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: 

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 serious injuries sustained by a 40-year-old man (the “Complainant”).

Notification of the SIU

On January 18, 2021, at 1:35 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury.

According to the TPS, on January 17, 2021, at about 7:45 p.m., the TPS Organized Crime Enforcement (OCE) unit and Emergency Task Force (ETF) police officers were en route to the Don Valley Hotel at 175 Wynford Drive in North York to execute a Controlled Drugs and Substances Act (CDSA) Warrant to Search. The subject of the warrant was the Complainant. As the police officers were on their way to the address, they spotted the Complainant at a Tim Horton’s Restaurant nearby and a lengthy foot chase ensued.

The Complainant attempted to escape by jumping into the Don River and was arrested in the water [now known to have been near the water] by ETF police officers, Subject Official (SO) #1, SO #2 and SO #3.

The Complainant was taken to the former Toronto East General Hospital [now known to be Michael Garron Hospital (MGH)] where he was diagnosed with fractured ribs, internal bleeding and hypothermia.

The involved police officers were also treated at hospital for hypothermia.

The CDSA warrant was executed at the hotel room in which the Complainant was staying following the arrest.

The Team

Date and time team dispatched: 01/18/2021 at 7:15 a.m.

Date and time SIU arrived on scene: 01/18/2021 at 12:50 p.m.

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on January 18, 2021.

Subject Officials

SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right.
SO #2 Declined interview and to provide notes, as is the subject official’s legal right
SO #3 Declined interview and to provide notes, as is the subject official’s legal right

SO #1 was interviewed on April 26, 2021.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Notes reviewed, interview deemed not necessary
WO #5 Interviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed
WO #11 Notes reviewed, interview deemed not necessary

The witness officials were interviewed between January 20, 2021 and March 23, 2021, with the exception of WO #3, WO #4, WO #6 and WO #11 who were not interviewed. Their notes indicated that they did not have any new information that was not already known from the interviews of the Complainant and SO #1, and from the interviews of witness officials and police data obtained during the investigation.

The Scene

The scene of the foot pursuit of the Complainant from the area of the Tim Horton’s Restaurant included private property to the east and south of the apartment buildings at 55 and 45 Wynford Heights Crescent. Thereafter, the pursuit continued east down the steep west gradient of the publicly accessible ravine to and across the Don River; east along the publicly accessible embankment of the Don River to private railway lands; north on the railway lands to just south of the railway bridge that traverses the Don River; west on the east embankment; west across the Don River to the area where the Complainant was tackled by the police service dog (PSD) and arrested by SO #1, SO #2 and SO #3 about 9 to 15 metres west of the river’s edge.



Figure 1 - A google maps image marked with a red line to depict the pursuit route that was described by the witnesses.




Figure 2 - The path scaled to enter the ravine.




Figure 3 - Aerial view of the Don River where the Complainant initially crossed.




Figure 4 - The train tracks where the pursuit continued.




Figure 5 - The final area of the Don River where the Complainant crossed.

Video/Audio/Photographic Evidence [1]

TPS Communications Audio Recordings

The following is a summary of the TPS communications audio recordings.

Between 5:55 p.m. and 7:41 p.m., numerous radio communications were recorded between ETF members and the police communications dispatcher relating to the ETF coordination and set-up in the area of the Tim Horton’s Restaurant at 150 Wynford Drive.

The radio transmissions included observations of the Complainant as he crossed the Don River from west to east, then his flight from police officers north on the east side of the river, his re-entry into the Don River and continued flight from police on the west side of the river, and a report that he had been caught by the PSD with ETF police officers securing him in custody thereafter.

The communications recorded that ETF police officers were having difficulty getting the Complainant’s cooperation to walk with them away from the river. At 8:28:45 p.m., an ETF police officer advised that the Complainant was “zero help”; that is, that he would not walk and had curled up in a ball. It was noted that the officers would have to use a mechanical system to extricate the Complainant out of the ravine.

At 9:04 p.m., the Complainant was in an ambulance accompanied by a police officer and going to the MGH.

Photographs of Complainant

The photographs of the Complainant depicted injuries that included bruising to both eyes, bruising around his left ear, bruising on his right thigh and lower right leg, the right side of his abdomen, both upper arms, the backs of both hands with scrapes on the right side of his lower back, and a missing front upper tooth indicated by its empty socket.

Materials Obtained from Police Service

The SIU obtained the following records from the TPS between January 20, 2021, and April 9, 2021:

• Communications audio recordings;
• General Occurrence report;
• Intergraph Computer-assisted Dispatch;
• Notes of WOs;
• Criminal Code Information to Obtain;
• Criminal Code Search Warrant;
• Order of Disposition; and
• TPS Property List.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:

• The Complainant’s medical records from MGH relevant to the incident.

The following scenario emerges on the weight of the reliable evidence collected by the SIU, which included interviews with the Complainant and SO #1. As was their legal right, SO #2 or SO #3 chose not to interview with the SIU or authorize the release of their notes.

At about 8:10 p.m. of January 17, 2021, the Complainant was arrested in a wooded area on the west bank of the Don River, a distance north of Eglinton Avenue East, following a physical altercation with SO #1, SO #2 and SO #3. Seeking to escape police apprehension, he had led officers on a protracted foot chase from the parking lot at 150 Wynford Drive East, east of the river. It was there that members of the TPS OCE unit had approached the Complainant seeking to take him into custody on firearms charges.

Earlier in the day, undercover police officers had the Complainant under surveillance as they waited for the issuance of a warrant authorizing the search of his residence and minivan for firearms. At a location in downtown Toronto, the Complainant managed to slip the officers and avoid arrest. The officers regrouped in the area of the Don Valley Hotel, where the Complainant had been staying, and waited for his return.

At about 7:40 p.m., the Complainant arrived in the area operating a minivan. He parked in the lot at 150 Wynford Drive and spoke with a female associate in her Mercedes. Within minutes, the officer leading the operation – WO #2 – gave the order to arrest the Complainant. The Complainant noticed police officers and vehicles converging on his location and immediately fled south and then east toward the ravine leading to the Don River.

ETF officers, who had gathered in the area to assist with the Complainant’s arrest and search warrant execution, pursued the Complainant. A dog handler, WO #1, and his PSD picked up the Complainant’s scent and led the way. The ground in the ravine was wet and slippery, and the Complainant and the officers had difficulty keeping their footing as they went down the ravine’s steep slope.

The Complainant traversed the Don Valley River a short distance north of Eglinton Avenue East, after which he travelled northwards along a set of railway tracks. In the area of a railway bridge, he waded into the water and again crossed the river. WO #1, the PSD, SO #1, SO #2 and SO #3 were right on his heels. The PSD swam across the river ahead of the officers, who forded behind.

The PSD caught the Complainant, latched onto his left arm and side, and brought him down. The Complainant kicked and punched at the PSD to release the dog’s grip but was unable to do so. WO #1 reached the scene, gave the PSD the release order and pulled the dog away as SO #1, SO #2 and SO #3 arrived.

The Complainant physically resisted his arrest and was met with a measure of force by the ETF officers. SO #1 kicked him in the chest with the intention of forcing him flat on his back. The Complainant sat back up and was subjected to a second kick to the chest by SO #1. At about this time, SO #2 and SO #3 engaged the Complainant physically, wrestling him onto his front in a prone position. One of the two officers delivered a knee strike to the Complainant’s back or side in the process, after which the Complainant was handcuffed behind his back without further incident.

The climb out of the ravine was a difficult one, made more difficult by the Complainant’s inability to crawl on his hands and knees (even after his handcuffs were removed by the officers). With the use of a system of ropes and a sked, on which the Complainant was placed, the ascent was eventually accomplished, though not without a number of stumbles and falls along the way. Once at the top, the Complainant was handed over to paramedics and taken to hospital, where he was diagnosed with a fractured rib.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

On January 17, 2021, the Complainant suffered a serious injury in and around the time of his arrest by members of the TPS ETF. The arresting officers – SO #1, SO #2 and SO #3 – were identified as subject officials for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the subject officials 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 officers seeking the Complainant’s arrest on the day in question had a legal basis for doing so. The Complainant had been named in a search warrant alleging that he was unlawfully in possession of a firearm. There were also warrants outstanding for the Complainant’s arrest for a number of offences, including uttering threats and possession of property obtained by crime.

Thereafter, there is insufficient evidence to reasonably conclude that SO #1, SO #2 and/or SO #3 used excessive force in taking the Complainant into custody. There is some evidence that once the Complainant was captured by the dog, he was subjected to multiple kicks and punches to the head and body by several police officers, though he offered no resistance to his arrest. According to this evidence, the Complainant was also dropped by the officers as they carried him up the ravine, on which occasions they beat him again. This version of events is contradicted by SO #1’s account of what occurred. More importantly, it is incongruous with the nature and extent of the Complainant’s efforts to flee from police. To say that the Complainant was determined to escape apprehension is an understatement. Risking his own life and limb, the Complainant had led police on a lengthy, treacherous trek down uneven, steep and heavily wooded terrain, during which he repeatedly stumbled and fell, and across a fast flowing river, not once, but twice. Against this backdrop, the claim of non-resistance must give way to the evidence of SO #1 to the opposite effect.

According to SO #1, upon reaching the Complainant, he delivered a kick to his chest to force him flat on his back. When the strike did not accomplish its purpose, SO #1 kicked him again. SO #1 had cause to suspect that the Complainant was armed with a firearm and was, therefore, within his rights in seeking to place him in a position of disadvantage as soon as possible. After all, the Complainant was being pursued for having an illegal firearm in his possession. Thereafter, aside from a single knee strike delivered by either SO #2 or SO #3, the only force reported by SO #1 was the use by the officers of their greater combined manpower to force the Complainant onto his front and effect his arrest. Given the Complainant’s continued resistance, I am unable to reasonably conclude that this level of force was more than was necessary to subdue the Complainant and take him into custody. Finally, though SO #1 concedes that the Complainant was dropped more than once as the officers made their way up the steep incline of the ravine, he says the falls were accidental and caused by the poor ground conditions.

There is a distinct possibility raised in the evidence that the Complainant suffered his fractured rib as he fell on one or more occasions during his flight from police. Be that as it may, as there are no reasonable grounds to believe that any of the subject officials acted other than lawfully throughout their interaction with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: May 14, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit