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SIU Director’s Report - Case # 18-TCI-026

Contents:

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release 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 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

Mandate engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into a serious injury sustained by a 32-year-old male on July 17, 2017.

The Investigation

Notification of the SIU

On February 1, 2018, the Toronto Police Service (TPS) reported to the SIU that the TPS had received an Office of the Independent Police Review Director (OIPRD) complaint from the Complainant. The Complainant reported that on July 17, 2017, he sustained an injury when he was arrested at York University, 4700 Keele St, Toronto. The Complainant was arrested on an outstanding “Fail to Appear” arrest warrant by two TPS officers (the subject officers). The Complainant was taken to the hospital and diagnosed with a mild concussion. Because he did not lose consciousness the SIU was not notified.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right


Incident Narrative

On July 17, 2017, the Complainant attended Osgoode Hall, which is on the York University campus. At the time, the Complainant was bound by a bail condition that he not attend the York University campus and was also wanted pursuant to an arrest warrant for failing to appear for court.

SO #1 and SO #2 attended Osgoode Hall and arrested the Complainant. The Complainant was uncooperative during the arrest and had to be dragged from Osgoode Hall. The subject officers bumped the Complainant into a wall while he was dragged, although it is uncertain what part of the Complainant’s body hit the wall or if the bump was accidental or intentional.

The Complainant was placed on the ground outside and SO #2 put his foot on the Complainant’s back because he was aware that the Complainant was at risk for “suicide by cop.” WO #1 arrived and told SO #2 to remove his foot because the Complainant did not appear to be a threat. SO #2 complied.

The Complainant was then placed in the back of a police cruiser, where he began yelling that he had been bumped into the wall intentionally. He kicked at the windows and was removed from the vehicle to secure his ankles to his hands with handcuffs. The Complainant was then transported to TPS 31 Division where he complained of a headache. He was transported to a hospital where he was diagnosed with a mild concussion.

Evidence

The Scene

Osgoode Hall Law School is located within the York University campus at 4700 Keele Street, Toronto. The scene is located on the second floor, in an open lounge area. A scale diagram of the scene was prepared by the SIU Forensic Investigator.

Scene Diagram

Scene diagram

Video/Audio/Photographic Evidence

In-Car Camera Footage

In-car camera system (ICCS) video was received from the TPS for two police vehicles. One police vehicle was utilized to transport the Complainant from Humber River Hospital to TPS 32 Division on July 18, 2017. There was nothing of evidentiary value in this video and therefore it will not be detailed in this report.

The other police vehicle was operated by SO #1 and SO #2 on July 17, 2017. The video runs from 11:05:51 a.m. until 11:30:50 a.m. and captures the Complainant when he was first put into the rear of the cruiser at York University until he was removed at TPS 31 Division.

At 11:06:24 a.m., the Complainant was put into the rear of the cruiser via the rear passenger door. He was put in head first, face down and was handcuffed with his hands behind his back. A male police officer was heard telling him to relax. An unknown male police officer entered via the rear driver’s side door and told the Complainant he was going to drag him into the car. The officer then pulled the Complainant by the shoulders all the way in and both doors were then closed. The Complainant sat up on the passenger side. He did not say anything.

At 11:12:00 a.m., the Complainant banged his left shoulder against the passenger door and yelled, “Yo, Yo,” trying to get the police officer’s attention. This action caused his head scarf to fall over his eyes. He then leaned over on his left side and began kicking at the passenger door. The camera’s view did not show whether he was kicking at the window or the door proper. He kicked at it eight times before a police officer opened the door and asked him, “What?”

The Complainant said that they were conspiring about what to say about when they slammed his head into the wall. He said he could hear them and he called to a security guard. He said they were planning a story about when they slammed him into the wall. The Complainant continued his assertion that he was slammed into a wall and that they were making up a story, saying they stumbled.

A police officer could be heard telling the Complainant that when they had tried speaking to him and asked him to come peacefully, he would not respond.

At 11:13:06 a.m., a police officer said he was going to close the door and he then closed the rear passenger door.

At 11:13:20 a.m., the rear passenger door was opened again and a police officer could be seen with handcuffs in his hand. A police officer was heard saying, “Let’s do his legs first.” The Complainant told the police officers that they were not going to hog tie him. A police officer replied that they were. The officer said, “As soon as you kicked the window, the game’s over.”

At 11:14:06 a.m., a police officer (believed to be SO #2) opened the rear driver’s side door and pulled the Complainant by the shoulders, across the seat and onto his stomach. Other police officers opened the passenger side door, handcuffed the Complainant’s ankles and then used other handcuffs to secure those handcuffs to the handcuffs securing his hands. An unknown police officer removed the Complainant’s head scarf and when the Complainant said it was his religious head band it was thrown back into the cruiser.

At 11:16:00 a.m., the police cruiser became mobile and the rear seat camera turned off.

At 11:17:31 a.m., the rear seat camera came back on. The Complainant was lying quietly on the rear seat.

At 11:18:24 a.m., SO #1 asked the Complainant if he was okay. The Complainant did not respond.

At 11:22:25 a.m., they arrived at TPS 31 Division and awaited the opening of the sally port door.

At 11:28:30 a.m., the garage door opened and the cruiser was driven into the sally port. The Complainant was removed out the driver’s side door and told he was going to be put on the floor and the handcuffs were going to be removed. The Complainant became quite vocal telling the police officers that they were taking pleasure in this and to “fucking enjoy it.”

At 11:30:50 a.m., the video footage concluded.

The Complainant was completely non-verbal while being driven from York University to TPS 31 Division. At no time during the video footage did he say he had been injured and no injury was visible.


31 Division Booking Hall Video

The 31 Division Booking Hall Video has three separate components: when the Complainant arrived and was booked on July 17, 2017, when he asked to be taken to the hospital and when he was taken to the hospital by ambulance. This report will focus on the booking process only as the other two components do not offer anything of evidentiary value.

The video begins at 11:29:21 a.m. and concludes at 11:38:34 a.m.

The video begins with the Complainant being removed from the TPS cruiser in the sally port. SO #1 and SO #2 are assisted by four unknown police officers. The Complainant was lifted from the rear passenger side and set onto the garage floor. His hands were cuffed behind his back and it is evident that handcuffs were applied to secure his ankles to the cuffs securing his hands. The Complainant was very verbal, shouting at the police officers saying that they were taking pleasure in this and yelling, “Fucking enjoy it,” several times.

The handcuffs securing the Complainant’s ankles to his hands were removed and he was carried into the booking hall. The Complainant was placed onto a chair in front of the booking counter.

The Complainant became quite verbal stating, “You gentlemen slammed my head into a wall. This gentleman and this gentleman (nodding towards SO #1 and SO #2) said they stumbled, it was very deliberate. There was a black security guard at York University who witnessed it. He was there at the time. I kicked the door to get his attention. He came over, he affirmed what had happened, he suggested it was my fault for not cooperating. The wall was not in their way. They had a clear path. They deliberately slammed my head into a wall. They deliberately done a lot of harm to me since they picked me up.”

SO #1 and SO #2 detailed their concerns for officer safety, indicating that the Complainant was on CPIC for ‘suicide by police’.

When asked, the Complainant said he had not been read his rights. SO #2 advised him that he had been arrested on a warrant for public mischief and he had read the Complainant his Charter rights.

The Complainant was asked if he had any injuries. He said that his knees, his ankles and his head hurt a lot. He said his ankles hurt because of the way he was hog-tied and pulled into the car. He said, “And they slammed my head into a wall”. The booking sergeant then asked a series of questions relating to the Complainant’s mental health, drug and alcohol use, etc. The Complainant became unresponsive. The booking sergeant informed the Complainant that a level three search was going to be conducted and explained the process to him. The Complainant continued to be unresponsive but was otherwise cooperative. The handcuffs were removed from his ankles and the Complainant was escorted by SO #1 and SO #2 towards a room to be searched. The video ends.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Arrest Details;
  • Duty Roster;
  • Event Details Report;
  • General Occurrence Report;
  • Cell Block Video – 31 Division;
  • Cell Block Video – 32 Division;
  • ICCS Video from Police Vehicles; and
  • Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, and WO #7.

Relevant Legislation

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.

Analysis and Director's Decision

On July 17, 2017, the Complainant attended Osgoode Hall while bound by a bail condition that he not attend the York University campus. He was also subject to an arrest warrant for failing to appear for court. The Complainant refused to leave and the police were notified. The subject officers, SO #1 and SO #2, arrived and attempted to arrest the Complainant, but the Complainant reportedly went limp and fell to the floor. The officers had to half-drag, half-carry the Complainant out of Osgoode Hall and during his transport he was allegedly bumped into a wall. The Complainant subsequently complained of a headache and was brought to a hospital where he was diagnosed with a mild concussion.

The SIU was not notified of this incident until the Complainant filed a complaint with the OIPRD. In furtherance of its investigation, the SIU interviewed the Complainant, two civilian witnesses and seven witness officers. ICCS and booking videos from the Complainant’s arrest were also reviewed. Despite this evidence, several important details of this incident remain uncertain and I am therefore unable to form reasonable grounds to believe that either subject officer committed a criminal offence in relation to the Complainant’s allegation.

The Complainant was previously charged with public mischief and released on bail with a condition that he not attend York University’s campus at 4700 Keele Street, Toronto. At the time of the incident, he was also the subject of an arrest warrant for failing to appear to court.

The TPS became aware of the Complainant after a York University security official called 911 to report a trespassing individual at Osgoode Hall. At around 10:45 a.m. SO #1 and SO #2 arrived at Osgoode Hall and attempted to arrest the Complainant. The Complainant allegedly reacted by going limp and dropping to the floor. The officers dragged the Complainant from the area and the Complainant was allegedly bumped into a wall, hitting an unknown part of his body. He was then taken outside where he was placed on the ground. SO #2 put his foot on the Complainant’s back because he had concerns for officer safety, and removed his foot when WO #1 arrived and said that the Complainant did not appear to be a threat. The Complainant was then placed into the back of a police cruiser where he kicked at the interior of the cruiser.

After careful consideration of the evidence, I am unable to conclude that either officer committed a criminal offence in relation to the Complainant’s allegation because there is simply insufficient evidence to support the allegation. It is alleged that the Complainant was intentionally bumped into a wall causing his concussion, but I do not believe the Complainant is a credible witness. The Complainant made a number of additional allegations against the subject officers that were not substantiated by the civilian witnesses who witnessed the arrest and did not describe any overly aggressive use of force against the Complainant. I believe the civilian witnesses, who were independent of both the Complainant and the subject officers. The Complainant’s inconsistencies with the civilian witnesses are significant because they suggest that the Complainant has misrepresented or exaggerated the officers’ actions. I am accordingly unwilling to attribute much weight to the allegation that the Complainant was intentionally swung into the wall.

On the remainder of the evidence, I am unable to find that either subject officer committed an assault or was criminally negligent in relation to the allegation. Assault causing bodily harm is made out where a person intentionally applies force to another person, without the consent of that person, and that force causes bodily harm. While I believe that the Complainant was bumped into a wall, it is unclear what part of the Complainant’s body hit the wall and whether the bump occurred because of gratuitous force or an accident. Two civilian witnesses saw the bump although their description of the bump was equivocal and does not establish that it was intentional.

I will now consider whether a subject officer committed criminal negligence in relation to the bump. Criminal negligence does not require intentional force and instead requires conduct that shows a wanton or reckless disregard for the safety of others and a “marked and substantial departure from the standard of a reasonable [person] in the circumstances” (R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.)). This is a high threshold that is not met on these facts. It was absolutely reasonable for the officers to carry the Complainant out of Osgoode Hall because he refused to leave and there is simply no evidence that the conduct of the officers departed from the standard of the reasonable police officer, let alone demonstrated a wanton and reckless disregard for the Complainant’s safety.

I am further satisfied that the remainder of the force used against the Complainant does not give rise to criminal culpability. Pursuant to s. 25(1) of the Criminal Code, police officers are permitted to use force reasonably necessary in the execution of their lawful duties. The officers were clearly acting within the execution of their lawful duties when they arrested the Complainant because he was subject to an arrest warrant. There is no doubt that force was used to pick the Complainant up, carry him outside and place him in the police cruiser. This effort left the officers sweaty and out of breath. While waiting for the police cruiser to arrive, SO #2 placed his foot on the Complainant’s back because he thought the Complainant was a threat. I am mindful that WO #1 thought the Complainant was not a threat after he was arrested and that SO #2 did not need to put his foot on the Complainant’s back to safely restrain him. I am also mindful that the jurisprudence on use of force clearly states that the standard to which officers are to be held is not perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are police officers expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). After a careful review of the circumstances, including SO #2’s awareness that the Complainant was at risk of acting unpredictably and drastically [1], I am satisfied that the subject officers’ use of force during the arrest did not exceed the amount of force permitted by law.

In closing, I am unable to find reasonable grounds to believe that either subject officer committed a criminal offence in relation to the arrest because there is insufficient evidence establishing the act was intentional or criminally negligent. I have also considered the remainder of the force used during the arrest and find it within the scope permitted by law. The file will be accordingly closed.


Date: December 20, 2018



Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) It was broadcast over police radio that CPIC indicated that the Complainant was suspected of wanting to commit “suicide by police.” [Back to text]