SIU Director’s Report - Case # 21-TCI-359
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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 a 21-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 a 21-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On October 24, 2021 at 7:04 a.m., the Toronto Police Service (TPS) contacted the SIU and reported the following.On October 23, 2021, the Complainant was arrested by TPS officers and taken to 32 Division. It was noted at the time of booking that the Complainant had numerous pre-existing small cuts and abrasions to his face. The Complainant was lodged in a cell.
While in his cell, the Complainant attempted to tie his sweatshirt around his neck and hang himself. A Service Employee Witness (SEW) intervened and tried to remove the sweatshirt. The Complainant resisted and fought with the two special constables. The Subject Official (SO) assisted the special constables and delivered two open-hand strikes to the Complainant’s face. The sweatshirt was obtained.
The Complainant was taken to the North York General Hospital (NYGH) and examined. He was diagnosed with a small fracture in his nose.
The Complainant was released back to the TPS and was to be held for a bail hearing later in the day.
The Team
Date and time team dispatched: 10/24/2021 at 8:10 a.m.Date and time SIU arrived on scene: 10/24/2021 at 10:24 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
21-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on October 24, 2021.
Subject Official
SO Interviewed, and notes received and reviewedThe subject official was interviewed on November 15, 2021.
Witness Officials (WO)
WO #1 Notes reviewed, interview deemed not necessaryWO #2 Notes reviewed, interview deemed not necessary
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Interviewed
WO #5 Notes reviewed, interview deemed not necessary
The witness official was interviewed on October 27, 2021.
Service Employee Witness (SEW)
SEW InterviewedThe service employee witness was interviewed on October 27, 2021.
Evidence
The Scene
The incident occurred inside a cell at TPS 32 Division. Video/Audio/Photographic Evidence [1]
Police Communication Recordings
On November 3, 2021, the SIU received communications recordings from the TPS. The following is a summary of the recordings.On October 23, 2021, at 2:42:09 a.m., a caller requested that Emergency Medical Services (EMS) attend an address in North York for the Complainant, who had overdosed on ten painkillers within the past hour.
At 2:53:13 a.m., WO #1 and WO #2 were dispatched.
At 2:57:42 a.m., the caller indicated that the Complainant was cautioned as ‘violent’ and wanted in another province.
At 3:14:20 a.m., WO #1 and WO #2 arrested the Complainant under the Mental Health Act.
At 3:15:26 a.m., WO #2 was on board the ambulance for transport to the NYGH.
At 8:42:23 a.m., an officer transported the Complainant to 32 Division.
At 9:53:35 a.m., the booking officer [2] requested EMS for the Complainant, who believed that half-an-ounce of cocaine he had earlier inserted in his rectum was leaking.
At 10:13:31 a.m., the Complainant was transported by the EMS to the NYGH.
At 2:31:09 p.m., the Complainant was transported back to 32 Division.
Police Custody Video Footage
On October 25, 2021, the SIU received custody video files from the TPS. The video depicted the Complainant’s cell inside TPS 32 Division. There was no audio. The following is a summary.At 02:16 minutes into the recording, the Complainant was escorted into a cell by two special constables. He had his hands cuffed in front of his body and was wearing a hooded sweatshirt. He had dark bruises around both of his eyes. A special constable removed the handcuffs and closed the cell door. The Complainant lay down on the bed.
At 44:48 minutes, the Complainant removed his sweater and tied it around his neck.
At 46:42 minutes, the Complainant sat up on the bed and began tightening the sweater around his neck.
Between 46:53 and 47:07 minutes, the SEW arrived outside the cell and began speaking to the Complainant. The SO arrived outside the cell and put on blue latex gloves. The SEW and the SO spoke with the Complainant from outside of the cell. The Complainant had the sweater wrapped around his neck with his arms crossed.
At 47:30 minutes, the SEW opened the cell door. The SO went inside first, grabbed the Complainant by both shoulders, and pushed him onto the bed. The SEW entered the cell immediately after the SO. The Complainant resisted being pushed to the bed and returned to a seated position. He began kicking at the SO and the SEW.
At 47:33 minutes, the SEW grabbed the Complainant by the right shoulder and pinned him against the wall. The SO delivered a closed-handed punch with his left arm hitting the Complainant in the face. The Complainant pulled forward and the SO delivered a second closed-handed punch with his left arm hitting the Complainant in the face.
Between 47:41 and 47:45 minutes, the SO put the Complainant’s right arm behind his back and pushed him forward into a bent over position, while the SEW pushed down on his left side. The SEW removed the sweater and threw it outside of the cell while he held onto the Complainant’s left arm.
At 47:56 minutes, the SEW handcuffed the Complainant with his hands behind his back.
At 48:12 minutes, the SEW and the SO pushed the Complainant onto the bed onto his right side. The SEW and the SO held the Complainant on his side on the bed. The SO pushed down on the Complainant’s left shoulder using his left arm. The SEW pushed down on the Complainant’s left arm using both of his arms.
Between 48:21 and 48:52 minutes, WO #5 and WO #4 arrived and stood outside the cell entrance, subsequently leaving the area.
Between 49:48 and 50:17 minutes, WO #4 returned carrying leg restraints. He placed the leg restraints on the Complainant’s legs. The SO released his hold of the Complainant. The SEW continued to hold him by the left arm forcing him onto his side on the bed.
At 50:35 minutes, WO #4 and the SO exited the cell. WO #4 directed the SEW to raise the Complainant into a seated position, while the SEW remained holding the Complainant’s left side.
Between 51:39 and 52:36 minutes, WO #5 returned with a white one-piece suit and provided it to the SO. The SO entered the cell and, with the assistance of the SEW, placed the Complainant onto his left side on the bed. The SEW then removed the leg restraints and handed them to WO #5 outside the cell.
At 53:59 minutes, WO #4 returned and stood outside the cell. The SEW removed the handcuffs and then exited the cell with the SO.
At 54:34 minutes, the cell door was closed, and the Complainant removed his sweatpants and put on the white one-piece suit. WO #4 had a conversation with the Complainant while he put on the suit.
At 56:05 minutes, the Complainant spoke to WO #4 while pointing at the left side of his face, which had blood on it.
At 56:05 minutes, WO #4, the SO, WO #5, and the SEW left the area.
At 1:26:40 hours into the recording, the Complainant was provided with a black mask as two officers handcuffed him with his hands behind his back while he remained in the cell.
At 1:28:21 hours, the Complainant was removed from the cell.
In-car Camera System (ICCS) Video Footage
On October 25, 2021, the SIU received a copy of video captured by the ICCS belonging to a vehicle operated by WO #3 and a vehicle operated by Officer #1. [3] The following is a summary of the video.WO #3’s ICCS Video
On October 23, 2021, at 5:36:47 p.m., the Complainant was being escorted by WO #3 from the sally port towards his police vehicle. The Complainant’s face was red and his right eye was swollen shut. The Complainant was lodged in the rear driver’s seat, and WO #3 departed the 32 Division parking lot.
At 5:51:29 p.m., WO #3 arrived at the NYGH. The Complainant said, “My eye is swollen shut. Look how bad it is. It’s swollen shut.” The Complainant exited the police vehicle and sat in a wheelchair.
Officer #1’s ICCS Video
On October 23, 2021, at 8:33:40 a.m., a special constable and the Complainant were standing in front of Officer #1’s police vehicle. Officer #1 informed the Complainant he was going to conduct a frisk search on camera.
At 8:34:38 a.m., the Complainant was escorted out of camera view and was asked questions related to COVID-19.
At 8:40:33 a.m., the Complainant was lodged in the rear driver’s seat of Officer #1’s police vehicle. He had black eyes. Officer #1 told a dispatcher he was transporting the Complainant to 32 Division.
At 8:41:33 a.m., the Complainant said, “Holy fuck! I drank so much last night.”
At 8:51:20 a.m., Officer #1 arrived at 32 Division.
At 9:03:13 a.m., the Complainant exited Officer #1’s police vehicle and went out of camera view. Officer #1 read the audio and video monitoring notice to the Complainant.
At 2:33:16 p.m., the video re-started. The Complainant was seated in the rear of Officer #1’s police vehicle.
At 2:50:10 p.m., Officer #1 arrived at 32 Division. The Complainant exited Officer #1’s police vehicle.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from TPS between October 24, 2021 and November 15, 2021:- General Occurrence;
- Involved Officers List;
- Mugshot-the Complainant;
- Notes-WO #5;
- Notes-WO #1;
- Notes-WO #3;
- Notes-the SO;
- Notes-WO #4;
- Notes-WO #2;
- Notes-the SEW;
- Policy-Arrest;
- Policy-Emotionally Disturbed Persons Appendix A and B;
- Policy-Use of Force;
- Use of Force Licence-the SO;
- Custody Footage;
- ICCS Video Footage;
- Scene Photographs; and
- Communication Recordings.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Toronto EMS Ambulance Call Reports (x2);
- Toronto EMS Incident Reports (x2); and
- Medical Records (x2) – the Complainant.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, and may be briefly summarized.
At about 4:35 p.m. of October 23, 2021, having been recently returned to a 32 Division cell from a visit to hospital, the Complainant wrapped a sweatshirt around his neck and started to tighten it. A special constable – the SEW – alerted the SO to what was happening and requested that he accompany him to the cell. When asked what he was doing, the Complainant replied that he was attempting to kill himself. Directed to remove the sweatshirt from his neck, the Complainant refused.
Led by the SO, the officer and the SEW entered the cell and took physical hold of the Complainant. The Complainant flailed his legs, striking the officer and special constable as they attempted to control him and remove the sweater. The SO reacted by delivering two left-handed punches to the right side of the Complainant’s face. Following a brief further period of struggle, during which the parties grappled and the Complainant was subdued, the sweater was removed and the Complainant was handcuffed behind the back by the SEW.
The Complainant was subsequently taken to hospital where he was diagnosed with a broken nose.
At about 4:35 p.m. of October 23, 2021, having been recently returned to a 32 Division cell from a visit to hospital, the Complainant wrapped a sweatshirt around his neck and started to tighten it. A special constable – the SEW – alerted the SO to what was happening and requested that he accompany him to the cell. When asked what he was doing, the Complainant replied that he was attempting to kill himself. Directed to remove the sweatshirt from his neck, the Complainant refused.
Led by the SO, the officer and the SEW entered the cell and took physical hold of the Complainant. The Complainant flailed his legs, striking the officer and special constable as they attempted to control him and remove the sweater. The SO reacted by delivering two left-handed punches to the right side of the Complainant’s face. Following a brief further period of struggle, during which the parties grappled and the Complainant was subdued, the sweater was removed and the Complainant was handcuffed behind the back by the SEW.
The Complainant was subsequently taken to hospital where he was diagnosed with a broken nose.
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 diagnosed with a serious injury following an altercation with police personnel in a cell on October 23, 2021. The SO – an officer involved in the altercation - was identified as a subject official for purposes of the 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 altercation and the Complainant’s 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 authorized or required to do by law.
There is no suggestion in the evidence that the Complainant’s arrest was unlawful. He was being held in police custody for having violated the terms of a release order. Once in lawful custody, the police were entitled to exercise reasonable control over the Complainant’s liberty to ensure his safety and theirs as he was processed through the system. In the instant case, this included removing the sweater from the Complainant that he had been using to attempt to self-harm.
With respect to the force used by the SO, I am satisfied that it was legally justified. The Complainant had refused to willingly surrender his sweater, and fought the officers as they entered the cell to take it from him. In the circumstances, the SO was entitled to resort to a measure of force to deter the Complainant’s aggression and effect his purpose. I am unable to reasonably conclude that two punches, delivered right after the Complainant had kicked the officer and the SEW, was excessive. No further strikes were delivered by the SO.
In the result, while it may well be that the Complainant’s broken nose was the result of one or both punches struck by the SO, [4] there are no reasonable grounds to believe that the officer comported himself unlawfully in their brief engagement. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: February 18, 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 authorized or required to do by law.
There is no suggestion in the evidence that the Complainant’s arrest was unlawful. He was being held in police custody for having violated the terms of a release order. Once in lawful custody, the police were entitled to exercise reasonable control over the Complainant’s liberty to ensure his safety and theirs as he was processed through the system. In the instant case, this included removing the sweater from the Complainant that he had been using to attempt to self-harm.
With respect to the force used by the SO, I am satisfied that it was legally justified. The Complainant had refused to willingly surrender his sweater, and fought the officers as they entered the cell to take it from him. In the circumstances, the SO was entitled to resort to a measure of force to deter the Complainant’s aggression and effect his purpose. I am unable to reasonably conclude that two punches, delivered right after the Complainant had kicked the officer and the SEW, was excessive. No further strikes were delivered by the SO.
In the result, while it may well be that the Complainant’s broken nose was the result of one or both punches struck by the SO, [4] there are no reasonable grounds to believe that the officer comported himself unlawfully in their brief engagement. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: February 18, 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 booking officer was not designated by the SIU. [Back to text]
- 3) Officer #1 was not designated and interviewed. [Back to text]
- 4) There is some evidence to suggest the injury pre-existed the Complainant’s altercation in the cells. [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.