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SIU Director’s Report - Case # 19-TCI-184

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 serious sustained by a 52-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 7, 2019, at 8:00 a.m., the Toronto Police Service (TPS) reported the following.

On August 6, 2019, at approximately 10:20 a.m., the TPS were called to a Shoppers Drug Mart located on Queen Street West in Toronto for a theft. When officers arrived one of the suspects fled on foot and was chased by police officers. The suspect was caught and grounded on Portland Street in Toronto. The suspect was identified as the Complainant. He complained of having a mini-stroke and was transported to Mount Sinai Hospital (MSH). The Complainant was examined and it was determined, through X-rays, that he had suffered a fracture to his right femur. The Complainant was still at MSH at the time of notification. 
 

The Team

Number of SIU Investigators assigned: 3

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

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


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located inside the lobby of a building on Portland Street. It was a typical glassed-in lobby which consisted of two glass doors, with the first door closest to the street not being locked and the second door inside the building having a lock. There was an intercom and telephone for guests to call residents inside the building. The lobby was approximately 2.5 metres by 3 metres.

Video/Audio/Photographic Evidence


Video from Shoppers Drug Mart


On August 29, 2019, the SIU received a copy of the video recordings from the Shoppers Drug Mart located on Queen Street West in Toronto. The images were recorded on August 6, 2019.

A man and woman [now known to be the Complainant and CW #2] holding a small dog walked briskly past the point-of-sale without paying for any merchandise. The Complainant carried a reusable shopping bag that appeared to have merchandise in it.

A man [now known to be loss prevention investigator, CW #1] approached the Complainant. CW #1 appeared to speak with the Complainant and showed him a flat object [now known to be his security licence]. CW #1 also appeared to have a cellular phone to his ear. The Complainant walked around CW #1 toward the nearby exit door. The Complainant exited the store and CW #1 took control of the reusable bag. CW #2 and her dog also exited and all three walked quickly in an easterly direction on the sidewalk, out of the camera’s view. 
 

Video from Lobby of the Building on Portland Street


On August 15, 2019, the SIU received a copy of the video recordings from the front lobby of the building on Portland Street. The following is a summary of the salient portions of the video:
  • 10:23:43 a.m., a white male [later identified as the Complainant] can be seen running towards the entrance door;
  • 10:23:50 a.m., the Complainant enters the lobby and he tries to hold the inner door shut. A female [later identified as CW #2] is on the outside of the glass door and two police officers arrive. One officer [later identified as the SO] begins to pull on the door;
  • 10:23:55 a.m., the SO gets the lobby door open. The SO then takes a hold of the Complainant and they face off. The SO spins the Complainant in a 180° rotation, while he has a hold of the Complainant’s left arm. The Complainant goes to his knees and down onto the floor;
  • 10:23:59 a.m., the Complainant is face down on the ground and the SO has control of the Complainant’s left arm and holds him down by placing a knee on the Complainant’s back;
  • 10:24:02 a.m., the SO is straddling the Complainant and has the Complainant’s left arm bent behind his back. The SO is able to get control of the Complainant’s right arm and places it behind his back, while they continue to struggle on the floor;
  • 10:24:10 a.m., the SO has control of both of the Complainant’s arms with his left hand;
  • 10:24:19 a.m., WO #2 enters the lobby to assist. He kneels near the Complainant’s head and the three of them struggle briefly;
  • 10:24:57 a.m., the SO positions the Complainant so that he is seated with his back near a pole in the lobby;
  • 10:25:18 a.m., the Complainant rolls onto his right side, on the floor, and then onto his back;
  • 10:25:47 a.m., the Complainant is returned to his right side and the SO removes the handcuffs. The Complainant rolls onto his front and lies there a short time;
  • 10:26:32 a.m., the SO handcuffs the Complainant’s hands to his front. The Complainant rolls onto his left side and continues moving for several minutes, as though uncomfortable;
  • 10:33:46 a.m., the SO lifts the Complainant’s upper body and moves him into a seated position against the pole in the lobby;
  • 10:36:01 a.m., a small dog on a leash is brought into the lobby and goes to the Complainant; and,
  • 10:41:50 a.m., the SO and WO #2 help the Complainant to his feet and then eventually move him outside of the building. The Complainant limps and moves slowly. The Complainant is placed onto a bench outside of the building.

Communications Recordings

The TPS provided the SIU with an audio recording consisting of three tracks. The following is a summary of the audio which was relevant to the SIU investigation:
  • 10:20 a.m., the TPS communications dispatcher requested a unit to attend a “theft in progress” and provided the location and limited details including a brief description of the Complainant and CW #2;
  • 10:22 a.m., either WO #1 or the SO offered to assist on the call;
  • 10:23 a.m., the dispatcher said the Complainant had come out of the camera store and was going “towards the Loblaws,” and repeated the description of the Complainant and CW #2;
  • 10:23 a.m., the voice of a male who sounded like he may be running [believed to be WO #1] said the Complainant was running “into [the address on] Portland;”
  • 10:24 a.m., a male voice said they “got” the Complainant and were “trying to get him into handcuffs now”;
  • 10:24 a.m., WO #3 said, “Two in custody, all in order”; and
  • 10:26 a.m., WO #3 requested an ambulance for “a male who over-exerted himself running away.”

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Intergraph Computer-Assisted Dispatch Event Details Report;
  • Communications Tape; and
  • Notes of the witness officers and the SO.

Materials obtained from Other Sources

The following items were obtained from other sources and reviewed:
  • Video from Shoppers Drug Mart; and
  • Video from the building on Portland Street.

Incident Narrative

On August 6, 2019, the TPS were called to a Shoppers Drug Mart on Queen Street West in Toronto for a theft in progress. CW #1, a loss prevention officer, had approached the Complainant and showed him his security licence. The Complainant then forced his way past CW #1 and left the store, fleeing eastbound on Queen Street West, with CW #1 in pursuit. While following the Complainant, CW #1 contacted the TPS and advised them of the situation, requested police assistance in arresting the Complainant, and continually updated them as to the Complainant’s whereabouts.

The Complainant eventually made his way to a building located on Portland Street and entered. As he did so, two police officers, the SO and WO #1 arrived at that location. The SO entered the building in pursuit of the Complainant and eventually placed the Complainant under arrest. Following his arrest, the Complainant complained that he may have suffered a stroke or a heart attack, and he was transported to hospital, where it was discovered that he had fractured his right femur.

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 SIU’s investigation into the circumstances surrounding the Complainant’s injuries consisted of interviews with the Complainant, along with two civilian and three police witnesses. The SO also provided a statement to SIU investigators, along with his notebook entries regarding his involvement with the Complainant. In addition to the interview statements obtained, SIU investigators reviewed the CCTV footage from both the Shoppers Drug Mart store and the building on Portland Street, which captured the entire interaction between the SO and the Complainant. On a review of this evidence, for the reasons that follow, I am unable to form reasonable grounds to believe that the SO, or any police officer, resorted to an excessive use of force in arresting the Complainant, or that their actions were of such a nature as to warrant criminal charges.

Relying primarily upon the video footage obtained from the building on Portland Street, it is clear that at 10:23:43 a.m., the Complainant ran toward the entrance door of the building, entered, and tried to hold the door closed behind him. The SO is seen to pull on the door and, at 10:23:55 a.m., he manages to get the lobby door open, whereupon he and the Complainant appear to face off. The SO takes a hold of the Complainant by the arm and rotates him 180 degrees while continuously maintaining his hold on the Complainant’s left arm. The Complainant goes to his knees and then down to the floor. At 10:23:59 a.m., the Complainant is seen to be face down on the ground, with the SO controlling the Complainant by holding onto his left arm and holding him down with his knee on the Complainant’s back. At 10:24:10 a.m., the SO is seen to have control of both of the Complainant’s arms with his left hand, while WO #2 enters the lobby at 10:24:19 a.m. and assists the SO by kneeling near the Complainant’s head. At that point, the two police officers are seen to struggle with the Complainant briefly, after which the Complainant is handcuffed and then seated with his back against a pole. After some time, at 10:41:50 a.m., the two police officers help the Complainant to his feet and he is walked out of the building, with the Complainant obviously limping and moving slowly.

There is some suggestion in the evidence that the two police officers repeatedly struck the Complainant once he was on the floor and they had their knees on his back; however, that is not seen on the video. The video recording also undermines evidence suggesting that the SO hit the Complainant in the head, which was the cause of the Complainant’s fall to the floor.

In contrast, the video footage is fully consistent with the version of events proffered by the SO, with the SO filling in some of the blanks which cannot be readily seen on the video. The SO, in his statement to SIU investigators, advised that when he was able to open the door which the Complainant was holding closed, he came face to face with the Complainant. He reached out with both hands and grabbed the Complainant by the left arm, with the Complainant trying to pull his arm away. The Complainant then pushed back against the SO, while saying something to the effect that the SO should let him go or leave him alone. The SO advised that he then took control of the Complainant’s arm and told the Complainant to stop and that he was under arrest. The SO opined that the Complainant was actively resisting his arrest and being assaultive toward him. The SO turned counter-clockwise, while maintaining control of the Complainant’s arm, and took him to the floor in a single motion, with the Complainant landing on the concrete floor.
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 a lawful duty. Turning first to the lawfulness of the Complainant’s arrest, it is clear from the evidence, including the video footage from the Shoppers Drug Mart store, that the Complainant had stolen merchandise from the store and had fled when advised by CW #1 that he was under arrest. On this evidence, it is clear that CW #1 had reasonable grounds to arrest the Complainant for theft and possession of stolen property. When CW #1 relayed that information to the 911 caller, who in turn advised the responding police officers of CW #1’s observations, they too had reasonable grounds to arrest the Complainant. As such, the arrest of the Complainant was legally justified in the circumstances.

There is no doubt that some force was used to take control of the Complainant and place him under arrest; there is, however, no evidence that this force was excessive. It is clear that the SO was aware that the Complainant had evaded CW #1 when the latter had lawfully placed him under arrest, that the Complainant then fled from CW #1 and tried to prevent the SO from entering and completing his arrest by holding the door closed at the building on Portland Street, and that once the SO had entered the lobby of the building, the Complainant continued to resist his arrest by first attempting to pull his arm away from the SO, and then by pushing against the SO. On this basis, it was more than reasonable for the SO to believe that he had to take control of the Complainant or he would continue to resist and attempt to escape. Accordingly, I find no fault with the SO’s actions in taking the Complainant to the floor as, with the Complainant in that position, the officer would be better equipped to deal with any ongoing resistance by the Complainant. The fact that the Complainant was seen to continue to struggle once on the floor is further evidence supporting the belief of the SO that the Complainant intended to continue his efforts to resist police and flee, and therefore had to be controlled and handcuffed before he had that opportunity.

In summary, I am unable to accept that the Complainant was repeatedly punched by police officers after he had been placed on the floor and they were attempting to handcuff him, or that the SO took the Complainant to the floor by punching him in the head. Instead, I accept the evidence, as definitively recorded by the video footage, that the Complainant sustained his injury when the SO, while attempting to resist the Complainant’s efforts to escape and place him under arrest, took the Complainant to the floor. I further note that once the Complainant was on the floor, no further force was used against him by any police officer. This level of force falls within the scope of that permitted by law, and I am accordingly unable to form reasonable grounds to believe that the SO, or any police officer assisting in the Complainant’s arrest, committed a criminal offence in connection with the Complainant’s injuries. As such, no charges will issue and the file will be closed.


Date: March 30, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit