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SIU Director’s Report - Case # 20-TCI-107

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 the injuries that a 75-year-old woman (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On May 10, 2020, at 11:21 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

The TPS reported that on May 10, 2020, at 5:20 a.m., the TPS Emergency Task Force (ETF) and the Guns and Gangs Task Force (GGTF) executed a search warrant at the Complainant’s home on Shady Pine Circle, Brampton. A distraction device (DD) was deployed in the entry, which caused the Complainant to fall out of bed and hurt her arm. She was taken to the Brampton Civic Hospital (BCH) and diagnosed with a fractured ulna and radius of the left wrist.

The scene had been cleared and released, but photographs were taken. 

The Team

Number of SIU Investigators assigned: 3

Complainant:

75-year-old female interviewed, medical records obtained and reviewed


Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary
WO #9 Interviewed
WO #10 Notes reviewed, interview deemed not necessary
WO #11 Notes reviewed, interview deemed not necessary
WO #12 Notes reviewed, interview deemed not necessary
WO #13 Notes reviewed, interview deemed not necessary


Subject Officers

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


Evidence

The Scene

The search took place in a two-story detached home located on Shady Pine Circle, Brampton. As the SIU was notified sometime after the incident and the scene was not secured, there was no scene for examination. The photographs taken by TPS police officers were released to the SIU.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Police Communications Recordings

At about 5:28 a.m., a transmission is recorded noting the anticipated execution of a search warrant.

At 7:59 a.m., a transmission from WO #4 is recorded advising “all clear”.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • General Occurrence Report;
  • Intergraph Computer-assisted Dispatch (CAD) Event Details Report;
  • Notes-All WOs;
  • Sealing Order and Search Warrant-the Complainant’s house on Shady Pine Circle;
  • TPS scene photos;
  • Communications recordings;
  • TPS Document-ETF Entry Team; and
  • TPS Document-G and G Team.

Materials obtained from Other Sources

In addition to the materials received from the TPS, the SIU obtained and reviewed the following materials from other sources:
  • Medical records-BCH; and
  • Incident Summary Reports and Ambulance Call Report from Toronto Emergency Medical Services (TEMS).

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant and her son – the CW – who was present at the time, and members of the ETF and GGTF involved in the execution of the search warrant. As was his legal right, the SO declined to interview with the SIU or authorize the release of his notes.

At approximately 6:30 a.m. on May 10, 2020, ETF officers conducted a dynamic entry into a two-story house on Shady Pine Circle, Brampton. The ETF was there to assist a GGTF team, which had secured a search warrant for the address in search of an illegal firearm. The intention was to have the ETF enter the home first and address any safety concerns ahead of the GGTF members entering the residence to search for evidence.

The ETF gathered outside the home and then forcefully breached the front door, the SO deploying a distraction device as the officers entered through the door. Once inside, various ETF officers went to different areas of the home in search of residents. The subject of the illegal firearm investigation was located on the second floor and arrested. A subsequent search of the home resulted in the seizure of a firearm.

The Complainant was present inside the home at the time of the ETF entry. The Complainant made her way to the staircase. Some of the ETF officers had to move past her to get to the second floor. Another of the team members, WO #5, arrived at the Complainant’s location and escorted her to the main floor, where she was seated at the dining room table.

Once in the dining room, the Complainant complained of pain in her left wrist. With the assistance of an officer who could speak the Complainant’s language, she indicated that her injury occurred as she was startled by the officers’ entry and distraction device, and fell to the floor. After initially refusing to be taken to the hospital, the Complainant was taken by paramedics to BCH, where her injuries were diagnosed.

Relevant Legislation

Section 219, Criminal Code -- Criminal negligence

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

Section 221, Criminal Code -- Criminal negligence causing bodily harm

221 Every person who by criminal negligence causes bodily harm to another person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.

Analysis and Director's Decision

On May 10, 2020, the Complainant suffered a fractured ulna and radius of the left wrist in and around the time that TPS ETF officers entered her home on the strength of a search warrant. A member of the ETF – the SO – was identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injuries.

The only offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. Liability for the crime is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, I am satisfied on reasonable grounds that neither the ETF nor, more specifically, the SO, transgressed the limits of care prescribed by the criminal law.

The first thing to note is that the officers had a facially valid warrant authorizing their entry into the premises to conduct a search. At least at the outset, therefore, their presence per se in the home seems lawful. The issue quickly turns to a consideration of the manner in which they entered the home.

The ETF was brought in to assist the GGTF with the warrant by performing a dynamic entry into the home. As Code J. described it in R. v. Thompson, 2010 ONSC 2862 at para. 7, a dynamic entry will typically be conducted by a tactical team and include the following features: “[N]o prior notice or announcement is made to the occupants of the home; a battering ram is used to break open the door, without first trying the door handle to see if it is open; an explosive device is then deployed inside the house that makes a very loud noise and emits a bright light (known as a “distraction device” or “flash bang”); heavily armed tactical officers then enter and secure the premises by way of pointing firearms at the occupants, ordering them to lie on the floor, handcuffing them and then removing them from the house in police custody; the searching officers then enter the premises and the tactical squad departs.” The goal is to neutralize any threats posed by the occupants of the home to the safety of the officers or the possible destruction of evidence within the home via the element of surprise and an overwhelming show of force.

In my view, the dynamic entry was justified by a legitimate concern for officer safety presented by the reasonable prospect of an illegal firearm in the home. [1] Indeed, an illegal firearm was the very subject matter of the search warrant. Moreover, it would not appear that the officers were unduly aggressive in the manner in which they moved through the home after they entered through the front door. In fact, upon noticing an elderly woman frightened and confused at the top of the stairs, efforts were made to escort her carefully to the main floor where officers inquired about her well-being.

It should be noted that during the SIU’s investigation, the SIU uncovered evidence that the Complainant did not injure herself when the distraction device was deployed; rather, she was on the staircase when she suddenly fell, picked herself up, and found her left arm unable to bear any weight. In the circumstances, it is not at all clear how exactly the Complainant suffered her injuries, or whether the dynamic entry by the police officers can be said to have caused them.

Be that as it may, even assuming the Complainant was startled and fell to the floor as a result of the distraction device’s deployment, I am unable to reasonably conclude that the officers acted with wanton or reckless disregard for the lives and safety of persons inside the home in the course of their entry. To reiterate, the evidence suggests that a resort to a dynamic entry was reasonable given the real possibility of the suspect of the police investigation being present inside the home with an illegal firearm. Nor is there any evidence to establish that the officers in any way manhandled the Complainant. In the final analysis, while the Complainant’s injuries may well have been tied to the trauma and confusion incited by the deployment of the distraction device, there is insufficient evidence to reasonably believe that the officers’ conduct in the course of the dynamic entry, including the SO’s use of the device, deviated markedly and substantially from a reasonable level of care.

For the foregoing reasons, there is no basis for proceeding with criminal charges against the Complainant, and the file is closed.


Date: November 9, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Even with a valid warrant, police officers cannot, as a general rule and absent exigent circumstances, lawfully enter a home without first knocking or making their presence at the front door clear to the occupants inside, announcing their status as police officers, and giving indication of their lawful purpose: R. v. Cornell, [2010] 2 SCR 142. Within this framework, the issue is whether the police had reasonable grounds for concern to justify a dynamic entry. For the reasons set out in this decision, I conclude they did. [Back to text]