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 injuries reportedly sustained by a 45-year-old woman and a 51-year-old man during their arrests on July 7^th, 2017.

Notification of the SIU

At approximately 9:17 a.m. on July 10^th, 2017, the male Complainant telephoned the SIU and reported that both he and his wife, the female Complainant, sustained injuries after an interaction with members of the South Simcoe Police Service (SSPS), on July 7^th, 2017.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 0

Complainant (male)

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

Complainant (female)

45-year-old female, 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

CW #7 Interviewed

CW #8 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

WO #5 Interviewed, notes received and reviewed

WO #6 Interviewed, notes received and reviewed

WO #7 Interviewed, notes received and reviewed

Additionally, the notes from 2 other officers were 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 and to provide notes, as is the subject officer’s legal right

Shortly after midnight on Friday, July 7^th, 2017, the male Complainant and his wife, the female Complainant, drove to Innisfil Beach Park in the Town of Innisfil, after having received a telephone call from their son, Civilian Witness (CW) #2, who was in conflict with a number of people in the park. They arrived to find that their son and his friend, CW #4, had been arrested by members of the SSPS for an alleged firearms offence. They also found that the BMW that CW #2 had been driving had been in a minor collision and appeared to have been ‘boxed in’ by other vehicles.

In addition to the several police officers present, there were many other involved people at the scene. The male Complainant digitally captured audio/video of his interaction with them using his cellular telephone. That video captured the behaviour of the male Complainant and the female Complainant as they interacted with the police and the victims/witnesses to the offence(s) alleged to have been committed by their son and his associate.

The behaviour of the male Complainant and the female Complainant was disruptive to the police investigation. After at least two cautions to leave the area and behave, police officers arrested both the male Complainant and the female Complainant for obstructing the investigation. They were not compliant and they each reported injuries from being arrested. The female Complainant was also charged with assaulting a police officer after she bit an officer on the arm.

Both the male Complainant and the female Complainant were transported to an SSPS police facility before being released. The male Complainant was charged with obstruct police and the female Complainant was charged with obstruct police and assault police.

Before being processed at the police station, the male Complainant was treated at the hospital.

Nature of injuries/treatment

The male complainant

The male Complainant was initially treated at hospital on July 7^th, 2017, shortly after his arrest, when he was accompanied to the hospital by police in an ambulance. He was treated for complaints of neck and back pain and diagnosed with a small contusion (bruise) and small abrasion (scrape) on his left cheek, a hematoma (localized swelling), an abrasion on his left brow, and dental fractures. The male Complainant’s bleeding was controlled and he did not complain of a loss of consciousness. His treatment plan consisted of ice and Tylenol and a follow-up visit to a dentist.

The male Complainant returned to the hospital on July 10^th, 2017, and was treated by a second doctor, to whom he disclosed he was beaten by police and hit on the back of his neck and head, complained of back pain, and presented with a bruised and swollen left eye and two missing teeth. No bruising or redness was noted to the back of the male Complainant’s neck; the medical records do not disclose any treatment plan/discharge instructions on this second visit.

The female complainant

The female Complainant sought medical care on July 10^th, 2017, at hospital. She was assessed and she reported that she had been jumped by the police and now had generalized muscle pain and difficulty moving her right arm. She did not claim to have lost consciousness. No bruising or redness was noted and it was recorded that the female Complainant was moving all of her limbs. The medical report recorded a diagnosis of a possible concussion and multiple soft tissue injuries and recommended no treatment other than a computerized tomography (CT) scan or X-rays.

The scene

The scene presented was within the confines of Innisfil Beach Park, a park on the western shore of Lake Simcoe in the Town of Innisfil.

Both Complainants interacted with the police in a parking lot in the park, near the boat launch ramps. The parking lot was paved with common parking lot asphalt and lined for diagonal parking. It was after midnight at the time of their interaction with police and it was raining. Although the perimeter of the parking lot was equipped with light standards, the artificial lighting was poor.

The scene was not held, nor was it forensically examined or photographed by investigators. It was, however, captured on the cellular telephone video and photographs taken by the male Complainant during his interaction with police.

Forensic evidence

No submissions were made to the Centre of Forensic Sciences.

Video/audio/photographic evidence

Cellular telephone video: recorded by the male complainant

The cellular telephone video footage captured by the male Complainant ran 14 minutes and 53 seconds in length and depicted the events that led up to his arrest and his wife’s arrest. The video did not capture video of either of those arrests, but did record audio during that time frame.

The video was taken in colour and had a clear and understandable audio component. It bore no day-date or time stamp but unquestionably recorded the events relevant to this investigation.

The video revealed that the male Complainant’s behaviour was egregious during this incident. From the start of his own video recording, to the end, he was loud, profane, abusive, and insinuated himself in police business, where clearly he should not have. He is essentially observed to be running amok through a potential crime scene, attempting to intimidate witnesses, and impeding the ability of the police officers to investigate.

The female Complainant’s behaviour was less offensive, but the video captured her as she walked through the scene, amongst the involved people, and instructed the police officers to generate accident reports and how to do their jobs. It was ultimately the female Complainant’s refusal to leave the area and allow police officers to properly investigate that resulted in both Complainants being arrested.

On the contrary, the behaviour of all other involved civilians, ostensibly the victims of the alleged crimes committed by CW #3 and CW #4, appeared relatively restrained and they only became more agitated when they were confronted by the male Complainant, who, throughout the interactions, belittled them, cursed at them, and called them names.

Likewise, the police appeared remarkably tolerant of both of the Complainants’ behaviour. The video revealed the police as being calm and polite and, on two separate occasions, they were heard to direct the male Complainant to distance himself from the area, so they could investigate. On the second occasion, he was told that if he continued to behave in the same manner, he might be arrested.

The full video component ended just prior to the physical interaction between the police and the two Complainants, as it appears that the cellular telephone was pocketed and only the audio continued. The video concluded just after a police officer directed the female Complainant to leave the crime scene and she refused.

Communications recordings

The 911 call and the police transmission communications recordings were received and reviewed.

Materials obtained from Police Service

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

• Arrest Report for each Complainant
• Computer-Aided Dispatch (CAD) Details
• Duty Roster
• General Reports (x2)
• Notes of WO #s 1-7 and two undesignated police officers
• Occurrence Summary (Involved Persons and Officers)
• Prisoner Log for each Complainant
• Procedure: Arrest and Release
• Procedure: Use of Force
• SSPS Media Release
• SSPS Witness Statements from WO #s 6-8 and five other civilian witnesses
• Supplementary Occurrence Report (C I.)
• Training Records of SO #1 and SO #2
• Use of Force Reports from SO #2 and WO #1;
• 911 Call recording
• Police Transmissions Communications recording
• Photos of Injuries sustained by a police officer, and
• Scene of Crime photos

Materials and documents obtained from other sources:

• Cell phone video footage taken by both Complainants of the interaction with police, and
• Medical records of both Complainants

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

(a) as a private person, (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or (d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Section 129, Criminal Code - Offences relating to public or peace officer

129 Every one who

1. resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
2. omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
3. resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,

is guilty of

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

Section 270(1), Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure.

On July 7^th, 2017, at approximately 12:23 a.m., the South Simcoe Police Service (SSPS) received a call reporting that a firearm had been taken from the trunk of a BMW motor vehicle during an altercation at the Innisfil Beach Park in the Town of Innisfil and that it had been brandished and used to threaten other persons in the area. A number of police officers were dispatched to the area, including Subject Officer (SO) #1, Witness Officer (WO) #1, WO #2, WO #3, WO #5 and SO #2.

Following the police arrival, two youths, Civilian Witness (CW) #2 and CW #4, were arrested and taken into custody. Prior to the arrival of police, CW #2 apparently called his parents, the Complainants. Following the police arrival at the park, the Complainants also attended the scene of the altercation and were subsequently both arrested for obstructing the police; the female Complainant was additionally charged with assaulting a police officer.

Following the interaction with the police, the male Complainant was taken to hospital where he was assessed and it was discovered that he had sustained a small contusion and abrasion to his left cheek, a hematoma and an abrasion to his left brow, as well as dental fractures; several days later, the female Complainant attended at the hospital and was diagnosed with a possible concussion and multiple soft tissue injuries.

It is alleged that the male Complainant felt something hit him in the head, following which SO #2 took the cell phone out of his hand. The male Complainant was then taken to the ground by SO #2 and may have struck a police cruiser on his way down. It is alleged that when the male Complainant was on the ground, he was struck five or six times on the back of the head while he was handcuffed. It is further alleged that the male Complainant was also struck in the back with a knee.

With respect to the female Complainant, it is alleged that SO #2 then took the cell phone from her husband and she grabbed SO #2’s arm. It is further alleged that SO #1 then struck her on the right side of her head with his left arm, which was described as “he hooked me in the side of the head, I saw stars” and she then felt the cell phone hit her on the back of her head. It is further alleged that another police officer, WO #1, then grabbed the female Complainant’s hands from behind and threw her to the ground, where she landed on her stomach.

During the course of this investigation, ten civilian witnesses, including the two Complainants, as well as seven police witnesses were interviewed; SIU investigators were also provided with the memorandum notebook entries of all of the witness officers for review. Neither subject officer made himself available to be interviewed, nor did they provide their notebooks to SIU investigators, as was their legal right. Additionally, the male Complainant provided the video and audio recording that he had made of the majority of the interaction after he and his wife arrived at the scene. SIU Investigators also had access to the recording of the 911 call, the police communications recordings and log, and the medical records of both Complainants for their review. Between the evidence of the witnesses, and the video recording provided by the male Complainant, the details of the interaction between both Complainants and the police officers at the scene became fairly clear.

According to the 911 recording and log, a 911 call was received by SSPS at 12:23:02 am from CW #6; in the recording, she is heard to report that a guy in a grey BMW is yelling and is now hitting her with his car and then hitting her friend. She is then heard to advise that he pulled a gun out of his pocket and said he was going to shoot “all of us” and that he “just pushed me”. CW #6 then handed the phone over to a male friend, who she advised had seen the gun; the male is heard on the recording reporting that he observed a pistol, but was unsure if it was an air gun, and that the male was threatening to “shoot us all”. He went on to indicate that the male was the passenger from the BMW and that he now had the gun in his pocket but that he had previously removed it from the trunk of the car and pointed it at the male through the windshield. The male on the 911 call then advised that the guy had moved the gun to a Ford Escape and that vehicle had driven to the tennis court “I guess to throw the gun away” but that the BMW and its occupants were still present as “we have him blocked in.” At 12:26:18 am, a system unit alarm went out over the police radio and a number of cruisers were dispatched, with officers attending at the tennis courts to deal with the Ford Escape and its occupants, while other officers attended at the location of the BMW and the four vehicles surrounding it.

A number of the civilian witnesses at the park advised that the police responded quickly to the 911 call and once they arrived, CW #2 and CW #4 were told to get on the ground. The Complainants then arrived and were described as yelling at everyone and were confrontational both with the other persons present and the police. The male Complainant held his cellular telephone close to various people’s faces and video recorded. In one instance, he held the phone close to a police officer’s face and the officer then took the phone and asked the male Complainant to back up. The male Complainant was then observed to lung towards the police officer and pushed him back with both of his hands whereupon the police officer placed his hand on the male Complainant’s back and maneuvered him to the ground, which was concrete. The male Complainant was described as landing on his body first, followed by his face, whereupon he was handcuffed behind his back and he appeared to have blood on his face. The female Complainant was also observed to lunge towards the police officers, and she too was taken to the ground, and a third person, CW #1, then sprinted towards the police officers and he was also arrested. This witness advised that she did not observe any strikes delivered against either of the Complainants.

This evidence was confirmed by a second civilian witness, who also added that he observed the female Complainant pushed by a police officer, because she was too close to him, following which the female Complainant then yelled that the police officer had punched her in the face, but the witness never saw her get punched, but he did observe her being placed on the ground and handcuffed. The witness advised that the male Complainant was also observed to fight with the police officers and he too was taken to the ground, hard, by the police officers and handcuffed. This witness also observed the female Complainant to bite a police officer.

A third civilian witness confirmed the evidence of the first two civilians, also indicating that she observed the male Complainant assault one of the other civilian witnesses, following which a police officer then pushed the male Complainant back and took him to the ground where he was arrested. This witness also observed the female Complainant bite a police officer and she then saw the female Complainant’s head get struck by a police officer’s arm.

Another civilian witness, whose view was obstructed as he was seated inside the police cruiser, observed the female Complainant on the ground. He also observed SO #1 take the cell phone from the male Complainant while a second officer, WO #1, was over top of the female Complainant with his knee in her back. He observed WO #1 then push the female Complainant’s neck and head into the ground, using his right hand, before he was replaced by another police officer who took a hold of the female Complainant by her upper arm, while she was handcuffed behind her back, and then lifted her up.

A second civilian witness who was also seated inside a police cruiser at the time, indicated that he had difficulty seeing what was going on outside as it was raining and dark out, but he observed an altercation begin between the female Complainant and the police and that the male Complainant then tried to pull a police officer off of his wife. This witness did not observe any police officer hit the female Complainant, but observed the movement of a police officer’s right hand and heard the female Complainant yell “ouch” and then she was taken to the ground and handcuffed.

Another civilian witness, who had accompanied the two Complainants to the scene, observed three or four police officers grab the male Complainant’s arms and shove him towards a police cruiser and the police officers tried to put the male Complainant’s hands behind his back; he next saw the male Complainant taken to the ground. This witness never saw anyone strike the female Complainant, but did hear her say “you hit me” and then observed two police officers grab her from behind and take her to the ground. This witness was about 40 feet away from the altercation when he made his observations.

In the course of coming to my decision, I have spent a considerable amount of time reviewing the audio/video recording prepared by the male Complainant, and although it is sometimes difficult to hear what exactly is being said by other parties, as the male Complainant is constantly yelling and his voice dominates the recordings, and although there is no video once the cell phone is taken from the male Complainant, the recording is very illuminating as to the sequence of events and the behaviour of both Complainants and the police officers on the night in question. Based on the recording alone, there can be no dispute that the male Complainant was yelling and arguing with the police officers throughout their attempts to investigate this matter, while the female Complainant kept injecting herself into the investigation and asking for an accident report. The video recording provided by the male Complainant clearly supports the evidence of the civilian witnesses, in that the male Complainant is heard throughout the recording yelling at both the police officers and at the civilian witnesses.

Very shortly after the video begins, the male Complainant is heard to yell at everyone to shut up, he then yells that “there better be probable cause and there better be a gun” and when one of the boys from the BMW, both of whom are already handcuffed and under arrest, indicates “we’re under arrest right now” the male Complainant yells, “No you’re not, no you’re not. Everything is on record”, and the boy then tries to pull away from the officer.

The male Complainant is then heard to tell CW #4 that he should cooperate and if he is manhandled that “there is already a big issue with the Barrie Police with us, they are already on charges with us”. The male Complainant is also heard to repeatedly inject himself into the investigation, despite having no direct knowledge of what occurred prior to his arrival at the scene, and is heard to yell at the civilian witnesses telling them to go home, using vulgar and insulting language, and appearing to try to provoke or incite the witnesses by demeaning and insulting them, referring to the young girls at the scene as “skanks” while talking down to them by telling them that he is going to talk to their “moms and dadas” and saying, “you need a spanking, little girl.” He also directs CW #4 not to speak to police, and when the police officer is questioning the boys from the BMW as to the location of the gun, the male Complainant again injects himself indicating that there was no gun and that police had to let the boys go.

The male Complainant then approaches the civilian witnesses and gets up very close to them, again appearing to try to incite them, while they tell him to get out of their faces, and he continues to swear and use foul language. The male Complainant then yells that one of the witnesses pushed him, while the male witness is clearly heard to say that he has his hands in his pockets, following which the male Complainant abandons that allegation. When the male Complainant demands his son’s car, the officer calmly tells him that he is going to get it. CW #1 is then recorded giving his view of how the car crash occurred, and he too is screaming and swearing.

At one point, a police officer is heard to calmly tell the male Complainant to stop yelling and that what started this entire incident was that his son had some kind of air pistol, to which the male Complainant responds “did he admit to that?”

The male Complainant is then heard to yell at his son “did you say you had an air pistol? Okay, you didn’t? You said that? Did you have an air pistol?” He then returns to the other young people and starts to harass them again, indicating that he is going to speak with their parents and that he knows where they live. The male Complainant then approaches a police officer who is speaking with the young people and starts to direct the police to charge these young people as he can clearly see that they were at fault and struck his son’s car; he repeatedly yells that it is a “fuckin’ no brainer” and starts to taunt the young people again telling them that the tables have turned now. The officer then calmly tells the male Complainant: “can you settle down? … calm down … listen, you’re yelling here … just chill … all the yelling, just settle down”.

The female Complainant is then heard to tell the police “I want an accident report filled out here by one of you guys” and the male Complainant yells “Yeah, accident report happenin’ here”. The male Complainant then again approaches the young people and begins to yell and argue with them, when an officer approaches and indicates that they are trying to conduct an investigation here, saying: “I want you to back away … you are interfering … if you don’t quit interfering, you are going to be arrested, do you understand that?”

At that point the male Complainant again started to yell, this time about “probable cause for my arrest” and “we don’t just threaten arrest” and “you don’t arrest a guy who is just trying to help out investigating … it’s a no brainer what happened here today officers, a no brainer”. The male Complainant then yells that he wants his boy out of the cruiser and then approaches a police officer who appears to be speaking with the female Complainant and tells him that he should learn how to talk to a lady; the officer is heard to tell the female Complainant that they are trying to investigate the matter and why doesn’t she just leave and allow them to do so.

As the male Complainant is nearing the officer, someone from behind appears to grab the phone from his hand and the male Complainant states “you need to give my phone right back”. There then appears to be a struggle, (the visual is no longer clear on the video) and both of the Complainants are heard screaming. The female Complainant initially demands the phone back and then yells “you fuckin hurt me in the head” while the male Complainant continually yells “you fuckin bastards”.

Officers are heard to say words to the effect of ‘get down on the ground’ and then ‘put your hands behind your back’ and ‘roll on your stomach now’ and something is said about a ‘taser’. The female Complainant is then heard to say that she can’t breathe and the male Complainant claims someone is going to break his back. After the female Complainant continues to scream, one police officer is heard to say “he hit you, you fuckin idiot, I didn’t” but it is unclear to whom he is referring, to which the female Complainant responds, “don’t call me a fuckin idiot”, and the officer says, “you fuckin grabbed me” and she responds, “yeah, you fuckin hit me in the head.”

On the video evidence, I have no difficulty whatsoever finding that both of the Complainants were actively interfering with the police investigation into whether or not someone had brandished a firearm, and that they were making a difficult situation much worse, while the male Complainant was clearly stirring things up and obstructing police. In this situation, where it was dark, where there was a large group of people, and police were concerned about public safety based on the 911 call of a firearm, the Complainants’ behaviour was making the situation intolerable.

On all of the evidence, and as clearly supported by the video, it is clear that both the male Complainant, and to some lesser degree, the female Complainant, were loud, obstructive, abusive and were actively preventing police from doing their jobs. Furthermore, based on the evidence of all of the civilian witnesses other than the two Complainants, but including those who were presumably sympathetic to the Complainants, being their son, his friend, and the female Complainant’s brother, it is clear that not one witness ever saw any police officer strike either of the Complainants at any time (the only exception being one witness who observed WO #1’s arm strike the female Complainant’s head after she bit him on the arm).

The evidence of WO #1, who advised that he observed the female Complainant run at SO #1, who was in possession of her husband’s cell phone, and SO #1 pushed her away, is fully confirmed by CW #8, who observed a police officer push the female Complainant when she was too close to him, following which he heard her yell that the police officer had punched her in the face, when in fact the civilian witness saw no such thing.

At the scene, another civilian witness described the male Complainant as irate, yelling at police, and jumping up and down inside the police cruiser. As the male Complainant was being transferred to the ambulance, he shouted that he had been assaulted by police and was injured, complaining that he had been thrown to the ground and that someone put a knee on his neck. I find that this evidence undermines the male Complainant’s allegation that he was struck in the back of the head five or six times by a police officer when he was already down on the ground and handcuffed; presumably, had that occurred, the male Complainant would have mentioned it at the time when it was freshest in his memory, especially in light of the fact that he indicated at the time that he wanted an ambulance called in order that the incident would be documented.

WO #4, who was present in the booking hall when the male Complainant was booked in, also heard the male Complainant indicate to the booking sergeant that he was injured when he was taken to the ground; with no mention of being struck in the head.

WO #3 advised that upon his arrival, the male Complainant was “absolutely losing it, screaming at anyone he could” and indicated that he was distracted by the behaviour of the male Complainant and told him to move away several times. He heard SO #2 tell the male Complainant that he was under arrest for obstructing police and WO #3 assisted with the arrest by grabbing the male Complainant’s left arm, while the male Complainant struggled and pulled away from the officers, as they lowered him to the ground, face down, and handcuffed him behind his back. WO #3 advised that at no time did he deliver any strikes or kicks to the male Complainant nor did he observe any other police officer do so.

While WO #3 was dealing with the male Complainant, he noticed over his shoulder that the female Complainant’s arm flailed as she tried to hit someone, and he observed WO #1 move to take control of the female Complainant. WO #3 then heard a yell and observed CW #1 run, in a full sprint, at WO #1, and WO #3 released the male Complainant and tackled CW #1 to the ground. WO #3 advised that he observed blood on the male Complainant’s face as he was being escorted to the cruiser but he was unsure as to how he had been injured.

WO #1 advised that he and WO #3 initially attended the area of the tennis courts where they dealt with the occupants of a Ford Escape and they located a ‘Berretta’ style air gun inside the vehicle, as initially reported in the 911 call by CW #8. WO #1 then heard WO #5 and SO #1 call for assistance, and they responded to find both Complainants yelling at the police officers. WO #1 described the male Complainant as approaching people very closely with his cell phone and asking them questions and then calling them names. He described the male Complainant as being “nose to nose” with the persons he was videotaping.

WO #1 advised that he told the male Complainant to back away, but the male Complainant ignored him. WO #1 then observed SO #2 attempt to arrest the male Complainant for obstructing police and to take the phone away from him and hand it to SO #1.

The female Complainant then ran toward SO #1 and yelled that he could not take her husband’s phone and he observed SO #1 push the female Complainant away and he heard her scream “Don’t fucking push me” at which point he saw her bend her leg as if to kick SO #1, and WO #1 took her by the biceps, from behind, and pulled her backwards so that her kick missed SO #1.

WO #1 then took physical control of the female Complainant and took her to the ground in a controlled movement, holding her arms while he lowered her across his legs and then onto her left side onto the ground. Once down, she reached her right arm above her head resulting in WO #1 reaching over her to take control of that arm, and the female Complainant bit him.

WO #1 advised that the female Complainant told him that she bit him because he had punched her in the face, but WO #1 denied ever punching her or delivering blows of any kind to the female Complainant. Clearly, based on the evidence of CW #8, the female Complainant had also accused SO #1 of having punched her in the face. WO #1 advised that he was unaware as to the source of the female Complainant’s possible concussion indicating that, although he took her to the ground, which was asphalt, he did not hit her nor did he see any other police officer do so.

Similarly, WO #2 advised that he observed the male Complainant yelling at people and video recording them and observed SO #2 take the phone from the male Complainant’s hand and pass it to SO #1, at which point the male Complainant resisted and was taken to the ground with the front of his body landing on the ground.

The female Complainant then tried to take the phone from SO #1 and she was arrested by WO #1. While WO #2 observed the female Complainant struggling with WO #1 when he arrested her, at no time did he see any police officer strike the female Complainant. When WO #2 took custody of the female Complainant for transport, he was told that the female Complainant had bitten WO #1 and the female Complainant complained that SO #1 had hit her on the right side of her face.

WO #5 advised that he had arrested CW #4 for possession of a weapon and the male Complainant positioned himself between WO #5 and CW #4; when the officer tried to speak with CW #4, the male Complainant yelled over top of their conversation and prevented him from doing so. The male Complainant was directed to move back several times.

WO #5 advised that he observed both of the Complainants confront several involved persons in the area and that the male Complainant yelled at a young girl while only inches from her face. WO #5 advised that he was concerned that the male Complainant was going to hit the girl, so he asked him to leave the area or he would be arrested. This conversation is recorded on the video.

WO #5 then advised that the male Complainant hit him on the shoulder with his cell phone, which is confirmed by the video wherein the male Complainant is heard to apologize to the officer. WO #5 then returned to his cruiser where he observed the male Complainant being taken to the ground and handcuffed by SO #2 and he observed WO #1 preventing the female Complainant from interfering with that arrest. He also heard WO #1 yell that he had been bitten by the female Complainant, who was positioned down on the ground at the time, with her hands cuffed behind her back. WO #5 did not see WO #1 deliver any strikes to the female Complainant.

On all of the evidence, I find that the statements of the various police officers present during the interaction is fully supported not only by the civilian witnesses, with the exception of the two Complainants, but also by the video recording taken by the male Complainant.

Furthermore, I note that while the female Complainant initially accused SO #1 of punching her in the face, which was overheard by CW #8, she later accused WO #1 of having punched her in the face, and then told WO #2 that SO #1 had hit her on the right side of her face. Despite these many and varied different versions of an assault upon her, made by the female Complainant at the time of the interaction, in her statement to SIU investigators, the female Complainant advised that SO #1 had struck her on the right side of her head with his left arm. I find a strike on the side of one’s head with an arm to be substantially different from being punched in the face. Furthermore, based on the evidence of CW #8 that he heard the female Complainant accuse the SO of having punched her in the face when he had in fact only pushed her away, I find that I can give little credence to the evidence of the female Complainant and therefore I do not accept her allegations.

The medical records of the male Complainant indicate that he was still agitated and yelling at police upon his arrival at the hospital. His injuries were recorded as a small abrasion to his left cheek, a small contusion to his occipital area (the back of the head) and that he complained of generalized back and neck pain but was able to move his head and neck without pain/grimace and no redness or bruising was found to the back of his neck. The male Complainant also advised medical staff that he had no headache, dizziness or loss of consciousness.

With respect to how the male Complainant incurred his injuries, it is noted in his EMS records that he advised that he “was taken down to ground and arrested by PD, in process of arrest states he incurred small abrasion on face and small contusion on occipital area”, while his medical notes indicate that he advised the doctor that his injury was caused when he was “taken down by police”.

At no time during his initial visit to the hospital or when he spoke to paramedics, did the male Complainant ever allege that he was struck by any police officer. It was not until his second visit, three days later, that the male Complainant first alleged that “he was beaten up by police on Friday. States hit to back of neck and head.” Furthermore, nowhere in any of the Complainant’s medical records was I able to find any diagnosis of a concussion, as he alleged to SIU investigators, rather, he was released with the finding that he had a ‘facial injury’ and ‘dental’ and he was told to use ice and Tylenol.

With respect to the female Complainant, her medical records indicate that she first attended hospital three days after this incident and it is noted that she “states was jumped by police on Friday. C/O (complains of) pain to right side of head. No LOC (loss of consciousness). C/O of generalized muscle pain. Having difficulty moving right arm. No bruising or redness noted. Moving all limbs”. Also noted in her records was that she indicated that she was hit to the right side of the head with a cell phone and then thrown to the ground; of particular concern/note is her comment to medical staff that the source of her information was that “witnesses told her”, not that she herself recalled this occurring. Her diagnoses was listed as “? Concussion” and “multiple STI” (soft tissue injuries).

On the basis of the medical records of both of the Complainants, I can find no confirmation that either Complainant suffered a concussion or other serious injury. On the male Complainant’s second visit to hospital, he indicated that he had lost two teeth during the altercation, whereas on his initial visit he indicated that only his artificial teeth had been broken when he was grounded by police. As such, I am left in doubt as to the nature of the injuries to either of the Complainants, other than that the male Complainant suffered a ‘small abrasion on face and small contusion on occipital area’, neither of which would fall within the category of a serious injury.

Having reviewed the evidence extensively, I find that I am unable to place much credence in the evidence of either of the Complainants, as it is contradicted by all of the CWs, as well as the video recording and the prior utterances made by each of them to various parties on the night in question. On this basis, save where their evidence is confirmed by other witnesses, I have rejected the version of events provided by the two Complainants as being unreliable.

On all of the credible evidence, I find that in all likelihood the male Complainant was injured when he was taken to the ground by SO #2 and WO #3; with CW #8 describing the male Complainant as being taken down “hard” and CW #6 describing him as going down front first onto the pavement, with his body going down first, followed by his head. I further find that the grounding was the source of his injury on the basis that CW #6 indicated that it was only after the Complainant was taken to the ground that she observed him to have blood on his face. I also accept the evidence of CW #6 that the male Complainant was taken to the ground as a result of his lunging at SO #2 and pushing the officer with both hands while trying to retrieve his cell phone, as well as the evidence of CW #8 that the male Complainant went down hard because he was fighting with the officers. CW #8, who was only some ten to 15 feet from where both Complainants were taken to the ground, appeared to have had the best vantage point of any of the civilian witnesses and was in the best position to observe what was happening. I find further support in this conclusion on the basis that CW #8, from his location, had no difficulty seeing the female Complainant bite WO #1, which the female Complainant confirms as being accurate.

With respect to the Complainant, if she did suffer an injury, which is unclear based on her medical findings, I have no hesitation in finding that it was not as a result of any punches, strikes, or kicks, by any police officer, as clearly confirmed by all of the CWs.

I do, however, find that the female Complainant was taken to the ground by police when she lunged at the officers after her husband’s arrest, as witnessed by CW #6 and that, once down, the female Complainant bit WO #1 on the arm. Based on the evidence of CW #8, I do not find that the female Complainant was taken to the ground with any particular force, as CW #8 specifically observed that the female Complainant was placed on the ground and then handcuffed, unlike her husband, who he described as going down ‘hard’. I find that the evidence of CW #8 in this regard fully corroborates the evidence of WO #1, wherein he described the grounding of the female Complainant as a controlled movement in that he held her arms, while he lowered her across his legs and then placed onto her left side on the ground. While CW #7 advised that she observed a police officer’s arm strike the female Complainant after she bit the officer on the arm, she fully conceded that she did not have a clear view as she was obstructed by the BMW, and I am unable to discern if the officer struck her with his arm or if the contact was simply a reaction to her sinking her teeth into his arm.

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 arrests of both Complainants, it is clear on all of the evidence that police were called to a report of a firearm being brandished in a public place in the presence of other persons and that the police were investigating that complaint, as they are required to do as a part of their duties.

Once the two Complainants arrived on scene, it is clear from the video evidence as well as the evidence from the CWs, that the male Complainant was actively obstructing the investigation and interfering with police officers in the execution of their duties. As such, police were legally entitled to arrest the male Complainant for obstructing the police.

When the female Complainant lunged at an officer first in order to attempt to get the cell phone back from him and then in an attempt to interfere in the arrest of the male Complainant, the female Complainant was also arrestable for obstructing police. When the female Complainant bit WO #1, she was additionally arrestable for the offence of assaulting a police officer. As such, the arrest and detention of both Complainants was legally justified in the circumstances.

With respect to the amount of force used by SO #2 and WO #3 in arresting the male Complainant, I find that they used no more force than required to take the Complainant to the ground and handcuff him. While CW #8 observed that the male Complainant went to the ground ‘hard’, I accept his observation that he did so because he fought with police. I also accept the evidence of CW #6 that the male Complainant was grounded as a result of his lunging towards a police officer and pushing that officer with both of his hands.

Finally, based on the evidence of the CWs, I find that at no time was any police officer observed to punch, strike, or kick the male Complainant. While I find that the injury to the male Complainant’s face, as well as the breaking of his artificial teeth, and possibly one natural tooth, was caused when he was taken to the ground, I do not find the actions of police with respect to the male Complainant to have constituted an excessive use of force.

On the contrary, I find the actions of the police to have been more than reasonable in light of the fact that the male Complainant was continuously and loudly interfering with an active criminal investigation which possibly involved a firearm, that he had already earlier, albeit possibly accidentally, struck WO #5 with his cell phone, that he continuously incited and riled up other witnesses, and, despite numerous warnings and directions to calm down and stop yelling, he continued to ignore officers and interfered with their ability to do their jobs.

Furthermore, I note that when the male Complainant was initially arrested, he was only taken by the arm in order to affect the arrest, and it was not until he began to struggle and pull away from the police officers, that it was felt necessary to take him to the ground and handcuff him, with the result that his fighting with the officers caused him to go down harder to the ground than he would have otherwise. On this basis, I cannot find that the actions of either of SO #2 or WO #3 was excessive in the circumstances.

With respect to the amount of force used by SO #1 and WO #1 in arresting the female Complainant, even if that force caused an injury to the female Complainant, the evidence of which is far from conclusive, I cannot find that their actions amounted to an excessive use of force.

I note that the female Complainant was observed by both civilian and police witnesses as flailing her arm trying to hit someone, that she was observed to lunge at the police officers who were attempting to arrest the male Complainant, that she attempted to kick SO #1 and that she bit WO #1. As such, it was imperative in the circumstances that police take control of the situation and arrest the female Complainant. I find, however, on the evidence of CW #8, which confirmed the evidence of WO #1, that the female Complainant was lowered to the ground and that there was no more force used than what was required to do so. As such, I further find that the actions of SO #1 and WO #1 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:

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, where it is clear that both of the Complainants were openly obstructing police in the execution of their duties and preventing their investigation into the possible illegal use of a firearm, I find that it was incumbent on police to take control of the situation and to remove the obstruction in order to allow them to complete their investigation.

In the final analysis, I am satisfied for the foregoing reasons that the arrest and detention of both of the Complainants, and the manner in which they were carried out, were lawful notwithstanding the injury which either or both of them may have suffered, the nature of which is unclear based on the medical records provided.

On all of the evidence, I find that both of the Complainants were very obstructive and confrontational, both with the police officers attempting to carry out their investigation and the CWs, and that the officers showed extreme patience throughout and only resorted to arresting and taking both the Complainants to the ground as a consequence to their ongoing obstruction and their increasingly assaultive behaviour. 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: March 29, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit