SIU Director’s Report - Case # 22-TCI-196
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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 section 14 (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 of a 49-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 the serious injuries of a 49-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On August 6, 2022, at 10:15 p.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.According to the TPS, on August 6th, 2022, TPS undercover officers were doing a drug-buy in Burlington. The exchange took place, and the Complainant was arrested by Subject Official (SO) #1. The Complainant complained of soreness to his side. He was taken to the Joseph Brant Hospital (JBH) and diagnosed with four fractured ribs.
The Team
Date and time team dispatched: 08/07/2022 at 8:05 a.m.Date and time SIU arrived on scene: 08/07/2022 at 11:15 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
49-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on August 7, 2022.
Civilian Witnesses (CW)
CW #1 Not interviewed; unable to locateCW #2 Not interviewed [1]
Subject Officials
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Declined interview and to provide notes, as is the subject official’s legal right
SO #3 Declined interview and to provide notes, as is the subject official’s legal right
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
The witness officials were interviewed between August 24, 2022, and October 17, 2022.
Evidence
The Scene
The scene presented in a parking lot on Brant Street, Burlington. Communications
Computer-Assisted Dispatch (CAD) Report
On August 8, 2022, the SIU requested that the TPS provide the CAD report of their interaction with the Complainant. On August 16, 2022, the TPS provided the SIU with the CAD. The following is a summary of the pertinent information from the report.On August 5, 2022, at 6:34 p.m., the operation was referenced as a ‘drug buy’ and it was noted that ten plainclothes officers were involved.
At 7:33 p.m., various police officers were dispatched.
At 9:57 p.m., the event was closed.
On August 6, 2022, 3:08 p.m., the event was re-opened.
At 3:14 p.m., the location of the event was cited. Various police officers were dispatched.
At 4:58 p.m., two officers advised that two men were in custody.
Video/Audio/Photographic Evidence [2]
In-car Camera System (ICCS) Footage
On August 8, 2022, the SIU requested that the TPS provide ICCS footage of their interaction with the Complainant. On August 10, 2022, the TPS provided the footage. The following is a summary of the pertinent footage. The footage was taken from a front and back seat camera. The front view captured the parking lot of a plaza. It was a clear bright day. The back seat camera view showed the rear seats of a police vehicle.
At 4:47 p.m., the rear passenger side door of the police vehicle opened. A man [now known to be the Complainant] was placed in the rear passenger side seat of the police vehicle. His hands were handcuffed behind his back. A police officer advised the Complainant the reason for the arrest, and read him his legal rights. The Complainant complained, “My ribs are broken,” and that he could not breathe. He was heard on the audio making noises: “Ah, ah, ah.”
At 4:51 p.m., a man [now known to be CW #1] was seated in the rear driver’s side of the police vehicle. The handcuffs were placed on his hands to the front. The Complainant was again heard saying, “I can’t breathe.” CW #1 was told the reason for the arrest and read his legal rights. A police officer opened the Complainant’s door, released the handcuffs that were placed on his hands behind his back, and re-handcuffed him to the front.
At 4:54 p.m., the Complainant appeared to be leaning and holding his left ribs, while making noises: “Ah, ah, ah.” The Complainant appeared to have some blood droplets coming from his nose.
At 4:55 p.m., a police officer shut the police vehicle door, and advised he would get some gauze for the Complainant.
At 5:06 p.m., the Complainant was taken out of the police vehicle. He was told that an ambulance had been called and would attend to him.
Store Video Footage
Store security surveillance footage from the scene of the arrest was obtained on August 18, 2022. It contained three camera angles from a stationary camera.The three videos were of long shots - approximately 30 metres away. The Complainant was arrested on the southside passenger door of the police surveillance vehicle. The surveillance vehicle blocked the view of the arrest. None of the involved police officers, nor police vehicles, were identified.
Video Footage from Civilian Witness
The footage did not capture the events in question. Nor did the civilian witness have evidence in connection with the interaction between the subject officials and the Complainant.Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between August 10, 2022, and September 18, 2022:- General Occurrence report;
- Communications recordings;
- Computer-assisted Dispatch report;
- ICCS footage;
- Involved Officers;
- Notes – WO #1;
- Notes – WO #4;
- Notes – WO #5;
- Notes – WO #2;
- Notes – WO #3;
- Policy - Arrest and Release; and
- Policy - Use of Force.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Video footage from store camera at Brant Street address;
- The Complainant’s medical records from JBH; and
- Cell phone video footage from a civilian witness.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and officers in the vicinity of the Complainant’s arrest, gives rise to the following scenario. As was their legal right, none of the subject officials chose to interview with the SIU or authorize the release of their notes.
In the afternoon of August 6, 2022, the TPS drug squad organized a “drug buy” from the Complainant. The Complainant agreed to meet with an undercover officer – WO #5 – to sell him thousands of dollars of fentanyl in a parking lot on Brant Street, Burlington. Other officers in unmarked vehicles and plainclothes would surround the area, and move in to arrest the Complainant once the drug transaction had occurred.
The Complainant arrived at the parking lot at about 4:20 p.m. He was driving a red sedan with another person – CW #1 - occupying the front passenger seat. The Complainant located WO #5 seated in a vehicle and brought his car to a stop nose-to-nose with the officer. With a knapsack containing the drugs in his possession, the Complainant entered the front passenger seat of the officer’s vehicle. Shortly thereafter, undercover officers converged on the Complainant and CW #1.
The Complainant was pulled from the undercover vehicle, taken to the ground and arrested. So too was his associate, a short distance away.
Following his arrest, the Complainant complained of pain and difficulty breathing. He was taken from the scene in ambulance to hospital, and diagnosed with a punctured lung and three fractured left-sided ribs.
In the afternoon of August 6, 2022, the TPS drug squad organized a “drug buy” from the Complainant. The Complainant agreed to meet with an undercover officer – WO #5 – to sell him thousands of dollars of fentanyl in a parking lot on Brant Street, Burlington. Other officers in unmarked vehicles and plainclothes would surround the area, and move in to arrest the Complainant once the drug transaction had occurred.
The Complainant arrived at the parking lot at about 4:20 p.m. He was driving a red sedan with another person – CW #1 - occupying the front passenger seat. The Complainant located WO #5 seated in a vehicle and brought his car to a stop nose-to-nose with the officer. With a knapsack containing the drugs in his possession, the Complainant entered the front passenger seat of the officer’s vehicle. Shortly thereafter, undercover officers converged on the Complainant and CW #1.
The Complainant was pulled from the undercover vehicle, taken to the ground and arrested. So too was his associate, a short distance away.
Following his arrest, the Complainant complained of pain and difficulty breathing. He was taken from the scene in ambulance to hospital, and diagnosed with a punctured lung and three fractured left-sided ribs.
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 August 6, 2022. Three of the arresting officers – SO #1, SO #2, and SO #3 – were identified as subject officials in the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials 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 subject to lawful arrest at the time of the events in question. He was in possession of illicit drugs at the time, and endeavouring to sell them to an undercover officer.
With respect to the force brought to bear by the subject officials in the Complainant’s arrest, the evidence is insufficiently cogent to warrant criminal charges. In my view, not enough is known of what precisely occurred between the officers and the Complainant from the moment he was confronted in the undercover vehicle with arrest until he was handcuffed on the ground.
What is clear is that the Complainant was forcibly pulled from the undercover vehicle and forced to the ground. Given the inherent potential for violence in drug operations of this kind, and the presence of an associate – CW #1 – with the Complainant, this tactic appears to have been one reasonably available to the officers given the need to effect the Complainant’s arrest as quickly as possible.
Aside from the takedown, it is alleged the Complainant was first punched by an officer while still seated in the passenger seat, and that he was thereafter repeatedly kicked in the back and punched in the face by at least five officers on the ground. At no point, according to this account, did the Complainant resist arrest. However, this account is unable to describe or identify the involved officers, other than to suggest that one of them seemed “Mexican” and may have had a goatee.
This account is also at odds with the evidence of WO #1, who was among the contingent of undercover officers participating in the operation. The officer says that he had just finished dealing with CW #1 when he attended at the site of the Complainant’s arrest and saw him struggling to get up as other officers tried to restrain him in handcuffs. In addition, WO #5, who was present in the undercover police vehicle with the Complainant, acknowledges that the Complainant was pulled from the vehicle, but says nothing of him having first been punched by an officer.
Little else is known of the interaction, other than that the Complainant sustained fractured ribs and a collapsed lung. Whether those injuries occurred in the takedown from the vehicle and/or an altercation on the ground, and what they suggest about the propriety of the force used by the officers, remains largely a matter of conjecture in light of the aforementioned-frailties in the evidence.
In the result, as I am unable to reasonably conclude with any confidence that one or more of the subject officials resorted to excessive force in executing what was otherwise a lawful arrest, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: November 25, 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.
I am satisfied that the Complainant was subject to lawful arrest at the time of the events in question. He was in possession of illicit drugs at the time, and endeavouring to sell them to an undercover officer.
With respect to the force brought to bear by the subject officials in the Complainant’s arrest, the evidence is insufficiently cogent to warrant criminal charges. In my view, not enough is known of what precisely occurred between the officers and the Complainant from the moment he was confronted in the undercover vehicle with arrest until he was handcuffed on the ground.
What is clear is that the Complainant was forcibly pulled from the undercover vehicle and forced to the ground. Given the inherent potential for violence in drug operations of this kind, and the presence of an associate – CW #1 – with the Complainant, this tactic appears to have been one reasonably available to the officers given the need to effect the Complainant’s arrest as quickly as possible.
Aside from the takedown, it is alleged the Complainant was first punched by an officer while still seated in the passenger seat, and that he was thereafter repeatedly kicked in the back and punched in the face by at least five officers on the ground. At no point, according to this account, did the Complainant resist arrest. However, this account is unable to describe or identify the involved officers, other than to suggest that one of them seemed “Mexican” and may have had a goatee.
This account is also at odds with the evidence of WO #1, who was among the contingent of undercover officers participating in the operation. The officer says that he had just finished dealing with CW #1 when he attended at the site of the Complainant’s arrest and saw him struggling to get up as other officers tried to restrain him in handcuffs. In addition, WO #5, who was present in the undercover police vehicle with the Complainant, acknowledges that the Complainant was pulled from the vehicle, but says nothing of him having first been punched by an officer.
Little else is known of the interaction, other than that the Complainant sustained fractured ribs and a collapsed lung. Whether those injuries occurred in the takedown from the vehicle and/or an altercation on the ground, and what they suggest about the propriety of the force used by the officers, remains largely a matter of conjecture in light of the aforementioned-frailties in the evidence.
In the result, as I am unable to reasonably conclude with any confidence that one or more of the subject officials resorted to excessive force in executing what was otherwise a lawful arrest, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: November 25, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) CW #2 was a property representative. He provided access to the property’s CCTV video. [Back to text]
- 2) 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.