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SIU Director’s Report - Case # 18-TCI-129

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 23-year-old man.

The Investigation

Notification of the SIU

On April 26, 2018, at 2:55 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury.

Reportedly, on April 26, 2018, at about 8:30 a.m., the Complainant was at a Starbucks in Scarborough. The Complainant became unruly, began causing a disturbance and was asked to leave. At one point, the Complainant threatened patrons and assaulted a Starbucks’ employee prior to being escorted from the premises by the manager. At some point police were called and attended.

Uniform TPS police officers found the Complainant near a TD Bank. The police officers approached the Complainant and placed him under arrest. The Complainant struggled with the police officers and was taken to the ground. Once subdued and in custody the Complainant complained of a sore left arm. The Complainant was transported to the Scarborough Centenary Hospital (SCH) where he was diagnosed with a fractured left arm (below the elbow). The Complainant was discharged from hospital, returned into the custody of the police and held for a bail hearing.

The Team

Number of SIU Investigators assigned: 4

Complainant:

26-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


Subject Officers

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


Evidence

The Scene

The Complainant was arrested in front of a TD Bank at a plaza in Scarborough. It was a large, paved, open space and exclusively commercial. The scene was not held for SIU purposes.

The Complainant was arrested at around 8:28 a.m., and his injury remained unknown until 1:00 p.m.

Video/Audio/Photographic Evidence


CCTV Video from Starbucks


The SIU obtained and reviewed a copy of a closed-circuit television (CCTV) video from the Starbucks, for April 26, 2018, between 8:00 a.m. and 8:30 a.m. No interaction between the Complainant and the police was captured in the recordings.

However, the recordings do show a physical altercation between the Complainant and Starbucks’ employee, CW #2.

In-Car Camera System (ICCS) Recordings from TPS Police Cruisers


The ICCS recording from WO #3’s police cruiser taken April 26, 2018, from 8:32 a.m. to 8:37 a.m., was reviewed and determined to have no evidentiary value. The recording did not show the arrest and subsequent handcuffing of the Complainant resulting in his injury.

The ICCS recording from WO #1’s police cruiser taken April 26, 2018, from 8:51 a.m. to 8:52 a.m., was reviewed and determined to have no evidentiary value. The recording did not capture the arrest and subsequent handcuffing of the Complainant resulting in his injury.

The ICCS recording from the SO and WO #2’s police cruiser taken April 26, 2018, from 8:58 a.m. to 9:09 a.m., was reviewed and determined to have no evidentiary value. The recording did not capture the arrest and handcuffing of the Complainant which resulted in his injury.

TPS Booking and Cell CCTV Recordings


CCTV recordings starting April 26, 2018, at 2:55 p.m., and ending April 27, 2018, at 9:22 a.m., were reviewed. These recording were of no evidentiary value since they did not depict the arrest and subsequent handcuffing of the Complainant resulting in his injury.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Booking Hall Video;
  • Cell Videos;
  • ICCS recordings; and
  • Notes of WO #1, WO #2 and WO #3.

Incident Narrative

The SIU’s investigation into the injury consisted of interviews with the Complainant, two civilian witnesses and three witness officers. The SO declined to submit to an interview or to provide his incident notes, as is his legal right. The SIU also received and reviewed the surveillance footage from the Starbucks and ICCS footage from multiple involved police vehicles, but none of this footage captured the arrest. From a review of this evidence, it is unclear exactly how the Complainant sustained his injury.

On April 26, 2018, the Complainant attended a Starbucks and got in a physical altercation with an employee. The SO, WO #1 and WO #2 responded to the call and WO #1 was the first to arrive. CW #1, a patron of the Starbucks, directed her to the Complainant who was close to a nearby TD Bank. The SO and WO #2 also arrived on the scene and WO #1 directed them towards the Complainant.

WO #1 reported that the SO and WO #2 were holding the Complainant’s arms when she arrived. As she approached, the Complainant lunged forward and attempted to head butt her, but she stepped to the side to avoid being struck. WO #1 assisted WO #2 in holding the Complainant’s right side and the officers took him to the ground. WO #2 attributed the takedown to the SO, although WO #1 described the takedown as a group effort using the three officers’ collective weight. Both officers said that the takedown was slow and gentle. The Complainant was eventually handcuffed on the ground.

After his arrest, the Complainant was transported to SCH where he was diagnosed with a fracture to his left arm.

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 April 26, 2018, the Complainant was diagnosed with a fractured left arm after he was arrested by TPS officers for assaulting a Starbucks’ employee in Scarborough. The precise cause of the Complainant’s injury is unknown. There is some evidence that the Complainant was injured when the SO punched him, but his injury may have also occurred during the physical altercation in the Starbucks or when he was taken to the ground during his arrest. For the reasons that follow, I do not believe that any TPS officer committed a criminal offence in relation to the Complainant’s injury.

On the evidence before me, I am unable to determine with any sort of certainty the precise cause of this injury. There is some evidence suggesting that the SO punched the Complainant once in the left arm prior to him being taken to the ground; however, I am unable to accept this evidence due to credibility issues with its source. Moreover, this is contrary to all other evidence including trustworthy evidence from an independent source. Instead, I believe it is quite possible that the Complainant was injured when the police took him to the ground on the concrete sidewalk or, perhaps as likely, during the fight in the Starbucks.

Pursuant to s. 25(1) of the Criminal Code, police officers are permitted to use force that is reasonably necessary in the execution of their lawful duties. In these circumstances, I have no hesitation finding that the officers were acting within the course of their lawful duties when they responded to the 911 call. After CW #1 identified the Complainant to the police officers as the suspect related to the call, they had reasonable grounds to believe he had committed an assault and uttered threats contrary to s. 265 and s. 264.1(1)(a) of the Criminal Code, and could arrest him without a warrant pursuant to s. 495(1)(a) of the Criminal Code. I also believe the use of force was reasonably necessary in the circumstances. While it is clear significant force was used to restrain the Complainant and take him to the ground, the Complainant was resisting a lawful arrest, ignoring commands and had exhibited violence towards WO #1. Taking him to the ground in a controlled manner in order to apply handcuffs was justified in the circumstances. As such, I am unable to form reasonable grounds to believe the SO or any other TPS officer committed a criminal offence in relation to the Complainant’s injury and the file will be closed.


Date: May 3, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit