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 suffered by a 19-year-old male during his arrest for robbery on June 21, 2016 at approximately 4:44 p.m.

Notification of the SIU

The SIU was notified of the incident by Toronto Police Service (TPS) on June 22, 2016 at 2:25 a.m. TPS notified the SIU that on June 21, 2016, TPS police officers attempted to arrest the Complainant for robbery. The Complainant fled on foot and was chased and tackled in the area of Albion Road and Finch Avenue West in Toronto. He was taken to 23 Division and at 7:45 p.m., complained of a sore cheek. The Complainant was taken to the hospital for X-rays and examination. Due to the extreme backlog at the hospital, a confirmation of serious injury was delayed. Consequently, TPS reported the serious injury suffered by the Complainant to the SIU the following day.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Not interviewed[1]

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

Subject Officers

SO #1 Interviewed, and notes received and reviewed

SO #2 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.

Summary of Communications Recordings

WO #2 informed the Major Crime Unit (MCU) members that the suspect was bringing his little cousin with him to sell the laptop, at 4:00 p.m. The police officers spoke regarding getting into position. SO #1 was on the phone with the suspect and they were going to meet in the area of Albion Road and Finch Avenue West. WO #2 and SO #1 were leaving in ten minutes. The seller said he would text them when he arrived.

The suspect was walking alone westbound on Kendleton Drive talking on the phone. The suspect wanted to change location, but the police officers refused. SO #2 told WO #2 and SO #1 about two men walking towards them.

The men approached SO #1, conversed and shook hands. SO #1 gave a “T-D, T-D” [Takedown] signal. One man was running eastbound. Shortly thereafter, both men were under arrest. Community Response Unit police vehicles attended for transportation.

Materials obtained from Police Service

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

• Booking Hall DVD Log;
• COMM Summary of conversation;
• General Occurrence Report;
• General Occurrence;
• Intergraph Computer Aided Dispatches (ICAD);
• ICAD-Event Details Report;
• Injured on Duty Report;
• List of involved police officers;
• Notes of WO #1 and #2;
• Prisoner Record;
• Procedure -Use of Force and Equipment;
• Procedure -Use of Force-Appendix A;
• Procedure -Use of Force-Appendix B;
• Telewarrant to Search; and
• Use of Force Training Records - SO # 1 and #2.

In June 2016, TPS received several reports from persons who attempted to buy products through Kijiji but who were instead robbed of money when they met the purported sellers.

On June 21, 2016, TPS officers visited Kijiji and initiated the purchase of a computer from the individuals suspected of committing the robberies. A meeting was set up in the area of Albion Road and Finch Avenue West in Toronto.

Just after 4:30 p.m. that day, SO #1 met with the Complainant and CW #2. SO #1 was in plainclothes.

SO #1 was asked if he was there to buy the computer and if the envelope he was holding contained the cash payment. When the SO #1 asked to see the computer, the complainant pushed SO #1 and unsuccessfully tried to grab the envelope.

SO #1 gave a take-down signal. WO #2 exited her vehicle, withdrew her firearm, and arrested CW #2 without incident.

The Complainant ran southbound on Kendleton Drive.

SO #1 ran after the complainant. SO #2 exited his vehicle and joined the foot pursuit.

Both SOs said they were police officers and called for the Complainant to stop; he ignored their commands and continued running. The SOs managed to get closer to the Complainant at which point they grabbed him by his shirt and wrapped him in a “bear hug”, causing all three to fall. The Complainant’s body and face made contact with the sidewalk.

The Complainant was arrested and transported to hospital, where he was diagnosed with several facial fractures.

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 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.

SO #1 was attached to the Major Crime Unit of the TPS in June 2016 and was involved in an investigation into robberies that originated with Kijiji ads for the sale of MacBook Computers. At the time of this incident, four such robberies had already occurred wherein potential buyers responded to an ad for the sale of a laptop for cash and when they met up with the supposed sellers of the item with cash in hand, they were robbed of their funds at knife or gunpoint and no computer was ever produced.

On June 21, 2016, SO #1, SO #2 and WO #2 were involved in an undercover operation wherein SO #1 posed as a potential buyer of an Apple MacBook computer through the Kijiji website. As a result of an arrangement to purchase a computer from the Complainant and CW #2, a meet was set up in the area of Albion Road and Finch Avenue West in the City of Toronto.

At 4:41 p.m., the Complainant and CW #2 were observed walking eastbound on Kendleton Drive towards the location of SO #1 and WO #2. They then approached SO #1 whereupon CW #2 asked the officer if he was there to buy the MacBook and SO #1 responded that he was and the three shook hands. CW #2 asked if the envelope in SO #1’s possession was the cash and again SO #1 indicated that it was. After the preliminaries were completed, the Complainant asked to see the money and then pushed SO #1 in the chest area and made a grab for the envelope. SO #1 then gave the “take down signal”. The Complainant then ran off with SO #1 chasing him close behind and yelling, numerous times, “Police. Don’t move!” The Complainant did not stop and continued running when SO #1 caught up to him on the sidewalk, reached out and grabbed the Complainant by his shirt in order to pull him down. The Complainant is significantly larger than SO #1 and he continued to run despite the officer’s efforts to take him to the ground. At that point, SO #1 was joined by SO #2 who also grabbed the Complainant by the shirt in order to try to bring the Complainant to the ground.

SO #1 then wrapped his arms around the Complainant’s shoulders and arms in what can be described as a “bear hug” and put his weight onto the Complainant. Both SO #1 and SO #2 then went to the ground with the Complainant and the Complainant’s entire body and face made contact with the sidewalk. SO #1 landed on the Complainant’s left side and scraped the knuckles on his right hand as well as his elbow and knees. SO #2 sustained scrapes to his right elbow, the back of his right hand and his right knee. The Complainant continued to thrash about on the ground trying to get the officers off of him and refused to give up his left arm for handcuffing, despite SO #1 repeatedly shouting “Police! Stop resisting.” Eventually officers were able to handcuff the Complainant.

In total, the foot pursuit covered approximately 65 to 75 metres.

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 the evidence of all of the officers involved in the undercover operation that they had more than sufficient grounds for believing that the Complainant and CW #2 were the robbers that they were seeking and who had perpetrated a number of previous armed robberies against Kijiji customers and had already acted in furtherance of another robbery against SO #1. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

Although I find that the Complainant’s injury was caused by the TPS officers going to the ground with him and the Complainant landing on his face on the pavement, I find that pursuant to section 25(1) of the Criminal Code, the officers involved used no more force than was reasonably necessary in the execution of their lawful duties in apprehending a possibly armed robber who was actively fleeing from police during a foot pursuit after having observed him to commit an offence against an undercover police officer. I find that the degree of force with which the Complainant’s face struck the ground was sufficient to have caused his injury and that the “bear hug” type maneuver used by the officer was the only option available to him at the time that did not involve some type of lethal force, such as the use of a firearm, or less lethal force, such as a Conducted Energy Weapon. In all of the circumstances, the option resorted to by SO #1 was more than reasonable in the circumstances. 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, [2006] 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]

There was a second version of events that I was led to consider: that the Complainant and CW #2 were simply innocent bystanders walking to the plaza when they were chased and assaulted by police. This, despite the fact that both showed up at the agreed upon meeting place at the agreed upon time and CW #2 specifically asked if SO #1 was there to purchase the MacBook computer while the Complainant specifically asked to see the money and then assaulted SO #1 in what appeared to be an effort to rob him of that money.

On a review of all of the evidence, only the physical evidence is able to support this secondary version of events. The injury is as consistent with the secondary version of events as it is with the first. However, there are no independent witnesses to support the secondary version of events, and the one witness who may have been in a position to do so, declined to speak with investigators.

In conclusion, I find on the record before me that the evidence falls far short of the standard of reasonable grounds to believe that officers committed the offence of assault bodily harm as described in his statement. On the basis, however, that officers did cause the injury to the Complainant’s jaw by reason of SO #1 taking the Complainant to the ground, I am satisfied on reasonable grounds that these actions fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: August 23, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Declined the SIU’s request for an interview and refused to cooperate with the SIU. [Back to text]