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 28-year-old man during his arrest on May 8^th, 2017.

Notification of the SIU

On Tuesday, May 9^th, 2017 at 8:30 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury. The TPS reported that police officers responded to a 911 call in regards to a man [later identified as the Complainant] walking on Yonge Street and brandishing two knives.

Several police officers were dispatched and bean bag rounds were discharged from a less lethal shotgun[1] at the Complainant.

The Complainant was subdued by the police officers and was later transported to the hospital where he was diagnosed with a fracture to his hand.

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, photography, sketches and measurements.

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness Officers

WO #1 Interviewed and notes received and reviewed

WO #2 Interviewed and notes received and reviewed

WO #3 Interviewed and notes received and reviewed

WO #4 Interviewed and notes received and reviewed

WO #5 Interviewed and notes received and reviewed

WO #6 Interviewed and notes received and reviewed

WO #7 Interviewed and notes received and reviewed

WO #8 Notes reviewed, interview deemed not necessary

Subject Officers

SO #1 Interviewed, and notes received and reviewed

On Monday, May 8^th, 2017, at approximately 11:20 p.m., a security officer from the College Park Centre called 911 and reported a man [later identified as the Complainant] walking along Yonge Street, openly brandishing two knives.

As a result, police officers were dispatched to the area. The police officers located the Complainant walking northbound on Yonge Street. They yelled at the Complainant to drop the knives but the Complainant refused.

One of the police officers discharged several rounds of bean bags using a less lethal shotgun at the Complainant. The bean bag rounds had little or no effect on him. The police officers struck the Complainant several times with their extendable batons in an effort to have him drop the knives. The Complainant ran away from the police officers with the knives in his hands.

The police officers ran after the Complainant and eventually subdued him. The Complainant was bleeding from his face and was transported to hospital in an ambulance.

At the hospital, the Complainant initially refused treatment. He was later diagnosed with fractured wrists.

The Scene

The scene was located in front of the Courtyard by Marriott Hotel at 475 Yonge Street. The scene was secured by the TPS, examined, and photographed.

The SIU reviewed the TPS photographs of the scene. Two four inch knife blades and two knife handles were located at the scene and photographed by the TPS FI.

SIU investigators canvassed for witnesses and closed circuit television (CCTV) footage within the area.

Forensic Evidence

No submissions were made.

Video/Audio/Photographic Evidence

CCTV Recordings from the College Park Centre and Courtyard by Marriott Hotel

The SIU investigators canvassed for CCTV footage and obtained CCTV recordings from the College Park Centre and Courtyard by Marriott Hotel. The CCTV recordings did not have any information to further this investigation other than the following:

• 11:25:54 p.m. to 11:26:01 p.m

  The Complainant exited from the College Park Centre to Yonge Street. He carried an unknown object in his right hand. A security officer followed the Complainant to Yonge Street.

• 11:52:13 p.m. to 11:53:41 p.m

  The Complainant was observed running in front of the Courtyard by Marriott Hotel. The SO, WO #1, WO #2, and WO #3 followed the Complainant.

Communications Recordings

911 Audio Recordings

The SIU received and reviewed the 911 call recordings relevant to this investigation. The recordings depicted the following:

• 11:27:54 p.m. to 11:30:13 p.m

  CW #1 called 911 and told the operator that a man [later identified as the Complainant] was walking northbound on Yonge Street and waving two knives that he had in his hand. CW #1 provided the Complainant’s description to the dispatcher.

• 11:29:29 p.m. to 11:30:40 p.m

  The dispatcher transmitted the Complainant’s description and location.

• 11:45:34 p.m. to 11:47:38 p.m

  WO #3 transmitted over the radio requesting a less lethal shotgun.

• 11:49:12 p.m. to 11:50:59 p.m

  A man [later identified as CW #3] contacted 911 and told the operator that police officers yelled at a man [later identified as the Complainant] several times to drop a knife. The police officers struck the Complainant several times with their extendable batons and one of the police officers [later identified as WO #2] shot at the Complainant twice.

  The operator advised that the police officers discharged a less lethal shotgun at an armed individual [later identified as the Complainant].

• 11:56:59 p.m. to 11:57:50 p.m

  A man [later identified as CW #2’s husband] contacted 911 and told the operator that he had heard several gun shots. The operator advised that the police officers discharged a less lethal shotgun at an armed individual [later identified as the Complainant].

• 12:06:57 a.m. to 12:08:10 a.m

  An ambulance was requested to attend the scene.

• 12:33:48 a.m. to 12:34:04 a.m

  WO #2 transmitted over the radio that she was escorting the Complainant to hospital in an ambulance.

Materials obtained from Police Service

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

• Event Details Report
• General Occurrence Report
• Notes of – WO #s 1-7 and the SO
• Procedure 15-01-Appendix A-Provincial Use of Force Model
• Procedure 15-01-Appendix B-Provincial Use of Force Model
• Procedure 15-01-Use of Force and Equipment
• 911 Audio Recordings
• Police Transmission Recordings, and
• Summary of Conversation

Section 88(1), Criminal Code - Possession of weapon for dangerous purpose

88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

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 May 8^th, 2017, at approximately 11:20 p.m., CW #1, observed the Complainant walking inside the College Park Centre in the City of Toronto carrying two knives in his hand; he observed the blades of the knives to be pointed upwards. CW #1 approached the Complainant and asked him if he was okay and the Complainant responded that he was leaving the Centre. CW #1 then followed the Complainant out of the Centre towards Yonge Street. When the Complainant turned around and began to walk back towards CW #1, CW #1 called 911. The call came in to the 911 operator at 11:27:54 pm and the 911 recording reveals that CW #1 advised that a man waving two knives around was walking northbound on Yonge Street. CW #1 also provided a description of the Complainant. At 11:29:29 pm, the Toronto Police Service (TPS) dispatcher sent out a call to all available units and repeated the information provided by CW #1. TPS officers, the SO, WO #1 and WO #3 responded to the call. At 11:45:34 pm, WO #3 requested that an officer with a less lethal shotgun attend the call, and WO #2 responded, along with her partner, WO #5, and WO #4 and WO #6. The Complainant was subsequently arrested and transported to hospital where it was discovered that he had sustained three metacarpal fractures to his right hand and a proximal phalanx fracture to his left hand.

The Complainant recalled being shot by a police officer carrying a shotgun approximately five times and being struck with bean bags in his back, arms and legs, following which one police officer struck his hands with an extendable baton. He was then arrested and taken to hospital.

During the course of this investigation, four civilian witnesses were interviewed, in addition to the Complainant, as well as eight police officers, including the subject officer. All officers also provided their memorandum book notes to investigators for review. Additionally, the recording of the 911 call as well as the police radio communications recordings and closed circuit television (CCTV) footage from the College Park Centre were reviewed by SIU investigators.

In his statement, WO #3 advised that he was dispatched to the College Park Centre in response to a call about a man walking on Yonge Street waving a pair of knives. As he was driving in the area, WO #3 advised, he observed the Complainant walking southbound on Yonge Street towards Alexander Street with two steak knives in his hand pointing outwards. WO #3 advised that he then radioed the location of the Complainant and drove his cruiser towards him. When he was within approximately six feet of the Complainant, he yelled at him to drop the knives, but the Complainant ignored him and kept walking.

The SO, in his statement to SIU investigators, advised that he and his partner, WO #1, were responding to the College Park Centre when they received a radio transmission from WO #3 indicating that the male, the Complainant, was now near the intersection of Yonge and Wood Streets and he turned his cruiser around and drove in that direction. He observed the Complainant walking on the sidewalk of Yonge Street holding two knives, each with a blade of approximately four inches, in his left hand.

WO #3 advised that he stopped his police vehicle in front of the Complainant’s path in an attempt to block his passage, but the Complainant walked around the front of his cruiser and continued. WO #3 then called for WO #2, who he knew had a less lethal shotgun with her, to attend. WO #3 advised that he was of the view that the use of a less lethal shotgun would result in the Complainant dropping the knives and surrendering. WO #3 then drove his cruiser about 25 metres ahead of the Complainant, where he parked his cruiser in order to block the northbound lanes of traffic on Yonge Street, exited his cruiser, and retrieved his C8 assault rifle from the trunk of his car. WO #3 pointed the laser light at the Complainant and yelled at him to drop the knives. The Complainant stopped, but did not drop the knives. At that point, WO #3 advised that the SO, WO #1 and WO #2 arrived and surrounded the Complainant and then also began to yell at him to drop the knives.

WO #2 advised that she heard the radio transmission requesting a police officer with a less lethal weapon attend and she and her partner, WO #5, drove to the area. WO #2 observed the Complainant walking with two knives in a firm grip and waving them as he walked northbound on Yonge Street towards Alexander Street; she described the knives as being similar to steak knives. WO #2 advised that she observed the SO and WO #1 arrive and yell at the Complainant to drop the knives, but the Complainant did not comply. She then exited her cruiser and retrieved her less lethal shotgun from the trunk of her cruiser and walked towards the Complainant, where she observed WO #3 with his rifle in his arms. WO #2 then yelled at the Complainant to drop the knives; she observed him to be agitated and sweating and, when he began to walk towards her, she discharged her less lethal shotgun twice at him from a distance of approximately five feet. The bean bags struck the Complainant on the left upper torso and he then stopped, turned, and ran northbound on Yonge Street. WO #2 advised that when the Complainant initially advanced on WO #2, he drew his firearm, but when WO #2 discharged her less lethal shotgun, he observed the Complainant to cringe and then run again. WO #2 advised that WO #3, the SO and WO #1 all followed the Complainant, and she followed behind.

WO #3 advised that when they reached Alexander Street, he kicked the Complainant’s right foot in order to stop him running and he fell on the sidewalk, but then immediately got back up and continued to run with the knives still clutched in his hand. As the Complainant ran towards the driveway of the Courtyard by Marriott Hotel, WO #3 kicked him again, this time in the back, and the Complainant fell to the ground and landed on the right side of his body. WO #3 decided not to get physically involved with the Complainant at that point, as he was still holding his C8 rifle in both hands. The SO, WO #1 and WO #2 then all arrived while the Complainant was on the ground and yelled at the Complainant several times to drop the knives, but he did not do so.

The SO advised that he then approached the Complainant and struck his left hand several times with his extendable baton causing sparks, which he believed may have indicated that the blades of the knives had broken, but the Complainant continued to firmly grip the handles of the knives and waved them at the SO. WO #1 advised that as he approached the Complainant on the ground, he observed WO #3 to be holding his C8 rifle, the SO had his extendable baton out, and the Complainant continued to wave his knife.[2] WO #1 observed the SO strike the Complainant approximately six times with his baton while the Complainant continued to hold the knife and move towards WO #1. WO #1 advised that he then struck at the knife once with his extendable baton, followed by the SO. WO #1 believed that the knife blade broke after it was struck by the SO’s baton. The Complainant continued to hold the knife handle firmly, however, and wave it towards the officers.

WO #1 then heard WO #2 reloading her less lethal shotgun and he moved aside. WO #2 advised that she then ran towards the SO and asked him to move aside as well and, when she was three feet from the Complainant, she deployed her shotgun at him and the bean bag rounds struck the right side of his body between his hip and ribs. The Complainant reacted immediately by getting up from the ground and running towards Wood Street with the knives still in his hands and WO #2 observed WO #3 and the SO then run after the Complainant and tackle him to the ground.

The SO advised that as the Complainant ran towards the hotel entrance, he feared for the safety of the patrons and he drew his firearm and yelled at the Complainant to stop. The Complainant ran past the entrance to the hotel towards Wood Street and the SO re-holstered his firearm. When WO #5 approached in his cruiser and the Complainant slowed, the SO took the opportunity and ran towards the Complainant, grabbed him from behind, and tackled him to the ground. The SO ran after him followed by WO #1, WO #2, and WO #3; as the SO neared the Complainant, WO #3 observed him to wrap his arms around the Complainant from behind and take him to the ground.

The evidence of the police officers involved in the disarming and apprehension of the Complainant is substantially confirmed by the three civilian witnesses to the incident, as well as the CCTV footage from the College Park Centre and the radio transmission recordings.

Two four inch knife blades and two knife handles were later located at the scene; one additional knife was removed from the Complainant’s backpack.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the 911 call from CW #1, as confirmed by the observations of the police officers themselves, that the Complainant was in a public place armed with two potential weapons and, as such, posed a danger to the public and had the potential to cause serious injury to himself or others. As such, he was arrestable pursuant to s. 88 (possession of weapon for a dangerous purpose) of the Criminal Code and his pursuit and apprehension was therefore legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to disarm and arrest the Complainant, I find that their behaviour was justified in the circumstances and that they used no more force than necessary in the circumstances. The actions of the police officers involved progressed from verbal commands to drop the knives, to attempting to take the Complainant to the ground using only their own physical strength, to discharging a less lethal shotgun at the Complainant on two different occasions, each time striking his torso with no noticeable effect, to both the SO and WO #1 striking the Complainant’s hands with their extendable batons in order to force him to drop his weapons and, finally, to the SO tackling the Complainant to the ground, where he was ultimately disarmed and handcuffed. While it is clear that the Complainant’s hands were likely fractured when the SO and WO #1 struck at them with their extendable batons, I cannot find this to constitute an excessive use of force as this use of force was only resorted to when all else had failed and the Complainant continued to be a danger to the community and the officers themselves. Clearly, the Complainant could not be allowed to continue on his way in a busy downtown area while armed with two knives which he continued to wave about. As long as the Complainant was at large and armed with his weapons, he continued to be a threat and it was the duty of these police officers to eliminate that threat. On all of the evidence, it is clear that the involved police officers had every intention of apprehending the Complainant without resorting to a lethal use of force, and though on a number of occasions an officer did draw his firearm, on each occasion that weapon was re-holstered in favour of a less lethal use of force option, which was ultimately successful in disarming and apprehending the Complainant. On this record, it is clear that the force used by all of the involved police officers, but specifically by the SO and WO #1 in resorting to the use of their extendable batons to disarm the Complainant, progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance and surprising resilience, and fell within the range of what was reasonably necessary in the circumstances to disarm him and effect his lawful detention.

As such, while I find that the bones in the Complainant’s hands were fractured when the SO and WO #1 resorted to the use of their extendable batons in order to force the Complainant to drop the weapons he had clutched in his hands, I cannot find that to have been an excessive use of force. 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 police officers in their attempts to disarm the Complainant fell within the range of what was reasonably necessary in the circumstances to disarm him and to remove the risk that he continued to pose as long as he continued to possess his weapons.

In the final analysis, I am satisfied for the foregoing reasons that the disarming of the Complainant and his ultimate detention, and the manner in which they were carried out, were lawful notwithstanding the injuries which he suffered. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: March 1, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The less lethal shotgun is an intermediate extended range impact weapon which may provide the opportunity for police officers to resolve potentially violent situations at a greater distance with less potential for causing serious bodily harm or death than other use of force options. Impact munitions operate on the premise of pain compliance or incapacitation, so that the control of the subject can be established. [Back to text]
• 2) [2] WO #1 only observed one knife although two knives with broken blades and a third knife (found in the Complainant’s knapsack) were retrieved by SIU investigators. [Back to text]