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SIU Director’s Report - Case # 18-TCI-027

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 33-year-old male on February 1, 2018.

The Investigation

Notification of the SIU

On Friday, February 2, 2018, at 7:30 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury.

The TPS reported that on February 1, 2018, at 8:33 p.m., police officers arrested the Complainant for dealing drugs in the downtown area.

A struggle ensued and the Complainant was taken to the ground face first. He was transported to the Mount Sinai Hospital (MSH), where he was diagnosed with an orbital bone fracture. The Complainant was given pain medication and was currently in police custody.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Interviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Incident Narrative

On February 1, 2018, an undercover police officer, WO #7, purchased drugs from the Complainant in an alcove at 484 Yonge Street in Toronto. After the transaction, WO #7 gave a signal to nearby officers indicating that the Complainant was to be arrested for drug trafficking.

SO #1 approached the alcove from the north and SO #2 approached from the south. SO #1 arrived at the Complainant first and was out of SO #2’s sight for about one second before SO #2 arrived. SO #1 held the Complainant’s shoulders as the Complainant tried to escape. SO #2 announced “Toronto police, you’re under arrest,” and grabbed the Complainant. WO #2 also arrived and grabbed the Complainant. The Complainant and the three officers fell to the ground where the Complainant continued to resist arrest. WO #3 arrived and was able to apply a handcuff to the Complainant’s right wrist after SO #2 delivered a single knee strike to the Complainant’s back.

After the arrest, the Complainant was taken to a hospital where he was diagnosed with a fractured orbital bone. It is alleged that the Complainant sustained this injury when he was punched in the face by one of the officers.

Evidence

Video/Audio/Photographic Evidence

Summary of the In-Car-Camera System (ICCS) Video

The police vehicle of WO #4 and WO #5 was parked in the curb lane in front of 484 Yonge Street. The Complainant sat sideways in the rear seat, with the left side of his head towards the camera. WO #4 opened the rear passenger door and told the Complainant that he was under arrest and read him his rights. WO #4 got in the driver’s seat and told the Complainant they were going to go to the hospital. WO #4 and WO #5 left the scene heading to the hospital with the Complainant. They arrived at the MSH.

The Complainant, WO #4 and WO #5 exited the hospital. The Complainant was assisted into the rear seat. His head was wrapped in a bandage, which covered his right eye. WO #4 and WO #5 left the hospital and travelled to the police station with the Complainant. They arrived and the Complainant was assisted out of the police vehicle and led into the booking hall.


Summary of the Booking Video

WO #4 or WO #5 was heard reading a notice to the Complainant regarding the police facility being audio and video recorded. WO #4 paraded the Complainant before WO #6 with the standard questions and answers concerning the charges and the Complainant’s physical condition and mental state. No issues. The Complainant was directed to the cell area.

Communications Recordings

WO #3 called the TPS communications and said plainclothes DS and uniformed police officers would be doing a “buy and arrest.”

A 911 hang up was received. The communicator called back and a woman answered. The woman said she heard someone screaming and saw “maybe a guy being beaten up”, but then realized the police were at the scene [now known to be the DS officer].

The dispatcher spoke to WO #4 and WO #5 and they said everything was in order; they were transporting the Complainant from the scene to the hospital.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Booking Video;
  • Communication Recordings;
  • Drug Squad Duty Roster;
  • Event Details Reports;
  • General Occurrence Report;
  • In Car Camera System Footage;
  • Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, and WO #7;
  • Procedure on Arrest and Use of Force;
  • TPS Operational Plan re Drug Squad; and
  • • Training Record for SO #1 and SO #2.

Relevant Legislation

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.

Section 495(1), Criminal Code - Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Analysis and Director's Decision

On February 1, 2018, the Complainant sustained a fracture to his orbital bone when he was arrested for selling drugs to an undercover officer on Yonge Street in Toronto. It is alleged that this injury was sustained when a police officer, suddenly and without reason, punched the Complainant in the face. The involved officers, to the contrary, state that the Complainant resisted arrest and likely sustained his injury when he struggled against the officers or fell to the ground. None of the officers interviewed by the SIU saw the Complainant be punched or admitted to using force that may have caused the injury. For the reasons that follow, I am unable to form grounds to believe that either subject officer committed a criminal offence in relation to the allegation.

The SIU’s investigation into this incident consisted, in part, of an interview with the Complainant, one civilian witness (a physician who reviewed the Complainant’s medical records), and six witness officers. A civilian who called 911 was also contacted but her evidence was determined to be of little value. SO #1 and SO #2 were designated as subject officers and SO #2 consented to providing a statement to the SIU. After a careful review of this evidence, the circumstances surrounding the arrest are predominately clear.

On February 1, 2018, the TPS Drug Squad (DS) was working along Yonge Street on a project which involved deploying an undercover officer, WO #7, to attempt to make drug purchases while other DS officers conducted surveillance. At around 8:09 p.m., WO #7 approached the Complainant near Yonge Street and Grosvenor Street, and observed him showing something in his hands to an unknown female. WO #7 made eye contact and spoke with the Complainant, who offered to sell her “meth.” They walked into an alcove at 484 Yonge Street to complete the transaction and, at around 8:10 p.m., WO #7 gave a signal to the team indicating that the Complainant was to be arrested for drug trafficking. WO #7 walked away with an unknown man (also believed to be a drug trafficker) while multiple DS officers approached the alcove to arrest the Complainant.

It is alleged that the Complainant sustained a fractured orbital bone when an officer suddenly punched him in the face; however, no officer recalled the Complainant being punched during his arrest. SO #2 told the SIU that he approached the alcove from the south after seeing WO #7’s signal. SO #1, the subject officer who was not interviewed, approached the alcove from the north. On the south side of the alcove there was a stanchion that protruded slightly out into the sidewalk. SO #1 reached the alcove just before SO #2 did and was out of SO #2’s sight for about one second. When SO #2 walked around the stanchion he saw SO #1 holding the Complainant’s upper shoulders and the Complainant trying to escape by bending over and rushing out of the alcove. SO #2 took physical control of the Complainant while simultaneously announcing, “Toronto police, you’re under arrest.” WO #2 was the next officer to reach the alcove. He also identified himself, told the Complainant that he was under arrest and grabbed the Complainant’s upper torso. The Complainant had turned his body so his head, which was still down, was pointed towards the inside of the alcove. WO #2 used the Complainant’s forward momentum to bring him to the ground, and WO #2, SO #1, SO #2 and the Complainant all fell towards the alcove.

The arresting officers told the SIU that the Complainant continued to resist while face down on the ground by tucking his arms underneath his torso and flailing his legs. WO #2 was unable to gain control of the Complainant’s hands so he rolled out of the alcove to make room for WO #3. SO #2 delivered a single knee strike to the Complainant’s upper torso and the Complainant released his right arm, which SO #2 brought to his back. WO #3 applied a handcuff to the Complainant’s right wrist and then grabbed his left arm (which he had pulled underneath himself), put it behind his back and secured the handcuffs. None of the arresting officers saw any other officer deliver strikes to the Complainant, although SO #2 admitted to delivering the knee strike.

In these circumstances, the only relevant 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. Pursuant to s. 25(1) of the Criminal Code, police officers are permitted to use reasonable force in the execution of their lawful duties. The force used by the officers during the Complainant’s arrest must accordingly be assessed against that standard.

I will begin by considering the lawfulness of the arrest. It is not contentious that the Complainant was selling crystal methamphetamine on Yonge Street when he was arrested. In my opinion, the arresting officers were lawfully entitled to arrest the Complainant for trafficking pursuant to s. 495(a) of the Criminal Code which allows police officers to arrest someone without a warrant where the officers have reasonable grounds to believe the person has committed an indictable offence. The officers had reasonable grounds to believe the Complainant had committed an indictable offence after WO #7 gave a signal indicating that he had sold her drugs.

I will now move on to the reasonableness of the force used, starting with the alleged punch to the face. If the Complainant was gratuitously punched in the face as alleged then the level of force used was clearly not reasonably necessary and an assault has been made out. However, for two reasons, I have insufficient evidence to form reasonable grounds to believe this occurred. First, no identifying characteristics about the officer who punched the Complainant were provided to the SIU, besides a generic statement that he was heavy set and had a beard. SO #1, SO #2 and WO #2, the three TPS officers who are believed to have encountered the Complainant before he was grounded, all fit this description. I believe there is insufficient evidence to establish that any particular officer punched the Complainant. Second, if this matter were to go to trial then a conviction would rest on the Complainant’s statement and I am not satisfied that he would be found to be a credible witness. The Complainant’s statement was relatively brief and lacking in detail. Although there is no independent witness confirming this, I am inclined to believe the officers and accept that the Complainant was resisting arrest because this would be the only rational explanation for why it took four officers and approximately one minute to handcuff the Complainant. I am accordingly unwilling to place much weight in the Complainant’s statement without corroboration. In conjunction with the identification issues, my doubts about the Complainant’s credibility prevent me from forming reasonable grounds to believe either subject officer committed a criminal offence in relation to the allegation. Instead, I believe that the Complainant’s injury was likely sustained during his struggle with the officers in the alcove or when he and the officers fell to the ground.

Turning to the remainder of the incident, it is clear that considerable force was used against the Complainant throughout his arrest. The Complainant was initially grabbed by three officers before WO #2 intentionally used the Complainant’s momentum to take him to the ground. Once on the ground, SO #2 delivered a knee strike to the Complainant and his arms were physically maneuvered behind his back so he could be handcuffed. I find that this level of force was within the scope of that permitted by law because the Complainant was actively resisting arrest. The Complainant demonstrated considerable effort to escape and WO #2 was justified in taking him to the ground where it would be easier to control him. Similarly, SO #2 was concerned that the Complainant may be dangerous based off his prior experience with low level drug dealers. A single knee strike was proportionate in these circumstances, was consistent with the TPS policy on use of force and resulted in the officers gaining control of one of the Complainant’s arms so he could be arrested.

In summary, I am unable to form reasonable grounds to believe either subject officer, or any other involved officer, committed a criminal offence in connection with the Complainant’s injury. There is simply insufficient evidence to establish which subject officer is alleged to have punched the Complainant or to establish that the punch in fact occurred. The file will be accordingly closed and no charges will issue.



Date: November 28, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit