RunnersCruiser accidentCruiser and motorbike
thick blue gradient line

SIU Director’s Report - Case # 18-OCI-326

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 a serious injury sustained by a 56-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 4, 2018, at approximately 11:42 p.m., the York Regional Police (YRP) notified the SIU of the Complainant’s injury.

According to the YRP, on November 4, 2018, at approximately 9:18 p.m., a YRP officer stopped a vehicle on Steeles Avenue West at Weston Road. The registered owner of the vehicle [now known to be the Complainant] was found to be the subject of several outstanding warrants for arrest. While attempting to arrest him, the Complainant became actively resistant and a Conducted Energy Weapon (CEW) was deployed. The Complainant fell to the pavement and struck his face resulting in an injury. He was transported to the Etobicoke General Hospital where it was determined that he had a small nasal fracture.

The Team

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

Complainant:

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


Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The area of interest was the south-side sidewalk near 5001 Steeles Avenue West near a utility pole approximately 15 to 18 metres west of Weston Road. A pool of blood was on the paving stones near a metal bench with two CEW ‘blast doors’ near the blood pool. Two, Anti Felon Identification Discs were located and recovered from the crease between the paving stones.

The intersection was illuminated by overhead street lighting. The Complainant’s vehicle was in the eastbound curb lane of Steeles Avenue West and the vehicle’s ignition was off with its keys on the trunk.

The area was photographed and markers were placed beside the aforementioned items of interest. A swab of blood from the blood pool was also obtained.

Video/Audio/Photographic Evidence


TTC Video


The SIU received video provided by the TTC from four transit buses that travelled in the area of Steeles Avenue West and Weston Road on November 4, 2018, between 9:10 p.m. and 9:30 p.m. The following is a summary of the video:

Bus Travelling Eastbound on Steeles Avenue West:
  • At 9:21:53 p.m., the bus travelled eastbound on Steeles Avenue West capturing a portion of the police interaction with the Complainant on the southwest corner of Steeles Avenue West and Weston Road through the ‘Forward Facing Curb Side’ camera.
  • A marked YRP Ford Explorer with emergency lights activated, operated by SO #1 and WO #1, was stopped between the right lane and curb turning lane facing southeast on Steeles Avenue West, just west of Weston Road The dark coloured BMW, operated by the Complainant, was stopped just ahead of the YRP vehicle in the right lane.
  • At 9:22:35 p.m., the bus continued eastbound adjacent to the stopped YRP Ford Explorer. At that time, a white unmarked YRP Ford Taurus with emergency lights activated, driven by WO #2, travelled eastbound on Steeles Avenue West and stopped just behind the YRP Ford Explorer. WO #2 exited and ran towards the police interaction on the south sidewalk to the right of the YRP Ford Explorer.
  • The TTC camera, just briefly, captured three silhouettes of WO #1, WO #2 and the Complainant as it drove by. The three of them were in very close proximity, touching or almost touching, on the ground but further details were unable to be established due to the darkness of night and the glare that emanated from the police vehicle emergency lights.
  • At 9:22:41 p.m., a third marked YRP Ford Explorer with emergency lights activated, driven by SO #2, travelled westbound on Steeles Avenue West and stopped in the eastbound right turning lane, facing west, just in front of the dark BMW. SO #2 exited his YRP Ford Explorer and ran towards the police interaction.
  • At 9:22:47 p.m., as the bus drove by, video from the ‘Rear Facing Curb Side’ camera captured additional footage.
  • SO #1 and WO #1, and the Complainant, were physically engaged on the ground, but it was impossible to determine each person’s positioning with any certainty due to the far distance and poor video quality. WO #2, bending forward over WO #1 and SO #1, and SO #2 arrived from their east.
  • At 9:22:53 p.m., the bus continued eastbound and the police interaction was no longer captured on video.

Bus Travelling Northbound and Westbound on Steeles Avenue West:
  • The bus travelled northbound on Weston Road at 9:24:32 p.m. and westbound on Steeles Avenue West at 9:27:21 p.m. The cameras captured additional police vehicles arriving at the intersection. At no time were the exterior cameras able to capture the police interaction with the Complainant or any additional information to further the investigation.

Bus Travelling Westbound on Steeles Avenue West:
  • The bus was not equipped with exterior cameras and the interior cameras were unable to capture any relevant video.

Bus Travelling Westbound on Steeles Avenue West:
  • The bus was not equipped with exterior cameras and the interior cameras were unable to capture any relevant video.


YRP In-Car Camera System (ICCS) Data


The SIU received ten ICCS videos from the YRP that depicted portions of the incident on November 4, 2018.

Multiple videos captured the various YRP vehicles responding and arriving at the incident scene in the area of Weston Road and Steeles Avenue West after the Complainant was taken into custody. The videos did not capture any part of the arrest, any interaction between police officers and the Complainant, or any other relevant information pertaining to this investigation.


SO #1 and WO #1’s Vehicle (Video 1)


At 9:13:32 p.m., WO #1 (passenger) and SO #1 (operator) travelled eastbound along Steeles Avenue West in the left lane behind a black BMW operated by the Complainant.

At 9:14:52 p.m., the BMW approached a red light at Weston Road then merged into the right lane continuing to face eastbound. SO #1, in an attempt to block the BMW from merging into the right turning lane, stopped his YRP vehicle facing southeast along the passenger side between the right lane and right turning lane. The black BMW was no longer in the camera’s view.

At 9:15:00 p.m., WO #1 exited the passenger side of the YRP vehicle, walked around the front, then towards the front of the BMW motioning with his right palm to stop at which time he went out of sight. There was inaudible conversation, but a male police officer was heard yelling repeatedly, “Get down,” during a struggle off-camera.

At 9:16:23 p.m., the Complainant, and SO #1 and WO #1, engaged in a struggle, walked southbound in front of the YRP vehicle, and towards the southern sidewalk on Steeles Avenue West out of camera view. WO #1 held the Complainant’s right arm and SO #1 held the left while the Complainant walked on his own power. Yelling continued out of camera view.

At 9:22:38 p.m., a marked YRP Ford Explorer driven by SO #2 travelled westbound on Steeles Avenue West and stopped in the eastbound right turning lane, just west of Weston Road, in front of the YRP Ford Explorer belonging to SO #1 and WO #1. SO #2 exited and ran towards the struggle out of camera view.


WO #2’s Vehicle


At 9:22:31 p.m., WO #2 travelled eastbound on Steeles Avenue West and stopped just west of Weston Road facing east. A marked YRP Ford Explorer belonging to SO #1 and WO #1 was stopped just ahead facing east in between the right lane and right turning lane of Steeles Avenue West. A black BMW belonging to the Complainant was stopped in the right lane just in front of that marked YRP Ford Explorer.

The Complainant, and SO #1 and WO #1, were on the south sidewalk of Steeles Avenue West engaged in a struggle adjacent to the YRP Ford Explorer. The Complainant was on his left side with head pointed northeast and feet southwest. WO #1 straddled the Complainant’s mid-section and SO #1 was knelt over the Complainant’s head area; both police officers were holding the Complainant still.

At 9:22:40 p.m., WO #2 exited his YRP vehicle then ran towards the Complainant and stood over top of him. At that time, SO #2 travelled westbound on Steeles Avenue West and stopped his marked YRP Ford Explorer facing west in front of the YRP Ford Explorer belonging to SO #1 and WO #1. SO #2 exited, ran to the head area of the Complainant and remained standing.

At 9:22:46 p.m., WO #2 deployed his CEW somewhere along the Complainant’s mid-section from a close range at which time SO #1 jumped away from the head area and the Complainant was rolled onto his stomach. SO #1 and SO #2 then immediately engaged in a struggle near the head area of the Complainant but their precise actions were obstructed by WO #1 and WO #2.

At 9:23:15 p.m., the struggle subsided and WO #1 placed handcuffs to the rear of the Complainant. At 9:23:32 p.m., a male paramedic approached to render medical assistance and the Complainant was rolled into the recovery position on his left side. Several additional police officers arrived on scene and the Complainant was subsequently removed from the area with a stretcher.


SO #2’s Vehicle


At 9:22:40 p.m., SO #2 arrived and stopped in the eastbound right turning lane facing westbound in front of the YRP Ford Explorer belonging to SO #1 and WO #1. WO #2’s YRP vehicle was stopped behind that YRP Ford Explorer. WO #2 ran from his vehicle a short distance to the Complainant who was on the south sidewalk of Steeles Avenue West engaged in a struggle with SO #1 and WO #1 on the ground.

The Complainant was on his left side with his head facing northeast and feet southwest. WO #1 straddled the Complainant’s mid-section and SO #1 was kneeled over the Complainant’s head area; both police officers were holding the Complainant still. A male police officer repeatedly said, “Stop moving.”

SO #2 ran towards the head area of the Complainant and remained standing. WO #2 stood overtop the Complainant then deployed his CEW somewhere along the Complainant’s mid-section from a close range at which time SO #1 jumped away from the head area and the Complainant was rolled onto his stomach.

SO #1 re-engaged and took control of the Complainant’s right arm and began to pull it back. SO #2 kneeled along the upper left side of the Complainant and WO #1 remained at the legs. A male police officer said, “Give it to him” then what may have been a faint sound of a CEW cycling could be heard. At that same time, SO #2, with his left hand, pulled the Complainant’s left arm out from underneath his body then delivered a right elbow strike to the back and/or left side of the head. As a result, the front of the Complainant’s face appeared to have hit the sidewalk. Both of the Complainant’s arms were then brought behind his back and secured in handcuffs.

A male police officer(s) said, “I gave him plenty of chances,” and, “He’s bloody.” The Complainant was moved on his left side into the recovery position and a police officer said, “(inaudible) on your side so you can breathe a little better okay.” A paramedic arrived to assess the Complainant. A male police officer said, “We were trying to be as gentle with him as possible.”

Further conversation was, “Yo, did he run?” then another male police officer replied, “No, he just fought with us the whole time.”


SO #1 and WO #1’s Vehicle (Video 2)


At 9:50:12 p.m., the BMW was searched.


SO #1 and WO #1’s Vehicle (Video 3)


At 9:57:06 p.m., SO #1 and WO #1 left the incident scene and travelled eastbound on Steeles Avenue West where the following conversation took place:

WO #1: You good?
SO #1: Oh yea, no problems.
WO #1: I didn’t want to just start punching him like a savage.
SO #1: I agree with that.
WO #1: Because…
SO #1: There’s too many (inaudible) and he’s 60.
WO #1: Yeah. I just sat on him because you were like choking him.
SO #1: No, I didn’t…(inaudible)…and he’s like, I can’t breathe so I…(inaudible)…for a second…(inaudible).
WO #1: Buddy, I’m the guy to get in trouble with, I got templates (laughter). Worst case scenario, honestly, his nose is broken.
SO #1: (Inaudible)…use of force…justify…(inaudible).
WO #1: Bro, we went up the ladder with him.
SO #1: Yeah.
WO #1: Oh fuck (laughter)…that was so insane what I was doing.
SO #1: You knew I was going to get the car… (inaudible).
WO #1: …(inaudible) revved it…(inaudible)…what would you have done? (laughter).
SO #1: Left (laughter).
WO #1: You would just get in the car and leave? (laughter).

Communications Recordings

At 9:18:01 p.m., WO #1 requested the communications operator (C/O) to place him and SO #1 on a traffic stop and that a man [now known to be the Complainant] was resisting arrest. The Complainant could be heard moaning in the background. Shortly after the transmission, WO #1 requested a police officer equipped with a CEW attend the scene.

The C/O broadcast to other responding police officers that SO #1 and WO #1 were at Steeles Avenue West and Weston Road

At 9:18:53 p.m., a moaning voice could be heard momentarily over the radio.

At 9:18:59 p.m., WO #1 said, “We’re just trying to {inaudible} the male.” The Complainant could be heard yelling in the background.

At 9:19:14 p.m., [an unidentified male police officer] requested a ’10-3’ meaning radio silence. WO #1 or SO #1, sounding out of breath, then transmitted, “A Taser would probably work well.”

At 9:19:36 p.m., WO #1 transmitted that they were attempting to hold the Complainant down until additional police officers arrived and further explained that the Complainant was, “Pretty big.” WO #2 said he was on the way.

At 9:20:17 p.m., a male voice could be heard moaning over the air.

At 9:20:34 p.m., WO #1 transmitted over the radio but it was inaudible as the Complainant was yelling in the background. WO #1 re-keyed the radio and said, “We got him pinned for now.”

At 9:21:14 p.m., WO #2 confirmed over the air that he was equipped with a CEW.

At 9:23:18 p.m., WO #2 broadcast that the Complainant was in custody and the CEW was deployed. He requested an ambulance to attend the scene.

The remainder of the recording offered nothing further to the investigation and concluded at 9:43:34 p.m.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the YRP:
  • Call History (x2);
  • Closed Circuit Television (CCTV) police station data;
  • Committal Warrant (x2);
  • Communications audio recordings;
  • Detailed Call Summary (x2);
  • Duty Roster-Nov 4, 2018;
  • General Occurrence (x3);
  • In-Car Camera System (ICCS) data;
  • Mobile Work Station (MWS) Log (Dispatch log);
  • Notes of witness officers;
  • Procedure-Use of Force;
  • Procedure-Processing the Offender;
  • Procedure-Search of Persons;
  • Procedure-Prisoner Care and Control;
  • Procedure-Warrants;
  • Ticket Offences; and
  • Training Records-WO #1, WO #2, SO #1 and SO #2.

Incident Narrative

While it remains not entirely clear what precisely happened between the Complainant and the subject officers, the latter having exercised their right to remain silent, the following scenario emerges from the weight of the reliable evidence collected by the SIU, which included video recordings from police cruisers and public transit vehicles that captured parts of the events in question. Shortly after 9:00 p.m., the Complainant was traveling eastbound in his vehicle on Steeles Avenue West toward Weston Road. His driver’s licence was under suspension and there were outstanding warrants for his arrest in effect at the time. SO #1 and WO #1, in their marked police SUV, were traveling behind the Complainant on Steeles Avenue. Having checked his licence plate number and learning of the warrants and licence suspension, they decided to pull the Complainant over to arrest him.

SO #1 activated his vehicle’s emergency lights and pulled his vehicle up along the passenger side of the Complainant’s vehicle. The Complainant had stopped his vehicle in the lane next to the right turn lane facing east just west of Weston Road. The Complainant exited his car and immediately became defensive, indicating he wished to speak with his lawyer and refusing to surrender his hands to the officers. SO #1 and WO #1 each grabbed a hold of one of the Complainant’s arms, and there followed a protracted struggle between the three during which the officers walked the Complainant onto a grassy area south of the south sidewalk on Steeles Avenue West and onto the ground. The Complainant strenuously resisted the officers’ efforts to handcuff him. At one point, with SO #1 over his upper back and WO #1 attempting to control his legs, the Complainant managed to roll onto his back and kick WO #1 twice to the chest. WO #1 reacted by punching the Complainant’s abdomen four or five times, and then grabbed hold of the Complainant’s legs again to keep him from kicking. At this time, WO #1 used his portable radio to call for the assistance of other officers and, preferably, someone with a Conducted Energy Weapon (CEW).

The struggle on the ground continued for a few minutes before the arrival of WO #2, who was equipped with a CEW. With SO #1 now straddling the Complainant’s upper back, WO #2 approached and discharged his CEW at close range at the Complainant. The Complainant continued to struggle after the discharge, prompting WO #1 to punch the Complainant several more times to the right side of his abdomen. SO #2 arrived at about this time and joined the fray. WO #2 deployed his CEW again at about the same time that SO #2 delivered a right elbow strike to the Complainant’s upper body, following which the officers managed to handcuff the Complainant’s arms behind him.

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 was diagnosed with a fractured nose following his arrest on November 4, 2018 by officers with the YRP. SO #1 and SO #2 were among the arresting officers and identified by the SIU as most likely to have caused the injury. For the reasons that follow, there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s arrest and injury.

I am cognizant that there is some evidence that the Complainant did not resist arrest. However, this is belied by the video evidence and the evidence of the officers. In the circumstances, it would be unwise and unsafe to place much if any weight on the evidence of non-resistance in the absence of any corroborative evidence.

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 an act that they are required or authorized to do by law. SO #1 and WO #1 were clearly in the lawful discharge of their duties when they sought to arrest the Complainant. The Complainant was driving in breach of a licence suspension and had warrants out for his arrest; he was clearly subject to being lawfully arrested. Thereafter, I am satisfied on reasonable grounds that the force used by the officers in aid of the Complainant’s arrest was legally justified. The Complainant vigorously resisted his arrest over a period of several minutes. He was undeterred by the combined efforts of two police officers who wrestled with him and, in the case of one of the officers, struck him five times to the abdomen. Indeed, it was not until two more officers appeared on the scene, and the Complainant was met with additional punches to the torso, two CEW discharges and an elbow strike to the head or upper back, that he was sufficiently subdued such that he could be handcuffed. On this record, I am reasonably satisfied that the force used by the officers, including the subject officers, was measured, proportional and within the range of what was reasonably necessary in the circumstances to overcome the Complainant’s resistance and effect his arrest.

In the result, while the Complainant appears to have suffered a fractured nose in his melee with the officers, the force used by the officers was in my view not excessive and there are therefore no grounds for proceeding with charges in this case.


Date: September 13, 2019



Joseph Martino
Interim Director
Special Investigations Unit