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 alleged by a 20-year-old man during his arrest for public intoxication on August 10, 2015.

Notification of the SIU

On December 9, 2016, at 2:00 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury.

TPS reported that the Complainant had filed a complaint with the Office of the Independent Police Review Director (OIPRD) stating he was arrested by TPS officers on August 10, 2015, at the Eglinton Flats Park. As a result of the arrest, the Complainant suffered a concussion.

TPS confirmed that on August 10, 2015, at 12:55 a.m., TPS officers responded to the Eglinton Flats Park for a report of gunshots. The Complainant was arrested for being intoxicated in a public place and taken initially to the hospital. He was then taken to a TPS division and lodged in a cell. Upon being released the next day, the Complainant told a TPS sergeant he lost consciousness during the arrest. He was released from custody and taken back the hospital.

The Team

Number of SIU Investigators assigned: 4

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

CW #4  Interviewed

CW #5  Interviewed

Witness Officers

None

Subject Officers

SO #1  Interviewed, and notes received and reviewed.

SO #2  Interviewed, and notes received and reviewed.

Materials obtained from Police Service

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

• Event Details Report, and
• General Occurrence

During the early morning hours of August 10, 2015, TPS received a 911 call reporting the sound of gunshots and a woman screaming in the Eglinton Flats Park in the City of Toronto. SO #1 and SO #2, along with other officers, were dispatched to investigate.

In the area of the park in question, SO #1 and SO #2 heard a male voice yell, and located the Complainant. When the Complainant saw the officers, he ran into a wooded area. SO #1 and SO #2 pursued the Complainant in the cruiser, and then on foot. The officers caught up to the Complainant, grabbed him and pulled him to the ground. The Complainant landed on his face, with both officers on top of him.

After a short struggle, the Complainant was handcuffed. It became apparent to the officers that the Complainant was intoxicated, and he was arrested for being intoxicated in a public place contrary to the Liquor Licence Act (LLA). The Complainant had visible injuries to his face and head, and complained of pain in his head. An ambulance was called and he was transported to hospital. A computerized tomography (CT) scan was performed, and no medical issues were found. The Complainant was returned to police custody and transported to a TPS division. The next morning, the Complainant complained again of pain and was transported back to the hospital where, again, no medical issues were found.

On July 28, 2016, the Complainant filed a complaint with the OIPRD alleging that SO #1 and SO #2 had assaulted him and he had suffered a concussion as a result, and on December 9, 2016, the SIU was notified and an investigation commenced.

Section 31(4), Liquor Licence Act - Intoxication

(4) No person shall be in an intoxicated condition,

1. in a place to which the general public is invited or permitted access

Section 31(5), Liquor Licence Act - Arrest without warrant

(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.

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.

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 August 10, 2015, a 911 call was received by the TPS regarding a shooting in the Eglinton Flats Park in the City of Toronto. Numerous police officers were dispatched to investigate, including SO #1 and SO #2. During the course of the investigation, SO #1 and SO #2 came upon the Complainant and he was subsequently arrested for being intoxicated in a public place contrary to the LLA. Following his arrest, the Complainant was transported to hospital by ambulance and was medically cleared. On July 28, 2016, almost one year later, the Complainant filed a complaint with the OIPRD alleging that SO #2 and “John Doe” kicked him in the face and the back of the head, causing him to black out. He further alleged that SO #2 then dragged him to his feet and threw him against the police cruiser, at which point SO #2 then kicked his right foot out from under him, causing him to fall backwards down to the ground striking his head whereupon he felt a sharp pain to the back of his head and saw blood all over himself. The Complainant alleged that he sustained a concussion, as well as cuts, scratches and bruises to his head, face and legs and that his arrest was unlawful as he was not intoxicated to the degree as contemplated by the LLA. On December 9, 2016, 16 months after the incident, the SIU was notified and an investigation commenced.

Medical records revealed that the Complainant was initially seen at the hospital at 2:00 a.m. on the morning of August 10, 2015 at which time he had a CT head scan which was assessed as normal. According to the records, the Complainant provided the following information to the hospital staff:

And:

The Complainant was discharged from hospital at 5:06 a.m.

At 10:14 a.m., the Complainant returned to hospital and his paramedic record reads as follows:

The Complainant was checked in at hospital on this second occasion at 10:14 a.m. On this second visit, his records read as follows:

The Complainant was discharged a second time at 1:47 a.m. with the note:

Unfortunately, there were no civilian witnesses to the Complainant’s interaction with police, nor was there any Closed Circuit Television (CCTV) footage.

In the Complainant’s statement to SIU investigators, the Complainant’s version of the amount of alcohol he had drank on the night in question differed significantly from the information that he supplied on the night of the incident to hospital staff where he admitted to having consumed 20 shots of rum.

The Complainant’s reason for why he ran from the cruiser also differed from the version of events in his OIPRD complaint, where the Complainant indicated that the car headlights shone and blinded him after he made a rude gesture to the vehicle and he became afraid, and that is why he ran.

In his statement to SIU investigators, the Complainant also described in detail what an officer was saying to him as he was running from the cruiser. In his OIPRD complaint, the Complainant makes no mention of this interaction.

In his OIPRD statement, the Complainant alleged that both police officers kicked him in the face and the back of the head after he fell. This differs from the details provided in his statement to the SIU. In his OIPRD statement, the Complainant also alleged that SO #2 threw him against the police car, yelled at him to sit down and kicked his right foot out from under him, causing him to fall to the ground and causing him to hit his head at which point he felt a sharp pain to the back of his head and saw blood all over himself. This allegation was not repeated in the Complainant’s statement to SIU investigators.

On a comparison of the two statements provided by the Complainant, in his statement to the OIPRD, although he alleges that both police officers kicked him initially to the face and back of the head, it appears that he attributes his head injury to being tripped by SO #2 and hitting his head on the ground after which he felt a sharp pain and saw blood. In his statement to the SIU, the Complainant’s version of events changes, and he completely omits the tripping to the ground, hitting his head on the ground and then seeing the blood. These are serious inconsistencies.

While the Complainant, in his OIPRD statement, attributed the kicks to his face and head to both police officers, in his SIU statement he only described SO #2 kicking him. He did not describe any interaction with SO #1. This too is a serious inconsistency.

In both of his statements, the Complainant indicated that during his initial visit to the hospital, the doctor who reviewed the CT scan advised him that he had a concussion, while the medical records clearly indicate that the scan was normal and no concussion was diagnosed.

SO #1 advised that he and SO #2 responded to a call for gunshots heard in the area of the Eglinton Flats Park; the call being that nine gunshots and a woman screaming had been heard. The call was received at 12:46 a.m., and they arrived at the park at 12:51 a.m. Both police officers searched the area with their flashlights, but did not locate anything and were about to clear the call when they heard a man’s voice yelling and they observed the Complainant approximately 75 to 100 metres away at a public washroom in the park. The Complainant, who was wearing a backpack, began to run away; as it was dark in the area, neither officer was able to see the Complainant’s hands or whether or not he gestured towards them. As a result of the report of gunshots, officers felt the need to investigate and SO #1 drove his police cruiser onto the grass towards the Complainant’s location. SO #2 advised that he never drew his firearm, nor did he call out to the Complainant that if he did not stop running he would shoot him, nor did he use the loud speaker on the police cruiser; SO #1 confirmed that he never observed SO #2 draw his firearm.

SO #1 stopped his police cruiser and he and SO #2 exited and began to run after the Complainant, identifying themselves as police officers and yelling at the Complainant to stop running; but the Complainant did not, rather he continued and ran into a wooded area. SO #2 continued to pursue the Complainant, while SO #1 took an alternate route in hopes of cutting him off. Neither police officer at any time drew his firearm. Due to the dense undergrowth in the wooded area, as well as the fact that there was no even path for pedestrians, the Complainant began to slow to dodge the low hanging branches and SO #2 began to close in on the Complainant and was able to grab him by the shoulder. SO #2 then placed his right foot in front of the Complainant’s left foot and performed a leg sweep to attempt to bring the Complainant down to the ground, while SO #1, simultaneously, while running at full speed from the other direction, grabbed the Complainant by his waist and back; the Complainant then went to the ground, landing on his back, and possibly striking his head on the ground with both police officers landing on top of him. Both SO #1 and SO #2 tried to get control of the Complainant’s hands in order to handcuff him, but he continued to resist, keeping his hands underneath his body.

As police officers were still investigating a gun call, SO #1 removed the Complainant’s backpack, which had the result of bringing his arms out from under his body, but he then immediately again put his hands back under his body. Both police officers advised that the Complainant never lost consciousness, as he was continuously struggling throughout. Neither police officer delivered any strikes or kicks to the Complainant, nor did either police officer observe any strikes or kicks being delivered by the other police officer. Initially the Complainant was placed in investigative detention, due to the outstanding gun call, and was taken up from the ground and a pat-down search was conducted, but no firearm was located. The Complainant was observed to have some small cuts to his forehead and dirt, small pieces of tree branches and little rocks were stuck to his face. The Complainant was then escorted to the police cruiser, where his backpack was searched; no firearm was located.

While SO #1 went back to search the surrounding area for any evidence related to the gunshots call, SO #2 remained with the Complainant and observed him to have an odour of alcohol on his breath, his speech was slurred and he was unsteady on his feet. SO #2 then placed the Complainant under arrest for being intoxicated in a public place contrary to the LLA. The Complainant complained of a headache and an ambulance was requested. The Complainant was subsequently issued with two Provincial Offence Notices, one for being intoxicated in a public place and the other for being in the park during prohibited hours.

Where, as here, there are no independent witnesses, in order to find reasonable grounds to believe that an offence has been committed, one has to rely on the credibility and/or reliability of the Complainant. Although the physical injury would normally be seen as confirming the statement of the Complainant, where the injury is as consistent with the Complainant’s version of events, as it is with the version given by the two police officers, I am unable to attribute any particular weight to this evidence, especially in light of the lack of any definitive diagnoses as to whether or not the Complainant ever even actually suffered a concussion. In this instance, unfortunately, the credibility of the Complainant was so badly damaged, due to the overwhelming inconsistencies between his statement to the OIPRD and his subsequent statement to the SIU investigators, 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 each statement seriously compromises the veracity of the other, and the credibility and reliability of the Complainant.

It is certainly beyond dispute that generally a person’s memory will be clearer right after an incident than it will be 16 months later. When the Complainant was relaying to hospital staff the amount of alcohol that he had consumed within hours of that consumption, he indicated that he had 20 shots of rum; I find this to be more than a slight inconsistency, when in his statement to SIU investigators, the Complainant revises that estimation down by two thirds. I find that the observations of the civilian witnesses and SO #1 and SO #2 as to the level of intoxication of the Complainant is far more consistent with his initial report of 20 shots, than it is with his estimation 16 months later. On this basis, I have no difficulty finding that the Complainant’s credibility and reliability is greatly diminished by both his level of intoxication and the serious inconsistencies in his statements initially made at the hospital, then later made in his OIPRD complaint, and finally in his statement to investigators.

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. In this case, there is no evidence to support the claims of the Complainant: that an officer threatened to shoot him, which is inconsistent with the Complainant’s own statement to the OIPRD; that he was kicked to the face and head area by, initially both police officers, in his OIPRD statement, but later in his statement to the SIU, by only SO #2; that SO #2 then threw him against the cruiser and then tripped him to the ground causing him to strike his head and have blood all over him, which he alleged in his OIPRD complaint, but completely omitted in his subsequent statement to the SIU. These, and other, numerous and serious inconsistencies and misstatements between the various statements provided by the Complainant, leave him with little, if any, credibility/reliability upon which I can rely to find reasonable grounds that an offence has been committed by either or both of SO #1 and SO #2.

I find on the record before me that the evidence falls far short of the standard of reasonable grounds to believe that an offence of assault causing bodily harm has been committed in this instance. I find that I am unable to determine with any degree of certainty exactly how the Complainant sustained his injury, or even if he did sustain a concussion injury as alleged, due to the many conflicting reports and inconsistences in his statements. Having rejected the evidence of the Complainant, I am unable, on the remaining evidence, to find reasonable grounds to believe that either, or both, of SO #1 and SO #2 exercised an excessive use of force in their attempts to apprehend the Complainant, who was intoxicated, attempting to flee, and, based on the 911 call, possibly in possession of a firearm.

Should I find that the Complainant’s injury was caused by the TPS officers going to the ground with him and the Complainant striking his head on the rough and uneven ground, I find that pursuant to section 25(1) of the Criminal Code, the police officers involved used no more force than was reasonably necessary in the execution of their lawful duties in apprehending the Complainant. While I find that the degree of force with which the Complainant’s head struck the ground may have been greater than perceived by the police officers as the momentum increased with the police officers falling with him, and may therefore have caused his injury, the jurisprudence is clear, 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 therefore satisfied on reasonable grounds on this record that the actions exercised by the police officers fell within the limits prescribed by the criminal law and thus there are no grounds to believe they committed a criminal offence and no charges will issue.

Date: October 5, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit