SIU Director’s Report - Case # 22-TCI-245
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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 injury of a 37-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 injury of a 37-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 21, 2022, at 3:22 a.m., the Toronto Police Service (TPS) contacted the SIU and reported the following. On September 20, 2022, at 8:11 p.m., the TPS received a 911 call from a homeowner in the area of Wellesley Street East and Sumach Street regarding a break and enter in progress. The homeowner was inside the residence. The Complainant was attempting to gain entry.
When police officers arrived, the Complainant was seated on a couch in the backyard. During the arrest, the police officers struck him and his nose began to bleed.
The Complainant was taken to 51 Division, and then to St. Michael’s Hospital (SMH), where he was diagnosed with a nasal bone fracture. He was subsequently released from hospital and returned to 51 Division.
The Team
Date and time team dispatched: 09/21/2022 at 7:45 a.m.Date and time SIU arrived on scene: 09/21/2022 at 10:44 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
37-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 21, 2022.
Civilian Witnesses (CW)
CW #1 Not interviewed; declined CW #2 Not interviewed; declined
Subject Official (SO)
SO Interviewed; notes received and reviewedThe subject official was interviewed on November 1, 2022.
Witness Official (WO)
WO InterviewedThe witness official was interviewed on October 13, 2022.
Evidence
The Scene
The scene was located outside a house in the area of Wellesley Street East and Sumach Street, Toronto.The scene was neither attended nor forensically assessed by the SIU.
Video/Audio/Photographic Evidence [1]
Police Communications Recordings
On September 20, 2022, at 8:10 p.m., CW #2 called 911 and reported that someone was trying to break into the house. An address was provided. The person had been at the front door, went over a locked gate and, “Now they’re trying the back door.” He did not know who the person was and was not going to look. He also told the operator someone had tried to kick in the door last Thursday [September 15, 2022].
The police arrived while CW #2 was still on the line with 911. The call ended at 8:16 p.m.
Radio Communications
On September 20, 2022, at 8:11 p.m., two TPS cars were dispatched on a ‘priority one’ [2] to an address in the area of Wellesley Street East and Sumach Street for a break and enter in progress. They were told an unknown person had tried to break into the house and was now at the back door. It was unknown how many people were involved.
Two TPS cars were assigned to attend, one of which was staffed by the SO and the WO.
At 8:33 p.m., the SO and the WO broadcast they were transporting the Complainant to 51 Division. They arrived at 8:39 p.m.
Body-worn Camera (BWC) Footage
The following is a summary of the cumulative BWC footage collected by the SIU from multiple officers, including the WO and the SO.
On September 20, 2022, at 8:15 p.m., the SO and the WO were in a police vehicle. The SO drove. Both police officers exited the vehicle when it reached a residence. They briefly attended the front door of the house before walking down the side of the house, where they encountered a fence. They returned to the front door and spoke with CW #2. CW #1 was behind CW #2, inside the home.
CW #2 told the officers that a man had hopped the fence and was in the backyard. The SO asked CW #2 who that man was. CW #2 said he did not know as he had not looked outside to see.
CW #2 exited the home and gave the WO a set of keys, which he used to unlock the fence that allowed access to the walkway leading to the backyard. The WO moved along the walkway and unholstered his pistol as he approached a second gate. At 8:17:09 p.m., both police officers and CW #1 reached another gate. The SO loudly announced, “Police.” The WO holstered his pistol. CW #1 opened the gate for the police officers. The WO walked into the backyard and unholstered his pistol. The SO followed with his conducted energy weapon (CEW) drawn. Both walked along the side of the house into the backyard that contained a wooden deck. The deck was populated with outdoor furniture.
The Complainant was sitting on a couch, on the deck, facing towards the WO. The WO pointed at him, with his left hand, and said, “Get on the ground.” He walked towards the deck and said, “Get on the ground right now,” as he holstered his pistol. He mounted the deck, followed by the SO.
At 8:17:42 p.m., the WO reached the Complainant, took his right wrist with his left hand, and placed his right hand behind the Complainant’s neck. The Complainant kicked out at the officers. The WO pulled the Complainant forward and his right arm transitioned from holding the back of the Complainant’s neck to holding him in a front headlock. The SO put his CEW down and assisted the WO, who had pulled the Complainant off the couch and put him on his back on the deck. Both police officers told the Complainant to get down on the ground. The Complainant lay on the deck in an inclined position with his buttocks on the deck, his legs curled up, and his shoulders raised off the deck.
At 8:17:57 p.m., the WO moved from beside the Complainant to in front of his head, while the SO held both the Complainant’s wrists. The WO delivered two forearm strikes to the left side of the Complainant’s head. The Complainant was directed to, “Put your hands behind your back,” by one of the police officers after those strikes. The Complainant’s left hand was raised, protecting his head. He said, “Stop, please.” The WO repositioned himself to the Complainant’s left side and the SO on the right. The Complainant held both his hands to cover his head, his hands over his ears. The police officers told the Complainant to place his hands behind his back. The Complainant held his hands up around his head, screamed and said, “What did I do?”
The Complainant was rolled onto his stomach. The police officers yelled for him to stop resisting. The WO placed his right arm around the Complainant in a rear headlock and told the Complainant to give him his hands. He released the Complainant’s head and the SO grabbed the back of the Complainant’s neck with his right hand.
At 8:18:37 p.m., the SO drove the Complainant’s head into the deck three times. The left side of the Complainant’s face struck the deck. The police officers continued to demand the Complainant surrender his hands. Blood became visible on the ground where the Complainant’s head had impacted after his head was lifted and moved to the left. More blood was visible on the Complainant’s left hand after he placed it on his face. The SO’s right hand moved to the Complainant’s throat and the Complainant repeatedly moaned, “I can’t breathe.”
At 8:19:11 p.m., the police officers transitioned the Complainant to lay him on his front and had his right arm behind his back. The SO placed a handcuff on the Complainant’s right wrist as the WO held that arm in an armbar. The WO took control of the handcuffs from the SO and continued to hold the Complainant’s right arm. The officer then delivered two punches to the Complainant’s midsection. The Complainant’s left arm was subsequently removed from under his body and handcuffed to the right behind his back. The Complainant moaned loudly throughout the encounter.
The SO asked the Complainant what the matter with him was, then told him to shut up. The Complainant was, once handcuffed, left momentarily face down on the deck before the SO took him by his left bicep and lifted him to a standing position. The Complainant screamed as he was pulled to his feet and was again told to shut up.
At 8:20:01 p.m., the SO told him, “You’re under arrest, you know that?” The Complainant replied, “For what?” and was told ‘break and enter’.
The WO led the Complainant by his right arm and the SO held his left. The WO pulled the Complainant as they moved from the deck towards the gate that led to the road, stopped, and told the SO to put on gloves because the Complainant was bleeding. The SO took control of the Complainant’s left arm and walked him towards the road.
At 8:20:40 p.m., the SO and the Complainant entered onto the roadway and walked towards a police vehicle. Two other police officers approached and the SO told them, “He’s an idiot.” [3] The WO caught up to the SO and took the Complainant’s right arm. Both the WO and the SO walked the Complainant to the front of the police vehicle. The Complainant breathed loudly, cried, and called out, “Ow,” while he was being escorted.
At 8:20:58 p.m., as the officers and the Complainant neared the front of the cruiser on the roadway, the Complainant raised his right foot and braced it against the front bumper of the vehicle. The SO reacted by pushing the Complainant against the front of the police vehicle and bent him forward with sufficient force his face hit the hood. The WO held his face against the hood and lifted his handcuffed arms up behind his back as the SO began a search. The SO then walked to the left front of the police vehicle as the other two police officers continued to search the Complainant, who continued screaming.
At 8:23:10 p.m., the Complainant was placed into the rear of the police vehicle and the SO entered the driver’s seat. The WO asked the two other police officers to take witness statements and obtain security video.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between September 23, 2022, and October 30, 2022:- Policies regarding Arrest, Use of Force, Persons in Custody, and Incident Response;
- Civilian Witness List;
- Notes - the WO;
- Notes - the SO;
- Communications recordings;
- BWC footage from multiple officers;
- Training records - the WO; and
- Training records - the SO.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Medical records - SMH – the Complainant.
Incident Narrative
The material events in question are clear on the evidence gathered by the SIU, including interviews with the Complainant and the SO, and police BWC footage that captured much of the incident.
In the evening of September 20, 2022, police officers were dispatched to a house in the area of Wellesley Street East and Sumach Street. An occupant of the residence, CW #2, had contacted police to report that someone was trying to break into the home and was now in the backyard.
The Complainant was that person. He had hopped a locked gate to the backyard and was seated having a cigarette on a deck sofa by the time of the police officers’ arrival.
The SO and his partner, the WO, were the first officers on scene, at about 8:15 p.m. They spoke to the residents of the home and, with their help, accessed the backyard through two closed gates. The WO led the way into the backward area and confronted the Complainant at gunpoint. The officer directed him to the ground on a couple of occasions, and then moved in to take a hold of the Complainant when he did not do so. The Complainant resisted as the WO, and then the SO, sought to force him to the ground. He kicked at the officers and then refused to release his arms after he had been grounded. The WO and the SO delivered several hand and arm strikes to the Complainant on the ground, and attempted to overpower him as he clenched his arms tightly to the chest and continued to lash out with his legs. At one point, the SO placed his right hand on the back of the Complainant’s head and drove it three times to the deck floor. Following a further brief period of struggle, the officers took control of the Complainant’s arms and handcuffed them behind the back.
The Complainant was lifted to his feet, and escorted from the backyard to the roadway and a waiting cruiser. Arriving at the front hood of the cruiser, he braced his right foot against the vehicle’s bumper. The SO, positioned by the Complainant’s left side, immediately reacted by pushing him forward and down, the Complainant’s face striking the hood in the process. With the Complainant bent over the cruiser’s hood, the officers proceeded to search him.
The Complainant was transported to the police station and then to hospital. He was diagnosed with a broken nose.
In the evening of September 20, 2022, police officers were dispatched to a house in the area of Wellesley Street East and Sumach Street. An occupant of the residence, CW #2, had contacted police to report that someone was trying to break into the home and was now in the backyard.
The Complainant was that person. He had hopped a locked gate to the backyard and was seated having a cigarette on a deck sofa by the time of the police officers’ arrival.
The SO and his partner, the WO, were the first officers on scene, at about 8:15 p.m. They spoke to the residents of the home and, with their help, accessed the backyard through two closed gates. The WO led the way into the backward area and confronted the Complainant at gunpoint. The officer directed him to the ground on a couple of occasions, and then moved in to take a hold of the Complainant when he did not do so. The Complainant resisted as the WO, and then the SO, sought to force him to the ground. He kicked at the officers and then refused to release his arms after he had been grounded. The WO and the SO delivered several hand and arm strikes to the Complainant on the ground, and attempted to overpower him as he clenched his arms tightly to the chest and continued to lash out with his legs. At one point, the SO placed his right hand on the back of the Complainant’s head and drove it three times to the deck floor. Following a further brief period of struggle, the officers took control of the Complainant’s arms and handcuffed them behind the back.
The Complainant was lifted to his feet, and escorted from the backyard to the roadway and a waiting cruiser. Arriving at the front hood of the cruiser, he braced his right foot against the vehicle’s bumper. The SO, positioned by the Complainant’s left side, immediately reacted by pushing him forward and down, the Complainant’s face striking the hood in the process. With the Complainant bent over the cruiser’s hood, the officers proceeded to search him.
The Complainant was transported to the police station and then to hospital. He was diagnosed with a broken nose.
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.
Section 348(1), Criminal Code -- Breaking and entering with intent, committing offence or breaking out
348 (1) Every one who
(a) breaks and enters a place with intent to commit an indictable offence therein,(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or(ii) entering the place with intent to commit an indictable offence therein,
is guilty
(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.
(2) For the purposes of proceedings under this section, evidence that an accused
(a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or(b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after
(i) committing an indictable offence therein, or(ii) entering with intent to commit an indictable offence therein.
(3) For the purposes of this section and section 351, place means
(a) a dwelling-house;(b) a building or structure or any part thereof, other than a dwelling-house;(c) a railway vehicle, a vessel, an aircraft or a trailer; or(d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.
Analysis and Director's Decision
The Complainant was seriously injured during his arrest by TPS officers on September 20, 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 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.
I am satisfied that the Complainant was subject to lawful arrest at the hands of the SO and the WO. Based on what they knew from the 911 call and their conversation with the residents of the home, the officers had grounds to take the Complainant into custody for a number of offences, including ‘break and enter’ contrary to section 348 of the Criminal Code. Once in lawful custody, the officers were also within their rights to search the Complainant pursuant to their common law powers of search incident to arrest.
I am also satisfied that the force brought to bear by the officers against the Complainant, namely, a takedown followed by multiple strikes to the Complainant’s head and torso, was legally justified. As far as the officers knew, the Complainant was trespassing and had attempted to break into a residence for reasons unknown; his immediate apprehension was well-warranted. In the circumstances, when the Complainant failed to get on the ground as ordered, the officers were entitled to force the issue, and did so. Thereafter, the officers were also entitled to resort to a measure of force as the Complainant refused to release his arms so they could be restrained and kicked out at the officers. The Complainant’s resistance was formidable. Even after his head was struck off the deck floor several times by the SO, likely causing his injury, the Complainant continued to struggle against the officers’ efforts. Indeed, it was not until the WO punched him twice in the midsection that the officers were able to assume control of both the Complainant’s arms and handcuff them together. No further force was used by the officers until the SO, having escorted him to the front of a police cruiser to be searched, drove the Complainant’s face into the hood. That episode, however, was the product of opposing forces at work – the Complainant pushing back with his right foot braced against the cruiser, and the officer reacting by pushing forward. In view of the dynamics of the moment, I am unable to reasonably conclude that the SO acted with excess in forcing the Complainant into a position so he could be searched.
In the result, while I accept that the Complainant’s nose was broken in the course of the altercation with the SO and the WO that marked his arrest, there are no reasonable grounds to believe that the injury was attributable to unlawful conduct on the part of either officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 18, 2023
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 hands of the SO and the WO. Based on what they knew from the 911 call and their conversation with the residents of the home, the officers had grounds to take the Complainant into custody for a number of offences, including ‘break and enter’ contrary to section 348 of the Criminal Code. Once in lawful custody, the officers were also within their rights to search the Complainant pursuant to their common law powers of search incident to arrest.
I am also satisfied that the force brought to bear by the officers against the Complainant, namely, a takedown followed by multiple strikes to the Complainant’s head and torso, was legally justified. As far as the officers knew, the Complainant was trespassing and had attempted to break into a residence for reasons unknown; his immediate apprehension was well-warranted. In the circumstances, when the Complainant failed to get on the ground as ordered, the officers were entitled to force the issue, and did so. Thereafter, the officers were also entitled to resort to a measure of force as the Complainant refused to release his arms so they could be restrained and kicked out at the officers. The Complainant’s resistance was formidable. Even after his head was struck off the deck floor several times by the SO, likely causing his injury, the Complainant continued to struggle against the officers’ efforts. Indeed, it was not until the WO punched him twice in the midsection that the officers were able to assume control of both the Complainant’s arms and handcuff them together. No further force was used by the officers until the SO, having escorted him to the front of a police cruiser to be searched, drove the Complainant’s face into the hood. That episode, however, was the product of opposing forces at work – the Complainant pushing back with his right foot braced against the cruiser, and the officer reacting by pushing forward. In view of the dynamics of the moment, I am unable to reasonably conclude that the SO acted with excess in forcing the Complainant into a position so he could be searched.
In the result, while I accept that the Complainant’s nose was broken in the course of the altercation with the SO and the WO that marked his arrest, there are no reasonable grounds to believe that the injury was attributable to unlawful conduct on the part of either officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 18, 2023
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]
- 2) Also known as a “Hot Shot”. [Back to text]
- 3) Referring to the Complainant. [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.