SIU Director’s Report - Case # 23-TCI-433
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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 62-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 62-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On October 23, 2023, at 3:54 p.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.According to the TPS, at approximately 10:24 a.m., that day, TPS responded to an address in the area of Morningside Avenue and Lawrence Avenue East, Scarborough, to assist a bylaw officer with a violent individual. The bylaw officer had been at the residence investigating a complaint when the occupant of the residence became angry and armed himself with a knife. TPS responded and deployed four conducted energy weapons (CEWs) before the male was apprehended. The Complainant complained of a chest injury and was transported by emergency medical services (EMS) to Scarborough General Hospital where he was diagnosed with a fractured left clavicle.
The Team
Date and time team dispatched: 2023/10/23 at 5:11 p.m.Date and time SIU arrived on scene: 2023/10/23 at 5:30 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
62-year-old male; interviewedThe Complainant was interviewed on October 25, 2023.
Civilian Witness (CW)
CW InterviewedThe civilian witness was interviewed on October 24, 2023.
Subject Officials (SO)
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Declined interview and to provide notes, as is the subject official’s legal right
Witness Officials (WO)
WO #1 Interviewed; notes received and reviewedWO #2 Body-worn camera (BWC) footage reviewed; interview deemed not necessary
WO #3 BWC footage reviewed; interview deemed not necessary
The witness official was interviewed on November 14, 2023.
Evidence
The Scene
The scene was on the roadway outside a residence in the area of Morningside Avenue and Lawrence Avenue East, Scarborough.Forensic Evidence
CEW Deployment Data
The CEW assigned to SO #2 registered a trigger pull at 9:42:26 a.m., [2] October 23, 2023, from bay one. A second trigger pull occurred at 9:44:38 a.m. from bay two. Electricity was discharged for about five seconds each time. The CEW assigned to SO #1 registered a trigger pull at 9:42:25 a.m., October 23, 2023, from bay one. A second trigger pull occurred at 9:42:33 a.m. from bay two. Electricity was discharged for about five seconds each time.
Video/Audio/Photographic Evidence [3]
BWC Footage
TPS supplied the SIU with the BWC footage for SO #1, SO #2, WO #1, WO #2 and WO #3. Starting at about 10:41:20 a.m., October 23, 2023, SO #1 and SO #2 arrived on scene and walked to the driveway of the residence. The Complainant exited the side door with a kitchen knife in his right hand. SO #1 said, “Why do you have a knife, are you going to cut me with that?” The Complainant said, “Yah if you attack.” The Complainant followed the officers while holding the knife as they backed-up onto the roadway. SO #2 drew her firearm and SO #1 drew his CEW. Both police officers gave the Complainant repeated commands to drop the knife. SO #1 and SO #2 separated and backed away in opposite directions. SO #2 holstered her firearm and drew her CEW. The Complainant went back and forth between the officers, threatening them with his knife. The officers continued with verbal commands to drop the knife.
The Complainant charged SO #1 and got within metres of him. SO #1 deployed his CEW, striking the Complainant. The Complainant fell hard to the ground on his left side, rolled and returned to his feet. SO #2 and SO #1 both deployed their CEWs again, which were ineffective. The Complainant ripped the wires out and walked at SO #2. WO #1 arrived and drew his C8 rifle and gave commands to the Complainant to drop the knife. The Complainant walked back and forth towards the three officers. SO #1 told SO #2 to try her last CEW cartridge. The Complainant entered WO #1’s vehicle and ripped out the radio. SO #2 deployed her last CEW cartridge and effectively struck the Complainant, who fell and landed hard on his back hitting his head. WO #1 stood on the Complainant’s left wrist while SO #1 took the knife out of his hand and threw it out of reach. WO #1 knelt on the centre of the Complainant’s chest and then moved his knee to the left shoulder area. EMS were requested for a wound to the Complainant’s head. His hands were handcuffed behind his back and first-aid was administered. Two more knives were found in the Complainant’s pockets.
Photographs
TPS provided three photographs taken by the CW. They showed the Complainant on his driveway with a knife in both hands.Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between October 23, 2023, and November 16, 2023:- Occurrence Report;
- BWC recordings;
- Computer-aided Dispatch Report;
- Communications recordings;
- Photographs;
- CEW deployment data;
- Civilian witness statements;
- Notes - WO #1;
- Paperwork belonging to the Complainant; and
- TPS policies for arrest, use of force and CEW use.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and video footage that captured the incident, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU or the release of their notes.
In the morning of October 23, 2023, SO #1 and SO #2 were dispatched to a residence in the area of Morningside Avenue and Lawrence Avenue East, Toronto, to investigate the Complainant. The Complainant, the resident of the home, had earlier that day threatened a municipal bylaw officer with a knife. The bylaw officer was at the home following a property complaint.
From the sidewalk in front of the residence, SO #1 called-out to the Complainant. The Complainant exited a side door of the home. He was holding a knife in his left hand and walked quickly towards the officers. Asked by SO #1 if he intended to hurt him with the knife, the Complainant said he would do just that if the officer attacked him. Nearing to within an arm’s-length of the officers, the Complainant raised the knife and waved it at them.
The officers retreated from the Complainant onto the roadway in different directions. They were soon joined by another officer – WO #1 – armed with a C8 rifle. The Complainant made his way onto the roadway and walked to and from the officers brandishing the knife in their direction. The officers repeatedly told him to drop the knife. SO #1 attempted to de-escalate the situation by encouraging the Complainant to talk to him. The Complainant could not be appeased. He ran towards SO #1 and was struck by the probes of a CEW fired by the officer, falling onto his left side on the roadway. The Complainant quickly stood up and again moved towards SO #1, who discharged his CEW a second time. At about the same time, from behind the Complainant, SO #2 fired her CEW. Neither discharge had any apparent effect on the Complainant, who continued to move back and forth between the officers with the knife in hand. Following a couple of minutes of this, the Complainant approached one of the parked cruisers, opened the driver’s door and leaned in. As he stepped away from the door, SO #2, who had positioned herself by the passenger side of the same cruiser, took aim and fired her CEW again. On this occasion, the Complainant locked-up and fell backwards onto the road. WO #1 immediately approached the Complainant, stepped on his left arm as SO #1 neared and removed the knife from his left hand. The Complainant was eventually handcuffed.
Following his arrest, paramedics attended at the scene and transported the Complainant to hospital where he was diagnosed with a fractured left clavicle.
In the morning of October 23, 2023, SO #1 and SO #2 were dispatched to a residence in the area of Morningside Avenue and Lawrence Avenue East, Toronto, to investigate the Complainant. The Complainant, the resident of the home, had earlier that day threatened a municipal bylaw officer with a knife. The bylaw officer was at the home following a property complaint.
From the sidewalk in front of the residence, SO #1 called-out to the Complainant. The Complainant exited a side door of the home. He was holding a knife in his left hand and walked quickly towards the officers. Asked by SO #1 if he intended to hurt him with the knife, the Complainant said he would do just that if the officer attacked him. Nearing to within an arm’s-length of the officers, the Complainant raised the knife and waved it at them.
The officers retreated from the Complainant onto the roadway in different directions. They were soon joined by another officer – WO #1 – armed with a C8 rifle. The Complainant made his way onto the roadway and walked to and from the officers brandishing the knife in their direction. The officers repeatedly told him to drop the knife. SO #1 attempted to de-escalate the situation by encouraging the Complainant to talk to him. The Complainant could not be appeased. He ran towards SO #1 and was struck by the probes of a CEW fired by the officer, falling onto his left side on the roadway. The Complainant quickly stood up and again moved towards SO #1, who discharged his CEW a second time. At about the same time, from behind the Complainant, SO #2 fired her CEW. Neither discharge had any apparent effect on the Complainant, who continued to move back and forth between the officers with the knife in hand. Following a couple of minutes of this, the Complainant approached one of the parked cruisers, opened the driver’s door and leaned in. As he stepped away from the door, SO #2, who had positioned herself by the passenger side of the same cruiser, took aim and fired her CEW again. On this occasion, the Complainant locked-up and fell backwards onto the road. WO #1 immediately approached the Complainant, stepped on his left arm as SO #1 neared and removed the knife from his left hand. The Complainant was eventually handcuffed.
Following his arrest, paramedics attended at the scene and transported the Complainant to hospital where he was diagnosed with a fractured left clavicle.
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 TPS officers on October 23, 2023. The SIU was notified of the incident and initiated an investigation. Two officers – SO #1 and SO #2 – were identified as subject officials. 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 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.
The Complainant had threatened a bylaw officer with a knife and brandished a knife at SO #2 and WO #1, and SO #1. He was clearly subject to arrest for multiple criminal offences.
With respect to the force used by SO #1 and SO #2 in aid of the Complainant’s arrest, I am satisfied that it was legally justified. The Complainant, without provocation, armed himself with a knife and threatened the officers with it. Despite their exhortations that he drop the knife and stop to talk to them, he continually advanced on the officers as if about to launch a knife attack. Withdrawal from the scene was not a viable option. The Complainant, seemingly of unsound mind, was armed with a dangerous weapon in a public space and the officers would have been concerned about the safety of third-parties. Instead, the officers attempted to contain the Complainant inside a triangular formation while trying to talk him down. The first CEW discharge occurred when the Complainant ran at SO #1 and was within two to three metres of the officer. He constituted a lethal threat at the time and SO #1 was within his rights in seeking to deter him with a less-lethal weapon. The next series of CEW discharges – one from each of SO #1 and SO #2 – occurred shortly after the Complainant got up after falling from the first discharge. Each officer acted reasonably in doing so. They had now just witnessed the Complainant coming within metres of doing real damage and there was an opportunity to temporarily incapacitate him before he again ran at an officer. More than two minutes elapsed before SO #2, finding herself in position to shock the Complainant, fired her weapon again. On this occasion, the CEW had the desired effect – the Complainant stiffened and fell backwards, after which he was disarmed and taken into custody. At the time, there was still significant potential of grievous injury or death coming to an officer or the Complainant if events were allowed to continue. SO #2 was prudent in preventing that from happening when finding herself with an opportunity to bring the situation to an end, she took it.
In the result, while I accept that the Complainant’s injury was incurred in one or the other of his falls, it was not attributable to any unlawful behaviour on the part of the subject officials. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: February 15, 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 Complainant had threatened a bylaw officer with a knife and brandished a knife at SO #2 and WO #1, and SO #1. He was clearly subject to arrest for multiple criminal offences.
With respect to the force used by SO #1 and SO #2 in aid of the Complainant’s arrest, I am satisfied that it was legally justified. The Complainant, without provocation, armed himself with a knife and threatened the officers with it. Despite their exhortations that he drop the knife and stop to talk to them, he continually advanced on the officers as if about to launch a knife attack. Withdrawal from the scene was not a viable option. The Complainant, seemingly of unsound mind, was armed with a dangerous weapon in a public space and the officers would have been concerned about the safety of third-parties. Instead, the officers attempted to contain the Complainant inside a triangular formation while trying to talk him down. The first CEW discharge occurred when the Complainant ran at SO #1 and was within two to three metres of the officer. He constituted a lethal threat at the time and SO #1 was within his rights in seeking to deter him with a less-lethal weapon. The next series of CEW discharges – one from each of SO #1 and SO #2 – occurred shortly after the Complainant got up after falling from the first discharge. Each officer acted reasonably in doing so. They had now just witnessed the Complainant coming within metres of doing real damage and there was an opportunity to temporarily incapacitate him before he again ran at an officer. More than two minutes elapsed before SO #2, finding herself in position to shock the Complainant, fired her weapon again. On this occasion, the CEW had the desired effect – the Complainant stiffened and fell backwards, after which he was disarmed and taken into custody. At the time, there was still significant potential of grievous injury or death coming to an officer or the Complainant if events were allowed to continue. SO #2 was prudent in preventing that from happening when finding herself with an opportunity to bring the situation to an end, she took it.
In the result, while I accept that the Complainant’s injury was incurred in one or the other of his falls, it was not attributable to any unlawful behaviour on the part of the subject officials. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: February 15, 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 clocks of the weapons, and are not necessarily synchronous between weapons and 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.