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SIU Director’s Report - Case # 19-TCI-261

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 52-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 5, 2019 at 1:40 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury.

According to the TPS, on November 5, 2019 at 1:30 a.m., TPS 52 Division police officers responded to the Delta Chelsea Hotel at 33 Gerrard Street West, Toronto, in relation to a disturbance. Police officers, along with hotel security personnel, attended a room and, after speaking with the occupants, informed the Complainant he was being arrested for assault. A struggle ensued and one of the TPS police officers [now known to be Subject Officer (SO) #1] deployed his Conducted Energy Weapon (CEW) in the ‘drive stun’ mode. The Complainant managed to gain control of the CEW and deployed it striking SO #1 in the leg with the barbed probes. The Complainant was eventually subdued and taken into custody. He was transported to St. Michael’s Hospital where he was later diagnosed with a fractured nasal bone. The Complainant was admitted for treatment of an apparently unrelated medical condition reported by the TPS to be swollen kidneys.

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 1

SIU investigators interviewed civilian and police witnesses and canvassed for additional civilian witnesses and closed-circuit television data relevant to the incident. The SIU Forensic Investigators collected exhibits and made a scale drawing of the incident scene.

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 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
WO #9 Interviewed
WO #10 Not interviewed, but notes received and reviewed


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The incident was confined to hotel room in the Delta Chelsea Hotel at 33 Gerrard Street West, Toronto, as depicted below. The scene showed signs of a disturbance with property items spread over the floor. Blood stains were located on the carpet in two separate places and on the bed covers. CEW wire, several Anti-Felon Identification Discs, and two CEW cartridge ‘blast doors’ were located on the floor near the foot of the bed.

Scene Diagram

Scene diagram

Forensic Evidence

Data downloaded from SO #1’s CEW indicates that it was deployed around the time of the struggle with the Complainant six times in ARC mode – each time for a discharge of about one second - followed by a single pull of the weapon’s trigger resulting in a discharge of five seconds.

Communications Recordings

There were 272 communications audio recordings provided by the TPS, including the 911 call placed to the TPS on November 5, 2019, at 1:29 a.m., by a woman member of the hotel’s security staff; that communication was an urgent request for TPS police officers to attend a room regarding an unwanted guest in the room occupied by Civilian Witness (CW) #2. CW #2 also spoke to the 911 call-taker during the same communication and informed the call-taker of the name of the unwanted man in his room [later determined to be inaccurate].

There were two additional communication audio recordings of probative value, the first at 1:59:18 a.m. and the second at 1:59:27 a.m.; both revealed the voice of a man [believed to be the Complainant, on a police radio assigned to SO #1] shouting, “Help me!” twice on each transmission. The second transmission also included some indiscernible words uttered by the Complainant and SO #2 or SO #1, with the latter utterances sounding calm in comparison to the utterances made by the Complainant.

The other 270 communication audio recordings were primarily police radio communications deploying, reporting, and relieving police officers involved in the incident until its conclusion at 12:49 a.m.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Communications audio recordings
  • History of Complainant;
  • Drawings by Witness Officer (WO) #3 and WO #5;
  • Email regarding involved officers and roles-November 6, 2019;
  • General Occurrence Report;
  • Injury Report-TPS;
  • Notes of the witness officers;
  • Photographs;
  • Training Records-Use of Force-SO #1 and SO #2;
  • Data downloaded from SO #1’s CEW; and
  • Synopsis of Related Events.

Materials obtained from Other Sources

Upon request, the SIU obtained and reviewed the following other materials and documents:
  • Delta Chelsea Hotel incident records;
  • Drawings by Delta Chelsea Hotel personnel; and
  • Medical records for the Complainant relevant to the incident.

Incident Narrative

The material events in question are relatively clear based on the weight of the evidence collected by the SIU. While neither subject officer provided statements to the SIU, as was their legal right, and the Complainant had limited recollection of what occurred, there were civilian witnesses present throughout the arrest whose evidence I have no reason to doubt. The investigation also benefitted from a review of the police communications recordings and data downloaded from a CEW that was discharged during the incident.

On November 5, 2019, police attended the Chelsea Hotel on Gerrard Street West following a 911 call from hotel security reporting that a male visitor in room– the Complainant – had assaulted the registered guest – CW #2.

SO #1 and SO #2 arrived at the room at about 1:45 a.m. to arrest the Complainant. The Complainant refused to cooperate and then physically resisted SO #1 and SO #2 as they took hold of him.

There ensued a protracted and vigorous struggle between the officers and the Complainant that began on the bed and moved onto the floor. At one point in the altercation, SO #1 drew his CEW and attempted to use it against the Complainant. It appears he did so, at least once in the drive-stun mode. Thereafter, the Complainant tried to disarm the officer of the weapon and eventually did so, whereupon he deployed it against the officer with the probes striking SO #1’s lower left leg. SO #1 and SO #2 managed to wrestle the CEW back from the Complainant and, in due course, were able to affix his arms in handcuffs.

Following the Complainant’s arrest, paramedics were summoned to the scene. They removed two CEW probes from SO #1’s left leg and took the Complainant to hospital, where he was diagnosed with a broken nose and rhabdomyolysis.

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 of November 5, 2019, the Complainant suffered injuries in the course of his arrest by SO #1 and SO #2 of the TPS. On my assessment of the evidence, there are no reasonable grounds to believe that either officer 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 was reasonably necessary in the execution of an act that they were authorized or required to do by law. SO #1 and SO #2 were clearly acting within their rights when they engaged the Complainant physically to take him into custody. Given what they knew of what had occurred between CW #2 and the Complainant, the Complainant was subject to lawful arrest for a number of offences, including assault. The issue turns to the propriety of the force used by SO #1 and SO #2 when the Complainant reacted violently to his pending arrest.

It is a principle of the common law that police officers embroiled in violent confrontations need not measure their use of 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. I am unable to reasonably conclude that SO #1 and SO #2 ran afoul of the latitude prescribed by the criminal law in their dealings with the Complainant. The Complainant proved a formidable challenge as the officers attempted to overcome his resistance. Over the course of several minutes, he managed to keep both officers and two security members at bay as they wrestled with him to gain control of his hands and counter his aggression. In the course of that struggle, the Complainant threw punches at the officers and flailed his arms and legs, at one point kicking SO #2 in the face, at another, dispossessing SO #1 of his CEW and deploying it against the officer. On the aforementioned record, I am not persuaded that the force used by the officers as they grappled with the Complainant to overcome his resistance, and SO #1 shocked him with his CEW in drive-stun mode, exceeded the bounds of what was reasonably necessary in the circumstances to effect the Complainant’s arrest. In arriving at this conclusion, it should further be noted that there was no direct evidence to indicate that either subject officer struck the Complainant during the confrontation, nor was there any evidence of any force being used against the Complainant after he was handcuffed.

While I accept that the Complainant broke his nose in the course of his arrest, there is a possibility raised in the evidence that it was one of the security officers who caused the injury. Moreover, there is some evidence suggesting that the CEW that was used against the Complainant caused or contributed to the onset of rhabdomyolysis in the Complainant. Be that as it may, as I have no reasonable grounds to believe that SO #1 and SO #2 acted other than lawfully throughout their interaction with the Complainant, there is no basis for criminal charges against either officer, and the file is closed.


Date: April 27, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit