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 29-year-old man (the “Complainant”).

Notification of the SIU[1]

On June 17, 2024, at 11:07 a.m., a lawyer notified the SIU of an injury to his client, the Complainant.

According to the lawyer, on June 8, 2024, at 5:13 p.m., the Complainant was punched in the face by a Toronto Police Service (TPS) officer, the Subject Official (SO). The incident occurred during a protest taking place in front of the United States Consulate at the intersection of Armoury Street and University Avenue, Toronto. The Complainant attended the Toronto General Hospital (TGH) where he was diagnosed with a fractured nose.

The Team

Date and time team dispatched: 2024/06/17 at 12:58 p.m.

Date and time SIU arrived on scene: 2024/06/17 at 1:56 p.m.

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on July 10, 2024.

Subject Official

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 Interviewed; notes received and reviewed

WO #3 Interviewed; notes received and reviewed

WO #4 Interviewed; notes received and reviewed

The witness officials were interviewed between July 23, 2024, and September 3, 2024.

Investigative Delay

The incident occurring on June 8, 2024, was not reported to the SIU by TPS as the Complainant’s identity and the seriousness of his injury were unknown. Counsel for the Complainant notified the SIU on June 17, 2024; however, the Complainant did not immediately avail himself of an interview. Due to scheduling conflicts, the interview was not completed until July 10, 2024.

Delay was also attributable to workload pressures in the Director’s Office.

The Scene

The events in question transpired on and around the intersection of Armoury Street and University Avenue, outside the United States Consulate.

Video/Audio/Photographic Evidence[2]

Body-worn Camera (BWC) Footage

Starting at 5:12:44 p.m., TPS officers and demonstrators held a large flag at waist height. Police officers were attempting to take control of the flag, while demonstrators resisted and jostled for control.

Starting at 5:12:49 p.m., the Complainant was facing the flag and standing by WO #3. The Complainant and WO #3 were grasping the flag with both hands. The Complainant, with his right hand, brushed WO #3’s right hand away, causing him to release his grip. WO #3 pushed the Complainant in the chest with his right hand. The Complainant stepped backwards and released his grip.

The SO approached the Complainant from the side and punched him once in the face with a closed right-handed fist.

The Complainant released the flag, stumbled backwards, and was walked away by other demonstrators.

Communications Recordings

Starting at 5:10:02 p.m., there was a large flag unfurled in front of the U.S. Consulate, and demonstrators were under the flag painting on the road. More police officers were requested as was the Public Order Unit and Public Safety Response Unit.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the TPS between July 11, 2024, and September 19, 2024:

• Names and roles of involved police officers;
• General Occurrence Report;
• Arrest Report;
• Crown Brief Synopsis;
• BWC video;
• Computer-assisted Dispatch Report;
• Communications recordings;
• Notes - WO #4, WO #3, WO #1 and WO #2;
• Policy - Incident Response; and
• Policy - Protests and Demonstrations.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between July 12, 2024, and July 17, 2024:

• Photos and video provided by the Complainant; and
• The Complainant’s medical records from University Health Network - TGH.

The evidence collected by the SIU, including interviews with police witnesses and video footage that largely captured the incident, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the afternoon of June 8, 2024, a contingent of TPS officers, including the SO, convened at the intersection of University Avenue and Armoury Street, Toronto. They were assigned to maintain order and preserve the peace with respect to a political demonstration being staged in front of the United States Consulate General. A large flag was being held up along its four sides by protesters at waist height. The police decided to seize it on information that some of the protesters were painting the roadway red underneath the flag.

The Complainant was among those gathered at the protest holding the flag as police officers attempted to take control of it. He became involved in a hand swatting incident with WO #3 when the officer, positioned to his right, tried to remove his grip from the flag. Within moments of that scuffle, he was struck in the face by a right-handed punch from the SO.

The SO, standing in the vicinity of the flag, had observed the Complainant and WO #3 swatting each other’s hands. He quickly moved in and punched the Complainant.

The Complainant was stunned by the punch and stumbled backward.

At hospital later that day, the Complainant was diagnosed with a broken nose.

Section 34, Criminal Code - Defence of Person – Use or Threat of Force

34 (1) A person is not guilty of an offence if

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) The act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

Section 430, Criminal Code – Mischief

430 (1) Every one commits mischief who wilfully

(a) destroys or damages property;

(b) renders property dangerous, useless, inoperative or ineffective;

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or

operation of property; or

(d) obstructs, interrupts or interferes with any person in the lawful use,

enjoyment or operation of property.

(1.1) Everyone commits mischief who wilfully

(a) destroys or alters computer data;

(b) renders computer data meaningless, useless or ineffective;

(c) obstructs, interrupts or interferes with the lawful use of computer data; or

(d) obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access to it.

(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.

(3) Every one who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

(4) Every one who commits mischief in relation to property, other than property described in subsection (3),

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

(4.1) Everyone who commits mischief in relation to property described in any of paragraphs (4.101)(a) to (d), if the commission of the mischief is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

(4.101) For the purposes of subsection (4.1), property means

(a) a building or structure, or part of a building or structure, that is primarily used for religious worship — including a church, mosque, synagogue or temple —, an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery;

(b) a building or structure, or part of a building or structure, that is primarily used by an identifiable group as defined in subsection 318(4) as an educational institution — including a school, daycare centre, college or university —, or an object associated with that institution located in or on the grounds of such a building or structure;

(c) a building or structure, or part of a building or structure, that is primarily used by an identifiable group as defined in subsection 318(4) for administrative, social, cultural or sports activities or events — including a town hall, community centre, playground or arena —, or an object associated with such an activity or event located in or on the grounds of such a building or structure; or

(d) a building or structure, or part of a building or structure, that is primarily used by an identifiable group as defined in subsection 318(4) as a residence for seniors or an object associated with that residence located in or on the grounds of such a building or structure.

(4.11) Everyone who commits mischief in relation to property that is a building, structure or part thereof that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph, or an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure, or a cemetery is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,

(i) for a first offence, to a fine of not less than $1,000,

(ii) for a second offence, to imprisonment for not less than 14 days, and

(iii) for each subsequent offence, to imprisonment for not less than 30 days;

(b) if the offence is prosecuted by indictment, to imprisonment for a term not exceeding 10 years; and

(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

(4.2) Every one who commits mischief in relation to cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954, as set out in the schedule to the Cultural Property Export and Import Act,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

(5) Everyone who commits mischief in relation to computer data

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

(5.1) Everyone who wilfully does an act or wilfully omits to do an act that it is their duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or computer data,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

(6) No person commits mischief within the meaning of this section by reason only that

(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;

(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or

(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.

(7) No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

(8) In this section, computer data has the same meaning as in subsection 342.1(2).

On June 8, 2024, the Complainant was seriously injured when he was struck by a TPS officer. The SIU was notified of the incident and initiated an investigation. The SO was identified 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 injury.

Section 34 of the Criminal Code provides that conduct that would otherwise constitute an offence is legally justified if it was intended to deter a reasonably apprehended assault, actual or threatened, and was itself reasonable. The reasonableness of the conduct is to be assessed in light of all the relevant circumstances, including with respect to such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force.

I am satisfied that the officers, including WO #3, were in the lawful execution of their duties when they attempted to dispossess the protesters of the flag they were holding so it could be removed from the scene. They had information to believe that it was being used, at least in part, to facilitate the commission of mischief contrary to section 430 of the Criminal Code, namely, the painting of the road under the flag.

Though the SO did not avail himself of an interview with the SIU, as was his legal right, there is evidence to infer that he punched the Complainant to defend WO #3 from a reasonably apprehended assault. That is what the officer asserted in a police report he filed in respect of the incident, and it is a claim that finds support in the evidence. The video footage captures the SO observing and then intervening in the hand swatting skirmish between the Complainant and WO #3. While it did not appear that the Complainant meant to do WO #3 any harm when he swatted his hand away, his conduct could reasonably be construed as an assault on the officer.

I am also satisfied that the force used by the SO fell within the range of what was reasonable to defend WO #3. The confrontation between WO #3 and the Complainant did not involve fisticuffs or serious violence, and it might have been the case that the SO could have simply moved the Complainant away without resorting to a punch. On the other hand, the atmosphere at the time was highly charged – there was evidence of anti-police rhetoric by some protesters and the two sides were now struggling for control of the flag. One can understand why the SO would have wanted to immediately deter the assault on WO #3 with decisive force before it was given any opportunity to escalate. On this record, I am unable to reasonably conclude that the punch struck by the SO, though perhaps at the upper end of what was reasonable, was excessive. In arriving at this conclusion, I am mindful that the law recognizes that officers caught up in volatile situations are not always able to carefully tailor their responsive force. What is required is a reasonable response, not 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. The file is closed.

Date: February 5, 2025

Electronically approved by

Joseph Martino

Director

Special Investigations Unit