Director's Report Details

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.

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: 

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 31-year-old man (the “Complainant”).

Notification of the SIU

On August 23, 2023, at 5:59 p.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

According to the TPS, the Durham Regional Police Service (DRPS) contacted the TPS at approximately 12:41 p.m., that same day, requesting assistance for a search warrant at an address on Adelaide Street East. The Complainant was suspected of possessing a firearm. At 4:20 p.m., TPS Emergency Task Force (ETF) opened the door of the Complainant’s apartment. The Complainant was observed to run to the second-floor of the apartment. The TPS had a containment team set up and were in the process of launching a drone. The Complainant went out onto a balcony and fell to a balcony two floors below. The TPS received a 911 call from a civilian witness - CW. The CW reported that somebody - naked from the waist down - had just fallen onto her balcony. The TPS attended her apartment and arrested the Complainant, who had a shoulder or arm bone sticking out of his skin.

The Scene

The events in question transpired in the apartment and balcony of an upper floor apartment in a building on Adelaide Street East, Toronto, and the balcony of an apartment two floors below at the same address.

The building on Adelaide Street East, Toronto, was a high-rise apartment complex on the south side of Adelaide Street.

Video/Audio/Photographic Evidence [1]

Body-worn Camera (BWC) Footage

On August 25, 2023, the TPS provided the SIU with the BWC footage, in connection with the incident under investigation, from WO #1, WO #2, WO #3, WO #4, WO #5 and WO #6. The footage was date and time-stamped and of good quality.

On August 23, 2023, at 4:19:33 p.m., the video footage commenced with TPS ETF police officers entering the building on Adelaide Street East and ascending to an upper floor hallway.

Starting at about 4:22 p.m., WO #4 struck the door of an apartment three times with a battering ram and shouted out, “Police, search warrant.” The door opened. A male was heard to yell or scream from a distance. Police remained in the hallway continuing to call-out to the Complainant to come to the door. A TPS officer started to prepare a drone and officers entered through the front door. Seconds later, a police officer outside the door said, “He jumped down.” ETF officers went to a lower floor. The CW emerged from her apartment and said, “He’s on my patio.”

Starting at about 4:27 p.m., the Complainant was located on the balcony of CW’s apartment. WO #5 told him to get on the ground and the Complainant said, “My arm is broken, it’s dangling.” The Complainant went to his knees, and WO #5 put the Complainant onto his stomach and handcuffed his wrists behind his back. Police asked him where his pants were, and the Complainant said he had been asleep and he did not have any. The Complainant explained that his arm was fractured from the fall. An ETF medic attended and assessed his injuries. When asked why he jumped, the Complainant said he was half-asleep and panicked. WO #6 and the medic estimated the fall was 20 feet. The Complainant was taken by emergency medical service to hospital.

The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.

In the afternoon of August 23, 2023, DRPS officers had plans to execute a search warrant at an apartment on Adelaide Street East, Toronto, and to arrest the Complainant inside the home. The Complainant was wanted for serious firearms-related offences. Given the nature of the crimes and the prospect that the Complainant might be armed, the TPS ETF was enlisted to enter the apartment to ensure the safety of the scene before the entry of the search team.

A team of ETF officers convened outside the apartment at about 4:20 p.m. The door to the apartment was forced open with a battering ram and police announced their presence. A male’s voice was heard to scream. From outside, the ETF called into the apartment without any response. Within moments, they received word that a male had fallen onto the balcony of an apartment two floors below.

The male on the balcony was the Complainant. He had heard the ETF at the door, decided to flee his apartment via the balcony, and fell to the balcony below in the process.

ETF officers arrived at the lower apartment and took the Complainant into custody. He had fractured his right arm in the fall and dislocated the right elbow.

Section 221, Criminal Code -- Causing bodily harm by criminal negligence 

221 Every person who by criminal negligence causes bodily harm to another person is guilty of   

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or                      (b) an offence punishable on summary conviction.

The Complainant was diagnosed with a serious injury while in police custody on August 23, 2023. As the injury occurred shortly before his arrest as TPS officers were in the process of entering his residence on the authority of a search warrant, the SIU was notified of the incident and initiated an investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any TPS officer committed a criminal offence in connection with the Complainant’s injuries.

The offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of the ETF officers, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s injuries. In my view, there was not.

The ETF officers were lawfully placed and in the execution of their duties when they attended at the Complainant’s residence and forced open his front door. They were acting pursuant to a search warrant authorizing their entry.

I am also satisfied that the ETF officers comported themselves with due regard for public safety, including the Complainant’s well-being, throughout their engagement at the scene. Their choice of tactic – a no-knock breach of the front door – was reasonable. The Complainant was wanted for serious firearms offences and police had cause to believe that he was in the apartment and armed. Any further notice to the Complainant would have unduly risked the destruction of evidence. Moreover, it should be noted that this was not a full-blown dynamic entry. Rather, once the door opened, the ETF announced their presence and called-out to the Complainant from the hallway. Regrettably, the Complainant chose to attempt an escape from the balcony and ended up seriously hurting himself. Aside from being the impetus for the Complainant’s behaviour, however, I am satisfied that the ETF did not contribute to that decision in any fashion that could attract criminal sanction. Nor did they have any opportunity to prevent the Complainant from hurting himself given the speed with which events unfolded.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: December 21, 2023




Joseph Martino
Director
Special Investigations Unit