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SIU Director’s Report - Case # 19-TCI-156

Contents:

News Releases for this Case:

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

The Investigation

Notification of the SIU

On June 29, 2019, the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

The TPS reported that on June 29, 2019, police officers responded to the Complainant’s residence for a threatening call and located the Complainant on his front lawn. A struggle ensued between the police officers and the Complainant during his arrest, whereby the Complainant suffered an injury.

The Complainant was transported to Scarborough Grace Hospital and diagnosed with a fracture to his left shoulder.

The Team

Number of SIU Investigators assigned: 4

Complainants

Complainant: 59-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO Interviewed and notes reviewed


Evidence

The Scene

The scene was located on the front lawn and driveway of the Complainant’s residence located on Foxridge Drive. The SIU investigators conducted a canvass for Closed-Circuit Television (CCTV) cameras and witnesses, and found none.

Video/Audio/Photographic Evidence


In-Cruiser Camera System (ICCS) recording from the SO’s police vehicle:


The SIU received and reviewed the ICCS recording from the SO’s police vehicle. The ICCS did not show the arrest of the Complainant but captured the following audio:

  • At 8:48:41 a.m., the SO stopped his police vehicle in the eastbound lane in front of the Complainant’s residence. A man [later identified as the Complainant] called a female civilian.
  • At 8:49:05 a.m., the SO requested assistance over the radio.
  • At 8:49:16 a.m., the Complainant repeatedly yelled at the female civilian that he was being arrested.
  • At 8:50:22 a.m., the Complainant yelled for the female civilian to call a woman [later identified as the Complainant’s lawyer]. The SO told the Complainant to get inside his police vehicle.
  • At 8:50:28 a.m., the Complainant was inside the SO’s police vehicle. He called the SO an ‘animal.’ The SO told the Complainant that he was under arrest. The Complainant told the SO that he was in trouble for tackling the Complainant to the ground and that he was hurt. The Complainant continued to yell and scream. He told the SO to take him to the Sunnybrook Health Sciences Centre (SHSC) because he was suffering from cancer.
  • At 8:51:46 a.m., the Complainant told the SO that the SO broke the Complainant’s wrist.
  • At 8:52:42 a.m., WO #2 and WO #1 arrived. The Complainant told WO #2 and WO #1 that the SO had hit him. The Complainant continued to scream and yell at the SO in explicit language.
  • At 9:04:22 a.m., the SO told the Complainant that he was arrested for threatening to kill a male civilian and the CW. The SO asked if the Complainant wanted to speak to a lawyer. The Complainant continued to yell at the SO in explicit language.
  • At 9:12:28 a.m., the Complainant told the SO that his left shoulder was hurting.
  • At 9:12:36 a.m., the Complainant arrived at the police station and was escorted inside.

Police Communications Recordings


911 Communications Recordings


The SIU received and reviewed the 911 communication recordings for June 28, 2019, from TPS. The recordings captured the following:
  • At 8:40:15 a.m., a woman [later identified as the CW] called 911 and told the operator that the Complainant had threatened to kill her father. The CW requested that police officers attend.
  • At 8:57:19 a.m., the CW called 911 and told the operator that the Complainant was threatening to kill her and requested that police officers attend.
  • At 10:42:08 a.m., the CW called 911 and told the operator that police officers [later identified as WO #2 and WO #1] took a statement from her and once they left, the Complainant continued to yell and scream at her.


TPS Communications Recordings


The SIU received and reviewed the TPS communication recordings for June 29, 2019, from TPS. The recordings captured the following:
  • At 8:47:48 a.m., the SO transmitted over the radio that he was on his way to Foxridge Drive to locate a wanted man [later identified as the Complainant]. The dispatcher asked the SO if he required assistance and the SO refused.
  • At 8:48:31 a.m., the SO transmitted over the radio that the Complainant was standing on his front lawn.
  • At 8:49:04 a.m., the SO requested assistance.
  • At 8:50:35 a.m., the SO transmitted over the radio that he had arrested one person.
  • At 9:08:46 a.m., the SO transmitted over the radio that he was transporting the Complainant to the police station.
  • At 9:47:04 a.m., an ambulance was requested to attend the police station as the Complainant complained of an injury to his knee.
  • At 2:03:29 p.m., the Complainant was transported back to the police station.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Notes of the WOs and the SO;
  • TPS Occurrence Report for this incident;
  • 911 Communication Recordings;
  • TPS Communication Recordings; and
  • ICCS recordings from the SO’s police vehicle.

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 material events in question are largely apparent on the weight of the evidence collected by the SIU, which included interviews with the Complainant and the SO. At about 8:50 a.m. on June 29, 2019, the SO drove to the Complainant’s home on Foxridge Drive intending to arrest him. The day before, officers had responded to the same address following complaints that the Complainant had threatened to kill a basement tenant who was moving out that day, and his daughter, the CW, who was helping her father with the move. Those officers – WO #1 and WO #2 – had formed grounds to arrest the Complainant for the threats but refrained from doing so as the Complainant refused to exit his home. The SO had consulted with WO #2 prior to traveling to the Complainant’s home.

The SO parked his cruiser in front of the home and observed the Complainant outside on the front lawn/driveway area of the property. The officer walked discreetly toward the Complainant, grabbed hold of his right arm, and told him he was under arrest for threatening death. A surprised Complainant vociferously objected and attempted to pull away from the SO. The officer reacted by tripping the Complainant to the ground. Following a further brief period of struggle, the SO was able to handcuff the Complainant. No blows were struck in the process of the Complainant’s apprehension.

Following the Complainant’s arrest, he was first taken to the police station and then to hospital, where he was diagnosed with a broken shoulder.

I am cognizant that one account of the way the Complainant was arrested is significantly different from the aforementioned-description, but it would be unwise and unsafe to proceed based this rendition of events. The diverging account says the first contact the SO had with the Complainant was when the SO tackled the Complainant to the ground. The suggestion strikes me as implausible; the SO had no reason to believe that such drastic action was necessary to take the Complainant into custody. The divergent account was also caught in an apparent falsehood when it indicated that the Complainant had called the police the day prior to complain that the CW was trespassing on his property. No such contact was discernible in the records provided by the TPS of their communications related to this incident.

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 June 29, 2019, the Complainant was arrested by a TPS officer outside his home and suffered a fractured shoulder in the process. The SO was the arresting officer 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 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. At the outset, I accept that the SO had reasonable grounds to arrest the Complainant for threatening death based on the conversation he had with WO #2 about the WO #2’s dealings with the Complainant and the CW the day before. Beyond that, however, there is an additional and difficult issue of law bearing on the legality of the Complainant’s arrest per se.

The question arises whether the SO was a trespasser on the Complainant’s front yard at the time of the arrest and, if so, the impact of such on the lawfulness of the arrest. In assessing this question, one turns to the common law’s “implied licence to knock” doctrine. As recently summarized in R v Le, 2019 SCC 34 by Justice Moldaver, dissenting but not on this point of law:

The implied licence to knock doctrine allows police officers and other members of the public, on lawful business, to enter onto private property and approach the door of the residence in order to speak with the owner or occupier (see R v Evans, [1996] 1 SCR 8, at paras 13 and 15, per Sopinka J writing for a plurality; R v MacDonald, 2014 SCC 3, [2014] 1 SCR 37, at paras 26-27; Robson v Hallett, [1967] 2 All ER 407 (QB)). It aims to facilitate convenient communication by “enabl[ing] the police officer to reach a point in relation to the house where he [or she] can conveniently and in a normal manner communicate with the occupant” (Evans, at para 15, quoting R v Bushman, [1968] 4 CCC 17 (BCCA), at p 24). It “extends no further than is required to permit convenient communication with the occupant” and “only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized” (Evans, at para. 15).

Moldaver cites R v Evans, supra, a case where the Supreme Court considered police approaching a door with a sniffer dog to sniff for marijuana. That case emphasized that “[we]here the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied licence to knock, the implied "conditions" of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder.”

There is an argument to be made that the SO exceeded the implied licence to knock when he approached the Complainant to arrest him and, therefore, entered onto the front yard as a trespasser. In fact, it does not appear that communication with the homeowner was much on the SO’s mind at all, save to the extent he would have to inform the Complainant of his arrest and the reasons therefore in the course of taking him into custody, the officer’s principal objective. What, however, is the effect of the SO’s possible trespass on the lawfulness of the SO’s arrest?

While finding that the officers’ status as trespassers into a fenced backyard was clearly relevant for purposes of assessing the constitutionality of the impugned search in Le, supra, the Supreme Court of Canada declined comment on whether a detention in those circumstances was, ipso facto, unlawful:

As ss 8 and 9 protect different (if sometimes inter-related) interests and each have separate standards and considerations (R v MacKenzie, 2013 SCC 50, [2013] 3 SCR 250, at para 36), we leave for another day the relationship between trespassing and detentions discussed in the Court of Appeal for Ontario judgment.

The Court of Appeal had held that the officers’ status as trespassers, in the circumstances of the case, did not render unlawful what was otherwise the appellant’s lawful detention: R v Le, [2018] OJ No 359 at paragraph 70. I see no reason why the Court’s observations would not equally apply to arrests, in addition to detentions. [1]

I am cognizant that charging authorities must restrict their deliberations to threshold considerations so as not to usurp the proper role of the court as the ultimate arbiter of legal and factual issues. That said, I am simply not able on the foregoing record to conclude with sufficient confidence that the Complainant’s arrest was unlawful to justify that issue being put to the test before a court. I proceed, therefore, on the basis that the SO was proceeding to lawfully arrest the Complainant when the altercation occurred on the SO’s front yard.

The issue turns to the propriety of the force used by the SO. In the main, this consisted of the officer tripping the Complainant to the ground and then engaging in a brief wrestling contest before the Complainant was handcuffed. The takedown was a reasonable tactic given the fact the Complainant had reacted to the SO grabbing hold of him by attempting to pull away. Once on the ground, the SO would have a relative advantage with which to manage any further resistance on the part of the Complainant. Indeed, the Complainant’s continued resistance on the ground did not amount to much of a challenge to the SO, who was able to take control of the Complainant’s arms in short order and affix them in restraints. In the circumstances, I am unable to reasonably conclude that the force used by the SO fell outside the range of what was reasonably necessary in the circumstances.

In the final analysis, while I accept that the Complainant broke his shoulder during his interaction with the SO, more than likely as the result of the takedown, I am not satisfied on reasonable grounds that the SO acted unlawfully in his dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: July 6, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) Moreover, there is some authority from the Ontario Court of Appeal that the issue of trespass becomes irrelevant once a police officer has reasonable grounds to make an arrest (R v Tricker (1995), 21 OR (3d) 575, 96 CCC (3d) 198 (CA)). [Back to text]