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 48-year-old man (the “Complainant”).

Notification of the SIU[1]

On April 2, 2024, at 11:57 p.m., the York Regional Police (YRP) contacted the SIU with the following information.

On April 2, 2024, at approximately 5:00 p.m., the Complainant was reported to have attended a car dealership in the Vaughan area where he asked to test drive a vehicle. In the area of the Highway 407 and Woodbine Avenue, the Complainant stopped the vehicle and pushed the employee out. The Complainant then fled the area followed by a stolen Range Rover. Global Positioning System (GPS) data were obtained in connection with the vehicle driven by the Complainant and the YRP initiated a surveillance operation. Just prior to 7:45 p.m., the Complainant’s vehicle, followed by the Range Rover, was observed by police arriving in an underground parking garage located in the area of Highway 7 and Weston Road, Vaughan. The occupants exited and were arrested by police. The Complainant was reported to have been armed with a screwdriver. Following the arrest, the Complainant complained of chest pain. Emergency Medical Services (EMS) was requested and transported the Complainant from the scene to the Cortellucci Vaughan Hospital (CVH) where he was diagnosed with a non-displaced rib fracture.

The Team

Date and time team dispatched: 2024/04/03 at 7:10 a.m.

Date and time SIU arrived on scene: 2024/04/03 at 10:11 a.m.

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on April 3, 2024.

Subject Official (SO)

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

The subject official was interviewed on April 11, 2024.

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Not interviewed; notes reviewed and interview deemed unnecessary

WO #3 Not interviewed; notes reviewed and interview deemed unnecessary

WO #4 Not interviewed; notes reviewed and interview deemed unnecessary

The witness official was interviewed on April 4, 2024.

The Scene

The events in question transpired in the underground parking of a building situated in the area of Highway 7 and Weston Road, Vaughan.

Video/Audio/Photographic Evidence[2]

YRP 911

Three 911 calls were made regarding a carjacking at a car dealership in Markham. A salesperson had reportedly taken a man for a test drive. He had pushed the salesperson out of the vehicle on the westbound lanes of Highway 407 near the Woodbine Road exit, and stolen the vehicle – Vehicle #1. A Range Rover followed Vehicle #1. The male told the salesperson it was “his boy” in the Range Rover.

Another 911 call was by a man from the dealership. He reported the GPS tracking unit was activated on Vehicle #1 and provided the location of the vehicle. Vehicle #1 was reportedly travelling westbound on Highway 407 past Keele Street.

YRP Radio

On April 2, 2024, at 4:59:23 p.m.,[3] the dispatcher announced a call for a carjacking. The complainant had taken a man on a test drive and was pushed from Vehicle #1 on the side of Highway 407.

At 5:02:14 p.m., the dispatcher announced there was a Range Rover following Vehicle #1.

At 5:03:30 p.m., the dispatcher provided a physical description of the male suspect – the Complainant.

Between about 5:09:23 p.m. and 5:21 p.m., the dispatcher announced Vehicle #1 was being tracked and was last located at Highway 407 and Keele Street. It was subsequently said to be on Steeles Avenue at Highway 400.

At 5:24:47 p.m., a police officer asked if the dispatcher could keep airing the tracked locations, and said his team would try to locate Vehicle #1.

In-car Camera (ICC) Footage

At 8:23:07 p.m., April 2, 2024, the audio track kicked-in. Indiscernible voices were heard from outside the vehicle.

At 8:23:54 p.m., the passenger-side rear door opened. The Complainant was captured standing with Officer #1 and Officer #2. His hands were handcuffed behind the back. Officer #1 and Officer #2 gave the Complainant directions to sit in the seat and then turn his body. The Complainant sat on the rear passenger seat and said, “It really hurts, it’s hard to bend over.” The Complainant said, “If you put the handcuffs in front, I am able to sit.”

At 8:26:05 p.m., the Complainant stood up and police officers transferred the handcuffs to the front.

At 8:27:23 p.m., the Complainant said, “I feel dizzy now, I feel like I’m falling.”

At 8:32:13 p.m., the police vehicle departed en route to the CVH.

At 8:35:06 p.m., Officer #2 asked, “What’s hurting you?” and the Complainant said, “Rib. I have a hard time to breathe and every time you take a turn with the car, it hurt me.”

At 8:45:39 p.m., the rear passenger door opened. The Complainant stood and was escorted from the police vehicle by Officer #2 and Officer #1.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the YRP between April 3 and 11, 2024:

• Communication recordings;
• Communications Dispatch Log;
• WO #1, the SO, WO #4, WO #2, and WO #3 - Logs – radio logs;
• The SO – Use of Force Training History;
• General Occurrence Report;
• CAD Report;
• Notes – WO #2, WO #3, WO #4, and WO #1;
• Procedures: Processing the Offender - Arrest, Provincial Offences and Release; Use of Force; and, Robbery;
• Video footage – Vehicle #1;
• Booking video;
• ICC footage; and
• Photographs of screwdriver.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between April 3 and 4, 2024:

• The Complainant’s medical records from CVH; and
• Building parking garage – floor plan.

The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.

In the afternoon of April 2, 2024, the YRP received a 911 call about a carjacking. A salesperson from a car dealership had taken a customer for a test drive. The salesperson and the driver were westbound on Highway 407 when the driver stopped the vehicle, pushed the salesperson out, and continued on his way.

Assisted by a GPS tracking device on the stolen Vehicle #1, plainclothes officers with the YRP Hold-up Squad and Criminal Investigation Bureau located the vehicle and began to surveil it surreptitiously. They followed the vehicle to a location off of Highway 407 near Dixie Road where they observed the driver of Vehicle #1 – the Complainant – exit and take the seat of a Range Rover that had travelled with him in tandem from the point of the theft. Other individuals were also observed entering Vehicle #1. The officers continued to track the vehicles as they eventually made their way to the underground parking of a building in the area of Highway 7 and Weston Road, Vaughan.

The SO was among the officers involved in the surveillance operation. He and other officers in unmarked vehicles followed the subjects into the parking lot. The Range Rover and Vehicle #1 parked side-by-side with their front ends facing a wall before their occupants, including the Complainant from the Range Rover, exited. The SO left his vehicle and ran towards the Complainant as the latter stood between the wall and the front passenger side of Vehicle #1. The officer tackled the Complainant and was soon joined by WO #1. Within moments, the Complainant was handcuffed with his hands behind the back. A screwdriver was located underneath the front hood of Vehicle #1.

Following his arrest, the Complainant complained of difficulty breathing and discomfort. He was taken to hospital and diagnosed with a fractured left rib.

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 April 2, 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.

There are no issues raised in the evidence regarding the officers’ decision to seek the Complainant’s arrest in connection with the carjacking.

With respect to the force brought to bear in aid of the Complainant’s arrest, there is conflicting evidence. There is a rendition of events in which the Complainant fell to his knees immediately upon seeing an officer rushing towards him and was tackled and then struck multiple times by two officers, including after he was handcuffed, though he offered no resistance. This account would give rise to a prima facie case of assault, but it would be unwise and unsafe to rest charges on the strength of this evidence alone. The SO concedes he immediately tackled the Complainant, but says he did so because the Complainant was holding a screwdriver which he refused to drop. A tackle in these circumstances seems a legitimate tactic as it would render it harder for the Complainant to wield it as a weapon. Thereafter, the SO says he wrestled with the Complainant for a while to release his arms, which he kept tucked underneath his chest as he lay prone on the ground. Fearful he was still in possession of the screwdriver, the SO also delivered three punches to the left side of the Complainant’s midsection. Shortly thereafter, with the assistance of WO #1, the Complainant’s arms were freed and handcuffed behind the back. No strikes were delivered after the Complainant was handcuffed. If the SO reasonably believed that the Complainant was still in possession of a screwdriver, and there is no independent evidence to suggest otherwise, he was entitled to escalate his force to more readily overcome the Complainant’s resistance. The use of three strikes to this end would not seem a disproportionate use of force in the circumstances. WO #1’s account was materially consistent with the SO’s evidence. As there is no reason to believe the account of undue force is any likelier to be closer to the truth than that proffered by the officers, and some reason to doubt it (a screwdriver was located in close proximity to the site of the arrest), I am unable to reasonably conclude that the evidence is sufficiently cogent to warrant being put to the test by a court.

In the result, while I accept that the Complainant’s injury was incurred in the altercation that marked his arrest, there are no reasonable grounds to believe it was attributable to unlawful conduct on the part of the SO. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: July 31, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit