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SIU Director’s Report - Case # 18-TCI-061

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 the serious injury reportedly sustained by a 26-year-old man (the Complainant) during an interaction with police on February 25, 2018.

The Investigation

Notification of the SIU

At approximately 12:15 a.m. on February 26, 2018, the Toronto Police Service (TPS) notified the SIU of a custody injury sustained by the Complainant.

The TPS reported that at 3:30 p.m. on February 25, 2018, TPS officers came across a motor vehicle collision on Annabelle Drive, in the City of Toronto. The involved motor vehicle was observed to have front end damage as a result of striking a tree. The Complainant was standing outside of the vehicle looking at the damage and handed over a bag of marijuana to a police officer. The police officer attempted to arrest the Complainant, but the Complainant then fled on foot.

The Complainant was apprehended after a struggle during which he kicked and punched the police officer.

The Complainant complained of an injury and was taken to the hospital where he was diagnosed with a fractured orbital bone.

The Team

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

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary

Subject Officers

The SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.



Incident Narrative

During the afternoon of Sunday, February 25, 2018, the Complainant was observed by two plainclothes police officers who were in an undercover police vehicle. The Complainant was in a plaza which was well known by the police officers for illegal activity, including offences involving drugs and weapons. The police vehicle was being operated by WO #1, with the SO as passenger.

The SO and WO #1 watched the Complainant engage in a suspicious interaction with another male in a vehicle. Due to insufficient evidence to make an arrest, both men were allowed to leave the plaza without any interaction with police; each man left in a separate motor vehicle.

The SO and WO #1 then decided to re-locate to another area to conduct surveillance and they pulled out of the plaza and drove a short distance along Annabelle Drive, where they came across a single motor vehicle collision. The motor vehicle involved in the collision was the same motor vehicle which the police officers had observed being operated by the Complainant from the plaza. The Complainant had apparently lost control of his vehicle after failing to negotiate a bend in the road, and struck a small tree.

The SO and WO #1 exited their police vehicle, approached the Complainant, and identified themselves as Toronto police officers; they then commenced an investigation into the collision. The SO asked the Complainant if he had been drinking or using drugs, at which point the Complainant reached into his pocket and retrieved a bag of marijuana, which he then handed to the SO.

The SO advised the Complainant that he was under arrest for possession of a controlled substance, whereupon he took control of the Complainant, directed him to the front of the police vehicle, and requested that he put his hands on the hood in order that he be searched incidental to arrest, prior to being placed into the police vehicle. The Complainant then suddenly ran off on foot, with the SO in foot pursuit and WO #1 following shortly thereafter and at a slight distance behind.

As the SO was pursuing the Complainant, he tackled the Complainant to the ground, following which there was a brief struggle. When WO #1 caught up to the two men, he and the SO were able to take control of the Complainant and he was handcuffed.

The SO noticed that the Complainant was bleeding, and an ambulance and additional police officers were requested to attend. The Complainant was then transported by ambulance to the hospital.


Nature of Injuries / Treatment

The Complainant underwent a CT scan and it was determined that he had sustained a fractured right orbital bone (bone in the eye socket). He also had a laceration in the area of his right ear, which was sutured. He was prescribed antibiotics and released without any further treatment, with follow-up appointments recommended.

Evidence

The Scene

The incident occurred directly in front of a residence on Annabelle Drive in the City of Toronto. Annabelle Drive is a residential street on the west side of Kipling Avenue between Finch Avenue and Steeles Avenue; it is a two lane roadway which runs in a general northwest direction and is lined with detached single family homes. On the east side of Kipling Avenue, opposite Annabelle Drive, is Rowntree Road.

Photo of collision scene provided by CW #1

Photo of collision scene provided by CW #1

The plaza where the SO and WO #1 observed the Complainant prior to their interaction on Annabelle Drive is located at 2687 Kipling Avenue, which is on the southeast corner of Kipling Avenue and Rowntree Road. 

On February 25, 2018, the weather was clear and warm and the road was dry. The incident occurred mid-afternoon on a fairly quiet Sunday.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

No video or audio recordings were located at the scene. 
 
Two photographs of the scene were provided to the SIU by civilians. They were taken that afternoon, prior to the scene being cleared by the TPS.

The first was from CW #1 and was taken from the opposite side of the street looking across to the scene where the Toyota was visible on an angle partially off the road near the tree in front of a residence on Annabelle Drive. The engine hood was up and damage was visible to the tree. There was a field of debris on the ground and there may have been a person standing at the front of the Toyota looking into the engine compartment.

The second photo was of the Toyota resting against the small tree on the boulevard. The undercover police vehicle was visible parked in the street to the east of the Toyota. The police vehicle’s red and blue emergency lights were activated.

At some point after sunset, and after the Toyota had been removed, photographs of the scene were taken by a TPS scenes of crime officer (SOCO). In the photographs was a small pool of dried blood on the driveway of a second residence on Annabelle Drive, consistent with the location where the Complainant was arrested. Photos had also been taken of the drugs seized from the Complainant.

Photographs of the scene were taken by a TPS scenes of crime officer (SOCO). In the photographs was a small pool of dried blood on the driveway of a second residence on Annabelle Drive, consistent with the location where the Complainant was arrested.

Communications Recordings

The police radio communications revealed that at 3:24 p.m., the SO and WO #1 logged onto the police radio and told the dispatcher that they were on the scene of a collision on Annabelle Drive.

WO #1 then reported that, “we’re talking to the driver,” followed one minute later by a report that the Complainant was fleeing on foot. About 38 seconds later, WO #1 reported that the Complainant was in custody.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:

  • Police Transmissions Communications Recording;
  • Event Details Reports (x3);
  • General Occurrence Report;
  • Injury Report;
  • Motor Vehicle Collision Report;
  • Notes of WO #s 1-8;
  • Procedure: Surveillance;
  • Procedure: Controlled Drugs and Substances;
  • Procedure: Use of Force;
  • TPS Scene Photos;
  • TPS Civilian Witness Statement from CW #1; and
  • TPS Contacts with the Complainant.


The SIU obtained and reviewed the following materials and documents from other sources:

  • Medical Records of the Complainant related to this incident, obtained with consent;
  • Scene photo taken by CW #1; and
  • Scene photo taken by an undesignated Civilian.

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.

Section 4(1), Controlled Drugs and Substances Act -- Possession of substance

4 (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.

Analysis and Director's Decision

On February 25, 2018, the SO and WO #1 of the TPS were conducting surveillance at a premises known to them to have had prior reports of incidents involving drugs and weapons, on Kipling Avenue, in the City of Toronto. During the course of their surveillance, they observed the Complainant come out of a restaurant with some take-out food. As the Complainant approached his motor vehicle, he appeared to have a conversation with another male who was driving a white BMW, and he then briefly sat in the BMW, before getting out and returning to his own motor vehicle, a Toyota. Both the BMW and the Toyota then drove off. Since both the SO and WO #1 had insufficient evidence that anything of a criminal nature had gone on, both vehicles were allowed to leave without the officers ever making their presence known.

Once the two motor vehicles had left the parking lot, with nothing else going on, the SO and WO #1 decided to re-locate to another area to carry out surveillance for any possible illegal activities and WO #1 drove their unmarked police vehicle out of the parking lot, eventually ending up on Annabelle Drive. As they drove down Annabelle Drive, the police officers observed the same Toyota motor vehicle that had been in the parking lot. The Toyota had apparently been involved in a single vehicle collision with a tree in front of a residence on Annabelle Drive.

WO #1 pulled over his police vehicle and both officers exited with the SO approaching the driver of the Toyota, the Complainant, while WO #1 spoke to a civilian witness, CW #1, who had apparently come out of his home to assist when he heard the collision. Following the arrest of the Complainant, he was observed to be bleeding from his head/facial area and he was transported to hospital where a CT scan revealed that the orbital bone on the right side of his face had been fractured; the Complainant also received four stitches in the area of his right ear lobe, which was obviously the source of any bleeding at the scene. Additionally, the Complainant complained that he had a chipped tooth on the right side of his face and that his teeth had been pushed back, for which he was referred to a dentist for follow-up.

According to the Complainant, on February 25, 2018, he purchased takeout food and was driving home when the food, which was on the front passenger seat, fell over and he lost control of his car and hit a tree, causing the driver side airbag to deploy. The Complainant indicated that he briefly lost consciousness for one second, and then jumped out of the car. He described the only injury received by him as a result of the collision as being a minor strain to his neck, but no injuries to his face, and no bleeding.

The Complainant then described the SO and WO #1 arriving and identifying themselves as police officers. The SO asked the Complainant if he was impaired and grabbed his right hand and placed it on the hood of the police vehicle; the SO then told the Complainant to place his left hand on the hood. The Complainant indicated that the SO told him that the police had observed the Complainant when he got in and out of another car at the restaurant and that is why they followed him. The Complainant, however, does not assert that the police ever pursued him or that they were in any way responsible for his collision.

The Complainant advised that the SO then began to search him, causing the Complainant to run away because he had a package of drugs on him, although he could not recall what the drugs were. The Complainant only managed to run a short distance however, when the SO tackled him and he landed face first on the right side of his face on a paved driveway. He alleges that the SO smacked the right side of his face into the pavement.

The Complainant claimed that he did not resist, but kept repeating that he did not want to go to jail. He described the SO as being on his back and pressing his (the SO’s) left forearm down on top of the left side of the Complainant’s face, which then caused the right side of his face to make contact with the paved surface. When the Complainant tried to lift his head up, someone, he assumed the SO but he could not actually see who it was, punched him numerous times on the right side of his face. The Complainant advised that he told the doctor at the hospital that his injury was not caused by the collision, but later, at the police station, because he was scared, he told the sergeant (presumably the booking sergeant) that his injury was as a result of the collision.

Despite the Complainant’s statement as to what he told the doctor as to the cause of his injury, I note that the version of events as noted in his medical records, the source of which is the Complainant himself and the EMS, indicates the following:

Pt. (patient) driving his car and reached for food on the passenger seat. Ran into a tree, both airbag deployed and pt. sustained R ear, R eye and facial trauma. Blood in his mouth and tooth pushed back. Pt. blew his nose and air pocket noted under eye with possible sinus injury.

According to CW #1, a totally independent and uninvolved third party, he heard the collision and then observed the Complainant get out of the driver’s door of the Toyota. CW #1 approached the Complainant and asked him several times if he was okay; the Complainant appeared dazed and confused, and took his cellphone and threw it on the ground, advising CW #1 that he had been looking at his cellphone and subsequently struck the tree. CW #1 did not observe any injuries to the Complainant at that time.

CW #1 then observed that within one to two minutes after the collision, the SO and WO #1 arrived at the collision scene and the SO approached the Complainant, identified himself as a police officer, and showed his badge by way of identification. The SO asked the Complainant if he was okay and asked him to walk over to the police vehicle. CW #1 heard the SO ask the Complainant if he had consumed any drugs or alcohol and the Complainant replied in the negative. The SO then directed the Complainant to empty his pockets, but the Complainant kept his left hand in his pocket. The SO repeated his request a number of times, with no compliance by the Complainant.

CW #1 described the Complainant then running away from the SO, southbound on Annabelle Drive, and the SO and WO #1 pursuing him on foot. CW #1 described the SO tackling the Complainant from behind, within about 10 to 15 feet, indicating that the SO lunged and grabbed at the Complainant, and both fell to the ground beside a parked SUV on Annabelle Drive. CW #1 described hearing a distinctive sound, as if something had struck metal, and he believed that the Complainant may have struck the SUV as he fell to the ground.

Once down, CW #1 described the Complainant as resisting the officers, and heard the officers tell him several times to stop. The Complainant, while initially refusing to drop whatever he had in his hand, was then seen to drop a bag of cocaine onto the driveway.

When WO #1 then held the Complainant down on the ground on his stomach, and placed his hands behind his back, the SO was able to handcuff him. The Complainant was then sat up by the police officers, and CW #1 again had an opportunity to observe the Complainant’s face. He described the Complainant as looking as if he had been tackled, with his hair all over the place, but he still observed no visible injuries. CW #1 indicated that neither the SO, nor WO #1, delivered any strikes or kicks to the Complainant, nor did they resort to any of their use of force options. CW #1, who had experience in the military, was of the opinion that the force used by the officers to arrest the Complainant was completely acceptable.

Contrary to the evidence of CW #1, however, CW #2, another civilian in the area, while not observing the arrest of the Complainant, described seeing him half sitting/half lying in the corner of CW #2’s driveway near his SUV. Unlike CW #1, CW #2 observed that the Complainant had blood running down his arm and hand onto the ground, but he could not see the source of the blood. CW #2 never saw any police officer with his hands on the Complainant.

On the basis, then, that CW #1 did not see injuries to the Complainant either after he exited his vehicle, or after his arrest, I cannot find his evidence as being conclusive that the Complainant was not already injured as a result of the collision, as it is clear that the Complainant was clearly injured at some point, and he was bleeding heavily while on the ground at the foot of CW #2’s driveway, based on the blood located on the driveway and as seen by CW #2.

Based on this evidence, then, I note that it is as possible that the Complainant was injured in the motor vehicle collision, as he told medical staff at the hospital, as it is that his injuries were sustained when he was punched in the face while on the ground, of which there is no mention by the Complainant in his medical records.

Equally possible, however, is that the Complainant fractured his orbital bone when he was tackled to the ground by the SO and he either struck the side of the SUV parked in the driveway where he was taken to the ground, as indicated by CW #1, or the right side of his face struck the driveway, as indicated by the Complainant himself.

Finally, it may well be that the Complainant’s injuries were a combination of events, with his orbital bone fracture having occurred during the collision and deployment of the airbag, while the laceration to his ear was caused when he was tackled to the ground. I find this last scenario is supported by the following facts: the Complainant described the collision as so severe as to cause him to momentarily lose consciousness; neither the SO nor CW #1 saw the Complainant bleeding after he exited the car and before he was tackled to the ground; the SO observed that the Complainant already had red marks and swelling to the right side of his face before he ran off; the photos of the interior of the vehicle do not appear to reveal any blood on the airbag; and the Complainant was clearly bleeding at the time that he was down on the ground, as witnessed by CW #2 and the SO, and as evidenced by the blood located on the pavement.

With respect to the Complainant’s credibility, I note that there were several inconsistencies between his statement to the civilian witness at the scene, his comments to medical staff at the hospital, and his statement to SIU investigators, which made him a less than reliable witness. Among those inconsistencies were that CW #1 indicated that the Complainant told him that the cause of the accident was that he was looking at his cellphone, which also appears consistent with the SO’s evidence wherein he indicated that the Complainant told him that he had dropped his cellphone and was trying to pick it up; his medical records indicate that he was reaching for his food on the passenger seat; and, his statement to SIU investigators indicated that his food fell over causing him to lose control of the car.

Additionally, while the Complainant claimed to have lost consciousness immediately following the collision, I note that his medical records indicate that he indicated no loss of consciousness. Another inconsistency between the evidence of the Complainant and the independent civilian witness, CW #1, is the assertion by the Complainant that he never resisted police, while CW #1 asserted that the Complainant was actively resisting police and that he heard one of the police officers tell the Complainant to stop resisting some three to four times.

Finally, even were the Complainant’s credibility not a live issue in this matter, I note that he specifically attributes his injuries to being punched in the face several times by a person who he cannot identify because he could not see who was punching him, but he assumes was the SO. Clearly, an assumption, not based on clear evidence, cannot lead to reasonable grounds to believe that the perpetrator of the alleged punches was the SO, and not WO #1.

I have to admit that had the SO and WO #1 not provided statements to the SIU indicating that the SO did indeed deliver several distractionary punches to the Complainant, while the Complainant and the SO were on the ground and the Complainant was actively resisting his arrest, I would have found that no punches were ever delivered by either police officer, and that there was no other conclusion but to find that the Complainant was either injured in the collision, or when he was tackled to the ground and struck his face either on the SUV in the driveway, or on the pavement where he went down face first, striking the right side of his face, where all of his injuries were located.

On the facts before me that are not in dispute, that being of a man involved in a collision who refuses to take his hand out of his pocket when directed to do so by police, then flees from police while being investigated and has to be tackled to the ground to avoid escape, and then continues to actively resist police, I would find pursuant to s. 25 (1) of the Criminal Code, which exempts a police officer from prosecution if he acted on reasonable grounds and used no more force than justified and necessary in the execution of a lawful duty, [1] that the actions of the SO were both measured and proportionate to the resistance being put up by the Complainant and that the distractionary strikes delivered to the Complainant’s face and body, as conceded by the SO, while he continually commanded the Complainant to stop resisting, were both justified and necessary and did not amount to an excessive use of force on this record. I find further support in this conclusion based on the eye witness evidence of CW #1.

In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows: 
 
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

However, in the absence of any definitive evidence that the Complainant’s injuries were caused by police, as opposed to the collision, with the medical records clearly indicating that they were proceeding on the basis of the Complainant’s statement to them that his injuries were indeed caused by the collision, I am unable to find reasonable grounds to believe that any police officer was responsible for the Complainant’s injuries.

On the undisputed evidence, there is no question that the collision, if it was the cause of the serious injury, was in no way influenced or caused by police and therefore police could not have been responsible for the injury.

On all of the evidence, I find that it is most likely that the Complainant was injured either during the collision, when his air bag deployed, or when he was tackled to the ground, while trying to escape and struck the right side of his face on the pavement. Based on the evidence of CW #1, I reject the Complainant’s evidence that he was repeatedly punched in the face by a police officer who he cannot identify, thereby causing his injuries.

In conclusion, on the record before me, I find that the evidence does not satisfy me that there are reasonable grounds to believe that the SO resorted to an excessive use of force in tackling a fleeing male to the ground, and then delivering a number of distractionary strikes in order to stop his resistance and place him in handcuffs.

Nor does the evidence leave me with reasonable grounds to believe that there is a causal connection between the serious injury sustained by the Complainant and the actions of the SO, as opposed to the injury being the result of the motor vehicle collision. As such, in the
absence of some definitive evidence as to the source of the Complainant’s injuries, I lack the necessary grounds upon which to lay criminal charges and none shall issue.


Date: January 15, 2019


Original signed by

Tony Loparco
Director
Special Investigations Unit
















Footnotes

  • 1) The police officers had a lawful duty to investigate the single vehicle collision and had the right to legally detain the driver for the purpose of conducting that investigation. When he fled, they were justified in pursuing him and trying to stop him using reasonable force to continue their investigation. [Back to text]