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 an incident that occurred on May 12, 2007 where the conduct of a Peel Regional Police officer is alleged to have caused a serious injury to a 43-year-old male.

Notification of the SIU

On September 11, 2017, the Complainant notified the SIU of his injuries received in a May 12, 2007, incident with the Peel Regional Police (PRP).

The Complainant said that he was arrested by the PRP at his residence after the Peel Paramedic Services requested assistance from the PRP to get the Complainant to the hospital. The Complainant says he suffered kidney failure and nerve damage to both wrists, although the nerves in his left wrist repaired themselves. Further, he required surgery to both shoulders over the next couple of years.

The Complainant called to report the incident to the SIU after a lawyer suggested the incident met the SIU mandate.

The Team

Number of SIU Investigators assigned: 3

The SIU contacted the Complainant on September 11, 2017, and made arrangements to interview him. Medical records and PRP communications were also obtained and reviewed.

The SIU attempted unsuccessfully to obtain statements from the complainant’s ex-wife, the complainant’s physician and the paramedics involved in the incident.

Complainant:

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

Witness Officers

WO #1 Not interviewed, on long-term disability

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

Subject Officers

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

On May 12, 2007, the Complainant’s wife called 911 to report that the Complainant was in medical distress. WO #5 and WO #4 arrived at the complainant’s residence at around 10:12 a.m. The SO and WO #1 were already on scene, attending to the Complainant, along with four paramedics.

Precise details of the apprehension of the Complainant that followed are unclear. According to WO #5, the Complainant was lying on a bed, but woke up and was incoherent. The Complainant became combative and violent. WO #5 said the Complainant showed extreme strength similar to that exhibited by individuals described as being in a state of excited delirium. The paramedics gave the Complainant two doses of Versed, a sedative, but it was ineffective. The PRP officers and paramedics struggled to restrain the Complainant and, at some point, a police radio was activated. The radio communication’s recording captures someone requesting other units and screaming in the background.

The Complainant was eventually handcuffed and placed on a stair chair or stretcher. It is unknown who handcuffed him and there is conflicting information about how he was handcuffed. WO #5 said the Complainant was handcuffed with his hands behind his back. WO #2 said he was handcuffed using two pairs of handcuffs to restrain each wrist directly to the sides of the stretcher. WO #3 could not recall if handcuffs were used at all and said he held onto the Complainant’s right arm. The Complainant’s legs were also restrained, and while being transported to the ambulance he managed to free his legs and kicked at the paramedics and officers. The Complainant continued to violently move his arms and legs in the ambulance on the way to the hospital. At the hospital, the handcuffs were taken off but restraints were reapplied at the direction of a doctor. It is unknown if handcuffs or leather straps were used to restrain the Complainant at this point.

The Complainant’s wrists were red and raw after the handcuffs were removed.

It is alleged that the Complainant received injuries to his kidneys, shoulders and right wrist during his apprehension.

The Scene

Due to the age of the complaint there was no scene available.

Communications Recordings

On March 7, 2018, the PRP provided the communication tape for the incident. The tape contained 17 files. An audio copy report was also submitted. The audio copy report detailed the start time for each transmission in the communications tape. These times will be used in reporting the content of each file. The following is a synopsis of each file:

At 10:07:05 a.m., the Complainant’s wife called the 911 operator (ambulance services) to report an unknown medical problem with her husband, the Complainant. The Complainant was lying on the bed but was unresponsive and foaming from the mouth.

At 10:09:23 a.m., the police dispatcher dispatched units to an injured or sick person.

At 10:12:32 a.m., the first unit went to the residence.

At 10:16:59 a.m., WO #5 reported that the Complainant was semiconscious and the cause was unknown.

At 10:22:08 a.m., a scream was heard over the radio and the dispatcher started to check with the units at the residence. There was no response to the dispatcher’s enquiries but the dispatcher was aware that there was an open microphone. Other units came on the radio stating they would attend the residence. There was more screaming on the radio. An unknown unit came on the radio asking for another unit to attend. There was more screaming and the same unit requested a few units to attend. Another unit came on the radio stating there were enough units there.

At 10:25:23 a.m., there was more screaming over the radio. A unit stated that they were trying to restrain the male but he was not going down.

At 10:26:33 a.m., WO #5 came over the radio and there was screaming in the background. WO #5 reported that it was taking all the units on scene to restrain the Complainant and the paramedics were attempting to sedate him. The dispatcher then cleared the police unit that had not arrived from the call.

At 10:50:37 a.m., one unit reported that he was following the ambulance to the hospital and that another unit was in the ambulance.

At 11:18:00 a.m., a unit and the ambulance arrived at the hospital.

Between 11:18:14 a.m., and 13:56:08 a.m., a unit went to the hospital. He later told another unit to turn on his phone so they could talk. The other unit took WO #2 back to his vehicle and stated that the SO would be standing by at the hospital. WO #2 cleared the call but you cannot understand what he said to clear the call.

Materials obtained from Police Service

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

• Address Index Queries (2)
• Audio Copy Report
• CAD History
• Name Index Query (the Complainant)
• Notes of WO #2, WO #3, WO #4 and WO #5
• Occurrence Details
• Past Occurrence Reports (2002 - 2016) (not relevant)
• Person Details-the Complainant, and
• Radio communications

Section 17, Mental Health Act - Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person
5. serious bodily harm to another person; or
6. serious physical impairment of the person

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

Sections 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.

It is alleged that the Complainant sustained nerve damage to his right wrist following an incident with Peel Regional Police (PRP). In 2007, PRP officers responded to a 911 call reporting that the Complainant was in medical distress. When the PRP officers arrived, the Complainant became violent and was handcuffed. While there is circumstantial evidence that the use of handcuffs resulted in an injury to the Complainant’s right wrist, I find no reasonable grounds to believe the SO or any other PRP officer committed a criminal offence in relation to the incident.

The SIU’s investigation consisted of interviews with the Complainant and four witness officers, as well as a review of the interviewed officers’ notes, radio communications, and the Complainant’s medical records.

On the basis of this evidence, I have no reasonable grounds to believe that a PRP officer committed a criminal offence in relation to the Complainant’s injuries. The PRP officers were acting in accordance with their lawful duties when they responded to a 911 call reporting the Complainant’s medical distress, and upon finding the Complainant incoherent, took him into custody. Pursuant to s. 17(c) of the Mental Health Act, the PRP officers had the authority to apprehend the Complainant because he was unable to care for himself and suffering from an apparent mental disorder which may have resulted in serious bodily harm to himself or possibly others. I also find that the police had the authority to apprehend the Complainant under their common law duty to protect his life (R. v. Godoy, [1999] 1 S.C.R. 311).

I accept that there is some evidence linking the use of handcuffs and the Complainant’s nerve damage; however, this evidence is circumstantial at best. Assuming the nerve damage was caused by the handcuffs, there is no evidence that suggests the PRP officers set out to intentionally hurt the Complainant, used excessive force or were otherwise criminally negligent by handcuffing him. The Complainant was violent, showed considerable strength and was unable to be sedated. It took several police officers and four paramedics to restrain him. Section 25(1) of the Criminal Code permits police officers to use force that is reasonably necessary in the execution of their lawful duties. The PRP officers undoubtedly used some force to restrain the Complainant and apply handcuffs, but there is no evidence that the officers applied any other force in restraining him. For instance, they neither punched him, kicked him or used any weapons in doing so. The overwhelming body of evidence indicates that the PRP officers were attempting to help the Complainant and any use of force was limited to what was reasonably necessary in the circumstances. The jurisprudence has clearly stated that the standard to which officers are to be held is not perfection (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, there is no evidence that the officers were criminally negligent in their apprehension of the Complainant. The Complainant did not complain about pain caused by the handcuffs and the handcuffs were not applied tightly. While softer restraints may have been preferable[1], the use of handcuffs in the circumstances was not unreasonable.

It is also alleged that this incident resulted in the Complainant’s kidney failure and shoulder injuries. This is not substantiated by the medical evidence.

In conclusion, I have no reasonable grounds to believe the subject officer or any PRP officer committed a criminal offence with respect to the Complainant’s apprehension. While there is some evidence that the Complainant’s wrist was injured when he was apprehended, the PRP officers did not use unreasonable force, applied the handcuffs in the lawful execution of their duties, and were not negligent in doing so. As such, no charges will issue and this case will be closed.

Date: July 6, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit