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 May 31^st, 2017.

Notification of the SIU

At approximately 12:11 p.m. on June 30^th, 2017, the Complainant notified the SIU that on May 31^st, 2017, (the collision was actually determined to have occurred on May 30^th, 2017) at about midnight, he was involved in a motor vehicle collision. He fled the scene but did not recall doing so. The next thing the Complainant recalled was waking up in a backyard close to the collision. When the Complainant heard the police coming, he walked out of the area to show himself. The Complainant went to his knees, put his hands up, and yelled that he was not resisting.

An officer deployed a conducted energy weapon (CEW) at the Complainant and he was then tackled to the ground. Two officers told him to stop resisting. One of the officers kneed the Complainant on his ankle and he felt pain. The Complainant was taken to hospital where he received X-rays and a CT-scan, both of which showed that he did not have any fractures. He was released back into police custody, taken to the police station, and lodged in a cell.

At about 9:00 a.m., the following morning, he was released from custody. The Complainant’s ankle was swollen but he returned to work the next day. A few days later, he went to another hospital and was diagnosed with having a fractured ankle, a concussion, and nerve damage to his hand.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

No civilian witnesses agreed to an interview with investigators, however the following witnesses had provided written statements to the PRP

CW #1 Written statement provided to police

CW #2 Written statement provided to police

CW #3 Written statement provided to police

CW #4 Written statement provided to police

CW #5 Written statement provided to police

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

WO #5 Interviewed, notes received and reviewed

Subject Officers

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

On the evening of Monday, May 29^th, 2017, the Complainant attended a bar in the City of Brampton. He consumed several alcoholic beverages and then he left the bar. The Complainant claimed he allowed an “Asian looking guy” to drive his car and then there was a collision; there is, however, no evidence of any Asian male[1] being involved in the incident.

The Complainant then ran away from the collision scene, near the Financial Drive and Steeles Avenue intersection, and he initially hid in the backyard of a residence on Matagami Street in the City of Brampton. While fleeing from the area of the collision, the Complainant’s actions were recorded on several home security cameras affixed to a home on Olivia Marie Road. One of the cameras recorded the Complainant as he ran along Matagami Street, where he appeared to stumble and roll over on his ankle.

The PRP dispatched several officers including a K9 officer to search for the Complainant. After a period of time, the Complainant left his initial hiding spot and climbed over a fence and into the backyard of a residence on Olivia Marie Road and hid behind a shed. The cameras at this residence again recorded the Complainant’s movements and he appeared to be limping and favoring his left ankle.

The PRP K9 officer and his Police Service Dog (PSD) then tracked the Complainant to the yard of a residence on Matagami Street and then to the fence of a residence on Olivia Marie Road. The homeowners of that residence allowed a PRP officer to search their backyard and the Complainant was located. The Complainant was ordered to show his hands and to come out from behind the shed. A CEW was discharged.

The Complainant was removed from behind the shed and handcuffed and taken to the front yard of the residence. While being brought out of the backyard, the Complainant either slipped, fell, or was grounded, by a PRP officer. The Complainant was eventually removed from the backyard and an ambulance was requested to examine the Complainant and to remove the probes from the CEW.

The Complainant was then taken to hospital to have his left ankle examined and no injury was diagnosed. The Complainant was then taken to the PRP station to be processed. After being released from custody, the Complainant attended a second hospital more than a week later, where he was diagnosed with an avulsion fracture.

Nature of Injuries / Treatment

According to the medical records retained by the first hospital visited by the Complainant, he arrived on May 30^th, 2017, at 1:51 a.m. The hospital staff was made aware that the Complainant had been in a motor vehicle collision. The Complainant complained of pain in his left ankle and he was sent for multiple x-rays and CT scans.

According to the radiology reports, no fractures were identified in the Complainant’s left ankle, although mild soft tissue swelling was noted. The Complainant was medically cleared and returned to PRP custody.

According to the medical records retained by the second hospital visited by the Complainant, he was examined on June 8^th, 2017 complaining of bilateral hand and left ankle pain. An x-ray of the Complainant’s left ankle was ordered.

According to the diagnostic report, “a tiny bone fragment was identified adjacent to the medial malleolus” (the prominence on the inner side of the ankle), this was suspicious for a small avulsion fracture (an injury to the bone in a location where a tendon or ligament attaches to the bone. When an avulsion fracture occurs, the tendon or ligament pulls off a piece of the bone.) Soft tissue swelling was noted in the region. Please correlate clinically with point of tenderness. Otherwise no fracture seen. Joint alignment is preserved.”

The Complainant’s discharge instructions included Percocet and/or Tylenol at night, and RICE, the acronym for “Rest-Ice-Compression-Elevation.”

The Scene

This incident occurred on or about May 30^th, 2017, however the SIU was not notified by the Complainant until June 30^th, 2017. Since the scene had not been held, there was nothing for the SIU to examine.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Video Footage (Summaries)

The SIU received from the PRP a copy of the closed-circuit television video (CCTV) recording from a residence on Olivia Marie Road in Brampton. The video was recorded from 11:32:01 p.m. on May 29^th to 2:30:00 a.m. on May 30^th, 2017 and captured the interaction between the Complainant and the PRP. The following is a summary of the video:

Camera 1: 11:32:00 p.m. to midnight

• At 11:32:00 p.m., the video commenced and provided a view of the driveway of the residence
• At 11:33:19 p.m., a male, [who was later identified as the Complainant], entered the camera’s field of view (FOV) and ran northbound on the Olivia Marie Road sidewalk and then eastbound on the Matagami Street sidewalk
• At 11:33:25 p.m., the Complainant ran eastbound on the Matagami Street sidewalk, where he appeared to slip or roll onto his ankle
• The Complainant appeared to limp briefly as he continued to run eastbound on Matagami Street and he went into a backyard on Matagami Street, and
• At 11:51:19 p.m., three PRP officers, including a K9 handler, entered the camera’s FOV

Camera 2: Midnight to 1:14:00 a.m.

• A view of the backyard of the residence is seen
• At 12:10:26 a.m., the Complainant entered the camera’s FOV, walked through the backyard, and walked behind a small storage shed
• At 12:30:25 a.m., a police officer, believed to be the SO, entered the backyard through the homeowner’s rear sliding door
• The SO searched the backyard
• At 12:31:50 a.m., the SO appeared to spot the Complainant located behind the storage shed
• At 12:34:05 a.m., the SO was observed holding the Complainant
• The Complainant stood with his hands handcuffed behind his back
• The Complainant struggled to walk and fell to the SO’s left side, face down into the grass
• The SO kneeled on the Complainant’s back and twisted the Complainant’s left wrist
• The Complainant struggled to stand up
• An additional police officer, [believed to be WO #5] assisted the SO with the Complainant
• The Complainant was escorted out of the backyard by the SO
• At 12:37:23 a.m., three tactical police officers, one general patrol police officer, and the Complainant left the camera’s FOV, and
• The video footage concluded at 1:14:00 a.m.

Camera 5: 11:35:30 p.m. to 12:40:30 a.m.

• At 11:35:30 p.m., the video commenced and provided a view of the alley way between two residences
• At 11:35:39 p.m., the Complainant is observed running between the houses into the rear of the property on Olivia Marie Road
• At 12:37:20 a.m., the Complainant is observed being escorted by PRP police officers
• The Complainant appeared to be limping in the video footage, and
• At 12:40:00 a.m., the video footage concluded

Communications Recordings

Communication Tape (Summary)

The SIU received three CDs from the PRP, relative to this incident.

• Phone recordings: this CD contains eight tracks, related to four four civilian witnesses that called PRP 911 to report a single vehicle collision and possible roll over. One of the witnesses saw the driver of the vehicle run away from his vehicle

• Radio recordings: this CD contains 50 tracks, related to officer dispatches and EMS transmissions over the police radio

• Holding Facilities: this CD contains 28 video files of various areas of the PRP station as the Complainant was in custody

Materials obtained from Police Service

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

• Audio Copy Report-911 Calls
• Audio Copy Report-Radio Transmissions
• Event Chronology
• Notes of WO #s 1-5
• Occurrence Details
• PRP Witness Statements (x5) regarding motor vehicle collision

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

• Medical records for the Complainant from both hospitals that he attended
• CCTV footage from outside a residence on Olivia Marie Road

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 253(1), Criminal Code - Operation while impaired or with a blood/alcohol level above 80 mgs/100 mls

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equip.m.ent or has the care or control of a motor vehicle, vessel, aircraft or railway equip.m.ent, whether it is in motion or not,

1. while the person’s ability to operate the vehicle, vessel, aircraft or railway equip.m.ent is impaired by alcohol or a drug; or
2. having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood

On May 29^th, 2017, at 11:40:36 p.m., four different 911 calls were received by the Peel Regional Police (PRP) dispatcher reporting a single vehicle collision in the area of Financial Drive and Olivia Marie Road in the City of Brampton. The first caller reported that a drunk driver had crashed into the back of a fence and had abandoned the vehicle and was now running away. The second caller indicated that the driver had run away because he was drunk and the third described the vehicle having crashed into a pole and that it was “really, really bad”.

The fourth caller initially advised that a lady had told him that the driver was drunk. The caller then put the witness on the phone, and she, CW #3, described to the 911 dispatcher how she had seen the driver operating his motor vehicle before the collision and that he had appeared obviously drunk to her. She described the male, including his age, hair style, and what he was wearing. CW #3 then went on to indicate that she had been driving right behind him at the time of the single vehicle collision and she observed him to get out of the car and described the direction in which he had run. She further advised that she did not know how the driver had survived the crash, as she had observed his car “twirl” three times.

In a statement provided to the police on the night of the incident, CW #3 again advised that she observed the driver get out of the car and that she “also saw him fall over twice”. She again provided a full description of the driver and that he had been the sole occupant of the car.

A second civilian witness who provided a statement to police following the incident was CW #2, who indicated that he saw the driver exit through the driver side of the motor vehicle, after the crash, and then run. He also gave a full description of the driver, including the same clothing. This description was very similar to that provided by CW #3, with the exception being that while CW #3 described the male as Caucasian, CW #2 believed him to be dark skinned. The description of the clothing, his hair style and his build were identical. CW #2 described the driver as being “in stress” and that he said “oh shit” and then ran.

A third civilian witness interviewed by police on the night of the crash, CW #1, advised that he heard a rustling in his backyard and saw a “figure stumble into the middle turning around … he tried to climb the fence on the north side of my property”. He also provided a description of the male which coincided with that given by CW #3 and CW #2. CW #1 advised “he tried a few times to jump my fence” but “couldn’t and fell down”. He then described the male as fumbling with his gate latch and that he then either jumped the fence or opened the gate.

Another civilian witness, CW #4, in whose backyard the driver was eventually located, provided a statement to police in which he described the suspect as hiding behind a shed in his (CW #4’s) backyard. He also indicated that he heard the police officer ask the suspect to show his hands and to come out, but that the suspect refused. CW #4 then heard the ‘Taser’ being deployed, following which a second officer came and helped arrest the suspect. CW #4 indicated that the suspect kept on resisting and that he was then arrested and taken out of his backyard. He described the male as loud, and sometimes crying and swearing at the police officers.

The final civilian witness, CW #5, in her statement to police immediately following the incident, advised that she heard the officer yell to the man to put his hands either up or behind his back, while the officer was looking behind the shed in her backyard. She eventually heard a ‘Taser’ and the suspect yelling. She described there being “resistance by the suspect”, and that when he was in front of her house, he was “yelling about some guy and seemed very delusional. He was not listening to the officers … he was not co-operating at all”.

The house on Olivia Marie Road, where the Complainant had hidden in the backyard, was equipped with multiple security cameras, the video of which was provided to SIU investigators. The video reveals the Complainant running northbound on the sidewalk of Olivia Marie Road at 11:33:19 p.m., and then going eastbound onto the sidewalk of Matagami Street.

At 11:33:25 p.m., while the Complainant is running on Matagami Street, he is seen to slip or roll onto his ankle. Thereafter, he is seen to limp briefly, as he continued into a backyard on Matagami Street.

At 11:35:30 p.m., the Complainant is seen on a second exterior camera running between the houses and onto the property on Olivia Marie Road, where he is then picked up on a third camera, at the back of the property, walking through the yard and behind a small storage shed.

At 12:30:15 a.m., the SO is seen to enter the backyard and he appears to spot the Complainant behind the storage shed at 12:31:50 a.m.

At 12:34:05 a.m., the SO is seen holding the Complainant, who has his hands cuffed behind his back. The Complainant is observed struggling to walk and he falls to the SO’s left side, face down, onto the grass. The SO is then seen to kneel on the Complainant’s back and twist the Complainant’s left wrist, following which the Complainant struggles to stand up. WO #5 is then seen to appear and assist the SO, and the Complainant is escorted out of the backyard.

At 12:37:20 a.m., the Complainant is again observed on the first exterior camera being escorted by PRP officers to the front of the house; he appears to be limping at that time.

It is alleged by the Complainant that on the evening of May 29^th, 2017, his car was being driven by an unknown Asian gentleman.[2] The Complainant alleged that when his car, being driven by the Asian man, became involved in a collision on Financial Drive, he panicked and fled immediately.

The Complainant alleged that he was located by the PRP hiding behind a shed at an unknown address. He advised that two police officers and a K9 dog located him and the officers told him to come out from behind the shed, to stand up and to get down; he described their directions as being very confusing.

The Complainant alleged that he put his hands up and repeatedly told the officers that he was not resisting. Despite his cooperation, the police officer used a CEW on him and then pulled him out from behind the shed. The Complainant then stood up, following which he was tackled to the ground. While on the ground, the Complainant advised that the officer injured his ankle by stepping on it and applying pressure, at a 90 degree angle, on his ankle. Following this assault, the Complainant was unable to walk to the police cruiser. The Complainant alleged that the police officers used a lot of force on him.

The Complainant indicated that the officer in the video footage who is seen to be holding him by the right arm, the SO, is the same officer who stood on his ankle.

The Complainant’s initial medical records, from the night of his arrest, has both the paramedics and the hospital staff describing the Complainant as “very uncooperative and angry” and “verbally aggressive”, and requiring hospital security to escort him to x-rays due to his behaviour.

Additionally, the medical records indicate that he is wearing a red t-shirt, which matches the description provided by the two civilian witnesses regarding the clothing of the driver of the motor vehicle.

While the medical notes indicate that the Complainant repeatedly made medical personnel aware that he was the passenger, not the driver, of the motor vehicle, the notes are silent as to any allegation that the Complainant was assaulted by any police officer and the source of his injury is noted as being as a result of the motor vehicle collision. The notes specifically indicate no ‘”voiced complaints”.

The ankle x-rays of both of the Complainant’s ankles were described as follows: “Mild soft tissue swelling on the left. Tiny densities distal to the medial malleolus of age indeterminate”. No fractures were found and the Complainant was medically cleared.

The medical records from the Complainant’s subsequent hospital visit approximately one week later, on June 8^th, 2017, to a different hospital, indicate that the x-rays revealed the following:

There is a tiny bone fragment adjacent to the medial malleolus. This is suspicious for a small avulsion fracture. Soft tissue swelling is noted in the region. Please correlate clinically with point of tenderness. Otherwise, no fracture seen. Joint alignment is preserved.

Findings:

Tiny osseous fragmentation adjacent to the tip of the medial malleolus, unchanged compared to previous.

Discharge Diagnosis:

? (illegible) # (fracture) L (left) ankle/ 2. Possible concussion.

Despite the Complainant’s second visit to hospital being some eight days later and without the presence of police, again, his medical records are silent as to any mistreatment by police which caused his injury. Instead, the Complainant is noted as indicating that “PT (patient) states was arrested last week. Shot (with) Taser fell on his knees, bilateral knee pain since”.

Relying on several reputable medical websites, I researched causes of injuries to the medial malleolus, which is located on the inner aspect of the ankle, and found that the most common causes were indicated as ‘Twisting or rotating your ankle, Rolling your ankle, Tripping or falling, or Impact during a car accident’ (www.orthoinfo.aaos.org; www.physioadvisor.com.au; www.healthline.com).

During the course of this investigation, despite no other civilian witnesses coming forward to be interviewed by SIU investigators, five civilian witnesses provided statements to police on the night of the incident; those statements were subsequently provided to SIU investigators.[3] In addition to the Complainant, six police witnesses were also interviewed, with the subject officer declining to provide a statement or a copy of his notebook entries, as is his legal right. Between the statements provided by the independent civilian witnesses and the CCTV footage, however, a clear picture of the incident has emerged. The following facts are based on the reliable evidence provided.

On May 29^th, 2017, the Complainant was observed operating his motor vehicle by another motorist who opined that the Complainant was drunk. The Complainant was then involved in a single motor vehicle collision with a light pole, following which he was observed to exit the driver’s side of his car and run off. It is of note that when the police followed the Complainant’s trail with the police service dog, they located his car keys in the backyard of one of the backyards of the residences he had run through.

The Complainant was observed by a number of different witnesses as falling at least twice, jumping over a fence, and trying a few times to jump another fence but falling down. The CCTV footage additionally reveals the Complainant as slipping or rolling his ankle, following which he is observed to be limping. I specifically note that the rolling of the ankle is one of the common causes of the type of injury sustained by the Complainant.

The Complainant was then observed to hide behind a shed in the backyard of a property on Olivia Marie Road. Two independent civilian witnesses observed the SO enter the backyard and approach the shed where the Complainant was hiding and directing him to come out and to show his hands. The Complainant was described as refusing to comply and being resistant, not listening to the police, and not cooperating at all. Shortly thereafter, the deployment of a CEW was heard. While the Complainant indicated that he was complying and was coming toward the officer with his hands behind his back, I find not only that his evidence is contradicted by the independent civilian witnesses, but also by the location of the two CEW probes, which were located by paramedics in his back, which seems less consistent with his cooperating and giving himself up than it is with his continuing desire to flee from police.

At no time does any civilian witness observe the SO either tackle the Complainant, or step on his ankle, although the CCTV footage does reveal the Complainant falling to the ground, on his own, following which the SO got onto his back and grabbed his arm and WO #5 then approached and assisted.

On the basis of all of the obvious inconsistences and contradictions between the Complainant and the civilian witnesses and the CCTV footage, I find that I am unable to place much credence or reliance in the version of events as outlined by the Complainant. On that basis, I reject the Complainant’s version of events which has the SO stepping on his ankle after he was removed from behind the shed, which, if it had occurred, would have been visible to the civilian witnesses watching and on the CCTV footage, and it was not.

While I therefore have no direct reliable evidence, in the absence of a statement from the SO, as to what occurred while the Complainant was still hiding behind the shed, I note that the only allegation made against the SO related to that time period was the deployment of the CEW, which is not alleged to have caused any serious injury to the Complainant in any event.

On the basis of the reliable evidence available, having rejected the evidence of the Complainant not only because it is inconsistent with all of the other evidence, but also because he clearly indicated that he had little recall of the events, likely due to his state of intoxication, and because he at no time mentioned that his ankle had been injured due to deliberate actions by police either to paramedics, the police, or hospital staff, on either of his two hospital visits, the only reliable evidence that I have as to any use of force against the Complainant is the deployment of the CEW and the SO kneeling on the Complainant’s back and grabbing his arm, after he had fallen to the ground.

In assessing whether or not these actions by the SO amount to an excessive use of force in these circumstances, I have considered that pursuant to s. 25(1) of the Criminal Code, police officers are protected from prosecution if they are acting pursuant to their lawful duties as long as they use only as much force as is necessary for that lawful purpose.

On the record before me, it is clear that based on the information provided to police in the four 911 calls, as well as the information provided to police by the independent civilian witnesses at the scene, police had ample reasonable grounds on which to arrest the Complainant for operating a motor vehicle while impaired and/or with more than the legal limit of alcohol in his body contrary to s. 253 (1) (a) and/or (b) of the Criminal Code. As such, it is clear on these facts that police were acting within their lawful duties at the time that they pursued and apprehended the Complainant and their actions were justified, as long as they did not resort to an excessive use of force.

With respect to the amount of force used by the SO in attempting to apprehend the Complainant, while I have no reliable definitive evidence as to why the SO deployed his CEW at the Complainant when the Complainant was hiding behind the shed, I accept that the Complainant was actively attempting to flee from police and from his possible arrest for Criminal Code offences, that he was hiding behind a shed, in the dark, and that he was not being cooperative with police, but instead was being both resistant and noncompliant with police demands.

On these facts, I accept that the only two less lethal use of force options available to the SO at that time, which would not put his own safety at risk, were the deployment of the CEW or the use of the police service dog. I further accept that the backyard where the Complainant was ultimately located was fenced and the gate was locked, thereby allowing WO #5, but not his dog, to enter the yard by climbing over the fence, leaving only one viable option remaining to the SO, that being the deployment of his CEW.

I have no hesitation in finding that it would have been unwise, in these circumstances, in the dark and without knowing what was waiting for him behind the shed, for the SO to have entered and confronted the Complainant in the dark with only his physical strength. As such, I cannot find the deployment of the CEW in these circumstances to amount to an excessive use of force; rather, I find that it was a prudent course of action.

With respect to the SO kneeling on the Complainant’s back in order to take control of him, after the Complainant had fallen to the ground and until WO #5 was able to enter the yard to assist, again, in light of the above factors and the observations of witnesses that the Complainant was resisting police, I find the actions of the SO were measured and proportionate to the resistance being put up by the Complainant and did not amount to an excessive use of force.

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 all of the reliable evidence, if the Complainant did indeed suffer a serious injury, which appears unclear based on the question mark beside his diagnosis in his CVH medical records[4], I have ample reasonable grounds to believe that it occurred prior to any involvement of police, during the vehicle collision or one of the many falls observed by civilian witnesses, or the rolling of his ankle, as revealed in the CCTV footage. If, however, he did sustain his injury, which is unlikely, during the limited interaction he had with police, I cannot find reasonable grounds to believe that the actions of police, and specifically of the SO, amounted to an excessive use of force on these facts.

In conclusion, I find on the reliable evidence before me, that there is no evidence that any excessive use of force was resorted to by any police officer in apprehending and arresting the Complainant and that the force used was both reasonable and proportionate. As such, I find that these facts do not leave me with reasonable grounds to believe that a criminal offence occurred here and no charges will issue.

Date: April 16, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] For that matter, nor is there evidence of any “Asian looking” male being involved in the incident. [Back to text]
• 2) [2] That is, he was unknown because it is alleged that he was a man that the Complainant had met for the first time at the bar on the night in question. [Back to text]
• 3) [3] Other than a couple of utterances which provided limited information, none of those five witnesses agreed to provide statements to SIU investigators. [Back to text]
• 4) [4] Which resulted from an examination 10 days after his interaction with the police. [Back to text]