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 injury of a 24-year-old man (the “Complainant”).

Notification of the SIU

On January 23, 2022, at about 11:00 p.m., Toronto Police Service (TPS) contacted the Special Investigations Unit (SIU) with the following information.

At approximately 6:02 p.m., a convenience store owner contacted police to report a robbery that had occurred at a business on Kipling Avenue in Toronto. A man, the Complainant, had entered the store requesting two packages of cigarettes. When the store owner placed the items on the counter, the Complainant took the items and fled the store without making payment. The store owner followed him from the store where the Complainant produced a knife and then fled the area.

At 6:03 p.m., two police officers, the Subject Official (SO) and Witness Official (WO) #1, responded and located the Complainant. When they approached the Complainant and attempted to arrest him, a struggle ensued, and he was taken to the ground. The Complainant sustained a nose injury and was transported to St. Joseph’s Health Centre (SJHC).

The Complainant was seen by an emergency room physician and diagnosed with a fractured right nasal bone. It was anticipated that the Complainant would be released from hospital and processed on TPS charges.

The Team

Date and time team dispatched: 01/24/2022 at 7:49 a.m.

Date and time SIU arrived on scene: 01/24/2022 at 1:10 p.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

The Scene

The Complainant sustained his injury in the area of Kipling Avenue and Warnica Avenue. More specifically, the Complainant was approached by the TPS officers on the south side of Warnica Avenue, approximately 20 metres east of Kipling Avenue.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence [1]

Body-worn Camera (BWC) Footage – WO #1

At 6:04:14 p.m., the camera was activated showing the interior of a police vehicle [now known to be police vehicle 1] in motion. No sound was apparent on the footage. At 6:04:39 p.m., the camera showed a view of the right-side windshield and some of the passenger door window, and a man [now known to be the Complainant] standing on the right side of a driveway. The police vehicle stopped just ahead of the Complainant. WO #1 opened the passenger door, and the Complainant put his hands above his head.

At 6:04:43 p.m., the audio of the video was activated. The Complainant began to kneel with his hands above his head, and a male voice said, “Put your hands up! Get on the ground!” At 6:04:46 p.m., WO #1’s right hand entered the frame holding a black pistol pointed at the Complainant. The officer’s left hand grabbed the Complainant by the coat on the left shoulder and moved him forward. The Complainant said, “Sorry, sorry bro.” At 6:04:48 p.m., the SO’s legs entered the left frame and, as the Complainant moved forward, the SO’s left hand had the Complainant by the coat at the left side of his neck, leading him towards the ground. The SO held a black pistol in his right hand, pointed at the Complainant.

At 6:04:50 p.m., the SO moved toward the Complainant and used his body to press into him, guiding him over to his left side. The Complainant turned onto his back. The SO mounted the Complainant and pointed his firearm in the Complainant’s face. The Complainant cried out, “Sorry, sorry. OK, please don’t.” At 6:05:01 p.m., the officers rolled the Complainant onto his stomach. A police officer shouted, “Turn around.”

The SO held the Complainant by the back of the neck with his left hand. The SO said, “Hands behind your back now or you’re getting tased,” and the Complainant said, “OK, sir.” The Complainant’s left arm remained extended out by his side, and his right hand under his face.

At 6:05:11 p.m., the SO used his police radio to strike the Complainant twice on top of the head. He was directed to, “Put your hand behind your back.”

At 6:05:15 p.m., the Complainant’s right arm is seen by his right side. He says, “Ok, sir, sir. Please.”

At 6:05:25 p.m., WO #1 handcuffed the Complainant to the back and the SO put his left knee on the back of the Complainant’s neck.

At 6:05:52 p.m., the SO asked the Complainant, “Where’s the knife?”

At 6:05:55 p.m., the SO removed his knee from the Complainant’s neck, asked, “Where’s the knife?” and held the Complainant by the back of his shoulders. The Complainant said, “I don’t know, I don’t have knife.” The SO said, “No? Where is it? You threw it?” The Complainant said, “No, I don’t know.” The SO said, “No, so why’d you rob the store?”

At 6:06:20 p.m., the Complainant is lifted to his feet by the officers, and led to the front of police vehicle 1.

At 6:07:32 p.m., the Complainant was guided to a standing position by WO #1 off the hood of the police vehicle and the left side of his face was covered with blood. The Complainant stood to the left of the frame, was searched briefly, led around the front of the police vehicle, and placed into the rear driver’s side seat.

BWC Footage - SO

The SO’s BWC was activated after the Complainant had been handcuffed. The remainder of the footage was consistent with the footage captured by WO #1’s BWC, but from a different perspective.

 

In-car Camera System (ICCS) Footage - Vehicle 1

On January 23, 2022, at 6:03:04 p.m., TPS police vehicle 1 turned right, southbound, onto Kipling Avenue.

At 6:04:11 p.m., the emergency lights were activated.

At 6:04:33 p.m., TPS police vehicle 1 turned left, eastbound onto Warnica Avenue. It travelled ten metres, and stopped in a side driveway on a south facing angle.

At 6:04:41 p.m., a man was heard shouting, “Get on the fucking ground, now!”

At 6:04:44 p.m., the SO entered the left video frame, ran across the front of the police vehicle, and exited the right video frame.

At 6:05:09 p.m., a police officer alerted the dispatcher, “One in custody.”

At 6:05:28 p.m., a police officer alerted the dispatcher, “All in order, if we could just get another unit to assist please.”

At 6:06:22 p.m., WO #1 entered the right video frame, followed closely by a man [now known to be the Complainant] who leaned over the front of the right corner of the police vehicle. At 6:06:46 p.m., a police officer entered the left video frame, walked across the front of the police vehicle, and stood to the right of the Complainant. WO #1 held a bag in his hands, and it was put on the hood of the police vehicle, to the left of the video frame.

At 6:17:00 p.m., WO #4 spoke with the Complainant to inquire about a knife and said, “So you know what, you got a bloody nose there so I’m going to get these guys to take you to the hospital and get you checked out, OK? Or do you want an ambulance, how’s your nose can you breathe and everything fine?” The Complainant replied, “I’m not feeling well. They hurt too.”

At 6:23:06 p.m., TPS police vehicle 1 pulled out and travelled eastbound on Warnica Avenue.

At 6:25:59 p.m., WO #1 said he was re-arresting the Complainant for theft, possession of a weapon for a dangerous purpose, and a bench warrant out of Toronto.

At 6:36:50 p.m., TPS scout vehicle 1 arrived at SJHC.

ICCS Footage - Vehicle 2

On January 23, 2022, at 6:04:08 p.m., TPS vehicle 2 travelled with emergency lights and siren activated.

At 6:07:28 p.m., vehicle 2 arrived at Kipling Avenue and Warnica Avenue. Two fully marked TPS SUVs with emergency lights flashing parked facing eastbound on Warnica Avenue. A black sedan [now known to be operated by the son of the CW] was parked between police vehicle 1 and a fully marked TPS sedan on the south side of Warnica Avenue, and one TPS SUV was parked between the black sedan and police vehicle 1, just to the north in the middle of Warnica Avenue.

At 6:13:56 p.m., the son of the CW exited the black sedan, followed a police officer to police vehicle 2, and sat in the passenger side back seat of the vehicle. He said, “Let just keep it short and simple OK, ‘cause I don’t like the statement stuff, I’m not a statement guy.”

The CW’s son said he arrived at the gas station and called his father, who informed him the Complainant had stolen two packs of cigarettes. He turned his vehicle around to look for the Complainant, saw the Complainant, and parked his car in a driveway. The CW’s son exited his vehicle, approached the Complainant, and asked him if he had stolen two packs of cigarettes. The Complainant said, “Hey, you don’t want to die,” and pulled out a small, thin, flip knife with a three-inch blade. The CW’s son jumped over a snowbank and the Complainant gave chase holding a piece of ice. The CW’s son got back into his vehicle and called police.

ICCS Footage - Vehicle 3

None of the footage captured was of relevance to the investigation.

Radio and Telephone Communication Summary

Phone Call

The following scenario emerges from the evidence collected by the SIU, which included video footage from the BWC of WO #1 that largely captured the events in question. As was his legal right, the SO declined an interview with the SIU or to authorize the release of his notes.

In the evening of January 23, 2022, the SO and WO #1 were dispatched to investigate a report of a robbery on Kipling Avenue, Toronto. The dispatcher broadcast that a man had pulled a knife while stealing two packs of cigarettes from a convenience store.

Travelling south on Kipling Avenue, the officers located a man walking in the same direction on the east side of the road. The individual – the Complainant – fit the description of the robbery suspect. They followed the Complainant as he turned east onto Warnica Avenue and made his way onto a driveway on the south side of the road.

The SO and WO #1 came to a stop north of the driveway, exited their cruiser, and confronted the Complainant at gunpoint. At their direction, the Complainant raised his hands and lowered himself onto his knees. The officers took hold of the Complainant’s upper body and forced him fully onto the ground. With the Complainant on his back, WO #1 punched him in the abdomen several times before he and the SO rolled him over into a prone position. The Complainant was ordered to bring his arms behind his back and then struck when he failed to promptly do so: punched in the lower back by WO #1 and struck twice in the head by a radio the SO was holding in his right hand. Shortly after the second head strike, the Complainant brought his right arm out from under his head to his side, where WO #1 took hold of it and handcuffed him behind the back.

Following his arrest, the Complainant was lifted to his feet by the officers, searched beside their cruiser, and placed in the rear of the officers’ vehicle. Noticing blood under his nose, WO #1 and the SO transported the Complainant to hospital.

The Complainant was diagnosed at hospital with a fractured 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 was seriously injured in the course of his arrest by two TPS officers on January 23, 2022. One of the officers – the SO – was identified as the subject official in 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.

The Complainant was clearly subject to arrest. He had been to the convenience store, was in the vicinity of the store at the time of the officers’ dispatch, and matched the description of the suspect.

With respect to the force used against the Complainant, while perhaps at the upper end of what was reasonably necessary, I am not satisfied that it fell afoul of the limits prescribed by law. The Complainant appears in the BWC footage as mostly scared and apologetic during the interaction with the officers. However, it is apparent that he was not moving as quickly as WO #1 and the SO wanted when he was told to place his arms behind his back. The officers had cause to want to force the issue as quickly as possible. They were of the understanding that the Complainant had just robbed a store clerk at knifepoint, and were justifiably concerned that he was still armed with the weapon. This was also not a case in which the Complainant was unable to bring his arms around his back as directed, which is sometimes the case where officers apply their weight to the back of a subject in the prone position. In the circumstances, even if the Complainant’s failure to do so quickly might have had more to do with his fear at the time, the officers were entitled to act to avoid any possibility of a weapon being brought to bear. Following the second of the two hits to the head [2] - more in the nature of forceful taps than full on strikes – and the punches by WO #1, the Complainant gave up his right arm and hand, and was handcuffed. On this record, and mindful of the common law principle that officers caught up in dangerous situations are not expected to measure their force with precision, [3] I am unable to reasonably conclude that the officers acted without legal justification.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case.

The file is closed.



Date: August 29, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit