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SIU Director’s Report - Case # 17-TCI-209

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 the serious injury reportedly sustained by a 35-year-old man during his arrest on August 12th, 2017.

The Investigation

Notification of the SIU

At approximately 5:30 a.m. on Sunday, August 13th, 2017, the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody Injury.
The TPS reported that on Saturday, August 12th 2017, at approximately 10:10 p.m., TPS officers attended an apartment building located in the City of Toronto to arrest the complainant for sexual assault.

During the arrest, a struggle ensued between the police officers and the Complainant in the hallway outside his apartment.

The Complainant was eventually arrested and was being transported to the police station, when he complained of pain to his face. The TPS officers took the Complainant to hospital where he was diagnosed with a fracture to his face.

The Team

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

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Investigators reached out to the sister of the Complainant, who was present in the apartment at the time of the interaction with police, for an interview on a number of occasions, but she did not respond and as such was not interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Notes reviewed, interview deemed not necessary

Subject Officers

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


Incident Narrative

On Saturday, August 12th, 2017, at approximately 10:30 p.m., the SO and WO #1 met with a ten-year-old girl at the police station. The ten-year-old girl told the SO and WO #1 that she was sexually assaulted by a black man [later identified as the Complainant] while getting off an elevator at her apartment building located in the City of Toronto.

The SO and WO #1 attended the apartment building and met with two building security officers who showed the police officers the CCTV recordings from the elevator and identified the man in the video as the Complainant, who was known to them.

The SO and WO #1 attended the Complainant’s apartment and spoke with him outside his apartment. They told the Complainant that he was being arrested for sexually assaulting a ten-year-old girl. The Complainant began to resist the two police officers.

After a brief struggle, the Complainant was arrested and placed in a police cruiser. The Complainant indicated to the police officer than he was experiencing pain to his face, and he was transported to hospital.

Evidence

The Scene

The scene was located in front of the Complainant’s apartment in the hallway of the apartment building. The scene was examined and photographed by the SIU.

A bloodstain was located on the floor of the hallway near the apartment.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

In-Car Camera System (ICCS) Recordings from the police cruiser

The SIU received and reviewed the ICCS recording from the SO’s police vehicle. The ICCS recording depicted the following:
  • 12:41:43 a.m. The Complainant was placed in the rear seat of the police vehicle.
  • 12:42:20 a.m. The SO told the Complainant the reason for his arrest and read the Complainant his rights to counsel.
  • 12:48:07 a.m. WO #1 informed the dispatcher that the Complainant was in custody.
  • 12:48:28 a.m. WO #1 told the dispatcher that the Complainant had resisted arrest and was taken to the ground.
  • 12:51:45 a.m. The Complainant was being transported to the police station.
  • 12:52:29 a.m. The Complainant asked the SO and WO #1 to take him to the hospital.
  • 12:56:00 a.m. The SO and WO #1 began to transport the Complainant to the hospital.
  • 12:59:32 a.m. The Complainant arrived at the hospital with the SO and WO #1.


CCTV Recordings from the Elevator

The SIU received and reviewed the CCTV recording from the elevator that was observed by WO #1 and the SO in order to identify the Complainant as the suspect of the sexual assault. The video recording from Friday, August 11th, 2017, depicted the following:
  • At 10:12:48 a.m. An unknown girl walked towards the elevator followed by a man [later identified as the Complainant].
  • At 10:13:04 a.m. The unknown girl entered the elevator followed by the Complainant.
  • At 10:14:02 a.m. The unknown girl exited the elevator followed by the Complainant.

Communications Recordings

The police transmissions communication recording was obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Event Details Report;
  • Police Transmission Communications Recording;
  • Injury Report;
  • CCTV video from booking hall at TPS station;
  • In-car camera (ICC) videos from police cruiser transporting the Complainant;
  • Notes of WO #1 and 2; and
  • Summary of Conversation.

The SIU also obtained and reviewed the following materials and documents from other sources:
  • Medical records of the Complainant; and
  • CCTV footage from the elevator, hallway, and exterior of Complainant’s apartment building.

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 151, Criminal Code -- Sexual Interference

151  Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

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 271, Criminal Code -- Sexual assault

271 Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Analysis and Director's Decision

On August 12th, 2017, at approximately 10:30 p.m., a ten-year-old girl attended a TPS Division of the Toronto Police Service (TPS) with her mother to report that she had been sexually assaulted in the elevator of her apartment building in the City of Toronto the previous day, August 11th, 2017. As a result, the security officers at the building were requested to review the surveillance video with respect to the time and date of the alleged assault. Subsequently, building security contacted the SO and WO #1 to advise that they had located the relevant video and both police officers attended the building at approximately 12:22 a.m. on August 13th, 2017 and viewed the video wherein the Complainant was identified by building security as the male person exiting the elevator behind the ten-year-old girl who had alleged the sexual assault. WO #1 also recognized the Complainant from the video as being the same male he had dealt with on August 11th, 2017 at approximately 2:30 a.m. in response to a call from building security of an intoxicated male in the building.

As a result of the identification of the Complainant in the security video, both police officers attended the apartment unit of the Complainant and he was arrested for sexual assault. Following his interaction with police, the Complainant was transported to hospital where he was diagnosed with having sustained a fracture of the right orbital bone (eye socket) and comminuted fractures of the anterior and posterior lateral right sinus wall.

The Complainant alleges that at 10:00 p.m. on August 12th, 2017 he was told that two police officers were at the door. The Complainant went to the door and saw WO #1 and the SO, as well as CW #1 and CW #2. It is alleged that WO #1 asked the Complainant to exit his apartment and, as he was walking out, the SO struck the Complainant in the right eye with his right fist, following which he was struck by WO #1 in his left eye. The SO then handcuffed the Complainant.

It is further alleged that once handcuffed, the SO grabbed the Complainant by the back of the neck and slammed his head against the wall, following which the SO grabbed the Complainant’s pajama around his waist and pulled him towards the floor. As the Complainant lay on his stomach on the floor, it is alleged that the SO placed his right knee on top of the Complainant’s lower back and struck the Complainant repeatedly on his upper torso with his fist. The Complainant described the SO as being in a rage and the Complainant told him to stop punching him; at which time the Complainant began to bleed from his mouth. The Complainant advised that he was never told he was under arrest in the hallway outside of his apartment.

The Complainant further alleges that after he was taken to hospital, when asked by the doctor how he had sustained his injuries, he told the doctor that he had fallen on the stairs because he was scared of the SO and WO #1.

The medical records of the Complainant indicate that he was first taken to hospital at 2:00 a.m. on August 13th and confirm his injuries as noted above; the records also reveal the following note from the nursing staff: “Pt. (patient) taken down by police, but pt. states he fell down”; additionally, in the notes made by the attending physician the doctor has noted “fell off stairs”. The notes also indicate that the Complainant returned to hospital at 9:57 p.m. on August 13th as a result of a further complaint, and the notes read “did not vomit blood – said he lied to get to come to (hospital). No new concerns.” The booking video confirms that the Complainant told the booking officer that he had blood in his throat, as a result of which he was taken to hospital a second time.

During the course of this investigation, three civilian witnesses, including the Complainant and the two security officers, and two police witnesses were interviewed. The SO declined to be interviewed, or to provide his memorandum book notes for review, as was his legal right. Additionally, SIU investigators had access to the memo book notes of the two witness officers, the videos from the booking hall at the police station and the ICC videos, the video from the elevator and hall pertaining to the sexual assault allegation from August 11th, the surveillance video from both the elevator and outside of the building from August 13th, as police and the Complainant were exiting, the police transmission recordings and log, and the medical records of the Complainant.

The in-car camera video reveals the Complainant seated in the back seat of the cruiser en route first to the police station and then to the hospital. The Complainant is recorded asking to be taken to hospital as he believes that he is bleeding inside his head and indicates “… taking a beating that you…” and later he states “you beat me up – that’s why I’m bleeding”.

The booking video reveals that after the Complainant’s attendance at hospital on the first occasion, when he was booked into the station, he is asked by the booking Sergeant about his injuries, and although he initially indicates that he wants to discuss it with his lawyer first, he then appears to describe one police officer (audio is very poor) and says “That’s the one who done this to me,” and indicates towards his face. As the booking process progresses to questions about drugs and/or alcohol consumption, the following discussion takes place (not verbatim, as the audio is difficult to hear in some areas):

Booking Sergeant: Have you had any alcohol or drugs in the last 12 hours?
The Complainant: Liquor. A lot.
Booking Sergeant: What’s a lot?
The Complainant: A bottle – a big one.
A big bottle.
I drink every day.
Booking Sergeant: No bad reaction?
The Complainant: No. I enjoy it.

On Saturday August 12th, 2017, CW #1 received a call from WO #1 asking about CCTV recordings from the previous date in relation to a sexual assault allegation. Once the recordings were located, CW #1 contacted WO #1 and both WO #1 and the SO attended the building and looked at the recording; the male in the video was identified as the Complainant by both CW #1 and WO #1.

CW #1 and CW #2 then escorted both WO #1 and the SO up to the Complainant’s apartment; CW #1 and CW #2 stood near the elevator while WO #1 and the SO went to the apartment and asked to speak with the Complainant. Both CW #1 and CW #2 indicated that they observed the Complainant come out of his apartment and they heard one of the police officers tell him he was under arrest for sexual assault. CW #1 advised that the officer then grabbed the Complainant’s hand, and the Complainant immediately resisted and tried to run away. Both CW #1 and CW #2 stated that they then heard a struggle between WO #1 and the SO and the Complainant, and they moved closer.

CW #2 advised that he heard a bang and saw the Complainant up against the wall and then he landed on the floor and struck his face. CW #2 could not describe how the Complainant came to be on the floor.

CW #1 observed both police officers struggling with the Complainant on the floor while trying to get his hands behind his back to handcuff him, while the Complainant resisted by swinging his arms around. CW #2 advised that both police officers were on the floor with the Complainant, and they each had one knee on top of the Complainant, and the other knee on the floor. Both CW #1 and CW #2 described the SO as being on the Complainant’s right side with WO #1 on the left, trying to handcuff the Complainant’s hands behind his back, as the Complainant was resisting by pulling his arms away and flailing his hands. WO #1 and the SO repeatedly yelled at the Complainant to stop fighting and stop resisting.

After about 40 seconds, the Complainant was handcuffed and the SO assisted him to his feet. CW #2 observed that there was blood on the floor and that the Complainant was bleeding from his face.

WO #1 indicated that at about 2:30 a.m. on Friday August 11th, 2017, he responded to a call at an apartment building regarding a male person who was intoxicated in the building; he attended and spoke with security who pointed the Complainant out to him. He arrested the Complainant for trespassing. This evidence is confirmed by CW #1.

WO #1 described the Complainant as already having several injuries to his face and body at that time, including scars on his hands, legs, and forehead, and swelling to the left side of his face. Once the Complainant was identified as living in the building, he was released and escorted back to his apartment.

The following day, Saturday August 12th, 2017, at approximately 10:30 p.m., WO #1 was working with the SO when they were advised of an alleged sexual assault of a ten-year-old girl at that same apartment building attended by WO #1 on August 11th, and both officers attended the building on Sunday August 13th, 2017 at 12:22 a.m. and met with security to review the surveillance video. The Complainant was identified as the male in the elevator with the ten-year-old, and WO #1 and the SO decided to go and speak with the Complainant and they were escorted to his apartment by both security officers. This evidence is also corroborated by both CW #1 and CW #2.

WO #1 advised that when they knocked at the Complainant’s door, a young boy answered and then went back to fetch the Complainant. When the Complainant arrived at the door, WO #1 again observed that the left side of his face was swollen and he had a scar on his left cheek and forehead. WO #1 advised that the SO asked the Complainant to step out to discuss a sexual assault allegation, and the Complainant came out of his apartment and walked towards the hallway; he stopped and stood about 15 feet from his apartment door. Both officers told the Complainant that they had enough evidence to believe that he was the suspect in a sexual assault investigation and they were going to arrest him. The Complainant denied committing the offence and turned to go back into his apartment. WO #1 then grabbed onto the Complainant’s left arm and the SO grabbed his right arm; WO #1 then told the Complainant to turn around, but the Complainant did not appear to want to do so, and WO #1 could feel him tense his body.

WO #1 advised that he and the SO then pushed the Complainant against the wall, but the Complainant continued to resist. WO #1 held the Complainant’s left shoulder against the wall and pulled the Complainant’s left wrist behind his back, at which point the Complainant flailed his right arm backwards, towards the SO, and pushed himself away from the wall resulting in WO #1 letting go of his left arm.

Both police officers were yelling at the Complainant to stop resisting. The SO then used the Complainant’s own movement as momentum to pull him towards the opposite wall of the hallway and then swept his leg causing the Complainant to fall to the floor. Once down, the SO held the Complainant’s right shoulder towards the floor while WO #1 placed his knee on top of the Complainant’s left shoulder. The Complainant continued to resist by pulling his arms under his body. WO #1 advised that he then pulled the Complainant’s left hand behind his back and applied the handcuff, while the SO pulled the Complainant’s right arm behind his back, and then WO #1 cuffed that hand as well.

WO #1 advised that he observed the Complainant was bleeding from his face; he also heard someone yelling from inside the apartment and observed CW #1 holding the door closed. The SO then assisted the Complainant to his feet, while WO #1 opened the apartment door and told the Complainant’s family members that the Complainant had been arrested. All five parties (the Complainant, the SO, WO #1, CW #1 and CW #2) then went down in the elevator. Once in the lobby, WO #1 and the SO asked for some paper towels to wipe the blood off of the Complainant’s face. The Complainant was then placed into the police cruiser for transport. While en route, he advised the police officers that he had suffered a stroke six months ago and wanted to go to hospital to treat his injuries, which was done.

WO #1 indicated that they arrived at the hospital at 1:17 a.m. and he overheard the Complainant tell the emergency physician that he had sustained his injuries as a result of falling from the stairs. While awaiting the results of the CT scan, the Complainant told WO #1 that he became an alcoholic after he had immigrated to Canada and that he did not recall when he received his injuries. When WO #1 asked the Complainant if he was in a fight recently, the Complainant did not respond. WO #1 advised that the Complainant’s family then arrived at hospital, and the Complainant’s sister (who refused to provide a statement to SIU investigators) told WO #1 that the Complainant had left his apartment again after he was escorted home by the security officers on Friday, August 11th, 2017 and that she believed that the Complainant may have sustained his injuries as a result of a physical altercation that night.

While the sister of the Complainant did not provide a statement to SIU investigators to confirm WO #1’s evidence as to when the Complainant had received his injuries, the memorandum book notes of WO #1 provide some corroboration in that he noted the following: “she (the sister) … indicates that after security brought him (the Complainant) home on Thursday night (fri. 08 11) he left again and got jumped. Indicating some injuries, wouldn’t elaborate more”.

Fortunately we have the evidence of the two civilian witnesses, CW #1 and CW #2, who observed the entire interaction between the Complainant and WO #1 and the SO. We also have the utterance made by the Complainant to the medical staff wherein on two different occasions he indicated that he had taken a fall off some stairs, and the observations of WO #1 in the early morning hours of August 11th, 2017, wherein he observed that the Complainant already had swelling to the left side of his face and a scar to his forehead and cheek at that time.

Visible on the Complainant in the ICC video from August 13th, 2017 is a scar to his forehead and bruising to his right eye; the swelling to the left side of his face is not visible in the video, nor do there appear to be any other injuries. The injury to his right eye is, of course, consistent with the injury that the Complainant sustained to the right orbital bone and the comminuted fractures to the anterior and posterior lateral right sinus wall. WO #1 did not indicate that this injury was seen by him at the time of his interaction with the Complainant on Friday August 11th, 2017, nor does he mention seeing it when he describes the other injuries that he observed to the Complainant’s face when he came to the door on August 13th, 2017. On that basis, while I accept that the Complainant did have some injuries to his face prior to his interaction with police on August 13th, 2017, it is clear that at least some of the injury to the right side of the Complainant’s face occurred during the interaction between himself and WO #1 and the SO in the corridor outside of his apartment on August 13th, 2017. I am, however, unable to determine whether or not the actual fractures to the right side of his face were caused at that time or were pre-existing. On the basis that at least some of the injury to the right side of the Complainant’s face was caused by WO #1 and the SO, however, the question remains if the infliction of some or all of this injury was caused by an excessive use of force.

While the evidence of the Complainant that he was immediately punched in the face by both the SO and WO #1, one in each eye, as soon as he exited his apartment, and that the SO thereafter grabbed the Complainant by the back of his neck and slammed his head against the wall, and then took the Complainant to the ground and repeatedly struck him on his upper torso with his fist, if accepted, would unquestionably amount to an excessive use of force and reasonable grounds to form the belief that an offence of assault causing bodily harm had been committed against the Complainant, I am unable to accept the Complainant’s evidence as rising to the level required in order to form reasonable grounds to believe that an offence has been committed here, for the following reasons (the list is not exhaustive):

  • The entire interaction between WO #1 and the SO and the Complainant was in the presence of the two civilian witnesses, CW #1 and CW #2. The Complainant’s evidence as to what occurred is directly contradicted by both of these civilian witnesses in that neither witness, according to their statements, ever observed the Complainant struck by either of WO #1 or the SO, despite having witnessed the entire struggle between the two police officers and the Complainant;
  • Both of the civilian witnesses also contradict the Complainant in his evidence that he was handcuffed by the SO while he was still on his feet, and that it was after he had been handcuffed, that he had his face slammed into the wall and he was taken to the ground and struck repeatedly. Both CW #1 and CW #2 clearly indicated in their statements that the Complainant was only handcuffed after all three parties were down on the ground and that the entire struggle on the floor occurred only because they were still trying to handcuff the Complainant, while he continued to struggle and resist being handcuffed;
  • The Complainant indicated that he was never told by the police officers at the door that he was being arrested, while both of the civilian witnesses indicated that they heard one of the police officers telling the Complainant that he was under arrest for sexual assault. Furthermore, the ICC video from the police cruiser records an officer as saying, “Alright, It’s like we explained upstairs – okay – you are under arrest for sexual assault and sexual interference,” from which, based on the Complainant’s silence, I can infer that he was indeed told of these charges when they were still upstairs, or he would have objected to the officer’s assertion; 
  • According to the Complainant, he was fully cooperative with police and put his hands against the wall, when requested, and then placed his hands behind his back, again when requested, at which point he was handcuffed. In contrast, the evidence of the two civilian witnesses is that after the Complainant was told he was being arrested, a police officer grabbed his hand and the Complainant immediately resisted and tried to run away, and then continued to struggle and resist thereafter, despite the officers telling him numerous times to stop fighting them and to stop resisting;
  • The Complainant told the emergency room staff and doctor that he had been injured when he fell “off the stairs”. I note the Complainant repeated this on two occasions to two different medical staff, despite the fact that from the note in the medical records it appears that the police had already advised medical staff that the Complainant had been injured when he was taken to the ground; the note reads as follows: “Pt. (patient) taken down by police, but pt. states he fell down,” and later, “fell off stairs”. While the Complainant advised SIU investigators that he only lied and gave this explanation to medical personnel because he was afraid of WO #1 and the SO and he feared for his life, I note that he openly made these same allegations directly to these officers as captured on the ICC video, which would appear to contradict his statement that he was fearful. As such, I am unable to accept his explanation that he lied to the doctors and nurses because he was afraid of the two police officers, but find it more likely that he wished to get the proper medical attention so he gave the true version of events at the hospital. I further find corroboration that the version he gave to the medical staff was in fact truthful, based on the utterances of his sister to WO #1 that the Complainant had been injured on Friday August 11th when she thought he was “jumped” as he went back out after having been escorted home by security and she believed he had been involved in an altercation with unknown parties, as well as WO #1’s evidence that he had observed that the Complainant already had signs of injury when he observed him on August the 11th and finally the Complainant’s own evidence that WO #1 and the SO were not in the room when he gave this version of events to the doctor; 
  • I also find that the Complainant’s admission to medical staff, as recorded in his medical records on his second visit to hospital, that he had lied to police and told them he had vomited blood so that he would again be taken to hospital despite there being no new concerns, is harmful to his credibility in that it makes clear that the Complainant has no difficulty in lying to get what he wants; and
  • While the Complainant had a serious injury to his face, I note that he had no corresponding injuries to his torso as one would have expected had he been struck repeatedly by the SO as he alleged in his statement. Other than the injury to his right eye, the only other observable injury to the Complainant was the injury to his forehead, which WO #1 had already observed on the previous Friday, and what appears to be an abrasion like a rug burn on his left shoulder. Although the Complainant did complain of pain to his right rib area while at hospital, x-rays indicated his ribs were not injured. In the triage notes, under ‘Chief Complaint’ is listed “facial trauma”; under additional findings, where there is a space for “lacerations, abrasions, contusions” etc. with a drawing of the human body in order that the nurse can indicate where on the body the injuries are, the drawing is blank and under additional findings is listed “none”.

On the basis of these inconsistencies, among others, I am unable to accept the evidence of the Complainant about his interaction with the police or his account as to how he was injured. While it is clear that the Complainant was bleeding, either from his nose or his mouth (he is no longer bleeding on the ICC video), following his interaction with police, I am unable to determine, based on the various contradictions in the evidence, whether or not the injury to the Complainant’s eye was caused during the interaction with police, or was pre-existing and simply exacerbated by his contact with the police.

If the Complainant’s injuries were caused by police during their interaction, however, I accept that it is most likely that the Complainant was injured when he was taken to the ground wherein he was observed by CW #2 to land on the floor and strike his face. It was only after this had occurred that the Complainant was seen to be bleeding, although it appears that his facial injury is unrelated to the bleeding from either his nose or his mouth, as the eye injury did not bleed.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the statement of the child in the sexual assault allegation and from the surveillance video from the elevator and hallway at the apartment building on the date and time when the child alleges she was sexually assaulted, that police had reasonable grounds to believe that the Complainant had committed the offences of sexual assault and sexual interference contrary to sections 271 and 151 of the Criminal Code respectively. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO and WO #1 in their attempts to subdue and handcuff the Complainant, I find that their behaviour was justified in the circumstances and that they used no more force than necessary to gain control of the Complainant in order to handcuff him.

I accept the evidence of CW #1 and CW #2 that the police officers advised the Complainant that they were placing him under arrest and then grabbed his arm in order to take control of him and place him in handcuffs. I further accept that the Complainant immediately began to resist and tried to pull away and run off; that he continued to struggle after the police officers put him up against the wall in order to handcuff him; and that the SO took the Complainant to the floor where he landed face first and struck his face, likely causing his injury, if the injury was indeed as a result of his interaction with police and not pre-existing.

On the basis of the Complainant’s own admission as to his heavy alcohol consumption and the utterances of his sister that the Complainant had gone out on the Thursday evening and possibly been “jumped” by someone, and thereby sustained his injuries, I have no difficulty accepting that it is very possible that the Complainant may not have been aware as to when or how he sustained his injuries, but attributed them to his interaction with police.

On all of the evidence, it is clear that the SO and WO #1 attended the residence of the Complainant in order to investigate an allegation of sexual assault and that they had reasonable grounds to place the Complainant under arrest. Once the Complainant began to struggle, police were acting lawfully when they used only as much force as necessary to gain control of the Complainant and place him in handcuffs.

On the evidence of CW #1 and CW #2, which fully confirms the statement of WO #1, I accept that the Complainant was resistant throughout and that the actions of the SO and WO #1 progressed in proportion to the Complainant’s resistance, and that as soon as the Complainant was in handcuffs, the police officers assisted him to his feet and escorted him to the police vehicle.

I accept on the evidence of CW #1 and CW #2 that no blows were ever struck by either of the SO or WO #1 and that the Complainant was only taken to the ground because of his continual resistance and combative behaviour, and in order to place him in handcuffs and to end the struggle between him and the police officers.

Furthermore, if the Complainant received his facial injury during his interaction with police, which I am unable to determine on this evidence, I find that pursuant to section 25(1) of the Criminal Code, the officers involved used no more force than was reasonably necessary in the execution of their lawful duties. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows:
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.

In the final analysis, relying primarily on the evidence of the two civilian witnesses, which fully support the evidence of WO #1, and contradict the allegations of the Complainant, I am unable to find that the evidence available in this matter is sufficient to satisfy me that there are reasonable grounds to believe that a criminal offence has been committed by either of the SO or WO #1 in their dealings with the Complainant and no charges will issue.


Date: April 9, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit