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 an incident that occurred in Toronto on March 12, 2016 when a 22-year-old man who was arrested by Toronto Police Service (TPS) officers and was taken to hospital where he was diagnosed with a fractured left fibula.

Notification of the SIU

The SIU was notified of the incident by TPS on March 13, 2016 at 3:10 a.m. TPS reported that on March 12, 2016, police officers arrested a man at Yonge and Edward Streets after citizens reported that he was seen jumping on and off of cars in the area. The man was taken to hospital. At 1:45 a.m. on March 13^th, TPS learned that the man was diagnosed with a fractured left fibula. TPS added that the man had resisted treatment of his injury, and had to be heavily sedated.

At 9:25 a.m., TPS reported that the man was en route from hospital to the police station, and then to court for a show cause hearing on charges of sexual assault and mischief related to this incident.

The team

Number of SIU Investigators assigned: 3

Complainant

22-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

WO #4 Notes reviewed, interview deemed not necessary

WO #5 Interviewed

Subject officer

SO Interviewed, and notes received and reviewed

Video/audio/photographic evidence

CCTV footage was recovered from a camera situated inside a nearby 7-Eleven store that focused in an easterly direction towards Yonge Street. The images captured of activity outside the store were of poor quality, as the camera images were affected by reflections off the store windows from within the store.

A summary of the footage is as follows:

9:01:00 p.m., a number of males congregate outside the entrance to the store;
9:02:54 p.m., a brown SUV travels southbound on Yonge Street and stops outside the entrance doors to the store. A store employee was standing at the door and holding it partially open;
9:03:01 p.m., the front of the brown SUV appears to dip downwards;
9:03:03 p.m., the legs of an unidentified person [now believed to have been the Complainant] are visible on the roof of the brown SUV;
9:03:08 p.m., the brown SUV moves forward slightly and stops;
9:03:11 p.m., the Complainant jumps off the roof of the brown SUV at the rear passenger side and appears to fall onto the sidewalk;
9:03:18 p.m., the brown SUV drives south on Yonge St and out of camera view; and
9:04:07 p.m., a marked TPS cruiser [now known to be the SO and WO #1] travels south on Yonge Street past the store entrance.

Materials obtained from Police Service

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

• COMM-Summary of Conversation
• Fullcase (Crown Brief)
• General Occurrence Reports
• General Occurrence Hardcopy
• ICAD (Intergraph Computer Aided Dispatch) Reports
• Injury Illness Report
• Notes for WO #1, WO #2, WO #3 and WO #4
• Parade Sheets
• Policy -Use of Force; and
• Witness Statement - CW #2

At approximately 9:10 p.m. on March 12, 2016, the SO and WO #1 were in a marked police cruiser on Yonge Street, just south of Edward Street, when they were stopped by CW #2. CW #2 informed the police officers that he had been stopped in the curb lane south bound on Yonge Street just north of Edward Street when a male pedestrian, later identified as the Complainant, had climbed onto the roof of his vehicle. The SO observed the roof of the SUV and saw that it had a large dent. CW #2 gave the police officers a description of the Complainant, and the fact that he was last seen walking north on Yonge Street.

While the officers were speaking with CW #2, they were approached by another individual who told them the Complainant was standing outside the 7-Eleven store on the west side of Yonge Street. The officers went to the 7-Eleven store where the Complainant was observed standing with a group of other males outside the store. As the officers approached the Complainant, CW #1 told the officers that the Complainant had grabbed her.

The SO and WO #1 then each took control of one of the Complainant’s arms and arrested him for mischief to property and sexual assault. The SO walked the Complainant to the cruiser. While in the cruiser, the Complainant, who was intoxicated, vomited. As a result, an ambulance was called and the Complainant was taken to hospital.

While at hospital, the Complainant complained about pain in his leg and an x-ray was taken. He was diagnosed with a fractured left fibula. He was treated and released back into TPS custody. The Complainant alleges that the fracture occurred as a result of his arrest by the SO.

Video obtained from the 7-Eleven store confirmed that at 9:03:11 p.m., the Complainant jumped off the roof of the SUV and appeared to fall onto the sidewalk.

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.

On March 12, 2016, shortly after 9:10 p.m., the SO and WO #1 of the TPS arrested the Complainant for the offences of mischief to property and sexual assault. It is alleged that during the course of the Complainant’s interaction with police, he received a fractured left fibula and that it was caused by the excessive use of force of the SO.

This incident was observed by two civilian witnesses. Neither witness observed any issues with the arrest or that the Complainant resisted or fought with the SO. Nor did either indicate that the Complainant was taken to the ground or struck by any police officer.

The SO’s statement was consistent with that of the two civilian witnesses. He advises that on March 12, 2016, he was working in uniform with his partner, WO #1, when he was approached at approximately 9:10 p.m. by CW #2 and told that the Complainant had climbed onto the roof of his SUV. The officer observed the roof of the SUV, which was approximately two metres off the ground, and saw that it had a large dent. The SO further confirmed that they were approached by a bystander and told where the Complainant could be found. The SO advised that as they approached the Complainant to place him under arrest, CW #1 told them that the Complainant had grabbed her. The officers then each took control of one of the Complainant’s arms and the SO told him that he was under arrest for mischief and handcuffed. The Complainant was cooperative, did not resist and at no time did the officers take him to the ground. The SO confirmed the evidence of the two civilian witnesses that he alone walked the Complainant to the cruiser because he was being cooperative, while WO #1 spoke to CW #1 about her allegations.

The SO described the Complainant as being intoxicated and he vomited in the back of the cruiser at one point, as a result of which an ambulance was called and the Complainant was taken to hospital. The SO advised that he was relieved in his duty of watching the Complainant by other officers and as such he left the hospital before ever discovering that the Complainant had sustained an injury to his leg.

The evidence of the SO is corroborated by that of WO #1. In addition, WO #1 advised investigators that he actually observed the Complainant appear to wrestle or almost maul CW #1, and that CW #1 looked panicked as she tried to escape from the Complainant. WO #1 stated that at that point, he and the SO each took the Complainant by an arm and put him up against the wall and told him he was being arrested for mischief. WO #1 also described the Complainant as being intoxicated. He told investigators that the Complainant was handcuffed by the SO and neither officer had to use physical force or grounded the Complainant, as he did not struggle or resist the officers but rather was fully cooperative.

A third police officer, WO #3, who happened to be in the area at the time of the initial mischief offence, indicated in his statement that he observed the Complainant climb up onto an SUV, walk along the roof towards the back of the vehicle, and jump off, hitting the ground and falling, before standing back up. WO #3 approached the 7-Eleven store in front of which this incident had occurred and requested a copy of their surveillance video. WO #3 and his partner, WO #2, relieved the SO and WO #1 at hospital. WO #3 advised that he observed the Complainant at that point to be heavily intoxicated. The Complainant told these officers that he needed an x-ray as his left leg was injured, but he at no time told officers how he had sustained the injury. The Complainant was diagnosed as having a left fractured fibula.

The video from the 7-Eleven store confirmed that at 9:03:11 p.m., the Complainant jumped off the roof of the SUV and appeared to fall onto the sidewalk.

On a preponderance of the evidence, I find that the injury to the Complainant’s leg was likely caused when he jumped from the roof of an SUV from a height of approximately two metres and fell onto the pavement below. The evidence of the civilian witnesses and the police officers alike was that no force other than that required to place the Complainant into handcuffs was required or used by officers. None of the civilian witnesses described the Complainant as resisting or that the officers struck or grounded the Complainant during their contact with him. The allegation of excessive use of force comes from the Complainant alone, and is inconsistent with all of the other evidence and is internally inconsistent in that the Complainant provides three different alternatives as to how his injuries occurred, none of which is consistent with the statement of any independent witnesses who observed the interaction with police.

Although the SO concedes that he may have accidentally partially caught the Complainant’s foot with the cruiser door when attempting to close it, I do not find that this is consistent with the injury suffered by the Complainant especially in light of the fact that the Complainant made no complaint of injury at that time and neither of the civilian witnesses indicated that they saw or heard anything unusual when the Complainant was placed into the car. The SO also confirmed that the Complainant made no complaint at that time.

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 from the statements of the civilian witnesses as well as the independent observation of WO #1 and positively confirmed by the surveillance video from the 7-Eleven store that the Complainant was engaging in criminal activity just prior to his arrest. As such, the arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in arresting the Complainant, I find that they used minimal, if any, force to arrest the Complainant, using only what was minimally required to handcuff the Complainant and place him into the police car. This is fully supported by the statements of the independent witnesses as well as the actions of the officers themselves in having only the SO escort the Complainant to the car, in light of the fact that he was being so cooperative and compliant.

I also find that it is more than likely that the Complainant suffered his injury when he jumped from the roof of the SUV and fell to the pavement; however, even if it were caused by the efforts of the officer to get the Complainant’s legs into the car, which I find highly unlikely, I cannot find that to have been an excessive use of force. On this record, it is clear that the minimal force used by both the SO and WO #1 fell well within the range of what was reasonably necessary in the circumstances to effect the Complainant’s lawful detention.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention and the manner in which it was carried out were lawful notwithstanding the injury which he suffered, even were I to find that the officers caused the injury, which I am not inclined to do. 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: August 11, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit