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 resulting from an interaction between a police officer and a 35-year-old man on December 14, 2016 outside of an LCBO store in Scarborough, Ontario.

Notification of the SIU

On December 14, 2016 at 7:30 p.m., the Toronto Police Service (TPS) notified the SIU of the custody injury to a man which occurred on December 14, 2016 at 3 p.m.

TPS reported that officers responded to an LCBO store on Brimley Road regarding the theft of liquor. The police officers arrested a man outside the store. He fought with the police officers and was taken to the ground. The man was taken to hospital where he was diagnosed with a broken nasal bone.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Complainant:

35-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

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. The SIU was able to locate CCTV footage from the LCBO. The account of events as given by the Complainant, the SO and WO # 1 inside the store are consistent with this footage. While the camera did not capture the physical interaction between the Complainant and the SO outside the store, it did capture the Complainant exiting the store into the parking lot. The CCTV footage shows the Complainant attempting to remove his open jacket, off his right shoulder, as he runs into the parking lot followed by the SO.

Materials obtained from Police Service

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

• event details report, and
• notes for WO #1 and WO #2.

On December 14, 2016, the Complainant was in a LCBO store on Brimley Road. He selected two bottles of vodka and concealed them in a bag that he had brought into the store with him. The SO and WO #1, members of the TPS Community Response Unit, were inside the store’s office reviewing the CCTV monitor and observed the Complainant’s actions. As a result, the SO, who was in plainclothes, exited the office and went onto the shop floor in order to get closer to the Complainant. The SO observed that the bag carried by the Complainant was heavily weighted and the sound of bottles “clanging” together inside the bag could be heard.

The Complainant went to the cash with a can of beer in his hand. The Complainant left the beer at the cash and walked swiftly towards the exit door before running into the store parking lot. The SO also ran from the store and yelled to the Complainant, identifying himself as a police officer and directing the Complainant to stop. The Complainant continued to run.

The SO caught up to the Complainant and grabbed his jacket. There was an interaction and the Complainant and the SO fell to the ground. There was a struggle, and the Complainant was arrested and handcuffed.

As the Complainant’s nose was bleeding, an ambulance was called and the Complainant was transported to hospital where he was assessed. The attending doctor could not exclude “a mildly displaced nasal bone fracture.”

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 322(1), Criminal Code - Theft

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

1. to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it,
2. to pledge it or deposit it as security,
3. to part with it under a condition with respect to its return that the person who parts with it may be unable to perform, or
4. to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.

On December 14, 2016, the Complainant was in an LCBO store located on Brimley Road, in the City of Toronto. The Complainant selected two bottles of vodka and concealed them in a bag that he had brought into the store with him. The SO and WO #1, members of the Community Response Unit, were inside the store at the time in an effort to curb an ongoing theft problem from this particular location. The SO was in plainclothes, while WO #1 was in TPS uniform. At the time that the Complainant was concealing the two vodka bottles, he was being observed by the officers on the CCTV monitor in the office. Both officers observed the Complainant to go down the vodka aisle and repeatedly bob his head up and down to see if anyone was watching; although the Complainant’s actions in concealing the bottles was hidden from view, both officers observed the Complainant to go into the aisle with an empty carrier bag and come out with one that appeared to be heavy and full. As a result, the SO exited the office and went onto the shop floor in order to get closer to the Complainant; at that time, the SO observed that the bag carried by the Complainant was now heavily weighted and he could hear the sound of bottles “clanging” together inside the bag.

The Complainant then picked up a bottle of beer and attempted to pay for it, but did not have enough money. He then abandoned the beer and left the store with the carrier bag which still contained the two bottles of vodka. Once the Complainant had left the store, he began running. The SO also ran from the store and yelled to the Complainant, identifying himself as a police officer and directing the Complainant to stop. The Complainant continued to run.

The Complainant alleges that the SO caught up to him, pulled him to the ground and slammed his face on the pavement. The Complainant alleges that this caused him to sustain a broken nose and a cut to his forehead. If this version of events is accurate, there can be no argument that the SO used excessive force to apprehend the Complainant.

The SO, on the contrary, advises that he lawfully apprehended the Complainant on reasonable grounds to believe that he had just stolen merchandise from the LCBO, he attempted to stop the Complainant as he was running away with the stolen property and he caught up to the Complainant and grabbed his jacket. The Complainant then came to a sudden stop causing the SO to collide with him and they both fell to the ground. The SO advises that he never hit or struck the Complainant but that the Complainant was likely injured when they both fell to the ground and that he exercised no more than a reasonable use of force to apprehend the Complainant.

There were three civilian witnesses to the interaction between the Complainant and the SO; none support the version of events as proffered by the Complainant. None of the witnesses observed the SO pull the Complainant up by the collar and slam him back to the ground, nor did they see the SO strike or hit the Complainant in any way.

The Complainant was later transported to hospital where he was assessed; however, the medical records indicated that due to the amount of surgical hardware already present due to “multiple previous facial bone fractures”, there was no more than a “suspicion of a mildly displaced nasal bone fracture.” After further review, an addendum was added to the chart confirming that the Complainant had “a prior comminuted nasal bone fracture” from two years earlier, and “although an acute nasal bone fracture cannot be definitively excluded … appearances may simply represent chronic changes relating to the 2014 trauma.” As such, it appears unclear whether or not the Complainant actually suffered any nasal bone fracture from his encounter with the SO on December 14, 2016, or if the only injury sustained was an abrasion to his forehead and a bloody nose.

On all of the evidence, the allegations by the Complainant are completely contradicted by the three independent civilian witnesses and I am unable to place any credence in the allegations of the Complainant that the SO slammed the Complainant’s head into the pavement causing him to break his nose and causing a cut to his forehead. In addition to the evidence of the three civilian witnesses, the Complainant’s evidence of how he received the injury is contradicted by the LCBO CCTV video where the Complainant is clearly seen to be removing his jacket as he ran and therefore the SO could not possibly have controlled the movement of his head by grabbing him by the jacket collar. Finally, the injury is described by all witnesses who observed it as more akin to “road rash” or a “rug burn” consistent with his rubbing against the pavement, rather than a forehead striking against the pavement. The medical records also describe the forehead injury as abrasions, and not a laceration.

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 observations of the SO and WO #1 that he was stealing property from the LCBO and was arrestable for theft under $5000 and possession of stolen property under $5000 contrary to the Criminal Code. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in his attempt to apprehend the Complainant, I find that his action in grabbing onto the Complainant was more than justified in the circumstances and that he used no more force than necessary to apprehend the Complainant, who was clearly intent on fleeing with the stolen property. I find that the degree of force with which the Complainant’s head struck the ground may have been greater than intended by the SO, as the momentum of the SO’s running, combined with the sudden stop by the Complainant, caused the Complainant and the SO to collide and both fell to the pavement, resulting in the Complainant injuring his face. While it is less than certain that the Complainant’s nose was broken in the fall, even if it were caused by the efforts of the SO to apprehend a fleeing individual, I cannot find that to have been an excessive use of force. The relevant case law with respect to use of force is very clear, officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.) nor should they be judged to a standard of perfection (R. v. Nasogaluak [2010] 1 S.C.R. 206).

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s apprehension and the manner in which it was carried out were lawful notwithstanding the injury which he suffered, even were I to find that his injury was caused by the SO and was not pre-existing, which I am not inclined to do. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: August 15, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit