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 46-year-old man on December 23, 2016 during his arrest for domestic assault.

Notification of the SIU

On December 23, 2016 at 10:21 a.m., the Toronto Police Service (TPS) reported that at 1:20 a.m. that day, police officers were called to an address on King Street West for a domestic dispute. The Complainant was arrested for assault. During the arrest, the Complainant was taken to the ground and he lost conscious for about 5-10 seconds. Paramedics were on scene during the arrest. The Complainant was taken to the hospital and examined as a precaution. A computed tomography (CT) scan came back negative for any injuries. He was given aspirin and was returned back into police custody.

Since no concussion or fractures were confirmed, and the fact the Complainant was given only pain medication, this file was designated as non-jurisdictional. TPS was asked to contact the SIU should his condition change.

On December 28, 2016, after revisiting the circumstances, and with the understanding the Complainant lost consciousness for some time during the December 23^rd interaction, the SIU invoked their mandate.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1  Not interviewed[1]

CW #2  Interviewed

CW #3  Interviewed

CW #4  Interviewed

CW #5  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

WO #4  Interviewed

WO #5  Interviewed

WO #6  Not interviewed, but notes received and reviewed

Subject Officers

SO #1  Interviewed, and notes received and reviewed

SO #2  Interviewed, and notes received and reviewed

SO #3  Interviewed, and notes received and reviewed

The Scene

The scene was not examined but the interaction occurred in the second floor hallway of a condominium building on King Street West in Toronto.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. Investigators received closed circuit television (CCTV) video from the King Street West condominium and in-car camera (ICC) video from WO #4 and WO #5’s cruiser. The Complainant also provided photos of his injuries.

CCTV Video Recordings

The CCTV footage obtained from the security company for the condominium building was reviewed, and most significantly revealed evidence which could support the charges against the Complainant.

The recordings captured the Complainant as he entered an elevator and stood in the middle of the car facing CW #1. He moved back against the wall of the elevator and appeared to yell at CW #1, who did not respond. The elevator door closed and the Complainant forcefully punched the elevator door with his right fist before he moved back against the elevator wall and continued to yell at CW #1. Eventually the Complainant moved and stood directly in front of CW #1 as the elevator door opened. He used his left hand to push CW #1 against the elevator wall before he grabbed her by her clothing and forced her forward, head first, into the elevator door. He continued to hold onto CW #1 until he pulled her out of the elevator.

There was no video of the interaction between the Complainant and the police.

ICC Video

The ICC video captured the Complainant’s transport by WO #4 and WO #5, from the hospital to the TPS division. The video began on December 23, 2016, at 6:47:33 a.m., when WO #4 and WO #5 escorted the Complainant towards the police cruiser from the hospital and ran until 8:27:13 a.m., when unknown people drove the police cruiser out of the division sally port. Police officers removed the Complainant from the police cruiser at 7:45:26 a.m., for him to be booked. The video did not provide any relevant evidence to the investigation.

Materials obtained from Police Service

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

• Booking video
• Communications recordings
• Event Details Report
• General Occurrence
• ICC video from WO #4 and WO #5’s cruiser
• List of Involved Officers
• Notes of WO #1, WO #2, WO #3, WO #4 and WO #5
• Notes of SO #1, SO #2 and SO #3
• Procedure - Arrest
• Procedure - Domestic Violence
• Witness List

During the early morning of December 23, 2016, the Complainant and CW #1 were returning to their condominium. Both were intoxicated, and the Complainant was observed to assault CW #1. Police were called, and officers approached the Complainant in the hallway outside his unit on the second floor. At the time, the Complainant was bleeding from his hand, and had smeared blood on the hallway walls.

SO #1, SO #2 and SO #3 attempted to handcuff the Complainant, who was belligerent and resisted their efforts. The Complainant fell onto the floor, hitting his head, and lost consciousness for approximately 30 seconds. Paramedics were already on scene, and the Complainant was transported to the hospital. A CT scan was done and the Complainant was diagnosed with a “minor head injury”[2] and instructed to seek further medical attention if he felt it necessary.

Sections 265-266, 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

266 Every one who commits an assault is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction

Section 270, 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

(2) Every one who commits an offence under subsection (1) is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction

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.

In the early morning on December 23, 2016, the Complainant suffered a head injury during an encounter with police officers from TPS. For the reasons that follow, I am satisfied that there are no reasonable grounds to believe that any of the subject officers – SO #1, SO #2 or SO #3 – committed a criminal offence in the course of their interactions with the Complainant.

It is not in question that the Complainant was intoxicated at the time of the police involvement, or that he had grabbed or pushed CW #1, which prompted the call to the police. The CCTV footage showed the Complainant punching the elevator wall with his right fist. He then appeared to yell at CW #1, push her backwards against the elevator wall and grab her, pulling her forward into the elevator wall, before pushing her out the door. The Complainant’s right finger was bleeding. Once the Complainant and CW #1 exited the elevator, witnesses observed blood on the walls and carpet in the hallway, and on the suite door.

At 1:10 a.m., CW #5 called the police. He reported that a couple who lived in the building were in a fight and there was blood on the wall from an injured finger. Within about five minutes, SO #1, SO #2, SO #3 and WO #1 arrived and approached the Complainant in the second floor hallway. SO #3 recognized him as the same man he and WO #1 had encountered on a nearby street two hours earlier. The Complainant had been shouting and trying to start a fight with another man. The officers told him to move on and that was the end of their encounter.

The officers moved towards the Complainant who was loud and belligerent, telling them to “fuck off” as they were not needed there. SO #3 asked the Complainant what happened, and why he was bleeding. The Complainant said that earlier he had been “slashed” by an unknown man on King Street. The Complainant said he lived in the nearby suite and CW #1 was sleeping inside. According to the officers, the Complainant smelled of alcohol, slurred his words, had glossy eyes and was unsteady on his feet. CW #2 told WO #1 that he saw the Complainant push CW #1 in the lobby and subsequently assault her in the elevator. WO #1 provided this information to SO #3.

SO #1 knocked on the door to the suite and CW #1 answered. She was crying, but did not appear visibly injured. He identified himself and she invited him inside. SO #3 also joined them. CW #1 said she was not physically hurt. She explained they had been out drinking at a strip club and got into an argument when they arrived at home. CW #1 also appeared intoxicated, as she was unsteady on her feet, had glossy eyes and slurred her words. CW #1 did not tell them she had been assaulted by the Complainant. The officers heard the Complainant raising his voice in the hallway and becoming more agitated and argumentative with SO #2. SO #3 went back into the hallway to check on them. CW #3 and CW #4 arrived on the second floor and stood near the elevator, away from the Complainant and the officers.

The Complainant was standing close to SO #2 and yelling at him. He was rubbing his blood on the walls and grabbing at SO #2’s vest. In order to prevent a seemingly impending assault, SO #2 attempted to handcuff him with the assistance of SO #3. SO #3 grabbed the Complainant’s left arm, while SO #2 held the Complainant’s right arm. Drawn by the commotion, SO #1 came into the hallway and took control of the Complainant’s left arm, so SO #3 could help SO #2 control his right arm. The Complainant was placed face first against the wall. SO #3 tried to keep the Complainant’s face and chest towards the wall, but the Complainant tried to turn around to face the police officers. He pulled his arms away to avoid being handcuffed and used both feet to kick backwards at the officers. The Complainant did not listen to police commands and refused to provide his hands. The Complainant was a large man, weighing well over 200 lbs. (90.72 kilograms) and was well over six feet (1.83 metres) tall. Eventually SO #3 handcuffed the Complainant’s arms behind his back. Still, the Complainant continued to try to move around and kick at them. He told the police officers they had no grounds to arrest him and threatened to sue.

Because he was resistant and because of the physical difference in size between the Complainant and the police officers, SO #3 used his left forearm to control the Complainant’s head by holding it against the wall. SO #3 stepped on the Complainant’s feet to stop him from kicking. According to the officers, none of them delivered any strikes to the Complainant at any time. None of the civilian witnesses saw the officers strike the Complainant. The Complainant kicked and moved from side to side even while handcuffed. Suddenly, the Complainant lost his footing and fell to the ground, striking his head on the floor. A loud thud sound was heard and the Complainant became unconscious. He was unconscious for about 30 seconds. He was placed on a stretcher in a neck brace. SO #3 told the Complainant he was under arrest. He was taken to the hospital where he was diagnosed with a minor head injury. The Complainant was then transported to the TPS division. He was charged with assault and assault with intent to resist arrest.

The Complainant told a different version of events. He asserted that he was unlawfully arrested and the involved officers grounded him and punched him in the head multiple times during the arrest. Again, it was not in question that the Complainant was intoxicated. The Complainant’s recollection of the incident is problematic as these assertions are directly contradicted by other witnesses who were present, including the involved officers and the civilian witnesses, none of whom witnessed the use of force methods as described by the Complainant. Additionally, I am concerned with the variety of explanations the Complainant provides to explain how his finger was injured. SO #3 and WO #1 recalled him saying an unknown man on King Street “slashed” his hand, which is different from what the Complainant told CW #5. In his statement to the SIU, the Complainant offered another explanation. I further question the accuracy of his recollection given that he was admittedly in an intoxicated state. As such, I have significant concerns with both the credibility and reliability of his statement.

I am satisfied for the following reasons that the involved officers had the lawful authority to arrest the Complainant for assaulting CW #1. Although CW #1 denied it, there was sufficient evidence from other sources for the officers to form reasonable grounds that she had been assaulted by the Complainant. Pursuant to the TPS policy on domestic violence, police officers do not have discretion to lay charges where reasonable grounds exist, and the decision to lay charges shall not be influenced by factors such as a denial from a victim despite contrary evidence.[3] The officers were responding to a 911 call about a domestic assault and arrived to find the Complainant’s hand bleeding. The Complainant proceeded to attempt to wipe blood on the attending officers and would not answer their questions about what happened with CW #1. CW #2 and CW #5 reported to the officers that they witnessed the Complainant assault CW #1 both in the lobby and in the elevator. Furthermore, SO #2 reported that the Complainant was acting aggressively while they waited in the hallway and repeatedly grabbed the front of his protective vest.

I now turn to whether the amount of force used to affect the arrest was reasonable. In my view, there is no evidentiary basis for a finding of excessive force by SO #1, SO #2 or SO #3. The amount of force used to contain and arrest the Complainant was minimal according to the statements of the involved officers, comprising only of physical restraint of his limbs in order to handcuff him. I found no reason on this record to disbelieve their accounts. To the contrary, CW #3 and CW #4 reported the Complainant struggling with the officers as they attempted to handcuff him and the Complainant subsequently falling over. In fact, given the high risk nature of domestic calls, the Complainant’s lack of cooperation, and the unknown biological hazard of his blood that was present, I find the amount of force employed by the subject officers to have been restrained.

Although it appears that the Complainant’s head injury was most probably caused when he fell and his head struck the ground after being handcuffed, I am satisfied that the Complainant fell on his own accord and was in no way forced to the ground or subjected to strikes to the head by the subject officers. There is no evidence to support a conclusion that the Complainant was grounded and punched in the head multiples times by the involved officers, aside from that of the Complainant whose recollection I find unreliable for the reasons that precede. 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 apprehending a large, intoxicated, belligerent, and uncooperative man.

As such, I am therefore satisfied on this record that the actions of the subject officers – SO #1, SO #2 and SO #3 – fell within the limits prescribed by the criminal law and thus conclude there are no grounds to believe that a criminal offence was committed. Accordingly, no charges will issue.

Date: November 2, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] CW #1 declined to participate in the investigation. [Back to text]
• 2) [2] Presumed concussion and associated to the Complainant’s loss of consciousness. [Back to text]
• 3) [3] TPS Policy - Domestic Violence, page 4. [Back to text]