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SIU Director’s Report - Case # 18-TCI-141

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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 24-year-old man.

The Investigation

Notification of the SIU

On May 11, 2018 at 9:00 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury. Reportedly, on May 11, 2018 at around 3:30 p.m., TPS police officers were called to a residence on Brentcliffe Road in Toronto to assist Animal Services Officers and a Public Health Nurse with an animal complaint investigation. After Animal Services Officers seized the dog in question, police determined the Complainant, who was inside the residence, was in breach of a restraining order. Subsequently, TPS police officers attempted to arrest the Complainant for the breach. During the arrest the Complainant resisted the police officers and during the melee WO #1 injured his eye. In order to gain control of the Complainant during a violent struggle WO #2 deployed a Conducted Energy Weapon (CEW) and the subject officer (SO) and WO #1 were able to subdue and handcuff the Complainant. After his arrest, the Complainant complained of a sore arm and was taken to Sunnybrook Health Sciences Centre (SHSC). At the hospital he was diagnosed with having suffered a fractured ulnar bone in his right arm requiring surgery at a later date.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

The Complainant was arrested inside the basement apartment rented by CW #6 on Brentcliffe Road. The scene was not held for SIU purposes. The Complainant was arrested at 3:59 p.m., and his injuries were not known until 8:30 p.m.

Physical Evidence


CEW Download


On May 11, 2018, at 3:16:53 p.m., WO #2 turned on his CEW. At 3:16:54 p.m., he pulled the trigger and deployed his CEW for five seconds. WO #2 turned off his CEW at 3:16:59 p.m.

At 3:17:09 p.m., WO #2 turned on his CEW and at 3:17:10 p.m., he used the drive stun mode for one second. At 3:17:12 p.m., he deployed the CEW once more in the drive stun mode for one more second. At 3:17:12 p.m., WO #2 turned his CEW off.

Video/Audio/Photographic Evidence

There were no CCTV recordings that captured the Complainant’s arrest.

Communications Recordings

The Communication Recordings were reviewed; however, they had no evidentiary value in that they did not speak to the arrest and amount of force used by police on the Complainant.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Event Details Report;
  • General Occurrence Report;
  • Injury Report;
  • Notes of WO #1, WO #2, WO #3, WO #4, and the SO;
  • TPS Dog Bite Incident Report;
  • TPS Procedure Use of Force;
  • TPS Procedure Arrest; and
  • TPS Procedure Criminal Code Release.


TPS Injury Report


The SIU obtained a TPS injury report, dated May 11, 2018, and completed by an undesignated police officer. According to the report, members of the TPS 53 Division Community Response Unit (CRU) were assisting Animal Control officers at the residence at Brentcliffe Road. During police interaction with the Complainant a CEW was deployed. Furthermore, the report noted that police also used a baton to gain control of the complainant. The report does not name the police officer that used the baton.

Subsequently, the Complainant was transported to SHSC by ambulance and was treated by a physician. At 8:30 p.m., The Complainant was diagnosed with a broken right arm.

Incident Narrative

The events in question are largely clear based on the information collected in the SIU’s investigation, which included interviews with the Complainant and two of the three officers involved in the arrest, a review of the notes authored by the third officer, the SO (who declined, as was his right, to be interviewed by the SIU), statements from six civilian witnesses who were present in and around the scene at the time in question, and data downloaded from a CEW that was deployed against the Complainant.

The SO, in the company of WO #1, WO #2 and two other officers, arrived at the Brentcliffe Road address on the date in question to support a Public Health inspector and Animal Services officers as they sought to take custody over a dog pursuant to a seizure order. The dog in question belonged to the Complainant, who was present with his dog at the property – an apartment rented by CW #6 – in violation of a restraining order. CW #6 answered the door and relinquished custody of the dog without incident. When asked by the officers whether the Complainant was present in the apartment, CW #6 said he was not. CW #5, the Complainant’s mother, noticed the police cruisers at the address and made her way to the top of the stairway leading to the front door of the basement apartment. She objected to the dog’s seizure and otherwise expressed concern for the manner in which the officers might treat her son should he be located in the apartment. Soon thereafter, the Complainant opened the front door and punched WO #1, who with the SO was standing at the doorway. WO #1 reacted by pushing the Complainant backward through the door, into the apartment and onto the living room couch. What followed was a short but violent struggle in the course of which the Complainant continued to punch at WO #1, at one point gouging the officer’s right eye, and was met with punches to the head and body by WO #1, three discharges of WO #2’s conducted energy weapon and two baton strikes delivered by the SO (the first to the Complainant’s right thigh, the second to his right forearm). The Complainant was eventually subdued following the second baton strike, which likely caused his injury, and taken into custody.

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

In the middle of the afternoon on May 11, 2018, TPS officers attended a residence on Brentcliffe Road in Toronto to assist with the seizure of a dog. Soon after the dog had been removed from premises, a melee ensued between three of the officers and the Complainant, who was present on the property at the time. The Complainant was arrested and taken to hospital, where he was diagnosed and treated for a broken right forearm. For the reasons that follow, I am satisfied that there are no reasonable grounds to believe that any of the three officers, including the subject of the SIU’s investigation, the SO, 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 restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Moreover, under section 34 of the Criminal Code, any person, including a police officer, is legally justified in using force in self-defence or the defence of another against an assault if the force in question is reasonable in the circumstances. Given the restraining order in effect, the officers had clear grounds to arrest the Complainant when he appeared at the doorway. They were also well within their rights to arrest the Complainant when he suddenly and without provocation attacked the officers. Thereafter, I am satisfied that the force used by the officers, consisting of three discharges from a CEW, a number of punches and a couple of baton strikes, fell within the range of what was reasonably necessary given the violence with which the Complainant instigated the altercation and then resisted his arrest. In arriving at this conclusion, it is important to note that the use of the CEW and the first baton strike to the Complainant’s leg appear to have done little to quell his fight; it was only after the second baton strike that the officers were able to overcome the Complainant’s resistance and secure him in handcuffs.

In the result, while I accept that the second of the SO’s two baton strikes likely fractured the Complainant’s right forearm, I am satisfied on reasonable grounds that both strikes, as well as the force used by WO #1 and WO #2, were legally authorized under sections 25(1) and 34 of the Criminal Code. Consequently, there is no basis for proceeding with charges in this case and the file is closed.


Date: May 3, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit