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SIU Director’s Report - Case # 19-TCI-226

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 24-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 13, 2019 at 11:25 a.m., the SIU received information that:

On June 24, 2019, the Complainant was arrested for assault at York University and was taken to Toronto Police Service (TPS) 31 Division. The Complainant was taken into a search room where he was beaten by officers and became unconscious.

Upon his release the next day, the Complainant went to the Scarborough General Hospital (SGH) and was diagnosed with a fractured rib and a possible concussion. 

The Team

Number of SIU Investigators assigned: 5

Complainant:

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


Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Notes reviewed, interview deemed not necessary


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.
SO #3  Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #4 Interviewed, but declined to submit notes, as is the subject officer’s legal right.



Evidence

The Scene

The scene was a small room that resembled an interview room. On November 28, 2019, an SIU investigator attended the station and observed one of the rooms, which resembled the same one that the Complainant was taken into. The room had minimal furniture and was about two-and-a-half metres by three metres in size. There were no panic buttons or panic strips in the room. There were no surveillance cameras in the room.

Police Communications Recordings

On June 24, 2019 at 10:33 p.m., a man telephoned 911 to request police assistance at 100 York Boulevard, York University. The man reported that the security team had received a call about an individual [believed to be the Complainant] chasing another individual [believed to be the CW] while shouting racial slurs. The CW was described as a black man, while the Complainant was described as a Caucasian man. Both men were reported to have made their way outside of Vari Hall, where they had a confrontation wherein the CW grabbed an 8-foot-long sapling, which was to be planted, and they “started swinging on each other,” but eventually two security officers broke up the interaction.

At 10:35 p.m., the TPS dispatcher requested units to attend 100 York Boulevard for an assault in progress. At 10:38 p.m., the man called 911 to provide further information and to request Emergency Medical Services. The man reported that one of the men had left the area, while the other remained in the area and complained that he had sustained a cut to his elbow from a knife [now known to be the CW]. The caller was transferred to the ambulance dispatcher.

At 10:40 p.m., the dispatcher advised that the black male suspect who had the knife had fled the area. [It is now known that when the security officials arrived, both the CW and the Complainant were still in the area and in proximity of each other.]

Video/Audio/Photographic Evidence


TPS In-Car Camera System (ICCS) Video Footage Summary


On June 24, 2019, at about 11:15 p.m., SO #1 and WO #2 were seen lifting a man [now known to be the Complainant] off of the ground. The Complainant’s ankles were restrained and his hands were handcuffed behind his back. SO #1 and WO #2 were on each side of the Complainant while they carried him to the back seat of a police cruiser. The Complainant had a medium build, with short dark hair and a dark beard. He was wearing jeans and a white T-shirt.

Once the Complainant was placed in the rear of the cruiser, he continuously berated the police officers using racial slurs. The police officers advised the Complainant that he was being audio and video recorded. The Complainant addressed his concerns about the end of the leg restraint system being outside of the cruiser, but WO #2 advised that he was holding on to the restraint. The Complainant was aggressively loud and incoherent while speaking, stating he did not understand what the police officers were telling him and often interrupting them while they tried to speak to him. There were also sounds of spitting that the Complainant made, and it appeared that he spat inside the cruiser. The Complainant was also seen talking to himself incoherently.

TPS Booking Room Area Video Footage Summary


On June 24, 2019, at about 11:40 p.m., the Complainant was picked up from inside the cruiser and escorted into the booking room area by SO #1 and WO #2. His legs and hands were restrained, and the police officers were on each side of him.

Once inside the booking room area, the Complainant was paraded in front of WO #1. When the police officers mentioned the word knife, the Complainant yelled out “knife.” While WO #1 and the police officers were suggesting that the Complainant be subject to a level three search, the Complainant spat on the floor. WO #1 advised the Complainant not to do that again. The Complainant continued to yell out “knife” and questioned about it. When WO #1 asked the Complainant if he had any injuries, the Complainant stated that his legs were the colour purple.

The Complainant was uncooperative with WO #1 when asked how much he had had to drink.

At 11:42 p.m., SO #1 and WO #2 escorted the Complainant out of the booking room area and into what was believed to be a search room in the Criminal Investigation Bureau (CIB) area. The Complainant was being uncooperative and was trying to pull and thrash his body.

On June 25, 2019, at about 10:26 a.m., the Complainant was escorted into the booking room area with his hands handcuffed to his front. A police officer conducted a pat-down search of the Complainant and the Complainant was asked if he was good to go to court. The Complainant was eventually escorted to the sally port area and into a court services vehicle. There was nothing significant to note about how the Complainant was moving or walking in this video clip and he was seen stepping into the court vehicle, of his own accord, without issue. 
 

TPS Cell Video Footage Summary


TPS provided video footage of the inside of the cell in which the Complainant had been lodged on June 24, 2019, as well as video footage of the hallway outside of the cell. The following is a summary of the video footage from cameras four and six.

At 11:48 p.m., the Complainant was escorted to the cell by seven police officers and one booking officer. A police officer was on each side of him and his head was pushed down towards the ground. The Complainant was walking on his own, when he was placed inside the cell.

Once the Complainant was inside the cell, he stood by the door and placed both of his hands down his underwear. The Complainant was wearing underwear and a t-shirt and he was in bare feet. The Complainant was seen to be mobile and he approached the door several times to bang on it with both fists. At one point he was seen reaching up at the door with his right arm and banging on it. The Complainant was also seen lying on the bench and then standing back up a few times. He lay on his right side, his left side, and his back. At one point, the Complainant approached the door to bang on it again. He looked up at the camera and appeared to be speaking. There did not appear to be any visible injuries to his face.

At 1:59 a.m. on June 25, 2019, the Complainant was standing at the door and used his right hand to bang on it. His left arm was draped across his torso area, as he stood banging on the door several times.

At 2:38 a.m., WO #4 and the booking officer opened the cell door and gave the Complainant a pair of pants to wear. He was then escorted by WO #4 and the booking officer out of the cell and they walked down the hall. The Complainant walked on his own. [It is now known that WO #4 assisted the booking officer with fingerprinting and photographing the Complainant.] At 2:48 a.m., the Complainant was escorted back to the cell and, again, he walked on his own. Thereafter, the Complainant remained in the cell and was seen lying on the bench in several different positions.

At 7:01 a.m., the Complainant was escorted out of the cell by a booking sergeant [to attend court].

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Computer-Assisted Dispatch Event Details Report;
  • General Occurrence Hardcopy;
  • Notes of the witness officers;
  • Communication recordings;
  • Cell and Booking Video footage;
  • Police ICCS video footage;
  • Prosecution summary;
  • Statements and memobook notes of security officers;
  • TPS Email identifying the officers in two photos; and
  • TPS Email regarding Involved Officers.

Materials obtained from Other Sources

The Complainant’s medical records from SGH were also received and reviewed.

Incident Narrative

The following scenario emerges from the weight of the reliable evidence collected by the SIU. At about 10:30 p.m. on June 24, 2019, the TPS received a call from York University requesting assistance with an ongoing altercation outside of Vari Hall. The parties involved in the dispute were the Complainant and the CW. After speaking with campus security and gathering information, the officers decided to arrest the Complainant for having assaulted the CW. The Complainant was taken into custody and lodged in the backseat of SO #1 and WO #2’s cruiser for transport to the station.

Once at the station, the Complainant was escorted into the booking room to be paraded prior to being placed in a cell. Because the Complainant was thought to have used a knife in the assault, a strip search was ordered by the staff sergeant. At about 11:42 p.m., the Complainant was escorted into a small search room in the CIB area by several officers.

The Complainant resisted the officers’ efforts to search him and a struggle ensued in the course of which the Complainant was taken to the ground. The subject officers wrestled with the Complainant and were soon able to subdue him, whereupon the search was completed. The Complainant was led from the search room to a cell, where he was lodged until his departure from the station the following morning.

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 on June 24, 2019 by TPS officers. He was released from custody on June 26, 2019 and attended hospital where he was diagnosed with a fractured rib. SO #1, SO #2, SO #3 and SO #4 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.

It is alleged that the Complainant was repeatedly punched and kicked by multiple officers inside the search room, but I am unable to lend credence to this rendition of events. It is further alleged that the Complainant was the victim of an unprovoked attack at the hands of the CW. That proclamation is contested by the weight of the evidence gathered by the SIU, including statements of the incident prepared by York University security officials who dealt with the matter. The allegations also contained a number of assertions that are demonstrably inaccurate. For example, it was suggested that following the search in the search room, the Complainant was dragged to his cell. A video of his escort to the cell area, however, shows him to be walking under his own power. For these and other reasons, it would be unwise and unsafe to rest charges on the strength of the Complainant’s word.

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. Based on the information provided by the CW and York University security personnel, I am satisfied that the Complainant was subject to lawful arrest in relation to his altercation with the CW. In light of information suggesting the Complainant had wielded a knife in the course of his confrontation with the CW, I am further satisfied that the officers were within their rights in conducting a strip search under the law set out in R v Golden, [2001] 3 SCR 679.

The issue turns to the force that was used by the officers in the search room. While I accept that the Complainant was forced to the floor in the search room and that officers wrestled with him to restrict his movements, I am unable to reasonably conclude that the force in question was excessive. The takedown, for example, happened after the Complainant kicked back at officers soon after his leg restraints were removed and thereafter physically struggled against their search efforts. In the circumstances, I am satisfied the tactic was a reasonable one; in that position, the officers would have the upper hand in managing any further resistance on the part of the Complainant. The Complainant remained combative with the officers on the ground, at one point attempting to headbutt SO #1, and was met with a combined grappling effort on the part of the officers. That effort, in my view, appears to have been a measured and proportionate response to the challenges at hand.

The exact cause of the Complainant’s rib fracture remains an open question at the end of the SIU investigation. There is a possibility, for example, that it was incurred in his altercation with the CW that preceded police involvement or sometime after he left the police station on the morning of June 25, 2019. Be that as it may, as there is insufficient evidence to reasonably conclude that any of the subject officers acted other than lawfully in their dealings with the Complainant, there is no basis to proceed with criminal charges in this case, despite the possibility the Complainant was injured during the search at the police station, perhaps during the takedown. Accordingly, this file is closed.


Date: May 25, 2020


Electronically approved by

Joseph Martino
Director
Special Investigations Unit