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SIU Director’s Report - Case # 19-TCI-298

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 the injuries that a 50-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On December 6, 2019, at 11:05 p.m., the Toronto Police Service (TPS) contacted the SIU and reported the injury of the Complainant. The TPS reported that on December 6, 2019, at 2:00 p.m., the Complainant drove his vehicle into a security gate at TPS 13 Division. He began ramming the gate until TPS officers removed him from the vehicle and arrested him. A conducted energy weapon (CEW) was deployed at some point during the arrest. The Complainant was transported to Mount Sinai Hospital where he was diagnosed with orbital bone fractures.

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators (FI) assigned: 1

On December 8, 2019, SIU investigators met with the Complainant at Old City Hall where he was held for a bail hearing. It was evident to investigators that the Complainant could only understand basic English, as his spoken language was Russian. On December 10, 2019 a Russian court interpreter assisted SIU investigators with the Complainant’s interview. The Complainant consented to an audio-recorded interview and to the release of his medical records.

SIU investigators conducted a canvass in the surrounding neighbourhood of 13 Division police station, at 1435 Eglinton Avenue West, in search of surveillance footage and civilian witnesses. No video footage or civilian witnesses were located. However, 13 Division had exterior surveillance cameras on the building. The TPS provided SIU investigators with raw video footage relevant to this incident. The video footage captured the interaction between the Complainant and the involved police officers.

The Complainant’s in-car camera was seized by police, but it was not operational at the time of this event. On January 16, 2020, SIU requested that TPS provide the Complainant’s in-car camera. However, TPS would not release the in-car camera to the SIU citing that members of the Criminal Investigations Branch (CIB) had seized and secured the camera in preparation for a Criminal Code search warrant to gain access to the video data. At the time of writing this report, it was uncertain whether a search warrant was obtained and executed on the Complainant’s in-car camera.

The scene was forensically examined and photographed. The Complainant’s injuries were also photographed. The involved CEW and WO #2’s duty belt were seized for evidence. The CEW’s history was downloaded and reviewed.

Following a preliminary investigation, SIU investigators designated Subject Officer (SO) #3 and SO #1 as subject officers on January 6, 2020.

On January 10, 2020, after a review of further investigative material, SO #2 was re-designated as a subject officer. On January 16, 2020, SO #2 waived his rights and provided a statement and copies of his notebook entries to the SIU.

Complainants

Complainant: 50-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW 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 Designated in order to review notebook entries
WO #11 Designated in order to review notebook entries
WO #12 Interviewed
WO #13 Interviewed
WO #14 Interviewed
WO #15 Interviewed


Copies of WO #10’s and WO #11’s notebook entries were obtained and reviewed. Their notebook entries indicated they were not directly involved in the Complainant’s arrest but were assigned to guard the Complainant at the hospital. WO #10 and WO #11 were not interviewed by SIU investigators because it was determined that they would not offer further evidentiary value to this investigation.

Police Employee Witnesses

PEW Interviewed


Subject Officers

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


Evidence

The Scene

The scene was a south parking lot located at TPS 13 Division police station, 1435 Eglinton Avenue West. The Complainant’s vehicle, a black 2014 Honda Accord, was against a metal security gate. The front bumper of the Complainant’s vehicle displayed minimal damage. Located on the ground near the driver’s door was a small amount of blood.

The metal security gate opened out to and in from Winnett Avenue. The gate was equipped with sensors in the ground to detect a vehicle. The gate was motorized to allow the gate to open. The gate showed minor collision damage, with some of the metal rods in the gate bent and the gate dislodged from its track. According to TPS documentation, the cost to repair the gate was estimated to be several thousand dollars.

The entry gate from Eglinton Avenue West into the Division 13 parking lot was not functional at the time. The gate remained open because of ongoing construction and traffic flow issues. The entire roadway and sidewalk area were under construction with numerous signs and traffic cones, and there was a generic “do not enter” sign posted east of the entranceway, and under the sign were the words “police exempted.”

Forensic Evidence


CEW Data Download


SIU Fl extracted information from SO #1’s CEW. The data history suggested the CEW appeared to be in good working order. The data history revealed both CEW cartridges were deployed at the time of this event. The first cartridge deployment was on December 6, 2019 at 2:00:07 p.m. for a two second cycle, followed by a second cartridge deployment at 2:01:01 p.m. for a five second cycle.

Video/Audio/Photographic Evidence


13 Division Surveillance Footage


TPS 13 Division is located at 1435 Eglinton Avenue West, Toronto, and is monitored by an exterior surveillance closed-circuit television (CCTV) camera system. The TPS downloaded colour video footage from four surveillance cameras relevant to this investigation. An SIU investigator reviewed the CCTV videos and found the time stamps on the recordings to be consistent with each other and recorded in actual time. The CCTV video recordings were also consistent with the recorded times on the TPS radio transmissions and Computer-Assisted Dispatch (CAD) printouts. However, the video imagery was of poor quality, and the recordings were found to be choppy in portions of the footage. The poor quality of the video footage suggested it could be due to an outdated driver. The video footage did not have audio capabilities.

The CCTV footage consisted of four individual cameras located on the exterior walls of the police station. The CCTV video files were labelled as follows:
  • UC Parking: This camera captured video footage of a covered parking area, facing eastbound onto the east side of the building;
  • Eglinton Gate: This camera captured video footage facing north towards the Eglinton Avenue gate where it captured the east entrance to the police station;
  • Covered Parking: This camera captured video footage on the east side of the parking lot of the police station: and
  • Generator: This video file captured images of the southwest side of the parking lot located at the Winnett Avenue gate. Video images captured the altercation that occurred with the Complainant and the involved officers.

The provided CCTV footage spanned a time frame from 1:24 p.m. to 3:20 p.m. on December 6, 2019. The video footage showed the Complainant entering the parking lot from an unsecured entranceway on Eglinton Avenue West. Images showed the Complainant driving around the building and through the fleet vehicle area eventually colliding with the motorized Winnett Avenue gate, dislodging the gate from its track. This video evidence suggested the Complainant drove his vehicle through the parking lot cautiously and was not operating his vehicle in a manner that was dangerous to the public, or to TPS members.

In the Generator video file, at 1:40 p.m. prior to the Complainant colliding with the gate, images showed a uniformed male police officer [now known to be SO #1] wandering around in the south parking lot. [It was later learned through the investigation that he was waiting for a police vehicle.] Shortly after, SO #1 can be seen standing next to the custody entrance, and then moving out of view of the camera.

At 1:48 p.m., the Complainant’s black Honda entered the south parking lot and travelled slowly westbound. As the Complainant’s vehicle approached the closed gate, it appeared as though the Complainant reversed his vehicle into an empty parking spot suggesting he was trying to turn around. The Complainant’s vehicle stopped reversing then moved forward toward the Winnett Avenue gate slowly. As he slowly approached the gate, it automatically began to open. Video images captured a sudden rush of exhaust smoke from the Complainant’s vehicle as he accelerated into the moving gate. The Complainant’s vehicle struck the Winnett Avenue gate with the entire front of the vehicle and pushed the gate off the motorized track before coming to a complete stop in front of the gate. Images showed lights illuminating on the Complainant’s vehicle believed to be brake lights. Exhaust fumes were captured coming from the back-right exhaust pipes of the Complainant’s vehicle. The back lights were no longer illuminated suggesting the Complainant had put his vehicle in park. The Complainant remained in his vehicle for approximately four minutes before being approached by two police officers, now known to be SO #1 and SO #3.

At 1:53 p.m., two TPS officers appear in camera view. One officer approached the driver’s side of the vehicle [now known to have been SO #3] wearing a TPS uniform jacket with no identifiable markings on the front or the back of the jacket. A second police officer [now known to be SO #1] approached the passenger side of the vehicle [SO #1 was visually taller than SO #3] wearing the same ballistic vest and sunglasses. SO #1 was approximately one-and-a-half metres north of the vehicle. SO #1 bent and looked into the passenger’s side window of the Complainant’s vehicle, and it appeared as though he tapped on the window with his right hand as SO #3 moved closer to the driver’s side of the vehicle.

SO #1 walked east along the passenger side of the Complainant’s vehicle and joined SO #3 on the driver’s side of the vehicle. The footage suggests SO #3 and SO #1 were trying to communicate with the Complainant through the driver’s side window of his vehicle.

At 1:57 p.m., a white Dodge Caravan [now known to have been operated by WO #2] appeared in view of the camera and stopped on the west side of the Winnett Avenue gate where the passenger side door can be seen opening and a person [now known to be the PEW] exited the vehicle. SO #1 and SO #3 were struggling with the Complainant from the driver’s side of the vehicle. It appears either SO #3 or SO #1 was delivering kicks and strikes into the vehicle. It was at this juncture WO #2 approached the passenger’s side and opened the door.

At 1:58 p.m., video footage captured WO #2 standing outside the passenger door of the Complainant’s vehicle as SO #3 took a step to the east on the driver’s side. SO #1 took three to four steps backwards, with his arms extended in front of himself in a shooting position. This video evidence suggested that it was at this moment SO #1 deployed his CEW into the driver’s side of the Complainant’s vehicle.

At this time, the video recording jumped to show additional police officers on the ground outside the driver’s door of the Complainant’s vehicle. These officers were later identified as WO #13, WO #5, SO #2, WO #3, WO #14 and WO #15, who assisted in subduing the Complainant and lifting him to his feet and placing him into custody.

At 2:02 p.m., a marked TPS vehicle [now known to be operated by WO #3] with roof lights activated travelled northbound on Winnett Avenue and stopped near the front entrance of the police station.

Further video evidence suggested SO #1 and WO #2 walking together away from around the south parking lot engaged in conversation. They stopped in an empty parking space between two marked TPS vehicles. Video footage captured SO #1 demonstrating to WO #2 several punches and a kick with his right leg. After SO #1 completed his demonstration, WO #2 demonstrated several punches including three upward right jabs. SO #1 and WO #2 walked out view of the camera into the southeast parking lot of the division that was not monitored by CCTV.

Shortly after SO #1 and WO #2 returned into the view of the camera where it captured them standing near the southeast corner of the Division where they continued to participate in an animated conversation. WO #2 flexed his hands several times and motioned to the back of his hands to signify soreness of his hands. The video evidence suggested SO #1 and WO #2 were engaged in a six-minute conversation. 

WO #3’s In-Car Camera Footage


WO #3’s in-car camera video was reviewed by SIU investigators. There was no video footage captured that offered any evidentiary value to this investigation.

Booking Video


This video offered no evidentiary value to this investigation.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • CAD Unit History Report for this incident;
  • Intergraph - CAD Event Details for this incident;
  • Motor Vehicle Accident Report;
  • Notes from all WOs;
  • Copy of CCTV footage TPS 13 Division;
  • Copy of Booking Video;
  • WO #3’s in-car camera video footage;
  • Occurrence Report (Full Case) for this incident;
  • Procedure – Use of Force;
  • Supplementary Occurrence Report-WO #6;
  • Supplementary Occurrence Report-WO #12;
  • Training Records-Use of Force- and SO #1 and WO #2;
  • Training Record-Use of Force-SO #2; and
  • Training Record-Use of Force-SO #1.

Materials obtained from Other Sources

In addition to the materials received from the TPS, SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records.

Incident Narrative

The material events in question are largely uncontested in the evidence, which included statements from the Complainant, one of the SOs (SO #2) and several police eyewitnesses, as well as video recordings of portions of the incident captured by cameras affixed to 13 Division. Shortly before 2:00 p.m. on December 6, 2019, the Complainant decided to turn into the parking lot of 13 Division, located at 1435 Eglinton Avenue West. He had been traveling east on Eglinton Avenue West in his Honda Accord when, realizing that he had left his tools at a jobsite at which he had been working, he turned into the parking lot intending to double-back westward on the roadway. He drove slowly through the lot and made his way to the driveway exiting onto Winnett Avenue, a north/south road, which was controlled by a metal gate. Just as the gate started to open with the approach of his vehicle, the Complainant drove forward into the gate bending it slightly and taking it off its tracks.

SO #1 and SO #3 of 13 Division approached the Honda to investigate what had happened. They repeatedly asked the Complainant to exit his vehicle, but he refused to do so. The officers decided to physically engage the Complainant to force him from the Honda. The Complainant struggled against the officers’ efforts. The situation escalated to the point where punches were exchanged between the parties. One or both officers kicked at the Complainant, and the Complainant managed to kick SO #1 in the groin area.

WO #2, returning to the Division in a minivan, noticed the struggle in front of him on the other side of the gate and joined in the fray from the front passenger side of the Honda. The Complainant punched at WO #2 but did not make any contact. The officer responded by punching the Complainant’s right arm. Hearing, “Taser, taser,” WO #2 withdrew from the vehicle and watched as SO #1 deployed his weapon. The discharge failed to subdue the Complainant. WO #2 re-entered the vehicle from the front passenger side and started to push the Complainant as SO #1 and SO #3 were pulling him to remove him from the vehicle. The officer then drew his ASP baton and used it to strike the Complainant several times to the right side of the body.

As the altercation continued, SO #2 exited the police station. He approached the driver’s door of the vehicle and watched as SO #1 was attempting to wrestle the Complainant out from the vehicle. The Complainant was seated in the driver’s seat but had his legs out of the vehicle, which he kicked to prevent the officers from extricating him. At SO #1’s direction, SO #2 reached in to grab hold of the Complainant’s legs and was met with a kick to the chest. The officer grabbed hold of the Complainant’s left foot, which had just kicked him, and pulled it forcefully to remove him from the vehicle.

Once outside the Honda, the Complainant continued to struggle by refusing to release his arms to be handcuffed. He was eventually subdued by the officers’ greater numbers and taken into custody.

Following his arrest, an ambulance attended at the scene and took the Complainant to hospital where he was diagnosed with his facial fractures.

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 afternoon of December 6, 2019, the Complainant was arrested on the grounds of TPS 13 Division and suffered injuries in the process – a series of facial fractures in and around the right eye. SO #1, SO #2 and SO #3 were among the arresting officers and 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 these officers 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. The Complainant had trespassed onto the lot of the police station and caused damage to the Winnett Avenue gate as he attempted to exit. Though the collision with the gate may have been accidental – the result of an inadvertent movement forward by the Complainant, as some evidence suggests – I am satisfied in the circumstances that SO #1 and SO #3 were within their rights to investigate what was a potential mischief or dangerous driving offence and to remove the Complainant from the vehicle for that purpose. When the Complainant resorted to force of his own to resist the officers’ efforts, he was then subject to arrest for assault. The issue turns to the propriety of the force used by the subject officers.

Though the officers’ interaction with the Complainant ended with force, it did not begin there. It was only after SO #1 and SO #3 repeatedly asked the Complainant to exit his vehicle, and he refused, that they attempted to force him out. Regrettably, the Complainant reacted with violence. What appeared to start as a wrestling contest escalated with the parties exchanging hand and leg strikes. As the struggle continued, SO #1 discharged his CEW twice at the Complainant, but these proved ineffective in quelling his resistance, perhaps owing to the winter clothing the Complainant was wearing. An ASP baton was also used following the CEW discharges, but these too did little to subdue the Complainant, who continued to punch and kick at the officers. It was only with the arrival of SO #2 that the officers were finally able to extricate the Complainant and take him to the ground next to his vehicle, handcuffing him shortly thereafter. On this record, I am unable to reasonably conclude that the Complainant was met with excessive force. On the contrary, while the force was significant and caused serious injury, it appears to have risen incrementally in a fashion commensurate with the degree of the Complainant’s resistance.

In arriving at the aforementioned conclusion, I am aware that the Complainant was just one whereas the officers were three in number for most of the altercation. That said, the impact of the officers’ superior numbers was muted given the confined quarters of the vehicle in which the struggle occurred. I am also mindful of the suggestion that the Complainant was kicked by an officer while he was on the ground prior to being handcuffed. However, in view of the fact that none of the officers who provided statements to the SIU observed such a kick, and what was by all accounts the Complainant’s continued resistance on the ground refusing to release his arms to be handcuffed, I am not persuaded that this evidence is sufficiently cogent to warrant criminal charges.

In the result, as I am satisfied on reasonable grounds that the officers who dealt with the Complainant to place him under arrest acted lawfully throughout their encounter, there is no basis for proceeding with criminal charges against any of them. Accordingly, the file is closed.


Date: May 25, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit