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 28-year-old man during his arrest on May 10^th, 2017.

Notification of the SIU

At approximately 7:20 p.m. on Wednesday, May 10, 2017, the Sault Ste. Marie Police Service (SSMPS) notified the SIU about a custody injury sustained by the Complainant.

The SSMPS reported that police officers located the Complainant in the rear yard of a residence in the City of Sault Ste. Marie. The Complainant was wanted on several warrants and, following a foot pursuit, he was located hiding in a vehicle. A struggle took place during his arrest and the arresting police officer struck the Complainant with an open handed strike. The Complainant was processed at the SSMPS headquarters, where he complained of a sore jaw. He was then transported to the hospital where he was diagnosed with a fractured jaw.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

28-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

Witness Officers

CW #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

WO #5 Notes reviewed, interview deemed not necessary

WO #6 Notes reviewed, interview deemed not necessary

WO #7 Notes reviewed, interview deemed not necessary

Subject Officers

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

On Wednesday, May 10, 2017, the SO was provided a Crime Stoppers tip about the Complainant who had warrants outstanding for his arrest. The tip indicated that the Complainant could be located at his mother’s residence at an address in the City of Sault Ste. Marie.

At 2:41 p.m., the SO and WO #1 attended the address where they located the Complainant outside the residence. The Complainant asked to be allowed to go back inside the residence to give his mother some money, and he was allowed to do so. While inside the apartment, however, the Complainant left by a side door and fled from the police officers.

Once outside, the Complainant ran eastbound on the street and hid in the back seat of a motor vehicle parked at the rear of a residence. The SO and WO #3 found the Complainant and the SO commanded the Complainant to exit the vehicle, which he did.

The Complainant, who had a prior history with the SO and was of the view that the officer was harassing him, did not want the SO to arrest him and asked if WO #3 could do so instead. When the SO insisted that he would arrest the Complainant, the Complainant refused to put his hands behind his back and he struggled with the SO, but he neither assaulted the officer nor did he try to flee a second time. When the SO was unable to place the handcuffs on the Complainant, due to his resistance, the SO punched the Complainant with a closed fist to the left side of his chin.

The SO then led the Complainant to the front of the building where the Complainant refused to enter the rear driver’s door of the SO’s marked cruiser, again requesting to be transported by another officer as he objected to the presence of the SO. The SO then kneed the Complainant in the abdomen in order to get him to comply and to get him into the cruiser. The Complainant was subsequently transported to the SSMPS station where he was processed, following which he was taken to hospital.

Nature of Injuries / Treatment

The Complainant was assessed at hospital and had his jaw x-rayed; he was discovered to have sustained an acute minimally displaced fracture defined within the region of the neck of the left mandibular condyle (part of the joint attaching the jawbone or mandible to the skull).

Recommended treatment was a soft diet for three weeks, and if the fracture did not resolve itself, then jaw fixation for four to six weeks would be required.

The Scene

The scene was in the rear yard of a residence in the City of Sault Ste. Marie. The building was a two-floor building with apartments at the front and back. The front of the residence faced north and the back of the residence faced south. There was an alley at the rear of the residence which ran in an east/west direction. If one faced the front of the residence, west would be to the right side and east would be to the left side. There were driveways on both sides of the residence. The vehicle in question was a Nissan motor vehicle which faced in a westerly direction. SIU forensic investigators did not attend the scene; photographs of the scene were supplied by the SSMPS.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

No Video/Audio or Photographic Evidence was 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 SSMPS

• Police Transmission Communications Recording
• Arrest Reports for the Complainant
• Criminal History for the Complainant
• Custody Arrest Report
• Endorsement of the Complainant’s Arrest Warrant
• Event Details Report
• General Occurrence Report
• Prior General Occurrence Reports (involving both the SO and the Complainant)
• General Warrants of Committal (x3) for the Complainant
• Notes of WO #s 1-7 and one undesignated officer
• Procedure: Use of Force
• Procedure: Arrest Warrants
• Procedure: Arrest
• Scene Photos
• SSMPS Internal Email re Training Documentation
• SSMPS Lesson Plan-Use of Force Requalification (Fall 2015)
• SSMPS Lesson Plan-Use of Force Requalification (Fall 2016)
• SSMPS Lesson Plan-Use of Force Requalification (Winter 2013)
• SSMPS Lesson Plan-Use of Force Requalification (Winter 2014)
• SSMPS Lesson Plan-Use of Force Requalification (Winter 2016)
• SSMPS Lesson Plan-Use of Force Requalification (Winter 2017)
• Use of Force Report, and
• Warrant for Arrest with Optional Authorization to Enter a Dwelling-House for the Complainant

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

• Medical Records of the Complainant relating 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.

On Wednesday, May 10, 2017, the SO and WO #1 were provided with a Crime Stoppers tip concerning the Complainant. The tip indicated that the Complainant was at the residence of his mother, CW #1, at an address in the City of Sault Ste. Marie. Sometime between March and April of 2017, a committal warrant had been issued for the arrest of the Complainant as a result of failing to appear in Court.

When the SO and WO #1 attended the address at 2:41 p.m., the Complainant was standing outside the residence. The SO permitted the Complainant to enter his mother’s apartment to give her some money. Both the SO and WO #1 followed the Complainant into the building’s front door which faced the street. The Complainant entered his mother’s apartment, closed the door, and exited the apartment via the east side door. The Complainant, who indicated that he was terrified of the SO, given his past experiences,[1] raced eastward to the residence of his cousin. When he could not get into the residence, the Complainant then entered and locked the rear driver’s side door of a Nissan motor vehicle which was parked at the rear of his cousin’s building.

At 2:42 p.m., WO #3 observed the Complainant exit the east side door of his mother’s building and run eastbound. WO #3 indicated that the Complainant was unable to enter the front door of the house he ran to, and observed that he then ran south and to the rear, between the houses.

WO #3 broadcast this information to WO #1, who exited the mother’s apartment building running eastbound. WO #3 went to the rear of the cousin’s residence and found the Complainant trying to conceal himself in the back seat of a Nissan motor vehicle with tinted windows in the front and very dark windows in the rear.

The SO attended and parked his cruiser facing southward into the driveway located on the west side of the residence. The SO ordered the Complainant to open the door, or he would smash the window. The Complainant exited the vehicle within seconds, standing between the open door and the SO, who then attempted to handcuff the Complainant. The Complainant pleaded with the SO, without success, to permit WO #3 to arrest and handcuff him instead.

WO #3 observed the Complainant standing in the angle between the open door and the body of the Nissan, facing toward the front of the Nissan.When the SO informed the Complainant that he was under arrest, WO #3 noted that the Complainant would not put his hands behind his back, when he was directed to do so by the SO, and kept pulling his hands away. The SO told the Complainant to face forward and he tried to handcuff the Complainant with his hands behind his back.

During the struggle, the SO’s handcuffs fell to the ground. WO #3 told the Complainant to follow the demands of the SO and there would be no problem. However, the Complainant continued to resist and struggle. The SO punched the Complainant once with his right closed fisted hand on the left side of his face to gain compliance. The Complainant told the SO that the punch resulted in his jaw being broken. The Complainant stated that the SO punched him a second time with a closed fist on the left side of his face which resulted in the Complainant falling to the ground, landing on his left side.[2] WO #3 noted that the Complainant, apart from resisting being handcuffed, did not actively fight or attempt to strike the SO.[3] WO #3 stood to the left of the SO and WO #2, who had just arrived on scene, and then behind the SO, when the SO punched the Complainant. WO #3 then provided his handcuffs to the SO, who was able to handcuff the Complainant with his hands behind his back.

When WO #1 arrived at the arrest location, he observed that the SO had already handcuffed the Complainant with his hands behind his back. The SO and the Complainant were standing outside the police cruiser. CW #1 told her son to get into the police cruiser. The SO directed the Complainant to the rear driver’s side door of the marked cruiser. The Complainant refused to enter the cruiser and directed explicitly obscene language at the SO. WO #3 observed the SO then knee the Complainant in the abdomen, in order to get him to enter the cruiser.[4]

CW #3 and CW #2 were parked in their driveway on the east side of the residence. Both CW #3 and CW #2 had an unobstructed view of a parked minivan at the rear of the property, observed that the van appeared to be rocking, and heard the SO say, “Come out of the vehicle with your hands up.” CW #2 observed the Complainant exit the minivan struggling at first. CW #2 heard the Complainant say, “Don’t touch me.” CW #3 saw a police officer punch the Complainant two or three times with what appeared to be his right elbow, observed that the Complainant did not fall to the ground, and clearly heard the Complainant state, “I just want you to stop hitting me. I just want to see my mom.”

CW #1 observed the SO forcefully pushing her son down the driveway towards the police cruiser, forcing his head against the roof of the police cruiser, and kicking him in the abdomen. CW #1 told her son to relax and that he would be taken care of at the hospital. At this point, her son settled down. CW #1 was aware that her son had an eight year “violent” history with the SO.

The Complainant was transported to the SSMPS station where he was processed. WO #4 asked the Complainant about his sore jaw. The Complainant responded that he had his jaw broken when he was 13 years old and had 16 screws as well as a plate inserted into his jaw. WO #4 told the Complainant that the SO and WO #1 would transport him to the hospital, where he was later diagnosed as having a fractured jaw.[5]

On May 11, 2017, the Complainant’s jaw was x-rayed and it was determined that the Complainant had a fracture at the head of his jaw. The fracture was determined not to be significant and there was minimal displacement, with no problems with the Complainant’s occlusion (i.e. with his bite) and surgery was not necessary. It was determined that the best course of action was to monitor the occlusion, and to place the Complainant on a soft diet for approximately three weeks. It was the doctor’s opinion that the injury could have occurred from a forceful punch to either side of the jaw, and that a punch delivered to the opposite side of the fracture could radiate to the fractured side. The doctor further noted that the Complainant had a previous fracture to his jaw and surgery had been required at that time.

The first thing that must be decided is whether the police officers had the grounds to arrest the Complainant. There is no disputing that outstanding warrants relating to the Complainant were in existence, including one for failing to appear for court, and therefore the SO had the lawful authority to arrest the Complainant.

The question then becomes did the SO use excessive force by punching the Complainant in the jaw during the course of his arrest? In short, I believe the answer is no.

In carefully reviewing the totality of the evidence, I am satisfied that the evidence fails to give rise to a reasonable belief that the subject officer committed a criminal offence. Pursuant to section 25 (1) of the Criminal Code police officers are entitled to use force in the execution of their lawful duties, as long as the force in question is reasonably necessary in the circumstances.

In my opinion, the force used by the SO to effect the arrest of the Complainant was reasonable in all the circumstances, including, but not limited to, the following facts:

• the Complainant ran away after the police officers allowed him to go back into his mother’s home to supposedly repay her $50
• the Complainant then tried to enter another home in his effort to escape and then hid in a neighbour’s car
• when told to give up his hands, the Complainant refused to do so and struggled while insisting that another officer should handcuff him, and
• the Complainant struggled to such a degree that the SO dropped his handcuffs and had to borrow his colleague’s handcuffs in order to effect the arrest

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.), at p.218:

“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.”

The jurisprudence makes clear that while the conduct in question must be commensurate with the task at hand, police officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.)) or to be judged against a standard of perfection.

In the final analysis, I am satisfied for the foregoing reasons that the arrest of the Complainant, and the manner in which it was carried out, were lawful notwithstanding the injury which he suffered. I am, therefore satisfied on reasonable grounds that the actions of the SO fell within the limits prescribed by the criminal law. Accordingly, with respect to the subject officer, I can find no grounds for proceeding with criminal charges in this case.

Date: June 12, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The Complainant stated that the SO had been harassing him for about nine years relating to driving while under suspension and a spousal assault. A records check with the SSMPS from 2006 until the date of this incident showed that the SO had one street check, two harassing telephone call reports, one traffic complaint, two drive while suspended charges, and one domestic assault report involving the Complainant. [Back to text]
• 2) [2] No police officer or member of the public, except CW #3, indicated that a second closed fist strike was delivered by the SO on the Complainant. WO #3 did not witness a second strike which caused the Complainant to fall to the ground. CW #3 observed witnessing a police officer [now known to be the SO] punch the Complainant two or three times with what appeared to be his right elbow. CW #3 did not see the Complainant at any point fall to the ground. [Back to text]
• 3) [3] In a statement provided on June 6th, 2017 to SIU Investigators, CW #5 indicated that at no time did he see anyone punch or kick the Complainant. Subsequently, in a conversation with CW #1 (the Complainant’s mother), CW #5 allegedly stated that he saw everything that was happening in the backyard during the arrest, and that the SO punched the face of the Complainant three or four times while he was on the ground. Given the blatant contradictions between CW #5’s statements, if in fact he made the second statement to CW#1, CW #5 would obviously be an unreliable historian whose accounts of the incident could not be relied upon. [Back to text]
• 4) [4] It was WO #3’s belief that kneeing a person in the abdomen is a training technique to place an individual in the rear seat of a police cruiser. WO #1 stated that he did not witness the SO knee the torso of the Complainant. However, WO #2, who witnessed the knee strike to the torso of the Complainant, believed that the knee strike was delivered in an attempt to get the Complainant into the police cruiser. [Back to text]
• 5) [5] WO #4 enabled the Complainant to consult with a defense counsel. WO #4 released the Complainant at the hospital on a Promise to Appear. [Back to text]