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 22-year-old man during his arrest on July 8^th, 2017.

Notification of the SIU

At approximately 1:30 a.m. on July 9^th, 2017, the York Regional Police (YRP) notified the SIU that on July 8^th, 2017 at 10:43 p.m., YRP officers arrested the 22-year-old Complainant for break and enter and he was taken to the police station, where he complained of a sore jaw. The Complainant was then taken to hospital where he was diagnosed with a fractured orbital bone.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

An SIU Forensic Investigator (FI) photographed the arrest scene and the Complainant’s injuries. The Complainant initially told SIU Investigators that he had been “pistol whipped” by the Subject Officer (SO) and that the butt of the police officer’s pistol striking him in the face was the origin of his injuries; he repeated this allegation to the SIU FI. The SO and Witness Officer (WO) #1’s duty belts and use of force options were seized by the SIU FI and swabs taken from these items for DNA analysis.

The Complainant was asked to provide a buccal swab (a scraping from the inside of his mouth) for a DNA control sample, at which point, the Complainant changed his account of the incident and said that it was not the butt of the gun that had contacted his face but rather the outside edge of the SO’s hand. The Complainant said that he would not be providing a buccal swab.

Complainant:

22-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 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 Interviewed, notes received and reviewed

WO #5 Notes reviewed, interview deemed not necessary

WO #6 Interviewed, notes received and reviewed

WO #7 Interviewed, notes received and reviewed

WO #8 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, notes received and reviewed

On July 8^th, 2017, at 10:28 p.m., YRP received a 911 call from a citizen who reported that she had seen several men wearing masks breaking into a neighbouring residence via a rear door and that the men had not exited the residence.

These men were later identified as the Complainant, CW #1, and CW #2.

Numerous YRP police officers attended the radio call, and as police officers arrived on scene, the Complainant, CW #1, and CW #2, exited the residence via the rear door and fled on foot into backyards and forested areas at the rear of area residences. YRP police officers engaged in a foot pursuit.

The Complainant, CW #1 and CW #2 fled westbound up onto the Canadian National (CN)/ GO transit railroad tracks just north of Highway 7, between McCowan and Kennedy Roads. They were apprehended on the railway tracks by the SO and WO #1 just west of the GO Transit Centennial Station.

The Complainant was either grounded by the SO or struck in the face, and, as a result, sustained an injury to the left side of his face. He was transported to a YRP division and then by ambulance to the hospital where he was diagnosed with a fracture of the nasal bone and a fracture of the nasal spine of the maxilla.

Photo of track where arrest occurred:

Video/Audio/Photographic Evidence

Footage from numerous CN Rail and GO Transit cameras, YRP Air 1 helicopter footage, in-car camera (ICC) footage from all involved YRP vehicles, and area residential CCTV security cameras were seized and reviewed. None of this footage captured any portion of the arrest of the Complainant and was of no evidentiary value.

Forensic Evidence

On July 21^st, 2017, the SIU FI forwarded a pre-approval request to the Centre of Forensic Sciences (CFS) with respect to DNA and forensic analysis of swabs of items seized from the SO and WO #1, i.e. duty belts and use of force options. The CFS was also provided with a case history of this incident and the refusal of the Complainant to provide a buccal swab for comparison purposes.

On July 24^th, 2017, a reply was received from the CFS Biology Section Manager advising that as the physical contact was a one-time contact, and the skin on the Complainant’s cheek was not broken, and given the fact that the Complainant now alleged that he was struck with the bottom of the officer’s hand and not the butt on the gun, the swabs would not be accepted for analysis.

Materials obtained from Police Service

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

• Event History
• Master Officer List for Call
• Notes-WO #s 1-8 and the SO
• Procedure-Use of Force
• Procedure-Processing the Offender-Arrest, Provincial Offences and Release
• Procedure-Prisoner Care and Control and Prisoner Transportation
• Training Records for WO #1 and #2
• Witness List, and
• YRP Witness Statements

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 348(1), Criminal Code - Breaking and entering with intent, committing offence or breaking out

348 (1) Every one who

1. breaks and enters a place with intent to commit an indictable offence therein
2. breaks and enters a place and commits an indictable offence therein, or
3. breaks out of a place after
   1. committing an indictable offence therein, or
   2. entering the place with intent to commit an indictable offence therein

is guilty

4. if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
5. if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction

Section 349, Criminal Code - Being unlawfully in dwelling-house

349 (1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein.

At 8:24:54 p.m. on July 8^th, 2017, a 911 call was received by the York Regional Police (YRP) requesting police attendance at a residence in the City of Markham. The caller advised that she had observed two masked men break into the home from the backyard, enter through the back door, and the men were still inside the house.

As a result, YRP officers were dispatched to the scene. WO #4 and an undesignated police officer arrived at the residence at 8:31 p.m. and observed three men run out of the rear door of the residence and into the backyard and then go over a fence. WO #4 and the undesignated police officer engaged in a foot pursuit of the three men, but lost sight of them as they were running through residential backyards.

WO #7 and WO #8 heard over the radio that the officers had lost sight of the three men, and they went into the rear yards at the address and an adjoining address and over the fence into a large forested area to search for the men. WO #7 then made his way up onto the GO Train tracks that ran parallel to the Road, where he saw the three men running westbound on the tracks about 200 yards east of his location. As he began to run towards the men, he could hear, but could not see, the SO shouting, “Get down! Get down!”

The Complainant alleges that while walking on the railroad track, he heard two police officers approach and he immediately dropped to his knees with his hands behind his head and bent forward and put his head near the ground. It is alleged that both officers had their firearms drawn. It is alleged that the SO then lifted the Complainant’s head and punched him in the face twice, striking him on the left side of his face and jaw with either his hand or the butt of his gun. The SO then delivered a third blow with the grip of his gun contacting the Complainant’s left cheek.

Following the Complainant’s interview on July 9^th, 2017, his injuries were photographed. A rectangular shaped bruise was noted on the Complainant’s left cheek; no skin was broken. As a result of the possibility that this injury could provide some corroboration of the Complainant’s claim that he was struck with the butt of the SO’s firearm, the Complainant was asked to provide a DNA sample in order that the use of force options available to the police officers involved could be analysed for the presence of his DNA, which could confirm his allegations. Upon reflection, the Complainant then indicated that he was not in fact struck by the butt of the SO’s firearm, but was only struck with his fist. The Complainant refused to provide a DNA sample on that basis.

CW #1 alleged that he was struck in the mouth by the SO with the bottom of the grip of his firearm. CW #1 also alleged that when he looked behind him, he observed the SO strike the Complainant in the left jaw line with the bottom of the grip of his firearm in his left hand. The SO then holstered his firearm and handcuffed the Complainant, following which he then struck the Complainant in the left jaw line and cheek bone again, with his left closed fist, and then kicked the Complainant in his left side with his left foot.

CW #2, who was positioned behind the other two men on the railroad tracks, as all three were lying face down, alleged that the SO delivered several kicks to CW #1’s ribs and pushed his face down on the gravel between the railway ties and the rails. The SO then went to the Complainant and handled him roughly. At no time did CW #2 see any police officer punch either of CW #1 or the Complainant, with or without a firearm.

The SO advised that he and WO #1 went over a fence and onto the railway tracks looking for the three men, when they observed the three men about 100 yards ahead of them. As soon as the three men saw the two police officers, they began to run in the opposite direction, and the officers pursued them on foot. The SO advised that he then drew his firearm, as he feared that the men may be armed. He also took into account that he and WO #1 were outnumbered by the three men, and that other police officers might not know their exact whereabouts and might have difficulty finding them. The SO advised that as he got to within about 40 metres of the men, he could see that they had nothing in their hands and he re-holstered his firearm and shouted several times to the men that they were under arrest and to get down on the ground. The men continued to run. He described the three men as running about six to ten feet apart.

The SO advised that the men then stopped and stood upright as he and WO #1 approached. The SO approached CW #2 and took hold of his left arm, following which CW #2 immediately began to resist and pull away. The SO then took him to the ground and handcuffed him. The SO observed that WO #1 was dealing with CW #1 and was having some difficulty, so he went to assist him and took CW #1 to the ground as well, and handcuffed him.

The SO observed the Complainant on the tracks about ten feet west of himself and WO #1. He then approached the Complainant on his left side while WO #1 approached from the right. The SO took hold of the Complainant’s left forearm/wrist area with his left hand and, with his right hand, he took hold of the Complainant’s left bi/tricep area. He described the Complainant as beginning to tense up and to pull away and indicated that the Complainant was big, strong, and fit. With WO #1 assisting, the two police officers then pulled the Complainant to the ground with a fair degree of force, which he felt was necessary because of his size and the fact that he was resisting. The Complainant landed head and face first on the ground on the railway ties and the gravel between the rails. As the Complainant landed, the SO lost his grip on the Complainant and the SO fell on top of the Complainant. They then handcuffed the Complainant.

The SO advised that he took the Complainant to the ground exactly as he had been trained to do in police college, and at no time did he strike the Complainant either with his fist or his firearm, nor did he ever kick him, and he did not observe WO #1 to do so either. Furthermore, the SO indicated that he never had his firearm un-holstered at any time when he was interacting with the Complainant and he never intended him any injury.

WO #1 advised that when he looked west about 100 to 200 yards, he saw the three men jogging while continually looking over their shoulders behind them. WO #1 advised that as he and the SO came to within about 50 yards of the men, the SO shouted to them that they were under arrest for break and enter and to get on the ground. WO #1 advised that he at no time drew his firearm, and neither did he see the SO do so.

WO #1 advised that the three men jogged a few more feet and then CW #2 and CW #1 went to their knees down on the ground and put their hands up behind their heads, while the Complainant stood and faced the two police officers and refused to get down on the ground, despite the SO repeatedly telling him to do so. WO #1 also described the Complainant as the largest of the three men and that he was very strong and fit. WO #1 advised that he approached CW #1 and took physical control of him and told him he was under arrest. CW #1 resisted and pulled away and WO #1 forced him to the ground and then handcuffed him, with the assistance of the SO.

WO #1 advised that he and the SO then approached the Complainant together, while the Complainant refused to get down on the ground. He described the Complainant as standing upright between two rails and throwing his arms in the air. WO #1 then took hold of the Complainant’s right arm, but the Complainant pulled free and spun away from him, and then tensed up and would not allow his arms to be pulled behind his back. WO #1 again took hold of the Complainant’s right bicep with his right hand and, with his left hand, he took hold of the Complainant’s right arm between the elbow and wrist and pulled him to the ground. The Complainant braced his fall, with his left forearm and shoulder contacting the ground between the rails. WO #1 advised that he did not see if the Complainant’s face contacted the ground. The Complainant was then handcuffed by both police officers.

After the Complainant had been taken to the station, he was taken to hospital and diagnosed with a nasal bone fracture and a nasal spine of the maxilla fracture. His medical records indicate that he advised hospital staff that he received his injuries when he was “hit on left side of face with ? fist/hand/gun”.

Upon reviewing all of the evidence, I note that while there were five witness to how the arrest of the Complainant and CW #1 and CW #2 occurred, there are five different versions of what actually happened. I find that the evidence of the Complainant as to what occurred is not consistent with the evidence of CW #1, and both are inconsistent with CW #2. Additionally, the evidence of the SO and WO #1, while being inconsistent with the evidence of each of the three men arrested, are also inconsistent with each other.

I can either accept the evidence of the three men, that both police officers had their firearms drawn as they approached, or I can accept the evidence of the SO, that only he had his gun drawn, or I can accept the evidence of WO #1, that he did not have his firearm drawn nor did he ever see the SO draw his gun.

The Complainant indicated that the SO punched him in the face three times with his right hand while simultaneously holding his firearm in that same hand. He indicated that he was unsure, on the first two occasions, if it was the butt of the gun or the SO’s fist that contacted his face, but, on the third punch, he was definitely struck by the butt of the gun.

In contrast, CW #1 indicated that the SO approached him first and struck him in the mouth with the bottom of the grip of his firearm and pushed him down, following which the SO moved his firearm from his left to his right hand, approached the Complainant, and struck him in the face with the butt of the gun, and that he only did so once.

While CW #2 indicated that no police officer ever struck anyone in the face, either with their fists or with their firearms, he did state that the SO kicked CW #1 in the ribs and pushed his face into the gravel. He also said the SO pushed the Complainant’s left cheek and neck area roughly onto the steel rail.

According to all three men, the police officers were on the track running toward them. According to both police officers, they were running behind and after the men.

According to the Complainant, as soon as the two men, who he did not know to be police officers, yelled at him to get on the ground, he immediately dropped to his knees, put his hands behind his head and put his face down on the ground.

CW #1 indicated that all three men dropped to their knees with their hands behind their heads, as soon as the officers told them to do so, as did CW #2, who indicated that they immediately complied and went to the ground, face down, with their hands and arms fully extended out in front of their heads.

The SO, however, described all three men as not complying and that he had to force each man to the ground when they refused to comply, while WO #1 indicated that CW #1 and CW #2 complied and went to the ground and put their hands behind their heads, while the Complainant stood and faced the police officers and refused to get down.

While CW #1 alleged that the SO struck him in the face with the butt of his pistol, and CW #2 indicated that the SO kicked CW #1 in the ribs, WO #1 advised that it was actually he who dealt with CW #1, and not the SO.

While the SO indicated that he and WO #1 forced the Complainant to the ground, with WO #1 landing beside the Complainant, and the SO landing on top of him, WO #1 makes no mention of either officer falling or landing on top of the Complainant, instead indicating that the Complainant braced his fall, with his left forearm and shoulder making contact with the ground.

According to the Complainant, after he was repeatedly assaulted by the SO, the SO walked away and dealt with one of the other men, while WO #1 handcuffed the Complainant. According to CW #1, it was the SO who handcuffed the Complainant, following which the SO kicked the Complainant in the left side with his left foot, something which the Complainant never mentions.

Both of the Complainant and CW #1 are very clear that the three punches, as alleged by the Complainant, or the single punch, as alleged by CW #1, as having been delivered by the SO against the Complainant, landed on the left side of the Complainant’s face, at the jaw line and cheek bone. None of these blows appears to be in line with the subsequent injury to the Complainant, which, as indicated above, was a fracture of the nasal bone and of the nasal spine of the maxilla, which both appear to be in the centre of the face, in and around the nose.

Finally, the Complainant’s credibility was greatly damaged when at the end of his interview, after having definitively indicated that he was struck with the butt of the SO’s gun the third time he was punched, he retracted that allegation and then claimed that he was only ever struck by the SO’s fist. While I suspect that the change in the Complainant’s account was based on some totally unrelated reason as to why he did not wish to provide a DNA sample, there is no evidence to support that speculation. Ironically, I note that the Complainant’s subsequent conviction on the charge of break and enter into a residential premises carried with it a mandatory order for the taking of his DNA for the DNA databank.

In the absence of some corroboration of any one of the five different accounts of what occurred here, I cannot find reasonable grounds to believe any of the different versions, although they leave me with some suspicions. Based on the evidence of CW #2, who apparently was in the last position when the three men were arrested and was in the best position to see what was going on with CW #1 and the Complainant, who were in front of him, no officer ever punched any of the men with either a fist or a firearm. This evidence directly undermines the allegations of the Complainant and CW #1, whose evidence also contradict and undermine each other.

Unfortunately, I also cannot find any common ground as between the SO and WO #1, other than their denials of any wrongdoing, which are based on completely different facts.

Finally, even were I to accept the evidence of the Complainant, whose evidence does have some very improbable aspects, including, but not limited to, his assertion that he immediately dropped to his knees and put his hands behind his head when two men, who he did not know to be police officers, but who were in full police uniform, told him to do so, as well as the fact his evidence as to how and where he was assaulted does not appear to line up with the physical evidence of his injuries.

The location of the injuries appears to be more consistent with the evidence of the SO that he and WO #1 took the Complainant to the ground hard, causing him to land face and head first, with his face making contact with the rail ties and the gravel. Interestingly, WO #1’s account does not accord with the SO. WO #1 indicated that the Complainant braced his fall with his left forearm and shoulder making contact with the ground. He also indicated that he did not see if the Complainant’s face struck the ground and his version of events, therefore, would not necessarily account for the injuries to the Complainant’s face.

While an unsatisfactory result, I must find that on the five contradictory versions of the five only witnesses to the interaction between the Complainant and police, I am unable to find that any version is able to satisfy me on reasonable grounds as to what occurred here, the only fact not in issue being that the Complainant suffered fractures to his nasal bone and nasal spine. While there is no question that had the SO struck the Complainant in the face with the butt of his firearm, after the Complainant was already on the ground and handcuffed, or even before he was handcuffed, that act would normally amount to an excessive use of force and the basis for the laying of criminal charges; however, in the absence of some conclusive evidence, in either direction, I am unable make any findings of fact and find that the evidence is not sufficient to satisfy me that there are reasonable grounds here for the laying of criminal charges.

Date: April 3, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit