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 47-year-old man (the “Complainant”).

Notification of the SIU[1]

On April 25, 2024, at 10:05 p.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

According to the TPS, on January 16, 2024, the Subject Official (SO) and Witness Official (WO) #1 responded to a building located near the area of Front Street and Church Street following a report that the Complainant was unlawfully on the property. The Complainant had previously been charged under the Trespass to Property Act (TPA) for being on the property. The Complainant was located and asked to leave. He refused, and was placed under arrest. The Complainant resisted, and was grounded by the officers. Eventually, the Complainant’s hands were handcuffed. He was charged with one TPA offence and a criminal charge of “resist arrest”. The Complainant complained of pain to his chest and Toronto Emergency Medical Services (EMS) were called. The Complainant refused examination. He was transported to 51 Division where he was to be held for a bail hearing. During the booking process, the Complainant again complained of pain to his chest, and was taken to St. Michael’s Hospital (SMH) by WO #3 and WO #4. On January 17, 2024, at 7:15 a.m., a hospital physician diagnosed the Complainant with fractured ribs. The Complainant was remanded while at the hospital and, upon discharge, taken to the Toronto South Detention Centre (TSDC) by two TPS special constables. On April 25, 2024, when the charges were addressed in court, the prosecutor requested medical documents, at which time it was discovered that the Complainant had suffered a serious injury requiring SIU notification.

The Team

Date and time team dispatched: 04/26/2024 at 6:06 a.m.

Date and time SIU arrived on scene: 05/01/2024 at 2:21 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

Interviewed; medical records obtained and reviewed

The Complainant was interviewed on May 1, 2024.

Subject Official

SO Interviewed; notes received and reviewed

The subject official was interviewed on May 23, 2024.

Witness Officials

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Notes reviewed and interview deemed not necessary

WO #4 Notes reviewed and interview deemed not necessary

The witness officials were interviewed on May 1 and 2, 2024.

The Scene

The events in question transpired in a vestibule of a building located near the area of Front Street and Church Street, Toronto, which led to the building’s underground parking.

Video/Audio/Photographic Evidence[2]

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

On January 16, 2024, at 5:23 p.m., WO #1 was captured walking towards a building [now known to be a building located near the area of Front Street and Church Street]. A security guard opened a side door to the building, and WO #1 followed the security guard into a vestibule. A man [now known to be the Complainant] sat on the floor behind a pillar.

Starting at about 5:23:46 p.m., the audio track of the footage kicked-in. WO #1 told the Complainant to remain where he was. The Complainant asked WO #1 why, and WO #1 told the Complainant he was going to investigate him for trespassing. The Complainant started to pick up items from the floor, and WO #1 told the Complainant to keep his hands out of his pockets and away from his bag. The SO stood behind the pillar, and the Complainant complained that WO #1 had stepped on his bag that he tried to pick up.

Starting at about 5:24 p.m., WO #1 grabbed the Complainant’s right arm and the SO grabbed the Complainant’s left arm. WO #1 told the Complainant that he was under arrest for trespassing. A struggle ensued and the Complainant was put to the floor, initially on his back and then his right side, his arms crossed against his chest. The police officers told the Complainant to put his hands behind his back. The Complainant did not do so and WO #1 dropped his right knee on the Complainant’s hip area. WO #1 again told the Complainant to put his hands behind his back. WO #1 had a knee across the Complainant’s upper back. The view was blocked by WO #1’s exterior jacket, as his camera was attached to his body on an inside jacket. The Complainant screamed that he was in pain and one of the police officers told the Complainant that he would not tell him again to put his hands behind his back. The Complainant asked, “For what?”

Starting at about 5:25 p.m., the Complainant was handcuffed and then sat against the wall. He identified himself verbally to the SO. The Complainant told the police officers that he was homeless and lived on the street.

Starting at about 5:46 p.m., paramedics arrived at the building. The SO advised the paramedics that the Complainant had sore ribs. A female paramedic spoke to the Complainant and told him that they could not check his ribs, and he would have to go to the hospital. The Complainant told the paramedic that he would go to the hospital on his own when the police released him. A sergeant was requested to attend. WO #1 advised dispatch they would submit an injury report. The paramedics left the building.

Starting at about 5:50 p.m., WO #2 arrived at the building, and was advised of the circumstances of the arrest.

Starting at about 6:03 p.m., WO #1 and the SO left the building with the Complainant.

At 6:12 p.m., the video ended.

BWC Footage – The SO

On January 16, 2024, at 5:23 p.m., the SO was captured walking towards a building [now known to be a building located near the intersection of Front Street and Church Street].

At 5:23:46 p.m., the audio track of the footage kicked-in. The Complainant sat on the floor behind a pillar. He proceeded to stand up and then bent over.

Starting at about 5:24 p.m., the SO grabbed the Complainant’s left arm. The Complainant was advised he was under arrest by WO #1. The Complainant went to the floor and crossed his arms against his chest. The Complainant turned to the side. He was advised he was under arrest for failing to leave when directed. The SO delivered a knee strike to the Complainant’s back. The Complainant asked, “Why are you beating me?” The SO asked the Complainant to give up his hands and then delivered three hand strikes to the Complainant’s back when he failed to do so. The Complainant had one handcuff placed on a wrist, and the struggle continued. The SO delivered two knee strikes to the Complainant’s back. The second handcuff was placed on the Complainant, and the SO asked the Complainant what he was doing. The Complainant advised that he was homeless, and tried to stay out of the cold. The Complainant was sat up against the wall.

The video ended at 6:12 p.m.

TPS Custody Video

On January 16, 2024, at 6:31 p.m., WO #2 stood at the booking counter. The SO advised WO #2 that a pat-down search had been conducted at the scene. The SO requested that a frisk search be conducted of the Complainant.

WO #2 asked the Complainant a series of questions, including whether he had any injuries. The Complainant advised that he had a sore forehead and ribs. WO #2 asked when the injuries occurred, and the Complainant advised he was injured when the police officers arrested him. WO #2 asked the SO if the Complainant received medical treatment at the scene. The SO advised that paramedics had cleared the Complainant. The Complainant declined the ambulance and said he would seek treatment on his own following his release. The Complainant told WO #2 that he had smoked crack before his arrest.

Starting at about 6:37 p.m., the Complainant was searched by the SO and WO #1. WO #2 asked the Complainant if he wanted to speak to a lawyer, and the Complainant stated that there was no need to speak to a lawyer. The Complainant was escorted from the booking hall.

Starting at about 11:17 p.m., a staff sergeant stood at the booking counter. The Complainant was escorted, handcuffed, by two police officers into the booking hall. The staff sergeant asked the Complainant about his chest pain. The Complainant told the staff sergeant that he had rib pain. The staff sergeant asked what was wrong with the Complainant’s ribs. The Complainant explained that police officers beat him when he was arrested. The staff sergeant explained to the Complainant that he would be taken to the hospital by the police officers and, once treated, transferred to the TSDC.

TPS Communications Recordings

On January 16, 2024, at 4:55 p.m., the TPS received a telephone call from a security guard at a building located near the intersection of Front Street and Church Street. The security guard advised that they had a trespasser [now known to be the Complainant] on site, who was a repeat trespasser. The Complainant did not have any weapons. The security guard could not remember the Complainant’s name and the Complainant was aware that the police had been called.

At 5:06 p.m., WO #1 and the SO were dispatched.

At 5:17 p.m., both police officers were on scene.

At 5:26 p.m., WO #1 called for a road sergeant to respond. The Complainant had been arrested after a scuffle, and was complaining of an injury. WO #1 advised the Complainant would be released on a Provincial Offences Notice.

At 5:39 p.m., WO #2 and EMS were on scene.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TPS between April 29, 2024, and May 1, 2024:

• BWC footage;
• Booking video;
• Communications recordings;
• TPS Policy - Arrest;
• TPS Policy - Incident Response;
• Booking Questions;
• Booking Record;
• Entity List;
• Computer-assisted Dispatch Report;
• Injury Report;
• Notes - WO #1;
• Notes - WO #2;
• Notes - WO #3;
• Notes - WO #4;
• Notes - SO;
• TPS contact with the Complainant; and
• General Occurrence Report.

Materials Obtained from Other Sources

The SIU obtained the Complainant’s medical records from SMH on May 3, 2024.

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 afternoon of January 16, 2024, the SO and WO #1 were dispatched to a building located near the area of Front Street and Church Street, Toronto. A security officer had called police to report a trespasser – the Complainant. The Complainant was in a ground-floor vestibule of the building adjacent the doors to the underground parking. He had refused to leave at the security officer’s request.

SO and WO #1 arrived at the address and were escorted to the vestibule by a security guard. They approached the Complainant and told him he was being investigated for trespassing. WO #1 directed the Complainant to keep his hands out of his pockets and away from his knapsack, on the floor beside him. The Complainant was holding a wooden implement with a pointed end. Beside him was a broken crack pipe.

The Complainant continued to reach for his pocket and was annoyed when WO #1 stepped on his bag. He was grabbed by the officers, told he was under arrest, and taken to the ground. The Complainant refused to release his arms to be handcuffed, keeping them tightly pinned against his chest. WO #1 dropped his right knee onto the Complainant’s hip. He cried out in pain but continued to hold his arms against his chest. He was kneed in the back by the SO and then punched in the back three times by the officer. SO and WO #1 managed to affix a handcuff to the Complainant’s left hand but continued to struggle to secure his right arm. The SO delivered two more knee strikes to the Complainant’s back, after which the officers wrestled control of both arms and handcuffed them behind the back.

The Complainant was taken to the police station and then to hospital where he was diagnosed with fractured left-sided ribs.

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 2(1), Trespass to Property Act - Trespass an Offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Section 9(1), Trespass to Property Act - Arrest Without Warrant On Premises

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

The Complainant was seriously injured in the course of his arrest by TPS officers on January 16, 2024. The SIU was notified of the incident and initiated an investigation naming the SO as 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 injuries.

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 knew he was trespassing in the building and had refused to leave when directed to do so by a building security officer. In the circumstances, I am satisfied he was subject to arrest pursuant to sections 2 and 9 of the Trespass to Property Act.

The force brought to bear by the officers in aid of the Complainant’s arrest was legally justified. The takedown seems a legitimate tactic. The Complainant was resisting arrest and had access to items that might cause injury if they were used as weapons. Taking him to the floor would place the officers in a better position to safely manage the situation. On the floor, the Complainant refused to release his arms despite the officers’ repeated requests that he do so, and struggled against their efforts to wrestle them behind the back. The knee strike, followed by another knee strike, then three punches and, lastly, two knee strikes, were delivered in discrete segments. During the intervening intervals, the Complainant continued to resist. It was not until the final knee strikes by the SO that the officers were able to secure both hands in handcuffs, after which no further blows were struck. On this record, I am satisfied that the force used by the officers was commensurate and proportionate to the exigencies of the moment.

In the result, while I accept that the force brought to bear by the officers, likely one or more of the SO’s strikes, caused the Complainant’s injuries, I am unable to reasonably conclude that they were attributable to any unlawful conduct on the part of the officers. As such, there is no basis for proceeding with criminal charges in this case.

Date: August 23, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit