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 sustained by a 49-year-old man during his arrest on January 25^th, 2013.

Notification of the SIU

At approximately 12:55 p.m. on Wednesday, June 14^th, 2017, the Peel Regional Police (PRP) contacted the SIU and advised that while conducting an unrelated internal investigation, PRP Professional Standards was provided a copy of a Superior Court decision relating to the conduct of PRP officers during the arrest of a suspected drug dealer in January of 2013. PRP involved police officers were Witness Officer (WO) #6, the Subject Officer (SO) and WO #7. The police officers were attached to the Street Crime Unit (SCU) at the time of the incident.

The PRP reported that on January 25^th, 2013, the Complainant was observed by PRP officers conducting a drug transaction in the area of an apartment building on Bathurst Street in the City of Toronto. The police officers followed the Complainant’s vehicle and later executed a vehicle stop where they boxed in the vehicle. The Complainant was apparently removed from his vehicle and as a result suffered a fractured rib. Since the offence and arrest occurred in the Toronto area, Toronto Police Service (TPS) officers were called to the area and took custody of the Complainant and processed the charges.

Between October 27^th and 30^th, 2015, a motion to stay the charges based on a violation of the Complainant’s rights pursuant to the Canadian Charter of Rights and Freedoms was heard before a Superior Court Justice and the charges against the Complainant were stayed due to police misconduct. This ruling had apparently only come to the attention of PRP Professional Standards Bureau recently and the PRP then notified the SIU.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 0

Complainant:

53-year-old male interviewed (aged 49 at the time of the incident), medical records obtained and reviewed

Civilian Witnesses

Due to the passage of time, no civilian witnesses could be located or identified.

Witness Officers

WO #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 Interviewed, notes received and reviewed

WO #7 Interviewed, notes received and reviewed

Police Employee Witnesses

PEW #1 Interviewed, notes received and reviewed

PEW #2 Notes reviewed, interview deemed not necessary

Subject Officers

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

While the subject officer declined to provide his notes for review, since the matter had

already proceeded through the courts, the notes were provided by the Department of

Justice.

The PRP SCU had received information that a wanted person, Mr. X., was dealing drugs to a resident at an address on Bathurst Street in the City of Toronto. The SCU set up surveillance of the building on the evening of January 25^th, 2013.

The SCU members observed what they believed to be a drug transaction occur in a small dark coloured vehicle and followed the driver for some distance before boxing the vehicle in at the intersection of Kipling Avenue and Rexdale Boulevard, and pulling the driver from the vehicle and placing him on the ground. The driver suffered a chipped tooth during the arrest.

Once arrested, it was discovered that the driver was not, in fact, the wanted party, but turned out to be the Complainant. A quantity of drugs and cash was, however, seized from the Complainant’s motor vehicle. TPS police officers then responded and processed the charges against the Complainant. Following the Complainant’s release on bail, he attended the hospital on his own for assessment and treatment. The injury was not reported to the police and they were not aware that there had been an injury until the matter was brought up in court in October of 2015.

Nature of Injuries / Treatment

The Complainant was seen at the hospital on January 27^th, 2013, complaining of a rib injury. He was diagnosed with a fracture of the 10^th rib on his right side which was minimally displaced. He was given pain medication, with no further treatment being required.

The Scene

The arrest of the Complainant occurred on a paved roadway on Kipling Avenue, on the south side of its intersection with Rexdale Boulevard, in the City of Toronto. The road was described as being snow covered and slippery at the time of the Complainant’s arrest. Due to the passage of time, the scene was no longer capable of providing any evidence of the incident.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Due to the passage of time, no video or audio recordings, or photographic evidence, could be located.

Communications Recordings

The communications recordings from the date in question were obtained and reviewed.

Transcript of Application to Stay Proceedings

This matter was heard in Superior Court between October 27^th and 30^th, 2015. The SIU obtained the CD of the hearing on October 28^th and 29^th; unfortunately the CD of the first day of evidence, which included the majority of the Complainant’s evidence, had been lost by courts administration and was no longer available; the decision of the Justice hearing the matter was also obtained and the evidence heard was transcribed. The Justice hearing the application for a stay of proceedings granted the application and stayed the charges against the Complainant.

Materials obtained from Police Service

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

• Event Details Report
• Notes of WO #s 1-7 and PEW #s 1 and 2
• PRP Occurrence Details Reports (x2)
• PRP Repair Records for Damaged Vehicles
• PRP Taser Download Data for the Taser used by WO #7
• Photos of Damage to PRP Unmarked Vehicle Operated by WO #6
• Summary of Conversation
• Police Transmission Communications Recording
• TPS CIPS Legacy Report for the Complainant
• TPS Contact History, and
• TPS General Occurrence Report

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

• Audio recordings of evidence heard at the Preliminary Hearing
• Audio recordings of the Motion to Stay Proceedings Hearing
• The Complainant’s medical records relating to the incident
• A copy of the decision of the presiding Justice, and
• A copy of the prosecution brief

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 4(1), Controlled Drugs and Substances Act - Possession of substance

4 (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.

Section 5(1), Controlled Drugs and Substances Act – Trafficking in substance

5 (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

Section 5(2), Controlled Drugs and Substances Act - Possession for the purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

The Peel Regional Police (PRP), just prior to January 25^th, 2013, received an anonymous tip regarding a wanted party, (who I shall refer to as Mr. X. for ease of reference), a known drug dealer who had recently escaped from police during the execution of a search warrant, and who had twice been deported from Canada, but had managed to return to the country and carry on his illegal drug trade.

The informant indicated that he knew Mr. X. to deal drugs to a gentleman named Mr. Y. (also for ease of reference, as the identity of these two individuals is not germane to this investigation) who resided in an apartment building on Bathurst Street in the City of Toronto; that the drug deals usually occurred at that address and in the evenings; that Mr. X. would attend at the address in a small black car; and, that the transactions involved a quick pick up.

As a result of receiving this information, and knowing that Mr. X. was wanted by police for both narcotics offences and immigration violations, the Street Crime Unit (SCU) of the PRP decided to set up surveillance at the address on Bathurst Street in the hopes of apprehending Mr. X.

On the evening of January 25^th, 2013, the SCU set up surveillance on the apartment building, with several officers outside of the building in their unmarked motor vehicles, and one officer inside the lobby of the building keeping an eye out for Mr. Y.

As had been indicated by the informant, at approximately 8:30 p.m., the police officer inside the lobby notified the officers outside in their vehicles that Mr. Y. was exiting the building. The officers conducting surveillance outside of the building also observed a small black Pontiac Vibe approach the building, following which Mr. Y. got into the car, the car circled the building, and Mr. Y. then exited the car, and the car drove off. From the experience of the involved police officers, all were of the belief that a drug transaction had just taken place inside the motor vehicle.

Based on the confirmation of the tipster’s information as to how the transaction was going to be carried out, the police officers were also convinced that the driver of the car was Mr. X. and they decided to follow his vehicle to stop and arrest him for the drug transaction, as well as the other outstanding matters.

According to the police officers who were involved in the surveillance, the weather conditions on that date were poor and involved a severe snow storm. As a result, when the five vehicles involved in attempting to stop and detain the Pontiac Vibe and to arrest Mr. X. began to follow the car, they became separated as they entered onto the 401 highway, resulting in only three of the team members managing to get in behind the Pontiac, with the remainder becoming held up behind a series of snow plows.

According to the website http://climate.weather.gc.ca/climate, on January 25^th, 2013, the temperature reached a high of minus 8 and a low of minus 15, there was 2.2 cms of snowfall on top of 1 cm that had already accumulated on the ground, and the speed of the maximum wind gust was less than 31 km/h.

As the Vibe approached and stopped at a red light at Kipling Avenue and Rexdale Boulevard, only WO #7, WO #6 and the SO were still behind the Pontiac vehicle, in three individual unmarked police vehicles. At approximately 9:30 p.m., WO #7 made the call that the driver of the Vibe was to be approached and arrested.

Shortly thereafter, the arrest of the driver was effected and he was removed from the vehicle, put down onto the ground, handcuffed and arrested. The driver of the motor vehicle, however, was not the anticipated Mr. X., but rather the Complainant. Despite the fact that the driver was not the target party, police still arrested the Complainant for offences of possession of, and trafficking in, narcotics, based on their observations of what they believed to have been the drug deal carried out at the address on Bathurst Street and the discovery of a number of individually bagged packages of powdered cocaine and crack cocaine in the centre console of the Complainant’s motor vehicle.

The Complainant was ultimately transported to the police station and processed. The following day, he was released on bail at the courthouse. The police were unaware that the Complainant had suffered an injury.

Following the Complainant’s release, his charges pursuant to the Controlled Drugs and Substances Act made their way through the courts, with first a preliminary enquiry and then a date set for trial in the Superior Court of Ontario. Two pre-trial motions were to be heard before the Superior Court beginning on October 27^th, 2015, almost two years after the arrest was made. At those pre-trial motions, it was alleged that the three police officers resorted to an excessive use of force in arresting the Complainant.

That motion was successful, and on March 8^th, 2016, the Superior Court Justice released her decision granting the defence their request for a stay of the proceeding against the Complainant, and the charges against the Complainant were stayed as it was the view of the presiding Justice that the Complainant’s rights pursuant to the Canadian Charter of Rights and Freedoms had been violated due to the use of force exercised by the three police officers during his arrest, and that to proceed to trial would bring the administration of justice into disrepute.

In the intervening period, from the arrest date of January 25^th, 2013, and the date of the stay on March 6^th, 2016, no complaint of misconduct on the part of the three police officers was ever made either to the Office of the Independent Police Review Director (OIPRD) or the SIU. As a result, no civilian witnesses were identified, the scene was not preserved and could no longer be investigated, and there was no evidence remaining to be gathered.

Nor was any complaint made against these three police officers following the court ruling.

On June 14^th, 2017, the PRP Professional Standards Bureau was provided with a copy of the Justice’s decision granting the Charter application and the SIU was notified by the PRP on that same date.

Unfortunately, in the intervening period, the first day of the evidence called at the Charter application, that being the evidence in chief of the Complainant, was apparently lost by court’s administration and was no longer available for review by the SIU. As such, in order to form reasonable grounds to believe that these three police officers resorted to an excessive use of force during the arrest of the Complainant, I had only the brief cross-examination transcript of the Complainant, from his Charter application, as well as the Complainant’s recollection of events now over four years after the event.

In addition to the evidence of the Complainant, SIU investigators also interviewed 7 police and 2 police employee witnesses, although of these witnesses, only WO #7 and WO #6 were present during the arrest and had direct material evidence to offer. SIU investigators also had access to the remaining court record from the pre-trial applications made at the Complainant’s trial, as well as the preliminary hearing transcript and the prosecution file, although the bulk of the material in the file was obviously directed at the prosecution of the Complainant, and not at the alleged misconduct of the three arresting police officers.

The subject officer (SO) declined to be interviewed or to provide his memorandum book notes for review, as was his legal right; as indicated earlier, however, the SIU did have access to the SO’s notes as they were contained in the prosecution file.

While I have reviewed the evidence of the SO under oath both at the preliminary enquiry and the pre-trial motions, I hasten to note that pursuant to s. 3 of the Canadian Charter of Rights and Freedoms, the SO, as would any accused person, is protected from self-incrimination and, as such, the transcript evidence of the SO’s evidence is not available to the Crown to be used as evidence in any trial against the SO. Furthermore, should the evidence establish that either or both of WO #7 or WO #6 are equally responsible for the injuries to the Complainant, then the transcripts of the their evidence, as well as their statements to the SIU, would also not be available to the Crown at trial. As such, in analyzing the available evidence, I have been careful not to rely upon any evidence which would not be admissible at trial, in order to form my opinion.

The analysis that I am tasked with is to determine if, on the available and reliable evidence before me, I am able to form reasonable grounds to believe that any, or all, of the three arresting officers resorted to an excessive use of force in arresting the Complainant and that force resulted in his injuries, or whether their actions were justified pursuant to s. 25 (1) of the Criminal Code of Canada, in that they were acting within their lawful duties and used no more force than necessary to achieve that lawful purpose, in which case, they would be exempt from prosecution under s. 25 (1).

I also wish to clarify that the fact that the Superior Court Justice found that the Complainant’s Charter rights had been infringed by an excessive use of force by the officers, does not necessarily equate with a finding that there are reasonable grounds to believe that these officers committed a criminal offence. Nor can I substitute the Justice’s opinion for my own, as I, specifically, must be satisfied that there is sufficient evidence upon which I can form the belief that these officers committed a criminal act; no other belief being relevant to this decision.

According to the statement of the Complainant to SIU investigators, he was driving his Pontiac Vibe on the evening of January 25^th, 2013, in the area of Bathurst Street and Wilson Avenue in the City of Toronto and was unaware of the presence of police following him. He agreed that he had stopped at an apartment building for a short period of time and then drove away, ultimately stopping at a red light at the intersection of Kipling Avenue and Rexdale Avenue.

The Complainant stated that as he sat in his motor vehicle, one unmarked police vehicle pulled up on either side of his vehicle and turned sharply in front of him, blocking his path forward. He observed one man exit each of the SUVs with their guns drawn and pointed in his direction. The Complainant knew that these men were police officers and clearly heard one of the offices yelling at him to keep his hands in sight and to get out of the car.

The Complainant placed the car in park and WO #7 opened the driver’s door. As the Complainant stepped from his vehicle, he heard WO #7 yelling, “get down on the ground,” so he started to get to his knees, at which point he was pushed or pressed down onto the ground on his stomach. He stated that he offered no resistance and the police officers handcuffed him behind his back.

The Complainant recalled that the police officers continuously referred to him as someone named, “Mr. X.”

The Complainant observed that a third police officer then approached from his motor vehicle and joined the first two who were with the Complainant.

The Complainant indicated that one of the police officers, who he could not identify, then struck the back of the Complainant’s head with a punch or a push which caused his face to strike the ground and break one of his front teeth. He further described other blows being delivered, including knee strikes, or kicks to his torso, head and temple. He was also ‘Tasered’ in the left shoulder area twice.

The Complainant stated that the police then located his identification, as well as a quantity of cocaine, in his car. Once satisfied that the Complainant was not Mr. X., the Complainant indicated that the police began to act more calmly and treated him differently, laughing and commenting that the Complainant had just been in the wrong place at the wrong time.

After his release the following day, the Complainant went to the hospital where it was discovered that he had sustained “a right lateral 10^th rib fracture, minimally displaced. No other fracture is suspected. No pneumothorax” (collapsed lung). The Complainant was also observed to have a broken tooth.

While the Complainant alleged that he was beaten during his arrest, it is important to note that he was unable to differentiate between which officer did what, nor could he identify any of the three police officers. His only point of reference as to what each police officer did was based on what the police officer had himself testified to at the Complainant’s hearing, that being that WO #7 indicated that he used his Conducted Energy Weapon (CEW) in drive stun against the right shoulder of the Complainant for three to four seconds, and that the SO testified that he punched the Complainant twice with his right hand, in a fist, to the right side of his body.

According to WO #7, he was the first police officer to exit his vehicle after the three police vehicles had boxed in the Pontiac. WO #7 stated that as he approached the Pontiac, he observed that the driver of the Pontiac had put his car into reverse and was backing up and struck the front of WO #6’s police vehicle with sufficient force to damage the grille and buckle the hood.

This evidence appears to be at least partially confirmed by a repair estimate for WO #6’s vehicle, which outlined the damage to the vehicle and the cost of repairs, including repairs to the bumper, the hood, and the head lamps. WO #7 indicated that he drew his firearm and pointed it at the Complainant, yelling at him to stop, which he then did.

WO #6 indicated that he pulled up as close behind the Pontiac as possible, in order to secure ‘the box’, while WO #7 and the SO blocked the vehicle to the front by placing their vehicles in a “V” shape blocking his path. WO #6 indicated that he observed the Pontiac’s reverse lights come on, following which it reversed into the front of his SUV and then stop. This evidence is consistent with the testimony of the SO.

WO #7 approached the driver’s door and opened it, while at the same time, WO #6 and the SO both approached the driver’s door of the Pontiac, moving past WO #7, and pulled the Complainant from the vehicle. According to WO #7, the Complainant was struggling and trying to prevent his removal from the car. The Complainant was then quickly removed from the car and taken face down to the ground, landing on his stomach, with his hands underneath his body.

All three police officers indicated in their testimony that they were attempting to pull the Complainant’s hands out from under his body and that he was refusing to comply. In the transcript, WO #7 is recorded as indicating that although he could not recall if any strikes had been delivered to the Complainant, it was possible that that did occur. In his statement to SIU investigators, however, he stated that the SO did indeed deliver two punches to the Complainant’s left shoulder to try and get him to release his arm, but the Complainant still failed to do so.

Following the unsuccessful efforts of the SO to get the Complainant’s hands out for handcuffing, WO #7 then deployed his CEW once, for a duration of three to four seconds, to the Complainant’s right shoulder, in order to get him to release his hand, which he then did. This is the only use of force that WO #7 indicated that he himself resorted to.

This evidence is consistent with the SO’s sworn evidence, wherein he indicates that he and WO #6 pulled the Complainant from the vehicle and down to the ground where the Complainant continued to struggle.

The SO testified that he was of the belief that this arrest had to be carried out as quickly as possible for a number of reasons, including that he had observed the Complainant try to escape the ‘box’ by backing his vehicle into WO #6’s car; that there was always a concern about destruction of evidence when there are illegal narcotics involved; that the Complainant, when on the ground, was continuing to struggle, which the SO interpreted as a continuing desire to escape from police; and that the Complainant had his hands under his body where he might have had access to a weapon, as it is well understood by police that drug trafficking and the possession of weapons often go hand in hand.

The SO testified that in an effort to get the Complainant’s hands out from under his body, in order to secure the Complainant and ensure he did not have access to a weapon and thereby pose a risk to the police officers, he delivered two punches to the right side of the Complainant’s body. Following the two punches, the Complainant then gave up his right hand, but his left hand was still under his body, as a result of which WO #7 deployed his CEW and the police were then able to bring out the Complainant’s left hand as well, and he was handcuffed.

This evidence is also consistent with the evidence of WO #6, both in his sworn evidence and in his statement to SIU investigators, with the exception that WO #6 indicated that he did not see anyone deliver any punches to the Complainant, but he did observe WO #7 to deploy his CEW in drive stun mode.

WO #6 also indicated, in his sworn evidence, that he put his knee into the Complainant’s back area to try and get some leverage by which to force the Complainant’s hands out from under him. During cross-examination, WO #6 was questioned as to his notebook entry wherein he had scribed “knee strike to back to gain compliance”, but reiterated that he did not believe that he delivered a knee strike to the Complainant, only that he put his knee into his back.

Having reviewed all of the evidence in this matter extensively, while I find that there are some discrepancies between the evidence of the three police officers, I do not find that to be surprising in these particular circumstances.

I have taken into account that the ‘takedown’ of the Complainant was done based on the information that the driver of the motor vehicle, who had just carried out a transaction which each of the three officers was absolutely convinced was a drug transaction, was the same person who had already previously eluded police, who had twice been deported from the country and yet been able to return and carry out his illegal activities, and who was obviously quite adept at evading his arrest. Additionally, police observed what they believed was the Complainant striking WO #6’s vehicle, which they each individually interpreted as yet another attempt on his part to escape from police. Then combined with the facts that drug dealers are well known to carry weapons to protect their product, and the fact that the Complainant had his hands under his body and was refusing to give them up, I have no hesitation in accepting that each of these officers was acting under the pressure of some urgency to get the driver contained and handcuffed as quickly as possible.

In addition, it was a dark night, it was snowing, the pavement upon which they grounded the Complainant was already snow covered and likely slippery, and they were dealing with a man in what was a fairly confined space between the motor vehicles with three men in the immediate area, if not on top of, the Complainant. I find that it is no surprise, on these facts, that the officers were not each aware of what the other was doing, as they focused their efforts on getting the Complainant’s hands out from under him and into handcuffs.

Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for these three police officers to qualify for protection from prosecution pursuant to s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary.

Dealing first with the lawfulness of the arrest, I have no hesitation in finding that the police officers, acting on the information received as to the modus operandi of one Mr. X. in carrying out his drug deals, the details of which were then specifically observed by the police officers surveilling the building on Bathurst Street, in that:

1.) A small black car 2.) approached the building on Bathurst street 3.) in the evening 4.) Mr. Y. got into the car 5.) the car circled the building 6.) Mr. Y. then immediately again exited the car, and 7.) the car drove away

that the police officers would have been convinced both that they had just observed a drug transaction, and that the drug dealer was Mr. X..

In hindsight, after discovering that the driver was not, in fact, Mr. X., police still had reasonable grounds to believe that they had just observed a drug transaction (which was then further supported) in light of the narcotics found in the Complainant’s motor vehicle. On these facts, it is clear that the police officers were acting lawfully and within their duties at the time, and that the apprehension and arrest of the Complainant was legally justified in the circumstances.

Turning then to the amount of force resorted to by the three involved officers, if I accept the evidence of the three police officers, the force resorted to consisted of the following:

• WO #6 and the SO pulled the Complainant from his motor vehicle and down to the pavement, face down, landing on his stomach
• WO #7 deployed his CEW into the right arm of the Complainant, in drive stun mode, on one occasion, in order to get him to give up his hands
• The SO delivered two punches to the Complainant to get him to give up his hands, and
• WO #6 either put his knee into the Complainant’s back, or delivered a knee strike to his back, in order to force out the Complainant’s hands out from under his body

In light of the fact that the person that the police thought they were dealing with, that being a drug dealer who had already evaded both the police and immigration services on a number of occasions, coupled with the driver’s apparent actions on this occasion in trying to yet again elude police, I have no difficulty finding that police were in an extremely dynamic and fast paced situation and in what would be perceived as urgent circumstances. This factual situation, in particular, brings to mind the decision of 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]

Furthermore, the decision of Justice Power of the Ontario Superior Court of Justice in Chartier v Greaves, [2001] O.J. No. 634, sets out a number of other legal principles gleaned from the legal precedents cited, including the following, of which clause i) below, (which I have highlighted) I find particularly germane to this matter:

8. Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event
9. "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14^th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver)
10. Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances
11. "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.)

Finally, 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.

On this basis, then, if I accept the evidence of WO #7, WO #6 and the SO, I find that their actions do not satisfy me that they resorted to an excessive use of force in these circumstances and that the evidence does not satisfy me that I have reasonable grounds to believe that any one of these three officers committed a criminal offence.

In the alternative, were I to reject the evidence of the three police officers involved in favour of the evidence of the Complainant, the evidence would be lacking in that it failed to identify who the officer was who actually assaulted the Complainant as alleged, and I would still lack the grounds necessary to believe that any one of these three police officers committed the alleged excessive use of force as against the Complainant and would still be without the grounds necessary to lay charges.

In conclusion, on this evidence, I find that I lack the grounds to lay criminal charges and none shall issue.

Original signed by

Tony Loparco
Director
Special Investigations Unit