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SIU Director’s Report - Case # 18-TCI-052

Contents:

News Releases for this Case:

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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 20-year-old male during his arrest on February 21, 2018.This report relates to the SIU’s investigation into a serious injury sustained by a 20-year-old male during his arrest on February 21, 2018.

The Investigation

Notification of the SIU

On February 21, 2018, the Toronto Police Service (TPS) notified the SIU of the Complainant’s vehicle injury. According to the TPS, the Complainant was in a stolen vehicle when plainclothes officers attempted to stop him. The Complainant fled and was involved in a collision, but it was unclear if the police were directly involved at that time. He was taken to North York General Hospital (NYGH) where he was diagnosed with a fractured jaw, which required surgery.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 4

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Not interviewed [1]
CW #3 Not interviewed [2]
CW #4 Not interviewed [3]
CW #5 Interviewed
CW #6 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Not interviewed [4]
WO #10 Interviewed
WO #11 Interviewed
WO #12 Not interviewed [5]
WO #13 Not interviewed [6]
WO #14 Not interviewed
WO #15 Not interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Incident Narrative

On February 21, 2018, the TPS located a stolen Ford Fusion in the rear parking lot of 6020 Bathurst Street. Plainclothes officers waited in unmarked police vehicles for someone to enter the vehicle.

At around 2:38 p.m., the Complainant entered the Ford Fusion and Witness Officer (WO) #3 maneuvered his vehicle to block the path of the stolen vehicle. WO #3 exited his vehicle and ordered the Complainant out of the vehicle, but the Complainant reversed the Ford Fusion, colliding with parked vehicles, before driving onto the grass to go around WO #3’s vehicle. He struck a high concrete curb before turning south onto Bathurst Street.

The Subject Officer (SO) activated his emergency lights and pursued the Complainant at a moderate speed. WO #1 noticed the Ford Fusion and joined the pursuit. Together, the SO and WO #1 attempted to execute a tandem stop on the Ford Fusion – with the SO driving in front of the Complainant’s vehicle and slowing down while WO #1 was positioned at the rear of the Complainant’s vehicle. The Complainant’s vehicle did not stop and rear ended the SO’s vehicle. WO #1 attempted to drive beside the Complainant’s vehicle, but his vehicle was sideswiped by the Complainant’s vehicle.

The Complainant exited the stolen vehicle on foot and fled southbound along a high rise building at 4979 Bathurst Street. He had a knife in his hand and the SO and WO #1 pursued him. The Complainant jumped over a fence at the south end of building and the officers pursued him northbound through the building’s rear driveway and parking lot.

CW #1 was driving nearby, and had noticed the collision and witnessed the officers chasing the Complainant. He decided to intervene, followed the Complainant and used his vehicle to block the Complainant’s path. CW #1 then exited his vehicle and took the Complainant to the ground, causing him to strike his chin as he fell to the ground.

Within seconds, the SO and WO #1 arrived and held the Complainant on the ground. The SO was the first officer to arrive and brought his foot down on the Complainant’s neck before transitioning to use his knee. The SO controlled the Complainant’s upper body while WO #1 controlled his lower body. The Complainant was handcuffed, searched and a knife was found. He appeared to be missing a tooth and was later diagnosed with a fractured jaw.

Evidence

The Scene

The scene of the motor vehicle collision and the arrest was processed according to SIU procedures. The arrest occurred in the rear driveway, near the rear entrance to the apartment building.

Video/Audio/Photographic Evidence

4979 Bathurst Street Security Video

The video supports the statements of all parties describing events up to the arrest or apprehension of the Complainant within the rear driveway area. The time span of concern was 25 seconds in length. The Complainant fell forward from the left side of the screen and landed on both hands, on the pavement. He was visible only from the torso up. The Complainant struck the front of his face in the area of the chin on the ground. His head bounced upward and then struck the ground a second time. The Complainant was now completely on the pavement. The arm of a man [now known to be CW #1] can be seen on the back of the Complainant, just below the head. The Complainant placed both hands to the top of and under his head. CW #1 was seen on the back of the Complainant looking back up the driveway. The silhouette of two men running north toward the camera were now more visible. The men [now know to be WO #1 and the SO] were just a few feet to the south of the Complainant. The SO stopped short of the Complainant and raised his right leg directly over the area of the Complainant’s head and brought the right foot down in what could be described as a stomp to the area of the neck and shoulders of the Complainant. 
 

TPS Custody Video

At 8:46 p.m., on February 21, 2018, the Complainant arrived at 32 Division and was processed by an officer who questioned the Complainant about his broken jaw. The Complainant stated that, “When I went down to the ground the officer, I don’t know which one, I couldn’t see hit my face on the floor, knocked my tooth out.” The officer confirmed this happened when the Complainant was arrested. 

In-Car Camera System (ICCS) Footage with CW #1’s Statement

CW #1 was placed in the rear seat of the cruiser and was questioned by WO #6.

CW #1 stated that he was driving northbound on Bathurst and as soon as he passed Finch he saw a vehicle swerving and heard an impact. A black unmarked police vehicle was stopped and blocking the lane of traffic. Two plainclothes police officers got out of the car and CW #1 saw a young man [now known to be the Complainant] running away. The suspect was in his late teens or early twenties, and was wearing a red top and a blue jacket.

Traffic was pretty heavy and a lot of people were put in danger. He became upset and that’s why he became involved. CW #1 made a U-turn and went after the Complainant. CW #1 blocked the Complainant with his vehicle who gave up because he thought CW #1 was a police officer. CW #1 said he put him on the ground and an officer came in and arrested him. When the Complainant was on the ground he was searched and a pocket knife was found.

No further questions were asked about how the Complainant was put to the ground. 

ICCS Footage from WO #11’s Scout Car

The video depicts the route taken by the scout car as it traveled to 4979 Bathurst Street. At 2:45:59 p.m. the scout car is driven northbound in the rear parking lot of 4979 Bathurst Street. The parking lot has many cars in it. Five men are standing in a loose circle and in the centre of the five men is a man wearing a red jacket, sitting on the pavement and facing north. At 2:46:47 p.m., a male voice asks, “anybody outstanding, any injuries, any ambulance” and a male voice responds over police radio that nobody is outstanding they have one suspect in custody.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Booking Photos;
  • Collision Field Notes- WO #7;
  • Event Details Reports;
  • General Occurrence Report;
  • In Car Camera statement of CW #1 [7];
  • In car Camera footage from WO #11’s scout car ;
  • Motor Vehicle Accident Report (Collision Report)- WO #7
  • Narrative Text Hardcopy re Confirmation Stolen Vehicle;
  • Notes of SO, WO #1, WO #2, WO #3, WO #5, WO #6, WO #7, WO #8, WO #10, WO #11, WO #12, WO #13, WO #14, and WO #15;
  • Stolen Vehicle Occurrence;
  • Stolen Vehicle Recovered;
  • TPS Communications CD [9];
  • TPS Injury Report-completed by WO #5; and
  • TPS Service Vehicle Collision Reports by WO #4.


Upon request the SIU obtained and reviewed the following materials and documents:
  • Medical records for the Complainant;
  • Security Video from 4969 Bathurst Street, Toronto; and
  • Forensic Data Recovery Unit, Ministry of Finance materials and report. 

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 494, Criminal Code -- Arrest without warrant by any person

494 (1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or 
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and 
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person. 

Section 495(1), Criminal Code - Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Analysis and Director's Decision

On February 21, 2018, TPS officers pursued the Complainant in a stolen vehicle on Bathurst Street near Finch Avenue in Toronto. The pursuit ended when two police officers, the Subject Officer (SO) and Witness Officer (WO) #1, maneuvered their vehicles in front of and behind the stolen vehicle in an attempt to stop the Complainant. The Complainant did not stop and collided with both police vehicles. He fled on foot with a knife in his hand. As the officers chased the Complainant on foot down the driveway of 4979 Bathurst Street, Civilian Witness (CW) #1 drove ahead of the Complainant and stopped his vehicle directly in front of him to cut him off. CW #1 exited his vehicle and put the Complainant to the ground. The SO and WO #1 arrived seconds later. The SO put his foot on the base of the Complainant’s neck and the officers quickly handcuffed him. When the Complainant was lifted from the ground, he was bleeding, and looked like he was missing a tooth. He was taken to North York General Hospital where he was diagnosed with a fractured jaw.

The SIU’s investigation involved interviews with the complainant, three CWs, the subject officer and ten WOs. The SIU also reviewed communications recordings, building video from 4979 Bathurst Street and in-car camera system (ICCS) footage from two police vehicles. While there are some discrepancies in the witness statements, material differences can be resolved on a review of the building video which captured the Complainant’s takedown. For the reasons that follow, it is clear that the Complainant’s injury was caused when he was taken to the ground by CW #1 and I have no reasonable grounds to believe that the SO committed a criminal offence in relation to the injury.

The Complainant came to the TPS’s attention on February 21, 2018, after the TPS located a stolen Ford Fusion in the rear parking lot at 6020 Bathurst Street. The SO and WO #3 were dressed in plainclothes and waited in unmarked police vehicles for someone to enter the vehicle. At approximately 2:38 p.m., The Complainant entered the Ford Fusion and attempted to leave the parking lot. WO #3 drove his vehicle nose-to-nose with the Ford Fusion to block its path. WO #3 claims that he exited his vehicle, identified himself as a police officer verbally and by holding up his police badge, and told the Complainant to get out of the vehicle. The Complainant did not comply so WO #3 opened the driver’s door of the Fusion and repeated the orders. The Complainant revved the engine, reversed the vehicle and collided with a parked vehicle in the parking lot. The Complainant then drove over the curb and onto the grass to go around WO #3’s vehicle. The Complainant struck a high concrete curb, causing the Ford Fusion to sustain significant damage to the front of his vehicle, before turning south onto Bathurst Street.

The SO claims that he activated his emergency lights and pursued the Complainant at 60 to 65 km/h. The Complainant was travelling at 50 to 55 km/h. The SO’s police vehicle was not equipped with a radio and his portable police radio fell onto the front passenger floor. WO #1, who was en route to 6020 Bathurst Street at the time, joined the pursuit when he spotted the Ford Fusion. He followed it, maintaining a six to seven car lengths distance. The SO noticed that WO #1 was behind the Complainant and saw this as an opportunity to stop the vehicle. He drove in front of the Ford Fusion and slowed his vehicle to 30 km/h while adjacent to a traffic island. WO #1 positioned his vehicle on the rear bumper of the stolen vehicle in an attempt to execute a tandem stop. The Ford Fusion did not stop and collided with the left rear corner of the SO’s vehicle causing it to rotate. WO #1 attempted to get beside the Ford Fusion and the Ford Fusion also sideswiped his vehicle.

The Complainant alleged that the collision occurred differently than claimed by the SO and that in fact the SO rammed the Complainant’s vehicle from behind. I am unable to accept this version of the collision because it is not supported by the physical evidence. The SO’s vehicle sustained back end damage and no front end damage, which is consistent with the SO’s vehicle being rear-ended by the Complainant rather than the SO’s vehicle rear-ending the Complainant’s vehicle.

Regardless of the precise details of the collision, it is clear that the Complainant abandoned the stolen vehicle and fled from the police on foot. He ran southbound in front of a high rise building at 4979 Bathurst Street. The SO and WO #1 pursued him, yelling at him to stop. The SO threatened to use his Conducted Energy Weapon (CEW) on the Complainant (this was a ruse as he had left the CEW in his police vehicle). At the south end of the building there was a fence. The Complainant hopped over the fence and the officers pursued him northbound through 4979 Bathurst Street’s rear driveway and parking lot area.

The Complainant was ultimately apprehended when CW #1, acting as a Good Samaritan, witnessed the foot pursuit and assisted the police. CW #1 initially gave a statement to the TPS which was captured by ICCS where he claimed that he blocked the Complainant’s path with his vehicle and then put the Complainant on the ground. CW #1 reiterated this in a subsequent telephone statement to the SIU where he took sole responsibility for the Complainant’s take down – stating that he put his hand on the Complainant’s right shoulder and pushed him. He described the Complainant falling to the ground face first and said two police officers arrived within a couple of seconds. However, in CW #1’s second statement to the SIU, his statement changed which could have caused uncertainty over who grounded the Complainant. [10]

Thankfully, any uncertainty I had about who grounded the Complainant was resolved when I viewed the building video footage of the rear parking lot of 4979 Bathurst Street. Although the video was of poor quality, it captured the incident and depicted the Complainant running through the parking lot, followed by a vehicle which overtakes him on his left. The vehicle disappears and, within seconds, the Complainant is seen falling into the camera’s field of view. CW #1 comes into view behind him and can be seen pushing the Complainant to the ground face first. Seconds later, the SO and WO #1 arrive to control the Complainant. It is my opinion that this footage establishes that CW #1 was in fact responsible for the takedown and the TPS officers only arrived after the Complainant was grounded. This finding is also consistent with all other witness statements. The SO described CW #1 grabbing the Complainant’s right shoulder and arm and pulling him forward onto the ground. WO #1 did not see how the Complainant was taken down but said he saw him lying on the ground while he was about ten yards away. CW #1 grounding the Complainant was also not inconsistent with the Complainant’s statement to the SIU.

The video also shows the SO immediately putting his foot on the area of the Complainant’s neck when he arrived at the scene, and then transitioning to use his knee. The SO told the SIU that he did this because he was aware that the Complainant had a knife and wanted to control the Complainant’s upper body. WO #1 controlled the Complainant’s lower body by putting both his knees on the back of the Complainant’s legs. There are no allegations that the Complainant was hit, punched or kicked after he was brought to the ground and there is no evidence of any additional use of force captured on the surveillance video. After he was grounded the Complainant was handcuffed, rolled over and searched. A knife was found under his stomach. Several witnesses observed that he had blood on his mouth and appeared to be missing a tooth. [11] He was eventually diagnosed with a fractured jaw.

After a careful review of the evidence, I am unable to form reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injuries. I believe the Complainant’s injury was likely caused when the Complainant was initially taken to the ground by CW #1. The video depicted the Complainant falling forward with his chin extended in an upwards position. The manner in which he fell reasonably explains the injury and is consistent with the medical opinion as to mechanism of injury. Finally, there is no evidence that the Complainant was injured in the collision. It is not alleged that the Complainant was injured at this time and WO #1, who saw the Complainant exit from the stolen vehicle, said he did not appear to be injured. The Ford Fusion was also examined and there was no blood or any other evidence that the driver had been injured during the collision.

The only other action that theoretically could have caused the Complainant’s injuries was the SO using his foot to pin the Complainant’s upper body to the ground. The video confirms that the SO’s foot was brought down in the area of his neck although I do not believe the Complainant’s face was pushed into the pavement at an angle or with the amount of force that would have caused the injury. Even if I am wrong and the SO caused the injury, I still do not believe that the SO committed a criminal offence. Pursuant to s. 25 of the Criminal Code police officers are permitted to use reasonable force in the execution of their lawful duties. I believe the Complainant’s arrest was lawful because s. 495(1)(a) of the Criminal Code permits police officers to arrest a person without a warrant where they have reasonable grounds to believe the person has committed an indictable offence. The officers clearly had reasonable grounds to believe the Complainant had committed an indictable offence because he was in possession of stolen property when he entered the stolen vehicle.

I also believe that the SO’s actions were reasonably necessary in the circumstances. The Complainant demonstrated his willingness to engage in extreme behaviour to avoid arrest when he fled from the police in a stolen vehicle and crashed it into multiple vehicles before fleeing on foot. As he fled, the SO observed that the Complainant had a knife in his hand. In these circumstances, it was reasonable for the SO to assume that the Complainant was an immediate risk to the safety of himself, WO #1 and CW #1, and it was reasonable for him to take steps to neutralize that risk. It was absolutely reasonable for the SO to use his foot (which was the first part of his body to reach the Complainant) to pin the Complainant to the ground, before transitioning to using a knee after the Complainant was under control. The fact that the Complainant appears to have been compliant at this point is irrelevant given the Complainant’s prior behaviour which was erratic and dangerous. The SO reasonably assumed that the Complainant represented a risk of harm and was entitled to act accordingly. In coming to this conclusion, I am 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.)).

In closing, I do not have reasonable grounds to believe the SO committed a criminal offence in relation to the injuries because I find he did not cause the injuries. Even if I am wrong, I believe the force the SO used against the Complainant fell within the scope of the force that is permitted by law. No charges will issue and the file will accordingly be closed.



Date: January 23, 2019


Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) The TPS identified this young man who was in front of 4969 Bathurst Street at the bus shelter, but he was not interviewed. [Back to text]
  • 10) The reason why CW #1’s statement changed is unknown and it is possible that CW #1 changed his story to minimize his responsibility because he was worried about the potential consequences of our investigation. This troubles me as it signifies his confusion about the SIU’s mandate, which, to be clear, is to investigate the actions of police officers and not civilians. That being said, CW #1 would certainly have been entitled to arrest the Complainant pursuant to s. 494(1)(i) and (ii) of the Criminal Code and in the circumstances would receive the protection of s. 25(1) of that statute. [Back to text]
  • 11) In fact he had not lost a tooth but the fracture to his jaw made it appear as if he had. [Back to text]
  • 2) This witness provided access to a security video. [Back to text]
  • 3) This witnesses name was provided to the SIU by the TPS. On February 28, 2018, the witness was spoken to and he indicated that he saw nothing to assist the investigation. [Back to text]
  • 4) Partner of WO #10. [Back to text]
  • 5) Officers who weren’t interviewed were used for scene control. WO #12 took possession of stolen property in the Fusion. [Back to text]
  • 6) WO #13 went to the hospital to confirm the Complainant’s injury. [Back to text]
  • 7) CW #1 said that he took the Complainant to the ground, but was not asked how this was accomplished. [Back to text]
  • 8) This footage showed there were no concerns after the arrest of the Complainant. [Back to text]
  • 9) The communications held no significant information to assist with the causation of the injury. [Back to text]