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 an interaction that took place on April 19, 2016 between a 31 year old man and members of the Toronto Police Service (TPS). Following his arrest, the man was diagnosed with a fracture of the thin bone on the nose side of his right eye socket and a sprained ankle.

Notification of the SIU

The SIU was notified of the incident by TPS on April 20, 2016 at 7:45 p.m. The SIU was advised that on April 19, 2016, police officers responded to a 911 call from a woman in regards to a man with a firearm and a knife. As the police officers arrived, the man fled the scene in a U-Haul van. The police officers followed the U-Haul van. The man abandoned the U-Haul van and ran behind a nearby residence. The police officers located the man inside a garage. A struggle ensued between the man and the police officers. He was arrested and transported to hospital where he was diagnosed with an orbital fracture.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Complainant

31-year-old male, interviewed

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

WO #4  Interviewed

Subject Officers

SO #1  Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

SO #2  Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

The Scene

The scene was located inside a single car garage of a residence in Toronto. The garage was occupied with tools, wood working and yard maintenance equipment, as well as a number of boxes and containers of storage items. Entry to the garage was through a normal sized “man-door” at the side of the structure as the main front door was closed and locked.

The SIU obtained photographs of the U-Haul van and its contents from TPS. A firearm, crowbar, two knives, and several stolen identities and items were recovered from the van.

Forensic Evidence

SIU FIS tested SO #1’s Conducted Energy Weapon (CEW). An examination of the CEW indicated that it had been deployed three times for a period of five seconds each time.

The first deployment occurred at 9:21:13 p.m., the second deployment was at 9:21:22 p.m., and the third deployment was at 9:21:32 p.m.

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:

• COMM-Summary of Conversation,
• General Occurrence,
• Intergraph Computer Aided Dispatch Reports,
• List of Involved Officers,
• Notes of Involved Officers,
• Police Firearm Acquired-CFP,
• Supplementary-Complainant re property, and
• Witness Statement-CW #1.

On April 19, 2016, CW #1 called 911 indicating that the Complainant was in possession of a large knife and firearm, and was in a U-Haul van.

At 8:14 p.m., WO #4 received the call to attend the residence identified by CW #1. As WO #4 and his partner arrived at the residence, a U-Haul van drove past WO #4’s police vehicle. The Complainant was the driver of the U-Haul van and appeared distressed. WO #4 turned his police vehicle around and followed the U-Haul van. The van drove past two stop signs without stopping. WO #4 and his partner decided to conduct a traffic stop of the U-Haul van, and provided dispatch with a description of the Complainant. WO #4 was approximately 200 metres behind the U-Haul van when the Complainant jumped out of the moving van and ran towards a fence. The Complainant jumped over a six foot high fence and fled to the rear of the residences located on the street. WO #4 ran after the Complainant but was unable to locate him. WO #4’s partner ran towards the moving U-Haul van and stopped it.

The SOs were on duty when they received the radio call at 8:17 p.m. about the incident. The SOs learned that the Complainant had left the area in a U-Haul van and other officers were in pursuit. At 8:31 p.m., the SOs located the abandoned U-Haul van and drove around to attempt to locate the Complainant, but were unsuccessful. The SOs returned to the area of the U-Haul van, and continued to search by foot for the Complainant with help from WO #2, WO #3 (the canine handler) and his dog.

When the dog stopped in front of a garage of a residence, WO #3 pushed at the garage door and saw a male matching the description of the male they were looking for inside the garage. He relayed this information to the other officers. SO #1 approached the garage door with SO #2 behind him. SO #1 entered the garage, which was dark, and activated the light attached to his rifle whereupon he spotted the Complainant. A struggle ensued between SO #1 and the Complainant. SO #1 fell backwards over a bunch of wood and other items at which point the Complainant was then positioned over SO #1. SO #1 freed his left hand and punched the Complainant in the face. SO #2 entered the garage and pulled the Complainant away from SO #1. SO #2 yelled at the Complainant to show his hands and delivered strikes with his free hand while he struggled with the Complainant on the floor. SO #1 then yelled “Taser”, and deployed his CEW. The probes struck the Complainant in the back causing him to roll to his side. SO #1 yelled for the Complainant to show his hands, but the Complainant rolled back and lay on his stomach with his hands still concealed. SO #1 deployed the CEW a second time and SO #2 immediately grabbed the Complainant’s left arm but could still not see his right arm. Consequently, SO #1 deployed the CEW a third time. SO #2 then managed to grab the Complainant’s right arm and handcuff him behind his back.

Other officers attended and the Complainant was arrested. An ambulance was called as SO #2 was concerned that the Complainant may have been under the influence of illegal substances, and the Complainant complained of a sore ankle. The Complainant was transported to hospital and it was determined that he suffered a right orbital fracture and a sprained ankle.

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.

On April 19^th, 2016, TPS officers responded to a 911 call in regard to a man with a gun involved in an altercation. During the course of the subsequent apprehension and arrest of the Complainant, he sustained injuries which were later diagnosed as a sprained ankle and a fracture of the left medial orbital wall with a mild compression of the medial wall, (in layman’s terms, a fracture of the thin bone on the nose side of the right eye socket). It is alleged that the actions of SO #1 and SO #2, in apprehending the Complainant, constituted an excessive use of force and thereby caused the injuries to the Complainant.

Neither subject officer agreed to be interviewed by SIU investigators, as is their legal right, however, both officers provided their notes for review and the following was gleaned from those notes:

SO #1, in his notes, indicated that he was on duty with SO #2 on April 19^th, 2016, when they received a radio call with respect to a man with a firearm and a large knife. SO #1 drove to the scene whereupon he received follow up information via the radio that the Complainant had left the area in a U-Haul van and division officers were in pursuit. At 8:31 p.m., the SOs arrived near the area and observed the abandoned U-Haul van and continued to drive around to attempt to locate the Complainant, but were unsuccessful. The SOs then returned to the area of the abandoned U-Haul where they met up with WO #3, the canine handler, and his dog as well as WO #2, and they all began to search for the Complainant on foot. SO #1 indicated in his notes that the dog stopped in front of a garage and WO #3 pushed at the garage door and advised SO #1 that he had observed a male matching the description of the male they were looking for, inside the garage. SO #1 approached the garage door with SO #2 behind him. SO #1 entered the garage, which was dark, and activated the light attached to his rifle whereupon he spotted the Complainant. The Complainant remained motionless and stared straight ahead. SO #1 yelled at the Complainant to get on the ground and the Complainant began to push at the garage door to try to close it.

At that point, SO #1, according to his notes, grabbed at the Complainant’s sweater and tried to move him, whereupon the Complainant grabbed SO #1’s left arm and attempted to move the officer sideways. The Complainant pushed SO #1, SO #1 fell backwards over a bunch of wood and other items at which point the Complainant was then positioned over SO #1. SO #1 indicated that he then tried to protect his rifle from discharging by placing it in safe mode and he freed his left hand and punched the Complainant in the face, trying to keep his rifle out of the Complainant’s reach. At that point, SO #2 entered the garage and pulled the Complainant away from SO #1. As SO #1 got to his feet, he secured his rifle and transitioned to his CEW. SO #2 yelled at the Complainant to show his hands and delivered strikes with his free hand while he struggled with the Complainant on the floor. The Complainant had his hands underneath his body in a turtled position on the floor. SO #1 then yelled “Taser” to warn SO #2 that he was going to deploy his CEW, which he then did, the probes striking the Complainant in the back causing him to roll to his side. SO #1 yelled for the Complainant to show his hand, but the Complainant rolled back and lay on his stomach with his hands still concealed under his body. SO #1 deployed the CEW a second time and the Complainant rolled over to his right side. SO #2 grabbed the Complainant’s left arm, and SO #1 yelled at the Complainant to stop struggling. The Complainant continued to struggle with SO #2 and SO #1 was unable to see the Complainant’s right hand, so he deployed the CEW a third time, whereupon SO #1 tripped and fell over clutter inside the garage. SO #2 then managed to grab the Complainant’s right arm and handcuffed him behind his back. A few seconds later, other officers attended. SO #1 felt a pain in his knee and observed that he had sustained a laceration to his left leg.

SO #2, in his notes, also indicated that he and SO #1 received a call at 8:17 p.m. about a man with a firearm and a large knife. The notes of SO #2 corroborate the notes of SO #1 with respect to the initial call and their actions up to the point where they arrived at the garage and WO #3 pushed at the garage door and told them that a male matching the description of the wanted party was inside the garage. SO #2 observed the Complainant hiding behind the garage door and SO #1 yelled at him to get on the floor. SO #2, in the meantime, radioed to other units that the Complainant had been located and their location. SO #2 was of the view that the Complainant was under the influence of some type of illegal substance as he did not speak and continued to stare at them in an unusual manner. SO #2 observed SO #1 grab the Complainant’s arm and try to direct him to the ground by pulling his arms when the Complainant grabbed SO #1’s arm and pushed him, causing him to fall on top of a pile of wood and scraps. SO #2 then observed SO #1 punch the Complainant.

SO #2 described the garage as being crowded with all sorts of material. SO #2, in his notes, then indicated that he yelled at the Complainant to get on the ground and pushed him in that direction causing the Complainant to fall on top of a milk crate of wood scrapes and tuck his arms underneath his body. SO #2 began to pull the Complainant’s arms out but the Complainant was resisting and was growling and would not surrender. SO #2 indicated that he delivered several strikes to the Complainant’s arms and shoulder in order to get the Complainant to comply but he would not show his hands. SO #1 then yelled “Taser” and SO #2 released the Complainant as SO #1 deployed the CEW. SO #2 observed the Complainant to roll to his right side and then back onto his stomach, still obscuring his hands; SO #1 deployed his CEW a second time and SO #2 immediately grabbed the Complainant’s left arm but could still not see his right arm. Consequently, SO #1 deployed the CEW a third time and the Complainant turned to his right side and SO #2 immediately grabbed the Complainant’s right arm and handcuffed him behind his back.

WO #3, in his interview with investigators, advised that he initially saw the Complainant hiding behind the garage door, standing motionless and staring at them, and observed the SOs push the Complainant and yell at him to get on the ground and that the Complainant did not comply whereupon a struggle ensued. WO #3, who remained outside of the garage with his service dog, did not observe what went on inside the garage but corroborated the notes of both officers in that he heard the SOs yell at the Complainant several times to show his hands and heard the CEW deployed twice. WO #3 indicated that the entire incident inside the garage lasted approximately 40 seconds.

Similarly, WO #2 and WO #1 were not in a position to observe the goings on inside the garage, but WO #2 heard officers yelling “show me your hands,” as well as the sounds of a scuffle and believed that officers may be involved in a physical altercation with the Complainant, he also heard the deployment of the CEW, as did WO #1 who also corroborated hearing offices yell, “show me your hands” and, “get down” and later, “Taser, Taser” prior to hearing the CEW being deployed.

Examination of the CEW confirmed it had been deployed three times: at 9:21:13 p.m., then again at 9:21:22 p.m. and finally at 9:21:32 p.m., for a duration of five seconds each time.

It is clear from the evidence that only two officers – SO #1 and SO #2 – were ever inside the garage with the Complainant. Despite the Complainant’s allegations of being kicked in various parts of his body, there were no injury or bruising that would confirm these allegations. The Complainant’s only injuries were a sprained ankle and the orbital fracture. As such, I find that the injuries suffered by the Complainant confirm the version of events as described by the SOs.

Accepting then the sequence of events as described by the SOs, it has to be considered, on those facts, whether or not the officers used excessive force in their interaction with the Complainant. On the information available to the SOs at the time of the confrontation inside the garage, that being that the Complainant was armed with both a firearm and a large knife, it would have been incumbent upon the SOs to subdue the Complainant as quickly as possible and handcuff him, before he had the opportunity to access those weapons and become a danger to the police officers and members of the public. It was impossible for the SOs to have predicted that the Complainant had left his weapons behind when he jumped from the U-Haul van and they could not afford to take that chance.

The SOs found themselves in close confines with the Complainant in what were described as crowded surroundings, when the Complainant pushed SO #1 and caused him to fall over the clutter and put him in a position where the Complainant was over top of SO #1. Despite what can only be described as a fast moving and precarious situation, SO #1 had the wherewithal to protect his rifle from discharging and managed to free his arm and punch the Complainant in the face, in an attempt to subdue the Complainant while securing his rifle and protecting himself. While it is possible that the Complainant was injured at many points during his altercation with police as they tried to apprehend him, it is most likely that this punch was the cause of the Complainant’s orbital fracture. The radiologist was of the opinion that the injury was consistent with a punch to the face.

In light of the close confines, the danger to the officers from a man who had been described as armed with both a firearm and a large knife, and the speed with which things were moving, as well as the man appearing to be under the influence of some type of illegal substance which made his reactions both odd and unpredictable, it was crucial that the Complainant be apprehended as expeditiously as possible. Unfortunately, officers do not always have the luxury of proceeding slowly and cautiously in these precarious situations.

Although I find that the Complainant’s injury was likely caused by SO #1 in attempting to subdue and possibly disarm the Complainant, 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 and combative man. The jurisprudence is 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). 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 thus there are no grounds to believe they committed a criminal offence and no charges will issue.

Date: August 9, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit