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SIU Director’s Report - Case # 19-TCI-209

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 the injuries that a 45-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On August 26, 2019, at 6:40 p.m., the Toronto Police Service (TPS) notified the SIU of the following.

On August 26, 2019, at 8:00 a.m., 22 Division police officers responded to an apartment on Hay Avenue in relation to a woman [now known to be Civilian Witness (CW) #1] screaming for assistance. Upon police arrival, police officers received no answer at the residence.

The police officers eventually made contact with a man [now known to be the Complainant] inside the unit, but he refused to exit or allow police officers entry into the premises. The Complainant then barricaded himself inside the unit. The Emergency Task Force (ETF) was contacted and, after several failed attempts at negotiations, breached the door and entered the unit. The Complainant struggled with police officers but was subdued and taken into custody.

The Complainant was subsequently transported to the St. Joseph’s Health Centre (SJHC) where, at 5:45 p.m., he was diagnosed with a fractured jaw and admitted overnight for treatment.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

The SIU forensic investigator took photos of the Complainant.
The incident area was canvassed for closed circuit television (CCTV) cameras, but none could be located.

Complainants

Complainant: 45-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 Not interviewed
WO #6 Not interviewed
WO #7 Not interviewed
WO #8 Not interviewed
WO #9 Not interviewed
WO #10 Not interviewed
WO #11 Not interviewed [1]
WO #12 Interviewed


Subject Officers

SO #1 Interviewed and notes reviewed
SO #2 Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.
SO #3 Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.



Evidence

The Scene

The incident occurred inside an apartment on Hay Avenue.

Video/Audio/Photographic Evidence


Summary of Body-Worn Camera (BWC) Footage


At 1122 hours, WO #5 activated his BWC and captured a conversation he and other officers had with CW #1’s mother at the perimeter of the incident scene.

At 1159 hours, WO #5 activated his BWC again and captured WO #8’s conversation with CW #1. She denied any domestic-related injuries committed by the Complainant and repeatedly told police officers she was not in any danger and did not wish to testify or charge the Complainant with domestic assault. CW #1 was unresponsive when WO #8 asked if she knew the Complainant was prohibited from being at her residence because he was under house arrest. CW #1 said the blood found in their unit was the result of her cutting herself while cooking and her nose, which she claimed was not broken, was the consequence of “walking into a wall.” According to CW #1, she and the Complainant were being intimate when neighbours heard her screaming.

Summary of the Voicemail Left on the Complainant’s Brother-in-Law’s Answering Machine


The police officers said to stop resisting and put the hands behind the back. One of the police officers said, “He’s kicking,” and multiple commands were heard to stop resisting and put hands behind the back. The police officers said, “We’re not going to hurt you, OK, give me your hands nice and slow. Stop resisting.”

Communications Recordings


Summary of Communication Recordings:


On August 26, 2019, at 8:08 a.m., CW #2 called the 911 operator to report a domestic disturbance inside a particular Hay Avenue apartment unit. The tenants were informally named [now known to be the Complainant and CW #1]. Since 4:00 a.m., there were the sounds of smashed dishes, loud arguing, and someone screaming, “Please, somebody help me.”

Between 8:15 – 8:21 a.m., a police unit [now known to be WO #6 and WO #5] accepted the call, because there were no available units from 11 or 22 Divisions.

Between 8:50 – 9:41 a.m., after door knocks went unanswered, WO #6 and WO #5 attended CW #1’s place of employment and WO #8 of 22 Division was requested to attend.

Between 10:00 – 10:29 a.m., WO #8 reported that plans to enter the unit were necessary because the Complainant was unresponsive to door knocks and the efforts to enter the deadbolt door had been unsuccessful, as the key provided by the landlord did not fit. WO #8 also advised that the Complainant was on a recognizance for forcible confinement and was not supposed to be there. The ETF was requested to attend. WO #1 learned the details of the call from WO #8.

Between 10:44 – 10:51 a.m., the ETF arrived at the address and set up the containment.

At 11:43 a.m., the Complainant was in custody. 

Summary of ETF Communication Recordings:


CW #1 was talking to SO #3 at the locked door and was refusing to allow the police officers to enter. SO #3 told CW #1 that they (the police officers) needed to make sure she was okay, and they knew the Complainant was inside the apartment. CW #1 refused to unlock the door and said no one was there. CW #1 was told that the police officers were really concerned for her safety and that they thought the Complainant forced her to do so. SO #3 told CW #1 he needed to physically make sure that she was okay and to let the police officers in to check on her, and that no one would be hurt if she followed the police officers’ direction. CW #1 demanded the police officers go away. SO #3 told the Complainant that he had been seen through the window and he was requested to come to the front door. CW #1 unlocked the door and the ETF team went in. Multiple ETF police officers commanded, “Stop resisting, stop kicking! Stop fucking grabbing my gun! Put your hand behind your back! You are under arrest, hands behind your back!”

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Automatic Location Information Log Search for this incident;
  • Computer-Assisted Dispatch (CAD) Event Details Report for the incident;
  • General Occurrence;
  • Intergraph-CAD Event Details Report;
  • Notes-all WOs;
  • Notes-SO #1;
  • Procedure for Incidents requiring the ETF;
  • Procedure for Use of Force (and Appendices);
  • Communication recordings;
  • Body-Worn Camera video footage;
  • TPS photographs;
  • ETF Team 4 communications recordings; and
  • Training Record-ETF Use of Force qualifications-SOs #1 - #3.

Materials obtained from Other Sources

The SIU also obtained and reviewed the following documents from the Toronto Emergency Medical Services, the SJHC, and another source:
  • Ambulance Call Report and Incident Report;
  • Medical record - St. Joseph’s Health Centre; and
  • A voicemail left for the Complainant's brother-in-law.

Incident Narrative

While there is discrepancy in the accounts regarding the nature and extent of the force used by the officers against the Complainant, the following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, CW #1, two independent civilian witnesses, and four police witness officers. While two of the subject officers, SO #2 and SO #3, declined to provide a statement or a copy of their notes (as was their legal right), the third subject officer, SO #1, provided both.

On August 26, 2019, the TPS ETF was called to an apartment building at Hay Avenue in the City of Toronto. A 911 caller had reported hearing a woman screaming at the top of her lungs, “Somebody please help me!” from an apartment within the building. It was also reported that sounds of items being smashed inside the apartment had been heard and that there had been a violent struggle inside the apartment overnight. A check with the building manager revealed that the apartment was leased to CW #1 and the Complainant. Further information indicated that uniformed police officers had attended the apartment but had been unable to make contact with CW #1, following which the officers went to her place of employment where they were provided with her contact information. Thereafter, attempts to reach CW #1 on her cellphone were also unsuccessful.

A team of eight members of the ETF responded to the apartment at Hay Avenue, with one of the subject officers, SO #3, knocking at the door of the basement apartment, beginning at 11:05 a.m., and attempting to persuade CW #1 to open it so that police could determine that she was well and not in need of assistance. The negotiations went on for 40 minutes, with CW #1 repeatedly insisting that she was fine, that she was not injured, that she was alone in the apartment, and that the police had to leave her residence. At 11:10 a.m., WO #2, who was looking into the apartment through a window, observed that there was blood inside the residence along with a bloody towel. He also observed a man’s shoes and wallet, as well as a light being turned on and then off in the apartment, leading him to believe that the Complainant was inside. Police ran checks on the Complainant and learned that he had recently been involved in an incident wherein he had confined another woman, against her will, and coached her not to open the door when police officers arrived. He was also on a recognizance which required him to be under house arrest at a different address. With all this information, the ETF believed at that point that the Complainant was inside the apartment with CW #1 and that this might be a hostage/forcible confinement situation.

A plan was formulated to break a small window in the apartment and move the heavy blinds, allowing police to see into the residence. Once that was done, WO #2 was able to see that CW #1 had injuries to the right side of her face, under her right eye, with both her cheek and the bridge of her nose being swollen.

When the negotiations with CW #1 proved fruitless, with CW #1 continuing to refuse to open the door, it was decided to address the Complainant directly and the officers called out to him to come out with nothing in his hands. The Complainant was observed coming out of a room at the rear of the apartment and walking into the kitchen. WO #2 told the Complainant to put his hands up. The Complainant ignored WO #2, instead telling CW #1 not to open the door and not to allow the officers entry. The Complainant then walked back to the rear room, returning seconds later.

At 11:43 a.m., CW #1 opened the door and the team entered the apartment. WO #12 immediately attended to CW #1, sheltering her and removing her from the apartment. The Complainant was told to get on the ground.

Following a struggle, the Complainant was arrested, handcuffed and taken away by ambulance. Once at hospital, x-rays revealed that the Complainant had a fractured jaw.

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 morning of August 26, 2019, the Complainant was arrested by TPS ETF officers and suffered a fractured jaw in the process. SO #1, SO #2 and SO #3 of the ETF were identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officers committed a criminal offence in connection with the Complainant’s arrest and injury.

I acknowledge that two sources of evidence indicate that the Complainant was beaten, punched and kicked by ETF officers while on the floor in the apartment despite his not having been violent or disruptive and being compliant with police demands to the extent that when police entered his apartment, the Complainant was prone on the floor. However, I am unable to find such allegations sufficiently trustworthy to warrant resting criminal charges on the strength of this evidence.

The first source of evidence made additional statements during and after the incident that were proven untrue. For instance, this source of evidence repeatedly asserted to police that there was no one else in the apartment with CW #1, which was clearly untrue. This source’s claims about the reasons for CW #1’s injuries and the screaming the night before were also inconsistent with the remainder of the evidence.

The second source of evidence’s credibility is also severely damaged because the claims that the Complainant was fully compliant and lying on the floor when the police officers entered is contradicted by both the recording on the answering machine and the ETF recording, wherein the police are repeatedly heard shouting, “Stop resisting! Stop kicking! Stop fucking grabbing my gun! Put your hands behind your back! You are under arrest, hands behind your back!” Finally, while it is clear that the Complainant sustained a fractured jaw along with a small laceration to each eyebrow, I am unable to reconcile these injuries with the allegations that a police officer kicked the Complainant’s face with his boot and then repeatedly punched and kicked him for five to ten minutes, while four to five other police officers repeatedly punched and kicked him to his jaw bone, his forehead, his temple and his eye. Had that occurred, I would have expected there to be serious bruising and swelling to the Complainant’s face in addition to the two small lacerations and the fractured jaw.

In contrast, the information proffered by SO #1 is relatively consistent and uncontradicted by independent evidence, and I therefore accept it where it is at odds with the evidence alleging extreme police violence against the unresisting Complainant. On this account of what transpired, while the Complainant was initially on the floor, when SO #1 arrived at his location the Complainant was getting up and coming at SO #1. SO #1 reacted by delivering a kick somewhere in SO #1’s chest area in order to attempt to get the Complainant to comply, while he directed the Complainant to get back on the floor. The kick, however, was ineffective in that it did not stop the Complainant. SO #1, fearing that the Complainant was either going to try to escape or fight the police officers, delivered a second similar kick, which landed in the same location. Thereafter, SO #1 went almost to his knees, grabbed the Complainant’s left wrist, and tried to pin him down and put his hands behind his back, at which point the Complainant started to fight with SO #1 with fists clenched. The Complainant pulled his arm away and punched at SO #1. At one point, the Complainant grabbed a hold of SO #1’s vest and belt with his use of force options, prompting SO #1 to grab the Complainant’s wrist and try to bring him down while simultaneously yelling, “Stop fighting! Stop grabbing on my gun!” [2] The Complainant continued to resist and SO #1 delivered two punches to the Complainant’s head and face area as hard as he could; SO #1 conceded that this was likely the cause of the Complainant’s injuries. The Complainant then kicked SO #1 in the ankle and grabbed his wrist, following which SO #1 again punched the Complainant, this time in the ribs, multiple times as he tried to gain control over the Complainant. SO #1 was then assisted by another police officer, who pinned the Complainant’s upper body down, which freed SO #1 to move down to the Complainant’s feet, where the Complainant was still kicking out at the police officers. SO #1 wrapped his arms around the Complainant’s lower leg, pressing on it with his weight, thereby preventing the Complainant from kicking, while SO #2 and SO #3 brought the Complainant’s hands behind his back and handcuffed him.

As with SO #1’s statement, I have little reason to doubt the rendition of events provided by WO #4. According to WO #4, he also witnessed the Complainant on the floor but attempting to get up as officers converged on his position. In an effort to keep him down on the floor, WO #4 said he delivered three kicks to the Complainant’s upper body and observed SO #3 kick the Complainant once.

Aside from information suggesting SO #2 was also physically engaged with the Complainant in the course of his arrest, the investigation was left with no evidence regarding the character of any force he may have used against the Complainant.

On the foregoing record, there is insufficient evidence to reasonably conclude that the officers acted with excessive, and therefore unlawful, force in arresting the Complainant. Pursuant to section 25(1) of the Criminal Code, a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. I believe the ETF officers were acting in accordance with their lawful duty when they arrested the Complainant after having received information from a number of sources that the Complainant and CW #1 had been involved in a physical altercation in which CW #1 was injured and during which she had screamed out for help. Upon receiving further information that the Complainant had only recently been involved in a situation wherein he had forcibly confined another woman and then coached her not to open the door when police arrived, and with the information that the Complainant was still in the apartment, the officers were within their rights in entering the apartment for the safety of CW #1 and to arrest the Complainant. To effect the arrest, the officers used a measure of force to subdue the Complainant, who was actively and violently resisting the police officers’ efforts by thrashing and punching and kicking at the officers. In my view, that force – multiple punches and kicks delivered by SO #1 and others – did not run afoul of the latitude prescribed by the criminal law.

In summary, while I accept that one or more of the strikes delivered by the officers broke the Complainant’s jaw, I am unable to reasonably conclude that the officers acted other than lawfully in arresting the Complainant and using the level of force they did to effect their purpose. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: May 20, 2020

Electronically approved by


Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) After reviewing the notes of WO #5 through WO #11, interviews with these seven WOs were deemed unnecessary. [Back to text]
  • 2) This evidence is corroborated by the various recordings of the interaction. [Back to text]