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 broken wrist suffered by a 37-year-old male on July 7, 2016 at 10:49 p.m. when he was taken into custody pursuant to the Mental Health Act (MHA).

Notification of the SIU

At 1:50 a.m. on July 8, 2016, Toronto Police Service (TPS) reported the Complainant’s custody injury. TPS reported that at 10:49 p.m. on July 7, 2016, TPS was called to the area of The East Mall, Etobicoke, for a man walking into traffic and threatening suicide. The Subject Officer (SO) and Witness Officer (WO) #1 arrived and took the Complainant to the ground.

The Complainant was transported to the hospital under the authority of the MHA. At the hospital, it was discovered the Complainant had a broken wrist.

The Team

Number of SIU Investigators assigned: 6

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Notes reviewed, interview deemed not necessary[1]

WO #3  Notes reviewed, interview deemed not necessary[2]

WO #4 Notes reviewed, interview deemed not necessary[3]

Subject Officers

SO Interviewed, and notes received and reviewed

The Scene

The East Mall has two lanes running north and south. The speed limit was 50 km/h. South of Burnhamthorpe Road, on the west side, is a Loblaws plaza and to the east side of The East Mall is a townhouse complex known as 362 The East Mall.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

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

• General Occurrence reports,
• Intergraph Computer Aided Dispatch Event Details Report,
• Notes of WO #1, WO #2, WO #3 and WO #4,
• Parade Sheets- Night and Evening shifts,
• Procedure - Emotionally Disturbed Persons (including Appendix A and B), and
• Procedure - Use of Force (including Appendix A and B).

Just before 11:00 p.m. on July 7, 2016, the Complainant was intoxicated and walking on the roadway of The East Mall – a busy main thoroughfare in Toronto. He was depressed, and had expressed an intent to be hit by a car, and his partner, CW #3, called 911 for police assistance.

The SO and WO #1 responded to the call. Prior to responding, the officers reviewed the Complainant’s police file and were advised that they were to use extreme caution because he had recently expressed an intent to be killed by police. When the officers located the Complainant, he was walking on the sidewalk beside the roadway. The officers identified themselves but the Complainant ignored them and continued walking. Concerned that the Complainant may jump onto the roadway and be harmed or killed by a passing vehicle, the SO intended to apprehend him under the MHA. The SO grabbed the Complainant by the shoulder, but the Complainant pulled away. The SO then grounded the Complainant, who immediately complained of pain in his left wrist.

The Complainant was handcuffed and an ambulance was called. The Complainant was taken to hospital and was diagnosed with a fractured left wrist.

Section 17, Ontario 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. 2000, c. 9, s. 5.

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.

When the SO and WO #1 arrived on scene in the late evening hours of July 7, 2016 to respond to CW #3’s call to 911 for assistance, they had been advised the Complainant was angry, intoxicated and unstable, and was standing in live traffic on a main road, threatening to kill himself. The Complainant does not dispute his suicidal intent at the time. The officers were also advised that the Complainant had an officer safety caution on his Canadian Police Information Centre (CPIC) file, and was identified as someone that police must use extreme caution with because, less than two weeks earlier, he had indicated that he wanted to be shot by the police and would do something in the future to make that happen.

Once arriving on scene, the officers located the Complainant through the assistance of CW #3, who was also present. The officers pulled the cruiser up beside the Complainant, who kept walking, and they got out and approached him from behind. Although it was late in the evening, there was ambient lighting in the area. The officers called to the Complainant by name. They asked him where he was going. They told him that they needed to speak with him. The Complainant and CW #3 dispute that the officers identified themselves, but are contradicted by WO #1’s evidence, and the fact that they were in uniform and driving a marked police vehicle, albeit with subdued markings. I question the reliability of the Complainant’s or CW #3’s recollection on this point given the amount of alcohol they both consumed earlier and their self-reported levels of intoxication, and the delay of over three months before CW #3 gave his statement.

The Complainant looked back once at the officers and kept walking. In order to stop the Complainant and apprehend him under the MHA, the SO put his hands on the Complainant’s shoulder. The Complainant turned towards him and broke the grip. The two men were inches apart at that point, facing each other. The Complainant was agitated. Given the safety concerns that the officers had been told about prior to their arrival, and the need to take control of the Complainant to effect the MHA apprehension, the SO put his hands again on the Complainant’s shoulders, put his left leg behind him, and pushed the Complainant to the ground. The Complainant fell on his buttocks, onto the grass. In the course of that fall, his wrist was broken. The Complainant was then rolled over and handcuffed. He continued to be angry and uncooperative with the police, then the paramedics, and finally with the hospital staff.

I find the Complainant’s version of how he fell to the ground to be unreliable given his level of intoxication and his initial, contradictory statement to his partner. He also did not have any facial injuries that would be consistent with his version of events.

Pursuant to section 25(1) of the Criminal Code, police officers are entitled to use reasonable force in the execution of their duties. With the information that the officers received prior to encountering the Complainant, and the circumstances they were faced with at the time, the SO acted appropriately and his push of the Complainant to the ground was reasonably necessary to effect the MHA apprehension. The jurisprudence makes clear in R. v. Nasogaluak, [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

Accordingly, despite the Complainant’s unfortunate injury, there are no reasonable grounds to proceed with charges in this case.

Date: September 5, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #2 arrived after the apprehension and heard the Complainant complain of pain. He did not attend the hospital. [Back to text]
• 2) [2] WO #3 arrived after the apprehension and heard the Complainant complain of pain. He did not attend the hospital. [Back to text]
• 3) [3] WO #4 was called by WO #1 and told that the Complainant was taken down during a MHA apprehension and as a result had a broken wrist. He attended the hospital but did not discuss the details of the apprehension. [Back to text]