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SIU Director’s Report - Case # 18-TCI-334

Contents:

News Releases for this Case:

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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 32-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 14, 2018, at 8:50 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant. Reportedly on November 13, 2018, at 7:04 p.m., the TPS Guns and Gangs Task Force (GGTF) along with members of the TPS Emergency Task Force (ETF) executed a search warrant at a home on Oakwood Drive. Once police gained entry into the residence the Complainant ran into the bathroom. ETF police officers followed the Complainant into the bathroom. At some point the Complainant kicked one of the ETF police officers and a struggle ensued. During the Complainant’s interaction with ETF police officers a Conducted Energy Weapon (CEW) was deployed at the Complainant.

Subsequently, the Complainant was taken into custody and transported to Sunnybrook Health Sciences Centre (SHSC). At SHSC the Complainant was diagnosed with having suffered a fractured bone in his face. 
 

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed

Additionally, the notes from two other officers were received and reviewed.


Subject Officers

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


Evidence

The Scene

The scene was in a residential apartment on Oakwood Avenue.

The exterior of the door leading to the apartment portion of the building was damaged. Two flights of stairs lead to the apartment where the scene was. The apartment was in disarray, including the living room, hallway, bedrooms and living area.

While the SIU forensic investigators were in the process of photographing the bathroom an attempt was made to open the bathroom window to search and photograph the outside area of the bathroom. The window was found closed and secure and no damage was noted to the glass and the sliding screen was intact.

CEW wires with one probe attached and one blast door were located in the garbage in the kitchen along with the shower curtain. A search of the inside and outside bathroom area located two anti-felon identification tags (AFIDs) on the floor at the entrance to the bathroom.

Photographs and measurements were made at the scene. Items collected at the scene were two shower curtains, CEW wires, one probe, two AFIDs, and a blast door.

On November 15, 2018, at 11:42 a.m., a CEW was turned over to the SIU forensic investigators. The CEW was void of any cartridges, however, a cartridge case was with the CEW. The CEW was tested. The download was completed and the cartridge case was collected. The serial number on the cartridge case and the serial number on the AFID were compared and found to be identical. The CEW was returned to TPS.

Forensic Evidence


CEW Download


On November 13, 2018, at 6:47:38 p.m., the CEW was deployed by SO #2 for a duration of five seconds. At 6:47:44 p.m., SO #2 deployed his CEW once more for a duration of five seconds. At 6:49:02 p.m., SO #2 switched his CEW to safe.

Communications Recordings


TPS Communications Recordings


The communications recordings had no bearing in this case since they did not address how and by whom the Complainant received his serious injury.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • General Occurrence;
  • ICAD (x2);
  • ICAD-Event Details;
  • Notes of the witness officers and two undesignated officers; and
  • TPS Procedures – Use of force and appendices.

Incident Narrative

The following events in and around the time the Complainant’s injuries were inflicted emerge largely uncontested in the evidence. On November 13, 2018, the ETF was asked by the TPS Guns and Gangs Task Force (GGTF) to assist in the execution of a search warrant on Oakwood Avenue. The officers were looking to search for and seize firearms on the premises. The subject named in the warrant was known to police to carry a firearm and have a criminal record for firearms offences and crimes of violence. The plan was to have the ETF conduct a dynamic entry onto the premises to ensure its safety ahead of the GGTF officers accessing the unit to execute the search.

An ETF team, led by WO #4 and consisting of nine other officers, including SO #1 and SO #2, arrived at the exterior entry door to the apartment building around 6:45 p.m. The door was forced open and the team of officers made their way inside. The apartment in question was located on the second floor. CW #1, one of its residents, came across officers ascending the stairs to her apartment and complied with their demands that she get on the floor. The Complainant was also present. He too was alerted to the officers making their way to the apartment unit and started running. A third person in the unit at the time, CW #2, was confronted by ETF officers in the kitchen. At their direction, he placed himself on the floor and was handcuffed without incident.

The Complainant was unsuccessful in finding an escape route and was quickly cornered by SO #1 and SO #2 in the bathroom. There unfolded a struggle between the Complainant and the officers, the details of which are largely unknown as neither of the subject officers provided statements to the SIU (as was their legal right) and the Complainant had little recollection of what occurred. What is known is that one or both of the subject officers called for the assistance of other ETF officers, prompting WO #1 to enter the bathroom. The Complainant was lying in the bathtub on his stomach and refusing to release his hands, which were tucked under his chest. SO #1 was standing next to the tub over the Complainant’s head and physically engaged with the Complainant though, again, the details of that engagement are sketchy. WO #1 had a better look at SO #2, who was standing in the tub and trying to control the Complainant’s legs as the Complainant kicked them repeatedly. SO #2 had a CEW in his hands, but WO #1 did not see it being deployed. However, the data downloaded from SO #2’s weapon establish that it was in fact fired during the altercation in the bathroom; twice, with each deployment lasting five seconds. As the struggle continued, WO #2 grabbed the Complainant by the collar, pulled him out of the tub and dragged him from the bathroom into the living room, where, with the assistance of WO #4, the Complainant was handcuffed.

Following the Complainant’s arrest, paramedics were summoned to the scene when he complained of difficulty breathing. The Complainant was taken to hospital and diagnosed with facial fractures.

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 13, 2018, the Complainant suffered fractures to his face in the course of his apprehension by officers with the TPS ETF. Two members of the ETFSO #1 and SO #2 – were identified as subject officers for purposes of the SIU investigation. For the reasons that follow, there are no reasonable grounds in my view to believe that either officer committed a criminal offence in connection with the Complainant’s injuries.

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 ETF officers were acting under the authority of a search warrant when they entered the home ahead of the GGTF officers. Their participation in the operation was reasonable given the legitimate concerns police had regarding the prospect of firearms in the residence and the presence of a person known to carry a firearm with a history of violence. For the same reasons, I am satisfied the officers acted reasonably in conducting a dynamic entry into the premises whereby the search area was blitzed by an overwhelming show of force, intended to capture persons in the area by surprise and neutralize potential threats very quickly. Part and parcel of a dynamic entry is the potential for the detention of persons located on the premises until the officers can be assured they do not pose a danger to those executing the warrant. In the circumstances, the ETF officers were acting within their rights when they sought to control the Complainant and in using force to take the Complainant into custody when he resisted. It was reasonable to conclude that it was necessary to detain the Complainant for officer safety because they had good reason to believe firearms were in the home (this is what the search warrant was for), the Complainant was running from the police and they had no idea what his intentions were.

With respect to the propriety of the force that was used against the Complainant, the analysis is made difficult by the fact that little is known of the particulars of his altercation with the subject officers other than what occurred at the tail end of the struggle. I accept that the Complainant’s facial fractures are the result of force used by the officers, but I am left with no evidence as to how precisely the injuries were inflicted. Nor am I in a position to reasonably conclude that they are necessarily evidence of excessive force given that the Complainant was physically resisting the officers and the injuries could well have resulted from force that was reasonably necessary in the circumstances. With respect to what is known of the struggle, namely, the discharges from SO #2’s CEW and the combined manpower of SO #1, SO #2, WO #1 and WO #4 to wrestle the Complainant out of the bathroom and secure him in handcuffs, this seems to me a not unreasonable level of force to overcome the Complainant’s resistance and secure him in custody.

In the final analysis, given the lacunae in the evidence regarding much of the Complainant’s interaction with SO #1 and SO #2, and what is reasonably known of what occurred at the back end of their struggle, I am unable to reasonably conclude that the Complainant was the victim of excessive force notwithstanding the injuries he suffered in the process. Consequently, there are no grounds for proceeding with charges in this case and the file is closed.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit