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SIU Director’s Report - Case # 18-TCI-005

Contents:

News Releases for this Case:

French:

Mandate of the SIU

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.

Information restrictions

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.

Mandate engaged

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 a serious injury sustained by a 49-year-old male when he was arrested on December 21, 2017.

The Investigation

Notification of the SIU

The SIU was notified of the incident by the Complainant on January 3, 2018 at 2:00 p.m. The Complainant reported that he was arrested on December 21, 2017, at Markham Road and Eglinton Avenue by Toronto Police Service (TPS) 41 Division police officers. The Complainant advised that he sustained fractured ribs and a black eye during his arrest. The Complainant reported that he did not know of the name of the involved TPS police officers but could identify them. At the time of this complaint, the Complainant was incarcerated at the Toronto East Detention Centre.

On January 3, 2018, at 2:10 p.m., the TPS was notified by the SIU about the Complainant’s complaint.

The Team

Number of SIU Investigators assigned: 5

Complainant:

49-year-old male, medical records obtained and reviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed


Incident Narrative

On December 21, 2017, the SO noticed the Complainant in a plaza on Eglinton Avenue East in Toronto. The SO was aware that the Complainant was the subject of multiple arrest warrants and asked the Complainant to identify himself. The Complainant provided the SO with a fake name and, when the SO pressed him further, fled from the SO on foot. The SO pursued the Complainant until the Complainant tripped and the SO and the Complainant became involved in a physical struggle. The Complainant actively resisted arrest and allegedly tried to head butt the SO, who used an open palm to deliver three to four strikes to the Complainant’s forehead. The Complainant was then handcuffed.

As a result of the altercation, the Complainant sustained a large gash to his forehead that required four staples to close. He was also reportedly diagnosed with a fractured nasal bone.

Evidence

The Scene

There was no scene to be examined or photographed.

Communications Recordings

The communications corroborated most of the statements of the involved police officers and the TPS supporting documentation.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Notes for the SO, WO #1 and WO #2; 
  • Procedure on Use of Force and Appendices;
  • TPS Reports on the Complainant (4 documents);
  • Training Record for the SO; and
  • Radio communications.


Canadian Police Information Centre:

The Complainant is currently before the courts for outstanding charges pertaining to his warrants and arrest on December 21, 2017, relating to a recognizance for failing to attend court and failing to comply with probation, among other offences. [1] In December 2017 he failed to attend court in relation to the recognizance and a warrant was issued for his arrest on that date.

CPIC also revealed cautions placed upon the Complainant. The cautions relate to violence, escape risk and family violence.

Relevant Legislation

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
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) 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 267, Criminal Code -- Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant, 
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Analysis and Director's Decision

This decision relates to the custody injury sustained by the Complainant during his arrest by the SO on December 21, 2017. The Complainant was wanted on multiple warrants and fled from the SO. After a chase, the SO tackled the Complainant to the ground where he continued to resist arrest. The SO admits to striking the Complainant multiple times in the forehead with an open palm to gain his compliance. The Complainant sustained a large gash on his forehead and was allegedly diagnosed with a fractured nasal bone. For the reasons that follow, I have no reasonable grounds to believe that the SO committed a criminal offence in connection to the Complainant’s injuries.

The SIU’s investigation included interviews with the Complainant, the SO and two witness officers, as well as a review of the police radio communications. From this evidence, the circumstances leading up to and following the arrest are clear. On December 21, 2017, the SO was informed that there were multiple warrants for the Complainant’s arrest. The SO knew the Complainant because he had arrested him on a previous occasion and, that evening, noticed him in a plaza on Eglinton Avenue East. The SO pulled his marked police vehicle alongside the Complainant, asked him to identify himself and the Complainant gave the SO a fake name. The SO told the Complainant that he knew who he was and to come with him. The Complainant tried to escape, fleeing on foot toward an alley behind the plaza. The SO exited his police vehicle and chased the Complainant, notifying dispatch that he was engaged in a foot pursuit.

At this point, the SO’s account and the allegation diverge. It is alleged that the Complainant tripped and was handcuffed by the SO. The SO then reportedly assaulted the Complainant, who was not resisting, by punching him in the back of the head and in the face, causing his head to bounce off the ground. It is further alleged that the SO punched the Complainant in the ribs and kneed him in the kidney area. The SO, to the contrary, told the SIU that the Complainant was resistant and that he used force to gain his compliance to effect the arrest. After the Complainant jumped up onto a large rock, the SO tackled the Complainant, causing him to land hard onto the ground. The Complainant tucked his arms under his body and thrashed around. The SO told the Complainant that he was under arrest but the Complainant continued to struggle to get away and attempted to head butt the SO. The SO managed to gain control of the Complainant’s left arm but the Complainant pulled his hand away. The SO admits to striking the Complainant’s forehead three or four times using the palm of his right hand in order to distract him. The strikes worked and the Complainant was handcuffed.

Multiple other officers arrived to assist and, on all accounts, the Complainant was belligerent and uncooperative during the remainder of his arrest. He had a large cut on his forehead and was spitting blood from his mouth as he spoke. The Complainant repeatedly accused the SO of beating him. Paramedics attended the scene but the Complainant refused treatment. The Complainant was then brought to a police station where he again complained of being beaten. Eventually, the Complainant was taken to Scarborough Centenary Hospital where four staples were used to close a deep gash on his forehead. The involved officers were unaware that he was also diagnosed with a fractured nose.

The only criminal offence that could apply to this incident is one of assault causing bodily harm contrary to s. 267(b) of the Criminal Code. Assault causing bodily harm is made out where a person intentionally applies force to another person, without the consent of that person, and that force causes bodily harm. However, s. 25(1) of the Criminal Code permits police officers to use force that is reasonably necessary in the execution of their lawful duties. Because the SO was clearly acting within the execution of his lawful duties when he arrested the Complainant, who was the subject of multiple warrants, the only remaining issue is whether the SO’s use of force was reasonably necessary in the circumstances. In assessing reasonable force, the Courts have stated that police officers are not held to the standard of perfection in the execution of their duties (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are they expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.).

On the SO’s evidence, the use of force was clearly reasonably necessary to subdue an actively resisting suspect. The SO initially was the only officer on scene while trying to gain control over the Complainant, who was making significant attempts to avoid arrest by fleeing on foot, tucking his hands under his body, kicking and thrashing, and attempting to head butt the officer. Resorting to three or four strikes with an open palm to the Complainant’s forehead, in these circumstances, was reasonable, necessary and in accordance with the TPS policy on use of force. According to the allegation, to the contrary, the use of force was clearly unreasonable and unnecessary. The allegation describes significant blows to the Complainant’s head and face, punches to his rib and knees to his back – all occurring when the Complainant was not resisting and already handcuffed. Such strikes would serve no legitimate purpose and constitute an assault.

If this matter were to proceed to trial, a conviction would rest on the credibility and reliability of the witnesses. I am reluctant to rely on the Complainant without corroboration because the Complainant made several remarks to the SIU that are contrary to independent evidence. For example, in the Complainant’s initial correspondence to the SIU he alleged that he sustained two fractured ribs during his arrest which allegation was not substantiated by the medical evidence. He then later changed his account and stated his ribs were merely bruised. [2] This inaccuracy is material and concerning, and in addition to his other inaccurate accounts of other injuries that he indicated he has suffered in the past, it is my belief that the Complainant’s recollection of what caused his present injuries is not reliable enough to give me reasonable grounds to believe an offence has been committed and certainly could not support a conviction. He admitted his memory was not very good and he could not recall a lot of the details surrounding this incident. Further, my assessment to the effect that I do not have reasonable grounds to believe that an offence has occurred is in no way undermined by the SO’s account of the incident. The SO candidly admitted to tackling and striking the Complainant during the arrest. His version of events appears credible and reasonably explains the Complainant’s injuries.

In closing, although the allegation makes out an assault, I do not believe the Complainant is a credible or reliable witness or that his testimony could support a criminal conviction. More importantly for my purposes, in light of the lack of reliability of the Complainant’s account or his memory, I cannot form reasonable grounds to believe that the SO committed a criminal offence in relation to the allegation and no charges will issue.


Date: November 14, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) The recognizance was entered into in November, 2017. [Back to text]
  • 2) The Complainant also made allegations of being seriously injured by police on other occasions in 2017 and having short-term memory loss and numerous nasal fractures suffered in fights he had been involved in the past. He also recounted being in a medically-induced coma for six months in 2004 relating to a construction accident. The SIU checked the Complainant’s hospital and medical records relating to those periods and his alleged injuries and discovered that none of his alleged injuries were substantiated by any of his medical records. [Back to text]