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SIU Director’s Report - Case # 19-TCI-271

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 14-year-old male (the “Complainant”) suffered.This report relates to the SIU’s investigation into the injury that a 14-year-old male (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On November 16, 2019, at 12:14 a.m., the Toronto Police Service (TPS) reported an injury. On November 15, 2019 at 8:10 p.m., three TPS plainclothes officers were in a foot pursuit of the Complainant. The Complainant was tackled and arrested for fail to comply with conditions. He was taken to TPS 43 Division. He complained of a sore shoulder and was taken to Centenary Hospital. At 10:42 p.m., he was diagnosed with a fractured collarbone and returned to TPS 43 Division to wait for his bail hearing the following morning.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 14-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed

Witness Officers

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


Subject Officers

SO Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.



Evidence

The Scene

The scene was located at 400 McCowan Road in an open grassy area adjacent to the rear parking lot.

Video/Audio/Photographic Evidence


Closed-Circuit Television (CCTV) Recording from 400 McCowan Road


The SIU retrieved a CCTV recording from the apartment building at 400 McCowan Road dated November 15, 2019. The camera was located on the southwest corner of the building. There was no audio.

At 8:06:39 p.m., a vehicle [now known to be a dark KIA Sportage] drove west into the driveway of 400 McCowan Road. At 8:06:46 p.m. a person in dark clothing [now known to be the Complainant] ran south to a pathway leading to Trudelle Street and a second person [now known to be the SO] ran south to the pathway. At 8:06:54 p.m., the KIA drove a few metres and stopped. Two people got out of the KIA, one person from the driver’s seat [now known to be WO #1] and one person from the rear seat behind the driver [now known to be WO #2]. WO #1 and WO #2 ran to the pathway. At 8:07:04 p.m., the Complainant and the SO ran behind a large tree and WO #2 and WO #1 continued to run on the pathway. At 8:07:09 p.m., WO #2 and WO #1 were out of sight, behind the large tree. Another person [a male civilian] walked in the parking lot and then ran towards the pathway. At 8:08:12 p.m., the civilian returned to the parking lot.

At 8:09:09 p.m., the SO returned to the KIA and entered the driver’s side door. WO #2 and the SO escorted the Complainant from the pathway to the KIA. At 8:10:36 p.m., WO #2 sat the Complainant down on the curb. At 8:11:40 p.m., a police cruiser arrived and parked in front of the KIA. Two uniformed police officers [now known to be WO #3 and WO #4] got out of the cruiser. At 8:12:26 p.m., the Complainant was escorted to the police cruiser by WO #2 and he sat inside. At 8:22:22 p.m., the police cruiser left the scene.

Booking Video


The TPS provided the SIU with a copy of the booking video from TPS 43 Division dated November 15, 2019. At 8:41:06 p.m., a TPS cruiser entered the sally port. At 8:41:30 p.m., the Complainant got out of the cruiser and walked into the booking area. He was handcuffed with his hands behind his back. A police officer told the booking sergeant that the Complainant was arrested for fail to comply with recognizance and smoking marijuana. The second police officer said the Complainant was chased by foot, tackled and complained of soreness in his right shoulder. The sergeant said the injury would be taken care of. At 8:46:54 p.m., the sergeant authorized a level 3 search [strip search] and at 8:46:54 p.m., the Complainant was escorted to a search room by two police officers [now known to be the SO and WO #1]. At 8:52:57 p.m., WO #1 came out of the search room and told the sergeant that he believed that the Complainant had an injured right shoulder. The sergeant asked a police officer to call the ambulance. At 8:56:06 hrs, the Complainant came out of the search room and sat on the bench. He was not handcuffed. The Complainant complained of pain in his shoulder. At 9:01:50 p.m., WO #1 said he would call the Complainant’s grandmother. At 9:05:49 p.m., the ambulance arrived, and a female paramedic asked the Complainant about his injury. He said he did not have a previous shoulder injury. At 9:10:40 p.m., the Complainant was handcuffed with his hands at the front of his body and walked to the ambulance in the sally port.

In-Car Camera (ICC) – Cruiser


The TPS provided the SIU with ICC recording from a particular police cruiser, dated November 15, 2019. The police cruiser was assigned to WO #5 and WO #6. The Complainant walked with a police officer [now known to be WO #5] to the police cruiser. The Complainant was handcuffed to the front of his body. At 11:08:16 p.m., the Complainant sat in the back seat of the police cruiser and WO #5 asked if he was okay. The Complainant said he was cold and WO #5 said the heat was turned up. At 11:09:25 p.m., the Complainant said, “These guys are really fucked up,” and continued to say he was only 14 and knew what was going on. At 11:20:25 p.m., WO #5 asked the Complainant how he was feeling. The Complainant said his arm hurt. At 11:22:37 p.m., the police cruiser entered the sally port and, at 11:24:12 p.m., the Complainant got out of the police cruiser.

Custody Video – November 15, 2019


The TPS provided the SIU with custody video of the Complainant dated November 15, 2019. At 11:25:28 p.m., a police cruiser entered the sally port and two police officers escorted the Complainant into the booking hall. The Complainant had a black sling supporting his right shoulder. The booking sergeant told the Complainant that TPS would contact SIU and his parents. The Complainant was then escorted to the cell area.

Custody Video – November 16, 2019


The TPS provided the SIU with custody video of the Complainant dated November 16, 2019. At 8:53:50 a.m., the Complainant was in the booking hall with the booking sergeant and a police officer. The booking sergeant advised the Complainant that he would be transported to court. At 8:54:02 a.m., the Complainant was escorted to the court services vehicle in the sally port and at 8:56:35 a.m., the court services vehicle exited the sally port.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Contact with Police History – the Complainant;
  • General Occurrence Report;
  • Intergraph Computer-Assisted Dispatch (ICAD)-Event Details;
  • Injury Report – the Complainant;
  • Ntes – All WOs;
  • ICC video recordings;
  • Booking and Custody video recordings;
  • Procedure – Arrest;
  • Procedure – Use of Force; and
  • TPS Involved Officer List.

Materials obtained from Other Sources

In addition to the materials received from the TPS, SIU obtained and reviewed the following materials from other sources:
  • CCTV from 400 McCowan Road; and
  • The Complainant’s medical records.

Incident Narrative

Though the material events in question are disputed, the following appears common ground on the evidence collected by the SIU. In violation of a condition of his recognizance, the Complainant was outside his residence in the area of 400 McCowan Road at about 8:00 p.m. on November 15, 2019. The SO, together with his partners, WO #1 and WO #2, were working in plainclothes and patrolling the area in an unmarked vehicle when they came upon the Complainant. When the SO called out to the Complainant from the front passenger seat of the vehicle, the Complainant ran away to escape apprehension. The SO, followed shortly by the other officers, pursued him on foot.

The foot chase took the parties west along the southern face of the east-most building at 400 McCowan Road and then south through a grassy and treed area toward Trudelle Street. The SO caught up with the Complainant in this area and tackled the Complainant from behind. The Complainant fell face first onto the slushy ground and felt a crack and pain in his right shoulder. The officers handcuffed the Complainant and escorted him back to the parking lot of 400 McCowan Road, where the Complainant was transported to 43 Division in a marked cruiser.

From the police station, the Complainant was taken to hospital in an ambulance where his fractured clavicle was diagnosed.

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 November 15, 2019, the Complainant was arrested by TPS officers, suffering a fractured clavicle in the process. The SO was among the arresting officers and the likeliest to have inflicted the injury. 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 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. Some evidence suggests that the Complainant was needlessly roughed up by an officer or officers after being tackled from behind. Specifically, this incriminating evidence suggests that the Complainant was stomped and kicked two to three times in each of the head and right shoulder. In contrast, on the witness officers’ rendition of events, the Complainant was only struck once on the ground – a punch delivered by the SO in the right rib area. Aside from that, the officers wrestled with the Complainant to control his arms and were eventually able to overpower and secure him in handcuffs.

While contests between evidence are ordinarily to be resolved by a court, I am not satisfied that the incriminatory evidence is sufficiently cogent to warrant being put to the test by a trier-of-fact. The incriminatory evidence minimized any resistance on the Complainant’s part following the takedown. The Complainant’s alleged passivity, however, is undermined by his flight from police which, while short-lived, was dogged on the evidence of the CCTV recordings that captured those moments. In addition, the incriminatory evidence does not identify which officer delivered which kicks. While that is perhaps not surprising, it necessarily renders charges against any particular officer a tenuous proposition.

With respect to what is left of the evidence, namely, the accounts of what occurred proffered by WO #1 and WO #2, there is insufficient reason to believe that the officers used excessive force in arresting the Complainant. The Complainant had made clear his intentions of avoiding arrest and was in full flight from the police on slippery ground conditions when he was tackled by the SO. In the circumstances, the takedown seemed an appropriate tactic; in that position, the officers would be better positioned to deal with any further difficulties from the Complainant. In fact, on the officers’ version of events, the Complainant flailed on the ground and struggled against the officers’ efforts to control his arms. In response, the SO delivered a punch to the torso and the officers, collectively, grappled with the Complainant to overcome his resistance. On this record, I am unable to reasonably conclude that the officers used needless force to subdue the Complainant and effect his arrest.

In the result, while I accept that the Complainant broke his collarbone when he was grounded by the SO, I am not persuaded on reasonable grounds that the officers acted unlawfully in the course of the arrest. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: June 8, 2020
Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) WO #3 – WO #6 had their notes reviewed but a decision was made not to interview them because they did not witness, and were not involved in, the arrest. [Back to text]