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 24-year-old man during his arrest on July 16^th, 2017.

Notification of the SIU

At approximately 9:20 p.m. on July 18^th, 2017, the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

On Wednesday, July 19^th, 2017, two SIU investigators and one forensic investigator (FI) were assigned to investigate the Complainant’s custody injury. The FI took photographs of the parking lot located near 157 Beatrice Street where the Complainant was arrested and photographed his injuries.

Investigators located the Complainant at hospital where he was awaiting surgery while still in police custody. The Complainant agreed to be interviewed and consented to the release of his medical records. On the same date, investigators conducted a canvass of the surrounding area of 157 Beatrice Street, but this did not produce any further witnesses or locate any video footage.

Complainant

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

Civilian witnesses

None located

Witness officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Notes reviewed, interview deemed not necessary

WO #5 Interviewed, notes received and reviewed

WO #6 Notes reviewed, interview deemed not necessary

WO #s 4 and 6’s notebook entries were obtained and reviewed. These witness officers were not interviewed because they were not directly involved in the Complainant’s arrest. They could not offer anything further of evidentiary value to this investigation.

Subject officers

SO #1 Interviewed, notes received and reviewed

At approximately 7:16 p.m. on Sunday, July 16^th, 2017, an undercover TPS Drug Squad officer purchased a quantity of drugs from the Complainant inside an undercover police vehicle in a parking lot located at 157 Beatrice Street, Toronto. Following the buy, additional drug squad officers approached the undercover police vehicle to arrest the Complainant for trafficking narcotics. During the course of effecting the arrest, the Complainant kicked one of the arresting officers. A struggle ensued. The Complainant was pulled out of the undercover police vehicle and taken to the ground, where he continued to actively resist the police officers. The Complainant sustained facial injuries. The Complainant was arrested for drug related offences.

The Complainant declined medical treatment at the scene. The Complainant was then transported to the police station where booking officers recorded his facial injuries on an injury report. The Complainant did not request medical attention while at the police station. He was processed and lodged into a cell pending a bail hearing the following morning.

On Monday, July 17^th, 2017, the Complainant was remanded into custody. Prior to being transported to the detention centre, the Complainant began complaining of a sore nose. TPS officers transported the Complainant to hospital where he was examined by the attending physician. On Tuesday, July 18^th, 2017 the Complainant was diagnosed with a left fractured frontal sinus bone and required surgery to repair the fracture.

Nature of injuries / treatment

According to the Complainant’s medical records, he was examined at hospital by the emergency room physician on July 18^th, 2017 with regards to facial injuries. A CT scan revealed that the Complainant had sustained a left frontal sinus bone fracture which required surgery.

The Complainant was scheduled to follow up with the doctor on July 25^th, 2017 for the removal of the staples. The Complainant was discharged from the hospital on July 22^nd, 2017 and returned to police custody. The Complainant is expected to make a full recovery from his injuries.

The scene

The scene of the Complainant’s arrest is a municipal parking lot at 157 Beatrice Street, just south of College Street in Toronto.

Forensic evidence

No submissions were made to the Centre of Forensic Sciences.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able locate any.

TPS Booking Recordings of the booking area

The booking/cell video was equipped with audio capability. The video showed that at 8:06 p.m. two uniformed TPs officers entered the booking hall with the Complainant. The Complainant was handcuffed with his hands behind his back and was paraded before the booking sergeant.

The video footage revealed that the Complainant was compliant and cooperative with the sergeant when questions were asked of him. Parts of the video became inaudible when the booking sergeant queried the Complainant about his facial injuries. Parts of the audio revealed the Complainant telling the booking sergeant that he had martial arts training. The Complainant told the booking sergeant, “They thought I was a threat and I accidentally – by instinct – I tried to like push him away and he thought I was kicking. So I understand completely what was going on.” The Complainant was heard further stating that he would not try to harm a police officer.

The Complainant did not report any specific injuries to the booking sergeant or that he required medical treatment for his injuries. Shortly after, the booking sergeant authorized a level three (strip) search of the Complainant, which was conducted off camera with audio still activated. After the search was completed, the Complainant was returned to the booking hall.

Communications recordings

At 7:18:27 p.m., an officer is heard to indicate that they have one under arrest on Beatrice Street and are requesting a car to transport the Complainant.

At 7:47:46 p.m., the SO calls in to report that they are now going to a residence to execute a Controlled Drugs and Substances Act (CDSA) search warrant.

At 8:15:35 p.m., the SO calls in to indicate that the search warrant is now complete.

Nothing further of evidentiary value was on the recording. The recording was consistent with the Communications Summary.

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 Report
• General Occurrence Report
• Injury Report
• Notes of WO #s 1-6 and the SO
• Booking video from police station
• Police transmission recording
• Procedure: Surveillance
• Procedure: Undercover Operations
• Procedure: Use of Force
• Training Records of the SO and WO #s 1 and 2, and
• Wagon Detail Sheet

Section 25(1), Criminal Code - Protection of persons acting under authority

Section 354(1), Criminal Code - Possession of property obtained by crime

Section 4(1), Controlled Drugs and Substances Act - Possession of substance

4 (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.

Section 5(1), Controlled Drugs and Substances Act – Trafficking in substance

5 (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

Section 5(2), Controlled Drugs and Substances Act - Possession for the purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

On July 16^th, 2017, after various preparations, an undercover police officer, WO #3, arranged to meet the Complainant in the Green P parking lot at 157 Beatrice Street for the purpose of a drug transaction. WO #3 was to provide the Complainant with $480 in cash, in exchange for a quantity of cocaine. The purpose of this drug transaction, which followed several successful drug transactions over the previous days between WO #3 and the Complainant, was to gather sufficient evidence in order to be able to obtain and execute a search warrant at the residence of the Complainant, in the hopes of locating further evidence with respect to the offences of trafficking in a narcotic and possession for the purpose of trafficking in a narcotic contrary to sections 5(1) and 5(2) of the Controlled Drugs and Substances Act (CDSA). The plan was that as soon as the drug transaction was completed, WO #3 was to give the signal, and other concealed drug squad officers were to move in to arrest the Complainant, following which they were to execute the search warrant on his residence.

WO #3 parked his undercover motor vehicle at the arranged location at 7:14 p.m., and observed the Complainant arrive on his bicycle shortly thereafter. The Complainant then approached and entered the passenger seat of WO #3’s vehicle, and the drug transaction took place, following which WO #3 gave the signal and WO #1 ordered the remaining police officers to move in and arrest the Complainant.

Within moments, the SO approached the passenger side of WO #3’s vehicle, where the Complainant was seated, opened the door, and shouted, “Police! You are under arrest!” This was heard by both of the remaining police officers who had attended at the vehicle, as well as by WO #3, who was still seated in the driver’s seat, and is consistent with the statement made by the Complainant.

The SO then leaned into the vehicle to arrest the Complainant and grabbed onto him by his shirt, whereupon the Complainant immediately turned his body, with his back leaning towards the driver’s side, and began to kick the SO. This evidence is consistent with the observations of each of the three witness officers. Additionally, I find support in this version of events by the Complainant’s own statements to the booking sergeant, as recorded on the booking video, wherein he indicated, “They thought I was a threat and I accidentally – by instinct – I tried to like push him away and he thought I was kicking. So I understand completely what was going on.” I find it more than coincidental that the Complainant should opine that the police officer thought that he was kicking him, when all four of the police officers specifically confirmed in their statements that the Complainant was indeed kicking the SO. I note also that the Complainant advised the booking sergeant that he had martial arts training.

WO #3 advised that he observed the Complainant’s kicks to be like a ‘bicycling motion’, striking the SO multiple times in the chest, while the SO indicated that he was surprised by the kicks, which he described as being of significant force, striking him in the waist, stomach, and upper chest. WO #2, who also observed the Complainant kicking the SO from inside of the vehicle, described the kicks as “bicycle kicking”, and observed one of the kicks to strike the SO in the upper chest. He also heard the SO yell at the Complainant to stop kicking.

When the SO was unable to grab the Complainant’s shirt, he grabbed him by the ankles and pulled him out of the vehicle and onto the ground. As the Complainant was being pulled out by his ankles, he struck the door frame of the vehicle before he landed on his stomach, on the ground.

At that point, WO #1 and WO #2 both moved in to assist the SO, while the Complainant continued to resist by kicking and flailing his arms. The SO told the Complainant to stop resisting. This is consistent with the evidence of WO #1, who was able to hear the SO shout, “Police, you are under arrest, stop fighting!”

It is alleged that when the Complainant was still inside of WO #3’s motor vehicle, four unknown males approached the passenger side window and began screaming at the Complainant to get out of the vehicle, and that the Complainant was not aware that they were police officers until someone opened the passenger door of the vehicle and one of the police officers identified himself as such. It is alleged that the SO then punched the Complainant in the face five to seven times, while he was simultaneously grabbed by the shirt and taken out of the van by that same officer. The Complainant was then taken to the ground where he landed face first and lost consciousness briefly. When he came to, he had been handcuffed.

As already outlined above, I reject the allegation that the Complainant was not resisting, not only because the three witness officers observed him kicking the SO, but also because of the Complainant’s comments to the booking sergeant that the officers may have believed him to be kicking when he tried to push the officer away. I further find support in this conclusion from the fact that the SO was able to grab the Complainant by the ankles and pull him from the vehicle, which I find would have been almost impossible to do had his feet been in the foot well of the vehicle, as opposed to kicking out at the SO.

While none of the witness officers actually observed the SO punch the Complainant, the SO readily conceded that he delivered three punches to the right side of the Complainant’s head and face, when the Complainant continued to resist by kicking his legs and flailing his arms. The SO indicated that he was trying to gain control of the Complainant’s arms in an attempt to put them behind his back for handcuffing, and that he was of the view that there was an imminent need to control the Complainant to prevent his escape, which is why he delivered the three punches, which he described as distractionary punches meant to distract the Complainant in order to be able to gain compliance. These punches proved to be effective and the Complainant was then successfully handcuffed and searched, and a folding knife, a quantity of cocaine, and the police buy money were found in the Complainant’s possession. The SO readily admitted that he was responsible for the injuries that he observed to the Complainant at that time, being that his right eye and forehead were bloody and swollen in the area where he had delivered the punches.

Following his arrest, the Complainant was charged with four counts of trafficking in cocaine and four counts of possession of cocaine for the purpose of trafficking contrary to the CDSA, as well as four counts of possession of proceeds of crime contrary to the Criminal Code.

While the Complainant initially refused medical treatment, after his first court appearance, he was taken to hospital where he was diagnosed with a left frontal sinus bone fracture (the area behind the brow) which would require surgery to repair.

On a consideration of all of the reliable evidence before me, I find that the Complainant, after being advised that the SO was a police officer and was placing him under arrest, kicked the SO numerous times striking him in the waist, stomach and chest areas. I further find that the Complainant, while exposing his feet to the SO as he was kicking him, was then pulled from the vehicle by the ankles, striking the door frame as he exited, and then landing face first on the ground, where he continued to kick out his feet and flail his arms. At that point, the SO, in an attempt to gain the compliance of the Complainant and to prevent his escape, punched the Complainant three times in the head and face area.

Finally, I accept that the injuries to the Complainant were either caused by his striking his head against the door frame when he was pulled out of the vehicle by his ankles, by his landing on the ground face first and striking his face on the ground, by his being punched by the SO in the head and face area three times, or a combination of all three. In any of these scenarios, there is no question that his injuries were caused by the police as they attempted to arrest him.

In order for the SO to avail himself of the protection against prosecution as provided by s. 25 (1) of the Criminal Code, it must be established that he was acting in the course of his lawful duties when he caused the injuries to the Complainant and, in doing so, he did not resort to an excessive use of force but rather used no more than was justified and necessary in the circumstances.

I turn first to whether or not the SO, and the other officers involved in the arrest of the Complainant, were acting in the course of their duties. On the established facts before me, based on the reliable evidence, there is no question that police had reasonable grounds to arrest the Complainant for both possessing and trafficking in a controlled substance contrary to the CDSA. They formed those grounds based on the direct observations of WO #3 that the Complainant both possessed and was involved in the trafficking of narcotics during the undercover drug transactions not only on July 16^th, but during all of the prior drug transactions on the preceding days. As such, it is clear that the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in attempting to subdue the Complainant, who was actively and forcefully assaulting the SO and resisting his arrest, presumably to allow his escape from the officers, I do not find that the SO resorted to an excessive use of force either when he pulled the Complainant out of the vehicle and he went face first to the ground, or when he punched him three times as he continued to resist. I fully accept that the police officers involved in this operation, particularly the SO, found themselves in an unforeseen situation when the Complainant suddenly and forcefully began to assault the SO. I further find that the Complainant’s forceful resistance, and the SO’s response to that forceful resistance, were taking place in a fast paced and fluid situation without much time available to weigh one’s actions, but with an urgency to respond and subdue the Complainant as quickly as possible, in order to gain his compliance and prevent his escape.

I further take note that it is most likely, due to the location of the injury which is described as being to the left frontal sinus area, that the Complainant was injured when he struck the door frame of the vehicle, rather than when he was punched by the SO. I make this finding based on a number of facts as follows: it would have been the left side of the Complainant’s head which was closest to the door frame when he was pulled out of the passenger side of the vehicle; the photos and the medical records confirm that the Complainant had bruising in the form of a black eye and several abrasions to the right side of his face, which are consistent with his having been punched by the SO, which the SO described as being to the right side of his head and face, while the frontal sinus bone fracture was actually to the left side of his face; and, the medical literature describes the cause of this injury as being primarily due to motor vehicle collisions or falls. However, even if the Complainant sustained the fracture when he was punched by the SO, which I find unlikely, I do not find this to amount to an excessive use of force. While the SO did deliver three rapid punches to the Complainant’s face, I note that the Complainant continued to fight throughout and, once he calmed, no further force was used, other than the minimum required to handcuff him.

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:

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, and the decision of Justice Power of the Ontario Superior Court of Justice in Chartier v. Greaves, [2001] O.J. No. 634, as adopted by the Supreme Court of Canada, which sets out the following pertinent points to be considered in these circumstances:

9. "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14^th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver).
10. Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances.
11. "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.).

On this record, it is clear that the force used by the SO in attempting to prevent the continuing assaults on himself by the Complainant, and to thwart the Complainant’s efforts to escape, fell within the range of what was reasonably necessary in the circumstances to effect his lawful arrest. While it may be that if the SO had the luxury to assess, after one or two punches, whether or not the Complainant was now willing to stop his combative behaviour and submit to his arrest, he may have not delivered the third punch. However, while the Complainant continued to kick and flail his arms, the SO did not have the luxury of time and he acted quickly and efficiently to remove the threat which the Complainant continued to pose until he was safely taken into custody.

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. I fully accept that the Complainant’s injuries primarily came about as a result of efforts by police to overcome his assaultive and resistant behaviour, and as soon as the Complainant ceased in these efforts, no further force was employed against him by any police officer. I am therefore satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: June 8, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit