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 the serious injuries a 25-year-old man (the “Complainant”) suffered.

Notification of the SIU

On January 17, 2022, at 11:52 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant. TPS reported that on January 16, 2022, at about 9:15 a.m., a robbery had occurred at a Mac’s convenience store [1] at 2200 Martin Grove Road in the Etobicoke area of Toronto. Two men had fled the store in a vehicle. At about 10:23 a.m., they were observed by members of the Ontario Provincial Police (OPP). The OPP contacted TPS, whose officers responded to the area of Cabernet Circle and Provence Trail. There, at 11:36 a.m., the Subject Official (SO) arrested the Complainant for robbery and transported him to 23 Division station. The arrest was unremarkable.

The Complainant was paraded by a sergeant, booked by the Service Employee Witness (SEW), [2] and lodged in a cell.

At 11:58 p.m., the Complainant was observed acting suspiciously in the cell and seen inhaling a crushed substance. When the Complainant admitted consuming “THC [3]/CBC [4] crushed tablets and melatonin”, Witness Official (WO) #3 notified paramedic services and had the Complainant transported to Etobicoke General Hospital (EGH).

At the time of notification, the Complainant remained in custody. An emergency room physician advised police officers they were performing tests to investigate a suspected brain bleed. At 11:39 a.m. of the present date, WO #6 had been advised that the Complainant was being admitted to hospital but police were not provided any information about the diagnosis.

TPS further advised that surveillance recordings of the cell in which the Complainant was lodged captured the event and that the cell had been secured pending SIU examination.

The Scene

As the Complainant’s injury was initially believed to have been sustained as a result of ingesting drugs while in a holding cell at 23 Division station, the cell was secured for SIU examination.

The cell was examined by a SIU forensic investigator on January 18, 2022. At the time of examination, the cell was found to have toilet paper scattered on the floor and a paper garment that appeared to have been torn apart. Nothing of evidentiary value was observed.

Later that day, photographs were taken of the Complainant’s injuries while he remained admitted at EGH. He was observed with bruising about his right eye, and he complained of pain in his wrists.

Video/Audio/Photographic Evidence [5]

The TPS provided the SIU in-car camera recording system (ICCS) footage, body-worn camera (BWC) footage, and 23 Division closed-circuit surveillance video recordings.

The Complainant’s arrest was not recorded as the police officers’ BWCs were not activated, nor was WO #1’s ICCS.

BWC Recordings

BWC recordings from the SO’s and WO #1’s devices recorded various portions of their investigation of the robbery and subsequent interactions with the Complainant, and the man he was with who was also arrested. Those multiple recordings had numerous portions of muted audio.

Recordings of the SO’s and WO #1’s actions stopped as they exited the Circle K convenience store at 10:15 a.m. Their next recordings started at 10:22 and 10:23 a.m., by which time both suspects were already handcuffed.

The SO’s BWC captured images of the Complainant’s face immediately after his arrest. At 10:24 a.m. on January 16, 2022, less than ten minutes after his reported arrest, the Complainant appeared to have discolouration under his right eye.

At about 10:40 a.m., the Complainant was still seated in the cruiser when he told the SO, “I have weed in my pocket. You want to take that?” The SO replied that he was going to “take all that in a minute”. The recording ended at 10:44 a.m.

The next recording commenced about 26 minutes later, at 11:10 a.m. It was not known whether the SO had confiscated anything from the Complainant during the gap in recording, but he was captured collecting evidence from the Complainant’s pockets at around 11:50 a.m. At that time, the SO’s cruiser was in the 23 Division station parking lot when the SO exited the cruiser to search the Complainant after he suspected him of doing something while handcuffed with his hands behind his back in the rear seat. The SO asked the Complainant if he had “tried to hoop something”, to which the Complainant responded, “I was trying to take the weed.” This comment suggested the SO had not confiscated anything from the Complainant prior to initially seating him in the cruiser.

The SO then removed the Complainant from the vehicle and searched his pockets, finding evidentiary items, including lottery tickets and charging cables.

ICCS Footage

Both cruisers operated by the SO and WO #1 were equipped with an ICCS.

The SO’s ICCS captured views of his driving and arrival at the stopped Jeep at 10:21:31 a.m.

As soon as his cruiser came to a stop, the SO was heard telling the driver of the Jeep to “turn the car off”. The SO was then heard exiting the cruiser; it appeared he either did not wear the wireless microphone or the device was off. Shortly after it sounded as if the SO exited the cruiser, indecipherable voices were heard in the background while police radio audio transmissions were heard from within the cruiser.

About 40 seconds after the SO exited the cruiser, he and WO #1 both reported they had two males in custody and that all was in order.

Once he was seated in the cruiser, the Complainant continually questioned the SO about why he was arrested, denied involvement in the alleged robbery, and said he could not be charged with additional offences as he was on a bail and probation release.

The ICCS microphone was off for a lengthy time while the Complainant was seated in the cruiser. After turning off at 10:59:13 a.m., the microphone re-activated over 38 minutes later, at 11:37:49 a.m., while the SO was driving to 23 Division station. When the microphone re-activated, the Complainant was heard asking the SO why he “tapped” him out of the vehicle “with a gun on me”. When the SO advised the Complainant he had already cautioned him, the Complainant repeated the question and told him he thought he was going to die.

With respect to WO #1’s ICCS recordings, the video established that her ICCS captured a view of the SO’s cruiser stopped alongside the Jeep. The recordings from her cruiser did not start until 10:31:31 a.m., over nine minutes after the Complainant and the man he was with had been apprehended.

23 Division Booking Room Camera

Recordings from the booking room camera captured the Complainant’s arrival at about 12:24 p.m. in the SO’s custody. The Complainant was polite and cordial with the police officers.

When asked if he had any illness, the Complainant said he had been diagnosed with ‘ADHD’ and ‘ADD’ and said he had been prescribed Adderall [6] and Ritalin [7] but stopped taking them because he did not like the way the medication made him feel. He also said he took Hydrocodone [8] and Valium [9] but had not taken any on this date.

When asked if he ever had suicidal thoughts or thoughts of hurting himself, the Complainant said, “Recently yeah because I’m under conditional discharge right now, so this right here is kinda not too good in my favour.” When asked how he was feeling at the time, the Complainant said, “Kinda depressed. Kinda very upset at myself.”

WO #2 authorized a level two search. When the SO removed the Complainant’s handcuffs, the Complainant said he was accustomed to a level three search and inquired about the difference. WO #2 said, “A level two search just means we’re not, it’s not a strip search. Just search your pockets, just kinda to make sure you don’t have anything to hurt you or us.” While the SO conducted a search of the Complainant’s clothing and coat, the Complainant said he was stressed.

At 12:36 p.m., while wearing blue gloves, the SO searched the Complainant’s hair for 15 seconds, progressing from the left side to the back and then to the right side. While conducting the search, the Complainant asked, “Who hides something there?” The SO responded, “Do people hide stuff in there? Absolutely they do.” The Complainant responded that he was just curious and said, “I didn’t know that.”

23 Division Cell Camera

The cell monitoring recordings consisted of video with no audio.

At about 11:54 p.m. on the recording, the Complainant was sitting on the toilet when he repeatedly reached behind him with his right arm, appearing to reach in the area of his buttocks before he placed something on a blue piece of paper at 11:58 p.m. and then crushed the material by repeatedly striking it with his right shoe. At 11:59 p.m., the Complainant appeared to snort the crushed substance, first with his fingers and then with the substance on the blue paper. At 12:03 a.m., he stood from the toilet, raised his pants and laid on the bunk.

At 12:27 a.m., the cell door opened. A male officer wearing a light blue uniform shirt entered the cell and took the blue paper from the Complainant. At 12:29 a.m., a bald male officer wearing a uniform jacket with staff sergeant epaulets entered the cell and took both of the Complainant’s shoes. The individuals continued speaking with the Complainant until he exited the cell at 12:38 a.m., at which time it appeared he was searched.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the OPP and TPS between January 21, 2022 and March 4, 2022:

• General Occurrence Report;
• Event Details Reports;
• Communications recordings;
• Custody recordings;
• BWC footage;
• ICCS footage;
• Notes (Addendum)-the SO;
• Notes-the SEW;
• Notes-the SO;
• Notes-WO #6;
• Notes-WO #1;
• Notes-WO #2;
• Notes-WO #5;
• Notes-WO #10;
• Notes-WO #8;
• Notes-WO #4;
• Notes-WO #3;
• Notes-WO #9;
• Officer List;
• OPP Notes-WO #7;
• OPP Officer Statement-WO #7;
• Parade Sheet Report-D23 C platoon;
• Parade Sheet Report-D23 D platoon;
• Procedure - Arrest;
• Procedure - Search of Persons;
• TPS - Injury Report; and
• TPS Policy-BWC.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and the SO.

In the morning of January 16, 2022, the SO and WO #1 were dispatched to a convenience store at 2200 Martin Grove Road, Toronto. The store clerk had contacted police about a theft that had just occurred at the store. Prior to the SO’s arrival in a separate cruiser, WO #1 had spoken with the clerk about the theft and obtained a description of the suspect. The officers were met at the store by WO #7, who was at the store on an unrelated matter when the theft occurred. He had followed the suspect’s vehicle to a location on Provence Trail, and had returned to the store where he asked the SO and WO #1 to follow him.

The Complainant had been in the store and was the subject of the theft complaint. He was seated in the front passenger seat of a vehicle, parked curbside on Provence Trail, with an acquaintance occupying the driver’s seat when their vehicle was surrounded by the cruisers of the SO and WO #1.

The SO positioned his cruiser on an angle in front of the front passenger side of the Complainant’s vehicle. The officer left his cruiser and ordered the Complainant out of the vehicle at gunpoint. The Complainant exited the vehicle and lowered himself to the ground at the SO’s direction, after which the officer handcuffed him behind the back.

WO #1 arrested the driver of the vehicle without incident and placed him in her cruiser for transportation back to the station.

After his arrest, the Complainant was placed in the SO’s cruiser, taken back to the station, and lodged in a cell. In the early morning hours of the following day, concerned that he had consumed illicit substances that he had secreted on his person, officers arranged to have the Complainant sent to hospital.

In the early morning hours of the following day, while still in hospital, the Complainant was diagnosed with a brain bleed.

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 was diagnosed with a serious injury on January 17, 2022. As he was in the custody of the TPS at the time, the SIU was notified and initiated an investigation. The SO was identified as the subject official. 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 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 SO was proceeding to lawfully arrest the Complainant when he approached the vehicle the Complainant was in and took him into custody. Based on the evidence of the store clerk and WO #7, the latter having tracked the Complainant from the store to the site of the arrest, I am satisfied the officer had a lawful basis to effect an arrest in connection with the incident at the store.

The Complainant contends that he was subjected to excessive force by the SO in the course of the arrest and attributes his injury to this force.

The SO denies using excessive force in the course of the arrest. The officer indicates that the Complainant complied fully with his directions and that he did not have occasion to use force other than by way of the contact that was necessary to handcuff the Complainant’s arms behind his back.

Mindful of the need for charging authorities to restrict their assessment of the strength of competing evidence to threshold considerations to avoid usurping the role of the court as the ultimate arbiters of fact and law, I remain unsatisfied that the Complainant’s evidence is sufficiently cogent to warrant being put to the test by a trier-of-fact. There were aspects of his account that were materially at odds with the clear weight of the evidence. And the injury, which might otherwise have been useful in buttressing his rendition of events, provided only equivocal support for the proposition that the SO employed more force than was necessary during the Complainant’s arrest. Though it was caused by trauma of some type, the medical evidence left open the possibility of the trauma having been inflicted at some point prior to the time of his arrest. There were other frailties associated with the Complainant’s account of what occurred.

In the result, there are no reasonable grounds to believe that the SO comported himself unlawfully in his dealings with the Complainant. Accordingly, there is no basis to proceed with criminal charges in this case.


Date: May 17, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit