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 a 46-year-old man during his arrest on July 10^th, 2017.

Notification of the SIU

At approximately 11:22 p.m. on Monday July 10^th, 2017, the Toronto Police Service (TPS) notified the SIU of a custody injury to the Complainant. The TPS reported that on July 10^th, 2017 at 1:30 p.m., the Complainant was seen by a TPS officer attempting to steal a bicycle. The TPS officer attempted to arrest the Complainant but was assaulted and the Complainant fled on foot. A foot chase ensued and a TPS Major Crime Unit (MCU) officer tackled the Complainant and arrested him. The Complainant complained of chest pains and was taken to the hospital. He was diagnosed with a fractured rib and punctured lung. The Complainant may require surgery. The scene had not been held by the TPS.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

At 12:04 p.m. on July 11^th, 2017, the Complainant was interviewed by SIU investigators and photographs of his injuries were taken. For an unknown reason the digital SD card became corrupted and the photographs were not able to be recovered.

Copies of CCTV footage from the Canada Life Building at 330 University Avenue were seized. CCTV from the United States (U.S.) Consulate was viewed but copies were not made available to SIU investigators. The booking video and the in-car camera (ICC) footage from the scout car were viewed.

Two civilian witnesses were identified and one was interviewed. The second civilian witness, CW #2, did not return any messages that were left by SIU investigators on the telephone number that he supplied to WO #4. The original civilian witness who pointed the theft out to WO #4 was never identified.

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Not interviewed, did not make himself available

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 Interviewed, notes received and reviewed

WO #5 Interviewed, notes received and reviewed

WO #6 Interviewed, notes received and reviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right

On Monday July 10^th, 2017, WO #4 was working a paid duty at the corner of Richmond Street West and Duncan Street in the City of Toronto.

At approximately 1:04 p.m., a male pedestrian approached WO #4 and pointed out a man who had attempted to steal a bicycle. This man is now known to be the Complainant. WO #4 approached the Complainant and, after a short conversation, formed the grounds to arrest the Complainant for theft. The Complainant pulled away from WO #4 and ran eastbound on Richmond Street West. The Complainant ran around until he returned to the same location where WO #4 had first confronted him. The Complainant then picked up the bicycle and started to walk away with it and WO #4 ran after him. The Complainant then pushed the bicycle into WO #4, knocking him to the ground. WO #4 radioed for assistance and gave a description of the Complainant.

The Complainant was then chased by other TPS officers throughout the downtown area. At the U.S. Consulate, the Complainant jumped the fence and hid in the courtyard under some bushes. Police officers with the Major Crime Unit (MCU) jumped the fence to arrest the Complainant, but he ran, following which he was tackled to the ground. The Complainant was then handcuffed and complained of chest pains. He was transported to a hospital where he was diagnosed with broken ribs and a punctured lung. He was then transported to a second hospital’s surgical unit awaiting possible surgery.

Nature of Injuries / Treatment

The Complainant was transferred to a second hospital for possible surgery and x-rays were ordered. Following the taking of x-rays, it was determined that the Complainant had a non-displaced fracture of the posterior 12^th rib as well as the posterolateral (in back and away from the midline) 10^th rib on the left side, and a possible fracture of the posterolateral 11^th rib on the left side and a small left-sided pneumothorax (collapsed lung). The Complainant’s condition remained stable and he was released from the hospital without the necessity of any other medical procedures being performed.

The Scene

The scene of the arrest was a courtyard between the U.S. Consulate to the north and the Canada Life Building at 330 University Avenue to the south. The courtyard was bounded by University Avenue to the east and Simcoe Street to the west. The scene was not forensically examined by the SIU.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video Evidence

CCTV-U.S. Consulate General

SIU Investigators met with an Investigator with the U.S. Consulate General Diplomatic Security Service. The Investigator said there were two CCTV cameras positioned toward the courtyard to the south of the consulate building. One camera is located at the south wall corner. This camera faces east along the south wall. The camera is a stationary camera. The second camera is located on the southwest roof directed at the southwest corner. The camera swivels and can be controlled by a security officer. The camera reverts back to its initial position when it is not being controlled. This camera can also view the southeast corner. There is a third camera on University Avenue that only captures the main entrance to the U.S. Consulate, and therefore it was not reviewed.

The Investigator from the Consulate explained that U.S. Government rules prohibit the release of copies of the CCTV; however, SIU Investigators were allowed to review the footage.

The south wall camera recorded the following. At 1:10 p.m., the Complainant ran from the direction of Simcoe Street toward University Avenue, along the wall perimeter. That area is covered with thick bushes. At 1:12 p.m., the Complainant appeared to be tackled to the ground, but the interaction was obstructed by a tree branch. Two men dressed in plainclothes, now known to be SO #1 and SO #2, were visible in the background. At 1:12:59 p.m., a police officer dressed in bicycle attire, now known to be WO #3, entered the courtyard. At 1:13:40 p.m. a police officer dressed in a grey T-shirt [believed to be SO #1], walked out from behind a tree. At 1:14:40 p.m., SO #1 and SO #2 walked around in the garden area. At 1:15:38 p.m., the Complainant was escorted off the property by two police officers dressed in bicycle attire, behind SO #1 and SO #2.

The southwest roof camera recorded the following. At 1:10:12 p.m., the Complainant easily hopped over the fence into the courtyard from Simcoe Street. At 1:11:13 p.m., a police car pulled up across from the southwest corner of the building. At 1:12:18 p.m., two uniformed police officers walked by on Simcoe Street, on the outside of the fence. At 1:13:06 p.m., SO #1 stood by in the corner of the camera view. The camera was not directed toward the area where the Complainant was brought to the ground by SO #1 and SO #2. At 1:14:14 p.m., a U.S. Consulate security officer moved the camera toward the area of the arrest. The Complainant was on the ground with two bicycle police officers, with his hands handcuffed behind his back. SO #1 and SO #2 searched the property nearby. At 1:15:40 p.m., the Complainant was escorted off the property by two police officers dressed in bicycle attire.

CCTV 330 University Avenue

The Canada Life Building has four CCTV cameras. There are two cameras on University Avenue and two cameras on Simcoe Street. Two cameras provide a north and south viewing in both locations. All four cameras were reviewed and nothing of significance was recorded.

Booking Video

It should be noted that the booking of the Complainant was after he was released from the hospital. The only thing said by the Complainant during the booking process was his name and date of birth. The parading officer reported his injuries as a small puncture to his left lung and a cracked rib. Otherwise there was nothing of significance.

In Car Camera (ICC) from Transporting Scout Car

The in-car camera from the transporting scout car provided video of SO #1 and SO #2 and WO #3 climbing the wrought iron fence surrounding the courtyard where the Complainant was arrested. The arrest was not captured on video. There was nothing else of significance to the investigation.

Photos and Video from CTV News

The photos and video show a police officer jumping a fence into the courtyard and the Complainant being led out.

Communications Recordings

The communications recordings of the foot pursuit of the Complainant on July 10^th, 2017 were consistent with the summary (CAD) provided and corroborate the witness officers’ statements.

Materials obtained from Police Service

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

• COMM Summary of Conversation (CAD)
• Police Transmission Communications Recordings
• Event Details Reports
• General Occurrence Report
• Injury Report
• Notes of WO #s 1-6
• Photos taken of bicycle
• Procedure 15-01-Appendix A
• Procedure 15-01-Appendix B
• Procedure 15-01-Use of Force
• TPS CPIC Query-the Complainant, and
• Written Statements of WO #3 and 4

The SIU obtained and reviewed the following materials and documents from other sources:

• Medical Records of the Complainant relating to this incident

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 129, Criminal Code - Offences relating to public or peace officer

129 Every one who

1. resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer
2. omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
3. resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure

is guilty of

4. an indictable offence and is liable to imprisonment for a term not exceeding two years, or
5. an offence punishable on summary conviction

Section 270(1), Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure

Section 322(1), Criminal Code – Theft

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

1. to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it
2. to pledge it or deposit it as security
3. to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
4. to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted

Section 334, Criminal Code - Punishment for theft

334 Except where otherwise provided by law, every one who commits theft

1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is a testamentary instrument or the value of what is stolen exceeds five thousand dollars; or
2. is guilty
   1. of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
   2. of an offence punishable on summary conviction

where the value of what is stolen does not exceed five thousand dollars.

On July 10^th, 2017, WO #4 of the Toronto Police Service (TPS) was working a paid duty assignment at the corner of Richmond Street West and Duncan Street in the City of Toronto when, at approximately 1:04 p.m., he was approached by a pedestrian who pointed out a male standing near a bicycle rack. At the time, the male was just placing something into his knapsack. The pedestrian advised WO #4 that he had just seen the male using the bolt cutters to cut off a bicycle lock. Based on this information, WO #4 formed the reasonable grounds to believe that the male was committing an offence and he approached the male, who was later identified as the Complainant.

WO #4 observed the metal handles of what he believed to be bolt cutters jutting out from the Complainant’s knapsack; WO #4 also observed a bicycle seat in the knapsack. WO #4 considered the information he had received from the pedestrian as well as the fact that the Complainant was close to a bicycle rack with two bicycles on it, and formed the grounds to believe that the Complainant had just been involved in a theft, or attempted theft, of the bicycle. WO #4 explained to the Complainant that someone had reported that the Complainant had been trying to cut off the bicycle lock and he informed the Complainant that he could see the bolt cutters in his knapsack. The Complainant, who was standing close to a mountain bike, seemed surprised by the allegation and started to deny any wrongdoing, following which he immediately dropped his knapsack.

WO #4 grabbed the Complainant, who then started to back away. WO #4 told the Complainant that he was placing him under arrest for theft. WO #4 placed his right hand on the Complainant’s arm, and the Complainant immediately pushed back, broke free of the grip, and started to run eastbound on Richmond Street West. WO #4 ran after him. The Complainant repeatedly indicated that he had done nothing wrong, while WO #4 kept yelling at the Complainant to stop as he was under arrest.

WO #4 pursued the Complainant on foot until they were back at the bicycle rack, where the Complainant then grabbed the mountain bike and walked quickly across the street. WO #4, still on the opposite side of the road, continued to yell at the Complainant to stop. The Complainant then started to run and, as it appeared to WO #4 that the Complainant intended to hop on the bicycle and ride away, WO #4 tried to grab him. The Complainant then threw or pushed the bicycle into WO #4’s path, and the bicycle hit WO #4 causing him to fall to his hands and knees. The Complainant then ran northbound on Duncan Street and WO #4 reported the matter over his radio at 1:05 p.m., stating that he was in a foot pursuit relating to a theft and assault police.

WO #4 initially attempted to follow the Complainant, but when he heard police sirens approaching, and was informed over his radio that other police officers were in pursuit of the Complainant, he returned and retrieved the bicycle and the Complainant’s knapsack.

A woman later approached WO #4 and identified the bicycle as hers and advised that the indentation on the lock had not been there before. The pedestrian who had initially reported the theft did not remain to speak with police.

WO #4 sustained scrapes to his knees and palms, and had pain to both knees, after the incident.

The police transmissions recording confirms that at 9:49:56 a.m., WO #4 called in to report that he was on a paid duty assignment at Richmond and Duncan Streets and would be there until 3:30 p.m.

At 1:04:42 p.m., WO #4 is heard to transmit, “I’ve got a theft of bike”; he is clearly breathing heavily and appears to be running. He then provides a description of the male and indicates that the male was last seen running westbound on Queen Street west of Duncan. Sirens are then heard in the background. WO #4, still breathing heavily, is heard to transmit that the male is wanted for “theft of bike and assault police”. The dispatcher enquired if he still had the bike, and WO #4 advised that he did not, that it was still at Duncan and Richmond Streets.

Over the next nine minutes or so, numerous officers are heard to transmit the various sightings of the Complainant as he is observed running first on Queen Street West, then onto St. Patrick, Simcoe, and University Avenue, where he is seen crossing behind the U.S. Consulate building. An unidentified officer’s transmission indicates that he has now lost sight of the male, but that he should be in the area of Armory Street and University Avenue. This same officer then indicates that he has again sighted the male now climbing the fence onto the U.S. Consulate property, and then that he is in the bushes at the Consulate. Another officer then transmits, “He’s running towards us,” “They’ve got him on the ground,” and within seconds, “Major Crime has one in custody.” Then there is a request for EMS as “a 45 year old male” was “complaining of chest pains”.

The video from the U.S. Consulate reveals that at 1:10:12 p.m., the Complainant hopped the fence into the courtyard and is seen running along the perimeter of the building; the area is covered with thick bushes. At 1:11:13 p.m., a police car is seen pulling up to the building. At 1:12 p.m., it appears that the Complainant is being tackled to the ground; two plainclothes officers are seen in the background. At 1:12:59 p.m., WO #3 is seen to enter the courtyard.

It is alleged by the Complainant that three to four plainclothes police officers jumped the Complainant and beat him as he was getting out of the bushes; that the plainclothes police officers repeatedly punched the Complainant square in the face and kicked and punched him on both sides of his ribs, while continuously telling him not to resist, despite the fact that he at no time resisted; and, that the interaction lasted for about one minute. It is also alleged that two to three uniformed officers stood by while this was occurring.

Fortunately, despite neither of the subject officers opting to provide a statement, as is their legal right, between the observations of a civilian witness, the CCTV footage, and the observations of WO #3, the majority of the interaction between the Complainant and police, with a few small gaps, can be accounted for.

The civilian witness, CW #1, observed the Complainant running northbound through the bushes of the Canada Life building through a window on the 3^rd floor of the building. He then observed a police car parked up against the fence and two bicycle officers using the hood of the police car to jump over the fence. He also observed two plainclothes police officers chase the Complainant through the bushes. CW #1 then left the window for no more than a couple of seconds, to move to his own office for a better view. His office window was open and he did not hear any screaming, voices, or commands being given. CW #1 advised that the two plainclothes police officers were the first to reach the Complainant and, by the time that the two bicycle officers got over the fence, the Complainant was already face down on the lawn with his hands handcuffed behind his back. CW #1 did not observe anyone deliver any punches or kicks to the Complainant’s face or body.

WO #3 advised that he heard over the radio that the Complainant was in the courtyard near the U.S. Consulate and he could see the Complainant in the courtyard. He observed SO #1 and SO #2 use the police car as a platform to hop the fence. WO #3 was the third police officer to climb onto the car. From his position, he could see the Complainant inside the courtyard and observed him to start running, whereupon he was taken down from behind by one of the plainclothes police officers. WO #3 described the takedown as the Complainant being tackled to the ground in a football-style tackle and the Complainant landing on the grass.

After the Complainant was tackled, WO #3 climbed over the fence and went through the bushes to get to the Complainant. While he was making his way through the bushes, he was unable to see what was going on between SO #s 1 and 2 and the Complainant. When he arrived at the Complainant’s location, the Complainant was on the ground with one hand handcuffed, and the other above his head. WO #3 then moved the Complainant’s right hand behind his back and he was handcuffed. WO #3 advised that he did not see any force used against the Complainant, other than the initial tackle, and he himself at no time struck or used any force against the Complainant. The Complainant then complained that his ribs or chest hurt, and WO #3 requested an ambulance.

At hospital, it was discovered that the Complainant had a non-displaced fracture of the posterior 12^th rib as well as the posterolateral (in back and away from the midline) 10^th rib on the left side, a possible fracture of the posterolateral 11^th rib on the left side, and a tiny left apical pneumothorax on the left side.

In his medical records, the Complainant was noted as having reported that he was assaulted/beaten by police and he was punched in the mouth. His diagnosis reads: “a traumatic left-sided pneumothorax, presumably from a fall on that side with non-displaced rib fractures”. No other injuries were noted.

On all of the reliable evidence, I find that I can place little credence in the allegations that the Complainant was jumped by three to four plainclothes police officers who then beat him as he was getting out of the bushes, that the plainclothes police officers repeatedly punched the Complainant square in the face, and that they kicked and punched him on both sides of his ribs. Since I find that all of the reliable available evidence specifically contradicts these allegations, I am unable to find that the Complainant’s account of the incident rises to the level necessary to satisfy me that there are reasonable grounds to believe that his allegation ever actually occurred. I make this finding for the following reasons:

• On all of the evidence, including that from the independent civilian witness, there were never more than two plainclothes police officers inside the courtyard with the Complainant, not three or four, as alleged
• The Complainant’s injuries are not consistent with his having been beaten as alleged, that being that he was punched repeatedly square in the face and kicked and punched on both sides of his ribs. I note that the injuries sustained by the Complainant are all localized in one area, the left rear side of his ribs, which appears to contradict his allegations that he was repeatedly kicked to both sides of the ribs. Also, the diagnosis at hospital that the injuries were “presumably from a fall on that side” also contradicts the Complainant having been kicked and punched on both sides of his ribs
• Both the injury and the medical diagnosis are consistent with the Complainant having been injured either when he jumped over the approximately nine foot fence[1], or when he was tackled in a football style tackle by one of the subject officers as he attempted to flee yet again
• Had the Complainant been beaten as alleged, one would have expected to find far more significant and observable injuries, in the nature of bruising, swelling, lacerations and abrasions, to his face and body, none of which are noted in his medical records
• Between the observations of CW #1, who advised that he was only away from a window for a couple of seconds, and the observations of WO #3, who only looked away while he himself was going over the fence and through the bushes, and what was captured on the CCTV footage, the entire interaction between the Complainant and the two subject officers appears to have been accounted for and no witnesses, nor the CCTV, ever observed or captured any punches or kicks being delivered to the Complainant. Additionally, I note that CW #1, even when he was away from the window, which he specifically described as being only a couple of seconds, indicated that he heard no screaming or yelling, which one would have expected were the Complainant being beaten to the degree he alleged
• With respect to the credibility of the Complainant himself, I note that he continued to assert his innocence, despite the ownership of the bicycle being claimed by another witness, and a by-passer having observed him to cut the lock with a pair of bolt cutters, in addition to the bolt cutters being found in his knapsack, and
• I do not find that the behaviour of the Complainant, in abandoning an expensive bicycle of which he claimed to be the owner, assaulting a police officer, and engaging the police in a lengthy and highly strenuous foot pursuit, which included climbing over a nine foot fence and hiding in bushes, to be consistent with innocent behaviour

In conclusion, having carefully reviewed all of the reliable evidence available, I find that I do not have reasonable grounds to believe that the two subject officers beat, punched or kicked the Complainant as alleged.

That, however, does not end the matter. Since there is no dispute that the Complainant was seriously injured during his interaction with police, an assessment is still required to determine whether or not the actions of SO #1 and SO #2, in apprehending and arresting the Complainant, amounted to an excessive use of force in the circumstances thereby vitiating their protection from prosecution pursuant to s. 25 (1) of the Criminal Code.

Clearly, if the Complainant was injured when he went over the approximately nine foot fence, there can be no question that the fault lies only with him, and not with any police officer, as they cannot be held responsible for the actions of persons in attempting to evade police.

The following analysis, however, will consider whether or not SO #1 and SO #2 resorted to an excessive use of force if the Complainant’s injuries were sustained when he was tackled to the ground.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear that SO #1 and SO #2 were acting on information received from WO #4 that he had formed the reasonable grounds to believe that the Complainant had committed offences of theft under $5000 and assaulting a police officer. While that information alone would have justified the officers acting to apprehend and arrest the Complainant, I hasten to note that WO #4 had ample evidence upon which he could form his grounds, that being the information from the bystander who had observed the Complainant liberating the bicycle from its lock by means of a pair of bolt cutters, his observations of the Complainant in possession of that same bolt cutter, and WO #4’s direct observation of the Complainant’s assault upon him when he threw the bicycle in his path. As such, the police had ample grounds upon which to arrest the Complainant, resulting in the pursuit and apprehension of the Complainant being legally justified in the circumstances.

With respect to the amount of force used by the two subject police officers in their attempts to apprehend the Complainant, I find that their behaviour was justified in the circumstances and that they used no more force than necessary to apprehend the Complainant, who they knew to have already fled from police, had assaulted a police officer, and was going to great lengths to continue to evade police and to avoid his arrest. In light of the fact that SO #1 and SO #2 were in possession of information that the Complainant had already assaulted WO #4, it was reasonable for them to believe that he was capable of doing so again, if not quickly subdued. On these facts, I cannot find that the tackling of the Complainant by one of these two police officers amounted to an excessive use of force in these circumstances. On all of the evidence, including the lengthy and strenuous foot pursuit on which the Complainant had already led police, it would have been clear to SO #1 and SO #2 that the Complainant was not about to give himself up willingly and would have to be forcefully stopped and arrested.

I find that it is likely that the Complainant suffered his injured ribs and the small pneumothorax when, while running full tilt, he was tackled to the ground by a police officer, who in all likelihood was also running full tilt and had to launch himself at the Complainant in order to bring him to a stop. In describing the tackle as a football style tackle, I take it to mean that the subject officer landed on top of the Complainant as they both fell together, and that the added weight of the police officer on top of the Complainant, in addition to the added momentum of the two men falling together, was likely the cause of his injuries. I find support in this conclusion on the basis that the Complainant’s rib injuries were all localized and to the posterior rib cage, which would be consistent with this fact scenario. On these facts, I cannot find that to have been an excessive use of force.

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. On this record, it is clear that the force used by the subject officer who brought the Complainant down with a football-style tackle fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention and to bring an end to the already far too lengthy foot pursuit.

In the final analysis, I am satisfied for the foregoing reasons that the pursuit and apprehension of the Complainant, and the manner in which they were carried out, were lawful notwithstanding the injuries which he suffered. I am therefore satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: June 7, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The was the Complainant’s estimate of the height of the fence which he jumped over near the American Consulate. [Back to text]