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.

On, February 7, 2016, the complainant in this case was examined at hospital by a doctor. Serious injuries were confirmed.

Notification of the SIU

On February 7, 2016, at 7:30 a.m., the Toronto Police Service (TPS) notified the SIU of the serious injury suffered by the complainant during his arrest in Toronto several hours earlier.

The notifying officer reported that just before 6:00 p.m. on February 6, 2016, TPS police officers responded to a residence for a report of two males fighting in the basement. Both males were identified, and it was learned that the complainant had an outstanding warrant. When police officers arrived, the complainant refused to exit the residence so a Feeney warrant[1] was obtained. Shortly after 1:00 a.m. on February 7, 2016, TPS Emergency Task Force (ETF) police officers entered the residence to arrest the complainant. The complainant was armed with two knives. A Conducted Energy Weapon (CEW) was used to facilitate the arrest. After the complainant was arrested, he was transported to Toronto East General Hospital (TEGH) where he was diagnosed with a broken left ankle.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Complainant

Interviewed and medical records reviewed

Civilian witness

CW Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

WO #8 Interviewed

WO #9 Interviewed

WO #10 Interviewed

WO #11 Interviewed

WO #12 Interviewed

WO #13 Interviewed

WO #14 Interviewed

WO #15 Interviewed

WO #16 Interviewed

WO #17 Interviewed

WO #18 Interviewed

Subject officers

SO #1 Interviewed, but declined to submit notes, as is subject officer’s legal right

SO #2 Interviewed, but declined to submit notes, as is subject officer’s legal right

During a briefing from TPS on February 7, 2016, the SIU was made aware that both subject officers had reported in their notes that they had stepped on the complainant’s legs and/or calves. It was not known which police officer stepped on which leg.

The scene

The house where the complainant lives is a bungalow style house that has been divided into individual rooms to serve as a rooming house. The basement is accessed through a door in the backyard. In the basement there are four bedrooms and a communal kitchen.

Materials obtained from TPS

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

• COMM summary of conversation
• communications audio request
• ETF duty roster
• general occurrence
• ICAD event details reports
• WO notes
• notes for two additional officers, and
• 41 Division parade sheets

The complainant lives in the basement of a rooming house in Toronto. At about 5:00 p.m. on February 6, 2016, the complainant entered his roommate’s bedroom and began a verbal argument. The complainant left the bedroom, and the roommate locked his door. A short time later, the complainant kicked the locked door open, and struck the roommate with a table leg, and then again with a 20 lb dumbbell. The complainant left the room and the roommate called police. At about 7:00 p.m., patrol police officers arrived and found the roommate bleeding heavily from his head. The roommate identified the complainant as the person responsible for his injuries. The roommate was transported by ambulance to hospital.

The attending patrol officers knocked on the complainant’s door and identified themselves, but he had locked himself in his room and refused to answer. It was decided the best course of action was to obtain a Feeney warrant for the complainant’s arrest and have ETF police officers extract him.

A Feeney warrant was obtained and shortly after midnight on February 7, 2016, ETF officers arrived at the residence and relieved patrol officers at the door to the complainant’s room. Six ETF officers entered the home: WO #7, WO #8, WO #9, WO #10, SO #1 and SO #2. WO #7 knocked on the complainant’s door, announced that he was with the ETF and asked the complainant to come to the door with nothing in his hands. These requests were repeated over a five to ten minute period with no response from the complainant. After several attempts to get the complainant to exit his room voluntarily, a decision was made to breach the door using a ram. WO #10 did so.

Upon breaching the door, the room was in darkness, and cluttered with unknown objects. The complainant was not immediately visible to officers, so a mobile reconnaissance robot capable of seeing in complete darkness was deployed. It located the complainant hiding underneath a couch which had been pushed against the wall of the bedroom. WO #7 again told the complainant to come out but he did not respond. ETF police officers entered the room and lifted the couch. Underneath was the complainant holding a knife to his neck. The complainant was directed to drop the knife, but he did not. WO #8 and WO #9 deployed their CEWs at the complainant, striking the complainant in the right shoulder and mid-section. The complainant began to groan.

WO #8 and WO #9 then used their tactical shields and body weight to pin the complainant to the ground. The complainant continued to struggle, so WO #9 deployed another round of electricity from his CEW. WO #8 kicked at the knife in the complainant’s hand, and WO #7 delivered a number of foot strikes to the complainant’s left arm and chest, in an effort to disarm the complainant. At that point, ETF police officers were able to disarm the complainant of his knife. Once the knife was removed, the complainant rolled onto his stomach with his hands underneath him. WO #9 used his shield and body weight again to apply pressure to the complainant until he was handcuffed. The complainant continued to struggle as he was brought to his feet, searched and taken from the basement.

The complainant was removed from the residence by the ETF police officers and brought to a waiting ambulance. Other than some blood on his face, no injuries or difficulty walking were noted by any of the attending officers. The complainant was transported to TEGH. Upon arrival, the complainant complained that his left ankle was sore. It was visibly swollen, and X-rays were taken. The complainant was diagnosed with a fractured left 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 a review of all of the evidence, I find that at the time officers responded to the residence in response to an assault call, they had information that the complainant had already used various objects as weapons and that he had assaulted and caused bodily harm to his roommate. The complainant locked himself in his room and police reacted appropriately by obtaining a judicially approved Feeney warrant to gain entrance to the locked room and apprehend the complainant. The policy to deploy members of the ETF in situations involving barricaded person was adhered to. I accept that the complainant refused to acknowledge the presence of police or comply with their demands to come out or to drop the knife that he had in his possession and that when police entered the room and located the complainant, that he was hiding under the couch and still had the knife in his possession. It is certain that the CEW was deployed twice while police were attempting to disarm the complainant and place him under arrest and that officers were quite physical with the complainant in attempting to do so.

The physical nature of the interaction was confirmed by WOs. WO #9 laid his shield on the complainant’s waist and leg area and applied pressure by laying his body onto the shield on top of the complainant. WO #7 delivered a number of foot strikes to the complainant’s left arm and chest in order to get him to release the knife. WO #8 also used his shield to try to pin the complainant and got part of his shield on top of the complainant’s chest but the complainant continued to struggle and refused to give up the knife, so he kicked at the knife and may have inadvertently made contact with the complainant’s face. As such, it is clear that six ETF officers were all actively engaged in attempting to disarm and arrest the complainant while he was in possession of a knife and failing to comply with police commands. I take into account that these six officers and the complainant were all present in what was described as a fairly small cluttered room and that events were moving fairly quickly.

Although I find that the complainant’s injury was caused by TPS officers, on these particular facts it is impossible to determine with any certainty when and how it was sustained. All officers appear to have been involved in attempting to subdue the complainant simultaneously while he continued to struggle and resist. The broken ankle, I find, is as consistent with one of the two subject officers standing on the complainant’s leg as it is with WO #9 laying his shield, with significant force, onto the complainant’s waist and leg area and applying pressure by laying his body onto the shield on top of the complainant.

In these circumstances, I have to consider the provisions as set out under s. 25(1) of the Criminal Code. On the facts as outlined above, I find that the officers, in their attempts to disarm and arrest a non-compliant and armed complainant, acted on reasonable grounds, were justified in their actions and used no more force than was necessary for that purpose. In finding as such, I am aware that police actions should not be judged against a standard of perfection, that they cannot be expected to measure the force used with exactitude and that regard must be had to the circumstances as they existed at the time the force was used. [See R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.) and (R. v. Nasogaluk [2010] 1 S.C.R. 6.) On these facts, the circumstances were that police were involved in a particularly fast moving and dangerous situation in fairly close quarters. 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: June 19, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] A type of warrant authorizing entry into a private dwelling-house to effect an arrest. [Back to text]