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SIU Director’s Report - Case # 19-TCI-047

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 59-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On March 2, 2019, at 4:45 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury.

The TPS advised on March 1, 2019, at 9:00 p.m., TPS officers responded to a residence on St. Johns Street for a report of a disturbance. They encountered the Complainant in a second-floor apartment and an altercation took place in which the Complainant assaulted Subject Officer (SO) #1. The Complainant was taken to the floor and arrested. He was taken to 11 Division, then to St. Joseph’s Health Centre. He had a broken nasal bone. He told TPS officers he was hit in the face with a frying pan earlier in the day.

The Complainant was back at 11 Division and would be sent for a bail hearing at Old City Hall.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

In addition, the notes of one other witness officer were received and reviewed.


Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.



Evidence

The Scene

The scene was a two-storey residence located on St. Johns Road in Toronto.

On March 2, 2019 at 9:07 a.m. an SIU forensic investigator photographed the second floor apartment where an apparent disturbance had initiated the TPS response. The apartment was in an unkempt condition. A frying pan was found in the front room area where the initial disturbance apparently occurred. There were several small suspected bloodletting areas near the stairwell as well as a paper towel with suspected blood on it. These areas and items were photographed. A swab was collected of the suspected blood from the paper towel

Police Video/Audio/Photographic Evidence


Booking and Custody Video


The booking and custody video was reviewed and it was determined it was of no evidentiary value in that it did not address who, how or why the Complainant received his custody injury.


TPS In-Car-Camera System (ICCS) Recordings


ICCS recordings were reviewed and it was determined they had no evidentiary value in that they did not address who, how or why the Complainant received his custody injury.

Police Communications Recordings

These communications were reviewed, and it was determined they had no evidentiary value in that they did not speak to who, how or why the Complainant received his custody injury.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Arrest and booking records;
  • Computer Aided Dispatch (CAD)-Event Details Report (x2);
  • General Occurrence;
  • Communication recordings;
  • Notes of witness officers and one undesignated officer;
  • Policy-Arrest; and
  • Policy-Use of Force and appendices.

Incident Narrative

The material events in question are relatively clear on the weight of the evidence, which included statements from the Complainant, the two subject officers, two other police officers who were present at the time of the Complainant’s arrest, and a civilian eyewitness. Shortly after 9:00 p.m. on March 1, 2019, SO #2 and, his partner, WO #2, arrived at a residence on St. Johns Road to investigate a domestic disturbance at the house involving the Complainant and his roommate, the CW. There had been a physical altercation in which the Complainant choked the CW, and the CW struck the Complainant’s head with a frying pan. By the time of the officers’ arrival, the confrontation had ended. As neither party wished to pursue charges or appeared seriously injured, SO #2 and WO #2 left the scene cautioning both males to maintain the peace.

At about 10:30 p.m., a second call was received by police complaining that hostilities between the Complainant and the CW had resumed. SO #2 and WO #2 travelled to the address and were joined there by SO #1 and WO #1. The Complainant answered the door, threatened the officers, and said that he had choked the CW and wanted him dead. The officers entered the residence to check on the CW’s well-being. As SO #1 and WO #2 were on the second floor finishing up with the CW, they were confronted in the hallway by an angry Complainant who demanded that they leave the house and then struck SO #1’s chest with his left hand. SO #1 grabbed hold of the Complainant’s arm and told him he was under arrest. The Complainant struggled with SO #1 and was quickly grounded by the officer onto the hallway floor. The other officers rushed to assist SO #1. The Complainant, in a prone position, placed his arms underneath his body and refused to surrender them to be handcuffed. WO #1 took hold of the Complainant’s feet to keep him from kicking. SO #1 wrestled to gain control of the Complainant’s left arm and managed to free it, placing it in a handcuff. SO #2 struck the area of the Complainant’s right ribs once, followed by four or five slaps to the back of the Complainant’s head and a punch to the shoulder, whereupon he was able to pull the Complainant’s right arm from underneath his body so it too could be handcuffed.

Following his arrest, the Complainant was taken to the police station and, from there, to hospital where his injury was diagnosed and treated.

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

In the evening of March 1, 2019, the Complainant was arrested in his home by TPS officers following a brief struggle. He was subsequently taken to hospital and diagnosed with a broken nose. SO #1 and SO #2 were among the arresting officers and the ones most likely to have caused the Complainant’s injury. On my review of the information gathered in the SIU’s investigation, I am satisfied there are no reasonable grounds to believe that either
SO #1 or SO #2 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 required or authorized to do by law. The police officers were in the lawful performance of their duty when they arrived at the residence on St. Johns Road to investigate a second 911 call that evening reporting a violent confrontation between the Complainant and the CW. While the evidence is unclear whether they entered the residence upon the Complainant’s invitation, I am satisfied that their presence in the home was lawful pursuant to the exigent circumstances that prevailed at the time. When the Complainant informed them that he wished the CW dead and had choked him, the officers were duty bound to enter the residence to check on the CW and within their rights in doing so pursuant to their common law authority: see R. v. Godoy, [1999] 1 SCR 311. Thereafter, when the Complainant attacked SO #1, he was clearly subject to arrest for assault. The question is whether the officers used only legally justified force in aid of the arrest.

On my assessment of the force in question, I am unable to reasonably conclude that it exceeded what was reasonably necessary in the circumstances to effect the Complainant’s arrest. The Complainant had been in a foul and violent mood throughout the evening, having fought twice with his roommate. His belligerence was on full display with the arrival of the officers; he threatened to do them harm, admitted he had choked his roommate and wished him dead, and attacked SO #1. On this record, I accept that grounding the Complainant quickly after he struck SO #1 was a reasonable tactic as doing so would assist the officers in controlling his movements and securing him in handcuffs. The Complainant continued to struggle with the officers while on the ground, refusing to release his arms from underneath him and kicking his feet. The officers grappled with the Complainant to control his feet and secure his arms. SO #2 also delivered a number of blows, beginning with a strike to the Complainant’s right ribs. When that did not work to release the Complainant’s right arm, the officer slapped the Complainant’s head four or five times in an effort to achieve compliance. That too did not work, prompting SO #2 to deliver a punch to the Complainant’s right shoulder, following which the officer was successful in prying free the Complainant’s right arm. No further blows or force of any kind was used. All-in-all, this seems a measured and proportionate use of force, progressing incrementally to meet the challenges posed by the Complainant.

In the final analysis, while it may be that the Complainant’s nose was fractured during his run-in with the police, [1] I am satisfied that the force used by the officers did not run afoul of the latitude prescribed by the criminal law. As such, there are no grounds for proceeding with charges in this case and the file is closed.


Date: October 15, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The evidence gives rise to the possibility that the Complainant’s nose was fractured in the course of the physical confrontations he had with his roommate. [Back to text]