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 the Complainant, a 19 year-old male, during his arrest for threatening death on April 25, 2016 at approximately 4:50 p.m.

Notification of the SIU

The SIU was notified of the incident by Toronto Police Service (TPS) on April 26, 2016 at 3:10 a.m. TPS reported that the Complainant was arrested at 4:50 p.m. on April 25, 2016. Police officers were initially called to a walkway near the Complainant’s home to assist paramedics because the Complainant was acting in a violent manner and making threats. Officers arrested the Complainant and as they escorted the Complainant to the police cruiser, he threw his legs in the air and was subsequently grounded. The Complainant continued to behave in a violent manner after being brought to his feet and was grounded a second time. He was then placed in an ambulance and taken to hospital. At 2:25 a.m. on April 26, 2016, TPS was notified that the Complainant was diagnosed with nasal bone fractures.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

Complainant

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

CW #7 Interviewed

CW #8 Interviewed

CW #9 Interviewed

CW #10 Interviewed

CW #11 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Not interviewed, but notes received and reviewed[1]

WO #6 Not interviewed, but notes received and reviewed[2]

Subject officer

SO Interviewed, and notes received and reviewed

Materials obtained from Police Service

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

• Communications recordings (COMM) - Summary of Conversation
• EMS collision field notes
• General Occurrences
• Computer Aided Dispatch (ICAD) - Event Detail Reports
• ICAD - Event Details Report
• mug shot of Complainant - Photo 1, 2 and 4 (showing injury)
• mug shot of Complainant - Photo 3
• notes of WO #1, #2, #3, #4, #5 and #6
• Person Hardcopy – the Complainant, and
• Policy 15-01 – Use of Force.

On April 25, 2016, 911 was called for an ambulance due to concern about the Complainant and his apparent self-harming behaviour. Paramedics arrived on scene, and the Complainant refused their assistance and threatened to kill them with a knife if they approached. The assistance of TPS was requested, and the SO, WO #2 and WO #4 responded to the call. The Complainant was located by the SO and WO #4 sitting in a nearby walkway. The Complainant was handcuffed and told that he was under arrest for threatening death to the paramedics. The Complainant had dry blood on his hands but no other visible injuries. The Complainant began to pull away and struggle. As the officers walked with the Complainant down the walkway, he continued to resist and was taken to the ground twice by the SO and WO #4. After the second grounding, the Complainant was escorted to the ambulance to be medically assessed. The Complainant was cleared by the paramedics, and escorted to the cruiser. The Complainant remained resistant and agitated, and attempted to head butt the SO. As a result, the Complainant was grounded a third time by the SO. Once the Complainant was brought to his feet, he hit his head several times on the trunk of the cruiser. At that point, officers noticed an injury to the Complainant’s face and returned him to the ambulance. In the ambulance, the Complainant threatened the SO and his family, spat on the SO and bit his wrist. To force the Complainant to release his bite of the SO’s wrist, WO #2 struck the Complainant in his abdomen. The Complainant was taken to hospital where he was diagnosed with a comminuted slightly impacted fracture of the nasal bones (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 34(1), Criminal Code - Defence — use or threat of force

34 (1) A person is not guilty of an offence if

1. they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
2. the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
3. the act committed is reasonable in the circumstances.

Section 264.1(1), Criminal Code - Uttering threats

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

1. to cause death or bodily harm to any person;
2. to burn, destroy or damage real or personal property; or
3. to kill, poison or injure an animal or bird that is the property of any person.

On April 25, 2016, WO #4, the SO and WO #2 of TPS responded to a call to assist ambulance personnel in the City of Toronto. The call was in response to a request to have police attend as the ambulance personnel required assistance with the Complainant, whom they had gone out to assist, but who had threatened to get a knife and stab them. Officers attended and placed the Complainant under arrest and he was then transported to hospital where he was diagnosed with a comminuted slightly impacted fracture of the nasal bones (a nasal bone fracture). The Complainant alleged that his injury was caused by an excessive use of force by TPS officers, specifically the SO.

In assessing the facts in this matter, we are fortunate that there were no actions by police that were not witnessed by at least one member of the public, be they either paramedics or other civilian witnesses. In total, 11 civilian witnesses cooperated with the SIU and provided statements to investigators. Five police officers were also interviewed. As such, we are able to get a clear picture of what occurred on the afternoon in question. I find that the Complainant is an unreliable narrator, and is contradicted by the other witnesses. As such, his allegations are not confirmed by any evidence – independent or otherwise.

The civilian witnesses were consistent in their observations of the Complainant before the arrival of the police. They indicated that he was threatening, confrontational and aggressive towards the paramedics and others present, as well as noting his attempts at self-harm. Once police arrived, the civilian witnesses consistently described the Complainant as actively resisting and fighting the officers. None of the civilian witnesses observed any officer strike, kick or punch the Complainant.

Both WO #4 and the SO were interviewed by SIU investigators. Their version of events is confirmed at various points by one or more of the civilian witnesses. The SO described each time that the Complainant was taken to the ground on the walkway as ‘controlled’ movements. He reported that on each occasion the Complainant was taken to the ground in the walkway it was as a result of his combative and assaultive behaviour towards police officers and that he was not injured as a result of these groundings. This is confirmed by numerous of the witnesses present. The SO, however, described the grounding at the cruiser as not being a controlled movement, but occurring as a result of the Complainant’s attempt to head butt him and in an attempt to defend himself, stepping back, grabbing the Complainant’s shoulder or arm and pushing him away, redirecting him to the ground. The SO reported he was trying to avoid being struck by the Complainant’s head as a result of which the Complainant’s right cheek hit the ground causing a one inch laceration. This is again confirmed by a number of witnesses present. The SO also reported that he observed the Complainant to deliberately hit his head three or four times against the trunk of the cruiser, which is also corroborated by the statement of WO #4 and WO #2.

On a review of all of the evidence, it is difficult to determine when the Complainant sustained his injury. It is possible that he did so when he was engaged in his self-harming behaviour before police or paramedics were even called; it is possible that he sustained his injury when he was grounded not in a ‘controlled movement’ and hit the ground hard after he tried to head butt the SO; and it is as possible that he sustained his injury when he deliberately struck his head against the trunk of the police cruiser on three occasions. On the basis that the paramedics as well as the SO, WO #4 and WO #2 all only first noticed an injury to the Complainant after he was taken to the ground after trying to head butt the SO, I will proceed on the basis that is when the injury occurred, although I hasten to add that the fact that his cheek was bleeding is not determinative as to when his nose was broken.

In these circumstances, I have to consider the defence of self-defence pursuant to s. 34(1) of the Criminal Code of Canada. On a review of all of the evidence, it is clear that officers were dealing with a very combative, resistant and assaultive male during their interaction with the Complainant. When possible, and as witnessed by numerous civilian witnesses, officers tried to control the Complainant by taking him to the ground with ‘controlled movements’ thereby preventing injury to him while protecting themselves. During the first two groundings of the Complainant, officers were successful in their efforts in this regard. At the point, however, where the Complainant attempted to head butt the SO and he had to react quickly to avoid injury to himself, the SO readily concedes that he was unable to use ‘controlled movements’ to take the Complainant to the ground while simultaneously protecting himself and the Complainant may have been injured as a consequence.

It is clear on all of the evidence that the SO had reasonable grounds to believe that force or a threat of force was being used against him by the Complainant, as independently observed by several civilian witnesses; that he grounded the Complainant for the purpose of defending or protecting himself from that force or threat of force; and, that his actions were reasonable in the circumstances.

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 available that the Complainant had threatened to stab the paramedics (Threaten Death or Bodily Harm is an offence contrary to s. 264.1 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 apprehend the Complainant, and, in the case of the SO, in defending himself from harm, I find that their behaviour was more than justified in the circumstances and that they used no more force than necessary to subdue the Complainant who was clearly out of control, assaultive and combative toward officers. Although I find that it is only a possibility that the Complainant’s injury was caused when he was grounded by the SO, and do not discount the possibility that the injury was caused either before or after that incident by the Complainant’s own actions, if the injury was caused to the Complainant when he was grounded after actively attempting to injure the SO, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by both WO #4 and the SO progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance and assaultive behaviour, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.

In the final analysis, 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. 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 charges in this case and no charges will issue.

Date: August 10, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Officer arrived after arrest and made no / limited observations. [Back to text]
• 2) [2] Officer arrived after arrest and made no / limited observations. [Back to text]