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 of a 60-year-old man during his arrest for attempted murder at a police division on August 31, 2016.

Notification of the SIU

On September 1, 2016, at 11:30 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury. TPS reported that on August 31, 2016, at 2:35 p.m., the Complainant went to a TPS division to retrieve some property. The police officer at the front desk recognized the Complainant as being the subject of an attempted murder warrant resulting from an incident on August 30, 2016. When the police officer tried to arrest the Complainant, a struggle ensued and he was subdued. The Complainant was lodged in a cell and complained of sore ribs. At 7:15 p.m., he was taken to the hospital and examined, but doctors could not confirm a serious injury. The Complainant was brought back to the hospital the next day, and at 11:13 a.m., it was confirmed that the Complainant has three broken ribs and a perforated left lung.

The team

Number of SIU Investigators assigned: 3

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Police employee witness

PEW Interviewed

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

Subject officers

SO Interviewed, and notes received and reviewed

Physical evidence

These are photos of the items seized from the Complainant during his arrest:

Video/audio/photographic evidence

Summary of TPS booking hall video

The Complainant sat on a chair in front of the desk. WO #3, WO #2 and another non-designated officer[1] stood to his right. WO #4 and the PEW stood behind the booking desk. WO #3 stood the Complainant up and explained to him that the non-designated officer speaks Mandarin. The non-designated officer spoke to the Complainant in Mandarin and pointed to the cameras in the booking hall.

WO #4 told the non-designated officer that WO #2 was going to do everything in English and he was to translate into Mandarin. WO #2 told the Complainant she was arresting him for attempted murder. WO #2 explained the process and the non-designated officer interpreted everything to the Complainant.

The non-designated officer said the Complainant complained of pain and asked to get him to a doctor. WO #4 replied, “Okay, we’ll get to that.” WO #4 also said there was a reason for the delay of the process because they were waiting for the interpreter.

WO #4 asked the non-designated officer to tell the Complainant to sit down while he was going to ask a series of questions. The Complainant bent over on the chair and said through the non-designated officer, “I am in pain. I cannot speak.” WO #4 asked the Complainant if he had any injuries, heart conditions or anything like that. The non-designated officer interpreted, “No I’m not sick, I have no heart conditions.” WO #4 replied, “No medical conditions okay, he’s stating he’s injured, what is his injury?” The non-designated officer said, “He is saying my ribs hurt. I’m having trouble breathing.” WO #4 asked what side was hurting and the Complainant said, “left side.” WO #4 directed the non-designated officer to inform the Complainant the paramedics were going to be called in. The non-designated officer added, “He also says his head hurts above his ear.” The PEW said to WO #4, “He was hitting his own head against the wall.” The Complainant started to hit his head off the wall and WO #4 told him to stop. WO #4 directed WO #2 to do an injury report.

WO #4 informed the Complainant a Level III search[2] would be performed because a pen knife and brass knuckles were found. The non-designated officer explained the procedure to the Complainant. WO #4 asked to lift the Complainant’s shirt to see if there were any marks, bruising, or cuts. WO #4 said he could not see any redness, bruising, or marks, but the injury report would be completed anyway.

WO #3 and the non-designated officer took the Complainant into the search room. WO #4, WO #2 and the PEW remained in the booking hall. WO #4 asked WO #2 to call for an ambulance. She left the booking hall.

WO #2 returned to the booking hall and told WO #4 the ambulance was ordered. WO #4 called out to the non-designated officer to let the Complainant know the medics were on their way. WO #3, from the search room, asked WO #4 if it was okay to handcuff the Complainant with his hands to the front and WO #4 responded yes.

The Complainant exited the search room into the booking hall handcuffed with his hands in front of his body. The Complainant said in English, “I…(inaudible)…three years ago I….police …(laughed) now first time police touch me throw me in jail.”

The paramedics arrived. WO #4 told them to check on the Complainant off the camera.

Communications recordings

Summary of communications recordings for attempted murder occurrence

Someone with a knife at the Korean and Family Sauna was attacking a man. A description of the assailant was provided. The police officers were dispatched.

Summary of communications recordings for the Complainant’s detention at the division

A man in custody was having trouble breathing. There was an incident at the original TPS division and he was brought to the investigating division[3] last night. The man went to the hospital last night and there was a possible suspected broken rib. He was released, but he needed to go back for another X-ray. An ambulance was dispatched.

Materials obtained from Police Service

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

• Booking record – the Complainant
• TPS Booking Hall video
• Automated Dispatch System (ADS) Summary Sheet - Summary of Conversation
• General Occurrence Reports – Attempted murder Occurrence, Complainant’s arrest
• Intergraph Computer Aided Dispatch (ICAD) Event and Event Details
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6 and WO #7
• Notes of the PEW
• Procedure - Use of Force (with appendices)
• TPS Contact history – the Complainant
• Training - Use of Force Requalification – the SO
• Communications recordings
• In-car camera (ICC) video recordings

During the afternoon of August 31, 2016, the Complainant went to a TPS division to retrieve some car keys seized during a previous arrest. When his name was queried, a warrant to arrest the Complainant for attempted murder came to light. The Complainant was arrested and handcuffed in the lobby of the division by WO #2, then taken through to the booking hall by the SO and WO #2.

Once in the booking hall, the Complainant’s bag was searched and a pen knife and a set of brass knuckles were located. Upon their discovery, the Complainant became agitated and started to hit his head against the wall. Concerned that he was going to injure himself, the SO and WO #1 grounded the Complainant, in the course of which both officers fell onto his back. The PEW and WO #4 arrived, and the Complainant complained of pain to his left ribs. After a Level III search was conducted, an ambulance was called and the Complainant was transported to the hospital. X-rays revealed that the Complainant had a pneumothorax (collapsed lung) and suspected rib fractures for the eighth, ninth and tenth ribs on his left side.

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 31, 2016, the Complainant was arrested by TPS officers at one of the TPS divisions for attempted murder. After his arrest but prior to his formal booking, the Complainant was grounded in the booking hall by the SO, assisted by WO #1. Following that grounding, the Complainant complained of pain in the left side of his chest. An ambulance was called, and, after the Complainant was booked and searched, he was transported to the hospital. X-rays revealed that the Complainant had a pneumothorax and suspected rib fractures for the eighth, ninth and tenth ribs on his left side. The Complainant alleges that his injuries were caused by the SO kneeing him on his left side while he was on the ground in the booking hall.

It is not in dispute that the Complainant attended the division that day to retrieve some property that had been seized from him by police earlier in the month on an unrelated matter. WO #2, who was at the front desk, assisted him. In the course of assisting the Complainant, a warrant for his arrest came to light for an attempted murder charge for an incident that had occurred three days earlier in another TPS division. When that division was notified, WO #2 was directed to arrest the Complainant. WO #2 asked the SO, who was also at the station, to come into the lobby to assist her. WO #1 came into the lobby to assist as well. The Complainant was handcuffed without incident and taken into the booking hall. All three officers indicated that while being handcuffed, the Complainant tensed his arms and moved or twisted his body, but he was otherwise cooperative. The Complainant had a shoulder bag or backpack with him at the time, which was also taken into the booking hall. The only real discrepancies between the officers’ and the Complainant’s versions up to that point involve the number of officers who grabbed him in the lobby, and when his backpack was taken from him. There is no evidence to corroborate the Complainant’s recollection of the number of officers in the lobby at the time, or that he was grabbed or forcibly handled in any way. I also have difficulty accepting the Complainant’s assertion regarding when his backpack was taken from him as I do not accept that he would have been permitted to retain an unsearched bag after his arrest and handcuffing.

The real dispute, however, is what happened once the Complainant was taken into the booking hall. The Complainant alleges that he was slapped and pushed to the floor, and then the SO kneed him on his left torso, causing his injury. The Complainant offers no explanation for the SO’s conduct.

The SO’s version of what happened in the booking hall is markedly different. The SO stated that after going into the booking hall, the Complainant sat in a chair while the SO searched his bag. The SO found brass knuckles and a pen knife in the bag, the Complainant repeatedly tried to stand up, and then hit the left side of his head off the wall. In an effort to prevent the Complainant from injuring himself or WO #1 who was standing nearby, the SO decided to ground the Complainant. The SO was standing on the Complainant’s left side, and positioned his right leg to the Complainant’s right leg to affect the leg sweep, and applied force to pull the Complainant to the floor. The Complainant was pulled hard to the floor, over the SO’s right leg, and he and WO #1, who was at the Complainant’s right side, both fell to the floor with the Complainant and landed on top of him. The Complainant landed on his stomach. The SO landed partially on top of the Complainant’s middle lower right side of his body and partially on the floor. The Complainant continued to struggle until the PEW came into the room and helped get the Complainant back onto the chair. Then WO #4 came in and the SO was excused. The SO maintained that neither he nor WO #1 used any distractionary knee strikes, punches or kicks on the Complainant at any point.

WO #1 was with the SO and the Complainant in the booking hall, and his version of events is largely consistent with the SO. WO #1 described the Complainant repeatedly trying to get up from the chair once he was placed in it. After the brass knuckles were located in the Complainant’s bag, WO #1 said that the Complainant stood up, yelled something in Mandarin and started to walk towards WO #1. WO #1 placed his hands on the Complainant’s arm and forcibly pushed him back down onto the chair. The Complainant stood up again and he banged his head against the wall on his left side. At that, the SO, who was on the Complainant’s left side, grounded the Complainant by pushing him to the floor. WO #1 was holding the Complainant’s shirt at the time, and lost his balance and fell onto the Complainant, striking the Complainant’s upper back with one of his knees. WO #1 stated he did not kick, punch or knee the Complainant and did not see the SO strike the Complainant at any point.

WO #2 also escorted the Complainant into the booking hall, although she was in and out of the area when the Complainant was grounded. Her version is also generally consistent with the SO. WO #2 stated that after they entered the booking hall, the Complainant was seated on a chair. WO #2 then left the room, and when she returned, the Complainant’s brass knuckles and knife were on the desk. The Complainant was yelling and smacked the side of his head off a wall behind the chair he was sitting on. The Complainant kept trying to get up from the chair and WO #2 told him to stay sitting down. WO #1 tried to push the Complainant back down onto the chair to stop him banging his head off the wall. The Complainant stopped for a second, but then started again. WO #1 and the SO continued to tell him to stop and to calm down. While she was on the phone, WO #2 saw the SO and WO #1 take the Complainant face down from the chair to the floor, although she did not see exactly how he was grounded. WO #1 was at the Complainant’s head, the SO was on his left side, and they held him down with their hands. Then the PEW entered, the Complainant’s shoes were removed and he was placed back in the chair. When WO #4 came in, the Complainant complained of pain on his left side.

The PEW stated that he walked into the booking hall after the Complainant was seated in the chair. He observed the Complainant bent over at his waist and handcuffed with his hands behind his back, and then forcefully pulled off a chair down onto the floor by the SO. On the floor, the SO was on the Complainant’s left side and holding his left shoulder and head. WO #1 was standing on the Complainant’s right side. One of the police officers, the PEW did not know which one, told the Complainant to get down. The PEW thought the Complainant had landed on his right side initially and was then put onto his stomach. He did not see either the SO or WO #1 fall down with the Complainant, but he did witness the Complainant continue to struggle once on the ground. After the PEW removed the Complainant’s shoe and he was placed back onto the chair, the Complainant said he had pain on the left side of his chest.

No other officers were present when the Complainant was grounded in the booking hall. After the Complainant was placed back into the chair and WO #4 entered, the booking video was activated and all the activities in the area were captured on video. The video clearly shows the Complainant complaining, through an interpreter, about pain in his ribs, stating that he had trouble breathing, and his head hurt above his ear. The PEW tells WO #4 that the Complainant had been hitting his head off the wall. The Complainant is then seen hitting his head off the wall again.

Following his booking, the Complainant was subject to a Level III search by the PEW and WO #3, and no redness, bruising, marks or swelling to the Complainant’s left rib cage were noticed by either officer. An ambulance was called and the Complainant was taken to the hospital. Medical records indicate that no visible injuries or obvious marks to the Complainant’s left chest area were noticed. X-rays were ordered of the Complainant’s chest and left ribs. The X-rays showed that the Complainant had a pneumothorax and suspected rib fractures for eighth, ninth and tenth ribs on his left side.

Based on the evidence available, I have several issues with the Complainant’s version of events. To start are my concerns about the Complainant’s recollection of the number of officers in the lobby, when his backpack was taken from him, and the number of officers who held him down in the booking hall. There is no evidence to support his recollections – all the evidence indicates that there were three officers in the lobby, the Complainant’s bag must have been taken from him in the lobby if he was arrested there, and, at most, there were four officers in the booking hall when he was grounded. In addition, the Complainant is an unreliable historian as his version of events changed dramatically depending on who he told, whether to the attending physician at the hospital or WO #5 in the ambulance. Indeed, to WO #5, the Complainant said that it was an Asian officer (presumably the PEW) who beat him and someone else kicked him. The Complainant also did not disclose to anyone that he had been hitting his head off the wall in the booking area, in an obvious attempt to self-inflict an injury. Nor did he disclose that he had weapons in his bag when he entered the police station. Equally troubling are the Complainant’s comments to WO #5 that “If in a real fight, you guys will die for sure. Eight to ten cops, I’m telling you, I’m not going to easily let you guys get off.” and “I will got a lawyer to sue the police, if I can get it done, I will bring out my sniper skill.” Such comments, coupled with the Complainant’s attempts to self-inflict an injury, the material inconsistencies in his versions of the events, and his possession of weapons when he entered the station, leave me with little basis to find him credible.

In contrast, the four officers who were present in the booking area when the Complainant was grounded, namely the SO, WO #1, WO #2 and the PEW, are largely consistent in their recounting of what happened in the booking area before the arrival of WO #4 and the cameras were activated. The Complainant was uncooperative and unwilling to follow directions. Weapons were found in the Complainant’s bag, and the Complainant reacted by first trying to get up, and then by hitting his head on the wall. Because of safety concerns, the SO attempted to ground the Complainant, and both he and WO #1 fell with the Complainant. Both the SO and WO #1 stated that they fell onto the Complainant, with WO #1 admitting he inadvertently hit the Complainant with his knee when he landed.

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 arrest and detention at the division, because of the existing warrant for the Complainant’s arrest at the time, the officers were acting lawfully when the Complainant was arrested in the lobby, handcuffed, and escorted to the booking hall for processing. I also accept that the SO had a reasonable basis to ground the Complainant after weapons were found in his bag, the Complainant kept trying to get up and approach the officer, and then the Complainant started to hit his head off the wall. Unfortunately, in the course of that grounding, both the SO and WO #1 fell onto the Complainant, with at least WO #1’s knee striking the Complainant’s back. It is possible that this could have caused the resulting injuries.

Although I accept that the Complainant had the injuries described in his medical records, I am unsure if they occurred as a result of the grounding by the SO and WO #1, or were preexisting at the time the Complainant attended the division on August 31. The Complainant’s evasiveness when speaking of earlier incidents, and willingness to self-injure while in police custody, perhaps in an effort to form the basis of a subsequent complaint against TPS, also makes me question the true cause of his injuries.

Nonetheless, even if I accept on all of the evidence that the Complainant was either injured when the SO or WO #1 fell onto him once he was grounded, or a pre-existing injury was further aggravated, I find that the SO’s actions were justified in the circumstances and he used no more force than necessary to control the Complainant and prevent him from injuring himself or an officer. The Complainant had been arrested for attempted murder where a weapon had been used and he had not yet been subject to anything more than a pat down search. Weapons were located in the Complainant’s bag. The Complainant was uncooperative and acting irrationally by attempting to injure himself. The decision to ground the Complainant to prevent him from injuring himself or others was reasonable. Unfortunately, both the SO and WO #1 lost their balance and fell onto the Complainant. I accept that any resulting injury was completely unintended.

Accordingly, 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 may have suffered. The jurisprudence makes clear that while police officers’ actions must be commensurate with the task at hand, they cannot be expected to measure their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)) or to be judged against a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206). I have no reasonable basis to believe that the SO has committed a criminal offence and there are no grounds for proceeding with charges in this case.

Date: September 25, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] That officer was not designated as he only assisted with the booking process. [Back to text]
• 2) [2] A Level III search is also colloquially known as a “strip search”, and involves the removal of a detainee’s clothing. [Back to text]
• 3) [3] The Attempted Murder Occurrence was being investigated by a different TPS division than where the Complainant was arrested. [Back to text]