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 41-year-old man during his arrest on April 28, 2017.

Notification of the SIU

On May 18, 2017, at 9:30 a.m., the Complainant called the SIU to report that on a Friday or Saturday in early May 2017 [determined to be April 28, 2017], he was at a residence on Bloor Street West, in Toronto, when he heard banging on his door. Once the Complainant answered the door he was met by two Toronto Police Service (TPS) officers, one male and one female.

The Complainant alleged that he was grabbed by the hand and then forcibly arrested for assault. During the arrest, oleoresin capsicum (OC) spray was deployed.

The Complainant was taken to a hospital where he was examined and a computed tomography (CT) scan was performed. The Complainant reported that he had sustained head and throat injuries, as well as a possible concussion.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

Subject officers

SO #1 Interviewed, and notes received and reviewed.

SO #2 Interviewed, and notes received and reviewed.

During the evening of April 28, 2017, CW #2 was parked outside a convenience store on Bloor Street West when he was approached by the Complainant. When CW #2 opened his window, the Complainant was angry with where CW #2 had parked, spat on him and threatened to cut off his head. CW #2 called 911.

SO #1 and SO #2 responded to the call, and witnesses indicated to them that the Complainant was upstairs in a nearby apartment. When the Complainant came down to speak with the officers, he was angry and confrontational. The Complainant refused to put his hands behind his back when directed, and a struggle ensued. The Complainant, SO #1 and SO #2 all fell to the ground. SO #1 deployed OC spray and, once WO #1 and WO #2 arrived, the officers were finally able to handcuff the Complainant.

The Complainant was taken to the hospital where a CT scan was completed and it was determined that there were no fractures, but the Complainant had sustained a soft tissue injury to his head.

On May 4, 2017, the Complainant visited his family doctor, who concluded that the Complainant sustained a significant contusion to his head and a possible mild concussion.

The scene

The location of the incident on Bloor Street West is a two-storey building on the north side of Bloor Street with a commercial business on the lower level and residential apartments on the second level. There is an alcove out front of the address with a door on the right, leading to the business, and a second door that leads to a staircase for the second storey. The ground outside the address is paved concrete.

To the west of the building is a bar/restaurant and next to it is a convenience store.

Bloor Street West has two westbound lanes and two eastbound lanes with public parking meters along the curb lanes.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence.

The SIU received a copy of closed-circuit television (CCTV) video from the convenience store relevant to the incident. TPS also provided the video recording of the Complainant’s booking at the TPS division, and subsequent transport to court.

Convenience store CCTV

On Friday, April 28, 2017, at 6:43:17 p.m., CW #2 parked his white sport utility vehicle (SUV) in the curb lane, on the north side of Bloor Street West, at least one car length ahead of a dark coloured sedan.

At 6:44:45 p.m., the Complainant exited the dark sedan, approached the driver side of the white SUV and appeared to engage CW #2 in dialogue.

At 6:45:39 p.m., the Complainant leaned toward CW #2 and appeared to spit in CW #2’s face. CW #2 exited his vehicle, and the Complainant appeared to continue the conversation while standing very close to CW #2. The Complainant raised his hands in the air and returned to his vehicle.

At 6:46:37 p.m., the Complainant exited his vehicle holding a cellular phone and he appeared to take a picture of CW #2, then the Complainant uttered several words and returned to his vehicle. At 7:38:49 p.m., the Complainant entered an alcove at the building on Bloor Street West and disappeared from camera view.

At 8:50:50 p.m., two police officers, now known to be SO #1 and SO #2, arrived and spoke with members of the public, who pointed up toward a second storey. SO #1 and SO #2 entered the alcove, presumably to knock on the Complainant’s apartment door.

At 9:04:17 p.m., SO #1 entered the alcove again. SO #2, who was taking a statement from CW #2, left CW #2 to assist SO #1. The police officers entered the alcove and disappeared from camera view.

At 9:07:15 p.m., SO #1 and SO #2 appeared on the camera falling to the ground with the Complainant beneath them, in front of the alcove. The Complainant was positioned on his back, facing SO #1 and SO #2, and he used his left elbow to prop up his upper body. SO #1 pushed the Complainant’s torso against the ground with his left hand and the Complainant’s shoulders made contact with the ground, then the back of his head made contact with the ground. The Complainant struggled and resisted the police officers, who attempted to restrain him. The camera’s field of view was obstructed by several members of the public, who gathered to watch the event unfold.

At 9:09:44 p.m., two additional police officers, now known to be WO #1 and WO #2, arrived to assist in restraining the Complainant.

The video recording did not show the police officers using any use of force option other than empty hand techniques against the Complainant during their attempt to restrain him.

Booking video

On Thursday, April 29, 2017, at 2:30 a.m., the Complainant entered the booking hall with WO #1 and WO #2, to be paraded in front of the booking sergeant. At 2:32 a.m., the Complainant stated that he had to work in the morning and asked how long the process would take. WO #1 explained to the booking sergeant that the Complainant was under arrest for assault, uttering threats and assault with intent to resist arrest.

Communications recordings

Event details report and communications recording

At 6:52 p.m., CW #2 called the police and advised the dispatcher that an unknown man, now known to be the Complainant, knocked on his vehicle window and asked why CW #2 was parked in that location. CW #2 said that he told the Complainant to go to hell, and the Complainant then spat on CW #2 and threatened to cut off his head.

At 8:48 p.m., SO #1 and SO #2 arrived at the scene.

At 9:07 p.m., SO #2 requested another unit to assist. A man, presumed to be SO #1, said, “Arresting you, I told you that.”

At 9:11 p.m., WO #1 and WO #2 reported they had one person in custody and an ambulance was requested.

Materials obtained from Police Service

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

• Automated Dispatch System (ADS) Summary Sheet - Summary of Conversation
• Event Details Report
• General Occurrence Report
• Notes of WO #1 and WO #2
• Injury Report
• Use of Force Training Record – SO #1 and SO #2
• TPS Arrest Procedure
• TPS Use of Force Procedure
• Booking and transport to court video recordings, and
• Communications recordings

Section 264.1, Criminal Code - Uttering threats

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

1. to cause death or bodily harm to any person
2. to burn, destroy or damage real or personal property; or
3. to kill, poison or injure an animal or bird that is the property of any person

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 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 April 28^th, 2017, a 911 call was received by the Toronto Police Service (TPS) at approximately 6:52 p.m. requesting police assistance at a convenience store on Bloor Street West in the City of Toronto. The caller, CW #2, advised that he had been seated in his car when an unknown male knocked on his window following which the male spat in CW #2’s face and threatened to cut his head off. As a result, SO #1 and SO #2 were dispatched to the scene to investigate, and subsequently arrested the Complainant for assault and uttering threats contrary to the Criminal Code. Following the interaction with police, the Complainant was transported to hospital and was assessed with a soft tissue injury. On May 4^th, 2017, the Complainant went to see his own doctor, who opined that the Complainant had sustained a significant contusion to his head as well as a possible mild concussion. The Complainant also complained that he had suffered significant psychological trauma.

The Complainant, in his statement to SIU investigators, alleged that SO #1 lunged at him when he was first approached, and both officers forcefully took him to the ground. The Complainant advised that he fell backwards and hit the back of his head on the concrete, and, once he was on the ground, with both officers holding his arms, SO #1 deployed OC spray into his eyes and then pressed his right knee against the Complainant’s throat.

During the course of this investigation, three civilian witnesses, including the Complainant, as well as four police officers, including SO #1 and SO #2, were interviewed. Additionally, investigators had access to the notes prepared by each of the officers in their memorandum books, as well as CCTV footage from the convenience store, the 911 and police radio transmission recordings, the booking video from the police station and the medical records of the Complainant.

The 911 call and the CCTV from the convenience store fully confirm CW #2’s version of events. The video footage showed CW #2 park his motor vehicle in the curb lane on the north side of Bloor Street West at least one car length ahead of a dark coloured sedan. At 6:44:45 p.m., the Complainant is seen to exit the sedan and approach CW #2, who was seated in his motor vehicle, and he appears to spit in CW #2’s face. CW #2 exited his vehicle and the Complainant continued to speak with CW #2, while standing in very close proximity to him. The Complainant is then seen to raise his hands in the air and return to his vehicle. At 6:46:37 p.m., the Complainant is seen to exit his vehicle again and take a photo of CW #2 with his cell phone and then the Complainant is seen to utter several words to CW #2 and again return to his vehicle. At 6:52 p.m., CW #2’s 911 call is recorded.

The CCTV footage reveals that at 7:38:49 p.m., the Complainant enters the alcove at the building on Bloor Street West and disappears from view. The CCTV footage also shows SO #1 and SO #2 arriving on scene at 8:50:50 p.m. and speaking with members of the public, who point up toward a second storey, most probably indicating the Complainant’s apartment location. SO #1 and SO #2 are then seen to enter the alcove to the building, presumably to knock on the door. At 9:04:17 p.m., SO #1 re-attends the alcove while SO #2, who was seen taking a statement from CW #2, then approaches SO #1 and both enter the alcove and disappear from view. At 9:07 p.m., the radio transmission recording indicates that SO #2 called for another unit to attend their location to assist, while SO #1 is heard in the background saying, “Arresting you, I told you that”. The CCTV footage reveals that at 9:07:14 p.m., SO #1 and SO #2 appear back on camera in front of the alcove, as they are falling to the ground with the Complainant beneath them. The Complainant is seen with his back to SO #1 and SO #2 and he is using his left elbow to prop up his upper body. SO #1 is then seen to push the Complainant’s torso against the ground with his left hand and the Complainant’s shoulder makes contact with the ground. The back of the Complainant’s head then also makes contact with the ground while the Complainant continues to struggle and resist the officers, who are attempting to restrain him. At that point, members of the public obstruct the camera view as they watch the incident. At 9:09:44 p.m., two additional police officers are seen to arrive and assist in restraining the Complainant. The video does not reveal any use of force option being deployed by either officer, other than empty hand techniques. The use of the OC spray is not visible on the CCTV, probably due to members of the public surrounding the three parties at the time it was used and blocking the view.

The Complainant’s medical records from the hospital confirm that he arrived there at 10:15 p.m. and a CT scan was completed and revealed no fracture or intracranial hemorrhages and the Complainant was assessed as having sustained a soft tissue injury to his head.

The statements of SO #1 and SO #2 are fully consistent with the statement of CW #2, as well as both the CCTV footage and the police radio transmission recordings.

SO #1 advised that he and SO #2 arrived at the building on Bloor Street West at approximately 8:45 p.m. and spoke with CW #2, who confirmed the information he had provided in the 911 call. SO #1 determined that based on the information as provided by CW #2, he had reasonable grounds to arrest the Complainant for utter threats (s. 264.1) and assault (s.266) contrary to the Criminal Code and he had further information that the incident was unprovoked and that the Complainant had acted unpredictably. SO #1 advised that bystanders from a nearby bar advised him that the man they were looking for was upstairs in an apartment and he approached the building and knocked on the door, but no one answered. Shortly thereafter, SO #2 advised him that she had seen the Complainant standing at the top of the stairs and SO #1 returned and knocked on the door again. The Complainant then came downstairs and opened the door and said words to the effect of “What the fuck do you want?” SO #1 attempted to speak to the Complainant regarding the incident with CW #2 but the Complainant advised he had nothing to say and that SO #1 did not know who he, the Complainant, was. As confirmed by the radio transmission recording, SO #1 then advised the Complainant that he was under arrest for assault and threatening death and he told the Complainant to put his hands behind his back. SO #1 advised that he then put his right hand onto the Complainant’s left elbow, whereupon the Complainant said, “No I’m not,” and pulled his arm away and a wrestling match ensued. SO #2 then approached to assist SO #1 in trying to gain control of the Complainant.

SO #1 described the Complainant as large and strong and that he was actively resisting. On a scale of one to ten, both SO #1 and SO #2 estimated the Complainant’s resistance qualified as a ten. SO #1 advised that he observed the Complainant to be clenching his teeth and his eyes were bulging and SO #1 was concerned about what might happen. SO #1 advised that he was of the view that he might have been able to end the interaction with the Complainant by delivering strikes to him, but he was concerned how that might look to the bystanders who had gathered to watch. SO #1 advised that he and SO #2 continued to wrestle with the Complainant and SO #1 tried to trip him to the ground, but was unable to do so. He estimated that the struggle lasted some four minutes before the Complainant was finally taken to the ground with SO #1 and SO #2 going down with him. SO #1 advised that all three were entangled as they fell to the sidewalk and he was unsure which part of the Complainant’s body made contact with the pavement. SO #1 advised that he became tired and he told SO #2 that they had to end this and he was going to deploy his OC spray on the Complainant. SO #1 and SO #2 then both moved back and SO #1 deployed the OC spray in the Complainant’s face. The spray had the desired effect and they were then able to gain control of the Complainant. Other police officers arrived and the Complainant was handcuffed. SO #1 advised that at no time did he deliver any strikes during the altercation with the Complainant, neither did the Complainant deliver any strikes against himself or SO #2. SO #1 further advised that at no time did he hit the Complainant’s head off the wall or the ground. SO #2 indicated as well that the Complainant’s head was never deliberately smashed against a wall, but that she too was unaware of which part of the Complainant’s body made contact with the sidewalk when they took the Complainant to the ground. Both SO #1 and SO #2 received bumps and scrapes during the altercation.

WO #1 and WO #2 both advised that they responded to the call for back up from SO #2 and that, upon arrival, they observed SO #1 and SO #2 positioned over top of the Complainant, who was face down on the sidewalk. WO #2 advised that the Complainant was actively resisting at the time and attempted to get up off the ground, as a result of which WO #2 put his knee on the Complainant’s back to prevent him from doing so. The officers directed the Complainant to put his hands behind his back, but he did not comply. One of the officers then shouted to WO #1 to handcuff the Complainant, and WO #1 did so. Neither WO #1 nor WO #2 ever saw any police officer strike the Complainant, nor did the Complainant ever strike any police officer.

Based on the evidence of CW #2, as confirmed by the CCTV footage and the police radio transmissions recording, and as fully consistent with the evidence of all four police officers involved with the Complainant, I have no difficulty whatsoever finding that SO #1 had reasonable grounds to arrest the Complainant for assault and utter threats contrary to the Criminal Code, and that the Complainant actively resisted the police officers in their attempts to arrest and handcuff him. Furthermore, on all of the evidence, I have no difficulty finding that at no time did any police officer strike the Complainant or employ any use of force options, other than taking the Complainant to the ground and deploying OC spray at him in order to gain control and to overcome his active resistance. The evidence is further clear that if the Complainant did sustain a serious injury, which is not definitive based on the evidence of CW #1 and was not supported by the CT scan at hospital, that the injury would have been caused when the Complainant was taken to the ground with both officers falling with him, and striking the concrete sidewalk. While there is little dispute between the evidence of the Complainant and that of CW #2, SO #1 and SO #2 as to what occurred between the two officers and the Complainant, I do not accept the Complainant’s assertion that SO #1 placed his knee against the Complainant’s throat, as this is inconsistent with all of the other evidence, and, in my view, it is illogical that SO #1 would have done so while he was surrounded by members of the public, none of whom said or did anything to object or to assist the Complainant.

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 statement of CW #2, and from the information in the possession of police at the time, that SO #1 had reasonable grounds to believe that the Complainant had committed the offences of assault and utter threats contrary to the Criminal Code, and therefore he was arrestable for those offences. As such, the arrest and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by SO #1 and SO #2 in their attempts to arrest and subdue the Complainant, I find that their behaviour was more than justified in the circumstances and that they used no more force than necessary to subdue the Complainant, who was a large and apparently powerful man who was actively resisting police. And while I find that if the Complainant did suffer a serious injury, which is unclear, I find that it was caused when he was taken to the ground by SO #1 and SO #2 and possibly struck his head on the pavement. Despite that conclusion, however, I cannot find that to have been an excessive use of force. I find that the degree of force with which the Complainant struck the pavement was unforeseeable and may have been greater than intended as the momentum increased with the officers falling with the Complainant due to his active resistance. On this record, it is clear that the force used by both SO #1 and SO #2 progressed in a measured and proportionate fashion to meet and overcome the Complainant’s ongoing resistance, based on his apparent disbelief that he was being arrested, and fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention.

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 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 both SO #1 and SO #2 fell within the range of what was reasonably necessary in the circumstances to effect the Complainant’s lawful arrest.

On all of the evidence, it is clear that at no time did either officer strike, kick, or punch the Complainant, but rather opted to take him to the ground in order to attempt to gain compliance, as they are trained to do. Additionally, SO #1 only resorted to a non-lethal use of force option, the OC spray, when he realized that he was tiring and would be unable to continue to struggle with the Complainant unless he resorted to some other option in order to bring the incident to an end.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention and the manner in which it was carried out were lawful notwithstanding the injury which he may have suffered, the evidence of which is inconclusive. 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: February 20, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit