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 31-year-old man (the “Complainant”).

Notification of the SIU[1]

On January 28, 2024, at 6:16 a.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

At 1:13 a.m., TPS received multiple calls reporting that a car had driven into a pole at 28 Walsh Avenue. One witness had video recorded the incident and was assaulted by the driver, who stole his cell phone before fleeing the scene. At 1:38 a.m., officers found the driver [now known to be the Complainant] at 1677 Wilson Avenue and arrested him. He was bleeding from the nose and/or lip and taken to Humber River Hospital (HRH). A computed tomography scan was performed, and he was diagnosed with a nasal bone fracture.

The Team

Date and time team dispatched: 2024/01/28 at 7:25 a.m.

Date and time SIU arrived on scene: 2024/01/28 at 7:54 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

31-year-old male; not interviewed (declined)

Subject Official (SO)

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

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

The witness officials were interviewed on February 6, 2024.

The Scene

The events in question transpired in and around the intersection of Wilson Avenue and Dallner Road, Toronto.

Figure 1 – Google Earth aerial view of the scene with the location of the arrest circled in red (added)

Video/Audio/Photographic Evidence[2]

In-car Camera (ICC) Footage – WO #1, Officer #1 and Officer #2[3]

On January 28, 2024, at 1:28:00 a.m., WO #1 was captured arriving at a collision scene where a car had struck a pole. There was a fire truck on scene and people standing nearby.

At 1:34:00 a.m., WO #1 returned to his cruiser. He told the dispatcher that the driver had run off and provided a description. The officer drove eastbound on Wilson Avenue.

At 1:37:00 a.m., WO #1 slowed behind a person - the Complainant - dressed in dark clothing with white shoes. He was walking on the south sidewalk. WO #1 activated his emergency lights and followed the Complainant. WO #1 then stopped, exited his cruiser and spoke face-to-face with the Complainant for about one minute.

At 1:39:30 a.m., WO #1 raised his left hand in a ‘come here’ motion. The Complainant turned and ran away. WO #1 gave chase.

At 1:40 a.m., WO #2 and the SO arrived on scene. They were about 100 metres east of where WO #1’s cruiser had stopped. The officers were too far from the cameras to ascertain what was happening.

At 1:41:00 a.m., a minute after the interaction began, Officer #1 and Officer #2 arrived on scene. WO #1, WO #2 and the SO were holding the Complainant down on the ground.

The Complainant was subsequently escorted to the front driver side of Officer #1 and Officer #2’s cruiser. WO #1 told the Complainant that he was under arrest for ‘fail to remain’ and ‘assault peace officer’. The Complainant had blood on his left cheek.

At 1:44:00 a.m., the Complainant was placed into the rear driver side of Officer #1 and Officer #2’s cruiser. He kicked at the door as they tried to close it.

At 1:46:00 a.m., a police officer told the Complainant that he was under arrest, read him his rights and a police caution, and demanded a sample of his breath. Officer #1 and Officer #2 left the scene and drove the Complainant to HRH.

At 1:58:00 a.m., Officer #1 and Officer #2 arrived in the ambulance bay. The rear driver side door of Officer #1 and Officer #2’s cruiser was opened. The Complainant got out and was seated in a wheelchair.

At 5:01 a.m., the Complainant was returned to the rear seat of Officer #1 and Officer #2’s cruiser. He wore a hospital gown and had a bandage on his nose. The Complainant was driven, uneventfully, to 31 Division.

Body-worn Camera (BWC) Footage - WO #1

At 1:30 a.m., WO #1 was at a motor vehicle collision on Wilson Avenue near Mathews Gate, Toronto. Also present was Toronto Fire Services. There was a vehicle with extensive front end damage near a traffic light pole at the intersection. WO #1 spoke with civilian witnesses about the collision. He learned that a man had lost control of the vehicle and struck the pole. The male had exited and attempted to take a cell phone from an unknown woman before running east on Wilson Avenue.

At 1:34 a.m., WO #1 advised the dispatcher of the male’s description. WO #1 drove his cruiser eastbound from the scene.

At 1:40 a.m., the Complainant was captured in the centre of Wilson Avenue, running backwards away from WO #1 near the Toronto Plaza Hotel [1677 Wilson Avenue]. He ran onto the southern sidewalk as another TPS cruiser approached from the east.

The Complainant ran back onto the roadway and evaded WO #1. The SO approached and attempted to grab the Complainant, who swung around and struck the SO. The SO fell to the ground and landed on his back.

The Complainant stepped away from the SO and swung twice at WO #1. He then returned to the SO, who was getting up from the ground. The Complainant punched the SO. WO #2 arrived and took hold of the Complainant’s left shoulder while WO #1 took hold of his right shoulder and grounded the Complainant.

The three officers knelt around the Complainant and gave repeated commands for him to put his hands behind his back. The SO delivered one or more punches to the Complainant’s head area.

At 1:41 a.m., the Complainant’s hands were handcuffed behind his back. Officer #1 arrived and escorted the Complainant to his cruiser.

WO #1 told the Complainant he was under arrest.

At 1:46 a.m., WO #1 requested an ambulance for the SO and advised he might have broken his hand. WO #1 had a conversation with Officer #2 about charges against the Complainant. The SO commented that the Complainant had swung at everyone and that he had injuries to his hand and knee.

BWC Footage - WO #2

On January 28, 2024, starting at about 1:40 a.m., WO #2 parked his cruiser on Wilson Avenue. He then ran around the rear of it and as he turned towards the right side, another TPS officer - the SO - had one knee on the ground with his right arm up protecting his head. Directly in front of the SO was the Complainant in a fighting posture with both arms raised. As the SO got to his feet, the Complainant swung at him with a right fist. A second officer in a reflective jacket - WO #1 - approached from the opposite side. The SO swung at the Complainant with his right arm, in a downward punch. The Complainant then swung again at the SO with a right-handed punch. WO #2 had closed the gap to the Complainant and took control of his right side, while WO #1 took his left side. There was a brief struggle while upright before WO #1 took the Complainant to the ground. The Complainant landed on his back.

The three officers struggled with the Complainant, who actively resisted. He was told repeatedly to put his hands behind his back. The three officers rolled the Complainant onto his stomach and, after further struggle, placed both hands behind his back and handcuffed him.

At 1:41 a.m., Officer #1 approached and took control of the Complainant, walking him to the front of his cruiser.

WO #1 told the Complainant he was under arrest for ‘fail to remain’, ‘assault peace officer’, and ‘resist arrest’.

At 2:06 a.m., the Complainant was removed from the rear of a cruiser by Officer #2 and, with assistance from Officer #1, he was placed in a wheelchair. Officer #1 removed the handcuff from the left wrist of the Complainant and secured it to the right side of the wheelchair. WO #2 had control of his left arm and Officer #1 used a second pair of handcuffs to secure the Complainant to the left side of the wheelchair.

Radio Communications

On January 28, 2024, at 1:12 a.m., a man called 911 and reported that a car had crashed into a pole. He said people were helping the driver out of the car.

At about 1:14 a.m., a woman called 911. She said the driver had run back and forth and wanted to take her phone while she was recording. She said he ran away. She provided a description of the Complainant and what he was wearing.

At 1:34 a.m., WO #1 said the Complainant had fled the scene on foot. He provided a description, including clothing.

At 1:39 a.m., WO #1 asked if the dispatcher had another police officer coming. He then said the Complainant was running eastbound on Wilson Avenue.

At 1:41 a.m., a male voice said, “They have one in custody. All in order.” An ambulance was requested. As the TPS communicator spoke to the ambulance call-taker, she amended the request to two ambulances, one for each of two police officers who were injured.

Video Footage - 1677 Wilson Avenue

On January 28, 2024, at 1:39 a.m., the Complainant entered the video and ran east in the eastbound lanes of Wilson Avenue. The Complainant was pursued by a uniformed police officer with a reflective jacket - WO #1 - who was approximately ten seconds behind. The Complainant stopped running, turned and looked west, and then began to sidestep into the westbound lanes of Wilson Avenue.

At 1:40 a.m., the Complainant continued southeast and entered the southern boulevard of Wilson Avenue near the east roadway exit of 1677 Wilson Avenue. At that time, a marked TPS cruiser drove southwest towards him. The Complainant changed his course of travel and started northwest across Wilson Avenue.

WO #1 and the TPS cruiser converged on the Complainant, who began to circle in the middle of the roadway. Two officers in uniformed jackets exited their cruiser and ran to the Complainant along with the third officer on foot.

The three officers and the Complainant appeared to circle around each other in the roadway.

At 1:40:36 a.m., the Complainant was on the ground. Even under maximum magnification, how the Complainant was taken to the ground could not be discerned. The view was also partially obstructed by a tree on the south side of Wilson Avenue.

At 1:41:43 a.m., a second TPS cruiser entered eastbound on Wilson Avenue and stopped in the curb lane, blocking the view of the Complainant and the officers on the ground.

At 1:43:16 a.m., the Complainant was observed with two uniform officers at the left rear side of the second cruiser which was parked in the curb lane of Wilson Avenue. It appeared that one officer searched the Complainant.

At 1:44:21 a.m., the Complainant was seated in the rear of a cruiser.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the TPS between January 29, 2024, and February 9, 2024:

• General Occurrence/Supplementary Report;
• Event Chronology;
• BWC footage – WO #1, WO #2, Officer #1 and Officer #2;
• ICC footage – WO #1 and WO #2;
• Duty notes – WO #1;
• Duty notes – WO #2; and
• Radio communications.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on February 2, 2024:

• Video footage from 1677 Wilson Avenue.

The evidence collected by the SIU, including video footage that captured the incident in parts, 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 early morning of January 28, 2024, WO #1 arrived at the scene of a single motor vehicle collision. A vehicle travelling westbound on Walsh Avenue had traversed the eastbound lanes and crashed by the southwest corner of the road’s intersection with Mathews Gate. There were no occupants in the wreckage by the time of the officer’s arrival. Witnesses indicated that a male, whom they described, had exited the vehicle and left travelling eastbound on Walsh Avenue towards Wilson Avenue.

WO #1 set off to locate the male and came across the Complainant walking on the south sidewalk in the vicinity of 1677 Wilson Avenue. The Complainant fit the description of the male provided by the witnesses. The officer stopped his cruiser, called-out to the Complainant, and then approached him. The two spoke for a period before the Complainant left making his way eastward on the sidewalk and then onto Wilson Avenue. WO #1 followed and managed to grab the Complainant but lost his grip. By this time, another cruiser was arriving from the east.

The SO and his partner, WO #2, in the area on another matter, came across WO #1 and the Complainant and stopped to assist. The SO approached the Complainant and was thrown to the ground. He righted himself and was struck again by the Complainant. Shortly thereafter, WO #1 and WO #2 forced the Complainant onto the roadway, the latter delivering several punches in the process. The Complainant’s combativeness continued on the ground – he flailed his legs, struck WO #1 in the face and refused to release his arms to be handcuffed. WO #1 responded with several knee strikes to the torso and the SO with a couple of punches to the face, after which the officers managed to wrestle control of the Complainant’s arms behind his back and secure them in handcuffs.

Following his arrest, the Complainant was taken to hospital and diagnosed with a fractured 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.

Section 200(1)(a), Highway Traffic Act – Duty of Person in Charge of Vehicle in Case of Accident

200 (1) Where an accident occurs on a highway, every person in charge of a vehicle

or street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident;

Section 217(2), Highway Traffic Act - Arrest Powers

217 (2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9 (1), subsection 12 (1), subsection 13 (1), subsection 33 (3), subsection 47 (5), (6), (7) or (8), section 51, 53, subsection 106 (8.2), section 130, 172 or 184, subsection 185 (3), clause 200 (1) (a) or subsection 216 (1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention.

The Complainant was seriously injured in the course of his arrest by TPS officers on January 28, 2024. 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.

I am satisfied that WO #1 was within his rights in attempting to take the Complainant into custody. The Complainant fit the description of the male seen leaving the scene of a motor vehicle collision. He was, accordingly, subject to arrest by virtue of sections 200(1)(a) and 217(2) of the Highway Traffic Act.

I am also satisfied that the force brought to bear by the officers was legally justified. The Complainant put up a spirited fight to resist arrest. He punched at the officers, striking and knocking one off his feet, flailed his legs, and struggled against their efforts to take him into custody. The officers responded in like manner, first, by taking him to the ground where they could better manage any further violence and, then, with several additional strikes when the Complainant continued to resist. These tactics, it seems to me, were reasonable and proportionate. With specific reference to the SO’s punches when the Complainant was on the ground, one or more of which likely caused the injury, it bears noting that the officers were in live lanes of traffic. Though the Complainant was effectively pinned at that point by WO #1 and WO #2, he had yet to be handcuffed and the officer could not be sure that his fight had abated. As time was of the essence, the SO was entitled, in the circumstances, to respond with sharp and decisive force to facilitate a prompt resolution of the hostilities. No strikes were delivered after the Complainant was handcuffed.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: May 22, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit