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 reportedly sustained by a 45-year-old man during his arrest on September 13^th, 2017.

Notification of the SIU

At approximately 8:10 p.m. on September 13^th, 2017, the Espanola Police Service (EPS) notified the SIU of the custody injury to the Complainant.

The EPS reported that on September 13^th, 2017, at approximately 5:30 p.m., EPS police officers responded to a domestic dispute at a residence in the Town of Espanola. Police subsequently arrested a man [now determined to be the Complainant] and took him to the ground.

Sometime after the arrest, the Complainant was taken to the police station where he complained of a sore shoulder. An ambulance was called and he was taken to hospital where he was diagnosed as having sustained a fractured right shoulder.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Forensic Investigators attended and photographed the scene and the injuries sustained by the Complainant.

Complainant:

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

Witness officers

WO #1 Interviewed, notes received and reviewed

Subject officers

SO #1 Interviewed, notes received and reviewed

On September 13^th, 2017, at approximately 5:30 p.m., the SO and WO #1 responded to a 911 call reporting a domestic assault as having just taken place at a residence in the Town of Espanola. Upon arrival, the officers confirmed the information from the 911 call that the Complainant had assaulted his domestic partner, as well as that he had smashed the windshield of a motor vehicle parked in the driveway. When the officers placed the Complainant under arrest for Assault, he refused to give up his hands for handcuffing and resisted the officers. Both police officers then simultaneously decided to take the Complainant to the ground in order to complete the handcuffing process, and each swept one leg out from under him, causing him to fall heavily to the ground.

As the Complainant struck the ground, he injured his shoulder.

The Complainant was then transported to hospital and assessed.

Nature of Injuries / Treatment

The Complainant attended hospital and was diagnosed with having sustained a mildly comminuted fracture involving the surgical neck (joint) of the right humerus (the bone in the upper arm) which was predominantly non-displaced.

The scene

The Complainant was arrested outside of his residence in the Town of Espanola. The scene was not held for SIU purposes.

Forensic evidence

No submissions were made to the Centre of Forensic Sciences.

Video/audio/photographic evidence

No video or audio recordings or photographic evidence were located.

Communications Recordings

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 EPS:

• Event Details Report
• Notes of WO #1 and the SO
• Video Statement of CW #s 2 and 3
• Photos of Injuries to the Complainant
• 911 Call Recording
• Police Transmissions Communications Recordings
• Occurrence Summary Report
• Prisoner Log Sheet Report
• Procedure: Use of Force
• Procedure: Police Response to Persons who are in distress
• Procedure: Arrest, and
• Training Record for WO #1 and the SO

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

• Medical Records of the Complainant related to this incident, and
• Ambulance Call Report

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 265, Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

1. the application of force to the complainant or to a person other than the complainant
2. threats or fear of the application of force to the complainant or to a person other than the complainant
3. fraud; or
4. the exercise of authority

Section 266, Criminal Code – Assault

266 Every one who commits an assault is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction

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 September 13^th, 2017 at approximately 5:30 p.m., a 911 call was received by the Espanola Police Service (EPS) requesting police assistance with respect to a domestic disturbance at a residence in the Town of Espanola wherein it was alleged that the Complainant had struck his wife in the head with an object.

The SO and WO #1 responded to the call. WO #1 arrived at the residence first and spoke to CW #2 and CW #3, following which she determined that she had reasonable grounds to arrest the Complainant for domestic assault against his wife. WO #1 then exited the residence and approached the Complainant and advised him that he was under arrest for domestic assault. Following the Complainant’s arrest, he was later transported to hospital where he was assessed and it was determined that he had sustained a mildly comminuted fracture (a break or splinter of the bone into more than two fragments) involving the surgical neck of the right humerus (the bone at the top of the arm that fits into the shoulder socket) which was predominantly non-displaced (the bone did not move and maintained its proper alignment).

The Complainant was described as a very large male, approximately 6’3” in height and weighing more than 300 pounds, who was suffering from diabetes and had previously had a fistula surgically created in order to accommodate dialysis (a fistula is a surgically created vein used to remove and return blood during hemodialysis). The Complainant’s fistula was located in his left forearm and created a bulge under the skin and was described by the Complainant as vibrating as the blood flowed through the artificially created vein. In order to avoid restricting the blood flow through the fistula, the Complainant indicated that, some precautions had to be taken including avoiding the application of pressure to the forearm and avoiding tight clothing.

The Complainant, in his statement to SIU investigators, stated that he was approached outside of his residence by WO #1, who advised him that she was arresting him for domestic assault. According to the Complainant, he pulled back his arms and raised his hands in a surrendering position and tried to explain to the police that he had a fistula in his arm and could not be handcuffed. Instead, each police officer held one of his arms from the side, pulling his hands behind his back. The Complainant described the SO as being on his right side and holding his right arm and then placing his leg in front of the Complainant and pushing him forward, tripping him to the ground while still holding his hands.

The Complainant indicated that he then landed face down on the ground, with his face and right shoulder striking the ground, and he felt pain in his shoulder and received a cut to the bridge of his nose and his left cheek. The Complainant explained that because of his obesity and the numbness in his legs from the dialysis, he had difficulty getting up and he pleaded with the police officer to allow him to catch his breath. The Complainant acknowledged that he was angry because the police officers would not listen to his side of the story.

Both police officers then handcuffed his hands behind his back and tried to lift him off of the ground, which caused a great deal of pain to the Complainant’s right shoulder; when they were unable to get the Complainant to his feet, the officers again tried to lift the Complainant by his arms but could not, and the Complainant again felt severe pain to his right shoulder area. The Complainant subsequently got his legs under him and the police officers then lifted him again and he was able to get to his feet. The Complainant professed that he was not being aggressive with the police officers and he would have been cooperative if the police officers had listened to his explanation about the fistula. The Complainant was later transported to hospital where the doctor determined his right shoulder joint was broken.

During the course of this investigation, seven civilian witnesses and both of the arresting officers were interviewed. On all of the evidence, there is little dispute as to the actions of the police officers, but some dispute as to the actions of the Complainant, as outlined below.

The SO stated that upon his arrival at the residence, he observed an SUV with a broken windshield in the driveway and enquired what had happened, whereupon he was told by CW #1, the complainant’s brother, that the Complainant had smashed the windshield with a wrench; this was admitted by the Complainant to the SO at the scene and is confirmed by CW #1 in his statement to SIU investigators. The SO indicated that he was unaware of the location of the wrench at that time, nor was he aware of whether the Complainant had any weapons on his person, as a result of which he took precautions with the Complainant and was concerned during the arrest process when the Complainant would not cooperate and give up his hands for handcuffing.

While the Complainant was of the view that he had not resisted, but rather took up a position of surrender when WO #1 told him he was under arrest, WO #1 indicated that when she advised the Complainant that he was under arrest and told him to turn around so that he could be handcuffed, he instead faced her and put his hands up near his shoulders but out from his body and said, “No”; WO #1 interpreted his stance as “Don’t touch me,” rather than one of surrender.

The SO described hearing the Complainant tell WO #1, “That’s bullshit. I didn’t do anything,” after which he leaned and then stepped slightly forward. When WO #1 repeated that the Complainant was under arrest and told him to put his hands behind his back, the SO described the Complainant as continuing to argue, telling her that he had done nothing wrong.

This version of events appears to be confirmed by the evidence of CW #4, who observed the two police officers speaking to the Complainant and heard him yelling and saying, “Don’t touch me,” as well as pulling away from the police officer when he was told that he would have to come with them, and by the evidence of CW #1, who observed the Complainant resisting the police officers as they tried to place him in handcuffs.

One of the paramedics, CW #7, indicated that she heard the Complainant yelling in a loud voice while the police officers were trying to handcuff him; CW #7 described the police officers as firm with the Complainant, but not angry.

Both of the police officers stated that they repeatedly told the Complainant to give up his hands for handcuffing, with the SO telling the Complainant to stop resisting and WO #1 stating, “Come on, just cooperate.”

WO #1 stated that when she grabbed the Complainant’s left wrist to place him in handcuffs, the Complainant took a step forward and kept his arm very rigid and immobile when WO #1 tried to place the Complainant’s hand behind his back for handcuffing.

The SO indicated that when he tried to move the Complainant’s arm, it would not budge, causing the SO to use more force to move the Complainant’s arm, with the Complainant pulling his arm to break contact with the SO. When the SO tightened his grip and used more force to move the Complainant’s arm, the Complainant balled his right hand into a fist and held it at the SO’s torso. The SO advised that because he was unsure if the Complainant had a weapon or not, he did not wish to wrestle with the Complainant, instead, he tried to force him to the ground by using his right wrist, and when that was unsuccessful and he was unable to move the Complainant, the SO used more force to pull the Complainant forward and down, while at the same time placing his left foot in front of the Complainant’s leg, effectively tripping him.

WO #1 advised that she simultaneously placed the heel of her right foot in front of the Complainant’s left leg and pushed him forward. As a result of the simultaneous actions of both the SO and WO #1, the Complainant suddenly fell forward with the force of his body, while the officers maintained their grips on his arms and continued to try to put his hands behind his back for handcuffing.

The SO described the Complainant as falling to the grass face first and once he was face down on the ground, he tried to pull his arms under him. Again, both officers repeatedly told the Complainant to stop resisting, following which the SO placed his left knee on the Complainant’s mid to lower back and pinned him to the ground. The SO described CW #1 yelling at the Complainant to stop resisting, with the Complainant finally complying and he was handcuffed.

Once handcuffed, the Complainant was unable to get up off of the ground on his own, and the SO tried to pull the Complainant into a sitting position by pulling on his left side, after which both officers rocked the Complainant and pushed on his knees and he was eventually able to sit up, and then get to his knees and finally to his feet. The SO described the action as taking some effort and he tried to pull the Complainant up by his arm, which was unsuccessful, following which he put his right arm underneath the Complainant’s left armpit and, using his legs and considerable force, the SO was able to get the Complainant to his feet.

On all of the evidence, despite the Complainant’s own view as to whether or not he was resisting the police, I accept the evidence of WO #1 and the SO in this regard, as it is corroborated by the two civilian witnesses, CW #1 and CW #4, that the Complainant was indeed resisting, that in response to being told that he was under arrest and to give up his hands for handcuffing, he refused and expressed his opinion that this was ‘bullshit’ and yelled at the police, “Don’t touch me,” following which he pulled and pushed away from the police officers and continued to physically resist as they tried to handcuff him. I further accept that the Complainant was resisting to such a degree that CW #1 eventually intervened and yelled at him to stop resisting and do what the officers told him to do.

I also accept on the evidence of the SO that the information that he had received from CW #1 that the Complainant had, just prior to the police arrival, smashed the windshield of the motor vehicle with a wrench, which evidence was confirmed by the complainant, supported the SO’s belief that he had a valid concern that the Complainant might still be armed with a weapon and present a risk to himself and his partner.

Furthermore, I do not believe the Complainant’s version of events that he was calm and compliant and surrendered himself to police without any resistance on the basis of the following evidence: the Complainant’s smashing of the vehicle windshield; the argument between himself and CW #2 that caused CW #3 to contact her boyfriend, whose mother, in turn, was so concerned that she called the police; the observations of both CW #4 and CW #7 that the Complainant was yelling at police in an angry voice; that the Complainant was very angry, even prior to the police arrival; and also that that anger continued when police tried to arrest him leading to his being noncompliant, yelling, and actively resisting police efforts.

I further accept that the technique resorted to by both police officers to bring the Complainant to the ground by tripping him, or sweeping his feet out from under him, is one that is taught by the police college as an accepted and effective method by which to control and handcuff a resistant person. I infer that despite the police officers’ resort to the technique that they had been trained to use, the Complainant fell to the ground with more force than anticipated due to the fact that both officers simultaneously resorted to the same technique, thereby taking both legs out from under the Complainant, and to the fact that the Complainant’s significant size and weight increased the force with which he hit the ground.

Finally, despite the fact that the Complainant experienced pain when the officers tried to lift him to his feet by his arms, I accept that it was not the police officers’ intention to do so. It is clear from all of the witnesses, including the Complainant himself, that the Complainant was unable to get to his feet on his own and the officers were having a great deal of difficulty in assisting the Complainant to his feet because of his significant bulk.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, based on the content of the 911 call which indicated that the Complainant had struck his wife in the head with an object, and WO #1’s subsequent interview with both CW #2 and CW #3 at the house, I have no hesitation in finding that WO #1 had reasonable grounds to arrest the Complainant for assault and/or assault with a weapon contrary to sections 266 and 267 respectively. As such, the arrest and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the officers in their attempts to subdue the Complainant, I find that their behaviour was justified in the circumstances and that they used no more force than necessary to arrest and handcuff the Complainant.

On all of the evidence, I accept that the Complainant was both verbally and physically non-compliant when WO #1 advised him that she was arresting him for domestic assault and that he both pulled and pushed away from the officer and angrily told both officers not to touch him and that he considered the arrest to be ‘bullshit’.

While I accept that the Complainant obviously had a fistula in his left forearm, which would have caused him concern with respect to his being handcuffed, I find on the evidence that the Complainant’s primary objection did not relate to the complications of the fistula, but rather related to his belief that his arrest was unjustified and to his obvious extreme anger, as observed not only in his reaction to police, but in his prior irrational behaviour in smashing the motor vehicle parked in his own driveway.

Faced with the Complainant’s active resistance, his imposing size, and the fact that he might still be in possession of the weapon that he had used to smash the windshield of the motor vehicle, I find that the actions of the two police officers in taking the Complainant to the ground in order to effect his arrest were reasonable in the circumstances and did not amount to an excessive use of force.

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.

As such, although I accept that the Complainant’s injury was caused by the police when they took him to the ground, I cannot find their actions to amount to an excessive use of force in these circumstances. On the evidence of CW #7, I accept that while the Complainant was angry, the two police officers were firm but not angry. Furthermore, on the evidence of all of the witnesses, including the Complainant himself, at no time did either police officer resort to any of their available use of force options, nor did either officer ever punch, kick, or strike the Complainant. Once the Complainant was handcuffed, the only physical contact the police officers had with him was to attempt to assist him to his feet, which obviously inadvertently caused him additional pain due both to his bulk and the injury he had sustained during his fall. It is further clear, on all of the evidence, that had the Complainant not resisted his arrest, he would not have been injured.

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 there are no grounds for proceeding with charges in this case.

Date: June 14, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit