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 32-year-old man during his arrest on April 12, 2017.

Notification of the SIU

On April 12, 2017, at 10:38 a.m., the Toronto Police Service (TPS) notified the SIU about a custody injury sustained by the Complainant.

TPS reported that on Wednesday, April 12, 2017 at about 12:40 a.m., officers responded to an unknown trouble call at an apartment building. Upon arrival, officers arrested the Complainant for assault. During the arrest, the Complainant became combative and was taken to the ground and restrained. He was then returned to the TPS division where he was processed and held for a bail hearing.

At approximately 4:00 a.m., the Complainant was taken to the hospital after complaining he was having difficulty breathing. At 9:00 a.m., the Complainant was diagnosed as having a fractured orbital bone (left side). He was given pain medication and released back to police.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

Subject Officers

SO #1 Interviewed, and notes received and reviewed.

SO #2 Interviewed, and notes received and reviewed.

Just after midnight on April 12, 2017, the Complainant and CW #1 were in a verbal, and then physical, dispute at the Complainant’s apartment in Toronto. TPS received a number of 911 calls regarding the dispute, and SO #1 and SO #2 responded.

When SO #1 and SO #2 arrived in the hallway outside the Complainant’s apartment, they knocked on the Complainant’s door. The Complainant answered, but refused to let the officers enter. The Complainant came into the hallway to speak to the officers, then pushed SO #1 out of the way and re-entered his apartment. SO #1 and SO #2 followed the Complainant into the dark apartment to arrest him, and the Complainant punched SO #1 in the face. A struggle ensued and both SO #1 and SO #2 dragged the Complainant back into the hallway.

During the struggle in the hallway, the Complainant grabbed SO #1’s eye, causing it to bleed. In an effort to control the Complainant, SO #1 delivered several closed fist punches to the Complainant’s face, while SO #2 delivered several knee strikes to the Complainant’s upper body. Paramedics arrived on scene, but the Complainant refused medical treatment.

After the Complainant was transported to the TPS division, he complained that he had trouble breathing. The Complainant was transported by ambulance to the hospital where he was diagnosed with having a fractured left orbital bone.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. The SIU received the closed circuit television (CCTV) security video from the hallway in front of the Complainant’s apartment.

CCTV summary

Camera #9 - Second Floor Hallway Facing Superintendent’s Apartment:

The Superintendent’s apartment is located at the opposite end of the hallway from where the Complainant resided. The following is a summary of the video:

• On Thursday, April 12, 2017, at 12:33:57 a.m., CW #1 knocked on the superintendent’s door and CW #3 entered the hallway. CW #3 and CW #1 walked down the hallway in the direction of the Complainant’s apartment and at 12:39:50 a.m., they returned to CW #3’s door
• At 12:46:32 a.m., CW #1 left the area via the stairwell next to the superintendent’s apartment
• At 12:50:10 a.m., two police officers entered the hallway from the stairwell next to CW #3’s apartment. CW #3 and the two police officers walked down the hallway towards the Complainant’s apartment. One of the police officers wore a black toque. CW #3 walked back towards his apartment
• At 12:55:12 a.m., two paramedics arrived outside the superintendent’s apartment
• At 12:56:10 a.m., three police officers arrived in the hallway and walked towards the Complainant’s apartment, and
• At 12:57:40 a.m., the Complainant was walked down the hallway past the superintendent’s apartment to the stairwell by the same police officers that had arrived initially at the building. The Complainant was handcuffed with his hands behind his back

Camera #11 - Second Floor Hallway Facing the Complainant’s Apartment:

The following is a summary of the video:

• At 12:36:15 a.m., CW #1 and CW #3 walked to the Complainant’s apartment. CW #3 knocked on the apartment door and CW #1 stood behind CW #3. CW #1 moved closer to CW #3 and he appeared to be speaking to the Complainant
• At 12:38:14 a.m., CW #1 and the Complainant began to wrestle at the doorway and ended up inside the apartment
• At 12:38:56 a.m., CW #3 walked out of the Complainant’s apartment and CW #1 crawled out of the apartment
• At 12:50:25 a.m., two police officers, followed by CW #3, walked towards the Complainant’s apartment. One of the police officers wore a black toque and short sleeved shirt. The other police officer was bald and wore a long sleeved shirt. The bald police officer knocked on the door to the Complainant’s apartment. The police officer wearing the black toque stood behind the bald police officer. The door to the Complainant’s apartment opened and the bald police officer stepped into the threshold of the doorway
• At 12:51:09 a.m., the Complainant stepped into the hallway and the bald police officer moved between the Complainant and the doorway
• At 12:51:35 a.m., the Complainant pushed the bald police officer and entered the apartment, followed by the bald police officer and the police officer who wore the toque
• At 12:51:49 a.m., the police officers pulled the Complainant into the hallway and a struggle ensued. The police officer with the toque delivered knee strikes to the Complainant. The Complainant and the two police officers fell to the floor. The Complainant was on his knees, on the floor in the hallway, and the police officer with the black toque was over his back. The bald police officer appeared to throw a right hand punch at the Complainant
• At 12:53:29 a.m., the bald police officer used his portable radio and the police officer with the toque held the Complainant
• At 12:54:45 a.m., the bald police officer entered the Complainant’s apartment
• At 12:55:24 a.m., a paramedic arrived at the Complainant’s apartment and a minute later two more police officers arrived, and
• At 12:56:22 a.m., the Complainant was assisted to his feet by the first two police officers and walked in the direction of the superintendent’s apartment

In-car camera (ICC) video recording – SO #1 and SO #2’s cruiser

• At 12:59:13 a.m., the Complainant was placed in the back seat of the cruiser. The lighting was poor and it was difficult to see the Complainant’s face
• There was a sound of banging and at 1:00:17 a.m., the Complainant said, “I’m bleeding, I’m bleeding.” The Complainant was asked to identify himself. Again the Complainant told the police officer he was bleeding and he asked for a bandage. The police officer told him that this happened because he assaulted two police officers. The Complainant was cautioned and he was told he was being audio and video recorded. A police officer told the Complainant that if he needed medical attention they would make the arrangements. The Complainant was out of breath and he told the police officer he had blood in his airway. The police officer said to the Complainant, “No, you’re talking fine, so you are doing okay. We are going to go to the station; you will have a nice cell to breathe in.&rdquo
• At 1:06:45 a.m., the cruiser departed, and at 1:07:39 a.m., a police officer said, “Oh yeah, fucking good cut there on my eye there, pal.&rdquo

Booking audio and video summary

• At 1:36:32 a.m., two police officers attended at the passenger side of a police cruiser in the sally port. The Complainant was walked into the booking hall
• At 1:37:05 a.m., a police officer told the booking sergeant that the Complainant was arrested for assault police. The sergeant was told that the Complainant was arrested to prevent the continuation of the offence and for the security of the public. The Complainant had no previous involvement with the police and he started to tell the sergeant what occurred and he did not understand why he was arrested. The sergeant asked the Complainant if he was injured and he told the sergeant that he was punched in his face and the police officers walked into his place. The sergeant told the Complainant that he could see something on his face and the Complainant told the sergeant to forget about it. One of the police officers said he would put an injury report in. The police officer requested a level three search[1] and the sergeant authorized it;
• At 1:43:04 a.m., the level three search was completed, and
• At 3:39:25 a.m., paramedics and police officers were in the booking hall and the Complainant was on a stretcher. The Complainant complained of trouble breathing and he coughed up blood. Someone said he would be taken to the hospital

Communications recordings

Communications summary

CW #6 telephoned 911 and reported a domestic dispute at a residence. A man had thrown another man out of the apartment and he did not believe anyone was injured. A woman in a neighbouring apartment called 911 and reported that a domestic disturbance had occurred and that the landlord had asked someone to call 911. Another caller called 911 and asked for an ambulance and police to the apartment on the second floor; a couple had a dispute and both people were probably injured.

SO #1 and SO #2 were dispatched to an unknown trouble call at the apartment building. The dispatcher advised that it was possibly a domestic.

A police officer, out of breath, broadcast that they had one in custody and requested back-up. WO #1 and WO #2 were dispatched to the address. Either SO #1 or SO #2 told the dispatcher that they had a man on board and the dispatcher gave the time of 1:06 a.m.

Materials obtained from Police Service

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

• Communications recordings
• ICC recordings – SO #1 and SO #2’s cruiser
• Booking Video
• Cell Video
• Cell Checks Log
• Event Details Reports
• General Occurrence
• Notes of WO #1, WO #2, WO #3 and WO #4
• Parade Sheet Report-Evenings
• Parade Sheet Report-Nights
• Procedure - Persons in Custody
• Procedure - Use of Force
• Summary Local Records Check
• Automated Dispatch System - Summary of Conversation
• Photos of the Complainant’s and SO #1’s injuries
• TPS Booking Photo, and
• Training Record – SO #1

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 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. causes bodily harm to the complainant

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

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

270 (1) Every one commits an offence who

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

Section 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 12^th, 2017 a number of 911 calls were received by the TPS from an address in the City of Toronto indicating that there had been some type of dispute, possibly domestic, on the second floor of the building and that the superintendent had requested that the police be called. As a result, SO #1 and SO #2 were dispatched to the address to investigate, arriving at approximately 12:49 a.m. Shortly thereafter, the Complainant was arrested and transported to the station. He was later transported to hospital by ambulance where he was assessed, and it was discovered that he had sustained a mildly depressed left zygomatic arch (cheekbone) fracture and a fracture of the inferior orbital wall (eye socket) and the anterior wall of the left maxillary sinus.

The Complainant, in his statement to investigators, advised that he was forced to the floor by SO #1 and SO #2 and punched on his torso and the left side of his head. He was then dragged and again punched and then choked with an arm under his chin and kneed in the face.

During the course of this investigation, six civilian witnesses, in addition to the Complainant, and six police witnesses, including the two Subject Officers, were interviewed. Investigators also had access to the memorandum book notes of all police officers involved, as well as the 911 recordings, the police communications recordings and log, CCTV footage from the apartment building, the ICC video from the police cruiser in which the Complainant was transported and the booking hall video at the police station.

A review of the CCTV footage from the apartment building revealed the following:

• At 12:33:57 a.m., CW #1 knocked on the superintendent’s door and CW #3 then walked with CW #1 to the opposite end of the hallway, where the Complainant’s apartment was located
• At 12:36:15 a.m., CW #1 and CW #3 are seen to approach the Complainant’s apartment and CW #3 knocks on the door. While CW #3 is speaking to the Complainant, CW #1 is seen to frequently interject in the conversation; the Complainant is not seen on the video as he is apparently inside his apartment and out of camera view
• At 12:38:14 a.m., the Complainant is seen to exit his apartment and pushes CW #1 and the two are then seen wrestling in the hallway, following which both men disappear inside the apartment out of camera view, followed by CW #3
• At 12:38:26 a.m., CW #3 is seen to come back out into the hallway, but then re-enters the apartment, emerging again at 12:38:56 a.m. followed by CW #1 who is either thrown out or crawls out of the apartment on his hands and knees. CW #1 is then seen to get up off the floor and it appears that he is continuing a heated discussion with the Complainant, who is outside of camera view inside the apartment
• At 12:39:13 a.m., CW #1 is seen to begin to walk away from the apartment back towards the camera; his sweater appears to be either torn or opened and he is holding the side of his head with his hand. He then returns to the apartment where CW #3 is still standing at the threshold and there appears to be further discussion with the unseen Complainant and, at 12:39:34, both CW #1 and CW #3 are seen to walk back towards the camera and out of view
• At 12:50:25 a.m., two police officers are seen to be walking toward the Complainant’s apartment with CW #3 following behind. One of the police officers is seen to be wearing a black toque and a short sleeved shirt (SO #1), while the other is bald and hatless, wearing a long sleeved shirt (SO #2). The bald officer is seen to knock on the Complainant’s door while the officer wearing the toque stands behind him. The door then opens and the bald officer is seen to step into the threshold of the doorway
• At 12:50:53, as the officers are approaching the Complainant’s apartment, CW #3 is seen to stop walking and does not approach with the police officers. At 12:51:09 a.m., the Complainant is seen to enter into the hallway and the bald police officer moves between him and the apartment door and there appears to be discussion between the two police officers and the Complainant whereupon CW #3 nears the three parties. At 12:51:29 a.m., CW #3 then turns and walks back toward his own apartment
• At 12:51:35 a.m., the Complainant is seen to push the bald police officer and enter his apartment, followed by both police officers. CW #3, who had his back to the interaction, then turns again to look once the officers are entering the apartment
• At 12:51:35 a.m., both police officers are seen to exit the apartment with the Complainant. The officer with the toque exits first, walking backwards. He is followed by the Complainant, who has his head down and the bald officer is holding both of his arms behind his back. The officer with the toque does not appear to be hands on with the Complainant at that point. There is an obvious struggle in the hall, with the Complainant facing forward toward the camera and both police officers behind him. The police officer with the toque then moves to the front of the Complainant and is seen to deliver a knee strike to the Complainant; it is unclear from the video if or where the knee strike makes contact. It is clear, however, that there is an active struggle going on between the three men and that the officers appear to be trying to take the Complainant to the ground. Eventually, all three go to the floor and one officer is seen holding the Complainant down with the weight of his body, while the Complainant appears to be trying to get up. All three bodies are seen to be moving while crouched either on or just above ground level. The Complainant is then seen on his knees while the police officer with the black toque is over his back. The bald police officer appears to throw a right hand punch at the Complainant. The struggle appears to completely consume all three parties until 12:53:15 a.m., when things appear to calm. Due to the distance the camera is from the interaction and the dark clothing of both police officers, despite numerous viewings of the video in slow motion and play backs, it was unclear to me how many strikes or blows were delivered by any of the parties, other than one knee strike from the officer in the toque and what appears to be one punch from the bald officer. All that is really clear is that the Complainant is underneath and on his knees, as his pants appear to have slipped and his bare buttocks appear to be showing, and the two officers are actively engaged in trying to hold him down
• At 12:53:29 a.m., the bald police officer is seen to use his portable radio while the second officer continues to hold the Complainant
• At 12:55:45 a.m., the bald police officer is seen to re-enter the Complainant’s apartment while the other officer remains in the hallway with the Complainant, and
• At 12:55:24 a.m., two paramedics and two additional police officers are seen to arrive and at 12:56:22 a.m., the Complainant is assisted to his feet by the two initial police officers and walked back towards the camera

Despite the Complainant’s assertion that he was never told that he was under arrest and that no one ever asked about his injuries, the video at the booking hall at the police station reveals that the booking sergeant told the Complainant that he was under arrest for assaulting a police officer and the sergeant asked the Complainant if he was injured, whereupon the Complainant told him that he had been punched in the face and that the two police officers had walked into his place. When the sergeant indicated to the Complainant that he could see something on his face, the Complainant told the sergeant to forget about it. At 3:39:25 a.m., the Complainant is seen to be on a stretcher with paramedics.

Based on the statements provided by SO #1 and SO #2, it was determined that SO #2 was the police officer wearing the toque. It is impossible to differentiate which officer is which from viewing the video; when they originally walked towards the Complainant’s apartment, their backs are to the camera and one is seen to be bald and one is wearing a black toque, but their height and physiques are extremely similar. When they are walking back towards the camera with the Complainant between them, neither officer is wearing a toque and both are now seen to be bald.

In his statement to investigators, SO #2 advised that he and SO #1 arrived at the apartment building in response to an unknown trouble call. Both officers attended the Complainant’s apartment and knocked on the door to investigate and the Complainant answered and came out into the hallway. The Complainant only opened the door wide enough to walk through and, once in the hall, SO #2 stood directly in front of the Complainant, while SO #1 was on SO #2’s right. This is confirmed by the CCTV footage. SO #2 observed that the Complainant’s shirt was ripped and that he was sweating and out of breath. When SO #1 asked what had occurred earlier, the Complainant responded with, “You tell me.” When SO #1 then followed up by asking if something had happened with his upstairs neighbour, the Complainant responded with, “Why don’t you bring him down here and we’ll find out?” When the Complainant was then asked if he was in danger or if anyone inside the apartment was in danger, he did not respond but became very agitated and upset. SO #2 advised that he then took over trying to speak with the Complainant and tried to calm him down, as he was concerned that someone inside the apartment might be in need of help.

SO #1 advised that as SO #2 took over speaking with the Complainant, he leaned his right shoulder onto the doorjamb of the Complainant’s apartment door and that the Complainant then suddenly pushed SO #1 backwards, without warning and completely unexpectantly. The Complainant did not say anything prior to pushing SO #1 and SO #1 advised that he had not been blocking the Complainant from entering his apartment. The Complainant then quickly entered his apartment followed by SO #1, who intended to arrest him for assaulting a police officer. SO #1 advised that the apartment was in darkness and he reached out to try and grab the Complainant’s right arm to arrest him, but before he had the opportunity to tell the Complainant that he was under arrest, he was struck on the nose and he immediately tasted blood. SO #1 and SO #2 then wrestled the Complainant back out into the hallway; SO #1 had hold of the Complainant’s left arm while SO #2 had hold of his right arm and they ordered the Complainant to get down on the floor, but he refused and resisted. SO #1 then stuck out his left foot to trip the Complainant, while SO #2 delivered a knee strike towards the Complainant’s leg to try and get him off balance. Again, this appears to be confirmed by the CCTV video.

SO #2 advised that once in the hallway, the Complainant punched at both police officers and SO #2 delivered several knee strikes to the Complainant’s upper body to try and ground him, with little effect. SO #2 advised that one of his knee strikes may have glanced across the Complainant’s head and, when SO #1 tried to trip the Complainant, all three men fell to the floor.

SO #1 advised that the Complainant landed on his stomach but kept his hands under his body, which prevented the officers from handcuffing him. SO #1 indicated that he was on the Complainant’s right side and he had the Complainant’s left arm almost behind his back, when SO #1 lost his grip and the Complainant again put his hands under his body. SO #1 recalled that he yelled at the Complainant several times to put his hands behind his back.

SO #2 advised that he then tried to place handcuffs on the Complainant, but lost his grip on the Complainant’s arm. SO #2 described the fight as lasting over one minute and that he yelled at the Complainant to stop resisting, stop fighting, and put his hands behind his back. SO #2 described the Complainant then reaching out and gouging at SO #1’s left eye whereupon SO #2 put his arm around the Complainant’s throat to pull him away from SO #1. He described the Complainant as straddling SO #1 and that the Complainant squirmed, kicked, and fought, and that more distraction strikes were then delivered by each officer and they were eventually able to handcuff the Complainant.

SO #1 advised that the Complainant flipped over onto his back and reached up with one hand in the form of a claw and gouged down into SO #1’s left eye. SO #1 advised that he then delivered four or five closed fist punches, with both hands, to the Complainant’s face; after the encounter, he observed the Complainant to have some redness on one of his cheekbones. SO #1 indicated that the punches delivered were effective and that he and SO #2 were then able to handcuff the Complainant. Both SO #1 and SO #2 advised that other than the punches and knee strikes, no use of force was used against the Complainant. Once the Complainant was subdued, SO #1 advised that he entered his apartment to determine if there was anyone inside requiring assistance. He advised that he did not remove anything from the apartment and he locked the door afterwards. Both officers then awaited the arrival of paramedics and other back-up officers, following which they escorted the Complainant to the police cruiser and to the station.

Although one civilian witness indicated that SO #1 used his baton when he was struggling with the Complainant, based on the CCTV footage, I discount this evidence and believe that the witness was mistaken in this regard as it is clear from the footage that the witness was quite a distance from the interaction at the time, and the CCTV footage does not reveal either officer resorting to his baton. Based on the evidence from the CCTV footage, however, as well as the statements of both Subject Officers, I find that both officers punched and used knee strikes against the Complainant in efforts to subdue him and that SO #2 put his arm around the throat of the Complainant to pull him away from SO #1 after he had gouged his eye.

On all of the evidence from the civilian witnesses, it appears clear that the Complainant was very much interested in a physical confrontation on the date in question. He physically fought with CW #1, and when that was over and police arrived, he was extremely resistant to either answering any questions or in any way cooperating with them. It is also clear that the Complainant initiated the first physical contact between himself and the police officers when he pushed SO #1 to get back inside his apartment. Based on these findings and on this particular fact situation then, I must determine whether or not the actions of SO #1 and SO #2, in delivering knee strikes and punches to the Complainant, and subsequently grabbing the Complainant around the throat to pull him off of SO #1, amounted to an excessive use of force and whether or not the force used rises to the level to satisfy me on reasonable grounds that one or both of these police officers committed the offence of assault causing bodily harm against the Complainant contrary to s. 267 of the Criminal Code.

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 relayed to the two police officers, from the various 911 calls received, that an incident of violence had recently occurred involving the Complainant and that it was the duty of the police to investigate and determine what had occurred and whether or not there were reasonable grounds to lay criminal charges. When the Complainant pushed SO #1, the officers clearly had reasonable grounds to arrest the Complainant for assaulting a police officer engaged in the execution of his duty contrary to s. 270 of the Criminal Code. Once the police officers had formed the grounds to arrest the Complainant, it was not open to him to simply return to his apartment and close the door in an effort to thwart the police officers in their duties, and the officers were entitled to follow the Complainant into his apartment in “fresh pursuit” in order to affect his arrest. As such, the entry into the apartment of the Complainant and his subsequent apprehension and arrest were legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, one has to consider what the officers were dealing with at the time of the infliction of the force, in order to determine if the amount of force used was justified or not. I note that on the evidence of two civilian witnesses, which is confirmed by the CCTV footage, the Complainant had assaulted SO #1 by pushing him and he was thereafter actively resisting being arrested by the police officers; based on the injury to SO #1’s face, I also find that he gouged SO #1 in the area of his eye causing his injury. Additionally, it is clear from the CCTV footage that both police officers had to use all of their strength to subdue the Complainant and that the struggle was long and hard fought. Based on the fact that the Complainant had already pushed SO #1 backwards and that he later gouged his eye, I have no difficulty in accepting as accurate the evidence of SO #1 that he was also punched in the nose while inside the apartment, and although he could not actually see who delivered the punch since the apartment was in darkness, I accept that it was the Complainant who punched SO #1 as he was the only other person in the apartment at the time, with SO #2 only entering behind SO #1. It is further clear from the video footage that the police officers were unable to gain control of the Complainant, who was actively resisting and had already assaulted SO #1 on two different occasions, until they delivered the distraction strikes to the Complainant, which resulted in his going to the ground but did not result in his ceasing to resist and to fight. When the Complainant gouged at SO #1’s eye, I find that the action of SO #2 in grabbing the Complainant by the throat to remove him from SO #1 and thereby preventing any further injury to SO #1, was fully justified. The fact that both officers were fully engaged in trying to subdue the Complainant is further confirmed by the police radio transmission recording wherein SO #1 is heard to call in, while clearly out of breath, that they had one in custody and required back-up. As such, I am satisfied that the Complainant was loudly and actively resisting his arrest by police and, on three different occasions, he assaulted SO #1 in order to prevent his own apprehension.

Although I find that the Complainant’s injury was caused by SO #1 and SO #2, either when SO #2 delivered a number of knee strikes, one of which may have glanced off of the Complainant’s head, or when SO #1 punched the Complainant in the face with four or five closed fist punches, I find that pursuant to section 25(1) of the Criminal Code, the officers used no more force than was reasonably necessary in the execution of their lawful duties in apprehending a strong and agitated man who was willing to fight police and who was both actively resisting and assaultive. 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]

I find on the record before me that the degree of force involved in the knee strikes, as well as the punches to the Complainant’s face, were unfortunately required in order prevent the Complainant further assaulting either police officer and to gain sufficient control of the Complainant in order to handcuff him and eliminate the threat that he continued to pose.

I accept on all of the evidence that neither SO #1 nor SO #2 resorted to any use of force mechanisms at their disposal, other than actual physical force and distraction strikes, and that they only did so in order to affect the Complainant’s arrest and to prevent his further assaults on the officers. Although from a distance it may have appeared that SO #1 and SO #2 were using excessive force when they repeatedly struck and punched the Complainant in the face, I find that they only struck the Complainant up until the point in time when he was subdued and handcuffed, and that neither officer continued after the danger had passed, as confirmed by the CCTV footage.

While it is unfortunate that the Complainant suffered the serious injury that he did, I find that the two police officers were left with little choice other than to arrest the Complainant after he had initially assaulted SO #1, and, after he twice more assaulted the officer and caused him injury, they were duty bound to subdue and apprehend him. On all of the evidence, I find that the Complainant was openly resistant and assaultive towards the officers, who were doing no more nor less than investigating the numerous 911 calls that had been received following the earlier altercation involving the Complainant and CW #1, and that it was his own assaultive and combative behaviour which led to his ultimate injuries.

As such, 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 criminal charges in this case.

Date: November 30, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Also known as a strip search. [Back to text]