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 a 60-year-old man’s serious injuries that occurred on June 24, 2016, during his arrest for assault and assault peace officer.

Notification of the SIU

At 8:40 p.m. on June 24, 2016, the Toronto Police Service (TPS) advised the SIU of the custody injury of the Complainant.

TPS reported that police officers responded to the Toronto Transit Commission subway station at 370 St. Clair Avenue West for two men fighting on a subway train. Two TPS police officers saw one of the men, later identified as the Complainant, walking along St. Clair Avenue West. When the police officers attempted to arrest the Complainant, he assaulted a female police officer and tried to disarm her. A violent struggle ensued in which the Complainant lost consciousness and was subsequently taken to the hospital.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

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

Witness Officers

WO #1 Not interviewed, but notes received and reviewed

WO #2 Not interviewed, but notes received and reviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

WO #8 Interviewed

WO #9 Interviewed

Additionally, the notes from one other non-designated officer were received and reviewed.

Subject Officers

SO Interviewed, and notes received and reviewed.

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.

In Car Camera (ICC) Footage Summary:

The following is summary of the ICC footage taken from WO #9’s cruiser. The times were taken from a time stamp on the video:

5:58:35 p.m.

WO #9 made a U-turn from eastbound to westbound St. Clair Avenue West,

5:58:50 p.m.

WO #9 parked her cruiser partially on the sidewalk and partially on the roadway,

5:59:10 p.m.

The Complainant walked westward past the cruiser on the sidewalk. WO #9 and the SO got out of the cruiser and approached the Complainant. They spoke to the Complainant on the sidewalk while standing about one metre away from him. WO #9 was to his right and the SO was to his left,

5:59:24 p.m.

The Complainant stepped towards WO #9 and struck the left side of her face before turning his attention towards the SO,

5:59:26 p.m.

The Complainant turned back to WO #9 and punched her with his right hand on the left side of her head,

5:59:30 p.m.

Both police officers engaged in a struggle with the Complainant as the Complainant swung his arms attempting to strike the police officers,

5:59:50 p.m.

The SO delivered two hand strikes to the Complainant’s torso,

5:59:53 p.m.

The SO punched the Complainant four times in his head. The Complainant did not seem to be affected,

6:00:02 p.m.

The SO delivered two punches to the back of the Complainant’s head,

6:00:04 p.m.

The SO punched the Complainant 14 times in his face before the Complainant collapsed. Both police officers then stood over top of the Complainant and started the handcuffing process,

6:00:32 p.m.

CW #2 approached and helped to pin the Complainant to the ground. A short while later other police officers arrived on scene,

6:10:18 p.m.

The Complainant was brought to his feet, searched and moved to the rear of WO #9’s cruiser. While being put into the cruiser the Complainant said he was sorry and spoke of his mental illness. He was breathing heavily at this time,

6:14:25 p.m.

Paramedics opened the door to the cruiser and spoke to the Complainant. The Complainant told the paramedics that his jaw was broken and that he blacked out. He also told them he was experiencing hallucinations. He further added that he had not been sleeping well because of construction at his residence, and

6:32:35 p.m.

The Complainant was removed from the cruiser and moved to the ambulance.

Communications Recordings

The communications recordings were consistent with the statements of the witness officers.

Materials obtained from Police Service

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

• COMM-summary of conversation,
• intergraph computer aided dispatch - event details reports,
• notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, and WO #9, and
• procedure - use of force (with Appendix A and B).

Just before 6:00 p.m. on June 24, 2016, the Complainant assaulted another male at the St. Clair West subway station. The other male called 911. The SO and WO #9 were dispatched and located the Complainant walking in the area, along St. Clair West. WO #9 asked the Complainant if he had been involved in an earlier assault, which the Complainant acknowledged he had. The Complainant then, for no apparent reason, punched WO #9 on her face, and again on the head. A struggle ensued between the Complainant and the officers and WO #9 was concerned that the Complainant was reaching for her firearm. The SO intervened and hit the Complainant several times with no effect. The SO then punched the Complainant 14 times until he lost consciousness. CW #2 assisted the officers in handcuffing the Complainant.

Paramedics attended the scene and the Complainant was transported to the hospital where it was determined that he had multiple mandibular (lower jawbone) fractures. WO #9 was also taken to the hospital and suffered swelling, soreness and bruising to her left temple and forehead, soreness to her right temple, and minor scratches to her hand.

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 270(1), Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure.

On June 24^th, 2016, the SO and WO #9 were dispatched to a call at the St. Clair Avenue West subway station at West Hills Avenue in the City of Toronto regarding a 911 call for assistance involving a man who had just been assaulted. Upon arrival, they attempted to speak with the Complainant, who matched the description they had been provided of the assailant, and asked him if he had assaulted someone. The Complainant indicated that he had and then punched WO #9 in the face. Officers then placed the Complainant under arrest for assaulting a peace officer after which he was transported to hospital and it was determined that he had sustained a fractured jaw.

During the course of this investigation, four civilian witnesses in addition to the Complainant were interviewed, as well as the SO and seven witness officers. Additionally, investigators had available to them the ICC video from the police cruiser being operated by the SO and WO #9, as well as the notebook entries of all officers and the communications record. On that basis, and with really very little dispute as to the facts as between the officers and the Complainant, a fairly clear picture of what occurred on June 24^th, 2016 has been established.

The ICC video from the cruiser of the SO and WO #9, interspersed with the radio communications, reveals the following:

5:54:59 p.m.

a call is received by the 911 operator requesting police from someone indicating that a male on the street had muttered something to him and, when he asked him what he said, the male “slapped the shit out of my head”. He described the male as being “pretty violent” and says “I have seriously never seen a dude this violent”,

5:55:53 p.m.

the call goes out and the SO and WO #9 respond and are dispatched,

5:58:53 p.m.

the officers’ cruiser is seen to pull over to the right side of the road and the Complainant is seen to walk by;

Both officers then exit the cruiser and approach the Complainant at 5:59:11 p.m. and there appears to be some discussion. It is clear from the video that the Complainant has quite a height and weight advantage over both officers

The SO is seen to step backwards from the Complainant onto the roadway and then approach again,

5:59:24 p.m.

the Complainant is seen to strike WO #9 in the face,

5:59:26 p.m.

the Complainant punches WO #9 on the side of her head,

5:59:28 p.m.

a radio call comes in from WO #9 wherein she begins to identify herself when her radio goes silent. The dispatcher calls out on three occasions without any response and then WO #9 is again heard yelling into her radio, clearly panicked and out of breath, indicating words to the effect “Can we get some units for back up here?” (words are difficult to make out exactly). Two other units indicate they are responding,

5:59:30 p.m.

both officers are fighting with the Complainant and the Complainant continues to swing his arms at the officers,

5:59:50 p.m.

the SO delivers two hand strikes to the Complainant’s torso without any apparent effect,

5:59:53 p.m.

the SO punches the Complainant four times in the head with no apparent effect,

6:00:02 p.m.

the SO punches the Complainant twice in the back of his head,

6:00:04 p.m.

the SO punches the Complainant in the face 14 times before the Complainant collapses to the ground and they begin to handcuff him,

6:00:32 p.m.

CW #2 approaches and assists by pinning the Complainant to the ground,

6:00:58 p.m.

and then again at 6:01:37 p.m. the dispatcher reaches out to WO #9 for an update but is met with radio silence,

6:01:55 p.m.

WO #9 is heard again out of breath and frantically making a request for units, the dispatcher asks if she needs an ambulance and if she is hurt. An ambulance is dispatched.

The SO agreed to provide a statement to investigators, and indicated that when they spotted the Complainant, WO #9 made a u-turn and pulled up ahead of the Complainant and they both got out of the cruiser and approached the Complainant. The Complainant stopped and spoke with them and in response to WO #9’s question as to whether he had assaulted anyone, he indicated that he had but that he did not like police. The SO indicated that he then observed the Complainant to have a yellow stick in his hand behind his back and when the Complainant stepped towards him, the SO took a couple of steps backward to create some distance. The SO indicated that he looked down at his own feet as he stepped backward, to see where he was stepping, and when he looked back at the Complainant, he saw him punch WO #9 in the head and her sunglasses flew off. The SO advised that he then considered his options, but due to the speed at which things were moving, he felt his only choice was to grab the Complainant and he did so, trying to bring his left arm behind his back. The SO recalled that he then punched the Complainant in the back two to four times with his fist, as hard as he could, in an attempt to distract the Complainant so that he could bring his arm behind his back, but the punches had no effect. The SO indicated that he used all of his strength to hold onto the Complainant, but he still broke free and continued to assault WO #9. At that time, the SO’s view of WO #9 was obstructed, but he heard her try to use her police radio by pressing her emergency button.

The SO advised that when further attempts to subdue the Complainant failed, he began to panic. He further indicated that the Complainant punched him in the face, which stunned him, and that he then observed that the Complainant’s hands were on the right side of WO #9’s body in the location of her firearm and that WO #9’s hands were also by her firearm. The SO heard WO #9 yell to him repeatedly, “get your gun!” and the SO became concerned that serious bodily harm or death might result if the Complainant was able to get hold of WO #9’s firearm. The SO rejected the idea of using his own firearm due to the risk that WO #9 could be shot in the process since they were all in close proximity of each other.

The SO continued to try to bring the Complainant to the ground, by kicking his leg, but the Complainant would not let go of WO #9. At that point, in order to prevent the Complainant from getting WO #9’s firearm, the SO punched the Complainant in his face about eight or ten times, as a result of which the Complainant lost consciousness and fell to the ground and both officers went to handcuff him with his hands behind his back. The SO’s hands were shaking so much from the adrenaline rush, however, that he could not get the cuffs on the Complainant before he came to and started resisting. A civilian, CW #2, then came and assisted and the Complainant was handcuffed.

The statement of WO #9 is consistent with that of the SO, with a few additions. WO #9 indicated that at one point, during the struggle with the Complainant, he was able to grab the cruiser key which was hanging from her pocket and placed it between the fingers of his right hand protruding from his knuckles. At that point, WO #9 advised, her fear for the safety of herself and the SO escalated, and she focused on getting the key back, when the Complainant then reached for, and grabbed, WO #9’s gun which was holstered on her right hip. WO #9 immediately placed both of her hands over the Complainant’s on her firearm but when she heard a click, she believed that the Complainant may have opened one of the two locking mechanisms on her firearm. At that time, WO #9 feared the Complainant was going to succeed in getting her firearm and began to scream at the SO to get his gun. She advised that she had to rely on every ounce of her energy to keep her gun holstered while trying to twist away from the Complainant.

WO #9 indicated that she saw the SO striking the Complainant on the right side of the face while she continued to focus her physical efforts on keeping the Complainant from getting her gun. At some point, WO #9 advised, the Complainant became dazed and WO #9 was able to break his grip on her firearm. WO #9 indicated that never before during her career as a police officer, had she felt that defenceless. WO #9 indicated that she and the SO then succeeded in bringing the Complainant to the ground and a civilian came over and assisted them by controlling the Complainant’s feet. WO #9 indicated that she was grateful for the assistance of CW #2 and she was then able to use her police radio. WO #9 indicated that as a result of the physical altercation with the Complainant, she sustained swelling, soreness and bruising to her left temple and forehead, soreness to her right temple and minor scratches to her hand.

On a review of all of the evidence, it appears that there is little dispute as to the facts. The ICC video is fully consistent with the version of events as set out by the SO, with the exception that a punch to the SO is not seen, but with the struggle between the two officers and the Complainant in close confines, it is difficult to determine with exactitude all of the details of what occurred. It is, however, clear that the Complainant is a very large man and also apparently quite strong, as viewed on the video and attested to by a civilian witness; it is also clear that the Complainant struck and punched WO #9 on at least two occasions, prior to any physical interaction between police and the Complainant.

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 apprehension, it is clear from his own statement, as confirmed by the officers and the ICC video, that although officers were only originally investigating the Complainant for the earlier assault, once he struck WO #9 in the face, he was arrestable for the offence of assault police officer in the execution of his duty contrary to s. 270 of the Criminal Code. As such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, one has to consider what the officers were dealing with at the time of the infliction of the injury, in order to determine if the amount of force used was justified or not. WO #9 indicated that she was unsure as to how many times she was struck by the Complainant, but that it left her rattled while the SO indicated that when the Complainant punched him in the face, it stunned him. Additionally, both officers, at various points in their statements, indicated that they had to use all of their strength to attempt to gain control of the Complainant, and, on all of the evidence, they were losing that fight until the SO punched the Complainant repeatedly in the face. I find that this evidence is confirmed by the civilian witnesses. In his own statement, the SO conceded that he panicked when his many efforts to restrain the Complainant, including the distractionary strikes to his back and the back of his head, had no apparent effect. He became even more concerned for the safety of himself and WO #9 when he saw that the Complainant was on the right side of WO #9’s body near her firearm and feared that serious bodily harm or death could occur if the Complainant succeeded in his efforts to get a hold of WO #9’s firearm. As such, I am satisfied that the Complainant was loudly and actively resisting his arrest by police and, in his apparently altered state of mind, was attempting to get WO #9’s firearm and would not relinquish his hold right up until the SO delivered the many punches to his face, at which point the Complainant lost consciousness and fell to the ground. Even then, as soon as he came to, he again began to struggle and it took the assistance of CW #2, who held the Complainant down, before police were finally able to fully gain control and to handcuff the Complainant. This conclusion also finds support in the fact that the Complainant is heard on the ICC video to apologize to the officers, while breathing heavily, and discussing his mental illness.

Although I find that the Complainant’s injury was caused by the SO punching the Complainant in the face numerous times, I find that pursuant to section 25(1) of the Criminal Code, the officer used no more force than was reasonably necessary in the execution of his lawful duties in apprehending an extremely powerful man who was acting violently and extremely irrationally. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada 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. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

I find, on the record before me, that the degree of force and the number of punches to the Complainant’s face were, unfortunately, required in order to gain control of the Complainant and to release his hold on WO #9’s firearm. I agree with the SO’s assessment that serious bodily harm or death would have resulted had the Complainant succeeded in his efforts to gain control of the firearm.

Before concluding, however, I believe that it is worthy of note that the SO considered all options in dealing with the Complainant and rejected the use of his baton, due to the speed with which things were moving, and, more importantly, rejected a lethal use of force. Despite the repeated and panicked screams by WO #9 for the SO to “Get your gun”, the SO resisted that impulse in consideration of the deadly outcome if he resorted to his firearm in a case where all three parties were in such close proximity. Although from a distance it may have appeared to civilian bystanders that the SO was using excessive force when he repeatedly punched the Complainant in the face, it is clear and I find that he only struck the Complainant up until the point in time when he lost consciousness and relinquished his hold on the firearm and that he did not continue after the danger had passed, as confirmed by several of the civilian witnesses. All in all, I find that unlike the unfortunate outcomes of many police interactions with persons suffering from mental health issues, the SO considered all of his options, kept a level head and thereby possibly prevented a loss of life. It is unfortunate that the Complainant suffered the serious injury that he did, but on the whole, the outcome could have been far worse if not for the quick thinking and actions of the SO.

As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: September 5, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit