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SIU Director’s Report - Case # 20-TCI-070

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 38-year-old man (the “Complainant”) suffered.This report relates to the SIU’s investigation into the injury that a 38-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On April 2, 2020, at 12:35 a.m., the Toronto Police Service (TPS) reported the following.

On April 1, 2020, at 7:30 p.m., TPS police officers responded to an assault in progress at Queen Street and Spadina Avenue against a TTC driver by a man, who refused to identify himself. When the police officers arrived, they intervened in the assault. The man spat in the police officer’s face and was taken to the ground. A struggle ensued.

The man was eventually taken to Mount Sinai Hospital (MSH), where he was diagnosed with a fractured nasal bone.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 38-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Not interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Not interviewed
WO #7 Interviewed


Subject Officers

SO #1 Interviewed and notes reviewed
SO #2 Interviewed and notes reviewed
SO #3 Interviewed and notes reviewed


Evidence

The Scene

The incident took place on the west sidewalk of Spadina Avenue about 120 metres north of Queen Street West.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following source:
  • Video footage from the Toronto Transit Commission (TTC); and
  • TPS Booking Room Video.


TTC Streetcar Video Summary


On April 1, 2020, at about 7:18 p.m., CW #1 entered the streetcar, while talking on a cell phone, and sat at the very back of the vehicle. There were two women also sitting close to the back of vehicle conversing with each other.

At 7:22 p.m., the Complainant entered the vehicle from the rear doors. The Complainant was wearing a long brown jacket, sunglasses, grey shirt, black pants, brown shoes, and carrying a red back pack. He had facial hair and an Afro-like hair style. The Complainant displayed bizarre behaviour by speaking to himself and waving his hand. He sat in the 3rd last row, on the left side, next to a window. CW #1 was still talking on his cell phone.

At 7:24 p.m., the Complainant stood up and faced towards CW #1. Immediately, the two women stood up and walked towards the front of the vehicle and out of camera coverage. The Complainant appeared to be talking and waving his left arm. CW #1 continued to speak on the phone. At 7:25 p.m., the Complainant sat back down in the same seat.

At 7:25:44 p.m., the Complainant abruptly stood up and walked over towards CW #1 and faced him. He slowly inched towards CW #1 while pointing his right finger at CW #1. CW #1 continued to talk on the phone.

At 7:26:29 p.m., the Complainant reached into his left pocket and pulled out a book and lifted it towards CW #1’s head. At this time, CW #1 stood up but sat back down while the Complainant placed the book in front of CW #1’s head and used his right hand to punch CW #1 in the head area. CW #1 was shocked and raised his left arm out in defence. The Complainant stepped back and continued to point his finger and talk at CW #1. At 7:26:45 p.m., the Complainant reached out and grabbed at CW #1. CW #1 tried to defend himself by pushing the Complainant away. The Complainant stepped back and looked out the window while CW #1 stood up and looked down at his phone. CW #1 put his phone to his ear and looked towards the front of the vehicle.

At 7:27:21 p.m., the TTC driver, CW #2, walked towards the two men and conversed with CW #1, as the Complainant stood in between them. CW #2 then walked back towards the front of the vehicle. The Complainant faced towards the rear door and pushed a button. The button illuminated red and the Complainant attempted to open the door by pushing on it a few times. CW #1 walked towards the front of the vehicle.

At 7:29:50 p.m., the Complainant exited the vehicle through the rear doors and walked towards the rear of the vehicle and to what appeared to be the northwest corner of Queen Street and Spadina Avenue. CW #2 followed behind. At 7:30:15 p.m., as CW #2 stepped onto the sidewalk, the Complainant immediately ran towards him and a struggle ensued. Eventually, CW #2 grounded the Complainant, but the Complainant got back up and approached CW #2 again. It appeared that there was some interaction taking place, but the footage was grainy and there were other people in the immediate area.

At 7:30:29 p.m., CW #2 crossed the intersection to return to the streetcar while the Complainant could be seen standing on the corner and facing CW #2. The Complainant walked north on Spadina Avenue and walked off camera view.

At 7:37 p.m., a marked cruiser drove north on Spadina Avenue passing the streetcar, followed by a fire truck and possibly two police officers on bicycles.

TPS Booking Room Video Summary


On April 2, 2020, at 7:19 a.m., the Complainant was escorted into the booking room area of TPS 52 Division and paraded by a booking sergeant. It appeared that the Complainant had a swollen left black eye and cuts on his forehead and right cheek area. When asked the standard booking questions, the Complainant was incoherent in his speech, mumbled his answers, and appeared unsteady on his feet. The Complainant was informed that he was charged with four counts of assault, assault with a weapon and assault of a police officer. The escorting police officer stated that the Complainant had been taken to MSH where he was medically cleared. When the Complainant was asked if he had consumed any alcohol in the last 24 hours, the Complainant replied, “Six beers.” A Level 2 searched was ordered.

About an hour later, the Complainant was transferred to TPS 14 Division for a video bail hearing and was later transferred back to TPS 52 Division, where he was eventually released from police custody.

Police Communications Recordings


TPS Communications Recordings Summary


On April 1, 2020, at 7:30 p.m., CW #1 called 911 and reported that he had been punched in the face by a man [now known to be the Complainant] in a TTC streetcar and that the Complainant was outside of the vehicle. At 7:31 p.m., another man called 911 and reported that a TTC driver [now known to be CW #2] was being beaten up by three homeless men and that one of them had an Afro-style looking hair with a white beard and he was wearing a long dark jacket [now known to be the Complainant].

Shortly thereafter, several units were dispatched to the area of Spadina Avenue and Queen Street and, at 7:34 p.m., a police officer [possibly SO #1], who sounded out of breath, stated over the radio that he was on the west side of Spadina Avenue. At 7:36 p.m., it was stated over the radio that additional units could slow down, and that the Complainant was under control. At this time as well, two ambulances were requested, one for a police officer who was spat on in the face, and the other for the Complainant.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from TPS:
  • Computer-Assisted Dispatch Event Details Report;
  • General Occurrence;
  • Notes-All SOs;
  • Notes-All WOs;
  • Officer List and Roles;
  • Booking Video; and
  • Communications Recordings.

Materials obtained from Other Sources

In addition to the materials received from the TPS, SIU obtained and reviewed the following materials from other sources:
  • Mr. Gipson’s medical records from MSH; and
  • Video footage from the TTC.

Incident Narrative

The material events in question are not in dispute and may be summarized in short order. Shortly after 7:30 p.m. on April 1, 2020, SO #1 and SO #2 arrived in the area of Spadina Avenue and Queen Street West on their bicycles following a call to police about an assault. The Complainant was the perpetrator of the assault. Moments prior, without provocation, he had walked up to a passenger seated in the rear of a northbound streetcar on Spadina Avenue and punched him in the face. CW #2, the operator of the streetcar, contacted the authorities to report what had just occurred and then followed the Complainant out of the streetcar to take a picture of him with his cell phone. The Complainant tussled with CW #2, knocking the cell phone out of his hand. CW #2 returned to his streetcar, parked at the Spadina Avenue and Queen Street West stop. Upon seeing SO #1 and SO #2, CW #2 directed them to the Complainant’s location, north of Queen Street West on the west sidewalk of Spadina Avenue.

SO #2 confronted the Complainant and told him that he was under arrest. The Complainant told the officers not to touch him as he backed away. When SO #1 grabbed the front of his coat, the Complainant pulled away, prompting the officer to trip the Complainant to the ground.

The Complainant struggled with the officers on the ground, refusing to release his arms so they could be handcuffed. SO #1 and SO #2 wrestled with the Complainant for a period as they directed him to stop resisting. The Complainant continued to struggle and was met with two punches to the face by SO #1. SO #1 meted out an additional two to three strikes to the torso and face a short time later when the Complainant remained undeterred. The Complainant reacted by looking at SO #1 and spitting in his face, ejecting a stream of saliva and blood. Feeling liquid in his eyes, nose and mouth, SO #1 stood up to wipe his face and kicked at the Complainant’s hands to attempt to free them, still without success. At about the same time, SO #2, who was also engaged in the physical altercation on the ground, punched the Complainant’s upper torso three times as SO #3, who had arrived to assist and joined in the fray, punched the Complainant’s jaw area. Following the last of these blows, and with the use of SO #2’s baton to pry free one of the Complainant’s arms, the officers were able to secure the Complainant in handcuffs.

Following the arrest, the Complainant was taken directly to hospital where he was diagnosed with a broken nose.

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 April 1, 2020, the Complainant was arrested by TPS officers and suffered a fractured nose in the process. The arresting officers, SO #1, SO #2, and SO #3, were identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the subject officers 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 is reasonably necessary in the execution of an act that they were required or authorized to do by law. Given what the officers knew of the assaults the Complainant had just perpetrated on a TTC passenger and driver, they were clearly within their rights in seeking his arrest. The issue turns to the propriety of the force used by the officers in effecting the Complainant’s arrest.

The takedown, in my view, fell squarely within the ambit of justifiable force. By his words and deeds, the Complainant had made it clear he would not submit to lawful arrest without a physical struggle. In the circumstances, SO #1 was entitled to force the Complainant to the ground, in which position the officers could better manage his combative proclivities.

The remainder of the force used by the officers, up to nine punches spread across the Complainant’s torso and head, and a single kick to the hands, may seem excessive at first blush. However, it is important to bear in mind that each of the three subject officers made an individual assessment of the force needed to subdue the Complainant without knowing what the others were doing. Considered independently, I am satisfied that each officer acted reasonably with respect to the force they used. It must be remembered that the events on the ground happened quickly and in the context of an individual – the Complainant – who, I am satisfied, was vigorously attempting to defeat the officers’ efforts to secure him in custody, a fact lent credence by his recent violence on the TTC streetcar. In the result, I am unable to reasonably conclude that the officers acted with excess when they responded to the Complainant’s formidable resistance with multiple strikes. In arriving at this conclusion, I note that the Complainant’s struggle was continuous throughout the altercation, and only abated after the final blow.

In the final analysis, while I accept that the Complainant’s nose was fractured at the hands of one or more of the subject officers – whether the result of the takedown or the punches that were delivered – I am not satisfied on reasonable grounds that the officers acted unlawfully in arresting the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: July 14, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit