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 complainant 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 complainant 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 took place on May 20, 2017 involving officers from the Toronto Police Service (TPS) in which a 54-year-old man is alleged to have sustained a serious injury.

Notification of the SIU

The SIU was notified of the incident by the Complainant on May 24, 2017 at 11:00 a.m. The Complainant reported a custody injury he received on May 20, 2017 at a condo building. The TPS was notified of the custody injury. SIU investigators met with the Complainant on May 31, 2017 and he provided a statement.

It is alleged that a TPS officer pushed the Complainant’s head into a wall and mirror, causing a laceration to his forehead and a mild concussion.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Not interviewed[1]

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Not interviewed[2]

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

Additionally, the notes from two non-designated officers were received and reviewed.

Subject Officers

SO interviewed, and notes received and reviewed

The Scene

The scene was located in the hallways of a condominium, between the elevator doors on the 17^th floor. There were four elevator doors with two on each side of the hallway and a mirror on each side of the hallway, between the elevator doors.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences

Video/Audio/Photographic Evidence

Elevator Surveillance Videos from the Condominium (May 20, 2017)

There were four elevators involved and all had video recording equipment on the ceiling of the elevator, which recorded the interior of the elevator. The following is a chronological account of police officers, paramedics and the Complainant entering and exiting the elevators.

Surveillance Video from Hotel

On Saturday, May 20, 2017, at 5:50:30 p.m., the Complainant entered the front lobby of a hotel. He was dressed in the same clothing as seen in the elevator video from the condominium. He carried a guitar case in his left hand and shopping bags in his right hand. His back was to the camera and his face was not seen. He was seen on a different camera walking in a hallway near the elevators but no detail of his face was seen, due to his distance from the camera.

Communications Recordings

On May 20, 2017, at 4:47 p.m., both the Complainant and CW #2 called the police. CW #2 said that the Complainant tried to get into her unit and that he stated he was going to hang himself with a shower curtain. The Complainant alleged that his son, CW #1, had assaulted him. He said CW #1 pushed him against a wall and he banged his head against a metal door frame. An ambulance was dispatched for the threatened suicide.

WO #1 was dispatched and arrived at the building at about 5:10 p.m. He spoke with the Complainant, who was seated in the hallway outside CW #1 and CW #2’s unit. The Complainant explained to the officer that he was trying to pick up his belongings. WO #1 knocked on the door and spoke with CW #1 and CW #2, who expressed ongoing concerns about the Complainant’s deteriorating mental health and aggressive behaviour. CW #1 advised that his father had thrown a guitar case in his direction. CW #1 and CW #2 wanted the Complainant to be arrested but WO #1 advised there were no grounds to arrest him. The Complainant spoke with two paramedics, CW #4 and CW #5, in the hallway and was not observed to have any visible injuries or blood on him. Soon two additional officers, the SO and WO #2, arrived. WO #1 told them that no charges were going to be laid but the Complainant had to leave the building. The paramedics left because the Complainant refused their assistance.

While in the hallway, the Complainant explained to the SO and WO #2 that his son had assaulted him. According to the SO, when she told the Complainant that he had to leave the building he became argumentative. The Complainant showed no indication that he had consumed alcohol or drugs. WO #2 reported hearing the SO ask the Complainant to leave several times. The SO carried two bags of his personal property and a guitar case to the elevator area. The Complainant wanted his writing materials, so she returned to the apartment to obtain them for him. He then wanted a ceramic mug but she told him that he would have to deal with that later. The SO observed the Complainant becoming increasingly belligerent. He threated to complain to the police chief. The Complainant walked towards the elevator and then back in the direction of the officers multiple times. The last time he turned around and walked towards them, he told the SO and WO #2 not to shoot any more “black kids” and to watch out for snow plows, in reference to a TPS officer who was killed when he was run over by a stolen snow plow. Although the Complainant was not aware of this, the SO had known the officer who was killed and was upset by these comments.

The SO took hold of the Complainant by the left arm and asked him if he thought he was funny as she attempted to escort him from the building. WO #2 described the SO as holding his shoulders from behind. The Complainant collapsed on the floor in the hallways and would not move despite the SO’s requests. WO #2 was watching from down the hallway and approached them to assist. WO #1 heard a commotion in the hallway, so left the unit to investigate. He saw that the SO had physical control of the Complainant by holding him up against and facing a wall. Although WO #2 recalled taking hold of the Complainant by the right arm while the SO was holding the left arm and together walking him into the elevator, the CCTV depicted only the SO escorting the Complainant into the elevator. WO #1 assisted by loading the Complainant’s belongings into the elevator. The Complainant wanted to sit on the elevator floor so the officers allowed him to do that. WO #2 recalled him stating that his knees felt weak. Once in the lobby, the Complainant walked out of the building on his own carrying his property with him. The SO and WO #2 left him on the sidewalk with his bags of property and told him he was not allowed to return to the condominium. Neither the SO, WO #1 or WO #2 saw any injury on the Complainant’s head.

At 6:05 p.m. CW #1 called an ambulance for the Complainant who was in a room at a nearby hotel. The Complainant had told his son that the police officers assaulted him and he thought he had a concussion. Two paramedics, CW #8 and CW #9, took the Complainant to a hospital where he received two staples to close a laceration to his forehead above the hair-line. He complained to a police officer at the hospital that the SO had banged his head into the walls of the hallway, the elevator door frame and the mirrors. The next day the Complainant fainted and attended the hospital for a second time, where he was diagnosed with having a mild concussion.

The SO denied striking the Complainant’s head into the walls or mirrors. WO #2, who was present during the interaction and who recounted having an unobstructed view, also reported that this act did not occur. Additionally, WO #1 did not see either the SO or WO #2 strike the Complainant, although he was not in the hallway for much of the interaction. Unfortunately, there were no video cameras or other witnesses in the condo hallways at the time who saw what occurred.

Section 2(1), Trespass to Property Act - Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,

1. without the express permission of the occupier, the proof of which rests on the defendant
   1. enters on premises when entry is prohibited under this Act, or
   2. engages in an activity on premises when the activity is prohibited under this Act; or
2. 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

is guilty of an offence and on conviction is liable to a fine of not more than $10, 000.

Section 9(1), Trespass to Property Act - Arrest without warrant

9 (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.

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.

In the late afternoon on May 20, 2017, the Complainant was forcibly removed from a condo building by members of the TPS. Following this encounter, the Complainant required two staples to close a laceration on his forehead and was diagnosed with a concussion. It is alleged that the SO took hold of the Complainant and banged his forehead, face first, on two occasions into the mirrors by the elevators. For the reasons that follow, I am unable to form reasonable grounds to believe that the SO committed a criminal offence in relation to the injuries sustained by the Complainant.

During the course of the investigation, the SIU interviewed seven civilian witnesses and six witness officers, who also provided a copy of their notes. Additionally the SO voluntarily provided an interview and copy of her notes. CCTV footage was obtained and reviewed from the elevators in the condo building and the lobby of a hotel. There was no video available from the condo hallways or interior of the hotel elevators. The TPS event reports and communication recordings, including calls to police, were reviewed. Medical records from the hospital and EMS were also obtained and reviewed.

I will first address the issue of whether the SO had the lawful authority to physically escort the Complainant from the condo building. I find that the SO was acting in the course of her lawful duty when she physically handled the Complainant. She had been directed by WO #1 to ensure the Complainant left the building, although he was not to be arrested. The Complainant remained despite her requests that he leave, which was affirmed by WO #2. Pursuant to section 2 of the Trespass to Property Act (TPA), it is an offence to fail to leave a premises immediately after being directed to do so by the occupier of the premises or a person authorized by the occupier. Furthermore, section 9(1) of the TPA allows for a police officer to arrest without warrant anyone who is believed on reasonable grounds to be on the premises in contravention of s. 2 of the TPA, when they have been directed to leave by someone who is responsible for the control of the premises. As a result, although the SO did not arrest or ticket the Complainant for trespassing, in my view she had the authority to do so if she directed him to leave and he refused. Additionally, the involved officers technically had the authority to arrest both the Complainant and CW #1 for assaulting one another, although given the circumstances WO #1 made a reasoned and measured decision to proceed otherwise.

I now turn to whether the amount of force the SO used to gain control and escort the Complainant from the building was reasonable. Section 25(1) of the Criminal Code limits the force an officer may use to that which is reasonably necessary in the circumstances in the execution of their lawful duties. Although I do not doubt that the Complainant’s comments about the snow plow played into the SO’s loss of patience and timing of her decision to physically escort the Complainant outside, I do not believe there are reasonable grounds to believe that the SO committed a criminal offence. There was no physical or witness evidence to support the allegation, other than from the Complainant and his son. I have some concern about the reliability of the Complainant and CW #1’s statement. Given the familial relationship, I find it of limited value because he did not see the altercation. Likewise, the Complainant’s statement demonstrated issues with the completeness of his recollection and varied from the allegations he made at the hospital.

Furthermore, there is ambiguity as to whether some or all of the injuries to the Complainant’s head occurred prior to, during or subsequent to his interaction with the SO. The video recording from the condo elevator showed no visible blood on his forehead and no indication from his behaviour that he had suffered a laceration to his forehead.

It is clear from the elevator video that the SO used some physical force in her dealings with the Complainant. Yet, the jurisprudence has clearly stated that the standard to which officers are to be held is not perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are they expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)). The SO engaged the Complainant physically when he was not responding to her requests to leave the building in a timely manner. After what the SO viewed as confrontational behaviour towards the officers, she decided it was time to take hold of his arm and escort him out of the building herself. She then claims he sank to the ground and resisted their efforts to have him leave the building. The Complainant, supported by the evidence of his son, claims he was then subjected to an assault which both involved officers deny. I am left questioning what actually occurred. Given the frailties in the evidence, I am unable to form an opinion as to whether the statements of the involved officers, or the Complainant or his son, are the truth.

Based on the record, I am unable to form reasonable grounds for a finding of excessive force by the SO. The evidence provides uncertainty as to the timing and mechanism of the injury to the Complainant’s forehead and his concussion. Additionally, the weaknesses in the Complainant’s recollection and the SO and WO #2’s denial of the assault leave me with uncertainty about what actually transpired. I am therefore unable to conclude that the SO bears any criminal liability for her actions during her encounter with the Complainant. As such, no charges will be laid and this case will be closed.

Date: May 8, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Determined to have no investigative value. [Back to text]
• 2) [2] Determined to have no investigative value. [Back to text]