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SIU Director’s Report - Case # 20-TCI-021

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 injury that a 32-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On January 31, 2020, at 7:21 a.m., the London Police Service (LPS) notified the SIU of an injury. The LPS reported that at 7:11 p.m. on January 30, 2020, Toronto Police Service (TPS) police officers arrested the Complainant at the request of LPS. The Complainant was wanted on a warrant and had to be transported to London.

The Complainant was arrested and taken to TPS 13 Division station where four police officers lodged him in a cell. When the Complainant complained of difficulty breathing, emergency medical services were called and attended. The Complainant was medically cleared and subsequently turned over to the LPS officers.

En route to London, the Complainant started exhibiting symptoms of a panic attack. He was transported to hospital, examined and diagnosed with a fractured left hand.

The Team

Number of SIU Investigators assigned: 5

Complainants

32-year-old male interviewed


Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO #1 Interviewed and notes reviewed
SO #2 Interviewed and notes reviewed


Evidence

The Scene

This incident occurred in the cell block at TPS 13 Division station.

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

Video/Audio/Photographic Evidence


In-Cruiser Camera System (ICCS) recording


An ICCS recording captured the Complainant being seated in a cruiser’s rear right seat at 8:00 p.m. after he was handcuffed with his hands behind his back. At 8:02:37 p.m. on the recording timestamp, one of the police officers reported to the dispatcher they were en route with a male in custody. At 8:05 p.m., a police officer asked the Complainant if he was aware of his rights and then advised him, “You’re under arrest for an outstanding warrant out by London Police but we are not laying any new charges against you,” before informing him of his rights to counsel.

13 Division Station CCTV:


Closed-circuit security colour video recordings with no audio from 13 Division station captured events involving the Complainant’s detention and lodging.

The booking hall video captured the Complainant being paraded while handcuffed with his hands behind his back. He appeared to become emotionally upset, and was seated on the bench. When the handcuffs were removed, he became visibly distraught and appeared to be crying and hyperventilating.

When he was brought to the cell, two police officers stood in the cell while SO #2 and SO #1 stood outside the cell as they all had hold of the Complainant, trying to force him into the cell.

At 8:40:19 p.m., the Complainant entered the cell but maintained hold of the first bar of the open sliding cell door with his left hand. As he maintained the grip, SO #1 tried to pry the Complainant’s grip with his right hand and tapped a handcuff against the Complainant’s left thumb once.

At some point during this incident, the Complainant moved his grip from a sliding cell door bar to a bar on the stationary, fixed section, toward the interior of the cell.

In continued efforts to subdue him and close the cell door, SO #2 withdrew his asp baton. In un-extended configuration, he leveraged the baton against a cell door bar and tried, unsuccessfully, to pry the Complainant’s grip loose of the bar.

SO #2 then appeared to attempt to slide the cell door to further open it while the Complainant’s left forearm wrapped vertically upward around a bar with his hand stretched between the sliding cell door and stationary fixed bars.

The Complainant’s grip eventually released. He was forced onto the bunk, where the three constables continued trying to restrain him and handcuffed his right wrist to the bunk.

After over three-and-a-half minutes trying to get the Complainant into the cell, the cell door was closed at 8:44:08 p.m.

The Complainant remained seated on the bunk with his left side toward the camera, rocking back and forth while clutching his hands together.

He remained there until the LPS police officers arrived at 11:16 p.m.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS and LPS:
  • Narrative Text-both LPS officers who escorted the Complainant;
  • Notes-both LPS officers who escorted the Complainant;
  • Notes-both WOs;
  • Memo book entries-both SOs;
  • TPS ICCs recording;
  • TPS booking and cell video recording;
  • TPS Computer-Assisted Dispatch report;
  • TPS Occurrence Report; and
  • LPS Occurrence Report.

Incident Narrative

The facts in question are not in dispute and may be summarized in short order. At about 7:00 p.m. on January 30, 2020, SO #1, in the company of his partner, WO #1, arrived at a residence in Toronto to arrest the Complainant. They did so on the strength of a warrant that they believed was in existence for the Complainant’s arrest for violations of his bail. The Complainant was present at the residence, owned by his mother, and surrendered himself peacefully to the officers.

The Complainant was placed in the officers’ cruiser and transported to 13 Division, where he was to be lodged in a cell pending the arrival of LPS officers. At about 8:40 p.m., the Complainant was escorted to his cell by several officers. He refused to enter the cell and grabbed hold of the cell bars. The officers, including SO #2 and SO #1, directed him to release his hold of the bars and to stop resisting. The Complainant refused and then struggled to maintain his grip of the bars as SO #2 and SO #1 tried to pry his hands free. The Complainant was eventually freed and secured in his cell.

After approximately two-and-a-half hours in the cell, the Complainant was transferred into the custody of LPS officers, who had arrived to take him back to London. On the drive back, the Complainant complained that he was having trouble breathing. The officers took him to hospital where he was diagnosed with a fractured left hand.

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 495(1)(c), Criminal Code - Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Analysis and Director's Decision

In the evening of January 30, 2020, the Complainant suffered an injury while in the custody of the TPS at 13 Division. SO #2 and SO #1 were identified as the subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either officer 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. Though it appears that the LPS were in the process of applying for an arrest warrant, they had not actually secured one when they called upon the TPS to take the Complainant into custody. That said, based on the information that had been provided to the TPS, I am satisfied that they acted reasonably and in good faith in arresting the Complainant based on a warrant they had cause to believe was in effect. Having done so, the police were entitled to lodge the Complainant in cells pending the arrival of LPS officers. The issue, accordingly, turns to the propriety of the force used by SO #2 and SO #1 in forcing the Complainant into his cell.

The video recording captured by the cell camera of the altercation between the officers and the Complainant is dispositive. At no point did any of the officers strike the Complainant; they simply used their greater manpower to wrestle the Complainant into the cell when he grabbed onto a bar and refused to enter. There is nothing in the recording to suggest that the Complainant was subjected to anything other than reasonable force.

In the result, while it appears the Complainant’s hand was fractured as SO #2 and/or SO #1 attempted to wrest it free of the bar it was clasping, I am satisfied that the officers acted lawfully throughout the interaction. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: June 15, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit