SIU Director’s Report - Case # 23-TCI-048
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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 27-year-old man (“Complainant #1”) and a 31-year-old man (“Complainant #2”).
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 27-year-old man (“Complainant #1”) and a 31-year-old man (“Complainant #2”).
The Investigation
Notification of the SIU [1]
On February 17, 2023, at about 9:51 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.On February 17, 2023, at approximately 9:12 p.m., members of the TPS Centralized Shooting Response Team (CSRT) and Emergency Task Force (ETF) executed a warrant at an apartment unit on East Liberty Street in Toronto. When the ETF breached the door, two occupants went over the balcony trying to escape. One person landed on a lower-floor and suffered fractures to their legs. The other person landed on the ground with unspecified injuries. Both individuals had been taken to St. Michael’s Hospital (STMH).
The Team
Date and time team dispatched: 02/17/2023 at 10:33 p.m.Date and time SIU arrived on scene: 02/17/2023 at 11:30 p.m.
Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 2
Affected Persons (aka “Complainants”):
Complainant #1 27-year-old male; declined an interview Complainant #2 31-year-old male; declined an interview
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
The civilian witnesses were interviewed between February 18 and 19, 2023.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Not interviewed; notes received and reviewed
WO #10 Not interviewed; notes received and reviewed
The witness officials were interviewed between February 22, 2023, and March 8, 2023.
Evidence
The Scene
The events in question transpired in and around and a high-rise condominium on East Liberty Street, Toronto.Upon the SIU’s arrival on scene, there was blood on the curb and street directly in front of the building entrance. Strewn around the blood was EMS debris and one multi-coloured sandal.
There were three apartments of interest to the investigation: the unit where the search warrant was executed (Unit #1) and two units on the floor below Unit #1 (Unit #2 and Unit #3).
Unit #3
The balcony was approximately 3 metres wide and 2.9 metres deep. A glass partition separated this balcony from the balcony of Unit #2. From the top of the railing to the road below was 7.8 metres. Medical debris, blood stains, and clothing items that appeared to have been cut by EMS were located on the balcony. The items were photographed to show their location prior to being collected. A gold-coloured Rolex watch had been found on the balcony and moved inside by a TPS police officer.Unit #2
Unit #2 was directly beside Unit #3. The two units shared a balcony with a glass partition between the two. A sandal that matched the sandal on the street was located on this balcony. It was photographed and collected.Unit #1
The door to this unit was damaged: there was a large dent to the door around the door handle; the door jamb was splintered; the dead bolt was bent outwards; and the handle bolt had broken away and was on the floor. Just inside the door, the floor was discoloured, presumably, from a distraction device. A Glock pistol was on the sofa. Both the swing door and the sliding door to the balcony were open. The balcony was approximately 3 metres wide and 1.6 metres deep with a 1.08-metre-high concrete and glass railing. It was directly over the balconies of Units #2 and #3 at a distance of about 8.2 metres. The distance to the ground was approximately 16 metres.
Video/Audio/Photographic Evidence [2]
The SIU obtained video as set out below.- Cell phone video recording of building security camera footage; and
- Cell phone footage from anonymous source.
Cell Phone Recording of Footage from Building Security Camera system
Interior CameraAt 9:09:13 p.m., images depicted the interior of the three passenger elevators. Elevator 3 was occupied by six ETF police officers and one plainclothes police officer. A two-person manual ram was carried on the shoulders of two of the ETF police officers. Elevator 2 was being loaded with five ETF police officers and one plainclothes police office with a female party accessing the controls for the elevator.
Exterior Camera
The camera faced north from above the front door of the building and showed the sidewalk and the beginning of the grass boulevard. At 9:10:37 p.m., an unknown male and female were captured walking east across the front of the doorway engaged in a conversation. The male, walking on the street side of the sidewalk, reacted to something above him, looked up, and then started to move quickly east while continuing to look up. The female placed her right hand over her head and ran east.
At 9:10:44 p.m., a male [known to be Complainant #1] fell feet first to the ground landing between the sidewalk and the street. Complainant #1’s head struck the ground and he lay motionless. Complainant #1 was attended to by paramedics, including a Tactical Paramedic and Toronto Fire Services personnel.
Cell Phone Footage
On February 17, 2023, at 11:03 p.m., a cellphone video recording was provided to the SIU by a citizen. The video appeared to have been recorded from a building next to the building on East Liberty Street. Three men, one wearing a black vest with ‘POLICE’ in large white letters in front [known to be WO #3], one dressed in brown and the other in blue clothing, were captured standing over a man [now known to have been Complainant #1] lying on the boulevard with blood running from the area of his head. The man in the brown clothing [known to be WO #1] appeared to be speaking into a portable radio. The other man [known to be WO #2] appeared to be performing a gentle pat-down search of Complainant #1.
At 25 seconds into the recording, two marked TPS vehicles with emergency equipment activated drove west on East Liberty Street and were flagged down by WO #3. Two ETF officers - dressed in black and wearing black helmets and face masks - were seen looking down to the street from the balcony of what was believed to be apartment #2.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between February 21, 2023, and April 12, 2023:- Notes-WO #3;
- Notes-WO #8;
- Notes-WO #1;
- Notes-WO #9;
- Notes-WO #6;
- Notes-WO #10;
- Notes-WO #4;
- Notes-WO #7;
- Notes-WO #5;
- Notes-WO #2;
- General and Supplementary Occurrence Reports;
- Policy-Incidents Requiring ETF; and
- Policy-Executing Search Warrants.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Complainant #1’s medical records from STMH, received March 13, 2023.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU.
In the evening of February 17, 2023, a team of ETF officers deployed outside the entrance to an apartment unit on East Liberty Street. Acting on the strength of a search warrant, the officers were there to force entry into the unit and ensure safe conditions ahead of the entry of officers with the CSRT, whose task it was to search the residence. The CSRT were investigating an incident from September 2022 in which a male had been shot and robbed of his Rolex watch. It was believed that the assailant – Complainant #1 – and evidence of the robbery, including the gun, would be located at the address.
At about 9:10 p.m., the ETF announced their presence at the door, after which a couple of officers used a ram to force open the door. Promptly thereafter, a distraction device was thrown in the residence before officers entered.
Complainant #1 was present in the unit when the door was forced open, as was an associate, Complainant #2. They immediately ran onto the unit balcony and scaled over the railing attempting to escape. Complainant #1 fell from the balcony and struck a balcony on a lower floor before continuing his fall to ground level. Complainant #2 also dropped from the balcony and landed on the lower-floor balcony.
Complainant #1 and Complainant #2 were arrested where they landed and provided medical attention. Complainant #1 suffered multiple fractures and internal bleeding. Complainant #2’s legs were reportedly broken.
In the evening of February 17, 2023, a team of ETF officers deployed outside the entrance to an apartment unit on East Liberty Street. Acting on the strength of a search warrant, the officers were there to force entry into the unit and ensure safe conditions ahead of the entry of officers with the CSRT, whose task it was to search the residence. The CSRT were investigating an incident from September 2022 in which a male had been shot and robbed of his Rolex watch. It was believed that the assailant – Complainant #1 – and evidence of the robbery, including the gun, would be located at the address.
At about 9:10 p.m., the ETF announced their presence at the door, after which a couple of officers used a ram to force open the door. Promptly thereafter, a distraction device was thrown in the residence before officers entered.
Complainant #1 was present in the unit when the door was forced open, as was an associate, Complainant #2. They immediately ran onto the unit balcony and scaled over the railing attempting to escape. Complainant #1 fell from the balcony and struck a balcony on a lower floor before continuing his fall to ground level. Complainant #2 also dropped from the balcony and landed on the lower-floor balcony.
Complainant #1 and Complainant #2 were arrested where they landed and provided medical attention. Complainant #1 suffered multiple fractures and internal bleeding. Complainant #2’s legs were reportedly broken.
Relevant Legislation
Section 221, Criminal Code -- Criminal Negligence Causing Bodily Harm
221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten yearsAnalysis and Director's Decision
On February 17, 2023, the TPS contacted the SIU to report that Complainant #1 and Complainant #2 had been seriously injured that day attempting to avoid police apprehension. The SIU initiated an investigation, which has since been concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any TPS officer committed a criminal offence in connection with the injuries suffered by Complainant #1 and Complainant #2.
The offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of any police officer, sufficiently egregious to attract criminal sanction, that caused or contributed to the injuries suffered by Complainant #1 and Complainant #2. In my view, there was not.
The ETF officers were acting lawfully when they mobilized in front of the apartment unit to assist the CSRT. In effect at the time was a search warrant authorizing their entry into the residence.
I am also satisfied that that the manner of entry effected by the ETF was reasonable in the circumstances. The ETF had good reason to want to take the unit’s occupants by surprise. Complainant #1 was believed to be in possession of a firearm, which he had used to shoot an individual in September 2022. Indeed, a loaded gun and ammunition were eventually recovered in the search of the residence. As for the decision by Complainant #1 and Complainant #2 to attempt to scale down the balconies, no doubt prompted by the officers’ imminent entry into the residence, they alone are responsible for the consequences of their actions. While it is always conceivable that individuals will seek to evade police apprehension in high rises by fleeing via their balconies, it is not clear that anything could have been done to prevent that from happening in the circumstances that prevailed at the time. It is equally possible that Complainant #1 and Complainant #2 would have embarked on their flight even with a knock on the door and more notice of police presence, and the ETF did announce their presence, albeit just before the door was forced open, to alert the unit’s occupants to what was happening. Once inside the unit, it is apparent that the ETF officers were in no position to prevent Complainant #1 and Complainant #2 from doing what they did. Indeed, the evidence indicates they had scaled the balcony just before or as the officers entered the unit.
In the result, as there are no reasonable grounds to believe that any of the TPS officers involved in the entry of the apartment unit transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 16, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of any police officer, sufficiently egregious to attract criminal sanction, that caused or contributed to the injuries suffered by Complainant #1 and Complainant #2. In my view, there was not.
The ETF officers were acting lawfully when they mobilized in front of the apartment unit to assist the CSRT. In effect at the time was a search warrant authorizing their entry into the residence.
I am also satisfied that that the manner of entry effected by the ETF was reasonable in the circumstances. The ETF had good reason to want to take the unit’s occupants by surprise. Complainant #1 was believed to be in possession of a firearm, which he had used to shoot an individual in September 2022. Indeed, a loaded gun and ammunition were eventually recovered in the search of the residence. As for the decision by Complainant #1 and Complainant #2 to attempt to scale down the balconies, no doubt prompted by the officers’ imminent entry into the residence, they alone are responsible for the consequences of their actions. While it is always conceivable that individuals will seek to evade police apprehension in high rises by fleeing via their balconies, it is not clear that anything could have been done to prevent that from happening in the circumstances that prevailed at the time. It is equally possible that Complainant #1 and Complainant #2 would have embarked on their flight even with a knock on the door and more notice of police presence, and the ETF did announce their presence, albeit just before the door was forced open, to alert the unit’s occupants to what was happening. Once inside the unit, it is apparent that the ETF officers were in no position to prevent Complainant #1 and Complainant #2 from doing what they did. Indeed, the evidence indicates they had scaled the balcony just before or as the officers entered the unit.
In the result, as there are no reasonable grounds to believe that any of the TPS officers involved in the entry of the apartment unit transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 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) 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.