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 52-year-old man during his arrest on July 3^rd, 2017.

Notification of the SIU

At approximately 11:00 a.m. on Thursday, July 13^th, 2017, the Complainant contacted the SIU and reported that on Sunday July 2^nd, 2017, he had posted messages on Facebook indicating that he wanted to commit suicide.

On Monday, July 3^rd, 2017, shortly after midnight, the Complainant was standing in his driveway having a drink, when two Stratford Police Service (SPS) officers arrived. The Complainant knew one of the police officers (WO #1) by his first name. The Complainant was speaking to WO #1, when the other police officer (the SO) told him to put his drink down. The Complainant refused and the other police officer (the SO) placed his hand over his service pistol and again told him to put his drink down. The Complainant handed his drink to WO #1. The next thing he recalled was being placed into a police cruiser with handcuffs on, and seeing blood in the driveway. The Complainant was then taken to the hospital by the police, where he spoke with crisis workers. He saw his family doctor the next day and was diagnosed with a concussion.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

52-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.

The Complainant posted on his Facebook page a message that he was going to kill himself, but just needed to work up the courage. As a result, two police officers [now known to be WO #1 and the SO] arrived at his address.

WO #1 had developed a previous rapport with the Complainant and they began conversing. The Complainant had an alcoholic beverage in his hand and was intoxicated and the SO told the Complainant to put the drink down. The Complainant became argumentative and confrontational towards the SO.

The SO told the Complainant that he was being apprehended pursuant to the Mental Health Act (MHA). The Complainant continued arguing and disobeyed the SO’s command to put his beverage down. As soon as the SO grabbed the Complainant’s arm, the Complainant tensed up and clenched his fists. The SO told the Complainant to put his drink down again and tried to get the glass from him.

The Complainant attempted to pull away from the SO and the SO then grounded the Complainant, at which point, the Complainant hit his head on the pavement.

The Complainant was then transported to the hospital. After a meeting with a crisis intervention worker, he was discharged.

Nature of Injuries / Treatment

On July 3^rd, 2017, the Complainant was admitted to the hospital for a psychiatric assessment. While there, he was treated for a scalp laceration, following which he was released.

On July 4^th, 2017, the Complainant was seen by his own doctor and was assessed, with the doctor noting that the Complainant had an abrasion to the occiput (back part of the head), an ongoing headache, and photophobia (sensitivity to light), from which he determined that the Complainant had sustained a mild concussion.

The Scene

The scene was located in the driveway of the Complainant’s residence in the City of Stratford. As the Complainant was not diagnosed with a concussion until after the conclusion of his contact with police, and the SIU was not notified until 11 days later, the scene was not held and the evidence was no longer available for investigation or analysis.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

No photographs or video/audio recordings of the interaction were located.

Communications Recordings

Summary of communication recordings:

A 911 call was received from a woman reporting that her co-worker’s husband (now known to be the Complainant) had posted a suicide note on Facebook about an hour ago. She reported that the Complainant had indicated that he had to get up the courage to conquer the fear of killing himself.

The dispatcher responded that she knew the Complainant and that police officers were on the way.

The dispatcher relayed the information to the SO.

Materials obtained from Police Service

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

• Arrest Report
• Computer Aided Dispatch (CAD) Details
• Notes of WO #s 1 and 2
• Recording of 911 Call
• Police Dispatch Communications Recordings
• Procedure: Arrest, Cell Block and Prisoner Care and Control
• Procedure: Use of Force
• Procedure: Police Response to Persons Exhibiting Mental Illness, Emotional Disturbance, and
• Training Record (Use of Force Requalification) for the SO

The following materials and documents were obtained and reviewed, from other sources:

• Hospital records of the Complainant relating to this incident
• Medical records of the Complainant from his own personal doctor 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 17, Mental Health Act - Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person
5. serious bodily harm to another person; or
6. serious physical impairment of the person

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

On July 3^rd, 2017, a 911 call was received by the Stratford Police Service (SPS) from a friend of the wife of the Complainant, advising that the Complainant had posted concerning comments about taking his own life on his Facebook page. The caller requested police assistance to check on the Complainant and to ensure that he was not a danger to himself. Consequently, WO #1 and the SO were dispatched to the Complainant’s residence.

The Complainant was subsequently apprehended pursuant to s.17 of the Mental Health Act (MHA) and transported to hospital. During his interaction with police, the Complainant had suffered an injury to his scalp, which was repaired, following which he was released. The Complainant later attended his own family doctor’s office and was diagnosed with a concussion based on his complaints of ongoing headache, sensitivity to light, and a general malaise.

The Complainant advised that after consuming approximately 11 ounces of alcohol over the course of the evening of July 2^nd, 2017, he posted several comments on his Facebook page about committing suicide.

The Complainant indicated that later in the evening he was outside in his driveway with a drink when WO #1 arrived at his home in a marked police cruiser and approached him and they had a friendly discussion. Shortly thereafter, a second police cruiser arrived with the SO. The SO exited his cruiser with the headlights illuminating the area where the Complainant and WO #1 were located and the SO was asked to extinguish the lights, which he then did.

The Complainant recalled that the SO then stood directly in front of him and grabbed his right sleeve causing the Complainant to demand that he let go of him and the SO refused. The SO commanded the Complainant to drop the drink he had in his hand, and the Complainant refused to do so. The Complainant then looked at WO #1 and asked him to tell the SO to let go of him. The SO advised the Complainant that he was the officer dealing with him, not WO #1, to which the Complainant then responded to the SO to let go of him and the SO again directed the Complainant to drop his drink. The Complainant observed the SO’s right hand hovering in the area of his firearm and he asked the SO why he was doing that.

The SO again demanded that the Complainant drop his drink and the Complainant again refused. WO #1 then offered to take the drink from the Complainant, and the Complainant handed it over to him. The Complainant has no recollection of what occurred next, until he found himself standing handcuffed at WO #1’s cruiser and the back of his head was sore.

The Complainant conceded that once WO #2 arrived, he was openly confrontational with the SO telling him that the SO had given the Complainant his best shot, but the Complainant was still standing, and asking that his handcuffs be removed so that he could physically engage with the SO. WO #2 told the Complainant to calm down and spoke to the Complainant about his mental health issues. The Complainant was then transported to hospital by WO #1. The Complainant had suffered a scrape to the back of his head that had a flap of skin hanging from it, which was glued into place at hospital, and he was then released. The Complainant approached WO #2 and WO #1 outside of the hospital and apologized to them and thanked them for their help.

On July 4^th, 2017, the Complainant went to his family doctor and was diagnosed with a concussion.

During the course of this investigation, the Complainant was the only civilian witness to the incident who was interviewed, no other civilians having witnessed the event. The Complainant’s family doctor was also interviewed and his medical records were made available to SIU investigators for review. Additionally, all three police officers, including the subject officer, were interviewed and the 911 call and police radio transmission recordings were provided to SIU investigators.

Surprisingly, despite the Complainant’s mental state and his level of intoxication, there is little dispute between his version of events and that of the three police officers who had some interaction with him, with the exception being the portion of events where the Complainant had no recall. Both WO #1 and the SO confirmed that WO #1 arrived at the Complainant’s residence first and that the interaction was friendly until the arrival of the SO.

Once the SO arrived, things appeared to become more confrontational apparently due to the Complainant initially becoming upset because the SO left his headlights on, illuminating the Complainant, and the Complainant’s objection to what he called “making a scene”.

In response to the Complainant asking the SO why he had his lights pointing at him, according to WO #1, the SO responded with “Why are you putting that stuff on Facebook?” whereupon he immediately attempted to apprehend the Complainant.

It appears clear on the evidence of all parties present, that whereas WO #1 had been low key and friendly with the Complainant, the SO was immediately confrontational, and each garnered the same response from the Complainant in return. While the SO, despite being aware that the Complainant was in a mental health crisis and threatening suicide, approached the Complainant with his body bladed towards him with his hand either resting on, or hovering over, his firearm and repeatedly commanded that the Complainant drop his drink and give up his hands to be cuffed, WO #1 told the Complainant not to fight with them as they were just taking him to the hospital and offered to take the drink from the Complainant, who then voluntarily handed it over.

WO #1 described the SO as then grabbing the Complainant by the arm, spinning him around, losing his grip on the Complainant and the Complainant then continuing to spin and falling onto the driveway and hitting his head on the pavement, which WO #1 later described to WO #2 as going down to the ground ‘hard’ and striking his head.

WO #1 further described the Complainant as then continuing to roll as a result of being spun and appearing to lose consciousness for two or three seconds, after which he was handcuffed and escorted to the cruiser.

The SO’s recollection was slightly different in that he recalled grabbing the Complainant’s wrists after which WO #1 took the Complainant’s glass from the Complainant’s hand, at which point the Complainant pulled away, which caused the SO to try to ground the Complainant, but because the Complainant was a big man and went limp unexpectedly, the SO was unable to control his fall and the Complainant landed in an uncontrolled manner hitting his back and head on the ground.

There is no dispute, and it is openly conceded by the Complainant, that he was confrontational with the SO after his arrest and wanted to fight; this was heard and observed by each of the officers.

Thereafter, WO #1 transported the Complainant to hospital and both WO #1 and WO #2 had the wherewithal to prevent any further interaction between the Complainant and the SO. It is also not in dispute that after he was seen at hospital, the Complainant approached WO #2 and WO #1 and apologized and thanked them for their assistance.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the Complainant’s own evidence that he was in a mental health crisis and had posted comments on his Facebook page indicating that he was contemplating suicide, which he then confirmed in the presence of the SO. Pursuant to s.17 of the MHA, a police officer who has reasonable and probable grounds to believe that a person has threatened to cause bodily harm to himself, and is suffering from a mental disorder that will likely result in serious bodily harm to himself, may take that person into custody and deliver him to a place for examination by a physician. On a review of the evidence before me, I find that the SO had the necessary reasonable and probable grounds as required for an apprehension under s.17; as such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in his attempts to apprehend and handcuff the Complainant, I accept the evidence of WO #1 that the SO did no more than grab the Complainant by the arm and spin him around to handcuff him behind his back, but then lost his grip and the Complainant ended up falling hard to the ground, striking his head and briefly losing consciousness.

On that basis, I find that the SO, who was legally entitled to apprehend the Complainant, used no more force than legally justified to gain control of the Complainant, handcuff him, and take him to be psychiatrically assessed at hospital. That being said, I am firmly of the view that had this matter been handled with a bit more tact and finesse, and a bit less confrontation and aggression on the SO’s part, this incident could have been entirely avoided.

It is clear that had the SO taken the same attitude as did WO #1 and WO #2 and treated the Complainant with some respect and deference, it is very likely that he would have responded in kind, as he did with WO #1 and WO #2. Instead, the SO barged into this scene like a bull in a china shop, immediately confronting the Complainant by challenging him with “Why are you putting that stuff on Facebook?” followed almost immediately by various commands and demands to drop the drink and put his hands behind his back, which immediately got the Complainant’s back up in return and the fight was on.

It all appears to me to have been quite unnecessary in the circumstances. The Complainant had indicated that he was suicidal, not homicidal, he was clearly in a crisis and he was unarmed (although the drink in his hand might have conceivably been used as a weapon). I cannot in all good conscience see the need for the SO to take “his usual stance” with the Complainant by “blading” his body towards him with his hand on or near his firearm, and then immediately confronting him. It is clear on the evidence of both the Complainant and WO #1 that WO #1 had the matter well in hand and things were going smoothly until the SO’s attitude changed the temperature of the incident.

There is a perception amongst the public, as was clearly voiced by the doctor who saw the Complainant, in his medical notes, that police do not know how to appropriately deal with persons in mental health crises. The SO’s actions would certainly fuel this perception and although his actions do not rise to the level whereby I have reasonable grounds to believe that the criminal offence of assault causing bodily harm (contrary to s. 267 of the Criminal Code) was committed, this incident could have been dealt with in a kinder and calmer manner with far less confrontation and more compassion.

On all of the evidence before me, for the reasons stated above, I find that there are no reasonable grounds upon which I am able to find that a criminal offence was committed here and no charges will issue. In coming to this conclusion, I have taken into account the prevailing jurisprudence 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.

As such, in the final analysis, given that the nature of the fall and striking of the head against the ground was unintentional, no charges will issue.

Date: May 8, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit