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 62-year-old man during his arrest on July 6, 2017.

Notification of the SIU

At approximately 12:50 a.m. on July 7^th, 2017, the Ontario Provincial Police (OPP) notified the SIU that a man had sustained a serious injury during his arrest on July 6^th, 2017.

The OPP related that at 9:00 p.m. on July 6^th, 2017 police officers responded to a domestic dispute at a residence in Gowanstown. The police went to arrest the Complainant and he was taken to the ground and struck his head. The Complainant was taken to the hospital and was diagnosed with a hip fracture and facial abrasions.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Complainant

62-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

Subject officers

SO #1 Interviewed, and notes received and reviewed

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right

On July 6^th, 2017, a 911 call was received from an address in Gowanstown. The female caller requested police assistance but the call was disconnected before the caller provided any further information. The telephone number was traced, through subscriber information, to the Complainant and provided his address. As a result, OPP officers from the North Perth-Listowel Satellite Office (Perth) were dispatched to look into the matter and to ensure that the caller was not in distress or in need of police assistance. Upon arriving at the address, police interviewed a witness and discovered that an allegation of domestic assault was being made against the Complainant.

Police then attempted to arrest the Complainant, during which he was taken to the ground with both police officers falling with him and/or on top of him. In falling, the Complainant struck his head on a patio stone. The Complainant was taken to hospital after his arrest, and was later diagnosed with a posterior acetabular wall and column fracture (a fracture of the hip socket within the pelvis) which required surgery.

On a later date, the Complainant saw his own doctor and it was determined that he may be suffering from the after effects of a concussion including ‘Persistent post traumatic Vision Syndrome’.

Expert evidence

On September 7^th, 2017, an expert with the Chief Forensic Pathology Service of Ontario reviewed the Complainant’s medical history and pertinent medical documentation. The expert agreed to provide his opinion in writing on a possible mechanism of the Complainant’s injury and provided an URL to the medical site.[1] An excerpt from his letter follows:

… this 62 year old man had a complex left acetabular fracture with posterior hip dislocation that required surgical treatment. This injury was apparently sustained during a physical “takedown” with the police where the left side of his body came into contact with the ground. Injuries were also sustained on the left part of the upper body and face.

The historical account is agreed by both [the Complainant] and the police involved in the event.

The account of the injury seems to indicate that the acetabular fracture was due to blunt impact trauma of the lateral aspect of the left hip … acetabular fractures are often observed in high energy collisions, often with loading of the knee and impacting of the femoral head on the acetabulum. This mechanism of injury does not appear to be operative in this case based upon the history.

My review of the medical literature revealed peer review publications which show that injury patterns sustained in this case have been observed in sports activities where athletes fall during sports activities and sustain similar injuries. On this basis there is evidence in the peer review literature which correlates with and does not exclude the mechanism of injury as provided by [the Complainant] and the police, in this case.

Video/audio/photographic evidence

No video or audio recordings, or photographic evidence, were located in this matter.

Communications recordings

Summary of 911 call

A woman called saying that she needed the police and disconnected. The communicator called back and the call went to voicemail. The communicator left a message to call back to 911. The subscriber listed was the Complainant.

CW #3 called 911 and reported that the police officers were present at the address and it looked like there was fighting involved. Also, the police officers had a man down on the ground.

SO #2 and SO #1 were asked for an update. SO #1 reported the parties were separated. SO #2 asked for an ambulance because the Complainant was complaining of hip pain and some other “stuff.” SO #1 reported that the Complainant was being transported to the hospital.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the North Perth-Listowel Satellite Office (Perth):

• Duty Roster
• Event Details Report
• Occurrence Reports
• Notes WO #1, WO #2, and SO #1
• OPP Witness Statement – CW #2 dated 2017-07-06
• OPP Video Witness Statement – CW #2
• Police Communications Recordings
• Training Record – SO #1, and
• Training Record – SO #2

Section 265(1), Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

Section 266, Criminal Code – Assault

266 Every one who commits an assault is guilty of

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

Section 25(1), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. by virtue of his office

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

On July 6^th, 2017, a 911 call was received by the OPP Communications Centre. The caller, who was identified as a female by her voice, advised that she required police assistance, but then hung up prior to the call taker being able to get any further information. When the call taker called the number back, there was no answer. Since the law makes it imperative that police investigate hang up calls in order to ensure that the caller is safe and has not been forced to hang up the phone, two OPP Constables, SO #1 and SO #2 from the North Perth-Listowel Satellite Office, were dispatched. The address, in Gowanstown, was determined to be the address linked to the phone that had called 911 based on the subscriber information from the cell phone provider. Once on scene, after speaking with the caller, CW #2, and determining that a domestic assault was being alleged by CW #2 as having been committed against her by the Complainant, police arrested the Complainant for assault contrary to s.266 of the Criminal Code. Following the interaction with police, the Complainant was taken to hospital where it was discovered that he had sustained a posterior acetabular wall and column fracture (a fracture of the hip socket within the pelvis).

It is alleged that police, in arresting the Complainant, tackled him to the ground with the weight of both police officers landing on top of the Complainant and he smacked the ground hard, striking his head and his left hip, causing his injuries. It is alleged that these actions amounted to an excessive use of force by the officers against the Complainant.

During the course of this investigation, five civilian witnesses, including the Complainant and two medical experts, and three police witnesses, including one of the subject officers, were interviewed; these three police officers also provided their memorandum book notes of the incident for review. The second subject officer declined to be interviewed or to provide his notes, which is his legal right. Investigators also had access to the 911 call recording, the police transmissions recordings, and the medical records of the Complainant.

The 911 recording confirmed that an independent witness, CW #3, called and reported that police officers were present and it looked like there was fighting involved and then that the police officers had a man on the ground.

While SO #2 chose not to provide a statement to investigators, he did advise the acting sergeant that night, WO #2, about what had occurred during his interaction with the Complainant. In a telephone call to WO #2 shortly after the incident, SO #2 advised that he had spoken with a woman, presumably CW #2, at the scene and she had advised that her husband, the Complainant, had slapped her in the face with an open hand. As a result of that information, SO #2 advised, he and SO #1 attempted to arrest the Complainant and the Complainant resisted. SO #2 and SO #1 then tried to place the Complainant against a car that was parked in the driveway, but the Complainant held his hands firmly together in front of his body and they were unable to handcuff him. SO #2 and SO #1 then discussed how they were going to arrest the Complainant, because he was refusing to give up his hands, and both police officers moved the Complainant from the driveway onto the grass, where all three parties fell together with the majority of the Complainant’s body hitting the grass, but his head striking the concrete walkway between the driveway and the door of the house. The Complainant then indicated that his hip was broken. SO #2 advised that both he and SO #1 found the Complainant to be surprisingly strong for a man of his age.

The statement of SO #1 was consistent with the version of events provided by SO #2 to WO #2. SO #1 advised that when they arrived at the residence, SO #2 went inside to speak with CW #2 while SO #1 remained outside with the Complainant. He advised that the Complainant told him, “All I can say is you guys better get this right; you guys screwed me last time,” and the Complainant advised him about the prior arrest for domestic violence wherein he had been acquitted and that, on this occasion, his wife had been the aggressor and had threatened that she was going to call police and say that the Complainant had hit her. SO #2 then came outside and asked the Complainant to explain his side of the story, and the Complainant again repeated what he had already told SO #1. SO #2 then told the Complainant that CW #2 had told him that the Complainant had slapped her with an open hand across her face and SO #2 was therefore arresting him for assault. SO #1 explained that once they had formed the grounds to arrest for assault, there was no negotiating, that they had to arrest because they had no choice, but if the Complainant had documentation to present to support his innocence, he could do that by way of his lawyer or at trial.

The Complainant then became agitated and tried to show them the documents that he had in a brown folder, but the officers did not take the documents; instead, SO #2 entered the garage to place the Complainant under arrest. The Complainant then held his arms tight at his sides and SO #2 placed his arms through the Complainant’s bent elbows, in order to take control of him, and both officers moved the Complainant to the right side of his motor vehicle. SO #1 then took out his handcuffs, but the Complainant placed his arms tight against his chest and locked them up with his hands tucked under his chin. SO #1 considered these actions by the Complainant to be actively resisting as the Complainant would not comply with demands to give up his hands for cuffing. SO #1 advised that he and SO #2 were on each side of the Complainant and SO #1 described the Complainant as quite strong. SO #1 described the Complainant as then swaying back and forth while one police officer was on each of his arms, moving both police officers with him as he swayed, while he told the officers to stop and get off him and he yelled, “Help, the police are assaulting me.” SO #1 described this as a positional struggle that lasted about 20 to 30 seconds with SO #2 twice warning the Complainant that if he did not stop resisting, he would be grounded.

SO #1 described SO #2 as managing to get his hand inside the Complainant’s left bicep and then using his control of that arm to pull the Complainant to the ground, causing the Complainant to land on the grass, with SO #1 and SO #2 going to the ground as well. SO #1 advised that he managed to move in time so as not to land on top of the Complainant and he believed that SO #2 did not land on top of the Complainant either. SO #1 advised that he did not see if the Complainant was able to break his fall with his knees, but that SO #1 had control of his right arm. The Complainant was then handcuffed with his hands behind his back and SO #1 observed him to have abrasions to his facial area, which he believed may have struck a patio stone. The Complainant complained that his hip hurt, and he lay in the recovery position on his right side and appeared to be in pain.

The medical experts who examined the Complainant’s records indicated that he had suffered a posterior acetabular wall and column fracture and that the fracture was also comminuted as the socket broke into pieces. The doctor advised that the hip socket was the most stable socket in the human body and it would be very hard to dislocate a femur and would require a great force. The injury was referred to as a high energy injury, meaning that a great deal of force was required. The doctor advised that there were two possible mechanisms for this injury; the first and most common was in a motor vehicle collision where the knee hits the dashboard and pushes the femur into the hip where, if it stays intact, it pushes through the wall and column of the hip socket; the second is from a fall from a great height where the hip socket may be blown out. The doctor opined that a fall from a standing position onto pavement would not be of sufficient force to cause the injury but, hypothetically, if the weight was increased, such as if the two police officers possibly fell on top of the Complainant when he fell to his knees, the force would also be increased as would the acceleration. The doctor further opined that this injury was not consistent with having occurred by way of punching, kicking or knee strikes.

A second expert was then asked to give his opinion, and he confirmed the opinion of the first expert in that these injuries are often observed in high energy collisions, but he went on to indicate that a review of the medical literature revealed instances where such an injury had been observed in sports activities where athletes had fallen and as such he could not exclude that the injury was caused as was indicated in the statements of the police officers and the Complainant.

While the medical opinions as to the mechanism of the injury to the Complainant are not totally clear, where, as here, the evidence from all witnesses, including the Complainant, the two other civilian witnesses who observed the Complainant’s interaction with police, and both police officers, is consistent as to the interaction between the Complainant and police leading to his injury, I have no other option but to accept that is how the injury occurred. As such, I accept that the Complainant fell to the ground, possibly to his knees, and with the added force and acceleration caused by the additional weight of both police officers possibly falling on top of him, he sustained the fractures that he did.

Despite the Complainant’s assertion that he did not resist being arrested by the officers, I am of the opinion that the evidence of both of the civilian witnesses confirms the evidence of SO #1, and the indirect evidence of SO #2, that the Complainant was indeed engaged in a struggle with the police officers, with both civilian witnesses describing the Complainant as fighting with the police. The evidence of CW #2 adds further support to this conclusion in that she advised that she heard the police officers telling the Complainant to settle down and to stop resisting, which confirmed the evidence of SO #1 in that regard.

While it appears to be a medical anomaly that the Complainant suffered the injury that he did in these circumstances, it is clear on the evidence of all of the civilian witnesses at the scene that the degree of force used to get the Complainant to the ground was not the ‘great force’ most often seen in ‘high energy collisions’ or falls from a great height. In fact CW #2 described the Complainant as going to the ground relatively slowly while struggling, which resulted in her believing that the police officers had not intended for the Complainant to fall, and CW #3 described it as nothing like the police officers running and tackling the Complainant or a bar room brawl, but more along the lines of a struggle for control and a scuffle with all parties going to the ground. On a scale of one to ten, with one being a gentle fall to the ground based on gravity and ten being a football style tackle, CW #3 only placed the grounding of the Complainant at a four. Despite the apparent lack of force involved in the Complainant going to the ground, however, it is clear on all of the evidence that it was the fall that caused the Complainant’s hip injury, with CW #2 advising that as soon as the Complainant landed, he immediately screamed that his hip was broken.

Finally, on the evidence of all of the witnesses present, there is no evidence that either police officer used any other physical force against the Complainant, other than attempting to handcuff him, putting him up against the car, and then taking him to the ground. There is no evidence that he was ever kicked, punched or had any distraction strikes delivered to his body. Additionally, the evidence from the two civilian witnesses and the Complainant is that as soon as the police officers became aware that the Complainant had been injured, both police officers stepped back and had no further physical contact with the Complainant, but instead waited for the arrival of an ambulance.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear, based on the information as provided by CW #2 to SO #2 that the Complainant had slapped her in the face, that the police had reasonable grounds to arrest the Complainant for assault contrary to s. 266 of the Criminal Code. As such, the arrest and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the police officers in their attempts to apprehend and handcuff the Complainant, despite the serious injury suffered by the Complainant and the opinions of the medical experts, on all of the evidence, I can find no support for the contention that any more force was used than that required to pull the Complainant to the ground in order to gain control and handcuff him, but that the force of the fall increased when the Complainant, as a result of his struggling, caused both officers to fall with him. While I am unable to say if the officers fell on top of the Complainant, with SO #1 specifically indicating that they did not and the Complainant indicating that they did, in the circumstances, where the Complainant was actively resisting and all three parties were involved in a fast moving and fluid situation, I can see how the exact movements of each party involved may not have been all that clear to any of the parties. In these circumstances, I am of the opinion that taking the Complainant to the ground in order to place him in handcuffs, when he repeatedly and consistently resisted the police officers and his arrest, was appropriate and could not be classified as 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.

Before closing, I wish to address the concerns expressed by the Complainant to the officers at the scene that he was only being arrested for domestic assault because he was male and that police automatically profiled the male as the aggressor in any domestic violence situation. It is true that as a reaction to a history wherein domestic violence against women was often dismissed or police looked the other way, the courts, and consequently the police, have taken a tougher view of domestic violence. In SO #1’s statement, he indicated that once grounds had been formed to arrest for an assault, there was no negotiating, but that police had to arrest and had no choice. On the evidence in this matter, however, the police here did indeed have reasonable grounds to arrest the Complainant for domestic assault and it was not simply a knee-jerk reaction, in that SO #2 first spoke with CW #2 and got her version of events and he then followed that up by asking the Complainant for his side of the story.

Having interviewed both parties and ascertaining that there were reasonable grounds to arrest, the fact that the Complainant had documentation that he had been acquitted of domestic assault in the past involving his wife, did not negate those reasonable grounds, and SO #1 was correct in indicating, in that situation, they had to arrest and had no choice; which choice would have been to turn a blind eye to the allegation of domestic violence. Simply because a previous charge has been dismissed, does not mean that a complainant in a situation of domestic violence is forever afterward without credibility and therefore it is open season to assault him or her in the future without fear that the police will step in. In this case, the police officers acted appropriately when they advised the Complainant that they had reasonable grounds to arrest him and that it was open to him to present his documentation to his counsel, or at trial, in order to refute that allegation. What was not appropriate was the Complainant thinking that he had a free pass and did not have to comply with the police officers when they were attempting to arrest him simply because he had been acquitted of the same charge in the past.

In the final analysis, despite the serious nature of the Complainant’s injury and the fact that it was undeniably caused during his interaction with police, I can find no evidence upon which to find reasonable grounds to believe that either officer resorted to an excessive use of force. On all of the evidence, it is clear that the Complainant would not have been injured had he chosen not to fight the police officers who were trying to arrest him and simply waited for his day in court, rather than struggling and resisting his arrest and causing the fall of all three of them to the ground, which led to his injury. On these facts, the evidence does not satisfy me that there are reasonable grounds to believe that a criminal offence was perpetrated here by either police officer and no charges shall issue.

Date: February 27, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] https://www.ncbi.nlm.nih.gov/pubmed/?term=acetabular+fractures+with+hip+dislocation [Back to text]