SIU Director’s Report - Case # 23-TCI-018
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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 injury of a 29-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 29-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On January 16, 2023, at 2:00 a.m., the Toronto Police Service (TPS) contacted the SIU with the following information.On January 15, 2023, at 1:42 a.m., the TPS received a 911 call from a woman reporting that she and her boyfriend (the Complainant) had attended a party in Toronto. The Complainant became upset when she spoke with another man, and he demanded they leave. While in his vehicle, the Complainant punched the woman in the face. She ran from the vehicle, but he caught her and forced her back inside. While stopped at Eglinton Avenue and Pharmacy Avenue, the woman again fled the vehicle. This time, the Complainant could not catch her, and he drove away.
At 3:30 p.m., TPS officers interviewed the woman. They then obtained a Feeney arrest warrant [2] and attended the Complainant’s residence in the Rutherford Road and Jane Street area in Vaughan. The Complainant freely exited his apartment and became defiant; a struggle ensued. The Complainant was taken to the ground, his face striking the floor in the process.
After he was arrested, the Complainant was transported to the Scarborough Health Network, Birchmount Emergency (hospital) via ambulance, where he was diagnosed with a broken nose.
On January 16, at 12:30 a.m., the Complainant was discharged from hospital and transported to TPS 43 Division.
The Team
Date and time team dispatched: 01/16/2023 at 8:59 a.m.Date and time SIU arrived on scene: 01/16/2023 at 12:00 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
29-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on January 16, 2023.
Civilian Witness (CW)
CW Interviewed The civilian witness was interviewed on January 16, 2023.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
The witness officials were interviewed between January 25 and February 9, 2023.
Evidence
The Scene
The scene was the hallway of a building in the area of Rutherford Road and Jane Street in Vaughan. The event was captured on body-worn camera (BWC) footage and surveillance cameras.
Video/Audio/Photographic Evidence [3]
Computer-assisted Dispatch (CAD) and Communications Recordings
On January 18, 2023, at 9:11 a.m., the SIU received the TPS CAD report. On February 15, 2023, at 1:12 p.m., the SIU received the TPS communications recordings. At 1:15 a.m., January 15, 2023, the TPS received its first of four 911 calls related to a woman being forced into a vehicle. She was said to be nude and bleeding, and to have run from the Complainant.
At 10:38 a.m., WO #3 and WO #1 advised they were on their way to the Complainant’s apartment building in the area of Rutherford Road and Jane Street in Vaughan.
At 3:02 p.m., WO #2 announced he was heading to an address to execute a Feeney warrant.
At 3:11 p.m., Mobile Command Unit (MCU) officers – the SO, WO #4 and WO #5 - were en route to the building.
At 3:50 p.m., WO #1 advised that one person was in custody, and everything was okay. He asked WO #2 to come to the floor.
At 4:10 p.m., WO #2 confirmed that one person was in custody.
At 6:20 p.m., on the CAD Report, there was a notation that the Complainant had been taken to the hospital by the ambulance for a small cut to the left eye, with a small amount of bleeding.
Cellular Video taken by the CW
On January 25, 2023, at 10:40 a.m., the CW provided the SIU the cellular video she had taken of the arrest of the Complainant. The video began with the SO standing at the feet of the Complainant, who was prone and on his stomach. The CW stated, “It’s obvious you guys smashed him to the ground.” The Complainant was told he was under arrest for aggravated assault, and that he could contact a lawyer. His hands were in handcuffs behind his back. The SO asked for the CW’s name, and she replied that they already had that information. She said she was calling the Complainant’s lawyer. The SO said that the Complainant could not be afforded privacy. The CW told the lawyer that they had just walked out the door and the police tackled the Complainant causing his nose to bleed. The CW was asked to get something to clean up the blood as she continued to speak with the lawyer.
The Complainant was brought to his knees, and the CW was asked to get a towel. The video portion stopped [4] but the audio continued. The CW was heard telling the lawyer that the Complainant had been arrested for aggravated assault. The CW told the police officers that the Complainant clearly had a concussion from been slammed onto the ground. A police officer mentioned that medical attention would be obtained for the Complainant.
TPS BWC Footage
On January 16, 2023, at 5:07 p.m., the TPS provided the SIU the pertinent BWC footage. As the MCU officers (including the SO) were in plainclothes, only three uniformed officers wore BWCs: WO #1, WO #3 and WO #2. Of the three recordings, only WO #1’s footage covered the arrest itself. WO #1
Starting from about 3:49 p.m., January 15, 2023, WO #1 was captured walking down a hallway to an apartment. The Complainant and the CW had exited the apartment and the door was still slightly still open. WO #1 grabbed the Complainant’s upper left arm with his right hand. The SO stepped into view as his right hand and arm were raised and brought near the Complainant’s head. The SO put his right hand on the back of the Complainant’s head and pulled it forward. WO #4 was behind the SO. The Complainant was pulled from the area of the door threshold. The SO’s right hand was under the Complainant’s hat, which was still on his head. WO #1’s right hand was still positioned on the Complainant’s left bicep area. The SO repositioned his hands and grabbed the Complainant’s right wrist. WO #4 was on the Complainant’s right side and grabbed the Complainant’s jacket with his right hand by the neck and back area. The Complainant was taken towards the ground by the SO, WO #1, and WO #4.
WO #4 began to drop his right knee on the Complainant’s back just below his neck at about the same time as the SO kicked down on the Complainant’s head with his right foot.
The SO disengaged from the arrest. WO #4 positioned himself over top of the Complainant’s head and right shoulder area. As WO #4 went to his knees, he delivered two hand strikes. The Complainant was not yet in handcuffs. Police officers issued demands for the Complainant to give up his hands. WO #4 positioned his left knee on the back of the Complainant’s left shoulder. WO #5 assisted from the right side in placing the Complainant in handcuffs behind the back.
WO #4 asked the Complainant several times if he had anything in his pockets. The Complainant made no response. WO #1 told the Complainant that he was arrested for aggravated assault. The CW said she would call his lawyer. WO #1 broadcast that the Complainant was in custody.
The Complainant was brought to his knees but had to be held in place as he slumped to his left side when let go. Attempts were made to place the Complainant in a seated position, but he fell backward. A towel was supplied to clean up the blood on the Complainant’s face, and to stop the bleeding. The Complainant sat with WO #1 positioned behind him to prevent him from falling. WO #1 used the towel to clean up the blood. The CW could be heard stating the Complainant clearly had a concussion.
In-car Camera System (ICCS) Footage
The ICCS footage from the TPS cruiser driven by WO #1 was provided to the SIU by the TPS on February 1, 2023. WO #3 was the passenger. Starting at about 4:05 p.m., the Complainant sat in the rear of the TPS cruiser. He was in handcuffs behind his back. His face was bloodied at the nose, and he had bruising to the left side of his face. WO #1 opened the rear door and read the Complainant his rights and caution. The Complainant complained he could not see from his eye and asked to be taken to a hospital. He was told he would meet with paramedics at TPS 41 Division.
Starting at about 4:10 p.m., the TPS cruiser left the building. The Complainant cried and appeared to hyperventilate. WO #1 verbally checked on the Complainant and asked how he was doing. The Complainant slumped over to his left, and WO #1 and WO #3 repeatedly asked him to sit up.
Starting at about 4:21 p.m., the TPS cruiser was stopped, and WO #1 opened the rear door to check on the Complainant. The Complainant was sat up. As they continued, the Complainant stopped crying.
Starting at about 4:29 p.m., the cruiser stopped for a second time. WO #1 removed a white towel from the trunk, opened the rear seat door, and wiped the face of the Complainant. As they continued to TPS 41 Division, the Complainant continued to cry and hyperventilate.
Starting at about 4:42 p.m., WO #1 stopped the cruiser for a third time to check on the Complainant, who was hysterical. The Complainant was brought back to a sitting position on the seat. The Complainant told WO #1 he had consumed alcohol about two hours previously but had not consumed any drugs.
Starting at about 5:05 p.m., the rear door to the cruiser was opened. WO #1 wiped blood from the face of the Complainant, and the Complainant was moved from the TPS cruiser.
Video Footage from the Apartment Building
On January 17, 2023, at 8:50 a.m., the property manager provided the SIU video footage from the building.A review of the video clips submitted captured police officers entering the building and the elevator but did not show the arrest of the Complainant as there was no camera in the hallway.
The involved officers took the Complainant down to the lobby and cleaned his face, which was bloody from an injury to his nose and the left side of his face.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between January 16 and February 15, 2023:• The Complainant’s booking photo, dated January 16, 2023;
• Record of CAD;
• Notes of WO #4;
• Notes of WO #5;
• Notes of WO #3;
• BWC footage of WO #3;
• Notes WO #2;
• BWC footage of WO #2;
• Notes of WO #1;
• BWC footage of WO #1;
• ICCS footage of transport to 41 Division;
• Communications recordings; and
• General Occurrence Report.
Upon request, the SIU received the following materials from the YRP on February 6, 2023:
• Notes of YRP Officer 1;
• Notes of YRP Officer 2; and
• Notes of YRP Officer 3.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:• The Complainant’s medical records from Scarborough Health Network, Birchmount Emergency;
• Video footage from an apartment building in Vaughan; and
• Cellular telephone video taken by the CW.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and several police officers who participated in his arrest, as well as video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO declined an interview or to authorize the release of his notes to the SIU.
In the afternoon of January 15, 2023, TPS officers, including the SO, arrived at the Complainant’s apartment in the area of Rutherford Road and Jane Street, Vaughan. They were there to arrest him following a 911 call to police earlier that day in which the caller reported having been confined and assaulted by the Complainant. The officers had with them a Feeney warrant authorizing their entry into the apartment, if necessary, to take the Complainant into custody. Minutes earlier, during an initial knock at the apartment door, the Complainant’s girlfriend had answered, lied about the Complainant not being present, and refused to allow the officers entry to search for him. On this occasion, they encountered the Complainant and his girlfriend just outside the door to the apartment.
Told that he was under arrest, and his left arm grabbed by one of the attending officers, WO #1, the Complainant attempted to re-enter the apartment through the closed apartment door. The SO intervened to prevent that from happening. He took hold of the Complainant by the back of the head and right side, and pulled him away from the door. WO #5 was also present and active, pulling on the Complainant’s right arm. As he was being forced to the hallway floor, WO #4 dropped his right knee onto the Complainant’s back at about the same time as the SO kicked down on the back of his head, the Complainant’s face impacting the floor in the process. Shortly thereafter, the Complainant’s arms were brought behind his back and handcuffed.
Following his arrest, the Complainant was taken first to the police station and then to hospital, where he was diagnosed with a broken nose.
In the afternoon of January 15, 2023, TPS officers, including the SO, arrived at the Complainant’s apartment in the area of Rutherford Road and Jane Street, Vaughan. They were there to arrest him following a 911 call to police earlier that day in which the caller reported having been confined and assaulted by the Complainant. The officers had with them a Feeney warrant authorizing their entry into the apartment, if necessary, to take the Complainant into custody. Minutes earlier, during an initial knock at the apartment door, the Complainant’s girlfriend had answered, lied about the Complainant not being present, and refused to allow the officers entry to search for him. On this occasion, they encountered the Complainant and his girlfriend just outside the door to the apartment.
Told that he was under arrest, and his left arm grabbed by one of the attending officers, WO #1, the Complainant attempted to re-enter the apartment through the closed apartment door. The SO intervened to prevent that from happening. He took hold of the Complainant by the back of the head and right side, and pulled him away from the door. WO #5 was also present and active, pulling on the Complainant’s right arm. As he was being forced to the hallway floor, WO #4 dropped his right knee onto the Complainant’s back at about the same time as the SO kicked down on the back of his head, the Complainant’s face impacting the floor in the process. Shortly thereafter, the Complainant’s arms were brought behind his back and handcuffed.
Following his arrest, the Complainant was taken first 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 was seriously injured while being arrested by TPS officers in Vaughan on January 15, 2023. In the ensuing SIU investigation, one of the arresting officers – the SO – was identified as the subject official. 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.
Based on information they had received via 911 calls earlier in the day in which the caller reported having been confined and repeatedly assaulted by the Complainant in his vehicle, and the warrant obtained authorizing the Complainant’s arrest, I am satisfied that the officers, including the SO, were within their rights in seeking to take the Complainant into custody.
With respect to the force that was used by the SO, the evidence falls short of establishing that it was not legally justified. I accept that the SO’s role in pulling the Complainant forward towards the hallway floor was reasonable. The Complainant had pulled away from a lawful arrest as if to re-enter his apartment, and the officers were entitled to prevent that from happening by countering that movement. Less clear is whether the SO kicking down on the back of the Complainant’s head was warranted. On the one hand, the Complainant was on his way to the floor and surrounded by three other officers at the time; it was clear that he was not going anywhere. On the other hand, the Complainant’s arrest was a highly dynamic event over a few seconds in the cramped quarters of a narrow hallway, all of which would have combined to diminish the SO’s appreciation of what was going on around him. Coupled with the need to take him into custody as soon as possible, I am unable to reasonably conclude that the SO acted with excess when he sought to fully pin the Complainant on the floor by forcing his head down with his foot. In that position, the officers could better manage any resistance from the Complainant. After all, the officers had reasons to be concerned about their personal safety given the violence that the Complainant had reportedly perpetrated on a woman hours earlier, the fact that he was holding a pair of pliers at the time of his arrest and carrying a satchel around his upper body, and his unwillingness to peacefully surrender to arrest when approached at the door. In arriving at this conclusion, I am mindful that the common law does not require that officers caught in volatile and potentially dangerous situations measure their force with precision; 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).
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his engagement with the Complainant. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: May 16, 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.
Based on information they had received via 911 calls earlier in the day in which the caller reported having been confined and repeatedly assaulted by the Complainant in his vehicle, and the warrant obtained authorizing the Complainant’s arrest, I am satisfied that the officers, including the SO, were within their rights in seeking to take the Complainant into custody.
With respect to the force that was used by the SO, the evidence falls short of establishing that it was not legally justified. I accept that the SO’s role in pulling the Complainant forward towards the hallway floor was reasonable. The Complainant had pulled away from a lawful arrest as if to re-enter his apartment, and the officers were entitled to prevent that from happening by countering that movement. Less clear is whether the SO kicking down on the back of the Complainant’s head was warranted. On the one hand, the Complainant was on his way to the floor and surrounded by three other officers at the time; it was clear that he was not going anywhere. On the other hand, the Complainant’s arrest was a highly dynamic event over a few seconds in the cramped quarters of a narrow hallway, all of which would have combined to diminish the SO’s appreciation of what was going on around him. Coupled with the need to take him into custody as soon as possible, I am unable to reasonably conclude that the SO acted with excess when he sought to fully pin the Complainant on the floor by forcing his head down with his foot. In that position, the officers could better manage any resistance from the Complainant. After all, the officers had reasons to be concerned about their personal safety given the violence that the Complainant had reportedly perpetrated on a woman hours earlier, the fact that he was holding a pair of pliers at the time of his arrest and carrying a satchel around his upper body, and his unwillingness to peacefully surrender to arrest when approached at the door. In arriving at this conclusion, I am mindful that the common law does not require that officers caught in volatile and potentially dangerous situations measure their force with precision; 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).
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his engagement with the Complainant. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: May 16, 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) Obtained via the scheme set out in section 529 and 529.1 of the Criminal Code, and named after the Supreme Court of Canada decision in R v Feeney, [1997] 2 SCR 13, a Feeney warrant authorizes the forcible entry by police officers into a dwelling-house to effect an arrest. [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]
- 4) It is not known why the video portion ended. [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.