SIU Director’s Report - Case # 23-TCI-254
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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 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 injury of a 25-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On July 4, 2023, at 10:30 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information. On July 4, 2023, at 5:26 a.m., the TPS received a ‘break and enter in progress’ call at Willowdale Avenue. Police officers from TPS 32 Division responded and observed a U-Haul truck leaving the area. Two police officers attempted to stop it. The rear door of the truck opened, and the Complainant fell out and ran away. A foot pursuit was initiated, and the Complainant was arrested at 5:33 a.m. The Complainant was taken to 32 Division and lodged in a cell. At 8:56 a.m., the Complainant complained of a sore elbow. He was taken to North York General Hospital (NYGH) and diagnosed with a fractured right elbow. At 3:32 p.m., the Complainant was returned to 32 Division and subsequently remanded to the Toronto South Detention Centre.
The Team
Date and time team dispatched: 07/04/2023 at 11:26 p.m.Date and time SIU arrived on scene: 07/05/2023 at 7:00 a.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 July 5, 2023.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
The civilian witnesses were interviewed on July 7, 2023.
Subject Officials (SO)
SO Interviewed; notes received and reviewed The subject official was interviewed on July 18, 2023.
Witness Officials (WO)
WO Interviewed The witness official was interviewed on July 17, 2023.
Evidence
The Scene
The events in question transpired on and around the area of the intersection of Willowdale Road and Spring Garden Avenue, Toronto.The scene was not held for the SIU as it was released prior to notification to the SIU.
Video/Audio/Photographic Evidence [2]
Body-worn Camera (BWC) Footage
On July 6, 2023, the TPS provided the SIU with the footage in connection with the incident under investigation from the BWCs of the SO, the WO and two additional officers. On July 4, 2023, starting at about 5:29:30 a.m., the SO was captured sitting in the front passenger seat of a police vehicle driven by the WO with its emergency warning systems activated.
Starting at about 5:29:53 a.m., a U-Haul truck pulled onto the street in front of the police vehicle. The rear cargo door of the truck opened. The police vehicle stopped and the SO exited with his firearm drawn. There was a man [now known to be the Complainant] laying in the middle of the street. The U-Haul truck drove away from the Complainant, who stood up and ran after the truck. The SO and WO pursued the Complainant on foot. He ran south across the intersection of Willowdale Avenue and Spring Garden Avenue. The Complainant was pulled to the ground by the SO, who then kneeled on the centre of the Complainant’s back. The SO drew his firearm again and pointed it down the street. He advised the WO to draw his firearm in case the U-Haul came back. The U-Haul had turned around on Willowdale Avenue further down the street and faced them. The Complainant was handcuffed with his hands behind his back. The WO advised the Complainant he was under arrest for “break and enter”.
Starting at about 5:31:57 a.m., a second police vehicle arrived with emergency warning systems activated. The Complainant was stood up and escorted to the SO and WO’s police vehicle. The Complainant was searched and placed in the back of the police vehicle.
Starting at about 5:34:42 a.m., the WO asked the SO, “He fell out of the truck, right?” The SO replied, “Yeah.”
Starting at about 5:35:28 a.m., the Complainant advised the SO and WO he was hurt and requested medical attention. Paramedic services were requested.
Starting at about 5:37:07 a.m., the Complainant provided a name for himself.
Starting at about 5:37:41 a.m., a civilian witness stated that the Complainant had fallen out of the back of the truck as the SO and WO approached.
Starting at about 5:51:20 a.m., the Complainant was assessed by paramedic services.
In-car Camera System (ICCS) Footage
On July 6, 2023, the SIU received ICCS video footage in connection with the incident under investigation. On July 4, 2023, starting at about 5:27:44 a.m., a police vehicle [driven by the WO with the SO as a passenger] was captured travelling with its emergency warning lights activated.
Starting at about 5:29:50 a.m., the police vehicle approached a business on the west side of the road. A U-Haul truck was backed into the property. Suddenly, the U-Haul sped away. It turned southbound onto Willowdale Avenue. The rear cargo door opened and closed, and some items fell out. The WO followed behind the truck.
Starting at about 5:29:55 a.m., the rear cargo door opened wide. There was a man [now known to be the Complainant] in the back of the truck seated on a pile of items. The Complainant stood up. As he stood up, the truck came to an abrupt stop.
Starting at about 5:29:59 a.m., the Complainant fell out as the truck accelerated. He landed on his arms, stomach, and face. A pickaxe also fell out. The WO stopped the police vehicle. The U-Haul continued southbound on Willowdale Avenue. The Complainant stood up and fled southbound on Willowdale Avenue on foot. The SO and WO exited their vehicle with their firearms drawn. They were about six metres away from the Complainant. The SO and WO holstered their firearms and pursued on foot.
Starting at about 5:30:06 a.m., about nine metres from where the Complainant had fallen, the SO grabbed the Complainant by the shoulder and pulled him to the ground. The Complainant landed on his left side, and he rolled to his front. The WO joined and held the Complainant down with his knees. The SO placed a knee on the Complainant’s lower back.
The U-Haul stopped about 30 to 40 metres ahead. The WO got up and ran towards his police vehicle. The truck turned around and stopped.
Starting at about 5:30:32 a.m., the truck faced northbound on Willowdale Avenue. The WO saw the truck and returned to where the SO was with the Complainant. They watched the U-Haul as the SO held the Complainant to the ground.
Starting at about 5:30:58 a.m., the U-Haul turned around and went southbound on Willowdale Avenue before turning right onto Sheppard Avenue East.
Starting at about 5:31:56 a.m., a second police vehicle arrived, and two police officers exited. The Complainant was stood up and his hands were handcuffed behind his back. The SO and WO escorted the Complainant to their police vehicle. The two other police officers took a statement from a man.
Starting at about 5:35:45 a.m., the Complainant advised that his arm hurt. The WO called for an ambulance immediately.
Starting at about 5:45:41 a.m., paramedic services arrived.
TPS Custody Video
On July 4, 2023, starting at about 6:41:45 a.m., the SO and the WO arrived at the 32 Division booking desk with the Complainant. The WO introduced the Complainant with the name the Complainant had provided earlier and advised they had concerns about the truth of his identity. The Complainant was under arrest for Break and Enter, Mischief, and Theft. The Complainant requested to see a doctor because his elbow hurt. The booking officer advised he was aware the Complainant had fallen while he was pursued by officers. He was also aware that paramedics had attended and assessed him at the scene, and that there were no concerns. The handcuffs were removed, and the Complainant was asked to place his hands on a wall. The Complainant could not lift his right arm to place it on the wall. He repeatedly complained of arm pain. The Complainant supported his right arm with his left hand. He was then lodged in a cell. Starting at about 7:19:51 p.m., the Complainant was placed in an interview room. His right arm was in a sling.
TPS Communications Recordings
On July 4, 2023, starting at about 5:25:33 a.m., TPS received a 911 call from CW #2 who reported a break and enter in progress. There were three individuals loading property into a U-Haul truck at Willowdale Avenue. Starting at about 5:27:37 a.m., the WO and SO marked themselves on the call.
Starting at about 5:30:07 a.m., the WO and SO advised of a foot pursuit.
Starting at about 5:30:28 a.m., the WO advised they were at Spring Garden Avenue and Willowdale Avenue with one person [the Complainant] in custody on the ground. The U-Haul truck was south of their position.
Starting at about 5:35:44 a.m., the WO requested paramedics to their location. The Complainant had scrapes to his arms, which occurred when he fell as they chased him on foot.
Starting at about 5:45:09 a.m., paramedics arrived and, at 6:22:41 a.m., the WO advised the Complainant would be transported to TPS 32 Division.
Video Footage - Willowdale Avenue
On July 10, 2023, the SIU received video footage from an address on Willowdale Avenue. Starting at about 4:55:57 a.m., a masked man was captured entering the camera frame and gathering items. An alarm sounded. A man [now known to be the Complainant] with a bandana across his face was collecting spools of wire from the yard.
Starting at about 5:28:07 a.m., the driver of the U-Haul yelled. The Complainant and the other person ran back to the U-Haul. The Complainant climbed into the rear cargo area of the U-Haul. The rear cargo door did not close fully. The U-Haul fled the property and went southbound on Willowdale Avenue. A man ran onto the property at the same time as a police vehicle arrived at the scene.
Materials Obtained from Police Service
Between July 6, 2023, and July 19, 2023, the SIU obtained the following records from the TPS:- Communications recordings;
- Custody video;
- BWC video;
- ICCS video;
- Computer-aided dispatch report;
- General Occurrence Report;
- List of Involved Officers;
- Notes – the SO;
- Notes – the WO;
- TPS policy - Arrest; and
- TPS policy - Use of Force.
Materials Obtained from Other Sources
Between July 5, 2023, and July 10, 2023, the SIU obtained the following records from the following other sources: - The Complainant’s medical records from NYGH; and
- Video footage from Willowdale Avenue.
Incident Narrative
The evidence gathered 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 morning of July 4, 2023, the SO was a passenger in a police cruiser operated by his partner, the WO, travelling south on Willowdale Avenue. They were responding to a report of a break and enter in progress at a business located on Willowdale Avenue. A man had called to report a van on the premises and persons loading items from the business into it.
The Complainant was one of the persons associated with the van. As the police cruiser approached the business, he jumped into the rear cargo compartment of the van before it accelerated off the property turning right to travel south on Willowdale Avenue. The rear door had not been fastened shut before the van departed, and it opened and closed as the vehicle accelerated. Shortly after the van left the business, the Complainant stood up, lost his balance, and fell onto the roadway through the open rear door.
The WO brought his police vehicle to a stop and he and the SO exited to pursue the Complainant, who had regained his footing and was fleeing south towards the Spring Garden Avenue intersection. The SO was first to reach the Complainant. The officer pulled the Complainant to the ground and, with the assistance of the WO, handcuffed him behind the back.
Later in the day, while still in the custody of the police, the Complainant was taken to hospital and diagnosed with a broken right arm.
In the morning of July 4, 2023, the SO was a passenger in a police cruiser operated by his partner, the WO, travelling south on Willowdale Avenue. They were responding to a report of a break and enter in progress at a business located on Willowdale Avenue. A man had called to report a van on the premises and persons loading items from the business into it.
The Complainant was one of the persons associated with the van. As the police cruiser approached the business, he jumped into the rear cargo compartment of the van before it accelerated off the property turning right to travel south on Willowdale Avenue. The rear door had not been fastened shut before the van departed, and it opened and closed as the vehicle accelerated. Shortly after the van left the business, the Complainant stood up, lost his balance, and fell onto the roadway through the open rear door.
The WO brought his police vehicle to a stop and he and the SO exited to pursue the Complainant, who had regained his footing and was fleeing south towards the Spring Garden Avenue intersection. The SO was first to reach the Complainant. The officer pulled the Complainant to the ground and, with the assistance of the WO, handcuffed him behind the back.
Later in the day, while still in the custody of the police, the Complainant was taken to hospital and diagnosed with a broken right arm.
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 around the time of his arrest by TPS officers on July 4, 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.
The SO was within his rights in seeking to take the Complainant into custody. Given what he knew of the 911 call and what he observed as he arrived on scene, namely, a van accelerating away from the premises, the SO had grounds to arrest the Complainant in relation to theft.
With respect to the force used by the SO in aid of the Complainant’s arrest, essentially, a takedown, I am satisfied that it was legally justified. The Complainant was fleeing at the time attempting to evade apprehension. It made sense, in the circumstances, to ground the Complainant. Doing so would bring an end to his flight and place the officer in a better position to manage any continuing resistance from the Complainant. Once on the ground, there is no evidence of any strikes being brought to bear.
It remains unclear when precisely the Complainant broke his arm. In my view, it is more likely that the injury was incurred when he fell from the van onto the roadway than when he was grounded. Be that as it may, as there are no reasonable grounds to conclude that the SO comported himself other than within the limits of the criminal law in his engagement with the Complainant, there is no basis for proceeding with charges.
Date: November 1, 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.
The SO was within his rights in seeking to take the Complainant into custody. Given what he knew of the 911 call and what he observed as he arrived on scene, namely, a van accelerating away from the premises, the SO had grounds to arrest the Complainant in relation to theft.
With respect to the force used by the SO in aid of the Complainant’s arrest, essentially, a takedown, I am satisfied that it was legally justified. The Complainant was fleeing at the time attempting to evade apprehension. It made sense, in the circumstances, to ground the Complainant. Doing so would bring an end to his flight and place the officer in a better position to manage any continuing resistance from the Complainant. Once on the ground, there is no evidence of any strikes being brought to bear.
It remains unclear when precisely the Complainant broke his arm. In my view, it is more likely that the injury was incurred when he fell from the van onto the roadway than when he was grounded. Be that as it may, as there are no reasonable grounds to conclude that the SO comported himself other than within the limits of the criminal law in his engagement with the Complainant, there is no basis for proceeding with charges.
Date: November 1, 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.