SIU Director’s Report - Case # 23-OCI-400
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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 17-year-old male (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 17-year-old male (the “Complainant”).
The Investigation
Notification of the SIU [1]
On September 29, 2023, at 3:10 p.m., the York Regional Police (YRP) contacted the SIU with the following information.On September 29, 2023, at approximately 11:15 a.m., YRP District 4 Criminal Investigation Bureau police officers executed a search warrant at a residence located in the area of Yonge Street and Major MacKenzie Drive in Richmond Hill. Police officers cleared the various rooms inside the residence and located five individuals. One male [now known to be the Complainant] struggled with the police during the arrest. Witness Officer (WO) #4 and the Subject Official (SO) took him down. A baton and a conducted energy weapon (CEW) were used during the struggle. The Complainant received a cut on top of his head and was taken to MacKenzie Health (MH) where he was diagnosed with a fractured nose. He was released from MH and was to be held at YRP 4 District until September 30, 2023, for a bail hearing.
The Team
Date and time team dispatched: 2023/09/29 at 3:34 p.m.Date and time SIU arrived on scene: 2023/09/29 at 4:09 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
17-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 29, 2023.
Civilian Witness
CW InterviewedThe civilian witness was interviewed on September 29, 2023.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed; notes received and reviewedWO #2 Interviewed; notes received and reviewed
WO #3 Interviewed; notes received and reviewed
WO #4 Interviewed; notes received and reviewed
The witness officials were interviewed between October 10 and 31, 2023.
Evidence
The Scene
The events in question transpired in a second-floor bedroom of a home situated in the area of Yonge Street and Major MacKenzie Drive, Richmond Hill. The scene was not held for the SIU, nor was it forensically evaluated or photographed by YRP prior to its release.
Physical Evidence
On September 29, 2023, a SIU forensic investigator attended YRP 4 District to photograph police equipment, which had been secured by YRP, including:- A CEW and two discharged CEW cartridges with wires.
- A medical sharps container labelled as probes from the Complainant.
- An expandable baton.
Figure 1 - The expandable baton
Deployment data were downloaded from the CEW.
On October 5, 2023, a SIU investigator canvassed the area around the scene for cameras and civilian witnesses. The scene was in the process of being actively cleaned by a professional cleaner when marks consistent with dried blood were discovered by a SIU investigator. They were located on the west wall of the narrow staircase at the top of the stairs at hip level. There was another swipe mark at a higher level on the west wall further down the stairs. Scene photographs were taken by the SIU investigator.
Forensic Evidence
CEW Deployment Data
On October 2, 2023, the SIU downloaded the data from WO #4’s CEW. The model was a TASER X2. 
Figure 2 - WO #4's CEW
On September 29, 2023, at 11:15:00 a.m., [2] the CEW was armed and equipped with two cartridges. Cartridge #1 was deployed. There was an electrical discharge of five seconds.
At 11:15:06 a.m., there was another electrical discharge of five seconds.
At 11:15:12 a.m., Cartridge #2 was deployed. There was an electrical discharge of five seconds. At 11:15:18 a.m., there was an electrical discharge of five seconds. At 11:15:24 a.m., there was an electrical discharge of five seconds. At 11:15:31 a.m., there was an electrical discharge of five seconds. At 11:15:54 a.m., the CEW was rendered safe.
Video/Audio/Photographic Evidence [3]
Police Communications Recordings
The SO was captured in the recordings reporting that there were four people in custody at the residence in the area of Yonge Street and Major MacKenzie Drive, Richmond Hill. He requested that four marked patrol vehicles attend the scene to bring the arrested people to YRP 4 District. He also asked for paramedic services. He advised no police officers were injured. Materials Obtained from Police Service
Upon request, the SIU received the following materials from the YRP between October 4, 2023, and October 6, 2023:- Arrest Report – Complainant;
- General Occurrence Report;
- Dispatch Log;
- Computer-aided Dispatch Report;
- Policy - Use of Force;
- Search Warrant;
- Search Warrant – Information to Obtain;
- Communications recordings;
- Notes – WO #1;
- Notes – WO #2;
- Notes – WO #3; and
- Notes – WO #4.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources on October 3, 2023: - The Complainant’s medical records from MH.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and police eyewitnesses to the events in question, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.
In the morning of September 29, 2023, a team of YRP officers, including the SO, forced entry into a residence in the area of Yonge Street and Major MacKenzie Drive, Richmond Hill. They did so on the strength of a search warrant obtained earlier in the day. The occupants of the home were suspects in an organized auto theft ring and believed to be in possession of break and enter tools and vehicle master keys used in the commission of their crimes.
Among the team of officers, WO #4 made his way into a second-floor bedroom where he confronted the Complainant lying in a bed. A physical altercation ensued between the two, which was soon joined by the SO. The Complainant was subjected to multiple CEW discharges and baton strikes before he was handcuffed.
Following his arrest, the Complainant was transported to hospital where he was diagnosed with a broken nose.
In the morning of September 29, 2023, a team of YRP officers, including the SO, forced entry into a residence in the area of Yonge Street and Major MacKenzie Drive, Richmond Hill. They did so on the strength of a search warrant obtained earlier in the day. The occupants of the home were suspects in an organized auto theft ring and believed to be in possession of break and enter tools and vehicle master keys used in the commission of their crimes.
Among the team of officers, WO #4 made his way into a second-floor bedroom where he confronted the Complainant lying in a bed. A physical altercation ensued between the two, which was soon joined by the SO. The Complainant was subjected to multiple CEW discharges and baton strikes before he was handcuffed.
Following his arrest, the Complainant was transported to hospital where he was diagnosed with a broken nose.
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 YRP officers in Richmond Hill on September 29, 2023. The SIU was notified of the incident and initiated an investigation naming one of the officers – SO – 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.
Based on the search warrant that had been issued, which identified the occupants of the residence as being in possession of tools used to commit car thefts, the Complainant was subject to arrest by the officers.
With respect to the force brought to bear by the police in aid of the Complainant’s arrest, I am satisfied the evidence falls short of any reasonable suggestion it was excessive. There is some evidence the Complainant was immediately set upon by WO #4 and other officers who repeatedly struck him without provocation. One of the officers fired a CEW at him twice while another kicked him in the nose. This allegation, however, is contested by the account of WO #4, which describes force that was at the same time serious and reasonably necessary. In evidence that finds circumstantial support from some other officers on scene, WO #4 says that the Complainant resisted his arrest from the get-go and fought him and the SO tooth and nail – kicking and punching at the officers - until he was finally subdued following a number of baton strikes and CEW discharges. On this record, I am unable to reasonably conclude with any confidence that the allegation of excessive force is any likelier to be closer to the truth than the picture of reasonable force proffered by WO #4.
In the result, while I accept that the Complainant’s nose was broken in the melee that marked his arrest, I do not accept that the injury was attributable to any unlawful force on the part of the SO or WO #4. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: January 24, 2024
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.
Based on the search warrant that had been issued, which identified the occupants of the residence as being in possession of tools used to commit car thefts, the Complainant was subject to arrest by the officers.
With respect to the force brought to bear by the police in aid of the Complainant’s arrest, I am satisfied the evidence falls short of any reasonable suggestion it was excessive. There is some evidence the Complainant was immediately set upon by WO #4 and other officers who repeatedly struck him without provocation. One of the officers fired a CEW at him twice while another kicked him in the nose. This allegation, however, is contested by the account of WO #4, which describes force that was at the same time serious and reasonably necessary. In evidence that finds circumstantial support from some other officers on scene, WO #4 says that the Complainant resisted his arrest from the get-go and fought him and the SO tooth and nail – kicking and punching at the officers - until he was finally subdued following a number of baton strikes and CEW discharges. On this record, I am unable to reasonably conclude with any confidence that the allegation of excessive force is any likelier to be closer to the truth than the picture of reasonable force proffered by WO #4.
In the result, while I accept that the Complainant’s nose was broken in the melee that marked his arrest, I do not accept that the injury was attributable to any unlawful force on the part of the SO or WO #4. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: January 24, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Unless otherwise specified, 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 times are derived from the internal clock of the weapon, and are not necessarily synchronous with actual time. [Back to text]
- 3) 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.