SIU Director’s Report - Case # 23-TCI-009
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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 36-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 36-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On January 6, 2023, at 8:56 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury.According to the TPS, on January 6, 2023, at approximately 2:00 p.m., TPS officers responded to a bank robbery at the Toronto Dominion (TD) Bank branch at 510 St. Clair Avenue West, Toronto, and located the suspect - the Complainant - a short distance from the bank. The Complainant, armed with a knife and a glass bottle, was arrested and suffered a facial injury in the process. He was taken to Toronto Western Hospital (TWH) and eventually diagnosed with a fractured right orbital bone.
The Team
Date and time team dispatched: 01/06/2023 at 9:45 p.m.Date and time SIU arrived on scene: 01/07/2023 at 10:12 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
36-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on January 7, 2023.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on February 3, 2023.
Witness Officials (WO)
WO #1 InterviewedWO #2 Not interviewed; notes received and reviewed
WO #3 Not interviewed; notes received and reviewed
The witness official was interviewed on January 19, 2023.
Evidence
The Scene
The events in question transpired in the westbound lanes of St. Clair Avenue West, Toronto, just west of Tweedsmuir Avenue.Video/Audio/Photographic Evidence [2]
TikTok Footage
Video footage recorded by a passing motorist and added to TikTok by an anonymous source was obtained and reviewed by the SIU. Eleven seconds long, it depicted at least four TPS vehicles and several TPS officers, including WO #2 and WO #3, after the Complainant was arrested. The Complainant was depicted at ten seconds into the video wearing a white hooded pull-over sweater and standing with his hands behind his back in front of two TPS officers.
Body-worn Camera (BWC) Footage
The following is a summary of the cumulative footage obtained by the SIU, including footage from the BWC worn by the SO.At 2:23 p.m., on January 23, 2023, the SO was at the driver’s side of his police vehicle on St. Clair Avenue West. The Complainant came out from a path onto the sidewalk and headed west towards Bathurst Street and away from the SO. He wore a white hooded sweater and dark pants.
The SO began to make his way towards the Complainant, who looked back at the SO, quickened his pace, and continued towards Bathurst Street. The officer caught up with the Complainant in the westbound lanes of St. Clair Avenue West, just west of Tweedsmuir Avenue. The SO grabbed the left arm of the Complainant. A black glove, which the Complainant held in his hand, dropped to the roadway. The Complainant tried to pull away and break the SO’s grip. A glass bottle was seen in the Complainant’s right hand. The SO turned counterclockwise as he continued to hold the Complainant’s left arm/wrist. Once turned 180 degrees, the SO directed the Complainant towards the ground. The Complainant’s right hand with the bottle came down close to the SO. As the Complainant was bent over, the bottle was seen closer to the roadway but still in the Complainant’s right hand.
The SO had a hold of the back of the Complainant’s hooded-sweater when the Complainant was just about on the ground landing on his left side. The SO was by his head with his right hand on the Complainant’s upper back and left hand at the Complainant’s neck area. The Complainant rolled onto his back with his head faced north. The Complainant then turned onto his left side, with the bottle still in his right hand. The Complainant’s left hand could not be seen. The SO was behind the Complainant and his right hand was near the right wrist of the Complainant. The left hand reached for the bottle. The bottle was still in the Complainant’s right hand, and a black glove was held in his left hand. The SO delivered three right-handed punches to the right side of the Complainant’s head as the Complainant was rolled towards the SO.
About two seconds later, the Complainant was on his back. The SO grabbed the right wrist with his left hand, and his right hand was on the Complainant’s face. The Complainant was on his back with his head raised off the ground. A right-handed punch was delivered to the Complainant’s head. The SO grabbed hold of the Complainant right wrist. The SO then let go of both arms and placed his hands to the rear and left side of the Complainant’s head. As the SO tried to get the Complainant onto his stomach, a punch was delivered to the back of the Complainant’s head. The bottle was still being held by the Complainant, and its red bottle cap was seen on the roadway. The Complainant rolled towards his left side as the SO struck him twice on the back of the head. The Complainant managed to get on his knees.
At 2:24:16 p.m., WO #1 arrived. By then, the Complainant was on his left side and the SO was positioned behind the Complainant. The SO’s arms/hands were near the Complainant’s upper shoulders and head area. The Complainant went onto his left side. WO #1 positioned himself behind the lower portion of the Complainant and grabbed the Complainant’s right arm and wrist.
At 2:24:19 p.m., the SO shouted, “Drop it, get your hands behind your back!” WO #1 took a half-opened knife from the Complainant’s right hand and, at 2:24:20 p.m., the knife was tossed aside. About two seconds later, the SO delivered a punch to the right side of the Complainant’s head. WO #1 immediately grabbed the Complainant’s right arm and placed it behind the Complainant’s back as he lay on his left side. About a second later, at 2:24:25 p.m., WO #2 arrived and grabbed both of the Complainant’s legs at the ankles. The Complainant was on his abdomen. The SO was on his left side grabbing the Complainant’s left arm, which was under his body. WO #1 was on the right side and held the right arm. WO #2 positioned himself between the SO and WO #1, and initially assisted with the right wrist/arm.
At 2:24:29 p.m., WO #3 was heard saying, “Get him handcuffed guys.” The Complainant’s right hand was being brought behind the Complainant’s back; his left hand was still underneath him by the waist. At 2:24:44 p.m., the SO delivered two punches to the back of the Complainant’s head while demands continued for the Complainant to bring his arm out and behind his back. The Complainant kept stating, “I can’t bring my arm behind my back.”
At 2:24:51 p.m., the left arm was behind the Complainant’s back as his right arm was held between the shoulder plexuses. The left and right wrists were handcuffed by 2:25:10 p.m.
About 20 seconds later, the Complainant was lifted from the middle of St. Clair Avenue West, taken to the sidewalk, and placed in a seated position on some steps. The Complainant complained that he could not see. At 2:27:55 p.m., the Complainant’s right eye was captured swollen shut.
Figure 1 – The knife
Figure 2 – The bottle
Communications Recordings
Starting at about 2:11 p.m., a 911 call was received from the TD bank at 510 St. Clair Avenue West to report a robbery. A male had showed a note to staff indicating he had a gun. He was provided cash and then left the bank walking east on St. Clair Avenue West. The male was wearing a hooded sweater and face mask, and was holding a bottle of Coke.In-car Camera System (ICCS) Footage
The footage depicted the Complainant’s transportation in a TPS vehicle to the TWH. The Complainant appeared to have a decreased level of consciousness sometime after the vehicle was underway. The siren was heard to be activated when the driver realized the Complainant was near unconsciousness.Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between January 6 and 31, 2023:- BWC footage – the SO, WO #1, WO #2 and WO #3;
- Communications recordings;
- Report of computer-aided dispatch;
- General Occurrence Report;
- ICCS footage;
- Notes-WO #3;
- Notes-WO #2;
- Notes-WO #1;
- Scene photographs;
- Policy-Use of Force; and
- Use of Force Qualifications – WO #1 and SO.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between January 6 and 16, 2023:- Diagram by the Complainant;
- The Complainant’s medical records from TWH; and
- TikTok footage.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, and video footage that captured the incident in parts, gives rise to the following scenario.
In the afternoon of January 6, 2023, police officers were dispatched to the area of Bathurst Street and St. Clair Avenue West following reports of a robbery at the TD Bank at the northwest corner of the intersection. A male was reported to have presented a noted to a teller demanding money and indicating he had a gun. The male then left the bank travelling east on St. Clair Avenue West towards Bathurst Street.
The SO was among the officers responding to the call for service. Arriving in the area in his cruiser, the officer observed a person matching the description of the suspect that had been provided, that is, a male with a bottle wearing black clothing, including a black jacket with the hood over the head, and a face mask. The SO continued his search of the area and observed the same male again. As the male was no longer wearing the black jacket, the SO’s suspicions grew and he decided to stop the male.
The Complainant was the male. Called by the SO, the Complainant fled from the officer running west on the northside of St. Clair Avenue West.
The SO caught up with the Complainant in the westbound lanes of St. Clair Avenue West, just west of Tweedsmuir Avenue, and grabbed hold of his left arm. The Complainant struggled to free himself and swung his bottle in the SO’s direction. The officer was able to force the Complainant to the roadway where the struggle continued. The SO delivered three punches to the Complainant’s face, proceeded to roll him over into a prone position, and struck him several more time with punches directed at the head.
Within moments of the parties going to the ground, WO #1 arrived and inserted himself in the struggle. WO #1 took hold of the Complainant’s right arm and removed a folding knife from his right hand, tossing it aside. The officer then took the arm and positioned it behind the Complainant’s back, after which he moved to assist the SO who was trying to release the Complainant’s left arm out from under his torso. From the Complainant’s left side, the SO had struck him in the head an additional three times before the Complainant’s arms were controlled and handcuffed behind his back.
The Complainant was seen at hospital following his arrest and diagnosed with a fractured right orbital bone.
In the afternoon of January 6, 2023, police officers were dispatched to the area of Bathurst Street and St. Clair Avenue West following reports of a robbery at the TD Bank at the northwest corner of the intersection. A male was reported to have presented a noted to a teller demanding money and indicating he had a gun. The male then left the bank travelling east on St. Clair Avenue West towards Bathurst Street.
The SO was among the officers responding to the call for service. Arriving in the area in his cruiser, the officer observed a person matching the description of the suspect that had been provided, that is, a male with a bottle wearing black clothing, including a black jacket with the hood over the head, and a face mask. The SO continued his search of the area and observed the same male again. As the male was no longer wearing the black jacket, the SO’s suspicions grew and he decided to stop the male.
The Complainant was the male. Called by the SO, the Complainant fled from the officer running west on the northside of St. Clair Avenue West.
The SO caught up with the Complainant in the westbound lanes of St. Clair Avenue West, just west of Tweedsmuir Avenue, and grabbed hold of his left arm. The Complainant struggled to free himself and swung his bottle in the SO’s direction. The officer was able to force the Complainant to the roadway where the struggle continued. The SO delivered three punches to the Complainant’s face, proceeded to roll him over into a prone position, and struck him several more time with punches directed at the head.
Within moments of the parties going to the ground, WO #1 arrived and inserted himself in the struggle. WO #1 took hold of the Complainant’s right arm and removed a folding knife from his right hand, tossing it aside. The officer then took the arm and positioned it behind the Complainant’s back, after which he moved to assist the SO who was trying to release the Complainant’s left arm out from under his torso. From the Complainant’s left side, the SO had struck him in the head an additional three times before the Complainant’s arms were controlled and handcuffed behind his back.
The Complainant was seen at hospital following his arrest and diagnosed with a fractured right orbital bone.
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 January 6, 2023. In the ensuing SIU investigation of the incident, one of the 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.
I am satisfied that the Complainant was subject to lawful arrest for a bank robbery. He matched the description of the suspect who had just been reported escaping on foot on St. Clair Avenue West, and he seemed to disguise his appearance by discarding the jacket he was wearing soon after being noticed by a police officer in the area. The confluence of these and other factors provided the SO a legitimate basis to take the Complainant into custody.
I am also satisfied that the quantum of force used by the SO in aid of the Complainant’s arrest, most if not all of which was captured by police BWCs, was legally justified. The Complainant was dead set against his arrest and immediately fled when confronted by the SO, thereafter swinging a bottle at the officer when he was caught. That conduct made the takedown that followed reasonable as the SO could better expect to manage any additional resistance on the ground. Indeed, the Complainant was not deterred and continued to struggle against the officer’s efforts to secure him in restraints, prompting about ten punches to the head by the SO. That was certainly a significant amount of force but made proportionate by the exigencies of the moment, namely, the fact that the Complainant had a knife in his hand and had swung a bottle at the officer (possibly striking the officer in the head), and the prospect that he had just robbed a bank and could have a gun in his possession. In other words, it was imperative that the Complainant be taken into custody as quickly as possible and the officer was entitled to use decisive force to that end. Once the handcuffs were in place, no further blows of any kind were struck.
There is an account of what happened, describing a more severe use of force by the SO and WO #1, but it would be unwise and unsafe to rest charges on the strength of this evidence. The account is simply not borne out by the video footage of the incident.
In the result, while I accept that the force used by the SO fractured the Complainant’s right orbital bone, there are no reasonable grounds to believe the injury is attributable to any unlawful conduct on the part of the officer. Accordingly, there is no basis for proceeding with criminal charges in this case. 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.
I am satisfied that the Complainant was subject to lawful arrest for a bank robbery. He matched the description of the suspect who had just been reported escaping on foot on St. Clair Avenue West, and he seemed to disguise his appearance by discarding the jacket he was wearing soon after being noticed by a police officer in the area. The confluence of these and other factors provided the SO a legitimate basis to take the Complainant into custody.
I am also satisfied that the quantum of force used by the SO in aid of the Complainant’s arrest, most if not all of which was captured by police BWCs, was legally justified. The Complainant was dead set against his arrest and immediately fled when confronted by the SO, thereafter swinging a bottle at the officer when he was caught. That conduct made the takedown that followed reasonable as the SO could better expect to manage any additional resistance on the ground. Indeed, the Complainant was not deterred and continued to struggle against the officer’s efforts to secure him in restraints, prompting about ten punches to the head by the SO. That was certainly a significant amount of force but made proportionate by the exigencies of the moment, namely, the fact that the Complainant had a knife in his hand and had swung a bottle at the officer (possibly striking the officer in the head), and the prospect that he had just robbed a bank and could have a gun in his possession. In other words, it was imperative that the Complainant be taken into custody as quickly as possible and the officer was entitled to use decisive force to that end. Once the handcuffs were in place, no further blows of any kind were struck.
There is an account of what happened, describing a more severe use of force by the SO and WO #1, but it would be unwise and unsafe to rest charges on the strength of this evidence. The account is simply not borne out by the video footage of the incident.
In the result, while I accept that the force used by the SO fractured the Complainant’s right orbital bone, there are no reasonable grounds to believe the injury is attributable to any unlawful conduct on the part of the officer. Accordingly, there is no basis for proceeding with criminal charges in this case. 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]
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.