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SIU Director’s Report - Case # 20-TCI-086

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

The Investigation

Notification of the SIU

On April 15, 2020, at 12:10 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury.

According to the TPS, on April 14, 2020, at about 4:53 p.m., two 11 Division police officers were dispatched to an incident involving a person with a knife at an address on Bloor Street West. The 911 caller [now known to be Civilian Witness (CW) #2] advised he had been stabbed in the hand. Upon police arrival, the Subject Officer (SO) grounded the Complainant as he was noncompliant, and placed him in handcuffs. The Complainant was arrested for assault with a weapon and transported to 11 Division.

At 8:45 p.m., while lodged in a cell, the Complainant complained to a booking officer that his arm was sore. At 9:12 p.m., the Complainant was transported to St. Joseph’s Health Centre (SJHC), where he was diagnosed with a fracture of the right humerus. He was treated and released from hospital.

The scene had been cleared following the arrest. 

The Team

Number of SIU Investigators assigned: 2

Complainants

Complainant: 50-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 Interviewed


Police Employee Witnesses

PEW 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 an address on Bloor Street West, which was a mixed-use property. The incident occurred inside a shared kitchen on the second floor of a rooming house, which had tile floors. The kitchen was approximately 3 metres by 3.6 metres, and had a fridge, sink, table and a back room [now known to be CW #1’s]. The kitchen was approximately 1 metre away from the top of the stairs, which were composed of hardwood floors. The scene was not forensically processed by the SIU, as it was cleared following the arrest.

Video/Audio/Photographic Evidence


In-car Camera System (ICCS) Data:


The following is a summary of the ICCS data for the police vehicle operated by the SO. The recording commenced at 4:55:12 p.m. and captured the following:
  • At 4:55:46 p.m., the SO activated his emergency lights and sirens;
  • At 4:58:16 p.m., the SO parked his police vehicle and walked to the address on Bloor Street;
  • At 4:58:25 p.m., the SO activated his in-car microphone;
  • At 4:58:30 p.m., Emergency Medical Services arrived on scene;
  • At 4:59:50 p.m., the SO and WO #1 entered the address on Bloor Street West;
  • At 5:00:45 p.m., three paramedics entered the address;
  • At 5:01:25 p.m., WO #1 radioed, “One under arrest. All in order;”
  • At 5:02:15 p.m., the SO escorted the Complainant to his police vehicle. The Complainant was wearing grey sweat pants, a white undershirt, and a blue hoodie;
  • At 5:03:21 p.m., the Complainant was placed in the rear passenger side of the SO’s police vehicle;
  • At 5:04:52 p.m., the Complainant requested the SO’s name and badge number;
  • At 5:05:38 p.m., the Complainant asked, “Why you put me on the ground?”;
  • At 5:06:13 p.m., the Complainant told WO #1 that CW #2 is a liar, who is “full of shit” and that he cut himself;
  • At 5:07:20 p.m., WO #1 told the Complainant that the SO’s name was written on his shirt and said it out loud. The Complainant responded, “You break my arm. Why you break my arm, man? Why you hurt me, man?”;
  • At 5:07:50 p.m., the Complainant denied being intoxicated;
  • At 5:08:02 p.m., a marked police vehicle [now known to be WO #3’s vehicle] arrived on scene;
  • At 5:10:40 p.m., WO #1 asked the Complainant for his full name and screened him for COVID-19 symptoms. He did not respond to WO #1’s queries;
  • At 5:11:15 p.m., the Complainant told WO #1 he wanted to go to hospital;
  • At 5:11:41 p.m., WO #1 read the Complainant his rights to counsel and caution, and advised him he was under arrest for public intoxication;
  • At 5:16:20 p.m., the Complainant began to speak incoherently;
  • At 5:19:49 p.m., WO #1 identified the Complainant by name to the SO;
  • At 5:20:50 p.m., the SO asked the Complainant if he wanted to attend the hospital. The Complainant responded by asking for the SO’s name;
  • At 5:22:43 p.m., the SO advised the Complainant he was under arrest for assault, and read the Complainant his rights to counsel and caution. The Complainant spoke over the SO and called the assault charge a “joke”;
  • At 5:24:50 p.m., the Complainant said, “My arm hurts, man”;
  • At 5:27:27 p.m., the Complainant requested an ambulance;
  • At 5:28:50 p.m., the Complainant begged the SO to remove the handcuffs because he believed his arm was broken;
  • At 5:30:28 p.m., the Complainant was transported to 11 Division;
  • At 5:36:40 p.m., the Complainant arrived at 11 Division;
  • At 5:41:40 p.m., WO #1 assisted the Complainant out of the rear passenger side. The Complainant complained the handcuffs were too tight; and
  • At 5:42:19 p.m., the Complainant went off camera.


Booking Hall Video:


The following is a summary of the booking of the Complainant at 11 Division, which was audio and video recorded. The recording commenced at 5:42:12 p.m. and captured the following:
  • At 5:42:30 p.m., the Complainant was escorted to the booking hall area by WO #1 with the SO following. The Complainant was handcuffed with his hands behind his back;
  • At 5:42:41 p.m., while seated on a bench, the Complainant asked the SO, “Why you put me on the floor? Why?”;
  • At 5:42:50 p.m., WO #2 entered the booking hall area. As he approached the counter, the Complainant told WO #2, “I want his name”;
  • At 5:43:08 p.m., the SO told WO #2 that the Complainant was arrested for public intoxication stemming from an assault with a weapon [now known to be a knife];
  • While the SO was briefing WO #2, the Complainant was incoherently mumbling;
  • At 5:44:44 p.m., WO #2 asked the Complainant if he knew why he was at 11 Division. The Complainant responded, “Because he [the SO] was rude”;
  • WO #2 attempted to explain to the Complainant that he was at 11 Division because he was intoxicated;
  • At 5:44:56 p.m., the Complainant told WO #2 that he consumed “three big beers”;
  • WO #2 told the Complainant about his rights to counsel;
  • At 5:47:08 p.m., in response to WO #2’s question regarding injuries, the Complainant said, “This guy put me on the floor,” and motioned his head to one side to refer to his right arm injury;
  • The Complainant also complained of back pain and alerted WO #2 that he was a diabetic;
  • At 5:47:23 p.m., WO #1 told WO #2 that the Complainant complained that his handcuffs were too tight;
  • At 5:48:33 p.m., the Complainant pleaded with WO #1 to remove the handcuffs;
  • At 5:48:35 p.m., the Complainant said, “It’s for somebody who killed somebody man! Do I look like (inaudible)…I kill somebody man?”;
  • At 5:51:01 p.m., WO #2 authorized a Level 2 Search of the Complainant;
  • At 5:51:22 p.m., the Complainant was escorted to a private room by the SO and the PEW;
  • At 5:51:51 p.m., WO #1 told WO #2, “He didn’t want to get arrested so we took him down nice and gently.” She further added, “He didn’t like that. It happened pretty quick”;
  • At 5:52:10 p.m., WO #1 told WO #2 that the room key on the counter belonged to the Complainant, which they locked prior to their departure. She told WO #2 that there were four rooms and, “They were all sitting there drinking. And then he picks up the knife and tries to stab his buddy”;
  • WO #1 learned that CW #2 had sustained minor cuts to his hand;
  • At 5:55:55 p.m., the PEW told WO #2 that upon conclusion of the Level 2 Search, he found a credit card, steel toed boots, $10.00 in Canadian currency, and some papers;
  • At 5:56:26 p.m., the SO advised WO #2 that the Complainant complained of pain in one wrist/arm;
  • At 5:57:34 p.m., WO #2 requested an injury report to be completed. WO #1 volunteered to complete the report;
  • At 5:57:57 p.m., the Complainant became unsteady on his feet as he stood up and fell backwards on to the bench; and
  • At 5:59:51 p.m., the video ended.


Cell Video:


The following is a summary of the cell footage of the Complainant at 11 Division, which only captured video. The recording commenced at 5:58:18 p.m. and captured the following:
  • At 5:58:28 p.m., the Complainant was lodged in cell 17;
  • At 5:59:01 p.m., the Complainant examined his right wrist;
  • At 6:00:50 p.m., the Complainant examined his right shoulder;
  • At 6:51:22 p.m., the Complainant used his left hand to bang on the cement wall approximately ten times;
  • At 7:00:09 p.m., the Complainant attempted to kick at the cell block door;
  • At 7:02:24 p.m., the Complainant appeared to be talking to the camera in his cell and pointed at his right arm;
  • At 7:04:36 p.m., the Complainant rested his head on his right arm;
  • At 7:09:25 p.m., the Complainant appeared to be crying;
  • At 7:13:23 p.m., the Complainant kicked at the cell block door;
  • At 7:20:29 p.m., the Complainant used his left arm to reach for the toilet while resting his head on his right arm;
  • At 7:46:34 p.m., the Complainant used the toilet bowl to leverage himself off the bench clockwise;
  • At 7:47:44 p.m., the Complainant appeared to use his own body weight to put pressure on his right arm;
  • At 7:48:43 p.m., the Complainant used his left hand to knock on the cell block door;
  • At 7:49:14 p.m., the Complainant appeared to be talking to someone through the cell block door;
  • At 7:55:45 p.m., the Complainant obtained a sandwich;
  • At 7:58:34 p.m., the Complainant removed his hoodie and t-shirt;
  • At 8:22:05 p.m., the Complainant appeared to be talking to someone through the cell block door. He pointed to his right humerus;
  • At 9:12:35 p.m., the cell block door was opened. The Complainant alerted the transporting police officers [now known by name] of his injury of his right arm injury;
  • At 9:13:50 p.m., the Complainant was assisted off the ground by an unknown person (not in camera view); and
  • At 9:14:16 p.m., the video ended.

Communications Recordings


TPS Communication Audio Recordings:


The recordings were made on April 14, 2020 and captured the following:
  • At 4:52:24 p.m., a male caller [now known to be CW #2] called 911 to report a person [now known to be the Complainant] with a knife at an address on Bloor Street West;
  • CW #2 told the 911 call-taker that he had been stabbed “between my fingers” by the Complainant;
  • CW #2 described the knife as having a yellow handle with a 4 to 5-inch blade. The knife remained in the kitchen;
  • CW #2 admitted that he and the Complainant had been drinking and described the Complainant as “stupid when he’s drunk”;
  • At 4:54:08 p.m., a radio broadcast was issued for a person with a knife;
  • At 4:55:24 p.m., a police unit [now known to be the SO] and another police unit [now known to be WO #1] were dispatched;
  • At 5:01:23 p.m., WO #1 advised a person [now known to be the Complainant] was under arrest; and
  • At 5:29:57 p.m., the Complainant was transported to 11 Division.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Communication audio recordings;
  • Computer-assisted Dispatch Event Details Report;
  • Notes-all WOs;
  • Notes-the PEW;
  • Occurrence Report;
  • Injury report;
  • Booking Hall Video;
  • Cell Video;
  • ICCS of involved police vehicle;
  • TPS Policy-Use of Force; and
  • TPS Policy-Use of Force-Appendices.

Materials obtained from Other Sources

Upon request, the SIU obtained and reviewed the following other materials and documents:
  • Ministry of Transportation digitized photo of the Complainant; and
  • Medical records for the Complainant relevant to the incident.

Incident Narrative

The events in question are relatively clear on the weight of the evidence collected by the SIU, which included interviews with the Complainant, two civilian eyewitnesses and a WO who also participated in the Complainant’s arrest. As was his legal right, the SO declined to interview with the SIU or authorize the release of his incident notes.

At about 5:00 p.m. on April 14, 2020, the SO, in the company of WO #1, arrived at an address on Bloor Street West. They were there in response to a 911 call placed by CW #2, a resident of the rooming house above the ground floor business at the address. CW #2 had contacted police to complain that another resident of the rooming house, the Complainant, had just attacked him with a knife.

The officers spoke with CW #2 at the ground floor entrance to the building and then made their way to the second floor intending to arrest the Complainant. The Complainant was quickly located in the kitchen. He was highly inebriated and took umbrage when the SO took hold of his shoulders and advised him he was under arrest. When the Complainant pushed the officer away, the SO threw him to the ground.

The Complainant continued to offer minor resistance while on the ground, attempting to lift himself up, but was handcuffed by the officers with his hands behind his back in short order.

Following his arrest, the Complainant was assisted to his feet and escorted down the stairs and outside, where he was lodged in the backseat of the SO’s cruiser. The Complainant was subsequently transported to hospital when he complained of right arm pain, and diagnosed with a fractured humerus.

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 April 14, 2020, the Complainant was diagnosed with a fractured arm following his arrest by TPS officers earlier that day. The SO was among the two arresting officers 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. Given what they knew of CW #2’s call to police complaining about having been attacked with a knife by the Complainant, which information was confirmed upon their arrival at the scene, I accept that the officers were proceeding to lawfully arrest the Complainant for assault when the takedown occurred. The issue turns to the propriety of the force used by the officers in the course of the arrest.

The takedown of the Complainant by the SO was forceful and might well have caused his arm injury, but I am unable to reasonably conclude that it fell outside the range of justifiable force. Upon being told that he was under arrest, the Complainant reacted defiantly. He swore at the SO and flailed his arms in resistance when the SO took hold of him. As far as the SO would have known, the Complainant had just used a knife against CW #2, a knife which had yet to be located, and he had good cause to be concerned the Complainant still had access to it. In the circumstances, the takedown that occurred was, in my view, a reasonable option to deter any further aggression and safely secure the Complainant in custody. With the Complainant on the floor, the officers would be better positioned to deal with any further resistance and the possibility of a weapon. Notably, once on the ground, the arrest appears to have been executed without further incident.


In the result, whether the Complainant’s arm injury was the result of the takedown, I am satisfied that the SO comported himself lawfully at all times. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: September 8, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit