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SIU Director’s Report - Case # 19-TCI-073

Contents:

News Releases for this Case:

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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 23-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On April 9, 2019, at 11:25 a.m., the Complainant reported that he had been injured as a result of an arrest by police officers of the Toronto Police Service (TPS). It was reported that on April 7, 2019, at 3:00 a.m., the Complainant was involved in an altercation outside a nightclub on King Street West in Toronto. He was taken into custody by TPS officers but refused medical attention. The Complainant went to Humber River Hospital (HRH) after his release, and he was diagnosed with having sustained a fractured orbital bone in his left eye.

The Team

Number of SIU Investigators assigned: 4
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 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 Interviewed


Police Employee Witnesses

PEW Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located in the south curb lane of King Street West in front of 619 King Street West, Toronto

Video/Audio/Photographic Evidence


Cellular Telephone Video Report


A number of civilians recorded the altercation; however, the recordings were very poor, jerky motion recordings.

Cellphone Video #1

CW #3 tried to walk towards the south lane of King Street West, where the Complainant was on the roadway being arrested. She was held back by a bicycle police officer. The view then changed to the back of CW #1 who was stood with his front against a rental bicycle payment machine by a police officer [now known to be WO #8]. WO #8 held onto CW #1’s left shoulder. The video was five seconds in length.

Cellphone Video #2

The video camera kept moving. The SO was seen to stand in the south curb lane of King Street West. A police officer in a yellow jacket and WO #2 were on the sidewalk and a short man with dark hair and a beard argued with WO #2. WO #2 then pushed the dark-haired man backwards. The view of the camera then changed and CW #1 was again seen standing in front of the rental bicycle payment machine. CW #1 was again held by WO #8 and the dark-haired man, who WO #2 had pushed backwards, tried to pull CW #1 away from WO #8. The video lasted 40 seconds.

Cellphone Video #3

WO #2 continued to speak with the dark-haired man with the beard. The TPS transport van was seen in the south curb. CW #3 tried to push past a police officer. The video was 45 seconds in length.

Cellphone Video #4

The camera moved all over the place and it showed rental bicycles. Four police officers were seen huddled around someone [now known to be the Complainant] who was on the pavement in the south curb lane of King Street West. A police officer [now known to be the SO] was seen to bounce up and down on the Complainant with his knee. The back of a man dressed in a red sweater was recorded and CW #3 tried to follow WO #2. The video was 55 seconds in length.

Cellphone Video #5

A number of police officers were on the roadway and they handcuffed the Complainant with his hands behind his back. The Complainant could barely be seen and on two occasions the SO was seen with his left knee on the Complainant’s upper back, neck or head. A number of civilians tried to push towards the arrest and a police officer in a yellow jacket and WO #2 had to push the civilians back. The video lasted 28 seconds.

Cellphone Video #6

This video had no investigative value and focused in on police officers’ badge numbers.

Cellphone Video #7

This video showed the handcuffing of the Complainant from a distance. A man with a red top and CW #1 continually tried to get past the police officers. The Complainant is on the ground and police officers eventually handcuffed him. The SO was seen with his knee on the Complainant’s upper back, neck or head. Eventually the Complainant was lifted by the SO and his partner WO #1.


Closed-Circuit Television (CCTV) Video #1


Video was obtained from a business on King Street West for the time frame of this incident on April 7, 2019. The video afforded a view of the south sidewalk of 619 King Street West. None of the incident, arrest or involved persons were captured on this video and the video had no investigative value.


CCTV Video #2


Video was obtained from a business on King Street West for the time frame of this incident. The video afforded a view of the south sidewalk of 627 King Street West and the south curb lane of King Street West. At 2:41 a.m., CW #3 was seen to sit on the sidewalk on a raised flower bed. Three police officers with yellow jackets and bicycles stood in the south curb lane and faced the front of the building. The sidewalk was very busy and persons walked about. The Complainant stood beside CW #3 and at one point they were joined by CW #1. At 2:48 a.m., a man approached CW #3 and right afterward, the Complainant got into a verbal altercation with the man in which they approached each other and had to be separated by others in the vicinity. Police officers stepped in and helped to disperse the crowd. CW #3 and the Complainant walked eastbound down the sidewalk. The police officers then made their way down the sidewalk and CW #3 and the Complainant were out of sight. A prisoner transport vehicle was observed parked in the eastbound, south curb lane of King Street West, and it faced westbound.


TPS CCTV Video Report


The TPS have CCTV video cameras mounted at the intersection of King Street West and Portland Avenue and also at the intersection of King Street West and Bathurst Street. The camera at Portland Avenue and King Street West pointed in the wrong direction and did not afford a view of the front of the scene of the arrest. The camera at Bathurst and King Street West faced the south side of King Street West at 647 King West, which was too far west of the relevant scenes.


TPS Booking Video


At 4:06 a.m., April 7, 2019, the Complainant was paraded in front of WO #7 by the SO and WO #1. The Complainant was very unsteady on his feet and he constantly vomited into a bucket. There was audio to the recording but it could not be understood as the sound was muffled.

Communications Recordings

On April 7, 2019, at 2:49 a.m., police units were dispatched to the front of the Lavelle Nightclub regarding fights on the street. Multiple parties were involved and there was a black man who wore a blue and white jacket, eastbound on the sidewalk by Goldie Nightclub. WO #4 was dispatched as was WO #6. WO #1 was on scene at 3:00 a.m., and he advised he had one person in custody. The TPS transport vehicle was dispatched and at 3:10 a.m., the transport vehicle was off at TPS 14 Division.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Booking Video;
  • Computer-Assisted Dispatch - Event Details Report;
  • CCTV - Bathurst/King and King/Portland;
  • Communication recordings
  • Duty Roster-14 Division Night Shift;
  • General Occurrence;
  • Involved Officers' List;
  • Notes of the SO, PEW and witness officers;
  • Procedure-Arrest;
  • Procedure-Use of Force; and
  • Time Resource Management System- Call back list.

Materials obtained from Other Sources

The following records from other sources were also obtained and reviewed by the SIU:
  • CCTV of two businesses on King Street West;
  • Civilian Cell Phone Videos;
  • Medical Record-HRH - the Complainant; and
  • Medical Record-St. Michael’s Hospital - CW #1.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included statements from the Complainant, friends of the Complainant who were present at the time of the arrest, and the arresting officers (including the SO), as well as video recordings of parts of the incident captured by surveillance cameras and the witnesses with their mobile phones. At about 2:50 a.m. on April 7, 2019, several officers arrived at the Lavelle club at 627 King Street West following reports of fights taking place outside the establishment. The SO, on bicycle patrol, was among the officers who responded to the area. There was a large crowd in front of the club, many of whom were intoxicated and engaged in verbal confrontations.

The Complainant exited the Lavelle club at about 2:40 a.m. with several other people. As they stood outside the Complainant became involved in an altercation with a man. Police officers stepped in to separate the Complainant and the other man, whereupon the Complainant and his associates began to make their way east on the south side of King Street West.

The SO and his partner, WO #1, also on bicycle patrol, followed the group east on King Street West. The Complainant swore at the officers and yelled homophobic slurs in their direction. The Complainant was cautioned to settle down and leave the area or he would be arrested for public intoxication. In and around the area of the Goldie Lounge at 619 King Street West, as the interaction between the officers and the Complainant continued, WO #1 felt a tug at his gun belt. The officer turned to the Complainant and warned him not to touch his gun. The SO heard the utterance and immediately took hold of the Complainant, taking him to the ground in the curb lane of the roadway with a leg sweep. With the SO positioned near the Complainant’s upper body, WO #1 at his legs and a third officer by his torso, the officers grappled with the Complainant on the ground. The SO delivered a knee strike which struck the Complainant’s face, following which the Complainant was handcuffed and stood up by the officers.

Following his arrest, the Complainant was transported to the police station and released later that day. He subsequently travelled to the HRH and was diagnosed with a fractured orbital bone.

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.

Section 31(4), Liquor Licence Act -- Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,
(a) In a place to which the general public is invited or permitted access; or
(b) In any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

Section 31(5), Liquor Licence Act – Arrest without warrant

31(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person. 

Analysis and Director's Decision

The Complainant sustained a fractured orbital bone in the course of his arrest by TPS officers on April 7, 2019. Among the arresting officers, the SO was identified as the one most likely to have inflicted the injury. On my assessment of the evidence, 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.

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 but only to the extent that such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. I am satisfied on balance that the Complainant’s arrest for public intoxication was lawful. He was clearly intoxicated at the time and combative in demeanour toward the police and other pedestrians. When his behaviour continued despite repeated police warnings, the officers were within their rights in seeking to arrest him for public intoxication under the Liquor Licence Act. I am further satisfied that the force used by the SO and WO #1 – the takedown followed by a brief wrestling match on the ground punctuated by a single knee strike – fell within the range of what was reasonably necessary to effect the Complainant’s arrest. The SO had just heard his partner proclaim that the Complainant had touched his firearm. In the circumstances, the officer perceived a real and imminent threat and acted reasonably in forcing the Complainant to the ground, in which position the officers could better deal with any further hostility from the Complainant. Once on the ground, any suggestion that the Complainant offered little if any resistance to the officers is belied by his aggressive conduct towards them moments prior and a video recording in which officers are seen trying to secure his arms. I therefore accept the officers’ evidence that the Complainant struggled against the officers’ efforts to restrain him in handcuffs. On this record, confronted with an aggressive individual whom the officers had reason to fear had just tried to disarm WO #1, I am unable to reasonably conclude that a single knee strike aimed at the Complainant’s shoulder area but inadvertently striking his head, was excessive. In arriving at this conclusion, I have in mind that the law does not require that police officers embroiled in volatile situations measure their responsive force with precision; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.).

In the result, while I accept that the Complainant’s fractured orbital bone was the result of the SO’s knee strike, I am satisfied on reasonable grounds that the officers acted

lawfully in taking the Complainant into custody. Accordingly, there are no grounds for proceeding with charges in this case and the file is closed.


Date: November 18, 2019



Joseph Martino
Interim Director
Special Investigations Unit