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 46-year-old man (the “Complainant”).

Notification of the SIU[1]

On February 7, 2024, at 3:19 a.m., the York Regional Police (YRP) contacted the SIU with the following information.

On February 6, 2024, at about 7:15 p.m., plainclothes officers with a residential break and enter (B&E) task force were surveilling a vehicle. An operational plan was in place whereby officers would observe the two occupants of the vehicle commit a B&E and then arrest them prior to their getting back in their vehicle. As the two individuals - the Complainant and the Civilian Witness (CW) - exited a residence, they were confronted by officers. There was a brief struggle and both men were grounded, handcuffed and transported to 2 District Station for follow-up investigation. Sometime thereafter, the Complainant complained of facial pain and was transported to MacKenzie Health (MH) in Richmond Hill. It was believed the Complainant had suffered a fractured nasal bone and a brain bleed.

The Team

Date and time team dispatched: 2024/02/07 at 5:50 a.m.

Date and time SIU arrived on scene: 2024/02/07 at 6:51 a.m.

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on March 6, 2024.

Civilian Witness (CW)

CW Not interviewed (declined)

Subject Officials (SO)

SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right

SO #2 Declined interview and to provide notes, as is the subject official’s legal right

The subject official was interviewed on March 26, 2024.

Witness Officials (WO)

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

WO #5 Interviewed; notes received and reviewed

WO #6 Interviewed; notes received and reviewed

WO #7 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed between February 16, 2024, and March 5, 2024.

The Scene

The events in question transpired on Roxborough Road between Bogart Avenue and Srigley Street, Newmarket.

Figure 1 – Scene of the arrest on Roxborough Road

Video/Audio/Photographic Evidence[2]

YRP Custody Video – Booking Hall

On February 6, 2024, starting at about 8:04 p.m., a sergeant was captured at the booking hall desk. A police officer walked in with the Complainant, whose hands were handcuffed behind the back. He had red scratches and marks on his forehead and nose. He was sat on a bench. A police officer advised the sergeant that Emergency Medical Services (EMS) had been requested.

Starting at about 8:05 p.m., the Complainant said, “Doctor! Doctor!” He did not speak fluent English.

Starting at about 8:07 p.m., the sergeant secured an interpreter on a speaker phone. The interpreter indicated on behalf of the Complainant that he had been beaten up on the street. He complained that his liver was hurt, his heart was troubled, and he was feeling nauseous and unwell. He wanted to file a complaint.

Starting at about 8:16 p.m., the Complainant said he was beaten by feet and his liver was damaged. The sergeant said EMS had been called.

Starting at about 8:18 p.m., three paramedics entered the booking hall, and the sergeant secured an interpreter. The sergeant told the paramedics that the Complainant had been arrested for B&E.

Starting at about 8:24 p.m., the Complainant said, through the interpreter to the paramedic, that he had a history of heart problems that could lead to a stroke, and that he had liver surgery several years ago after a car accident. The Complainant said he was beaten by feet, felt dizzy and had a headache. He also had blurry vision and his abdomen hurt.

Starting at about 8:29 p.m., the paramedic put a neck brace on the Complainant because he complained about neck pain.

Starting at about 8:35 p.m., the Complainant was put on a stretcher and assessments were made.

At 8:40 p.m., the Complainant was removed from the booking hall and taken to MH.

YRP Radio Communications

At 7:17 p.m., February 6, 2024, WO #3 broadcast that two men were in custody.

Video Footage from a Residence

The video was reviewed and found not to have captured the arrest. It was of no evidentiary value to the investigation.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the YRP between February 7, 2024, and February 13, 2024:

• Detailed Call Summary;
• Initial Officer Report;
• Notebook entries – WO #6, WO #1, WO #2, WO #4, WO #7 [dog handler], WO #5, and WO #3;
• Policy – Processing the Offender – Arrest, Provincial Offences and Release;
• Policy – Use of Force;
• Warrant– the CW;
• The Complainant – YRP local records;
• Custody video of booking hall, sally port and cell corridor;
• Scene photos;
• In-car camera footage; and
• Communications recordings.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between March 18, 2024, and March 21, 2024:

• Video footage from a residence; and
• The Complainant’s medical records from MH.

The evidence collected by the SIU, including interviews with the Complainant, SO #1 and other police witnesses, gives rise to the following scenario. As was his legal right, SO #2 chose not to interview with the SIU or authorize the release of his notes.

In the evening of February 6, 2024, a team of YRP plainclothes officers followed the Complainant and an associate, the CW, to an address in Newmarket. The officers – members of the YRP Integrated Property Crimes Task Force – were investigating the Complainant and the CW for residential break and enters. SO #1 and SO #2 were part of the team. The plan was to catch the Complainant and the CW following an incident of break and enter, and to arrest them before they returned to their vehicle.

At about 7:10 p.m., SO #1, looking through the front window of a house in the area of Srigley Street and Alexander Road, observed two men wearing masks. Minutes later, after the Complainant and the CW were seen walking west on Srigley Street, the officer entered the residence and indicated that the kitchen had been ransacked. He broadcast this information to his team and confirmed that grounds existed to arrest the Complainant and the CW.

The Complainant and the CW turned north from Srigley Street onto Roxborough Road and walked a short distance before they were confronted by police officers. The Complainant was first approached by SO #2. The officer was soon joined by SO #1 and WO #3, and the three handcuffed the Complainant behind the back.

The CW was taken into custody by other officers.

The Complainant was transported to the station and then to hospital when he complained of feeling unwell. He was 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 seriously injured in the course of his arrest by YRP officers on February 6, 2024. The SIU was notified of the incident and initiated an investigation naming SO #1 and SO #2 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.

In light of the personal observations of SO #1 and the fact that the vehicle that the Complainant and the CW had taken to the scene was identified in a warrant for break and enter offences, I am satisfied that the subject officials were within their rights in moving to arrest the Complainant for break and enter.

I am also satisfied that the evidence falls short of any reasonable suggestion that excessive force was brought to bear by the subject officials in aid of the Complainant’s arrest. There is a version of events proffered in the evidence that the Complainant promptly went to ground when confronted by officers and had effectively surrendered to them but was nevertheless struck repeatedly by multiple officers after he was handcuffed. This account, however, is contested by the evidence of SO #1 and WO #3. They say that they arrived at the Complainant’s location to find him on the ground refusing to release his arms to SO #2 to be handcuffed. They each intervened to assist SO #2, SO #1 delivering a single punch to the head and WO #3 striking the Complainant several times to the torso. According to the officers, the strikes were intended to overcome the Complainant’s resistance and assist in securing control of his arms, and were successful to that end. Given the nature of the offence that the officers reasonably believed the Complainant had just committed, they say they were concerned about the possibility of weapons on his person that might be accessed. That seems a reasonable concern in the circumstances. Neither officer saw SO #2 deliver any blows. On the evidence proffered by the police, the quantum of force would not appear indiscriminate. Given this conflict in the evidence, I am unable to reasonably conclude that the account depicting undue force by the officers is sufficiently cogent or probable to warrant being put to the test by a court. As for the injury, it is equally consistent with both versions of events.

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

Date: June 6, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit