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SIU Director’s Report - Case # 18-TCI-230

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 serious injuries sustained by a 55-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 1, 2018, at 11:55 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury. Reportedly, on August 1, 2018, at 9:00 p.m., TPS police officers responded to a restaurant in the area of 2560 Finch Avenue West for a report of a man with a knife. The Complainant was located in front of 2560 Finch Avenue West. The Complainant claimed he had a knife, and after a brief standoff, police officers deployed a Conducted Energy Weapon (CEW). The Complainant fell, striking his head on a railing and losing consciousness. He was taken to the Sunnybrook Health Sciences Centre where it was initially determined he had no serious injury.

On August 2, 2018, the TPS advised that further examination revealed that the Complainant had a brain bleed, a fractured orbital bone and a fractured C6 vertebra.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed 

Witness Officers

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


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located at the rear delivery area of the Finchdale Plaza and the stairs leading to Hasbrooke Drive. There was blood on the pavement near the bottom of the steps. The CEW’s anti-felon identification (AFID) confetti, pink and yellow in colour, were located on the steps and on the grass area of Hasbrooke Drive, on the south side leading to the steps.

Scene Diagram

Scene diagram

Video/Audio/Photographic Evidence


Summary of the CCTV of Restaurant:


A man [1] entered via the front door and stopped at the restaurant. The man was bleeding from the mouth. CW #1 approached the man who walked away toward the rear of the restaurant. CW #1 was speaking and waving his arms as if telling the man to leave.

The Complainant entered via the front door and made a bee-line toward the man, who retreated behind a table. An unknown customer and CW #1 were able to move the Complainant toward the front of the restaurant, while another person directed the man toward the rear kitchen area. The Complainant again tried to move towards the man, who was ushered into the kitchen by CW #1 and another person. The Complainant walked to the front door area and exited the restaurant.

The Complainant returned to the restaurant riding a bicycle. The Complainant leaned the bicycle against a post and tried the restaurant’s door to find it locked. He then pounded his fist against the window and pointed inside, while saying something. He paced back and forth across the front of the restaurant, banging on the windows, being quite verbal and making hand gestures to the people inside. The Complainant got back on his bicycle and rode away to the west.

CW #1 and two other people were smoking in front of the restaurant. A police cruiser arrived and parked in front of the restaurant. 
 

Summary of the CCTV Beer Store:


The Complainant was seen riding a bicycle on the walkway outside The Beer Store. The Complainant appeared to be arguing with a man and pointed to the man in an aggressive manner. The Complainant drove away. Two police officers were talking to a woman. An ambulance was pulling up into the parking lot.

Summary of the CCTV from Hasbrooke Drive:


The Complainant was walking eastbound in the middle of Hasbrooke Drive. WO #2 and WO #3, who were on either side of Hasbrooke Drive, approached the Complainant. The Complainant was facing them. His arms were outstretched and flailing. The Complainant talked to WO #2 and WO #3. The Complainant turned and walked away from WO #3, then approached him several times.

WO #2 and WO #6 walked down on either side of the road. They pointed a Less Lethal Shotgun (LLS) at the Complainant, who was in the middle of the road, just in front of the opening in the fence leading to stairs behind the plaza. WO #3 was speaking to the Complainant. He walked away and police officers followed the Complainant.

The Complainant was walking towards the opening in the fence. He stopped at the top of the steps, leading to the back of the plaza, and was flailing his arms at the police officers. The Complainant was surrounded by WO #2, WO #3, WO #4, WO #5 and WO #6. The police officers moved towards the Complainant.

Summary of the Police In-Car Camera System Video:


The SO and WO #7 arrived. The Complainant was standing on the south sidewalk at the opening in the fence. The Complainant was surrounded by WO #2, WO #3, WO #4, WO #5 and WO #6. WO #2 and WO #6 were each pointing an LLS at the Complainant.

The SO and WO #7 exited their police cruiser and approached the Complainant. The SO had his CEW in his right hand and pointed down at his side. WO #7 had his CEW in his right hand, raised and pointed in the direction of the Complainant. Both police officers walked toward the Complainant with the SO raising his CEW toward the Complainant and overtaking WO #7. All police officers moved toward the location of the Complainant and stepped out of the camera view.

……….

WO #4 and WO #6 arrived and parked facing westbound on Hasbrooke Road. The Complainant was walking around in the middle of the road. He was followed by WO #3. The Complainant was very animated with his arms and hands. The Complainant stopped directly in front of the police cruiser. WO #6 entered the camera view; he was armed with an LLS.

WO #5 walked from behind the police cruiser. The Complainant was walking from the roadway to the sidewalk, approaching WO #3 several times and then backing away. The Complainant walked onto the sidewalk, to the opening in the fence. The Complainant was surrounded in a semi-circle by WO #2, WO #3, WO #4, WO #5 and WO #6. The SO and WO #7 arrived. All police officers moved toward the Complainant.

Communications Recordings

A woman called the TPS 911 operator asking for police to attend, because of an altercation outside. She said a guy [now known to be the man from the restaurant’s CCTV] came in to the restaurant bleeding from the mouth. Another guy [now known to be the Complainant] had assaulted the man and was threatening people in the restaurant. The man ran out the back door. The Complainant told CW #1 if he (CW #1) let the man out the back door, he’d “fucking kill everybody.”

CW #1 got on the phone and said the Complainant was running around the plaza looking for the man. The Complainant was now at the rear of the restaurant, trying to kick the back door down. CW #1 could be heard yelling, “[The Complainant], get out of here.”

The woman called back asking for police again. She said the Complainant was banging on the front windows and was trying to break in. She said the Complainant had a knife. She saw a pocket knife in his pocket; it was not in his hand.

The call was turned into a ‘Hot Shot’. The address was given and the dispatcher asked for any units to clear and attend at the restaurant. WO #2 and WO #3 reported they were responding. The dispatcher enquired if they had a CEW, to which they said they did not. They explained they had an LLS.

WO #2 and WO #3 requested another unit attend and, “This guy is known to me and he will fight police.” WO #4 and WO #6 were dispatched, leaving from 31 Division.

WO #2 and WO #3 reported they found the Complainant on Hasbrooke Drive, “He is not complying.” WO #2 and WO #3 told the dispatcher they needed a unit with a CEW.

The SO was dispatched to the call with a CEW. WO #2 and WO #3 said they were on the same road. “He’s not complying; he’s told us he wants to fight with us. We’re trying to talk to him. Yeah, a CEW would be great.”

The TPS operator called the Toronto Emergency Medical Service (TEMS) and asked them to have the ambulance set up, as they were about to taser [CEW] somebody on Hasbrooke Drive.

An unknown unit reported the CEW had just arrived. WO #2 and WO #3 requested the TEMS to attend at the rear of the plaza and to put a rush on them.

WO #4 and WO #6 informed the dispatcher the ambulance arrived and treated the Complainant. The TPS operator notified 31 Division front desk of the CEW deployment.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • CEW Reports - the SO and WO #7
  • Event Details Reports (x2);
  • General Occurrence Report;
  • List of Involved Officers;
  • Notes of all witness officers and the SO;
  • Procedure - Arrest;
  • Procedure - Appendix A;
  • Procedure - Use of Force; and
  • Training Records - the SO and WO #7.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU. At about 9:30 p.m., the Complainant was in the area of the Finchdale Plaza in Toronto and was involved with an altercation with another male. The male fled from the Complainant and took refuge in a nearby restaurant, one of the commercial establishments at the plaza. The Complainant chased him into the restaurant and threatened to resume the assault. The Complainant was ushered out of the premises, but returned shortly. The restaurant’s staff had locked the door and contacted the police. The Complainant banged on the restaurant’s door and windows, and threatened to shoot up the place. He then left and made his way to Hasbrooke Drive, an east-west street just north of the mall.

Officers were dispatched to the scene with information about the assault the Complainant had committed, his threats to those inside the restaurant, and a possible knife in his possession. WO #2 and WO #3 were the first to locate the Complainant, hiding behind a car on a driveway on Hasbrooke Drive. They asked him to surrender but he refused, instead walking onto the roadway and proceeding east down the middle of the road. The officers followed on foot with WO #2 armed with an LLS. [2] WO #3 took the lead in speaking with the Complainant. He asked him to stop, get on the ground and submit to his arrest, but was refused each time. The Complainant challenged the officers as they travelled east, telling them at one point that “rubber bullets” would not be enough to subdue him; they would require “real bullets” to take him into custody.

At WO #2’s request, officers armed with CEWs were dispatched to the scene as well, namely the SO and WO #7. They arrived at about 10:00 p.m. in a police vehicle and joined the foot parade, which by then also included a number of other officers, including another armed with an LLS. With his CEW out and aimed at the Complainant, WO #7 asked him to desist and get on the ground. The Complainant declined. WO #7 discharged his CEW with limited effect. Though the probes struck their mark, the Complainant was not felled. Instead, he took another step or two before he was struck again, this time by a discharge from the SO’s CEW. The deployment immobilized the Complainant and he fell forward down a flight of stairs that led from Hasbrooke Drive to the rear of the Finchdale Plaza.

The Complainant struck his head on the metal railing of the stairs as he fell and temporarily lost consciousness. Paramedics arrived quickly and took him to hospital, where he was diagnosed with a brain bleed, a fractured orbital bone and a broken vertebra.

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 August 1, 2018, the Complainant was arrested by officers with the TPS and suffered serious injuries in the process. The SO was identified as the subject officer in the SIU’s investigation. For the reasons that follow, there are no reasonable grounds in my view to believe the SO 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 the force they may use to that which is reasonably necessary in the execution of an act that they are required or authorized to do. The SO was in the execution of his duties when he sought to take the Complainant into police custody. The Complainant had just assaulted a couple of persons and made threats to harm others. He was clearly subject to arrest. The Complainant had made it clear that he would not be taken peacefully. He threatened the officers as they travelled east along Hasbrooke Drive and told them they better resort to real firearms if they had any chance of stopping him. Given what the officers knew of the Complainant’s recent violence, and the possibility he was in possession of a knife, they acted reasonably in my view in refusing to physically engage the Complainant, choosing instead to call for the assistance of officers equipped with CEWs to attend the scene. With the arrival of WO #7 and the SO, the Complainant was given yet another opportunity to get on the ground and submit to arrest. He was even warned that he would be shot with a CEW if he did not comply. The Complainant did not, and was stunned once by WO #7. Undeterred by the first discharge, he was struck again by a CEW discharge, this time by the SO. Regrettably, the Complainant was incapacitated in the area of a set of stairs and fell down the stairs, striking his head on a metal rail at the side of the stairs. The SO, who was new to the area, indicated he was not aware of the stairs in the vicinity and might well have not discharged his weapon had he known, given the risk of the Complainant falling from a height. I accept the officer’s evidence in this regard, particularly as it would have been dark at the time of the incident.

On the aforementioned record, I am satisfied that the officers who engaged the Complainant gave him every opportunity to yield without force being used, and only resorted to force when it became clear that the Complainant would not give up and with the arrival of the CEWs at the scene. In the circumstances, and notwithstanding the serious injuries the Complainant suffered, I am of the view that the two CEW discharges fell within the range of what was reasonably necessary to overcome the Complainant’s resistance and affect his arrest. Consequently, there are no grounds for proceeding with charges against the subject officer and the file is closed.


Date: August 16, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The whereabouts of this person are unknown. SIU efforts to locate him were unsuccessful. [Back to text]
  • 2) An orange coloured shotgun that discharges a Kevlar mesh bag filled with buckshot pellets meant to stun, not kill. [Back to text]