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 30-year-old man during his arrest on February 17, 2016.

Notification of the SIU

On March 13, 2017 at 9:58 a.m. the Hamilton Police Service (HPS) notified the SIU of a complaint received from the Office of Independent Police Review Director (OIPRD).

The Complainant had alleged that on February 17, 2016 he parked his vehicle in a municipal parking lot in Hamilton. After locking his vehicle, he was walking towards the street when he noticed a HPS cruiser with its emergency lights activated in the parking lot. The Complainant heard someone shout, “Hey come here!” but he continued to walk. He then saw a police officer running toward him. The Complainant started to run to the street as he wanted to be in public view due to bad experiences with the HPS in the past. The police officer tackled the Complainant to the ground to arrest him. He was pepper sprayed and kicked in the left rib cage. At that time, the Complainant did not realize his rib was broken due to the pain. Later, he learned that a Conducted Energy Weapon (CEW) was also utilized. After he was handcuffed, the Complainant was placed into a cruiser. EMS were called and the paramedics cleaned his face due to the pepper spray.

The Complainant said he had rib pain while in custody but it was not until after his release on March 3, 2016 that he obtained an x-ray and it was confirmed that he had a left rib fracture.

The Team

Number of SIU Investigators assigned: 6

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Not interviewed, but notes received and reviewed

WO #8 Interviewed

Subject Officers

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

SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

SO #3 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

Video/Audio/Photographic Evidence

The SIU received four video files recorded by one of the civilian witnesses. The video captured activity near the intersection where the interaction occurred. The following is a summary of the video.

Video File #1

• The file captures video ranging from 00:01 to 03:33 and it does not indicate a time stamp
• At 00:01, SO #1 and SO #3 are seen struggling with the Complainant on the west side of the street
• The Complainant is prostrate on the ground with his head pointed north and his feet pointed south
• There is snow on the ground
• SO #3 is positioned to the right of the Complainant, by his upper body
• SO #3 is attempting to pull the Complainant’s hands behind his back and gave commands to the Complainant, “Put it behind your back, leave it there, leave it”
• SO #1 is kneeling to the right of the Complainant’s head and spoke on his portable radio, identifying their location
• SO #1 leans over the Complainant and reaches underneath him
• SO #1 loses balance over the Complainant’s body, but regains it quickly
• SO #1 attempts to control the Complainant’s head, neck and upper body
• At 00:12, the Complainant is heard to say, “Oh my God, I can’t breathe”
• At 00:15, a police vehicle siren is heard and red lights are reflecting in the area
• At 00:22, the Complainant is rolled from his stomach to his right side, then onto his back and then onto his left side, with his arms flailing
• At 00:24, SO #3 is seen to deliver three closed hand punches to the right side of the Complainant’s body, in the rib area
• The Complainant then rolls from his left side to his stomach, where he remained
• At 00:26, a police cruiser arrives from the south of the street and an officer [now known to be SO #2] exits the vehicle and runs toward the Complainant
• SO #2 is heard to say, “Is he fighting?&rdquo
• Multiple police officers yelled, “Stop fighting,” and, “Stop resisting”
• At 00:27, SO #1 delivers one closed hand punch to the Complainant’s upper back area with his right hand and forearm
• At 00:29, SO #3 puts his left leg over the Complainant’s body, and positions himself over the Complainant
• At 00:31, SO #2 is seen to walk around the Complainant and stand by his head
• SO #1 remains kneeled on the ground, to the left of SO #2
• The Complainant remains on his stomach
• At 00:33, a police officer is heard to say, “Stop resisting,” and the Complainant says, “Ok”
• At 00:34, SO #2’s right foot is seen to swing lightly in the direction of the Complainant’s head
• Due to the position of SO #1 who is struggling with the Complainant, it is unclear if SO #2’s right foot made contact with the Complainant
• At 00:35, an unknown police officer enters the camera view on the sidewalk from south to north
• The unknown police officer goes to the right side of the Complainant and kneels down by his legs
• A tall pole obstructs the camera’s view, and the actions of the unknown police officer are obscured
• At 00:38, an officer [now known to be WO #1] appears on the video and is seen to kneel to the left of SO #1
• WO #1 is then seen to the right side of the Complainant
• The Complainant says, “I can’t breathe”
• At 00:39, a male voice says, “(inaudible) move your arm, I got him”
• At 00:40, SO #2 stands up and leans over towards SO #1
• SO #2 then places his left hand on SO #1 back and his right hand on the back of SO #1’s neck
• SO #2 is then seen to draw his right foot back and deliver a kick to the left side of the Complainant’s body, above the waist
• A thud noise can be heard, following the kick
• SO #2 then kneels down over the area of the Complainant’s upper body and struggles with him
• SO #2’s back is obstructing what, if anything, he is doing with his hands in front of his body
• At 00:41, the Complainant is heard to say, “I can’t breathe”
• At 00:42, an officer [now known to be WO #4] is seen to kneel down by the Complainant’s legs
• Due to the tall pole obstructing the camera view, WO #4’s actions, if any, are not seen
• At 00:44, police officers are heard saying, “Stop resisting”, “Stop it”, “Give me your fucking hands”, “Pull your fucking head back”, and the Complainant replies “Ok”
• At 00:48, a police cruiser arrives but it could not be identified
• At 00:49, SO #2 is seen to draw back his right leg and kick towards the upper body area of the Complainant and a clear thud-like noise is heard
• It is unclear if SO #2’s foot made physical contact with the Complainant
• At 00:51, SO #2’s left foot is seen to kick towards the upper body area of the Complainant and a slight thud like noise is heard
• It is unclear if SO #2’s foot made physical contact with the Complainant
• At 00:53, an officer [now known to be WO #2] exits a police vehicle and walks over to where police officers are struggling with the Complainant
• At 01:07, SO #1 is seen to look at WO #2, and points with his right hand and says, “Can somebody go get that rental”
• An unknown male is heard to say, “What is it SO #1?&rdquo
• SO #1 replies, “You’ll see my cruiser”
• The Complainant repeats, “I can’t breathe”
• At 00:59, an unknown female police officer enters the camera view from south to north on the sidewalk and walks toward the Complainant’s head, and disappears out of camera view
• At 01:21, the camera zooms in to the Complainant and SO #1, SO #2, SO #3 and WO #1
• SO #3 and WO #1 secure the Complainant’s hands and his hands are handcuffed behind his back
• The clicking of the handcuffs being locked can be heard
• At 01:24, SO #2 is seen to walk to his police vehicle, get in, and drive northbound on the street
• At 01:40, SO #1 and WO #1 attempt to lift up the Complainant, but he says that he cannot stand up
• At 01:52, SO #1 speaks into his portable radio, “Everything’s 10-4, we finally got him in custody”
• At 01:56, a male voice is heard to say, “You can walk or be dragged, your call”
• At 02:10, WO #1 and WO #4 walk the Complainant south along the street
• The camera moves to the right past other apartment windows, and continues videoing the police officers walking south, and
• At 02:54, SO #1 is seen with a CEW in his right hand

Video File #2

• The file captures video ranging from 00:01 to 02:37 but it does not indicate a time stamp
• The clarity of the video is poor
• The video shows several police vehicles with their emergency lights activated, but it is impossible to identify individual police vehicle numbers due to the partially obstructed view
• At 00:08, a male voice speaks, but it is inaudible
• At 00:09, a female police officer is heard to say, “Don’t move”
• At 00:13, a female police officer is heard to say, “Look over towards me”
• At 00:23, a female police officer is heard to say, “Look over towards me, stop moving”
• At 00:34, the Complainant is heard to yell, “Record this shit yo, record this, record this, record it, record it
• A male and female police officer repeat, “Sit down”
• At 00:46, a male is heard to say, “I don’t play this game”
• At 00:49, a female police officer is heard to say, “Feet inside”
• At 00:53, a female voice is heard to yell from a distance, “Recording”
• At 01:15, a male voice is heard to say, “Yo, don’t fucking push me bro, don’t push me, don’t push me”
• At 01:29, a male voice is heard to say, “Don’t call me a bitch bro”
• At 02:13, the Complainant yelled, “I can’t breathe, I can’t breathe”, and
• At 02:16, the civilian recording the activity yells, “Are you fucking serious, you’re laughing about this, are you fucking kidding me, the fuck did he do, are you kidding me”

Video File #3

• The file captures video ranging from 00:01 to 02:12 and it does not indicate a time stamp
• A male and female police officer are standing outside
• The camera captures their legs and waist
• The civilian witness recording the incident yells at police demanding to know what the Complainant did, because she said that the police officers assaulted the Complainant
• A male police officer is heard to explain that it was none of her business, and asked if the civilian witness was the Complainant’s lawyer
• The civilian witness says that the Complainant was beat up for nothing
• A female police officer orders the civilian witness to go back inside her residence, and says that she is not able to disclose information on the Complainant’s arrest, as it would jeopardize his right to privacy
• The civilian witness says that she has the entire incident on video and walks back to her residence, and
• At 01:02, the civilian witness says, “It takes about 10 cops to take one man down, pepper spray him and fucking kick him in his face when he’s down. Ok, that makes a lot of sense. Are you kidding me?&rdquo

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HPS

• Case File Synopsis
• Copy of OIPRD Complaint
• Duty Roster
• Event Chronology
• Event Information
• Event Unit
• Notes of SO #3, WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7 and WO #8, and
• Will State of WO #1 and WO #4

On February 17, 2016, at about 12:37 a.m., the Complainant drove his rental vehicle into a municipal parking lot and continued through to an adjacent private lot where he parked his vehicle. SO #1 was patrolling in the area and had taken notice of the Complainant’s vehicle. SO #1 ran the plate number through a database and discovered that the vehicle was registered to a car rental agency in Scarborough.

According to SO #1, after observing the Complainant drive into the municipal parking lot and park in an unlit small dirt parking lot, SO #1 decided to initiate a traffic stop pursuant to section 216(1) of the Highway Traffic Act (HTA). He activated his emergency roof lights and notified the dispatcher that he was making a traffic stop. SO #1 stopped his cruiser about 10 to 15 feet in front of the Complainant’s vehicle. For safety reasons, SO #1 activated the search light on the side of his cruiser and fixed the light beam on the Complainant. SO #1 and the Complainant exited their respective vehicles simultaneously. SO #1 ordered the Complainant to get back into his vehicle. The Complainant ignored the command and walked to the passenger side of his vehicle stating, “What? I wasn’t driving.” SO #1 continued to order the Complainant to get back into his vehicle, but the Complainant fled on foot. SO #1 believed he now had grounds to apprehend the Complainant for failing to identify under section 33(3) of the HTA.

The Complainant ran eastbound through an alleyway, south on one street and then westbound on a second street. SO #1 yelled at him to stop as he gave chase. He broadcast over his radio that he was in a foot pursuit and requested assistance. On the second street, SO #1 caught up to the Complainant and grabbed the back of his shoulders. It was at that moment that SO #1 realized how powerful the Complainant was. The Complainant whirled about and punched SO #1 with a closed fist that grazed the top of his forehead and caused him to release the Complainant.

The Complainant then ran northbound on the sidewalk of the second street. SO #1 deployed his CEW and the prongs struck the Complainant in the back from about 25 feet away. The CEW appeared to have no effect as the Complainant continued to run with the prongs still attached to his back. SO #1 pressed the CEW trigger again and another five second energy pulse was deployed.[1] This burst was partially effective, as the Complainant bent over, slowed running and his arms went flaccid indicative of partial muscle incapacitation. However, the Complainant still managed to run north on a third street. SO #1 caught up to him on the west sidewalk of the third street, just north of the second street.

SO #1 tackled the Complainant from behind and the two men fell over a pile of garbage. SO #1 landed on the Complainant’s back. The Complainant had his hands tucked underneath his body. SO #1 grabbed hold of the Complainant’s arm and attempted to pull it out but the Complainant was strong and his arm did not move. SO #1 yelled for the Complainant to stop resisting. SO #1 was concerned that he might be concealing a weapon beneath him. SO #1 was exhausted from running and claimed an adrenaline surge caused him to experience auditory exclusion drowning out what the Complainant was saying as he did not hear him complain that he could not breathe. After about a minute, SO #3 arrived and attempted unsuccessfully to gain control of the Complainant’s left arm. SO #1 decided to pepper spray the Complainant in the face, which caused him to loosen his arms slightly. SO #1 was cross contaminated by the spray, which interfered with his vision. The Complainant continued to struggle and when he attempted to rise, SO #1 delivered a right handed punch to the Complainant’s upper back. That was the only time SO #1 struck the Complainant.

SO #2 and WO #1 arrived to assist, followed shortly by WO #4, WO #2, and WO #5. After about two to three minutes of struggling on the ground, the Complainant was eventually handcuffed. SO #1 did not recall who handcuffed the Complainant. SO #1 was thoroughly exhausted. He did not witness any other officer punch or kick the Complainant. SO #1 searched the Complainant and located a small grey scale with cocaine residue and over $2, 000.00 in cash in his jean pockets. Later, SO #1 searched the Complainant’s vehicle and found the rental agreement that showed the vehicle was leased by someone other than the Complainant. SO #1 also found marijuana in a plastic bag on the driver’s seat. SO #1 charged the Complainant with assaulting a peace officer, resisting arrest and possession of cocaine residue.[2] The charges against the Complainant were later withdrawn.

WO #1 also responded to SO #1’s request for assistance. When she arrived, she saw the Complainant prostrate on the ground struggling with SO #1 and SO #3. WO #1 went to the Complainant’s right side and attempted to gain control of his right arm. Immediately, she realized he was very strong. She used both hands in her attempt to gain control of the Complainant to no avail. She repeatedly ordered the Complainant to show his hands. WO #1 delivered a closed fist punch to the Complainant. There were other officers involved in the struggle with the Complainant but WO #1 could only recall SO #1, SO #2 and SO #3. At one point, WO #1 looked to her left and noticed SO #2 by the Complainant’s head and shoulder area. She saw SO #2’s boot connect with the Complainant’s face or head but she was not sure to what degree or with how much force. She did not actually see SO #2 kick the Complainant. The Complainant was ultimately handcuffed with his hands behind his back.

WO #4 recalled that when he arrived at the scene he saw SO #1 and SO #2 and a third unknown officer struggling to restrain the Complainant, who was on the ground. The Complainant was powerfully built and kicking at the officers with both feet. SO #1 appeared exhausted. WO #4 lay across the Complainant’s legs and had to use both his hands and knees to pin the Complainant’s legs to the ground due to the Complainant’s strength. The Complainant continued to squirm and resist. WO #4 delivered a number of punches and knee strikes to the Complainant as he struggled to control the Complainant’s legs. Other officers arrived during the incident but he could not remember who they were or their role. The Complainant was ultimately handcuffed. After the Complainant was searched, he was led to WO #4’s cruiser and put in the rear seat. At 12:48 a.m., WO #4 drove to a nearby parking lot to await the arrival of paramedics, who cleansed his eyes as they had been irritated by the pepper spray. At 1:08 a.m., WO #4 transported the Complainant to the station.

SO #2 reported hearing on the police radio that a suspect had attempted to punch SO #1. When he arrived at 12:40 a.m., SO #2 saw SO #1, SO #3 and WO #4 struggling to restrain the Complainant, who was lying on the ground, not yet handcuffed. WO #4 was positioned on the left side of the Complainant, and SO #1 and SO #2 were on his right side. The Complainant had both arms under his body and was struggling with the three officers who appeared to be growing increasingly exhausted. The officers were yelling at him to stop resisting and to give them his hands. The Complainant was also yelling. From a standing position, SO #2 made multiple unsuccessful attempts to pull the Complainant’s left arm from beneath his body. SO #2 was concerned that he may be concealing a weapon and grew increasingly concerned for the stamina of the fatigued officers. The pepper spray deployed at some point began to burn SO #2’s nose and eyes. He also saw the prongs of a CEW that he believed had been deployed unsuccessfully. As tactical communications, closed-hand techniques, pepper spray and the CEW deployment were unsuccessful, SO #2 decided to kick the Complainant in his left shoulder area as a distraction. This kick caused the Complainant to release his arm from under his body, enabling SO #2 to pull his left arm behind his back for handcuffing. The Complainant continued to struggle even after being handcuffed.

When WO #2 arrived on scene, he recalled seeing about five officers struggling to control the Complainant, who was lying on the ground. WO #2 surmised that there was a sufficient number of officers present and asked SO #1 if he could assist in any other matter. SO #1 asked him to find and search the Complainant’s vehicle and the surrounding area in a nearby parking lot. WO #2 found the vehicle and searched it. He also searched the surrounding area but did not find anything of evidentiary value. The vehicle was eventually towed away and WO #2 had no further involvement in the incident.

A cell phone video recorded by a civilian witness in the vicinity of the incident was obtained and reviewed by the SIU. At the start of the recording, SO #1 was seen lying across the Complainant’s upper back with his entire body weight on the Complainant, who was positioned face down in the snow. SO #3 was on the Complainant’s right side attempting to gain control of the Complainant’s hands as he directed the Complainant to provide his hands. The Complainant complained repeatedly that he could not breathe, and then rolled onto his back with both hands now visible in front of him. The Complainant struggled as the officers tried to gain control of his hands. SO #1 punched the Complainant once in his upper right torso/back area. SO #3 delivered three punches to the Complainant’s left abdominal area as he continued to be positioned on his back and side. SO #3 arrived to assist and stood by the Complainant’s head area. The officers were heard repeatedly stating “stop fighting” and “stop resisting.” SO #2 used his right foot to kick into what appeared to be the middle of the Complainant’s body, although this is not entirely clear. A distinct thud was heard. SO #2 then used his other foot to kick forward in a poking manner twice where the Complainant’s head and upper body was believed to be, but it was not possible to see where the kick landed or if it made contact with the Complainant. A pole and the officers’ body positions at times obscured the view of the Complainant, who remained lying on the ground. There was no clear video evidence of the Complainant being kicked in the face or head.[3] The officers continued to struggle with the Complainant. Although the Complainant’s body and actions were obstructed, the officers were repeatedly heard shouting at him to put his hands behind his back while the Complainant continued to yell that he could not breathe. The Complainant was finally handcuffed with his hands behind his back and escorted to a police vehicle.

It is alleged that the Complainant said he had rib pain while in custody. On March 3, 2016 it was confirmed that the Complainant had a left rib fracture.

Section 216(1), Highway Traffic Act of Ontario – Power of police officer to stop vehicles

216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

Section 33(3), Highway Traffic Act of Ontario – Identification on failure to surrender license

33(3) Every person who is unable or refuses to surrender his or her licence in accordance with subsection (1) or (2) shall, when requested by a police officer or officer appointed for carrying out the provisions of this Act, give reasonable identification of himself or herself and, for the purposes of this subsection, the correct name and address of the person shall be deemed to be reasonable identification.

Section 217(2), Highway Traffic Act of Ontario – Arrest without warrant

217 (2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any provisions of subsection 9 (1), subsection 12 (1), subsection 13 (1), subsection 33 (3), subsection 47 (5), (6), (7) or (8), section 51, 53, subsection 106 (8.2), section 130, 172 or 184, subsection 185 (3), clause 200 (1) (a) or subsection 216 (1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention.

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 129(a), Criminal Code - Offences relating to public or peace officer

129 Every one who

1. resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer

is guilty of

4. an indictable offence and is liable to imprisonment for a term not exceeding two years, or
5. an offence punishable on summary conviction

Section 495(1), Criminal Code - Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant

1. a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence
2. a person whom he finds committing a criminal offence; or
3. a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found

Early in the morning on February 17, 2016, the Complainant was arrested by members of the Hamilton Police Service (HPS). During the encounter, the Complainant suffered a fractured rib. For the reasons that follow, I am unable to form reasonable grounds to believe that any of the subject officers committed a criminal offence in relation to the injuries sustained by the Complainant during their interaction.

I first turn my attention to whether SO #1 had the authority to arrest the Complainant. Section 216(1) of the HTA provides police officers with the general authority to stop the driver of a vehicle when acting in the lawful execution of his/her duties and responsibilities. At the time of the incident, SO #1 was in uniform, on patrol and driving a marked police vehicle. The Complainant drove into the municipal lot from a roadway but continued through it and parked his rental vehicle in a dark private lot immediately prior to SO #1 approaching him. According to SO #1, the Complainant failed to follow his direction to return to his vehicle to allow SO #1 to question him. Instead, the Complainant ran away which prevented SO #1 from being able to make inquiries about his identity and the vehicle registration.[4] SO #1 yelled at him to stop but he refused and continued to flee on foot. Section 217(2) of the HTA provides police officers with the authority to arrest someone without a warrant if a person fails to identify themselves when directed to do so pursuant to section 33(3) of the HTA. In addition, section 129(a) of the Criminal Code prohibits the willful obstruction of a peace officer in the execution of his/her duty. By running away and evading SO #1’s efforts to speak with him, the Complainant prevented SO #1 from having the opportunity to ascertain his identity. Furthermore, the Complainant’s actions were arguably an effort to obstruct the furtherance of a police officer’s lawful duty. Section 495(1) of the Criminal Code allows police officers to arrest without warrant those found committing a criminal offence, such as obstructing a peace officer, whose identity it was necessary to establish. For the preceding reasons, I find that SO #1 had lawful grounds to arrest the Complainant without a warrant.

The question that I must answer then becomes did the SOs use excessive force in their attempts to arrest the Complainant? Based on a review of the totality of the evidence, it is apparent that the Complainant was subjected to multiple punches and kicks during his arrest by the involved HPS officers in response to his resistance to their efforts to apprehend him. On the weight of the evidence, including a review of the video evidence, the Complainant, who had a very strong build, was not listening to or cooperating with the police officers despite their lawful directions to stop resisting and give up his hands and then their application of a variety of use of force options, including physical restraint, pepper spray and two CEW deployments, following which, some of the involved officers resorted to delivering punches and kicks to gain compliance from the Complainant. 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. Yet, the jurisprudence is also clear that officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)) nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206). The Complainant’s injuries consisted of one to three non-displaced fractured ribs, which although significant is not consistent with the severe beating alleged. In these circumstances and given the Complainant’s ongoing resistance, I cannot conclude that the force used by the involved officers was unreasonable or more than necessary to effect the arrest.

In conclusion, I am not satisfied on this record that the force used to arrest the Complainant fell outside the prescribed limits of the criminal law. Accordingly, I am unable to form reasonable grounds to believe that SO #1, SO #2 and SO #3 committed a criminal offence in relation to their interactions with the Complainant on February 17, 2016. As a result, no charges will issue and this case will be closed.

Date: May 1, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The download from the CEW issued to SO #1 confirmed that it was deployed twice for five seconds during the incident. [Back to text]
• 2) [2] The information provided by HPS stated that the complainant was charged with assaulting SO #1 with the intent to resist/prevent arrest or detention, possession of marijuana, possession of cocaine and possession of proceeds of crime. [Back to text]
• 3) [3] If the Complainant had been kicked in the face with any force, one would assume significant injuries to the facial area. No such injuries were identified in the medical records. [Back to text]
• 4) [4] As it turned out, the vehicle was leased to someone other than the Complainant. [Back to text]