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SIU Director’s Report - Case # 18-TCI-348

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 24-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 8, 2018, the Toronto Police Service (TPS) notified the SIU of an injury suffered by the Complainant during his arrest the evening prior.

According to the TPS, at approximately 7:23 p.m. on December 7, 2018, TPS plainclothes police officers were attempting to arrest the Complainant in Etobicoke. The Complainant entered a vehicle and became mobile.

The TPS plainclothes police officers boxed in the vehicle and brought it to a stop. There was a struggle in removing the Complainant from the vehicle and during the arrest he suffered an injury to his face. He was transported to hospital, where he was diagnosed with having suffered an orbital bone fracture.

The scene had been cleared following the arrest.

The Team

Number of SIU Investigators assigned: 6
 
Two SIU investigators immediately attended the TPS police station to speak to the Complainant. Due to the nature of the incident for which the Complainant was under investigation, the SIU agreed to allow TPS investigators who were not involved in the Complainant’s arrest to interview the Complainant ahead of the SIU.

While at the station the SIU investigators also interviewed Civilian Witness (CW) #2 and CW #1, both of whom were also arrested that evening.

Surveillance video from a condominium building in the vicinity where the arrest occurred had been obtained by the TPS and provided to the SIU.

The building was canvassed several times. One resident of the building was identified by other tenants as having witnessed the incident. That witness, CW #3, was eventually properly identified and interviewed.

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

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 Interviewed


Subject Officers

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


Evidence

The Scene

The scene is a parking lot at the rear of a condominium building that is accessed by pulling into the front of the building and driving around the left side of the building. In the rear parking lot there are numerous parking spaces.

Communications Recordings

A decision was made to arrest the Complainant on charges of possession of a scheduled substance for the purposes of trafficking, based on information the police officers had available to them. The police officers discussed the fact there was an outstanding Controlled Drug and Substances Act (CDSA) search warrant regarding the Complainant.

The Complainant was observed entering a large white cargo van being operated by CW #2, and CW #2 then drove away. The police officers developed intelligence indicating the Complainant might be in possession of a firearm, and they determined they would consider him to be armed.

CW #2 entered the parking lot of a condominium building but he then immediately exited the parking lot. CW #2 drove a short distance and then returned to the condominium building parking lot. The police officers made the decision to box in the vehicle once it was in the parking lot.

At 7:19 p.m., the decision was made for the team to box-in CW #2’s vehicle. Two minutes later, at 7:21 p.m., a member of the team requested a marked police cruiser attend to transport one person in custody. At 7:31 p.m., a police officer requested an ambulance for the arrested party, who reportedly had an injury to his eye. In the background of that transmission the Complainant could be heard screaming about his eye.

Video/Audio/Photographic Evidence

Surveillance Video – Condominium Building

CW #2 entered the rear parking lot of the condominium building and backed into a parking space in a rear corner of the lot. As he did so, a number of vehicles approached CW #2’s vehicle. The unmarked police vehicles entered the parking lot behind a civilian vehicle that had also pulled into the parking lot.

CW #2 then abruptly pulled forward and came into contact with a van being operated by WO #5. Another police vehicle pulled up behind CW #2’s van, likely making contact with the van. As this was occurring the civilian vehicle, believed to have been operated by CW #1, was stopped near the passenger door of CW #2’s van.

Several police officers, all in plainclothes, exited their vehicles and ran to the driver and passenger doors of CW #2’s van. CW #2 and the Complainant were pulled from the van and pulled down onto the asphalt surface of the parking lot. Due to the positioning of CW #1’s vehicle, it was unclear what transpired with respect to the Complainant once he was on the ground.

CW #1 then reversed and departed the parking lot.

CW #1 soon walked back to the parking lot, while the Complainant was being held standing against the side of an unmarked police pickup truck. Two police officers ran over to CW #1 and apprehended him.

Expert Evidence

On April 29, 2019, the SIU sought an expert opinion regarding the mechanism of the Complainant’s injuries. On June 13, 2019, the SIU received a copy of the expert’s consultation report. On July 3, 2019, the expert discussed his report with the SIU Lead Investigator.

The opinion explained that the lack of injuries to the Complainant’s facial features other than his eye socket was inconsistent with the Complainant suffering his orbital fracture as a result of being grounded. Instead, the injuries to the Complainant’s eye socket were more consistent with the Complainant receiving blows, specifically kicks or punches, to his eye.

Materials Obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • A copy of the related radio communications;
  • A copy of the surveillance video recordings from the incident scene;
  • Computer Aided Dispatch (CAD) Event Details Report;
  • CDSA Telewarrants to Search (x3) and associated sealing order;
  • General Occurrence Report (x3);
  • CAD - Event Details Reports;
  • Notes of all witness officers;
  • Parade Sheet Report – 31 Division (Dec 7, 2018); and
  • TPS Surveillance Report.

Materials Obtained from Other Sources

The SIU also obtained medical records from the Etobicoke General Hospital.

Incident Narrative

The material events in question are few and fairly simple, if not undisputed. At about 7:20 p.m. on December 7, 2018, the Complainant was the front passenger in a large van being operated by an associate, CW #2, as it entered the parking lot of a condominium building and backed into a parking space. TPS officers had been conducting surveillance on the Complainant with the intention of arresting him for drug trafficking offences. In plainclothes and unmarked vehicles, the officers followed CW #2 and the Complainant into the parking lot. They had information that the Complainant might have a firearm and so the decision was made to conduct a high-risk takedown of the van and its occupants. The tactic involved the unmarked vehicles surrounding the van and officers rushing to apprehend its occupants, some at gunpoint. CW #2 attempted to escape the blockade of vehicles by driving forward but was struck by a minivan being operated by WO #5. CW #2 also tried to reverse but was prevented from doing so by a vehicle driven by WO #2, who had positioned it behind the van. The SO exited his vehicle and was the first to approach the Complainant. He pulled open the door and forcefully yanked the Complainant from the vehicle. The Complainant fell onto the ground, whereupon other officers converged upon him. He was handcuffed while on the ground and later taken to hospital where his injury was diagnosed.

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 TPS officers on December 7, 2018. He suffered a fracture to his orbital bone in the process. The SO was among the arresting officers and identified as the subject officer in the SIU’s investigation. Upon review of the information collected in the investigation, I am satisfied there are no reasonable grounds to believe he committed a criminal offence in connection with the Complainant’s arrest and injury.

At issue is the degree of force used against the Complainant. There is some evidence that the Complainant was repeatedly kicked in the head after being taken to the ground, though he offered no resistance. Further evidence supports the suggestion that the Complainant was kicked and punched multiple times in the face for no reason.

On the other hand, the SO, WO #3 and WO #7, three of the four officers who appear on the evidence to have physically engaged the Complainant on the ground, indicate they did not, nor did they see anyone else, strike the Complainant. According to these officers, the Complainant did not resist his arrest and was handcuffed in relatively short order. WO #4, the fourth officer, says also that he did not strike the Complainant. Unlike the others, however, he asserts that the Complainant did struggle on the ground by rolling and flailing his arms, and concedes that he used force to restrain the Complainant and place him onto his stomach so he could be handcuffed.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of an act that they are required or authorized to do by law. I am satisfied, based on the information at the disposal of the officers, that the Complainant was subject to lawful arrest on drug charges. The real question as far as the officers’ potential criminal liability is with their use of force.

If one accepts the most incriminating version of events, then the Complainant was the victim of excessive force amounting to an unlawful assault. To be sure, there are problems with this body of evidence. For example, it also suggests the Complainant opened the passenger door as officers approached and made it immediately clear that he would peacefully surrender. However, the video recording of the arrest, captured by a surveillance camera in the area, confirms the SO’s account that it was he who opened the door before grabbing the Complainant and pulling him out of the van. That same video recording, while not depicting the events on the ground with precision and clarity owing to the lighting in the area at the time and a vehicle partially obstructing the arrest, does show four officers in and around the Complainant on the ground. What it fails to show is any obvious movement on the part of those officers consistent with a kicking or punching motion, and certainly not of the duration alleged by the incriminating evidence. Weighed against these and other difficulties, however, is an expert medical opinion that supports the more incriminating evidence to the extent it concludes that the injury in question, namely, the fractured orbital bone, was more likely the result of a blow to the area than impact with the ground. On balance, and cognizant of a charging authority’s limited purview when assessing matters of reliability and credibility, I am satisfied on the record that the incriminating evidence is not so devoid of merit as to disqualify it from being heard by a trier-of-fact. But that is not the end of the analysis.

The obstacle to laying charges in this case is with the evidence of identification. The incriminating evidence suggests that two of the officers who assaulted the Complainant were “brown” males and the other two “white” males, and that a “brown” male kicked the Complainant the most. In fact, of the four officers identified by the SIU as having directly engaged the Complainant on the ground, all were Caucasian and none of them could be fairly characterized as “brown”. In the circumstances, though it may well be that the Complainant was the victim of excessive force, I am satisfied that no reasonable grounds exist to believe that any one or more identifiable officers was or were the perpetrators of the possible assault in question. Accordingly, there is no basis to proceed with charges in this case and the file is closed.

Date: January 21, 2020


Original signed by

Joseph Martino
Director
Special Investigations Unit