Cruiser and motorbikeRunnersCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 19-TCI-187

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 46-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On August 11, 2019 at 10:50 a.m., the Toronto Police Service (TPS) contacted the SIU and reported the following:

On August 10, 2019, TPS police officers attempted to stop a vehicle in the area of 6140 Bathurst Street. The subject vehicle contacted the cruiser and fled. Police officers followed the vehicle to a residence on Kite Hawk Way, where the suspect ran into the residence.

Police officers surrounded the residence and sought a Feeney warrant. [1] The warrant was granted at 4:50 a.m. and police officers from the TPS Emergency Task Force (ETF) executed the warrant and arrested the man inside the home. The man resisted and was grounded. There was no indication that use of force options were deployed other than empty-hand techniques. The man was identified as the Complainant.

The Complainant was transported to North York General Hospital, where it was determined that he had suffered an orbital fracture and fractures to both wrists. It was learned that the Complainant had been involved in a motor vehicle collision the previous month where both wrists had been fractured. These fractures were healing but were aggravated during the arrest, according to doctors.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

Complainants

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


Civilian Witnesses

CW #1 Not interviewed [2]
CW #2 Interviewed

Witness Officers

WO #1 Not interviewed
WO #2 Not interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Not interviewed
WO #11 Not interviewed


Subject Officers

SO Interviewed and notes reviewed


Evidence

The Scene

The incident took place inside the living room of the residence located on Kite Hawk Way, Toronto.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Police Communications Recordings


TPS Communications Summary


On August 9, 2019, a woman called TPS and reported that her former boyfriend, the Complainant, was harassing her.

On August 10, 2019, TPS police officers informed the communications centre that when they attempted to approach the vehicle that the Complainant was in, he collided with their cruiser before taking off at a high rate of speed on Bathurst Avenue. The TPS police officers reported that their cruiser was inoperable and that the vehicle that the Complainant was operating, which was a dark-coloured Audi, had damage to it.

In the early hours of August 11, 2019, there were radio communications on the tactical radio line regarding a vehicle and occupants entering and exiting the vehicle. [It is now known that prior to the execution of the warrant at CW #2’s home, ETF police officers conducted surveillance at CW #2’s home.]

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from TPS:
  • Computer Aided Dispatch (CAD) Event Details Report;
  • ETF High Risk Incident Report-SIU;
  • Feeney Warrant-the Complainant;
  • General Occurrence Reports for this incident;
  • List of involved officers from the 32 Division and ETF;
  • Motor Vehicle Accident Report;
  • Notes-the SO;
  • Notes-all WOs;
  • TPS Injury Report; and
  • TPS Communications Recordings.

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 following story emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, the SO, CW #2 and several WOs. At about 4:30 a.m. on August 11, 2019, a team of eight ETF officers stormed a residence at Kite Hawk Way, Toronto. They were there to arrest the Complainant on domestic-related assault charges. The day before, a woman had reported being assaulted and threatened by the Complainant. When police officers in a cruiser located and approached the Complainant, who was parked on Bathurst Street in the area of Steeles Avenue, he accelerated away, striking the cruiser in the process. The Complainant eventually made his way to a residence on Kite Hawk Way, which was owned by an ex-girlfriend – CW #2 – where he was allowed to stay for the night.

Once inside the residence, WO #4 and WO #7, followed by the SO, made their way to the living room on the main floor. In the room at the time, resting on a sectional, were CW #2, CW #1 and the Complainant. CW #2 and CW #1 immediately showed their hands and went to the floor as directed by the officers. The Complainant remained lying on his back on the sofa. The officers repeatedly yelled at him to show his hands, but he refused. Instead, he continued to reach under a blanket that was draped across his waist or lower body. The SO took hold of the Complainant and brought him to the floor with the assistance of WO #7, where he was handcuffed.

Following the Complainant’s arrest, paramedics arrived in the residence. The Complainant refused medical treatment. The ETF transferred the Complainant into the custody of detectives with 32 Division and left the scene.

The Complainant was eventually seen at hospital, where he was diagnosed with a fractured orbital bone and rib. Fractures to one of his hands and wrists were also apparent, but it was unclear whether these were old injuries that were aggravated in the altercation or new 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 early morning hours of August 11, 2019, the Complainant was arrested by members of the TPS ETF and suffered injuries in the process. The SO, in charge of the ETF team, was 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 required or authorized to do by law. The officers were in possession of a warrant authorizing the Complainant’s arrest and their entry into a dwelling-house to do so. The real question is with the propriety of the force used by the officers in effecting the Complainant’s arrest.

In one rendition of what occurred, the Complainant was subjected to an unprovoked police beating. According to this rendition, several ETF officers quickly grabbed hold of the Complainant on the sofa and pulled the Complainant to the ground, where the Complainant was immediately handcuffed. Thereafter, this rendition continues, the Complainant was punched three to four times in the face and kicked two to three times in the ribs, all the while offering no resistance to the officers.

While I accept that the Complainant was struck multiple times, it would be unwise and unsafe to lend credence to the entirety of this line of evidence about the violence that the Complainant received, particularly where it conflicts with the evidence of the officers. For example, this evidence suggests that the Complainant was quickly removed from the sofa after the arrival of the officers. In contrast, the SO indicates that he engaged the Complainant physically on the sofa, delivering a kick and multiple punches before pulling the Complainant to the floor. I see no reason why the SO would lie or be mistaken about this and note that other evidence, including other WOs’ statements, confirms the SO’s account in this regard. Moreover, I find the suggestion that the Complainant was entirely pacifistic during the encounter somewhat implausible. Hours earlier, in an effort to elude police apprehension, the Complainant had used his vehicle to strike a police cruiser before fleeing the scene.

In the result, I am left with credible evidence giving rise to a scenario in which the Complainant failed to show his hands after repeated demands that he do so by the police. Concerned that he might be accessing a weapon, the SO aimed a kick at the Complainant’s chest. The Complainant reacted as the SO had hoped; the Complainant raised his hands up from his waist. However, when the Complainant again returned his hands to his waist area, the SO punched him half-a-dozen times. The struggle on the sofa continued for a short period before the SO, with WO #7’s help, was able to pull the Complainant prone onto the floor. The Complainant continued to struggle with the officers, kicking his feet and refusing to release his arms to be handcuffed. Following another flurry of punches to the Complainant’s head/neck area and ribcage, the Complainant surrendered his arms and was handcuffed behind the back. No further force was used after the Complainant was restrained in custody.

While the force used against the Complainant was severe, and perhaps at the high end of what was lawful, I am unable to reasonably conclude that it crossed the line into excessive force. Police officers embroiled in volatile and potentially dangerous situations are not expected to measure their use of force with precision; what is required is a response that falls within a range of what was reasonably necessary in the circumstances, not an exacting response: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont CA). In hindsight, with multiple, highly trained ETF officers on site, including three in the vicinity of the Complainant, and no concrete reason to believe that the Complainant was armed, one wonders whether the force used by the SO was over the top. On the other hand, the Complainant had given the officers reason to believe that he would react violently if confronted by the police; hours before the encounter, he had rammed his vehicle into a police cruiser in a desperate attempt to escape custody. On this record, I am satisfied on balance that the SO did not run afoul of the latitude prescribed by the criminal law when, in the heat of the moment, the officer met the Complainant’s resistance with a kick and a series of punches.

In the result, while I accept that the Complainant’s injuries were incurred as the result of the force used against him in the course of his arrest, the evidence falls short of reasonably establishing that the SO acted unlawfully during the encounter. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: June 15, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Named after the Supreme Court of Canada decision in R v Feeney, [1997] 2 SCR 13 and obtained pursuant to section 529 of the Criminal Code, a Feeney warrant authorizes the forcible entry of police officers into a dwelling-house to effect an arrest. [Back to text]
  • 2) CW #2 advised that CW #1 was present at the time the Complainant was arrested inside her home. Investigators provided CW #2 with business cards to give to CW #1 to have him contact the investigators. Investigators followed up with CW #2 to determine if CW #1 was interested in providing a statement; however, CW #1 did not contact SIU investigators nor provide a statement. [Back to text]