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 30-year-old man during his arrest on June 23, 2017.

Notification of the SIU

At approximately 4:31 p.m. on June 24, 2017, the Toronto Police Service (TPS) notified the SIU of the custody injury to the Complainant.

According to the TPS, on June 23, 2017, at 8:30 p.m., TPS officers responded to an address in the City of Toronto regarding a barricaded person with a knife. The incident was a result of the Complainant having a fight with CW #1. TPS Emergency Task Force (ETF) officers entered the residence and apprehended the Complainant and he was taken to the hospital and later discharged into TPS custody without a confirmed diagnosis, due to a radiologist not being available.

The Complainant’s X-rays were interpreted on the morning of June 24, 2017, but hospital staff refused to provide the TPS with the diagnosis. Later the same afternoon, the TPS was able to obtain a medical consent from the Complainant and they were advised that he had sustained a nasal fracture.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Notes reviewed, interview deemed not necessary

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 #8 Notes reviewed, interview deemed not necessary

WO #9 Interviewed, notes received and reviewed

WO #10 Notes reviewed, interview deemed not necessary

WO #7, WO #8, WO #1, and WO #10 were not interviewed as a review of their notes indicated that they had no information of any probative value that was not already known from other police witnesses that were interviewed.

Subject Officers

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

The Complainant, after drinking alcoholic beverages earlier on June 23, 2017, returned home that evening to his residence in the City of Toronto, where he got into a dispute with CW #1. The dispute escalated from verbal unpleasantries exchanged between them, to a violent assault by the Complainant, while armed with a metal pipe, which was used to strike CW #1, prompting CW #2 to call 911 to have the Complainant removed from the residence.

Upon the police arrival at the residence, the Complainant was initially inside the house and refused to come out. When the police were eventually able to convince the Complainant to exit the residence, he was taken to the ground and handcuffed. The Complainant alleges that while he was down on the ground, after being handcuffed, he was kicked in the face by an ETF police officer. The Complainant was then transported to hospital where he was assessed.

Nature of Injuries / Treatment

The Complainant sustained an un-displaced nasal fracture which was expected to heal on its own without the requirement of medical intervention.

The Scene

The scene was located in the area where the Complainant was taken to the ground, arrested, and handcuffed, which was confined to the asphalt-covered patio in the enclosed yard at the east side of the Complainant’s home. A wooden, six-foot high privacy fence fitted with a gate of the same construction, restricted access to and prohibited visibility of, the area at the east side of the brick bungalow-style dwelling.

Physical Evidence

The damaged door through which the Complainant stuck out his head and hands.

Forensic Evidence

There were no submissions made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

No video of the scene was located. The in-car camera video of the transport of the Complainant was obtained and reviewed.

Communications Recordings

The 911 calls and the police transmissions communications recordings were obtained and reviewed.

Materials obtained from Police Service

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

• Booking hall and sally port video
• 911 Call Recordings
• Police Transmission Communication Recordings
• ETF High Risk Incident Report
• Event Details Reports (x2)
• In-Car Camera System (ICCS) video
• Injury Report
• TPS Scene Photos
• TPS Photos of Injuries to Complainant
• TPS Photos of Involved Officer’s clothing
• Notes of WO #s 1-10
• Procedure: Provincial Use of Force Model: Appendix A and B
• Procedure: Use of Force
• Summary of Conversation
• TPS Fullcase - R v the Complainant, and
• Training Records for the SO

The SIU obtained and reviewed the following materials and documents from other sources:

• Drawing of the scene by CW #1, and
• Medical records for the Complainant relevant to this incident

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 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. 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.

On June 23, 2017, a 911 call was received by the Toronto Police Service (TPS) at 8:36:09 p.m. The caller, a female, is heard to yell at a male in the background repeatedly asking, “What are you doing?” while the male is heard to respond, “What the fuck did I do?” and the female then yells, “You’re the one doing this!” The call taker is repeatedly heard to say, “Hello” but no one responds and the phone finally hangs up. A call back from the call taker goes to voicemail. A check of the subscriber information traces the telephone number to Civilian Witness (CW) #1.

At 8:36:40 p.m., a second 911 call was received. On this occasion, the caller identified herself as CW #2 and she indicated that she needed police at her address as the Complainant was going crazy and had just beaten up CW #1, “Please send someone right away!” CW #2, in the call, indicated that there were no weapons involved and that the Complainant had no mental health issues, but that CW #2 believed that the Complainant had been drinking.

Screaming is heard throughout the call between the caller and a male in the background, and CW #2 is then heard to indicate, “He’s destroying my back yard! … he’s about to take my phone! … He’s crazy! … He’s going after CW #1!”

During the course of the call, CW #2 is repeatedly heard to indicate that the Complainant was again beating or hitting CW #1 and “He keeps coming after us!” When asked what caused the incident, CW #2 indicated it was because “(CW #1) told him to pull up his pants.” The call taker then asks the caller to hold while she dispatches a unit to the residence.

When the call taker returns to the line, only screaming is heard in the background and the call taker is unable to reach CW #2, and the line eventually disconnects. A return call from the call taker goes directly to voicemail and a message is left that the police are on the way.

At 8:37 p.m., and again at 8:42 p.m., a call goes out from the dispatcher to any available units, describing the call as a ‘Hot Shot’ (the highest priority call) involving a “Person going berserk, complainant out of breath, (the Complainant) beat up (CW #1).”

At 8:41:25 p.m., the first cruiser, with Witness Officer (WO) #2 and WO #3 on board, responded and was dispatched to the scene. The call log indicates that two more calls were received from the residence prior to the arrival of police at 8:54:15 p.m., one from the girlfriend of the Complainant, and one from CW #2, each enquiring as to the estimated time of arrival (ETA) of the police.

The recorded call from the girlfriend of the Complainant reveals her telling the 911 operator that “My boyfriend got drunk and he’s beating up (CW #1 and CW #2),” while the third call from CW #2 reveals her telling the operator that the Complainant was still going crazy, that he had ‘beat the crap’ out of CW #1 and herself, and he was ‘breaking everything.’

The Complainant indicated that when the police arrived, he went to the side door to speak peacefully with them. He alleged that he had a cigarette in his mouth and he asked the ETF officers if he could go back inside for some socks, as there was glass on the floor, but they said no. He then put both hands and his head through the window frame of the storm door and one of the ETF officers told him to drop his cigarette.

The Complainant alleged that an ETF officer then placed his finger on the side of either his handgun, or his Conducted Energy Weapon (CEW), and pointed the barrel at the Complainant’s face and tried to knock the cigarette from his mouth. On the second try, the police officer hit the cigarette and knocked it from his mouth. The Complainant estimated that it took approximately four seconds for the cigarette to be knocked from his mouth and that the barrel of the gun was pointed directly at his face during that time. The Complainant further alleged that one of the ETF officers told him to “Shut the fuck up” and that he would blow his head off if he moved the wrong way.

It is further alleged that an ETF officer then pulled the Complainant’s hands outside, as another opened the storm door, and a third officer got behind the Complainant and kicked his legs out from under him, causing him to fall to the ground outside of the house, chest first, on top of the broken window glass. Six ETF officers then got on top of the Complainant.

The complainant alleged that he put his hands behind his back and told the officer that he was not resisting. It took about one minute for the Complainant to be handcuffed, following which one of the ETF officers told the Complainant again to shut his mouth while delivering one strike, with his right foot, kicking the Complainant in the bridge of his nose. The Complainant could not describe the officer who kicked him, other than to say it was not the officer who was wearing glasses.

The Complainant later went to the hospital and was diagnosed with an un-displaced nasal fracture.

During the course of this investigation, three CWs, including the Complainant, and six police witnesses, were interviewed. The subject officer (SO) declined to be interviewed or to provide his memorandum book notes for review, as is his legal right. Additionally, SIU investigators had access to the memorandum book notes of ten police witnesses and the 911 and radio communications recordings and log.

Both of CW #1 and CW #2 provided statements which were consistent with the 911 calls from CW #2 wherein she is heard to recount the incidents to the 911 caller as they are occurring.

After the Complainant went inside the house, CW #1 and CW #2 observed WO #2 point an orange-coloured rifle (an ‘Anti-Riot Weapon ENfield’ or ARWEN, which deploys non-lethal rubber bullets or bean bags) at the patio door, while other police officers went to the rear of the house. Police officers were heard telling the Complainant several times to come out of the house, without any response. CW #1 and CW #2 were directed by police to leave the property and go across the street, for their own safety, and neither was witness to the apprehension of the Complainant.

WO #2 said that when he and WO #3 arrived at the residence, he carried the shotgun capable of firing less lethal “beanbag” rounds with him toward the residence. Once inside the fence gate, WO #2 observed all three of the civilian witnesses in the yard and CW #1 had blood on his shirt, while the Complainant was shirtless and had blood on his torso.

WO #3 stated that he observed broken planters on the patio and that the Complainant had blood on his body and was screaming at CW #1 and CW #2. WO #2 identified himself as a police officer and asked what was happening, while WO #3 yelled to the Complainant to “Come over here,” but the Complainant entered the house without responding. It was observed that the glass from the storm door had already been broken. WO #2 and WO #3 did not enter the house at that time, as they were unaware whether the Complainant had access to any weapons. When WO #3 asked if there were weapons inside the house, he was told that the Complainant would have access to the kitchen knives. WO #2, the senior officer on scene at that time, described the situation as one of a barricaded person and called for the assistance of the ETF.

WO #3 stood outside the front of the house, while WO #2 stood at the side entrance, in order to contain the Complainant inside the house. Four additional TPS officers then arrived and took up positions around the house, while one stayed with CW #1 and CW #2 in front of the home. WO #2 observed the Complainant walking down the stairs from the main floor, toward the basement and, as the Complainant got to the door, WO #2 yelled at him to stop but the Complainant said he wanted to get some socks from the basement. WO #2 told the Complainant not to go any further, and the Complainant stopped, just as the ETF team arrived.

When WO #2 asked the Complainant to show his hands, he extended his hands through the empty window frame in the storm door, where there had previously been glass. WO #2 then backed away to give the ETF space, and he observed the ETF officers holding the Complainant’s forearms, which he still had extended through the storm door, and they were able to slowly open the door and change their position to allow the Complainant to step outside. WO #2 stated that he did not see a struggle during the arrest, but observed the ETF officers place the Complainant onto his abdomen on the ground and then handcuff him.

WO #2 stated that at no time did he observe any police officer strike or kick the Complainant in any way. WO #2 described the Complainant as bleeding slightly from a cut on the bridge of his nose and indicated that the Complainant told him that one of the police officers had injured him. WO #2 rode with the Complainant in the ambulance and the Complainant told him that the argument with CW #1 and CW #2 had started over money because he had loaned them $20, 000.00 and they had not repaid any of it.

WO #6, a member of the Special Weapons Team of the ETF, indicated that he attended at the Complainant’s residence in response to a call for a man armed with a knife who had barricaded himself inside the house. WO #6’s duties were to contain the scene to ensure that the Complainant did not sneak out of the house and he (WO #6) was in the backyard, when he heard someone say that the Complainant was coming out the back door. When WO #6 attended, he saw that the Complainant was on the ground, about ten feet from the side door, with several police officers surrounding him. He observed the Complainant’s legs moving about and heard someone yelling, “Put your hands behind your back”. WO #6 described two or three ETF officers as being on top of the Complainant, but he did not observe any police officer strike, kick, or deliver any type of blow to the Complainant. WO #6 estimated that approximately 30 to 60 seconds passed between when he heard that a man had come to the door until he entered the back yard where the Complainant was being arrested.

WO #3 stated that he heard someone yell out that the Complainant was at the side door and the next thing he heard was someone radioing that they had one in custody. WO #3 estimated that from the time he heard that the Complainant was at the door, until he heard that he was in custody, a period of about one minute had elapsed.

WO #3 observed an ETF officer walk a handcuffed Complainant out to the driveway where, at 9:35 p.m., WO #3 took custody of him. WO #3 observed that the Complainant had a cut on the bridge of his nose, but it was not bleeding. The Complainant then stated that his nose was broken. WO #3 noted that the Complainant had an odour of alcohol on his breath, he was highly emotional and crying, and there were cuts to both hands near his knuckles.

Once at the hospital, the Complainant told WO #3 that the argument at the house started because CW #1 and CW #2 were refusing to give him his belongings, that he had smashed the window out of the side door, that he had been drinking beer and cognac, that he went inside the house to take a cold shower, and that when he was trying to come out, a police officer kicked him while he was being arrested and that is how his nose came to be injured.

WO #5, of the ETF team, indicated that when he entered the backyard, he observed members of the ETF had the Complainant on the ground, face down, but he was not yet handcuffed and was holding his hands tightly under his chest. WO #5 put his shield down on the ground and went to the right side of the Complainant and was able to pull his right arm out from under his torso and move it into position behind his back for handcuffing. WO #4 then handed him a pair of handcuffs and WO #5 applied one link to the Complainant’s right wrist, while another ETF officer rolled the Complainant slightly to the right, so that his left arm was exposed, allowing WO #5 to control it and complete the handcuffing. WO #5 said that he did not strike the Complainant and neither did he observe any police officer present deliver any blows in his presence.

WO #4, the Officer in Charge of the ETF Special Weapons Team, indicated that he and his team, consisting of WO #9, the SO, WO #5, WO #1, WO #6, WO #7 and WO #8, attended at the Complainant’s residence in response to a call for a barricaded person armed with a knife.

When WO #4 approached the residence, he heard loud voices yelling out the police commands. Once he gained entry to the backyard through the rear gate, which had previously been blocked due to the presence of numerous police officers on the other side of the gate, he saw three or four of his team members on the ground with the Complainant, holding the Complainant, who was not yet handcuffed. WO #4 was able to identify the SO, WO #5 and WO #9 as three of the involved officers. He indicated that at no time did he observe anyone strike, kick, or punch the Complainant during the brief period of time during which he observed the struggle to handcuff him.

According to the memorandum book notes of WO #9, as he approached the Complainant’s residence, he observed the Complainant get up off the couch in the living room and walk to the rear of the residence. WO #9 was then notified by other officers that the Complainant was at the rear door of the house and WO #9 entered through the gate to the rear yard and observed the Complainant at the door with a cigarette in his mouth and he was yelling, “I didn’t do anything”. WO #9, according to his notes, then ordered the Complainant to show his hands and the Complainant stuck his hands out the now empty window frame in the door and ETF team members grabbed each of the Complainant’s arms through the door.

WO #9 then moved in to take control of the Complainant’s left arm and told him to get on the ground, to which the Complainant again responded that he didn’t do anything. WO #9’s notes indicate that while he was holding onto the Complainant’s left arm, the Complainant began to pull back from him, and WO #9 put him to the ground outside of the door, resulting in the Complainant landing on the ground with his hands underneath him.

WO #9 then ordered the Complainant to put his hands behind his back, and the Complainant again said he didn’t do anything and told the police officer to “Fuck off.” WO #9 indicated in his notes that he then removed the Complainant’s left arm from under his body and the Complainant was handcuffed to the rear. WO #9 then walked the Complainant to the front of the house where he was turned over to WO #3.

No witness, either civilian or police, observed the Complainant being kicked by a police officer while he was down on the ground after being handcuffed, and it was a kick to which the Complainant attributed his fractured nasal bone. While there is no requirement that there be independent evidence to support this allegation, where, as here, the only evidence available is that of the Complainant, his credibility becomes of primary importance in considering whether or not I can form reasonable grounds to believe that a police officer did, in fact, kick the Complainant in the face and did thereby commit the offence of assault causing bodily harm.

In assessing the credibility of the Complainant, I must take into account a number of factors, including his ability to recall the incident, his ability to observe and identify what occurred and by whom, as well as any independent evidence which either supports or discredits his evidence. Even if the evidence that contradicts the evidence of the Complainant relates only to underlying surrounding facts, not directly related to how the Complainant received his injury, I must consider that evidence in assessing the Complainant’s credibility overall and whether or not those inconsistencies would make it unsafe to rely on the evidence of the Complainant with respect to the subject matter under investigation.

Dealing first with the Complainant’s ability to recall the incident, I note that there is no dispute, as between all witnesses, both civilian and police, and the Complainant himself, that he was extremely intoxicated during the incident in question, with the Complainant describing himself as being so “Out of it” that he suspected someone had slipped a drug into his drink. As such, I have no doubt that both the Complainant’s recollection of events, as well as his ability to observe the events that occurred, were extremely compromised.

Additionally, I note that the Complainant’s recollection of events appears very selective and self-serving; for instance, while he claims a clear recollection of being kicked in the nose by a police officer, he failed to recall that he drove CW #2’s car to the residence, indicating instead that he received a ride. I can only assume from this statement, which is directly contradicted by both of CW #1 and CW #2, that the Complainant wished to portray himself in a better light and avoid the unfortunate fact that he was operating a motor vehicle while completely intoxicated. I consider this inconsistency significant when assessing the Complainant’s overall credibility.

Furthermore, the Complainant’s lack of memory as to whether or not he ever struck either of CW #1 or CW #2, or if they struck him, and his inability to recall the particulars of the argument[1] he had with them, is either selective memory or indicates a lack of recall of the events over all. For instance, the Complainant indicated to SIU investigators that he had no idea where his girlfriend was at any time during the incident whereas CW #2 states that the Complainant exchanged some heated words with his girlfriend after CW #1 told him to pull up his shorts. I note that his lack of reliable recollection is further punctuated by his comment that he thought he had put his hand through the window of a storm door, because “The alcohol got the best of me that night,” but did not actually recall doing so. Clearly this is not an insignificant event, and it causes me serious concern that the Complainant professes no memory of this event.

I also note that the Complainant appeared to be of the view that he had sobered as a result of taking a shower, which I infer was meant to account for his failure to be able to recall his own misdeeds, which occurred before the shower, and yet he had very clear recall of the actions of the police, which occurred after his shower. As is common knowledge, however, a shower only makes you wet, it does not make you sober, nor does it have the ability to lower your blood/alcohol level, which only the passage of time can accomplish.

While I note that the Complainant told SIU investigators that the argument with CW #1 and CW #2 began when CW #1 told him to pull up his pants, I note that on the night of the incident he told WO #3, at the hospital, that the argument was caused by CW #1 and CW #2 refusing to give him his belongings, while he told WO #2, who rode along with the Complainant in the ambulance, that the argument started over money he had loaned to CW #1 and CW #2, in the amount of $20, 000, which they had not repaid.

Finally, with respect to the Complainant’s ability to identify the police officer who he alleges kicked him in the face, I note that he indicated that six ETF officers were on top of him, one of whom kicked him in the face as he lay on the ground. Other than excluding the police officer wearing the glasses, however, the Complainant was unable to identify which of the six officers was the perpetrator.

On this lack of identification alone, I am unable to form reasonable grounds to believe that any one particular officer kicked the Complainant, even were I to accept that he was indeed kicked in the face, with the Complainant’s evidence doing no more than narrowing the field to one of six possible culprits, excluding only the police officer with the glasses.

Based on the above factors, therefore, I find that I am unable to find that the allegation by the Complainant, that he was kicked in the face by a police officer after he was handcuffed and while he was lying on the ground, rises to the level necessary in order to satisfy me that there are reasonable grounds to believe that the offence of assault bodily harm was committed by any one of the six ETF officers. Based on the level of intoxication of the Complainant, which lead to his very poor recollection of events, combined with the blatant inconsistencies as between his evidence and that of CW #1 and CW #2, I find that I am unable to place any credence in the version of events as outlined by the Complainant, except where his evidence is consistent with other evidence.

While normally the injury itself would provide some corroboration of the Complainant’s allegation, I find that where, as here, the injury is as easily explained by the Complainant either having been injured during his violent and out of control behaviour prior to the arrival of police, or with his having been injured either when he fell to the ground or when he was struggling with police and they were attempting to handcuff him, as it is with his having been kicked in the face, I am unable to find that the fact of the injury in any way bolsters the credibility of the Complainant. On the contrary, had a police officer intentionally kicked the Complainant in the face with his booted foot, I would have expected the injury to the Complainant to have been far more serious than the one non-displaced nasal fracture which he sustained. Additionally, I note that those witnesses who observed the injury to the Complainant’s nose described only a cut to the nose, with minimal, if any, bleeding from that cut. No witness observed the Complainant’s nose to actually be bleeding, which one would have expected had he been kicked in the face with a police issue boot with enough force to break his nose.

Pursuant to s.25 (1) of the Criminal Code, police officers are justified in using as much force as is necessary in order to carry out their duties, as long as they are indeed carrying out their duties and therefore acting lawfully, and they use no more force than is reasonable.

In this fact situation, it is clear based on the 911 calls from CW #2, and the later confirmation of those facts at the scene by both of CW #1 and CW #2, that the police had reasonable grounds to believe that the Complainant had assaulted CW #1 and CW #2 and had destroyed their property, and as a result the police had grounds to arrest him. Therefore, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by police to apprehend the Complainant, police are protected from prosecution pursuant to s.25 (1) as long as they use no more force than is necessary and reasonable in the circumstances. There is no question that if, as alleged by the Complainant, he was kicked in the face by a police officer after he had already been handcuffed, and that assault had broken his nose, there would be reasonable grounds to believe that the offence of assault causing bodily harm had been committed contrary to s. 267 of the Criminal Code. I must not only have reasonable grounds to believe, however, that the offence of assault bodily harm was committed, but I must also have reasonable grounds to believe that it was committed by a specific party unless they were acting in concert. On the evidence of the Complainant, even were I accept that this assault did in fact occur, I have absolutely no evidence as to who delivered the kick and therefore committed the offence nor that any officer assisted or abetted the alleged kicker. As such, on this evidence, I do not have reasonable grounds to believe that a particular police officer committed this offence nor that any other officer aided or abetted the offence.

While that conclusion would end the matter, I hasten to add, however, that not only do I not have sufficient evidence to establish who kicked the Complainant, I further do not find that I have sufficient evidence upon which to form reasonable grounds that a kick, as alleged, occurred.

I make this finding based on the inconsistencies in the Complainant’s evidence between what he told people had happened at the time and what he told SIU investigators; the inconsistences between his evidence and that of CW #1 and CW #2, who were both apparently sober at the time; the inconsistency between the nature of his injury and what one would expect to see from a kick to the face by a police boot; his poor recollection as to events; his severe state of intoxication; and the self-serving nature of his evidence. Based on these factors, I find that I can place little credence in the version of events as proffered by the Complainant, except where his evidence is independently corroborated by other evidence. I further note that no other person at the scene ever observed any police officer strike, kick, or punch the Complainant, despite a number of witness officers having been in a position to have observed those actions, had they in fact occurred.

In the alternative, if the Complainant’s injury was caused by the actions of police when they took the Complainant to the ground, either by his face striking the ground, or during the struggle to gain control of his hands to arrest him, I cannot find that the actions of any police officer so involved amounted to an excessive use of force.

In these circumstances, where the Complainant had been described by CW #1 and CW #2 as intoxicated and going berserk or crazy, where he had already assaulted both of CW #1 and CW #2 repeatedly, and where it was reported that he would have access to knives in the home, I cannot fault police for their attempts to subdue the Complainant, and ensure that he was not armed, as quickly as possible, in order to ensure the safety not only of themselves, but of members of the public, including CW #1 and CW #2.

In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R v Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

In conclusion, on the reliable evidence before me, I can only say with certainty that at some point the Complainant was injured, but I am unable to find that there is sufficient evidence to establish exactly how, when, or by whom, the Complainant was injured, and I therefore do not have sufficient reliable evidence upon which I can find, on reasonable grounds, that an offence of assault bodily harm has been committed by any police officer involved in the apprehension and arrest of the Complainant and therefore do not have the grounds necessary for the laying of criminal charges and none shall issue.

Date: July 12, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] He gave at least three explanations as to what caused the argument: 1) CW #1 and CW #2 had refused to pay back $20, 000 that he had loaned them: 2) They refused to return his belongings and 3) The argument started over CW #1 telling him to pull up his pants as his buttocks were showing which in effect was the same explanation given by CW #1 and CW #2. [Back to text]