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 fractured right wrist suffered by a 16-year-old male while being apprehended by police on November 15, 2016 at approximately 8:40 p.m. in the backyard of a group home at an address in Scarborough.

Notification of the SIU

The SIU was notified of the incident by the Toronto Police Service (TPS) on November 16, 2016 at 1:25 a.m. The TPS reported that on Tuesday, November 15, 2016, at approximately 8:35 p.m., the male suffered a serious injury during an interaction with TPS members.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

The SIU Forensic Investigator (FI) responded to the scene and identified and preserved evidence. He documented the relevant scene associated with the incident by way of notes and photography.

Complainant

16-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

CW #6 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Not interviewed, but notes received and reviewed

WO #4 Not interviewed, but notes received and reviewed[1]

Subject officers

SO #1 Interviewed, and notes received and reviewed

SO #2 Interviewed, and notes received and reviewed

SO #3 Interviewed, and notes received and reviewed

The scene

The group home is located at an address in Scarborough on the west side of the road, set significantly back from the roadway. The driveway access was on the south side of a one and a half story brick detached dwelling with a front (east) facing entrance door and a rear (west) facing entrance door. The driveway continued past the dwelling to a rear parking lot. There was a raised wooden deck at the rear of the dwelling with wooden stairs that led to the rear entrance door. There was also a set of stairs that led to a second story rear entrance. Trees lined both the north and south sides of the property and the yard contained two picnic tables, one on the rear deck and one near the north tree line. The property is particularly secluded from neighbours.

Communications recordings

The communication recordings captured reports of the complainant’s behaviour to 911. He had possibly broken his own hand while punching walls and was historically violent with police. The information given by the employees at the group home residence was consistent with the information provided during their interviews.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence.

The in-car camera footage of one of the attending TPS police cruisers was reviewed but proved to be of no evidentiary value. None of the interactions between the complainant and any of the police officers were captured on camera.

Forensic evidence

The SIU FI downloaded the data from the two Conducted Energy Weapons (CEWs) that were present during the November 15, 2016 interaction with the complainant. Those CEWs were issued to SO #1 and WO #1. The data confirmed that neither weapon had been discharged around the time of the complainant’s apprehension.

Materials obtained from Police Service

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

• Automatic Vehicle Location (AVL) data table
• Event Details Reports
• General Occurrence Report
• Intergraph Computer Aided Dispatch (ICAD) for four TPS cruisers
• Mobile Data Terminal (MDT) logs
• notes for WO #1, #2, #3 and #4,
• Parade Sheet reports
• Procedure - Emotionally Disturbed Persons, and
• summary of conversation between dispatcher and employees at the group home

During the evening of November 15, 2016, the complainant was at the group home where he resided. He was very upset. At 8:24 p.m., CW #3, an employee of the residence, was concerned that the complainant was punching the brick and steel walls of the residence and may have broken his hand, and so called for an ambulance. When the dispatcher informed CW #3 that the police would also be responding, CW #3 warned that the complainant had threatened to fight the police if they attended.

At 8:35 p.m., SO #1 and SO #2 arrived at the residence. CW #3 and another staff member provided details to the police officers about the complainant’s self-harming and violent behaviour prior to their arrival, and advised that the complainant had mental health issues. CW #3 again expressed concern that the complainant might act aggressively towards the police.

The complainant was located outside at the back of the residence. He was agitated. SO #1 tried to speak with the complainant and de-escalate the situation; however the complainant threatened to hurt the police officers. Three more officers arrived at the residence – SO #3, WO #1 and WO #2 – as well as an ambulance. SO #3 joined SO #1 and SO #2 in dealing directly with the complainant, while WO #1 and WO #2 stayed and watched at a distance.

The SOs decided to apprehend the complainant pursuant to the Mental Health Act (MHA). SO #1 grabbed the complainant when he was distracted and took him down onto the grass with the assistance of SO #2 and SO #3. WO #2 and WO #1 came to assist. The complainant briefly struggled with the SOs before he was handcuffed with his hands behind his back. He was then placed in the care of paramedics and transported to hospital for a mental health assessment. While in hospital, an X-ray revealed that the complainant had a broken bone in his right wrist.

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.

Section 17, Mental Health Act - Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself,

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person;
5. serious bodily harm to another person; or
6. serious physical impairment of the person,

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

On November 15, 2016, the complainant was apprehended by members of the TPS under the authority of the MHA. Later that day, the complainant was diagnosed with a fractured right wrist. For reasons that follow, I do not have reasonable grounds to believe that any of the three SOs – SO #1, SO #2 and SO #3 – committed a criminal offence in relation to the complainant’s injury.

The complainant lived in a group home residence in Scarborough. On November 15, 2016, the complainant was upset and started to punch the brick walls and metal doors of the residence. At 8:24 p.m., one of the employees at the residence, CW #3, called for an ambulance. CW #3 reported that the complainant’s hand appeared to be broken and because he had suicidal ideations in the past, they were concerned about his health. The dispatcher informed CW #3 that the police would also be responding. CW #3 warned that the complainant had threatened to fight the police if they attended.

At 8:35 p.m., SO #1 and SO #2 arrived and met with CW #3 and another staff member in the driveway. They provided details to the police officers about the complainant’s self-harming and violent behaviour prior to their arrival, asserting that they believed the complainant was a danger to himself and others. CW #3 reported that the complainant had mental health issues and again expressed concern that the complainant might act aggressively towards the police. He then directed the two police officers to the complainant’s location at the back of the house.

As SO #1 and SO #2 approached the complainant, he appeared agitated and was shouting unintelligibly at a staff member outside the residence. The complainant had one hand concealed in the front pocket of his hooded jacket. SO #1 had his CEWs drawn by his side, but his body was bladed away from the complainant in an attempt to conceal the CEW. SO #1 tried to speak with the complainant and de-escalate the situation. The complainant threatened to hurt the police officers as he clenched his fists. According to SO #2, the complainant accused the police officers of being an “app” and not being real.

Finally, the complainant removed his hand from his pocket. SO #1 re-holstered his CEWs and continued to attempt to engage the complainant in dialogue to defuse the situation. An ambulance arrived at the house around the same time as SO #3 and WO #2, followed shortly by WO #1. SO #3 joined SO #1 and SO #2 in dealing directly with the complainant, while the other two police officers stayed and watched at a distance. WO #1 drew his CEWs for officer safety given the complainant’s agitated and aggressive state, but did not arm it. The complainant’s behaviour was not de-escalating despite the police officers’ efforts. As a result of the information SO #1 and SO #2 received from CW #3 and their subsequent observations, they formed an opinion that the complainant was a danger to himself and others due to a mental health disorder, and therefore they had the authority to apprehend him to escort him to the hospital on that basis.

SO #1 saw an opportunity when the complainant was distracted and took him down onto the grass in a bear hug, with the assistance of SO #2 and SO #3. According to SO #2 and SO #3, the complainant unsuccessfully attempted to punch SO #1 immediately prior to him grounding the complainant. SO #2 saw the complainant land on his front with his hands under his chest. WO #2 and WO #1 came over to assist. There was a short struggle and the complainant was handcuffed with his hands behind his back. He was then placed in the care of paramedics to be transported to hospital for a mental health assessment. While in hospital, an X-ray revealed that the complainant had a broken bone in his right wrist.

Based on this record, I am satisfied that the involved police officers had grounds to apprehend the complainant pursuant to section 17 of the MHA. Witnesses were consistent that prior to and during the complainant’s contact with the police officers, he was violent, angry, distraught and confrontational. Furthermore, when confronted by the officers, the complainant’s violence continued, he expressed delusional thoughts according to SO #2 and SO #3, irrationality, and rigorously fought being apprehended. It was therefore reasonable for the officers to conclude that his erratic behaviour that they believed was related to his mental health issues posed a real and present danger to himself and others.

The precise timing of the complainant’s right wrist fracture was unclear. There appear to have been three distinct possible causes. First and most obviously, the injury may have occurred when the complainant was repeatedly punching hard objects with his right fist immediately prior to the police arrival. The medical opinion received from CW #6 following a review of the complainant’s x-rays, however, casts doubt on the likelihood the complainant’s right wrist was injured prior to his involvement with the police officers. Secondly, it is possible that when the police officers grabbed hold of the complainant and took him to the ground, his right wrist was fractured when he struck the ground, although there was no other evidence found to support this possibility. Thirdly, the complainant’s wrist could have been fractured when he was struggling with the police officers on the ground prior to being handcuffed. In this regard, there is a suggestion in the evidence that a police officer bent the complainant’s right hand down towards his forearm before he was handcuffed. Yet, none of the involved police officers recalled seeing or applying a wrist lock or other joint manipulation to the complainant’s right arm. As a result, it is difficult to determine with certainty whether the complainant’s injury to his right wrist occurred prior to or during his involvement with the police. That said, I am satisfied that this determination is ultimately of no consequence following a review of the degree of force used by the involved officers.

Section 25(1) of the Criminal Code limits the force police officers can use to that which is reasonably necessary in the circumstances in the execution of their lawful duties. In my view, there is no evidentiary basis for a finding of excessive force by any of the involved officers. All three SOs provided statements and copies of their notes to the SIU. According to the SOs, the complainant was grounded in a controlled manner, was not struck by any officer, nor was his right wrist manipulated in any manner. This was reinforced by the statements of several civilian witnesses who saw the encounter. SO #3 stated that he was on the complainant’s right side on the ground, but did not conduct any manipulations of his right wrist.

It is not in issue that the complainant resisted the officers’ efforts to handcuff him. There is a suggestion in the evidence that the officers physically assaulted the complainant on various parts of his body, resulting in visible injuries. However, the injuries recorded in his medical records and the witness statements did not coincide with this account. Additionally, SIU investigators’ visual examination of his back and right shoulder area two days following the incident revealed no bruising. It is also alleged that the complainant was struck by a CEW multiple times. Yet, the CEW download records for the only two CEWs present during the incident had no record of deployments during that time period. The two officers carrying these devices, SO #1 and WO #1, confirmed their CEWs were temporarily un-holstered but never engaged, despite the complainant’s ongoing and extensive opposition. In the final analysis, even assuming for the moment that one of the officers manipulated the complainant’s wrist in an effort to wrest control of his arm, thereby causing the injury, the balance of the evidence indicates that the force applied by the involved officers in their involvement with the complainant was restrained, proportional and directly in response to the complainant’s continued resistance.

In conclusion, while it is very unfortunate that the complainant may have suffered damage to his right wrist during his encounter with the TPS on November 15, 2016, there was nothing in the conduct of the SOs – SO #1, SO #2 or SO #3 – that would warrant criminal charges in this case. Accordingly, this case will be closed and no charges will issue.

Date: September 28, 2017

Joseph Martino
Acting Director
Special Investigations Unit

Endnotes

• 1) [1] A review of WO #3 and WO #4’s notes revealed their involvement to have been strictly post interaction, in the nature of scene management and information gathering for the purpose of notifying the SIU. These officers did not witness or participate in the complainant’s apprehension. [Back to text]