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 54-year-old man during the execution of a search warrant on May 27, 2017.

Notification of the SIU

On May 29, 2017, at 11:11 p.m., the Toronto Police Service (TPS) contacted the SIU and notified of the Complainant’s custody injury.

TPS reported that on Saturday, May 27, 2017, at 9:07 p.m., Emergency Task Force (ETF) and Guns and Gangs Task Force (GGTF) officers executed a drug search warrant at a house in Etobicoke. The subject of the warrant was the Complainant’s son. There was an interaction between the Complainant and TPS officers. The Complainant was arrested and taken to a hospital, where he was cleared of any injuries except for a scratch to his cornea.

On May 29, 2017, TPS subsequently confirmed that the Complainant had attended the hospital and was diagnosed with a fractured orbital bone.

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 and photography.

Complainant

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

Civilian Witnesses[1]

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right.

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right.

During the late evening of Saturday, May 27, 2017, ETF and GGTF officers attended a residence in Etobicoke to execute a warrant to search for illegal firearms.

At the time, the Complainant, CW #1, and the Friend were at home. The Complainant was sleeping. The ETF officers used battering rams and a “flash device” to enter.

When SO #1 entered the front door of the home with his firearm drawn, the Complainant believed he was being robbed and grabbed the barrel of the long rifle. A struggle ensued between the Complainant, SO #1, and SO #2. In an effort to release the Complainant’s grasp on the rifle, SO #1 and SO #2 struck the Complainant several times on his face and body. The Complainant released his grasp and was handcuffed.

Once the scene was secured, an ambulance attended and transported the Complainant to the hospital. At that time, the Complainant was diagnosed with only a scratch to his cornea. The Complainant was later returned to his house and released with no charges.

The next day, the Complainant felt dizzy and attended the hospital again, where he was diagnosed with acute comminuted fractures of the anterior wall of the right maxillary sinus and left zygomatic process (facial orbital bones).

The scene

The scene was located inside the foyer area of the Complainant’s house. There were two entrances located at the house. One entrance is located in front of the house and the other entrance is located at the side of the house. Both entrances lead to a common foyer area.

Physical evidence

Search warrant

The SIU obtained and reviewed a copy of the Telewarrant to Search executed at the Complainant’s property.

The Telewarrant was requested by TPS to search for and seize firearms, ammunition, magazines, firearm parts and paraphernalia, and any documents related to firearms from the Complainant’s house and his garage, between 8:30 p.m. on May 27, 2017 until 11:59 p.m. on May 29, 2017.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. The SIU located a closed circuit television (CCTV) recording device outside the front door of the residence, but there was nothing recording inside the residence. The Complainant provided photos of his injuries.

Materials obtained from Police Service

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

• Communications recordings
• ETF Report
• Event Details Reports
• Notes of WO #1 and WO #2
• Sealing Order
• Automated Dispatch System (ADS) Summary Sheet - Summary of Conversation, and
• Telewarrant to Search and search warrant package

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 27^th, 2017, TPS was in possession of a valid, duly authorized search warrant to enter and search the house and garage of a residence in Etobicoke for illegal firearms. During a pre-search briefing, it was decided that entry would be made by the ETF, following which the officers from the GGTF would enter and search. The target of the search warrant was the son of the Complainant, who resided at that address. At approximately 10:51 p.m., the ETF used battering rams to breach both the front and side entrances to the residence and a distractionary device (a “flash bang” device) was deployed. At the time that the search warrant was executed, the house was occupied by the Complainant, CW #1, and the Friend. During the course of the entry, all three occupants were detained and handcuffed. The Complainant was taken thereafter to hospital by ambulance where he was initially diagnosed as having sustained a scratch to his cornea, but after returning the following day, as a result of feeling dizzy, he was found to have sustained acute fractures of the anterior wall of the right maxillary sinus and left zygomatic process (cheekbone).

The Complainant alleges that he was unaware that the men entering his home were police officers, and, upon their entry, he grabbed the barrel of the long rifle with his hands and pushed against it. As he pushed against the long rifle, he was struck several times on his face and was then pushed to the floor, and struck in the ribs several times.

During the course of this investigation, three civilian witnesses, including the Complainant, and three police witnesses were interviewed. Both SO #1 and SO #2 declined to be interviewed or to provide their memorandum book notes, as was their legal right. Investigators also had access to the police communication recordings, the search warrant notes taken during the execution of the search warrant, the medical records of the Complainant and the memorandum book notes of the witness officers. There is little dispute as to the facts.

WO #1, who was in charge of the two ETF teams who were tasked with making entry to the residence, advised that he had been requested to assist the GGTF to enter and conduct a search at that residence for illegal firearms. WO #1 advised that there had been a briefing and a plan was formulated whereby the ETF officers would enter the home through the side and front entrances and apprehend all persons inside the house to allow the GGTF officers to search the house and garage pursuant to the warrant. WO #1 had two ETF teams attend, with seven officers on each team, and one was to breach the front door while the other would breach the side entrance. Each team was equipped with one battering ram, in order to breach the doors, and they were authorized to use distractionary devices, such as “flash bangs”, when making entry. WO #1 advised that at 10:51 p.m., he was in the driveway and saw the ETF officers ram the doors and simultaneously yell, “Police, search warrant, get down.” WO #1 then heard, but did not see, SO #1 struggling with someone at the front door and estimated that the struggle lasted for approximately one minute. Once the officers indicated that the house had been secured, WO #1 advised that he entered and observed the Complainant lying on the floor bleeding from the head.

WO #1 was later told by SO #1 that the Complainant had grabbed the barrel of his rifle as SO #1 tried to enter the house and that SO #1 believed that the Complainant was attempting to disarm him and SO #1 pulled his rifle away from the Complainant, whereupon he was assisted by SO #2 and they took the Complainant to the floor. When the Complainant continued to hold onto the barrel of SO #1’s rifle, after he landed on the floor, SO #1 advised that he and SO #2 both struck the Complainant with their hands. SO #2 also advised WO #1 that he recalled that the Complainant was trying to grab his rifle as well, when he was on the floor. SO #1 and SO #2 then both struggled with the Complainant for a few seconds, when they were able to handcuff him behind his back. Once handcuffed, the officers advised, the Complainant calmed down. WO #1 advised that he also spoke to the Complainant who advised him that he had been sleeping when he heard someone entering his home and he thought he was being robbed.

WO #2, an ETF officer, advised that he had been assigned to breach the side door with a battering ram and he did so at approximately 10:51 p.m., following which he yelled several times, “Police, search warrant”. A “flash bang” device was also deployed inside the house. WO #2 advised that once he entered the house, he observed SO #1 and SO #2 struggling with the Complainant. Since there were enough ETF officers present to assist, he paid no further attention.

WO #3 of the GGTF advised that at approximately 10:51 p.m., he heard two loud bangs, which he attributed to either the breaching of the two doors or the deployment of the “flash bangs”. When WO #3 entered the home, he observed the Complainant with an injury to his left eye and observed paramedics treating him. WO #3 provided the Complainant with a copy of the search warrant and the GGTF officers then searched the house. Four replica firearms were located. The Complainant was then taken to hospital by ambulance and WO #3 followed. At the hospital, the Complainant advised WO #3 that he believed that his house was being robbed when he heard the front door being kicked in. At hospital, WO #3 advised that the Complainant was diagnosed with a scratch to his left cornea, but he received a call from the Complainant the following day advising that he had re-attended the hospital and they had discovered that he had sustained orbital fractures.

On the evidence before me, I have no difficulty finding that police officers from both the ETF and the GGTF were lawfully entitled to enter and search the residence pursuant to a judicially authorized search warrant. I further find that police resorted to the use of two battering rams, one at each entrance, in order to gain entry to the residence, and thereafter that they deployed one or more distractionary “flash bang” devices. It is understood that a “flash bang” device is generally deployed in order to distract occupants inside the residence and thereby allow police officers more opportunity to safely enter a residence. I also accept that police officers identified themselves when they entered the house. I accept the evidence of WO #1, who was located in the driveway, that police officers entering shouted out “Police, search warrant, get down”; this evidence is also consistent with that of WO #2. I have no difficulty, however, based on the fact that the Complainant had been sleeping and that he was woken suddenly by both the deployment of the battering rams at the entrances to his home and the “flash bang” device(s), in finding that in all of the confusion, the Complainant may not have been able to comprehend the shouts of the police officers. I also accept that the Complainant may have believed that his home was being robbed and that he needed to act in order to defend his family from these unwelcome and potentially violent intruders and that he grabbed for the firearm of SO #1 for that reason. While it is clear that the persons entering the residence were clearly in uniform and identifiable as police officers, I accept that the Complainant, who had just woken from sleep, grabbed onto the barrel of the rifle entering his home before he actually saw SO #1, who was leading with his firearm, and as such he may have been unaware that he was a police officer.

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 that police officers were in possession of a judicially authorized warrant to enter and search the residence and as such they were lawfully entitled to enter the premises. In order to prevent any interference with the execution of the warrant, and for the safety of the police officers present, officers were also entitled to detain any occupants of the residence until the warrant had been executed and the search completed. When the Complainant grabbed onto SO #1’s firearm, SO #1 was certainly entitled to engage the Complainant in order to avoid being disarmed and his firearm potentially coming into the hands of a civilian who could potentially cause harm and/or death to the police officers present. As such, the swift apprehension and detention of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by SO #1 and SO #2, in attempting to break the hold that the Complainant had on SO #1’s rifle and thereby preventing a possible potentially lethal attack on police officers, I find that the situation in which SO #1 found himself was one that left him with few options and was potentially extremely dangerous not only to SO #1 but to his fellow officers. I cannot imagine many more dangerous situations than a police officer being disarmed of his firearm and possibly having it turned against him or other officers. I further believe that this was an extremely loud, fast moving, and fluid situation and that the adrenaline was undoubtedly running high and the pressure on SO #1, and later SO #2, to maintain control of their firearms, and of the situation, must have been enormous. I also have no difficulty accepting that the fact that the officers were aware that the search warrant being executed was for the search of illegal firearms would have further heightened the concern of officers when they were suddenly attacked by a man attempting to disarm them. As such, despite the fact that undoubtedly the injuries caused to the Complainant were caused by SO #1 and SO #2, I cannot find that their actions constituted an excessive use of force. I accept that SO #1 struck the Complainant in the face several times when the Complainant was grabbing onto SO #1’s rifle, and that after he was taken to the floor, and continued to hold onto the weapon, he was then struck in the area of his ribs several times in order to get him to release his grip on the firearm. I further accept on the evidence of the Complainant, as confirmed by CW #1 and based on the utterances of both SO #1 and SO #2 to WO #1, that once the Complainant was subdued and handcuffed, he calmed down, and there were no further strikes directed at him by any police officer.

On the basis that this was an emergency situation that was fast-paced and potentially lethal, I find that the actions of SO #1 and SO #2 were justified in the circumstances in applying force in attempts to prevent being disarmed of their firearms by a person found in a house that was suspected of containing illegal firearms and who may have been the target of the search. I draw support in this conclusion from 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 SO #1 and SO #2 in attempting to release the hold that the Complainant had on SO #1’s firearm fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention and to remove the risk that he continued to pose as long as he had his hands on the police officer’s rifle.

In the final analysis, I am satisfied for the foregoing reasons that the actions of SO #1 and SO #2 in removing the Complainant’s hold on SO #1’s firearm, and the manner in which they did so, were lawful notwithstanding the injuries which the Complainant suffered. I believe it is fortunate that the firearm did not accidentally discharge and that the Complainant was not shot as he held onto the barrel of SO #1’s firearm and struggled with him over the control of his rifle. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by SO #1 and SO #2 fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: January 9, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The friend of CW #1 (the Friend) who was present in the residence was not interviewed as he did not respond to a request to speak with investigators. Additionally, according to the statements of the Complainant and CW #1, the Friend was not present during the interaction between the Complainant and the police which led to his injuries. [Back to text]