SIU Director’s Report - Case # 23-TCI-315
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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 33-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 33-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On August 8, 2023, at 5:23 p.m., the Toronto Police Service (TPS) contacted the SIU and reported the following.On August 8, 2023, at 12:00 p.m., TPS officers attended a residence in Toronto in connection with a Children's Aid Society (CAS) apprehension order for the Complainant’s two young children. Two TPS officers attended the address along with one CAS worker. While inside the unit, an altercation occurred with the Complainant. At 12:10 p.m., a sergeant was summoned to the scene. At 1:35 p.m., Toronto Emergency Medical Services (TEMS) attended, and the Complainant was transported to the North York General Hospital. X-rays were taken and the Complainant was diagnosed with a broken left elbow. At 4:23 p.m., the Complainant was discharged from hospital and returned to his residence; no criminal charges were initiated.
The Team
Date and time team dispatched: 2023/08/08 at 6:48 p.m.Date and time SIU arrived on scene: 2023/08/09 at 10:30 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
33-year-old male; interviewedThe Complainant was interviewed on August 15, 2023.
Civilian Witness (CW)
CW InterviewedThe civilian witness was interviewed on August 17, 2023.
Subject Official (SO)
SO Interviewed; notes received and reviewedThe subject official was interviewed on August 17, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on August 16, 2023.
Evidence
The Scene
The events in question transpired inside the bedroom of a residence in Toronto. Video/Audio/Photographic Evidence [2]
Body-worn Camera (BWC) Footage – The SO
On August 8, 2023, at 11:54:08 a.m., the video opened with a view of the interior of an elevator. Four people stood in the elevator speaking with the SO and WO #1.Starting at about 11:54:29 a.m., the group exited the elevator and attended a unit. They knocked on the door.
Starting at about 11:55:42 a.m., the Complainant opened the door. The CW introduced herself and asked if she could enter. The Complainant refused the request and stated he was bathing his children. The CW informed the Complainant she was with police officers and had a warrant to apprehend the children. It was explained that there were concerns for the children’s safety and a judge had ordered the children to be taken into custody. The Complainant stepped away to remove one of his children from the bath and held the child in his arms while he spoke with the SO.
Starting at about 11:57:15 a.m., the Complainant said, “Well, I decline for that.” The SO explained there was a signed warrant for the apprehension of the children. The CW explained the judge’s concerns included safety, the home itself, the Complainant’s mental health, and the children not being in school.
Starting at about 12:01:55 p.m., the Complainant called his lawyer and informed the CW he had not been served. The CW informed him they had attempted to serve him but had not been able to locate him. The Complainant refused to turn over the children. The CW explained the warrant and that she could not leave without the children. The Complainant spoke with his lawyer. He had concerns that he was not served, nor had he received a court order. He made several calls and ultimately declined to surrender the children to the CW, who informed him there was a signed endorsement from the court to apprehend the children. The SO explained they wanted to take the children with no issue and without causing the children any distress. She explained that the Complainant could work with CAS to have the children returned at a later date.
Starting at about 12:37:40 p.m., the CW read the endorsement to the Complainant. The CW informed the Complainant the order was signed without prejudice, and he could see the children after making plans with CAS.
Starting at about 12:45:05 p.m., the SO exited the room into the hall with WO #2 and muted the audio.
Starting at about 12:47:59 p.m., the SO returned to the room with WO #2 and displayed the endorsement.
Starting at about 12:48:29 p.m., the SO, WO #2, and the CW went into the hall and the CW informed WO #2 of the court proceedings and the endorsement.
Starting at about 12:57:52 p.m., the Complainant demanded everyone leave his room, continued to challenge the officers and the CW’s attempts to explain the process of the apprehension, and instructed one of his children to stay in bed.
Starting at about 1:10:38 p.m., the SO asked the Complainant’s child to get up from the bed and the Complainant instructed the child to stay in the bed. The Complainant told his child the police officers were trying to, “Steal you away from me.”
Starting at about 1:12:21 p.m., the SO removed the blankets and the CW began to wrap a sweater around one of the children’s bottom as the child had no underwear on. The Complainant wrapped his arm around his child’s waist and pulled the child from the SO. He removed the sweater from his waist and held both his children in his arms. The Complainant argued with the officers and told them to leave.
Starting at about 1:31:18 p.m., the court documents and affidavit were printed, and the CW handed the affidavit to the SO who served the Complainant the documents.
Starting at about 1:34:21 p.m., the Complainant sat on the edge of the bed with his children in his arms, and his hands clasped in front of him. The children sat on his lap. The SO and WO #1 used both hands to unclasp the Complainant’s hands. The SO held the Complainant’s left hand and WO #1 held his right hand.
Starting at about 1:34:32 p.m., the SO pulled the Complainant’s left hand in a lateral motion to the left, a crack sounded, and the Complainant shouted, “Ow, you broke my arm, fuck.” The Complainant released the children and grabbed his left elbow with his right hand to rub it. The SO picked up one of the children and carried the child away. The child asked, “Why did you break my dad’s arm?” The CW said, “His arm’s not broken, okay?” The child said, “I heard a crack, please call an ambulance.”
Starting at about 1:35:32 p.m., WO #1 emerged from the room with the Complainant’s second child. The children were escorted away from the room by the CW.
Starting at about 1:47:45 p.m., the Complainant stood at the threshold of the room, called 911 to request an ambulance, and informed the operator the police had broken his arm.
Starting at about 2:05:07 p.m., TEMS arrived, and the Complainant informed them that his arm was broken.
Starting at about 2:11:19 p.m., the Complainant was loaded into an ambulance on a stretcher.
BWC Footage – WO #1
The footage contained the same imagery as that captured by the SO’s BWC, but from different angles.BWC Footage – WO #2
The footage contained the same imagery as that captured by the SO’s BWC, but from different angles.Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between August 8 and 16, 2023:- General Occurrence Records;
- Information from computer-assisted dispatch;
- Witness List;
- Notes – WO #1;
- Notes – WO #2;
- Notes – the SO; and
- BWC footage.
Materials Obtained from Other Sources
The SIU received the following record from other sources on November 23, 2023:- Apprehension Order – Endorsement – CAS.
Incident Narrative
The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.
In the morning of August 8, 2023, the SO and WO #1 accompanied a child welfare worker – the CW – to the Complainant’s residence in Toronto. A court order had been issued directing the child welfare agency to apprehend the Complainant’s two young children. The police officers were there to assist the CW. The officers and the CW arrived at the Complainant’s apartment at about noon.
The Complainant opened the front door holding one of his children. Told that the CW was there to take the children into the custody of the child welfare authority, the Complainant demurred. He questioned the validity of the process and focused on the fact that he had not been served the court order. The Complainant indicated he would not turn over his children.
The CW and the SO indicated that they could not leave without the children. They explained that the court order was valid and encouraged him to cooperate. The Complainant could not be persuaded. The negotiations continued in this fashion for about an hour-and-a-half.
At about 1:30 p.m., WO #2, who had arrived at the apartment to assist his officers, directed that they take physical custody of the children. The Complainant was seated on the edge of one of the two beds in the room. With a child on each knee, the Complainant had his arms around them and his hands clasped together. WO #1 and the SO moved towards the Complainant and unclasped his hands. The SO then forced the Complainant’s left arm away from one of his children, in the course of which a cracking sound was heard. The Complainant cried out in pain and said his arm was broken. The officer took his child away and comforted him. WO #1 removed the Complainant’s other child. The children were taken away from the scene.
TEMS arrived at the apartment at about 2:00 p.m. The Complainant was transported to hospital and diagnosed with a fractured left arm.
In the morning of August 8, 2023, the SO and WO #1 accompanied a child welfare worker – the CW – to the Complainant’s residence in Toronto. A court order had been issued directing the child welfare agency to apprehend the Complainant’s two young children. The police officers were there to assist the CW. The officers and the CW arrived at the Complainant’s apartment at about noon.
The Complainant opened the front door holding one of his children. Told that the CW was there to take the children into the custody of the child welfare authority, the Complainant demurred. He questioned the validity of the process and focused on the fact that he had not been served the court order. The Complainant indicated he would not turn over his children.
The CW and the SO indicated that they could not leave without the children. They explained that the court order was valid and encouraged him to cooperate. The Complainant could not be persuaded. The negotiations continued in this fashion for about an hour-and-a-half.
At about 1:30 p.m., WO #2, who had arrived at the apartment to assist his officers, directed that they take physical custody of the children. The Complainant was seated on the edge of one of the two beds in the room. With a child on each knee, the Complainant had his arms around them and his hands clasped together. WO #1 and the SO moved towards the Complainant and unclasped his hands. The SO then forced the Complainant’s left arm away from one of his children, in the course of which a cracking sound was heard. The Complainant cried out in pain and said his arm was broken. The officer took his child away and comforted him. WO #1 removed the Complainant’s other child. The children were taken away from the scene.
TEMS arrived at the apartment at about 2:00 p.m. The Complainant was transported to hospital and diagnosed with a fractured left 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 by a TPS officer on August 8, 2023. The officer – 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 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 and WO #1 were engaged in the lawful discharge of their duties attempting to enforce a lawful court order directing the removal of the Complainant’s children from his custody.
I am also satisfied that the force used by the SO and WO #1 was legally justified. Despite what were patient and protracted efforts on the part of the CW and the officers to have the Complainant voluntarily turn over the children, he was persistent in his refusal. Not consultation with his own lawyer, reached by phone by the Complainant, not repeated explanations by the police officers and child welfare worker of the bone fides of their interventions, and not a printed copy of court documents provided to the Complainant could convince him to cooperate. On this record, I am unable to fault WO #2 when he directed the officers to take physical custody of the children. Nor would it appear that the officers used anything other than reasonable force in doing so. The officers did what would be expected – they pulled the Complainant’s hands and arms apart so they could access and remove the children from his hold. The BWC footage makes clear they did so with no more force than was necessary. That the Complainant’s left arm was fractured in the process, the likely product of his attempting to maintain his hold as the SO pulled in the opposite direction, is unfortunate, but not the result of the application of excessive force.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO. The file is closed.
Date: December 6, 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 and WO #1 were engaged in the lawful discharge of their duties attempting to enforce a lawful court order directing the removal of the Complainant’s children from his custody.
I am also satisfied that the force used by the SO and WO #1 was legally justified. Despite what were patient and protracted efforts on the part of the CW and the officers to have the Complainant voluntarily turn over the children, he was persistent in his refusal. Not consultation with his own lawyer, reached by phone by the Complainant, not repeated explanations by the police officers and child welfare worker of the bone fides of their interventions, and not a printed copy of court documents provided to the Complainant could convince him to cooperate. On this record, I am unable to fault WO #2 when he directed the officers to take physical custody of the children. Nor would it appear that the officers used anything other than reasonable force in doing so. The officers did what would be expected – they pulled the Complainant’s hands and arms apart so they could access and remove the children from his hold. The BWC footage makes clear they did so with no more force than was necessary. That the Complainant’s left arm was fractured in the process, the likely product of his attempting to maintain his hold as the SO pulled in the opposite direction, is unfortunate, but not the result of the application of excessive force.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO. The file is closed.
Date: December 6, 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.