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 27-year-old man on November 5, 2016, allegedly during his arrest for a domestic assault relating to civilian witness #1 (CW #1).

Notification of the SIU

On December 5, 2016, at 11:10 a.m., Toronto Police Service (TPS) notified the SIU that on December 1, 2016, an Office of Independent Police Review Director (OIPRD) complaint was received. The Complainant alleged that when he was arrested by police officers on November 5, 2016, at 4:00 a.m., he suffered an injury to his ankle. The Complainant was arrested at CW #1’s residence for domestic assault.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 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[1]

Subject Officers

SO Interviewed, and notes received and reviewed.

Video/audio/photographic evidence

TPS booking video summary

• On November 5, 2016, at 6:48 a.m., a cruiser, occupied by the SO and WO #4, arrived in the sally port of the station. The Complainant was assisted out of the cruiser by the SO and WO #4 and he appeared to be limping to the booking room
• At 6:49 a.m., the Complainant was paraded in front of WO #6. The SO told WO #6 that the Complainant had complained of an ankle problem that happened prior to arrest. The SO and WO #4 described a scrape that was located on the Complainant’s right arm. The SO described that there was bruising to the left side of the Complainant’s face. The Complainant interjected and said that the bruising was from the scuffle when the police officers beat him up
• At 6:50 a.m., WO #6 asked how many alcoholic beverages the Complainant had to drink, and he said 13 shots (a mickey of liquor). The Complainant said that he drank the shots from 10:30 p.m. on November 4, 2016 to 1:30 a.m. on November 5, 2016. He described that he and his girlfriend were “wasted”
• At 6:52 a.m., the Complainant advised that he smoked marijuana
• At 6:53 a.m., WO #6 asked the Complainant when the injury to his ankle happened. The Complainant said “that kinda came when they kinda came. They pulled me down the stairs.” WO #6 asked if the injury took place prior to the police officers’ arrival. The Complainant said “it (the injury) came during that, because they (police officers) pulled me down the stairs”, and
• At 6:58 a.m., the Complainant was searched by the SO and escorted to cells

Photos of injuries

The Complainant included three photos in his OIPRD complaint consisting of two photos of bruising to his left eye and one photo of a swollen left ankle.

Communications recordings

911 Communications recording summary

• On November 5, 2016 at 5:19 a.m., a person [now known to be CW #3] called and reported that that he/she had been woken up about 10 times from the continuous sound of banging and loud noises emanating from [CW #1’s home]
• The person said the noise was coming from [the address]. The person reported he/she heard things being thrown and a man and woman yelling at each other

Materials obtained from Police Service

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

• Booking Photo
• Booking video
• Communications Recordings
• Event Details Report
• General Occurrence (Prosecution Summary)
• General Occurrence Report
• In car camera (ICC) video for the SO and WO #4’s cruiser
• Video statement of CW #1
• List of Involved Officers, and
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5 and WO #6

During the early morning hours of November 5, 2016, the Complainant and CW #1 were in CW #1’s home. Both were intoxicated. An argument ensued and CW #3 called 911 because of the yelling and banging heard.

WO #2 and WO #3 were first dispatched to the scene. Then, twenty-five minutes later, once WO #3 decided that he was going to arrest both the Complainant and CW #1, he called for additional officers. The SO and WO #4 were dispatched, and then a third cruiser with WO #1 and WO #5. When the officers arrived at CW #1’s home, they went to CW #1’s bedroom where both CW #1 and the Complainant were located. Visible injuries were observed on CW #1, and the Complainant was arrested for domestic assault and transported to the police station.

Two days later, on November 7, 2016, the Complainant had an x-ray taken of his left foot which indicated that he had sustained a non-displaced fracture to his distal diaphysis fifth metatarsal (baby toe on his left foot). On November 28, 2016, the Complainant filed a complaint with OIPRD, alleging that he had been beaten by the attending officers during his arrest, causing his injury.

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.

On November 5^th, 2016, a 911 call was received by TPS at 5:20:50 a.m., from CW #3 for unknown trouble. CW #3 advised that there had been screaming, yelling and things being thrown since midnight and that CW #3 heard both a male and a female voice. As a result, WO #2 and WO #3 were dispatched, later followed by the SO, WO #1, WO #4 and WO #5, and the Complainant was arrested for domestic assault. On November 7^th, 2016, the Complainant attended first on his doctor and then at hospital for an x-ray which indicated that he had sustained a non-displaced fracture to his distal diaphysis fifth metatarsal (baby toe on his left foot). On November 28^th, 2016, the Complainant filed a complaint with the OIPRD and on December 5^th, 2016, the SIU was notified and an investigation was commenced.

The Complainant advised that he and CW #1 were out drinking at a party, following which they returned to CW #1’s home. The Complainant advised that there was an argument and police attended at the home where they slammed his head against the door. The Complainant advised that he was then taken upstairs where he was struck on the left side of his face, and then struck again by the officers once he was on the ground. The Complainant advised that the officers punched him all over his leg, causing his injury. The Complainant went to see his doctor on the 7^th of November and his left ankle was x-rayed revealing a broken bone in the small toe of his left foot.

CW #1 corroborates the Complainant, as to the interaction with police, when he alleges that they slammed his head against the door.

While the version of events relayed by the Complainant and CW #1 is identical with respect to the initial interactions with police, I find that I am unable to place any credence in their evidence as it is directly contradicted by CW #2 and CW #3, as well as other evidence, as follows:

The Complainant and CW #1 both allege that there was an earlier altercation between CW #1 and CW #2. This evidence is contradicted by CW #2.

Furthermore, CW #2 contradicts the Complainant and CW #1 as to the number of officers who attended at the bedroom door specifically, and then the apartment in general.[2] CW #2’s version is consistent with the evidence of the six officers who attended and the dispatch records.

The Complainant was contradicted by CW #1 as to their manner of dress at the time they went downstairs. Both the Complainant and CW #1 were contradicted by CW #2 on that point as well as the order of who went downstairs. Again, CW #2’s version is consistent with the evidence of the police officers.

Both CW #1 and the Complainant allege that a police officer slammed the Complainant’s face against the door on the main floor of the apartment. CW #2 did not indicate hearing any scuffle downstairs. CW #2’s recollection of when officers advised the Complainant to get dressed also contradicts the Complainant’s version.

What the Complainant, CW #1 and CW #2 all agree upon is that the Complainant and CW #1 were intoxicated.

Additionally, in the 911 call, CW #3 indicated hearing loud banging noises prior to police arrival which would appear to corroborate that more than a verbal argument was going on between the Complainant and CW #1. CW #3 described it as loud banging noises, as if someone was thrown against a wall, and a woman yelling and screaming. I find that this evidence clearly contradicts the evidence of both the Complainant and CW #1 that there was no physical confrontation between the two, but only an argument. I find further support for this conclusion in the evidence of WO #3 who indicated that when he pushed the bedroom door open, he observed CW #1 to have scratches to her neck and chest area and that the Complainant was lying on the floor behind the door claiming that CW #1 had “fucked up my leg”. WO #3 also indicated that he observed the Complainant to hold onto the bed as he stood up and he observed him to be limping, prior to any physical interaction between the Complainant and police. WO #3 further observed that when the Complainant stood on the stairwell, he held onto the wall and the handrail for support, while WO #2 also observed the Complainant to be limping soon after he and WO #3 arrived.

On this evidence, I find I must reject the evidence of the Complainant and CW #1 as it is directly contradicted by CW #2 and CW #3, neither of whom have any incentive to fabricate. Additionally, I find that the evidence of CW #2 substantially confirms the evidence of the police officers. Both CW #2 and CW #3 significantly contradict CW #1 as to the number of police officers who attended; this is confirmed by the communications recording which confirms that originally, at 5:21:45 a.m., only two officers in one cruiser were dispatched to the residence, that being WO #2 and WO #3. Twenty-five minutes later, at 5:46:50 a.m., a second unit was dispatched with the SO and WO #4, and finally, at 6:04 a.m., a third cruiser with WO #1 and WO #5 was dispatched. I find this is conclusive evidence confirming the evidence of the six police officers who attended and discredits the version of events from the Complainant and CW #1. Although another cruiser with two additional police officers eventually arrived on scene at 7:43:15 a.m. in order to photograph the apartment, that was long after the Complainant and CW #1 had left with police.

On all of the evidence obtained with respect to this matter, I find three particularly compelling pieces of evidence as follows:

1. The Complainant’s Medical Records

In the Complainant’s medical records, his doctor appears to take the Complainant’s version as to how he came to be injured. She has noted the following:

Saturday morning assaulted, police were called
Was trying to help a friend
Does not really remember details of mechanism of injury but was hit repeatedly in the head and left ankle.

From the reading of these notes, it appears that the Complainant related to his doctor that he was assaulted as a result of which police were called. At no time does the Complainant appear to relate to his doctor that he believed that the police were, in fact, the persons assaulting him.

1. The OIPRD Complaint

This complaint was dated November 28^th, 2016, wherein the Complainant includes a written statement from CW #1. I note that as of the time of the statement to investigators on December 13^th, 2016, the Complainant was on a court order not to have contact with CW #1 and yet they appear to have collaborated on this complaint. In her statement to the OIPRD, CW #1 writes as follows:

The cops took [the Complainant] up to my room to put some “pants” on … then started to beat him up for no reason.

On all of the evidence, but with particular emphasis on CW #1’s own statement to investigators, there is no question that CW #1 was not in the bedroom when the Complainant went up with police to put his pants on. As such, it is clear that the OIPRD statement from CW #1 was made either in collusion with the Complainant or under his direction, as it does not reflect CW #1’s actual observations. It is clear from CW #1’s statement to SIU investigators that she had no knowledge of what went on in the bedroom between the Complainant and police, as she was not present.

2. The Notebook of WO #3

The notebook entries of WO #3, made at the time of the incident or shortly thereafter, indicated that immediately upon entry into the bedroom, prior to any interaction with either the Complainant or CW #1, he made the following observations:

Door half open. See F/M in bra and underwear only. F/M has several scratches of redness on her neck and chest area. F/M (illegible). ML on the ground behind the door in room says “yo, she fucked me up, she fucked up my leg, yo”. Several time (sic) repeats above. ML is in his boxers only. Gets up, limps.

I find that these entries, made prior to any knowledge that the Complainant had a foot injury or that he had made an OIPRD complaint against police, to be confirmatory of the observations by police that the Complainant had injured his foot prior to police arrival and without any involvement of police.

Where, as here, there are no independent civilian witnesses to the interaction with police in the bedroom, which the Complainant alleges was where he was punched and suffered the injury to his foot, in order to find reasonable grounds to believe that an offence has been committed, one has to rely on the credibility of the Complainant. Although the physical injury would normally be seen as confirming the statement of the Complainant, where there is evidence that the injury occurred prior to police arrival, and the Complainant’s medical records indicate that he was unaware as to how the injury occurred, I cannot find that this evidence is capable of confirming the Complainant’s version of events. In this instance, unfortunately, the credibility of the Complainant was so badly damaged, due to the overwhelming inconsistencies between his statement and the evidence of other civilian witnesses as well as the physical records, in the form of medical records, the communications records and the notes of WO #3 made at the time, that I am unable to place any reliance on his version of events. As I have outlined the major inconsistencies above, I will not repeat them here, other than to say that they go to the very heart of the allegations and the credibility of the Complainant. With respect to the statement of CW #1, I accept that she did not make any observations of the interaction with police and the Complainant while in the bedroom when the Complainant alleges that he was beaten and suffered his injury. However, I also find that there is evidence that CW #1 and the Complainant had previously discussed their evidence amongst themselves and that she was influenced by his version of events and adopted them as her own in her statement to the OIPRD, despite her later acknowledgement that she was not even present at the time of the alleged encounter. On this basis, I conclude that both the Complainant’s and CW #1’s credibility is greatly diminished by both their level of intoxication and the serious inconsistencies between their statements and the other evidence.

In the absence of any real or independent evidence that supports the allegations of the Complainant, I am only left with the Complainant’s own statements. As I have rejected the evidence of the Complainant due to his lack of credibility, there is no evidence capable of supporting the claims of the Complainant that he was repeatedly assaulted and that his injury was caused when he lifted up his leg to protect himself from the officers and therefore, no credible evidence upon which I can rely to find reasonable grounds that an offence has been committed by any of the six police officers who attended to investigate this call.

I find on the record before me that the evidence falls far short of the standard of reasonable grounds to believe any officer committed an offence of Assault Causing Bodily Harm contrary to the Criminal Code, in this instance. I find that there is sufficient credible evidence that the Complainant suffered his broken toe prior to the arrival of police that I am left without any reasonable grounds to believe that there is a causal connection between the Complainant’s injury and the actions of police. Having rejected the evidence of the Complainant and CW #1, I am unable, on the remaining evidence, to find reasonable grounds to believe that any of the police officers who attended exercised an excessive use of force in their attempts to arrest the Complainant or that the actions of police were the source of the Complainant’s injury and thus there are no grounds to believe a criminal offence was committed by any of the police officers and no charges will issue.

Date: October 31, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #6’s notes were reviewed and it was determined that he was not at the scene when the Complainant was arrested. WO #6 was at the station when the Complainant was paraded. [Back to text]
• 2) [2] Footnote text [Back to text]