SIU Director’s Report - Case # 22-TCI-303
Warning:
This page contains graphic content that can shock, offend and upset.
Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to 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 injury of a 21-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 21-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On November 28, 2022, at 1:26 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to a male.According to TPS, on November 27, 2022, at 4:50 p.m., a male [now known to be the Complainant] entered The Lido Hotel, 4674 Kingston Road. He had a firearm and demanded cash. The Complainant subsequently fled the motel and hid in the area of Colonel Danforth Park. The Emergency Task Force (ETF) responded and, with the assistance of a drone, the Complainant was located. He actively resisted arrest and a conducted energy weapon (CEW) was deployed. The Complainant was taken to 43 Division and held for a bail hearing. He complained of pain to his face and was transported to Centenary Hospital, where he was diagnosed with a nasal fracture at 12:07 a.m. The Complainant was released back to the custody of TPS and returned to 43 Division.
The Team
Date and time team dispatched: 11/28/2022 at 2:25 a.m.Date and time SIU arrived on scene: 11/28/2022 at 9:00 a.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 November 28, 2022.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
The civilian witnesses were interviewed on November 29, 2022.
Subject Officials (SO)
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
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on December 22, 2022.
Evidence
The Scene
The scene was the east side of a house at an address on Beechgrove Drive, Toronto. Forensic Evidence
CEW Data
The data downloaded from SO #2’s CEW indicated that the weapon was fired at 5:57:55 p.m., [2] November 27, 2022, for a charge duration of five seconds.Video/Audio/Photographic Evidence [3]
Video Footage - Lido Motel
On November 27, 2022, two individuals [now known to be CW #2 and CW #1] were captured standing inside the Lido Motel with a child in a stroller. At 4:52 p.m., a man entered the Lido Motel. He wore a jacket, pants, and a black ski mask. He carried a rifle in both hands and shoved the barrel of the weapon at CW #2. CW #2 handed a bag to the Complainant. CW #2 held his hands in the air. The Complainant left the building. He crossed the intersection at the pedestrian crosswalk of Beechgrove Drive and Kingston Road, and headed eastbound.
Police Body-worn Camera (BWC) Footage
On November 27, 2022, at 6:02 p.m., the Complainant was captured lying in a prone position with his hands handcuffed behind his back. He was between two houses [now known to be on Beechgrove Drive]. He was stood upright by uniformed police officers. ETF members stood nearby, and did not interact with the ComplainantThe Complainant was escorted to a police vehicle and was searched by a police officer. There was blood on the Complainant’s face which came from his nose, and he complained of pressure in his head. Paramedic services were requested.
At 6:19 p.m., paramedic services arrived, and the Complainant declined to go to the hospital. He was transported to TPS 43 Division.
At 10:10 p.m., the Complainant was transported by ambulance to Centenary Hospital.
At 11:29 p.m., the Complainant was transported from the hospital to TPS 43 Division.
The police BWC footage did not capture the interaction between the Complainant and TPS officers in the course of the Complainant’s arrest.
Record of Computer-assisted Dispatch (CAD)
On November 27, 2022, at 4:59 p.m., it was noted that a man [now known to be CW #2] had reported he was robbed at gunpoint. A physical description of the Complainant was provided.Various police officers were dispatched to the area of Kingston Road and Beechgrove Drive.
At 5:32 p.m., the location was routed to Colonel Danforth Trail.
At 5:59 p.m., the Complainant was noted as being in custody at a location on Beechgrove Drive.
At 6:11 p.m., Emergency Medical Services was requested. The Complainant was bleeding from the mouth.
At 6:36 p.m., a jacket was located during a search of the area, but no firearm was located.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between November 28, 2022, and March 23, 2023:- Record of CAD;
- Involved Officers List;
- General Occurrence Report;
- BWC footage;
- Notes – WO #1;
- Notes – WO #2;
- TPS Policy - Arrest and Release;
- TPS Policy - CEW;
- TPS Policy - Use of Force;
- TPS Policy - Incidents Requiring ETF; and
- CEW download.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Video footage from the Lido Motel, 4674 Kingston Road, Toronto; and
- Medical records from Centenary Hospital.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and two witness officials, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU or to authorize the release of their notes.
In the late afternoon of November 27, 2022, TPS officers began to converge on the area around the Lido Motel, 4674 Kingston Road, Toronto, following a 911 call to police regarding an armed robbery. A patron of the motel had called to report that a male had just robbed him at gunpoint.
The Complainant was on foot in the area at the time. He made his way into a wooded area east of Kingston Road and eventually into the yards of a row of houses on Beechgrove Drive where he attempted to conceal himself.
Police officers set up a perimeter around the area to prevent the assailant’s escape. Because of the nature of the 911 call, the ETF was dispatched and assisted in the search. SO #1 and SO #2 were members of the ETF.
At about 6:00 p.m., with the help of a police dog that had picked up the Complainant’s track, he was located by SO #1 and SO #2 hiding in a refuse bin situated by the front of a home on Beechgrove Drive against the east wall. One of the officers fired his CEW at the Complainant and he was quickly grounded before being handcuffed and taken into custody.
Following his arrest, the Complainant was taken to the police station and then to hospital, where he was diagnosed with a broken nose.
In the late afternoon of November 27, 2022, TPS officers began to converge on the area around the Lido Motel, 4674 Kingston Road, Toronto, following a 911 call to police regarding an armed robbery. A patron of the motel had called to report that a male had just robbed him at gunpoint.
The Complainant was on foot in the area at the time. He made his way into a wooded area east of Kingston Road and eventually into the yards of a row of houses on Beechgrove Drive where he attempted to conceal himself.
Police officers set up a perimeter around the area to prevent the assailant’s escape. Because of the nature of the 911 call, the ETF was dispatched and assisted in the search. SO #1 and SO #2 were members of the ETF.
At about 6:00 p.m., with the help of a police dog that had picked up the Complainant’s track, he was located by SO #1 and SO #2 hiding in a refuse bin situated by the front of a home on Beechgrove Drive against the east wall. One of the officers fired his CEW at the Complainant and he was quickly grounded before being handcuffed and taken into custody.
Following his arrest, the Complainant was taken to the police station and then to hospital, where 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.
Analysis and Director's Decision
The Complainant sustained a broken nose in the course of his arrest in Toronto by TPS officers on November 27, 2022. The officers – SO #1 and SO #2 – were identified as the 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 either subject official 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 SO #1 and SO #2 were proceeding to lawfully detain the Complainant. The Complainant generally matched the description of the robbery suspect, was in the area at the time, and had been found concealing himself from police.
With respect to the force used by SO #1 and SO #2 in aid of the Complainant’s arrest, I am unable to reasonably conclude that it was not legally justified. The use of the CEW seems a reasonable tactic given the information the officers would have had of the firearm used in the robbery and the fact that the suspect had been seen hiding it in his clothes as he fled the scene. That is to say, there was a real need to immediately immobilize the Complainant to neutralize the risk of the firearm being brought into play, and the CEW had the potential to do just that. The Complainant’s takedown was similarly justified.
There is little else that can be reliably ascertained with respect to the nature and extent of any further force that may have been brought to bear by one or more of the subject officials. Neither of them provided a statement to the SIU. There is a version of events proffered in the evidence that the Complainant was repeatedly punched and kicked by the officers while offering no resistance, but it would be unwise and unsafe to rest charges on the strength of this evidence. For example, the account suggests that both officers fired their CEWs and one of them deployed it at the Complainant’s face whereas the evidence indicates that only one did so and that the Complainant’s face was not struck. This rendition is also undermined by the accounts of two witness officials who observed part of the arrest process and did not see any strikes being delivered by the subject officials.
In the result, while I accept that the Complainant’s broken nose was incurred as he was being arrested by the subject officials, there is insufficient evidence to reasonably conclude with any confidence that the Complainant was subjected to excessive force. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: March 28, 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 SO #1 and SO #2 were proceeding to lawfully detain the Complainant. The Complainant generally matched the description of the robbery suspect, was in the area at the time, and had been found concealing himself from police.
With respect to the force used by SO #1 and SO #2 in aid of the Complainant’s arrest, I am unable to reasonably conclude that it was not legally justified. The use of the CEW seems a reasonable tactic given the information the officers would have had of the firearm used in the robbery and the fact that the suspect had been seen hiding it in his clothes as he fled the scene. That is to say, there was a real need to immediately immobilize the Complainant to neutralize the risk of the firearm being brought into play, and the CEW had the potential to do just that. The Complainant’s takedown was similarly justified.
There is little else that can be reliably ascertained with respect to the nature and extent of any further force that may have been brought to bear by one or more of the subject officials. Neither of them provided a statement to the SIU. There is a version of events proffered in the evidence that the Complainant was repeatedly punched and kicked by the officers while offering no resistance, but it would be unwise and unsafe to rest charges on the strength of this evidence. For example, the account suggests that both officers fired their CEWs and one of them deployed it at the Complainant’s face whereas the evidence indicates that only one did so and that the Complainant’s face was not struck. This rendition is also undermined by the accounts of two witness officials who observed part of the arrest process and did not see any strikes being delivered by the subject officials.
In the result, while I accept that the Complainant’s broken nose was incurred as he was being arrested by the subject officials, there is insufficient evidence to reasonably conclude with any confidence that the Complainant was subjected to excessive force. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: March 28, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) The time is derived from the internal clock of the weapons, and is not necessarily synchronous with actual time. [Back to text]
- 3) 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.