SIU Director’s Report - Case # 23-TCI-129
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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 25-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 injuries of a 25-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On April 30, 2023, at 9:01 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.On April 30, 2023, at 4:00 p.m., the Complainant was arrested near 244 Victoria Street for drug-trafficking. He was taken to the ground and subsequently transported to the Toronto General Hospital (TGH), where he was diagnosed with a fractured orbital bone and nasal bone fractures.
The Team
Date and time team dispatched: 05/01/2023 at 7:08 a.m.Date and time SIU arrived on scene: 05/01/2023 at 1:51 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
25-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on May 1, 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 Not interviewed; notes reviewed and interview deemed not necessary
WO #5 Not interviewed; notes reviewed and interview deemed not necessary
The witness officials were interviewed on May 16, 2023.
Evidence
The Scene
The events in question transpired on Victoria Street, outside of the Tim Hortons located at 26 Dundas Street East, Toronto.The scene was not attended nor was it forensically assessed at intake. Investigators did attend May 17, 2023, while in the area to retrieve video from the Tim Hortons.
Video/Audio/Photographic Evidence [2]
Police Communications Recordings
On April 30, 2023, starting at about 1:36 p.m., the TPS received a 911 call related to a person on Victoria Street. [3]Starting at about 2:30 p.m., WO #1 broadcast he and the SO, WO #2 and WO #3 could be assigned to the call.
Starting at about 2:44 p.m., WO #1 broadcast he and the other police officers were at 277 Victoria Street with, “One in custody.” He asked the dispatcher to send an ambulance for a man [now known to be the Complainant] who had lacerations to his eye and lip.
Starting at about 2:57 p.m., WO #1 broadcast the arrest was unrelated to the initial call on Victoria Street.
Starting at about 3:00 p.m., WO #3 said an ambulance had arrived.
Starting at about 3:21 p.m., police officers broadcast they were going to St. Michael’s Hospital and to 51 Division.
Video Footage – Toronto Public Health – 277 Victoria Street
The video footage from the safe injection site at Victoria Street and Dundas Street East on April 30, 2023, had no audio component. There were two camera positions on the east side of Victoria Street, just north of Dundas Street East, across the street from, and slightly south of, the interaction. The video began at 2:39 p.m. It was raining. The road and sidewalks were wet.
Starting at about 2:42 p.m., a sedan [now known to be the unmarked TPS vehicle driven by WO #1 and containing the SO, WO #3 and WO #2] travelled slowly northbound on Victoria Street. It drove to the top of the street, turned around to face south, and drove slowly to just north of the Tim Hortons. It stopped on the road next to a vehicle parked on the west side facing south. People congregated on the east side of Tim Hortons.
Starting at about 2:43 p.m., the police vehicle moved ahead and pulled in between two vehicles on the west side of Victoria Street in front of Tim Hortons. It stopped. Obstacles partially blocked the camera view. All four police officers got out of the car and ran onto the sidewalk in front of Tim Hortons. A police officer [now believed to be WO #2] ran to the Complainant, who rode his scooter northbound.
Starting at about 2:43:19 p.m., two police officers [now believed to be the SO and WO #3] took the Complainant to the ground beside the police vehicle. They were joined by WO #1 and then WO #2. The physical interaction was not visible as it was obstructed by a vehicle.
Starting at about 2:44:40 p.m., the Complainant was assisted to his feet.
Starting at about 2:45 p.m., two police officers [now believed to be the SO and WO #2] stood on either side of the Complainant and appeared to search him. The other two police officers [now believed to be WO #1 and WO #3] walked towards the area where a drug transaction was believed to have occurred. WO #1 walked back to where the SO and WO #2 searched the Complainant.
Starting at about 2:46 p.m., all four police officers were near the Complainant briefly before WO #3 walked away again. He returned at 2:48 p.m.
Starting at about 2:50 p.m., the police officers led the Complainant out of camera view.
Video Footage – Tim Hortons
The video footage had no audio component. It was raining.Starting at about 2:40 p.m., a group of people stood outside the Tim Hortons south of the front door, on the sidewalk, under an overhang. Two people stood outside the overhang: one wore a yellow safety jacket, the other was the Complainant. People stepped in and out from the overhang and interacted with the Complainant on the sidewalk.
Starting at about 2:43 p.m., a sedan [now known to be the unmarked police vehicle driven by WO #1] arrived at curbside, in front of the group of people. WO #1, WO #3, WO #2 and the SO exited from the car. The Complainant jumped on his scooter and rode north, on the sidewalk, a short distance. He got off his scooter as a police officer [now known to be WO #2] approached and tried to take hold of him. The Complainant broke free from WO #2. He was grabbed by WO #3 and, at 2:43:19 p.m., taken to the ground. An obstruction blocked any view of the interaction.
Starting at about 2:44 p.m., WO #3 stood up while WO #1 and the SO were on the ground. WO #1’s back was to the camera as he knelt at the Complainant’s head, though the Complainant could not be seen. WO #1 stood up a few seconds later. The SO straddled the Complainant while he was face down. WO #3 and WO #1 stood up. The SO grabbed the Complainant’s clothing, rolled him around on his back and placed him behind the concrete post. WO #3 and WO #1 stood to the left of the concrete post; only the Complainant’s feet were visible. A few seconds later, the Complainant was stood up and walked away out of the camera’s view.
Starting at about 2:45 p.m., two police officers talked to a woman at the south of the camera’s view. The Complainant was not visible on camera.
Body-worn Camera (BWC) Footage - The SO
Starting at about 2:43:18 p.m., WO #2 was captured approaching a man [now known to be the Complainant]. He was the first police officer to reach him. The ground was wet. The Complainant tried to pass him on his scooter. The officer grabbed for the Complainant. Starting at about 2:43:19 p.m., the SO and WO #1 arrived and assisted in attempts to arrest the Complainant. The Complainant went to the ground. WO #3 ended up underneath the Complainant.
At about 2:43:20 p.m., a left fist was seen to deliver about four strikes to the Complainant’s head.
Starting at about 2:43:27 p.m., WO #1 held the Complainant’s wrist as the other police officers were concentrated around the Complainant’s torso, trying to control and handcuff him. The Complainant said, “I’m done, I’m done, I’m done,” but was still not fully under control or cooperative. WO #3 was on the ground, under the Complainant.
Starting at about 2:43:32 p.m., WO #1 stood at the Complainant’s head and placed one handcuff on the Complainant’s left wrist.
Starting at about 2:43:35 p.m., the SO said, “Do not resist, you are on camera.” The Complainant said, “On camera doing what sir, for what?” The SO said, “p for the p.” The Complainant said, “Please, sir, can I sit me up, please?” The SO said, “I will roll you over.”
Starting at about 2:44:23 p.m., the SO rolled the Complainant over on the ground. There was a pool of blood under the area the Complainant’s face had been. He was handcuffed behind his back. The Complainant said, “My face, my face, you take off my hat.” WO #2 removed the Complainant’s balaclava.
Starting at about 2:44:36 p.m., the SO said, “It’s just your lip.” The Complainant’s right eye was swollen shut. Blood came from his lip and splattered his face. The SO said, “We will get you an ambulance.”
Starting at about 2:44:40 p.m., the Complainant was stood up and escorted to a mailbox close to the road.
Starting at about 2:45:35 p.m., the Complainant said to the SO, “Sir, how come you had to punch my face like that?” The SO said, “Because you were resisting a lot.” The Complainant said, “I wasn’t.” WO #1 and WO #2 searched the Complainant.
Starting at about 2:46:13 p.m., the SO told the Complainant he was under arrest, and read him a caution and his rights to counsel. The Complainant did not respond to the SO. WO #1 and WO #2 continued to search the Complainant.
Starting at about 2:48:07 p.m., the SO asked the Complainant why he ran. The Complainant said he “didn’t know why he was run up on”.
Starting at about 2:49:30 p.m., the Complainant told the SO, “It’s not cool you punched me in the face like that, it’s not cool.” The SO said, “It’s not cool you pushed me and my partners around, it’s not cool you’re selling drugs to people here.” The Complainant said, “I wasn’t.” WO #2 escorted the Complainant to the overhang in front of the Tim Hortons where the SO searched him further. WO #3 conducted a criminal records check.
Starting at about 2:56 p.m., the Complainant was concerned about his eye and asked for medical treatment. The SO said, “I’m going to take care of you.” WO #1 motioned for the SO to turn the audio component of the BWC off, and he did. The police officers spoke.
Starting at about 2:58 p.m., the SO talked to the Complainant as the audio was turned back on. The SO asked if the Complainant “had anything else on him”.
Starting at about 3:00 p.m., an ambulance arrived. The Complainant said, “My eye is bad.” The SO said, “Calm down, buddy, it’s just a bit of blood.” The Complainant said, “You didn’t have to punch me like that.” The SO replied, “Okay.”
Starting at about 3:02 p.m., paramedics approached the Complainant and provided first-aid care to his face and checked his eye, identifying a laceration under the right eye he said needed stitches. The Complainant asked to go to the hospital.
Starting at about 3:05 p.m., the SO asked the Complainant if he had anything in his underpants.
Starting at about 3:08 p.m., WO #2 walked the Complainant towards the ambulance. The SO’s audio was again muted. WO #2 walked the Complainant back towards the wall of Tim Hortons. WO #1 put latex gloves on.
Starting at about 3:09 p.m., the SO turned his BWC audio on, again, and searched the Complainant. Starting at about 3:10 p.m., he located drugs in the pockets of a second layer of pants the Complainant wore. Starting at about 3:12 p.m., the SO located more drugs in the same pocket.
Starting at about 3:15 p.m., the Complainant’s handcuffs were switched from being handcuffed behind his back, to having a handcuff on each wrist and being fastened to the stretcher.
Starting at about 3:17 p.m., the SO turned off his BWC audio and spoke to WO #3.
Starting at about 3:18 p.m., WO #1 approached and placed his hand over the camera while the three police officers spoke before the video ended.
BWC Footage - WO #3
Starting at about 2:43:33 p.m., the Complainant was captured on his back. A police officer [now known to be the SO] had his bare right fist close to the Complainant’s balaclava covered face. The SO and WO #3 rolled the Complainant onto his stomach.Starting at about 2:43:38 p.m., the SO straddled the Complainant, sitting on his back.
Starting at about 2:43:45 p.m., while sitting on the Complainant, the SO placed a handcuff on his left wrist. WO #1 grabbed the Complainant’s right wrist and placed the other handcuff on the Complainant. WO #3 was on the Complainant’s right-hand side. WO #2 stood at the Complainant’s left side. The SO said, “You’re under arrest.” The Complainant said, “For what, sir?” The SO replied, “P for the P.”
Starting at about 2:44:04 p.m., the Complainant said, “Please, sir, can I sit up?” The SO attempted to place him in a seated position. There was an area of blood under where the Complainant’s face had been. The Complainant said, “My face, my face, my face, please, sir, take off my hat.” WO #2 took the Complainant’s balaclava off before the Complainant was escorted by the SO and WO #2 to a mailbox close to the roadway. The Complainant’s right eye was swollen. WO #1 said, “We are getting you ambulance.”
Starting at about 2:46 p.m., the SO arrested the Complainant for drug-related offences and read him his rights.
Starting at about 2:48 p.m., WO #3 walked back to the SO, WO #2 and WO #1, and the Complainant, who stood with his hands handcuffed behind his back. His right eye was swollen shut. WO #1 searched the Complainant’s pockets as the SO obtained his identifying information.
Starting at about 2:50 p.m., the Complainant was faced against a window at the Tim Hortons and searched by the SO while WO #2 held him.
Starting at about 2:51 p.m., WO #1 said the Complainant had two warrants and two breaches outstanding. WO #3’s BWC went mute.
Starting at about 2:52 p.m., the audio came back on. WO #3 confirmed the Complainant’s identity and the SO said an ambulance was coming. WO #3 confirmed the outstanding warrants held against the Complainant.
In-car Camera System (ICCS) Video Footage
The ICCS video associated with an involved police vehicle recorded the transport of the Complainant from hospital to 51 division. The contents were not relevant to the investigation.Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between May 14 and 15, 2023:- Notes – WO #1;
- Notes – WO #3;
- Notes – WO #2;
- Notes – WO #4.;
- Notes – WO #5;
- Officer Involved List;
- BWC footage;
- ICCS footage;
- Communications recordings;
- Use of Force requalification records – the SO;
- Policy - Arrest;
- Policy - Incident Response; and
- Policy - Use of Force.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between May 4 and 17, 2023:- Toronto Public Health video footage;
- Tim Hortons video footage; and
- TGH health records – the Complainant.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and officers present at the time of the events in question, and video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the afternoon of April 30, 2023, the Complainant was standing in an alcove south of the entrance/exit doors of a Tim Hortons restaurant, located on the west side of Victoria Street, just north of Dundas Street East. He had just provided a small item to a woman when he was approached by uniformed TPS officers.
The SO was a backseat passenger in an unmarked police vehicle being operated by WO #1. WO #2 and WO #3 were also in the vehicle. The officers were patrolling in the area of Yonge Street and Dundas Street for drug transactions. While on Victoria Street facing south towards Dundas Street East, WO #1 had observed the Complainant engaged in what he believed to be a drug transaction. He alerted his colleagues and drove to the area, bringing the vehicle to a stop curbside by the Tim Hortons, after which all four officers exited and rushed towards the Complainant.
The Complainant attempted to flee from the officers. He mounted an electric scooter he had with him and travelled north across the Tim Hortons a short distance before he was confronted by WO #2, at which point he jumped off his scooter and attempted to skirt around the officer on foot. The two grappled momentarily, the officer losing his balance in the process, before the Complainant was tackled to the ground by WO #3.
The SO was knocked to the ground by the takedown and immediately engaged the Complainant, delivering four to five left-handed punches to the head area. Shortly thereafter, the officers were able to control the Complainant’s arms and handcuff them behind the back.
The Complainant was bleeding from the face after his arrest and an ambulance was summoned to the scene. He was diagnosed at hospital with a broken right orbital bone and nasal fractures.
In the afternoon of April 30, 2023, the Complainant was standing in an alcove south of the entrance/exit doors of a Tim Hortons restaurant, located on the west side of Victoria Street, just north of Dundas Street East. He had just provided a small item to a woman when he was approached by uniformed TPS officers.
The SO was a backseat passenger in an unmarked police vehicle being operated by WO #1. WO #2 and WO #3 were also in the vehicle. The officers were patrolling in the area of Yonge Street and Dundas Street for drug transactions. While on Victoria Street facing south towards Dundas Street East, WO #1 had observed the Complainant engaged in what he believed to be a drug transaction. He alerted his colleagues and drove to the area, bringing the vehicle to a stop curbside by the Tim Hortons, after which all four officers exited and rushed towards the Complainant.
The Complainant attempted to flee from the officers. He mounted an electric scooter he had with him and travelled north across the Tim Hortons a short distance before he was confronted by WO #2, at which point he jumped off his scooter and attempted to skirt around the officer on foot. The two grappled momentarily, the officer losing his balance in the process, before the Complainant was tackled to the ground by WO #3.
The SO was knocked to the ground by the takedown and immediately engaged the Complainant, delivering four to five left-handed punches to the head area. Shortly thereafter, the officers were able to control the Complainant’s arms and handcuff them behind the back.
The Complainant was bleeding from the face after his arrest and an ambulance was summoned to the scene. He was diagnosed at hospital with a broken right orbital bone and nasal fractures.
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 in the course of his arrest by TPS officers on April 30, 2023. One of the officers – the SO – was identified as the subject official in the ensuing SIU investigation of the incident. 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 injuries.
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.
WO #1 had observed what he believed was a drug transaction. Whether or not the officer’s surmise was accurate, I am unable to reasonably conclude that the decision to arrest the Complainant was unlawful. The interaction had occurred in an area known for drug-trafficking, and the outward behaviour of the involved parties was apparently consistent with a drug transaction.
With respect to the force used by the SO in aid of the Complainant’s arrest, I am not satisfied it was excessive. The Complainant had demonstrated he was intent on escaping apprehension when he fled from the officers – first on his scooter and then briefly on foot. Thereafter, the SO was bowled over in the course of the Complainant’s grounding. Though that appears to have been the result of WO #3’s tackle of the Complainant, the impact would have imparted a sense of the violence of the encounter and the need to subdue the Complainant as soon as possible. On this record, when he failed to promptly release his arms to be handcuffed, as the weight of the evidence suggests was the case, the SO was entitled to resort to a measure of force to overcome the Complainant’s resistance. The four or five punches delivered in quick succession would not appear a clearly disproportionate use of force in the heat of the moment.
In the result, while I accept that one of more of the Complainant’s facial injuries were likely inflicted by the punches delivered by the SO, I am not satisfied on reasonable grounds that they any of them are attributable to unlawful conduct on the part of the officer. The file is closed.
Date: August 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.
WO #1 had observed what he believed was a drug transaction. Whether or not the officer’s surmise was accurate, I am unable to reasonably conclude that the decision to arrest the Complainant was unlawful. The interaction had occurred in an area known for drug-trafficking, and the outward behaviour of the involved parties was apparently consistent with a drug transaction.
With respect to the force used by the SO in aid of the Complainant’s arrest, I am not satisfied it was excessive. The Complainant had demonstrated he was intent on escaping apprehension when he fled from the officers – first on his scooter and then briefly on foot. Thereafter, the SO was bowled over in the course of the Complainant’s grounding. Though that appears to have been the result of WO #3’s tackle of the Complainant, the impact would have imparted a sense of the violence of the encounter and the need to subdue the Complainant as soon as possible. On this record, when he failed to promptly release his arms to be handcuffed, as the weight of the evidence suggests was the case, the SO was entitled to resort to a measure of force to overcome the Complainant’s resistance. The four or five punches delivered in quick succession would not appear a clearly disproportionate use of force in the heat of the moment.
In the result, while I accept that one of more of the Complainant’s facial injuries were likely inflicted by the punches delivered by the SO, I am not satisfied on reasonable grounds that they any of them are attributable to unlawful conduct on the part of the officer. The file is closed.
Date: August 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 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]
- 3) The description of the person and the circumstances were not consistent with this person being 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.