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 50-year-old man during his arrest on August 1^st, 2017.

Notification of the SIU

At approximately 7:10 p.m. on Tuesday, August 1^st, 2017, the Toronto Police Service (TPS) notified the SIU of a custody injury involving the Complainant. The TPS advised that earlier that same day, at about 12:17 a.m., the TPS responded to 361 University Avenue, in the City of Toronto, for a disturbance between the Complainant, a woman, and a homeless man. The Complainant had been arguing with the woman and the homeless man intervened. The Subject Officer (SO) and Witness Officer (WO) #1 arrested the Complainant.

While the Complainant was being transported to the police station, he kicked out the rear window of the police vehicle. The Complainant was then lodged in a cell at the police station. At 10:47 a.m., the Complainant complained that his ribs were sore, and he was taken to hospital, where he was diagnosed with two displaced ribs and a punctured lung on his right side.

The Complainant was then remanded into custody and taken to the detention centre.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

The SIU canvassed the area of the Complainant’s arrest for closed-circuit television video (CCTV) and civilian witnesses. Unfortunately the three parties involved with the Complainant were of no fixed address and could not be located.

Complainant:

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

Civilian Witnesses

No civilian witnesses came forward to be interviewed.

CW #1 Not interviewed

CW #2 Not interviewed

CW #3 Not interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Notes reviewed, interview deemed not necessary

WO #6 Interviewed

WO #7 Interviewed

WO #8 Interviewed

WO #9 Interviewed

Subject Officers

SO #1 Interviewed, notes received and reviewed

Sometime during the night on Monday, July 31^st, 2017, into Tuesday, August 1^st, 2017, the Complainant drank alcohol, smoked marijuana, and became involved in altercations with at least three homeless persons outside the Courthouse at 361 University Avenue in the City of Toronto.

TPS officers responded and the SO arrested the Complainant for assault. The Complainant was then transported to the police station. While in police custody, the Complainant complained that his ribs were sore and he was taken to the hospital.

Nature of Injury/Treatment

The Complainant sustained a punctured lung and two associated fractured ribs on his right side.

Scene

The scene was in the area outside of 361 University Avenue in the City of Toronto.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

The SIU requested in-car camera (ICC) video for WO #2’s police vehicle; however, the TPS advised that the vehicle was not equipped with an ICC system.

361 University Avenue CCTV

CH08 – The camera was pointed in an easterly direction toward the main doors leading to the Court House at 361 University Avenue. The recorded images were grainy and it was dark outside. On August 1^st, 2017, at 12:01 a.m., a person dressed in dark clothing and carrying a backpack [now known to be the Complainant] walked toward the south side of the main Courthouse doors. Shortly after, the Complainant walked from the south side dragging what appeared to be a sleeping bag, in a northerly direction, and he threw the sleeping bag off to the side out of camera view.

The Complainant returned with what appeared to be another sleeping bag and also tossed it away. The Complainant went to the area of the main door and dragged a person [now known to be the Complainant’s girlfriend, CW #1] from the main door. CW #1 did not move and she appeared unconscious. The Complainant paced around the main doors and pulled over what appeared to be a garbage can, which he then violently kicked. He also appeared to be tossing items around and to kick CW #1. The Complainant then leaned over CW #1 and dragged her a short distance away.

CW #1 then stood up and attempted to collect the items the Complainant had tossed around. A man wearing a short-sleeved dark shirt and shorts [now known to be CW #2] appeared from the area of the main doors. There appeared to be an interaction between the Complainant and CW #2. The Complainant then chased CW #2 away.

The Complainant walked around and tossed objects in the air. At 12:19 a.m., a uniformed police officer arrived from a southerly direction and approached CW #2. The police officer and CW #2 walked away.

At 12:24 a.m., CW #1 collected the property the Complainant had strewn about. Two police officers with flashlights looked around the area and appeared to assist CW #1 in locating her property.

CH02 – The camera was pointed in a northerly direction with a view of the two square water fountains south of the main entrance doors to the Court House. At 12:01 a.m., a man wearing dark clothing and carrying a backpack [believed to be the Complainant] walked from the south in a northerly direction.

At 12:16 a.m., three police officers [now known to be the SO, WO #1, and WO #2] appeared on the video recording. One of the police officers wore a traffic vest [now known to be WO #2]. The police officers walked toward the rotunda that leads to Nathan Philips Square.

At 12:18 a.m., the SO and WO #2 walked the Complainant, who appeared to be in police custody, toward University Avenue.

ICC System Video for the SO’s Police Vehicle

At 12:16 a.m., the video recording began with a front facing view of the police vehicle. The police vehicle was parked in an alleyway. At 12:17 a.m., the SO and WO #1 drove to 361 University Avenue with their police vehicle’s emergency lights activated. A marked police vehicle [now known to be operated by WO #2] pulled into the northbound curb lane.

At 12:18 a.m., the SO parked in the curb lane in front of WO #2’s police vehicle. The video recorded the front of the police cruiser facing northbound on University Avenue. At 12:22 a.m., the camera jostled for ten seconds. No interaction was captured between the SO and the Complainant.

At 12:28 a.m., the camera view switched from out the front window to the rear seat of the police vehicle and the audio recording began. The Complainant was alone in the police vehicle, lying across the rear seat, with his head on the driver’s side and his feet on the passenger’s side.

At 12:33 a.m., the Complainant said, “Okay, I need to go to the hospital…When that fat fuck hit me I think I hurt something…I think my rib is broken…When you hit me I think you punched my spleen…”

At 12:35 a.m., the Complainant said, “When you hit me…that was a good shot…the handcuff…look at what happened.”

At 12:40 a.m., the Complainant said, “Sure. Hit me…hit me again jackass. Give me a fucking cigarette. I want a smoke. Otherwise, I’m not a happy camper.”

At 12:47 a.m., the Complainant said, “One of them hits handcuffed guys. I’m tired. Hurry up I want to go to jail.” The Complainant continued to mutter and swear and made various complaints.

At 12:50 a.m., the SO stated the starting mileage.

At 12:53 a.m., the police officers and the Complainant arrived at the police station.

At 1:12 a.m., the SO drove the police vehicle into the sally port.

At 1:15 a.m., the Complainant said, “I think you actually hurt my ribs.”

The video recording ended at 1:22 a.m.

Booking Hall Video

At 1:18 a.m., the SO and WO #1 brought the Complainant into the booking hall at the TPS station, to be paraded before WO #5 and a booking officer. The Complainant wore a grey T-shirt and light coloured pants. His hands were handcuffed behind his back, he was unsteady on his feet, and he swayed back and forth.

At 1:19 a.m., the Complainant turned toward the SO and said words to the effect of, “If you ever fucking hit me again, kid.”

At 1:21 a.m., while WO #5 was booking the Complainant, the Complainant asked the SO if he could “do the same thing you did to this side…to this side” and motioned to the side of his body.

At 1:22 a.m., the SO and WO #5 escorted the Complainant out of the booking hall to be searched.

At 1:25 a.m., the police officers returned the Complainant to the booking hall where he was then again led out of the booking hall.

The video recording ended.

Communications Recordings

Event Details Report and Communications Recording

At 12:17 a.m., the TPS received a call to attend the U.S. Consulate for a 72-year-old man who had been assaulted. The man had been hit over his head and he was conscious, but breathing, and bleeding from his head. The suspect was still on scene. WO #2 arrived on scene and requested another police unit to assist. The SO and WO #1 then arrived. The SO reported a man had kicked the frame of the vehicle. The SO advised that the victim was being transported in an ambulance to hospital. The SO and WO #1 transported the Complainant to the police station.

Materials obtained from Police Service

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

• Booking Hall Video Recording
• Communication Recordings
• Event Details Report
• General Occurrence Report
• ICC Video for the SO’s Scout Car
• Notes of WO #s 1-9 and one undesignated officer
• Procedure: Use of Force
• Procedure: In-Car Camera System
• Scene Drawings by WO #s 2 and 7
• Summary of Conversation, and
• Use of Force Training Record for the SO

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

• The Complainant’s medical records, and
• CCTV footage from 361 University Avenue Courthouse

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

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

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

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

Section 265, Criminal Code - Assault

265 (1) A person commits an assault when

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

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

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

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

Section 266, Criminal Code – Assault

266 Every one who commits an assault is guilty of

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

Section 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. causes bodily harm to the complainant

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 31(4), Liquor Licence Act – Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,

1. In a place to which the general public is invited or permitted access; or
2. In any part of a residence that is used in common by persons occupying more than one dwelling in the residence

On August 1^st, 2017, at 12:17:15 a.m., WO #2 of the Toronto Police Service (TPS), Traffic Unit, called in to the dispatcher to request an ambulance to attend University Avenue, in the City of Toronto, just opposite the U.S. Consulate for a 72-year-old gentleman, who was conscious and breathing, but was “cut up pretty bad to his head”. He advised that the suspect who had caused the injury was also still on scene and that he required a unit to deal with him on an assault charge.

As a result, a call went out for any available units, and at 12:18:47 a.m., a cruiser with the Subject Officer (SO) and Witness Officer (WO) #1 was dispatched to the scene and the Complainant was arrested for assault and transported to the station. The Complainant was later transported to hospital and diagnosed with “a right pneumothorax (collapsed lung) with retraction of the lung up to 2.5 cm from the apical wall with associated fractures of the 10^th and 11^th ribs posteriorly.”

The Complainant, in his statement, described himself as being intoxicated at the time of his interaction with police, placing his inebriation, on a scale of one to ten, at a strong eight and close to blacking out. The Complainant advised that he and another male, who he knew only by his first name, Civilian Witness (CW_ #3, had been wrestling and rolling around on the ground, following which police arrived and he was handcuffed, but he was unsure of which officer handcuffed him.

The Complainant conceded that he resisted the officer’s efforts to place him in the police cruiser, but alleged that the officer banged the Complainant’s head on the top of the police vehicle door, and then pulled the Complainant back out of the police vehicle and told him to stop resisting. The Complainant alleges that the officer never told him either that he was under arrest or why he was being arrested. He alleges that the officer then grabbed his handcuffs, wrapped them around his right hand, spun the Complainant around and then punched him twice in the lower right side of his back. The Complainant indicated that he knew the officer had wrapped his hand in handcuffs, despite not seeing him do so, because he heard the handcuffs and because of the way the punch felt to him. The Complainant advised that he immediately knew that something had been broken. Nevertheless, the Complainant also agreed that he had no visible injuries to his back.

The Complainant then indicated that the officer shoved him into the police vehicle, after which the officer punched him in the side of the head, which the Complainant claimed caused him redness to his right eye.

The Complainant stated that the sequence of strikes delivered upon his person was blurry.

The Complainant further alleged that the police officer jumped up and managed to get his knee into the Complainant’s chest, causing his lung to collapse. The Complainant advised that there was no question that he had sustained the collapsed lung from the knee to the chest, and the broken ribs from the two punches to his right side, while the officer had his handcuffs wrapped around his fist.

There was also no visible injury to the Complainant’s chest.

The Complainant further alleged that once he was in the cruiser, the officer then reached in and punched him once in the head. The Complainant stated that he did not see the handcuffs around the officer’s hand at that time. The Complainant attributed the bruising to his right eye to the punch from the police officer.

The Complainant indicated that he did not see where the officer who had assaulted him went after he was placed into the police cruiser, but he did not believe that the officer driving the police cruiser was the same officer who had assaulted him.

The Complainant described himself as approximately five feet, seven inches in height, and weighing 135 pounds.

A photograph taken of the Complainant’s injuries by the SIU investigators the following day reveals the following:

• The Complainant has a black right eye, with purple bruising just below the eye and some bruising that was turning to green further out from the eye, which the Complainant attributes to being punched in the face by the police officer after he was placed into the cruiser and the police officer reached in and punched him
• Two abrasions, one to the right of his right eye and one in front of his right ear, both of which have scabbed over, which the Complainant attributed to being punched in the side of the head inside the cruiser
• An abrasion to his left shoulder which has scabbed over, which the Complainant does not address, and
• No marks or bruising whatsoever to either the front or back of his torso.

While the fact that the Complainant can account for how almost every injury he sustained was inflicted would tend to make his evidence more credible, I am unable to accept his version of events for a number of reasons.

First, while the Complainant alleges that he received his right black eye when he was punched in the face by the police officer, I note that his medical records specifically have him indicating to medical staff that he had sustained his “black R (right) eye prior to police encounter”. As such, the Complainant’s statement that his black eye was caused when he was punched by the police officer is seriously undermined. I further note that there is confirmation that this was a pre-existing injury by the fact that the bruise appears to be fading and the outer edges have turned green in colour, which is generally an indication that the injury is already healing and a few days old.

Second, I note that the abrasions to the side of the Complainant’s right eye and in front of his right ear, which he attributes to being punched in the side of the head by the police officer, appear to be more consistent with a ‘road rash’ type injury, which also appears to account for the injury to his left shoulder. Each of these injuries appears to me to be more consistent with his coming into contact with the pavement when he was rolling around on the ground with CW #3 on top of him, than with a punch.

While the Complainant attributes his two right side fractured ribs to being punched in the right side twice by the police officer, and his collapsed lung to the officer putting his knee into his chest when pushing him into the police cruiser, I note from the language in the medical records referring to these two injuries as “a right pneumothorax with retraction of the lung up to 2.5 cm from the apical wall with associated fractures of the 10^th and 11^th ribs posteriorly” that the notes appear to indicate that the two injuries are related and occurred at the same time and are not attributable to two different actions.

The in-car camera video reveals the Complainant telling WO #1 and the SO “when that fat fuck hit me, I think I hurt something … I think my rib is broken.” It appears clear that the Complainant would not have used this language to refer to the SO, with whom he was speaking at the time, as he appears clearly to be referring to a third party. I find this statement far more consistent with his believing that CW #3, who the Complainant conceded he had been fighting with prior to police arrival, had caused this injury, especially in light of the fact that CW #3 is described by WO #2 as being 200 to 210 pounds in weight, while the Complainant was described as very skinny and fragile. Furthermore, upon WO #2’s arrival, CW #3 and the Complainant were on the ground with CW #3 on top of the Complainant, and the Complainant bear hugging CW #3 as if he was trying to stop him from doing what he was doing. WO #2 further opined that the Complainant and CW #3 had been involved in a fight as they were both winded.

Additionally, the SO described CW #3 as kneeling over top of the Complainant, who he described as irate, verbal, and struggling. The SO estimated the Complainant as weighing approximately 100 to 110 pounds and unhealthy looking, while he placed CW #3 at over 230 pounds.

I find further support in this interpretation of the words spoken by the Complainant in the police cruiser when he is next recorded as stating, “When you hit me, I think you punched my spleen …” which comment now appears to be addressed to the SO, as he changes from the third person to the second person, and appears to be referring to a different injury than the injured rib which he attributed to “that fat fuck” hitting him.

At 12:35 a.m., the Complainant then indicated again “When you hit me … that was a good shot … the handcuff … look at what happened”, and at 1:12 a.m., the Complainant comments “I think you actually hurt my ribs”. I interpret this last comment, where the Complainant seems surprised that the officer “actually hurt my ribs,” that he is referring to a different injury than that which he had earlier attributed to “that fat fuck” breaking his rib.

Additionally, I note that in the Complainant’s medical records, he complains of right chest pain and right upper back pain, but “patient states he was hit to L (left) posterior lower ribs by cop last night”, which appears consistent with his allegation in the police cruiser, as captured on the video, when he was alleging that the SO had struck him in the spleen, which is of course located in the left upper quadrant of the abdomen and not on the right side, where the Complainant sustained his injury.

On the basis of this contradictory evidence, I find that it is more likely that the Complainant, in hindsight and while trying to piece together what occurred the night before, when he was so inebriated that he was close to blacking out, took the injuries that he had been told about and tried to associate them to what could have happened, rather than what he actually recalled happening, the facts about which he appeared to not have a reliable recollection.

A review of the surveillance footage from the Courthouse at 361 University Avenue revealed the Complainant’s actual state at the time, when, at 12:01 a.m., he is observed to be throwing sleeping bags and other property around the area and dragging his girlfriend, CW #1, from the main door of the courthouse. On the video, CW #1 appears to be unconscious. The Complainant is then seen to violently kick and toss items about and to kick CW #1, after which he leaned over her and dragged her a short distance.

CW #2 was then seen to intervene and the Complainant chased him away, following which the Complainant continued to pace around and toss objects.

At 12:19 a.m., WO #2 is seen to arrive and he walked away with CW #2. WO #2 observed CW #2 to be bleeding heavily from his head area.

At 12:24 a.m., the SO and WO #1 are seen to arrive on scene.

The video reveals that at 12:16 a.m., all three police officers appear on a second camera, which was pointed in a northerly direction and captured the main entrance doors to the courthouse. The officers walked toward the rotunda leading to Nathan Phillips Square and out of camera view.

At 12:18 a.m., the SO and WO #2 are seen escorting a handcuffed Complainant back toward University Avenue.

While the SO indicated in his statement that he did deliver a punch to the Complainant while trying to search him, he described the incident as placing the Complainant against the building wall in order to search him for possible weapons, at which point the SO told the Complainant that he was under arrest for assault.

When the Complainant then took out a cigarette and a lighter, the SO knocked the cigarette out of the Complainant’s hands and the Complainant became angry, spun toward the SO, and tried to punch the SO, at which point the SO indicated that he used his right fist to punch the Complainant in the back side ribs. Despite the Complainant having indicated both in the police cruiser and again at hospital that the police officer had punched him in the spleen and in the left side ribs, the SO was also of the view that he punched the Complainant to the right side ribs, making it possible that this punch was the mechanism by which the Complainant’s right side ribs were injured, although the SO advised that he did not believe that his punch caused any injury and he felt it was an appropriate amount of force in the circumstances.

Based on a review of all of the evidence, then, I am unable to find reasonable grounds to believe that the Complainant was assaulted by the SO, in the manner described by him, and therefore reject his evidence that he was punched in the side of the head, that he was punched in the right eye, that his head was banged against the cruiser door, or that he was kneed in the chest. I reject these specific allegations made by the Complainant both due to his extreme state of inebriation, as self-described by the Complainant and as observed by all three of the police officers and on the CCTV footage, but also because the Complainant advised that he did not believe that the driver of the police cruiser, the SO, was the same officer who assaulted him.

I do accept, however, based on the evidence of the SO, that there is some reliable evidence corroborating the evidence of the Complainant that the SO did indeed deliver one punch to the lower right posterior rib area of the Complainant. This single action then requires an assessment of whether or not the SO resorted to an excessive use of force in arresting the Complainant and did thereby cause him serious injury.

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 SO to qualify for protection from prosecution pursuant to s. 25, it must be established that he was in the execution of a lawful duty, he was acting on reasonable grounds, and he used no more force than was necessary.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information provided by WO #2 to WO #1 and the SO, that they had reasonable grounds to arrest the Complainant for assaulting CW #2 contrary to s. 265 of the Criminal Code. As such, the arrest and apprehension of the Complainant was legally justified and reasonable in the circumstances.

With respect to the single punch delivered by the SO to the Complainant, as this action was not observed by any other witness, and I am unable to accept the version of events as provided by the Complainant for the many reasons already outlined, I have only the uncontradicted evidence of the SO as to what lead up to the delivery of the punch.

According to the SO, the Complainant spun towards the SO and appeared to be about to deliver a punch, when the SO, acting in his own defence, and in anticipation of the Complainant’s punch, delivered a single punch to the Complainant’s posterior lower back. The SO believed that this punch was neither excessive nor of such a degree as to cause the Complainant any injury.

Having reviewed all of the evidence, I find that I do not have reasonable grounds to believe that it was this single punch that caused the Complainant’s two fractured ribs and his right side pneumothorax, accepting instead the evidence of the Complainant from that evening, as repeated both on the in-car camera and to medical staff, that the single punch delivered by the SO, in fact, made contact with his lower left side, and not his right side, and was therefore not responsible for his injury. If I am wrong, however, and the SO did cause his injury, I still am unable to find that this single defensive action on his part amounted to an excessive use of force in these circumstances.

In making this finding, I have considered the direction from the Supreme Court of Canada as set out 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.

In conclusion, I find that there is insufficient reliable evidence to provide me with reasonable grounds to believe that the Complainant’s injury was caused by the infliction of a punch to his lower back by the SO. I find instead that it is far more likely that the Complainant was injured from the crushing weight of CW #3 on top of him as they were fighting, which conclusion I find far more consistent with the total lack of any bruising or marks to the torso of the Complainant.

If, however, the SO did cause the injury, I find that his single punch, which was delivered in response to an aggressive act by the Complainant toward the SO, did not amount to an excessive use of force and does not provide me with reasonable grounds to believe that the SO’s action rose to the level of a criminal act and no charges will therefore issue.

Date: May 24, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit