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SIU Director’s Report - Case # 17-TCI-311

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 a serious injury sustained by a 24-year-old male on October 23, 2017.

The Investigation

Notification of the SIU

The SIU was notified of the incident by a member of the Toronto Police Service (TPS) on October 27, 2017 who advised of an injury suffered by the 24-year-old Complainant during his arrest on October 23, 2017.

The TPS member reported that members of the TPS Emergency Task Force (ETF) conducted a dynamic entry into a North York residence on Monday, October 23, 2017, at 11:26 p.m. The ETF was executing a Controlled Drugs and Substances Act warrant at the address. The Complainant was taken to the floor and received a broken nose. He was later taken to Humber River Hospital (HRH) for treatment.

The TPS member explained that the late reporting of this matter was the result of a breakdown in communication. Originally, the Complainant was thought to only have a bloody nose. When the TPS member learned that the Complainant had suffered a fractured nose, he notified the SIU.

The Team

Number of SIU Investigators assigned: 7
 
On October 30, 2017, two SIU investigators interviewed the Complainant and obtained from him a signed consent for the release of his medical records.

Witness Officer (WO) designations were issued and the SIU initially interviewed all member of the TPS Toronto Drug Squad (TDS), in an attempt to identify any potential Subject Officer(s) (SO). That exercise proved fruitless. 

The SIU then began interviews of ETF members who appeared to have been engaged in the incident but were not involved with the Complainant. The ETF interviews were organized from the least involved ETF member (based on their duty notes) inward toward ETF members that might have caused the injury. Ultimately, the SIU interviewed almost every police officer who was involved in this incident. A SO was not identified in the course of this investigation, as the SIU could not identify the officer who caused the Complainant’s injury.

Several members of the Complainant’s family were present in the residence when the ETF entered the residence. They told the SIU that they were unable to see the Complainant because the police were pointing guns at them and yelling at them. They did not see what happened to the Complainant.

Several individuals were found in the garage at the rear of the residence during the warrant execution. They were not interviewed, as they did not enter the residence and could not have observed what transpired inside the residence.

Complainant:

24-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 Not interviewed, but notes received and reviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed
WO #11 Interviewed
WO #12 Interviewed
WO #13 Interviewed
WO #14 Interviewed
WO #15 Not interviewed, but notes received and reviewed
WO #16 Interviewed
WO #17 Interviewed
WO #18 Interviewed
WO #19 Interviewed
WO #20 Interviewed
WO #21 Interviewed
WO #22 Interviewed
WO #23 Interviewed
WO #24 Interviewed
WO #25 Interviewed
WO #26 Not interviewed, but notes received and reviewed
WO #27 Interviewed
WO #28 Interviewed
WO #29 Interviewed
WO #30 Not interviewed, but notes received and reviewed
WO #31 Not interviewed, but notes received and reviewed
WO #32 Not interviewed, but notes received and reviewed
WO #33 Not interviewed, but notes received and reviewed
WO #34 Not interviewed, but notes received and reviewed
WO #35 Not interviewed, but notes received and reviewed
WO #36 Not interviewed, but notes received and reviewed

The notes of every WO were reviewed. WO #3 and WO #15’s participation in this incident were described by other ETF members, and their notes did not suggest any contact with the Complainant. Therefore, they were not interviewed. WO #26 is a Police Dog Service dog handler and he did not enter the residence. Several other police officers were involved in the Complainant’s custody after he was taken to the hospital. They were not interviewed.


Incident Narrative

On October 23, 2017, at approximately 11:19 p.m., the TPS ETF and TDS executed a search warrant on the Complainant’s residence in Toronto. Several TPS officers wearing similar uniforms entered the residence and deployed a distraction device. The Complainant was found in a hallway and ordered to the floor while the residence was contained by the TPS officers. He complied and laid on his stomach as directed until he was handcuffed.

The Complainant had injuries to the left side of his face and was taken by ambulance to HRH where he was diagnosed with multiple fractures to his nose. It is alleged that the injuries were caused by an unknown TPS officer who kicked the Complainant in the left side of his face while he was laying compliantly on the ground.

Evidence

The Scene

The Complainant’s residence is a small bungalow with a raised step at the front entrance. The driveway is at the left side of the residence, and from the driveway there is a side door through which one can enter the residence and proceed either up to the main floor, or down to the basement. At the end of the driveway there is a garage, detached from the main residence.

Upon entering the residence through the front door, there is a short hallway, approximately two metres long. Once through the short hallway, to the right is a living room, and directly ahead is the kitchen. Continuing through the small kitchen, there is a small step to the right and then a hallway leading back to the bedrooms at the rear of the house. The rear hallway is perhaps four metres long. Immediately upon entering the hallway, along the left wall there is an access door to the basement and then the bathroom door. On the right side of the hallway there is one bedroom and at the end of the hallway are two more bedrooms.

Just inside the main entranceway of the residence, there was soot and broken tile on the floor of the hallway, consistent with a distraction device having been deployed into the front hallway.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Booking Photo of the Complainant;
  • TDS Briefing Sheet regarding the Complainant;
  • The radio and telephone communication recordings related to the matter;
  • A summary of the communications recordings;
  • E-mails sent by WO #1 regarding the incident;
  • Event Details Report;
  • General Occurrence Report;
  • Information sheets regarding the individuals found in the residence and in the garage at the rear of the house;
  • A video recording of the inside of the residence, created by WO #20 following the search of the residence;
  • The Unit Histories and Narrative Message Reports for several police units;
  • A list of Involved Officers; and
  • The notebook entries of all witness officers.

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 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.

Analysis and Director's Decision

On October 23, 2017, the Toronto Police Service (TPS) Emergency Task Force (ETF) and Toronto Drug Squad (TDS) executed a search warrant on the Complainant’s residence. The Complainant, a university student, was the target of the warrant. The Complainant was found in a hallway and ordered to get on the ground. After complying with the demand, it is alleged that the Complainant was kicked in the face by an unknown officer resulting in a fractured nose. The allegation appears credible and the complainant’s injury is otherwise unexplained. Nevertheless, no witness was able to identify the person responsible for the Complainant’s injury. Thus, although I have grounds to believe that a criminal offence was committed in this case, I unfortunately am unable to identify the specific officer who committed the impugned act and therefore no charges will be laid.

The SIU’s investigation consisted, in part, of interviews with the complainant, three Civilian Witnesses (CWs) and 26 Witness Officers (WOs). From a careful review of this evidence, the circumstances surrounding the Complainant’s arrest are predominately clear with the exception of who caused the Complainant’s injury.

The Complainant is alleged to have sold an undercover police officer narcotics and the TDS obtained a Controlled Drugs and Substances Act search warrant to search his residence. The Complainant also offered to obtain and sell a firearm to the officer and as a result the TDS enlisted the help of the ETF to execute the warrant. The plan was for ETF officers to first enter and contain the residence and then for TDS officers to enter the residence to complete their investigation. On October 23, 2017, at approximately 11:19 p.m., a line-up of ETF officers entered the residence through an unlocked door, flooding the house with uniformed police officers – most wearing balaclavas. The ETF officers loudly announced their presence and deployed a distraction device. Several ETF members entered the living room and kitchen to attend to members of the Complainant’s family. Other ETF and TDS officers, who were outside, attended to four men in a detached garage at the end of the driveway.

The Complainant and his uncle, CW #3, were in separate bedrooms abutting a narrow hallway and both entered the hallway. WO #2 and WO #4 saw the men and directed them to get on the ground. Both men got on the ground and lay on their stomachs without issue. The Complainant was positioned in the hallway, with his head toward the front door, and CW #3 was positioned partially in the hallway and partially in a bedroom, with his head near the Complainant’s head. The men were ordered to stay where they were and WO #4, WO #5, WO #7 and WO #9 stepped over them to clear the rooms at the end of the hall. WO #10, WO #11 and WO #12 also entered the hallway to breach an access door to the basement. The Complainant and CW #3 were eventually handcuffed and CW #3 was moved into a bedroom because he was too close to the basement door. Members of the TDS entered the residence to complete the search and WO #17 took custody of the Complainant. At that point he observed that the Complainant had cuts to his left eye and nose, swelling under his left eye and a bloody nose. He told WO #17 that he had been kicked in the face during the execution of the search warrant. The Complainant was later taken to Humber River Hospital where he was diagnosed with multiple fractures to his nose.

It is alleged that the Complainant’s injuries were caused when an officer kicked the Complainant on the left side of his face, in the cheek area, while he was on the ground. In my opinion, the Complainant is both a credible and reliable witness. Both WO #17 and the SIU investigator who interviewed the Complainant thought he was telling the truth and the allegation has remained consistent throughout. The Complainant’s injury is otherwise unexplained. None of the witness officers described using any kind of force on the Complainant although some officers volunteered alternative causes to the Complainant’s injury. Some stated he could have hit his face or the wall when he went to the floor although there is no evidence substantiating this. Others said their feet may have inadvertently contacted the Complainant when they stepped over him in the hallway, although none of these officers purported to have caused the injury. I do not believe the Complainant’s injury was caused accidentally because an officer who accidentally contacted the Complainant with enough force to fracture his nose would almost certainly have remembered doing so. It seems more likely that the injury was caused by an officer kicking the Complainant as he alleges, and that the officer did not disclose the kick because it was intentional. 

In these circumstances, the only criminal offence that could apply is one of assault causing bodily harm contrary to s. 267(b) of the Criminal Code. Assault causing bodily harm is made out where a person intentionally applies force to another person, without the consent of that person, and that force causes bodily harm. Section 25(1) of the Criminal Code provides a defence for police officers who use force that is reasonably necessary in the execution of their lawful duties. While the officers were acting within the course of their lawful duties during the execution of a search warrant, I am unable to conclude that the force used against the Complainant was reasonable or necessary. There is no question that the Complainant was laying as directed on the ground when he was kicked in the face. There is no evidence establishing a kick to the face was necessary and, in fact, all of the evidence suggests that the Complainant was not a threat. He was co-operative and the ETF officers felt comfortable enough that they left him in the hallway, without handcuffs, while they cleared the remainder of the bedrooms (strongly suggesting to me that none of the officers saw him as a threat). I have considered the jurisprudence which states that police officers are not held to the standard of perfection in the execution of their duties (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are they expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). In this case however, I do not believe that the force used fell within those parameters. Here, I believe that the force was unnecessary, excessive and amounted to an assault.

Nonetheless, although I have ground to believe that some officer committed a criminal offence, I am unable to identify the specific officer who committed the impugned act. Despite exhaustive efforts, the SIU was unable to identify the police officer responsible for kicking the Complainant and no subject officer was ever designated. The allegation did not include any distinctive features of the officer, which is not surprising considering the almost identical uniforms and face coverings that most officers wore, and no one else purported to have seen the assault. In some circumstances, a unique opportunity to commit an offence can be powerful circumstantial evidence establishing identity, but in this case several officers were present and had the opportunity to assault the Complainant as he alleges. [1] Further, there appears no explainable motive for any officer to have kicked the Complainant although the Complainant felt that he was kicked because he had moved his head or was not facing the wall after he had heard someone yelling, “Look away, don’t look at anything.” [2] There is accordingly insufficient identification evidence to form reasonable grounds against any particular officer and thus no charges will issue.


Date: September 18, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) At most, I am able to narrow the pool of potential officers, who could have committed the assault, to eight based on evidence about the timing of the Complainant’s injuries. WO #1 noticed the Complainant’s injury as he handcuffed him and I believe that the Complainant was assaulted prior to being taken into custody. Before this, WO #4, WO #5, WO #7 and WO #9 stepped over the Complainant to clear the rooms in the hallway and WO #10, WO #11 and WO #12 also entered the hallway to breach the door to the basement. WO #14 also entered the hallway at some point. [Back to text]
  • 2) Multiple ETF officers told the SIU that individuals might be told to look away or look at the wall for multiple reasons: to prevent communication among detained persons, to prevent positional asphyxiation, to prevent learning about confidential police techniques and to prevent the forming of a plan of attack. This detail provided to the SIU corroborates the Complainant’s truthfulness as it is very unlikely that he could have described an ETF practice that was unknown to him unless he heard what he said he did. [Back to text]