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SIU Director’s Report - Case # 20-TCI-090

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 injuries that a 28-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On April 18, 2020 at 1:48 p.m., the Toronto Police Service (TPS) reported the following.

On February 14, 2020, TPS received an OIPRD (Office of the Independent Police Review Director) complaint from the Complainant, who complained that during an arrest on February 13, 2018, at an address on Legion Road, he was punched in the face and thrown to the ground by police officers. The Complainant went to a doctor and was diagnosed with fractures of the ribs.

TPS records indicated that on February 13, 2018, police received a call regarding a domestic assault at an address on Legion Road. Police officers attended and arrested the Complainant for domestic assault and assault police officer.

The Complainant was taken to TPS 22 Division and did not complain of any injuries at that time.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 28-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

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


Evidence

The Scene

TPS SOCO (Scenes of Crime Officer) photos showed the inside of the CW’s apartment. It appeared that the CW lived in a one-bedroom apartment with a kitchen and living room area. Inside the bedroom was a small-sized bathroom that had a stand-up glass shower. Both the bedroom and bathroom had articles of clothing and towels strewn on the floor. Inside the shower were items on the floor, including a towel that appeared to have some red/brown colour staining.

According to Google Maps, the exterior of the CW’s apartment building had a main entrance with glass doors. Just outside the doors was a concrete walkway and directly across that walkway was a large area filled with rocks. Surrounding the rock area was a smooth concrete pathway for vehicles.

Video/Audio/Photographic Evidence


TPS In-Cruiser Camera (ICC) Video Summary


On February 13, 2018, at 10:57 p.m., the ICC started. Emergency Medical Services (EMS) was on scene. The back doors of the cruiser [now known to have been operated by SO #1 and SO #2] were both open. The Complainant was on the ground, sitting outside of the driver’s door. A police officer lifted the Complainant from the ground and placed him into the cruiser via the driver’s side back door. The Complainant sat quietly in the cruiser. He had an injury to his left eye lid. At some point, the Complainant stated that he could not feel his fingers on his right hand.

When the cruiser arrived at the police station at about 11:19 p.m., the Complainant got out of the cruiser on his own and walked with a police officer.

TPS Booking Room Video Summary


On February 13, 2018 at 11:19 p.m., SO #2 walked into the sally port carrying a pair of boots and went into the booking hall. SO #2 returned to the cruiser and assisted in accompanying Complainant out of the sally port with SO #1.

SO #1 told the booking sergeant that the Complainant was under arrest for domestic assault and for assaulting a police officer. SO #1 also advised that the Complainant was HIV positive.

The booking sergeant told the Complainant that he noticed a cut on his left eye. The Complainant told the booking sergeant that SO #1 caused the eye injury. The booking sergeant asked the Complainant about his medications. The Complainant indicated that he had medications for depression and HIV. The Complainant stated that he had smoked weed and had a couple of drinks earlier in the day.

The booking sergeant asked the Complainant if he had any other injuries and the Complainant replied that he did not. The booking sergeant told the Complainant that he would be held for a show cause and asked if he had any current charges. The Complainant indicated that he was currently charged with assault. Eventually, the Complainant was escorted out of the booking area by SO #1.

On February 14, 2018, at 11:32 a.m., The Complainant was escorted to the booking hall by special constables and paraded. the Complainant made no complaints of any injuries and then walked to the court services van of his own accord.

Police Communications Recordings


TPS Communications Recordings Summary


On February 13, 2018, at 10:13 p.m., the CW called 911 and reported a domestic dispute between himself and his boyfriend, the Complainant, in his apartment located on Legion Road. The CW said that the Complainant was a recovering drug addict and had been drinking. The Complainant beat the CW and there were no weapons involved. The Complainant was smashing things in the apartment and said he would kill the CW. The Complainant had a history of violence involving the CW and there was a past restraining order against the Complainant.

At about 10:35 p.m., EMS advised that they were on their way to the scene.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from TPS:
  • General Occurrence Report;
  • Communications recording;
  • ICC Video Summary;
  • Booking Video;
  • Intergraph Computer-Assisted Dispatch Report;
  • Notes-All SOs;
  • Notes-Both WOs;
  • Officer List and Roles;
  • History of Arrest-the Complainant; and
  • Victim statement-SIU. [1]

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 record from the Rosedale Radiology Clinic.

Incident Narrative

Though the circumstance surrounding the arrest are disputed, the following scenario appears common ground in the evidence collected by the SIU, which included interviews with the Complainant, the three SOs, a CW, and two WOs. In the evening of February 13, 2018, SO #1 and SO #2 arrived at an address on Legion Road North following a 911 call to police by the CW. The CW reported that he had been assaulted by the Complainant in his 30th floor apartment. The CW spoke with SO #1 and SO #2 upon their arrival, confirmed the assault and led the officers into the apartment.

The Complainant was taking a shower when a knock on the bathroom door informed him of the police presence. He opened the door and was arrested by the officers for having assaulted the CW.

The Complainant was handcuffed and taken by the officers in the elevator to the ground floor and out the main doors. Once outside and before they reached the cruiser, the Complainant was grounded by all the officers. He was subsequently helped to his feet by the officers and lodged in the rear seat of the cruiser, whereupon he was transported to the police station and lodged in a cell. [2]

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

The Complainant was arrested by TPS officers on February 13, 2018, in a 30th floor apartment in a building on Legion Road North, Toronto. A couple of days following his arrest, he was diagnosed with two and possibly three fractured ribs. SO #1, SO #2, and SO #3 all participated in the Complainant’s arrest and 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 any of the SOs committed a criminal offence in connection with the Complainant’s arrest and injuries.

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 required or authorized to do by law. Based on the information they had been provided on dispatch and what they gathered firsthand at the scene, I am satisfied that SO #1 and SO #2 had lawful grounds to seek the Complainant’s arrest for assault. The issue turns to the propriety of the force used by the officers.

If believed, one account of the force used by the officers in the Complainant’s arrest suggests that the Complainant was unlawfully assaulted. However, I am unable to lend this incriminating rendition of events sufficient credence to move forward with criminal charges. It alleges, for example, that SO #1 sucker-punched the Complainant after the Complainant was handcuffed and compliant in the bedroom of the apartment. Another account, however, indicates that the Complainant was punched but not in the bedroom. Rather, this other account says the punch occurred in the bathroom when SO #1 and SO #2 first confronted the Complainant. With respect to the takedown outside the building, the incriminating account asserts that it was entirely unprovoked. According to the Complainant, once on the ground, SO #1 needlessly placed his knee onto his exposed rib cage with all his weight. Another account confirms that the Complainant was grounded, but says that SO #1 first kicked the Complainant’s chest two to three times before the officer placed his knee down onto the Complainant’s left side. Neither SO #1 nor the incriminating account say that any blows were struck at this time. These discrepancies are significant and go to the heart of the allegations of excessive force, rendering them such that it would be unwise and unsafe to proceed with criminal charges on their strength alone.

The officers’ accounts of what occurred are also problematic. SO #1, for example, says nothing of having grounded the Complainant in the bedroom prior to applying the handcuffs and escorting him outside. However, his partner, SO #2, says that both he and SO #1 had to ground the Complainant in the bedroom in order to place him in handcuffs. Be that as it may, there is no suggestion in any of their evidence that the Complainant was punched or kicked at any point. With respect to the takedown outside the building, they all agree that it was necessitated by resistance on the part of the Complainant as he was being led to the cruiser.

On the aforementioned-record, I am unable to reasonably conclude that any of the subject officers used excessive force in arresting the Complainant. I accept that the Complainant suffered injuries as the result of his encounter with the police – a cut above an eye and rib fractures. These injuries might have provided corroboration in support of the allegations of excessive force but for the fact that they are equally consistent with having been incurred in the altercation that preceded the officers’ arrival and/or the application of justified force on the part of the officers. In the result, there are no grounds for proceeding with criminal charges in this case.


Date: July 14, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) W0 #1 obtained a victim statement from the CW. [Back to text]
  • 2) The Complainant subsequently pleaded guilty to having assaulted the CW. Charges of assault police and resist arrest were withdrawn. [Back to text]