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 29-year-old man during his arrest on August 6^th, 2017.

Notification of the SIU

At approximately 12:25 a.m. on Monday, August 7^th, 2017, the Peel Regional Police (PRP) called the SIU to report a custody injury. The PRP reported that on Sunday, August 6^th, 2017, at 5:55 p.m., the Subject Officer (SO) responded to an address in the City of Mississauga for an unwanted guest in the front foyer. The SO arrested the Complainant for trespassing. During the arrest, the SO took the Complainant to the ground. The Complainant sustained a cut to his head and was transported to the hospital. He received two stitches for the cut and was also diagnosed with a fractured nasal bone and a brain bleed, which was described as non-life threatening.

At the time of notification, the SO was at the police station, while the Complainant had been admitted to the hospital at 4:36 p.m. The scene at the apartment building was held for the SIU and it was believed that there would be video of the front foyer of the apartment building.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

Subject Officers

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

At approximately 5:40 p.m. on August 6^th, 2017, the PRP received a call from Civilian Witness (CW) #1 who was located in a condominium building in the City of Mississauga. CW #1 reported an individual, who was later identified as the Complainant, had come into the lobby of the building and would not leave. The Complainant could be heard shouting in the background.

At approximately 5:45 p.m., the SO arrived at the condominium building and located the Complainant sitting on a couch in the lobby. The SO attempted to speak with the Complainant, but the Complainant was making no sense. The SO stood the Complainant up

and began escorting him towards the lobby exit. At the lobby door, the Complainant leaned up against the door frame and resisted the SO’s efforts to remove him from the lobby. The SO and the Complainant exchanged words and the SO performed an arm drag manoeuvre on the Complainant and grounded him with force. The Complainant landed on his face and received a laceration to his eye area.

The SO called for an ambulance and the Complainant was transported to the hospital where he was admitted.

Nature of Injury/Treatment

The Complainant was assessed and diagnosed with a laceration to the right eyebrow, a fractured nose, and a brain bleed.

The Scene

The scene of this incident was located inside the lobby of a condominium building in the City of Mississauga. The SIU Forensic Investigator (FI) recorded the scene with video recordings and photographs and prepared a diagram of the area.

Scene Diagram

Forensic Evidence

There were no submissions made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

On August 7^th, 2017, the SIU retrieved three video files from the closed circuit television (CCTV) system that was active at the condominium building during the time of this incident. The following is a summary of VTS 01 1 file, which captures the incident involving the Complainant and the SO:

5:45:00 p.m.: The video commences and records CW #1 seated behind the concierge desk and the Complainant seated in a chair inside the lobby;

5:46:46: The SO arrives and is let into the lobby by CW #1;

5:47:47: The SO is standing beside the Complainant, who is still seated in the lobby chair. The SO appears to be taking notes;

5:51:07: The SO takes hold of the Complainant’s right arm, assists him to his feet and begins to lead him toward the exit;

5:51:14: The Complainant, who appears very unsteady on his feet, stops walking and pulls his right arm away and raises it slightly; the SO does not lose his grip on the Complainant’s arm;

05:51:29: The SO leads the Complainant to the inner exit door of the lobby, and while the SO is opening the door, the Complainant is pulling away slightly. The SO’s right hand is holding the Complainant’s right wrist, while the SO’s left hand is holding the Complainant’s right elbow area;

05:51:34: The SO appears to attempt to move the Complainant past the inner door and out of the lobby;

5:51:43: The SO appears to step backwards into the lobby, and pulls the Complainant’s right arm with both hands. The SO appears to be pulling down and away, and the Complainant’s body is moved backwards and down. The Complainant goes to the floor with both his face and body landing on the floor, as the Complainant does not break his fall with his left arm;

5:51:48: The Complainant is face down on the floor and the SO gets on the Complainant’s back and handcuffs both of the Complainant’s hands behind his back;

5:52:17: The SO is seen talking into his radio; and

5:52:52: WO #1 arrives on scene.

Communications Recordings

The 911 call and the police transmissions recording were obtained and reviewed.

Materials obtained from Police Service

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

• Audio Copy Report-911 Calls
• Audio Copy Report-Radio Transmissions and DA Support Calls, and
• Notes of WO #s 1 and 2

The SIU also received the following materials and documents from other sources:

• Three CCTV security videos from the condominium building, and
• The medical records of the Complainant relating to this incident

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

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

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

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

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

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.

On August 6^th, 2017, at approximately 5:35 p.m., a 911 call was received by the Peel Regional Police (PRP) from the concierge of a condominium building located in the City of Mississauga. The caller reported that an unwanted party “a drunken guy, came in and is making trouble”. The caller further reported that he had already informed the man that he had to leave, but that the man was refusing to do so. As a result, the Subject Officer (SO) was dispatched to the building.

While the complainant had no memory of the incident either before, during, or after his involvement with police, other than that he had consumed a substantial amount of alcohol, following which his next memory was of waking up in hospital, there was fortunately a civilian witness (CW) who was present during the interaction between the SO and the Complainant, and closed circuit television security video which captured the entire incident inside the lobby. As a result, there is no dispute as to the facts.

Prior to the arrival of the SO at the building, the concierge, CW #1, stated that he told the Complainant that he was not welcome in the building and that he had to leave. The Complainant was outside of the entry doors and he refused to leave, instead, banging on the glass door and asking CW #1 to let him in. It was the opinion of CW #1 that the Complainant was clearly intoxicated and he told him that he was trespassing and had to leave. The Complainant was observed to be off balance, he was unable to walk straight, and he smelled of liquor. CW #1 called 911. While CW #1 was on the phone, a resident exited the building opening the inner lobby door and the Complainant took the opportunity to enter the lobby. The Complainant then went and sat on the sofa in the lobby and began to shout at CW #1.

At 5:45 p.m., the video reveals a male person lounging in a chair in the front lobby of the condominium building; the male, the Complainant, is sprawled out in the chair with his legs stretched out in front of him. The SO is then seen to enter the lobby and approach the Complainant and there is some conversation, which cannot be heard. The SO appears to be taking notes.

CW #1 confirmed for the SO that the Complainant was a trespasser and he authorized the SO, as an agent for the owners of the building, to remove him from the building.

At 5:51:07 p.m., the SO is seen to take hold of the Complainant by the arm and begin to lead him to the exit. The Complainant appears to wish to return to the area where he had been sitting, and according to CW #1, the Complainant indicated that he wanted to retrieve his bag. CW #1, however, told the SO that the Complainant did not have a bag when he had entered the building. It is evident from the Complainant’s movements on the video that he is clearly under the influence of an intoxicating substance, as he appears unsteady on his feet and is seen to be swaying throughout.

The SO continues to move the Complainant toward the entrance to the lobby, while the Complainant is pulling away and trying to get back to the area where he had been seated. He appears to be gesturing in the direction of the sofa and it appears that he wishes to retrieve something, but the video is clear that he has not left anything behind.

As they near the doorway, the Complainant continues to pull back and the SO continues to try and move him forward and out the door. It is evident at this point that the Complainant has gone through the innermost door, as he is no longer visible on the video, but the SO’s body is still seen just inside the door and he is no longer moving forward.

The Concierge indicated that he observed the Complainant grab onto the left side of the door frame and refused to move. This stand-off appears to continue for a short period of time, approximately 11 seconds on the video, when the SO is first seen to quickly step back from the door and then to very swiftly and forcefully pull on the Complainant’s arm, forcing him back into the lobby and down to the floor. The Complainant does not put his arm out to break his fall, and hits the floor, just missing the carpeted area, and striking what appears to be a linoleum floor with his face and body.

The SO then immediately straddles the Complainant, who is face down, and handcuffs him. When it appears to the SO that the Complainant is not conscious, the SO then quickly moves the Complainant to the recovery position, on his side, and then speaks into his radio.

At that point, WO #1 arrives and later, an ambulance arrives and the Complainant is transported to hospital.

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

Turning first to the lawfulness of the SO’s actions in removing the Complainant from the condominium building, it is clear from the information provided in the 911 call, as confirmed at the scene by CW #1, that the Complainant was an unwanted trespasser in the building and that CW #1, as Concierge and therefore acting on behalf of the owners of the building, had requested the assistance of police to remove the Complainant. As such, the SO was acting lawfully and within his duties when he attempted to remove the Complainant from the building.

It is further established on these facts that the SO had reasonable grounds to arrest the Complainant both for trespass to property contrary to s.2 (1) of the Trespass to Property Act and for being intoxicated in a common area, contrary to s. 31 (4) (b) of the Liquor Licence Act.

While in certain circumstances the issuance of a ticket would have been sufficient to deal with these offences, in this scenario, it is evident that the Complainant was going to continue to act in contravention of these provisions, and the SO therefore had grounds to arrest the Complainant in order to prevent the continuation of the offences. As such, the SO was both acting within his duties and reasonably when he attempted first to remove, and then to arrest, the Complainant.

The only question remaining then, is whether or not the SO resorted to an excessive use of force when he grounded the Complainant, who was refusing to leave the building and was resisting the SO.

There is no question, based on the video, nor is there any allegation, that the SO ever struck, kicked, or punched the Complainant or that he resorted to any of his use of force options. The only action of the SO’s which is under consideration is his pulling of the Complainant away from the door and down to the floor.

While the Complainant is not visible during this portion of the security video, as he was already outside of the camera range, I accept the evidence of the CW that the Complainant was actively resisting his removal by holding on to the door frame. Based on the SO’s reaction on the video, wherein he is seen to suddenly jump back and away from the Complainant, I infer that the Complainant either said or did something that alarmed the SO, who then swiftly moved away from the Complainant.

Furthermore, I accept that if the Complainant was actively hanging on to the door frame, the SO would have been required to use significant force to try to pull him off of the door frame. As such, when the Complainant finally released his hold on the door, it would have resulted in the SO pulling on the Complainant with a greater degree of force than he might have intended, and causing the forward motion of the Complainant to increase with the momentum of the combined forces of the SO pulling on the Complainant and the Complainant’s sudden release from the door frame.

The combination of these two forces would have further caused the Complainant to move forward and down with more force and speed than anticipated or foreseen by the SO. This increased momentum would also explain why the Complainant moved further forward than anticipated, striking the bare floor, as opposed to the carpeted area, of the lobby, which thereby resulted in his unfortunate injury.

While I find without question that the actions of the SO caused the injuries to the Complainant, in these circumstances I cannot find those actions to amount to an excessive use of force. Nor do I find that the combined momentum of the SO pulling against the Complainant, and the sudden release of the door frame, which resulted in a greater momentum than intended, would have been foreseeable to the SO.

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.

On this record, I conclude that the SO would have been derelict in his duties had he not acted upon the request of CW #1 to remove an intoxicated and resistant trespasser from the private building.

Furthermore, it is clear from the video that the actions of the SO were measured and in direct proportion to the Complainant’s resistance. The fact that the Complainant, when he suddenly stopped resisting, was flung forward with great momentum, is simply the result of the laws of physics and I do not attribute any intent on the part of the SO to injure the Complainant, which was simply an unfortunate consequence of the combined actions of the SO and the Complainant.

In the final analysis, while, as indicated in R v Baxter, the SO’s actions were not perfect, neither did they amount to an excessive use of force on this record. I am, therefore, satisfied on reasonable grounds that the actions of the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Original signed by

Tony Loparco
Director
Special Investigations Unit