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 13-year-old male during his arrest on June 30^th, 2017.

Notification of the SIU

At approximately 4:30 p.m. on June 30^th, 2017, the Toronto Police Service (TPS) notified the SIU of the custody injury sustained by the Complainant at 12:10 p.m. on that same date.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, and photography.

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Not interviewed, (parent)

CW #5 Interviewed

CW #6 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Notes reviewed, interview deemed not necessary

WO #4 Notes reviewed, interview deemed not necessary

WO #5 Notes reviewed, interview deemed not necessary

WO #6 Interviewed, notes received and reviewed

WO #7 Notes reviewed, interview deemed not necessary

WO #8 Notes reviewed, interview deemed not necessary

WO #9 Notes reviewed, interview deemed not necessary

WO #10 Notes reviewed, interview deemed not necessary

WO #11 Notes reviewed, interview deemed not necessary

WO #12 Notes reviewed, interview deemed not necessary

WO #13 Notes reviewed, interview deemed not necessary

WO #14 Interviewed, notes received and reviewed

WO #15 Interviewed, notes received and reviewed

WO #16 Notes reviewed, interview deemed not necessary

WO #17 Interviewed, notes received and reviewed

WO #18 Interviewed, notes received and reviewed

WO #19 Notes reviewed, interview deemed not necessary

WO #20 Interviewed, notes received and reviewed

WO #21 Notes reviewed, interview deemed not necessary

WO #22 Interviewed, notes received and reviewed

Subject Officers

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

On Friday, June 30^th, 2017, police officers from various units of the TPS investigated an armed robbery involving a handgun. One suspect was arrested and an imitation handgun was recovered. Information was received that two suspects were still outstanding and one of the suspects was identified as Civilian Witness (CW) #6. Recorded video was obtained from surveillance cameras at an apartment building where CW #6 was known to be. The video showed that CW #6 left the building shortly before the robbery and he returned to the building shortly after the robbery, with the Complainant. Information was further received about the apartment number where the suspects were located. WO #20 was detailed to author a search warrant for the apartment. Information was received that multiple persons were in the apartment and it was believed that they had access to at least two firearms.

The Emergency Task Force (ETF) was requested for the execution of the search warrant, as a safety precaution and to prevent the destruction of evidence. The ETF was accompanied by three police officers from the Public Safety Emergency Response Team (PSERT) and two tactical paramedics. At 1:09 p.m., the door was breached and a distractionary device (DD) was deployed. WO #2 was the first police officer to enter the apartment, followed by the Subject Officer (SO), and both police officers entered the living room area.

WO #2 observed a man at the balcony door who resembled CW #6. As the officer approached the balcony door, the Complainant sat up in bed. As WO #2 apprehended CW #6 on the balcony, he heard the SO, from somewhere behind him, give commands to the Complainant to show his hands. The SO struggled with the Complainant and the SO pulled the Complainant off the bed. The SO then told the Complainant to put his hands behind his back, but the Complainant thrashed about and grabbed onto the SO’s left thigh. The SO delivered a single, downward, left handed closed fist strike to the side of the Complainant’s head. The SO then stood over the Complainant while WO #1 handcuffed the Complainant. Due to his physical appearance, it was not immediately apparent that the Complainant was only 13 years of age, as he looked older.

The Complainant was bleeding from his nose and lip, and his right eye was swollen. He was transported to the hospital where he was diagnosed as having sustained a fractured right orbital bone (a bone in the eye socket).

The Scene

The scene of this incident was an apartment in a mid-rise apartment building in the City of Toronto. The apartment was located at the north end of the hallway. The scene was examined on Tuesday, July 4^th, 2017. The entrance door had a passage entrance latch and deadbolt, which had been damaged. There was a wooden patch over the damaged area and the interior of the door was heavily damaged. The doorway opened to a small hallway that ran west to a combination living room/dining room, which occupied the northeast side of the apartment. There was a patio door on the north wall that opened to an outdoor balcony. The apartment was relatively tidy and had been cleaned up since the occurrence date of June 30^th, 2017. There was a single bed in the northeast corner and there was a multi-coloured, fitted sheet and a medical gauze pad, which were both stained with blood, located on the floor. A hallway led from the living room to three bedrooms and a bathroom. The entrance doors to these rooms showed evidence of new and old damage. Closet doors in the bedroom had been removed and also showed evidence of damage. Photographs were taken of the apartment and surrounding area.

Video/Audio/Photographic Evidence

Booking Video

The SIU was provided with video recordings from the sally port and the booking area at the TPS division from June 30^th, 2017. At 7:21 p.m., a police officer opened the rear driver’s side door of the police vehicle and the Complainant got out of the back seat and walked into the booking room. The booking sergeant asked the Complainant how old he was and the Complainant told her he was 13-years-old. The booking sergeant was then told that the Complainant’s mother was aware where the Complainant was and that he had spoken to her.

The escorting police officer stated that the Complainant had been at the hospital for a preliminary checkup regarding his eye injury. The police officer described the injury as superficial and that the technical term was a bruise to the orbital bone. The booking sergeant asked if it was a bruise or a fracture and the police officer advised that the orbital bone had a blowout fracture. The booking sergeant told the police officers to file an injury report or check to see if one had been filed. The booking sergeant asked the Complainant a series of questions and a level three search (strip search) was authorized. The Complainant did not indicate on camera how he received his injury and there was no video content that had any evidentiary value regarding how the Complainant was injured.

Communications Recordings

Communications Summary

The TPS radio communications pertaining to the call wherein the Complainant was located on June 30^th, 2017 was obtained and reviewed. The communications of the involved TPS units were recorded before and after the search warrant was executed. The communications pertained to observations of the address prior to the search warrant and to the transportion of the arrested parties following the execution of the search warrant. There were no communications from the ETF as they entered and secured the persons found in the apartment. There were no communications containing any evidentiary value regarding how the Complainant received his injury.

Materials obtained from Police Service

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

• Communications Summary of Conversation
• Event Details Reports
• Full Case-R v The Complainant and CW #6
• List of Involved Officers
• Notes-WO #s 1-22
• Procedure: Incidents Requiring the Emergency Task Force
• Procedure: Appendix A, Provincial Use of Force Model
• Procedure: Appendix B, Provincial Use of Force Model
• Procedure: Use of Force, and
• Search Warrant (Copy)

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 343, Criminal Code – Robbery

343 Every one commits robbery who

1. steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property
2. steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person
3. assaults any person with intent to steal from him; or
4. steals from any person while armed with an offensive weapon or imitation thereof

Section 344, Criminal Code – Robbery with Firearm

344 (1) Every person who commits robbery is guilty of an indictable offence and liable

1. if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
   1. In the case of a first offence, five years, and
   2. In the case of a second or subsequent offence, seven years

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

2. in any other case, to imprisonment for life

On June 30^th, 2017, a search warrant was judicially authorized to search a premises in an apartment in the City of Toronto, for evidence of an armed robbery involving a handgun. As a result of information received, police believed that the subject of their investigation, Civilian Witness (CW) #6 was in the apartment as he had previously been seen leaving the apartment building just prior to the robbery, and was seen to return to the apartment building just after the robbery.

Due to the nature of the crime which was the subject of the search warrant, and the belief that at least one, if not two, firearms would be found in the apartment, it was determined that for the safety of all officers involved, the Emergency Task Force (ETF) would enter the apartment first and clear the apartment for the officers who were to follow to search. It was also determined that the entry into the apartment would be a ‘dynamic entry’ meaning that the officers would not first knock and announce themselves, but would breach the door, followed by the deployment of one or more distractionary devices (DD also referred to as a ‘flash bang’ device). The purpose of the dynamic entry was to take the occupants by surprise and avoid the possibility that the occupants would have time to arm themselves, thereby avoiding a possible loss of life.

The entry team consisted of eight members of the ETF, three members of the Public Safety Emergency Response Team (PSERT) and two tactical paramedics. Once the apartment was cleared and all occupants handcuffed, the search team from the Major Crime Unit (MCU) would enter and search the apartment and transport any arrested parties back to the station.

As the door was breached, WO #2, who was responsible for covering the officers breaching the door, shouted out several times “Police! Search warrant!” As soon as the door was forced opened, a DD was deployed inside the apartment. Once inside the apartment, the police officers separated, with each moving to a different area and taking control of a different occupant. WO #2, the first officer to enter, went to the living room where he observed CW #5 on a couch, CW #6 on the balcony, and the Complainant on a bed. WO #2 directed everyone to show their hands and he went onto the balcony where he told CW #6 to get on the floor of the balcony and he forced him down.

WO #2 heard the Subject Officer (SO) giving the Complainant several commands and observed him to struggle with the Complainant and pull him from the bed while repeatedly stating “Show me your hands, show me your hands.”

While the SO did not provide a statement, as was his legal right, from this point forward there are three different versions of events provided as to how the Complainant came to be injured.

The first is from the Complainant. The Complainant alleged that he had been sleeping on the bed in the living room when he was awakened by two explosions in the apartment and that the apartment door then broke open. He indicated that he sat up in bed and was disoriented. He described between 15 and 20 police officers then entering the apartment and yelling at everyone to get on the floor by indicating “get the fuck up and get the fuck on the floor.” Having indicated that he heard these shouts, however, he then indicated that he did not hear the officers’ commands because he had just woken up.

He described the police officer who dealt with him, who he indicated was the first police officer into the apartment, as a white male, in his mid-thirties, with blond hair in a Mohawk style, a beard, and tattoos on both of his arms and his neck.

The Complainant stated that this officer handed his rifle to another police officer and then grabbed the Complainant by the chest area and threw him to the floor; he later indicated that he had been grabbed in the shoulder area. The Complainant then landed on the floor on his left side with the right side of his face exposed, and he tried to push himself up, while the police officer stomped his foot hard onto the right side of the Complainant’s face, in the area of his right eye. The officer then kept his foot on the Complainant’s face for about three minutes, while the Complainant began to bleed from his nose. The officer then eventually took his foot off of the Complainant’s face and went onto the balcony. Later, a Pakistani looking police officer got the Complainant off the ground, handcuffed him, and walked him out of the apartment.

The second version of events is from a civilian witness inside the apartment, CW #5, who was on the couch in the living room. She stated that she was awakened by a loud bang, which she described as a smoke bomb that exploded in the apartment, following which she observed five police officers dressed in black uniforms with the word “SWAT” written in white on their vests, enter the living room. The SWAT officers yelled, “Police! Get on the ground!” and she was approached by a police officer with a British accent who yelled at her to get on the ground. She saw CW #6 run towards the balcony and two police officers followed him. She also observed a tall police officer approach the Complainant’s bed and she heard the Complainant say, “Don’t touch me.”

CW #5 next saw the Complainant on the floor, although she did not see how he came to be on the floor. He was not handcuffed at that time. She observed the tall police officer with an elbow or knee on the Complainant’s back and a second police officer, with a white beard, approached the Complainant and argued with him, while the first tall police officer then stood up and delivered two hard kicks, with his right leg, toward the right side of the Complainant’s face. CW #5 described the force of the kicks as the first being an eight on a scale of one to ten, and the second being a nine, and she described the kicks as being similar to the kick of a football at the start of a game, which I take to mean that it involved the officer pulling his leg back in order to gain momentum, and then swinging it forward to make contact with the Complainant’s face. CW #5 then asked the Complainant if he was okay, and he indicated that he was not. The Complainant was then handcuffed and told to look toward the bed. He was later escorted out of the apartment by a police officer.

The third version of events is as described by WO #1. Neither the remaining police officers, who were each engaged with other occupants, nor the remaining civilian witnesses who were located in other areas of the apartment, saw how the Complainant came to be injured, as they were either in other rooms or their view was blocked.

WO #1 stated that once the door was breached, he and the other officers announced, “Police! Search warrant,” following which a DD was deployed into the threshold of the apartment. He entered the living room and observed CW #5 lying on the couch and WO #2 on the balcony with CW #6. WO #1 then assisted with handcuffing CW #6, following which he observed the SO struggling with the Complainant on the floor. I find this evidence to be consistent with that of WO #2, who also observed the Complainant struggling with the SO. WO #1 advised that he observed the SO and the Complainant near a bed to the right of the balcony floor and the SO was instructing the Complainant to put his hands behind his back. The Complainant was thrashing about and had his left arm around the SO’s left knee or thigh area and would not follow directions to put his hands behind his back.

WO #1 indicated that he then went to assist the SO and observed him deliver a single downward closed fist strike, with his left hand striking the side of the Complainant’s head. WO #1 described the strike as a ‘hard impact’ technique. The SO then hovered over the Complainant, in a wide stance, and told him to stop resisting and to put his hands behind his back and to let go of his leg. WO #1 then pried the Complainant’s arm from the SO’s leg and handcuffed him. I find this evidence to be consistent with that of CW #6, who stated that from his location on the balcony, approximately five feet from the Complainant, he observed a police officer standing over the Complainant and holding him down with his hand. He then heard a strange noise from the Complainant, which he attributed to the Complainant being struck. He advised that he could not see the strike clearly, because the police officer was holding the Complainant down.

WO #1 stated that he observed the Complainant to be bleeding from his nose and the top of his lip and his right eye was swollen shut. WO #1 indicated that at no time did he see any police officer kick the Complainant or put a foot on his face or head area.

The Complainant was later seen at hospital and was diagnosed with having sustained a ‘right medial orbital wall blowout fracture’.

Having researched the causes of orbital blowout fractures, and relying on several apparently reputable and reliable websites on the subject, it appears to be agreed that the most common causes of orbital blowout fractures “result from impact injury to the globe and upper eyelid. The object is usually large enough not to perforate the globe and small enough not to result in fracture of the orbital rim” (https://emedicine.medscape.com). Furthermore, “A history of the eye being struck by an object larger than the diameter of the orbital rim is commonly associated with a “blowout” fracture … A history of trauma such as a fist blow directly to the naso-orbital region is commonly offered by patients with isolated medial wall fractures.” (www.hcbi.mlm.nih.gov (the US national Library of Medicine National Institutes of Health) and finally, (from www.sportsmd.com):

The most common cause of an orbital blowout fracture are blunt force contact with an object larger than the orbit. Sports with these types of objects include tennis, racquetball, baseball, cricket, squash, and softball. The orbit can “blow-out” and fracture when one of these balls directly hits the eye at high speed effectively blowing the contents of the eye inward resulting in a fracture of the orbital floor.

An orbital blowout fracture can also occur to athletes in contact team sports when an athlete runs full force into a fist or elbow as in the sport of basketball. A direct blow to the face in fighting sports can also cause a “blow-out”.

On the bases of these medical opinions, it appears that a kick by a foot clad in a police issue boot would not fall within the definition of a commonly accepted cause of an orbital blowout fracture, while a hard jab or punch from a fist would. Furthermore, it appears only common sense that if one had one’s face “stomped on” by a police boot (from the evidence of the Complainant) or being kicked twice in the face, in a fashion similar to a football kick-off at the start of a football game, with the force being an eight out of ten and then a nine out of ten, with the boot making contact with the right side of the face, that one would expect far more damage than the one broken bone in the orbit, as was seen here. It is clear that a fist would fall within the definition as being “large enough not to perforate the globe and small enough not to result in fracture of the orbital rim,” while a boot, especially a police issue boot, would not.

While this evidence alone might be sufficient to deprive me of the reasonable grounds to believe that the Complainant’s injury was caused by a police boot to the face, I find that there are other crucial elements in the evidence of both of the Complainant and CW #5 which undermines their credibility, a few of which follow:

The inconsistency between CW #5 and the Complainant as to how the blow that caused the injury was delivered, with the Complainant indicating a stomp on his face, while CW #5 described two extremely forceful kicks to the face. Surely, the Complainant would have been able to differentiate between one kick and two (or between the act of stomping and kicking);

The evidence of CW #6 which is inconsistent with the evidence of both CW #5 and the Complainant, in that he observed the Complainant being held down by the police officer, who was using his hand to hold him down, at the time that he was struck. It is not possible, in my opinion, for the officer to have either stomped on the Complainant’s head or delivered two football type kicks to his head, while he was crouched down holding onto the Complainant with his hand, since either the kick or the stomp would have required the officer to be standing;

CW #5 described the officers who entered the apartment as clearly having the acronym “SWAT” emblazoned across their chests. Clearly, SWAT is not an acronym used by the TPS ETF, but is something commonly seen in American television;

The internal inconsistencies in the Complainant’s evidence, including: his assertion that the police used expletives when directing everyone to get on the floor, something that was not heard by any other occupant of the apartment, each of whom were clearly able to describe what the officers said upon entry; his assertion that despite describing these commands, that he did not hear any commands given by police because he had just awoken; and, his description of 15 to 20 officers entering the apartment; and

The inconsistency between the evidence of the Complainant and that of CW #5 in that the Complainant indicated that he had not heard the commands to get on the floor because he was disoriented, while CW #5 clearly indicated that she heard the Complainant tell the police officer. “Don’t touch me.”

The most problematic part of the Complainant’s evidence, however, is that he clearly describes the officer who stomped on his face as the first police officer who entered the apartment (which would have been WO #2) and that he was a white male with a blonde Mohawk, a beard, and tattoos on both arms and his neck (no police officer present met this description). According to all of the ETF officers, there is no such person with the ETF.

Specifically, ETF officers are not permitted to have facial hair, as it interferes with the use of the gas masks which are a routine part of their equipment. For the same reason, it appears that CW #5’s description of the second police officer who attended to the Complainant and argued with him, and who was present when the first officer kicked him twice in the face, could not be accurate, as she described him as having a white beard.

I find, therefore, that were I to accept the evidence of the Complainant and CW #5, I would be left without reasonable grounds upon which I could identify any police officer as having caused the injury to the Complainant, as their descriptions do not describe any police officer present.

That does not, however, end the matter. Based on the evidence of WO #1, I do have reasonable grounds to believe that the SO, who neither has a blonde Mohawk, a beard, or tattoos on both arms and his neck, delivered a hard punch which landed somewhere on the Complainant’s face, which appears to have been the only force observed against the Complainant which could have caused his injury. Based on this factual scenario, then, I must determine whether or not the SO resorted to an excessive use of force in his apprehension of the Complainant when he delivered that single downward closed fist strike with his left hand striking the side of the Complainant’s head.

Having rejected the evidence of the Complainant and CW #5 as being unreliable, and accepting instead the evidence of WO #1, because the blow which he describes is consistent with causing the injury to the Complainant and the accepted medical opinions as to the mechanism of that injury and because his evidence is also consistent with that of WO #2 and CW #6, I also accept the evidence of WO #1 that the Complainant was struggling with, and resisting, the SO,[1] that he refused to comply with commands to get on the floor and to put his hands behind his back, that he grabbed onto either the left knee or thigh of the SO and that WO #1 had to pry the Complainant’s hands off of the SO’s leg, and that the Complainant was thrashing about.

I also infer, from the fact that the search warrant contained a clause that the entry to search was to be a dynamic entry, the fact that the ETF was being deployed for the entry, and the belief that there may have been one or more firearms within the residence, that the police would have used extreme caution when entering and dealing with the occupants of the apartment and that there was necessity on the part of ETF members to contain and subdue the occupants as quickly as possible, in order that they not be able to access any weapons.

Pursuant to s. 25 (1) of the Criminal Code, the actions of police officers are protected from prosecution if the force used by them was no more than was justified or necessary in the circumstances and they were acting within their lawful duties when they resorted to that use of force. In this particular factual scenario, police were entering the residence to search pursuant to a judicially authorized search warrant and, as such, it is clear they were acting within their lawful duties at the time that they entered to search and thereafter, when they attempted to apprehend the occupants of the apartment, and their actions were justified, as long as they did not resort to an excessive use of force.

With respect to the amount of force used by the SO, that being a single downward closed fist strike with his left hand to the face of the Complainant, while the Complainant was struggling and resisting, refusing either to get down onto the floor or to give up his hands for cuffing, and had grabbed onto and refused to release the SO’s left knee or thigh, I cannot find that this single use of force by the SO amounted to an excessive use of force in these specific circumstances.

I have taken into consideration the reasonable grounds in the possession of police at the time of entry, as enunciated in the search warrant, that an armed robber was present on the premises and the belief that one, or possibly two, firearms were in the apartment and accessible to the occupants. On this information, I have no hesitation in finding that police needed to secure the premises and subdue the occupants as quickly and efficiently as possible.

Furthermore, with the Complainant holding onto the SO’s leg, the options available to him at the time would have been extremely limited, with neither a conducted energy weapon (CEW or Taser) or Oleoresin Capsicum (OC) spray being viable options, since the officer was being confined in the immediate vicinity of the Complainant. The only use of force option remaining to the SO was his own physical strength and, while the punch did cause a serious injury to the Complainant, I note that the SO limited himself to only the one punch and he did not use any further force after WO #1 assisted him and pried the Complainant’s hands off of his leg and handcuffed him, thereby eliminating him as a possible threat.

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 SO in subduing and handcuffing the Complainant fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention and to remove the risk that he continued to pose as long as he was unrestrained in an apartment which officers reasonably believed contained firearms.

With respect to the Complainant’s age at the time of this incident, while the Complainant did advise police, after his arrest, that he was only 13 years of age, it appears that his age was not obvious as WO #1 indicated that he initially disbelieved him, believing him to be much older. I also note that the party that was the subject of this search warrant was quite a bit older than the Complainant and, with the allegations of firearms being in the residence, I have no hesitation in finding that the police did not have the luxury of asking the occupants for identification before they were handcuffed, as they continued to pose a threat until they had all been contained.

On these facts, I accept that police were involved in a fast moving situation where there was a potential threat up to, and until, all occupants of the apartment were subdued and I find that the single punch from the SO, which he used only after the Complainant had grabbed onto his leg and refused to release him, and while the Complainant was refusing to comply with police commands to get down onto the floor[2] and to put his hands behind his back, does not satisfy me on reasonable grounds that the officer acted outside of the limits of the criminal law, nor do I find that the evidence is such as to satisfy me on reasonable grounds that the SO committed a criminal offence and no charges will issue.

Date: April 13, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] In fact, even the Complainant said that when he was thrown to the ground he tried to push himself back up before he was kicked. [Back to text]
• 2) [2] As stated earlier, the Complainant admitted trying to get up off the floor once he was down. [Back to text]