SIU Director’s Report - Case # 24-TCI-179

Warning:

This page contains graphic content that can shock, offend and upset.

Mandate of the SIU

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.

Information Restrictions

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.

Mandate Engaged

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 29-year-old man (the “Complainant”).

The Investigation

Notification of the SIU[1]

On April 23, 2024, at 10:00 a.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

On April 22, 2024, at 11:24 p.m., the TPS was contacted by a Toronto Transit Commission (TTC) bus driver regarding an altercation between two passengers on a bus. The bus was stopped at the intersection of Victoria Park Avenue and Eglinton Avenue East. Witness Official (WO) #1 and the Subject Official (SO) responded, entered the bus, and attempted to calm the situation. The Complainant became combative, and a conducted energy weapon (CEW) was used. The Complainant fell, and suffered facial injuries and a sore left wrist. TPS Officer #1 and TPS Officer #2 transported the Complainant to the Michael Garron Hospital (MGH). On April 23, 2024, at 5:14 a.m., the results of X-rays revealed a fractured left wrist.

The Team

Date and time team dispatched: 2024/04/23 at 10:20 a.m.

Date and time SIU arrived on scene: 2024/04/23 at 11:30 a.m.

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on April 23, 2024.

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 Not interviewed; notes reviewed and interview deemed unnecessary

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

WO #1 was interviewed on April 26, 2024.

Evidence

The Scene

The events in question transpired on and around Victoria Park Avenue in the area of 1421 Victoria Park Avenue, Toronto.

The east side of the roadway had a concrete curb which abated onto a grass median. The roadway itself was pavement with marked dividers. A concrete sidewalk ran north and south through the median east of the roadway, in front of a two-story residential structure at 1421 Victoria Park Avenue, just north of the intersection of Southmead Road.

Forensic Evidence

CEW Deployment Data – The SO

The CEW was armed at 11:24:31 p.m., April 22, 2024, with both cartridge bays loaded with “Live 12” cartridges. The trigger was pulled and the cartridge in Bay 1 was deployed. After cartridge deployment electricity was discharged from the weapon for approximately 3.4 seconds.

At 11:24:36 p.m., this CEW was again armed, and the trigger was pulled. Bay 2 cartridge was deployed with electricity being discharged from the CEW for approximately 4.9 seconds.

At 11:24:43 p.m., the trigger was pulled again, and electricity was discharged from the CEW for approximately five seconds.

At 11:24:49 p.m., the trigger was pulled with electricity being discharged for approximately 4.9 seconds. Sixteen seconds later, the trigger was pulled again resulting in an electrical discharge from the CEW for approximately five seconds.

Video/Audio/Photographic Evidence[2]

Video Footage - TTC Bus

At 11:21:00 p.m., April 22, 2024, the bus stopped and a man - the Complainant - entered through the front doors. Two men followed the Complainant onto the bus. The second man stopped, spoke with the bus driver, and appeared to be on a cellular telephone.

At 11:24:00 p.m., the bus stopped, the front door opened, and there were flashing emergency lights visible in front of the bus. The Complainant walked off the bus by the front door and walked ahead of the bus on the grass median. A door opened from a police vehicle ahead of the bus and a police officer – WO #1 – exited the vehicle and walked ahead following the Complainant.

In-car Camera (ICC) Video Footage – WO #1 and the SO’s Cruiser

At 11:23:00 p.m., April 22, 2024, the police vehicle turned south from Eglington Avenue East onto O’Connor Drive and then made a turn onto southbound Victoria Park Avenue. Just south of that intersection, a TTC bus was stopped in the southbound curb lane. The SO drove the police vehicle in the passing lane and began to pass the TTC bus that had commenced southbound. WO #1, from the front passenger seat, stated there was a man on the bus and it was the same bus number as in a call for service. The police vehicle made a lane change into the curb lane, ahead of the bus, and stopped near Southmead Road. The SO informed a dispatcher they were with the bus at Victoria Park Avenue and Southmead Road.

At 11:24:00 p.m., the Complainant crossed in front of the police vehicle from the west side onto the roadway, walking in a southeast direction. The SO and WO #1 both yelled at the Complainant to wait as they exited the police vehicle. The Complainant continued southeast across the roadway, followed by the police officers. The Complainant walked onto the eastern grass median between the curb and sidewalk. He stopped and turned towards the police officers. A flashlight projected onto the Complainant from the SO. The Complainant turned away from the police officers and walked south towards the curb. At the curb he appeared to lock-up, and he fell face-first onto the northbound curb lane of Victoria Park Avenue. WO #1 knelt beside the Complainant and the SO remained in a standing position.

At 11:26:00 p.m., the SO spoke with WO #3 and WO #2 in front of a police vehicle.

At 11:39:00 p.m., the SO entered the police vehicle and said, “We see the guy, he gets on the bus, we follow him down, he gets off, squares up with me, so I tased him, we have him in custody right now.”

At 11:41:00 p.m., the Complainant, on a stretcher, was placed into an ambulance.

Body-worn Camera (BWC) Footage - The SO

On April 22, 2024, at 11:23 p.m., the SO drove south on Victoria Park Avenue and passed a TTC bus, which was southbound in the curb lane. The SO stopped his police vehicle in front of the TTC bus just north of the intersection of Southmead Road. WO #1 was in the front passenger seat.

At 11:24 p.m., the SO opened the driver’s door as a man - the Complainant - walked southeast across Victoria Park Road, just in front of the police vehicle. The SO shouted to the Complainant while still in the police vehicle, telling him to stop several times. The Complainant continued to walk across the street and entered onto the east grass median between the roadway and the sidewalk. WO #1 asked if they could talk to him for a second, and the Complainant turned and faced the police officers. The SO continued to cross the street following the Complainant and was in the northbound curb lane. The Complainant initially took several steps backward, then started to walk directly at the SO.

At 11:24:43 p.m., the SO had his CEW pointed at the Complainant and told him to relax. The Complainant continued towards the SO, who discharged his CEW. The Complainant used his left arm to swing across his body, then turned south and began to walk away from the SO.

At 11:24:50 p.m., the Complainant was on the east curb of Victoria Park Avenue when the SO again fired the CEW. The Complainant locked-up and fell forward, striking the pavement face-first before rolling onto his side. WO #1 approached the Complainant as the SO continued to cycle the CEW and gave commands that the Complainant place his hands behind his back.

At 11:25:20 p.m., after repeated commands to put his hands behind his back, the SO cycled the CEW another time. WO #1 then handcuffed the Complainant behind his back and assisted him to a seated position on the curb. While WO #1 handcuffed the Complainant, a Toronto Fire Services (TFS) truck passed southbound on Victoria Park Avenue and stopped just south of the police officers. The SO informed a police dispatcher the CEW had been deployed and requested an ambulance.

At 11:26 p.m., the Complainant told the SO he was high on cocaine. The SO told the Complainant they wanted to talk to him, and he “started to square up like he wanted to fight” and displayed assaultive behaviour with clenched fists, and that was why he deployed the CEW. Several TFS firefighters stood around the Complainant and WO #1.

BWC Footage - WO #3

On April 22, 2024, at 11:35:00 p.m., WO #3 exited the front passenger side of a marked TPS vehicle, which was stopped in the northbound curb lane of Victoria Park Road, just north of the intersection of Southmead Road. WO #3 was with his partner, WO #2, who was the driver of the police vehicle. WO #3 walked south in the curb lane to WO #1, who was with the handcuffed Complainant seated on the east curb on the roadway. Several TFS firefighters were present.

WO #1 requested that WO #3 and WO #2 assist with the investigation on a TTC bus parked across the street. The two police officers went across to the TTC bus as an ambulance arrived. WO #3 and WO #2 had a conversation with the SO. He said they were right around the corner when the call came in and they had to “tase” the Complainant.

TPS Communications Recordings and Computer-aided Dispatch (CAD) Report

On April 22, 2024, at 11:18:00 p.m., a man called 911 and reported a man [now known to be the Complainant] was assaulting another man at the bus stop at Eglinton Avenue East and Victoria Park Avenue (some form of altercation could be heard in the background). A description (apparently of the Complainant) was provided. The call-taker said the police were on the way.

At 11:22:00 p.m., WO #1 said, “We’re actually in the area looking for that assault in progress.” The dispatcher provided a description of the suspect. The location of the call was on the southwest side. WO #1 said they were “on scene”.

At 11:24:12 p.m., the SO said they were with the bus at Southmead Road and Victoria Park Avenue.

At 11:24:51 p.m., WO #1 said, “Taser deployed on this male.”

At 11:25:44 p.m., the SO said a CEW had been deployed. He asked for an ambulance and another police unit to speak to the bus driver.

At 11:35:00 p.m., the SO said an ambulance had arrived.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TPS between April 24, 2024, and May 2, 2024:

  • Communications recordings;
  • BWC footage – the SO, WO #1, WO #3 and WO #2;
  • ICC footage – the SO and WO #1;
  • CAD Report;
  • General Occurrence Report;
  • TPS Policies: Arrest; and, Incident Response;
  • Notes - WO #1, WO #3 and WO #2; and
  • CEW deployment data.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between April 23, 2024, and May 15, 2024:

  • TTC Occurrence Report;
  • Video footage - TTC Bus;
  • Toronto EMS Ambulance Call and Incident Reports;
  • Medical records from MGH; and
  • Toronto Fire Services Fire Incident Report.

Incident Narrative

The evidence collected by the SIU, including interviews with the Complainant and a police witness to the events in question, as well as video footage that captured the incident, 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 evening of April 22, 2024, the TPS received a call reporting an assault. The caller noted that a male had assaulted another male, and that the two were now on a TTC bus travelling south on Victoria Park Avenue. The SO, operating a marked police cruiser with WO #1 as his passenger, responded to the call for service and located the bus. The SO pulled in front of the bus in the curb lane of Victoria Park Avenue and came to a stop.

The male identified as the perpetrator of the assault was the Complainant. When the bus came to a stop behind the police cruiser, he exited and walked around the front of the cruiser eastward onto the roadway. Told to stop by the officers, the Complainant continued to walk towards the east curb of Victoria Park Avenue. He was on the grass median adjacent the east sidewalk when he turned and started to advance on the SO.

The SO and WO #1 had exited their cruiser and followed the Complainant onto the roadway directing him to stop. When the Complainant turned to confront the SO, the officer fired his CEW. The Complainant stopped his advance but did not lock-up. Rather, he swatted the CEW wire from his body and started to walk away from the SO southward towards the roadway. As he reached the east curb of the road, the SO fired his CEW again. This time, the Complainant’s body locked-up and he fell face-first onto the road, fracturing his left hand in the process.

With the Complainant on the ground, WO #1 moved towards him to take him into custody. The Complainant tried to get up when the CEW charge cycle ended, and was shocked again by the SO. The Complainant failed to place his arms behind his back as directed by the officers, and was shocked several more times before WO #1 was able to handcuff his arms behind the back.

Following his arrest, the Complainant was taken to hospital and treated for his injury.

Relevant Legislation

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.

Analysis and Director’s Decision

The Complainant was seriously injured in the course of his arrest by TPS officers on April 22, 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.

The Complainant fit the description of the male on the bus who had reportedly assaulted another male moments before. In the circumstances, I am satisfied the SO and WO #1 were within their rights in attempting to stop him for investigation: R. v. Mann, [2004] 3 SCR 59.

I am also satisfied that the force brought to bear against the Complainant, namely, multiple CEW deployments fired by the SO, was legally justified. The first CEW discharge occurred as the Complainant turned towards the officer and approached him in an aggressive manner. The SO was entitled to deter the Complainant’s advance without getting into a physical altercation with him, and did so with a reasonable resort to a less-lethal weapon. Thereafter, the SO also acted reasonably when he fired again as the Complainant began to walk away from the officers. It was clear at this time that the Complainant was not about to surrender peacefully, and that any physical engagement would risk a struggle on a major roadway with vehicles travelling by. The remaining CEW discharges, when the Complainant was on the ground, appeared intended to facilitate the handcuffing process. It is not clear whether this use of force was strictly necessary. Though the Complainant had not freely released his arms, it might have been that the combined efforts of the two officers would have been sufficient to wrestle control of them. That said, the parties were in a precarious position on the roadway with vehicles travelling past their location. It was imperative that a struggle be avoided to mitigate the risk presented by traffic. In the circumstances, the use of the CEW fell within the latitude conferred on officers by the law in recognition of the fact that their involvement in dangerous situations will not always allow for a precisely tailored use of force; what is required is a reasonable response, not necessarily an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. CA).

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

Date: August 21, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit

Endnotes

  • 1) Unless otherwise specified, the information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
  • 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]

Note:

The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.