SIU Director’s Report - Case # 23-TCI-429
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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 injuries 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 injuries of a 33-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On October 22, 2023, at 11:41 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.According to the TPS, on October 21, 2023, at 8:55 p.m., TPS officers responded to a 911 call from Toronto Community Housing (TCH) special constables, who had been swarmed by a large group at a TCH building in the West Region. Upon their arrival at 8:58 p.m., a provincial offences officer, Civilian Witness (CW) #1, and his partner CW #2, a special constable, were handcuffing the Complainant, who was actively resisting. The Subject Official (SO) assisted and delivered a knee strike during the handcuffing process. Also present were Witness Official (WO) #3 and WO #2, whose notes did not indicate any direct involvement. At 8:59 p.m., TPS officers requested an ambulance. At 9:06 p.m., emergency medical services (EMS) arrived and transported the Complainant to Humber River Hospital. On October 22, 2023, at 9:38 a.m., the Complainant was diagnosed with fractures to the right mandible, jaw, and nose.
The Team
Date and time team dispatched: 2023/10/22 at 12:07 p.m.Date and time SIU arrived on scene: 2023/10/22 at 12:30 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
33-year-old male; not interviewed (declined)Civilian Witnesses
CW #1 InterviewedCW #2 Interviewed
The civilian witnesses were interviewed on December 15, 2023.
Subject Official
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on January 29, 2024.
Witness Officials
WO #1 Interviewed; notes received and reviewedWO #2 Interviewed; notes received and reviewed
WO #3 Not interviewed; notes reviewed and interview deemed unnecessary
WO #4 Interviewed; notes received and reviewed
The witness officials were interviewed on November 8, 2023.
Evidence
The Scene
The events in question transpired in the rear of a TCH building located in the West Region, Toronto.This scene was not examined by SIU investigators as there was no evidentiary value for such.
Video/Audio/Photographic Evidence [2]
Police Body-worn Camera (BWC) Footage
On October 23, 2023, TPS provided the SIU with the footage from the BWCs of the SO, WO #1, WO #4, and WO #2. Starting at about 8:56:43 p.m., TPS officers were captured arriving at the TCH building. The officers made their way through the building to the outside area where CW #1 and CW #2 were with the Complainant. WO #2 left shortly thereafter to get his police vehicle. The Complainant was facing the rear of a vehicle while being held by CW #1 and CW #2.
WO #1 held the Complainant’s left side, told him that CW #1 was going to search him, and asked if he had any weapons. WO #1 held the Complainant by the back of his neck and his left arm and told him to, “Stop.” There appeared to be a struggle and the Complainant said, “What are you doing?” The Complainant started to move around and resist. The SO grabbed the Complainant’s left shoulder and warned him he would be brought to the ground. The Complainant continued to resist and appeared to kick-out. Officers yelled out, “Hey.” The SO said, “You’re going to go to the ground,” and, as he held the Complainant’s jacket by the left shoulder, the officer pulled the Complainant to the ground on his stomach. It could not be discerned if or how the Complainant’s face contacted the ground, or with what impact.
The Complainant screamed and shouted as WO #1 and CW #1 searched him. “I have a broken jaw, I felt it,” followed by, “You broke my face.” There was a struggle while the Complainant was on the ground. A male voice stated, “Stop hitting me,” and, “Stop resisting.”
The SO stood up and the Complainant kicked him in the leg. The SO went on the ground, grabbed the Complainant’s legs and held them together as WO #2 secured leg restraints. The Complainant screamed incoherently while on the ground.
Starting at about 9:06 p.m., the Complainant became agitated and started to resist again. The SO tightened the leg restraints. WO #2 advised the Complainant he was under arrest and took control of the leg restraints from the SO.
The Complainant stated that his jaw was broken and he needed to go to the hospital. He stated, “Felt it crack when you put your knee against me.” It was not clear to whom this statement was directed. The Complainant said, “You broke my jaw,” and, “I had jaw surgery.” The Complainant stated he had surgery on his jaw about a month ago.
The Complainant was lifted, placed on a stretcher and wheeled to a waiting ambulance.
Video Footage – TCH Building
The footage was in colour but had no audio or date or time-stamps. The footage, 38 minutes in length, captured the entrance way, front foyer and internal hallways. Five men drinking what appeared to be alcohol were in the foyer inside the entrance. After one minute and 26 seconds, CW #1 and CW #2 entered the entrance. CW #1 and CW #2 first tried to evict the Complainant and another person, and then interacted with another man. The Complainant tried to interfere. He pulled on the back of CW #2’s vest. CW #1 and CW #2 grabbed the Complainant by the front of his shirt and a struggle commenced. They eventually pulled him to the ground. He landed on his left side and they turned him onto his stomach. CW #1 and CW #2 handcuffed the Complainant’s hands behind his back. The Complainant continued to struggle and rolled on the ground.
The special constables gained control of the Complainant, stood him up and walked him through the hallways, where he continued to struggle with CW #1 and CW #2 and fell to the floor. He was eventually walked outside to an external alleyway and behind a white sedan. [3]
A number of uniformed police officers arrived at the vehicle and grouped around the Complainant, who was stood up at the trunk area of the vehicle. The Complainant struggled and eventually the police officers took the Complainant to the ground. He landed on his right side.
The Complainant remained on the ground surrounded by police officers until EMS arrived.
The recording ended prior to the Complainant being taken away by EMS.
Materials Obtained from Police Service
Upon request, the SIU obtained the following materials from the TPS between October 23, 2023, and January 16, 2024:- BWC recordings;
- Video recordings;
- Occurrence Report;
- Notes – WO #1;
- Notes – WO #4;
- Notes – WO #3;
- Notes – WO #2; and
- TPS policies for arrest and use of force.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between December 12 and 14, 2023:- TCH Computer-aided Dispatch Report;
- TCH Notes – CW #1; and
- TCH Notes – CW #2.
Incident Narrative
The evidence collected by the SIU, including video footage that captured the incident in parts, gives rise to the following scenario.
In the evening of October 21, 2023, TPS officers were dispatched to a TCH building in the West Region, Toronto. A special constable with TCH and a provincial offences officer, at the building to investigate a complaint of alcohol consumption in the lobby, had arrested the Complainant after he had grabbed one of the officers. They had subdued and handcuffed the Complainant, led him to the rear exterior of the building, and contacted the TPS for help.
The SO was among the officers that arrived at the scene. By that time, the Complainant had been positioned front first against the rear of the special constable’s cruiser. The Complainant was angry and spoke about “revolution”. Another of the officers – WO #1 – stood by his left side and placed his left hand on the back of the Complainant’s neck, attempting to push him closer to the trunk of the vehicle. The Complainant resisted and the SO intervened. He walked over to the Complainant’s left side, took hold of his jacket by the left shoulder and told him he would be grounded if he did not comply. Seconds later, the Complainant kicked back with a leg and was pulled down by the SO, his right side striking the ground. The officer then temporarily placed a knee on the Complainant’s head as other officers searched his person. The time was about 8:59 p.m.
The Complainant claimed that his jaw was broken. Paramedics were called to the scene and transported him to hospital where he was reportedly diagnosed with a broken nose and fractured right jaw.
In the evening of October 21, 2023, TPS officers were dispatched to a TCH building in the West Region, Toronto. A special constable with TCH and a provincial offences officer, at the building to investigate a complaint of alcohol consumption in the lobby, had arrested the Complainant after he had grabbed one of the officers. They had subdued and handcuffed the Complainant, led him to the rear exterior of the building, and contacted the TPS for help.
The SO was among the officers that arrived at the scene. By that time, the Complainant had been positioned front first against the rear of the special constable’s cruiser. The Complainant was angry and spoke about “revolution”. Another of the officers – WO #1 – stood by his left side and placed his left hand on the back of the Complainant’s neck, attempting to push him closer to the trunk of the vehicle. The Complainant resisted and the SO intervened. He walked over to the Complainant’s left side, took hold of his jacket by the left shoulder and told him he would be grounded if he did not comply. Seconds later, the Complainant kicked back with a leg and was pulled down by the SO, his right side striking the ground. The officer then temporarily placed a knee on the Complainant’s head as other officers searched his person. The time was about 8:59 p.m.
The Complainant claimed that his jaw was broken. Paramedics were called to the scene and transported him to hospital where he was reportedly diagnosed with a broken nose and fractured right jaw.
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
On October 22, 2023, the TPS contacted the SIU to report that a male they had arrested the day before – the Complainant – had been diagnosed with serious injuries. The SIU initiated an investigation naming the 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 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.
I am satisfied that the SO was engaged in his lawful duties when he attended at the rear of the TCH building to assist in the Complainant’s custody. The evidence indicates that the Complainant had assaulted the provincial offences officer and that the officer and his colleague were within their rights in arresting him on that basis.
I am also satisfied that the force used by the SO against the Complainant was legally justified. The Complainant pushed back when WO #1 tried to push him towards the special constable’s cruiser ahead of a search and was warned to stop resisting by the SO. Thereafter, the officer had cause to ground the Complainant when he kicked back with a leg. This was the second of two assaults now perpetrated by the Complainant on law enforcement personnel and the officer was entitled to take steps to prevent a third such occurrence. With the Complainant on the ground, the SO and the other officers could better expect to manage any continuing resistance by the Complainant given his positional disadvantage. Moreover, while I accept that the takedown might have broken the Complainant’s nose and jaw, the video footage of the event did not depict any over-the-top force being brought to bear. Lastly, there is no overt indication in the video of the SO using unnecessary force as he positioned a knee on top of the Complainant’s head for several seconds while he was searched on the ground – he does not drop his knee on the head with any significant momentum, for example.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the subject official. The file is closed.
Date: February 16, 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.
I am satisfied that the SO was engaged in his lawful duties when he attended at the rear of the TCH building to assist in the Complainant’s custody. The evidence indicates that the Complainant had assaulted the provincial offences officer and that the officer and his colleague were within their rights in arresting him on that basis.
I am also satisfied that the force used by the SO against the Complainant was legally justified. The Complainant pushed back when WO #1 tried to push him towards the special constable’s cruiser ahead of a search and was warned to stop resisting by the SO. Thereafter, the officer had cause to ground the Complainant when he kicked back with a leg. This was the second of two assaults now perpetrated by the Complainant on law enforcement personnel and the officer was entitled to take steps to prevent a third such occurrence. With the Complainant on the ground, the SO and the other officers could better expect to manage any continuing resistance by the Complainant given his positional disadvantage. Moreover, while I accept that the takedown might have broken the Complainant’s nose and jaw, the video footage of the event did not depict any over-the-top force being brought to bear. Lastly, there is no overt indication in the video of the SO using unnecessary force as he positioned a knee on top of the Complainant’s head for several seconds while he was searched on the ground – he does not drop his knee on the head with any significant momentum, for example.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the subject official. The file is closed.
Date: February 16, 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]
- 3) Now know to be the TCH vehicle of CW #1. [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.