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 injuries sustained by a 46-year-old man on January 14, 2017 during his apprehension under the Mental Health Act (MHA).

Notification of the SIU

On January 14, 2017 at 11:20 a.m., Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury.

TPS reported that on Saturday, January 14, 2017, at 5:26 a.m., TPS officers responded to a 911 call from the Civilian Witness (CW). She reported that the Complainant swallowed several prescription pills and was acting erratically inside their home.

Subject Officer (SO) #1 and SO #2 attended the residence and located the Complainant hiding inside the apartment. The Complainant was convinced to attend outside to be medically accessed by paramedics. Once outside, the Complainant told SO #1 and SO #2 that he needed to retrieve some items and returned to his apartment. SO #2 followed the Complainant but lost sight of him once he was inside the apartment. SO #2 heard a patio door open and believed that the Complainant jumped from the balcony. SO #1 and SO #2 conducted a search outside and found the Complainant hiding under a blanket. SO #1 and SO #2 attempted to apprehend the Complainant under authority of the MHA but a struggle ensued with the Complainant. In the course of that struggle, the Complainant tried to arm himself with a chain at a nearby fence, but was unsuccessful. The Complainant then grabbed SO #2’s ballistic vest. SO #2 struck the Complainant in the face as a distractionary technique and was taken to the ground. The Complainant was arrested for assault police and taken into police custody.

Shortly after the Complainant’s arrest, he told SO #1 and SO #2 that he ingested 90 pills. Paramedics transported the Complainant to the hospital where he was diagnosed with a nasal bone fracture and non-displaced left 9^th and 10^th lateral rib fractures.

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, measurements and photography.

Complainant:

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

Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Not interviewed, but notes received and reviewed[1]

WO #2 Not interviewed, but notes received and reviewed

WO #3 Not interviewed, but notes received and reviewed

WO #4 Interviewed

WO #5 Interviewed

Subject Officers

SO #1 Interviewed, and notes received and reviewed

SO #2 Interviewed, and notes received and reviewed

The Scene

The Complainant was arrested in the backyard of his home. The Complainant resides in a two-storey brick house, converted into apartments. The Complainant’s apartment is located on the top floor of the house. The balcony floor from the Complainant’s apartment to the patio surface below was measured at 3.102 metres. In the backyard there was a metal shed situated along the north fence adjacent to the railway line. The shed door was open and inside the shed there were gardening tools, golf clubs and other miscellaneous items.

On the south side of the building there was a narrow passage leading to a dead end between two residences. Attached to the neighbouring building was a ladder chained to a wall. Stored below the ladder were several large miscellaneous items. Adjacent to the ladder was a concrete pad. Lying on the concrete pad was a blanket rolled up in a ball. This blanket was eventually examined by the SIU Forensic Investigator and nothing of evidentiary value was found.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications Recordings

The communications recordings of the events of Saturday, January 14, 2017, leading up to the Complainant’s arrest are consistent with the Intergraph Computer Aided Dispatch (ICAD) printouts and the radio communications. This data corroborated most of the statements of the involved police officers and the TPS supporting documentation. Initially, the Subject Officers indicated that one of them broadcast for a sergeant twice to attend the residence with a Conducted Energy Weapon (CEW). However, this was not accurate. A sergeant was required to attend the scene but there was no evidence to suggest a CEW was specifically requested.

Materials obtained from Police Service

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

• Communications recordings
• Event details report
• General occurrence
• ICAD report / Summary of TPS radio communications
• In-car camera (ICC) video
• Notes of WO #1, WO #2, WO #3, WO #4 and WO #5
• Person search
• Procedure - use of force, and
• Procedure - emotionally disturbed persons

During the early morning hours of January 14, 2017, TPS received a 911 call advising that the Complainant had overdosed. SO #1 and SO #2 responded to the call and attended the residence. Once there, they spoke to the CW, who confirmed that the Complainant had taken a significant quantity of prescription pills. The CW also advised the officers that she was afraid of the Complainant and wanted to leave. Steps were taken for the CW to go to a shelter and she left the premises.

Upon entering the apartment, SO #2 noticed that significant damage had been done to the apartment prior to their arrival. SO #2 found the Complainant hiding on the balcony. Paramedics arrived, and the Complainant eventually agreed to go with them to the hospital. The Complainant then returned into the apartment, jumped over the balcony, and hid under a blanket in the backyard. When the officers found the Complainant, he tried to pull on a chain that was attached to the wooden fence. The Complainant also had one of his hands behind his back, at which time he moved towards SO #2 and grabbed the front of SO #2’s ballistic vest. A struggle ensued. Once the Complainant was on the ground, he was handcuffed.

The Complainant was transported by ambulance to the hospital. X-rays revealed that the Complainant sustained acute non-displaced left 9^th and 10^th lateral rib fractures and a non-displaced nasal bone fracture.

Section 17, Mental Health Act – Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person
5. serious bodily harm to another person; or
6. serious physical impairment of the person

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

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 January 14^th, 2017 at 5:26:45 a.m., a 911 call was received by TPS from a residence in Toronto reporting that the caller’s upstairs neighbour had just knocked at his door advising him that the Complainant had overdosed and asked him to call 911. The caller had very little further information but did provide the name of the person at the door as the CW, and the person who had apparently overdosed as being the Complainant. At 5:27:54 a.m., SO #1 and SO #2 were dispatched to the residence. The communications recording reveals that the name of the male who had apparently overdosed was not transmitted in the call to the officers; a later search of his name revealed that he was known to be extremely violent and that four police officers and a sergeant should attend if dealing with the Complainant. SO #1 and SO #2 did not have this information in their possession at the time that they attended to attempt to assist with a possible overdose.

The Complainant alleged that during his interaction with the TPS officers, he was grabbed by several officers who smashed his face against a fence, then beat him and punched him on the head before he fell to the ground. Once on the ground, officers kicked the Complainant in the left rib and then punched him until he lost consciousness.

SO #1 and SO #2 both indicated in their statements that they were dispatched to the residence regarding a possible drug overdose and that the information they were provided in the dispatch was that a woman reported she needed an ambulance for the Complainant because he had overdosed on his medication. This evidence is confirmed by the radio communications recording; the log also confirms, consistent with the evidence of the CW, and contrary to the evidence of the Complainant, that SO #1 and SO #2 were the only two officers initially dispatched to the address. Both police officers advised that they arrived at the address at approximately 5:30 a.m. and met the CW outside of the residence; the CW confirmed the information from the 911 call but was unable to provide any further information about what medication the Complainant had ingested, advising only that he was inside the apartment.

After speaking to the CW, it was decided that SO #2 would go up and deal with the Complainant and SO #1 would remain with the CW. SO #2 advised that he entered the apartment and identified himself as a police officer and called out for the Complainant, but received no response. SO #2 noted that the apartment was “trashed” with objects thrown everywhere and that he was concerned for the Complainant’s well-being and continued to search for him in the apartment. SO #2 located the Complainant hiding under a small table on the balcony and called out to him, following which the Complainant leapt at SO #2, startling him. SO #2 advised SIU investigators that he wished to speak with the Complainant to determine whether or not he had grounds under the MHA to apprehend the Complainant so SO #2 asked the Complainant how many pills he had ingested and asked about his well-being. The Complainant denied having taken any pills, accused the CW of lying, and became volatile. The Complainant told SO #2 that he wanted to fight him and wanted police to shoot him. SO #2 continually tried to calm the Complainant, reassuring him that he was not in trouble and the police wanted to get him medical help. This evidence is confirmed as the conversation was overheard by the CW.

SO #2 advised that though he believed he had grounds to apprehend the Complainant under the MHA, he was concerned for the Complainant’s well-being and hoped to negotiate with the Complainant to have him voluntarily see the paramedics and be examined, rather than to forcefully apprehend him. SO #1 advised that when the paramedics arrived, he entered the apartment with them, but the Complainant refused to see them. This is confirmed by the report of the paramedics which indicated that “on ems arrival pt (patient) uncooperative with police and paramedics (not allowing physical assessments despite negotiations)”. SO #2 described the Complainant’s behaviour as escalating quickly as he became more aggressive and would not allow the paramedics to come near him. SO #2 indicated that he was still concerned for the well-being of the Complainant as he had still been unable to confirm whether or not he had overdosed on his medication. SO #1 also was of the view that they had grounds to apprehend the Complainant under the MHA, but that it would not be safe to attempt to do so in the apartment and would be easier if they could convince him to leave willingly. SO #1 advised that he was concerned about the Complainant’s increasingly erratic behaviour and believed that a CEW would be the most effective and least injurious way to apprehend the Complainant. SO #2 advised that he asked SO #1 to request the attendance of a sergeant with a CEW. According to the radio communication recording, SO #1 is heard to transmit “is there a sergeant on the air?”, following which an unnamed sergeant responds and SO #1 asks him if he is on the road and the sergeant responds “(You) can call the sergeants’ office if you like”. SO #1’s notes indicate “I go back downstairs & call Sgt’s office spk (speak) with [named sergeant] about poss need a tazer as male being increasingly aggressive. He advised no platoon sgts (on duty) have a tazer. Hang up.”

SO #2 advised that they were eventually able to convince the Complainant to go with the paramedics on the condition that the Complainant could see the CW first and speak with her, after which he would go in the ambulance to hospital. When the Complainant exited his building, the CW had already left and the Complainant indicated that he had to go back inside for his health card and his phone. SO #2 followed the Complainant back inside, but the Complainant was moving very quickly and SO #2 lost sight of him and the Complainant would not respond when called. SO #2 noticed that the balcony doors were open and called to SO #1 that the Complainant had jumped from the balcony. Both SO #1 and SO #2 then went into the backyard and located the Complainant hiding under a blanket; the Complainant accused SO #2 of lying to him and SO #2 responded that he had been unaware that the CW had already left. SO #2 again tried to reason with the Complainant, but he was irrational. SO #2 repeatedly told the Complainant that they were there to help him and to make sure he was safe and to take him to hospital as they had a report that he had overdosed. The Complainant then became threatening, indicating that he was not going anywhere without a fight and SO #1 heard him state “you guys lied to me. I want you to shoot me”. SO #2 then broadcast over the radio that they required assistance. The radio communications recording confirms a broadcast for “another unit here – sergeant maybe”.

Both police officers then observed the Complainant reach for a chain that was attached to a wooden fence and were concerned that he meant to use the chain as a weapon; he then began to move towards SO #2 while SO #2 kept instructing him to stop. The Complainant then launched himself at SO #2 and grabbed SO #2 by his ballistic vest, whereupon SO #2 immediately delivered a distractionary punch to the side of the Complainant’s head while simultaneously SO #1 grabbed onto the Complainant’s clothing and the Complainant fell to the ground with SO #1 falling on top of him as they landed. Once down, the Complainant continued to struggle and thrash about preventing the officers from applying the handcuffs. SO #2 also observed the Complainant trying to push himself upward off the ground and he delivered a second punch to the left side of the Complainant’s face as a distractionary technique to gain compliance and to keep the Complainant down on the ground where it would be easier to restrain him. The second punch delivered proved to be effective and the Complainant remained on the ground, he was handcuffed and arrested for assault police, whereupon he immediately calmed down and became apologetic, admitting to SO #2, when asked, that he had indeed ingested 90 Temazepam pills.

On this record, I find that the evidence of SO #1 and SO #2 is significantly confirmed by the evidence of the CW and also to some extent, by the evidence of the Complainant. I find that the Complainant, by his own admission, was in an altered state of mind, confused and under the influence of not only the drugs but his prior consumption of alcohol. The Complainant’s toxicology screen from his medical records confirmed the presence of cocaine, benzodiazepine and cannabinoids in his system, as well as a blood/alcohol reading of 24 mmol/L which translates to 110 mgs of alcohol per 100 mls of blood,[2] which would far exceed the estimation by the Complainant of his consumption and would be far more consistent with the CW’s estimation of the amount of alcohol the Complainant had consumed.

While I find that the Complainant’s version of the evidence appears to be greatly exaggerated and I am unable to place much credence on his account of the events, I do find that there are some points in the Complainant’s statement that appear to confirm the evidence of SO #1 and SO #2 and which support their version of events as being accurate. While the Complainant’s estimation of the number of officers who came up to his apartment is contradicted by the CW, and while the Complainant indicated that multiple officers beat him in the back yard, when there were never more than two police officers present, I find that his evidence is somewhat consistent in that he was aware that police officers struck him because they believed he had armed himself with a weapon, that he was struck in the head, and that he was taken to the ground. As indicated, however, I find that the evidence of the Complainant is not accurate with respect to numbers of officers present at the scene and the degree of force used against him and is inconsistent with the evidence of the CW, which confirms much of the evidence of SO #1 and SO #2. I accept, however, that the Complainant was punched by SO #2, as that is consistent with the evidence of both officers, and that he was taken to the ground by both officers because officers believed he was accessing a possible weapon. I further find that the Complainant went down to the ground with SO #1, and that SO #1 landed on top of him with his full 230 pounds (104 kilograms (kgs)).

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 911 call, as confirmed on scene by the CW, that the Complainant had ingested a dangerous amount of some drug and was at risk of losing his life. On that evidence, officers had grounds to believe that the Complainant was a danger to himself contrary to s.17 of the MHA, and it would be dangerous to wait and obtain an order from a justice of the peace and therefore they had the authority to take the Complainant into custody for examination by a physician. As such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to apprehend the Complainant, I find that their behavior was justified in the circumstances and that they used no more force than necessary to subdue the Complainant, who had launched himself at SO #2 and grabbed onto his ballistic vest, had attempted to get hold of a chain to use as a weapon and appeared to be concealing something in one of his hands behind his back as he was approaching SO #2, while ignoring SO #2’s numerous directions to stop advancing on the officer; additionally the Complainant was behaving in a volatile, irrational and actively resistant manner. The first distractionary strike or punch to the face by SO #2, when the Complainant had hold of him by the vest, was clearly necessary in order to ensure the safety of SO #2; that strike, combined with SO #1 pulling on the Complainant, caused the Complainant to fall onto the ground. I find that SO #1’s actions in grabbing onto the Complainant, while the Complainant was actively engaged in what appeared to be an attack on SO #2, was also fully justified. Unfortunately, while the Complainant was falling, he pulled SO #1 down on top of him with the momentum of his movements and SO #1 fell with his full 230 pounds (104 kgs) on top of the Complainant, possibly injuring his ribs in the process. Once on the ground, while continuing to be actively resistant, refusing to give up his hands and trying to push himself upwards from the ground, SO #2 delivered a second distractionary strike to the face of the Complainant in order to keep him down where he could be restrained by the officers. Clearly, this second strike effectively kept the Complainant on the ground and he was handcuffed and abandoned his further resistance against the officers. I find that this second strike was also fully justified in the circumstances. 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.

Although it is quite possible that the punches to the Complainant’s face were the cause of his fractured nose, and that SO #1 falling on top of the Complainant with his full weight may have caused the non-displaced fractures of the Complainant’s ninth and tenth ribs, I cannot find that their actions in these circumstances, even if they caused the injuries, were an excessive use of force. On the facts before me, where both police officers had information that the Complainant may have ingested a lethal dose of a drug, there was clearly some urgency to get him subdued and to a hospital where he could receive treatment as soon as possible. It is clear that initially both police officers made every effort to get the Complainant the help he needed through encouragement and reason, with the hopes that he would voluntarily go to hospital. When that failed and the Complainant ran off, I find that SO #1 and SO #2 were fully justified in using force to apprehend the Complainant not only to protect themselves from the Complainant, but to protect the Complainant himself. I find that the actions of both police officers progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance and combative behaviour, and fell within the range of what was reasonably necessary in the circumstances to affect his lawful apprehension. While I do not discount the possibility that the Complainant may have been injured when he jumped from his balcony,[3] even if his injuries were caused by the efforts of the officers to subdue the Complainant, I cannot find that to have been an excessive use of force. 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 23, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #1, WO #2 and WO #3 were not present at the time of the interaction with the Complainant. [Back to text]
• 2) [2] Which exceeds the legal driving limit of 80 mgs of alcohol per 100 mls of blood. [Back to text]
• 3) [3] The jump to the ground was approximately ten feet (3.1 metres) while he was drugged and intoxicated so it is not a stretch to infer that this action might have caused his injury. [Back to text]