The province's police watchdog has found there are no reasonable grounds to charge a Toronto police officer who broke a man's arm after he refused to turn over his children to a child welfare agency despite a court order.
It happened at an undisclosed residence on Aug. 8, at around noon, when officers accompanied a Children's Aid Society (CAS) worker to assist with the apprehension order for two young children of the 33-year-father, identified as the complainant.
The CAS worker and officers, including the subject official (SO), were greeted by the complainant holding one of his children at the front door. SIU Director Joseph Martino said the complainant refused to let them in, which is when the CAS worker explained there was a warrant to apprehend the children, citing concerns of the children's safety, the home, the complainant's mental health and the children not attending school.
The complainant called his lawyer and said he had not been served, to which the CAS worker informed him they had attempted to but were not able to locate him. The CAS worker explained the warrant and that they could not leave without the children.
After the complainant made several more calls, he declined to surrender the children, the SIU said. The SO explained to the complainant they wanted to apprehend the children "with no issue and without causing the children any distress."
"She explained that the Complainant could work with CAS to have the children returned at a later date," the report reads.
The negotiations continued like this for about an hour-and-a-half. At around 1:30 p.m., a witness official, who arrived at the apartment to assist the officers, told the complainant that they take physical custody of the children.
The complainant was sitting on the edge of one of the two beds in the room at this time, with a child on each knee and his arms around them, hands clasped together.
The SO and another witness official moved towards the complainant to unclasp his hands, where the SO then "forced" his left arm away from one of his children, which is when a "cracking sound" was heard.
"Ow, you broke my arm, f***," the complainant could be heard saying in body-worn camera footage reviewed by the SIU.
The subject official picked up one of the children, and as he carried the child away, they asked, "Why did you break my dad's arm?"
The CAS worker assured the child his father's arm was not broken, and the child asked to call an ambulance. As the complainant waited for paramedics to arrive, the children were taken away from the scene.
Paramedics arrived at around 2 p.m. to transport the complainant to the hospital, where he was diagnosed with a fractured left arm.
After reviewing the evidence, Martino concluded there are no reasonable grounds that the SO commited a criminal offence in connection with the complainant's injury, as pursuant to section 25(1) of the Criminal Code, 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."
Martino says both the SO and first witness official lawfully abided by their duties in attempting to enforce a lawful court order.
"I am also satisfied that the force used by the SO and WO #1 was legally justified," Martino wrote. "Despite what were patient and protracted efforts on the part of the [CAS worker] and the officers to have the complainant voluntarily turn over the children, he was persistent in his refusal. Not consultation with his own lawyer, reached by phone by the Complainant, not repeated explanations by the police officers and child welfare worker of the bone fides of their interventions, and not a printed copy of court documents provided to the Complainant could convince him to cooperate."
Martinos said the officers involved did what would be expected in this situation, adding the body-worn camera footage makes it clear they did not execute excessive force.
"That the Complainant's left arm was fractured in the process, the likely product of his attempting to maintain his hold as the SO pulled in the opposite direction, is unfortunate, but not the result of the application of excessive force," Martino concluded.