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 sustained by a 25-year-old man during his arrest on April 2, 2017.

Notification of the SIU

On April 2, 2017 at 9:30 p.m., Peel Regional Police (PRP) notified the SIU of the custody injury to the Complainant.

PRP reported that at 1:30 p.m. on Sunday, April 2, 2017, the PRP Tactical and Rescue Unit (TAC) responded to a call to a rooming house in Mississauga regarding a man [now known to be the Complainant] armed with a knife, breaking into the residence. The Complainant was located in the residence. A Conducted Energy Weapon (CEW) was deployed, and the Complainant was taken to the floor and arrested.

The Complainant was subsequently taken to the hospital and diagnosed with a broken orbital bone to his left eye.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 2

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, sketches and measurements.

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

Subject officers

SO #1 Interviewed, and notes received and reviewed.

SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

SO #3 Declined interview and to provide notes, as is the subject officer’s legal right.

During the afternoon of April 2, 2017, the Complainant attended at CW #2’s residence in Mississauga. CW #2 was not there. CW #1 watched the Complainant walk in through the unlocked front door of the residence, get a butter knife from the kitchen, and use it to open CW #2’s locked bedroom door. CW #1 also lived in the residence and claimed to police and SIU investigators that he had no idea who the Complainant was. CW #1 confronted the Complainant, who told CW #1 that he had CW #2’s permission to be there. The Complainant entered CW #2’s bedroom and fell asleep on a mattress on the floor. CW #1 called 911 and reported that an unknown man had entered the residence and used a knife to enter a bedroom and was now locked inside.

Several PRP officers, including those from the TAC Unit, attended the residence and attempted to get the Complainant to exit the bedroom. The Complainant did not respond to the officers. As the Complainant still had the knife in the room with him, SO #1 was concerned that he was barricaded inside or was holding a hostage. SO #2 attended at the bedroom door and knocked, and the door unexpectedly opened on its own. The Complainant was on a mattress, covered with a blanket, with his hands under his body. SO #1, SO #2, SO #3 and WO #6 entered the room and ordered the Complainant to show his hands. The Complainant ignored the officers’ commands.

Each of SO #1, SO #2 and SO #3 discharged their CEWSO #2 also kicked towards the Complainant’s arm, in an effort to dislodge the knife in the event that the Complainant was still holding it, but hit the side of the Complainant’s head instead. An unknown officer struck the Complainant on the face with his fist. The Complainant was dragged off the mattress and eventually handcuffed and rolled over. He had obvious facial injuries.

Paramedics attended and transported the Complainant to the hospital. He was diagnosed with a fracture to his left inferior orbital wall and a fracture to his left maxillary sinus wall.

The scene

The residence was a two-storey multi-bedroom rooming house located on the north side of the roadway. Upon entry through the front (south) facing door, one entered into a common hall. On the right was an entranceway to a living room and at the east side of the living room was the entrance door to the bedroom where the interaction occurred.

There was an access way to the kitchen on the north side of the living room and also from the entrance hallway. The kitchen had its cupboards and counter on the north wall. Located on top of the counter was a drying rack with numerous cutlery and plates visible.

The involved bedroom occupied the southeast corner of the main floor. The door had a lockable door latch. The doorjamb strike plate was damaged with a screw lying on the floor beneath it.

The bedroom consisted of two mattresses and box springs in front of the east and west walls. The mattress in front of the west wall was relatively neatly made up. The mattress in front of the east wall was overturned with the box spring lying on top of the mattress and slightly askew. There were clothing items tossed on the ground as well as a cellular phone and assorted cards.

Located on top of the west side mattress was a 22.5 cm overall length green handled butter type knife. On the floor between the two mattresses were numerous CEW discharge components. There were also small pieces of CEW wire. There were six CEW blast doors, plastic separators, and probe guards located on the floor.

Scene diagram

Physical evidence

The knife

Below is a photo of the knife seized from the bedroom:

CEW downloads

On April 3, 2017, the CEWs were examined and the records of their deployment downloaded. The download provided the following information:

SO #1 deployed his CEW on one occasion for five seconds.

SO #2 deployed his CEW on three occasions. The first was a five second cycle, the second for nine seconds, and the third for three seconds.

SO #3 deployed his CEW for one five second cycle.

Ambulance call report

At 2:23 p.m. on April 2, 2017, a Peel Regional Paramedic Services (PRPS) ambulance attended to the Complainant at a residence in Mississauga. The Complainant, who was handcuffed with flexi handcuffs, was in the company of members of the PRPS)> TAC team. The Complainant informed the paramedics he had been arrested on April 1, 2017, by the PRP, and had spent the night in police custody.

He informed the paramedics he had attended court on the morning of April 2, 2017, from where he had been released and went to the house of a friend [now known to be CW #2]. His friend was not at home, so the Complainant lay down and went to sleep.

The paramedics were informed by PRP that they had received a call regarding a man, [now known to have been the Complainant], who did not live at the address who had entered a room in the property and had refused to come out of the room. PRP told the paramedics the TAC team had entered the room the Complainant was in. A CEW had been deployed on the Complainant and he had sustained trauma to his face.

On examining the Complainant, the paramedics found him to be alert, orientated, and his breathing was normal with no obvious signs of respiratory distress. The Complainant’s primary problem was facial trauma and facial pain. The Complainant had swelling and contusions to both his eyes but no neck pain. He also had swelling and redness to, and behind, his left ear. The Complainant did not have any abdominal pain, nausea, or vomiting.

The paramedics found puncture wounds to the Complainant’s left abdomen and right forearm. He was found to have redness to his back, but no back pain. On examination of the Complainant’s abdomen, the paramedics found some dried blood but no other evidence of trauma. The Complainant was transported by ambulance to the hospital.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications recordings

PRP 911 communications recording

CW #1 called 911 and reported an unknown man having entered his residence and had taken a knife from the kitchen and forced open a locked bedroom door.

911 call taker

911 do you want police, fire or ambulance?

CW #1

Police.

911 call taker

You have the police, where is your emergency?

CW #1

Yes I just got a guy just walked in the house just then and opening doors with knife…I don’t know who he is.

911 call taker

Where are you calling from?

CW #1

[Address of the residence].

911 call taker

Okay and you live here…okay and so who is this person that’s in your house?

CW #1

I don’t know him.

PRP 911 Radio Communications

The PRP radio communications recordings were reviewed and found to be consistent with the 911 telephone call:

Radio dispatcher

All units [address of the residence], the main floor, the complainant said an unknown male just walked into the house, grabbed a kitchen knife, went up to one of the bedrooms, and is trying to use the knife to unlock the bedroom door. The complainant is now waiting outside there is no one else in the house…21-110;

Radio dispatcher

Just to advise you of this call at [address of the residence]. Male party…unknown male party walked in the house, grabbed a knife from the kitchen, went up to one of the bedrooms and is trying to unlock the door. Nobody else in the house, the complainant is outside.

WO #4

10-4….show me heading over. Just notify TAC please and get any recent history on the house.

10-4…just advise TAC we are going to set a perimeter up until we can make contact with the party and determine what is going on. Party comes out we’ll have to make a decision at that time. I’ll be en route.

Radio dispatcher

TAC-1…10-4…it’s going to be [address of the residence]. Unknown male party had entered the residence, taken what appears to be a butter knife from the kitchen and gone upstairs, to try and get into one of the rooms.

WO #1

110 be advised I can hear a male voice inside the house but he did not respond to any police announcements.

SO #1

Just confirm…(inaudible)….contact the Medics please and a Canine (K9).

WO #4

Delta days to those officers, can you talk to the other occupants out there with you to see if you can determine who is the occupant of that room and where they may be at this time. Get a name so we can start doing some enquiries.

The officers have containment set to one room. They’re inside the house and the party is inside the one room, the door closed and not communicating, but just for TAC there is no other way in or out of that room but the door the officers are on.

SO #1

TAC-1 we are attempting more call outs.

TAC-1 still no response we will be attempting a door knock.

TAC-1 we have one party in custody…injury to the eye and he has been tasered.

Materials obtained from Police Service

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

• Communications recordings
• Activity Log Report
• Audio Copy Report - 911 Calls
• Audio Copy Report - Dispatch and Radio Transmissions
• Audio Copy Report - Tactical 1 Radio
• Event Chronology
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6 and WO #7
• Occurrence Details Reports
• Prisoner Details Report
• Procedure - Use of Force
• Procedure - Critical Incident Alert
• PRPCW #1 and CW #2, and
• Training Records – SO #1, SO #2 and SO #3

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 April 2^nd, 2017, a 911 call was received at 1:30:42 p.m. by the 911 call taker for PRP. The call, from CW #1, requested police assistance and reported that he was a resident of a home in the City of Mississauga and that a male had just walked into the residence and opened one of the bedroom doors using a knife. CW #1 advised that this person was not known to him. As a result, a dispatch went out advising all units that an unknown male had just entered the residence and had grabbed a knife out of the kitchen and was trying to use it to unlock a bedroom door. Numerous units responded and the Complainant was eventually arrested and removed from the residence, after which he was taken to hospital and diagnosed with a fracture to his left inferior orbital wall and a fracture to his left maxillary sinus wall.

The Complainant, in his statement to investigators, alleged that he had CW #2’s permission to be in the house and the bedroom, but did not dispute that he used a piece of cutlery to unlock the bedroom door and let himself in. The Complainant had no recollection of anyone knocking on the door. He alleged that he woke from sleep while he was being beaten by several police officers who then dragged him from the mattress onto the floor and deployed their CEW

CW #1, in his statement to PRP, advised that he was at his address on the afternoon of April 2^nd, 2017, when he observed a man, who was not known to him, exit a taxi in front of his residence, walk into the house through the unlocked front door and enter the kitchen. CW #1 observed the man to take a butter knife and then approach CW #2’s bedroom where he used the knife to unlock the door. CW #1 advised that he tried to stop the man and told him that he could not do that and if he continued, he would call the police. CW #1 advised that the man told him to call the police if he wanted and that he had permission from CW #2 to enter the bedroom. CW #1 called 911. As is clear from the recording, at no time did CW #1 advise police that the man had indicated to him that he had CW #2’s permission to enter his bedroom.

As a result of the dispatch to all available units, eleven PRP officers attended at the residence in response to the call for an unknown male with a knife inside the residence, including SO #1 from the TAC Unit and the Duty Inspector.

Following the general dispatch to all units, a separate transmission was then made to WO #4, who requested that the TAC Unit be notified and that he would wait until the first officer on scene notified him as to what was going on. Further conversation between the 911 call taker and CW #1 elicited further information wherein CW #1 described the knife taken as a butter knife, and in response to whether or not this was a rooming house, CW #1 indicated “not really”, only three people lived there. CW #1 repeatedly advised the call taker that he had never seen this male before and he had no idea who he was.

WO #1 was the first officer to arrive and WO #3 arrived seconds later. While WO #3 covered the rear of the residence, WO #1 met with CW #1 who repeated the information he had provided in the 911 call. CW #1 confirmed that the male person was still inside the bedroom, which he pointed out to WO #1. WO #1 was then joined by WO #2 inside the residence and called out several times identifying the police presence in the residence to whomever was in the bedroom, but received no response. WO #1 awaited the arrival of additional units while maintaining observation of the bedroom with WO #2, who had his CEW drawn. From his location, WO #1 was able to hear the person inside the bedroom speaking on a cell phone.

WO #4 advised that while en route to the address, he requested the TAC Unit to attend due to the information received that the male inside the house had an edged weapon. Upon arrival at the residence, at approximately 1:46 p.m., WO #4 met with the officers on scene and ensured the house was evacuated. At 1:50 p.m., SO #1 and WO #5 from the TAC Unit arrived at the address and officers took up containment positions inside the residence. WO #2 advised SO #1 that he was pretty sure that the male was inside the bedroom as he had heard a voice from inside, but there had been no response to his callout, thus he was unable to confirm whether or not the resident was also inside the bedroom.

As a result of the information that he had been provided, SO #1 was of the view that the call was either a barricaded man or a hostage situation since the male had entered the residence with people inside, grabbed a knife and entered the bedroom. SO #1 instructed WO #5 to call out to the bedroom and identify them as the PRP TAC Unit and that the male needed to come out with his hands in the air. At that point, SO #1 notified TAC medics, the K9 unit and the Duty Inspector. The Duty Inspector was advised of the situation and later arrived on scene and met with SO #1. A plan was formulated wherein it was decided that a call out to the occupant would be made, and if that failed, it was to be followed by a knock at the door using a shield. If that failed, the door would be breached and they would try to control the male with time and distance. This plan was authorized by the Duty Inspector. The team entering the house consisted of WO #6 with a shield, SO #2 with a long gun, SO #3 with the breaching equipment and SO #1. Each officer was additionally equipped with both lethal and non-lethal use of force options, including their service firearms and CEW

At 2:30 p.m., SO #1 and the team entered the house and WO #6 made loud call outs of “come to the door” and “respond to my voice”, but there was no response. WO #3, who was located outside of CW #2’s bedroom window, advised that she was able to clearly hear the multiple shout outs coming from within the house and at no time did she hear any response.

At 2:31 p.m., TAC members moved up in the line-up and SO #2 did a door knock with his foot and the door unexpectedly opened, at which point the Complainant was seen lying on the furthest mattress, on his right side, facing away from the police officers. The Complainant had a blanket pulled up and his hands were not visible. WO #6 shouted out to let other team members know that they had seen the Complainant while SO #2 focused on the Complainant. SO #2 then loudly shouted “show me your hands” and “let me see your hands”, and the Complainant lifted his head up, looked over at the police officers and then again turned away, ignoring them. At no time did the Complainant comply or even acknowledge any police commands.

SO #2 advised that as he had not located the knife, he feared for the safety of the team as well as his own, and shouted out again “show me your hands” and “let me see your hands”; still with no response. SO #1 advised that all of the TAC members shouted at the Complainant to show his hands and that the Complainant was awake and looked at them, but then pulled the blanket up over his body, obstructing any view of his hands. At that point, SO #2 deployed his CEW at the Complainant, but it appeared to be ineffective and there was no response. SO #2 deployed his CEW a second time, which was also deemed to be unsuccessful, likely due to the blankets and clothing which obstructed the path of the probes from making contact with the Complainant. SO #1 observed SO #3 also deploy his CEW, which SO #1 observed to be ineffective as the Complainant’s body did not lock up. SO #1 then moved in between SO #2 and SO #3 and pulled the blanket off of the Complainant, whereupon the Complainant lowered his hands towards his waistband and SO #1 deployed his CEW. On that occasion, the CEW was effective and the Complainant’s body locked up. SO #1 advised that he deployed his CEW because it was a less lethal use of force option and, as the Complainant was not complying and SO #1 did not know where the knife was or what kind of knife was involved, they needed to take him into custody.

SO #1 advised that after five seconds, as soon as his CEW stopped cycling, the Complainant again went to lower his hands and he was ordered to keep his hands up, but continued to lower his hands towards his waistband, at which point he was pulled off the bed onto the floor, landing face down with both arms locked underneath his body. SO #1 was unsure whether or not the Complainant’s face struck the floor when he was pulled off.

SO #2 advised that he observed multiple CEW wires all mixed up in the blanket and by the Complainant and he did not want to reach in with his hand because of the risk that he could be shocked by the wires if the CEW was still cycling. SO #2 observed the Complainant try to push himself up off of the floor and, in an attempt to sweep the Complainant’s left arm with his right foot and thereby prevent him getting up, SO #2 inadvertently struck the Complainant on the left side of his face as he swung his boot and the Complainant simultaneously turned his head. SO #2 advised that he had kicked out at the Complainant’s left arm with full force in order to attempt to gain control of the Complainant’s left arm, and that his boot then struck the Complainant’s face on the left side and might be responsible for the injury to his left eye. SO #2 advised that the Complainant continued to actively resist and again placed his hands under his body, despite continued commands to show his hands and to stop resisting. As a result, SO #2 removed the cartridge from his CEW and used it to dry stun the lower back area of the Complainant hoping that would allow officers to gain control of him. Again the CEW appeared to have limited effect on the Complainant.

SO #2 advised that he did observe one distractionary strike delivered to the Complainant, but in the melee he was unable to determine who had delivered that strike. The strike was described by SO #2 as a closed fist which connected with the right side of the Complainant’s face.

SO #1 then jumped onto the Complainant’s back and put his knee into his back to prevent him getting up or getting his arms out from underneath his body. At that point, SO #1 was unsure whether or not the Complainant was armed. While SO #1 was attempting to pull out the Complainant’s left arm from under his body, SO #3 was trying to get the other arm out and, eventually, the officers were able to restrain and handcuff the Complainant.

The CEW download data from SO #2’s CEW confirmed that he deployed his CEW three times on April 2^nd, first for a period of five seconds, followed by a second deployment for nine seconds, and a third for three seconds. The CEW download data from SO #3’s CEW confirmed he deployed his CEW once for a period of five seconds. The CEW download data from SO #1’s CEW confirmed he deployed his CEW once for a period of five seconds.

On this record, it is unclear whether or not CW #1 deliberately omitted to provide information or attempted to mislead police when he advised them that the male who had entered his home was a random stranger whose identity he had “no idea” of, despite the Complainant having been a prior frequent visitor to CW #2’s room and having stayed there in the past for a period of up to ten days, as well as when he claimed that the residence was not a rooming house and finally when he failed to advise the police that the Complainant appeared to be ‘out of it’ and had told him that he had CW #2’s permission to use the room. What is equally puzzling is CW #2’s statement to PRP that no one had permission to be in his room, despite his later statement to SIU investigators that the Complainant had his permission to use his bedroom and had stayed with him for a week to ten days in the past.

What is clear, however, is that the PRP reacted appropriately, given the information at their disposal, and pursuant to police policy when they received information that a random stranger had apparently walked in through the unlocked front door of a private residence, armed himself with a knife, broken into a bedroom, and then locked himself in, and that they treated the matter seriously. It is clear that they did not have the luxury of sitting and waiting while they had information that an armed male was in a locked room and they were unable to confirm whether or not the resident of the room was also in the room with him and at risk.

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. I will first consider the lawfulness of the Complainant’s apprehension. Based on the information provided to the 911 call taker, and later repeated by CW #1 to the officers who attended in response to the call, the officers had reasonable grounds to believe that an unknown male had entered a private residence without permission, that he had refused to leave when directed to do so by the resident of the home, that he had armed himself with a knife and he was locked in a bedroom, possibly with the legal resident, and had refused to respond to numerous loud and clear commands to come out and to identify himself. Therefore it is clear that the officers had reasonable grounds to believe that at the very least, the Complainant was trespassing on the property and had refused to leave when directed, but they also had reasonable grounds to believe that the Complainant had committed a break and enter into a residence, was armed with a dangerous weapon, and, as indicated by SO #1, had either barricaded himself in the room or may possibly have put the lawful occupant of the room into a hostage situation. As such, the apprehension of the Complainant was not only legally justified in the circumstances, but the police officers would have been derelict in their duties had they not investigated the circumstances and ensured the safety of all persons possibly present in the room with the Complainant. While in hindsight, the information provided by CW #1 may have been false, or at the very least, not complete, the police did not have the luxury of taking that chance and thereby putting the lives of the residents of the home at risk.

With respect to the amount of force used by officers in their attempts to apprehend and then subdue the Complainant, I find that their behaviour was justified in the circumstances and that they used no more force than necessary to safely apprehend the Complainant. On the evidence it is clear that police exhausted all options to safely, and with minimal force, get the Complainant to exit the locked room and meet with police. Their actions progressed from calling out to the Complainant, identifying themselves as police officers and asking him to come out and show his hands, to knocking on his door, to entering the bedroom while continuing to shout out commands to the Complainant, all to ensure a safe resolution to the situation. It is clear from all officers who were either inside or outside of the residence, that the commands shouted by various and many of the police officers over an extended period of time were loud, clear and capable of being heard both within and outside of the residence. While it is unclear why the Complainant did not respond to the commands, what is clear is that all of the police officers made every effort to make contact with the Complainant to no avail. This would obviously have caused them to have further suspicions as to what was going on inside the locked bedroom, in light of the information in their possession that the male in the room was armed with a knife, and the information from CW #1 that the male was unknown to him.

After having entered the room, the Complainant’s behaviour in failing to show his hands and ignoring the officers’ repeated commands would reasonably have caused the officers concern about the Complainant’s intentions and whether or not he was armed underneath his blanket and a threat to them. Additionally, the Complainant’s resistance to the CEW bursts would legitimately have caused the officers to fear that they were going to be unable to gain control of the Complainant, who appeared to be immune to all less lethal use of force options. Even after the blanket had been removed and SO #2 put his CEW directly onto the Complainant, it appeared to have a very limited effect.

On this record, I find that the actions of the officers progressed in a measured and proportionate fashion to the Complainant’s resistance and the risk that officers believed they were facing at the time due to the information provided to them by CW #1. Additionally, I note that both SO #1 and SO #2, when they finally made contact with the Complainant, described him as appearing to be high on drugs or as if he was under the influence of alcohol or drugs or suffering from some sort of mental illness, which would appear to be confirmed by the observations of CW #1, as well as the Complainant’s apparent indifference to the deployments of the CEWs and the fact that he was so intensely unaware of everything that was going on around him which was described by various officers as loud, clear and overt and in no way quiet or stealthy. Short of a coma or some kind of drug induced mental state, it is difficult to perceive how the Complainant could have been so totally oblivious to all of the police activity around him.

I find on the evidence before me that the Complainant most likely received his injury when SO #2, in attempting to sweep the Complainant’s left arm away in order to gain control, inadvertently struck him in the face full force with his boot, although it is possible that the injury was caused by the distractionary strike delivered by one of the officers as witnessed by SO #2, or when the Complainant hit the floor face down when he was dragged from the mattress. Whatever the mechanism of his injury, it is clear that it was caused by the actions of police in attempting to apprehend him and, while I find that his injury was caused by the police, I find that pursuant to section 25(1) of the Criminal Code, the officers involved used no more force than was reasonably necessary in the execution of their lawful duties in apprehending a possibly armed intruder into a private residence against whom numerous deployments of a CEW had proven to be ineffective. In coming to this conclusion, I am mindful that the response by the officers was fueled by the information in their possession at the time that the Complainant was possibly armed and dangerous, as well as the fact that things were moving very quickly and that the officers had a heightened sense of danger due to the information that they had been provided and the Complainant’s response, or lack thereof.

Furthermore, I have considered 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 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety. On this record, it is clear that the force used by the TAC team members in safely apprehending and subduing the Complainant fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention and to remove the risk that he continued to pose as long as he remained in a locked room and possibly armed.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention, and the manner in which it was carried out, were lawful notwithstanding the injury which he suffered. 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: January 31, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit