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 sustained by a 34-year-old man during his arrest on January 11, 2017.

Notification of the SIU

On January 12, 2017, at 8:20 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury.

TPS reported that on Wednesday, January 11, 2017, at 8:52 p.m., TPS police officers from the Guns and Gangs Task Force (GGTF) executed a Controlled Drugs and Substances Act (CDSA) search warrant at a residence in Toronto. Subject Officer (SO) #1 arrested the Complainant.

The Complainant complained of a sore shoulder and jaw, and was taken to the hospital. No serious injuries were found to be associated with the Complainant’s shoulder and jaw, but he was diagnosed with nasal bone fractures. The Complainant was returned to the TPS division and later attended court for a bail hearing. There was no scene and the involved police officers were off duty at the time the incident was reported to the SIU.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian witnesses

CW Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

Subject officers

SO #1 Interviewed, and notes received and reviewed

SO #2 Interviewed, and notes received and reviewed

SO #3 Interviewed, and notes received and reviewed

The scene

The arrest occurred on the concrete sidewalk at the west side of the residence, just north of the main entrance to the building.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. The SIU received closed circuit television (CCTV) recordings from the Toronto Community Housing Corporation (TCHC) for the building.

The TCHC CCTV data accurately depicted the interaction between the Complainant and SO #1, SO #2 and SO #3, as described by them. It also revealed SO #1’s “kick” at the Complainant with his right foot.

Materials obtained from Police Service

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

• TPS Booking-hall and cell videos
• Communications recordings
• Event Details Reports (two)
• In-Car Camera (ICC) video recordings for five cruisers
• Injury Report
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5 and WO #6
• Procedure - Use of Force (with Appendix A and B)
• Crown prosecution brief
• Summary of Communications Conversation, and
• Training Records – SO #1, SO #2 and SO #3

During the evening hours of January 11, 2017, the TPS GGTF were conducting surveillance on the Complainant’s residence on the suspicion that he was engaged in drug trafficking. While surveilling the residence, officers observed several “hand to hand” drug transactions involving the Complainant. The nature of the transactions was confirmed after the third transaction, when the purchaser was arrested and a quantity of narcotics was found in his possession. A search warrant was obtained for the Complainant’s residence, and it was decided that the Complainant would be arrested for trafficking in narcotics if he left his residence, prior to executing the search warrant.

Later that evening, the Complainant left his residence, and SO #1, SO #2 and SO #3 all approached. SO #1 identified himself as a police officer to the Complainant and ordered him to get on the ground.

SO #1 grabbed the Complainant’s left arm, while SO #3 grabbed the Complainant in a bear hug from behind. The Complainant pulled away from SO #1 and spun around, striking SO #1’s head. SO #3 moved the Complainant and himself against the wall, and then down to the ground.

The Complainant resisted the officers’ efforts to handcuff him, kept his hands under his body, and repeatedly yelled to his spouse that the police were present. SO #1 delivered a knee strike to the Complainant’s rib area. SO #2 delivered a distractionary strike to the side of the Complainant’s face. SO #3 also delivered a distractionary strike to the right back side of the Complainant’s head. Both of the Complainant’s hands then went to his waist area, and SO #3 delivered a second distractionary strike to the right side of the Complainant’s face. A handcuff was placed on the Complainant’s right arm, and SO #3 delivered two distractionary kicks to the Complainant’s upper right thigh. The Complainant was then handcuffed.

The Complainant was transported to the division, and then to the hospital. X-rays confirmed that he had sustained bilateral nasal bone 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.

On January 11^th, 2017, the GGTF of the TPS held a briefing with respect to the activities of the Complainant. The Complainant was known to police as a suspected drug dealer with access to firearms. At the time of the briefing, the Complainant also had related outstanding charges and was on court ordered conditions to remain in his residence at all times except in the presence of his spouse. Additionally, the Complainant was on lifetime prohibition orders not to possess any firearms. All of this information was shared with the members of the GGTF who were present at the briefing. The objective of the team briefing was to obtain surveillance information on the Complainant sufficient to obtain a search warrant for his residence and hopefully locate evidence sufficient to arrest the Complainant.

According to the joint experience of the members of the GGTF present, that being SO #1, SO #2 and SO #3 and others, it had become common practice in the last three years for those trafficking in narcotics to carry firearms and that those being arrested in possession of firearms were going to fight with police. The team had also had a recent experience wherein a man had his hands on his firearm while being arrested. This knowledge, according to the GGTF, dictated the actions of the team when affecting the arrest of any suspected drug dealers.

On January 11^th, 2017, the GGTF set up surveillance on the residence of the Complainant, which was a TCHC townhouse, and over the course of the day the team observed a total of four “hand to hand” transactions which, in their experience, signified that a drug transaction had occurred. A “hand to hand” transaction is one in which the purchaser, with a quantity of money in his hand, hands it off to the seller, who has a quantity of drugs in the palm of his hand, which he exchanges for the cash. The transaction is usually carried out in such a way that persons observing from a distance cannot see what is being passed from “hand to hand” but the transaction itself has become synonymous with a drug transaction and the basis to form reasonable grounds to believe that the selling party is dealing in narcotics. Following the third such transaction, once the purchaser was out of the Complainant’s sight, the purchaser was arrested and a quantity of narcotics was found in his possession, thereby further strengthening the evidence that the Complainant was trafficking in narcotics.

Prior to 9:32 p.m., information was received by the team that the search warrant had been granted and a plan was formulated to arrest the Complainant for trafficking in narcotics if he left his residence, following which the search warrant would be executed. At 9:32 p.m., the Complainant was seen to leave his residence carrying two garbage bags to the garbage bins. While the Complainant was observed to be walking towards the garbage bins, police officers observed a fifth “hand to hand” transaction with one of the previous purchasers. As the Complainant walked back towards his residence, SO #1 called for the arrest of the Complainant to take place. Both SO #1 and SO #2 were wearing their ballistic vests with the word “POLICE” emblazoned across the front. SO #1 exited his vehicle with his firearm drawn and held out in front of him with both hands and approached the Complainant whose face was illuminated in the beam of the flashlight mounted on SO #1’s pistol. This evidence was confirmed by the CCTV footage from the TCHC surveillance video.

When SO #1 was within approximately arm’s reach of the Complainant, SO #2 exited his vehicle and began to run towards the Complainant, who was approximately eight to ten metres away, and SO #3 approached from the opposite side. SO #3 made the decision not to have anything in his hands as he approached the Complainant in order to be able to take the Complainant to the ground without the encumbrance of having to re-holster his firearm. SO #1 was heard to shout at the Complainant twice identifying himself as police and to get on the ground.

According to SO #1, his intent at that point was to take the Complainant to the ground as quickly as possible and he grabbed the Complainant’s left arm while keeping his firearm back from the Complainant. SO #3 then grabbed the Complainant in a bear hug from behind when he observed the Complainant to quickly pull away from SO #1 and spin counter-clockwise. SO #1 advised that something, possibly the Complainant’s left hand, then struck SO #1 above his left eye and knocked his toque off his head; SO #2 advised that from his vantage point, some four to five metres away, he observed the Complainant to spin around and strike SO #1 in the face and SO #1 moved in a backward motion and his toque fell off his head. SO #3’s momentum moved the Complainant and himself forward against the wall of the building and then down to the ground, with the Complainant landing on his stomach and SO #3 landing beside or on top of him. The TCHC video confirmed SO #1 semi-standing with his handgun out and what may possibly be his toque lying nearby on the ground; SO #2 was seen in the frame standing by the roadway while SO #3 is depicted as being over top of the Complainant.

While over top of the Complainant, SO #3 repeatedly yelled at the Complainant, “Police, give me your arms” and “You’re under arrest”, while trying to get the Complainant’s right hand behind his back for handcuffing. The Complainant started yelling, “[his spouse’s name] the police are coming”, which he continued throughout the arrest and after he was handcuffed. This yelling heightened the urgency of the team to arrest the Complainant as quickly as possible and execute the search warrant before whatever evidence was inside the residence could be destroyed.

While SO #3 was trying to hold the Complainant down and take control of his right arm, SO #2 arrived and assisted him. SO #1 holstered his firearm and grabbed the Complainant’s left arm and struggled to pull it from underneath his body in order to prevent him accessing his waist area. All three officers, armed with the information about the Complainant’s antecedents, were concerned that the Complainant might try to access a firearm if he was able to get his hands in the area of his waist. In order to prevent that happening, SO #1 delivered a knee strike to the Complainant’s rib area and, simultaneously, SO #2 delivered a distractionary strike to the side of the Complainant’s face, which, he advised, was the only area available to him at that point. SO #2 advised that he struck the Complainant with his left fist, even though he is right hand dominant, as a result of which there would have been less force behind the strike than had he used his dominant hand. SO #3 advised that he also delivered a distractionary strike to the right back side of the Complainant’s head in an attempt to get the Complainant to comply and allow his right arm to be brought behind his back. SO #3 advised that both of the Complainant’s hands then went to his waist area, as he supported his body on its right side, and SO #1 and SO #3 alerted each other that the Complainant was going to his waist area where he might possible have a firearm concealed. SO #3 advised that if the Complainant was able to access a firearm, it would jeopardize not only the safety of the police officers, but of any persons in the area watching the arrest. Consequently, SO #3 delivered a second distractionary strike which he believed landed in the area of the right side of the Complainant’s face. At that point, a handcuff was placed on the Complainant’s right arm but the Complainant was able to overpower the three officers and brought his right arm forward and above his head and then used that arm to push his body upward and he continued to resist and struggle. SO #3 advised that he then got up and stood by the Complainant’s feet, where he delivered two distractionary kicks to the Complainant’s upper right thigh, shortly after which the Complainant was successfully handcuffed.

Not surprisingly, in what can only be described as a very fast moving situation in a small area, although each officer conceded to executing one or more distractionary strikes, each indicated that they neither saw, nor were they aware, of any distractionary strikes delivered other than their own. In all, SO #1 delivered one distractionary knee strike to the Complainant’s rib area; SO #2 delivered one distractionary closed fist strike to the side of the Complainant’s face and SO #3 delivered one distractionary strike that landed on the back of the Complainant’s head, and a second that was intended for the back of his head but landed on the right side of his face, and two distractionary kicks to the upper right thigh.

After the handcuffs were applied, no further distractionary strikes were executed and SO #3 remained with the Complainant, while SO #1 and SO #2 went to execute the search warrant. SO #3 advised that the Complainant continued to struggle and yell out his spouse’s name, which caused SO #3 concerns for the safety of the officers who were attending the residence to execute the warrant. SO #3 advised that he was exhausted, and the Complainant had still not been searched, so he decided to take control of the Complainant’s head and positioned himself with his back to the wall where he could see down the Complainant’s entire body while still being able to observe his surroundings; SO #3 advised that this was pursuant to his training at the Ontario Police College that if a person’s head is controlled, their body is controlled. Two uniformed officers then took control of the Complainant and transported him to the station, while SO #3 went to assist with the search of the residence.

The Complainant was later taken to hospital where an x-ray confirmed that he had bilateral nasal bone fractures; while the x-ray of the Complainant’s shoulder appeared normal, according to the CW who assessed the Complainant, and he had a good range of movement, there was some ambiguity as to whether he may have suffered a chip off the acromion (the outward end of the shoulder blade that extends over the shoulder joint).

The Complainant, in his statement to investigators, advised that he was struck on the right side of his head and nose and dropped to the ground, where he felt several further punches to his head and back area with either a police baton, fists or knees.

After his arrest, when uniform officers performed a pat down search on the Complainant before he was placed in a police cruiser, a quantity of drugs was located in the Complainant’s clothing while, later at the police station when a strip search was performed, officers located a plastic film containing what was believed to be crack cocaine in the area of the Complainant’s buttocks.

The credibility of the Complainant was greatly undermined not only by his assertion that he did not sell cocaine, when cocaine was found on one of the persons immediately following the observation of a “hand to hand” transaction with the Complainant, as well as on his person, in his home and in the area of his buttocks during the strip search, but also by his version of events of his arrest which was totally inconsistent with the CCTV footage. At no time were there more than four plainclothes officers present during the arrest of the Complainant, despite his estimation of the number of officers beating him being about ten, nor does it seem plausible that he was unaware that these men were police officers when the video clearly depicts SO #1 approaching him wearing his police vest with his firearm drawn and, while SO #1 is still some five to ten feet [1.52 to 3.05 metres] away, the Complainant is seen to look directly at him. Additionally, his statement regarding the timing of being struck is contradicted by the video in that SO #1 is seen approaching the Complainant, again with firearm drawn and wearing a clearly identifiable police vest, prior to SO #3 ever taking the Complainant to the ground. On this basis, I am unable to accept the version of events as outlined by the Complainant.

Having said that, however, there is still the question whether or not police officers used excessive force in arresting the Complainant based on their own version of events and the CCTV footage which revealed that at one point SO #1 appears to have swung his leg in the direction of the Complainant, although it is unclear from the video as to whether or not SO #1’s foot ever made contact with the Complainant’s body.

Having reviewed the CCTV footage many times, frame by frame, and in slow motion, I am unable to say with any confidence that SO #1 kicked at the Complainant. While the officers are moving very quickly towards, and then with, the Complainant and there does appear to be a point where SO #1’s leg is first bent at the knee and then his foot is off the ground, even on a frame by frame basis, it does not appear to me that SO #1 kicks the Complainant but rather that he is continuing to move forward as the Complainant goes to the ground. I further find that SO #1’s body does not appear to indicate that he is kicking out at someone, as his body remains loose and moving, and he does not appear to tense up as one would expect if he was delivering a kick to the Complainant.

With respect to the remaining actions of SO #1, SO #2 and SO #3, the CCTV footage confirms their version of events; everything is moving very quickly, the Complainant is clearly struggling against the officers and at no time do there appear to be any gratuitous strikes towards the Complainant as the officers are struggling to handcuff him.

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 made during the surveillance of his residence that police officers had reasonable grounds to believe that the Complainant was trafficking in narcotics and would have been arrestable under the CDSA. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, we are fortunate to have a recording of the entire incident upon which, after a thorough review, I find that the actions of the three police officers in attempting to quickly arrest and handcuff the Complainant, who was actively struggling and resisting his arrest, was justified in the circumstances and that they used no more force than necessary to subdue the Complainant. In light of all the information in the possession of police at the time that they arrested the Complainant, including his antecedents and their experience that persons dealing in the sale of illegal narcotics are generally known to possess firearms, the officers perhaps did not have the luxury of dealing with the Complainant in a more delicate fashion, as both the safety of the officers and the preservation of the evidence that the search warrant eventually yielded, were at risk. While the injury to the Complainant’s nose, and the possible injury to his shoulder, if there was one, were likely caused by the police officers in taking the Complainant to the ground and possibly when SO #2 and/or SO #3 delivered a distractionary strike to the Complainant’s face, I cannot find that their actions amounted to an excessive use of force. On this record, it is clear that the force used by SO #1, SO #2 and SO #3 was directly related to the amount of struggling and resistance put up by the Complainant and progressed in a measured and proportionate fashion to meet and overcome that resistance; as soon as the Complainant was handcuffed, there were no further blows by any of the officers and, in fact, the officers almost immediately ran off to perform their duties in the execution of the search warrant, which appears to have been their primary objective. It is clear from the comment made during the arrest between SO #1 and SO #3, to the effect that the Complainant was going for his waist area, that the location of the Complainant’s hands heightened the officers’ concern that the Complainant may be reaching for a weapon; that was not a risk that the officers could afford to take and their response was proportionate to the actions of the Complainant and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.

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, [2010] 1 S.C.R. 206, as follows:

In all, the physical interaction from first contact to the point where the Complainant was handcuffed took 56 seconds, according to the CCTV footage, and the Complainant is resisting throughout; after the Complainant is handcuffed, only SO #3 is hands on with the Complainant and he continues to struggle while SO #3 is seen to hold his head down to the ground until the uniform officers arrive seconds later and place the Complainant in their cruiser.

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 or injuries which he 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.

Date: November 17, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit