Director's Report Details

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.

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.

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 serious injury reportedly sustained by an 18-year-old man during his arrest on September 16, 2017.

Notification of the SIU

At approximately 10:05 a.m. on September 16, 2017, the Toronto Police Service (TPS) reported a custody injury that occurred in the area of the Fiction nightclub at 180 Pearl Street in the City of Toronto at 2:30 a.m. that morning. The TPS reported that the Complainant was apparently involved in a fight with two doormen at the nightclub before he fled and was grounded by police. When he complained of a sore elbow, he was taken to hospital where he was diagnosed him with an avulsion fracture.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Four SIU investigators were assigned and dispatched, arriving at the TPS station at 11:55 p.m.

A canvass of the businesses on Pearl Street revealed surveillance camera recordings from two establishments.

Complainant:

18-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Not interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Notes reviewed, interview deemed not necessary

WO #5 Interviewed, notes received and reviewed

WO #6 Notes reviewed, interview deemed not necessary

WO #7 Notes reviewed, interview deemed not necessary

WO #8 Notes reviewed, interview deemed not necessary

WO #9 Interviewed, notes received and reviewed

WO #10 Notes reviewed, interview deemed not necessary

WO #11 Interviewed, notes received and reviewed

After reviewing their memo book entries and assessing their involvement in the incident, it was decided that WO #s 4, 6-8, and 10 would not be interviewed.

Police Employee Witnesses

PEW #1 Interviewed

Subject Officers

SO #1 Interviewed, notes received and reviewed

On Saturday, September 16, 2017, police were on scene in the Entertainment District in the City of Toronto when the Complainant was observed to approach a bouncer outside of the Fiction nightclub and punch him in the face. The Complainant immediately began to run from the scene, and was pursued by WO #5. The SO, who was also nearby, observed that WO #5 was attempting to apprehend the Complainant and that the Complainant was fleeing, and he placed himself in the Complainant’s path. When the Complainant slightly changed the direction of his path in order to avoid the SO, the SO also moved and placed himself again into the Complainant’s path.

The Complainant ran directly toward the SO, who then lowered himself closer to the ground and stepped directly into the Complainant’s path, grabbing the Complainant in a ‘bear-hug’ like manoeuvre, with both men going to the ground. The Complainant was arrested and later transported to the hospital.

Nature of Injury/Treatment

The Complainant sustained a comminuted fracture of the coronoid process of the right elbow.

The Scene

Outside of the Fiction nightclub at 180 Pearl Street in the City of Toronto.

Video/Audio/Photographic Evidence

Fiction Nightclub Security Video Recording:

The security video recording from the Fiction nightclub entrance captured an incident at 2:29:37 a.m. At that time, a male, now known to be the Complainant, approached a nightclub employee, now known to be CW #2, and struck him in the head. The Complainant then immediately fled, running east on Pearl Street.

He ran past numerous police officers when, at 2:39:43 a.m. on the recording, the SO positioned himself in the Complainant’s path. The Complainant slightly altered his trajectory to his right. The SO moved to his left, stepped into the Complainant’s path, and tackled him. Unfortunately, this occurred out of camera view. A parked vehicle also obstructed the view of the Complainant being handcuffed.

Grace O’Malley Security Video Recording:

Grace O’Malley’s pub was situated at the northwest corner of Duncan and Pearl Streets. Security cameras mounted at the southeast corner entrance to the pub captured a view west along Pearl Street and captured the following:

At 2:33 a.m. on the recording, the prisoner transport vehicle was parked at the north side of the street, west of the entrance to the Fiction nightclub. Both lanes of the one-way westbound street were congested with taxis and pedestrians on the north and south sidewalks, west of Duncan Street.

At 2:33:32 a.m., two mounted unit police officers moved east briskly from positions near the prisoner transport vehicle, to the vicinity of the entrance to the Fiction nightclub.

At 2:33:55 a.m., a person in a light coloured top was visible running from the north side of the street to the south side at the far west end of the recording. It appeared a number of police officers engaged the person, who disappeared from view as he went to the ground. The mounted unit police officers moved toward that area and came to a stop. Those police officers remained on horseback.

The recording was otherwise unremarkable.

Booking Video:

The Complainant was booked in at the police station at 4:12 a.m. on September 16, 2017, with his hands handcuffed behind his back. When asked if he was hurt or had any injury, the Complainant nodded but his response was incomprehensible on the recording. One of the police officers who escorted him told the booking sergeant that he “Noticed his right elbow is protruding. It’s not normal.” The booking sergeant said that they would look after it.

After he was searched, the Complainant was told he would be lodged in a cell until a car was available to take him to the hospital.

At 4:48 a.m., the Complainant was returned to the booking area. His hands were handcuffed to his front and he was escorted to a car by two police officers who transported him to the hospital.

Cell Monitoring Video Recording:

The cell monitoring video captured video only (no audio) recordings of the Complainant’s incarceration.

ICCS Recordings:

In the ICCS recording of the Complainant’s transportation to hospital, he was seated in the rear seat of the cruiser. He remained silent, other than responding to one of the police officer’s inquiry about his age. The recording was unremarkable.

Communications Recordings

The police transmissions communications recordings were received and reviewed.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:

• General Occurrence Report
• Intergrated Computer Aided Dispatch (ICAD)-Event Details Report
• Notes of WO #s 1-8, 10, 11 and the SO
• Booking room video
• Cell video
• In-car camera system (ICCS) video of the police cruiser transporting the Complainant
• Police Transmissions Communications Recordings, and
• Summary of Conversation

The following materials and documents were obtained and reviewed from other sources:

• The medical records of the Complainant relating to this incident
• The CCTV footage from Grace O’Malley’s pub, and
• The CCTV footage from the Fiction nightclub

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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.

Section 265, Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

1. the application of force to the complainant or to a person other than the complainant
2. threats or fear of the application of force to the complainant or to a person other than the complainant
3. fraud; or
4. the exercise of authority

Section 266, Criminal Code – Assault

266 Every one who commits an assault is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction

Section 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. causes bodily harm to the complainant

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

On September 16, 2017, at approximately 2:30 a.m., the Complainant, after having consumed a number of alcoholic beverages at the Fiction nightclub, took umbrage at the way his friend, who had been ejected from the Club, was being treated. The Complainant then approached one of the bouncers, completely unprovoked, and punched him in the face, following which he ran off.

At the time that the Complainant assaulted the bouncer, there were already several police officers in the area dealing with other disturbances involving intoxicated patrons of the Entertainment District. One of those officers, Witness Officer (WO) #5, observed the Complainant assault the bouncer and then observed him running in WO #5’s direction. WO #5 tried to reach out and grab the Complainant, but missed him, and the Complainant ran past him while WO #5 then gave chase.

The Subject Officer (SO) observed WO #5 chasing the Complainant and stepped into the Complainant’s path to try and stop him. The Complainant then slightly altered the route he was running, as did the SO, who then moved to his left and again stepped in the Complainant’s path. The entire incident up until this point in time was captured on security video and is not in dispute. Unfortunately, at that point the Complainant went just out of camera range when he was arrested by police, and that interaction is not captured on the video recording.

The Complainant alleges that there were three police officers positioned in his path, blocking his way and, as he neared, one of the police officers grabbed the Complainant’s right upper arm with both hands, the Complainant fell to his knees, and the officer then forcibly brought the Complainant’s right arm behind his back and maintained hold of the arm in that awkward position for some 30 seconds to one minute. The Complainant believes that the stress and strain caused by this hold on his arm is what injured his elbow.

The SO, to the contrary, indicates that he at no time grabbed and twisted the Complainant’s arm causing it to fracture, but instead stated that as the Complainant was running toward him, the SO lowered himself and stepped in the Complainant’s path and the Complainant’s mid-section contacted the SO’s right shoulder, causing the Complainant to push the SO onto his back and the two landed on the ground. The SO indicated that he then took hold of the Complainant’s left arm, while WO #5 took hold of his right arm, and he was handcuffed behind his back.

The SO’s evidence is consistent with that of WO #5, who also observed the SO move into the Complainant’s path, lower himself and grab the Complainant in a ‘bear-hug’ type fashion which he described as being basically a tackle, with the Complainant landing on his back. WO #5, however, believed that it was he who then took the Complainant by the left arm while the SO took him by the right, and he was handcuffed.

Despite the Complainant’s allegation that his arm was injured by the SO twisting his arm behind his back, I do not accept this contention for the following reasons:

• WO #11, the road supervisor, indicated that the Complainant told him that he had injured his right elbow when he was tackled by a police officer
• In the Complainant’s medical records, the triage record has noted that the Complainant “Reports tackled by TPS, struck R elbow against ground … now C/O (complains of) pain to R elbow;&rdquo
• Later on in his records, it is noted that the Complainant was “Tackled by police + fell to ground + pain with movement;&rdquo
• The emergency nursing record reads, “18 year old male brought in by police, “tackled to ground” C/O pain to right elbow
• I note that the records also note that the Complainant has an abrasion to his right elbow, which I find would be more consistent with falling and striking your elbow on the ground, than it would be with having it twisted, and
• Finally, I note that the medical expert consulted indicated that the Complainant’s injury, ‘a comminuted fracture of the coronoid process (the projection at the proximal end of the ulna)’ was neither consistent with a fall on an outstretched hand nor with a twisting motion, but rather this type of injury is typically sustained by falling backward in a fall with a flexed arm and then having pressure applied from behind. I find that this scenario appears to fit exactly with the description provided by WO #5 of how the Complainant was tackled to the ground

Having made this assessment of the evidence then, the question still remains as to whether or not the actions of the SO, in tackling the Complainant to the ground resulting in a fracture in the area of the Complainant’s right elbow, amounted to an excessive use of force in these circumstances.

In assessing whether or not these actions by the SO amount to an excessive use of force, I have considered that pursuant to s. 25(1) of the Criminal Code, police officers are protected from prosecution if they are acting pursuant to their lawful duties as long as they use only as much force as is necessary for that lawful purpose.

On the record before me, it is clear that WO #5 observed the Complainant commit the offence of assault against the bouncer of the Fiction nightclub and he therefore had reasonable grounds to arrest the Complainant on that basis. The SO was entitled, in observing WO #5 chasing the Complainant, to infer from those actions that WO #5 had reasonable grounds to apprehend the Complainant and the SO therefore could rely on those same reasonable grounds to stop and apprehend the Complainant despite not having the luxury of stopping and having a conversation with WO #5 in order for him to pass that information on to the SO.

As such, it is clear on these facts that the police were acting within their lawful duties at the time that they pursued and apprehended the Complainant and their actions were justified, as long as they did not resort to an excessive use of force.

With respect to the use of force relied on by the SO to stop a man obviously fleeing while another police officer is in hot pursuit, I accept that his actions in standing in the Complainant’s path and, when the Complainant approached within arm’s reach, tackling him in what was described as a bear hug and taking him to the ground, were both necessary and justified in these circumstances. I note that other than bringing the Complainant to a stop, no other force was used against him, with the exception of the minimum required in handcuffing him and assisting him to his feet.

I find, in these circumstances, that the SO did no more than what was called for to stop the Complainant and, despite the injury to the Complainant, I cannot find that this amounted to an excessive use of force. In fact, it appears that the Complainant, in continuing to run despite the SO’s obvious attempts to block his forward movement, was as responsible for the outcome as was the SO. The Complainant was obviously as intent on continuing his escape as the SO was on stopping him doing so. At that point, I cannot see any other option available to the SO other than to use his body to bring the Complainant to a stop. The actions of the SO appeared to have been measured and directly proportionate to the actions of the Complainant.

In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R v Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

In conclusion, based on the reliable evidence before me, I accept that when the SO tackled the Complainant to the ground in order to prevent his escape, the Complainant’s elbow struck the ground, causing the abrasion, as noted in his medical records, and the fracture to his elbow. Despite the unfortunate consequences for the Complainant, I find that had the Complainant stopped as directed, rather than continuing to run headlong into the SO, he would not have been injured. Unfortunately, running headlong into an officer who was legally justified in stopping the Complainant caused both of to fall to the ground and an injury and an injury to the Complainant’s elbow.

On these facts, I cannot find that the SO resorted to an excessive use of force nor that I have reasonable grounds to believe that his actions amounted to a criminal offence and no charges shall issue.

Date: July 12, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit