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 33-year-old man on March 30, 2017 while in police custody.

Notification of the SIU

On March 31, 2017, at 12:36 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury.

TPS reported that on Thursday, March 30, 2017, the Complainant was arrested by the TPS Drug Squad (TPS DS) police officers and taken to a TPS division. He was placed into a holding cell and began banging his head on the wall. The police officers decided to prevent the Complainant from the further banging and entered the cell. The Complainant did not comply with the police officers’ commands and head-butted one of the police officers. The Complainant was taken to the floor and handcuffed.

The Complainant was taken to the hospital and on March 31, 2017, at 12:19 p.m., TPS learned that he had a broken nasal bone.

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:

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

Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Not interviewed (deceased), but notes received and reviewed

WO #8 Interviewed

WO #9 Not interviewed, but notes received and reviewed

Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

SO #3 Declined interview and to provide notes, as is the subject officer’s legal right.

SO #4 Declined interview and to provide notes, as is the subject officer’s legal right.

During the evening hours of March 30^th, 2017, TPS DS officers were executing a search warrant pursuant to the Controlled Drugs and Substances Act (CDSA) at a residence in Toronto. While the officers were executing the search at that residence, the Complainant arrived and entered the home. He was searched and found to possess a white powder. The Complainant was arrested and transported to a TPS division and held in an interview room.

The Complainant was disruptive while being held in the interview room, and the four Subject Officers entered the room to move him to a cell so that his behaviour could be monitored. While in the interview room, the Complainant head butted SO #1. The Complainant was grounded by the officers in order to gain control of him and move him to the cell. During the course of his grounding, the Complainant’s face was injured, and began to bleed. His face was rinsed and a spit mask was applied. He was then escorted to a cell.

The Complainant was later taken to the hospital. He was diagnosed with a fracture through the right nasal bone with proximal and superior depression.

Scene Diagram

Video/Audio/Photographic Evidence

Summary of the Booking Video

March 30, 2017:

The audio is inaudible. The Complainant was walked into the booking hall. A woman police sergeant [now known to be WO #9] recorded the information in her duty memo book.

WO #9 informed the Complainant he could talk to his lawyer after the booking. WO #9 told the Complainant he was going to be taken off camera and the Complainant replied he had been searched already. She explained to him he was going to be searched as he was now at the police station with other police officers and prisoners present. WO #9 told him he would be required to remove his own clothing, one piece at a time, and that no police officer would touch him and at no time would he be left naked. A police officer took the Complainant out of the booking hall.

March 31, 2017:

The Complainant was walked, with his hands handcuffed behind his back, into the booking hall. He was walking with a limp and his hair was disheveled. The Complainant appeared to have redness and an injury to his right eye.

A sergeant [now known to be WO #4] entered the booking hall. He told the Complainant the police officers would take him to the hospital to get checked out. The Complainant was led out of the booking hall by two police officers to the sally port and placed in the rear driver’s side of the police cruiser and they left.

Summary of the Cells and Bullpen Video

Two TPS DS police officers brought the Complainant to cell #8. A protective face mask covered his head. WO #2 stayed outside.

The police officers positioned the Complainant’s head towards the cell metal siding bars. WO #2 bent down and appeared to grab hold of the Complainant’s hair, through an opening in the metal bar siding, in an attempt to restrain him.

The TPS DS police officers exited the cell and WO #2 continued to hold onto the Complainant through the metal bars until the other police officers exited the cell and then released his hold on the Complainant and slid the cell door to the left, closing it.

The Complainant got up from the cell bunk and stood at the closed cell door. He removed the disposable face mask from his face and threw it on the cell floor. The Complainant sat back down on the cell bunk and felt around his nose with his right hand.

The Complainant stood at the cell door and spoke to someone out of camera view. Two police officers took the Complainant out of the cell.

Materials obtained from Police Service

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

• CDSA Search Warrant
• TPS booking videos
• TPS cell video
• Duty Roster
• Event Details Report
• Injury Report
• Narrative Text Hardcopy (Prosecution Summary)
• Narrative Text Hardcopy
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8 and WO #9
• Prisoner’s Record
• Procedure - Use of Force (with Appendix A and B), and
• Training Records – SO #1, SO #2, SO #3 and SO #4

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 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.

On March 30^th, 2017, TPS officers attached to the Drug Squad (DS) were executing a search warrant pursuant to the CDSA at a residence in the City of Toronto. During the course of the execution of the warrant, the Complainant was arrested and transported to a TPS division and lodged in the cells. Thereafter, he was transported to hospital where he was diagnosed as having sustained a broken nose.

The Complainant, in his statement to investigators, alleged that when he attended at the residence, he was punched and kicked by several officers. Once he was transported to the station, he was kicked in the face, then received blows from many officers hitting him all over his body and was taken to the floor by the officers. The Complainant denied hitting any police officer. The Complainant could not be sure how he received his broken nose, or which officer caused it.

The Complainant was not specific when he advised the CW at the hospital how he had been injured other than that it was caused by a police officer. He complained of facial pain, headaches, nausea, and some pain in his right thigh and both shoulders. The medical reports indicate that the Complainant had swelling under his right eye, pain over his right cheek bone, bruising behind his left ear and multiple abrasions to his face. X-rays confirmed that the Complainant had sustained a broken nose.

There were unfortunately no civilian witnesses to the interaction between police and the Complainant, but investigators interviewed nine police witnesses, including two of the four Subject Officers. SO #3 and SO #4 declined to be interviewed, as was their legal right. Additionally, investigators had access to the memorandum notebook entries of the nine witness officers as well as the video recordings from inside the police station, including the video from the booking hall and the cell videos.

The Complainant first alleges that upon entering the residence, he was dragged inside, wrestled to the floor by multiple officers and punched and kicked.

WO #6, in his statement, advised that he heard a knock at the apartment door while the search warrant was being executed and he looked through the peep hole and observed the Complainant outside of the door with his cell phone in his hand. WO #6 opened the door and the Complainant walked in at which point WO #6 advised him that they were police officers executing a search warrant and he was being detained. WO #6 described the Complainant as entering the apartment of his own free will and then attempting to text on his cell phone. As police were in the process of executing a number of different search warrants at different addresses and there was a concern about possible destruction of evidence if the targets became aware of the search warrants in advance, WO #6 advised that he told the Complainant to stop texting as he was concerned that he was possibly sending a warning message and might jeopardize the overall investigation. WO #6 advised that he was aware that the search warrant authorized the search of any person in the apartment and, when the Complainant refused to stop texting, he grabbed him by the hand and attempted to handcuff him, following which the Complainant resisted and WO #6 took him to the floor by using his leg to trip him and then guiding him to the floor while holding his left arm. WO #6 also went to the floor with the Complainant, who landed face down. WO #6 described the Complainant as not actively resisting, but more acting out of surprise at seeing the police presence in the apartment. WO #6 then stood the Complainant up and WO #2 assisted him in handcuffing the Complainant, following which WO #6 read him his Rights to Counsel (RTC) pursuant to the Canadian Charter of Rights and Freedoms (Charter). Neither WO #6 nor WO #2 ever punched or kicked the Complainant as they had gained control of him fairly quickly and there was no need to use force. The Complainant was then searched by WO #6 and a bag of white powder was located in a bag strapped around his shoulder and the Complainant was arrested for possession of cocaine. The Complainant insisted that the white powder was Creatine[1]. After he was arrested, WO #6 gave the Complainant his RTC a second time for this offence. WO #6’s statement is fully consistent with his notes with the exception that in his notes WO #6 advised that he was assisted in handcuffing the Complainant by WO #2, SO #2 and SO #4. WO #6 advised that the Complainant was then sat down and WO #6 continued with the search of the apartment and had no further contact with the Complainant. WO #6 advised that at no time was the Complainant punched, kicked or had his head slammed against the wall by any police officer in his presence.

SO #2, in his interview, advised that he was searching the balcony when he heard a commotion at the front door and he looked in and observed the Complainant being investigated, arrested and searched by SO #4, WO #2 and WO #6. SO #2 advised that he himself was not involved with the Complainant at the apartment but only observed him placed on a chair and then awaited the arrival of uniformed officers to transport him to the station.

SO #4, who was designated as a Subject Officer, declined to be interviewed or to provide his memorandum book notes to investigators, while WO #2, who was designated as a subject officer in a sexual assault investigation relating to the arrest in the apartment, was not questioned as to what occurred inside the apartment.[2]

SO #1, who was searching the bedroom at the time that the Complainant entered, advised that he heard noises coming from the front door of the apartment and poked his head out and saw WO #2 and WO #6 dealing with the Complainant; he advised that he asked if they needed assistance and the officers indicated that all was in order and he resumed his search of the bedroom and had no involvement with the Complainant at the residence.

WO #8, who was seated in a position where he could observe both the female in the apartment and the door to the bedroom, advised that he directed the Complainant be placed in a chair where he could watch him. WO #8 advised that he made no observations as to any police officer using force on the Complainant, although he did not see his arrest at the front door. WO #8 described the Complainant, during the time that he watched him, as being extremely confrontational and trying to bait WO #8.

On the basis of this evidence, while the Complainant indicated that he was beaten when he entered and WO #6 indicated that he was not, I note that of the other four officers who were present and provided either a statement and/or their memo book notes, all indicated that nothing untoward had occurred after the Complainant entered. Additionally, WO #8 described this residence as a small one bedroom condominium so it is unlikely anything as significant as multiple officers punching, kicking and choking the Complainant would have escaped the attention of these officers; I find that this is further supported by the fact that WO #8, SO #2 and SO #1 each heard the noise coming from the front door and SO #2 and SO #1, who were searching the bedroom and the balcony respectively, each checked to see what was going on and neither saw anything of the nature as described by the Complainant.

Furthermore, the Complainant is specifically contradicted by the notes of WO #6 regarding receiving his RTC at the scene, wherein WO #6 has written that he specifically read the Complainant his RTC pursuant to the Charter at the time that he was initially handcuffed, after he was taken to the floor and the cell phone wrestled from him, and that when asked if he understood, he responded, “Ya,” and to whether he wished to call a lawyer now, he noted that the Complainant’s response was, “Of course.” Additionally, after what police believed to have been cocaine was located in the Complainant’s bag, WO #6 again had noted in his notes that he gave the Complainant his RTC a second time, on this occasion when asked if the Complainant understood, his response is noted as “ya, ya, I know” and when asked if he wished to call a lawyer now, he is noted as responding, “What you think? Of course.”

The Complainant next alleges that he was beaten by approximately 15 police officers, both uniformed and drug squad officers, in the interview room at the TPS division. SO #2 advised that when he returned to the TPS division he heard banging and a lot of commotion and yelling coming from the interview room where he knew the Complainant to be detained. SO #2 walked towards the interview room and heard the Complainant yelling and screaming. SO #2 advised that he observed the interview room walls shaking and moving back and forth while the Complainant was screaming and yelling obscenities. SO #2 told the Complainant to calm down, through the door, but he continued to yell and bang on the walls. SO #2 advised that he became concerned that the Complainant could injure himself and/or damage property inside the room or escape from the room. As such, SO #2 summoned SO #1, SO #3 and SO #4 to attend the interview room and to remove the Complainant to a cell where he could be properly monitored by the station closed circuit television system and the booking officer. This is consistent with the evidence of SO #1 wherein he advised that SO #2 told him that the Complainant was behaving erratically and screaming and banging in the interview room and that SO #2 wanted to move him to an appropriate holding cell for his own safety. SO #1 also noted that he observed the door to the interview room flexing and the walls shaking from the banging and that the telephone that was situated on the outside wall of the interview room had fallen off the hook. Initially SO #1 and SO #3 were unable to open the door, possibly because the Complainant was pushing on it from inside the room, but once the door was open, the Complainant was observed to retreat into a corner and take up a boxer’s stance with his fists raised and invited the police officers to fight. SO #1 recalled the Complainant saying, “Let’s fucking do this,” at which point SO #1, who was standing in the opposite corner of the room from the Complainant, told the Complainant to put his hands behind his back. The Complainant ignored him and remained in a fighting stance. SO #2 advised that as he told the Complainant to calm down and put his hands behind his back to be cuffed and he would be taken to the cells, the Complainant continued to yell and scream at the officers, at which point SO #1 and SO #3 moved toward the Complainant and SO #2 followed. SO #2 advised that he then saw the Complainant lunge forward with a head-butting motion directed towards SO #1.

SO #1 advised that he used his left hand to grab hold of the Complainant’s right arm, at which point the Complainant cocked his head back and delivered a head-butt to the face of SO #1. SO #1 advised that the head-butt disoriented him for a few seconds, after which he grabbed both of the Complainant’s hands and forcefully took him to the floor causing the Complainant to land face first on the floor and SO #1 to land beside him. SO #1 conceded that the grounding was done with force and could possibly have been responsible for the facial injury to the Complainant; the head-butt delivered by the Complainant could also have been the mechanism by which his face was injured.

SO #2 advised that he did not see SO #1 at any time run towards the Complainant and kick him in the face, contradicting the Complainant’s version. SO #2 advised that he moved to the right of SO #1 and SO #3 in order to assist in taking the Complainant to the floor, but he was already down by the time SO #2 got into position. SO #2 advised that he observed both SO #1 and SO #3 go to the floor with the Complainant, who continued to swear and shout from his position face down on the floor while attempting to push himself up off the floor. SO #2 then wrapped his arms around the knees and legs of the Complainant in a type of bear hug to prevent him from either kicking or getting up. SO #2 advised that he did not deliver any distractionary strikes to the Complainant nor was he aware of either of SO #1 or SO #3 having done so. Once the Complainant was handcuffed with his hands behind his back, SO #2 advised that he placed him in a seated position and observed blood on the floor and that the Complainant was bleeding from his face. SO #2 advised that the struggle with the Complainant lasted about 15 seconds and that, despite the recollection of the Complainant that approximately 15 officers were involved, consisting of both drug squad and uniformed officers, there were in fact only the four TPS drug squad officers, SO #1, SO #3, SO #4 and himself involved, there being no uniformed officers present.

While SO #3 and SO #4 declined to be interviewed, as was their legal right, and WO #7 was deceased at the time of this investigation,[3] the evidence of SO #1 substantially corroborates the evidence of SO #2. SO #1 also indicated that he at no time kicked or punched the Complainant and did not observe any other police officer to do so. Once he stood the Complainant up, SO #1 advised that he observed blood coming from the Complainant’s face and dripping onto the floor. SO #1 advised that when he asked the Complainant where he was injured, the Complainant would not respond so SO #1 rinsed the Complainant’s face with a bottle of water to try and see where his injuries originated, at which point the Complainant began to spit blood at the officers. SO #1 then placed a mask over the Complainant’s nose and mouth, to prevent his spitting at them, and he was assisted by WO #7, SO #4, WO #2 and WO #5 in escorting the Complainant to the cell area. The cell video confirms the Complainant being placed in the cell by a number of police officers while his face is covered with a mask. Three officers are seen to enter the cell to remove the handcuffs from the Complainant, which is done with some difficulty, while WO #2 is seen to be holding the Complainant’s head to prevent his spitting. WO #2 does this by placing his arms and hands through the bars and holding the Complainant’s head or hair from where he is crouched outside of the cell.

WO #5 advised that he heard police officers yelling, “Stop spitting,” at which point he rushed to the interview room and he observed SO #1, SO #4 and WO #2 attempting to place a face mask on the Complainant; SO #2 and SO #3 were no longer in the room at that time. WO #5 observed two of the officers attempting to hold the Complainant while a third tried to place the mask over his face. WO #5 indicated that he observed the Complainant as he was being taken down the hallway to the cell area and that he was resisting by dragging his feet and moving his head to try and spit at the officers while WO #2 had a hold of the Complainant’s head to prevent him doing so. Once in the cell, the Complainant was directed to kneel on the floor facing the bed in order that his handcuffs could be removed; however, the Complainant repeatedly yelled, “Fuck the police!” and refused to comply. WO #5, who was standing outside of the cell watching what was going on inside, observed that the Complainant was pushed face down onto the bed with what WO #5 conceded was a degree of force, but not so much that he believed the Complainant could have been injured. WO #5 advised that the Complainant continued to resist any attempt to remove his handcuffs until finally officers were able to remove one and then the other. WO #5 also advised that SO #1 informed him that the Complainant had head-butted him in the interview room.

This evidence is further corroborated by the statement of WO #2, who advised that when he entered the interview room, the Complainant was already down on the floor and that WO #5, SO #1, SO #4 and WO #7 were in the room with him at the time; SO #3 and SO #2 no longer being present. WO #2 also advised that he was told that the Complainant had head-butted SO #1 in the face, but he was not present when that occurred. WO #2 advised that the Complainant was then removed from the interview room and taken to the cell area and that he was uncooperative the entire way, tensing his body and dragging his feet. WO #2 advised that he walked backwards in front of the Complainant holding his head down to prevent him spitting. Once at the cell, WO #2 remained outside of the cell and held onto the Complainant’s head through the cell bars, while other officers entered the cell to remove the handcuffs.

This account is also supported by the notes of WO #7, who passed away prior to this investigation. The notes confirm that WO #7, who was in the TPS division detective office, heard loud banging and yelling coming from the interview room and observed the walls to be shaking. When he went to investigate, he observed SO #1 and SO #4 in the room with the Complainant who was seated on the floor and that there was blood on the floor. WO #7’s notes indicate that SO #4 requested that he get some water to wash the blood off of the Complainant’s face and that he did so, following which he observed SO #1 trying to wash off the Complainant’s face while the Complainant kept putting his face back in the blood and laughing. The notes go on to indicate that the Complainant was making a spitting noise, so WO #7 went and got a mask which SO #1 then put on the Complainant. At that point, WO #7 indicates that they were to take the Complainant to the cell area and that he was accompanied by WO #2, WO #5, SO #1 and SO #4. This is confirmed by the cell video. WO #7 describes the Complainant as resistant throughout and refused to walk at all, placing his feet in a “snow plow” position, resulting in the officers having to drag and pull him.

The notes of WO #8 and WO #4 also indicate that they heard loud banging and yelling coming from the interview room. WO #8’s notes further indicate that when he went to investigate, he was told that “M/P (male person) was going nuts in the interview room, went to take him to cells and head-butted [SO #1]”.

I find that the cell video clearly corroborates the evidence of all of the TPS DS officers present that the Complainant was extremely uncooperative with police. The Complainant is seen struggling against and resisting the officers throughout the entire time that he is in the cell with them, which I find is further confirmed by the fact that it took some 65 seconds and the presence of six police officers to lodge him in the cell. At no time does the cell video reveal any officer to kick, punch or otherwise use any excessive force against the Complainant, the degree of force being used by the officers appears to be directly proportionate to the amount of resistance being offered by the Complainant.

Where there are no independent witnesses, and no physical evidence, in order to find reasonable grounds to believe that an offence has been committed, one has to rely on the credibility of the Complainant. In this instance, unfortunately, the credibility of the Complainant was seriously shaken by the cell video which clearly depicts him as being other than the compliant prisoner that he purported himself to be, but shows him as resistant, struggling and combative, while the officers are seen to be using no more than the amount of force necessary to restrain and un-cuff him. While the video does not capture the incident either at the residence, or in the interview room, I find that where it contradicts the version of events as proffered by the Complainant, it damages his credibility with respect to all of his allegations. Additionally, I find that the Complainant did head-butt SO #1, and reject the Complainant’s evidence in that regard, as that was observed by all of the witness officers, was recorded in all of the officers’ notebooks at the time and is consistent with the utterances made by SO #1 to others. Additionally, the notebook entries of WO #4 and WO #8 that the banging from the interview room could be heard throughout the station, is inconsistent with the Complainant’s version of his behaviour in the room. Finally, I find that if the Complainant had been beaten, punched, kicked and choked to the degree that he was, by the amount of officers that he alleges, there would have been far more injuries noted than those observed by the CW, who indicated that all of the Complainant’s injuries were concentrated in the area of his head and face, specifically swelling under his right eye, pain over his right cheek bone, bruising behind his left ear and multiple abrasions to his face. While the finding of any injury would normally be corroborative of the Complainant’s evidence, where, as here, these injuries are as consistent, if not more so, with the Complainant having head-butted SO #1 and then being forcefully taken to the ground where he struck the floor face first, I cannot find that this evidence does anything to rehabilitate the Complainant’s credibility.

On all of the evidence, I am satisfied that the injury to the Complainant was caused when, as a result of his head-butting SO #1, and in order to restrain the Complainant and prevent any further assaults, the Complainant was forcefully taken down to the floor in the interview room and that he struck the floor face first. I find further support in this conclusion on the evidence of all of the witness officers present that the Complainant did not appear to have any injury, nor was he bleeding, prior to his being taken to the ground.

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 on the evidence of all of the officers present at the residence, that the Complainant was in possession of a powdered substance believed to be cocaine and police then had reasonable grounds to arrest him for the offence of possession of a controlled substance contrary to the CDSA. As such, the detention and arrest of the Complainant was legally justified in the circumstances and he was lawfully in the custody of the TPS at the time that he received his injury.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, I find that their behaviour was justified in the circumstances. While I find that the Complainant’s injuries were caused by the TPS officers taking the Complainant to the ground with force and the Complainant landing on his face, I find that pursuant to section 25(1) of the Criminal Code, the officers involved used no more force than was reasonably necessary in the execution of their lawful duties in restraining a combative and assaultive man who had already assaulted one police officer and could possibly continue on in the same vein, if not subdued. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, as follows:

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

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

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety. On this record, it is clear that the force used by the TPS officers involved in subduing the Complainant fell within the range of what was reasonably necessary in the circumstances to subdue the Complainant and to remove the risk that he continued to pose to himself and the police officers, until he was lodged in a cell where he could be properly monitored by the booking officer.

In the final analysis, I am satisfied for the foregoing reasons that the actions of the TPS officers in subduing the Complainant in the interview room and lodging him in the cell thereafter were lawful notwithstanding the injury which he suffered. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: November 30, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Creatine is an amino acid used as a sports and weight training supplement. [Back to text]
• 2) [2] WO #2 was obliged to provide a statement as to the events at the station but not about his conduct at the apartment because he was the SO in relation to his conduct at the apartment, albeit in a separate investigation. [Back to text]
• 3) [3] WO #7’s notes indicate that when he first entered, the four Subject Officers were the only ones in the interview room although WO #2 and WO #5 were outside but in the area of the interview room. [Back to text]