SIU Director’s Report - Case # 17-TCI-365
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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 the serious injury sustained by a 31-year-old man (the Complainant) during an interaction with police on December 13, 2017.
Notification of the SIUAt approximately 2:20 a.m. on December 14, 2017, the Toronto Police Service (TPS) reported that a man in custody (the Complainant) had sustained a serious injury.
The TPS further reported that on December 13, 2017, at 6:28 p.m., TPS officers received a call to the Walmart Store located at 3132 Eglinton Avenue East in the City of Toronto to deal with the Complainant, who was reportedly armed with a knife and had barricaded himself in a washroom.
Emergency Task Force (ETF) officers responded and extracted the Complainant from the washroom. The Complainant was taken to the police station, where the booking officer noticed he had abrasions on his face and appeared distressed. The Complainant was taken to the hospital where he was diagnosed with a broken rib.
The TeamNumber of SIU Investigators assigned: 3
Number of SIU Forensic Investigators (FIs) assigned: 1
Complainant:31-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
Witness OfficersWO #1 Notes reviewed, interview deemed not necessary
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
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Interviewed, notes received and reviewed
WO #9 Notes reviewed, interview deemed not necessary
WO #10 Notes reviewed, interview deemed not necessary
WO #11 Interviewed, notes received and reviewed
WO #12 Interviewed, notes received and reviewed
Subject OfficersSO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right
SO #3 Declined interview and to provide notes, as is the subject officer’s legal right
At approximately 2:30 p.m. on December 13, 2017, the Complainant again attended a Walmart store and entered the family washroom at 5:10 p.m. At approximately 6:00 p.m., the assistant manager knocked on the door and told the Complainant that he had five minutes to leave or the police would be called. The Complainant still refused to come out and, at 6:20 p.m., the TPS were called.
Initially WO #4 and WO #5 attended in response to the call, but the Complainant continued to refuse to exit the washroom when requested by the police officers to do so. When the police officers opened the washroom door, they were confronted by the Complainant, who was holding a knife in his right hand. The police officers retreated from the washroom, closed the door, and called for additional units to attend. The Complainant then re-locked the door from the inside.
The ETF arrived at the store at 7:15 p.m. and spent some time attempting to negotiate the Complainant’s exit from the washroom; when that failed, the ETF officers breached the door to the washroom. The Complainant was initially compliant until the handcuffs were going to be applied, at which point he became resistant and pulled his hands away. The Complainant was then taken to the floor, from a kneeling position, handcuffed, and removed from the washroom. A knife, which had been hidden behind an emergency light over the doorway, was recovered from the washroom after the Complainant was removed.
Nature of Injuries / TreatmentThe Complainant refused to sign an authorization for the SIU to obtain his medical records from the hospital. It was, however, confirmed by two of the police officers present when the Complainant was X-rayed and who spoke with the attending physician, that the Complainant had sustained a fracture to his fifth left rib.
The SceneThe scene was identified as a family washroom located within the Walmart store at 3132 Eglinton Avenue East, in the City of Toronto. This is a single use washroom situated between the men’s and ladies’ washrooms. Entry to the washroom is accessed through a single steel door, lockable from the inside, or from the outside with the use of a key. The scene was photographed and a scale diagram was completed by SIU FIs.
The white door in the centre of the photo leads to the family washroom.
Interior of Family Washroom
Interior of Family Washroom
The black handle of a knife as seen hidden behind the emergency light inside the washroom.
The knife once removed from behind the emergency light.
Forensic EvidenceNo submissions were made to the Centre of Forensic Sciences.
Walmart CCTV FootageCCTV video footage was obtained with a view looking directly at the Walmart washrooms. At 5:09 p.m., the Complainant is seen entering the family washroom with the door closing behind him. At 5:16 p.m., a member of the store security, CW #2, approached the door and listened for activity. At 5:30 p.m., CW #2 tried the door handle but it appeared to be locked. CW #2 tried the door again at 5:41 p.m. and again found it to be locked.
At 5:46, the assistant manager, CW #1, attended and also tried the door and found it to be locked. At 6:00 p.m., CW #1 and CW #2 knocked on the door and appeared to be trying to communicate with the Complainant.
At 6:50 p.m., WO #4 and WO #5 arrived. CW #1 unlocked the door with a key and the police officers attempted to enter. It appeared that the Complainant was pushing the door closed from the inside, but he cannot be seen on camera. Both police officers then entered the washroom, but immediately exited, closing the door behind them. WO #4 can be seen communicating on his police radio while WO #5 appeared to be speaking to the Complainant through the closed door.
At 6:58 p.m., additional uniformed police officers arrived and at 7:16 p.m. the ETF team arrived. The tactical officers attempted to open the door but it was obviously locked. At 7:42 p.m., the door was breached and seven tactical officers entered the washroom. The door closed behind them and the events occurring inside were not captured on camera.
At 7:46 p.m., the Complainant was escorted out of the washroom with his hands cuffed behind his back; he appeared to be walking without difficulty and no injuries could be seen on the video. The Complainant was turned over to WO #4 and WO #5 and escorted out of the camera’s view.
In-Car-Camera VideoThe in-car camera video was obtained from the police vehicle operated by WO #4 and WO #5 on December 13, 2017. The audio portion of the video appeared to be malfunctioning and no conversations between the occupants could be heard. The video shows the Complainant in the rear seat of the police cruiser being driven from the Walmart store to the police station, and then from the station to the hospital. The video was uneventful and nothing of evidentiary value was seen.
Booking VideoThe booking video obtained from the TPS has two components, the first recording depicts the Complainant’s initial arrival at the police station, while the second shows the Complainant returning from hospital.
The video began at 8:11 p.m. with WO #4 and WO #5 on either side of the Complainant in the booking hall. The Complainant’s hands were handcuffed behind his back; he was wearing white pants and a red bomber style jacket, but no shirt.
The booking officer, WO #9, asked the Complainant a series of questions but the Complainant did not respond to the questions, his speech was slurred, and he appeared not to understand what he was being asked. The Complainant eventually gave two false names to the booking officer. The Complainant was seen to be unsteady on his feet, wobbling back and forth while being supported by WO #4 and WO #5. The Complainant would not, or could not, answer WO #9’s questions and kept asking for a drink of water.
WO #9 directed WO #4 and WO #5 to take the Complainant to the hospital. At 8:17 p.m., the Complainant was shackled and walked out of the booking hall.
The second component of the booking video begins at 1:45 a.m. in the sally port at the police station. The Complainant is seen to be removed from the rear passenger seat of WO #5 and WO #8’s police vehicle. The Complainant was still shackled and now also handcuffed, with his hands in front of his body, and he appears to be holding his left side.
In the booking hall, the Complainant was more communicative than previously and was able to answer questions posed to him. When asked what his injuries were, he said, “Broken rib.” When asked how the injury occurred he said he fell to the floor. The Complainant was then taken to an adjacent room where a level three strip search was conducted. Following the search he changed into an orange jump suit. He could be seen holding his left side.
Communications RecordingsThe 911 call and the police transmissions recordings were obtained and reviewed.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the TPS:
- Audio Recording of Contact between the ETF and the Complainant;
- 911 Call from Walmart;
- Police Transmissions Communications Recording;
- In-car camera video of transport of the Complainant;
- Booking area video of booking in of Complainant (x2)
- TPS Scene Photos;
- Previous Police Contact with the Complainant;
- Duty Roster for ETF team;
- ETF Report;
- Event Details Report;
- General Occurrence Report;
- Computer Aided Dispatch (CAD) Event Details Report;
- Notes of WO #s 1-12 and one undesignated police officer;
- Photograph of Knife;
- Parade Sheets Report;
- Procedure: Incidents ETF;
- Procedure: Incidents Requiring ETF; and
- Summary of Conversation/Dispatcher Report.
The SIU obtained and reviewed the following materials and documents from other sources:
- Walmart CCTV footage.
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,
Section 2(1), Trespass to Property Act -- Trespass an offence
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
Section 9 (1), Trespass to Property Act – Arrest without warrant on premises9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.
Analysis and Director's Decision
At 6:45:22 p.m., the officers arrived at the store and, shortly thereafter, a police radio transmission was heard requesting the attendance of a police sergeant as the male in the washroom was armed with a knife. At 6:51:09 p.m., the Emergency Task Force (ETF) was dispatched to the store to deal with the male; numerous other units were also dispatched to assist with clearing the store, if necessary.
As of 7:15:48 p.m., the back-up units, as well as the ETF, began to arrive at the Walmart store. At 7:47:33 p.m., a radio transmission was received that the male had been taken into custody, following which he was transported to the police station, and thereafter to the hospital. X-rays taken at the hospital revealed that the Complainant had sustained a fracture to the fifth rib on his left side, but that no treatment was required other than a prescription for pain medication, after which the Complainant was returned to the police station.
During the course of this investigation, in addition to the Complainant, two civilian and eight police witnesses were interviewed, as well as one of the three subject officers, SO #2; the remaining two subject officers declined to make themselves available to be interviewed by SIU investigators and all three subject officers declined to provide their memorandum book notes for review, as was their legal right. In addition, SIU investigators had access to, and reviewed, the memo book notes of 12 witness police officers, an audio recording of the interaction between the ETF and the Complainant, as well as the 911 call and police transmissions recordings.
While the Complainant opted not to consent to the release of his medical records, it is clear from the information provided by the attending doctor at the time, as well as the X-rays which were taken in the presence of a police officer, that the Complainant had sustained a fractured rib. While there is some evidence, that being that the Complainant had some injuries to his face which appeared to have been pre-existing and which indicate that the Complainant may have been involved in some type of physical confrontation prior to his involvement with police on that date, I have proceeded on the basis that it is possible that the Complainant’s rib was injured during his arrest on December 13, 2017.
While there are several points of disagreement as between the accounts of the incident of the police and the Complainant as to what occurred on December 13, 2017, relating primarily to the actions of the Complainant, there is no material dispute as between the version of events provided by the Complainant, the civilian witnesses, and the police officers as to the actions of the involved police officers, or the amount of force that they resorted to in arresting the Complainant. A summary of the facts garnered from the reliable evidence follows.
At some point during the afternoon of December 13, 2017, and no later than 5:10 p.m., according to Walmart staff members, the Complainant locked himself into the family washroom inside the store. After several attempts to convince the Complainant to exit, and as he had a history of locking himself into the store washroom for hours at a time, at the request of the assistant store manager, CW #1, the loss prevention manager, CW #2, called 911 and requested police attendance in order to remove the Complainant from the washroom, and ultimately from the premises.
In response to the 911 call, WO #4 and WO #5 arrived at the store and also attempted to convince the Complainant to exit, but he continued to refuse to do so. CW #1 then provided the officers with a key to the washroom, following which they unlocked the door; the Complainant, however, was pushing on the door from the inside, attempting to prevent the officers’ entry into the washroom. According to WO #4 and WO #5, as soon as they pushed the door open and entered, they observed the Complainant standing to their right in an aggressive manner, with WO #4 observing that the Complainant had a knife. The Complainant then yelled out, “I have a knife!” whereupon WO #4 immediately pulled WO #5 out of the washroom. WO #5, as he was being pulled back by WO #4, also observed the knife, which was described as having a black handle and a silver blade of between three to five inches in length.
According to the Complainant, the object which he grabbed when the officers entered the washroom was a piece of metal from the wipes dispenser; however, both of the civilian witnesses heard WO #4 state, “He has a knife!” and a knife was later located hidden behind an emergency light over top of the washroom door. On the basis of this evidence, which directly and satisfactorily refutes the evidence of the Complainant, I am satisfied that the Complainant was indeed armed with a knife when WO #4 and WO #5 entered the washroom, and that he was holding it in his right hand in a threatening manner.
As soon as the officers backed out of the washroom, the Complainant again locked the door behind them. WO #4 then radioed for additional units while WO #5 attempted to engage the Complainant in conversation, through the locked door, asking the Complainant his name and why he had locked himself in the washroom, with the Complainant identifying himself with a false name and a false date of birth, and advising that he had locked himself in the washroom because Walmart staff had wanted him to come out before he was ready.
These events are all fully confirmed by the two independent civilian witnesses, as well as the recording of the police radio transmissions, in which the Complainant is identified as possibly being a party with the false name as provided.
Upon arrival of the ETF officers, an audio recording was commenced, wherein SO #1 is heard to attempt to build a rapport with the Complainant through the locked door; SO #1 is repeatedly heard to refer to the Complainant with the false first name provided and to try to convince him to exit, while letting him know that if he did not do so voluntarily, the police would have no other option but to force their way in and remove him. SO #1 is also repeatedly heard to ask the Complainant if he might be ready to come out on his own soon.
Finally, after negotiation over a fairly lengthy period of time, a decision was made by the ETF team that the door would be breached and that the officers would enter and forcefully remove the Complainant. At 7:43 p.m., a device known as a ‘Rabbit’ (a hydraulic door-opening device) was used to open the washroom door in a slow and controlled manner, whereupon the Complainant was immediately seen standing inside the washroom facing the police. SO #1 ordered the Complainant to move to the back wall, following which SO #1 entered the washroom, followed by SO #3, who was equipped with a shield, and SO #2, who was armed with a ‘BIP’ (a ‘Blunt Impact Projectile’, a long gun which fires less lethal projectiles, such as rubber bullets or beanbags).
According to the Complainant, he recalled a police officer talking to him through the closed door and telling him that the police were going to come in, following which ten or 12 ‘SWAT’ officers entered the washroom, he was ordered to go to the back wall, and he complied with their directions. He was then taken down onto the floor, but could not recall how that was done, following which he was handcuffed and turned over to WO #4 and WO #5, who took him to the hospital. The Complainant recalled that once at the hospital, he was X-rayed and told that he had a broken rib, which the Complainant attributed to his being taken to the floor by the ETF officers. The Complainant does not allege that he was ever punched, kicked, or otherwise injured by the police in any way.
The evidence of the Complainant is consistent in this regard with that of the ETF officers present, who all agree that once the door was opened, SO #1 issued clear commands for the Complainant to go to the rear wall of the washroom and to turn and face the wall in a kneeling position, with both hands on his head, which the Complainant then did. SO #3 then advanced toward the Complainant, while holding a large shield extended in front of him, with which he pressed the Complainant against the wall.
SO #1 then advanced and took hold of the Complainant’s left wrist/arm, while SO #2 took the Complainant’s right wrist. SO #3 then started to ease the pressure on the shield, by which he had been holding the Complainant in place, and the Complainant was seen to be on his knees, with his back to the ETF officers and his hands above his head. As the pressure on the shield eased, the Complainant snatched his right hand away from SO #2 and turned, so that his right shoulder was now closest to the wall, and he was perpendicular to the wall, rather than facing it. Because the Complainant was now non-compliant, and the knife had not yet been located, the Complainant was forced to the ground from his kneeling position. The Complainant was then seen to be face down on the floor with his right arm pinned underneath his body.
While SO #2 had been somewhat hampered by the ‘BIP’, which he had on a sling around his neck, WO #2 then moved in and took the ‘BIP’ from SO #2, allowing SO #2 to use both of his hands to regain control of the Complainant’s right hand and to pull it out from underneath his body and behind his back, where he was then handcuffed. No punches, kicks, distractionary blows, or use of force options were used by any officer against the Complainant, with the only force used being to initially pin him with the shield, and then to take him to the ground from a kneeling position. The Complainant was then turned over to WO #4 and WO #5, who transported him first to the police station and then to the hospital, where he was assessed and it was discovered that he had sustained a fractured fifth rib.
While the Complainant had no recollection of going to the police station prior to being taken to hospital, that evidence is confirmed by both the in-car camera video from the scout car of WO #4 and WO #5, as well as the booking video from the police station. Of particular note on the booking video, is that the Complainant is non-communicative; when he speaks, his speech is slurred and he appears to be incapable of understanding the questions asked of him, he provides two different false names while identifying himself, and he is unsteady on his feet and is seen to be wobbling back and forth while being supported by WO #4 and WO #5, at which point the booking staff sergeant directs the officers to take the Complainant to the hospital. On the basis of this additional evidence, in addition to the finding of the knife and the evidence of the two civilian witnesses, I find that the Complainant’s evidence, while substantially consistent with that of the other witnesses, is not reliable in at least these two identified aspects, which indicate to me that the Complainant does not have an accurate recollection of events. As such, where his evidence differs from that of the other witnesses, I reject his evidence in favour of that of the other witnesses.
Despite that, however, there is some evidence that the Complainant was seriously injured during his interaction with police, requiring an assessment to determine whether or not the actions of SO #2, SO #1, and SO #3, 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.
Pursuant to s. 25(1), a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the three subject officers to qualify for protection from prosecution pursuant to s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary in executing that lawful duty.
Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information provided by the 911 caller, as confirmed at the scene by CW #1 and CW #2, that SO #1, SO #2, and SO #3, had reasonable grounds to believe that the Complainant was in breach of s. 2 (1) of the Trespass to Property Act (TPA) when he failed to leave the family washroom when directed to do so by CW #1 and CW #2, and that the officers were thereafter authorized, pursuant to s. 9 of the TPA, to arrest and remove the Complainant from the property. As such, the apprehension and subsequent arrest of the Complainant by all three officers was legally justified in the circumstances.
An assessment of the use of force resorted to by the three subject officers, then, requires an assessment of whether pinning the Complainant with the shield, and then taking him to the floor from a kneeling position when he became non-compliant with the police officers, and with the knowledge that the Complainant had been earlier seen armed with a knife, although the knife had not yet, at that time, been located, amounts to an excessive use of force. On these facts, I cannot find that these actions, despite the possible injury to the Complainant (I say possible, because there is some evidence that he may have had some pre-existing injury), amounted to an excessive use of force on the part of any of the officers who dealt with the Complainant. In fact, I find that the actions of these three officers, and all of the officers who interacted with the Complainant, exhibited calm, patience, and professionalism, and that no more than the minimal force required was used to contain and possibly disarm the Complainant, before anyone came to harm.
In making this finding, I have considered the direction from the Supreme Court of Canada as set out in R. v. Nasogaluak  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, while it is quite possible that the Complainant sustained his serious injury when he was taken to the ground by the three subject officers, the evidence does not satisfy me that there are any grounds, reasonable or otherwise, to find that this action amounted to an excessive use of force in these circumstances or that any of the involved officers acted outside of the limits of the criminal law when they restrained and apprehended a resistant male who had earlier been seen to be armed with a dangerous weapon. As such, as I lack the bases for the laying of criminal charges, none shall issue.
Date: December 7, 2018
Original signed by
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.