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 a serious injury sustained by a 42-year-old male on September 24, 2017.

Notification of the SIU

The SIU was notified of the incident by a member of the Toronto Police Service (TPS) on September 24, 2017, at 7:20 a.m.

The TPS member reported that on September 24, 2017, at 1:51 a.m., TPS police officers arrested the Complainant south of Lake Shore Boulevard West, after a citizen complained that he sexually assaulted her.

There was a struggle during the arrest, and the Toronto Emergency Medical Service was called and transported the Complainant to the St. Joseph’s Health Centre (SJHC). The Complainant was diagnosed with a perforated left eardrum.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Not interviewed, but notes received and reviewed[1]

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

On September 24, 2017, TPS officers were on the lookout for a person who was suspected of having committed multiple sexual assaults along Lake Shore Boulevard. All of the assaults were believed to have been committed by the same person. SO #2 was the officer in charge of the TPS team, which also included WO #4, SO #1, WO #2, WO #1 and WO #3. The officers were working in plainclothes capacity and operating unmarked police vehicles. At approximately 12:20 a.m. that morning, there was a report of another sexual assault which had occurred near Lake Shore Boulevard and 36^th Street by someone matching the suspect’s description and modus operandi (M.O.). Uniformed police officers were told to stay out of the area and the TPS team arrived to set up surveillance, with the exception of WO #3 who attended to the victim of the sexual assault.

At approximately 12:45 a.m., WO #4 parked his unmarked vehicle near the Humber College Fitness Centre on Lake Shore Boulevard, just east of 24^th Street. After about an hour, WO #4 observed the Complainant on a bicycle travelling eastbound on Lake Shore Boulevard. The Complainant’s face and bicycle matched the description of the suspect wanted for the sexual assaults and WO #4 observed the Complainant behaving suspiciously. The Complainant was riding his bicycle very slowly behind a young woman, but travelled past the woman when she sat down on a bench next to a man. WO #4 followed the Complainant, who turned south onto 23^rd Street. When WO #4 drove past the Complainant, he looked at WO #4’s unmarked vehicle and quickly pedaled back towards Lake Shore Boulevard. At around 1:46 a.m., WO #4 reported via radio the whereabouts of the Complainant and that he “saw me and he took off.”

SO #1 and WO #4 proceeded to follow the Complainant westbound along Lake Shore Boulevard. SO #1 pulled into a plaza on the corner of Lake Shore Boulevard and 30^th Street, stopping his cruiser in front of the Complainant. SO #1 exited his vehicle with his badge, warrant card and police radio in his left hand and claims he was within three feet of the Complainant when he called out, “Police.” The Complainant saw the police badge, immediately turned his bicycle and fled northbound on 30^th Street. WO #4, who was nearby, followed the Complainant northbound on 30^th Street who then rode his bicycle onto multiple other side streets. SO #2 and WO #6 also arrived at the plaza and saw SO #1 heading northbound on 30^th Street and followed the Complainant.

The Complainant was travelling southbound on a sidewalk when TPS officers attempted to stop him again. At first, WO #4 passed the Complainant and drove over the curb onto the sidewalk in front of the Complainant, cutting him off. The Complainant avoided him by biking around WO #4’s vehicle. SO #2 then passed WO #4’s vehicle and pulled up alongside the Complainant, who was still on the sidewalk. SO #2 told the SIU that he made eye contact with the Complainant and yelled, “Police. Stop.” SO #2 was satisfied that the Complainant knew he was a police officer and pulled into the driveway ahead of the Complainant. Near the driveway was a flower bed with a stone wall that was approximately one foot tall. The front bumper of SO #2’s cruiser contacted the wall and the Complainant also drove right into the wall, causing him to go over the handlebars of his bicycle and land on the ground.

The Complainant grabbed his bicycle and tried to escape from the officers. WO #6 jumped out of SO #2’s vehicle and ran towards the Complainant yelling, “Police. Stop.” WO #6 put his hands on the Complainant but the Complainant was able to escape his grasp. The ensuing struggle was partially captured by a surveillance camera outside of a nearby residence. Although the video footage is of poor quality, the Complainant can be observed running down the street. WO #2 and WO #4 were nearby and grabbed the Complainant. The Complainant dragged the police officers towards the curb and he was taken to the ground. At some point, SO #2 arrived to help.

The Complainant resisted the police officers by tucking his elbows into his sides, placing his hands under his chest and interlocking his fingers. The Complainant was pinned to the ground by WO #4, WO #2, and SO #2. SO #2 was positioned on the Complainant’s left side, and WO #4 and WO #2 were positioned on his right side. The surveillance footage captures the officers repeatedly telling the Complainant to give up his hands and to stop resisting, but the Complainant did not comply.

SO #2, WO #4 and WO #2 all admit to striking the Complainant while he was pinned to the ground. WO #2 told the SIU that he delivered a number of open palm strikes to the Complainant’s upper body, shoulder and to the side and top of his head. WO #2 struck the Complainant in the head three or four times at a “good strength” to distract him and gain his compliance. WO #2 also held the Complainant’s head down on the ground so the Complainant would not get injured. WO #4 told the SIU that he delivered distractionary knee strikes to the Complainant’s right side around his rib cage area, his legs and his thighs. WO #4 delivered eight to ten strikes using the heel of the palm of his hand and with his knee, each time telling the Complainant to give up his hands and stop resisting.

SO #2 told the SIU investigators that he punched the Complainant in the left side shoulder area in an attempt to loosen the Complainant’s grip and get a hold of his left hand. SO #2 then stood up and kicked the Complainant twice in the rib cage area. Initially, SO #2 did not tell the SIU that he kicked the Complainant and only acknowledged the kicks after viewing the surveillance footage. According to SO #2, he was not intentionally being deceitful and he did his best to remember what he could, but everything happened quickly. After viewing the surveillance footage, SO #2’s memory was refreshed and he said he did not kick the Complainant in the head.[2] After kicking the Complainant, SO #2 immediately returned to a kneeling position and continued to try to pull the Complainant’s left arm from underneath his body. At this point, it is alleged that SO #2 delivered a punch to the Complainant’s head which caused his ruptured eardrum.

The TPS officers on the Complainant’s right side were able to get his hands free and WO #2 secured the Complainant’s right wrist with a handcuff. The Complainant was constantly trying to get back up and was twisting and turning. The Complainant’s head kept going down towards SO #2’s hands and SO #2 yelled out that the Complainant was trying to bite him. SO #2 told the SIU that he struck the Complainant several times with a closed fist and used his palm to push the Complainant’s head away from his hands to avoid being bitten. These strikes, according to SO #2, may have caused the Complainant’s injury.

SO #1 and WO #1 arrived when the Complainant was grounded but still resisting. SO #1 tried to free the Complainant’s left hand and was worried that the Complainant may have been concealing something. With one hand on the Complainant’s back and the other on the ground, SO #1 delivered a couple of knee strikes to the Complainant’s shoulder area and they landed in the upper rib cage and arm pit area. The Complainant was trying to bite at SO #1’s hand so he repositioned both of his hands to the Complainant’s back.

Uniformed police officers also arrived but did not participate in the struggle. WO #5 gave WO #4 an ASP baton which was used to leverage the Complainant’s left arm free. At approximately 1:53 a.m., the Complainant’s left hand was handcuffed.

The Complainant was eventually brought to his feet and escorted to a marked police cruiser. He had blood on his face and an ambulance attended the scene. The Complainant was reportedly diagnosed with a ruptured left eardrum which did not require any treatment.

Video/Audio/Photographic Evidence

Summary of the In-Car Video

Police Vehicle One

An undesignated police officer responded to assist the TPS police officers with the police cruiser’s emergency lights and siren activated. The police officer parked directly behind the vehicle of SO #2. The police officer exited her police vehicle and did not appear to get physically involved in the interaction with the Complainant.

Police Vehicle Two

The police vehicle, driven by an undesignated police officer, was in motion, exiting from a parking lot in a left turn motion. The vehicle came to an intersection. Another fully marked police vehicle (Police Vehicle Three) was traveling with its emergency lights activated from the right to the left. The police officer turned left after the other police vehicle and followed them.

The two police vehicles stopped near the scene. Two other undesignated police officers exited from Police Vehicle Three and walked northbound towards where the TPS police officers were interacting with the Complainant. A police officer exited Police Vehicle Two and walked towards the same area.

The Complainant was led from the area in which the TPS police officers were interacting with him to the driver’s side of Police Vehicle Three. There was a minor struggle to place him in the police vehicle. A police officer [now known to be WO #2] went around to the passenger side of the police vehicle and leaned in as if to pull the Complainant into the rear seat. Paramedics approached Police Vehicle Three. The Complainant was removed from the rear seat of the police vehicle and examined by the paramedics.

Police Vehicle Three

The police vehicle was stopped near the scene behind another vehicle. Three or four uniformed police officers and three or four plainclothes police officers were in the middle of the road. The Complainant came into view from in front of a pickup truck. The Complainant was handcuffed with his hands behind his back and there was a police officer on either side of him.

The Complainant was led to Police Vehicle Three. The Complainant appeared to be struggling. The audio commenced from inside of the police vehicle. The Complainant was told he was being recorded. He was told to behave himself. WO #2 went around to the passenger side and pulled the Complainant into the police vehicle by the arm. The Complainant had blood above his right eye and on the right side of his face.

The Complainant was told that he was under arrest (no offence mentioned). He was read his rights to counsel and cautioned. He said that he did not understand. He said he spoke Ukrainian-Russian.

Summary of the CCTV video

Initially, multiple sounds of screeching tires, braking and a loud bang [now known to be the police vehicle driven by SO #2 colliding with the planter] can be heard.

WO #4 arrived and stopped. A person ran behind WO #4’s vehicle and someone yelled, “Get the fuck down.” The sounds of the struggle and commands, “Put your hands behind your back,” are heard. A person on the upper right side of the Complainant delivered four punches to the Complainant, saying at the same time, “Put your hands behind your back.”

The Complainant yelled, “Police” and one of the police officers replied, “We are the fucking police. Put your hands behind your back. Give me your hands.”

Two kicks were delivered by SO #2 to the left side of the Complainant. WO #2 screamed, “Oh. Fuck. My hand.” One of the police officers demanded, “Give me your fucking hands.” SO #1 delivered two knee strikes to the lower portion of the Complainant’s left side. The police officers issued commands, “Your hands. Give me your fucking hands”, “Stop resisting,” and, “We’re the Toronto police.”

Communications Recordings

Summary of Communication Recordings

On the original call from the sexual assault complainant, she said that a man [now known to be the Complainant] on a bicycle touched her inside of her top. She provided a description. The communicator said that the police officers were on their way.

The dispatcher requested units to attend. SO #1 said he was responding. A sergeant said there was a bulletin regarding a suspect wanted for multiple similar offences. WO #3 suggested that the involved officers be notified. SO #2 told the dispatcher that the involved officers would respond and to keep the uniform police vehicles out of the area for now. SO #2 requested WO #3 to locate and deal with the sexual assault complainant. WO #2 confirmed the location and direction of travel of the suspect.

WO #4 reported, “We may have our guy at 27^th and Lakeshore. He’s just standing on the south side. I think it’s him. He’s been there for a while. Across from Tim Hortons, on the north side; high rate of speed, westbound. He saw me and he took off.”

A 911 call was received from CW #6 requesting police, saying a man was being killed. The dispatcher said that police officers were already there. A 911 call was also received from CW #4, saying, “A guy’s getting the shit kicked out of him.” Then she said police officers were there.

WO #1 said that the Complainant was in custody and requested an ambulance.

Materials obtained from Police Service

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

• Event Detail and General Occurrence Reports
• TPS Sign-In Sheet
• Notes of WO #1-6, and SO #1 and SO #2
• Notification of the SOs’ interviews
• Training Record for SO #1 and SO #2
• In-car camera (ICC) videos
• Procedure Documents - Arrest and Release, Use of Force and “Appendix B”, and
• Radio Communications

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.

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

495 (1) A peace officer may arrest without warrant

1. 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
2. a person whom he finds committing a criminal offence; or
3. 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

It is alleged that SO #2 punched the Complainant in his ear during an arrest, resulting in a ruptured ear drum. On the night of the arrest, the Complainant was identified as a suspect wanted for multiple sexual assaults which occurred along Lake Shore Boulevard in the city of Toronto. The Complainant was approached by several plainclothes TPS officers driving unmarked police vehicles. The officers claimed that they had identified themselves as police. The Complainant fled and was eventually taken to the ground where he actively resisted arrest. There is no question that the involved officers used force during the arrest: the Complainant was punched, kneed and kicked during the struggle. Nevertheless, for the following reasons, I am unable to form grounds that the subject officers committed a criminal offence in relation to the allegation. I will not repeat the factual narrative of the incident which is contained in the narrative portion of this report unless I need to do so to explain a position that I take.

SO #1 and SO #2 were designated as subject officers in the SIU’s investigation, which included interviews with the Complainant, six civilian witnesses (five eyewitnesses and the complainant’s physician), both subject officers, and five witness officers. The notes of both subject officers were also reviewed, along with radio communications, ICCS videos and surveillance footage from a residence close to the arrest. On the weight of the evidence, it is clear that the involved officers used significant force on the Complainant during the arrest. The officers admit to using force and multiple civilian witnesses who observed the struggle phoned 911 to report that someone was being injured. The live issue is whether the level of force used during the arrest was within the limits permitted by law.

I will start by considering whether the police had lawful grounds to arrest the Complainant. Section 495(1)(a) of the Criminal Code permits a police officer to arrest a person without a warrant where he or she believes on reasonable grounds that the person has committed an indictable offence. The night of the Complainant’s arrest, the TPS officers were investigating a series of sexual assaults which had occurred in the area. Additionally, there was a report that another sexual assault had occurred by the same suspect on that very night and the TPS officers arrived to set up surveillance. WO #4 had reasonable grounds to believe the Complainant had committed the indictable offence of sexual assault after seeing the Complainant, whose bicycle and appearance matched the description of the suspect, in the area near the sexual assault. Moreover, the Complainant’s behaviour, in closely following a woman slowly on a bicycle and bicycling quickly away from WO #4’s unmarked police vehicle when spotting WO #4, was further circumstantial evidence capable of supporting this belief. The arrest was accordingly lawful.

Although it is clear that the officers used force against the Complainant during his arrest, I find that the use of force did not exceed the limits permitted by law. Section 25(1) of the Criminal Code allows police officers to use force in the execution of their lawful duties to the extent reasonably necessary in the circumstances. In assessing reasonable force, I have considered the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

Having considered the totality of the evidence, I am satisfied that the officers’ use of force was reasonably necessary to subdue the Complainant and to effect his arrest. The Complainant had escaped WO #6’s grasp and tried to flee when he was intercepted by the other officers. There was a brief struggle before the Complainant was grounded and, once grounded, the Complainant refused to give up his hands by tucking them under his torso. It took multiple officers to control the Complainant who exhibited considerable strength and actively resisted arrest. In these circumstances, resorting to kicks, knee strikes and punches to free the Complainant’s hands was reasonable because the Complainant was clearly unwilling to cooperate without the application of force. Further, because the Complainant tucked his hands under his body, SO #1’s concern that the Complainant may have been concealing a weapon was reasonable and offers additional justification for the use of force. In assessing whether the extent of force used was proportionate to the circumstances. Additionally, I take comfort in the nature of the Complainant’s injury which, while not insignificant, is not consistent with a severe beating. I accordingly do not believe the application of force was intended to harm the Complainant and in fact was for the sole purpose of effecting the arrest. In my opinion, the use of force was reasonable and necessary in these circumstances to subdue a man of very significant strength who was determined to try anything, including biting, so as to not be arrested.

In sum, although significant force was used against the Complainant during his arrest, the force in these circumstances was lawful pursuant to s. 25(1) of the Criminal Code. Therefore, I have no reasonable grounds to believe that SO #1 or SO #2, or any other TPS officer, committed a criminal offence in relation to the allegation and no charges will issue.

Date: August 30, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #3 was not interviewed because WO #3 did not participate in the Complainant’s arrest. [Back to text]
• 2) [2] SO #2 is not alleged to have kicked the Complainant in the head. [Back to text]