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 29-year-old man during his arrest for drug trafficking on November 29, 2016.

Notification of the SIU

On November 29, 2016, at 11:30 p.m., Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury.

TPS reported that on November 29, 2016, at 2:04 p.m., TPS officers arrested the Complainant at Dundas and George Streets for drug possession. He resisted and a Conducted Energy Weapon (CEW) was deployed. The Complainant was grounded, taken to a TPS division, and strip searched. A quantity of drugs was observed in his anus, which he refused to remove. He was taken to the hospital for the purpose of retrieving the drug. While there, the Complainant was examined for swelling of his face and diagnosed with a fractured orbital bone. He was discharged back to police custody.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant

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

Civilian Witnesses

None

Witness Officers

WO #1 Interviewed, and notes received and reviewed

WO #2 Interviewed, and notes received and reviewed

WO #3 Interviewed, and notes received and reviewed

WO #4 Interviewed, and notes received and reviewed

Additionally, the notes from 6 other, non-designated officers were received and reviewed.

Subject Officers

SO Interviewed, and notes received and reviewed

Video Evidence

Summary of Closed Circuit Television (CCTV) Video Footage from TCHC (Toronto Community Housing Corporation) Property at 291 George Street

Two men left the building through a pedestrian gate onto George Street. A man wearing a purple hoodie (the Complainant) walked south on the east sidewalk past the entrance gates to the TCHC building. A marked police cruiser drove south, in the northbound traffic lane on George Street, and stopped beside the Complainant.

The driver of the police cruiser (WO #1) exited the cruiser. The Complainant ran away southbound on George Street and WO #1 ran after him. WO #1 returned to his police cruiser and drove south on George Street.

Summary of CCTV Footage from TCHC Property at 300 George Street

A police vehicle entered the parking garage driveway and activated the camera. A man wearing a hoodie with the hood up (the Complainant) was recorded falling on the left side of his face, in a southerly direction, on the west sidewalk outside the building garage entrance. A bicycle police officer (the SO) ran slightly behind and to the left of the Complainant as he fell. The Complainant hands were by his side as he fell. The SO crouched down slightly to the Complainant’s left, and had his two hands joined and pointed at him. Another uniformed police officer (WO #1) came from behind the SO, jumped on and placed his left knee into the Complainant’s back.

WO #1 straddled the Complainant. The Complainant appeared to attempt to move his body off the ground and his right arm was not visible. WO #1 held the Complainant’s left arm with his left hand and reached back to his utility belt with his right hand.

WO #1 struggled with the Complainant who moved his right arm to his right side and squirmed his body around on the ground. The Complainant continued to squirm his body around. WO #1 gave him two strikes with his right hand to his head area. The SO remained standing to the Complainant’s left with his hands joined and pointed at him.

The SO placed his left knee on the Complainant’s back and with his left hand assisted WO #1 in taking hold of the Complainant’s right arm. The SO took his left hand off the Complainant’s right arm and tried to pull his left arm out from under his body. WO #1 maintained hold of his right arm.

The SO stood up, moved away from the Complainant, and WO #1 handcuffed him with his hands behind his back. WO #1 got up off the Complainant who rolled onto his back on the ground. The Complainant tried to get up from the ground. WO #1 rolled him onto his left side, onto his stomach, and held him down with his left knee on his back.

Summary of CCTV Footage from Nearby Bar

A bicycle police officer (the SO) cycled northbound in the middle of the road on George Street. When opposite the driveway entrance to the parking lot at 300 George Street, the SO got off his bicycle and placed it on its side in the middle of the street. The SO walked slightly to the east and stood facing north on George Street.

Two men (the Complainant and WO #1) ran southbound on the east side of George Street towards the SO. The Complainant and WO #1 changed direction and ran west across the street to the sidewalk outside 300 George Street.

The SO moved towards the parking lot driveway entrance to 300 George Street. He stepped onto the sidewalk and as the Complainant passed him appeared to have his hands pointed towards the Complainant. The Complainant fell face first onto the sidewalk at the parking lot entrance to 300 George Street. The SO stood back from the Complainant with his hands pointed towards him.

WO #1 got down on his knees, straddled the Complainant’s back, and appeared to struggle with the Complainant’s arms. The SO approached and assisted WO #1.

Communications Recordings

WO #1 and WO #2 informed the dispatcher of one person in custody at George Street and Gerrard Street.

The SO requested an ambulance on George Street, north on Dundas Street, for a man who was “tasered’, in order to remove the prongs.

The dispatcher called for the ambulance regarding a man who was “tasered”. The man was conscious and breathing. The SO said the ambulance arrived.

Materials obtained from Police Service

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

• Event Details Reports
• General Occurrence Report
• Communications audio recordings:
• Injury Report - Conducted Energy Weapon
• Injury Report - Use of Force
• Notes of WO #1, WO #2, WO #3 and WO #4
• Notes of six non-designated officers
• Procedure - Use of Force with appendices
• Procedure - Conducted Energy Weapon
• Automated Dispatch Service (ADS) - Summary of Conversation, and
• Training Record – the SO

During the afternoon of November 29, 2016, TPS officers were conducting surveillance on George Street to monitor the area for drug trafficking. After observing a drug transaction, WO #1 ran towards the Complainant, who ran away.

The SO, who was on bicycle patrol in the area, was called to assist WO #1 to arrest the Complainant. The Complainant appeared to have something in his hand and ran towards the SO. The SO discharged his CEW, hitting the Complainant in his wrist and his waistband. The Complainant fell face down, with the left side of his face hitting the pavement.

WO #1 attempted to handcuff the Complainant, and delivered three strikes to the right side of the Complainant’s head or face in an effort to subdue him. Once the Complainant was handcuffed and brought to his feet, he had visible injuries to his face and hands.

The Complainant was transported to hospital to determine if he had drugs hidden in his body. Once at the hospital, the Complainant complained of pain to the left side of his face and his chest, and a headache. X-rays revealed he had a fractured orbital bone.

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.

The facts surrounding the SO’s and WO #1’s interactions with the Complainant are not in dispute as the entire interaction was captured on CCTV from various buildings in the area.

On November 29, 2016, the Complainant was on George Street when a police cruiser pulled up beside him and WO #1 got out and came running towards him. The Complainant began to run. WO #1 ran after the Complainant, shouting at him to stop. The SO, who was in the area, was called to assist WO #1 to arrest the Complainant. As WO #1 was chasing the Complainant, the SO was standing in the middle of George Street. The SO told the Complainant to stop running. The Complainant, who appeared to have something in his hand, continued to run towards the SO. The SO drew and activated his CEW. When the Complainant was approximately four to five feet (1.22 to 1.52 metres) away, the SO discharged his CEW. The prongs hit the Complainant in his wrist and his waistband. The Complainant fell face down, with the left side of his face hitting the pavement. WO #1 ran up to the Complainant and attempted to handcuff him but the Complainant struggled. WO #1 delivered three strikes to the right side of the Complainant’s head or face in an effort to subdue him. The SO re-holstered his CEW and assisted WO #1, and the Complainant was finally handcuffed and brought to his feet. Witnesses observed that the Complainant had swelling and bloody marks under his left eye, and cuts and scrapes to both of his hands.

Because of concern that the Complainant may have had drugs or weapons secreted on his person, when WO #1 brought the Complainant to a TPS division, a Level Three, or strip search, was authorized. In the course of that search, police officers believed they saw crack cocaine in the Complainant’s anus, and so he was brought to the hospital to have it removed. Once at the hospital, the Complainant complained for the first time of pain to the left side of his face and his chest, and a headache. Up until that point, the Complainant had not complained about any injuries or police conduct. X-rays indicated that the Complainant had a fracture to the lower aspect of the orbital bone of his left eye. All the evidence indicates that the fracture to the Complainant’s left orbital bone occurred when he fell face forward, hitting the left side of his face onto the pavement, after the SO discharged his CEW.

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. According to WO #1, he had observed the Complainant provide crack cocaine to another individual (the dealer) who then sold it to a third man (the buyer). At the time WO #1 was pursuing the Complainant on George Street, intent on arresting him for trafficking crack cocaine, both the dealer and the buyer had been arrested. WO #1 asked the SO if he would assist in the apprehension, and the SO agreed. I accept that WO #1 had reasonable grounds to believe that the Complainant had committed a criminal offence at that point, and the SO was entitled to rely on those grounds in attempting to arrest the Complainant.

The SO stated that as the Complainant ran towards him, he directed him to stop, but the Complainant continued to approach. Believing the Complainant was displaying aggressive, assaultive behaviour, the SO drew his CEW, turned it on and again yelled at the Complainant to stop. The Complainant continued to run directly towards the SO. The SO believed that the Complainant had an unknown blue object in his hand (which turned out to be a watch), and stated he feared that he or the Complainant would get hurt. The SO was also concerned that if the Complainant had gotten past him, he could have entered a nearby construction site which would have presented a danger to other members of the public if a foot pursuit ensued. Accordingly, the SO deployed his CEW when the Complainant was within four feet (1.22 metres) of him. The Complainant immediately dropped face first to the ground, favouring his left side. WO #1 jumped on top of the Complainant and attempted to handcuff the Complainant’s right hand. The Complainant started kicking his legs and pulling his right hand away. WO #1 gave the Complainant two or three punches to his head and face to get him to stop resisting. The Complainant stopped kicking out with his feet, but continued to resist WO #1 getting hold of his hands. The SO assisted WO #1 in handcuffing the Complainant.

The Complainant’s version does not greatly contradict the SO’s recollection.

I accept that the SO had reasonable grounds to believe that the Complainant had just committed a criminal offence and so was arrestable, and that, by running towards a police officer who was directing him to stop with an unknown object in his hand, the Complainant posed a potential danger to the SO such that he was justified in deploying his CEW. Doing so did not fall outside the range of what was reasonably necessary in the circumstances to arrest the Complainant and take him into custody. The jurisprudence is clear that police 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).

As such, I am satisfied on reasonable grounds that the SO’s actions fell within the limits prescribed by the criminal law and there are no grounds to believe he committed a criminal offence. No charges will issue.

Date: October 13, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit