SIU Director’s Report - Case # 22-TCI-028
Warning:
This page contains graphic content that can shock, offend and upset.
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 a serious injury sustained by a 41-year-old man (the “Complainant”).
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 41-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On January 31, 2022, at 9:57 a.m., the Toronto Police Service (TPS) notified the SIU of an injury suffered by the Complainant.The TPS reported that the Toronto Drug Squad (TDS), along with Emergency Task Force (ETF) members, had executed a search warrant at the Complainant’s residence on January 30, 2022, at 3:33 p.m. The Complainant was arrested for possession of drugs and firearms, including an assault rifle. Afterward, the Complainant complained of a sore jaw. He was taken to Mt. Sinai Hospital. At 7:24 a.m. on January 31, 2022, he was diagnosed having suffered a fractured zygomatic bone.
The Team
Date and time team dispatched: 01/31/2022 at 10:33 a.m.Date and time SIU arrived on scene: 01/31/2022 at 12:15 p.m.
Number of SIU Investigators assigned: 3
Affected Person (aka “Complainant”):
41-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on January 31, 2022.
Civilian Witnesses
CW Interviewed The civilian witness was interviewed on January 31, 2022.
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness 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 Interviewed
WO #14 Not interviewed, but notes received and reviewed
WO #15 Not interviewed, but notes received and reviewed
WO #9 was initially designated a Subject Official. On March 4, 2022, WO #9 was re-designated to the status of Witness Official.
WO #14 and WO #15 were involved in transporting the Complainant from his apartment to the police station. They were designated solely to obtain their notebook entries. They were not interviewed, as the trip was recorded on an in-car camera system.
Evidence
The Scene
The incident took place in a bedroom of the Complainant’s apartment on Gamble Avenue, Toronto.The SIU did not attend the Complainant’s apartment. The following description of the Complainant’s apartment is based on entrance and exit video recordings conducted by the TDS.
The entrance door of the Complainant’s apartment was at the end of the public hallway. The door was heavily damaged, consistent with numerous strikes of a police ramming tool.
Upon entering the apartment there was a living room to the right, and a galley style kitchen directly to the front. To the left of the doorway there was a closet. Beyond the kitchen there was a dining room area with a dining table. Except for the kitchen, which had a tiled floor, the flooring throughout the apartment was parquet flooring.
Walking to the right and through the living room there was access to the outdoor balcony.
On the far side of the living room, there was a short “L”-shaped hallway with a bathroom, followed by the CW’s bedroom and then the Complainant’s bedroom. The Complainant’s bed was positioned essentially in the middle of the room. The bedroom floorspace was crowded.
A safe was located in the bedroom closet of the Complainant’s bedroom and a rifle was found in the room. The rifle had been stored in a black duffle bag.
Video/Audio/Photographic Evidence [1]
The SIU obtained the entry and exit video recordings made by WO #3 of the TDS. Those recordings documented the layout of the apartment.The mugshot photographs obtained from the TPS documented swelling and discolouration around the Complainant’s right eye.
Other video and audio recorded records obtained by the SIU are described below.
TPS Communications and Computer-aided Dispatch (CAD) Report
The CAD record and the communications recordings contained little information. There was a notification to the communications centre, at 2:15 p.m., that a search warrant was to be executed at the Complainant’s address within the hour, and the ETF were assisting. At 3:52 p.m., there was a request for a marked police vehicle to transport the Complainant from the residence. There were no recordings related to the execution of the search warrant.Body-worn Camera (BWC) Recordings
WO #14 and WO #15 attended the Complainant’s apartment to transport him to the TPS 55 Division police station. They were both equipped with BWCs.The Complainant was escorted out of his apartment and the audio portion of the body-worn camera recordings started in the hallway. While standing in the elevator on the way out of the building, the Complainant had noticeable swelling around his right eye. The Complainant was escorted to a police vehicle parked on the street. Once he was placed into the vehicle, the BWC recordings were stopped.
In-car Camera System (ICCS) Recording
The Complainant was loaded into a TPS vehicle at 4:13 p.m. His right eye appeared to be swollen.While en route to the police station, the Complainant asked the police officers what was going to happen to his mother. One of the police officers explained they were simply responsible for transporting the Complainant to the police station, and the involved detectives would have to decide the outcome for the Complainant’s mother. The Complainant stated his mother knew nothing [of his activities].
There was no discussion regarding the obvious injury to the Complainant.
Custody Area Recordings
The custody area of the 55 Division police station was equipped with cameras that recorded the Complainant entering the area. His right eye appeared to be discoloured and swollen.When the Complainant was asked by the booking sergeant whether he had any injuries, he responded, “You can see for yourself.” The sergeant acknowledged there was swelling around the Complainant’s eye. The Complainant also complained about his teeth, and he stated his teeth were struck by something hard.
The booking sergeant approved a Level Three search, and the Complainant stated he wanted to speak to a lawyer prior to the search. The Complainant remained seated on a bench in the custody area for approximately one hour prior to the search being conducted.
Once the Complainant was able to speak to a lawyer, he was then taken for a Level Three search. When he exited the search room, the discolouration around his right eye was much more pronounced.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the TPS:- A copy of the communications recordings;
- A copy of the CAD Event Details Report;
- General Occurrence Report;
- The Injury Report for the Complainant;
- A list of involved TPS officers;
- The notebook entries of all designated Witness Officials;
- TPS Booking Questions asked of the Complainant;
- A copy of the TDS Briefing Package for the ETF;
- A copy of the search warrant obtained by the TPS;
- A copy of the mugshot taken of the Complainant;
- ICCS recordings of the transfer of the Complainant from his apartment to the police station;
- BWC recordings from WO #14 and WO #15, involving the transport of the Complainant to the police station following his arrest;
- A list of property seized by the TPS; and
- A copy of photographs and video recordings recorded during the search of the Complainant’s apartment.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - The Complainant’s medical records from Mt. Sinai Hospital.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, a civilian witness and several ETF officers who observed the incident in parts. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
Acting on the authority of a search warrant obtained under the Controlled Drugs and Substances Act, a team of ETF officers forced entry into an apartment on Gamble Avenue, Toronto, at about 3:30 p.m. of January 30, 2022. The SO was a member of the team. They had been enlisted to assist the TDS, whose officers had taken out the warrant based on information in their possession that a resident of the apartment – the Complainant – trafficked in illicit substances. The ETF was to enter the apartment, arrest the Complainant if he was present, and ensure the physical safety of the space ahead of the TDS officers entering to execute the actual search.
Having met ahead of time to plan their entry, the ETF had decided to conduct a ‘dynamic entry’ into the residence. A dynamic entry is intended to mitigate the prospect of evidence destruction and the risks inherent in confronting potentially armed persons by forcing entry into a space with little to no notice with the use of heavily armed personnel. Often, the tactic is accompanied by the deployment of a ‘distraction device’ meant to temporarily distract and disorient persons in the locale. This is precisely what occurred in the instant case.
The door to the apartment was forced open after several strikes of a battering ram as officers yelled out their presence and the presence of a search warrant. A distraction device was deployed into the residence, following which the team of ETF officers entered the unit. The Complainant was located inside his bedroom. He was initially confronted by the SO and WO #9, forced to the floor, and arrested with the involvement of an additional four officers.
The Complainant was taken to 55 Division after his arrest. The following morning, while still in police custody, the Complainant was transported to hospital and diagnosed with a right-sided facial fracture.
Acting on the authority of a search warrant obtained under the Controlled Drugs and Substances Act, a team of ETF officers forced entry into an apartment on Gamble Avenue, Toronto, at about 3:30 p.m. of January 30, 2022. The SO was a member of the team. They had been enlisted to assist the TDS, whose officers had taken out the warrant based on information in their possession that a resident of the apartment – the Complainant – trafficked in illicit substances. The ETF was to enter the apartment, arrest the Complainant if he was present, and ensure the physical safety of the space ahead of the TDS officers entering to execute the actual search.
Having met ahead of time to plan their entry, the ETF had decided to conduct a ‘dynamic entry’ into the residence. A dynamic entry is intended to mitigate the prospect of evidence destruction and the risks inherent in confronting potentially armed persons by forcing entry into a space with little to no notice with the use of heavily armed personnel. Often, the tactic is accompanied by the deployment of a ‘distraction device’ meant to temporarily distract and disorient persons in the locale. This is precisely what occurred in the instant case.
The door to the apartment was forced open after several strikes of a battering ram as officers yelled out their presence and the presence of a search warrant. A distraction device was deployed into the residence, following which the team of ETF officers entered the unit. The Complainant was located inside his bedroom. He was initially confronted by the SO and WO #9, forced to the floor, and arrested with the involvement of an additional four officers.
The Complainant was taken to 55 Division after his arrest. The following morning, while still in police custody, the Complainant was transported to hospital and diagnosed with a right-sided facial fracture.
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 ETF officers on January 30, 2022. One of the officers – the SO – was identified as the 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 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.
By virtue of the search warrant, the ETF officers, including the SO, were lawfully placed inside the Complainant’s residence at the time of his arrest. By virtue of the same warrant, and the briefing they received ahead of its execution by the TDS outlining the information giving rise to the warrant, the same officers had grounds to believe that the Complainant was subject to arrest for drug trafficking.
It is alleged that ETF officers used excessive force in his arrest. Specifically, there is some evidence that the Complainant was repeatedly punched and kicked in the face by one of the ETF officers even though he offered no resistance to his arrest. If true, this evidence suggests the Complainant was the victim of an unlawful assault. It would be unwise and unsafe, however, to move forward with charges on the strength of this evidence.
There are a number of frailties associated with this account of what occurred. It asserts, for example, that the Complainant was confronted and arrested in the living room of the apartment. The overriding weight of the evidence, including the evidence provided by an independent witness, also present at the time, establishes that the arrest and physical altercation occurred in the Complainant’s bedroom. It is also alleged that the Complainant immediately raised his hands as the officers entered the apartment. This is not true, according to the account of WO #5. The officer, positioned outside at the time of the ETF entry to take note of any objects the Complainant might jettison from the apartment, says she saw the Complainant extend a black object outside the apartment window just after the distraction device was deployed. She and the Complainant then made eye contact, at which point the Complainant pulled the black object back into the apartment. It would not seem that WO #5 would have any reason to lie about that fact. Lastly, the officer who allegedly beat the Complainant was described as having a moustache. None of the ETF officers interviewed by the SIU had a moustache or described the SO with one. In the circumstances, this evidence is insufficiently cogent to warrant being put to the test by a trier-of-fact.
Of what remains of the evidence, namely, the accounts proffered by the officers, it seems clear that the Complainant did not immediately comply with police requests that he surrender, and that he then physically resisted the efforts of multiple police officers, including the SO, to take him to the ground and secure him in handcuffs. In this process, the evidence indicates that the SO delivered an elbow strike to the Complainant’s upper body in an effort to take him down, though where the blow struck exactly is unclear. Thereafter, there is no indication in this body of evidence that any of the officers did anything other than to wrestle the Complainant into submission as he refused to release his hands to be handcuffed and attempted to lift himself up; there is no suggestion of any strikes, for example. On this record, I am unable to reasonably conclude that the SO or any of the involved officers used more force than was necessary to take the Complainant into custody given the nature and extent of the resistance described by the officers. With specific reference to the takedown and the blow struck by the SO at this time, the tactics would appear to have been reasonably available to the officers given the Complainant’s initial resistance, the prospect of firearms in the apartment, and the need, therefore, to immediately place the Complainant in a position of disadvantage.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his engagement with the Complainant, there is no basis for proceeding with criminal charges against the officer. The file is closed.
Date: May 31, 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.
By virtue of the search warrant, the ETF officers, including the SO, were lawfully placed inside the Complainant’s residence at the time of his arrest. By virtue of the same warrant, and the briefing they received ahead of its execution by the TDS outlining the information giving rise to the warrant, the same officers had grounds to believe that the Complainant was subject to arrest for drug trafficking.
It is alleged that ETF officers used excessive force in his arrest. Specifically, there is some evidence that the Complainant was repeatedly punched and kicked in the face by one of the ETF officers even though he offered no resistance to his arrest. If true, this evidence suggests the Complainant was the victim of an unlawful assault. It would be unwise and unsafe, however, to move forward with charges on the strength of this evidence.
There are a number of frailties associated with this account of what occurred. It asserts, for example, that the Complainant was confronted and arrested in the living room of the apartment. The overriding weight of the evidence, including the evidence provided by an independent witness, also present at the time, establishes that the arrest and physical altercation occurred in the Complainant’s bedroom. It is also alleged that the Complainant immediately raised his hands as the officers entered the apartment. This is not true, according to the account of WO #5. The officer, positioned outside at the time of the ETF entry to take note of any objects the Complainant might jettison from the apartment, says she saw the Complainant extend a black object outside the apartment window just after the distraction device was deployed. She and the Complainant then made eye contact, at which point the Complainant pulled the black object back into the apartment. It would not seem that WO #5 would have any reason to lie about that fact. Lastly, the officer who allegedly beat the Complainant was described as having a moustache. None of the ETF officers interviewed by the SIU had a moustache or described the SO with one. In the circumstances, this evidence is insufficiently cogent to warrant being put to the test by a trier-of-fact.
Of what remains of the evidence, namely, the accounts proffered by the officers, it seems clear that the Complainant did not immediately comply with police requests that he surrender, and that he then physically resisted the efforts of multiple police officers, including the SO, to take him to the ground and secure him in handcuffs. In this process, the evidence indicates that the SO delivered an elbow strike to the Complainant’s upper body in an effort to take him down, though where the blow struck exactly is unclear. Thereafter, there is no indication in this body of evidence that any of the officers did anything other than to wrestle the Complainant into submission as he refused to release his hands to be handcuffed and attempted to lift himself up; there is no suggestion of any strikes, for example. On this record, I am unable to reasonably conclude that the SO or any of the involved officers used more force than was necessary to take the Complainant into custody given the nature and extent of the resistance described by the officers. With specific reference to the takedown and the blow struck by the SO at this time, the tactics would appear to have been reasonably available to the officers given the Complainant’s initial resistance, the prospect of firearms in the apartment, and the need, therefore, to immediately place the Complainant in a position of disadvantage.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his engagement with the Complainant, there is no basis for proceeding with criminal charges against the officer. The file is closed.
Date: May 31, 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.