SIU Director’s Report - Case # 23-TCI-198
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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 28-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 28-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On May 27, 2023, at 5:18 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant. According to the TPS, on May 26, 2023, at 4:41 p.m., two TPS officers from the Major Crime Unit arrested the Complainant near Elizabeth Street and Elm Street, Toronto. The Complainant was wanted for several break and enters. He resisted arrest and a struggle ensued in the course of which he was taken to the ground. The Complainant was transported to 52 Division where he complained of jaw pain. Emergency Medical Services (EMS) attended the station and took the Complainant to Mount Sinai Hospital (MSH) where he was diagnosed with multiple fractures to his jaw, as well as possible skull and rear sinus fractures. During the subsequent TPS investigation, officers spoke with the Complainant’s girlfriend, who reported that the injuries to the Complainant pre-existed his interaction with officers.
The Team
Date and time team dispatched: 2023/05/27 at 8:01 a.m.Date and time SIU arrived on scene: 2023/05/27 at 11:57 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
28-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on May 27, 2023.
Civilian Witness
CW InterviewedThe Civilian Witness was interviewed on May 27, 2023.
Subject Officials
SO #1 Declined interview, as is the subject official’s legal right; notes received and reviewedSO #2 Declined interview, as is the subject official’s legal right; notes received and reviewed
Witness Official
WO Notes reviewed; interview deemed not necessaryEvidence
The Scene
The events in question transpired on the southwest corner of Elizabeth Street and Elm Street, Toronto. The area was a mixture of residential apartment housing and office towers. On May 27, 2023, SIU investigators attended the scene. They canvassed for witnesses and video surveillance recordings; none were located.
Video/Audio/Photographic Evidence [2]
Police Communications Recordings
On May 26, 2023, at 1:27 p.m., SO #2 was reported to be near Elizabeth Street and Elm Street, Toronto. At 1:36 p.m., SO #1 reported seeing numerous persons as they entered and exited a nearby building. He remained at the entrance of the building keeping watch for the Complainant.
At 2:29 p.m., SO #2 reported that building staff had told him that the Complainant usually entered through the front entrance.
At 4:41 p.m., it was announced that the Complainant was in custody. A request was made for transport to TPS 52 Division.
At 6:02 p.m., EMS was requested at 52 Division as the Complainant complained of jaw pain.
At 6:47 p.m., the Complainant was to be taken to MSH by TPS officers.
Video Footage – Complainant’s Booking
The footage started with the booking sergeant and three TPS officers in the Booking Room at 52 Division. The Complainant, handcuffed, was escorted in. He was advised that he was being audio and video-recorded, and he was told that he had been placed under arrest for several break and enters and failure to comply with release orders. The Complainant acknowledged this and stated that he had an injury to the left side of his jaw because of his arrest. When asked how the injury occurred, he stated that he was taken to the ground, and his face struck the pavement. He denied any mental health issues or medical conditions, and indicated he did not take any prescription medications. He admitted to ingesting crack-cocaine and alcohol.At about nine minutes into the recording, the Complainant’s handcuffs were removed, and he sat on a bench.
At 19 minutes into the recording, the Complainant was informed that an ambulance would attend, and he would be taken to hospital for an examination. He was later led away, and the footage concluded.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between June 1, 2023, and July 13, 2023:- TPS General Occurrence Report;
- Communications recordings;
- Booking Video;
- Notebook entries – SO #1;
- Notebook entries – SO #2;
- Notebook entries – WO;
- Photographs of the Complainant;
- Use of Force requalification training – SO #1 and SO #2;
- TPS policy - Arrest;
- TPS policy - Arrest Warrants; and
- TPS policy - Use of Force.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between June 2 and 15, 2023: - The Complainant’s medical records from MSH;
- The Complainant’s medical records from St. Michael’s Hospital; and
- Canadian Police Information Centre record on the Complainant.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and a police witness who observed the incident in parts, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU. They did authorize the release of their notes.
In the afternoon of May 26, 2023, SO #1 and SO #2, attired in plain clothes, were at the intersection of Elm and Elizabeth Streets, Toronto, conducting surveillance in the area. They were looking to identify and arrest the Complainant, who was known to frequent a nearby building. The Complainant was the suspect in a number of break and enters at Shoppers Drug Mart retail stores. At about 4:40 p.m., having located the Complainant standing at the southwest corner of the intersection, the officers moved in to take him into custody.
SO #1 and SO #2 took hold of the Complainant’s arms and advised him he was under arrest for break and enter. The Complainant attempted to break free and was taken to the ground by the officers. With the help of another officer – the WO – the Complainant was handcuffed behind the back.
Following his arrest, the Complainant was transported to the police station and, from there, to hospital when he complained of jaw pain. He was diagnosed with an acute fracture of the lower right jaw, a broken nose and other injuries, and underwent surgery.
In the afternoon of May 26, 2023, SO #1 and SO #2, attired in plain clothes, were at the intersection of Elm and Elizabeth Streets, Toronto, conducting surveillance in the area. They were looking to identify and arrest the Complainant, who was known to frequent a nearby building. The Complainant was the suspect in a number of break and enters at Shoppers Drug Mart retail stores. At about 4:40 p.m., having located the Complainant standing at the southwest corner of the intersection, the officers moved in to take him into custody.
SO #1 and SO #2 took hold of the Complainant’s arms and advised him he was under arrest for break and enter. The Complainant attempted to break free and was taken to the ground by the officers. With the help of another officer – the WO – the Complainant was handcuffed behind the back.
Following his arrest, the Complainant was transported to the police station and, from there, to hospital when he complained of jaw pain. He was diagnosed with an acute fracture of the lower right jaw, a broken nose and other injuries, and underwent surgery.
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 diagnosed with a fractured jaw and other injuries following his arrest by TPS officers on May 26, 2023. The SIU was notified of the incident and initiated an investigation naming the two arresting officers subject officials: SO #1 and SO #2. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the Complainant’s arrest and injuries.
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 evidence establishes that the Complainant was subject to arrest at the time he was taken into custody by SO #1 and SO #2. The officers had reasonable grounds to believe the Complainant had committed a series of break and enters.
I am also satisfied that the Complainant’s arrest was effected with legally justified force. Having been grabbed by the arms, the officers cautioned the Complainant that he would be grounded if he continued to resist by trying to break free. He persisted and was taken to the ground. The tactic was reasonably necessary as it would allow SO #1 and SO #2 to better manage any continuing resistance by the Complainant. On the weight of the evidence, it would also appear that the maneuver was executed in a controlled fashion. Thereafter, aside from the officers using their bodies to keep the Complainant pinned to the ground, no further force was brought to bear. At no point was the Complainant struck by the officers.
At hospital following his arrest, the Complainant was diagnosed with multiple facial fractures, some of which predated his arrest by SO #1 and SO #2. With respect to the other fractures, while I accept that they were likely incurred as a result of the takedown or the pressure applied by the officers in keeping the Complainant on the ground, I am not reasonably satisfied they were the result of any unlawful conduct on the part of the subject officials. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 25, 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.
The evidence establishes that the Complainant was subject to arrest at the time he was taken into custody by SO #1 and SO #2. The officers had reasonable grounds to believe the Complainant had committed a series of break and enters.
I am also satisfied that the Complainant’s arrest was effected with legally justified force. Having been grabbed by the arms, the officers cautioned the Complainant that he would be grounded if he continued to resist by trying to break free. He persisted and was taken to the ground. The tactic was reasonably necessary as it would allow SO #1 and SO #2 to better manage any continuing resistance by the Complainant. On the weight of the evidence, it would also appear that the maneuver was executed in a controlled fashion. Thereafter, aside from the officers using their bodies to keep the Complainant pinned to the ground, no further force was brought to bear. At no point was the Complainant struck by the officers.
At hospital following his arrest, the Complainant was diagnosed with multiple facial fractures, some of which predated his arrest by SO #1 and SO #2. With respect to the other fractures, while I accept that they were likely incurred as a result of the takedown or the pressure applied by the officers in keeping the Complainant on the ground, I am not reasonably satisfied they were the result of any unlawful conduct on the part of the subject officials. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 25, 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 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.