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SIU Director’s Report - Case # 19-OCI-006

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 serious injuries sustained by a 24-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On January 4, 2019, at 12:03 a.m., the York Regional Police (YRP) reported an injury to the Complainant.

The YRP advised that on January 3, 2019, at approximately 1:00 p.m., YRP police officers responded to a theft in progress at the Liquor Control Board of Ontario (LCBO) on Yonge Street in Newmarket.

When the Subject Officer (the “SO”) and Witness Officer (WO) #2 arrived, they located the Complainant fleeing on foot. The Complainant was going in and out of traffic consuming the liquor that was stolen from the LCBO. He was also observed to fall during the foot chase. The SO and WO #2 were able to arrest the Complainant and he was found to have lost a tooth. The Complainant was taken to Southlake Regional Health Centre. At 9:00 p.m., he was diagnosed with a skull fracture at the back of the head. The Complainant was sedated due to his aggressive behaviour. Once he was released, a bail hearing would be held.

The scene was not held.

The Team

Number of SIU Investigators assigned: 2

Complainant:

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


Civilian Witnesses

CW Not interviewed

Several attempts were made to contact an additional civilian witness by phone. Several messages were left on her voice mail. The witness did not return any of the phone calls. The witness was in the bus shelter and reportedly observed a police officer [now known to be the SO] tackle a man [now known to be the Complainant].

Witness Officers

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


Police Employee Witnesses

PEW Interviewed


Subject Officers

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


Evidence

The Scene

The scene of the Complainant’s arrest was in the area of the Davis and Longford Drives intersection in Newmarket.

Video/Audio/Photographic Evidence


In-Car Camera System (ICCS) Footage from WO #2’s vehicle


On January 3, 2019, the Complainant could be seen running on the north sidewalk and running on the centre median of Davis Drive.

WO #2 stopped the vehicle perpendicular to the median in the eastbound lane. WO #2 shouted and advised the Complainant that he was under arrest for theft. The Complainant ran away. The vehicle went over the median and onto the north sidewalk and travelled east with emergency lights activated. The Complainant ran east on the north sidewalk. At 3:22:31 p.m., the Complainant slipped on the sidewalk and fell onto his right forearm. The Complainant stood up and ran on the westbound lane of Davis Drive. The vehicle left the sidewalk and went into the intersection of Longford Drive and Davis Drive. The vehicle was stopped facing east in a westbound bus lane.


ICCS Footage from WO #4 and WO #12’s vehicle


On January 3, 2019, at 3:23:39 p.m., the vehicle travelled in the eastbound bus lane of Davis Drive approaching Longford Drive with emergency lights activated.

A figure, now known to be the Complainant, ran southbound on the eastbound lanes of Davis Drive east of Longford Drive. A second figure, know known to be the SO, approached behind the Complainant and closed the distance between them. The SO appeared to tackle the Complainant from behind. The Complainant fell forward on the asphalt. The SO’s momentum carried forward as he fell over the Complainant and rolled over the Complainant near the median. The SO was up against the Complainant’s right side, while WO #2 arrived immediately behind the SO and was on the left side of the Complainant. WO #6 arrived moments later and she held down the Complainant’s legs while he was arrested.

At 3:23:57 p.m., the vehicle was parked directly in front of the gathered police officers. The Complainant appeared to have his hands handcuffed behind his back while he was on his side. WO #6 made an immediate request for EMS to assist via radio broadcast. The Complainant was carried to a bus shelter.


CCTV Business #1


The CCTV footage from a business located on Davis Drive in Newmarket was obtained and reviewed. It depicted the following for January 3, 2019:

  • At 2:15:00 p.m., the video footage commenced and provided a view of a glass doorway that provides access into the store front from the west side of the building;
  • At 2:18:50 p.m., the Complainant was observed opening the door and walking into the storefront;
  • The Complainant was dressed in brown pants, a black jacket and a hood over his head;
  • He appeared to scan the exterior of the building through the window;
  • He continued eastbound through the store and attempted to exit through a door that faced Davis Drive;
  • The Complainant was unsuccessful in opening the door and fell onto his elbows and knees;
  • At no point, did the Complainant’s head make contact with the ground;
  • The Complainant dropped a bottle onto the ground before picking it up again;
  • The Complainant returned to the entrance on the west side of the building and exited the store front; and
  • The Complainant preceded east on foot out of the cameras field of view.


CCTV Business #2


The CCTV footage from a business located at Davis Drive in Newmarket was obtained and reviewed. On January 3, 2019, at 3:34.25 p.m., the Complainant was observed walking eastbound towards the camera and entered a storefront. At 3:35.00 p.m., the Complainant exited the storefront and he walked eastbound towards the camera. At 3:35.30 p.m., the Complainant left the view of the camera.


CCTV Business #3


The CCTV footage from a business located at Davis Drive in Newmarket was obtained and reviewed. The recordings depicted the following:

Camera 006 

At 4:00:43 p.m., a male, now known to be the Complainant, dressed in dark pants, a dark hoodie with the hood over the head, and black and white running shoes, jogged across Barbara Road on the north sidewalk on Davis Drive. The Complainant crossed the westbound lanes of Davis Drive on a diagonal. At 4:21:57 p.m., the Complainant went out of camera view. 

Camera 005 

At 4:21:43 p.m., the Complainant jogged eastbound on the sidewalk. At 4:21:50 p.m., the Complainant went out of camera view.

Camera 008 

At 4:21:58 p.m., the Complainant walked east on the westbound bus lane. At 4:22:05 p.m., the Complainant stopped at the northern curb of the road median. At 4:22:10 p.m., the Complainant went southwest over the median. At 4:22:15 p.m., the Complainant walked towards a flashing light. At 4:22:22 p.m., the Complainant stopped at the edge of camera view. At 4:22:26 p.m., a person in a fluorescent yellow jacket was observed standing in the area of the Complainant. At 4:22:39 p.m., the Complainant walked northeast over the median and he crossed the westbound lanes of Davis Drive. At 4:22:50 p.m., the Complainant walked eastbound on the north sidewalk. A marked YRP police vehicle traveled eastbound on Davis Drive in an eastbound lane. The police vehicle turned left and drove northbound across the median and traveled east bound in the westbound bus lane and travelled out of view. The Complainant was out of view.


CCTV from VIVA Transit


The SIU received a copy of the video recordings from Viva Transit, the company responsible for public transit in York Region. The video recordings are from a CCTV camera installed on the exterior of a bus stop, located on the east side of Davis Drive and Longford Drive. All video footage provided was captured on January 3, 2019. The video was reviewed by the SIU and no concerns were found with the video footage itself.
The Complainant was escorted by WO #4 and WO #6 to a bench in the bus shelter. The Complainant was placed on a bench, in a seated position, in the bus shelter.

Communications Recordings

The YRP communication and telephone recordings were obtained and reviewed.

On the 911 phone, someone called in a theft of a bottle of liquor from the LCBO. A man [later known to be the Complainant] selected a 375 ml bottle of what was thought to be vodka. He exited the store and ran eastbound on Davis Drive. The Complainant was observed to run into a nearby store and he later exited the store.

The Complainant ran eastbound and as he neared the area of a Giant Tiger, the Complainant ran south. A police vehicle was observed by a citizen near the Complainant. A police vehicle was observed by a citizen driving further east on Davis Drive.

On the communications radio, the call for a theft in progress from the LCBO was dispatched and the details were consistent with the information from the 911 phones and the information provided by the witness officers.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the YRP:
  • Addresses for business #1 and LCBO;
  • Detailed Call Summary;
  • General Occurrence Report;
  • Communications Audio;
  • ICCS footage (x2)
  • Notes of the PEW and Witness Officers;
  • Peace Bond Recognizance; and
  • Probation Orders (x3).

Materials obtained from Other Sources

Materials and documents received from non-police sources:
  • CCTV from businesses;
  • CCTV from VIVA Transportation; and
  • Medical records from SRHC.

Incident Narrative

Thanks in large measure to video recordings of different aspects of the incident captured by private surveillance cameras in the area and in-cruiser video systems, the circumstances surrounding the Complainant’s arrest are clear. At about 3:15 p.m. on January 3, 2019, the YRP received a 911 call from the LCBO store at the intersection of Yonge Street and Davis Drive reporting a theft in progress. The Complainant had reportedly left the store with an unpaid for bottle of liquor and was making his way eastward along Davis Drive. Officers were dispatched to investigate.

WO #2 was among the first officers to arrive in the area. He observed the Complainant running on the north side of Davis Drive and followed him in his cruiser. The Complainant, with a bottle of whisky in hand, darted into westbound traffic toward the officer’s cruiser, apparently as yet unaware of the presence of the officer. He proceeded to drink from the bottle of whisky and was confronted by WO #2. The officer told him he was under arrest for theft, encouraged him to surrender peacefully and then continued to follow the Complainant when he fled into westbound traffic and returned to the north sidewalk.

The Complainant continued to make his way east on Davis Drive as WO #2 drove onto the north sidewalk and pursued him at a distance. At one point, the Complainant fell onto the sidewalk, picked himself up and proceeded to run into the intersection of Davis and Longford Drives. The SO, who was also responding to the theft in progress call, entered the scene at this point. He ran toward the Complainant and tackled him to the ground in the intersection. WO #2, who had himself been chasing the Complainant in the area of the intersection, made his way to the scene of the grounding and assisted in handcuffing the Complainant’s hands behind his back. The Complainant was helped to his feet and seated in a public transit shelter in the vicinity where he waited while paramedics were called to the scene.

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 a number of YRP officers on January 3, 2019. He suffered injuries in the course of his apprehension: a dislodged front upper tooth and a fracture to the back of his skull. The SO was among the arresting officers and identified as the officer most likely to have caused the Complainant’s injuries. For the reasons that follow, there are no reasonable grounds, in my view, to believe that 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 reasonably necessary in the execution of an act they are authorized or required to do by law. There were ample grounds to believe that the Complainant had stolen a bottle of alcohol from the LCBO store and the officers were well within their rights in seeking to arrest him for the offence. The real issue is whether excessive force was used against the Complainant in taking him into custody. Here, too, I have no difficulty in accepting that the Complainant was only subjected to legally justified force. By the time the Complainant was tackled, he had demonstrated a reckless disregard for his safety when he repeatedly entered onto lanes of live traffic seeking to evade arrest. With vehicular traffic heavy and the Complainant now venturing into an intersection, one cannot blame the SO for seizing an opportunity to bring the matter to an immediate end in the interests of everyone’s safety. The tackle he delivered accomplished his goal and was, in my view, a tactic reasonably open to the officer in the circumstances notwithstanding the injuries that were likely inflicted in the process.

In the result, as I am unable to reasonably conclude that the force used by the SO ran afoul of the limits prescribed by the criminal law, 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