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:

• 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 Personal 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.

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

• 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.

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”).

Notification of the SIU[1]

On December 16, 2023, at 2:38 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

On December 16, 2023, at 1:30 a.m., a store on Front Street East was robbed at knifepoint. A call was made to 911 and a description of the suspect [now known to be the Complainant] was broadcast over the police radio. At 3:07 a.m., 51 Division police officers [Witness Official (WO) #1 and the Subject Official (SO)] located the Complainant at 297 Victoria Street. The officers, attired in plain clothes, identified themselves and attempted to arrest the Complainant. The Complainant resisted, and was grounded and handcuffed. He later complained of pain to his nose and was transported to St. Michael’s Hospital (SMH), where he was diagnosed with a fractured nasal bone.

The Team

Date and time team dispatched: 2023/12/16 at 2:55 p.m.

Date and time SIU arrived on scene: 2023/12/16 at 3:33 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

28-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on December 17, 2023.

Subject Official

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials

WO #1 Interviewed; notes received and reviewed

WO #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 January 23 and 30, 2024.

The Scene

The events in question transpired on the east sidewalk of Victoria Street in the vicinity of 285 Victoria Street, Toronto.

The scene was not held for the SIU, nor was it forensically evaluated or photographed by TPS.

Video/Audio/Photographic Evidence[2]

Body-worn Camera (BWC) Footage - WO #3 and WO #4

On December 16, 2023, starting at 3:08:30 a.m., WO #3 and WO #4 were captured travelling in a cruiser with emergency lights and siren activated.

At 3:08:58 a.m., the officers arrived on Victoria Street. On the concrete sidewalk on the east side of the street, the SO and WO #1, in plainclothes, were struggling with the Complainant on the ground. The Complainant was in a prone position with WO #1 on top of him. The SO was to the Complainant’s right side. They had him pinned to the ground. WO #3 grabbed the Complainant’s left hand and brought it behind his back. The SO controlled the Complainant’s right hand. There was no badge around the SO’s neck. WO #4 took control of the left hand from WO #3.

At 3:09:14 a.m., the Complainant said, "I’m not sure you was the police."

At 3:09:17 a.m., WO #3 handcuffed the Complainant’s hands behind his back.

The Complainant was stood up and escorted to the police cruiser. He was bent over the hood. WO #2 advised the Complainant was under arrest for robbery. WO #2 told him, "There’s no point in fighting anymore." The Complainant replied, "I don’t fight nobody!" At 3:10:48 a.m., WO #3 asked the Complainant where the knife was. The Complainant denied he had a knife. The Complainant’s left eye was completely swollen shut. He was searched up against the police vehicle and then placed inside the rear passenger compartment. BWCs were deactivated as the in-car camera system (ICCS) was activated.

ICCS Footage - WO #3 and WO #4

On December 16, 2023, at 3:08:25 a.m., WO #3 and WO #4’s cruiser travelled north on Victoria Street with emergency lights and siren activated. At 3:08:58 a.m., they stopped outside of 285 Victoria Street. The SO and WO #1 were kneeling on the east sidewalk struggled with the Complainant on the ground.

At 3:09:00 a.m., WO #3 and WO #4 ran to assist the SO and WO #1. The officers knelt next to the Complainant and held him down. WO #1 stood up. At 3:09:25 a.m., another uniformed police officer - WO #2 - arrived and stood nearby. At 3:09:38 a.m., WO #3 and WO #4 lifted the Complainant up and his hands were handcuffed behind his back. They escorted him to their cruiser where he was bent over the hood. WO #2 told the Complainant he was under arrest for robbery and to stop fighting. The Complainant’s left eye was swollen shut. He was searched. At 3:10:55 a.m., both the SO and WO #1 faced the camera and there was no badge visible.

At 3:13:02 a.m., the Complainant sat in a rear seat of the cruiser.

At 3:15:11 a.m., the SO faced the camera, and a badge was visible around his neck.

At 3:21:42 a.m., the cruiser turned around and travelled south on Victoria Street.

At 3:23:25 a.m., the cruiser arrived at SMH.

Business on Front Street East - Still Images from Video Footage

The photographs were still frame images of video footage from a robbery at a store on Front Street East on December 16, 2023, at 1:28:59 a.m. The photographs captured a man and the clothing he was wearing. The man also wore a scarf that covered the lower half of his face. There was no swelling to his eyes or face.

Video Footage - Toronto Metropolitan University

On December 16, 2023, at 3:06:34 a.m., a vehicle [unmarked police vehicle operated by the SO and WO #1] travelled north on Victoria Street. It stopped at the entrance of a parking garage on the west side of the street.

Starting at about 3:07:30 a.m., the SO and WO #1 ran towards a group of civilians who stood on the east sidewalk near a concrete bench. They approached a man - the Complainant.

Starting at about 3:07:35 a.m., the SO drew his firearm. WO #1 attempted to grab the Complainant but he backed away from her and climbed over the concrete bench.

At 3:07:38 a.m., the SO holstered his firearm. At 3:07:40 a.m., the Complainant and both officers moved south and out of the camera frame.

Starting at about 3:11:44 a.m.,[3] the SO and WO #1, and the Complainant, re-appeared on camera further south. The Complainant and the SO and WO #1 held onto each other as they grappled in an upright position. The Complainant punched and kicked the officers. He punched the SO in the face.

At 3:11:49 a.m., the SO punched the Complainant in the face.

At 3:11:52 a.m., WO #1 fell to the ground and the Complainant let go of her.

At 3:11:53 a.m., the Complainant punched the SO twice in the head. They continued to grapple with each other until the Complainant fell backwards. The SO fell forwards. WO #1 stood up. The SO and the Complainant wrestled on the ground.

At 3:11:57 a.m., the SO was on the Complainant’s left side and punched him, but it was unclear where the punch connected. The Complainant propped himself up onto his knees with his hands on the ground. WO #1 engaged again and wrestled with the Complainant. The Complainant stood up and took several steps forward while the SO and WO #1 held him.

At 3:12:06 a.m., the SO placed his left leg in front of the Complainant, who tripped, and together they fell to the ground. The Complainant landed on his outstretched hands in a kneeling position. The SO knelt on the Complainant’s right side. He attempted to control the Complainant’s right arm. WO #1 stood bent over the Complainant’s back.

At 3:12:12 a.m., the SO swung his right fist upwards into the Complainant’s face three times. The Complainant touched his face with his left hand.

At 3:12:15 a.m., the SO swung his right fist upwards into the Complainant’s face twice more. The Complainant remained kneeling with both of his hands planted on the ground. He appeared to try and stand up. WO #1 was still upright and bent over the Complainant’s back. She punched downwards twice with her right fist which appeared to hit either the back of the Complainant’s head or the left side of his face. A crowd of civilians gathered around. The SO moved forward and held the Complainant’s right wrist.

At 3:12:39 a.m., WO #1 punched downwards five times and appeared to strike the back of the Complainant’s head or the left side of his face.

At 3:12:43 a.m., the SO punched upwards twice with his right fist into the Complainant’s face.

At 3:12:49 a.m., the SO punched upwards again but it could not be determined where the strike connected on the Complainant.

At 3:12:55 a.m., the Complainant was in a prone position with his hands outstretched in front of him. The SO and WO #1 still struggled to control the Complainant’s hands.

At 3:13:00 a.m., the SO had successfully moved the Complainant’s right hand behind his back. Emergency lights from a police vehicle flashed from out of camera frame.

At 3:13:04 a.m., two police officers – WO #3 and WO #4 – arrived. WO #1 stepped away from the Complainant.

At 3:13:32 a.m., a police officer - WO #2 - arrived.

At 3:13:43 a.m., the Complainant was stood upright by WO #3 and WO #4. The Complainant was escorted to their cruiser, and he was bent over the hood.

Communications Recordings

On December 16, 2023, at 1:33:47 a.m., an employee of a store on Front Street East called 911 and reported that a man [the Complainant] had robbed the store at knifepoint. The Complainant had threatened two store employees with the knife and stolen cigarettes. They provided a physical description of the Complainant.

At 1:39:30 a.m., a police officer broadcast additional physical description details obtained from the store employees. The Complainant wore a bandana which covered his face. He was last seen headed eastbound on Front Street.

At 3:06:45 a.m., the SO advised he believed that he had found the Complainant. He was at 297 Victoria Street.

At 3:08:08 a.m., WO #1 requested an additional unit.

At 3:09:08 a.m., WO #2 advised the Complainant was in custody.

At 3:10:05 a.m., WO #2 requested an ambulance because the Complainant bled from his face.

At 3:16:05 a.m., WO #2 cancelled the ambulance and advised that officers [WO #3 and WO #4] would transport the Complainant to SMH. The Complainant’s eye was swollen shut.

At 3:16:26 a.m., WO #2 advised the SO might have a dislocated shoulder and he too would be transported to SMH as well.

Video Footage – SMH

On December 16, 2023, at 3:25:02 a.m., the Complainant arrived at SMH in the custody of WO #3 and WO #4. The Complainant was escorted to the emergency room waiting area. His hands were handcuffed behind his back. WO #1 and the SO were already in the waiting area at the triage desk. The SO sat at the triage desk and WO #1 stood behind him. WO #3 and WO #4 escorted the Complainant to the far side of the waiting room, away from the SO and WO #1.

At 3:31:15 a.m., the Complainant stood as he faced a wall. WO #3 and WO #4 each held one of the Complainant’s arms.

At 3:32:27 a.m., and 3:33:56 a.m., the Complainant appeared to pull away from WO #3 and WO #4, but they remained in control of him.

At 3:35:28 a.m., the Complainant cocked his head back and slammed it into a wall in front of him. It could not be determined which part of the Complainant’s head or face connected with the wall.

At 3:35:45 a.m., WO #3 and WO #4 attempted to place the Complainant into a chair but he resisted and struggled. WO #3 and WO #4 had to knee the Complainant in the upper thigh to get him to sit down. Civilians in the area moved away. A hospital security guard arrived with a wheelchair and the Complainant was seated in it.

At 3:46:30 a.m., the Complainant was wheeled away to another hospital room.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the TPS between December 19, 2023, and January 31, 2024:

• General Occurrence Report;
• Computer-aided Dispatch Report;
• BWC footage;
• ICCS footage;
• Communications recordings;
• Policy - Use of Force;
• Business on Front Street East - Photographs of the Complainant;
• Notes – WO #1;
• Notes – WO #2;
• Notes – WO #3;
• Notes – WO #4; and
• Scenes of Crime Officer photographs.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between January 8, 2024, and January 18, 2024:

• Video footage from Toronto Metropolitan University (285 Victoria Street);
• Video footage from SMH; and
• The Complainant’s medical records from SMH.

The evidence collected by the SIU, including an interview with the Complainant and an officer that took part in his arrest – WO #1, as well as video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the early morning of December 16, 2023, the SO and WO #1, working together in plain clothes, were on the lookout for the Complainant. The TPS had received a 911 call regarding an armed robbery at a store on Front Street East. The suspect, subsequently identified as the Complainant, had wielded a knife during the robbery and stolen cigarettes. The officers located him on the east sidewalk of Victoria Street between Dundas Street East and Gould Street. They exited their vehicle and moved towards the Complainant.

At the sight of the SO and WO #1 approaching, the Complainant backed away. The parties moved southbound a distance and began to grapple with each other. The Complainant punched and kicked at the officers. The SO punched back. The parties ended up on the ground as the struggle continued. The officers repeatedly punched the Complainant about the head and face until they managed to pin him flat on the ground. Moments later, with the arrival of additional officers, the Complainant’s arms were controlled behind the back and handcuffed.

The Complainant was transported to hospital by police and diagnosed with a broken nose.

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.

The Complainant was diagnosed with a serious injury following his arrest by TPS officers on December 16, 2023. The SIU was notified of the incident and 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 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 fit the description of the male who had reportedly committed an armed robbery at a store. In the circumstances, I am satisfied that the SO and WO #1 were within their rights in seeking to take him into custody for robbery.

I am also satisfied that the force used by the officers against the Complainant was within the range of legally justified force. The Complainant vigorously resisted his arrest, repeatedly punching at the officers. The officers were entitled to meet the Complainant’s force with force of their own, and they did so in like manner, delivering punches of their own. While the officers eventually got the better of the Complainant – delivering significantly more punches than they absorbed – the law does not require parity. While officers must measure their force with proportionality in mind, they are entitled to resort to greater force where such force is necessary to overcome an arrestee’s resistance. In the context of a combative individual, whom the officers had reason to believe was armed with a knife, striking out at the officers and steadfastly struggling against their efforts to take him into custody, I am satisfied that the SO and WO #1 did no more than that. Once the Complainant was effectively subdued and prone on the ground, no more strikes were delivered.

It remains unclear when and how the Complainant’s broken nose was incurred. There is evidence that it was self-inflicted when, while at the hospital waiting to be seen, the Complainant slammed his head into a wall. Be that as it may, as there are no reasonable grounds to conclude that either the SO or WO #1 comported themselves other than lawfully in their dealings with the Complainant, there is no basis for proceeding with criminal charges. The file is closed.

Date: April 12, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit