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 57-year-old man during his arrest on January 13, 2017.

Notification of the SIU

On January 14, 2017 at 6:00 a.m., Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury.

TPS reported that on January 13, 2017 at 10:10 p.m., police officers were called to a residence regarding a disturbance. When the police officers arrived, a woman came to the door as did the Complainant. They tried to close the door and the Complainant pushed what was believed to be a firearm through the door. The officers forced the door open and the Complainant was grounded after a struggle. The firearm, which was recovered, is a pellet gun.

The Complainant was taken to the hospital and diagnosed with a fractured nasal bone. The scene was secured.

The Team

Number of SIU Investigators assigned: 3

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:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

CW #4  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed.

The Scene

The entranceway to the scene was through a rear door at the back of the residence, on the east side of the house. The rear yard outside the entranceway was cluttered and in disarray. There was a large crowbar lying on the ground outside the door to the apartment.

The stairwell leading to the Complainant’s apartment was cluttered with large items making it difficult to navigate while descending to the doorway at the bottom of the stairs. At the bottom of the stairs there was a large bat lying on the floor. The doorway leading into the apartment showed no signs of forced entry. The description of the stairwell and the condition of the Complainant’s apartment corroborates the evidence of the involved officers at the scene and SIU Forensic Investigator photographs taken of the scene.

Physical Evidence

Below is a photo of the pellet gun seized from the Complainant:

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence.

CW #2 provided SIU investigators with an audio and video recording that was captured on her cellular phone. An SIU investigator reviewed the video recordings on January 14, 2017. The recordings contained audio and video images of an interaction between CW #1, the Complainant, and the involved police officers following the arrest. The cellular phone recording was found to be consistent with evidence from civilian witnesses, WO #1 and the SO.

Communications Recordings

An SIU investigator reviewed the communications recordings of the events of January 13, 2017, leading up to the Complainant’s arrest and found them to be consistent with the Automated Dispatch System (ADS) Summary of Communications. This data corroborates the statements of involved police officers and the TPS supporting documentation.

At about 10:10 p.m., CW #2 called TPS to file a noise complaint at the residence about her downstairs neighbour who was yelling at them, banging on his ceiling, calling them “baby killers” and threatening to “bash their heads in.” She said this was on ongoing issue with him, even when they were not making noise and he has unknown mental health issues. He had a BB or pellet gun that she last saw him with in the summer, but recently noticed a new BB gun hole in her window.

Materials obtained from Police Service

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

• ADS Summary of Communications
• Communications recordings
• Event Details Report
• General Occurrence
• In-car camera (ICC) recording
• Injury Report
• TPS interview with CW #1 (audio)
• Notes of WO #1 and WO #2
• Person Search
• TPS Scenes of Crime (SOCO) photos
• Procedure - Use of Force

During the evening of January 13, 2017, the Complainant was screaming at his upstairs neighbours. He then went to their window, and threatened them. CW #2 called 911, and the SO and WO #1 were dispatched to the residence.

Once at the residence, the SO and WO #1 spoke to CW #2 and CW #3, who provided a history of their interactions with the Complainant. The SO and WO #1 had also received information from the Complainant’s Canadian Police Information Centre (CPIC) record that he had a history of violence and weapons. After speaking to CW #2 and CW #3, the SO and WO #1 located the entrance to the Complainant’s basement apartment.

When the officers approached the basement door, they were met by CW #1. The landing near the door was an exceedingly tight space, and WO #1 had to stand behind the SO while he spoke with CW #1. The Complainant was inside the dimly lit apartment, lying on a mattress on the floor. The Complainant was shouting profanities at the SO, demanding that he leave the property. The Complainant suddenly stood up from the mattress holding something in his hand by his waist. The SO asked the Complainant several times what he had in his hand, but the Complainant would not identify it and walked behind CW #1. Within seconds a black pistol appeared from behind the door and was pointed directly at the SO’s face.

The SO ducked out of the way of the gun, forced the door open and lunged forward to force the gun out of the Complainant’s hand. The SO fell on top of the Complainant and they landed hard on the floor.

A struggle ensued on the floor. The SO delivered three punches to the right side of the Complainant’s head. The SO was then able control the Complainant’s arms and he was handcuffed. The gun was seized by WO #1, and determined to be a pellet gun.

As the Complainant had facial injuries, the Complainant was taken to the hospital. A computed tomography (CT) scan revealed that the Complainant sustained a comminuted nasal bone fracture and non-displaced right medial orbital wall fracture.

Section 529.3, Criminal Code - Authority to enter dwelling without warrant

529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

1. has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
2. has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

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 13, 2017, at about 10:10 p.m., TPS received a call that the Complainant was yelling and verbally threatening his neighbours. From the apartment above, his neighbours could hear him banging on his ceiling and yelling. He also banged on their ground floor window and threatened to “bash their heads in.” The caller, CW #2, reported that last summer she saw him with a pellet gun and recently found a pellet hole in her window. The neighbour told police that the Complainant had since returned to his apartment and had unknown mental health issues.

At 11:43 p.m., the SO and WO #1 arrived at the residence and spoke with CW #2 and the other residents who lived in the unit above the Complainant. These tenants provided them with a history of their interactions with the Complainant and expressed safety concerns due to his significant mental health issues and violent behaviour. The officers were aware from the dispatcher and the Complainant’s CPIC that he had a history of violence, may have a pellet gun and was on a court condition not to be in possession of any firearms, imitation firearms or pellet guns. The officers considered requesting the TPS mobile crisis intervention team, but did not make this request as the team’s shift had ended and they did not respond to calls involving violent individuals or weapons.

The SO and WO #1 entered the backyard and shouted out the Complainant’s name, informing him that they were with TPS and wanted to talk to him. There was no response. WO #1 followed the SO down a narrow stairway to the entrance to the basement apartment. The door suddenly swung open. CW #1 stood in the doorway and shouted that the Complainant had not done anything wrong and was sleeping. The SO explained to CW #1 that he wanted to speak with the Complainant because there had been a complaint about him.

Hearing the commotion, the Complainant got up from his bed and began to yell profanities at the police officers. From where the Complainant stood behind the door, the police officers did not have a clear view of him. The officers repeatedly asked the Complainant to show them what he had in his hand. The Complainant yelled at the police officers to get off his property and threatened to shoot them.

All of a sudden, the Complainant raised what appeared to be a black handgun and pointed it at the SO and WO #1. Believing they had insufficient time to retreat up the stairs or draw their firearms given the imminent threat, the SO and WO #1 forced their way through the door into the apartment. The SO tackled the Complainant to the ground. WO #1 saw them fall into a wooden dresser before landing on the ground. CW #1 also saw the Complainant strike his head. The Complainant struggled with the officers as they attempted to disarm and arrest him. In the commotion, the SO and WO #1 were uncertain of the location of the gun. The SO used his right fist to deliver three punches to the right side of the Complainant’s head in an attempt to gain compliance. These strikes were effective as the SO was then able control the Complainant’s arms and handcuff them behind his back. WO #1 tried to control the Complainant’s legs by sitting on them and located the black gun nearby on the floor.

The SO and WO #1 lifted the Complainant to his feet and walked him out to their cruiser. The Complainant was arrested for uttering threats of bodily harm, pointing a firearm, possession of a weapon for dangerous purpose, failure to comply with a court order and assaulting a police officer with a weapon. Once outside, the SO was able to examine and determine that the firearm the Complainant held was a BB gun. In the course of that struggle, the Complainant sustained facial injuries. An ambulance was called. Due to the Complainant’s aggressive behaviour, he was transported to the hospital by TPS officers rather than by the EMS. He was assessed and subsequently diagnosed with a nasal bone fracture and right orbital wall fracture.

During this investigation, the SIU interviewed the Complainant, his upstairs neighbours, CW #1, two witness officers and the SO upon his consent. The SO also provided a copy of his notes. Witness officer notes, occurrence reports, an injury report, scene photographs, BB gun photographs and communication recordings were obtained and reviewed. Medical records were also relied on to confirm the nature of the Complainant’s injuries. Additionally, CW #2 provided the SIU with a cellular phone audio/video recording that captured some of the interaction between the Complainant and the involved officers but only subsequent to his arrest as he was being taken to the cruiser.

The basic facts in this case are not in dispute. Upon their arrival, the SO and WO #1 spoke with the upstairs neighbours who reported that the Complainant had threatened to cause them bodily harm. CPIC confirmed that he was on court conditions that included a weapons prohibition. The Complainant does not deny pointing a BB gun at the police officers while they stood at his doorway and then physically resisting their efforts to handcuff him. Given the perceived threat of immediate harm or death that the firearm posed to the officers and CW #1, the SO and WO #1 had the authority to enter the apartment to arrest the Complainant without a warrant pursuant to section 529.3 of the Criminal Code due to these exigent circumstances. It is therefore clear from this record that the SO and WO #1 had multiple grounds to lawfully arrest the Complainant.

I now turn to the question of whether the amount of force used to apprehend the Complainant was excessive in the circumstances. Based on the available evidence, it is apparent that the Complainant sustained the injuries to his right orbital bone and nose while he was being arrested, either as a result of being punched by the SO and/or by his head striking an object in the room when he was taken to the ground as described by CW #1. Section 25(1) of the Criminal Code limits the force an officer may use to that which is reasonably necessary in the circumstances in the execution of their lawful duties. The Complainant reported that while he resisted being handcuffed, one of the officers punched him multiple times in the face and head, which was consistent with the SO’s description of the force he used. The Complainant also alleged that he was kneed in his thigh, this was not reported by either officer and he had no known injury to this area. Although CW #1 refuted that the Complainant resisted the officers, her recollection was contradicted by that of all other witnesses present, including the Complainant.

Without the opportunity for close examination, and in dim lighting, the appearance of the black BB gun was indistinguishable from a handgun and the involved officers had no way of knowing with certainty that what was being pointed was not a handgun. When the Complainant pointed the BB gun at the officers, it is my view that the SO and WO #1 would have been justified in shooting him given the sudden grave danger that they reasonably perceived themselves and CW #1 to be in. Yet, the officers chose a non-lethal option as the best approach given the confined environment and the need for an immediate response. The Complainant was forcibly taken to the ground by the SO, disarmed and handcuffed with the assistance of three punches to the right side of the Complainant’s head. The jurisprudence is clear, that officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)), nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206). In the circumstances, I find their actions to be a measured and reasonable response to the situation as it unfolded.

In my view, there is no evidentiary basis for a finding of excessive force by the SO. To the contrary, I find that both he and WO #1 showed restraint in the amount of force applied given that the Complainant confronted them with what appeared to be a firearm. Consequently, I am satisfied that the actions of the involved officers fell well within the limits prescribed by the criminal law. As a result, no charges will issue and this case will be closed.

Date: November 20, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit