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 an 82-year-old man during the execution of a search warrant on June 15^th, 2017.

Notification of the SIU

At approximately 11:20 a.m. on Thursday, June 15^th, 2017, the London Police Service (LPS) notified the SIU of the Complainant’s custody injury.

The LPS reported that on June 15^th, 2017, at approximately 5:00 a.m., members of the LPS Emergency Response Unit (ERU) assisted the Toronto Police Service (TPS) in executing a search warrant at a residence in the City of Toronto. In the midst of clearing and securing the residence, the Complainant was apparently knocked down. The Complainant was not the target of the warrant and was not charged with any offences. He was attended to by paramedics and was subsequently transported by ambulance to hospital where he was diagnosed with a non-displaced fracture of the right anterior maxilla.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Notes reviewed, interview deemed not necessary

WO #2 Notes reviewed, interview deemed not necessary

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

Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

On Thursday, June, 15^th, 2017, at approximately 5:30 a.m., the Complainant was at his home in the City of Toronto. He was asleep in his bedroom located on the second floor. Unexpectedly, he was awakened by a loud noise, after which he heard the police break through the front door. The Complainant got up and saw that the hallway outside his bedroom was filled with smoke. Confused and afraid, he left his bedroom and wandered out into the hallway. At some point the complainant came upon WO #6, who was armed with a C8 rifle, and the SO, armed with a pistol. The SO ordered, “Police, get down”; however, the Complainant continued to move towards the police officers. The SO, using the palm of his left hand, thrust his hand into the Complainant’s face. As a result, the Complainant fell to the floor having suffered an injury to his upper jaw.

The Complainant was taken downstairs and treated by paramedics. He was then transported to hospital.

Nature of Injuries / Treatment

On June 15^th, 2017, at 6:11 a.m., the Complainant was admitted to hospital. He was diagnosed with having suffered a ‘subtle non-displaced comminuted fracture of the right anterior maxilla (right upper jaw) with a non-displaced fracture through the root of the right lateral incisor’ (a tooth located away from the midline of the face and the canine teeth).

The Scene

The scene was not held for SIU purposes as the Complainant’s injuries were not known until later on in the day on June 15^th, 2017.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Communications Recordings

The police transmission recordings and log were reviewed.

Materials obtained from Police Service

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

• General Occurrence Report (vetted)
• LPS Police Witness Statement of WO #6
• LPS Standard Operating Procedure-Breaching Equipment and Techniques
• LPS Standard Operating Procedure-Dynamic Entry
• Notes of WO #s 1-6
• Procedure 02-18-Executing a Search Warrant
• Procedure 15-01-Use of Force
• Procedure Chapter B-Use of Force
• Procedure Chapter C-Arrest, and
• Search Warrant

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

• Police Transmission Recording
• Summary of Police Transmission Recording

The SIU also obtained the Complainant’s medical records.

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.

On June 15^th, 2017, following a briefing of the Bravo Team of the LPS Emergency Response Unit (ERU), the team attended an apartment in the City of Toronto, to assist Toronto Police Service (TPS) officers in the execution of a search warrant. The execution of the warrant was the culmination of a lengthy joint project between the LPS and the TPS. The target of the warrant, a person known to have a criminal record for violence and believed to be a member of the Driftwood Crips gang, which was known to be a violent gang involved in shootings, kidnappings, homicides, and robberies, was believed to be a resident of the address. Due to the violent antecedents of the target individual, and therefore the potential for violence and risk to the officers involved in the execution of the search warrant, it was decided that the entry would be made at 5:00 a.m., when it was likely that the residents would be sleeping and therefore less likely to resist or be violent.

The SO was the ERU supervisor for the execution of the warrant and was dressed in his grey uniform along with a ballistic vest, with the word ‘POLICE’ across the front and back, a black balaclava, a ballistic helmet, ear protection, communication system, protective glasses and fire resistant gloves. The SO carried a Conducted Energy Weapon (CEW), a Glock 9mm handgun, a baton, oleoresin capsicum (OC) spray, handcuffs, and a Distraction Device (DD). Each of the other team members was similarly dressed and carried similar use of force options, with some carrying the ram to force entry into the home, and others carrying a long rifle.

The first two police officers breached the door and were immediately followed inside by four other police officers, following the deployment of two DDs. All of the officers entering were yelling, “Police, search warrant!” Upon entry, the SO made his way up the stairs to the second floor, following WO #6, who was armed with a C8 rifle.

The Complainant was asleep in his bedroom at the time and awoke to the sound of the police breaking through his front door. The Complainant alleged that he then sat up on his bed when a police officer ran towards him and the Complainant felt that he was struck and felt a pressure; he described the contact as either being physically struck or being touched by the police officer. He then went in and out of consciousness and had no further recollection of the incident.

The SO advised that upon entering the home, he and WO #6 continued to yell “police, search warrant” as they made their way to the second floor. The SO described himself as holding his pistol with both hands down and near the centre of his body, in what he described as a ‘low ready position’. The SO advised that he had difficulty seeing due to the smoke.

The SO described suddenly seeing the Complainant in the hall with both of his arms extended in front of him with his fingers out, but that visibility was poor. The Complainant’s fingers were in close proximity to the SO, and the SO ordered the Complainant to get down, again identifying himself as police. The SO advised that he believed that the Complainant appeared assaultive and was obstructing his movements. The SO raised his left hand, which was his non-dominant hand as he had his Glock in his dominant right hand, and delivered a palm strike to the Complainant’s face in order to create some distance between them. The SO advised that his palm struck the Complainant’s right cheek and the Complainant immediately fell to the floor, allowing the SO to see the Complainant’s hands and determine that he no longer posed a threat.

WO #6 advised that when he and the SO were on the second floor, the home was dark and filled with smoke from the DDs and that he had to use the light mounted on his rifle in order to be able to see anything. He advised that when he got to the top of the stairs, he turned right and yelled, “Police, get down, search warrant!” He saw the Complainant approach him through the smoke and come up close to him. He observed the Complainant yell and saw him clench his fists and hold them at a 45 degree angle. WO #6 yelled, “Police, get down!” an additional three times, but the Complainant did not comply. WO #6 advised that he did not engage the Complainant, since he was carrying his rifle and he observed that the Complainant did not have anything in his hands. WO #6 then brushed past the Complainant in the narrow hallway and moved toward one of the bedrooms. Although WO #6 advised that he did not see the interaction between the SO and the Complainant, he later overheard the SO indicate that he had used an open-hand strike against the Complainant.

The SO and WO #6 then searched and cleared a bedroom on the second floor, following which they heard a call for assistance from the third floor, and WO #6 left to assist. The SO then observed CW #1 in the hallway and told her to sit on the floor.

Once the smoke cleared, the SO advised that he was able to observe that the Complainant was elderly. CW #1 explained to the SO that her father suffered from a medical condition, and the SO assisted in sitting the Complainant back on his bed. The SO observed the Complainant’s right cheek was swollen and there was blood on the floor where the Complainant had fallen. He then assisted the Complainant in going down the stairs and outside.

When the SO learned that the Complainant’s cheekbone had been fractured, he indicated that he was surprised at that result, but conceded that the Complainant was the oldest person to whom he had ever delivered a palm strike.

On all of the evidence, it is clear that the police officers were lawfully present in the home of the Complainant on the morning of June 15^th, 2017, and were acting pursuant to a judicially authorized search warrant. As such, pursuant to s.25 (1) of the Criminal Code, they were acting lawfully and within their duties at the time.

While I fully accept that the Complainant may believe that he was still sitting on the edge of his bed when he was struck, I find that he must have been confused by the chaos, as his evidence is contradicted by that of CW #1, who observed him after he had fallen on the floor in the hallway. The evidence of CW #1 is fully consistent and confirms the evidence of the SO, and I accept that the Complainant was out in the hallway, and not in his bedroom seated on the bed, when he was struck by the SO. I accept that the Complainant was then assisted back to his room and seated on the bed, which may have lead him to believe, when trying to reconstruct events in hindsight, that he had never left his room.

I also fully accept that the hallway was filled with smoke, there was a lot of loud noise, both from the police officers entering the home and yelling out and identifying themselves and the purpose of their presence, and the deployment of the DDs. Both the Complainant and CW #1 thought they heard something that sounded like gunshots, which I presume was the sound made by the DD or the ‘flash-bang’ device, as it is more commonly referred to.

While it is unfortunate that the Complainant was injured during the execution of this warrant in his home, either from the strike from the palm of the SO’s hand or his subsequent fall to the floor, I appreciate the urgency, the chaos, and the heightened awareness that the police officers entering the home had, knowing that they were there to search, and possibly apprehend, a dangerous gang member with violent antecedents and a history of access to firearms. The Crips gang is notorious in the Toronto area and there are few people who are not aware of the danger that they and their members pose.

In these circumstances, where police were entering a home in the darkness, the home was filled with smoke from the two DDs deployed, visibility was poor, and an officer is suddenly faced with being approached in what was described as a narrow hallway by a man who does not stop and get down as directed, but continues into the officer’s space, I have no hesitation in accepting that the force used by the SO was appropriate and proportionate to the circumstances at hand. While the Complainant was later found to be elderly and unarmed, waiting to determine and identify the Complainant in these circumstances was not a risk that the SO had the luxury of taking. While it may well be that the Complainant was only injured due to his advanced age and frailty, that was not something that the SO was aware of at the time, and the injury was unforeseeable in the circumstances.

In coming to this conclusion, I believe that the decision of the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, and the comments of the Court as set out below, are particularly apt in this particular factual situation:

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 despite the many use of force options at the disposal of the SO, including the firearm that he was holding in his right hand, when faced with an unidentified male coming towards him with his arms outstretched, in a narrow hallway during a high risk dynamic entry, only one strike was used against the Complainant, and no further force was used once the Complainant was down and no longer posed a threat to the officer.

In conclusion, while it is without dispute that the SO caused the injury to the Complainant, either from the strike itself or his subsequent fall to the floor, I find that pursuant to section 25(1) of the Criminal Code, the SO used no more force than was reasonably necessary in the execution of his lawful duties in a fast-paced, chaotic, and potentially dangerous situation. As such, 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 that there are no grounds to believe he committed a criminal offence and no charges will issue.

Date: March 20, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit