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 17-year-old student during his arrest on June 7^th, 2017.

Notification of the SIU

At approximately 11:50 a.m. on Wednesday June 7^th, 2017, the Windsor Police Service (WPS) notified the SIU of the custody injury to the Complainant.

The WPS reported that on Wednesday, June 7^th, 2017, at 8:20 a.m., WPS officers responded to a high school to assist staff with a disorderly student. The student, the Complainant, had been told by the Vice Principal that he was being suspended. The Complainant became upset and refused to leave the premises. His mother, Civilian Witness (CW) #3, was called and tried to no avail to convince her son to leave. Police were called and Witness Officer (WO) #1 and the Subject Officer (SO) responded and the Complainant still refused to leave the school. He was then arrested for trespassing and a struggle took place. The Complainant was taken to the hospital and found to have a broken nasal bone.

The Team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 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 Notes received and reviewed, interview deemed not necessary.

Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed

On June 6^th, 2017, WPS SO #1 and WO #1 arrived at the Principal’s Office in a high school in the City of Windsor at approximately 8:29 and 8:30 a.m. respectively, to address the report of a disorderly student who despite being told numerous times to leave the school property, refused to do so. A very short intense struggle occurred between both police officers and the Complainant who was subsequently arrested under the Trespass to Property Act and Resisting Arrest pursuant to s. 129 (a) of the Criminal Code. The Complainant was transported by ambulance to the hospital arriving at 8:56 a.m.

Nature of Injury/Treatment

The Complainant was brought in to the emergency room at about 9:00 a.m., by ambulance. Triage notes indicate that he was punched in the nose and had nasal pain. An X-ray was ordered and it was discovered that there was a displaced nasal bone fracture.

The Scene

The scene occurred at a high school inside the administration office in the City of Windsor.

Video/Audio/Photographic Evidence

The SIU reviewed both the video recording at the school as well as the video of the Complainant inside the prisoner transport wagon. Both videos offered no investigative value. WPS photographs of the Complainant were reviewed by the SIU.

Communications Recordings

The Communications recordings were received and reviewed.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

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

• Detailed Call Summary
• Duty Roster
• Communications recordings
• Photos taken of scene and injuries to the Complainant
• Event Summary
• Notes of WO #s 1-5, the SO and two undesignated police officers
• Written Statements of WO #s 1-5
• Detention Unit Video
• Detention Record: booking Sheet
• Prisoner Transport Video
• Previous WPS Incident Involving the Complainant
• MDT Transmissions, and
• WPS download of Conducted Energy Weapon (CEW)

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

• The Complainant’s medical records

Sections 25(1) - 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 2(1), Trespass to Property Act - Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,

1. without the express permission of the occupier, the proof of which rests on the defendant,
   1. enters on premises when entry is prohibited under this Act, or
   2. Engages in an activity on premises when the activity is prohibited under this Act; or
2. does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier

Is guilty of an offence and on conviction is liable to a fine of not more than $10, 000.

Education Act, R.S.O. 1990, Chapter E.2

305 (1) The Minister may make regulations governing access to school premises, specifying classes of persons who are permitted to be on school premises and specifying the days and times at which different classes of persons are prohibited from being on school premises.

Prohibition

(2) No person shall enter or remain on school premises unless he or she is authorized by regulation to be there on that day or at that time.

Same, board policy

(3) A person shall not enter or remain on school premises if he or she is prohibited under a board policy from being there on that day or at that time.

Direction to leave

(4) The principal of a school may direct a person to leave the school premises if the principal believes that the person is prohibited by regulation or under a board policy from being there.

Offence

(5) Every person who contravenes subsection (2) is guilty of an offence.

The Complainant was a student who was suspended for a conduct issue on Tuesday, June 6^th, 2017 by Civilian Witness (CW) #2 (the Vice-Principal). On Wednesday June 7^th, 2017, at approximately 8:15 a.m. the Complainant accompanied by his mother, CW #3, attended the Principal’s Office. The purpose of their visit was to meet with the Principal to discuss rescinding the one day suspension. The Principal was off site and was expected to return to the school around lunch time. The Complainant and CW #3, spoke with CW #2, who declined to alter the suspension. CW #2 suggested the following compromise to the Complainant: that the Complainant could return in the afternoon to meet with the Principal, however, in the interim he could not remain on school property. CW #3 agreed to leave the school to speak with the Principal at another time and despite encouraging her son to leave, he refused. CW #2 told the Complainant that the police would be called if he did not immediately leave the school.

At approximately 8:20 a.m. CW #2 directed CW #4 to call the WPS non-emergency line to provide information that a suspended student was refusing to leave school property. While awaiting the arrival of the WPS officers, CW #1, and both CW #4 and CW #2 noted that a girlfriend of the Complainant arrived and attempted, without success, to convince the Complainant to leave the office. CW #4 observed that the Complainant had an attitude; however, he remained calm; and indicted that he was not going anywhere.

The Complainant indicated that his initial interactions with the Subject Officer (SO) were very calm. CW #2 observed that when the SO attempted to communicate with him, the Complainant did not respond; shrugged his shoulders; and stood still “with attitude.” CW #1 heard the Complainant attempt to explain the story of his suspension to the SO. The SO responded that, “We’re not here about that; we just need you to leave.” CW #1 observed another student enter the closed office. The SO stated to CW #2, “Can you believe that? There is a sense of entitlement with the students in this building.” The SO stated to the Complainant, “That sets the tone on how I’m going to deal with you. Do you think you own the school?” The Complainant responded “Yes.” These conversations were corroborated by CW #1 and CW# 4.

Despite this, the SO attempted to de-escalate the situation without success. At approximately 8:31 a.m. the SO told the Complainant that if he was not going to leave the school he would be arrested under the Trespass to Property Act. The Complainant responded that he was staying in the office waiting to speak to the Principal. The SO asked the Complainant to turn around as he was affecting his being placed under arrest. The SO felt that he had attempted to reason with the Complainant and believed that the Complainant was being passively resistant and felt that he was not receptive or responsive to any communication techniques. De-escalation attempts and commands by both the SO and WO #1 were completely ineffective.

Approximately 1.50 minutes into the arrival at the scene by the SO, WO #5, while en route to the scene, heard the SO use his radio microphone stating “the fight’s on.” A short intense struggle commenced and CW #4 stated that the interaction lasted approximately two minutes. The SO was able to secure the right hand of the Complainant in an attempt to handcuff him to the rear. To his credit, the Complainant, who was facing the counter, willingly surrendered his right hand.

CW #4 observed that when CW #3 entered the office the Complainant, in CW #4’s words, “derailed from there.” CW #4 noted that the Complainant immediately began to physically resist the SO. The SO continued to attempt to secure the left hand of the Complainant, who became uncooperative; was holding onto the front counter with his left hand; and, was resisting the attempts of the SO to control him.

WO #1observed that the area was too small to safely ground the Complainant and that the tight space was too restrictive to effectively deploy a baton without the possibility of causing a serious injury. In addition, the small area prohibited WO #1 from getting around the SO to assist in controlling the left arm of the Complainant.

SIU Investigators detailed the layout of the office. When entering the main office there is a bench against the wall and directly opposite the bench is an island counter. Behind the counter are two desk areas and there is a small room to the right which appears to be a storage room in which a copier is located. The entire office was 8.4 metres by 4.9 metres. The bench was 1.7 m wide and the area in front of the counter was 1.7 metres. The copier room had shelves on two walls and the copier was against the third wall. The available floor space was 1.6 metres by 1.8 metres (approximately five feet by six feet), slightly larger than the four feet by four feet described by the SO in his notes.

Initially, WO #1 opted to deploy his conducted energy weapon (CEW) as a display of force to gain compliance by pointing his CEW at the Complainant. WO #1 ordered him to stop resisting and put his hands behind his back. Both the Complainant and CW #2 observed WO #1 deploy the CEW to the Complainant’s right torso just below his ribs. The Complainant stated that he felt a slight shock. Given the non-reaction of the Complainant, it was the belief of WO #1 that the CEW either missed or was ineffective. WO #1 corroborated the opinion of CW #2 by stating that the CEW was deployed close to the Complainant in an attempt to make a three point contact by drive stunning his leg. WO #1 stated that the deployment was not successful

CW #3 began approaching WO #1 and pushed his arm with sufficient force that WO #1 lost his balance. WO #1 told CW #3 to back off. WO #2 observed CW #3 grab the hands of WO #1 while he attempted to deploy the CEW a second time. As the struggle continued, WO #1 and the SO as well as the Complainant entered the small copy room.

WO #1 observed the SO deliver two closed hand strikes to the Complainant’s face area which were effective. The Complainant fell to the floor on his stomach, and, finally was compliant. The Complainant informed both WO #1 and the SO that he could not move his left hand behind his back due to a previous injury and, with his co-operation, he was handcuffed with his hands behind his back.

In carefully reviewing the totality of the evidence, I find that the record is clear on a majority of the issues. First, the SO was annoyed by the non-response of the Complainant to his numerous direct orders to immediately leave school property. In addition, the SO reacted to the disrespect of the student who entered the closed door of the Principal’s office. The result was that the SO changed his approach in dealing with the removal from the school of the Complainant.

Second, there is no doubt that the Complainant ignored the rules and the lawful authority of CW #2 directing that the Complainant leave school property. In addition, the Complainant disregarded the sound advice of CW #3, and subsequently his girlfriend, to leave the school.

Third, CW #2 informed the SO that there were two prior instances where the WPS had been notified to attend the school as a result of the Complainant refusing to leave the school when directed.

Fourth, while there is no dispute that initially the Complainant made up his mind that he was not going to leave school property, his attitude changed after CW #3 left the office and the Complainant briefly cooperated with the SO while he was being handcuffed with his hands to the rear.

However, as observed by WO #5, when CW #3 returned to the office she was in a very agitated state seeing her son being arrested which directly caused the Complainant to become actively resistant and aggressive. In sum, the return of CW #3 to the office and seeing that her son was being arrested, directly contributed to the Complainant becoming less compliant and increasingly more resistant.

Fifth, although further attempts at de-escalation by the SO would have been preferable, there is no certainty that the Complainant would have complied at a later stage with the directions of the SO and it was ultimately the decision of the Complainant not to comply with the commands of the SO which culminated in the use of force.

The SO and WO #1 were acting lawfully in attempting to remove the Complainant from school property as he was a trespasser as a result of his being suspended. The question then becomes did the officers use excessive force when removing him from the school?

In short, I am satisfied that the evidence fails to give rise to a reasonable belief that the SO, 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 affect the arrest of the Complainant was not unreasonable in all the circumstances.

In assessing the situation, 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.”

Additionally, while the conduct in question must be commensurate with the task at hand, the Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.) has indicated that police officers are not expected to measure the degree of their responsive force to a nicety.

In conclusion, 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 the Complainant suffered. The injuries sustained by the Complainant occurred as a direct result of his own non-compliance with the commands of the SO – who was acting under the authority of CW #2 - and the active struggle to resist arrest including the dangerous act by CW #3 of attempting to grab WO #1’s CEW (or at the very least attempting to knock the CEW out of his hand). In this respect, both the Complainant and CW #3 were the authors of their own misfortune, which resulted from the Complainant’s refusal to leave the school when legally and properly directed to do so. 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 SO, I can find no grounds for proceeding with criminal charges in this case.

Date: May 25, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit