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SIU Director’s Report - Case # 18-TCI-250

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 28-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 26, 2018, at 5:23 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury.

The TPS reported that on August 25, 2018, at 11:53 p.m., the Complainant was arrested for domestic assault. The Complainant resisted arrest, was taken to 14 Division, and lodged in cells. This morning, when sober, he complained of injury. The Complainant was taken to the Toronto Western Hospital. A CT scan revealed a fractured nasal bone and maxillary on right side. He was still at hospital in custody.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

28-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
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Notes reviewed, interview deemed not necessary

Evidence

The Scene

The scene was the industrial area located between Jefferson and Fraser Avenues. The unnamed street separated the area from the GO Trains and Gardiner Expressway.

Communications Recordings

A man called the 911 operator to report a woman was bleeding from her face. The woman could be heard crying in the background. The caller said he walked into the incident and the woman told him she was hit by a man, who then ran off. The 911 operator asked if the assailant was still around and the caller replied the man ran away. The 911 operator asked if weapons were involved or mentioned and the caller engaged in conversation with the woman. The caller said a knife was involved.

The woman told the 911 operator the man kicked her face in, grabbed her by the neck and choked her out. She identified the man as the Complainant. She said he was her ex-boyfriend and was charged with domestic violence. The 911 operator reassured her that help was on the way.

The SO and WO #1 informed the suspect was going south on Jefferson Avenue toward Public Storage. The SO and WO #1 radioed they were getting waved over at the bottom of Jefferson Avenue. The SO and WO #1 explained they went west in the parking lot at the bottom end of Jefferson Avenue. The SO and WO #1 reported they were pulling up to him almost at the next street.

Either WO #5 or WO #6 said, “Put your hands…..” WO #5 or WO #6 said the man was in custody. The operator called the 911 caller back to notify him the man was in custody and police officers would be attending to see him.

The SO and WO #1 indicated they had the man in the back of the police cruiser; he was extremely violent, but calm now. The man was going to be transported to 14 Division. WO #5 and WO #6 also headed to the station.

Video/Audio/Photographic Evidence


Summary of the Atlantic Avenue CCTV:


The Complainant walked southbound on the west side of Jefferson Avenue. Another man [now known to be CW #2] ran across the street, following the Complainant. The Complainant walked into the fenced-off area on Jefferson Avenue, but exited and proceeded southbound.

A man [CW #2’s cousin] walked slowly southbound on Jefferson Avenue. He appeared to be talking on the phone and looking around.

A police cruiser [now known to be occupied by the SO and WO #1] drove on Jefferson Avenue, no emergency lights activated. A second police cruiser [now known to be occupied by WO #5 and WO #6] drove on Jefferson Avenue, no emergency lights activated. CW #2 and another man walked side by side to the south end of Jefferson Avenue.

Summary of In-Car Camera Footage:


Police Cruiser #1 [Operated by the SO and WO #1]
The police cruiser exited the sally port, the siren and emergency lights were activated. The police cruiser reached Liberty Market, drove westbound on East Liberty Street and approached Atlantic Avenue.
……….

The Complainant was placed into the rear of the police cruiser. The Complainant lay upside down then sat up in the rear of the police cruiser. The dried blood and abrasions were visible on his face. The police cruiser arrived at 14 Division and drove into the sally port. A police officer grabbed the Complainant’s right arm and assisted him up out of the police cruiser.

Police Cruiser #2 [Operated by two undesignated officers] [1]
The police cruiser activated its emergency lights, pulled a U-turn, began driving around the neighborhood, and then came to a stop in front of the Local Public Eatery.

Police Cruiser #3 [Operated by WO #5 and WO #6]
At 12:03:12 a.m. the recording commenced. The police cruiser drove down the street with emergency lights activated. At 12:03:57 a.m., the recording ended.

Police Cruiser #4 [Operated by two undesignated officers] [2]
The police cruiser drove south on Pardee Avenue, did a U-turn at the end of Pardee Avenue and proceeded northbound.

Summary of the Booking Video:


The Complainant was removed from the cruiser and fell onto his knees. The SO, WO #1, WO #5 and WO #6 assisted the Complainant up, but he appeared to refuse to walk. He was escorted into the booking area. WO #1 paraded the Complainant in front of WO #2.

WO #1 explained the Complainant had been arrested for domestic assault, fail to comply and a bench warrant. The Complainant continued yelling over WO #1. WO #1 requested a level three search be authorized due to the violence the Complainant exhibited during arrest as well as the allegation of a knife. WO #1 informed WO #2 of the Complainant’s face injury which the Complainant responded was caused by being kicked in the face by a police officer. WO #2 requested an injury report be completed. WO #2 began asking the Complainant questions, including if he had any other injuries, to which the Complainant responded, “Are you fucked?”

WO #2 authorized a level three search and explained the procedure to the Complainant. The police officers escorted the Complainant into the search room (audio was left on for the duration of the search).

One of the police officers said the handcuffs were being removed and the Complainant told the police officers to go fuck themselves. A police officer directed the Complainant to sit down and take his boots off, then his socks, and then his jeans. One of the police officers repeatedly told the Complainant to put his pants back on or they will put them on for him. The Complainant was brought back without any pants on. Then, he was escorted to cell 21. One of the police officers told WO #2 there was blood on the floor from the Complainant’s nose.

The Complainant was escorted into the booking area and then taken to the hospital.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Booking Photo-the Complainant;
  • Event Details Report;
  • General Occurrence Report;
  • Injury Report;
  • Notes of all witness officers;
  • Parade Sheet Report;
  • Procedure-Arrest;
  • Procedure-Appendix A;
  • Procedure-Appendix B;
  • Procedure-Use of Force; and
  • Training Record-the SO.

Incident Narrative

The material events in question are relatively clear on the weight of the reliable evidence collected by the SIU, which included statements from the Complainant and an independent civilian eyewitness to the arrest. Shortly before midnight of the day in question, the Complainant was reported to have assaulted an ex-girlfriend in the area of East Liberty Street and Hanna Avenue. A call to the police from a male who happened upon the Complainant’s ex-girlfriend indicated that she was bleeding from the face and the Complainant was in possession of a knife. The Complainant’s ex-girlfriend also spoke with the 911 operator and said that the Complainant had just kicked her in the face and choked her.

Officers were dispatched to the area in search of the Complainant. The SO and his partner, WO #1, were the first to locate him. They followed him in their cruiser south toward the end of Jefferson Avenue and then west onto a paved parking lot to an area before Fraser Avenue. Exiting their vehicle, the SO and WO #1 approached the Complainant and told him he was under arrest for the assault. The Complainant objected to his arrest and refused to peacefully surrender his hands to be handcuffed. The officers grabbed hold of the Complainant and took him to the ground. The Complainant landed front first. He continued to resist while on the ground, flailing his legs and struggling against the officers’ efforts to control his arms. WO #5 and WO #6 arrived on scene to find the SO and WO #1 on the ground with the Complainant, and intervened to assist in the arrest. WO #5 took control of the Complainant’s legs and legs restraints were applied, while WO #6 delivered two hand strikes to the right side of the Complainant’s torso. Once the Complainant was handcuffed, he was stood up and lodged in the rear of the SO and WO #1’s cruiser for transport to the police station. The Complainant was subsequently taken to hospital and diagnosed with his nasal fractures.

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

The Complainant suffered nasal fractures in the course of his arrest by TPS officers in the early morning of August 26, 2018. One of the arresting officers was identified by the SIU as the SO. There are no reasonable grounds, in my view, to believe that 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 protected from criminal liability for the force they use provided the force in question is no more than is reasonably necessary in the execution of an act that they are required or authorized to do at law. I accept that the SO and WO #1 were proceeding lawfully to arrest the Complainant when force was applied. They had information that the Complainant had just assaulted his ex-girlfriend in the area and had fled the scene of the offence. On the record as established by the evidence, I am further satisfied that the force used by the officers, namely, a take-down followed by the officers wrestling control of the Complainant’s body on the ground and two punches to the Complainant’s torso, fell within the range of what was reasonably necessary in the circumstances. The Complainant had physically resisted the officers on his feet and continued to struggle with them on the ground. Possessing information that the Complainant had taken part in a violent assault and might have a knife, the officers had cause to be concerned for their safety, and reason to wish to restrain the Complainant as soon as possible. In the circumstances, I am unable to reasonably conclude that the force used by the officers ran afoul of the limits prescribed by the criminal law notwithstanding the

injuries to the Complainant. Consequently, there is no basis upon which to proceed with criminal charges in this case and the file is closed.


Date: August 26, 2019

Original signed by


Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The police officers were not interviewed as they did not assist the arresting police officers. [Back to text]
  • 2) The police officers were not interviewed as they did not assist the arresting police officers. [Back to text]