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 42-year-old man during his arrest on May 27^th, 2017.

Notification of the SIU

At approximately 11:00 a.m. on May 27^th, 2017, the Niagara Regional Police Service (NRPS) notified the SIU of the serious facial injury sustained by Complainant subsequent to a high-risk arrest at a local hotel earlier that morning.

The NRPS reported that at about 4:00 a.m., on May 27^th, 2017, police were called to a motel in Niagara Falls in response to a disturbance involving property damage in one of the ground floor rooms. The caller was the owner of the establishment and informed the dispatcher that one of the involved persons had been seen with a gun. NRPS police officers entered the room and arrested the Complainant, who they found hiding under a bed with a handgun to his right side.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

On May 27^th, 2017, four SIU investigators and one SIU forensic investigator (FI) initiated an investigation in Niagara Falls. The scene was photographed, physical evidence was examined and photographed, civilian witnesses were located and interviewed, and medical reports were obtained on consent.

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, notes received and reviewed

Nature of Injury/Treatment

The Complainant was examined at hospital on May 27^th, 2017. He was diagnosed as having suffered a comminuted fracture involving the floor of the left orbit. The medial wall of the left orbit was also fractured. The Complainant did not lose consciousness and surgery was not deemed necessary.

The Scene

The incident occurred in room 9 of a motel in the City of Niagara Falls. Room 9 is on the ground floor of the establishment and abuts the parking lot.

Physical Evidence

The knife located in the waist at the back of the Complainant’s pants.

The pellet gun located under the bed.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but none was located.

Communications Recordings

The 911 Communications Recording

Civilian Witness (CW) #1 called the NRPS on May 27^th, 2017, and complained that the occupants of room 9 were causing property damage to the room and its door, and requested that the occupants all be removed from the premises. While providing further information to the dispatcher, CW #1 mentioned that a man who had just left the room had told him that one of the occupants had been seen with a handgun.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

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

• Computer Aided Dispatch (CAD)
• Civilian Witness List
• Detailed Call Summary
• General Occurrence Report
• Incident Distribution-Large Document form
• Inform Reconstruction Radio Transmission Times
• Notes of Witness Officer (WO) #s 1-4 and the Subject Officer (SO)
• NRPS Use of Force policy
• NRPS Request for Communications from Master Logger
• NRPS Request for Communications Recording, and
• 911 Call and Communications Recordings

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.

25 (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservations of any one under that person’s protection from death or grievous bodily harm.

Section 34, Criminal Code - Defence of Person – Use of Threat of Force

34 (1) A person is not guilty of an offence if

1. They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person
2. The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force, and
3. The act committed is reasonable in the circumstances

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

1. the nature of the force or threat
2. the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force
3. the person’s role in the incident
4. whether any party to the incident used or threatened to use a weapon
5. the size, age, gender and physical capabilities of the parties to the incident
6. the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
   1. (f.1) any history of interaction or communication between the parties to the incident
7. the nature and proportionality of the person’s response to the use or threat of force, and
8. whether the act committed was in response to a use or threat of force that the person knew was lawful

Section 88(1), Criminal Code - Possession of weapon for dangerous purpose

88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

Section 91 (1), Criminal Code – Unauthorized possession of firearm

91(1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm without being the holder of

1. a licence under which the person may possess it, and
2. in the case of a prohibited or a restricted firearm, a registration certificate for it

(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.

(3) Every person who commits an offence under subsection (1) or (2)

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

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 May 27^th, 2017 at approximately 4:00 a.m., a call was received by the Niagara Regional Police Service (NRPS) requesting police assistance at a motel in the City of Niagara Falls. The call originated from the manager of the motel, Civilian Witness (CW) #1, and indicated that there were four to five people in room 9 of the motel involved in some possible property damage and he wished to have them removed from the property. CW #1 also indicated that another male who had just left the room had told him that one of the occupants had been seen with a gun.

As a result, the Subject Officer (SO), WO #1, WO #2, WO #3 and WO #4 were dispatched to the scene. Following an interaction with the occupants of room 9, the Complainant was arrested for breaching the conditions of his bail release and was taken to hospital where he was diagnosed as having sustained a comminuted fracture involving the floor of the left orbit and a fracture of the medial wall of the left orbit (the bones of the eye socket).

The Complainant alleged that while he was in room 9 at the motel, CW #3 brought an unloaded pellet gun with him, which compelled CW #5 to immediately leave the room. Shortly thereafter, police arrived at the hotel and CW #3 put the pellet gun under the bed, following which the Complainant hid under the bed. While under the bed, the Complainant observed the silver pellet gun by his head and he picked it up and moved it to the other side.

While under the bed, the Complainant heard the police officers arrive and tell everyone in the room that they had to leave because the motel owner no longer wanted them on the premises. The Complainant alleges that a police officer then lifted up the bed and spotted him underneath it, following which the officer yelled that a man was underneath the bed. The Complainant tried to come out from under the bed head first but an officer told him to come out of the front of the bed with his hands out. Two police officers then pulled the Complainant out from underneath the bed while another pointed a shotgun at him. The Complainant alleges that he then received knees and punches to the face by the police officers. He indicated that he did not have the pellet gun with him and his hands were empty. While he was lying face down on the ground with police officers on either side of him, the Complainant alleges that he was punched in the right side of his face, then on his left side and was also kneed to the right side of his face. He could not see who was hitting him but heard police officers yelling at him, though he could not make out what they were saying because the situation was so hectic. He was then handcuffed and lifted to his feet and taken outside to a cruiser.

During the course of the investigation, five CWs in addition to the Complainant were interviewed, as were the SO and four WOs. Investigators also had access to the memorandum book notes made by all police officers, as well as the 911 and radio communications recordings.

Of the five CWs interviewed, four were apparently involved in whatever incident occurred in room 9 of the motel in the early morning hours of May 27^th, 2017, which lead to the call to police. The fifth CW was the motel owner/operator, who did not observe the interaction between the police and the Complainant. I do not intend to go into any lengthy detail with respect to the observations of the four CWs from room 9, as their versions of the events are all diametrically opposed not only to each other but to the version proffered by the Complainant. The following is a short highlight of each witness’ evidence:

CW #5 was highly intoxicated when he received a text message to come to the motel to see CW #4 for sexual services. CW #5 was in the bathroom washing his hands when the Complainant came in and told him that he had rented the room and CW #5 gave the Complainant $100 to purchase some marijuana. The Complainant then left but returned shortly thereafter with CW #2 and CW #3 and CW #2 removed a handgun from the waistband of her pants and the three robbed him of his jewelry, after which CW #5 left the room and disclosed to CW #1 that the occupants of room 9 had a gun and had tried to rob him. CW #5 then returned to room 9 to retrieve his cell phone where he kicked at the door repeatedly and he then left.

CW #4 indicated that she is an escort and was high on drugs on May 26^th, 2017 when she attended the motel with an older man who rented a room. CW #4 stated that she fell asleep in the room, when she was later woken by two unknown men in her room followed shortly thereafter by two uniformed police officers. Although CW #4 conceded that she knew the Complainant, she was unable to confirm whether or not he was one of the men in the room when police arrived. She denied knowing either CW #2, CW #3 or CW #5.

CW #2 stated that she resided in a room of the motel with CW #3 and that on May 26^th, 2017, at approximately noon, CW #4 and the Complainant (who was identified by a different name than he provided to SIU Investigators) attended their room a number of times and then later rented their own room in the motel, room 9. The Complainant later came to her room and told her that a man, who had stolen from him, was in his room with CW #4. The Complainant, according to CW #2, asked her and CW #3 to come with him to room 9 where CW #2 saw CW #5 on the bed with CW #4 and he had his hands around her neck. CW #2 indicated that she spoke to CW #5 about owing money to the Complainant, whereupon CW #5 denied this and wanted to leave. CW #1 then attended to see what was going on and CW #2 told him that everything was fine. CW #1 and CW #5 then both left with CW #5 remaining outside the door yelling and banging on the door. Within two minutes of CW #5’s leaving, four to six police officers then came to the door with CW #1. Before the police came in, the Complainant went underneath the bed and told her that he was wanted and did not want to be arrested. CW #2 indicated that she never saw any gun inside of room 9.

CW #3 indicated that he was in his room with CW #2 when CW #4 called asking for help as she was being sexually assaulted by a male in room 9. CW #3 and CW #2 then attended room 9 where they saw CW #5, and CW #2 yelled at CW #5 to get off of CW #4 and CW #5 then put his hands on CW #2. CW #1 then came to the door and told them all to leave as he was calling the police. CW #5 then left the room, leaving only CW #4, CW #2 and CW #3. CW #3 stated that he was unaware that the Complainant was in the room under the bed when police arrived. CW #3 indicated that he never saw a gun in the room.

As there is no common ground between the versions of any of the four CWs from room 9 and that of the Complainant, I am unable to determine who, if any, of the five are being truthful and as such have rejected their evidence in its totality except where it is corroborated by some other witness. It is clear that none of these witnesses have any credibility and each has coloured his or her version of events in order to make themselves as unblameworthy as possible. Additionally, it appears that CW #5 and CW #4 have each conceded that they were extremely intoxicated, by either drugs or alcohol, while the Complainant admitted the use of both drugs and alcohol. I am unable to determine what the source of the blatant inconsistencies between CW #3 and CW #2’s version of events might be.

Despite the many and varied inconsistencies between the five CWs as to what occurred leading up to the arrival of police, I find that there are in fact very few inconsistencies between the version of the Complainant and that of police as to what occurred after the arrival of police. There appears to be no dispute whatsoever that the SO caused the injury to the Complainant’s face by punching him five or six times in the face as hard as he could and that he thereafter also delivered knee strikes to the Complainant’s upper left torso. The Complainant believes this to have been an excessive use of force, while the SO is of the view that his actions were justified in the circumstances and do not constitute a criminal offence.

The SO, in his statement to SIU Investigators, stated that he received a radio call to assist at the motel, room 9, at approximately 4:10 a.m. on May 27^th, 2017, and that the call originated from CW #1, the motel owner, and involved four or five people damaging property. Upon his arrival, WO #4, WO #2, WO #3 and WO #1 were already present and the SO spoke to CW #5 and then to CW #4 about what had occurred.

The SO described CW #5 as being intoxicated and indicating that he had observed a silver handgun in the front of CW #2’s pants.

The SO then spoke with CW #2 who denied possessing a gun.

According to WO #2, while the SO was speaking with the various witnesses, WO #2 went to room 9 where he saw two women and a man inside, those individuals being CW #4, CW #2 and CW #3. CW #4 was known to WO #2 from previous dealings with her. CW #4 provided a version of events to WO #2, which differed significantly from that which she provided to the SIU and to that which she had already provided to the SO. Each of the three occupants of the room denied having seen a firearm and denied that a fourth person had been in the room.

At the request of CW #1, WO #2 asked all of the parties to vacate the room and he waited outside of the room looking in while CW #4 began to pack up her things. WO #2 observed CW #3 to go to the right front corner of the bed, reach down and lift the mattress quickly and then pull his hand away and put it behind his right leg. Both CW #3 and CW #2 confirm that CW #3 tried to pick up a drug baggie but then dropped it onto the floor, with CW #3 indicating that he did so at the request of CW #4; consequently CW #3 was arrested and handcuffed by WO #2.

WO #2 indicated that he then searched CW #3 for weapons, following which he inspected the baggie which appeared to have a residue inside, which he opined was possibly crystal methamphetamine. WO #2 indicated that he was unable to determine if CW #3 had secreted something under the mattress and he told the SO and WO #3 about what he had observed, whereupon the SO entered the room and lifted up the corner of the bed, which he then immediately slammed back down, and yelled that there was a man under the bed; this is confirmed by the Complainant as well as by CW #2 and CW #3.

The SO stated that after he saw a man under the bed mattress, he went and summoned WO #1, as he had a shotgun. The SO then picked up the mattress in the middle while WO #2 lifted up the right corner and they saw the Complainant curled up on his stomach facing the SO.

WO #3 then yelled at the Complainant to stay where he was and not to move, following which he directed CW #4 and CW #2 to leave the room, which they did. WO #3 then asked the Complainant to come out from under the bed with his hands where he could see them, but received no reply, while WO #1 racked his shotgun as loudly as he could to make the Complainant aware that he was armed with a shotgun.

The SO then attempted to pull the Complainant from under the bed by his arms but the Complainant resisted and pulled away to get back under the bed. WO #3 observed the Complainant to reach his hands behind his back and he saw a brown sheath with a brown handle in the rear of the Complainant’s pants and he yelled, “Knife!” and grabbed the knife handle, pulling it from the Complainant’s pants, and threw it out of reach. WO #3 then saw a silver handgun to the right of the Complainant, within arms’ reach, and he yelled out, “Gun!” Upon hearing the shouts from WO #3, the SO yelled at the Complainant to show his hands.

The SO stated that he thought he might have to shoot the Complainant if the Complainant was able to get his hands on the gun, as a result of which he immediately bent over and grabbed the Complainant’s shirt and began pulling him out from under the bed.

The SO stated that he could not see the Complainant’s left hand but did see that the Complainant was going towards the gun with his right hand and that he could feel the Complainant pulling back and not complying with the command to show his hands. The SO continued to yell for the Complainant to stop resisting and show his hands. The SO indicated that he feared that if the Complainant got the gun, he would shoot him and the SO would be forced to shoot the Complainant to prevent that occurring.

At that point, the Complainant’s right hand was about 16 inches from the gun. As a result, the SO stated that he grabbed the Complainant and punched him in the face five or six times as hard as he could in order to knock the Complainant out or to distract him from reaching for the gun, but that the Complainant continued to resist. The SO stated that he continued to hit the Complainant until the Complainant stopped reaching for the gun.

I find that this evidence is consistent with both the observations of the other police officers present and the evidence of the Complainant. WO #3 described the Complainant as pulling away from the SO and putting his hand back towards the gun, at which point WO #3 observed the SO to deliver at least one closed hand punch, but possibly more, to the Complainant’s face, while WO #1 described seeing the SO deliver a distractionary punch to the Complainant’s right temple area.

The SO stated that he then managed to get the Complainant over the edge of the bed and down onto his front on the floor between the bed and the wall, but could still not see the Complainant’s left hand, which was underneath his body. At that point, the SO was down on his knees on the left side upper torso of the Complainant and delivered knee strikes to the Complainant’s upper left torso while pulling his left arm to prevent the Complainant from accessing any other weapon he might have secreted under his body.

WO #3 indicated that he observed the SO give at least one knee strike to the Complainant, which he thought landed on the Complainant’s forehead.

WO #2 indicated that while attempting to pull out the Complainant’s arms to be handcuffed, he too administered three left knee strikes as hard as he could to the Complainant, two to the back of the head and one to the upper back portion below the neck. WO #2 indicated that at no time did he strike the Complainant in the face. All of the other officers present indicated that they did not deliver any strikes to the Complainant. The Complainant was then finally handcuffed. The SO estimated that the entire interaction with the Complainant, from when the mattress was lifted until he was handcuffed, was of a duration of about one minute.

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 statement of CW #1 that he wished the occupants of room 9 to be removed from the property, as he feared that they were doing damage to the premises, and that he had enlisted the assistance of the NRPS for that purpose. As such, as agents for CW #1 the owner of the property, the police were lawfully present on the premises and were authorized to remove the occupants, including the Complainant, from the premises. The removal of the Complainant was therefore lawfully authorized in the circumstances. Thereafter, once police had observed the Complainant in possession of both a knife and a handgun, they were legally justified in apprehending and investigating him for possible weapons offences.

With respect to the amount of force used by officers in their attempts to apprehend and subdue the Complainant, I find that their behaviour was justified in the circumstances and, while it is clear that the actions of the SO were the cause of the Complainant’s injuries, I cannot find that the SO’s conduct amounted to an excessive use of force in this particular fact situation.

Where, as here, the SO was aware, through the alert shouted by WO #3, that both a gun and a knife had been observed, and where the SO had not seen the knife but clearly observed the handgun within reach of the Complainant, which posed a potential threat to the safety of not only the SO but of all of the officers present, I cannot find that his actions were excessive in the circumstances. The actions resorted to by the SO which consisted of his repeatedly punching the Complainant in the face area as hard as he could, in an effort to knock him out or distract him from reaching for the handgun, was certainly preferable to the other option considered by him, that being that he might be forced to shoot the Complainant in order to protect his own life.

The actions of the SO, in delivering five or six or more closed hand punches to the Complainant’s face in order to knock him out or otherwise distract him from reaching for what appeared to all present to be a handgun, and thereafter delivering three knee strikes to his upper left torso, as well as the actions of WO #2, in administering three left knee strikes as hard as he could to the Complainant, with two making contact with the back of his head while a third struck him in the upper back portion below his neck, require an assessment of those actions per the standards in the relevant legislation, that being s.34 and s.25(1) of the Criminal Code of Canada.

Pursuant to s.34(1) of the Criminal Code, the SO and WO #2 would have been justified in using whatever force necessary to prevent the Complainant accessing the firearm within his arm’s reach or accessing any other weapon possibly secreted on his body, if:

1. They each believed on reasonable grounds that force or a threat of force was being used against them
2. That they each only acted to defend or protect themselves against that force or threat of force and
3. The act was reasonable in the circumstances

In all the circumstances, including the fact that the Complainant was hiding under the bed with what appeared to be a handgun and had a second weapon, a knife, in a sheath in the small of his back, while continually refusing to give up his hands and appearing to be reaching for the handgun, and later to be reaching under his body for potentially another weapon, I find that the SO and WO #2 each had reasonable grounds to believe that force or a threat of force would be used against them if the Complainant was not subdued and was able to access a weapon.

As such, I find that the actions of both the SO and WO #2 were justified pursuant to s.34 of the Criminal Code as being in self-defence and in defence of the other police officers present and that the SO and WO #2, in defending themselves and others, used no more force than was necessary to affect their lawful purpose pursuant to s.25 (1) of the Criminal Code. I find support in this conclusion from the fact that all parties agree that as soon as the Complainant gave up his hands and was handcuffed, no further strikes were delivered by any police officer to the Complainant.

With respect to the requirements pursuant to s.25(1) and (3) of the Criminal Code, 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]

I have further considered the decision of Justice Power of the Ontario Superior Court of Justice in Chartier v Greaves, [2001] O.J. No. 634, as adopted by the Supreme Court of Canada, in which he sets out a number of other legal principles gleaned from the legal precedents cited, including the following:

8. Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event
9. "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14^th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver)
10. Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances
11. "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.)

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, it is clear that the force used by the SO and WO #2 and the other officers involved in the removal of the Complainant from underneath the bed, and out of reach of the handgun, fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention and to remove the risk that he continued to pose as long as they could not control his hands, thus giving the Complainant the possibility to attempt to access some other potential weapon.

In conclusion, having reviewed all of the evidence and the jurisprudence in this area, I am satisfied for the foregoing reasons that the Complainant’s apprehension and the manner in which it was carried out were lawful, notwithstanding the injury which he suffered. I am therefore satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: April 26, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit