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 54-year-old man during his arrest on October 8, 2016.

Notification of the SIU

On February 13, 2017, at 10:35 a.m., the London Police Service (LPS) notified the SIU of the custody injury of the Complainant.

LPS reported that on October 8, 2016, at 7:25 p.m., the Complainant was arrested by SO #1 and SO #2 at a residence owned by himself and Civilian Witness (CW) #1. He was grounded and his hands were handcuffed behind his back. The Complainant complained of pain and was taken to the hospital on the same day, but was medically cleared and subsequently released from police custody.

On October 10, 2016, a staff member from the hospital called the Complainant and told him he had a collapsed lung. Although the Complainant did not initially complain of an injury, the LPS became aware of the injury as a result of an Office of the Independent Police Review Director (OIPRD) complaint which he submitted.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness officers

None

Subject officers

SO #1 Interviewed, and notes received and reviewed.

SO #2 Interviewed, and notes received and reviewed.

During the early evening of October 8, 2016, the Complainant had parked his boat in the driveway of the vacant residence that he owned with CW #1, thereby preventing any access to the front door. When CW #1 and CW #2 attended and attempted to enter the home, they were prevented from doing so because of the boat.

The Complainant, who was across the street in his truck at the time, called 911 as he believed CW #1 would damage the boat. CW #1 also called 911. SO #1 and SO #2 responded to the call.

When SO #1 and SO #2 arrived, they spoke to both the Complainant and CW #1. The officers advised the two men that because they both owned the home, there was nothing they could do about the boat blocking access into the home. The Complainant was belligerent towards SO #1 and SO #2, and went to his truck and consumed two vodka coolers. SO #2 warned the Complainant about drinking alcohol and driving a vehicle. The Complainant continued to yell at SO #1 and SO #2.

While CW #1 attempted to move the boat in the presence of the officers, the Complainant became upset and drove his truck quickly towards the hitch of the trailer, nearly hitting CW #1. SO #1 and SO #2 approached the driver’s side of the Complainant’s truck and demanded that he get out. The Complainant refused to exit the truck. The officers pulled the Complainant out and grounded him. The Complainant’s hands were handcuffed behind his back and he was placed inside of SO #1’s cruiser and taken to the police station.

While the Complainant was in a cell at the station, he complained of back pain and was taken to the hospital. An x-ray of the Complainant’s chest was taken and he was medically cleared and discharged, and released from police custody.

A short time later, another doctor from the hospital called the Complainant and told him that his chest x-ray report was misread and that he had a collapsed left lung. On October 12, 2016, the Complainant went to the police station and filed an OIPRD complaint.

Materials obtained from Police Service

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

• Prosecution Summary – the Complainant
• Communications Recordings
• Booking cell video
• LPS interview (audio and transcript) with the Complainant
• Prepared statements – SO #1 and SO #2
• Prepared statements of two non-designated officers
• Notes of one non-designated officer, and
• LPS Use of Force Procedure

Section 249(1), Criminal Code - Dangerous operation of motor vehicles, vessels and aircraft

(1) Every one commits an offence who operates

1. a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place…

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 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. causes bodily harm to the complainant

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 430, Criminal Code – Mischief

430 (1) Every one commits mischief who wilfully

1. destroys or damages property
2. renders property dangerous, useless, inoperative or ineffective
3. obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
4. obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property…

(3) Every one who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars

1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
2. is guilty of 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.

In the evening of October 8, 2016, the Complainant was arrested by members of the LPS. Following this encounter, the Complainant was diagnosed with a left pneumothorax (puncture of the lung). For the reasons that follow, I am unable to form reasonable grounds to believe that SO #1 or SO #2 committed a criminal offence in relation to the injuries sustained by the Complainant.

Prior to October 8, 2016, the Complainant had parked his 26-foot [7.92 metre] boat and trailer in the driveway of the residence jointly owned with CW #1. Due to the length of the boat, it blocked access to the front entrance door.

On October 8, 2016, the Complainant arrived at the address, and found CW #1 and CW #2 standing in the driveway. CW #1 was rocking his boat back and forth in an attempt to move it to gain access to the front door. As a result, the Complainant called 911 and requested police assistance, reporting that CW #1 and CW #2 were trying to cause damage to his boat. CW #1 also called 911, stating he felt threatened by the Complainant, who was parked outside his house staring at him and CW #2. He told the dispatcher that the Complainant had schizophrenia, and had been harassing and threatening them recently. Officers were dispatched at 6:39 p.m.

At 6:45 p.m., SO #1 and SO #2 arrived and spoke to both the Complainant and CW #1. The officers told them that since they both owned the residence, there was nothing the officers could do about the location of the boat. For almost an hour, SO #1 and SO #2 tried to help the Complainant and CW #1 settle their differences. According to SO #1, the Complainant was argumentative and acting childish. CW #1 told the officers that the Complainant suffered from schizophrenia. SO #1 advised them that there was nothing he or SO #2 could do since the situation was a civil matter. The Complainant told SO #1 and SO #2 to leave the property if they were not going to arrest him.

As SO #1 and SO #2 walked back to their cruisers, the Complainant went to his truck and consumed two bottles of Mike’s Hard Lemonade[1] in view of the officers. SO #2 warned the Complainant not to drink alcohol and drive. However, the Complainant continued to be belligerent and yell at the officers.

Meanwhile, CW #1 had taken hold of the hitch of the trailer and was rocking it back and forth, attempting to move it forward and away from the doorway. The Complainant noticed what he was doing and became upset. He got into his truck, revved his engine and drove forward into the hitch of the trailer, nearly hitting CW #1. SO #1 and SO #2 saw his truck impact the trailer with such force that the front of the truck lifted up. The officers could not see where CW #1 was, and were concerned.

SO #1 and SO #2 ran to the driver’s side door of the Complainant’s truck and heard the engine still revving. SO #2 opened the driver’s side door and demanded the Complainant get out of the truck. The Complainant was still holding a bottle of Mike’s Hard Lemonade in his right hand, and leaned further into the truck. SO #2 reached into the truck and grabbed the Complainant’s left forearm and pulled him out of the truck with the assistance of SO #1. According to SO #1, they grounded the Complainant in a controlled manner so he landed on his upper chest and did not hit his head. SO #2 recalled that when the Complainant’s feet landed on the ground, he took hold of the Complainant’s neck area and guided him to the ground so that his knees made contact with the ground prior to his chest and the Complainant landed on his left side.

SO #1 and SO #2 crouched over the Complainant. SO #1 had his knee on the left side of the Complainant’s back, while SO #2 had his knee on the other side of his back, holding him down as they attempted to handcuff him. Initially the Complainant pulled his arms away, but quickly complied and was handcuffed with his hands behind his back.

At 7:25 p.m., SO #1 advised the Complainant that he was under arrest for dangerous operation of a motor vehicle. He was placed in the back seat of SO #1’s cruiser and transported to the station. SO #2 stayed and took a statement from CW #1, who informed SO #2 that he was not injured. After a discussion with the booking sergeant, SO #1 altered the charges and re-arrested the Complainant for assault with a weapon and mischief over $5000 for denying access to the house.

At 9:21 p.m., SO #1 and SO #2 learned from the booking sergeant that the Complainant had complained of numbness and back pain at the station, and required medical attention. At 10:16 p.m., the Complainant was transported by ambulance to the hospital accompanied by SO #2, while SO #1 followed in his cruiser. When the Complainant arrived at the hospital, he had x-rays taken. On October 9, 2016, at 1:05 a.m., the doctor advised the officers that the Complainant had no visible bruising or swelling and had not sustained any injuries so was medically cleared. He was discharged from hospital and released from police custody at the same time.

Later that morning, another doctor from the hospital called the Complainant and told him that his chest x-ray report had since been read by a radiologist and he had a left pneumothorax. The doctor suggested he return to hospital for a repeat x-ray but the Complainant preferred to follow up with his family doctor.

On October 12, 2016, the Complainant went to the police station and filed an OIPRD complaint. On February 2, 2017, the Complainant was interviewed by a LPS sergeant about the injuries he alleged were caused by the police on October 8, 2016. The SIU was not notified until February 13, 2017.

I will first address whether SO #1 and SO #2 had the authority to arrest the Complainant. At the time of the incident, SO #1 and SO #2 had reasonable grounds to believe that the Complainant had committed the offence of assault with a weapon and/or dangerous driving contrary to section 249 of the Criminal Code. In R. v. Beatty, [2008] 1 S.C.R. 49, the Supreme Court of Canada held that section 249 requires that the driving in question be dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place, and the driving must be such that it amounts to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. All of the witnesses, except for the Complainant, recounted the Complainant acting aggressively and driving his truck at a high speed in a residential driveway towards CW #1 and the boat trailer. CW #1 had to jump out of the way of the truck. SO #1 and SO #2 saw the vehicle impact the trailer with such force that the front of the truck was lifted up. SO #1 even recalled the front tires being lifted off the ground at a 30 degree angle. In addition, the Complainant admitted to drinking two alcoholic drinks immediately prior to his driving forward and SO #2 described him holding one of the drinks in his hand while driving. The Complainant refused to follow SO #2’s direction to get out of his truck. At that point, I am satisfied that SO #1 and SO #2 had grounds to take a hold of and arrest the Complainant. Furthermore, I find on these facts that it was necessary for the officers to do so to prevent the possible recurrence of the offence and to protect the public (particularly CW #1 and CW #2).

Section 25(1) of the Criminal Code entitles police officers to use reasonably necessary force in the lawful execution of their duties. The evidence establishes that the only force used by SO #1 and SO #2 was to pull the Complainant from the truck, take him to the ground and then handcuff him with his hands behind his back. There was no struggle. It appears most probable that the injury to his left lung occurred when he landed on his left or front side as witnessed by SO #2 and CW #1. The current jurisprudence as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, states that police actions should not be judged against a standard of perfection nor should they be expected to measure their force with exactitude. Additionally, the Ontario Court of Appeal in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), held that officers are not expected to measure the degree of their responsive force to a nicety. Regrettably, the Complainant chose, after drinking alcohol and driving his truck aggressively towards his boat and CW #1, not to listen to the officers and did not exit his vehicle at their direction, prompting the officers to respond with what I am satisfied was legally justifiable force in the circumstances.

In the final analysis, I conclude based on this record that there is no evidentiary basis for a finding of excessive force by SO #1 or SO #2. The officers intervened quickly and quite properly to prevent a potentially extremely dangerous situation which resulted, unfortunately, in the Complainant’s serious injury. Consequently, I am satisfied that the actions of the involved officers fell well within the limits prescribed by the criminal law. As a result, no charges will issue and this case will be closed.

Date: January 12, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Confirmed to have an alcohol content of 5.0%, although the Complainant alleged he was drinking beverages with a significantly lower alcohol level. [Back to text]