Cruiser accidentRunnersCruiser and motorbike
thick blue gradient line

SIU Director’s Report - Case # 18-TCI-126

Contents:

News Releases for this Case:

French:

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 sustained by a 68-year-old man.

The Investigation

Notification of the SIU

On April 23, 2018, at 1:00 p.m., the Toronto Police Service (TPS) reported a custody injury suffered by the Complainant.

According to the TPS, the Complainant was arrested in a laneway outside his residence on September 10, 2017 [1] at 5:09 p.m., for Mischief Under $5000 and Breach of Recognizance. The Complainant struggled with the arresting police officers and suffered injuries that were thought to be minor. The Complainant later made out an OIRPD complaint and the OIPRD advised the TPS that the Complainant had suffered three fractured ribs.

The Team

Number of SIU Investigators assigned: 5
 

Complainant:

68-year-old male, medical records obtained and reviewed


Civilian Witnesses

CW #1 Not interviewed
CW #2 Not interviewed
CW #3 Interviewed
CW #4 Interviewed

Civilian witness (CW) #1 and CW #2 were the complainants regarding the property damaged by the Complainant. They did not witness the Complainant’s arrest. 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Not interviewed, but notes received and reviewed
WO #8 Interviewed
WO #9 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed



Evidence

The Scene

On September 18, 2017, the Complainant resided on the west side of Jones Avenue. The house had been divided into a multi-unit residence. The Complainant had use of the garage at the rear of the house. Vehicle access to the garage was via a driveway/laneway that ran behind the residence.

Video/Audio/Photographic Evidence


In-Car Camera Recordings

The in-car camera (ICC) recording from the police cruiser was activated following the arrest of the Complainant. The Subject Officer (SO) announced to Witness Officer (WO) #1 that he had activated his microphone. The SO stated that an ambulance was on the way. The Complainant’s friend was at that time moving an electric scooter into the garage.

As the SO walked the Complainant over to the police cruiser the Complainant, who was handcuffed with his hands behind his back, turned slightly. The SO then pushed the Complainant onto the hood of the police vehicle and told him to stop fighting. The SO stated that [type of behaviour] was how things had started in the first place. The SO stated that they had explained everything to the Complainant every step of the way. The SO said he understood the Complainant did not agree with things, but it was not the SO’s job to make sure the Complainant agreed with everything.

The SO then started to review the events that had just taken place. The SO stated they had stood at the [garage] door and talked to the Complainant, telling him that they would obtain a warrant for his arrest if necessary. The SO stated that the Complainant came out of the garage and the police officers were trying to find out what the Complainant’s plan was, but the Complainant was “all hyped up” and that was why things went the way they did. The SO stated there was a police officer on either side of the Complainant and they were trying to get control of him. The SO stated that the Complainant was already bent over [before falling] but he was still three feet from the ground before he landed [on the ground].

The Complainant asked one of the police officers (likely WO #1) if he was the same police officer from a previous incident. The police officer confirmed that he was the same person.

The SO then spoke to a civilian bystander, telling the person he hoped he was taping the incident.

The SO explained, “The way it went down is, he came out, we said you’re under arrest, he ignored us and started moving his bikes around. We’re not going to let him go back into his space where he’s got tools and weapons lying around.” The SO told the bystander he had offered to put the bikes away. The SO stated the Complainant had initially declined an ambulance, but the SO did not have his microphone on at the time. Once the microphone was activated, the SO again asked the Complainant about an ambulance and the Complainant then wanted an ambulance. The SO told the bystander that the Complainant was also intoxicated, which did not help matters. The bystander responded that the Complainant had changed over time.

Later, following his release from the hospital, the Complainant was transported to the TPS 55 Division police station by the SO and WO #1. While on the way to the police station, the Complainant admitted he had consumed four beer and “a couple of bowls” of marijuana. He told the SO and WO #1 that he no longer suffered from mental health issues.

On arriving at the police station, the SO and WO #1 entered the police station. One of the two police officers, likely the SO, came back to the police cruiser and told the Complainant that he (the officer) would no longer be involved, and a couple of other police officers would take over. The Complainant responded, “Thanks for your help man.”

Two other police officers, WO #8 and WO #9, then used a flashlight to examine the injuries to the Complainant. The Complainant denied to those police officers that he had ever been charged with an offence. He stated it was the first time he had ever been in trouble with the police.

Video from Civilian Witness

While looking northbound up the laneway, a civilian witness video recorded some of the events using his cellular telephone.

As the video started, the Complainant was face-down on the ground and the Complainant’s friend was kneeling by his head. The SO appeared to be conducting a pat-down search, while WO #1 stood nearby.

The SO explained to the Complainant that anything the Complainant had to say to the SO was not going to change anything. The SO then assisted the Complainant to his feet. The Complainant was handcuffed at the time. The Complainant was then placed onto the hood of the police cruiser, as noted in the in-car camera summary above.

The Complainant looked toward the civilian witness and said, “Nice view? Asshole.” The recording then stopped.

Materials obtained from Police Service

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

  • Address History for the Jones Address;
  • Recognizance to Keep the Peace;
  • Arrest Details – the Complainant;
  • Communications recordings;
  • The in-car camera recording from the vehicle operated by the SO and WO #1;
  • Event Details Reports (x2);
  • Involved Officer List;
  • Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9 and the SO;
  • Procedure - Arrest;
  • Procedure - Criminal Code Release;
  • Procedure - Use of Force; and
  • TPS Occurrences – the Complainant.

Incident Narrative

The weight of the reliable evidence gathered in the course of the SIU’s investigation reveals a fairly clear picture of the events in question. Intending to arrest the Complainant for the offences of mischief and a failure to comply with the terms of a recognizance, the SO and WO #1 arrived at the Complainant’s residence and found him working in a detached garage located at the back of the property. Speaking to the Complainant across the open garage doorway, the officers explained their intentions and made it clear to the Complainant that they would return with a warrant, if necessary, authorizing the Complainant’s arrest within his premises. The Complainant voiced his objections, but was arrested when he stepped out from his garage onto the laneway to retrieve a motorized bicycle. The SO and WO #1 took hold of the Complainant’s right and left arms, respectively, and pushed him forward in order to control the Complainant as he struggled against the officers’ efforts. The Complainant was taken to the ground, landing front first, where he continued to resist the officers by refusing to give up his right hand from underneath him to be handcuffed. The SO delivered two knee strikes to the right side of the Complainant’s body, following which he was able to take control of his right arm and, with WO #1’s assistance, handcuff the Complainant.

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 late afternoon of September 18, 2017, the Complainant was arrested by the SO and WO #1 of the TPS outside his residence located on Jones Avenue in Toronto. He suffered injuries during his arrest and was taken to the hospital, where he was confirmed to have fractured three right side ribs. For the reasons that follow, I am satisfied that neither the SO nor WO #1 committed a criminal offence in connection with the Complainant’s arrest and injuries.

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 activity. On the record gathered by the investigation, I am satisfied that the SO and WO #1 were proceeding to lawfully arrest the Complainant when they took hold of him on a public laneway outside the garage of his home. The Complainant was subject to a condition of a recognizance at the time requiring him to keep the peace and be of good behaviour, and forbidding any contact with CW #1. Following a complaint lodged by CW #1 weeks prior alleging that the Complainant had damaged his property, and a subsequent police investigation of that complaint, it would appear there were reasonable grounds authorizing the Complainant’s arrest. Thereafter, I am persuaded that the Complainant’s grounding and the subsequent knee strikes delivered by the SO fell within the range of what was reasonably necessary in the circumstances to overcome the Complainant’s resistance and effect his arrest. In arriving at this conclusion, I accept that the SO paused after kneeing the Complainant the first time to see if he could wrestle his right arm free, and only delivered the second strike when he was unable to promptly do so.

In conclusion, I am satisfied on reasonable grounds that the force used against the Complainant in the course of his arrest was legally justified pursuant to section 25(1) of the Criminal Code, notwithstanding the fractured ribs the Complainant suffered in the process. Accordingly, there is no basis to proceed with charges in this case and none shall issue.


Date: May 7, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The correct date of the arrest was September 18, 2017. [Back to text]