SIU Director’s Report - Case # 23-TCI-293
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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 23-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 23-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On July 27, 2023, at 3:28 p.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant. According to the TPS, the Professional Standards Branch (PSB) of TPS had received an Office of the Independent Police Review Director (OIPRD) complaint filed by the Complainant after he was apprehended under the Mental Health Act (MHA). The date of the apprehension was April 24, 2023. PSB investigators obtained the Complainant's medical records, which revealed that he had suffered a right orbital bone fracture in the course of the apprehension. TPS explained that uniform TPS officers had attended the Kipling Avenue bridge, directly over Highway 401, where they observed the Complainant standing on the ledge. It appeared as though he was preparing to jump to the highway below. Officers were able to grab hold of the Complainant before he jumped. As he was walked away, however, the Complainant smashed his head on a cruiser, causing his injury. He was subsequently taken to William Osler Health System - Etobicoke General Hospital (EGH), where he was held for examination under the MHA. At that time, the TPS was unaware of any injury. It was only after the TPS received the OIPRD complaint that they learned of the injury and notified the SIU.
The Team
Date and time team dispatched: 2023/07/28 at 11:10 a.m.Date and time SIU arrived on scene: 2023/07/28 at 11:30 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
23-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on August 5, 2023.
Subject Official (SO)
SO Interviewed; notes received and reviewed The subject official was interviewed on August 23, 2023.
Witness Officials (WO)
WO #1 InterviewedWO #2 Not interviewed; body-worn camera (BWC) footage and notes obtained and reviewed, and interview deemed not necessary
WO #3 Not interviewed; BWC footage and notes obtained and reviewed, and interview deemed not necessary
The witness official was interviewed on August 22, 2023.
Evidence
The Scene
The events in question transpired on the east side of the Kipling Avenue bridge over the westbound lanes of Highway 401, Toronto.SIU investigators did not attend the scene given that the interaction occurred several weeks prior.
Figure 1 - Google Earth aerial view the Kipling Avenue overpass of Highway 401
Figure 2 – View of the Kipling Avenue overpass from Highway 401
Video/Audio/Photographic Evidence [2]
BWC Footage – WO #1
On August 24, 2023, the TPS provided the footage from the BWCs of WO #1 and the SO for the date of April 24, 2023. Both recordings were reviewed and found to have captured the same imagery from different angles.Started at 11:48 a.m., WO #1 was captured driving a TPS cruiser south on Kipling Avenue. The SO was seated in the passenger seat to his right. WO #1 pointed to the left side of the cruiser, and the vehicle came to a stop in a live lane. The two officers exited and crossed Kipling Avenue to where the Complainant was situated. WO #1 advised dispatch of the circumstances via his police radio. As the officers arrived, WO #1 motioned for the Complainant to step down from the railing. WO #1 was about three metres to the north of the Complainant and the SO was about the same distance to the south. The Complainant motioned with his hand and yelled, "Stay back."
Starting at about 11:49 a.m., WO #1 requested the OPP's assistance in shutting down Highway 401, as well as additional TPS officers. The SO continued to try speaking with the Complainant.
Starting at about 11:50 a.m., the Complainant repositioned himself from a crouched position to a standing position on the railing. He yelled for the officers to leave him alone. Both officers continued to calmly speak with him.
Starting at about 11:51 a.m., the Complainant jumped down onto the sidewalk of the Kipling Avenue bridge and the two officers moved towards him to take physical control. Immediately, the Complainant resisted and tried to reach into a pocket of his jacket. The officers attempted to control his arms and then grounded the Complainant in a live lane of Kipling Avenue. He was continuously directed to stop resisting and to present his hands.
Starting at about 11:52 a.m., the Complainant yelled, "Get away from me," as WO #1 placed one handcuff on the Complainant's left wrist. The Complainant said, "I tried to kill myself and you're trying to arrest me? What's your problem?" The two officers were winded. The SO had control of the Complainant's upper body with his knee. WO #1 requested back-up and broadcast that the Complainant was "not in custody".
Starting at about 11:53 a.m., while WO #1 attempted to shift the Complainant's left hand behind his back, he continued to actively resist. As the two officers became winded, the SO delivered two to three strikes to the left side of the Complainant’s face. The Complainant yelled, “Stop punching me in the face, bitch."
Starting at about 11:54 a.m., WO #3 arrived, and the Complainant was fully handcuffed. The Complainant was rolled onto his right side and the SO searched an interior pocket of his jacket, removing a black-handled folding knife. The SO stated, "This was what he was reaching for." The Complainant was face down and further searched.
WO #1 told arriving TPS officers, "He was on the bridge, sitting on the railing. Eventually, we got him. He jumped down. He went for his knife in his pocket, and [indecipherable]." Additional officers then searched the Complainant while others picked up equipment from WO #1 and the SO that had become dislodged during the struggle.
Starting at about 11:55 a.m., the Complainant was placed in a seated position, and asked for his name. He responded, "I'm not fucking cooperating since you punched me in the head two times. You punched me in the head, I'm going to fucking kill you. I try to kill myself. I can't even kill myself." These comments were directed to the SO as the Complainant sobbed uncontrollably.
BWC Footage – Officer #1
On August 24, 2023, the TPS provided the SIU with the footage from the BWC worn by Officer #1. The recording started as Officer #1 arrived at the scene at 11:54:30 a.m. There were several TPS officers in lane three of northbound Kipling Avenue. The Complainant had been handcuffed and was lying on the road as he was searched. A winded SO was observed and heard telling officers, “He was on the bridge, sitting on the railing. He jumped and went for his knife. Started walking and we started fighting.” The Complainant was sobbing and was moved to a seated position on the sidewalk. He yelled, “You punched me in the head. I’m going to kill you,” as he looked at the SO. He continued, “I tried to kill myself and you assault me and punched me in the fucking head. What’s wrong with you? You punch me in the head because I tried to kill myself.”
Starting at about 11:56 a.m., the Complainant was stood up by officers as he refused to walk to a TPS cruiser. He was carried to the rear driver side door area of a TPS cruiser and then placed on the ground. Continued efforts were made to carry dialogue, but he refused to cooperate. The Complainant was stood up and leaned against the rear driver side door for further searching. The Complainant intentionally banged his head twice on the cruiser, after which he was returned to the ground in a controlled manner and searching efforts continued.
Starting at about 11:58:20 a.m., the Complainant continued to cry and demanded he be left alone. An unknown officer asked him why he was bleeding on his ear, and he yelled, “I’m bleeding in the ear because he punched me in the head ten times.” When he was asked for his name, the Complainant replied, “I’m not giving you any information. You can fuck off and die.” Continued efforts were made to carry dialogue; however, the Complainant refused to provide his name and repeated his allegation that he had been assaulted for the sole reason that he attempted to kill himself. Officers attempted to console an upset Complainant. He said that he had been attacked by the SO and WO #1.
Starting at about 12:02 p.m., the Complainant was asked why he had possession of a knife. He responded, “To protect myself from anyone trying to hurt me, like you pricks.”
Starting at about 12:04 p.m., Emergency Medical Services arrived, and the Complainant refused to provide any information, indicating he wanted to be left alone. He was asked to sit on a gurney, and he refused. Officers then picked him up and a brief struggle ensured, necessitating the use of leg restraints.
Starting at about 12:14 p.m., the Complainant was sedated. His handcuffs were removed and repositioned to the gurney, and he was transported to the EGH.
Record of Computer-assisted Dispatch (CAD) and Communication Recordings
Starting at about 11:48 a.m., April 24, 2023, a radio transmission noted that a male – the Complainant – had his legs dangling over the railing.Starting at about 11:49 a.m., it was noted that the OPP were to shut down the westbound lanes of Highway 401.
Starting at about 11:52 a.m., it was noted that the Complainant was off the bridge and fighting with officers.
Starting at about 11:53 a.m., a request was made for back-up officers as the Complainant was still fighting.
Starting at about 11:54 a.m., it was noted that the Complainant was in handcuffs.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS:- General Occurrence Report;
- Record of CAD;
- Communications recordings;
- Previous interactions with the Complainant;
- BWC footage;
- In-car camera footage; and
- Notes – the SO, WO #1, WO #2 and WO #3.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between July 31, 2023, and August 28, 2023: - Two photographs from the Complainant; and
- The Complainant’s medical records from William Osler Health System – EGH.
Incident Narrative
The events in question, clear on the evidence collected by the SIU, may briefly be summarized.
In the morning of April 24, 2023, the SO was a passenger in a cruiser travelling south on Kipling Avenue; his partner – WO #1 – was driving. As the officers travelled over Highway 401 on the Kipling Avenue overpass, they noticed a male straddling the east side railing of the bridge. Concerned that he was preparing to jump, WO #1 stopped the cruiser, and both officers exited and crossed over Kipling Avenue to the male’s location.
The male was the Complainant. He was sitting on the railing facing north, a leg perched on each side, when the SO and WO #1 approached. He waved the officers away and warned them not to get any closer.
From a position several metres south of his location, the SO spoke to the Complainant, encouraging him to come off the railing. The Complainant told the SO he was not interested in talking and to keep back. The SO assured him he would maintain his distance. Throughout this time, WO #1 stood several metres north of the Complainant. After a couple of minutes, the Complainant stood on the concrete ledge of the railing briefly before jumping to the sidewalk below.
The officers moved in and attempted to grab hold of the Complainant as he reached with his right hand into the inside breast pocket of the jacket he was wearing. The Complainant attempted to pull away from the officers and a struggle ensued. The officers forced the Complainant to the ground and attempted to secure his arms in handcuffs. The Complainant was met with punches to the right and left sides of his face by the SO. With the assistance of additional officers arriving on scene, the Complainant’s arms were controlled and handcuffed behind the back.
A folding knife was recovered from the inside breast pocket of the Complainant’s jacket in a search of his person following the arrest.
Paramedics arrived on scene. The Complainant was sedated, placed in the ambulance, and transported to hospital. He was diagnosed with a fracture of the right orbital bone.
In the morning of April 24, 2023, the SO was a passenger in a cruiser travelling south on Kipling Avenue; his partner – WO #1 – was driving. As the officers travelled over Highway 401 on the Kipling Avenue overpass, they noticed a male straddling the east side railing of the bridge. Concerned that he was preparing to jump, WO #1 stopped the cruiser, and both officers exited and crossed over Kipling Avenue to the male’s location.
The male was the Complainant. He was sitting on the railing facing north, a leg perched on each side, when the SO and WO #1 approached. He waved the officers away and warned them not to get any closer.
From a position several metres south of his location, the SO spoke to the Complainant, encouraging him to come off the railing. The Complainant told the SO he was not interested in talking and to keep back. The SO assured him he would maintain his distance. Throughout this time, WO #1 stood several metres north of the Complainant. After a couple of minutes, the Complainant stood on the concrete ledge of the railing briefly before jumping to the sidewalk below.
The officers moved in and attempted to grab hold of the Complainant as he reached with his right hand into the inside breast pocket of the jacket he was wearing. The Complainant attempted to pull away from the officers and a struggle ensued. The officers forced the Complainant to the ground and attempted to secure his arms in handcuffs. The Complainant was met with punches to the right and left sides of his face by the SO. With the assistance of additional officers arriving on scene, the Complainant’s arms were controlled and handcuffed behind the back.
A folding knife was recovered from the inside breast pocket of the Complainant’s jacket in a search of his person following the arrest.
Paramedics arrived on scene. The Complainant was sedated, placed in the ambulance, and transported to hospital. He was diagnosed with a fracture of the 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.
Section 17, Mental Health Act -- Action by police officer
17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his apprehension by TPS officers in Toronto on April 24, 2023. In the ensuing SIU investigation of the incident, 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 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 SO was within his rights when he attempted to take custody of the Complainant. Given the Complainant’s presentation at the time, it seems the officer had cause to conclude that he was of unsound mind and on the precipice of harming himself, and therefore subject to arrest under section 17 of the Mental Health Act.
I am also satisfied that the force used by the SO, namely, multiple punches to the right and left sides of the Complainant’s face, was legally justified. When the Complainant jumped off the railing and reached into his jacket, the SO was right to suspect that he might be reaching for a weapon. In fact, the Complainant was in possession of a folding knife at the time in an inside jacket pocket. It was also true that events were unfolding on or near the curb lane of northbound traffic. It was imperative, therefore, that the Complainant be restrained in handcuffs as quickly as possible. The Complainant made that very difficult; he struggled against the officers’ efforts to take him to ground and control his arms. On this record, it seems the punches struck by the officer, meant to subdue a recalcitrant Complainant so that he might be handcuffed, constituted a proportionate response to the exigencies of the moment. It should be noted that even after the last blow had been struck, it was not until the arrival of additional officers that the SO and WO #1 were able to complete the handcuffing process.
In the result, while I accept that one or more of the punches struck by the SO caused the Complainant’s fracture, I am not persuaded that the injury was the result of any unlawful conduct by the officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: November 23, 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 SO was within his rights when he attempted to take custody of the Complainant. Given the Complainant’s presentation at the time, it seems the officer had cause to conclude that he was of unsound mind and on the precipice of harming himself, and therefore subject to arrest under section 17 of the Mental Health Act.
I am also satisfied that the force used by the SO, namely, multiple punches to the right and left sides of the Complainant’s face, was legally justified. When the Complainant jumped off the railing and reached into his jacket, the SO was right to suspect that he might be reaching for a weapon. In fact, the Complainant was in possession of a folding knife at the time in an inside jacket pocket. It was also true that events were unfolding on or near the curb lane of northbound traffic. It was imperative, therefore, that the Complainant be restrained in handcuffs as quickly as possible. The Complainant made that very difficult; he struggled against the officers’ efforts to take him to ground and control his arms. On this record, it seems the punches struck by the officer, meant to subdue a recalcitrant Complainant so that he might be handcuffed, constituted a proportionate response to the exigencies of the moment. It should be noted that even after the last blow had been struck, it was not until the arrival of additional officers that the SO and WO #1 were able to complete the handcuffing process.
In the result, while I accept that one or more of the punches struck by the SO caused the Complainant’s fracture, I am not persuaded that the injury was the result of any unlawful conduct by the officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: November 23, 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.