looked in the closed windows. He illuminated the interior with his flashlight and wrote in his police duty book. He looked at items scattered on the road near the back of the vehicle. At some point the audio recording was muted.

At 7:44 a.m., WO #6 and another TPS police officer ran from the proximity of the Complainant’s vehicle and up and around the bend of the road. As WO #6 ran, three ETF officers walked on the front lawn of a home towards the roadway. WO #6 approached the ambulance that was parked. The side and rear doors of the ambulance were open and there was an unidentified paramedic standing inside the side door, and another on the road in front of the back door. An ETF officer was standing beside the ambulance.

At 7:49 a.m., the Complainant was seated in the rear of the ambulance, facing towards the rear doors, receiving medical treatment. He was leaning forward and handcuffed behind his back.

At 7:50 a.m., the BWC audio was re-activated. The Complainant was heard identifying himself and conversing with the paramedic who was seated in the back of the ambulance. The Complainant was asked if his back hurt from when he left the house or when the PSD bit him. The Complainant offered a verbal reply that was unintelligible. The paramedic touched the Complainant on his upper back between his shoulder blades and ran his hand down his spine. The Complainant indicated he could not feel anything. The Complainant spoke very slowly, mumbled, and appeared groggy. He said he had taken “Eight … (unintelligible) Xanax and Meth.”

At 7:53 a.m., WO #6 was outside the ambulance standing on the road speaking with police officers. An unidentified police officer was heard estimating the drop from the window to be about 6.1 metres (20 feet).


Physical Evidence

The data contained in the CEW used by the SO in the course of the Complainant’s arrest were retrieved by the SIU on January 21, 2022. They established the following:

  • At 7:39:29 a.m., the CEW was triggered for five seconds;
  • At 7:40:05 a.m., the CEW was triggered for five seconds;
  • At 7:40:11 a.m., the CEW was triggered for five seconds; and
  • At 7:40:27 a.m., [fn]2/fn] the CEW was triggered for five seconds.

Materials Obtained from Police Service

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

  • Event Details Report;
  • BWC Footage;
  • Communication Recordings;
  • Civilian Witness List;
  • Notes of SO and WOs;
  • Occurrence with Supplementary Reports;
  • Scene photographs; and
  • TPS Use of Force Policy.

Materials Obtained from Other Sources

The SIU obtained and reviewed medical records for the Complainant from NYGH, video footage from the residence where the Complainant was arrested, and the CW’s cell phone video.

Incident Narrative

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO, and other TPS officers who participated in, or were present at, the arrest of the Complainant. The investigation was also assisted by video footage from a security camera that captured the incident in parts.

In the morning of September 23, 2021, TPS officers were dispatched to a home invasion in progress at a residence on Bevdale Road. The homeowner had called 911 at about 6:25 a.m. to report that a stranger had entered their house, assaulted her daughter, and fought her son as he went to the aid of his mother and sister. The caller further reported that the stranger had a gun.

The intruder was the Complainant. High on methamphetamine, the Complainant had entered the home having no association with any of its occupants and proceeded to terrorize them. Driven into a room on the second floor by the 911 caller’s son, he jumped from a window onto the driveway below and fled the scene. The Complainant scaled a fence and made his way across the backyards of neighbouring properties until he reached a perimeter fence. Not wishing to expose himself to responding police officers in the area by climbing the fence, the Complainant removed a couple of fence boards, crawled underneath, and hid in the southeast corner of the backyard beside a small pool and some bushes.

The Complainant had fled the residence by the time the first officers were arriving. Given the nature of the call, a team of ETF officers had also been dispatched. A search of neighbouring properties was organized in which a police dog handler – WO #1 – would accompany his dog on a track for the Complainant. A drone was also deployed to assist in locating the Complainant.

At about 7:35 a.m., the CW contacted police to report that a man – the Complainant – had broken into his backyard and concealed himself at the back of the property behind his pool. Apprised of this information, the drone operator positioned the craft above the property and broadcasted that he had detected a heat source in the backyard. WO #1 and his dog, followed by a group of ETF officers, headed to the location.

Once in the backyard, the police dog gave indication of having picked up a human scent, at which point WO #1 released the leash allowing the dog to search freely. The dog approached a bush in the southeast corner of the yard and immediately bit the Complainant, latching onto the side of his lower right torso. WO #1 called the dog off and ETF officers behind him moved in to physically engage with the Complainant.

The Complainant resisted his arrest and a struggle ensued where he had been located. The SO was the first of the ETF officers to confront the Complainant. He kicked the Complainant’s upper right side a couple of times when he refused to surrender his hands and, instead, reached with his right arm under a bush. The Complainant continued to struggle as other officers intervened to wrestle control of his arms. In the course of that struggle, WO #7 and WO #8 delivered strikes of their own and the SO drew his CEW and deployed it several times at the Complainant. Following the last of the CEW discharges and a knee strike to the back by WO #8, the Complainant was handcuffed with his hands behind his back by WO #2.

The Complainant was taken from the scene in ambulance to hospital. He was diagnosed with a right lateral sixth rib fracture resulting in a small right pneumothorax.

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

The Complainant was seriously injured in the course of his arrest by TPS officers in Toronto on September 23, 2021. One of the arresting officers – the SO – was identified as a subject official for purposes of the ensuing SIU investigation. The investigation is now concluded. 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 required or authorized to do by law.

Given the report of his recent violent acts in the home on Bevdale Road, the officers involved in the Complainant’s arrest had lawful grounds to seek to take him into custody.

As for the force that was brought to bear against the Complainant by the SO and other officers, I am satisfied that it was legally justified. The officers had cause to believe that the Complainant was armed and dangerous given the recent report of the violent home invasion he had just perpetrated. Consequently, it was imperative that the Complainant be taken into custody as soon as possible. In the circumstances, I am unable to fault WO #1 for releasing his dog when he did in an effort to neutralize the Complainant from a distance before the officers moved in. Thereafter, when the Complainant struggled with the officers, refused to release his hands to be handcuffed, and gave the officers reason to fear he might be reaching for a weapon as he reached under a bush and then kept his left hand concealed under his chest, the officers were entitled to resort to a measure of force. A couple of kicks to the right side and four CEW deployments by the SO, two to three punches to the left and right of the Complainant’s stomach above the waist followed by a knee strike to the back by WO #8, and several kicks of the Complainant’s right leg by WO #7, all delivered by the officers while the Complainant was physically resisting their efforts to secure him in restraints, would not appear a disproportionate response to the situation at hand.

In arriving at this conclusion, I have discounted evidence that the Complainant was subjected to unnecessary force by the officers. The source of this evidence was so intoxicated at the time of these events that it would be unwise and unsafe to place any credence on this account.

It remains unclear whether the Complainant’s injuries were the result of the force used by the police or his fall from the second floor window of the home and subsequent flight. Be that as it may, for the foregoing reasons, I am satisfied they are not reasonably attributable to any unlawful conduct on the part of the SO or the other arresting officers. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: January 21, 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]
  • 2) The times are derived from the internal clock of the CEW, and are not necessarily synchronized with actual time. [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.