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 45-year-old man on September 22, 2016 during his arrest for drug trafficking.

Notification of the SIU

On September 23, 2016 at 1:13 a.m., Toronto Police Service (TPS) called the SIU to report a custody injury.

TPS advised that on September 22, 2016 at 7:00 p.m., TPS drug squad members arrested the Complainant on Finch Avenue West at the Finchdale Shopping Plaza. He was taken to the hospital to be treated for a cut over his eye which occurred when he was arrested and taken to the ground. At 12:34 a.m. on September 23, 2016, the Complainant was diagnosed with a mild nasal bone fracture.

The team

Number of SIU Investigators assigned: 5

Complainant

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

Civilian witnesses

None

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

WO #7 Not interviewed, but notes received and reviewed

WO #8 Not interviewed, but notes received and reviewed

WO #9 Not interviewed, but notes received and reviewed

WO #10 Not interviewed, but notes received and reviewed

WO #11 Not interviewed, but notes received and reviewed

Subject officers

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

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right.

The scene

The scene of the arrest is located in the Finchdale shopping plaza parking lot on the north side of Finch Avenue West in Toronto.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and located raw video footage from the Finchdale Plaza. After reviewing the video recording, however, it was determined that this video had no evidentiary value to this incident.

Materials obtained from Police Service

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

• Computer Aided Dispatch (CAD) Event Details Report
• COMM Audio Request
• COMM / Automated Dispatch Service (ADS) - Summary of Conversation
• Communications recordings
• TPS Cell video
• In car camera (ICC) video from transport cruiser
• Criminal Record – the Complainant
• Event Details Report
• General Occurrence Report
• Intergraph Computer Aided Dispatch (ICAD) - Unit History Report
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9, WO #10 and WO #11
• Person Hardcopy – the Complainant
• Prisoner Log Information
• Team roles
• TPS Injury and Illness Report, and
• TPS Property Exhibit List

During the early evening of September 22, 2016, the Complainant was the subject of an undercover operation at Finchdale Plaza in Toronto, where WO #4 prearranged to purchase a quantity of cocaine from the Complainant in WO #4’s car the parking lot. Once the transaction was completed, the Complainant was arrested, removed from the car by SO #1 and SO #2 and taken to the ground. In the course of his grounding, the Complainant fell face first, with both officers on top of him.

As the Complainant had visible facial injuries, he was transported to hospital and was diagnosed as having sustained a mild nasal bone fracture.

Section 5, Controlled Drugs and Substances Act – Trafficking

5 (1) No person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.

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 September 22, 2016, an undercover operation was executed whereby the target, the Complainant, would sell drugs to an undercover police officer, following which he was to be arrested. The drug transaction was to take place at the Finchdale Plaza, located at Finch Avenue West in the City of Toronto. Once the undercover operator signaled his colleagues that the deal had been completed, SO #1 and SO #2 moved in to arrest the Complainant. During the course of the arrest, the Complainant was injured and taken to hospital where he was diagnosed as having sustained a mild nasal bone fracture.

During the course of this investigation, investigators interviewed the Complainant, and five police witnesses. There were no civilian witnesses who observed the incident and the two Subject Officers declined to be interviewed, as is their legal right, and did not provide their notebooks for review. In addition to the interviews, investigators reviewed the notebooks of 11 potential police witnesses.

In the course of the undercover operation, the following officers were assigned the following roles:

• WO #4 was the undercover buyer
• SO #1 and SO #2 were to effect the arrest
• WO #2 was to be the “road boss”, which required him to conduct the briefing and to liaise between the team and the officer in charge of the operation
• WO #3 was to take a position where he could observe the drug transaction
• WO #5 was to be the note taker, and
• WO #1 was the officer in charge of the operation and oversaw the investigation and was responsible for the safety of his team members.

WO #4 advised that the drug transaction took place inside his undercover motor vehicle and that the Complainant entered his motor vehicle after they spoke on a cell phone. Once the transaction was completed, WO #4 gave the agreed upon signal and SO #1 appeared at the window within moments and opened the passenger door and yelled, “Toronto police, you are under arrest for trafficking cocaine”. WO #4 then observed SO #1 start to pull the Complainant from the passenger seat, and that SO #2 came to assist with the arrest. WO #4 advised that it appeared to him that the Complainant attempted to walk, and then run, towards the rear of his undercover vehicle and WO #4 believed the Complainant was trying to escape. WO #4 observed SO #1 and SO #2 struggle to take the Complainant to the ground, and as the struggle moved to the rear of his vehicle, WO #4 lost sight of the interaction. WO #4 explained that in his role as undercover buyer, he was not to leave his vehicle nor was he to assist in the arrest. Although WO #4 could not see the interaction, he advised that he heard voices yelling, “Stop resisting; get on the ground”.

WO #2 advised that he drove his vehicle to the location of the arrest, and when he arrived, he observed SO #1 and SO #2 struggling with the Complainant at the side of the undercover vehicle. He observed that the Complainant was standing at that time and appeared to be struggling to escape; WO #2 advised that his vantage point was from approximately 20 feet (6.10 metres) away. WO #2 advised that he then turned his attention to patrons leaving the bar, and when he looked back, the Complainant was on the ground, lying face down and SO #1 was to his right while SO #2 was to his left. At that point, WO #2 observed SO #1 handcuff the Complainant to the back and immediately observed that the Complainant was bleeding from the head area. When the Complainant was brought to a sitting position, WO #2 observed him to have a scrape to his nose and a cut above his left eyebrow, and he applied a gauze dressing to the cut and called for a uniformed presence as well as an ambulance.

WO #3 advised that he observed the signal that the buy had been completed and then transmitted this information over the radio to his colleagues and that the Complainant was to be arrested. WO #3 observed SO #2 approach the rear of the undercover vehicle from the west, and SO #1 from the east; WO #3’s vantage point was from roughly 50 feet (15.24 metres) away. WO #3 then observed SO #1 open the front passenger door and heard “Police, you’re under arrest for trafficking cocaine”, whereupon he observed SO #1 take hold of the Complainant’s left arm and pull him from the vehicle where SO #2 grabbed the Complainant’s right arm; the Complainant was facing toward the back of the car at that point and was clear of the passenger door. WO #3 advised that he heard “Police, you’re under arrest, get on the ground and stop resisting”. WO #3 then observed the Complainant make an attempt to run toward the back of the car as his arms were being held and SO #1 and SO #2 were trying to bring him to the ground. Both police officers and the Complainant then fell forward and landed on the ground at the same time; the Complainant landing face down with both officers on top of him. WO #3 advised that his view of the interaction was uninterrupted from the time the car door was opened until all three landed on the ground. WO #3 then observed blood on the ground and that the Complainant had a cut over his left eye and blood coming from his nose. He also observed SO #1 with scrapes and scuffs on one of his arms.

Later that evening, during the debriefing at the police station, WO #3 advised that he was told by both SO #1 and SO #2 that they each had tried to sweep a respective leg out from under the Complainant, to gain control of the Complainant when he was struggling, and because they each performed the same maneuver at the same time, all three of them fell.

WO #5 advised that as soon as WO #2 gave the order to make the arrest, she drove forward and stopped in front of the undercover vehicle, where she observed SO #1 and SO #2 each holding one arm of the Complainant at the rear of the passenger side of the vehicle. She advised that the Complainant was attempting to run and that she observed the Complainant to take a few steps before all three fell to the ground.

WO #1 saw neither the drug transaction nor the arrest of the Complainant but was told by WO #2, following the arrest and while the Complainant was still on the ground, that SO #1 and SO #2 removed the Complainant from the car and instructed him to get on the ground and when he would not comply, he was taken to the ground, causing his face to hit the concrete.

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 all of the evidence that the Complainant had just completed a transaction involving the illegal sale of narcotics and as a result was arrestable. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to detain and subdue the Complainant, on all of the evidence, there appears to be little dispute between the Complainant and the officers witness to the interaction immediately preceding his arrest as to what force was used. The only difference appears to be whether the Complainant was voluntarily giving himself up to police and had his arms in the air when he was taken to the ground or was attempting to flee. In reviewing all of the evidence, I have taken into account the following:

• The similarity of the evidence of all of the police witnesses
• The evidence that officers heard words to the effect of “stop resisting” and “get on the ground”
• The evidence that each officer in a position to observe was of the view that the Complainant was trying to run
• The utterances of SO #1 and SO #2 at the debriefing, as related by WO #3, that each officer had tried to sweep a respective leg out from under the Complainant to gain control of the Complainant when he was struggling, and because they each performed the same maneuver at the same time, all three of them fell, and
• The utterances of WO #2 to WO #1, immediately following the incident, wherein he had summarized the interaction as being that SO #1 and SO #2 removed the Complainant from the car and instructed him to get on the ground and, when he would not comply, he was taken to the ground causing his face to hit the concrete. I find this statement to be particularly compelling in light of the fact that it was made immediately after the arrest and before any opportunity for WO #2 to have spoken to the subject officers to get their version of events.

On this basis, I am unable to find that there are reasonable grounds to accept that the Complainant was surrendering himself to officers for arrest, but rather prefer the evidence of the four witness police officers that the Complainant was trying to run away at the time.

Having come to that conclusion, however, there still remains the issue of whether the use of force by SO #1 and SO #2 was excessive in the circumstances. Based on this record, I find that their behavior was justified in the circumstances and that they used no more force than necessary to subdue the Complainant who was apparently struggling and attempting to flee from officers. It is clear on the evidence that both officers attempted a maneuver whereby they would sweep one leg out from under the Complainant and thereby put him down to the ground where they could place him in handcuffs and safely remove him from the scene. Unfortunately, in a fast-paced situation, such as this obviously was, a drug transaction just having been completed, patrons leaving the bar and coming out into the parking lot and the Complainant attempting to escape, there is not always time to communicate one’s actions before they have to be put into effect. In this particular fact scenario, it appears that both officers, due to their training, had the same thought at the same time with respect to a maneuver they had been taught to use in just such circumstances, and both acted at the same time, unfortunately taking out both of the Complainant’s legs and causing him, and them, to fall to the ground. I find that the explanation, as related by WO #3 as having come from each of SO #1 and SO #2 at the debriefing, is totally consistent with the evidence of the Complainant as to how he came to be on the ground and to have suffered his injury. It is very possible that had only one officer swept one leg out from under the Complainant, he may not have fallen on his face and broken his nose; unfortunately in a fast-paced, fluid situation it is not always possible to confer before taking action. 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:

As well as the decision in R. v. Baxter from the Ontario Court of Appeal, 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.)).

On this record, it is clear that the force used by both SO #1 and SO #2 was measured and proportionate to the resistance of the Complainant and fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention. The fact that both officers engaged in exactly the same maneuver, at exactly the same time, causing the Complainant to land on his face with the officers landing on top of him, was an unfortunate accident and could not have been foreseen.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention and the manner in which it was carried out were lawful notwithstanding the injury which he suffered. I am, therefore, satisfied on reasonable grounds on all of the available evidence 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: October 13, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit