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.

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 22-year-old man (the “Complainant”).

Notification of the SIU

On July 8, 2021 at 1:22 p.m., the Toronto Police Service (TPS) reported that, at 1:03 a.m., TPS officers had responded to the area of Bathurst Street and Finch Avenue for a firearms discharge incident. On arrival they encountered the Complainant. When police officers attempted to arrest the Complainant, he actively resisted, and was grounded and injured during the arrest. He was transported to North York General Hospital where he was examined and diagnosed with a broken nasal bone.

The Team

Date and time team dispatched: 07/08/2021 at 2:17 p.m.

Date and time SIU arrived on scene: 07/08/2021 at 3:40 p.m.

Number of SIU Investigators assigned: 5

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on July 8, 2021.

Civilian Witnesses

CW Interviewed

The civilian witness was interviewed on August 12, 2021. Another eight civilian witnesses were identified from police reports and witness official memo book entries. Following review of their anticipated evidence, however, none were interviewed as they had not witnessed the Complainant’s arrest.

Subject Officials

SO #1 Interviewed, and notes received and reviewed
SO #2 Interviewed, and notes received and reviewed

The subject officials were interviewed on December 13, 2021.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed
WO #11 Interviewed
WO #12 Interviewed
WO #13 Not interviewed, but notes received and reviewed
WO #14 Not interviewed, but notes received and reviewed

The witness officials were interviewed between October 28, 2021 and December 3, 2021.

Investigative Delay

This investigation was initially assigned for investigation on July 8, 2021. Following interviews with the Complainant and the security guard who was shot at by the Complainant, on July 8 and August 21, 2021, respectively, it appears the investigation did not progress further.[1]

On October 7, 2021, the investigation was reassigned. Review of the investigative file resulted in witness and subject official designations, and interviews and contact with civilian witnesses.

The Scene

At the time the SIU was notified, the TPS advised there was no scene for examination.

This incident occurred outside the main entrance of a residential high-rise building in the area of Bathurst Street and Finch Avenue in Toronto.

The SIU received copies of scene photographs taken by TPS forensic investigators.

The Complainant was arrested along the east section of the front of the building’s sidewalk and landscaped area. A photograph taken by TPS forensic investigators showed the same general area with the landscaped area where this incident occurred, and within which a firearm and a screwdriver were found, secured with police tape.

Video/Audio/Photographic Evidence[2]

Closed-circuit Television (CCTV) Recordings

A canvass of the area where this incident occurred revealed CCTV security cameras around the building property.

The recordings showed images of the Complainant drawing a firearm, pointing it at the CW and discharging it twice, as the CW fled.

There were no cameras aligned to view the area where the Complainant was arrested.

In-car Camera System (ICCS) Recordings

ICCS recordings were received from 17 TPS cruisers that were dispatched to this incident. A review of the recordings revealed that the majority of the cruisers either did not end up responding or were parked away from the area of arrest.

Recordings from the following vehicles captured video or audio recordings of evidentiary value.

ICCS recordings from SO #1 and SO #2’s cruiser captured their arrival at the building at 1:11 a.m. After speaking to a security guard, at 1:12 a.m. a radio transmission was heard advising everyone to take cover. At 1:13 a.m., it was reported that four gunshots were fired from an unknown location.

SO #1 and SO #2 drove closer to the building, arriving at 1:16 a.m. Although the ICCS video did not capture the arrest, SO #2’s wireless microphone captured portions of audio and dialogue during the arrest. Commands to, “Don’t fucking move,” and, “Give me your hands,” were heard, along with other dialogue and what sounded like the Complainant moaning.

At 1:19 a.m., it was reported that a firearm was located.

At 1:21 a.m., SO #2 returned to the cruiser and moved it to the visitor parking lot. The Complainant was heard yelling and, at 1:22 a.m., he was seated in the rear seat. He was handcuffed with his hands behind his back and was shirtless with his pants lowered to around his ankles. The Complainant moaned and repeatedly asked for help. When SO #2 checked on him, the Complainant said his face hurt. At 1:39 a.m., SO #1 and SO #2 left the area and met with paramedics on the road. The Complainant was transferred to the ambulance and SO #1 rode to the hospital in the ambulance while SO #2 followed in the cruiser.

The ICCS recording from WO #1 and WO #8’s cruiser captured their arrival at the building at 1:09 a.m. Between 1:12 and 1:16 a.m., nine gunshots were heard on the police officers’ wireless microphones. Following that, WO #1 was heard yelling, “Don’t move,” “Stay where you are,” “Get back,” “Let’s see your hands,” and, “Walk toward me.” After that, screaming was heard along with the Complainant moaning and repeatedly saying, “Stop,” while police officers told him to, “Shut up.”

ICCS recordings from WO #2’s cruiser as she drove to the scene captured audio reports advising police officers of an active shooter and to take cover. On her arrival at the building, she was advised to take cover. At 1:18:47 a.m., out of the camera frame view, police officers were heard yelling, “Put up your hands,” “Where is the gun?” and, “Stay on the ground.” Shortly thereafter, the Complainant was heard saying, “I didn’t do anything.” At 1:20:17 a.m., it was reported that the Complainant was in custody.

WO #4 and WO #9’s cruiser recorded their entrance at the building driveway as it was reported that shots were fired. A police officer, now known to be WO #12, was seen hiding behind a pillar at the front entrance as someone entered the lobby.

WO #4 then reversed the vehicle and came to a stop with the entrance out of view.

Body-worn Camera (BWC) Recording

The BWC recording was unremarkable. The Complainant was heard exclaiming pain and repeatedly saying, “No,” before he was brought to his feet and carried out of the camera view.

Materials Obtained from Police Service

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

• Computer-assisted Dispatch Records;
• General Occurrence;
• Notes of SOs and WOs;
• Officer List;
• Injury Report;
• ICCS Footage;
• BWC Footage;
• TPS Photographs; and
• Communications Recordings.

Materials Obtained from Other Sources

The SIU also obtained security camera video footage from the building where the shooting occurred and the Complainant’s medical records.

The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant, both subject officials, a civilian eyewitness, and several police officers who were present at the time of the Complainant’s arrest. The investigation was also assisted by audio-video recordings from several ICCSs that captured the incident in parts.

In the early morning hours of July 8, 2021, the Complainant became belligerent with a member of the security staff of a building at Bathurst Street and Finch Avenue, the CW, retrieved a gun from his possession and fired it at the CW, nearly missing his target. The CW called 911 and reported the matter to the police as the Complainant fled outside.

Multiple police officers converged on the scene. The first to arrive, shortly after 1:00 a.m., were WO #7 and WO #12. As they spoke with the CW in the building lobby, a further gunshot was heard, prompting the officers to take cover and WO #12 to broadcast a warning that there was an active shooter in the area. Shortly thereafter, a further volley of gunshots was heard by the officers in the area, some of whom were a distance north of the building’s front entrance behind the cover of their cruisers.

WO #12 exited the building and began to make his way carefully east along the sidewalk leading to the visitors’ parking, east of the front entrance. As he did so, the officer saw the Complainant stand up a distance east of him on the sidewalk. He had emerged from an area of bushes and trees by the north side of the building. WO #12’s firearm drawn and pointed at him, the officer approached the Complainant and ordered him to the ground. The Complainant did not do so, and was kicked in the chest by the officer.

Felled by the kick onto a grassy area, the Complainant rolled into a prone position as other officers rushed towards the area to assist WO #12, among them WO #1, SO #1 and SO #2. The Complainant was told to put his arms behind his back and was met with a series of strikes when he failed to do so. From a position on his right side, WO #1 delivered two knee strikes into the Complainant’s torso. The Complainant was punched twice in the lower back and hip area by SO #2, and multiple times in the left upper arm and shoulder by SO #1. The struggle lasted about a minute before the officers were able to wrestle control of the Complainant’s arms and handcuff them behind his back.

A revolver was located by the officers in the bush area within metres of the site of the Complainant’s arrest.

Following his arrest, the Complainant complained of pain. He was taken by ambulance to hospital where he was diagnosed with a broken nose.

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,

The Complainant suffered a serious injury in the course of his arrest by TPS officers on July 8, 2021. Among the arresting officers, SO #1 and SO #2 were identified as subject officials 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 either subject official 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. The police officers responding to the scene had every reason to believe that the Complainant had fired a gun at the CW. That was the information provided to them at dispatch, and confirmed by WO #7 and WO #12 in conversation with the CW at the scene. The Complainant was clearly subject to arrest.

With respect to the force used by the officers in taking the Complainant into custody, I am unable to reasonably conclude that it was anything other than lawful. The officers had cause to be extremely concerned about the threat the Complainant presented. It was their information at the time that the Complainant had just fired a gun at the CW without provocation, and they had arrived at the scene to the sound of additional gunfire. There was a clear and pressing need to take the Complainant into custody as quickly as possible. In the circumstances, when he resisted his arrest, refused to release his hands from underneath his torso, and kicked out with his legs, the officers were entitled to resort to a measure of force to subdue and arrest the Complainant, particularly as he was suspected of having a gun on him at the time. A takedown, followed by a series of punches and knee strikes delivered as the struggle unfolded, would not appear to have been excessive given the exigencies of the situation.

It remains unclear precisely how the Complainant’s nose was broken. The force described by the officers would not appear to have impacted the Complainant’s face, albeit there is the possibility that they were mistaken about where their blows landed given the dynamics at play. Be that as it may, as there are no reasonable grounds to believe that the Complainant was subjected to unjustified force, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: February 7, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit