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SIU Director’s Report - Case # 18-TCI-354

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 serious injuries sustained by a 40-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 4, 2018, at 1:49 p.m., the Complainant’s lawyer reported the following information to the SIU:

On November 26, 2018 at 8:30 p.m., the Complainant was in his apartment on McCowan Road when he heard a knock on the door and someone outside the apartment yelled a man’s name.

The Complainant observed his apartment door lock turn, as if someone was trying to enter his apartment using a key and the Complainant immediately locked his door. Eventually a number of people entered the Complainant’s apartment and pointed a firearm at the Complainant.

The Complainant was beaten by the individuals who entered his apartment. After he was assaulted someone yelled, “Toronto Police” and the Complainant realized the people inside his apartment were police officers.

The Complainant was transported to the Scarborough General Hospital (SGH) and he underwent surgery to repair a cut under his eye. The Complainant also complained of ringing noises in his head. The lawyer e-mailed the SIU a photograph of the Complainant’s injury. 
 

The Team

Number of SIU Investigators assigned: 2

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 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


Evidence

The Scene

By the time the SIU was notified regarding the Complainant’s injury there was no scene to examine.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Computer Aided Dispatch (CAD) Event Details Report;
  • Central Notes authored by SO #1 and SO #2;
  • Communication Recordings;
  • Email from TPS regarding the List of Involved Officers;
  • General Occurrence Report;
  • Injury Report for the Complainant;
  • Notes of all witness and subject officers;
  • Use of Force Procedure;
  • Use of Force Qualification Records for the subject officers;
  • Scene Photographs; and
  • Search Warrant (vetted copy).

Incident Narrative

The following scenario, as far as it goes, is supported by the weight of the evidence collected by the SIU in its investigation, which included statements from the Complainant, each of the three subject officers, and several witness officers who were present in the apartment at the time. On November 26, 2018, officers with the Neighbourhood Officers Unit out of 43 Division convened to execute a search warrant for illegal drugs and drug paraphernalia obtained under the Controlled Drugs and Substances Act. The target of the warrant was an apartment unit in a building on McCowan Road. The Complainant was the only person present in the unit when the officers showed up at his door shortly before 10:00 p.m.

The officers, including SO #1, SO #2 and SO #3, entered the apartment and confronted the Complainant physically. The Complainant was taken to the ground and handcuffed behind his back. When it became apparent that his right eye was badly cut, paramedics were summoned and took the Complainant to hospital where his injuries were diagnosed and treated. The Complainant was charged with resisting arrest and obstruction of justice.

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.

Analysis and Director's Decision

In the evening of November 26, 2018, the Complainant suffered a broken nose and laceration of his right lower eyelid during the course of an interaction with TPS officers. SO #1, SO #2 and SO #3 were among those officers and identified as possibly having caused the Complainant’s injuries. They were part of a larger contingent of officers who had entered the Complainant’s apartment unit to execute a search warrant. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that #1, SO #2 and/or SO #3 committed a criminal offence in connection with the Complainant’s injuries.

There is substantial disagreement in the evidence about what precisely occurred inside the apartment to cause the Complainant’s injuries. There is some evidence the Complainant was unaware the persons outside his door were police officers, and that the officers who entered his apartment immediately engaged him physically and proceeded to beat him. Specifically, this body of evidence suggests a male officer punched the right side of the Complainant’s face and eye three to five times and, presumably, caused his eye injury in the process. After the Complainant was taken down, this evidence further suggests that same officer continued to punch him and choked him. A second officer then intervened and punched the Complainant around his right eye ten more times. While still on the floor, the Complainant was kicked by two female officers and a male officer, including a kick by one of the females to his nose. It is further reported that, after the Complainant was handcuffed, a firearm was pointed in his direction until the arrival of paramedics.

While the evidence from the officers who entered the Complainant’s apartment is not entirely consistent, I am satisfied that the following scenario may safely be gleaned from the weight of their accounts. SO #3, in full police uniform, was the first to enter the apartment. He loudly announced their status as “police” and indicated they were there to execute a search warrant. Other officers followed SO #3 into the apartment, some wearing uniforms, others in plainclothes but wearing vests with “police” emblazoned across the front. Many of them also yelled out “police” and “search warrant” as they entered. The Complainant moved into a hallway that led to bedrooms and a bathroom, and was confronted by SO #3. It was the officer’s intention to quickly make his way to the rooms off the hallway to preserve any possible evidence and alert other potential occupants as to what was transpiring. In so doing, SO #3 forced the Complainant to the side and instructed SO #2, who was behind him, to control the Complainant. SO #2 told the Complainant to stay where he was, and then pushed him up against the hallway wall when he attempted to move toward the bathroom. According to SO #2, she was concerned at this point that the Complainant’s unfettered movement risked the safety of the officers and the integrity of possible evidence in the apartment. The Complainant continued to push forward in the direction of the bathroom, prompting SO #2 to attempt to force him to his knees with both of her hands on his shoulder. As she did so, the Complainant reportedly reached with his hands across the front of SO #2’s vest in the area of her OC spray and baton. Fearing he might dispossess her of a weapon, SO #2 punched the Complainant’s face twice, once with each hand. As the Complainant continued to reach for her vest, SO #1 moved in and tackled him to the ground. Finding himself on top of the Complainant’s back, and unable to secure control of his arms as the Complainant kept them tucked underneath his torso, SO #1 punched the Complainant’s right side once, which was successful in freeing the right arm. WO #6, who was also engaged with the Complainant at this time, delivered a knee strike to the Complainant’s left shoulder, which was also successful in helping him gain control of the Complainant’s left arm. Thereafter, the Complainant was handcuffed, stood up and taken to be seated in a chair in the living room while the search of the residence was conducted, and they waited for the paramedics.

The officers deny that the Complainant was punched as often as the incriminating evidence suggests, or that the Complainant was choked or kicked, or had a gun pointed at him as he waited for the ambulance.

If true, the more inculpatory rendition of events indicates the Complainant was the victim of an unlawful assault at the hands of multiple police officers. However, there are aspects of this evidence that raise significant issues around its trustworthiness. For example, the medical evidence obtained by the SIU strongly suggests that one would have expected to see more injuries had the Complainant been punched about 20 times in the face. In addition, the suggestion that the Complainant was unaware from the outset that he was dealing with police officers conducting a search of his home seems implausible. The notion that the officers would have concealed their status and purpose for nefarious reasons is at odds with the plain fact that SO #3 and other officers were in full uniform, and those who were in plainclothes had vests with the word “police” on the front. In the result, while I recognize that a charging authority must limit its assessment of the strength of competing evidence, I am satisfied that it would be unwise and unsafe to put this body of evidence to the test before a trier-of-fact in the absence of corroboration. While the injuries the Complainant sustained might have provided such corroboration, their probative power in this respect is limited by the possibility they may well have been incurred by his grounding or the punches struck by SO #2, which, as I conclude below, amounted to legally justified force in the circumstances.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force is no more than is reasonably necessary in the execution of an act that they are required or authorized to do by law. The officers who entered the apartment and physically engaged the Complainant were acting under the authority of a facially valid search warrant. Based on the narrative that emerges from the officers’ statements, which is supported by the medical evidence and not impeached by any third-party account, the Complainant immediately moved from the door down a hallway. At this point, the officers could legitimately conclude that the Complainant’s movements needed to be controlled in the interests of an effective search. SO #3 was the first to confront the Complainant. The officer pushed past him to secure the bathroom and bedrooms down the hall, leaving instructions for other officers to detain the Complainant. SO #2 attempted to do so. However, she was met with physical resistance on the part of the Complainant, who seemed intent on following SO #3 down the hallway, which escalated to the point of the Complainant reaching forward with his hands toward her vest. Fearing that the Complainant might access one of her weapons, SO #2 proceeded to punch him twice to the face, once with each hand. As the Complainant kept reaching for SO #2’s vest, SO #1 arrived and tackled him forcefully to the ground. There followed a struggle on the ground in which the Complainant flailed his legs, refused to release his arms, and was met with an additional punch to the right-side of his torso by SO #1 and a single knee strike delivered by WO #6 to the Complainant’s left shoulder. Following the blows, the officers were successful in placing handcuffs on the Complainant.

I am unable to reasonably conclude on the aforementioned record that the force used against the Complainant ran afoul of the limits prescribed by the criminal law. The officers were entitled to search the apartment, and to take steps to ensure their safety and the preservation of evidence in so doing. When the Complainant challenged those propositions, he rendered himself subject to arrest for obstruction of justice, and the officers were within their rights in resorting to some force to take him into custody. The force used, in my view, was commensurate with the Complainant’s resistance, increasing in severity in step with the rising threat posed by the Complainant. In the final analysis, as the force in question was legally justified, there are no grounds for proceeding with charges against any of the involved officers notwithstanding the injuries suffered by the Complainant. The file is closed.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit