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 65-year-old man on July 14, 2016 during the execution of a search warrant.

Notification of the SIU

On July 14, 2016 at 7:52 a.m., Peel Regional Police (PRP) reported the custody injury to the Complainant.

PRP reported that on July 14, 2016 at 5:05 a.m., PRP police officers were executing a drug search warrant at a residence in Mississauga, by way of a dynamic entry. Once inside the residence, the police officers encountered the Complainant on the second floor. The Complainant was holding a six foot (1.83 metres) metal bar, which he used to strike a police officer. A conducted energy weapon (CEW) was deployed and the Complainant was arrested. The Complainant was transported to the hospital where he was diagnosed with a collapsed lung.

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 and photography.

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

Subject officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right.

SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

The scene

The residence was a two-storey single family townhouse located on the east side of the road. The main entrance door into the residence is located through the enclosed front porch. This door was damaged, with the glass window of the door shattered and the doorframe having been forced. Glass littered the entrance way. The main floor consists of a living room, kitchen, and sitting area. The first floor was extremely neat and orderly. A copy of the warrant was on the kitchen counter.

The basement area is accessed by a set of stairs located on the north wall of the living room. The basement consists of a sitting room, bedroom with ensuite, utility, and storage rooms. The basement area was neat and orderly.

The second floor is accessed by a set of stairs located on the north wall of the living room. On the mid-way landing of the stairs there was a plastic component of a CEW cartridge. At the top of the stairs was the second floor hallway. Numerous CEW cartridge components were located on the floor – including afids, CEW doors, and CEW plastic. There was a smoke detector (removed from the hall ceiling) on the floor. The second storey, while neat and orderly, showed evidence of a disturbance. Marks were located on the walls heading to the east side bedrooms. There are two bedrooms at the east end of the hall.

The bedroom in the southeast corner of the second floor appeared as if a disturbance had taken place. There was a small amount of red staining on the carpet in front of a closet in the southwest corner of the bedroom and at the hall leading to the ensuite. There was a 1.52 metres aluminum bar leaning against the wall. The remaining bedrooms were neat and orderly. Located on the floor of the northwest bedroom was a small safe box filled with apparent marihuana in baggies. Identification on a dresser in this bedroom indicated it belonged to CW #1.

Physical evidence

Below is a photo of the aluminum bar seized from the residence:

Forensic evidence

WO #1’s CEW indicated two discharges, one event at 5:06:14 a.m., with no time cycle, and the second event at 5:06:19 a.m., for six seconds.

Materials obtained from Police Service

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

• communications recordings
• audio copy report for COMM
• disclosure log
• event chronology
• notes of WO #1, WO #2, WO #3, WO #4, WO #5 and WO #6
• occurrence details – July 13, 2016
• occurrence details – July 14, 2016
• operational plan for Controlled Drugs and Substances Act (CDSA) search warrant
• procedure - use of force
• procedure - search warrants
• telewarrant to search residence, and
• email from PRP

During the early morning hours of July 14, 2016, the Complainant, his wife, son and mother-in-law were asleep inside their home in Mississauga. Suddenly, eight PRP officers broke through their front door to execute a search warrant issued under the CDSA.

Coming out of his upstairs bedroom into the dark hallway, the Complainant hit WO #4 on the forearm with a long strip of metal. WO #1 discharged his CEW at the Complainant twice, making contact the second time. SO #1 then ran up the stairs and tackled WO #1, SO #2 and the Complainant, causing the three officers and the Complainant to fall to the ground. Once on the ground, the Complainant struggled and SO #2 delivered several knee strikes to the Complainant’s hip area, while SO #1 punched him at least once on the back with his fist. The Complainant was handcuffed and taken downstairs. The Complainant had visible injuries and difficulty breathing, and an ambulance was called.

The Complainant was transported to hospital where he was diagnosed with a collapsed left lung and fractures of the left 8^th, 9^th and 10^th ribs.

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.

Just after 5:00 a.m. on July 14, 2016, eight PRP officers forced their way into a residence in Mississauga while the occupants slept. Who the occupants were (beyond one resident – CW #1, who had been observed entering the home earlier in the evening and was the subject of the surveillance), the number of occupants, and where there were in the house, were, remarkably, unknown at the time. Equally surprisingly, the PRP were able to get a search warrant permitting a dynamic entry as early as 4:30 a.m., with little known information. Nonetheless, a warrant was issued under the CDSA and PRP immediately attended the home to execute it.

Inside the home was the 65-year-old Complainant, his wife (CW #2), their adult son (CW #1), and his wife’s elderly mother. They were all sleeping at the time. By the time the eight PRP officers completed their search and left the residence, the Complainant had a collapsed lung, fractured ribs, and at least one and likely two swollen eyes. One of the officers, WO #4, had some damage to his left forearm, but it was not fractured. Although a few ounces of marijuana were seized, no other drugs were located.

When the PRP officers breached the front door of the home, it was in darkness. The lone female officer, WO #6, was tasked to remain on the main floor where she located and detained CW #2. WO #2, WO #3 and SO #1 went to the basement, which was quickly cleared. WO #1, WO #4, WO #5 and SO #2 went upstairs where the bedrooms were located. WO #5 was the first officer up the stairs, and he went to the right to the bedroom he had determined was likely CW #1’s given the earlier surveillance. He entered CW #1’s bedroom and detained him in the room. WO #4 was behind WO #5 going up the stairs, but he went to the left once reaching the landing. WO #1 and SO #2 were behind WO #4.

The Complainant was asleep in the bedroom to the left of the landing. The officers were outside his door. Arming himself with a long metal stick, the Complainant opened the door to his bedroom and saw WO #4. It was dark upstairs at the time, and WO #4 was not using his flashlight. WO #4 was wearing his police vest and identified himself as “Police” once the Complainant came out of the bedroom door with the metal stick. He also told the Complainant to “drop it”. The Complainant was not wearing his glasses. His understanding of English was limited. The Complainant came onto the landing and immediately struck WO #4 once on his left forearm. WO #4 stepped back, as did the Complainant.

WO #1 then discharged his CEW at the Complainant, but it had no effect and the Complainant did not drop the metal stick. WO #1 later found one of the prongs in the wall which prevented its circuit from engaging. SO #2 and WO #1 quickly approached and struggled with the Complainant. WO #1 was able to take the metal stick from the Complainant, yet he continued to struggle with the two officers. WO #1 discharged his CEW a second time, just five seconds after the first discharge. The circuit engaged and lasted for six seconds. The Complainant was closest to the bedroom door, with WO #1 and SO #2 in front of him with their backs to the stairs. I am satisfied that by that point, at least, the Complainant knew that the men he was struggling with were the police.

While WO #1 and SO #2 continued to struggle with the Complainant, SO #1 and WO #3 came upstairs, followed by WO #2. The Complainant was already disarmed. WO #4 was standing on the landing, obviously injured. Once up the stairs, SO #1 tackled the group outside the Complainant’s bedroom from behind, causing the Complainant to land hard on his back on the floor inside his bedroom, with WO #1, SO #2 and SO #1 on top of him. According to the officers, the Complainant continued to struggle. The officers got off of the Complainant, and he was on his side but resisted getting onto his stomach as directed by the officers. SO #2 delivered approximately two to three knee strikes to the Complainant’s hip area, and SO #1 punched him at least once on the back with his fist. The Complainant was subdued enough for WO #1 and SO #1 to grab each of his hands and for handcuffs to be applied by SO #1. The Complainant was then taken downstairs where he was observed to have swollen eyes and trouble breathing. An ambulance was called.

Although I have concerns about the validity of the CDSA warrant that was acted on that morning, it was issued by a Justice of the Peace and the officers appear to have complied with its requirements. Accordingly, I accept that they lawfully attended inside the Complainant’s residence. The Complainant admitted to striking WO #4 with the metal rod because he was confused about what was happening inside his home. Despite perhaps being the cause of the Complainant’s confusion, police officers like all other citizens are legally entitled to defend themselves when attacked. In addition, police officers have the authority to use force in the execution of their lawful duty provided the force is reasonably necessary pursuant to section 25(1) of the Criminal Code, to attain their lawful purpose.

I accept that WO #1 had reasonable justification to discharge his CEW at the Complainant – the first time to disarm him of the metal stick after having struck WO #4, and the second time within seconds in an effort to gain control of the Complainant after the first deployment had no effect.[1] Subsequently, both WO #1 and SO #2 described delivering multiple strikes to the Complainant in response to his continued resistance to their efforts to control and handcuff him. Context is important to assessing the circumstance of the arrest. It is notable that the officers were in an unknown environment, in the dark, in the midst of a dynamic and potentially dangerous situation. By all accounts including that of the Complainant, no strikes were delivered by the involved officers after the Complainant was handcuffed. Although SO #1’s tackling of his two fellow officers together with the Complainant in a confined space did not appear to have been done with much forethought or concern for safety (both of the Complainant or his fellow officers), this is not the standard imposed on officers. 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).

The Complainant alleges that he was subjected to two CEW deployments and a lengthy beating by three officers until he was unconscious. However, the medical evidence and statements from the involved officers do not support this version of events. The Complainant alleges that he was kicked and kneed in his left ribs by two officers, and kicked in the head by a third prior to being handcuffed. Medical records obtained from the hospital from the date of the incident indicated that the Complainant was diagnosed with three fractured left ribs and a left pneumothorax, and observed to have bruising/swelling around his left eye. His injuries were consistent with being struck in the areas described by the Complainant and/or with having three police officers land on him after being tackled to the ground. Yet, there was no evidence that the beating lasted as long as the Complainant described (beyond CW #2 describing the sound of a struggle for a significant period), nor that he lost consciousness at all, let alone for several minutes. The extent of his injuries did not appear to reflect such an extensive beating. Unfortunately, neither CW #1 nor CW #2 was in the vicinity at the time, nor were there any independent witnesses or audio/video recordings. Furthermore, SO #1 did not provide the SIU with an interview or copy of his notes as was his legal right.

In addition, the Complainant described a specific officer pulling his hair and insisting that he apologize to WO #4 (the officer he had struck with the metal rod) while downstairs in the living room in the presence of CW #1 and CW #2. This was not witnessed by the interviewed officers, nor by CW #1 nor CW #2, although the Complainant was heard apologizing to WO #6 in the living room. Additionally, the PRP confirmed that none of the officers in the home matched the description provided by the Complainant.[2] Given the traumatic events the Complainant had experienced that morning, his limited understanding of English and the obvious exaggerations of some of his claims (particularly the length of time of the beating and the time he was unconscious), I must question whether he is a reliable narrator of the events.

Although it is regrettable that the Complainant received significant injuries during the execution of the search warrant, I am not satisfied on this record for the foregoing reasons that the actions of SO #1 and SO #2 fell outside the limits prescribed by the criminal law. Accordingly, I am unable to form reasonable ground to believe that a criminal offence has been committed and no charges will issue.

Date: October 20, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The CEW download report corroborates WO #1’s account that the first discharge had no effect because one of the prongs hit the wall, as it shows no time cycle for the first discharge. [Back to text]
• 2) [2] The Complainant described the offending officer as bald. None of the officers at the scene were bald. [Back to text]