SIU Director’s Report - Case # 18-TCI-315
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Mandate of the SIU
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.
Freedom of Information and Protection of 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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 a serious injury sustained by a 28-year-old man (the “Complainant”).
Notification of the SIUOn October 25, 2018 at approximately 10:09 p.m., the Toronto Police Services (TPS) reported the following:
On October 25, 2018, at approximately 4:00 p.m., TPS were called to respond to a Canadian Tire store to assist security with a violent shoplifter. The shoplifter was identified as the Complainant.
TPS officers were able to handcuff the Complainant and placed him into the rear of a cruiser.
While en route to the police station, the Complainant became violent and attempted to kick out the rear window of the cruiser, and as a result, the police officers stopped the cruiser. When the police officers removed the Complainant from the cruiser, a brief struggle ensued between the Complainant and the police officers. The Complainant was eventually placed back into the cruiser.
When the Complainant arrived at the police station he complained of pain to his shoulder.
The Complainant was transported to Sunnybrook Health Sciences Centre (SHSC) by EMS where he was examined and diagnosed with a fracture to his clavicle.
The TeamNumber of SIU Investigators assigned: 4
Complainant:28-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW Interviewed
Witness OfficersWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed
Subject OfficersSO Interviewed, and notes received and reviewed
The SceneThe Canadian Tire store was located in downtown Toronto. After the SO and WO #1 placed the Complainant in custody at the store, they drove towards the police station, which was approximately four kilometres away. The SO and WO #1 stopped the cruiser on Yonge Street approximately three kilometres from the Canadian Tire store.
Communications RecordingsThe following is a summary of the 911 and radio communications that were recorded on October 25, 2018:
- At 3:38:53 p.m., someone called 911 requesting police attend the Canadian Tire for a shoplifter [known by investigators to be the Complainant] who was currently being held by loss prevention in their office;
- At 3:40:32 p.m., the caller advised the loss prevention officer was worried the shoplifter would want to fight him. The caller was unsure what the Complainant had stolen;
- At 3:43:15 p.m., dispatch broadcasted for units to attend Canadian Tire for a theft;
- At 3:44:09 p.m., another caller called 911 requesting police attend the Canadian Tire for a shoplifter. The second caller believed the Complainant had needles on him. The Complainant was described as a 30-35-year-old Aboriginal man with a medium build, 5’10” in height, wearing a black jacket, camouflage pants, backpack, sunglasses, and a hat;
- The second caller told the operator that he did a quick search of the Complainant and he did not have any weapons on him, but he was not in handcuffs;
- The second caller believed the Complainant was on alcohol and drugs as he tried to punch him when he was first stopped;
- At 3:46:23 p.m., a man’s voice can be heard in the background. The second caller assured the person in the background he was not speaking to the police and told the person to sit down and relax;
- At 3:47:02 p.m., dispatch requested units attend Canadian Tire for a “holding with trouble” call for an aggressive man who was possibly on drugs and alcohol. Dispatch advised the man had needles on him and tried to punch someone;
- At 4:25:01 p.m., the SO and WO #1 advised they had one in custody;
- At 4:53:50 p.m., the SO advised they were heading to the police station with a starting mileage of 665;
- At 5:12:23 p.m., WO #1 requested additional units at the scene;
- At 5:12:32 p.m., WO #2 and WO #3 advised they would attend;
- At 5:13:16 p.m., the SO, who sounded out of breath, advised the Complainant had kicked in the back window of the police cruiser but he was in handcuffs and everything was in order;
- At 5:13:27 p.m., WO #2 and WO #3 arrived on scene;
- At 5:14:03 p.m., WO #2 and WO #3 advised they believed police already had the Complainant in custody prior to their arrival. WO #2 and WO #3 advised the Complainant had kicked out the window of the police cruiser;
- At 5:14:19 p.m., dispatch advised for other units who were en route to the call to slow down;
- At 5:15:55 p.m., WO #4 requested ambulance attend to assess the Complainant and the police officers;
- At 5:16:28 p.m., dispatch requested ambulance attend the scene;
- At 5:17:24 p.m., WO #4 requested paramedics meet police at the station;
- At 5:19:48 p.m., dispatch updated ambulance on the location;
- At 5:19:53 p.m., WO #1 advised the finishing mileage was 669; and
- At 5:47:43 p.m., the SO advised the Complainant was being transported to SH via ambulance and he was also on board.
Canadian Tire Closed Circuit Television (CCTV) Footage Summary
Inside Rear Exit
- At 4:22:15 p.m., the recording began;
- At 4:22:25 p.m., a man [known to be the Complainant] was partially visible at the far end of the checkout area and began walking briskly toward the exit;
- The Complainant was wearing a red t-shirt. He had on a black long sleeve undershirt, a baseball cap and was carrying a black backpack in his right hand. The Complainant also had a large silver item (now known to be a pair of bolt cutters) in his left hand;
- At 4:22:51 p.m., the Complainant began running toward the exit. At the same time, a man [believed to be the loss prevention officer] ran parallel to the Complainant on the other side of an aisle; and
- At 4:22:45 p.m., the Complainant ran out of camera view and the recording ended.
Rear Parking Exit
- At 4:22:54 p.m., the recording began;
- At 4:23:01 p.m., two police officers [known to be the SO and WO #1] walked across the parking lot toward the rear entrance of Canadian Tire;
- At this time, two vehicles were idling at the exit of the parking lot waiting to exit;
- At 4:23:05 p.m., the Complainant ran out of the rear door of Canadian Tire and into the parking lot. The loss prevention officer, who was wearing a black jacket, ran after the Complainant and grabbed him by the left arm;
- The Complainant spun around in a circle;
- At 4:23:04 p.m., the SO grabbed onto the same arm as the loss prevention officer who subsequently let go. The police officer then took the Complainant to the ground, with the Complainant landing onto his right side and rolling onto his back. The SO simultaneously landed on top of the Complainant;
- At 4:23:09 p.m., the SO appeared to hold onto the Complainant’s upper body in an attempt to get him under control;
- At 4:23:11 p.m., the gate attendant exited his booth and stood by watching the police interaction with the Complainant;
- At 4:23:12 p.m., the loss prevention officer ran toward the SO and the Complainant and went out of camera view. WO #1 walked past the SO and the Complainant and approached the Canadian Tire employees who were out of camera view;
- The loss prevention officer came back into camera view and picked up the backpack and a large item off the ground which was near the Complainant;
- At 4:23:16 p.m., the SO stood up while holding onto the Complainant and rolled him over onto his stomach;
- At 4:23:28 p.m., a Canadian Tire employee wearing a uniform consisting of black pants and a red t-shirt, stood outside of the rear exit and watched as the Complainant appeared to be handcuffed;
- The Canadian Tire employee stood directly in the line of sight, blocking the view of the Complainant as he lay on the ground;
- At 4:25:30 p.m., the Complainant was sat up with the assistance of the SO;
- At 4:26:40 p.m., WO #1 walked across the parking lot out of camera view;
- At 4:27:22 p.m., the loss prevention officer approached the SO and the Complainant;
- At 4:27:45 p.m., the SO assisted the Complainant to stand up;
- At 4:29:05 p.m., the SO escorted the Complainant across the parking lot; and
- At 4:29:15 p.m., the recording ended.
CCTV Footage Summary from Yonge Street
- At 4:30:00 p.m., the recording began;
- There was nothing of investigative value from 4:30 to 5:00 p.m.;
- At 5:04:00 p.m., northbound traffic began to get congested;
- At 5:06:51 p.m., a fully marked grey TPS cruiser [believed to be operated by the SO and WO #1] was observed driving slowly in the left northbound lane of traffic;
- The traffic in the left northbound lane was bumper to bumper;
- At 5:08:10 p.m., the grey police cruiser drove out of camera view;
- At 5:15:13 p.m., two fully marked white police cruisers [known to be cruisers operated by WO #4 and WO #5] drove northbound at a high rate of speed in the southbound lane of traffic. The police cruisers appeared to have emergency lights activated; and
- At 5:30:00 p.m., the recording ended.
In-Car Camera System (ICCS) Video Footage Summary – the SO and WO #1
- At 4:30:37 p.m., the recording began;
- The police cruiser was stationary in a parking lot, believed to be the Canadian Tire;
- At 4:31:01 p.m., the Complainant was placed in the rear of the police cruiser;
- He entered through the rear, driver side door and was handcuffed with his hands behind his back;
- The Complainant was calm and compliant;
- At 4:31:28 p.m., the SO informed the Complainant that there was a camera recording within the police cruiser;
- The SO also told the Complainant that he had been arrested for theft and read him his rights to counsel;
- At 4:32:48 p.m., inaudible discussion can be heard outside the police cruiser;
- At 4:33:06 p.m., the Complainant said, “So what does it say for October 15th?”;
- At 4:33:27 p.m., the Complainant mumbled something similar to, “He appears to be talking shit”;
- The Complainant lay down across the back seat of the police cruiser and began shuffling around;
- He looked around and was pulling at the handcuffs behind his back;
- At 4:34:37 p.m., the Complainant moved the handcuffs down to his buttocks and began slipping them behind his legs;
- At the same time, the SO entered the police cruiser and asked the Complainant if he was OK;
- The Complainant placed his hands behind his knees and denied assaulting the Canadian Tire security guard;
- The SO reminded the Complainant that he was on camera;
- While waiting for WO #1 to return to the police cruiser, the Complainant and the SO discussed the charges and had a general discussion;
- As he was talking, it appeared as though the Complainant was trying to slip the handcuffs from behind his legs to in front of his legs;
- At 4:47:55 p.m., the Complainant once again unsuccessfully attempted to maneuver the handcuffs over his feet while talking to the SO;
- At 4:48:28 p.m., WO #1 returned to the police cruiser and had a general chat with the Complainant;
- At 4:50:42 p.m., WO #1 asked the Complainant if he had used any non-prescription drugs or alcohol. The Complainant replied, “A couple of hours ago”;
- At 4:54:30 p.m., the Complainant began undoing his right shoe lace;
- At 4:55:27 p.m., the Complainant slipped off his right shoe. He then slipped his right foot between his handcuffed hands;
- At 4:57:23 p.m., the Complainant slipped the handcuffs over his now shoeless left foot;
- The Complainant was now handcuffed with his hands in front of him, but kept them low and out of sight of the police officers;
- He continued to calmly speak with WO #1 as he discreetly put both his shoes back on;
- At 4:59:00 p.m., the Complainant openly sat with his hands in his lap as he chatted with WO #1;
- At 5:09:57 p.m., the Complainant said, “Life is so hard. Life’s a bitch. Life’s a fucking bitch. It’s the biggest bitch in the world”;
- At 5:10:23 p.m., the Complainant lay on his back, with his head by the rear driver side door. He used both feet to kick the window of the rear passenger side door three times. He then used his right foot to kick the window a further three times;
- At 5:10:36 p.m., the SO stopped the police cruiser;
- The SO opened the rear driver side door and the Complainant quickly sprung out of the door, but was stopped by the SO;
- The SO grabbed hold of the Complainant, who was struggling, and said, “Stop, you’re going to get tazed, you’re going to get tazed”;
- WO #1 was standing right by them and told the Complainant to stop fighting;
- The SO and the Complainant wrestled away from the police cruiser and out of sight of the camera;
- Grunting and commotion could be heard, but no visual of what was happening;
- At 5:10:48 p.m., an unknown white male wearing a yellow, high visibility jacket, exits a white truck and runs to assist the SO and WO #1;
- The truck was stationary in the southbound lane on Yonge Street;
- It had ‘Union Group’ written on the side;
- At 5:11:05 p.m., the SO requested assistance from other police units;
- At 5:13:32 p.m., a police cruiser [now known to have been used by WO #2 and WO #3], arrived at the scene and parked facing south on Yonge Street;
- At 5:14:49 p.m., the Complainant could be heard shouting in pain and said, “My shoulder hurts”;
- At 5:15:00 p.m., the Complainant was carried to the police cruiser by the SO and WO #3. The Complainant was handcuffed with his hands behind his back;
- The Complainant was pushed head first and face down into the rear of police cruiser. His legs were pushed inside and the rear driver side door was closed;
- The Complainant shouted, “My fucking left shoulder,” and the SO replied, “What’s wrong with it?”;
- At 5:15:21 p.m., the SO said, “Start the camera”. A male voice was heard saying, “The camera is on”;
- The SO asked the Complainant what was wrong with his shoulder and told him to lie on his back so he could breathe;
- The Complainant told the SO that his shoulder had ‘popped out’;
- At 5:15:52 p.m., the SO suggested getting an ambulance;
- At 5:16:15 p.m., the Complainant was breathing heavily as he lay across the back seat of the police cruiser;
- At 5:17:21 p.m., an update was passed stating that the Complainant would be transported to the police station. It was requested that medics meet him there;
- At 5:17:40 p.m., the emergency lights were activated on the police cruiser and the SO and WO #1 transported the Complainant to the police station;
- The Complainant could be heard groaning and crying as he moved around throughout the journey;
- At 5:19:55 p.m., the police cruiser was parked in the yard of the police station;
- At 5:20:32 p.m., the SO could be heard describing what had just happened with the Complainant;
- At 5:22:07 p.m., the Complainant had his leg restraints removed by an unknown TPS police officer;
- Shackles were then put around the ankles of the Complainant;
- At 5:22:50 p.m., the Complainant was removed from the police cruiser. He cried out in pain as he was moved; and
- The rear seat of the police cruiser was searched.
ICCS Video Footage Summary – WO #2 and WO #3
- At 5:12:05 p.m., the recording began;
- The police cruiser was on a residential street;
- At 5:12:35 p.m., the emergency equipment was activated;
- At 5:12:38 p.m., the police cruiser gained speed and made progress to respond;
- At 5:12:52 p.m., the police cruiser turned left onto Yonge Street, travelling south through heavy traffic and construction;
- Communication over the TPS radio was being transmitted, but was unclear;
- An “All in order” update was passed from the scene by the SO;
- At 5:13:29 p.m., the police cruiser arrived at the scene;
- A fully marked grey police cruiser was stationary in the middle of Yonge Street, and was facing north;
- The SO and WO #1 were kneeling next to the Complainant, who was lying face down on the ground;
- An unknown white male was also assisting the police officers;
- He was in his late 50s, approximately 5’8” tall, with a white moustache. He was wearing a high visibility jacket, dark coloured baseball cap and dark coloured pants;
- At 5:13:45 p.m., the unknown male left the police officers and walked northbound on Yonge Street;
- At 5:14:00 p.m., the Complainant was seen to be secured with leg restraints and handcuffed with his hands behind his back;
- At 5:14:21 p.m., WO #2 began traffic control;
- At 5:14:35 p.m., the SO was seen standing next to the Complainant and was breathing heavily;
- At 5:14:48 p.m., the Complainant was lifted off the ground by the SO and WO #3;
- WO #1 controlled the leg restraints on the Complainant as he was moved;
- The Complainant was heard shouting out in pain as he was lifted and moved towards the police cruiser;
- At 5:15:17 p.m., police cruisers operated by WO #4 and WO #5 arrived at the scene;
- At 5:15:05 p.m., a request for an ambulance for the Complainant was made over the TPS radio; and
- At 5:15:46 p.m., emergency sirens could be heard as the Complainant was driven away from the scene.
ICCS Video Footage Summary – WO #4
ICCS Video Footage Summary – WO #5
- At 5:12:22 p.m., the recording began;
- The police cruiser drove down a residential street, tailing a fully marked TPS cruiser [known to be operated by WO #4];
- At 5:12:46 p.m., WO #4 activated his cruiser’s emergency lighting and picked up speed;
- At 5:12:53 p.m., WO #5 activated the cruiser’s emergency lighting;
- At 5:13:13 p.m., WO #5 made a left turn;
- At 5:13:18 p.m., a radio transmission can be heard stating, “He’s in cuffs now, all in order”;
- At 5:13:27 p.m., WO #5 continued following WO #4 and made a right turn;
- At 5:14:09 p.m., WO #5 turned left onto Yonge Street and proceeded northbound;
- WO #5 followed WO #4 as it drove northbound in the southbound lane of traffic;
- At 5:15:20 p.m., WO #5 came to a stop behind WO #4 on Yonge Street;
- A fully marked grey police cruiser was partially visible;
- At 5:16:02 p.m., there was a radio transmission stating that the man was in custody in the back of the scout car and an ambulance was required for the man as well as the police officers;
- At 5:17:11 p.m., there was a radio transmission that the man would be transported to the station and a request for paramedics to be relocated;
- At 5:17:40 p.m., the grey police cruiser drove away;
- At 5:17:55 p.m., WO #5 returned to her cruiser and followed WO #4 northbound; and
- At 5:20:20 p.m., WO #5 arrived at the police station and the recording ended.
Materials obtained from Police ServiceUpon request the SIU obtained and reviewed the following materials and documents from the TPS:
- ALI Log Search;
- AVL data;
- CAD Event Details Report;
- Event Details Report;
- General Occurrence Report;
- List of Involved Officers and Roles;
- Notes all witness officers and the subject officer;
- Video footage from police cruisers; and
- 911 and Communication Recordings.
The SO and WO #1 were traveling north on Yonge Street when the Complainant began to act up. The Complainant had managed to reposition his handcuffed arms in front of his body and was now kicking violently at the rear passenger side door of the cruiser. The SO stopped his cruiser in the left lane of traffic and exited the driver door. As the SO opened the rear driver side door, the Complainant maneuvered out of the vehicle and stood face to face with the officer. The two grappled for a moment before the Complainant broke free and began to travel south on the roadway. He was quickly grabbed from behind by the officer, who took hold of the Complainant and forced him to the ground. The officer landed on top of the Complainant, causing the fracture in question.
With the assistance of his partner and a civilian, who had stopped his vehicle to help the officers, the SO re-cuffed the Complainant’s arms behind his back. Leg restraints were also applied, and the Complainant was escorted back to the cruiser where he immediately complained of pain in his shoulder. The officers made arrangements to have an ambulance meet them at the police station. Once at the station, the Complainant was taken to hospital and his injury diagnosed.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(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,
Analysis and Director's Decision
Pursuant to section 25(1) of the Criminal Code, police officers are immunized from liability for force used in the course of their duties provided the force in question is no more than is reasonably necessary in the execution of an act that they are required or authorized to do by law. Given the information at their disposal regarding the theft the Complainant had allegedly committed, and what they observed of the Complainant’s behaviour as they arrived at the Canadian Tire, the officers were within their rights in arresting the Complainant. Thereafter, when the Complainant attempted to escape custody, the officers were entitled to re-assert custody over him. The Complainant had shown a propensity for violence; he had quarreled physically with the security guard, kicked at the rear passenger side door repeatedly and with force, and fought with the SO as he jumped out of the cruiser. The SO was entitled to resort to force to subdue the Complainant and he did so. He grappled with the Complainant and then grounded him, landing with the full weight of his body on top of the Complainant. It does not appear that the Complainant was punched or kicked, or otherwise struck, at any point. On this record, I am satisfied that the force used by the SO was measured, proportional and within the range of what was reasonably necessary in the circumstances.
In the result, as the force in question was legally justified in my view, there are no grounds for proceeding with charges against the SO, notwithstanding the injury inflicted on the Complainant, and the file is closed.
Date: September 13, 2019
Special Investigations Unit
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.