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 25-year-old man during his arrest on July 30^th, 2017.

Notification of the SIU

At approximately 2:30 p.m. on September 14^th, 2017, the Guelph Police Service (GPS) notified the SIU of a complaint received from the Office of the Independent Police Review Director (OIPRD).

The GPS reported that on July 30^th, 2017, at 2:47 p.m., the complainant was arrested for public intoxication at Gordon and Water Streets in the City of Guelph. During the arrest, there was a struggle and the Complainant’s nose was broken.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Written statement reviewed, interview deemed not necessary

WO #4 Interviewed, notes received and reviewed

Subject Officers

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

On July 30^th, 2017, CW #1 called the GPS because he found the Complainant unconscious at the intersection of Water Street and Gordon Streets in the City of Guelph. The SO and WO #1 arrived and arrested the Complainant for public intoxication. During the arrest, the Complainant became aggressive towards the SO and the SO attempted to take him to the ground. The SO and the Complainant fell to the ground. The Complainant continued to resist and the SO deployed his oleoresin capsicum (OC) spray. The Complainant was then handcuffed and transported to hospital.

Nature of Injuries / Treatment

On July 30^th, 2017, at 5:20 a.m., the Complainant was assessed at hospital. A CT scan of the Complainant’s head and facial bones was carried out and he was diagnosed with a comminuted and mildly displaced nasal bone fracture.

The Scene

The Complainant was arrested at the intersection of Water and Gordon Streets in the City of Guelph. He was found unconscious on the grass beside the sidewalk.

Video/Audio/Photographic Evidence

No video or audio recordings of the incident were located.

Communications Recordings

The GPS provided the communication recordings from the incident, which revealed the following:

• At 4:42 a.m., CW #1 reported that a man was passed out at the intersection of Gordon and Water Streets
• At 4:47 a.m., the SO arrived at the scene and shortly afterwards WO #1 arrived
• At 4:53 a.m., WO #1 advised that the police officers had a person under arrest for public intoxication
• At 4:54 a.m., the SO said that the Complainant was sprayed with OC spray and that the SO was also contaminated
• At 5:02 a.m., WO #1 said he was in the ambulance and on the way to the hospital. WO #1 reported that the Complainant may have an injury to his nose as a result of falling on the ground;
• At 5:03 a.m., the SO reported that he had a dislocated finger
• At 5:04 a.m., WO #1 told the Staff Sergeant that the Complainant had been sleeping, and the police officers woke him up, and he sat up. The Complainant was asked several questions but he refused to identify himself. The SO told the Complainant that if he refused to identify himself, he would be arrested for public intoxication. The SO arrested the Complainant and stood him up. The Complainant resisted and pulled back. He fell on the sidewalk face first and the SO fell on top of him. The Complainant’s hands were under his body and he refused to give up his hands. The SO deployed OC spray on the Complainant and WO #1 was able to get control of the Complainant’s arm, and
• At 5:37 a.m., the Staff Sergeant spoke to WO #4. WO #4 said that he spoke to the SO and that the SO told him that the Complainant was intoxicated and refused to identify himself. He became aggressive and turned toward the SO. The SO then performed a leg sweep to bring the Complainant to the ground, but the SO lost his balance and they both fell to the ground and the SO landed on top of the Complainant. The SO was not sure if his arm landed on the Complainant’s face or if the Complainant landed face first on the ground. The SO then deployed his OC spray to gain control of the Complainant’s arm. He also sprayed himself. After the Complainant was handcuffed, the SO noticed that the Complainant’s nose was bleeding. The SO was triaged for a dislocated finger

Forensic Evidence

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

Materials obtained from Police Service

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

• Event Details Report
• List of Involved Officers and Civilians
• MDT Transmissions for Involved Officers (Messages sent on terminals inside police cruisers)
• Recording of call received from CW #1
• Police Transmissions Communications Recording
• Notes of WO #s 1-2 and 4
• Written Statement (Duty Statement) of WO #3
• Occurrence (Person) Report for the Complainant, and
• Procedure: Arrest Policy

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

• Medical Records of the Complainant related to this incident, and
• The OIPRD complaint filed by the Complainant

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 31(4), Liquor Licence Act – Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,

1. In a place to which the general public is invited or permitted access; or
2. In any part of a residence that is used in common by persons occupying more than one dwelling in the residence

On July 30^th, 2017, a call was received by the Guelph Police Service (GPS) dispatcher at 4:42 a.m. reporting that the caller had observed a male passed out at the intersection of Gordon and Water Streets in the City of Guelph. The SO and WO #1 of the GPS responded to the scene.

Upon arrival at the scene, the Complainant was located at the intersection and officers woke him. He was eventually charged with being intoxicated in a public place contrary to s. 31 (4) of the Liquor Licence Act of Ontario. During the course of his arrest, he sustained an injury and was transported to hospital where he was diagnosed with a fractured nasal bone. The matter was not reported to the SIU until after a complaint had been filed with the Office of the Independent Police Review Director (OIPRD), whereupon on September 14^th, 2017, the SIU was notified and commenced an investigation.

The Complainant advised that he had little recall of the incident, but was very frank in admitting that he was an alcoholic and that he tended to become angry, disrespectful, obnoxious, and vulgar when he was intoxicated. The Complainant advised that he had only a vague memory of what occurred on July 29^th and 30^th, when he was intoxicated. He advised that his mother had filed a complaint with the OIPRD without his consent.

The Complainant advised that he recalled being issued a Provincial Offences ticket for Public Intoxication at 5:30 a.m. on July 30^th, 2017 by WO #1 for an incident that had occurred on Water Street. The Complainant advised that after drinking, he was walking home when he saw two police officers. He was then handcuffed with his hands behind his back and he tried to force the police officer away from him. He recalled that someone grabbed the back of his head and smashed his face against the top area of the door on the police cruiser and his nose was broken. He was then taken to the ground, but did not recall how that occurred. His next memory was of waking up in hospital and his eyes were hurting and he could not see.

The Complainant conceded that based on his past behaviour, he assumed that he had resisted the police officer and continued to resist until his nose was broken, after which he was taken to the ground and sprayed with OC spray.

There were no civilian witnesses present during the Complainant’s arrest, and although the 911 caller, CW #1, did stay with the Complainant until police arrived, he went home prior to the interaction occurring and the paramedics did not arrive until after the interaction was concluded.

While the subject officer declined to provide a statement or his memorandum book notes to SIU investigators, as was his legal right, based on the observations of WO #1 as well as the SO’s statement to WO #4 and the police transmissions recording a fairly clear picture of what occurred was able to be extrapolated from all of the reliable evidence, a summary of which follows.

On July 30^th, 2017, CW #1 called the GPS at approximately 4:42 a.m., reporting that there was “a guy absolutely passed out drunk right by the crosswalk lights” at the corner of Gordon and Water streets in the City of Guelph.

Several units were dispatched to the scene. The SO arrived first at 4:47:23 a.m., followed by WO #1 at 4:50:49 a.m. CW #1 observed the SO approach the Complainant and speak to him, and then shine his flashlight in his face, but the officer did not physically touch him. The Complainant did not respond to the officer. CW #1 then left and went home.

When WO #1 arrived, the SO was with the Complainant, who was sitting up against a pole and seemed confused; he refused to answer any questions or to identify himself. The SO told the Complainant that he was under arrest for being intoxicated in a public place. Emergency Medical Services (EMS) were also called as the Complainant could not be left alone in his intoxicated condition.

The SO then took the Complainant by the left arm and began to stand him up. The Complainant resisted and pulled back and then turned aggressively toward the SO, and

WO #1 heard the SO say, “Don’t do that.” The SO then performed a leg sweep to bring the Complainant to the ground, but the SO lost his balance, and they both fell to the ground with the Complainant hitting the ground face first, and the SO falling on top of him.

WO #1 then went to the Complainant’s left side and the SO to his right. The Complainant had both hands under his torso and was resisting, while the two police officers were trying to control his hands. At that point, WO #1 observed that the Complainant had blood on his nose and there was blood on the grass. The SO then struck the Complainant on the right shoulder three to five times with a closed fist to gain the Complainant’s compliance. When the strikes were ineffective in getting the Complainant to give up his hands for handcuffing, the SO deployed his OC spray.

The OC spray was apparently effective and WO #1 rolled the Complainant over, while the SO pulled out his right hand and handcuffed the Complainant with his hands behind his back.

When EMS arrived, the Complainant was still belligerent and refused to cooperate with paramedics either in respect of a physical examination or to answer any questions. He was described as kicking his legs and squirming. He was then placed on a stretcher, secured to the stretcher with handcuffs, and then transported to hospital.

Once at hospital, the Complainant was assessed as having sustained a comminuted and mildly displaced nasal bone fracture. His toxicology screening came back with a result of 55 mmol/L of alcohol in his blood, or the equivalent of 253 mgs of alcohol per 100 mls of blood (over three times the legal limit at which one can operate a motor vehicle in Canada, which is 80 mgs of alcohol per 100 mls of blood). The Complainant’s medical records have him noted as being belligerent, uncooperative, and kicking his arms and legs while at hospital.

Based on the Complainant’s own assessment of his behaviour when intoxicated, combined with the observations of the SO and WO #1, as well as the observations of the paramedics and hospital staff that the Complainant was belligerent, uncooperative, and kicking his arms and legs, I have no difficulty finding that the Complainant resisted police and tried to pull away from the SO.

While the Complainant was of the view that he came to be injured as a result of his head being smashed into the police car door after he was handcuffed, I do not accept his account, not only because he was extremely intoxicated, but because on the evidence of all persons present, no effort was ever made to put the Complainant into the police car and he was never taken anywhere near the police cruiser, as he was transported by ambulance to hospital.

I also accept the evidence of WO #1, which is consistent with the version of events provided by the SO to WO #4, that the Complainant was not yet handcuffed when he went to the ground with the SO, where he sustained his injury when he fell face first.

As indicated by the Complainant himself, his memory of the incident is vague due to his level of intoxication, and I find it would be unsafe to rely on his version of events alone to form reasonable grounds, due to his state of insobriety. On all of the evidence, it appears that the Complainant has confused the order of events and how he came to be injured.

Moreover, on all of the evidence, it is clear that both of the SO and WO #1 were acting lawfully and within their duties when they attempted to apprehend the Complainant for being intoxicated in a public place. Furthermore, they would have been derelict in their duties had they simply left the Complainant unconscious and inebriated on the street corner, as he clearly was unable to care for himself in his condition. As such, pursuant to s. 25 (1) of the Criminal Code, the police officers, and specifically the SO, would be exempt from prosecution, if their actions in apprehending the Complainant were no more than what was necessary and justified in the circumstances.

With respect to the amount of force used by the SO in attempting to apprehend the Complainant, taking into account that the Complainant was extremely intoxicated, combative, and resisting his apprehension by police, I cannot find that the SO’s actions in attempting to take the Complainant to the ground, in order to gain control over him, amounted to an excessive use of force in these circumstances. While the behaviour of the Complainant, unfortunately, caused the SO to lose his balance and they both fell to the ground together, with the SO falling on top of the Complainant and likely increasing the momentum and the force with which the Complainant struck the ground face first, I find that this result was unforeseeable in the circumstances and due primarily to the Complainant’s own actions and resistance.

Additionally, I note that despite his striking the ground with some force and breaking his nose, the Complainant continued to resist and struggle, forcing the SO to resort to further measures, including distractionary strikes to his shoulder and the deployment of the OC spray, before the SO could finally take control of the Complainant and handcuff him. On this evidence, I find that the actions of the SO progressed directly in proportion to the resistance being put up by the Complainant, and that they did not amount to an excessive use of force.

In coming to this conclusion, I a.m. 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 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 injury

which he sustained. 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: July 12, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit