Director's Report Details

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 48-year-old man during his arrest on August 16^th, 2017.

Notification of the SIU

At approximately 11:10 p.m., on Wednesday, August 16^th, 2017, the Sarnia Police Service (SPS) notified the SIU of the custody injury sustained by the Complainant.

The SPS reported that at about 2:50 p.m. on that same date, SPS officers attempted to stop a vehicle driven by the Complainant, who was wanted on outstanding warrants and a surety revocation issued by the Ontario Provincial Police (OPP), Petrolia Detachment. After a short vehicle pursuit, the Complainant abandoned his vehicle and fled on foot. He attempted to scale a fence but was unsuccessful. He was pulled to the ground and arrested.

At about 3:45 p.m., the Complainant was booked in at SPS headquarters, and at about 6:40 p.m., he was picked up by Petrolia OPP officers at which time he complained that his face was sore. He was taken to the hospital and diagnosed with a fractured orbital bone.

The Team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

WO #5 Interviewed, notes received and reviewed

WO #6 Interviewed, notes received and reviewed

Additionally, the notes from two other officers were received and reviewed.

Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

On Wednesday, August 16^th, 2017, at approximately 2:50 p.m., SPS officers were conducting surveillance on residence known for drug transactions, when they observed the Complainant at the residence. Police checked the Complainant’s licence plate on their computer and discovered that his bail release on outstanding charges had been revoked and a warrant was outstanding for his arrest, issued by the OPP, Petrolia Detachment.

The Subject Officer (SO) radioed for marked police units to assist in a traffic stop, as he was in an unmarked SPS vehicle and could not therefore perform a vehicle stop on his own. After a short vehicle pursuit by other SPS officers, the Complainant abandoned his vehicle and fled on foot. He attempted to scale a fence, but was unsuccessful. He was pulled to the ground and arrested by three SPS officers. The SO arrived at the arrest when it was almost completed. The Complainant alleges that the SO then kneed him in the face. The Complainant was transported to the station and his custody was then transferred to the OPP, who took him to the hospital where he was assessed and treated.

Nature of Injury/Treatment

The Complainant was brought to the emergency room for facial trauma and then transported to a second hospital for further assessment.

A Computed Tomography (CT) scan was done which revealed a right tripod fracture complex (three distinct fracture components to the midface, comprising of fractures of the zygomatic arch, the upper right cheek bone, inferior orbital (eye socket) rim, and anterior and posterior maxillary sinus walls and the lateral orbital rim), with associated blood with the right maxillary sinus lumen and emphysema with the right neck and temporalis fossa. There was a minimally comminuted fracture of the posterior right orbital floor, without extra ocular muscle entrapment or intra orbital hematoma. No surgery was required and no long term consequences were expected.

The Complainant was given a script for Naproxen and Tramacet (for pain relief). He was then discharged back into OPP custody as he was ambulatory and had clear speech.

The Complainant was photographed. His injuries included bruising under both eyes, bruising on his left shoulder, bruising on the left side of his forehead, and bruising to both elbows and on his upper left leg.

The Scene

The scene of the incident was at an address in Sarnia. The address was a detached home with a driveway to the right of the house leading to a garage at the rear of the property. On the right side of the garage was a white metal gate between the garage and a wooden fence that separated the driveway from the adjacent property.

Through the gate there was a walkway between the garage and the wooden fence leading to another wooden fence. The height of the gate was 1.3 metres (m). The height of the wooden fence at the gate was 1.7 m. The height of the wooden fence at the end of the walkway was 1.6 m.

The scene was photographed.

Photograph of the Walkway

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Cell Video Footage (Summary)

The SPS video provided to the SIU consisted of a DVD with four sections of the SPS detention unit. The first section was labelled “Sally W,” and showed two SPS officers transferring the Complainant out of the SPS station at approximately 6:32 p.m. There did not appear to be any visible injury to the Complainant’s face.

The second section was labelled “Video Remand,” and it began at about 3:54 a.m. An SPS officer, believed to be Witness Officer (WO) #2, was standing in the video room with the Complainant, who looked dishevelled, was in bare feet, his shirt was ripped, and he looked dirty. There was no visible blood or injury seen on the Complainant’s face. The Complainant was handed the telephone and at about 3:58 a.m., the Complainant completed his telephone call and exited the video remand room unescorted.

The third video section was labelled “Cell3”. The video began at approximately 4:04 a.m. and showed the Complainant being lodged into Cell 3 at approximately 4:14 a.m.

The fourth section was labelled “North Booking,” and showed WO #2 bringing the Complainant into the booking area at about 3:41 a.m. After a few minutes, another SPS officer arrived and assisted in the search and booking of the Complainant. There was no audio and no direct camera angle showing the Complainant’s face.

Communications Recordings

The police radio transmissions recording was obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP and the SPS

• Activity Log Entry
• Arrest Report
• Background Event Chronology
• Case File Synopsis
• Custody Record
• Video recording from the booking area, cell area, video remand area, and sally port of the SPS station
• Fail to Stop Report
• Police Transmissions Communications Recording
• Notes of WO #s 1-6 and two non-designated police officers
• Occurrence (Person) Report for the Complainant
• Written Statements of WO #s 1 and 2 and the SO

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

• Medical records of the Complainant

Section 25(1), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. by virtue of his office

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

On August 16^th, 2017, while performing his duties in plainclothes and in an unmarked car, the Subject Officer (SO) who worked for the Sarnia Police Service (SPS) observed the Complainant, in his motor vehicle, parked at a residence known to be associated with criminal activities. The SO called in to the dispatcher to have them check the licence plate on the car, and it was confirmed that it belonged to the Complainant, who was out on a bail release, but whose surety had withdrawn the consent to act as surety, resulting in a warrant having been issued for the Complainant’s arrest.

The SO, because he was in an unmarked vehicle, then called and requested that uniformed officers assist in apprehending and arresting the Complainant on the outstanding warrant.

Two civilian witnesses (CWs) observed the Complainant operating his motor vehicle while being pursued by three SPS cruisers, with their emergency lighting activated, onto a dead end street where the Complainant pulled into a residence on that street in the City of Sarnia. One of the police cruisers, operated by Witness Officer (WO) #3, pulled into the driveway behind the Complainant and exited his police cruiser. While the Complainant initially exited his motor vehicle and turned toward the officer with his hands up, as soon as the officer told the Complainant to get down on the ground and began to walk toward him, the Complainant turned and ran to a walkway between the garage and a fence, and WO #3 followed.

The Complainant then tried to flee by jumping onto the fence, which was approximately 1.7 metres, or 5.5 feet tall, but he appeared to get stuck on it and WO #3 grabbed onto the Complainant by the back of his pants and tried to pull him back down. WO #3 then yelled out indicating that he required assistance, and a second officer, WO #2, also entered the back yard. When both officers were unable to initially pull the Complainant down, WO #3 openly admitted that he used his ASP baton and struck the Complainant on the upper thigh, following which the Complainant’s hold on the fence weakened and the two officers pulled him down from the fence.

Because the subsequent struggle between the police and the Complainant was blocked by the garage on one side and the privacy fence on the other, the two CWs were unable to observe what occurred once the Complainant was on the ground.

Once down off the fence, the Complainant continued to fight and flail his arms, while trying to pull away, and he was pushed face first against the side of the garage; when he still continued to fight, he was taken to the ground in a controlled fashion by WO #3 and WO #2. All of the officers involved described the Complainant as sweaty and difficult to grasp as he continued to fight and flail about. At that point, WO #3 and WO #2, along with the Complainant, were on the ground in a tight space with physical items obstructing movement in the alleyway between the garage and the fence, while the Complainant continued to resist.

Upon the arrival of WO #1, who heard WO #3 and WO #2 yelling commands to the Complainant to stop resisting and to put his hands behind his back from the rear of the residence, he attended there as well, and observed WO #3 and WO #2 struggling with the Complainant in a space which was no wider than three to four feet. The Complainant was on his stomach and WO #3 and WO #2 were trying to get control of his hands in order that he be handcuffed. Because of the confined space, WO #1 was unable to pass by WO #3 and WO #2, so he placed his knee on the Complainant’s upper back to hold him down.

Upon the arrival of the SO, who had heard WO #3 radio that the Complainant had run toward the back of the residence, he observed the Complainant still on top of the fence, with his abdomen resting on the fence. By the time that the SO reached the back yard, the Complainant was down on the ground, on his left side, with the three police officers trying to control him in a very confined space.

The SO described the Complainant as twisting and turning while babbling incoherently and sweating profusely. While the SO assessed the situation and determined that the Complainant may be in a state of excited delirium, in hindsight it appears that the Complainant, who suffers from Chronic Obstructive Pulmonary Disease (COPD) and Asthma, was likely struggling to breathe and frantically fighting the officers in the very confined space.

The SO tried to control the Complainant’s head, while the other officers were struggling to handcuff him. Because the Complainant was bleeding from a scrape to his cheek and was sweating profusely, the SO decided to try to control the Complainant by lowering his mid left shin across the right side of the Complainant’s face and applying pressure for two to three seconds, allowing the other officers to handcuff him, at which point the SO released the Complainant.

The Complainant alleges that while the police officers were trying to detain him, when he was still up on the fence, he was struck in the leg with an ASP baton. Once he was taken to the ground, his head hit the ground and he sustained a contusion above his left eyebrow, near his hairline, and an abrasion to his left shoulder. As the first two officers tried to apply the handcuffs, two more police officers arrived. The Complainant alleges that one of the four police officers then kneed him in the right side of his face, while another kneeled on his back.

Of the allegations made by the Complainant, all are confirmed by the police witnesses themselves, with the exception of the kneeing into his face which, if it occurred, would clearly be the source of the Complainant’s serious injury to the right side of his face.

WO #3 openly conceded to having struck the Complainant on the leg with his ASP baton, when he refused to come down off of the fence. Both of WO #3 and WO #2 admitted that they pulled the Complainant from the fence and then took him to the ground and WO #1 agreed that he put his knee on the Complainant’s back to hold him down while WO #3 and WO #2 handcuffed him.

On the basis, then, that three out of four of the Complainant’s allegations are confirmed by other evidence, as well as his own concession that he was aware that he was wanted by police and that he tried to flee from them, I accept that the Complainant’s version of events appears to be credible and reliable and I accept that the last unconfirmed allegation of the Complainant, that he was struck with a knee in the face by a police officer, probably did in fact occur.

Having said that however, the Complainant was unable to describe or to identify the officer who kneed him in the face. While the SO was designated as the subject officer in this investigation, based on his openly conceding that he placed his shin against the Complainant’s face, it is clear, based on the opinion of the medical expert, that that action would not likely have caused the Complainant’s injury.[1] As such, while the Complainant is unable to identify who he alleges kneed him in the face, and the four police officers all indicated that other than the use of the ASP baton by WO #3, none of them kneed, kicked, or struck the Complainant, nor did they see any other officer do so, I have no evidence upon which I can identify the police officer who might have struck the Complainant’s face with his knee.

Furthermore, even were I satisfied as to the identity of whomever struck the Complainant with a knee, in these circumstances, where four police officers are struggling with a fighting and resistant male, in a very small and confined space, I find that I cannot be satisfied that the strike was actually intentionally delivered, and not inadvertent.

I make this finding based on the opinion of the medical expert that the mechanism required to cause the injury to the Complainant’s face would not have required a great deal of force, with a moderate amount being sufficient, in light of the Complainant’s age, and the likelihood of decreased bone density which would make him more susceptible to fractures.

Considering then, four grown men, fighting against a struggling and frantic male, who was slippery from sweating profusely and therefore difficult to get a hold of, in a very confined space of no more than three to four feet, I have no difficulty in accepting that any one of these officers, in this fast paced and fluid situation, could have inadvertently struck the Complainant in the face with his knee. Even if the knee strike, however, were not inadvertent, but deliberate, I cannot find this single action to amount to an excessive use of force in these circumstances, despite the unfortunate injury to the Complainant.

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.

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 the four police officers involved in subduing and handcuffing the Complainant 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.

On these facts, it is clear that the police officers, acting on the information from the SO, had reasonable grounds to arrest the Complainant on his outstanding arrest warrant and they were acting both reasonably and in the execution of a lawful duty when they attempted to apprehend and arrest the Complainant.

Thereafter, while the Complainant first attempted to flee in his motor vehicle, then by climbing over a fence, and finally, by fighting and struggling the police officers trying to arrest him, I cannot find that the single knee strike amounted to an excessive use of force in these circumstances. I also accept that the knee that struck the Complainant was, in all likelihood, not intended to make contact with his facial area, but in the melee and with the Complainant struggling and flailing about, landed otherwise than where it was initially intended, if it was indeed deliberately delivered, which I am unable to determine on these facts. I also find that the injury to the Complainant would not have been foreseeable in these circumstances.

On all of the evidence, it is clear that resort to any other non-lethal use of force option, that being the use of a Conducted Energy Weapon (CEW or Taser) or the Oleoresin Capsicum (OC or pepper) spray, would not have been a viable option in such close confines, leaving the officers with no other options to restrain the Complainant, other than physical force. I fully accept that the actions of all four police officers, who were involved in a struggle with a frantic and resistant male, progressed in a measured and proportionate fashion to what they perceived as active resistance from the Complainant. It is further clear that had the Complainant not attempted to flee both by car and then on foot, no force would have been necessary and the Complainant would not have been injured.

In conclusion, I find that if one of the four police officers did intentionally deliver a knee strike to the Complainant, which I am unable to determine, it did not amount to an excessive use of force in these circumstances. Furthermore, I find that I lack the reasonable grounds to identify the party who struck the Complainant with his knee, and therefore do not have a basis for the laying of criminal charges, even were I to find that the action amounted to an excessive use of force. On these facts there is no basis for the laying of criminal charges and none shall issue.

Date: May 25, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Among the possibilities is the Complainant could have been injured when he was taken to the ground. The Complainant indicated that when he was pulled off the fence, his head struck the ground. Another could come from WO #3’s evidence that the Complainant was pushed face first against the side of the garage, where he continued to fight after being pulled off of the fence. The doctor’s opinion did not preclude any of these other uses of force as potential mechanisms for the facial injury but merely stated that a knee was the most likely cause of the injury. [Back to text]