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SIU Director’s Report - Case # 18-TCI-369

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 37-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 20, 2018, at 5:00 p.m., the Toronto Police Service (TPS) reported the following complaint from the Office of the Independent Police Review Director (OIPRD). The complaint stated that on August 25, 2016, the Complainant was arrested for impaired driving and suffered a fractured right hand and two broken ribs during the arrest.

The TPS confirmed that the Complainant was arrested on August 25, 2016, for impaired driving. At that time, the Complainant was taken to St. Joseph’s Hospital (SJH) after complaining of shortness of breath where he later refused treatment. On September 7, 2016, the Complainant returned to hospital and complained that he had been assaulted ten days earlier. He was found to have a fractured right hand and two broken ribs at that time, making no mention of police involvement to hospital staff. 
 

The Team

Number of SIU Investigators assigned: 4

Complainant:

Male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Notes reviewed, interview deemed not necessary
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Interviewed
WO #7 Interviewed
WO #8 Notes reviewed, interview deemed not necessary


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene is located at the southeast corner of the intersection of Queen Street East and Church Street, occurring directly out front of the McDonald’s restaurant on the sidewalk and roadway of Church Street.

Video/Audio/Photographic Evidence


Police In-Car Camera System (ICCS) Footage:


At 3:30:21 a.m., WO #3 and WO #4 arrived at the scene on Church Street and parked facing northbound, outside the McDonald’s. WO #3 and WO #4 exited the police cruiser and engaged with the Complainant. WO #3, WO #4, WO #6 and WO #7 all spoke to the Complainant who, in an animated fashion, pointed westbound and back toward McDonald’s. WO #6 and WO #7 entered the McDonald’s while WO #3 and WO #4 remained engaged with the Complainant.

At 3:33:44 a.m., as police stood outside speaking to the Complainant, an unknown man walked outside from McDonald’s. Both the Complainant and the unknown man engaged in a verbal altercation, with the unknown man continuously pointing at the McDonald’s, in the presence of the involved police officers. At one point, the Complainant walked toward the man at which time WO #3 grabbed the Complainant by the right arm, pulling him away from the man. The Complainant then swung his arm in a backward motion in an attempt to be released from the grip of WO #3. WO #3 then placed both of his hands on the side and rear of the Complainant’s head. The Complainant again pushed WO #3’s grip away and proceeded to wave his arm in a pointing fashion in the face of WO #3, who swatted the Complainant’s hand away from his face.

WO #3 then placed his hands on the Complainant’s upper body and WO #4, WO #6 and WO #7 all assisted in attempting to take the Complainant to the ground. WO #4 attempted to foot sweep the Complainant while WO #3 controlled the Complainant’s head; however, the Complainant resisted. All four police officers walked in a sideway motion while attempting to take the Complainant to the ground, eventually going out of camera view at 3:34:42 a.m. [1]

Around this time, the SO exited his police cruiser which was parked on the south side of Queen Street, but did not assist with the takedown of the Complainant. While the police officers continued to struggle with the Complainant out of camera view, the SO conducted crowd control. At one point, an ambulance briefly arrived on scene but left when not required.

At 3:40:53 a.m., the Complainant argued with the police officers as he was placed into the rear of a police cruiser. The Complainant said, “You just called me a mother fucker,” and, “My friend investigates you guys, wait, just fucking wait,” as well as, “You’re going down fucking [WO #3], you piece of shit”. As he was sat in the rear of the police cruiser, the Complainant was visibly breathing heavily.

The Complainant expressed frustration that he was threatened with a knife and said, “This is how you treat me? This is bullshit. It’s funny that the black guy is running away with the knife. I live around here and pay my taxes”. When WO #3 explained to the Complainant that drugs had been found in the vehicle, the Complainant denied driving the vehicle, further adding, “I live around here, why would I drive here?” When asked by WO #3 what he had been drinking, the Complainant advised vodka. WO #3 also stated that he felt the Complainant may be on some sort of “powdery substance”, adding to his “up and down behaviour”. The Complainant responded he had been in Montreal and, “Whatever happened, happened.”

At 3:58:23 a.m., the Complainant was arrested for impaired driving and read his rights to counsel. He refused to provide a sample of breath and denied driving once again. The Complainant complained of being hot and having asthma and WO #4 told the Complainant he turned up the air conditioning for him.

At 4:08:25 a.m., the Complainant alleged he had been thrown on the ground and choked by the police officers. The Complainant told WO #3, “You fucking choked me to death, you piece of shit”. At no point in the police cruiser did the Complainant show any signs of injury nor did he mention any injuries.


McDonald’s CCTV:


The field of view faces south on Church Street. [2]

At 3:30:28 a.m., a red Volkswagen Beetle parked on the west side of Church Street. An unknown woman ran to the front passenger door of the vehicle. The Complainant got out of the driver’s door and gave the woman a light for her cigarette. The Complainant and the woman walked across Church Street, towards the McDonald’s restaurant. There was a verbal exchange between the Complainant and a man wearing a ‘Canada’ hoodie. The conversation appeared to become heated as another man had to hold the man in the ‘Canada’ hoodie back. The Complainant then entered into McDonald’s only to return at 3:33:58 a.m. on his cell phone, gesturing toward the man in the ‘Canada’ hoodie.

At 3:37:54 a.m., WO #3 and WO #4 arrived at the scene, followed by the SO’s police cruiser and WO #6 and WO #7. [3] At 3:42:10 a.m., the Complainant was escorted toward a police cruiser by WO #3, WO #4, WO #6 and WO #7 who attempted to take him to the ground, which he appeared to resist. The Complainant was eventually taken to the ground in a controlled manner, lying in a supine position, and the police officers continued to struggle with the Complainant on the ground for several minutes.

An unknown man spoke to the SO as he stood to the side conducting crowd control. At 3:45:30 a.m., the SO went to the Volkswagen Beetle, opening the driver’s door and leaning inside for approximately ten seconds. The SO then walked across the street towards the Complainant, who was still being detained on the ground by WO #3, WO #4, WO #6 and WO #7. The SO created a gap between the other police officers and appeared to drop his full weight in the Complainant’s vicinity. Within a minute, the Complainant was lifted up from the ground with his hands behind his back and he was placed in the rear of the police cruiser.


Booking Hall Video:


At 4:30:22 a.m., WO #4 escorted the Complainant into the traffic services booking hall with WO #3 entering shortly thereafter. When spoken to by WO #8, the Complainant said he did not know the reason for his arrest. WO #4 proceeded to explain there was video evidence of the Complainant exiting his vehicle at the scene.

When asked by WO #8 if he had any injuries, the Complainant said he was roughed up, especially by WO #3 and a “black lady”. The Complainant further stated he had bruises everywhere and proceeded to turn around and show WO #8 his hands. The Complainant said the police would be sued.

When asked standardized questions by WO #8, the Complainant advised he takes prescription medication for anxiety and depression. He denied consuming any illegal narcotics. [4] The Complainant told WO #8 he was also on antibiotics for a left leg injury he sustained two weeks prior.

The Complainant told WO #4, “You have no fucking right to do this to me, I pay your fucking salary.” The Complainant proceeded to call WO #3 a “piece of shit” and told WO #8 that WO #3 choked him and threw him on the street.

At 4:42:30 a.m., the Complainant requested to go to the hospital because WO #3 choked him to death. WO #8 asked the Complainant what his injuries were to which the Complainant advised he had asthma, was choked to death and “applied pressure”. WO #3 brought a chair for the Complainant while he waited for an ambulance. The Complainant advised he would sell his condo to sue WO #3 and further asked if WO #3 “shot the kid on the street car.” At one point, the Complainant leapt from his chair and needed to be restrained by WO #4.

At 4:55:19 a.m., two paramedics wheeled a gurney into the booking hall and the Complainant was taken out of the booking hall and transported to SJH.


51 Division Booking Hall:


The Complainant was escorted into 51 Division by WO #1 and WO #2 and paraded before a sergeant. The Complainant said he did not remember seeing a doctor while at the hospital. The sergeant proceeded to explain to the Complainant that he saw a doctor at SJH where the Complainant had refused medical attention.

The sergeant looked at the Complainant’s visible injuries, specifically the scraping and bruise around his ankle, and the Complainant agreed the injuries were sustained in a motorcycle collision two weeks prior.

Police Communications Recordings

On August 25, 2016, at 3:26:26 a.m., the Complainant called 911 and requested police attend Church Street. The Complainant told the operator that a man threatened his life by saying he would “cut” him. The Complainant also advised the man had assaulted him. When asked by the operator if the man had a weapon, the Complainant advised he did not see a weapon.

At 3:28:23 a.m., a man’s voice can be heard in the background telling the Complainant, “You touched my manager”. The operator asked the Complainant what caused the altercation and the Complainant went on to explain the altercation started because he did not want to give someone a cigarette. The Complainant told the operator the threatening man and four other people had been drinking and doing drugs. The Complainant admitted to the operator he also had “a drink”. At 3:30:30 a.m., the Complainant told the operator that police arrived on scene and the call was disconnected.

At 3:31:16 a.m., WO #3 told the dispatcher that no knife was seen and according to people on scene, the incident was a dispute between two parties. At 3:57:54 a.m., WO #4 advised that one person was under arrest for impaired care and control and requested a breath technician.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • ALI Log Search;
  • CAD Event Details Report;
  • General Occurrence;
  • ICAD Event Details Report;
  • Communication Recordings;
  • Injury Report;
  • Statement of Claim;
  • ICCS footage (x3);
  • CCTV from McDonald’s; and
  • Notes of witness officers and the SO.

Materials obtained from Other Sources

Materials received from sources other than the involved police service:
  • Patient Health Records of the Complainant from St. Michael’s Hospital (SMH);
  • Additional notes from SMH imaging system;
  • Patient Health Records of the Complainant from SJH;
  • Digital Photographs of injuries from complainant; and
  • OIPRD complaint provided by complainant.

Incident Narrative

The events surrounding the Complainant’s arrest are clear on the information collected by the SIU, thanks in large measure to video recordings of the incident captured by a surveillance camera in the area and a camera affixed to one of the police cruisers. At 3:20 a.m. of August 26, 2016, the Complainant parked his car along the western curb of Church Street and across from the McDonald’s restaurant located at the southeast corner of the Church and Queen Streets intersection. He exited the vehicle, walked across the road toward the restaurant and briefly engaged a group of people loitering on the sidewalk before entering the restaurant. The Complainant was belligerent with the staff of the restaurant and was refused service. Stepping outside, he placed a call to police to report that he had been threatened with a knife by one of the males outside the restaurant. TPS officers were dispatched to investigate.

WO #3 and WO #4 were the first to arrive in their cruiser at about 3:30 a.m. The SO,
WO #6 and WO #7 followed shortly. WO #3 established that no knife had been seen and that the disturbance amounted to a verbal interaction involving the Complainant and others. As WO #3 spoke with the Complainant, a male exited the McDonald’s restaurant and confronted the Complainant. When it appeared the Complainant was moving forward to engaged the male, WO #3 took hold of his right arm so as to prevent the situation from escalating. The Complainant reacted by yanking his arm free and adopting an aggressive posture toward the officer. WO #3 took hold of the Complainant’s head and directed him to calm down. The Complainant would not, and was then taken to the ground by WO #3 with the assistance of WO #4, WO #6 and WO #7.

The Complainant struggled with the officers as WO #3 and WO #4 attempted to restrain him. After several minutes had expired with the parties still on the ground, the SO, who to that point had been uninvolved as he occupied himself with keeping people back from the altercation and searching the Complainant’s vehicle, approached and delivered what appeared to be a left knee strike to the left side of the Complainant. Soon after, the Complainant was handcuffed and placed in the rear seat of a cruiser. He was transported to the police station, and then to hospital when he complained that he was short of breath.

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 arrested on August 26, 2016 by officers with the TPS. He was subsequently diagnosed with multiple rib fractures and a fracture of his right hand. The SO was among the arresting officers, and the one most likely to have caused his rib fractures. For the reasons that follow, I am satisfied there are no reasonable grounds 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 immune from criminal liability for force used in the course of their duties provided such force is no more than is reasonably necessary in the execution of an act that they are required or authorized to do by law. The Complainant presented as intoxicated to WO #3. Alcohol could be smelled on his breath, and he was behaving irrationally and with belligerence. When the Complainant pulled away from the officer, who was trying to prevent a physical altercation between him and another male, and adopted a fighting stance, the officer had a reasonable basis to believe the Complainant’s arrest for public intoxication was necessary in the interests of his safety and others in the vicinity, including the officers.

The Complainant resisted his arrest and the officers were entitled to resort to force to effect their purpose. The question is whether the force they employed was excessive. In my view, it was not. The Complainant was first taken to the ground by the officers. This was a reasonable tactic on the part of the officers to better control a combative individual and was done in a controlled fashion. Thereafter, it appeared that WO #3 and WO #4 were largely engaged in something of a wrestling match with the Complainant over the span of about four minutes as they tried unsuccessfully to sufficiently subdue him to allow for his handcuffing. It does not appear that any strikes were delivered by the officers during this time. On this record, in the context of an individual who had managed over the course of several minutes to keep two officers from handcuffing him, I am unable to reasonably conclude that a single knee strike fell outside the range of what was reasonably necessary in the circumstances to effect the Complainant’s arrest.

In conclusion, as I am satisfied there is no reasonable basis for believing the force used by the involved officers, including the subject officer, was other than legally justified despite the injuries the Complainant may have suffered in the process, there are no grounds for proceeding with charges in this matter and the file is closed.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The continuation of this struggle was captured on the McDonald’s CCTV camera view. [Back to text]
  • 2) The timestamp on the McDonald’s video was determined to be approximately seven minutes ahead in comparison with the ICCS and communication recordings. [Back to text]
  • 3) The conversation between the Complainant and the involved officers was not captured on this camera view. [Back to text]
  • 4) During the Complainant’s parade at 51 Division he told the booking sergeant he had a prescription for Hashish when asked if he was on any medications. [Back to text]