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 a serious injury sustained by a 23-year-old male (Complainant) on October 28, 2017.

Notification of the SIU

The SIU was notified of the incident on October 29, 2017, at 7:30 a.m., by a member of the Ontario Provincial Police (OPP) who reported the following:

On October 28, 2017, at about 8:20 p.m., the OPP communications centre received a call regarding a man [now known to be the Complainant] causing a disturbance on a Greyhound bus on Highway 35/115. The Complainant had been subdued by a passenger on the bus but broke free and demanded that the driver stop the bus. When the bus driver stopped the bus, the Complainant got off and ran towards the parking lot of the Twin Oaks Motel. The subject officer (SO) responded to assist and observed the Complainant being held on the ground by three people. The Complainant was arrested after a struggle and Durham Regional Police Service (DRPS) police officers responded to assist. DRPS police officers took control of the Complainant.

The Complainant was taken to a DRPS station and then to Lakeridge Health Centre (LHC). He had a broken wrist and drugs were suspected as a cause of his behaviour.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed

The Scene

Twin Oaks Motel was located east of Highway 35/115 on concession Road 4. The motel was just south of Concession Road 4 and the parking lot area was just north of the building.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Motel Video Footage Summary

On October 30, 2017, the SIU obtained video footage captured by Twin Oaks Motel cameras. It was discovered that the timestamp on the video footage was 41 minutes ahead of the actual time. Below is a summary of the footage that was captured on October 28, 2017, with times 41 minutes faster than the actual occurrence time:

Cameras 2 and 5:

• At 9:07 p.m., a truck [now known to be driven by CW #2] drove into the parking lot of the motel. The truck stopped and was facing towards the motel
• At 9:10:03 p.m., the driver’s side door of the truck opened and there appeared to be a struggle between CW #2 and the Complainant. CW #2 got out of the truck
• At 9:11:30 p.m., a man [now known to be CW #1] walked from a motel room and approached CW #2’s truck
• At 9:13:30 p.m., CW #1 and CW #2 started to struggle with the Complainant, who was still inside the truck. During the struggle, the Complainant was taken out of the truck and landed on the ground. CW #1 and CW #2 held the Complainant down on the ground
• At 9:15:05 p.m., a man walked from the motel towards the struggle
• At 9:17:13 p.m., the man was waving his arms in the air towards Highway 115, where a bus and a vehicle [now known to be the SO] were stopped
• At 9:17:40 p.m., the SO drove into the parking lot of the motel and got out of his cruiser. The SO walked towards CW #1 and CW #2 and kneeled down next to the Complainant
• At 9:18:18 p.m., an ambulance drove into the parking lot and two paramedics [now known to be CW #3 and CW #4] got out of the vehicle and walked towards the SO
• At 9:22:55 p.m., the Complainant was brought to his feet and escorted by the SO to the SO’s cruiser. The Complainant was placed inside the back of the SO’s cruiser
• At 9:25:25 p.m., a white-coloured police cruiser [now known to have been occupied by WO #1 and WO #2] with its emergency lights activated drove into the parking lot of the motel, and
• At 9:33 p.m., the video paused and additional video footage could not be retrieved

Camera 4:

• At 8:56:23 p.m., a bus stopped on the north side of Highway 115 and the door quickly opened. A man [now known to be the Complainant] exited and stumbled in an easterly direction towards the motel. It appeared that the Complainant tried to either run or walk, but fell on the grassy area twice, and
• At 9:17:30 p.m., a black and white-coloured vehicle with activated emergency lights drove past the bus and towards the parking lot of the motel

Communications Recordings

911 and Communications Recording Summary:

The following is a summary of the 911 call made by the bus driver on the Greyhound bus on October 28, 2017:

• At 8:17 p.m., the bus driver spoke to a dispatcher from the OPP communications centre. The bus driver stated that there was a passenger on his bus [now known to be the Complainant] who he believed to be high on drugs because his eyes were “buggered” out. The bus was pulled over on the northbound shoulder of Highway 115 by the Twin Oaks Motel. The bus driver had spoken to the Complainant about putting his hand out the window while the bus was in motion and the Complainant assured that he would not cause trouble. Soon after, the Complainant repeated to the bus driver to open the bus door. When the bus driver pulled the bus over and opened the door, the Complainant immediately jumped out of the bus and ran towards the back of the motel.

The following is a summary of the 911 call made by CW #2 in the area of the Twin Oaks Motel on October 28, 2017:

• At 8:26 p.m., CW #2 spoke to a dispatcher and advised that he picked up a man [now known to be the Complainant] who was crawling on the side of the road. CW #2 advised that the Complainant may have needed medical assistance (while the dispatcher was speaking, CW #2 could be heard saying “stop” in the background). When CW #2 was transferred to an ambulance dispatcher, he began to reiterate what he had told the first dispatcher; however the phone call was dropped

Emergency Medical Services, OPP, and DRPS dispatchers were heard discussing the incident and one of the dispatchers advised that the Complainant became violent towards CW #2 and that when they tried to call CW #2 back, there was no response.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from

the DRPS and OPP:

• Detention Record
• DRPS Medical Release Form
• General Occurrence Report
• Notes of the SO, WO #1 and WO #2
• Occurrence Details, and
• Radio communications

Nature of Injuries / Treatment

On October 28, 2017, at about 9:20 p.m., the Complainant was taken to LHC by ambulance and diagnosed with a fracture in his right wrist.

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.

The SIU’s investigation consisted of, but was not limited to, interviews with the Complainant, four civilian witnesses, the SO and two witness officers, as well as a review of surveillance footage from the motel parking lot. On a review of this evidence, the factual circumstances surrounding the incident are evident. On October 28, 2017, the Complainant boarded a train from Union Station in Toronto to visit his mother in Ottawa. The Complainant regularly uses cocaine and normally experiences seizures after using the drug. While aboard the train, he injected cocaine in the train’s washroom and had a seizure, causing his arms to flail. The Complainant was taken to an unknown hospital but left and boarded a bus to Ottawa. While aboard the bus the Complainant was confronted by the bus driver for acting strangely. The Complainant was initially cooperative and told the bus driver that he would not cause any trouble, but soon after asked the bus driver to open the door to the bus. At approximately 8:15 p.m., the bus pulled over on the side of the highway near the Twin Oaks Motel, which is located at Highway 115 and Concession Road 4 near Clarington. The Complainant jumped out of the bus and ran towards the motel, stumbling in the grass as he tried to walk.

At approximately 8:30 p.m., CW #2 was driving nearby when he noticed the Complainant crawling on his hands and knees in the ditch. CW #2 was concerned for the Complainant’s well-being and pulled his truck over to help. CW #2 told the Complainant to get in his truck and drove him to the parking lot of Twin Oaks Motel where he called 911. The Complainant became angry at CW #2 for calling the police and decided to steal CW #2’s truck. While CW #2 was on the phone with the dispatcher, the Complainant started pulling on his sleeve and slid over into the driver’s seat, causing CW #2 to step out of the truck. The Complainant slammed his foot on the accelerator pedal of the pickup truck and tried to put the truck in drive. CW #2 tried to take the keys and the Complainant punched him in the face. A struggle ensued over the keys, which CW #2 successfully got out of the ignition.

The commotion from the truck attracted the attention of CW #1, who was staying at the motel. CW #1 saw CW #2 and the Complainant aggressively punching and pulling at each other. The Complainant was in the driver’s seat of the truck, holding the steering wheel and CW #2 was leaning in towards him, holding onto the Complainant’s jacket. CW #1 thought the Complainant was acting strangely, with his eyes “popped out of his head” and his mouth making weird gestures. CW #1 approached the struggle and asked the Complainant if he was on drugs. The Complainant repeated, “I took two caps, I took two caps,” and, “This is my truck.” CW #1 tried to reassure the Complainant but the Complainant started to “freak out” and repeatedly stabbed CW #2 in the hand with a metal object, stating “the keys, the keys.” CW #1 leaned into the truck and punched the Complainant in the head to stop him from stabbing CW #2. Together, CW #1 and CW #2 pulled the Complainant out of the truck and onto the ground face down on his stomach. Both men tried to control the Complainant. CW #2 held onto the bottom portion of the Complainant’s body, with his knee on the Complainant’s back, while CW #1 straddled his upper body. CW #1 delivered a few more strikes to the Complainant and placed a knee on the back of the Complainant’s neck. The Complainant’s face scraped against the pavement as he continued to struggle. At one point, the Complainant grabbed CW #1’s foot and said he was going to stab him with a syringe.

At around 8:35 p.m., the SO arrived at Highway 115 and Concession Road 4, parked his cruiser behind the bus on the highway and spoke with the bus driver. About two minutes later, the SO saw a man in the parking lot of the Twin Oaks Motel waving his arms to get the officer’s attention. The SO went to the parking lot and saw CW #1 and CW #2 trying to hold the Complainant on the ground. The Complainant was face down with his left arm tucked under his body. There was lots of yelling and CW #2 said, “He’s trying to steal my truck” several times. The SO positioned himself to the right of the Complainant, demanded that the Complainant show him his hands and then reached under the Complainant’s body with both hands and swept the Complainant’s left arm to the small of his back. A handcuff was placed on the Complainant’s left wrist. The Complainant’s right arm was tucked inside the sleeve of his sweater and a paramedic, who had arrived on scene shortly after the SO, assisted the SO in getting the Complainant’s right arm from out of his sleeve. The SO placed a handcuff on his right wrist. The Complainant had keys in his right hand, which the SO returned to CW #2.

The SO told the Complainant that he was under arrest for assault and theft and searched him, finding the plastic exterior of a syringe but no needle. At 8:40 p.m., two DRPS officers, WO #1 and WO #2, arrived to take custody of the Complainant. The SO’s handcuffs were removed and WO #2 applied his own handcuffs to the Complainant. Paramedics then assessed the Complainant and the Complainant told the paramedics that he had consumed cocaine and mushrooms while he was on the bus. The Complainant had several abrasions to the side of his face and was put in an ambulance to be transported to LHC. A paramedic checked the mobility of the Complainant’s arms and the Complainant did not complain of any pain or injury nor did he wince or favour any part of his body during the assessment. The Complainant was taken to LHC where he first complained that his wrist was sore. An X-ray showed that the Complainant had fractured his right wrist.

There are no reasonable grounds, in my view, to believe that the SO committed a criminal offence in connection with the Complainant’s injury. To begin, there is doubt in the evidence on the question of whether the SO fractured the Complainant’s wrist by applying the handcuffs too tightly. The Complainant did not complain about the handcuffs when they were applied and no other witness recalled the handcuffs being applied improperly. On the evidence before me, it is reasonably possible that the fracture occurred in several other ways, such as when the Complainant engaged in a protracted fight with CW #1 and CW #2 or when the Complainant exited the bus and stumbled twice in the ditch while he walked towards the motel. As the injury could have been caused at any of these points, I am hesitant to attribute causation of the injury to the SO’s actions.

Furthermore, even assuming that the Complainant’s wrist was fractured by the use of handcuffs, there is no evidence to suggest that the SO used unreasonable force or was otherwise negligent in applying the handcuffs. Pursuant to section 25(1) of the Criminal Code, police officers may use force in the execution of their lawful duties to the extent reasonably necessary in the circumstances. The SO was aware that the Complainant had attempted to steal CW #2’s pickup truck and was therefore acting in accordance with his lawful duties when he arrested the Complainant without a warrant. The use of force during the arrest was limited to the force required to restrain the Complainant, move the Complainant’s hands to the small of his back and apply the handcuffs. Such force is both reasonable and necessary in arresting an actively resisting suspect. In coming to this conclusion I am mindful 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.)). Similarly, the weight of the evidence suggests that the handcuffs were applied in a reasonable and unremarkable manner. Absent any credible evidence to the contrary, I am unable to form grounds that the application of handcuffs amounted to criminal negligence.

In sum, I am reluctant to attribute the Complainant’s injury to the SO’s actions. Assuming the SO caused the injury, there is insufficient evidence that the SO used excessive force or was negligent in his use of handcuffs. Accordingly, I have no reasonable grounds to believe that the SO committed any criminal offence in connection the injury and the case will be closed.

Date: August 8, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit