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 sustained by a 27-year-old man during his arrest on April 6^th, 2017.

Notification of the SIU

On Friday April 7, 2017, at 0520 am, the Toronto Police Service (TPS) notified the SIU that a man had sustained a serious injury during his arrest on April 6^th, 2017.

The TPS reported that on Thursday, April 6, 2017, at about 8:46 p.m., the TPS drug squad officers attempted to arrest the Complainant and CW #1 for drug trafficking in the area of Church Street and Dundas Street in the city of Toronto. Both resisted arrest, yet were eventually subdued and taken into custody. Emergency Medical Services (EMS) were contacted and treated two police officers and CW #1 at the scene. The Complainant was transported to hospital where, at 3:45 p.m., he was diagnosed as having a fractured nasal bone. The Complainant was released from hospital into police custody and returned to the police division.

The team

Number of SIU Investigators assigned: 4

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

27-year-old male interviewed

Civilian witnesses

CW #1 Interviewed

CW #2 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

Additionally, the notes from one other officer, those of the central note taker, were received and reviewed.

Subject officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed

On April 6^th, 2017, at approximately 8:00 p.m., an undercover police officer, WO #4, called and made an arrangement with the Complainant to purchase a quantity of crack cocaine. A time and location was agreed upon. Four other TPS Drug Squad officers were waiting in the background to affect an arrest as soon as the drug transaction was completed. The drug transaction took place with WO #4 standing outside a door to an apartment building, and the Complainant was inside the foyer. The door to the building could not be opened from the outside, requiring WO #4 to hold the door open, in order to allow other officers to enter after the transaction. WO #4 provided money to the Complainant and received a package of powder, held out by the Complainant as being crack cocaine.

Once the direction was given by WO #1 to move in and arrest the Complainant and CW #1, who was accompanying the Complainant, WO #3 moved in for the arrest. WO #3 entered the open door being held by WO #4 and was immediately punched in the head by CW #1. WO #4 was unable to enter to assist WO #3, as the door would automatically close behind her if she let go of the door, preventing other police officers from entering to assist in the arrest.

Seconds later, the SO arrived and entered, shouting out the police warning and went to the assistance of WO #3. The SO dealt with the Complainant, while WO #3 continued to attempt to arrest CW #1. CW #1 was found to be in possession of a large knife. Shortly thereafter WO #2, followed by WO #1, also arrived and entered and both the Complainant and CW #1 were arrested.

During the course of the arrest, several punches were delivered by the SO to the Complainant. Following the arrest, the Complainant was transported to hospital where he was assessed as having sustained a nasal bone fracture. WO #3 sustained a cut and pain to his left ear and small cuts to his hand, while CW #1 sustained some bruising but no serious injuries.

The scene

The scene was an apartment building in downtown Toronto. There was an entrance door that allows entry to a breezeway, but the interior door was secured to prevent general access. A person using the internal stairway could descend the stairs to the ground floor landing, which was approximately 3.1 metres by 1.1 metre. The person could exit left to the lobby, just west of the main entrance or follow a hallway on the right and exit directly to the street. The exit door to the street was equipped with a panic bar that allowed exit, but there was no mechanism to enter the stairway from the street. The stairway and hallway were well lit with lights mounted on the walls.

There were two areas where blood had pooled and dried. There was a small pool of dried blood where the bottom stair met the landing, and a larger pool next to the south wall. There was spatter on the south wall and blood transfer on the wall below the spatter. There were two small blood spatters on the door which led to the lobby and the location of these drops indicated that the door was in a closed position when they were deposited. The Complainant and CW #1 drew diagrams of the scene during their interviews. A scene diagram was prepared by the FI.

Scene diagram

Forensic evidence

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, diagrams and photography.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence; surveillance video was received and reviewed for the property wherein the incident took place, however, the video did not cover the stairwell in which the arrest occurred, nor did it cover the door exiting onto the street where the drug transaction occurred and therefore did not provide any relevant information to the investigation. No other recordings or photographs could be located.

Communications recordings

As this was an undercover operation, the police communications during the actual operation were not recorded.

At 8:48:20, WO #4 is heard to call in asking for transportation for two persons under arrest who were “quite a handful”. An ambulance is then also requested. The officer is heard to advise that an ambulance was required because “They put up a good fight” and one had facial bleeding;

At 8:50:28, a 911 call from an unidentified female was received who indicated that as she was walking out of the building, a security officer had run out, looked into the stairwell and said “they’re killing someone’” she had no further information and had not seen anything;

At 8:57:00, a 911 call was received from CW #2, the security officer, who advised that “someone trying to kill someone here” and an ambulance was needed. As the caller provided further information, he indicated that he had seen a man who had his hands tied, people were shouting, and a man was down in the stairwell and was bleeding. He then advised that police were there and he terminated the call.

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-SO, WO #1, WO #2, WO #3, WO #4, and Central Notes
• Procedure 04-19-Surveillance
• Procedure 04-44-Undercover Operations
• Procedure 15-01-Use of Force
• Police Transmission Recording
• Photographs taken by TPS of the injuries sustained by CW #3
• Summary of Conversation, and
• Surveillance Intelligence Report

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

• Incident Report – Metro Protective Services, and
• 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.

Section 265(1), Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

Section 266, Criminal Code – Assault

266 Every one who commits an assault is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction

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 270(1), Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure

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.

On April 6^th, 2017, the Drug Squad of the Toronto Police Service (TPS) arranged a drug purchase between an undercover police officer, CW #4, and the Complainant. It was agreed that once the hand to hand drug transaction was completed, other police officers, who were nearby in plainclothes without any police identifiers visible, would attend and arrest the Complainant along with a second male, CW #1, who was with him. It is not in dispute that the Complainant attended at the agreed upon location in possession of a baggie of white powder, which was to be sold to the undercover officer as crack cocaine. It is also not in dispute that CW #1, at the time of the transaction, was in possession of a large knife of approximately 12 inches in total length with a blade which was approximately six inches long.

Following the hand to hand drug transaction, the direction was given to arrest the Complainant and CW #1, and police officers began to converge on the area. It is alleged by the Complainant and CW #1 that they were unaware that the men entering the vestibule of the apartment building after the drug transaction were police officers and further, that these officers beat the two men. The allegations included punching the Complainant’s eyes, nose, cheek, chest and ribs and choking him, following which he was surrounded by police officers who stomped, kicked and pressed their knees into his back, which actions constituted an excessive use of force and resulted in the Complainant sustaining a broken nasal bone, and CW #1 receiving bruising but no serious injuries.

The police officers involved in the arrest of the Complainant and CW #1, on the contrary, indicate that it was CW #1 who delivered a punch to WO #3, who was the first officer to enter the vestibule to arrest the Complainant and CW #1 following the completion of the hand to hand drug transaction. CW #1 concedes that he was the first to deliver a blow, but denies that he was aware that WO #3 was a police officer. WO #3 was then also punched in the head by the Complainant, following which other officers arrived and assisted WO #3 in arresting both the Complainant and CW #1. It is the position of the police officers that they used no more force than was necessary in the circumstances to subdue and arrest the Complainant and CW #1, who were both resistant, combative, and assaultive towards the police officers, who had verbally identified themselves as such. Consequently, CW #3 sustained a cut and pain to his left ear and small cuts to his hands, but no serious injuries.

During the course of this investigation, only one civilian witness, in addition to the Complainant and CW #1, came forward to be interviewed and his observations were very limited in nature. Investigators also interviewed the four police officers present at the scene, and had access to their notes for review. The subject officer also provided his notes, but declined to be interviewed, as was his legal right. There was no closed circuit television footage available showing the area of the interaction, and the police communications were not recorded. Investigators also had access to the complainant’s medical records.

Upon reviewing the notes and statements of all police officers involved in the project to arrest the Complainant following the completion of the hand to hand drug transaction with undercover Officer WO #4, it is clear that the project involved, in addition to WO #4, the SO, WO #1, WO #2 and WO #3, for a total of five police officers. It is also clear, and consistent both between police and the Complainant and CW #1, that at no time did WO #4 either enter the vestibule or assist in the arrest of either of the Complainant or CW #1, as she remained at the door throughout, holding it open.

WO #4 advised that she observed WO #3 running toward the door where she was standing and, as he went inside, she heard him calling out “police, police,” whereupon he grabbed onto CW #1 and both the Complainant and CW #1 began to fight with WO #3. WO #4 advised that she panicked and was about to go in herself, but she knew that if she let go of the door, the other officers would not be able to enter to assist. Within seconds, the SO arrived and immediately went to assist WO #3 by grabbing one of the men. WO #4 was unable to see what happened after that, as the fighting moved around the corner at the end of the hallway. WO #2 and WO #1 then arrived together and entered, while WO #4 remained at the door and called for assistance. From her location, WO #4 was able to hear someone saying “Get on the ground, get on the ground.” WO #3 told WO #4, while she was sitting in the van after the interaction, that he had been hit in the head.

WO #3 advised that as he came through the door, he shouted “police” to the two men in front of him and reached for CW #1, telling him that he was under arrest; as he did so, CW #1 punched WO #3 twice in his left ear. WO #3 advised that he continued to say “Police, you are under arrest,” at which point the Complainant punched WO #3 on the top of the head. WO #3 advised that he then pushed CW #1 and the Complainant into the interior of the hallway and was fully occupied with CW #1 when the Complainant again began to swing at WO #3.

At that point, the SO arrived and engaged with the Complainant, while WO #3 focused on CW #1 and pinned him against the back wall, whereupon CW #1 pulled out a large knife from his right side and held it just below shoulder height. WO #3 grabbed at CW #1’s hand and began to punch him, at which point he fell to the floor at the foot of the staircase, and WO #3 landed on top of him, with the knife falling to the side, where WO #3 retrieved it and threw it onto the stairs. This is confirmed by the location of the knife on the stairs after the interaction. WO #3 described CW #1 as actively resisting and that he was only able to finally gain control and handcuff CW #1 after the other team members arrived.

The SO, in his notes, indicated that when he entered the door being held open by WO #4, he observed two men swarming WO #3 and that WO #3 had a hold of CW #1, while the Complainant was punching WO #3 in the left side of his head with a closed fist. The SO verbally identified himself several times as Toronto Police and then grabbed onto the Complainant, who was still punching WO #3. The SO indicated that the Complainant then pushed the SO and raised both of his fists and squared off against the SO, who then punched the Complainant twice in the face and they both went to the ground, where the Complainant continued to fight and resist. The SO observed that Canadian currency fell out of the Complainant’s pocket as they struggled and that CW #1 dropped a large dark knife. Eventually, the SO was able to handcuff the Complainant.

WO #2 advised that he arrived at the door some 15 to 20 seconds after the SO, and heard shouts of “get down, you’re under arrest, stop” before he was able to see either of the officers in the hall way. WO #2 then ran down the hallway, where he located WO #3 on the floor struggling with CW #1, while the SO was on his feet struggling with the Complainant. WO #2 described the scene as dynamic, with blood on the floor and the wall, money strewn about the floor and a black Rambo style hunting knife on the stairs by WO #3 and CW #1. WO #2 immediately screamed “Stop! You are under arrest!” WO #2 advised that out of concern for WO #3’s wellbeing, he then approached and delivered punches and kicks to CW #1’s torso and arms as CW #1 continued to resist. Once CW #1 was handcuffed, WO #2 turned toward the SO and the Complainant, who were both on the floor. WO #2 advised that he did not see how the Complainant came to be on the floor and he saw no strikes delivered to him; he then assisted in the handcuffing of the Complainant.

WO #1 advised that after WO #2 gave the command that the Complainant and CW #1 were to be arrested, he observed WO #3 come from the west and enter the door yelling out identifying himself as police. He then observed the SO enter behind WO #3, and five seconds later he and WO #2 entered. As WO #1 entered, he observed two different areas of interaction, with WO #3 on top of CW #1 and the SO on top of the Complainant. WO #1 observed a lot of struggling as both of the Complainant and CW #1 were actively resisting and fighting the police officers. WO #1 then went to assist WO #3, and, within 20 to 25 seconds, both of the Complainant and CW #1 were handcuffed. At the debriefing later, WO #1 first learned that CW #1 had struck WO #3 and that he had taken out a knife during the struggle and dropped it.

On the evidence of all of the police officers present, while CW #1 indicated that he punched WO #3 after WO #3 had grabbed onto the Complainant, all of the officers indicated that as soon as WO #3 entered, it was CW #1 that WO #3 grabbed onto.

It is however consistent as between all of the police officers and CW #1, that CW #1 immediately punched WO #3 in the head as soon as he entered the vestibule; with only the Complainant failing to include this detail in his statement.

While CW #1 indicated that he was unaware that WO #3 was a police officer and that he only identified himself as such after CW #1 had punched him, WO #3 indicated that he shouted out identifying himself as a police officer as soon as he entered the door and reached for CW #1, which evidence is consistent with that of WO #4, who was standing at the door at the time, and WO #1, who heard WO #3’s shouts over the radio as he observed him to enter the door.

It is undisputed, on all of the evidence, that police were lawfully in a position to arrest both of the Complainant and CW #1 for trafficking in a narcotic, or a substance represented to be a narcotic, contrary to The Controlled Drugs and Substances Act. While it was determined after the fact that the powder which was sold to the undercover officer was not in fact crack cocaine, police had reasonable grounds at the time to arrest and were acting lawfully pursuant to s.25 (1) of the Criminal Code.

In assessing the actions of police in attempting to arrest and take control of both of the Complainant and CW #1, I agree with the assessment by WO #2 that this was a dynamic situation. While CW #1 was a youth, he was not a small man standing at over six feet tall and approximately 170 lbs while the Complainant was roughly 5’10” and 220 lbs.

Furthermore, CW #1 was armed with a knife and he immediately punched WO #3 as he came through the door. Additionally, while the location chosen by the Complainant was ideal for a drug transaction, it was not ideal for making an arrest. The location chosen was ideal for a drug transaction in that as soon as the door swung closed, it effectively blocked anyone entering the vestibule, and would have blocked the police entering to arrest anyone had WO #4 not had the wherewithal to hold the door open. Had she released the door to enter to assist WO #3, she and WO #3 would have effectively been left at the mercy of two fairly large men, one of whom was armed, while other officers would have been blocked from assisting. In the time that it would have taken for the other police officers to gain entry to the building, a lot of harm could have been inflicted on the first two officers who entered the building. Furthermore, the area in which the arrest was carried out was not a large area, being the stairwell and landing, which would have allowed for limited mobility and thus limited tactical choices.

Taking into account all of these circumstances, I cannot find reasonable grounds to believe that the officers applied an excessive amount of force to apprehend the Complainant and CW #1 Taking into account that CW #1 punched WO #3 in the head almost immediately upon his entering the vestibule, I have no hesitation in finding that the police would have felt an urgency to apprehend and subdue both of the Complainant and CW #1 as quickly as possible.

Furthermore, while I fully accept that none of the police officers involved in the undercover operation wore any police identifiers, for obvious reasons, I do not accept the evidence of CW #1 that WO #3 only identified himself as police after CW #1 had punched him. Instead, I accept the evidence of WO #4, who was present at the door at the time, and WO #1, who heard WO #3’s shout out over the radio while he observed WO #3 enter through the door, which is fully consistent with the evidence of WO #2, WO #3 and the SO, in which they indicate that WO #3 identified himself as soon as he approached the door. While it may be that CW #1 did not hear the initial shout out, I am doubtful that is the case, as both the Complainant and CW #1 continued to struggle and resist even after other officers had arrived, all of whom shouted out the police warning.

On all of the evidence, I have some doubts with respect to the reliability of the versions of events provided by the Complainant and CW #1 due to a large number of inconsistencies between the statements of each and within the statements themselves and the physical evidence, including the nature of the injuries, as follows (which list is not exhaustive, but only a small sampling):

CW #1 estimated that he and the Complainant were beaten by police for some 20 minutes, when in fact, according to the notes of both the SO and WO #3, WO #2 gave the direction to move in for the arrest at 8:46 p.m., while the communications log indicates that WO #4 already called in for an ambulance and two cars to transport the prisoners at 8:48:20 pm, less than two minutes later. As such I am more inclined to accept the estimation by WO #1 that the entire interaction took closer to 15 to 20 seconds;

While WO #3 indicated that he began punching CW #1 when he observed him to pull out a large knife and hold it up just below shoulder height, and WO #2 openly conceded that he kicked and punched CW #1 in the torso and arms out of concern for the well-being of WO #3 and because CW #1 continued to resist, I note that these strikes were not of such force as to cause any injuries. On all of the evidence, had the officers punched, kicked and choked the Complainant and CW #1 for a period of 20 minutes to the degree as alleged by them, I would have expected to find far more serious injuries than the single broken nasal bone sustained by the Complainant and the bruising to CW #1;

The injuries observed on WO #3 are consistent with his being punched by the Complainant and CW #1 and undermine the assertions by both men that they at no time resisted police. I find that the injuries sustained by WO #3 are consistent and confirm his evidence, as well as that of all of the police officers present, that both of the Complainant and CW #1 were assaultive and resistant.

On the basis of these inconsistencies, while I fully accept that at least three of the police officers inflicted some strikes against the Complainant or CW #1 during attempts to effect an arrest, I find the evidence of the Complainant and CW #1 is both exaggerated and self-serving and, except where their evidence is supported by other evidence, I reject their evidence, preferring instead that of the five police officers, which is both internally consistent and consistent with the physical evidence.

While the SO indicated in his notes that he delivered two punches to the Complainant, which blows in all likelihood resulted in the fractured nasal bone sustained by the Complainant, after the Complainant raised his fists against him and after he had already observed the Complainant deliver a number of punches to WO #3, in these circumstances, I cannot find these actions to constitute an excessive use of force.

In coming to this conclusion, I have considered the decision of the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, which appears particularly relevant on this record, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell [(1981), 60 C.C.C. (2d) 211(B.C.C.A.)]:

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety. On this record, it is clear that the force used by the SO and the other officers involved in the arrest of the Complainant and CW #1 fell within the range of what was reasonably necessary in the circumstances and was directly proportionate to the resistance and force being used by the Complainant and CW #1 to avoid their arrest. On this record, I am unable to find that I have reasonable grounds to believe that any police officer involved in the apprehension and arrest of the Complainant and CW #1 used any more force than was necessary in the circumstances and I therefore do not find that I have the reasonable grounds required for the laying of criminal charges, and none shall issue.

Date: February 26, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit