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 59-year-old man on April 12, 2017 during his arrest for assault.

Notification of the SIU

On April 13, 2017, at 4:52 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury.

TPS reported that on Wednesday, April 12, 2017, at 10:30 p.m., TPS police officers, [now known to be the Subject Officer (SO) and the Witness Officer (WO)] interviewed the Complainant’s spouse (the Spouse) and formed grounds to arrest the Complainant for assault. As the police officers reached out to arrest the Complainant, he fell to avoid them, striking his face.

The Complainant’s nose was bleeding and he was taken to the hospital where he was diagnosed with a hairline fracture of the nose. The Complainant was returned to a TPS division where, at the time of notification, he was being held in police custody.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

Witness Officers

WO Interviewed

Additionally, the notes from one other, non-designated officer[1] were received and reviewed.

Subject Officers

SO Interviewed, and notes received and reviewed.

During the late evening on April 12, 2017, the Spouse called 911 to report that her husband was intoxicated and had assaulted her. The SO and the WO responded to the call.

When the SO and the WO arrived at the apartment, they found the Complainant asleep on the couch. Once the officers were able to rouse the Complainant, he struggled to sit and then stand up. The Complainant was clearly intoxicated, and was unsteady on his feet and struggled to dress. Intent on arresting the Complainant for domestic assault, the SO instructed the Complainant to turn around and to put his arms behind his back. The Complainant complied.

The SO advised the Complainant that he was under arrest for assault and took hold of the Complainant’s right wrist. The Complainant pulled away from the SO. The SO released the Complainant’s wrist as he pulled away. The Complainant fell forward, landing directly onto his face.

The SO handcuffed the Complainant while he was lying face down on the floor. Once the Complainant sat up, it was apparent that he had an obvious injury to his facial area. The WO called for an ambulance, and paramedics arrived at the apartment and assessed the Complainant. He was transported by ambulance to the hospital, and was diagnosed with a broken nasal bone.

The Scene

There was no injury scene for examination by SIU Forensic Investigators as the area of the incident had been cleaned by the Spouse and/or her daughter (the Daughter). The living room floor upon which the Complainant fell was made of hardwood.

Materials obtained from Police Service

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

• Communications recordings
• Station videos (booking, release, cell)
• In-car camera (ICC) video – the SO’s cruiser
• Contact Summary – the Complainant
• Event Details Report
• General Occurrence Reports (two)
• Notes of the WO
• Notes of a non-designated officer
• Procedure - Use of Force
• Promise to Appear and Undertaking – the Complainant
• Automated Dispatch System (ADS) Summary Sheet - Summary of Conversation
• TPS Witness Statement (the Daughter)
• TPS video statement (the Spouse)
• Training Record – the SO

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 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

On April 12^th, 2017, at 10:32:08 p.m., a 911 call was received by the TPS from the spouse of the Complainant (the Spouse). The Spouse advised that her husband, the Complainant, was an alcoholic, had been drinking at that time, was drunk and behaving aggressively, and had pushed and shoved her. As a result of this call, a cruiser with the SO and the WO was dispatched at 11:11:53 p.m. and arrived at the address at 11:32:55 p.m. The Complainant was subsequently arrested for domestic assault and was transported to the hospital where he was diagnosed with “a minimally displaced fracture involving the distal 3 mm tip of the nasal bone”.

In his statement to investigators, the Complainant alleged that the two police officers grabbed and twisted his arms and hands behind his body. The Complainant denied resisting. The Complainant alleged that one of the officers then knocked him off his feet and he landed directly on his face on the floor. The Complainant further indicated that he had only 200 grams of dry wine on that date.

Despite the assertion of the Complainant of the minimal amount of wine that he had consumed that day, both the Spouse and the daughter of the Complainant (the Daughter), respectively, appear to have been of the view that the Complainant was intoxicated at the time of his interaction with police. The Spouse, in her 911 call, which was recorded, indicated that her husband was an alcoholic and that he was drunk and had pushed her; she repeated her assertion that he was drunk again later in the call. The Daughter, in her statement to police, indicated that she assumed that her stepfather was “very drunk”.

The SO, in his statement, advised that he and his partner, the WO, were dispatched to the address for a domestic in progress and arrived at approximately 11:32 p.m. Upon arrival, the Daughter met the officers in the lobby and confirmed that the Complainant had been drinking and that he and her mother were having a domestic dispute. Upon arrival at the apartment, the Spouse showed the officers a 1.5 litre bottle of white wine and told them that the Complainant drank three to four bottles per day. The Spouse also advised that the Complainant had started drinking wine earlier in the day, they had argued and he had pushed her and threatened to punch her. The SO then directed both women to go into the bedroom to get dressed in order that they could attend the police station to provide statements.

The SO and the WO both advised that they located the Complainant sleeping on a futon in the living room and that the SO approached him, removed the blanket, and tapped his right shoulder in order to wake him. As the Complainant was not wearing any pants, the WO retrieved them from a nearby chair and handed them to the Complainant. The Complainant, who was still lying on the futon, appeared shocked to see the two police officers. The WO advised that the Complainant initially refused to put his pants on, but that the SO was able to encourage him to stand up whereupon the WO observed the Complainant to be unsteady on his feet and wobbling, and she could smell the odour of alcohol on him. The WO advised that the Complainant almost fell over while putting his pants on, while the SO described him as struggling to do up his belt.

The SO advised that he then directed the Complainant to turn around so that he faced away from the officers and put his hands behind his back. The Complainant initially complied, but as the SO told the Complainant that he was under arrest for assault and took hold of his right wrist, the Complainant tensed up, made a fist with his left hand, said “No,” and pulled away just as the SO was reaching for his handcuffs. The SO was still holding onto the Complainant’s right wrist as he pulled away, but he then let go and the Complainant’s momentum caused him to fall forward onto his face on the hardwood floor. The SO advised that he tried to save the Complainant from falling by grabbing at his right shoulder, but the Complainant was a large and heavy man, and he was unable to hold him up. The SO described the Complainant as making no attempt to break his fall.

The WO described the SO as instructing the Complainant to turn around as he informed him that he was under arrest for assault. The SO then grabbed the Complainant’s right wrist in order to place the handcuffs on him, when the Complainant resisted, said “No!” and pulled away while simultaneously turning away from the SO and falling forward, landing face first on the hardwood floor. The WO indicated that the SO thrust his hand forward to break the Complainant’s fall but that the Complainant fell away from the SO with his hands at his side; the Complainant did nothing to try to break his fall and sustained a cut to the bridge of his nose which bled heavily. Both the SO and the WO indicated that they did nothing to cause the Complainant to fall.

Thereafter, the Complainant was handcuffed with his hands behind his back and sat up and both officers applied paper towels to the bridge of his nose to stem the bleeding. The WO contacted a sergeant and also requested an ambulance to take the Complainant to hospital. The SO advised that the Complainant complained several times that the handcuffs were too tight and the SO loosened them a number of times.

Once at hospital, the Complainant underwent a computed tomography (CT) scan and it was discovered that he had sustained a minimally displaced fracture involving the distal three mm tip of his nasal bone.

On all of the evidence, but with particular attention to the utterances made by the Spouse as well as the statement of the Daughter, which fully confirm the evidence of the two police officers with respect to the Complainant’s state regarding alcohol consumption, I have no difficulty finding that the Complainant was well under the influence of alcohol at the time of his interaction with the SO and the WO. I find that his level of intoxication would explain some of the inconsistencies in his statement, including the gender of the officers (he indicated they were two male officers, while they were in fact one male and one female), how the officers entered the apartment (he believed that the officers knocked and entered while in fact the Daughter had gone downstairs and escorted them into the apartment), and how he was transported to the hospital (he believed that he walked to the police cruiser and the police then drove him in their cruiser, while he was in fact transported on a stretcher from the apartment and went to hospital by ambulance). I find this last inconsistency regarding how he was transported to the hospital very telling with respect to the unreliability of the Complainant’s memory.

I have no difficulty in finding that the Complainant’s state of alcohol intoxication was the primary cause of his fall. Overall, I find that there is little actual inconsistency between the evidence of the Complainant and the two police officers with respect to the actual cause of the Complainant’s injury and that the differences are more of perception than of credibility; the Complainant’s perception, unfortunately, being coloured by his level of intoxication. While the Complainant was of the view that one of the police officers knocked the Complainant off his feet and to the floor, I find it far more likely that the combination of the Complainant, in his surprise at being arrested, pulling away from the SO, which caused the SO to suddenly release his hold on the Complainant’s arm, causing a build-up of momentum, resulted in the Complainant falling. I find further support in this conclusion from the fact that the Complainant was unable to put his hands out to break his fall because the SO had been holding the Complainant’s arm behind his back to handcuff him when the Complainant pulled away, thereby preventing him using his arms to break his fall. It is a combination, then, of the actions of the Complainant, which led to the reaction of the SO, which I find to be responsible for the Complainant’s injury. Furthermore, on the whole of the evidence, I can find nothing to indicate that other than the SO’s actions in taking the Complainant’s arm to arrest him and then releasing him, that there was any use of force by either officer against the Complainant, other than the minimal amount required to handcuff him.

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 information provided to officers in the 911 call, as confirmed by the Spouse at the residence, that officers had reasonable grounds to believe that the Complainant had assaulted and threatened his wife and was therefore arrestable pursuant to the Criminal Code. As such, the arrest of the Complainant was legally justified in the circumstances.

Although I find that the SO’s actions in holding onto the Complainant and then releasing him may have inadvertently contributed to the Complainant’s fall, which led to his injury, I find that pursuant to section 25(1) of the Criminal Code, the SO used no more force than was reasonably necessary in the execution of his lawful duties in apprehending an intoxicated man who reacted in an unexpected fashion to the SO’s attempt to handcuff him and whose fall was completely unforeseeable. I find that it was the Complainant’s actions in pulling away from the SO which ultimately resulted in the chain reaction which led to the unfortunate accident wherein the Complainant fell to the floor and struck his nose on the hardwood. I further find that the SO was not responsible for that unfortunate accident, as he was simply carrying out his duties in arresting a male for whom he was in possession of information which gave him reasonable grounds to believe that he had committed one or more criminal offences.

As indicated earlier, I find that it was the combination of the Complainant’s pulling away, combined with the SO’s reaction in releasing his arm, which increased the momentum of the Complainant’s resistance, causing him to fall to the floor. The jurisprudence is clear, officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)) nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206). As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and I do not have reasonable grounds to believe that he committed a criminal offence and no charges will issue.

Date: January 5, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The officer who provided translation at the time the Complainant was in police custody was not interviewed. [Back to text]