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SIU Director’s Report - Case # 19-TCI-198

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 serious injuries sustained by a 36-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 18, 2019 at 8:40 a.m., the Toronto Police Service (TPS) reported an injury to the Complainant.

The TPS advised that on August 18, 2019, at 1:00 a.m., the TPS received a call to attend a night club on College Street regarding five men fighting. Police officers arrived and arrested the Complainant and transported him to TPS 14 Division. When they arrived at the sally port, the Complainant began to kick the windows of the police cruiser. Force was used to remove the Complainant from the cruiser. The Complainant was taken to the Toronto Western Hospital (TWH) where he was diagnosed with having sustained a fractured orbital bone and a fractured jaw.

The Team

Number of SIU Investigators assigned: 4
 
On August 18, 2019, SIU investigators interviewed the Complainant at the TWH and the Complainant signed a medical release. Medical records along with a Toronto Paramedic Services ambulance call report were obtained. 
 
Five Witness Officers (WOs) were interviewed, and the Subject Officer (SO) was interviewed on November 20, 2019. 
 
Communications audio along with an In-Cruiser Camera System (ICCS) and sally port recordings were reviewed, and reports were submitted.

Complainant:

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


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located inside the sally port at TPS 14 Division.

Video/Audio/Photographic Evidence


Summary of ICCS Recording


The ICCS video was provided by the TPS. The video ran from 1:25:35 a.m. to 2:45:35 a.m. on August 18, 2019. The time/date stamp from the video was used to report the times. The video had two views. One was out the front window and the other view was of the back-seat compartment.

The following is a synopsis of the video:

1:25:35 a.m., to 1:29:47 a.m. 

The camera view was out the front window and there was audio in the background. A man’s voice [now known to be the Complainant] stated, “I want to press charges against them.” A second man’s voice stated, “You are under arrest for assault.” The Complainant stated he did not assault anyone. Rights and cautions were read out. The Complainant continually interrupted the police officer and stated he wanted to press counter-charges. There was nothing on the camera view out the front window that was relevant to the SIU investigation.

1:29:47 a.m. to 1:32:16 a.m. 

The back-seat camera view was turned on. The Complainant sat quietly in the back seat. He was handcuffed with his hands behind his back. The Complainant sat with his head turned down and there was not a clear view of his face. The Complainant continued to request that charges be pressed against the other party involved in the assault. At 1:32:16 a.m., the Complainant turned his head and there appeared to be bruising marks to the right side of his face and swelling to his right cheek bone.

1:37:39 a.m., to 1:45:04 a.m. 

The Complainant again stated he wanted to press charges. When the police officer did not reply to him, the Complainant raised his voice. The police officer replied, “I hear you, just be quiet.” The Complainant became upset and raised his voice wanting to have charges pressed. The police officer told the Complainant to just relax. The Complainant repeated that he wanted to press charges. The Complainant called the police officer a “fucking clown” for not pressing charges against the other party involved.

1:45:04 a.m. to 1:48:19 a.m. 
 
The Complainant argued with the police officer about being assaulted and ending up being the one charged. The Complainant then told the police officer, “If I fucking punch you in the beak you fucking goof, I’ll get charged. You go ahead and laugh. Your mother is a fucking goof and you’re a fucking goof.” The Complainant berated the police officer and told him to take the handcuffs off and the Complainant would rip his jaw off. The Complainant called the police officer a crooked cop. The Complainant then screamed that he had been assaulted over and over and he drowned out conversation between two police officers. One of the police officers told the Complainant there would be an additional charge of mischief.

1:51:30 a.m., to 1:57:55 a.m. 

The cruiser arrived at the police station and pulled directly into the sally port. The Complainant was calm and quiet. The Complainant asked to go to the hospital. He asked two more times and explained he was “bleeding bad.” The Complainant repeated over and over he had to go to the hospital because he was bleeding bad.


1:57:55 a.m., to 2:02:07 a.m. 

The Complainant screamed that he needed to go to the hospital. The police officer asked the Complainant to show him where the Complainant was bleeding. The Complainant kept his head down and made no movement to show the police officer his face. The police officer flashed a light on the Complainant’s face. The Complainant called the police officer a goof and his mother a goof. The Complainant told the police officer to get the light out of his face and called the police officer a piece of shit. The police officer told the Complainant he was being recorded and there was only a little bit of blood.

2:02:07 a.m. to 2:03:15 a.m. 
 
The Complainant asked the police officer if he could get a form nine and the police officer replied no because he was intoxicated. The police officer explained that there were witnesses to the assault and the Complainant had also thrown a bottle against a window, which had broken.

2:03:15 a.m., to 2:05:12 a.m. 

The Complainant leaned back in the seat and kicked the Plexiglas divider between the front and back seats. He then spat at the Plexiglas divider. The Complainant continued to challenge the police officer to get out and fight. The Complainant called the police officer a bitch and his wife a bitch. The Complainant then told the police officer that the police officer was gay.

2:05:12 a.m., to 2:07:00 a.m. 
 
The Complainant again challenged the police officer to take off the handcuffs and fight him. The Complainant put his head up close to the Plexiglas divider and screamed that he needed to go to the hospital.

2:07:00 a.m., to 2:07:21 a.m. 
 
The Complainant kicked the Plexiglas divider three times and the rear passenger multiple times.

2:07:21 a.m., to 2:08:00 a.m.

The back-passenger door was opened, and the Complainant yelled, “You’re not so tough anymore.” The body of one police officer was visible right outside the door and the legs of another police officer were visible beside the first police officer. The faces of the police officers were not visible. The Complainant jumped forward on the seat and then jumped up erect outside the door. The SO grabbed the Complainant’s shirt near the chest area with his left hand and pushed the Complainant against the open back passenger door. The SO appeared to strike the Complainant twice with his right hand. The contact was not seen on the camera view but the movement of the SO and the movement of the Complainant reacting suggested as much. The Complainant was then pushed down onto the back seat. The SO used his right hand to grab hold of the Complainant’s shirt near his left shoulder. The SO used a forearm on the Complainant’s neck to hold his head against the seat. The Complainant screamed, “You’re a tough guy, eh,” several times. He continued yelling, “I’m in handcuffs. It’s all on camera.” The SO told the Complainant to relax. The Complainant screamed out that he was not resisting several times. The SO held the Complainant down on the seat. The SO then said, “You kicked me.” The Complainant struggled against the SO’s efforts to control him. The Complainant was on his back and he rolled over to his right side. The Complainant screamed that the SO had attacked him. He told the SO that he was a goof and so was his mother. The SO disengaged from the Complainant.

2:08:00 a.m., to 2:09:04 a.m. 

Both police officers told the Complainant to relax and the SO said, “I didn’t want you to kick my window out.” The Complainant tried to exit the open passenger door. The SO swung his open right hand at the Complainant; however, it could not be determined if the SO struck the Complainant. The SO used his left hand to grab hold of the Complainant’s shirt near his right shoulder. The Complainant was pulled to the floor near the cruiser’s passenger side rear wheel. This was out of camera view. The SO’s head could be seen above the trunk of the police cruiser and the SO appeared to be holding the Complainant down.

2:09:04 a.m. to 2:14:54 a.m. 

The Complainant screamed out that he had been assaulted and he did not resist. The SO went from kneeling down to standing erect at the back of the cruiser. Two police officers walked into camera view. One of the police officers was WO #2. They walked to the back of the cruiser and WO #2 crouched down and attempted to talk to the Complainant. WO #2 was heard to ask the Complainant if he wanted to go to the hospital. At that point, the Complainant stopped screaming.

2:14:54 a.m. to 2:21:10 a.m. 
 
The Complainant told the police officers that the SIU was coming for them and that they were pieces of shit. The Complainant called WO #2 a “fucking nigger.”

2:21:10 a.m. to 2:30:26 a.m. 
 
The Complainant screamed out that he would catch the police officers out on the street, and they had better watch out. The Complainant continued to scream out at the police officers. Most of what he said was unintelligible except for the obscenities and that he was going to call the SIU. WO #2 and two other police officers stood at the back-passenger side of the cruiser.

2:30:26 a.m. to 2:35:36 a.m. 

WO #3 and the SO walked into the sally port in front of an ambulance. The paramedic approached the Complainant. The Complainant began to scream “officer stop (unintelligible) me” several times. The back-seat video and the audio were turned off. 
 

Summary of TPS 14 Division - Sally Port Video


The video started at 2:30:26 a.m., with the Complainant already in shackles lying on the floor on his stomach near the passenger side back corner of the cruiser. He was handcuffed with his hands behind his back. WO #1 stood on the chain between the shackles holding the Complainant’s feet to the ground. The Complainant maneuvered his body so his head was under the rear bumper of the cruiser.

At 2:32:40 a.m., the sally port garage door opened, and an ambulance pulled up to the sally port door.

At 2:35:26 a.m., the paramedics came into the sally port and a paramedic spoke with WO #2, and then appeared to have a conversation with the Complainant. The Complainant turned to his side and yelled out. He could be heard yelling, “Fuck you,” several times.

At 2:37:54 a.m., four police officers positioned themselves and picked the Complainant up off the ground. WO #3 returned to the sally port with a facemask and the Complainant was placed on a stretcher.

At 2:40:20 a.m., the Complainant directed his yelling and screaming at the woman paramedic. The Complainant was strapped to the stretcher. The woman paramedic returned with a face shield and the two paramedics put it over the Complainant’s face. The Complainant continued to scream and yell with enough force to rock the stretcher. The face shield was held in place by the woman paramedic. The Complainant was wheeled out of the sally port to the ambulance.

The video ended at 2:49:24 a.m.

Communications Recordings

On August 18, 2019, at 1:12:25 a.m., a woman called the TPS and reported that there was a fight involving five men at College and Crawford Streets. The woman indicated she did not want to give a formal statement.

At 1:12:25 a.m., a police unit, which included WO #1 and the SO, was dispatched, and they arrived on scene at 1:21:09 a.m. On arrival the men who had been fighting had dispersed. At 1:30:41 a.m., WO #1 and the SO advised they had one man [now known to be the Complainant] in custody on Grace Street south of College Street. The Complainant was transported to TPS 14 Division.

At 2:49:20 a.m., WO #1 and the SO broadcast that they would escort an ambulance to the TWH.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Automatic Location Identification Log Search;
  • Computer-Assisted Dispatch Event Details Report (x2);
  • Communications Recordings;
  • Drawings of Scene by the SO, WO #1, and WO #3;
  • General Occurrence Report;
  • Injury Report-the Complainant;
  • Notes of the witness officers and the SO;
  • Procedure - Arrest;
  • Procedure - Use of Force;
  • Procedure - Persons in Custody;
  • Procedure - Persons in Custody Appendix D (Monitoring);
  • TPS ICCS video (x2);
  • TPS sally port video; and
  • Training record-the SO.

Materials obtained from Other Sources

The SIU also received an Ambulance Call Report from the paramedic service and the Complainant’s medical records from TWH.

Incident Narrative

The material events in question are relatively clear on the evidence collected by the SIU thanks to statements provided by the Complainant, the SO and several witness officers, and, critically, a video recording captured by a police cruiser’s ICCS. On August 18, 2019, the SO and his partner, WO #1, were dispatched to College and Crawford Streets following a 911 call reporting a disturbance in the area. The Complainant had been kicked out of a nightclub because of his violent behaviour toward other patrons. Once outside, the Complainant’s violence continued as he challenged the club’s security personnel and brawled with others in the vicinity. On one or two occasions, after the Complainant had walked away from the establishment, he returned with beer bottles which he tossed in the direction of the club, striking a clubgoer and damaging a window in the process.

Arriving at the location, the SO and WO #1 were briefed regarding an assault that had transpired and then travelled toward the Complainant, who was walking eastward on College Street. They eventually caught up with the Complainant on Grace Street, south of College Street, and placed him under arrest. The Complainant objected claiming that he had done nothing wrong, but otherwise did not resist arrest and was handcuffed without incident. He was placed in the backseat of the officers’ cruiser for transport back to 14 Division.

En route to the station, the Complainant’s belligerence escalated. He repeatedly insulted the officers and threatened them with bodily harm. Once at the station, the cruiser pulled into the sally port. It was the officers’ intention to have the Complainant wait in the backseat for a while to calm down before parading him before the booking sergeant. The Complainant did not calm down. He continued to threaten the officers, who were now outside the vehicle, and forcefully and repeatedly kicked at the Plexiglas divider and the cruiser’s back passenger-side door.

Concerned that the Complainant’s conduct might cause damage to the back door, the SO opened it. From a seated position, the Complainant gathered himself and exited the cruiser onto his feet in close proximity to the SO and WO #1. The SO pushed the Complainant back against the interior side of the open rear passenger door and, with his right hand, swung twice in the direction of the Complainant’s upper body/head area. He then pushed the Complainant back into the cruiser and held him pinned against the seat with a forearm across the Complainant’s neck. After a period, the SO withdrew from the cruiser and again stood outside the open passenger rear door with WO #1. The Complainant exited the cruiser once more and was told to get back in several times. He refused and was physically engaged by WO #1 and the SO, the latter using his right hand to swing at the Complainant’s head/upper body area, whereupon the Complainant was pulled to the floor.

WO #1 and the SO kept the Complainant pinned to the floor and were soon assisted in their efforts by WO #3. WO #3 left the area and returned with leg restraints, which were placed on the Complainant. An ambulance was called to the scene and the Complainant was taken to hospital, where his injuries were 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.

Section 34, Criminal Code -- Defence of person - Use of threat of force

34 (1) A person is not guilty of an offence if
(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 
(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) The act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon; 
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and 
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Analysis and Director's Decision

In the early morning of August 18, 2019, the Complainant was arrested by TPS officers. He was subsequently taken to hospital and diagnosed with right-sided fractures of his jaw and orbital bone. The SO was among the arresting officers and identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO 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. In addition, police officers enjoy the same rights of self-defence as any other citizen. Under section 34 of the Criminal Code, a person is legally justified in using force to thwart a reasonably apprehended attack provided the force in question is reasonable in the circumstances. I am unable to reasonably conclude that the SO fell afoul of the limits of justification prescribed by either of these sections.

For starters, I am satisfied there were reasonable grounds to arrest the Complainant. Given the information the officers were provided on dispatch and what they learned at the scene, the Complainant was, in my view, subject to arrest for assault. Once in lawful custody, the SO and WO #1 were entitled to maintain control over the Complainant to ensure his safety, as well as theirs.

The live issue is with the propriety of the force used by the SO and, more specifically, the strikes he apparently delivered to the Complainant’s head/upper body area. I say “apparently” because the ICCS recording that captured the interaction in question did not definitively depict the SO making actual contact with the Complainant with respect to the third strike. Regrettably, I am unable to rely on the accounts of either the SO or the Complainant with respect to this point in the evidence other than that their cumulative evidence suggests the Complainant was struck by at least one of these blows to the left side of his face; both individuals could only recall the officer having taken one swing at the Complainant whereas the video clearly depicts three such swings. In any event, I am prepared to accept that the SO made contact with the Complainant’s head/upper body all three times for purposes of these reasons.

At first glance, the force used by the SO seems problematic. The Complainant was handcuffed with his arms behind his back at the time. Moreover, the altercation between the Complainant and the SO did not occur in an uncontrolled or unsafe environment. On the contrary, it transpired in the confines of the 14 Division sally port at a time when WO #1 was standing nearby and other officers were readily available. In the circumstances, while I accept that the SO was within his rights in forcing the Complainant back into the rear seat of the cruiser when the Complainant stepped outside on two occasions, was it really necessary to deliver three strikes to the head/upper body to do so? Considered in context, I am satisfied on reasonable grounds that the SO’s conduct did not cross the line into excessive force.

It is a principle of the common law that officers engaged in the lawful course of their duties and confronted with potential threats to their safety are not expected to measure their responsive force with precision; what is required is a reasonable response, not necessarily an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.). There is no denying that the Complainant was combative and itching for a fight from the moment he arrived at the club, where he became embroiled in a series of fights, to his arrival at the hospital, where medical staff felt the need to sedate him before he could be treated. The Complainant’s hostility toward the SO and WO #1 was clearly on display in the ICCS video recording; he repeatedly insulted and threatened the officers and their families, and wildly kicked at the Plexiglas divider and the passenger side rear door. Against this backdrop, I have no doubt that the Complainant, had he an opportunity, would have attempted to make good on his threats of assaulting the officers. Nor do I have any doubt that the SO, when he was suddenly confronted face-to-face by the Complainant, believed the Complainant was a legitimate threat. While he would have known that the Complainant could not use his arms to punch him, the Complainant was still in a position to headbutt or use his legs to strike the officer. In the circumstances, I am unable to find fault with the SO’s decision to deliver two quick and short punches to the Complainant’s head/upper body. In hindsight, it is probably accurate to say that the SO had other options available short of the force he used to contain the Complainant and defend himself. In the heat of the moment, however, with events unfolding as quickly as they did, I am satisfied that the SO’s conduct fell within the range of what was reasonably necessary at the time.

I am also prepared to find the SO’s third strike legally justified for the same reasons. Here again, despite having been punched twice and forced back into the cruiser, the Complainant’s belligerence remained unabated. Against the officers’ direct commands that he remain in the cruiser, the Complainant again exited and angrily confronted both officers. Again, the SO reacted with a right-handed strike to the head/upper body area of the Complainant. The Complainant was subsequently grounded and pinned to the floor pending the arrival of other officers and paramedics, who took him to hospital.

There is evidence suggesting that the Complainant was repeatedly kicked in the head by officers after he was pulled from the officer and forced to the floor. I am, however, unable to place weight on this evidence as it is less than reliable. For example, this evidence also suggests that the SO delivered only one punch whereas the ICCS recording showed the officer swinging at the Complainant three times. In addition, while the ICCS video was less than definitive on this point, it did not depict the officers making any motions consistent with such a beating.

Whether the SO caused or contributed to the Complainant’s injuries remains an open question. It bears noting that the officer appears to have struck the left side of the Complainant’s head/upper body, whereas the fractures to his jaw and orbital bone were on the right side of his head. Moreover, the ICCS recording depicts an injury to the right side of the Complainant’s face soon after he was arrested and prior to arriving at the sally port. Be that as it may, as I am satisfied that the SO acted reasonably in striking the Complainant in self-defence and to maintain lawful control over him while in custody, there is no basis for proceeding with charges in this case.


Date: May 11, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit