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SIU Director’s Report - Case # 17-TCI-357

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 serious injury sustained by a 26-year-old man during his arrest on December 4, 2017.

The Investigation

Notification of the SIU

At approximately 7:24 p.m. on December 4, 2017, the Toronto Police Service (TPS) notified the SIU of the injury sustained by the Complainant.

The TPS reported that on that same date, at 1:00 p.m., TPS police officers responded to a wanted man, the Complainant, who was located at a residence in the City of Toronto. When police officers arrived, the Complainant fled on foot and was chased by WO #1. The Complainant was then tackled and struck his face upon hitting the ground. The Complainant was taken to hospital where he was diagnosed with a fracture to his nose.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0

Complainant:

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

On December 4, 2017, at 10:00 p.m., SIU Investigators attended the hospital to speak with the Complainant, who was lying on a stretcher in the emergency department. When the SIU Investigators attempted to converse with the Complainant, he was falling in and out of sleep and, when he spoke, he was not speaking clearly or making any sense. The Complainant had slurred speech and he appeared to be having difficulties understanding what the SIU Investigators were saying to him. The SIU Investigators believed that the Complainant was not mentally capable of providing a statement and was possibly under the influence of drugs or alcohol.


Civilian Witnesses

CW #1 Declined to be interviewed

On December 7, 2017, SIU Investigators attempted to speak with CW #1 at her residence. Upon attending the residence, an elderly woman, CW #1, identified herself as the grandmother of the Complainant. While SIU Investigators spoke with CW #1 at the front door, she advised she had seen TPS police officers struggling with the Complainant on December 4, 2017 at her residence, and that the Complainant had taken off running.
SIU Investigators asked CW #1 if they could step inside to interview her and she agreed; however, a woman [possibly the sister of the Complainant] was then heard yelling in the back of the house. The woman insisted that the SIU Investigators leave the residence. A second woman entered the foyer area where the SIU Investigators were standing and pushed the foyer door into one of the SIU Investigators. The woman yelled “You arrested my brother; no police are coming in here.” The SIU Investigators left the residence since the environment compromised their safety.

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
WO #6 Interviewed, notes received and reviewed
WO #7 Interviewed, notes received and reviewed


Subject Officers

SO #1 Interviewed, notes received and reviewed


Incident Narrative

On November 27, 2017, a Justice of the Peace authorized an arrest warrant for the Complainant on a charge of assault (s. 266 of the Criminal Code) and for failing to comply with his probation orders (s. 733.1).

On December 4, 2017, at approximately 1:00 p.m., WO #1 and WO #2, who were on bicycle patrol, were in the area of St. Annes Road in the City of Toronto when they saw the Complainant riding a bicycle.

While WO #1 and WO #2 commanded the Complainant to stop, the Complainant, upon seeing the police officers, continued to ride his bicycle and rode between two houses stating, “It wasn’t me, it was the other guy.” WO #1 and WO #2 got off their bicycles and ran after the Complainant.

Eventually the Complainant got off his bicycle and threw it towards WO #1 and WO #2, causing WO #1 to trip and fall to the ground, scraping his knees. The Complainant then ran through a laneway between two buildings located at 12 and 14 Rusholme Drive. When the Complainant was in the back parking lot of the two buildings, he turned around and put his fists up, but WO #1 and WO #2 grabbed his hands and took him to the ground. Shortly thereafter, the SO arrived and struck the Complainant in the face. Eventually, the Complainant’s hands were handcuffed behind his back and he was taken to hospital by ambulance.

Nature of Injury/Treatment

A CT scan of the Complainant’s head revealed that he had sustained a comminuted depressed nasal bone fracture.

Evidence

The Scene

The scene was located in the back parking lot of 14 Rusholme Drive in the City of Toronto, where the Complainant was arrested. The scene was held by the TPS.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

In-Car Camera (ICC) Video Footage Summary

On December 4, 2017, WO #5 was driving a police cruiser with the ICC activated. The following is a summary of what was captured from his ICC:

  • At 1:15:25 p.m., the video footage started. The view was of a parking lot area [now known to be behind 14 Rusholme Drive];
  • WO #5 was seen to enter camera view;
  • WO #1 could be heard reading the rights to counsel. The Complainant could be heard saying, “I thought I was your boy, man?” WO #1 said, “If you were my boy why would you run? When I said stop, why didn’t you go whoa, what’s the problem? We could have had a conversation like adults, but instead you took off running.” WO #1 advised the Complainant that he was charged with assault causing bodily harm;
  • At 1:18:10 p.m., a police cruiser with WO #6 and WO #7 arrived and parked in front of WO #5’s cruiser;
  • A man’s voice could be heard saying something about a chase. WO #1 was then heard saying, “Mikey, how do I stop this?”
  • At 1:18:38 p.m., the audio of the video footage stopped; and 
  • At 1:18:47 p.m., the video footage ended.


TPS Booking Room Video Footage Summary

On December 5, 2017, at 1:08 a.m., the Complainant was escorted out of the sally port of the police station by two non-designated police officers, and into the booking room area where a TPS sergeant was standing behind the booking desk. These two officers then advised the booking sergeant that the Complainant was under arrest on two outstanding warrants and that he had been taken to hospital where he had been diagnosed with a fractured nose. The Complainant admitted that he was addicted to crystal meth [methamphetamine] and that he had used it on the morning of his arrest.

Communications Recordings

The TPS transmission communications recording was obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Event Details Report;
  • General Occurrence Report;
  • Injury Report;
  • List of Witnesses;
  • Notes of WO #s 1-7 and the SO;
  • Person Search Results for the Complainant;
  • TPS History for the Complainant;
  • Police Transmissions Communications Recording;
  • TPS Procedure: Suspect Apprehension Pursuit Policy;
  • Warrant 1st (x2) for the Complainant; and
  • Warrant 1st Executed Supplementary (x2).

The SIU obtained and reviewed the following materials and documents from other sources:
  • The Medical Records of the Complainant relating to this incident (obtained with his consent); and
  • Ambulance Call Report.

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

On November 27, 2017, a Justice of the Peace authorized arrest warrants for the arrest of the Complainant in relation to an assault and for breaching the conditions of his probation order.

On December 4, 2017, WO #1 and WO #2 of the Toronto Police Service (TPS) Community Response Unit (CRU) were on bicycle patrol in the area of St. Annes Road, in the City of Toronto, expressly for the purpose of keeping an eye out for the Complainant and to arrest him on the outstanding warrants if he was located. Both police officers were aware of the fact that the Complainant had a history of being violent and combative with the police during prior arrests and that he had a number of prior convictions for offences of violence and for assaulting the police in order to resist his arrest.

At approximately 1:00 p.m., WO #1 and WO #2 observed the Complainant riding his bicycle on St. Annes Road. Both WO #1 and WO #2 presumed that the Complainant did not initially see them, as he continued to ride his bicycle toward the officers.

As the Complainant neared, WO #1 directed the Complainant to stop, whereupon the Complainant immediately stated, “It wasn’t me, it was the other guy,” and he cycled away and between two houses. WO #1 and WO #2 abandoned their bicycles and gave chase on foot. While chasing the Complainant, the Complainant threw his bicycle at the officers, causing WO #1 to trip over the bicycle and go to his knees, sustaining some scrapes. Both officers continued to chase the Complainant, but lost sight of him after he jumped over a fence. WO #1 then next caught sight of the Complainant in a laneway between two apartment buildings at 12 and 14 Rusholme Drive.

Up until this point in time, there is no dispute in the evidence as between the Complainant and WO #1 and WO #2.

The Complainant alleges that when he arrived at the back of 12 and 14 Rusholme Drive, one of the police officers tackled him to the ground, causing him to fall face forward, but he was able to break his fall with his hands. The same police officer then took his hands and handcuffed them behind his back. While the Complainant was still lying on the ground, he alleges that a second police officer then ran up towards him and kicked him in the left side of the face, causing the injury to his nose. An ambulance then arrived and the Complainant was placed on a stretcher and taken to hospital.

Despite the Complainant’s assertion that he was kicked in the head while handcuffed, thereby causing his injury, I note that the paramedic records for the Complainant indicate that in speaking with them, he attributed his injuries otherwise, as follows:

Chief Complaint

Trauma Minor (Primary)
Note: Pt (patient) c/o (complains of) facial injuries following being tackled to the ground in a police foot chase. No LOC (loss of consciousness). GCS (Glasgow Coma Scale – a system by which health care professionals measure and record the patient’s level of consciousness) 15. [1] Pt hit nose on ground, which is swollen. Epistaxis (bleeding from the nose) resolved.
On Assessment, pt scaled, GCS 15. Pt declares that he is losing his memory. Pt able to make clear inquiries about having a cigarette, getting some water or the charge being laid against him but refusing to answer questions about medical health, medication or allergies.


Incident History

Fall (same level)

Similarly, I note that under the heading ‘Diagnosis’ in his hospital records, the doctor has indicated: Fall/Nasal # (fracture).

In the body of the medical records, it reads, “arrested by police, struck face on pavement.”

Upon a thorough review of the Complainant’s medical records, I note that at no time did the Complainant, in advising medical staff as to the history for his injury, ever mention being kicked or struck in the face, but always that the injury was a direct result of being tackled by the police and thereby striking his face on the pavement.

Based on the evidence from the Complainant then, I accept that either the Complainant received his injury when he was taken to the ground and struck his face, as he told both the paramedics and the medical staff at the hospital, or he did not recall how he was injured, either due to the dynamic circumstances surrounding his arrest, or his self-admitted ingestion of Crystal Methamphetamine. In any event, I do not accept the Complainant’s version of events in which he describes ‘the second officer,’ which would appear to have been either of WO #1 or WO #2, kicking him in the face while he was down on the ground, as clearly that was not his recollection at the time of his assessment by both paramedics and later by a doctor at the hospital.

According to WO #1 and WO #2, they pursued the Complainant on foot to the rear of 12 and 14 Rushmore Drive, where, when cornered, the Complainant then turned and raised his fists towards the officers, as if he wanted to fight. WO #1 then immediately grabbed onto the Complainant’s arms, while WO #2 grabbed onto his clothing, and they took him to the ground.

Once on the ground, WO #1 then told the Complainant to put his hands behind his back, but the Complainant continued to kick his legs, flail his arms, and tried to pull away from the officers.

While WO #1 and WO #2 were struggling on the ground with the Complainant, the SO then arrived to assist.

While both of WO #1 and WO #2 were on the ground and actively engaged with the Complainant, trying to restrain him and place his hands in handcuffs, neither indicated that they ever saw anyone strike the Complainant.

According to the SO, however, he observed WO #1 and WO #2 struggling with the Complainant, who was low to the ground, kicking and thrashing his legs and using his fists to fight with the officers, and he approached and attempted to grab onto the upper portion of the Complainant’s body to gain control of him, while the Complainant continued to thrash his body. The SO openly admitted that he then struck the Complainant once in the head/face area with his fist, which he described as landing above the Complainant’s chin area.

Following this single strike, the SO described the Complainant’s body as “giving up” and not resisting as much, although he continued to scream. The Complainant was then handcuffed with his hands behind his back, and the SO noticed that the Complainant was bleeding from the nose and an ambulance was requested.

The SO stated that he at no time observed either WO #1 or WO #2 strike or kick the Complainant. He also indicated that he believed it was necessary to deliver what he described as a distractionary strike, in order to stop the Complainant from resisting. The SO claimed that he also made his decision to deliver the single distractionary strike on the basis that he knew the Complainant to be violent and that he had a history of being assaultive during past incidents with the police. The SO opined that the single strike was not excessive, but rather was no more than what was required to stop the Complainant from resisting.

The question to be determined, on these facts, is whether either the taking of the Complainant to the ground by WO #1 and WO #2, or the single distractionary punch delivered by the SO, either of which may have caused the injury to the Complainant’s nose, was excessive in these circumstances, or if their actions were lawful and justified pursuant to s. 25 of the Criminal Code, therefore exempting these three police officers from prosecution.

Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for each of the three arresting officers, but specifically the SO, to qualify for protection from prosecution pursuant to s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the outstanding arrest warrants, which were authorized by a judicial officer, that the police had reasonable grounds to arrest the Complainant on those warrants, as their reasonable grounds had already been accepted and confirmed by the decision of the Justice of the Peace in issuing the warrants for the arrest of the Complainant. As such, the pursuit and apprehension of the Complainant by WO #1 and WO #2, and the later restraint and arrest of the Complainant by all three officers, was legally justified in the circumstances, and their actions would be exempt from prosecution, as long as they used no more force than was justified and necessary to effect their lawful purpose.

I have no hesitation, on these facts, in accepting that if the Complainant was injured when he was taken to the ground by WO #1 and WO #2, while he was actively evading arrest in both initially attempting to flee from police, and later facing them with fists clenched in a stance described by both officers as wanting to fight, that the officers were fully justified in taking the Complainant to the ground and, even if, as indicated in the medical records, it was this action which caused the Complainant’s face to strike the ground and resulted in the fracture of his nasal bones, I readily accept that this use of force by WO #1 and WO #2 was no more than was necessary in these circumstances and that their actions did not amount to an excessive use of force, nor would it attract criminal sanctions.

If however, despite the Complainant’s assertions to medical personnel immediately following his injury that he was injured when he was taken to the ground and struck his face, his injury was actually caused when the SO, who observed the Complainant actively and violently resisting WO #1 and WO #2 in trying to place the handcuffs on him, delivered a single distractionary punch to the Complainant’s face, I cannot find this single action to amount to an excessive use of force in these circumstances. In coming to this conclusion, I have considered the following information in the possession of the SO when he delivered the single strike:

o The Complainant was actively struggling with the police and was kicking his feet and flailing his arms, and trying to get up and away from the police;

o The Complainant had already fled from the police and engaged them in a foot pursuit;

o The Complainant was known to be violent and had a history of assaulting the police, which information was known to the officers; and

o WO #1 and WO #2 appeared unable to get the Complainant under control and handcuffed, which evidence was further supported by other officers present who described WO #2, after the struggle, as being winded, with one officer describing him as being off to the side coughing, while another believed him to be vomiting.

Furthermore, I note that after delivering the single strike, which appears to have had the desired effect in that the Complainant relented and lessened his resistance thereby allowing officers to place him in handcuffs, no further force was used against the Complainant.

I find confirmation of the degree of the Complainant’s resistance from the fact that it was later found to be necessary to place the Complainant in leg restraints due to his ongoing resistance and kicking of his feet.

As such, while I find that it is possible that the Complainant sustained his nasal fractures when he was struck in the face by the SO, which is definitely not conclusive and appears not to be the conclusion drawn by medical personnel, I cannot find that single distractionary strike to amount to an excessive use of force in these circumstances. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety. On this record, it is clear that the force used first by WO #1 and WO #2, in taking the Complainant to the ground, and then by the SO, in delivering a single strike to the Complainant, was both measured and proportionate to the degree of resistance being put up by the Complainant, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention by overcoming his resistance and to prevent his escape.

In conclusion, on this record, I find that the evidence does not satisfy me, on reasonable grounds, that any of the three police officers who were involved in the apprehension and arrest of the Complainant resorted to an excessive use of force, or that their actions fell outside of the limits prescribed by the criminal law. Therefore, as I lack the basis for the laying of criminal charges, none shall issue.


Date: October 16, 2018
Original signed by


Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) 15 is the maximum score – i.e. level of consciousness – available on the GCS. [Back to text]