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 47-year-old man during his arrest on June 10^th, 2017.

Notification of the SIU

At approximately 12:30 p.m. on Wednesday, June 21^st, 2017, a nurse from the Owen Sound Hospital notified the SIU of the Complainant’s custody injury. The nurse reported that the Complainant was injured when he was apprehended by police officers from the Ontario Provincial Police (OPP).

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

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

On June 10^th, 2017, the Complainant was apprehended under the Mental Health Act (MHA) by the West Grey Police Service (WGPS) and taken to hospital, where he was held. On June 12^th, 2017, the Complainant escaped from the hospital and the OPP was contacted to attempt to locate the Complainant and return him to hospital.

The OPP located the Complainant on an all-terrain vehicle (ATV) trail. The Complainant resisted arrest and a Conducted Energy Weapon (CEW) was deployed, causing him to fall to the ground. The Complainant was then returned to hospital and subsequently transferred to a second hospital for treatment.

Nature of Injuries/Treatment

The Complainant was diagnosed with a comminuted fracture of the distal end left clavicle (collarbone) as well as an undisplaced left fourth rib fracture. No treatment was required.

The Scene

The scene was not processed by FIs due to the delay between the dates of the incident and notification of the SIU. The scene was located on a remote decommissioned railway line now used as an ATV trail. The surface was hard crushed rock and grass.

Physical Evidence

CEW

SIU forensic investigators (FI) conducted a download of the Conducted Energy Weapons (CEWSO and WO #2. The examination of the CEWs indicated that both had been deployed one time for five seconds. The first was deployed at 10:20:29 am, and the second was deployed at 10:23:32 am.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Communications Recordings

OPP Communications

9:33:49 a.m. OPP dispatcher requests available officers to assist with an aggressive patient acting up at the hospital;

9:41:59 a.m. The dispatcher advised that the Complainant was now outside the building. He entered a house across the street and changed clothing to change from his hospital gown. He was on a Form 1 under the MHA and was last seen headed west on Main Street in Markdale. A police officer saw the Complainant walk down the road and attempted to speak with him. The Complainant walked into a field;

9:48:00 a.m. The police officer lost sight of the Complainant. A passerby confirmed the Complainant was headed westbound through soccer fields;

10:07:27 a.m. A CPIC report was sent to WGPS requesting that they assist with patrols near the Complainant’s residence. A police officer advised of the Complainant’s violent behaviour towards police. A police officer told the dispatcher to warn the police officers attending;

10:09:19 a.m. A K9 handler and Emergency Response Team (ERT) were contacted to assist with locating the Complainant;

10:15:18 a.m. A police officer saw a man believed to be the Complainant walking north on the ATV trail. The Complainant was 300 metres south of the police officer. He then went into the bush on the east side of the trail. Other police officers attended the area and the Complainant continued to walk towards the police officers. The Complainant had been brought to hospital by WGPS but had slipped out of his restraints;

10:20:06 a.m. A police officer advised that the Complainant had returned into the bush area and was 100 metres away;

10:21:13 a.m.A police officer advised that the Complainant was back on the trail and had something in his hand, believed to be a rock;

10:25:27 a.m. A police officer advised communications that there was a CEW deployment and the Complainant was in custody;

10:35:15 a.m. A police officer transported the Complainant to hospital;

11:46:20 a.m. The dispatcher contacted a police officer by telephone and asked if he was okay. The police officer advised that one of his police officers involved in the call was in a full out sprint towards the Complainant so they all had to sprint. The police officer said, “I fought him in 1988 and 1994 or 95. He’s a big old farm boy.” The dispatcher asked if the Complainant had a rock in his hand. The police officer responded, “No, he didn’t, no, no, but he was confrontational. He wanted to fight all four of us. He goes, come on boys, and he can fight. He caught him and he shot him and one of the probes went right into his penis.”

The event chronology provided by the OPP was consistent with communication recordings.

Materials obtained from Police Service

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

• All Previous Occurrence Details re: the Complainant
• Brief Mental Health Screener
• Computer Aided Dispatch (CAD) Event Details
• General Occurrence Report
• Notes of WO #s 1-3
• Police Transmissions Recordings
• 911 Call Recording
• CEW in possession of the SO
• Download data from the CEW in possession of the SO
• Occurrence Details Report, and
• Training Records of the SO and WO #2

Upon request, the SIU also obtained the following items from other sources:

• The medical records of 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.

Section 15, Mental Health Act - Application for psychiatric assessment[1]

15 (1) Where a physician examines a person and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself

and if in addition the physician is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person
5. serious bodily harm to another person; or
6. serious physical impairment of the person

the physician may make application in the prescribed form for a psychiatric assessment of the person.

(1.1) Where a physician examines a person and has reasonable cause to believe that the person,

1. has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person, and
2. has shown clinical improvement as a result of the treatment

and if in addition the physician is of the opinion that the person,

3. is apparently suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one
4. given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment, and
5. is incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained

the physician may make application in the prescribed form for a psychiatric assessment of the person

(2) An application under subsection (1) or (1.1) shall set out clearly that the physician who signs the application personally examined the person who is the subject of the application and made careful inquiry into all of the facts necessary for him or her to form his or her opinion as to the nature and quality of the mental disorder of the person.

(3) A physician who signs an application under subsection (1) or (1.1),

1. shall set out in the application the facts upon which he or she formed his or her opinion as to the nature and quality of the mental disorder
2. shall distinguish in the application between the facts observed by him or her and the facts communicated to him or her by others, and
3. shall note in the application the date on which he or she examined the person who is the subject of the application.

(4) An application under subsection (1) or (1.1) is not effective unless it is signed by the physician within seven days after he or she examined the person who is the subject of the examination

(5) An application under subsection (1) or (1.1) is sufficient authority for seven days from and including the day on which it is signed by the physician,

1. to any person to take the person who is the subject of the application in custody to a psychiatric facility forthwith, and
2. to detain the person who is the subject of the application in a psychiatric facility and to restrain, observe and examine him or her in the facility for not more than 72 hours.

Section 17, Mental Health Act - Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person
5. serious bodily harm to another person; or
6. serious physical impairment of the person

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

On June 10^th, 2017, the Complainant was apprehended by the West Grey Police Service (WGPS) under the Mental Health Act and involuntarily admitted to hospital on a Form 1 as a person who was a danger to himself or others. On June 12^th, 2017, the Complainant left the hospital, without authorization, and police were notified. The SO, WO #2, WO #3, and WO #1, all of the Markdale Detachment of the Ontario Provincial Police (OPP) attended, searched for, and eventually located and again apprehended the Complainant and returned him to hospital. On June 21^st, 2017, the Complainant was transferred from the Markdale Hospital to the Owen Sound Hospital (OSH), where he was examined and it was discovered that he had sustained a comminuted fracture of the distal end left clavicle (collarbone) and an undisplaced left fourth rib fracture. Neither injury required treatment and were left to heal on their own.

It is alleged that after the Complainant left the hospital on June 11^th, 2017, he was walking on the ATV trail when four police officers from the WGPS approached him, one of whom fired his CEW at the Complainant, with one probe making contact with his groin, while the second went under his leg. When that was ineffective, it is alleged that a second CEW was deployed striking the Complainant in the chest. The Complainant then fell backwards and a CEW was deployed at him two more times while he was on the ground.

It is further alleged that while the police officers were attempting to handcuff the Complainant, a police officer jumped or kneed him on the left side of his back, fracturing his rib. A police officer then grabbed the Complainant’s left arm and pulled it straight back, like a lever, which dislocated his shoulder and fractured his collarbone.

The radio communications log and recording confirms that it was the Markdale Detachment of the OPP that responded and apprehended the Complainant on June 12^th, and, despite the Complainant’s assertion, the WGPS was not involved.

Subsequent examination of the CEWCEWSO and the other being the CEW in the possession of WO #2. Each CEW was only deployed once and for a period of five seconds each. The first CEW was deployed at 10:20:29 a.m. and the second at 10:23:32 a.m.

During the course of this investigation, in addition to the Complainant, four civilian witnesses were interviewed, none of whom were present during the apprehension of the Complainant or who observed how he came to be injured. Additionally, the three police witnesses present during the Complainant’s apprehension were interviewed and turned over their memorandum book notes for review. The subject officer declined to either be interviewed or to turn over his notes, as is his legal right.

Medical personnel at the hospital confirmed that upon the Complainant’s return to hospital, he had two CEW probes imbedded in his skin, one in his groin and one in his abdomen. The Complainant made no complaint of any injuries to the doctor who saw him upon his return.

A medical expert indicated that he observed a fracture of the clavicle on the distal end, close to the joint and acromion (shoulder blade). He opined that the injury could have been caused from blunt force, torsion to the shoulder, or a fall directly on the shoulder. He also confirmed that the Complainant did have a fourth rib fracture, but was unable to determine the age of that fracture. The expert indicated that rib fractures commonly occur from falls.

According to the medical staff member who interviewed the Complainant upon his arrival at hospital, the Complainant told her that his injuries were caused by police officers during his apprehension, but that he had limited recollection of his involvement with police, other than that he had left the hospital and was later taken down by police.

According to the OPP Communications recording, at 9:33:49 a.m. on June 12^th, 2017, the dispatcher requested all available officers to assist with an aggressive patient at Markdale Hospital.

WO #2, in his statement, advised that while he was responding to the call that an aggressive patient had left the hospital, he heard the SO indicate over the radio that the Complainant had fled from him. A transmission from WO #1 then indicated that the Complainant was known to be violent and had assaulted a police officer in the past.

This is confirmed by the radio communications recording, where, at 9:41:59 a.m., a transmission was received that the patient, the Complainant, had now left the hospital and was last seen headed west on Main Street in Markdale, where he was seen by a police officer (presumably the SO) who attempted to speak with him, but the Complainant walked away from the officer.

At 9:48:00 a.m., a transmission was received that the police officer had lost sight of the Complainant but a civilian had observed him walking through the soccer fields.

At 10:07:27 a.m., a transmission was received from a police officer (presumably WO #1) that the Complainant had a history of violent behaviour with police and asked the dispatcher to warn other attending police officers of this fact.

At 10:15:18 a.m., a police officer (the SO) reported that he saw a man believed to be the Complainant walking north on the ATV trail. Other police officers then attended the area and the Complainant was reported to be walking towards the officers.

WO #2 advised that he arrived in the area and saw the Complainant walking on the ATV trail approximately 300 metres south of his location. WO #2 observed the Complainant walking towards him, but then he left the trail and walked out of his sight. WO #2 was then joined by the SO, and the two were going to set up a perimeter of the area and request the assistance of the Canine Unit, when they observed the Complainant come out of the bush carrying a gray object in his left hand, which WO #2 believed to be a rock.

This is confirmed in the radio transmission recording, where at 10:15:18 a.m., a police officer is heard to report that a man believed to be the Complainant was walking north on the ATV trail, but then left the trail and went into the bush 300 metres south of the officer. The Complainant then returned and began to walk towards the police officers, before again re-entering the bush area.

At 10:21:13 am a.m. a police officer is heard to say that the Complainant was back on the trail and had something in his hand, believed to be a rock.

WO #2 advised that they were then joined by WO #3 and WO #1, and together, the four officers started to walk toward the Complainant. WO #2 called out to the Complainant asking him to come and talk to him, at which point the Complainant turned and began to walk in the opposite direction. WO #2 then told the Complainant that he would have to come into custody, and the Complainant began to run. This evidence is consistent with that of WO #3. WO #1 advised that he was the fourth police officer to arrive at the ATV trail, where he observed the Complainant with something in his hands, which he believed to be a rock.

WO #2 advised that he had removed his CEW as a precaution and began to run after the Complainant, yelling for him to stop. WO #3 advised that when the Complainant started to run, WO #2 and the SO ran after him, with WO #3 running behind them, and WO #1 following. When WO #2 was within five metres of the Complainant, he yelled at him to show his hands and the Complainant stopped, clenched his right fist, and turned toward WO #2. WO #2 warned the Complainant to stop or he would “Taser” him, and then deployed his CEW, but the prongs did not make contact and the Complainant said, “You missed,” and raised his right fist.

WO #1 heard WO #2 yelling for the Complainant to stop several times and saw the Complainant turn toward WO #2 to confront him. He also heard the deployment of a CEW and observed that the Complainant did not fall.

WO #3 advised that he observed WO #2 with his CEW out and yelling at the Complainant, “Get down on the ground, get down on the ground”; the SO had also drawn his CEW. When the Complainant did not comply, WO #3 observed WO #2 deploy his CEW, but missed, and the Complainant said, “You missed me, why don’t you bring out the big guns?” WO #3 advised that he, along with the SO and WO #2, told the Complainant approximately 20 to 30 times to get down on the ground, but the Complainant continued to face the officers with his fists up, rotating them, in a fighters’ stance. WO #3 described the behaviour of the Complainant as aggressive, with him stepping back and forth, trying to engage the officers, while using vulgar language.

WO #2 advised that he then holstered his CEW and prepared for a physical confrontation. The Complainant took two steps toward WO #2, while WO #2 tried to back up to put distance between them. WO #2 issued commands for the Complainant to get down, but the Complainant ignored him. WO #2 then heard the SO also warn that he would ‘Taser’ the Complainant, and observed the SO deploy his CEW, causing the Complainant to fall to the ground, and his body to lock up. WO #2 described the Complainant as falling hard, following which WO #2 and the SO moved in to handcuff the Complainant.

WO #1 advised that he saw the SO and WO #3 run toward the Complainant and he heard the SO issue the challenge to the Complainant, following which he heard the deployment of a CEW which resulted in the Complainant falling to the ground.

WO #3 advised that he too heard the SO issue the warning that the Complainant was going to be “Tased”, and then said “Taser, Taser” to warn everyone that he was going to deploy his CEW, which he then did. WO #3 described the deployment by the SO as a direct hit and the Complainant’s body fully locked up, as it was meant to do. He observed the Complainant to initially fall slowly toward the ground, but when he got to a 45 degree angle, he fell quickly and hit the ground hard.

The Complainant was lying on his left side with his right arm under his body, when WO #3, WO #2, and the SO moved in and rolled him over by grabbing him by the shoulders. The Complainant was resisting giving up his right hand for handcuffing.

Each of the three witness police officers who dealt with the Complainant indicated, in their statements, that at no time was the Complainant hit, punched or kicked by themselves, nor did they see any other officer do so, and no officer was seen to use any force which could have caused any injury to the Complainant. WO #1 further added that he did not observe any police officer with a knee on the Complainant’s back or shoulder area but he heard the Complainant tell the police officers that he had a bad shoulder. This was also heard by WO #3, who heard the Complainant indicate that he had a previous shoulder injury and that the handcuffs were bothering him, and by WO #2, who then removed his handcuffs and re-cuffed the Complainant using two sets of handcuffs, to make him more comfortable.

On all of the evidence, it is clear that the police officers, in apprehending the Complainant pursuant to the Mental Health Act and at the request of Markdale Hospital, were acting within the course of their duties and that their apprehension was therefore lawfully justified in the circumstances. As such, in the absence of some evidence of an excessive use of force on their part, they are protected from prosecution pursuant to s.25 (1) of the Criminal Code.

With respect to the amount of force used by police officers in the apprehension of the Complainant, I note that there is no allegation that any police officer punched, hit, or kicked the Complainant; the only allegation being that a police officer roughly pulled the Complainant’s left hand back for handcuffing, which the Complainant opined dislocated his left shoulder and broke his clavicle, and that a police officer jumped or knelt on his back, thereby fracturing his rib.

While the evidence of the Complainant provides some evidence of how he was injured, I find that I have to treat his version of events with some caution, due to some major misstatements in his evidence, which were positively disproven by other evidence, as follows:

• The Complainant believed that he left the hospital on June 11^th, when in fact he did not do so until the following date, June 12^th, 2017
• The Complainant believed that he was apprehended on June 12^th by the WGPS, specifically the SWAT team, when in fact he was apprehended by the Markdale Detachment of the OPP. I find this of particular concern in that the Complainant specifically described the SWAT uniform supposedly worn by the officers apprehending him, and that he was apparently familiar with WO #1 from prior encounters
• The Complainant indicated that a CEW was deployed at him on four different occasions, two after he was already down on the ground, while the CEW records positively confirm the evidence of the police officers, that WO #2 and the SO each only deployed their CEW once, for a period of five seconds, and the evidence of medical staff that only one probe was found embedded in the Complainant’s groin and one in his abdomen. Furthermore, I find support for the evidence of each of the police officers that the deployment of WO #2’s CEW was ineffective, both from the fact that the Complainant did not fall after the first deployment of the CEW, and from the Complainant’s own evidence that he heard the officer shout that the deployment had been “no good”
• The Complainant indicated that a police officer had pulled back his left arm “like a lever” causing his shoulder to become dislocated and his clavicle broken, while the doctors who examined the Complainant made no findings supporting his allegation that his shoulder had been dislocated, and
• Finally, I find that the Complainant’s description of how his clavicle came to be broken is not consistent with the medical evidence. According to the medical expert, the injury to the Complainant’s clavicle was consistent with having been caused by blunt force, torsion (twisting) to the shoulder, or a fall directly on the shoulder. I have further researched this injury online, and note that several trustworthy medical websites (www.mayoclinic.org; orthoinfo.aaos.org; www.nhs.ul/conditions/broken-collarbone) all describe the common causes of a broken collarbone as being due to falls either onto the shoulder or an outstretched hand, a direct blow to the shoulder or collarbone, or trauma caused by a vehicular collision. On this basis, I find that where the Complainant has alleged that his collarbone was broken because a police officer pulled his left arm “like a lever” (which I take to mean up and down, not twisting) this is not consistent with any of the causes most commonly associated with a fracture of a collarbone. I further note that the Complainant at no time alleged that any police officer twisted his shoulder or his arm at any time, and that each of the officers interviewed recalled the Complainant telling them that he had a sore left shoulder from a previous injury

With respect to the fractured rib, although the medical records confirmed that the Complainant had at some point sustained a fractured rib, I find that the medical expert’s caveat that he was unable to determine the age of that particular injury, leaves me without reasonable grounds to believe that it occurred during the arrest of the Complainant. While I fully accept that the actions of police may have caused the Complainant to experience pain to his rib area, due to a pre-existing injury, I am unable on this evidence to form reasonable grounds to believe that the Complainant’s rib was actually injured during this interaction.

On all of the evidence, including the medical opinions, it appears that the most likely cause of the Complainant’s injuries, both to his clavicle and to his rib, was a fall. While it is clear that the Complainant fell as a result of being struck by a CEW deployed by the SO, and that he “hit the ground hard’ according to WO #3, I am unable to find reasonable grounds to believe that the deployment of the CEW by the SO amounted to an excessive use of force in these circumstances so as to run afoul of s.25 (1) of the Criminal Code.

On the available reliable evidence, I accept that the Complainant was known to police as being violent and as having assaulted police in the past; that when he first returned to the trail after having gone into the bush, he had armed himself with a rock; that after the first unsuccessful deployment of a CEW by WO #2, the Complainant turned as if to engage WO #2 in a physical confrontation, with his hands clenched in fists and rotating, while he stood in a fighter’s stance continuously stepping backwards and forwards, as if inviting the officers to fight; and, finally, that the Complainant was a large man.

On this evidence, I cannot find that the deployment of the CEW by the SO was excessive in the circumstances. On the contrary, I have no hesitation in finding that resort to that particular less lethal use of force option was the best option available in the circumstances. Having said that, even were I to accept the Complainant’s version of events, I cannot find that the pulling back of his left arm “like a lever” and kneeling on his back while attempting to place the handcuffs on the Complainant, while he was admittedly resisting, amounted to an excessive use of force, despite possibly having caused the injuries to the Complainant, which I find unlikely for the reasons already specified.

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 these facts, then, I find that I am unable to form reasonable grounds to believe that any police officer exercised an excessive use of force in apprehending the Complainant, and I specifically find that I lack reasonable grounds to believe that the SO’s successful deployment of his CEW, which caused the Complainant to fall to the ground hard, and was the likely cause of his injury/injuries, amounted to an excessive use of force on these facts and no charges will issue.

Date: March 23, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The order issued under section 15 is a Form 1. [Back to text]