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 40-year-old man (the “Complainant”).

Notification of the SIU[1]

On October 11, 2023, at 7:48 p.m., an online inquiry was received by the SIU from the Complainant. After several attempts, contact was made with the Complainant on October 17, 2023. The Complainant provided the following information.

On July 25, 2023, the Complainant was in the area of Bernard Avenue and St. George Street, Toronto, when he was arrested by members of the Toronto Police Service for ‘mischief under $5000’, handcuffed, and transported to Mount Sinai Hospital (MSH). The Complainant reported that he sustained soft tissue injuries to both arms and several minor lacerations to his right wrist as a result of the handcuffing. Approximately two weeks after the arrest, the Complainant said that the injury to his right wrist manifested and he was required to seek further medical treatment.

The Complainant subsequently provided supporting documents that indicated on August 7, 2023, he returned to MSH, where he was admitted and diagnosed with cellulitis[2] to his right arm, reportedly caused by wounds sustained during his handcuffing on July 25, 2023. The Complainant remained in MSH until his release on August 11, 2023.

Further to this diagnosis, the Complainant returned to MSH on August 29, 2023, where he was admitted for further treatment and subsequently released on August 31, 2023.

On October 18, 2023, the TPS was contacted and advised of the SIU investigation.

The Team

Date and time team dispatched: 2023/10/19 at 9:23 a.m.

Date and time SIU arrived on scene: 2023/10/19 at 1:00 p.m.

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on October 19, 2023.

Subject Official (SO)

SO Interviewed; notes received and reviewed

The subject official was interviewed on February 22, 2024.

Witness Official (WO)

WO Interviewed; notes received and reviewed

The witness official was interviewed on February 12, 2024.

The Scene

The events in question transpired outside a residence in the area of Bernard Avenue and St. George Street, Toronto.

The scene was not examined by SIU investigators as the interaction occurred three months prior to the incident being reported.

Video/Audio/Photographic Evidence[3]

Body-worn Camera (BWC) Footage - The WO

On July 25, 2023, at 12:24:15 a.m., the footage commenced with a street view in the area of Bernard Avenue and St. George Street, Toronto. The Complainant was captured standing on the street at the driver side door of an ambulance. He held papers in his left hand. As the SO approached, the Complainant dropped the papers and stood with his back to the ambulance. The SO grabbed the Complainant by his right wrist and placed his arm behind his back while the WO grabbed the left arm and placed it behind his back. The Complainant was positioned with his chest against the ambulance as the SO handcuffed the Complainant. The Complainant informed the officers that he was a “human source” for Canadian Security Intelligence Services (CSIS), and he should be released immediately. The Complainant was searched by the SO.

Starting at about 12:28 a.m., the SO instructed the Complainant to sit in the rear driver side seat of a cruiser; he refused. The SO and the WO pushed the Complainant headfirst into the cruiser, and the Complainant became belligerent and uncooperative. He kicked at the door.

Starting at about 12:42 a.m., the Complainant asked the WO to loosen the handcuffs, and he replied, “No.” The Complainant was removed from the cruiser and made to stand, and leg restraints were attached to his ankles by the WO. He was then returned to the rear seat of the cruiser, where he yelled that CSIS was recording the officers’ behaviours through his eyeballs.

Starting at about 12:48 a.m., the Complainant was removed from the cruiser due to his behaviour and then made to sit in an upright position in the rear passenger seat. Again, the Complainant returned to a lying position and hung his feet out so that the door could not be closed. The Complainant shouted, “They’re restraining my wrist, oh my God, it’s burning.” The Complainant again assumed a lying position between the rear seat and the retaining wall of the front seats.

Starting at about 1:02 a.m., the Complainant was removed and placed on a gurney.

BWC Footage – Officer #1

On July 25, 2023, at 12:57:58 a.m., the video opened with a street view. Two fully marked TPS SUV cruisers were parked to the left of the camera frame. The rear passenger door of a cruiser was open, and the Complainant sat with his hands handcuffed behind his back. He was seated in the rear seat and spoke with officers.

The Complainant leaned back onto his handcuffed hands and said, “This hurts.” The Complainant was uncooperative and continued to roll around on his handcuffs in the rear seat of the cruiser. The Complainant was informed that he had been arrested for mischief.

It was decided by the officers that due to the Complainant’s behaviour and lack of cooperation in remaining seated, he would be removed from the cruiser, placed onto a gurney, and taken to hospital. The Complainant was intoxicated and claimed to work for CSIS. The officers believed that once the Complainant’s sobriety improved, he would be held for a psychiatric evaluation.

Starting at about 1:02 a.m., Officer #1 and another officer took the Complainant by the biceps and led him to a gurney that was less than half-a-metre away. The Complainant buckled at the knees and shouted. He was placed on a gurney with little force used by the officers. The Complainant continued to shout, and his legs were positioned onto the gurney. The Complainant was instructed to lie on his back. He complied, but then rolled onto his side and shouted, “Ow, I can’t.” The Complainant asked for the handcuffs to be repositioned to the front. He was given a sedative in his left bicep by paramedics. Officer #1 told the Complainant that his handcuffs would be repositioned to the gurney, and he said, “Please, they really hurt.” The Complainant’s hands were then handcuffed to the rails and double-locked. The Complainant was placed in the ambulance and transported to MSH.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from TPS between October 19, 2023, and November 14, 2023:

• Footage from BWCs of Officer #2, the WO, the SO, Officer #3, Officer #4, Officer #5, and Officer #1;
• Notebook entries – the WO and the SO;
• General Occurrence Report; and
• Event Details.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between October 19, 2023, and November 14, 2023:

• Photograph of right hand, received from the Complainant;
• Toronto Paramedic Report – the Complainant; and
• MSH medical records – the Complainant.

The evidence collected by the SIU, including interviews with the Complainant and the SO, and video footage that captured the incident in parts, gives rise to the following scenario.

In the early morning of July 25, 2023, officers were dispatched to an address in the area of Bernard Avenue and St. George Street, Toronto, to deal with a male who had caused damage to an ambulance. The SO and the WO arrived on scene and spoke with paramedics, who identified the male responsible for the damage.

The male was the Complainant. The Complainant was of unsound mind at the time.

The SO and the WO arrested the Complainant for mischief in relation to the damage caused to the ambulance. The Complainant was pressed against the side of the ambulance, handcuffed behind the back by the SO, searched and placed in the rear of a cruiser.

The Complainant was highly agitated. He flailed his legs and laid on his back inside the cruiser, and was eventually fitted with leg restraints. Concerned about his mental health, the Complainant was arrested under the Mental Health Act and transported to hospital in an ambulance.

In the weeks following his arrest, the Complainant spent time in hospital for treatment of cellulitis to his right arm. The medical records indicated that the infection was secondary to the application of handcuffs by the police on July 25, 2023.

Sections 219 and 221, Criminal Code - Criminal Negligence Causing Bodily Harm

219 (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

221 Every person who by criminal negligence causes bodily harm to another person is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or (b) an offence punishable on summary conviction.

On October 17, 2023, the Complainant contacted the SIU to report that he had contracted cellulitis as a result of his handcuffing by TPS officers in the course of his arrest on July 25, 2023. 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 infection.

The offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s cellulitis. In my view, there was not.

There are no questions raised in the evidence regarding the lawfulness of the Complainant’s arrest. He had purposefully damaged an ambulance and was subject to arrest on that basis.

With respect to the care afforded the Complainant while in custody, I am satisfied that the SO did not transgress the standard prescribed by the criminal law. It might well be that the cuts to the Complainant’s wrist were the result of the handcuffs, but I am unable to reasonably conclude they were applied too tightly in breach of the criminal standard or that that was the reason for the cuts. There is evidence from the police that the SO sanitized his handcuffs after every use, and that he had double-locked the handcuffs on the Complainant to prevent them inadvertently tightening. There is also evidence that the cuts might have been caused by the Complainant’s movements in the cruiser with his arms handcuffed behind the back. On this record, the evidence of criminal negligence is insufficiently cogent or probable to warrant being put to the test by a court.

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

Date: July 17, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit