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SIU Director’s Report - Case # 20-TCI-015

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 injury that a 31-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On January 27, 2020 at 7:56 a.m., the Toronto Police Service (TPS) notified the SIU of an injury that occurred the previous day. According to the SIU Intake Report, the TPS reported that on January 26, 2020 at about 9:06 p.m., the Complainant was arrested, “taken to 43 division and given a level 3 search.” After the search, the Complainant complained of pain in his side. He was taken to a hospital where he was diagnosed with a fractured rib, but the doctor could not tell if it was an old or new injury.

The Team

Number of SIU Investigators assigned: 4

Complainants

Complainant: 31-year-old male interviewed, medical records obtained and reviewed


Witness Officers

WO #1 Interviewed
WO #2 Not interviewed [1]
WO #3 Not interviewed
WO #4 Interviewed
WO #5 Not interviewed
WO #6 Not interviewed
WO #7 Not interviewed
WO #8 Not interviewed
WO #9 Interviewed


Subject Officers

SO Interviewed and notes reviewed


Evidence

The Scene

This incident was alleged to have occurred in a search room in the TPS 43 Division station booking area.

The SIU was notified the following day and, as such, there was no scene for examination.

Video/Audio/Photographic Evidence


TPS Video Recordings:


In-Car Camera System (ICCS) recordings from the four cruisers involved in the Complainant’s arrest and transport to hospital were reviewed by the SIU, as well as closed-circuit video recordings of his detention at 43 Division station.

The ICCS recordings from the SO and WO #1’s cruiser captured the Complainant incessantly arguing with the police officers prior to entering the car and en route to 43 Division station. He repeatedly denied having been at his parents’ home and repeatedly tried to enable the “Siri” function on his smart phone, asking it to dial or text several individuals. Prior to entering the car, he told the police officers his ankle was broken. When a police officer challenged the claim, telling him he would not be able to walk if it was broken, the Complainant responded, “Fractured, recovering, that’s fine.”

Closed-circuit video recordings from 43 Division station captured the Complainant arguing and swearing at the police officers. He claimed he did not understand the process and continually spoke over WO #4, who tried to explain the process to him.

When the Complainant refused to listen, he was advised he would be taken to a search room by two male police officers, and out of concern for his safety, he would be strip searched.

Prior to entering the search room, at 9:37:36 p.m. according to the booking video recording’s time stamp, the Complainant told WO #4 he needed to go to hospital as his back and ribs hurt.

He entered the search room with the SO and WO #9 at 9:37:56 p.m. and the door remained closed for about 13 minutes. During that time, the booking hall camera remained on, capturing many utterances by both police officers and the Complainant.

The police officers were heard, over and over, repeating directions to the Complainant while he argued and swore. Although the Complainant was heard several times exclaiming pain, nothing was heard remotely consistent with an altercation or struggle in the room. Further, WO #4 or WO #1 remained outside the search room door during the entire search; neither ever reacted or responded to sounds of a potential physical altercation in the room.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • General Occurrence Report for this incident;
  • Motor Vehicle Collision (MVC) Report;
  • Notes-all WOs;
  • Notes-the SO;
  • ICCS video recording;
  • Police station video recordings;
  • TPS Policy-Arrest Procedure; and
  • TPS Policy-Search Procedure.

Incident Narrative

The following scenario emerges on the weight of the evidence collected by the SIU, which included statements from the Complainant, the SO and several police witnesses, as well as a review of video recordings of the Complainant’s time in custody. Shortly after 9:00 p.m. on January 26, 2020, the Complainant was arrested by the SO and his partner, WO #1, outside an address on Misthollow Square in the area of Neilson Road and Highway 401. The Complainant was placed in the officers’ cruiser and driven to TPS 43 Division.

Upon arrival at the station, the Complainant was belligerent and uncooperative throughout the booking process, refusing to answer questions and continually speaking over the officers. He was taken to a search room and subjected to a strip search by the SO and the booking officer, WO #9. Some 13 minutes after entering the room, the Complainant was removed from the room and lodged in a cell; as the Complainant had gone limp, he was dragged.

Within half-an-hour of being placed in a cell, paramedics attended the station and left with the Complainant to hospital. Concerned with the Complainant’s medical condition, WO #4 had placed the call for an ambulance. The Complainant was diagnosed with a single right-sided rib fracture.

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 evening of January 26, 2020, the Complainant was arrested by TPS officers, taken into custody, and subsequently transported to hospital, where he was diagnosed with a single right-sided rib fracture. The SO was one of 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 injury.

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. Given the information at their disposal regarding the Complainant’s involvement in a domestic dispute with his parents, it would appear that the SO and WO #1 had grounds to lawfully arrest him. I am further satisfied that WO #4 was acting within his rights when he ordered a strip search of the Complainant at the station. The SO had recovered a replica handgun from the scene of the domestic dispute. Considered in the context of the Complainant’s intoxicated and belligerent behaviour, it seems to me there were reasonable and probable grounds to believe a strip search was necessary in the interests of everyone’s safety: R. v. Golden, [2001] 3 SCR 679. The only real issue, in my view, is with the manner in which the search was conducted.

Some evidence suggests that the Complainant was needlessly roughed up by the SO and WO #9. The Complainant’s injury, according to this evidence, was the result of the SO kicking the Complainant while the Complainant lay on the ground inside the search room as WO #9 held him down. The SO and WO #9 categorically assert that no such force was used against the Complainant. According to the officers, the only contact that occurred was when the SO took hold of the Complainant’s right arm at one point after the Complainant had clenched his fist, and when the SO and WO #9 undressed and redressed him.

Short of any evidence corroborating the incriminatory evidence, it would be unwise and unsafe to rest charges on the incriminatory evidence. While the booking area video recording did not visually capture the search, there was nothing on its audio track remotely resembling sounds associated with the type of altercation that the incriminatory evidence suggests occurred. Furthermore, the Complainant was heard complaining of pain to his back and ribs and asking to go to the hospital prior to entering the search room, suggesting that his rib fracture may well have pre-existed the strip search. The cumulative impact of these pieces of evidence render the incriminatory evidence insufficiently trustworthy to warrant being put to the test by a trier-of-fact.

In the result, whatever the cause of the rib fracture, I am unable to reasonably conclude on the aforementioned-record that the SO acted other than lawfully in his dealings with the Complainant. Accordingly, there is no basis to proceed with charges in this case and the file is closed.


Date: June 1, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) After a review of the WOs’ notes, it was determined that interviews with some of them were unnecessary. [Back to text]