SIU Director’s Report - Case # 22-TCI-167
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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 injuries 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 injuries a 21-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On June 30, 2022, at 8:42 a.m., the Toronto Police Service (TPS) contacted the SIU with the following information.Earlier that same day, the TPS had received a 911 call related to suspicious activity. TPS officers responded to an address on Cathy Jean Crescent where they observed a vehicle travelling with no headlights. The police officers followed the vehicle and conducted a traffic stop. The occupants of the vehicle – four persons – escaped police custody but were later arrested by police officers. One of those persons [now known to be the Complainant] was taken to the hospital and diagnosed with a fractured orbital.
The Team
Date and time team dispatched: 06/30/2022 at 2:05 p.m.Date and time SIU arrived on scene: 06/30/2022 at 8:14 p.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 July 4, 2022.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness 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 Interviewed
The witness officials were interviewed on July 15, 2022.
Evidence
The Scene
The scene was a fenced area which was full of tall dense tree bushes. The area, located just north of the Highway 407 westbound off-ramp to Highway 27, was dark and not well lit. Due to the size of the large bushes, there was very little visibility. Video/Audio/Photographic Evidence [1]
911 Call
On July 4, 2022, SIU requested that the TPS provide a copy of the 911 call in connection with the incident. On August 26, 2022, TPS provided the SIU with the 911 recordings. The following is a summary of the pertinent information from the call.A woman called 911 advising that two individuals carrying duffle bags had tried to steal her neighbour’s car. She provided her address. When her vehicle’s headlights came on, the individuals left in a white Mazda SUV. She described the two individuals as wearing dark-coloured hoodies. They left in a westbound direction of travel towards Martin Grove Road. The 911 caller provided a description of the vehicle they were trying to steal.
Radio Transmissions
On July 4, 2022, SIU requested that the TPS provide a copy of the radio transmissions in connection with the incident. On September 8, 2022, TPS provided the communications recordings. The following is a summary of the pertinent information from the recordings.At 2:27 a.m., TPS dispatch radioed, “Anybody in 2323 for a suspicious incident,” at an address on Cathy Jean Crescent. TPS dispatch radioed someone was trying to steal the 911 caller’s neighbour’s vehicle. They were not able to steal the vehicle, and had left in a white SUV.
WO #2 and the SO told dispatch they would respond to the call for service.
The white SUV was said to have left travelling westbound.
At 2:37 a.m., WO #2 conducted a traffic stop involving a white Mazda for a Highway Traffic Act violation. The SO also attended the stop. The white SUV had four occupants [one of them is now known to be the Complainant].
At 2:41 a.m., WO #2 radioed that he was in a foot pursuit involving one of the occupants of the white Mazda SUV. Moments later, the Complainant and Occupant #1 also took off from the police. The SO was said to be following them. They had fled in a northbound direction of travel.
Police officers requested the services of a police dog handler and their dog. Shortly thereafter, a police service dog (PSD) picked up a track.
The Complainant and Occupant #1 were arrested at 3:10 a.m. They were just north of the Highway 407 ramp to Highway 27.
At 3:12 a.m., paramedics were requested, and arrived at 4:01 a.m.
Body-worn Camera (BWC) Footage
On July 4, 2022, the SIU requested that the TPS provide the BWC footage in connection with the incident. On July 5, 2022, TPS provided the SIU with the BWC footage. Footage was captured by the BWCs of WO #5, WO #4, WO #2, the SO, WO #1 and WO #3. What follows is a summary of the pertinent footage.
At 2:37 a.m., WO #2 conducted a traffic stop of a white SUV for ‘failure to obey traffic sign’. WO #2 told the driver of the vehicle that the police officers were investigating a theft of a vehicle, and that the individuals involved in the theft of a vehicle had also been observed in a white SUV.
The occupants of the vehicle were directed out of the white SUV, and to sit on the roadside green space. WO #2 asked the Complainant to produce his driver licence. He did not have his driver’s license.
A duffle back was visible in the SUV.
Police officers asked a series of questions to the occupants of the vehicle. At 2:40 a.m., WO #2 asked the Complainant to provide his name and date of birth. WO #2 told the Complainant to “sit down and cross your legs”. WO #2 then moved away from the Complainant towards the white SUV.
At 2:41 a.m., WO #2 was in a foot pursuit involving one of the occupants of the vehicle – Occupant #2. WO #2 provided the direction of travel as southbound, Highway 427. He told Occupant #2 to stop. He continued to run away from WO #2. At 2:42 a.m., Occupant #2 stopped running way from the police, and he placed himself on the ground where WO #2 told him to get on his stomach. The officer thereafter arrested Occupant #2 by placing handcuffs on Occupant #2’s hands behind his back.
WO #2 escorted Occupant #2 back to his police vehicle. He was searched, and a vehicle key was located on him during the search.
At 2:42 a.m., two of the other occupants also fled from police custody in a northbound direction of travel towards the 407 on-ramp. One of the two occupants was the Complainant, and the other was Occupant #1. They crossed over the 407 to an area that was dense with large bushes. The SO ran after them. He lost sight of the Complainant and Occupant #1; they had crossed the 407.
At 2:44 a.m., the SO crossed Highway 407 on foot towards the last known direction of travel of the Complainant and Occupant #1. Other police officers began to assist, including WO #4 with his PSD. The SO de-activated his BWC from 2:56 a.m. to 3:12 a.m.
At 3:07 a.m., WO #4 and his PSD picked up a track towards large tree bushes. WO #4 was provided back-up support by WO #5. They reached an area of large tree bushes which was fenced. WO #4 held the PSD’s leash as he continued on a track through the large tree bushes.
At 3:09 a.m., the PSD located the Complainant. WO #4 told the Complainant he was under arrest, “Don’t run or else I will send the police dog.” WO #4 then radioed, “Second one running.” He repeatedly told the Complainant, “Let me see your hands,” and, “You are under arrest.”
At 3:10 a.m., the SO reached the Complainant and struggled to arrest him. He was down on the ground. The SO directed him, “Put your hands behind your back.” WO #5 assisted the SO. He repeatedly told the Complainant, “Put your hands behind the back.” The SO was seen delivering punches, and WO #5 appeared to be on top of the Complainant’s back.
The SO radioed, “This guy won’t give me his hand, give me your fuckin’ hands, give me your hand, give me your fuckin’ hand.” He again told the Complainant, “Put your hands behind your back.”
At 3:12 a.m., the SO asked for the attendance of Emergency Medical Services. He then read the Complainant his Charter rights.
At 3:16 a.m., the SO escorted the Complainant out from the large tree bushes to the police vehicles. The Complainant was then searched.
At 3:21 a.m., the Complainant was placed in the rear seat of a police vehicle by the SO.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between July 4, 2022, and September 8, 2022:- General Occurrence Report;
- BWC footage;
- Communications recordings;
- In-car Camera System footage;
- Notes – WO #2;
- Notes – WO #5;
- Notes – WO #4;
- Notes – WO #1;
- Notes – WO #3;
- Civilian Witness List;
- Intergraph Computer-assisted Dispatch Report;
- Involved Officers List;
- Policy - Arrest;
- Policy - Search of Person;
- Policy - Use of Police Dog Service; and
- Policy - Incident Response (Use of Force - De-Escalation).
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- The Complainant’s medical records from Etobicoke General Hospital.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and a police officer who assisted in his arrest – WO #5, gives rise to the following scenario. As was his legal right, the SO declined an interview with the SIU or to authorize the release of his notes.
At about 2:27 a.m. of June 30, 2022, the TPS received a 911 call about an attempted theft of a vehicle from an address on Cathy Jean Crescent, Toronto. The suspects, carrying duffle bags, had left the area in a white SUV after they were alerted to the 911 caller’s presence. The incident was broadcast over the police radio and officers indicated they would attend at the area.
WO #2 spotted a white Mazda SUV with four males in it and decided to pull the vehicle over when it failed to stop for a stop sign. Other officers, including the SO, arrived to assist with the investigation at the scene of the stop – the westbound curb lane of Steeles Avenue West just east of Highway 27. The four males were directed to exit the Mazda and sit on the ground just north of the roadway. They did so. Within minutes of their detention, three of the four stood up and fled the scene on foot.
The Complainant was among the four occupants of the Mazda. He and another occupant, Occupant #1, ran northward across Highway 407 and then up and over a fence into a lot of tall grass and bush. The SO gave chase for a period before pausing to wait for assistance, including the arrival of a police dog handler and his dog.
WO #4 and his dog arrived on scene and soon picked up the track of the Complainant and Occupant #1. The officer and his dog located the Complainant and Occupant #1 a distance into the fenced lot of tall grass, and advised them that they were under arrest. [2] The SO had climbed over the fence and rushed to the location of the dog handler, quickly locating the Complainant. Right behind the SO was WO #5.
With the Complainant on the ground, the SO and WO #5 attempted to handcuff him behind the back. The Complainant did not bring his hands around his back as directed by the officers and was punched several times to the left side by the SO. As this struggle unfolded, WO #5 extricated himself in order to deal with Occupant #1, whom he had observed a short distance away to his right. The officer was able to handcuff Occupant #1’s hands to the back without much struggle. Shortly thereafter, after some additional punches to the back delivered by the SO, he and WO #5 handcuffed the Complainant’s arms behind his back.
The Complainant was subsequently seen in hospital where he was diagnosed with fractures of the left orbital.
At about 2:27 a.m. of June 30, 2022, the TPS received a 911 call about an attempted theft of a vehicle from an address on Cathy Jean Crescent, Toronto. The suspects, carrying duffle bags, had left the area in a white SUV after they were alerted to the 911 caller’s presence. The incident was broadcast over the police radio and officers indicated they would attend at the area.
WO #2 spotted a white Mazda SUV with four males in it and decided to pull the vehicle over when it failed to stop for a stop sign. Other officers, including the SO, arrived to assist with the investigation at the scene of the stop – the westbound curb lane of Steeles Avenue West just east of Highway 27. The four males were directed to exit the Mazda and sit on the ground just north of the roadway. They did so. Within minutes of their detention, three of the four stood up and fled the scene on foot.
The Complainant was among the four occupants of the Mazda. He and another occupant, Occupant #1, ran northward across Highway 407 and then up and over a fence into a lot of tall grass and bush. The SO gave chase for a period before pausing to wait for assistance, including the arrival of a police dog handler and his dog.
WO #4 and his dog arrived on scene and soon picked up the track of the Complainant and Occupant #1. The officer and his dog located the Complainant and Occupant #1 a distance into the fenced lot of tall grass, and advised them that they were under arrest. [2] The SO had climbed over the fence and rushed to the location of the dog handler, quickly locating the Complainant. Right behind the SO was WO #5.
With the Complainant on the ground, the SO and WO #5 attempted to handcuff him behind the back. The Complainant did not bring his hands around his back as directed by the officers and was punched several times to the left side by the SO. As this struggle unfolded, WO #5 extricated himself in order to deal with Occupant #1, whom he had observed a short distance away to his right. The officer was able to handcuff Occupant #1’s hands to the back without much struggle. Shortly thereafter, after some additional punches to the back delivered by the SO, he and WO #5 handcuffed the Complainant’s arms behind his back.
The Complainant was subsequently seen in hospital where he was diagnosed with fractures of the left orbital.
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 officers on June 30, 2022. One of the arresting 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 injuries.
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.
I am satisfied that the Complainant was under lawful police detention at the time of the events in question. His presence in a white SUV that had been seen leaving the scene of an attempted motor vehicle theft nearby, which vehicle contained duffle bags that the suspects had also been seen with, gave rise to a reasonable suspicion that the Complainant was implicated in a crime: R. v. Mann, [2004] 3 SCR 59.
I am also satisfied that the force brought to bear by the SO, namely, a series of punches, constituted legally justified force. The Complainant had fled the scene of a lawful detention and the officer was entitled to re-assert custody, this time, by securing the Complainant in handcuffs in light of his flight risk. When the Complainant did not comply with the SO’s commands that he place his arms behind his back, the officer was within his rights in resorting to a measure of force to achieve his ends. It is perhaps debatable whether the SO delivered more punches than were, strictly speaking, absolutely necessary to the task at hand. That said, the law requires that the force used by an officer is to be gauged with an appreciation of the dynamics of the moment. An officer is not expected to use only force that is perfectly tailored to the situation; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. CA). The Complainant had led the officers on a dangerous trek across Highway 407, at night, into a lot of tall grass and uneven terrain. In so doing, he gave the officers every reason to believe that his immediate arrest was imperative in the interest of everyone’s safety and, therefore, justification to use decisive force in so doing.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO.
Date: October 27, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Un
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.
I am satisfied that the Complainant was under lawful police detention at the time of the events in question. His presence in a white SUV that had been seen leaving the scene of an attempted motor vehicle theft nearby, which vehicle contained duffle bags that the suspects had also been seen with, gave rise to a reasonable suspicion that the Complainant was implicated in a crime: R. v. Mann, [2004] 3 SCR 59.
I am also satisfied that the force brought to bear by the SO, namely, a series of punches, constituted legally justified force. The Complainant had fled the scene of a lawful detention and the officer was entitled to re-assert custody, this time, by securing the Complainant in handcuffs in light of his flight risk. When the Complainant did not comply with the SO’s commands that he place his arms behind his back, the officer was within his rights in resorting to a measure of force to achieve his ends. It is perhaps debatable whether the SO delivered more punches than were, strictly speaking, absolutely necessary to the task at hand. That said, the law requires that the force used by an officer is to be gauged with an appreciation of the dynamics of the moment. An officer is not expected to use only force that is perfectly tailored to the situation; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. CA). The Complainant had led the officers on a dangerous trek across Highway 407, at night, into a lot of tall grass and uneven terrain. In so doing, he gave the officers every reason to believe that his immediate arrest was imperative in the interest of everyone’s safety and, therefore, justification to use decisive force in so doing.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO.
Date: October 27, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Un
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) It appears that WO #4’s dog bit the Complainant at about this time. The bite was not a subject of the SIU investigation as it did not inflict ‘serious injury’ within the mandate of the SIU’s statutory jurisdiction. [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.