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 20-year-old man during his arrest on June 28^th, 2017.

Notification of the SIU

At approximately 11:20 p.m. on Wednesday June 28^th, 2017, the South Simcoe Police Service (SSPS) notified the SIU of a custody injury sustained by the Complainant at 1:40 p.m. that same afternoon.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant:

20-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

CW #6 Interviewed

Police Employee Witnesses

PEW #1 Interviewed, notes received and reviewed

PEW #2 Interviewed, notes received and reviewed

Additionally, the notes from three additional Special Constables were received and reviewed.

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right

SO #2 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

On Wednesday, June 28^th, 2017, at 1:47 p.m., SO #2 and SO #1 attended the residence of the Complainant in the Town of Bradford. Police officers attended in order to arrest the Complainant on an outstanding committal warrant issued for the revocation of the Complainant’s bail.

The police officers were confronted by the Complainant at the front door and he was arrested and handcuffed by SO #2. CW # 4 observed the initial interaction between the Complainant and the police officers and CW #1 observed the Complainant being handcuffed with his hands behind his back. The Complainant became mildly resistant and he told the police officers that he wanted to get a shirt, take care of his dogs, and lock up his residence. The Complainant was led to a police cruiser, which was parked at the entrance to his driveway, and he became resistant when they arrived at the cruiser.

It is alleged that one of the police officers then stomped on his right foot, which the Complainant believed caused three metatarsal bones in his right foot to fracture. SO #1 then swept The Complainant’s feet from under him and SO #2, in fear of being head-butted by the Complainant, delivered a knee strike to the Complainant. The Complainant was then taken to the ground where the right side of his head struck the pavement. The civilian witnesses did not observe the Complainant going to the ground, but did hear the Complainant say that the police officers had hurt him.

The Complainant was transported to the police station, where paramedics attended but could find no broken bones. The Complainant was eventually transported to the Barrie Courthouse, where he was transferred to the OPP transport unit and taken to the correctional facility. He was refused admission to the correctional facility due to his injuries and was then transported to hospital.

Nature of Injuries / Treatment

X-rays of the Complainant’s right foot revealed un-displaced fractures of the proximal metaphyses of the second, third, and fourth metatarsals. It was also determined that the Complainant had sustained a mild concussion.

The Scene

The scene was located on the driveway in front of the Complainant’s residence in the Town of Bradford.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Booking Hall Video

At 2:05:13 p.m., June 28^th, 2017, WO #1 walked into the booking room area. The Complainant limped to the bench in front of the booking desk and sat down. He favoured his right leg and he was handcuffed with his hands behind his back. Scrapes were visible on his right shoulder and the right side of his head. The Complainant made several telephone calls and at 2:26:30 p.m., two paramedics arrived in the booking area.

WO #1 told one of the paramedics that the Complainant had been grounded and had a bump on his head and a sore ankle. The Complainant told the paramedic that he had previously broken his ankle. The paramedic asked if the Complainant had pins in his ankle and the Complainant told him he did not. The paramedic told the Complainant that he did not believe he had a broken bone. The paramedic told the Complainant that if it got worse to call them back and they would take him to the hospital.

At 2:31:36 p.m., the paramedics left the booking area.

At 2:38:09 p.m., WO #1 made telephone calls and arranged to have the Complainant transported to Penetanguishene.

At 2:40:50 p.m., the Complainant limped when he walked. WO #1 told someone on the telephone that there would be a new charge for the Complainant.

Communications Recordings

At 1:39:04 p.m., on June 28^th, 2017, a 911 call was received from a female who advised that the Complainant was now home, at his stated address.

A dispatcher advised SO #1 that the Complainant was back at his residence. SO# 1 told SO #2 that he was on the Complainant’s street and he would wait for him at the address.

SO #1 and SO #2 told the dispatcher that they were at the address.

The dispatcher told WO #3 to make his way to the residence in case backup was required.

SO #1 told the dispatcher that all was 10-4 and they had one in custody. The dispatcher acknowledged and gave the time as 1:49 p.m.

SO #1 asked WO #3 to make his way to the address and that there was no rush.

A dispatcher gave WO #3 another call and WO #3 told the dispatcher that SO #1 wanted him to go the Complainant’s address. A dispatcher radioed SO #1 but did not get a response and she told WO #3 to make his way to the Complainant’s address. WO #3 advised he was on scene.

Materials obtained from Police Service

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

• Computer-Aided Dispatch (CAD) Details
• 911 Call and Police Transmission Communications Recordings
• Committal Warrant for the Complainant
• Duty Report
• GPS Data Table for all three involved police cruisers
• Notes of WO #s 1-3, PEW #s 1-2, SO #2, and three other undesignated PEWs
• Occurrence Report
• Prisoner Log
• Procedure: Prisoner Care and Control
• Procedure: Arrest and Release
• Training Records for SO #1 and SO #2, and
• Use of Force Reports for SO #1 and SO #2

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

• Ambulance Call Report, and
• Medical Records for the Complainant

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.

On June 28^th, 2017, at 1:39:04 p.m., a 911 call was received by the South Simcoe Police Service (SSPS) advising that the Complainant, for whom there was an outstanding arrest warrant, had just returned to his home. Apparently, police had been around earlier looking for the Complainant and had asked that they be called as soon as he returned to his address. As a result of a call, the dispatcher contacted SO #1 and advised him that the Complainant had been reported to have returned to his residence in the Town of Bradford.

The communications recording from that date confirms these facts, and that thereafter SO #1 advised SO #2, who was in a different cruiser, that he was on the Complainant’s street and would await his arrival. Both police officers had the dispatcher mark them as attending the Complainant’s address. Additionally, a third officer, WO #3, was also notified by the dispatcher to attend the address in case back up was needed.

At 1:49 p.m., a radio transmission was received from SO #1 advising that they had one in custody and that all was in order.

The Complainant was later taken to hospital, where he was assessed and diagnosed with having sustained un-displaced fractures of the proximal metaphyses of the second, third, and fourth metatarsals in his right foot and a mild concussion.

The Complainant alleges that when the two subject officers attended, he indicated to them that he wanted to get proper clothing for his court appearance and his address book and the telephone number of his lawyer. He was then told to stand against the wall and SO #2 handcuffed him with his hands behind his back. The Complainant advised that he did not resist, but told the officers that he wanted to secure his home. He was then pushed towards the street by SO #2, who held and bent the Complainant’s hands back.

The Complainant alleges that as the officers tried to move him forward, a struggle started at the back of the police cruiser because the police officers would not allow the Complainant to return to the house and the Complainant stopped walking and refused to move forward. The Complainant alleges that one of the police officers then stomped on his right foot, and he was pushed in the shoulders towards the ground. He further alleges that he was then thrown to the ground and the right side of his head struck the pavement, following which he landed on his left shoulder.

The Complainant alleges that he then told the police officers to get off of him and that he would kick their asses. He described himself as thrashing and kicking at the police officers while he was on the ground. He alleges that his left foot was then stomped on and he was kicked to the left side of his ribs, the force of which he described, on a scale of one to ten, as an eight, with ten being the most violent.

The Complainant was unable to recall much after his head hit the ground and he was unable to describe which police officer stomped on his foot initially or which officer pushed him to the ground. The Complainant reiterated that after he hit the ground, he went crazy and SO #1 then put his knee in his back and held him down on the ground. He told the police officer to get off of his legs and told her that they had broken his foot.

The Complainant was then taken to the police station, following which he was transported to the custodial facility, but they would not accept him into the facility as he felt nauseous and vomited and passed out a couple of times in the transport wagon. He was then taken to hospital where he alleges he was diagnosed with a severe concussion and four or five broken bones in his right foot. Additionally, the right side of his head was swollen and scraped and his left shoulder was scraped.

The Complainant’s medical records indicated that the primary complaint being dealt with on the date in question was a head injury. The triage assessment indicates the following:

Pt (patient) in an altercation with police – hit right side of head against the cement also reports to getting kicked/hit in the chest/stomach, and having difficulty weight bearing on right side/ankle pain, significant swellign (sic) to right side of face, reports a few episodes of LOC (loss of consciousness), and has vomited x2 since is (sic) happened. Pt currently cuffed in police custody, alert and approptiatley (sic) responsive …

A later entry, which appears to have been added by the attending physician, again indicates:

Pt states struck in the head and hit head on cement. Swelling to R (right) occipital area with redness. Also c/o (complains of) pain to L (left) chest R knee and R foot/ankle and R headache. States he has vomitted (sic) x3 since and feels drowzy (sic).

No external hemorrhage.

Poor recall of events immediately prior to incident. States last thing he remembers is being in his driveway ? ing (illegible) his car

accompanied by police (x2) in handcuffs.

The medical records further indicate that two radiological reports were generated for the Complainant. The first, which involved imaging of the right foot, indicated as follows:

History: Lisfranc Fracture? (Lisfranc or midfoot injuries result if bones in the midfoot are broken or ligaments that support the midfoot are torn)

Findings:

Motion artifact slightly limits assessment.

Non-displaced horizontal fractures through the proximal metaphyses of the 2^nd through 4^th metatarsals without intra-articular extension. Regional soft tissue swelling.

No other bone, joint, or soft tissue abnormality.

The second report, which involved a CT head scan, indicated that imaging was obtained through the head and facial bones and that “no skull fracture is seen. … Imaging through the facial bones does not show a facial fracture … No orbital fracture or orbital abnormality is seen.

Under discharge diagnosis, the following is indicated:

R foot. Lis-frank # (fracture) + mild concussion.

During the course of this investigation, in addition to the Complainant, six civilians, three police officers and two special constables were interviewed. While neither SO #1 or SO #2 agreed to an interview as is their legal right, SO #2 did provide his written notes of the incident to SIU investigators for review. Based on those interviews and notes, along with the interview of the Complainant, and the reliable evidence garnered from them, the following sequence of events became clear.

In his notes, SO #2 advised that he was notified by SO #1 that the Complainant was at his residence and SO #2 attended there to meet with SO #1. As SO #2 was approaching the house, walking on the driveway, he heard the front door close. As he approached the end of the walkway, he saw the Complainant in front of him. SO #2 told the Complainant that he was under arrest on a committal warrant and for breaching his bail, and he took control of the Complainant, handcuffing his hands to the rear.

This is confirmed by the evidence of CW #3, who observed a police officer on the Complainant’s driveway and heard a police officer telling the Complainant that the police were looking for him and that he had to go with them and the Complainant responded “Okay” and followed the officer.

SO #2, in his notes, described the Complainant as then becoming mildly resistant, clenching his fists and shrugging his shoulder and arms. SO #2 described the Complainant as rambling on about calling his girlfriends and packing his belongings before going to jail, while SO #2 continued to hold him against the wall. SO #2 then noted that he conducted a pat down search of the Complainant for weapons, while he continued to calm the Complainant and was telling him what was going to be happening. SO #2 agreed to lock the Complainant’s house, get his shirt, and close his garage door for him. SO #2 and SO #1 then escorted the Complainant to the police cruiser, with SO #2 on his right arm and SO #1 on his left.

This evidence is confirmed by a civilian witness, CW #4, who heard the Complainant yelling and swearing and then observed a struggle. CW #4 observed the Complainant against the side of his garage door with the police officer. CW #4 indicated that she assumed that the police officer had tried to handcuff the Complainant, as his hands were behind his back.

CW #4 then observed the Complainant facing towards the door of the garage with the police officer behind him, and she specifically indicated that the Complainant was neither pushed into the door nor was he struck by the police officer. The Complainant was observed to flail his arms and legs and the officer was unable to get control of the Complainant. CW #4 overheard the Complainant tell the police officer that he wanted to get his clothes and call his mother. CW #4 then heard a scuffle and the Complainant again repeated his requests for clothing and to make a call. CW #4 described the Complainant as bigger than the police officer and that the officer had difficulty getting the Complainant to the cruiser, with the Complainant ending up prone on the roadway at the edge of the curb, with the police officer beside him.

A third civilian witness, CW #1, further corroborated the evidence of SO #2 in that she indicated that she observed the Complainant come out of the front door of his residence where he was met by two police officers. She observed SO #1 telling the Complainant that he was under arrest for breaching his bail and she heard the Complainant speaking about his dogs and wanting to get his shirt; he also wanted to know who had told the police that he had breached his bail. The Complainant was then handcuffed. CW #1 described the police officers as being nice to the Complainant, with one of the officers telling him that they would double loop the handcuffs in order that they not tighten up. CW #1 described the Complainant as being cooperative at that point.

Once at the rear of the police vehicle, SO #2 described the Complainant as becoming increasingly hostile towards them and pushing himself off against the police vehicle, while pulling away from SO #2 while SO #2 was simultaneously trying to pin him against the vehicle to stop him. SO #2’s notes then describe the Complainant as indicating that he was going to fight and resist police and referring to both officers using various profanities.

SO #2 described the Complainant as becoming more frantic and powerful and that the Complainant was able to move himself fully around causing SO #2 to have to release his arm in order to not be head butted by the Complainant. As the Complainant then also attempted to pull away from SO #1, both officers agreed to take the Complainant to the ground. As the officers were pulling the Complainant down, he continued to fight and was bent over at the waist while continuing to thrash and pull back.

SO #2 indicated in his notes that he was of the view that the Complainant was trying to escape and he delivered a knee strike to the Complainant as SO #1 simultaneously did a leg sweep, knocking the Complainant’s legs out from under him and taking him to the ground. SO #2 indicated in his notes that, despite his intention to knee the Complainant in the chest /stomach area, his knee made contact with the Complainant’s head as he was going to the ground.

The Complainant was then held down on the ground, while he continued to fight and try to get up. After a few minutes of resisting, the Complainant then agreed to calm down and to get into the police vehicle.

This evidence is consistent with the observations of CW #4, who observed a police officer then standing over the Complainant and holding him down with his hands; the Complainant’s hands were behind his back and his face was against the roadway. CW #4 did not see how the Complainant came to be on the ground, but heard him say that he was angry because he wanted his clothes, to call his mother, and because his sunglasses had been damaged. The Complainant was heard by CW #4 to indicate, “You’re hurting me,” while the officer responded, “If you just calm down, you will be able to make the telphone calls you want to make, we’ll get you some clothes, but will you calm down?”

CW #4 described the Complainant as then relaxing for a few minutes before he again started fighting and kicking back with his legs. The police officer was described as being on the ground with the Complainant for about 10 to 15 minutes, when another police officer arrived and both officers then got the Complainant into the cruiser. CW #4 at no time observed any police officer strike the Complainant and she did not see how the officers got the Complainant up off the ground. CW #4 opined that the problem between the Complainant and the police stemmed from the Complainant not cooperating with the police.

The notes of SO #2 are also confirmed by the further evidence of CW #1, wherein she indicated that she lost sight of the two police officers and the Complainant as they walked toward the police vehicle, and when she next saw them, at the end of the driveway, she observed the Complainant on the ground, on his stomach, with SO #2 on his back and SO #1 on his legs. She observed the Complainant trying to kick his legs back at SO #1 and she heard the Complainant say, “Do you realize that you’ve just broken my leg?” CW #1 indicated that she observed that the Complainant was already handcuffed when she observed him on the ground. The Complainant then remained on the ground for two to three minutes when he eventually told the police officers that he was ready to get up and that he would no longer struggle. The Complainant was then assisted off the ground and assisted into the police vehicle.

At the police station, SO #2 noted that the Complainant had a bump on the right side of his forehead, a scrape on his right shoulder, a scrape on his right cheek area, and was complaining of a sore right foot, which he attributed to a previous ankle injury.

This evidence is consistent with that of PEW #2 who indicated that the Complainant told him that he had previously injured his right foot on a number of occasions, doing motocross, but that the current injury was not due to motocross. PEW #2 did not hear the Complainant make any complaint about his treatment by police.

WO #1, the booking officer, indicated that upon being booked in, SO #2 and SO #1 advised him that the Complainant had been cooperative with them until they handcuffed him in the front yard, by the road, at which point the Complainant attempted to pull his arms back and they had to take him to the ground, where the Complainant’s head made contact with either the knee of SO #2 or SO #1, as he was going down.[1] No mention was made by either officer as to the Complainant’s foot or how it came to be injured.

WO #3, the third officer to attend the scene, advised that SO #2 also recounted to him what had occurred with the Complainant, indicating that when the two police officers brought the Complainant to the police SUV, he started to act up, which is when SO #1 had requested WO #3 to attend as back up. SO #2 advised that as they walked closer to the police vehicle, the Complainant asked for his belongings and wanted to go back inside the hosue. SO #1 then indicated that he tripped the Complainant and delivered one knee strike to the Complainant because the Complainant was kicking.

The two paramedics who saw to the Complainant at the police station advised that they observed him to have an injury to his right ankle, a contusion and an abrasion over his right forehead, and an abrasion on his shoulder. While some swelling was noted to the Complainant’s ankle, he was observed to have full range of motion. The Complainant advised paramedics that he had a previous injury to his ankle but did not elaborate. He refused an ice pack, and when asked how he sustained his injuries, he responded, “It is not important. That doesn’t matter. It was just a bit of a scuffle.” The Complainant refused to have his ankle wrapped or gauze put on his shoulder. The Complainant made no complaints about his treatment by police.

A medical expert who was consulted advised that the injury to the Complainant’s ankle was consistent with a fall or crush type mechanism. Furthermore, it was consistent with the foot being stepped on, with load applied to the top of the foot, as well as a low or high velocity event, and the injury could theoretically also have been caused by bending.

The abrasions to the Complainant’s facial area were consistent with his head impacting or abrading the pavement. The Complainant was described as having sustained a mild clinical concussion at most. This assessment was made based on the symptoms as provided by the Complainant, which were that his head hit the ground and he believed he lost consciousness, vomited, and felt nauseous. There were no medical tests capable of confirming the diagnosis of a mild concussion and nothing abnormal was seen on the CT scan of the Complainant’s head and face.

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 outstanding warrant for the committal of the Complainant to jail, due to his having his bail release revoked, as well as the outstanding warrant for his arrest for breaching his bail conditions, that police were acting lawfully when they attended to arrest the Complainant on the warrants and, as such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by SO #2 and SO #1 in attempting to arrest and take control of the Complainant, I will note that based on all of the evidence, including that of the Complainant, I accept the following as fact:

• The police were lawfully entitled to arrest the Complainant and take him into custody
• The Complainant resisted his arrest and struggled with the police officers as they attempted to get him to the police vehicle and he refused to move forward
• The Complainant was described by independent civilian witnesses as fighting the officers, flailing his arm and legs, and kicking back at the officers once he was on the ground
• Two of the civilian witnesses confirm that the Complainant continued to fight until he finally told the officers that he would stop, at which point he calmed down and was then escorted into the police cruiser
• While all three civilian witnesses initially described the Complainant as compliant, it is clear on the evidence of all three witnesses that the officers were not rough with the Complainant and that it was he who started to fight against the officers causing a struggle to ensue, with CW #1 specifically indicating that the officers were being nice to the Complainant in that SO #2 advised that he would lock the handcuffs in order to prevent them tightening up on the Complainant and that someone would see to closing up his house as requested
• According to witnesses, the Complainant had a height and weight advantage over the two police officers, and
• No civilian witness observed any police officer strike the Complainant

Despite the civilian witnesses not observing any use of force against the Complainant, other than his going to the ground and being restrained there, I further accept the concession by SO #2, as outlined in his notes, that while the Complainant was trying to escape, he delivered a knee strike at the same moment as SO #1 swept the Complainant’s legs out from under him, in order to take him to the ground to take control over him. I accept that while SO #2 intended to deliver a distractionary strike to the Complainant’s chest or stomach area in order to get him to stop struggling, and that the strike was mistimed due to the Complainant simultaneously falling to the ground and may have caused his knee to strike the Complainant’s head.

I say may have struck his head, as I note that the Complainant at no time alleged that he was kneed in the head by any police officer, but rather that he struck his head on the pavement when he fell. As such, despite the perception of SO #2, it is unclear to me whether the injury to the Complainant’s head, that being ‘at most a mild concussion’ was actually caused by the knee strike or by the fall. I further have taken into consideration the medical expert’s opinion that the injury to the right side of the Complainant’s head was consistent with his head striking the pavement and I would not have expected that a knee strike with a clothed knee would have caused any abrasion to the Complainant’s head, as was observed.

With respect to the ankle injury, I profess some confusion, due to the Complainant’s indication that he had injured his right ankle on a number of occasions in the past, as to whether or not the bones in his foot were actually broken on this occasion, or had been broken previously and were simply aggravated on this occasion, as evidenced by the swelling following the Complainant’s interaction with police. Furthermore, I note that at no time did the Complainant ever indicate to either police, paramedics, or hospital staff that he believed that a police officer had stomped on his foot thereby causing his injury. While the Complainant quite clearly indicated how he came to injure his head, that being by falling to the ground, and his belief that he was struck in the stomach or chest area, he is completely silent as to how his ankle was injured.

On this evidence, while I accept that the Complainant did sustain some injury to his right ankle, I am unable to ascertain how that injury occurred other than, based on the medical opinion, that it is possible that it was sustained by either a fall or a crush, that it could have been either low or high velocity and could have been caused by bending. On the basis of the Complainant’s own evidence that while he was down on the ground he thrashed about and went crazy, it is possible that his injury could have happened in any of these ways.

Finally, despite the evidence of the Complainant that a police officer kicked him in the left side of his ribs with a force of an eight on a scale of one to ten, based on the lack of any evidence in the medical records that the Complainant sustained any injury whatsoever to his rib area, and the evidence of the civilian witnesses that no officer was observed to deliver any kicks or strikes to the Complainant, I do not have reasonable grounds to believe that any such kick was ever delivered by either police officer.

On all of the evidence, I fully accept that whatever injuries were sustained by the Complainant were sustained while he was being taken to the ground and while he was “going crazy” and thrashing and fighting on the ground, and that they were a direct result of the police officers attempting to subdue a large and powerful man who was actively fighting and resisting them.

I further find that while this was a fast paced and fluid situation, with the two police officers not having the opportunity to fully consult and formulate a plan when the Complainant suddenly changed from being compliant to being actively and violently resistant, that any injuries to the Complainant were unintentional and unforeseeable and not as a result of any excessive use of force on the part of either officer.

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, it is clear that the force used by both of SO #1 and SO #2 progressed and was directly proportionate to the resistance being put forward by the Complainant and fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention.

In conclusion, I find that the evidence is not sufficient to satisfy me on reasonable grounds that either SO #1 or SO #2 resorted to an excessive use of force in these circumstances. I fully accept that these two officers only resorted to as much force as was necessary to subdue the Complainant, who, of his own accord, decided that he was going to resist and fight the officers despite their lawful intention to place him under arrest for outstanding warrants that the Complainant had been fully aware of existing.

I further reject the allegations that an officer intentionally stomped on the Complainant’s foot or that they kicked him in the ribs, based on all of the reliable evidence including that from the three independent civilian witnesses, accepting instead the Complainant’s own admission at the police station, as reported by the paramedics, that how his injuries occurred was not important, as it was “just a bit of a scuffle”.

On these facts, I find that I lack the reasonable grounds to believe that either officer resorted to an excessive use of force in apprehending and subduing the Complainant or that either officer committed a criminal offence here and no charges will issue.

Date: April 26, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] It was WO #1’s incorrect belief that the officer was not intentionally delivering a knee strike. [Back to text]