Director's Report Details

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.

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.

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 23-year-old man (the Complainant) during his arrest on September 29, 2017.

Notification of the SIU

At approximately 1:20 p.m. on September 30, 2017, the York Regional Police (YRP) notified the SIU of the Complainant’s custody injury.

The YRP reported that on September 29, 2017 at 8:45 p.m., the Complainant and Civilian Witness (CW) #1 were arrested operating a stolen motor vehicle in the area of the Vaughan Mills Mall in the City of Vaughan. YRP officers had been searching for the pair in relation to arrest warrants that had been issued by the Niagara Regional Police Service (NRPS). At the time of his arrest, the Complainant struggled with the officers and had to be forcefully removed from the vehicle and taken to the ground. Emergency Medical Services (EMS) were contacted and the Complainant was transported to the hospital, where he was cleared medically. The Complainant was then transferred into the custody of the NRPS.

While in the custody of the NRPS, the Complainant complained of suffering from a sore face. He was subsequently taken to the hospital where he was diagnosed as having a fractured jaw and orbital bone.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

SIU investigators interviewed the Complainant at the Detention Centre. The Complainant consented to the release of his medical records and his visible injuries were photographed by the SIU FI.

The SIU FI also attended at the Vaughan Mills Mall and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, and measurements.

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

WO #5 Interviewed, notes received and reviewed

WO #6 Interviewed, notes received and reviewed

WO #7 Notes reviewed, interview deemed not necessary

WO #7 was not interviewed as his notes indicated he was not directly involved in the arrest of the Complainant.

Subject Officers

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

On May 24, 2017, the Complainant was released on bail by a Justice of the Peace to appear in Court in St. Catharines on July 27, 2017. The Complainant failed to appear in Court and a warrant was issued for his arrest.

During the weeks following, the Complainant, along with CW #1, on the pretext of wanting to purchase vehicles advertised on the Kijiji website, sourced and stole a variety of vehicles. They used the stolen vehicles during a crime spree in the NRPS area and throughout Southern Ontario from July to September of 2017.

On September 21, 2017, the Complainant and CW #1 were involved in an incident in Kitchener Ontario in which a female Waterloo Regional Police Service (WRPS) officer, who attempted to arrest the pair for theft, was assaulted. In that incident, the Complainant and CW #1 were operating a stolen grey Nissan Sentra. They were pursued by WRPS police officers but, the pursuit was terminated due to the risk to the public. Later on September 21, 2017, the NRPS encountered the Complainant in the stolen Nissan Sentra in the Town of Pelham, and he again fled from police.

On September 26, 2017, following a report of the aggressive driving of a red Chevy Cobalt in the Town of Lincoln, the Ontario Provincial Police (OPP) also pursued the Complainant. The pursuit was once again terminated for safety reasons. Following the termination of the pursuit, the OPP issued a ‘be on the lookout for’ (BOLO) warning in respect of the red Cobalt which was a stolen vehicle.

The NRPS became aware of the BOLO for the stolen red Cobalt and, being familiar with the modus operandi (MO) of the Complainant and CW #1, commenced a search for the vehicle in the area of the Town of Niagara-on-the-Lake.

At approximately 1:40 p.m., on September 26, 2017, members of the NRPS Street Crime Unit (SCU) came upon the stolen Cobalt in the parking lot of the Valu-Mart store in the Community of Virgil, Ontario. The SCU members, who were operating unmarked vehicles, attempted to arrest the Complainant and CW #1 by blocking their vehicle to prevent an escape. The SCU, while in plainclothes, were all wearing police identifier vests. The Complainant was called upon to get out of the stolen Cobalt and both he and CW #1 were told they were under arrest. The Complainant refused to comply with the commands and, using the stolen Cobalt, rammed three of the SCU unmarked vehicles and two civilian vehicles, and made good his escape.

CW#1 and the SCU team from NRPS were then tasked with locating the Complainant and CW #1. The NRPS issued a media release seeking the assistance of the media and the public. The media release noted that the Complainant and CW #1 were considered to be a risk to public safety and should not be approached.

On September 28, 2017, Witness Officer (WO) #1 spoke with the Complainant’s mother and advised her to have the Complainant turn himself in.

On September 29, 2017, WO #1 applied for a warrant from the Ontario Court of Justice in St. Catharines to track the Complainant’s cell phone number in order to try and locate him. Having been issued the warrant, WO #1 was able to determine that the Complainant was in the area of the Vaughan Mills Mall, in the City of Vaughan.

WO #1 contacted the York Regional Police (YRP) Property Crime Unit (PCU) and apprised them of the situation regarding the Complainant and CW #1. In addition, WO #1 gave the PCU details of the incidents which had occurred in Kitchener on September 21 and in Virgil on September 26, 2017. He provided the PCU with a copy of the NRPS media release, which contained photographs of both parties, and gave them details of a stolen Chevrolet Impala, which the pair were believed to be driving at that time. WO #1 also regularly provided the PCU with updated locations for the Complainant’s cell phone.

At approximately 8:40 p.m. on September 29, 2017, the PCU attended at the Vaughan Mills Mall and commenced a search for the Complainant and CW #1 inside the mall and in the associated parking lots. While scanning the parking lots, the SO located the stolen Impala with the Complainant and CW #1 seated inside. The PCU then carried out covert surveillance on the Impala, as it moved from its original position to the parking area of the Toys “R” Us store, where the Complainant parked the Impala close to the store doors and he and CW #1 and entered the store.

WO #2 formulated a plan to arrest the Complainant and CW #1. Since the police were aware of the previous incident wherein the Complainant had rammed a number of the NRPS unmarked vehicles, for the safety of his team and members of the public, WO #2 planned to arrest them as they returned to the car, but before they were able to get back into the car.

WO #2 had the PCU members position their unmarked vehicles strategically near the stolen Impala. The SO, who was driving an unmarked pick-up truck, was tasked with placing his vehicle bumper to bumper with the Impala to prevent it moving in the event that the Complainant succeeded in re-entering the car. Other members of the PCU team were tasked with physically arresting the Complainant and CW #1.

When the Complainant and CW #1 exited the Toys “R” Us store and approached the stolen Impala, WO #2 gave the take down order. CW #1 was arrested by WO #5 as she approached the passenger door of the Impala, but the Complainant, upon seeing the police officers approach, ran and succeeded in getting into the driver’s seat of the Impala. The Subject Officer (SO) then placed his pick-up truck against the front bumper of the Impala while WO #3 and WO #2 attempted to arrest the Complainant and remove him from the vehicle. WO #3 and WO #2 were joined by WO #4 and the SO, who were unable to assist as their access to the driver’s side of the Impala was blocked by the open driver’s door.

The Complainant was seen trying to put the key into the ignition and WO #3 told him to stop and that he was under arrest. The Complainant did not comply, but continued to try and start the car. WO #3 then delivered a number of punches to the Complainant’s head and shoulder areas to try and prevent his driving off, to no effect.

WO #3 and WO #2 then succeeded in pulling the Complainant from the car and onto the ground, where he continued to resist the police officers and, as they tried to subdue him, his continuing struggle propelled him along the ground towards the rear of the Impala. WO #4 and the SO then joined WO #3 and WO #2 in attempting to restrain the Complainant at the rear of the Impala. WO #4 delivered some knee strikes to the Complainant’s right thigh and buttock areas, but these strikes also appeared to have no effect.

The Complainant overcame the efforts of the four police officers to physically restrain him and succeeded in getting back onto his feet. The SO then grabbed the Complainant in a bear hug and forced him back to the ground, while the Complainant continued to struggle and kick out at the police officers. The Complainant was eventually restrained and handcuffed, with his hands behind his back.

When he was taken from the ground, the Complainant was bleeding from his face and the Emergency Medical Services (EMS) were called and the Complainant was transported to the hospital.

Nature of Injuries / Treatment

The Complainant’s medical records indicate that the Complainant sustained a non-displaced fracture of the left eye orbital bone and non-displaced nasal bone fractures.

On September 30, 2017, the Complainant was discharged from the hospital and transported to the NRPS station in the City of Niagara Falls. At 7:20 a.m., the Complainant was again taken to the hospital where further tests were conducted. The hospital triage records indicate that further examination of the Complainant’s facial injuries had been requested.

The examination revealed the Complainant had also sustained a non-displaced fracture to his left zygoma (cheekbone) and a comminuted fracture of his left mandibular angle/ramus (jawbone).

The Scene

The scene was initially described by the Complainant as having been in the Vaughan Mills Mall parking lot outside the Bass Pro Store. The investigation, however, established that the actual scene was in the parking lot outside the Toys “R” Us store a short distance away.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Closed Circuit Television (CCTV) Footage from the Valu-Mart in Virgil

This footage was found to be of poor quality resulting in an inability to identify either persons or vehicles in the video, with the exception of CW #1. This CCTV footage is consistent with the accounts of the events as described by the Complainant, CW #1, and WO #1.

CCTV Footage from the Vaughan Mills Mall

The arrest of the Complainant and CW #1 was captured on the Vaughan Mills Mall security cameras. The footage was captured on a camera which scanned the parking lot north of the Toys “R” Us store. It is apparent that the camera system operator was aware the YRP were interested in the area outside the store as the camera was taken off scan mode and remained focused on the area outside the Toys “R” Us store. The account of the events as given by the Complainant, CW #1, and the various witness police officers, is consistent with the CCTV footage.

YRP Police Cruiser In-Car Camera System (ICCS) Footage

A number of YRP police cruisers attended the scene in the parking lot immediately following the arrests of the Complainant and CW #1, with their ICCS activated and recording. The footage is unfortunately of little significance other than it shows that all the PCU members involved in the arrests were wearing vests/jackets with the words “Police” in white lettering across the front and back.

Communications Recordings

YRP Radio Communications

The recording reveals the members of the PCU discussing the sighting of the Complainant and CW #1 in the stolen Chevrolet Impala and their subsequent entry into the Toys “R” Us store.

WO #2 then expresses his fears for the safety of the public and police officers if the Complainant and CW #1 gain access to the stolen Impala upon leaving the store. He outlines, on a number of occasions, the importance of them not gaining access to the stolen Impala and assigns tasks to each member of the PCU.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the three involved police services, the NRPS, the YRP, and the OPP:

• Crown Brief Synopsis
• Event Details Report
• General Occurrence Reports (x4)
• Notes of WO #s 1-5 and 7
• Written Statement from WO #6
• Police Radio Transmission Recordings
• YRP ICC recordings
• NRPS Media Releases (x4)
• Occurrence Details Reports (x3)
• Procedure: Use of Force
• Procedure: Processing the Offender, and
• YRP Call History

Materials received from other sources:

• The Complainant’s medical records

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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 333.1, Criminal Code – Motor Vehicle Theft

333.1 (1) Everyone who commits theft is, if the property stolen is a motor vehicle, guilty of an offence and liable

1. on proceedings by way of indictment, to imprisonment for a term of not more than 10 years, and to a minimum punishment of imprisonment for a term of six months in the case of a third or subsequent offence under this subsection; or
2. on summary conviction, to imprisonment for a term of not more than 18 months.

Section 354(1), Criminal Code - Possession of property obtained by crime

354 (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from

1. the commission in Canada of an offence punishable by indictment; or
2. an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment

On September 29, 2017, the Niagara Regional Police Service (NRPS) tracked the Complainant and Civilian Witness (CW) #1 to the Vaughan Mills Mall in the City of Vaughan, and advised the York Regional Police (YRP) Property Crime Unit (PCU) of their location. Various police services had been attempting to locate and arrest the Complainant and CW #1 for some time on various outstanding arrest warrants for criminal offences spanning over a time frame from July to September 2017, including failing to appear in court when required to do so, and stealing motor vehicles, in a number of different jurisdictions, from persons advertising their cars for sale on the Kijiji website.

A previous attempt to apprehend these two parties by the NRPS had been unsuccessful with the pair ramming a number of vehicles, both police and civilian, in their successful bid to escape. Previous vehicular pursuits of the Complainant and CW #1 by the Waterloo Regional Police Service (WRPS) and the Ontario Provincial Police (OPP), on a number of different occasions, had also been unsuccessful, with the pursuits being terminated by the police on grounds of public safety on each occasion.

On September 29, 2017, the pair were located by the NRPS and subsequently arrested by the YRP. During the course of the arrest, the Complainant sustained a non-displaced fracture of the left eye orbital bone, non-displaced nasal bone fractures, a non-displaced fracture of his left zygoma (cheekbone), and a comminuted fracture of his left mandibular angle/ramus (jawbone).

It is alleged by the Complainant that in arresting and removing him from the motor vehicle in which he was seated, the police, in reaching in to forcefully remove him from the car, were reaching into the car and swinging their arms. These actions did not cause any pain and the Complainant could not differentiate between whether the officers were actually hitting him or just trying to grab his shirt. Once outside of the car, it is alleged that he was thrown to the ground, landing face first, which was the first point at which he felt any pain. Thereafter, he could feel one knee in his back, in the area of his shoulder blades, and a foot on the back of his knee, while he was being arrested and his hands were being handcuffed behind his back.

It is alleged by CW #1 that while she was attempting to enter the motor vehicle, she was grabbed around her waist and thrown to the ground in a football type tackle, with the officer landing on top of her. While she was on the ground, an officer had his knee in her back and she was handcuffed and advised that she was under arrest. CW #1 suffered no serious injuries, although she did sustain bruising, scrapes and cuts on her body, and a lump over her right eye, for which she did not receive any medical treatment.

At no time do either the Complainant or CW #1 allege that any officer punched, kicked, or otherwise struck them, other than the previously mentioned swinging of arms as against the Complainant, which caused him no pain. Nor were any use of force options deployed against either party.

The Complainant at no time alleged that the police officers, in arresting him, resorted to an excessive use of force, instead qualifying their actions as, “They had me under arrest and they had to do what they had to do, I guess.” Despite that, however, as the Complainant did sustain a serious injury in the course of his arrest, the matter still requires an assessment as to whether or not an excessive use of force was resorted to by the police during the arrest.

During the course of this investigation, one CW, in addition to the Complainant and CW #1, and six police witnesses, were interviewed, with the SO declining to provide a statement or his memo book notes, as was his legal right. Additionally, SIU investigators had access to the memorandum book notes of the WOs, CCTV footage from the Vaughan Mills Mall, the ICCS footage from the involved police cruisers, the police radio transmissions recording and the CCTV footage from the previous attempt to arrest the two parties in Virgil, Ontario. As a result, there is no dispute as to the facts.

Initially, the NRPS, and then the Property Crime Unit (PCU) of the YRP, were tasked with locating and apprehending the Complainant and CW #1. The pair were considered to be ‘a risk to public safety’ and a media release was issued in that regard, including photographs of the two parties.

The NRPS made the YRP aware that the Complainant and CW #1 had been involved in several police pursuits, were alleged to have assaulted a police officer during one attempted arrest, and had rammed police vehicles, on another occasion, and a Niagara Parks Constable’s vehicle, on another, in order to make good on their escape.

On the occasion upon which the NRPS had blocked in the Complainant and CW #1 in a stolen motor vehicle in a parking lot in Virgil, Ontario, a police officer had been caught between the stolen car and a second motor vehicle, as the Complainant rammed the cars to ensure his escape. On that occasion, the trapped police officer, fearing for his safety, had drawn his firearm, but no shots were ever fired and the pair in the stolen car were allowed to leave the area without the police engaging in a pursuit, for public safety reasons.

Prior to the YRP engaging with the Complainant and CW #1, they were advised by the NRPS that it was believed that the two would go to great lengths to evade police and their arrest. The YRP was made aware that as of September 29, 2017, the Complainant and CW #1 had already been involved in at least three police pursuits, had rammed police and/or other motor vehicles on at least two occasions, and were believed to have assaulted at least one police officer who had been attempting to affect their arrests, all in efforts to avoid their apprehension.

The YRP, with the assistance of the NRPS, located the stolen motor vehicle in the possession of the Complainant and CW #1 in the parking lot at the Vaughan Mills Mall. The police then observed the motor vehicle move to the front of the Toys ‘R’ Us store and the pair enter the store.

WO #2, the OIC of the PCU, directed his members to move their vehicles as close to the stolen motor vehicle (an Impala) as possible, while the pair were in the store and, when he gave the call to move in to arrest, the SO was to move his pickup truck in close proximity to the front bumper of the Impala. WO #2 advised that his primary objective, being aware of the previous incident with the ramming of the NRPS police vehicles, was to prevent the pair from accessing the stolen Impala to effect their escape. On three occasions, he voiced over the radio that the Complainant was not to be allowed to enter the Impala and start it up, and that the goal was to arrest the Complainant before he reached the car. This evidence is confirmed by the radio transmission recording, wherein WO #2 is heard to express his fears for the safety of the public and the police officers if the Complainant and CW #1 gained access to the stolen Impala as they left the store. He is heard to stress, on a number of occasions, the importance of the pair not gaining access to the stolen Impala.

WO #2 indicated that he hoped to time the call to move in and arrest the pair in order that it not be too early, which could allow them to flee on foot and possibly hijack another motor vehicle in the mall parking lot, which was quite busy, or too late, and allow them entry to the car, which they would again use to escape.

WO #4 was assigned to arrest the Complainant by approaching him from behind, while WO #5 was to arrest CW #1 from behind as she approached the Impala.

At 8:42 p.m., the pair were seen to exit the Toys ‘R’ Us store and, as they neared the Impala, WO #2 gave the order for the officers to move in to effect the arrest. WO #2 exited his own motor vehicle and, as he approached the Impala, the Complainant spotted him and recognized him as a police officer, following which WO #2 repeatedly called out to the Complainant that they were the police and that he was under arrest and to stop. Instead, the Complainant began to move rapidly toward the Impala. WO #2 opined that the take-down had been called a split second too late, allowing the Complainant to react quickly and open the driver’s door of the Impala, get inside, and close the door.

CW #1 was simultaneously arrested at the passenger door of the Impala and taken away from the vehicle. This is confirmed by the evidence of the Complainant and is consistent with the evidence of all the police officers present.

WO #3 stated that he observed the brake lights come on as soon as the Complainant entered the Impala and he observed that the key was in, or near, the ignition.

WO #3 then quickly opened the driver’s door of the Impala, but he was unable to get the door fully open as there was insufficient space between the Impala and the car parked beside it. WO #4 and the SO, who were approaching from the front of the car, were unable to reach the Complainant as they were hampered by the open car door which blocked their path.

The Complainant was observed focused on the ignition of the vehicle and it was feared that he was about to start the car. WO #2 then grabbed onto the Complainant’s left arm and bent it back around the driver’s door pillar, as a pain compliance technique, but it appeared to have no effect on the Complainant. WO #3, who was in the gap between the open door and the car, put his hands on the Complainant and tried to pull him out by his shirt, but the Complainant pulled away, causing his shirt to rip and there was a struggle. The Complainant was trying to put the key in the ignition and was gripping onto the steering wheel in order to prevent WO #3 pulling him from the car.

WO #3 stated that he was aware that if the Complainant was able to start the car, he would have been able to ram his way out of the parking spot and there would have been a risk of his injuring both the police officers and pedestrians. Because of the limited space between the cars, WO #3 was the only officer at that point who had direct access to the Complainant, as WO #4 and the SO were blocked by the open door, and WO #2 was behind WO #3.

WO #3 then delivered several punches to what he thought was the left side of the Complainant’s face or head area. He was unable, however, to see where the punches landed, due to the door not being able to fully open. He delivered the punches with his left hand while holding onto the Complainant with his right. The punches appeared to have no effect on the Complainant, as he continued to try to start the vehicle. This evidence is confirmed by the Complainant, who recalled officers ‘swinging’ at him, but the hits did not hurt, and he could not be sure as to whether they were actually hitting him or just trying to grab onto his shirt to pull him out.

WO #2 and WO #3 then together pulled the Complainant from the car and put him onto the ground in one fluid motion, with the Complainant landing face down on the asphalt, with his legs still inside the foot well of the car and WO #2 still holding onto his left arm. WO #2 believed that the Complainant was trying to get up from the ground to escape, and he delivered multiple knee strikes into the left side of his body, and hand strikes, but they appeared to have no effect. Oddly enough, the Complainant has no recollection of these strikes ever being delivered or that they caused him any pain.

Despite the efforts of WO #2 and WO #3 to detain the Complainant, he made his way, by crawling and trying to get up, to the rear of the Impala. WO #2 called out numerous times to the Complainant to stop resisting and to put his hands behind his back, but he did not comply.

Once the Complainant’s feet were cleared of the foot well, the door to the Impala was closed and the SO and WO #4 moved in to assist, while the Complainant continued to resist, even though there were now four police officers attempting, in a very limited space, to control him. The Complainant continued to fight to get to his feet and was grabbing hold of the clothing of the police officers, while kicking and swinging out with his arms. WO #4 then delivered two knee strikes to the Complainant, connecting with his right thigh or buttock area, but these strikes also appeared to have no effect and the Complainant continued to kick out and would not give up his arms. Again, the Complainant had no recollection of these strikes, nor if they caused him any pain.

WO #3, who was exhausted by the struggle, stepped back momentarily and the Complainant managed to get to his feet and again moved toward the Impala to make good on his escape. As he was standing, the SO moved in and grabbed him by the waist/stomach area in a bear hug type manoeuvre and slammed him back down onto the ground.

Once down, WO #2, WO #3, WO #4, and the SO, collectively forced the Complainant’s arms behind his back for handcuffing. The officers indicated that they had to use all of their strength to hold the Complainant down, as he continued to struggle and continuously tried to get up from the ground. At no point did the Complainant ever stop struggling or resisting, nor did he ever give up on trying to get up and away from the police.

The Complainant was described as displaying incredible strength during the struggle with the four police officers, which lasted approximately one minute, with each police officer indicating in hindsight that the Complainant’s strength was likely due to the ingestion of

narcotics. This was later confirmed by a toxicology screening at the hospital which indicated the presence of both Cocaine and Opiates in the Complainant’s system.

Once the Complainant was in a sitting position, blood was observed on his face. WO #2 stated that he was not surprised that the Complainant had been injured, due to the nature of his resistance and the physical strength of four strong police officers being required to subdue him and handcuff him.

When the car was later searched, it was discovered that the Complainant had indeed been successful in getting the keys into the ignition.

Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the police officers involved in the Complainant’s arrest to qualify for protection from prosecution pursuant to s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information provided by the NRPS, that the YRP clearly had reasonable grounds to arrest the Complainant for the numerous and mounting arrest warrants held by several other police services. Since the NRPS, from direct involvement, was in possession of reasonable grounds to believe that the Complainant had committed several indictable offences, the YRP, in assisting the NRPS and acting on information received from the NPRS, were equally acting lawfully within their duties when they set about to arrest both the Complainant and CW#1 on those warrants. As such, the apprehension and arrest of the Complainant by the YRP PCU was legally justified in the circumstances and they were acting on reasonable grounds. Therefore, as long as they used no more force than was justified or necessary, they are exempt from prosecution pursuant to s. 25 (1).

An assessment of the use of force resorted to by each of the three police officers who used physical force to subdue the Complainant then requires an assessment of whether, in these circumstances, the following actions were excessive:

• The pain compliance technique resorted to by WO #2 in grabbing onto the Complainant’s left arm and bending it back around the driver’s door pillar, as a pain compliance technique
• WO #3’s punching the Complainant several times in the left side of his head and face while he was seated in the stolen Impala attempting to start the car
• WO #2 and WO #3 grabbing onto the Complainant and pulling him from the car, causing him to fall face down onto the asphalt
• WO #2 delivering multiple knee and hand strikes to the left side of the Complainant’s body while he was on the ground but continuing to resist; and/or
• The SO grabbing onto the Complainant’s waist area in a bear hug type manoeuvre and slamming him back onto the ground

While it is most likely that the Complainant was only injured in the last of these manoeuvres by the police, even though it is also possible that the Complainant was injured either when WO #3 punched him several times inside the car on the left side of his head and face, or when he was originally taken to the ground by WO #2 and WO #3, landing face first on the asphalt, I have listed all of the actions by the police to demonstrate the progression of their actions in direct proportion with the extraordinary strength and unflagging resistance by the Complainant.

I have no hesitation in accepting that the information in the possession of the arresting officers as to the lengths that the Complainant had gone to previously to thwart his arrest, in combination with the great and seemingly inexhaustible strength and resolve that he had on this occasion, would have caused them extreme concern that they would not be able to subdue the Complainant and that he would therefore continue to present as a serious risk to the public. Taking into account that the Complainant had already previously rammed several vehicles, assaulted a police officer, pinned a second officer between his motor vehicle and another, and lead police on no less than three vehicular pursuits, I fully accept that there was a great urgency to finally bring the Complainant’s crime spree to an end by taking him into custody.

I have also noted that of the five actions by the police, as listed above, to subdue the Complainant, the Complainant did not even notice or recall three of them and he confirmed that they caused him no pain. It was only when he was grounded, either the first or the second time, that the Complainant indicated that he finally felt pain. Whether he felt no pain because of his previous ingestion of narcotics, because he was focused on his desire to escape, because of the adrenaline rush, or because the actions of the police were not of sufficient force to register on him, it is clear that the police had to increase the force with which they were attempting to apprehend the Complainant if they had any hope of successfully arresting him.

Although I find that the Complainant’s injury was caused by police during their efforts to confine and arrest him, I find that pursuant to section 25(1) of the Criminal Code, the officers used no more force than was reasonably necessary in the execution of their lawful duties in apprehending an extremely powerful man who was intent on escape, and who had successfully done so numerous times in the past. In this particular factual scenario, I find that the decision of the Supreme Court of Canada in R v Nasogaluak [2010] 1 S.C.R. 206, is particularly apt:

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.

I find, on the record before me, that the degree of force, and the number of different distractionary strikes and measures employed against the Complainant (including twice taking the Complainant to the ground) were unfortunately required in order to gain control of him and to take him into custody, and thereby end the risk that he continued to pose as long as he was at large. In coming to this conclusion, I have taken into account that the Complainant was able to crawl to the back of the stolen Impala, despite having four able-bodied police officers using all of their strength to subdue him, while he dragged them along with him. I have no difficulty whatsoever accepting that WO #2’s fears for the safety of the public and the police officers if the Complainant and CW #1 gained access to the stolen Impala were extremely well-founded in these circumstances.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention, and the manner in which it was carried out, were lawful notwithstanding the injuries which he suffered. On this record, it is clear that the force used by all of the police officers involved in attempting to subdue the Complainant progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance and surprising strength, and fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention.

I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and that there are no grounds for proceeding with charges in this case.

Date: September 7, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit