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SIU Director’s Report - Case # 18-TCI-058

Contents:

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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 28-year-old male when he was arrested on February 24, 2018.

The Investigation

Notification of the SIU

On February 24, 2018, at 10:53 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury. The TPS reported that on February 23, 2018 [1], TPS officers arrested the Complainant for a domestic assault and breaching his bail conditions. The Complainant was transported to the police station and a Level 3 search was conducted on him. During the search, a struggle ensued between the police officers and the Complainant, resulting in the Complainant sustaining an injury to his nose.

The Complainant was subsequently transported to St. Michael’s Hospital (SMH) and diagnosed with a fracture to his nose.

The Team

Number of SIU Investigators assigned: 3

Complainant:

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

Civilian Witnesses

CW Not interviewed

The CW was not interviewed because she did not witness the incident.

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 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.


Incident Narrative

On February 24, 2018, at around 4:25 a.m., the TPS entered an apartment and arrested the Complainant in relation to a domestic dispute. The Complainant was placed into the rear seat of a police cruiser and transported to the police station where he became belligerent and uncooperative.

WO #1 authorized a Level 3 search (also known as a strip search) because of the Complainant’s violent behaviour and his potential drug use. SO #1 and SO #2 led the Complainant to a private room to perform the search. The Complainant was physically resistant and, when a handcuff was removed, he pulled away aggressively from the officers causing his face to strike against the wall. He was immediately grounded and then searched.
The Complainant was eventually transported to SMH where he was diagnosed with a fractured nose.

Evidence

Video/Audio/Photographic Evidence

In-Car Camera System Recordings

The SIU received and reviewed the ICCS recordings from SO #1 and SO #2’s police vehicle. The recording depicted the following:
  • At 4:39:15 a.m.: The Complainant was placed into the rear passenger seat of SO #1 and SO #2’s police vehicle. His hands were cuffed behind his back.
  • At 4:40:18 a.m.: SO #2 asked the Complainant if he was okay. The Complainant did not respond. 
  • At 4:57:15 a.m.: The police vehicle arrived at the police station.
  • At 5:00:00 a.m.: The Complainant told SO #1 and SO #2 that they required a warrant to enter the apartment. One of the police officers told the Complainant that they would discuss this once they were inside the police station.
  • At 5:04:46 a.m.: The Complainant asked SO #1 and SO #2 why he was arrested. As one of the police officers tried to explain why the Complainant was arrested, he said, “Go fuck yourself.”
  • At 5:05:10 a.m.: The Complainant initially refused to get out of the police vehicle but then decided to get out. 

Booking Hall Area Closed Circuit Television (CCTV) Recordings

The SIU received and reviewed the CCTV recordings from the booking hall area of the police station. The recordings depicted the following:

  • At 5:13:34 a.m.: SO #1 and SO #2 escorted the Complainant inside the booking hall area. WO #1 was inside the booking hall area. SO #1 and SO #2 told the Complainant that the booking hall area was audio and video recorded. The Complainant appeared to be intoxicated. 
  • At 5:14:13 a.m.: SO #2 told WO #1 that the Complainant was arrested for domestic assault and was being uncooperative. SO #2 told WO #1 that the Complainant had a strong odour of alcohol emitting from his breath.
  • At 5:15:12 a.m.: WO #1 asked the Complainant if he understood that he was under arrest. The Complainant said that he did not understand the question because he had been drinking.
  • At 5:16:43 a.m.: SO #1 and SO #2 told the Complainant to relax. The Complainant yelled at them.
  • At 5:19:17 a.m.: The Complainant told WO #1 that his handcuffs were cuffed tightly. WO #1 looked at the Complainant’s handcuffs.
  • At 5:20:25 a.m.: SO #2 told WO #1 that the Complainant had minor scratches on his face. The Complainant told WO #1 that SO #1 and SO #2 had scratched his face. As WO #1 asked the Complainant the standard prisoner booking questions, The Complainant became very impatient and began to resist. He became belligerent towards WO #1. 
  • At 5:24:27 a.m.: WO #1 asked SO #1 and SO #2 if they had a request for a Level 3 search. SO #2 told WO #1 he was requesting a Level 3 search based on the Complainant’s history of being combative, assaultive and consuming drugs.
  • At 5:25:05 a.m.: SO #2 told WO #1 that he had located an empty edible wrapper on the Complainant. 
  • At 5:25:21 a.m.: WO #1 told SO #1, SO #2 and the Complainant that a Level 3 search on the Complainant was authorized due to the Complainant’s history of violence and use of drugs. The Complainant continued to yell. 
  • At 5:25:50 a.m.: The Complainant was escorted out of the booking hall area.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Arrest Details;
  • CCTV footage from booking hall;
  • Event Details Report [2];
  • General Occurrence Report (Redacted);
  • ICCS footage from three scout cars; and
  • • Notes of both SOs and all WOs.

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 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 24, 2018, the Complainant was arrested by the Toronto Police Service (TPS) after a domestic dispute. He was transported to a police station and during the booking process was belligerent towards TPS officers and refused to cooperate. WO #1 authorized a Level 3 search and the Complainant was brought to an interview room by SO #1 and SO #2. Witness officers heard the subject officers yelling, “Stop resisting!” from the interview room and, when they attended the room, saw the Complainant on the ground with a bloody nose. There was blood on the wall and the Complainant was later diagnosed with a fractured nose. Neither SO #1 and SO #2 agreed to an interview with the SIU although both submitted their duty notes. Their duty notes stated that when one of the Complainant’s handcuffs was removed in the interview room he immediately and aggressively pulled away from the officers and struck his face on the wall. For the reasons that follow, there is insufficient evidence to form reasonable grounds to believe either SO #1 or SO #2 caused the Complainant’s injury or otherwise committed a criminal offence in relation to the allegation.

The SIU’s investigation into this incident consisted, in part, of interviews with the Complainant and three witness officers. The subject officers’ duty notes, as well as ICCS and CCTV footage, were also obtained and reviewed. From a review of this evidence, I have been able to deduce that the Complainant first came into contact with the police after TPS officers were dispatched to a residence in Toronto in relation to a domestic dispute. Officers were advised that a male and female were physically fighting and that the Complainant had a history of violence. At 4:14 a.m., WO #2 and an undesignated police officer arrived at the scene, knocked on the apartment door and received no response. SO #1 and SO #2 arrived at the apartment at approximately 4:25 a.m. and the superintendent of the building provided a key which was used to unlock the door to the apartment. The officers entered the apartment and SO #2 yelled, “Toronto Police, come to the door!” The Complainant’s girlfriend was located in the living room, distressed, and had facial injuries. The officers found the Complainant, who had scratches on his face, hiding in a closet in the bedroom and he was pulled onto the bed where he was handcuffed. The Complainant was placed into the rear seat of a police cruiser and transported to the police station.

All officers described the Complainant as belligerent or uncooperative, a fact that is also reflected on the ICCS footage and the CCTV footage from the booking hall area. The ICCS footage from the police cruiser captured SO #2 asking the Complainant if he was okay but the Complainant did not respond. After the police arrived at the police station, the Complainant asked SO #1 and SO #2 why he was arrested. The police officers tried to explain the reason for the arrest and the Complainant said, “Go fuck yourself.” The CCTV footage from the booking hall area shows that, as WO #1 asked the Complainant the standard booking questions, the Complainant became very impatient and belligerent towards WO #1. He said did not understand the question because he had been drinking. SO #1 and SO #2 told him to relax but he yelled at them. The Complainant also accused SO #1 and SO #2 of scratching his face. [3]

WO #1 told the SIU that he has had prior dealings with the Complainant and knows him as a violent person. He was also aware that, during a previous interaction with police, the Complainant was transported to a hospital where he had to be medicated and restrained. At that time, the Complainant managed to flip over a stretcher while strapped to the hospital bed. WO #1 decided to authorize a Level 3 search of the Complainant because of his prior history, his current violent behaviour and because an empty drug wrapper had been located on him.

SO #1 and SO #2 led the Complainant to an interview room to conduct the search. WO #3, who was sitting at a desk near the interview room, witnessed the officers escorting the Complainant to the room. The Complainant was yelling and being physically resistant.

The Complainant had limited recollection of the incident and was unable to provide details of how he was injured.

Both subject officers wrote in their incident notes that the Complainant continued to resist as he was led to the interview room. He was told to remain calm but, when SO #2 removed the handcuff from the Complainant’s right hand, he pulled away aggressively and struck his face against the wall. SO #1 and SO #2 indicated in their notes that they immediately grabbed the Complainant and brought him to the ground.

There is no independent witness of the interaction in the interview room; however, WO #2 and WO #3 were seated at desks near the interview room and overheard the incident. WO #3 heard a rumbling noise, and both WO #2 and WO #3 heard an officer yell at the Complainant to stop resisting. WO #2 and WO #3 attended the interview room and saw the Complainant on the ground. He was bleeding from his nose and complained that the police officers had broken his nose. Every person the SIU spoke to said that there was blood on the wall in the interview room and this fact is not contentious. [4]

The Complainant was searched and eventually escorted to St. Michael’s Hospital where he was diagnosed with a fractured nose.

Having carefully considered this evidence, I am unable to form reasonable grounds to believe either subject officer committed a criminal offence in relation to the allegation. To begin, there is insufficient evidence that either subject officer is responsible for the Complainant’s injuries. The Complainant was unable to provide details about how he was injured. [5] Besides the timing and nature of the injuries, there is no evidence capable of supporting the belief that the subject officers struck the Complainant or pushed him into the wall or floor. The only direct evidence of who was responsible for the Complainant’s injuries comes from the subject officers, who indicated in their duty notes that the Complainant hit his face on the wall when he violently pulled away from the officers. Although it is always more difficult to assess the subject officers’ credibility on the basis on their notes alone, there is nothing in their notes or other available evidence that suggests that they are not accurate. The notes are overwhelmingly consistent with the available evidence about the circumstances surrounding the incident. They described the Complainant as becoming resistant which is corroborated by two witness officers hearing a subject officer tell the Complainant to stop resisting. They also indicated that the Complainant hit his face against the wall which is consistent with the blood reportedly seen on the wall by all witnesses. Moreover, I am inclined to believe that the injury was the result of the Complainant’s own resistant behaviour in light of the booking hall CCTV footage which clearly demonstrated that the Complainant was acting in an uncooperative and belligerent manner throughout the booking process. In the absence of further evidence, I do not have reasonable grounds to believe that either subject officer used force against the Complainant that resulted in him fracturing his nose.

While it is clear that some force was used against the Complainant when the subject officers grabbed him and took him to the ground, I believe that this use of force in the circumstances falls within the scope of force permitted by law. Pursuant to s. 25 of the Criminal Code, police officers can use force that is reasonably necessary in the execution of their lawful duties. The Supreme Court of Canada held in R. v. Golden, 2001 SCC 83, that police officers may strip search arrested persons under the common law power to search incident to arrest. Such searches are permissible when the arrest itself is lawful and the search is performed for a legitimate purpose incident to arrest such as to ensure police officer safety. I find that the Complainant’s arrest was lawful because s. 495(1)(a) of the Criminal Code permits police officers to arrest someone without a warrant where the police officer believes on reasonable grounds that the person has committed an indictable offence. The arresting officers were aware that there was a male and a female in the apartment who had been physically fighting, and that the male was known to be violent. After entering the apartment because of the exigent circumstances and finding the Complainant’s girlfriend with facial injuries, it is my opinion that the police officers had reasonable grounds to arrest the Complainant for assault. While strip searches are not permitted to be done as a matter of routine, the nature of the call involved violence. The Complainant was being actively uncooperative and was known to behave erratically while detained. An officer had also found an empty drug wrapper suggesting that the Complainant had drugs in his possession. In these circumstances, I believe a Level 3 search was justifiable in law to ensure that the Complainant had no weapons or drugs on his person that may be harmful to himself or others.

Having found that the subject officers were acting within the course of their lawful duties, it is my opinion that the force used against the Complainant during the search was reasonably necessary. There is no evidence that the Complainant was hit, kicked or punched. Instead, the force used was limited to that necessary to grab the Complainant and place him to the ground. The Complainant was intoxicated, known to be violent, and had aggressively pulled away from the officers. In these circumstances, grabbing him and placing him on the ground was an appropriate response and necessary to gain control over the Complainant. Even if I am wrong about the cause of the Complainant’s injuries and they were somehow caused when he was grabbed and grounded (which I do not believe), I still believe the use of force was lawful. The jurisprudence on use of force clearly establishes that the standard to which officers are to be held is not perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are police officers 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.).

In summary, I believe that the Complainant was injured when he, in an intoxicated and belligerent state, slammed his own face into a wall in an effort to resist being subject to a Level 3 search. As there no evidence that either subject officer used force that exceeded the amount of force permitted by law, no charges will issue and the file will be closed.



Date: January 24, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) The officers actually arrested the Complainant in the early hours of February 24, 2018. [Back to text]
  • 2) This document indicates that at 4:06 a.m. there was a CAD message stating, “M AND F IN UNIT PHYSICALLY FIGHTING AS PER COMPL” and “PREVIOUS POLICE INVOLVEMENT FOR DOMAS.” At 4:14 a.m., there was a CAD message stating, “IF ITS [the Complainant].. THAT’S POSS HER EX BF HE IS VIOLENT.” [Back to text]
  • 3) This allegation was not repeated to the SIU. [Back to text]
  • 4) The SIU was unable to confirm this detail because WO #1 requested that the interview room be decontaminated, believing it would not be cleaned for about 48 hours. Unfortunately, the interview room was cleaned before the SIU examined it which removed evidence capable of confirming or rebutting the subject officers’ claims. However, since all witnesses recalled blood on the wall the presence of blood is not in issue and I am able to accept it as a fact. [Back to text]
  • 5) The Complainant was drinking the night of the incident and alcohol intoxication may have affected his memory. The CCTV camera captures him stating that he had difficulty understanding the officers because he had been drinking. Officers who interacted with him also described him as intoxicated and noted an odor of alcohol on his breath. [Back to text]