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SIU Director’s Report - Case # 19-OCI-009

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 31-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On January 6, 2019, at 12:35 p.m., the York Regional Police (YRP) notified the SIU of an injury to the Complainant.

The YRP reported that on January 5, at 7:50 p.m., the Complainant was observed with another party doing a break and enter (B&E) in Toronto. He was arrested in front of an apartment building on Bathurst Street in North York. The Complainant resisted and was grounded during the arrest. Police officers took the Complainant to TPS 32 Division. He complained of injury and was taken to the North York General Hospital where he was diagnosed with a fractured nose.

The Team

Number of SIU Investigators assigned: 4

Complainant:

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


Witness Officers

WO #1 Notes reviewed, interview deemed not necessary
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Interviewed
WO #5 Interviewed
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed
WO #11 Interviewed
WO #12 Interviewed
WO #13 Notes reviewed, interview deemed not necessary


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Interviewed, and notes received and reviewed
SO #3 Interviewed, but declined to submit notes, as is the subject officer’s legal right


Evidence

The Scene

The driveway in front of an apartment building on Bathurst Street in North York.

Video/Audio/Photographic Evidence


Summary of the In-Car Camera System (ICCS) from YRP and Toronto Police Service


The Complainant was escorted to the rear of the police vehicle and informed that he was audio and video recorded. The Complainant’s rights to counsel and caution were read, as well as the reason for the arrest. The Complainant confirmed he understood. The Complainant requested medical attention for his facial injuries before he spoke with his lawyer. WO #9 informed the Complainant he would be transported to TPS 32 Division.

At 32 Division the Complainant returned to the rear of the police vehicle for transport to the NYGH. The Complainant complained of seeing “black dots and lines” in his vision and he was “going to pass out.” WO #9 and the Complainant left for the hospital.

WO #12 with the Complainant left the hospital. The Complainant asked WO #12 if he was going to court today. WO #12 said he would have to talk to the detectives. WO #12 and the Complainant arrived at 32 Division.


Summary of the Closed-Circuit Television (CCTV) video


The building’s CCTV footage had no investigative value.

Communications Recordings


Summary of radio recordings


The tracking device on the BMW [now known to be driven by the Complainant] provided a location. Several units attended the residential area and saw the BMW travelling at a low rate of speed, scoping out the area for a residential B&E. The BMW parked on Yorkview Drive and two men exited the vehicle toward the backyard of one of the houses.

WO #3 informed a takedown would be initiated once entry had been confirmed by the police officers. A police officer on foot heard the gate open and saw one of the men. The flashlights were seen upstairs in the residence. Two men exited the residence and proceeded to their parked vehicle. They reversed on Yorkview Drive and drove away. WO #3 attended the house and confirmed entry via a smashed rear door. The BMW was followed to the apartment on Bathurst street, where a takedown was initiated, resulting in two persons in custody.


Summary of communication recordings


WO #5 created an “ORD (Operational Required Document)” for the area for surveillance until 10:00 p.m. and noted the TPS was not required. WO #3 authorized the activity.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS and YRP:
  • Call History - Transport;
  • Cast of Officers redacted;
  • Command Directive-Use of Force;
  • Canadian Police Information Centre YRP;
  • General Occurrence Report (x3);
  • Historic Interactions with YRP;
  • ICCS footage (x2).
  • Known Offender Hardcopy;
  • Notes of SO #2, WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9, WO #10 and WO #13;
  • Procedure-Use of force;
  • Procedure-Processing the offender;
  • Procedure-Prisoner care and transport;
  • Radio Communications;
  • Training records of SO #1, SO #2 and SO #3; and
  • 911 Recordings.

Materials obtained from Other Sources

Upon request the SIU obtained and reviewed the following documents from other sources:
  • Medical record of the Complainant; and
  • CCTV from scene of arrest.

Incident Narrative

The following description of the circumstances surrounding the Complainant’s arrest is, as far as it goes, largely uncontested in the evidence gathered by the SIU. The Complainant and his associate were occupants in a BMW vehicle being followed by undercover YRP officers. They were the targets of an ongoing police investigation for property crimes. While under surveillance, they were observed entering a darkened home in Vaughan and then exiting with property in their possession. When the undercover team confirmed that the back door into the home had been smashed upon, the decision was made to arrest the Complainant and his associate for break and enter. Additional undercover officers in unmarked vehicles were enlisted to track the movements of the BMW and assist in the pending arrests of its occupants.

At about 8:00 p.m. on January 5, 2019, as the BMW entered onto the driveway in front of the apartment building on Bathurst Street, Toronto, and stopped adjacent to the entrance to the building, one of the undercover officers called for the BMW’s “takedown”. WO #5 positioned his vehicle nose-to-nose in front of the BMW as SO #1 stopped his vehicle directly behind it. WO #10 maneuvered her vehicle’s front end toward the BMW’s front driver door, preventing it from opening. The officers exited their vehicles and rushed toward the BMW, some with firearms drawn. They ordered the Complainant and his passenger to show their hands and exit their BMW. It is here in the story that the evidence gives rise to competing accounts of what happened next.

The more incriminating account suggests that the Complainant raised his hands and tried to exit the BMW but was unable to because the driver’s door was pinned shut by one of the police vehicles. At this point, an officer reached through his half-open driver’s door window and punched the left side of the Complainant’s face three or four times. The driver’s side door was eventually opened and the Complainant pulled out of the vehicle onto the ground. This evidence further alleges that the Complainant was handcuffed quickly on the ground and then made to suffer multiple punches and knee strikes to various parts of his body, including one particularly forceful punch to the head that temporarily knocked the Complainant unconscious. It is further alleged that an officer used his foot to press the Complainant’s head into the pavement three or four times.

The scenario that emerges on the accounts of the police officers interviewed by the SIU stands in marked contrast to the evidence described above. Far from raising his hands and surrendering peacefully to police when surrounded, the Complainant is said to have immediately placed his BMW in reverse and squealed his tires in an effort to break free from the blockade. Unable to escape, the Complainant was forcibly removed from the driver’s seat after WO #10 moved her car, allowing the officers to open the BMW’s driver’s side door. The Complainant landed front first and lay prone on the ground, the right side of his face exposed and his arms tucked underneath him. SO #1, SO #2 and SO #3 surrounded the Complainant on the ground and repeatedly ordered him to release his arms. When he refused to do so and fought against the officers’ efforts to yank them free, SO #2 twice punched the Complainant’s head and shoulder area attempting to secure his compliance. With the same objective in mind, SO #3 delivered three to four punches to the Complainant’s face and, when that did not work to help liberate the Complainant’s arms, punched him three or four more times in the lower back. A short while later, the officers were successful in wrestling control of the Complainant’s arms and securing them in handcuffs behind his back. No further force was used on 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

The Complainant was arrested by several YRP officers on January 5, 2019. The vehicle he was in was surrounded by officers and he was pulled from the driver’s seat onto the ground, where he was handcuffed. The Complainant was subsequently taken to hospital and, the following day, diagnosed with a broken nose. SO #1, SO #2 and SO #3 were physically engaged with the Complainant during the arrest and identified as subject officers for purposes of the SIU’s investigation. For the reasons that follow, I find there are no reasonable grounds to believe that any of the subject officers committed a criminal offence in connection with the Complainant’s arrest and injury.

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 reasonably necessary in the execution of an act that they are authorized or required to do by law. On the basis of the undisputed evidence collected by the SIU, I am satisfied that the undercover YRP officers had reasonable grounds to believe the Complainant had just committed a break and enter and was therefore subject to arrest. They had reportedly confirmed the Complainant’s forcible entry into a home that was not his and were therefore within their rights in following his car and seeking to take him into custody. I am further satisfied that the takedown that occurred in front of the building on Bathurst Street, involving a box-in of the BMW, officers rushing to confront the Complainant and his passenger, some at gunpoint, and the Complainant’s forceful grounding from the vehicle, were reasonable tactics in the circumstances. The break and enter would have given the officers cause to be concerned that their targets were armed and dangerous, and the Complainant was reportedly known to the officers from experience to drive away at high speed from police apprehension efforts if given the opportunity. What is not as clear is whether there is sufficient evidence to reasonably conclude the officers and, in particular, the subject officers, used excessive force in their dealings with the Complainant on the ground.

Certainly, if one believes the Complainant was struck multiple times after his hands were secured behind his back while never offering the officers any resistance, then the Complainant was the victim of an unlawful assault. On the other hand, if one prefers the evidence of the officers, namely, that the Complainant was punched on several occasions while on the ground, each time in response to the Complainant’s vigorous efforts to refuse to give up his hands, and that no further force was used after he was handcuffed, I doubt the evidence gives rise to a reasonable case for criminal culpability based in excessive force.

I am cognizant of the need for charging authorities to limit their assessments of competing evidence to threshold considerations in order to avoid usurping the role of the courts as the ultimate arbiters of fact. Were it only the conflict between the incriminating evidence and the cumulative weight of the evidence provided by multiple police witnesses, including two subject officers who acknowledge punching the Complainant, this case might well warrant being put to the test before a trier-of-fact. However, there is another stumbling block. The SIU investigation did not uncover evidence sufficiently capable of identifying which officer or officers committed the alleged excessive acts.

In the result, while I accept that the Complainant’s nose was broken in his interaction with police officers during his apprehension, and leave open the question whether one or more officers used excessive force against the Complainant in the course of what was otherwise a lawful arrest, there are no reasonable grounds to proceed with charges in this matter given an absence of evidence over who precisely was responsible for that force.
Accordingly, the file is closed.


Date: October 15, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit