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 63-year-old man (the “Complainant”).

Notification of the SIU[1]

On December 30, 2023, at 5:32 a.m., the York Regional Police (YRP) contacted the SIU with the following information.

On December 30, 2023, at about 1:30 a.m., three people were involved in a home invasion at a residence in the area of Yonge Street and Wellington Street, Aurora. Two individuals fled upon the arrival of police. One person was located inside the residence hiding in the basement furnace room. This individual [now known to be the Complainant] was taken into custody and complained of soreness to his ribs. The Complainant was taken to Southlake Regional Health Centre (SRHC), where he was examined and diagnosed with fractured ribs on the right side. He was discharged back into the custody of the YRP and held for a bail hearing.

The Team

Date and time team dispatched: 2024/01/02 at 8:32 a.m.

Date and time SIU arrived on scene: 2024/01/02 at 9:24 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

63-year-old male; medical records obtained and reviewed

The Complainant was interviewed on January 26, 2024.

Subject Officials (SO)

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 February 7, 2024.

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

The witness officials were interviewed between January 14 and 16, 2024.

The Scene

The events in question transpired in the basement of a residence in the area of Yonge Street and Wellington Street, Aurora.

Video/Audio/Photographic Evidence[2]

Police Communications Recordings - Radio

On December 30, 2023, the dispatcher alerted officers to a call for unknown trouble at a residence in the area of Yonge Street and Wellington Street. A woman had called 911 and whispered that she was being held against her will by two men with firearms.

At 0001:39 hrs of the audio run time, an officer reported that they had made entry into the residence and seen someone in the basement. It was further mentioned that one suspect had fled the residence with a firearm.

At 0003:29 hrs, an officer reported hearing breaking glass at the back of the home. A man had jumped out the window and ran through the yard.

At 0007:00 hrs, SO #1 reported that one man was in custody.

At 0007:22 hrs, SO #1 reported that the 911 caller had informed him there might still be a suspect in the basement.

At 0017:41 hrs, SO #1 reported there was someone [the Complainant] hiding by a furnace and he was trying to get him out.

At 0018:04 hrs, SO #1 reported they were bringing the Complainant out. The Complainant later requested to go to the hospital and reported difficulty breathing.

The Complainant was subsequently transported to SRHC for further assessment.

In-car Camera (ICC) Footage – WO #2

At 1:40:19 a.m., December 30, 2023, the rear right door of WO #2’s cruiser opened and a man [the Complainant] was seated in the rear seat. The Complainant stated he had to go to the hospital. He was read his ‘rights to counsel’ before the cruiser door was closed.

At 1:42:02 a.m., the cruiser door opened, and an officer told the Complainant that he was going to go to the hospital. The Complainant continued to breathe deeply and mentioned his ribs. The officer asked if he wanted an ambulance or if he wanted the police officer to take him. The Complainant whispered he wanted an ambulance.

At 1:43:51 a.m., the cruiser’s rear right door opened, and an officer told the Complainant he was under arrest for robbery, home invasion and possession of a firearm. The officer said he was getting an ambulance and closed the door.

At 1:54:41 a.m., the cruiser’s rear right door was opened again, and an officer asked the Complainant if he was still okay. The officer leaned in and gave the Complainant a light sternum rub and asked what drugs he had taken. He told the Complainant to stay awake. There was no response from the Complainant, but the officer listed different drugs and then said, “Okay, cocaine,” before he closed the door.

At 1:58:37 a.m., the cruiser’s rear right door was opened again, and an officer told the Complainant to step out.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the YRP between January 2 and 8, 2024:

• Communications recordings;
• Event Chronology;
• General Occurrence and Supplementary Reports;
• ICC footage;
• Notes – WO #1;
• Notes – WO #2; and
• Photographs.

Materials Obtained from Other Sources

The SIU obtained the following records from the following other sources on January 29, 2024:

• The Complainant’s medical records from SRHC.

The evidence collected by the SIU, including interviews with the Complainant and SO #1, gives rise to the following scenario. As was their legal right, neither SO #2 nor SO #3 agreed an interview with the SIU or the release of their notes.

At about 12:35 a.m. of December 30, 2023, the YRP received a 911 call from a residence in the area of Yonge Street and Wellington Street, Aurora. The 911 caller, a resident of the address, had called to report a home invasion. Crying and whispering, the 911 caller noted that there were men inside her home with guns and that she was being held against her will. Uniformed and tactical officers were dispatched to the scene.

SO #1, SO #2 and SO #3 were among the tactical officers deployed. They arrived within minutes of the call and entered the residence. The 911 caller and her husband advised the officers that the intruders were in the basement and had firearms. Hearing glass breaking in the basement from the top of the basement stairs, SO #1 left the home to chase one of the suspects attempting to flee. That individual was ultimately arrested. SO #1 returned to the address.

Back at the home, SO #1 and other officers made their way to the basement in search of other suspects. SO #1 located a male – the Complainant – attempting to conceal himself in a small space between a furnace and a wall. The officer pulled the Complainant from his location and, with the help of SO #3, handcuffed him behind the back.

Following his arrest, the Complainant complained of pain. He was transported to hospital and diagnosed with a fractured 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 December 30, 2023. The SIU was notified of the incident and initiated an investigation naming three YRP officers – SO #1, SO #2 and SO #3 – subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any of 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.

Based on what the officers knew of the 911 call and the information they had gathered firsthand while on scene, they were within their rights in moving to arrest the Complainant in relation to the home invasion.

With respect to the force brought to bear against the Complainant in the basement, there is conflict in the evidence. There is a version of events proffered in the evidence that the Complainant did not resist arrest but was nevertheless subject to repeated punches and kicks by several officers after his hands were handcuffed. SO #1 acknowledges that force was used against the Complainant, but says that it was necessary to overcome his resistance to arrest. According to the officer, after being found hiding behind the furnace, the Complainant refused to come out willingly and instead held onto the furnace as SO #1 attempted to pull him free. In that exchange, the officer lost his footing and fell accidentally onto the Complainant’s back, landing with his right knee onto his torso. Thereafter, when he refused to release his arms from underneath him, SO #1 and SO #3 delivered punches to either side of the Complainant’s head. The Complainant’s hands were subsequently controlled behind the back and handcuffed, after which no further force was used. That story was corroborated in parts by the evidence of other officers present at the scene of the arrest. In my view, given the need to immediately neutralize a recalcitrant male they had reason to believe was involved in an armed home invasion, the force used by the officers would seem reasonable on SO #1’s rendition of events.

On the aforementioned-record, I am unable to reasonably conclude that the evidence of excessive force being employed during the arrest is sufficiently cogent to warrant being put to the test by a court. Accordingly, while I accept that the Complainant was injured in the altercation that marked his arrest, the likely result of SO #1’s knee impacting his back, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: April 25, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit