Director's Report Details

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.

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: 

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 62-year-old man (the “Complainant”).

Notification of the SIU [1]

On March 1, 2023, at 4:24 p.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

According to TPS, on December 7, 2022, police officers responded to an address in the area of Rexdale Boulevard and Kipling Avenue on information from a caller, the Complainant, that he wished to have his wife, Civilian Witness (CW) #1, removed from the residence. When TPS officers arrived, CW #1 went to the door and closed it. The police officers left before speaking to either the Complainant or CW #1. Later in the day, someone called from the same address advising the Complainant had been assaulted by CW #1. TPS officers attended and arrested CW #1. The injuries sustained by the Complainant were severe.

The Team

Date and time team dispatched: 03/02/2023 at 9:04 a.m.

Date and time SIU arrived on scene: 03/02/2023 at 11:16 a.m.

Number of SIU Investigators assigned: 3

The Scene

The events in question transpired at the Complainant’s residence in the area of Rexdale Boulevard and Kipling Avenue, Etobicoke. The home housed multiple tenants. The Complainant’s apartment was in the basement.

SIU forensic investigators did not attend the scene due to the months-long delay in notification and a lack of continuity of any evidence that potentially remained.

Video/Audio/Photographic Evidence [fn21[/fn]

Body-worn Camera (BWC) Footage - SO #1

December 7, 2022 (Initial Response)

Starting at about 10:12:15 p.m., SO #1 knocked on the side door of the Complainant’s residence.

Starting at about 10:12:52 p.m., a man (now known to be CW #5) opened the door. SO #2 asked if he had called the TPS, and he indicated he had not. SO #2 asked if there was anyone who lived there by the Complainant’s first name. CW #5 indicated there was and, at the request of SO #2, went downstairs to get him. CW #5 walked down into the basement and appeared to have a conversation with a person, or persons, in a room (now known to be the Complainant’s apartment).

Starting at about 10:13:36 p.m., the Complainant emerged from his apartment and looked up the stairs at the police officers. He was talking to CW #5.

Starting at about 10:13:44 p.m., a woman (now known to be CW #1) emerged from the apartment and stood behind the Complainant. She looked up the stairs and waved at the police officers. CW #1 walked up the stairs wearing an unfastened white bathrobe that was open to the front exposing her breasts and underwear. She asked the police officers, “For who?” SO #1 told her they were looking for someone with the Complainant’s first name. CW #1 waved her hand and replied, “Wrong. No, not tonight,” and closed the door. CW #1 appeared to engage the deadbolt lock before returning to the basement. SO #2 asked SO #1 if that was her. SO #1 replied that it was. SO #2 said, “We saw her in the window, right?” and SO #1 agreed they had.

Starting at about 10:14:30 p.m., SO #1 knocked on the door again. SO #1 and SO #2 agreed with each other that they should call back. SO #1 said that the Complainant had been standing there and CW #1 was by him. SO #1 said all the Complainant had to do was come by and say he was fine.

Starting at about 10:15:07 p.m., SO #2 called TPS dispatch on his portable radio while SO #1 continued knocking on the door. SO #2 requested that dispatch call the Complainant and have him come outside. SO #2 asked SO #1 if she saw them both. SO #2 said that it was good enough for him.

At 10:15:59 p.m., the BWC video ended.

December 8, 2022 (Second Response)

Starting at about 2:36:16 a.m., SO #1 was standing on the street in front of the Complainant’s residence by an ambulance.

Starting at about 2:36:46 a.m., SO #1 entered the side door of the residence and went down the stairs into the basement. She entered the Complainant’s apartment where SO #2 was speaking with CW #3.

Starting at about 2:38:39 a.m., SO #1 spoke with CW #5 and asked if he had heard anything going on in the Complainant’s apartment. CW #5 said he had no idea what happened and did not hear anything. He said when the police were there the first time, the Complainant seemed okay, but just a little hurt or something, he thought.

The evidence collected by the SIU, which included BWC footage that captured the incident in parts, gives rise to the following scenario. As was their legal right, SO #1 and SO #2 chose not to interview with the SIU or authorize the release of their notes.

In the evening of December 7, 2022, SO #1 and SO #2 were dispatched to an address in the area of Rexdale Boulevard and Kipling Avenue, Etobicoke. A basement tenant of the premises – the Complainant – had contacted police seeking the removal of his former wife – CW #1. Asked by the 911 call-taker if he was injured, the Complainant had responded in the negative.

The officers were greeted at the home by another tenant – CW #5. At the officers’ request, CW #5 went into the basement to alert the Complainant that the officers had arrived. The Complainant met CW #5 at the bottom of the stairs. Shortly thereafter, they were joined by CW #1. CW #1 waved at the police, after which she climbed the stairs and closed the door in the officers’ faces.

SO #1 knocked on the door again. There was no response. SO #2 contacted their Communications Centre and asked that operators attempt to re-establish communication with the Complainant or CW #1. Those calls went to voice mail. SO #1 and SO #2 left the scene.

At about 1:40 a.m. of December 8, 2022, CW #3, the Complainant’s brother, called 911 for an ambulance. He had returned home from work to the apartment he shared with his brother to find him with a head injury.

Sections 219 and 221, Criminal Code -- Criminal Negligence Causing Bodily Harm

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

221 Every person who by criminal negligence causes bodily harm to another person is guilty of                   

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or                      

(b) an offence punishable on summary conviction.

On December 8, 2022, the Complainant was diagnosed with a serious injury shortly after TPS officers had attended at his address in response to a 911 call about a possible domestic disturbance. In the ensuing SIU investigation, the officers in question – SO #1 and SO #2 – were identified as subject officials. 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 injury.

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 SO #1 and SO #2, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s head injury. In my view, there was not.

SO #1 and SO #2 arguably could and should have done more to satisfy themselves that the Complainant was okay before they left the property. The Complainant had called 911 to complain about CW #1 and to seek her removal from his home. While SO #1 had cast eyes on the Complainant from the top of the stairs, neither officer had spoken with him before they departed the scene. Without that conversation, it is difficult to see how the officers could have arrived at a fair assessment of what exactly was going on. Rather, they seemed to accept that their job was essentially done when CW #1 – the subject of the Complainant’s 911 call - appeared and closed the door on them.

On the other hand, if SO #1 and SO #2 failed in their duty of care towards the Complainant, I am not satisfied that their indiscretions transgressed the limits of care prescribed by the criminal law. While the 911 call made by the Complainant gave rise to a real concern about possible domestic abuse of one sort or another, it did not appear that the call was an emergency; the Complainant had given no indication of an ongoing assault and had said that he was not injured. The officers’ limited interaction with the Complainant at the scene would have likely reinforced that general sense. Though the parties never spoke, SO #1 had observed the Complainant from the top of the stairs. He did not seem to be injured or in any distress. Thereafter, once the door was closed on them, SO #1 and SO #2 did arrange for their Communications Centre to attempt to contact the Complainant. On this record, whatever the officers’ failings, I am unable to reasonably conclude that they amounted to a marked and substantial departure from the standard of care required of them in the circumstances.

It remains unclear whether the Complainant’s injury was inflicted before the arrival of the subject officials at his address or after their departure. Be that as it may, as there are no reasonable grounds to believe that either subject official committed a criminal offence in their engagement with the Complainant, there is no basis for proceeding with charges. The file is closed.


Date: June 29, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit