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SIU Director’s Report - Case # 19-TCI-063

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 28-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On March 30, 2019, at 5:40 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury. According to the TPS, on March 30, 2019, at 3:00 a.m., Witness Officer (WO) #6 was directing traffic at the intersection of King Street West at Brant Street. Two different fights broke out in the area; one on Brant Street and the other on King Street West. WO #6 walked toward the one on Brant Street but it ended before he arrived. WO #6 then approached the fight on King Street West, which was described as being more aggressive than the other. He went to arrest the more aggressive man [identified by the TPS as the Complainant], at the King Street West location, for assault, and took control of his arms. The Complainant then drove his shoulder into WO #6 knocking him down, and ran away.

Two other police officers [now known to be WO #7 and the Subject Officer (SO)], in the area on bicycles, saw WO #6 running after the Complainant and they assisted. They arrested the Complainant at 478 King Street West after taking him down to the ground. The Complainant was handcuffed and transported to University Health Network Toronto Western Hospital where he was diagnosed with a fracture to his ankle and reported by the TPS to be sedated at the time of notification.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

SIU investigators searched for and obtained Closed-Circuit Television (CCTV) data from private property relevant to the incident, and interviewed civilian and police witnesses. The SIU forensic investigator made a digital photographic record of the route taken by the Complainant and involved police officers, and of the scene where the Complainant sustained his serious injury.

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Not interviewed (Declined)
CW #4 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Not interviewed, but notes received and reviewed
WO #9 Not interviewed, but notes received and reviewed
WO #10 Not interviewed, but notes received and reviewed
WO #11 Not interviewed, but notes received and reviewed
WO #12 Not interviewed, but notes received and reviewed
WO #13 Not interviewed, but notes received and reviewed
WO #14 Not interviewed, but notes received and reviewed


Subject Officers

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


Evidence

The Scene

The foot, bicycle and equestrian pursuit of the Complainant commenced at the intersection of King Street West and Brant Street, and ended on the paved surface of the vehicular and pedestrian passageway to an underground parking lot for the condominium building at 478 King Street West. The pavement was dry, flat, level and unbroken where the Complainant went down to the pavement.

The area was illuminated by artificial light from public and private property light sources at the entrance-way.

Video/Audio/Photographic Evidence

CCTV Data – King Street West

The CCTV data obtained from a building on King Street West was lacking in synchronization by about one hour and seven minutes in relation to the TPS records created for this event. The data summarized here was in sequence from west to east and was based on the internal clock of the King Street West CCTV equipment.

Camera Five:

This camera was attached to the west side of the building and its focal range included the intersection of King Street West and Brant Street. At About 1:50:00 a.m., the camera recorded a disturbance in the intersection and the movement of the two TPS Mounted Unit (MU) police officers in the area of the disturbance in efforts to separate the participants. The resolution of the data and/or condition of the camera lens were such that no viable detailed data depicting WO #6’s momentary interaction with the Complainant and their departure eastbound on King Street West was recorded.

Camera Six:

Between 1:51:24 a.m., and 1:51:27 a.m., camera six attached to the building at its southwest corner afforded a view of the north sidewalk and the westbound traffic-calming and vehicular lanes just east of Brant Street, and depicted the Complainant wearing a green puffy jacket torn at the right side, and WO #6 about 1.5 metres behind him. Both men were in a full run, running eastbound on the north sidewalk. The remainder of the CCTV data via camera six was essentially the same as the data via cameras two and three.

Camera Two: 

Between 1:51:30 a.m., and 1:51:31 a.m., camera two attached to the west of the main door to the building and in a breezeway to a stairwell, depicted two men [one believed to be the Complainant and the other believed to be WO #6] running eastbound about 2.5 metres apart on the north sidewalk of King Street West, and at 1:51:33 a.m., one TPS officer mounted on a bicycle on the same sidewalk pursuing both men.

At 1:51:34 a.m., a second TPS officer on a bicycle in an off-set tandem position in relation to the first TPS bicycle was depicted riding eastbound on the same sidewalk.

At 1:56:36 a.m., three unidentified men were depicted running in a loose formation on the same sidewalk behind the second TPS bicycle-mounted officer. At 1:51:37 a.m., a third TPS officer riding a bicycle was depicted following the first two TPS bicycles, and at 1:51:38 a.m., a fourth TPS bicycle was depicted following the third TPS bicycle.

At 1:51:45 a.m., the first of two TPS officers mounted on trotting horses [now known to be WO #1] was depicted riding eastbound in the westbound traffic-calming lane of King Street West toward the preceding civilians and police officers. At 1:51:48 a.m., the second TPS officer on horseback [now known to be WO #2] was depicted trotting behind the first horse but on the north sidewalk. At 1:52:03 a.m., a fifth TPS officer mounted on a bicycle was depicted riding eastbound in the eastbound lane of King Street West.

At 1:52:07 a.m., a predominantly white but fully-marked TPS cruiser was depicted traveling eastbound in the eastbound lane of King Street West, followed at 1:52:09 a.m., and 1:52:11 a.m., by the sixth and seventh TPS officers mounted on bicycles also riding eastbound in the eastbound lane of King Street West.

At 1:52:41, another predominantly white but fully marked TPS cruiser was depicted traveling eastbound in the eastbound lane of King Street West.

At 1:53:03 a.m., a group of three men of which one wearing distinctive blue jeans and the other a pair of distinctive white shoes [believed to be the same three men depicted running behind the Complainant] were depicted walking westbound on the north sidewalk of King Street West.

Between 1:54:47 a.m. and 1:55:01 a.m., four TPS officers on bicycles, one TPS officer on foot and one on horseback were depicted riding and running westbound on the north sidewalk toward a point of interest to them that was being observed by several eastbound pedestrians on the same sidewalk who had paused and looked west before continuing beyond the focal range of camera two.
At 1:58:38 a.m., three pedestrian TPS officers with one wearing the rank of Sergeant, and one TPS officer with a bicycle, were depicted traveling eastbound on the north sidewalk of King Street West.

Camera Three:

Between 1:51:31 a.m., and 2:00:00 a.m., camera three attached to the building immediately to the east of its main door but west of the arrest scene, depicted the Complainant wearing a green, short-sleeved t-shirt, black pants and black shoes running eastbound on the north sidewalk of King Street West being pursued on foot by a TPS officer running after the Complainant, and a TPS bicycle-mounted officer who passes the TPS officer on foot. A short distance behind the TPS bicycle-mounted officer was a man wearing dark civilian clothing and white shoes, also running eastbound. A second TPS bicycle-mounted officer was depicted riding eastbound on the same sidewalk a distance behind the civilian wearing dark clothing and white shoes. A second civilian wearing distinctive blue jeans was depicted running eastbound on the same sidewalk a distance behind the second TPS bicycle mounted officer. The first of the two TPS MU horses with a TPS officer on it was depicted trotting eastbound in the westbound traffic-calming lane and the second TPS officer on horseback was depicted trotting behind the first horse but on the north sidewalk. The remainder of the action depicted via camera three was essentially the same as what was depicted via camera two.


TPS CCTV Data


The data was obtained from the TPS-monitored and controlled CCTV camera on a utility pole at the northwest corner of the intersection of King Street West and Brant Street. The time stamp for the data was from the TPS CCTV internal clock. At about 2:59:03 a.m., the camera recorded the front of a business on the south side of King Street West opposite Brant Street, and only the reflection of a flashing blue light moving from west to east toward the scene of the arrest.

Communications Recordings

The communications recordings had no data to advance the SIU’s investigation of the cause of the Complainant’s custody injury.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Computer Aided Dispatch (CAD) Event Details Report;
  • CCTV data;
  • Communications recordings;
  • Disclosure Letter-Apr 21,2019;
  • Drawing by WO #6;
  • Email correspondence;
  • General Occurrence;
  • GPS data for two police vehicles;
  • Injury Report;
  • Notes of witness officers;
  • Scenes of Crime Officer (SOCO) photographs; and
  • Training Record-Use of Force-WO #7.

Materials obtained from Other Sources

Upon request, the SIU obtained and reviewed the following additional materials:
  • CCTV data from address on King Street West;
  • Drawings by civilian witnesses; and
  • Medical records for the Complainant relevant to the incident.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included statements from the Complainant, several police witnesses who participated in the arrest, and video recordings captured by CCTV cameras in the area. As was his legal right, the SO declined to interview with the SIU or authorize the release of his notes. Just before 3:00 a.m. of March 30, 2019, WO #6 was on duty in the entertainment district when he noticed a disturbance involving a group of males in the area of the northwest corner of the King Street West and Brant Street intersection. Mounted officers moved in to defuse the situation and the males dispersed. Moments later, WO #6 observed two men fighting on Brant Street north of King Street West. The Complainant was one of the two men and appeared to be getting the better of the other individual. Deciding he would arrest the Complainant for assault, WO #6 moved toward him and grabbed him by an arm. The Complainant broke free of WO #6’s hold, ran south and then east on the north sidewalk of King Street West. WO #6 ran after him. He was joined by other officers on bicycles and two on horses.

The SO was among the cyclists. He overtook WO #6 and caught up with the Complainant just as the latter was making a sharp left turn into a passageway at the condominium located at 478 King Street West, about 100 metres east of the King Street West and Brant Street intersection. The SO dismounted his bicycle, made contact with the Complainant and took him to the ground. WO #6 arrived soon after, as did WO #7. After a brief period, the officers were able to secure the Complainant’s arms and place them in handcuffs.

Following his arrest, the officers noticed that the Complainant’s left ankle appeared injured and an ambulance was summoned to the scene. The Complainant was taken to hospital and treated for a fractured left ankle.

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 early morning hours of March 30, 2019, the Complainant fractured his left ankle in the course of being arrested by TPS officers on King Street West west of Spadina Avenue. Among the arresting officers, the SO was identified as most likely to have caused or contributed to the injury, and therefore designated a subject officer. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

There is a conflict in the evidence regarding the cause of the Complainant’s injury. There is some evidence the Complainant’s left ankle was fractured when an officer stepped on it as the Complainant lay on the ground being handcuffed. However, the medical evidence indicates the injury was more likely caused by the Complainant rolling his ankle.

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 was reasonably necessary in the execution of an act that they were required or authorized to do by law. The evidence satisfies me that WO #6 had lawful grounds to seek the Complainant’s arrest. The officer had seen him engaged in a fight with another male on Brant Street north of King Street West. WO #6 was also within his rights, as were the other officers who came to his aid, to chase after the Complainant when he fled. The Complainant was captured in short order and taken to the ground by the SO just as he turned north into a passageway adjacent to a condominium. I am unable to find fault with the officer’s conduct in this regard. Faced with an individual bent on escape, taking the Complainant to the ground at the first opportunity was a reasonable tactic for the SO in the circumstances. Thereafter, following a short struggle on the ground, the Complainant was handcuffed and taken into custody. At no point was he punched, kicked, kneed or elbowed by any of the officers, nor were any weapons used in his apprehension. On this record, I am unable to reasonably conclude that any officer involved in the Complainant’s arrest used excessive force. In fact, it may well be that the Complainant’s injury was self-inflicted as he rolled his ankle while running from the police, perhaps as he turned sharply into the condominium’s passageway. The weight of the evidence certainly suggests as much. But even if the injury occurred when an officer stepped on the Complainant’s left ankle while he lay on the ground, the evidence falls short of identifying who the responsible officer was, nor does it establish the act was anything more than accidental.

In the final analysis, I am of the view that the officers acted lawfully at all times in their dealings with the Complainant. Accordingly, there are no grounds for proceeding with charges in this case, notwithstanding the Complainant’s fractured ankle, and the file is closed.


Date: October 15, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit