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 of a 27-year-old man that was discovered following his arrest on May 4, 2017.

Notification of the SIU

At 1:20 a.m. on May 5, 2017, the Stratford Police Service (SPS) notified the SIU of the serious injury sustained by the Complainant during his arrest earlier that evening.

The SPS reported that at 8:45 p.m. on May 4, 2017, the Subject Officer (SO) started following a yellow Corvette vehicle that he knew to be associated with the local drug trade. In order to identify the two occupants, the SO stopped the vehicle on Vivian Line, a rural road. The passenger, the Complainant, exited the vehicle and fled into an adjacent farmer’s field with the SO in foot pursuit. The Complainant was arrested shortly thereafter in the field after a struggle with the SO. Subsequent medical examinations of the Complainant revealed a fracture to a vertebra.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

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 and photography.

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Not interviewed[1]

CW #3 Not interviewed[2]

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

During the evening hours of May 4, 2017, the SO was driving an unmarked SPS van, equipped with emergency lighting. At one point, the SO saw a yellow Corvette which he knew was owned by a man who was facing outstanding arrest warrants.

To prevent a police pursuit, the SO requested that marked uniformed police vehicles make their way into the area as he continued to follow the Corvette. The SO activated his emergency lights, but the Corvette immediately turned into a farm house laneway. The SO pulled in behind, and approached the driver, who was identified as CW #3.

The Complainant was the passenger in the Corvette, and immediately got out of the vehicle. Although the Complainant was wearing a coloured wig at the time, the SO recognized him as also having an outstanding arrest warrant. When the SO asked CW #3 for her identification and paperwork for the Corvette, the Complainant immediately took flight on foot through the adjoining field. The SO yelled for the Complainant to stop and that he was under arrest as he ran after him through the field. The Complainant went over two electric fences and continued to run.

The Complainant became exhausted and began to slow down. The SO deployed his Conducted Energy Weapon (CEW) at the Complainant, but it did not cycle properly. The SO dropped the CEW and tackled the Complainant, taking him to the ground with the SO on top of him. The Complainant struggled and the SO punched him several times on the head in an effort to get the Complainant’s hands out from under his body. Nearby, WO #6, who was following at a distance, became entangled on the electric fence and was screaming that he was being electrocuted. WO #3 finally arrived to assist the SO and was able to grab the Complainant’s arms. The Complainant was handcuffed and was brought to his feet.

The Stratford Fire Department and the Emergency Medical Services (EMS) arrived to assist WO #6, and the Complainant advised the paramedics that he had injured his back.

The Complainant was taken to the hospital and diagnosed with a lumbar vertebra fracture. The attending physician noted only minimal thoracolumbar scoliosis, concluding, “No definitive dislocation is seen.” A subsequent examination by another doctor noted a mild generalized disc bulging at the fourth and fifth lumbar levels.

The Scene

The scene was the field east of the intersection of Vivian Line and Romeo Street in Stratford.

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

All 160 communications tracks were scrutinized and contained communications related to this event and also some unrelated events. Most of the files were duplicates.

File 1 Channel 1 – 2017-05-05 00:44:47 hrs (09:27 in length)

• The SO called the dispatcher on his cellular telephone and asked for the registration of the plate attached to a yellow Corvette
• The dispatcher confirmed the plate was registered to a male (the Registered Owner)
• The SO said he was northbound on Romeo Drive and thought the Registered Owner was going to another known male’s home[3];
• The SO announced he was going to pull the vehicle over and the dispatcher arranged for WO #4 and WO #6 to assist the SO
• The SO said the Corvette made a right on Vivian Line and then pulled into the farm lane of the house the SO had mentioned
• The SO announced he was going to stop the Registered Owner
• The SO was heard yelling, "Get back in the car." The man was then identified as the Complainant
• The dispatcher reported hearing the SO say, “Get your hands out of your pocket.” The dispatcher then asked which way the Complainant was running
• Between footage 3:32 and 9:27, the dispatcher remained on the telephone with the SO
• A sound consistent with somebody running with their cellular telephone in a pocket is heard
• The dispatcher reports that the SO and the Complainant are running eastbound
• “Get on the ground” was yelled three times and then the running continued
• “Get on the ground” was yelled again as the running continued
• “Get on the ground” was yelled and then the Complainant said, “Don’t shoot”
• On at least six occasions, the Complainant was told to get on the ground
• The Complainant said something inaudible about punching
• The Complainant was told to turn around and further orders to put his hands behind his back were heard
• The dispatcher reported sounds of the SO wrestling with the Complainant and telling him to put his hands behind his back
• Inaudible screaming and further orders for the Complainant to put his hands behind his back were heard
• In the background a dispatcher reports, “He’s got a gun”, and
• The SO’s telephone connection was terminated

File 8 Channel 16 - 2017-05-05 00:50:29 hrs (04:05 seconds in length)

• The SO yelled, “Get on the ground,” and the Complainant said, “Don’t shoot”
• “Get on the ground” is heard and the Complainant replied, “What did I do?&rdquo
• The Complainant was told to get on the ground and put his hands behind his back
• The Complainant replied, “I am”
• The Complainant was told to, “Put them down”
• The Complainant replied, “I can’t when you punch me”
• The demand was repeated and the Complainant was told to quit moving
• The Complainant was told by the SO to get his hands away from his waist
• The Complainant replied, “You’re hurting me”
• WO #6 began screaming about being caught in the electric fence
• A second dispatcher announces, “He’s got a gun”
• The Complainant was heard in the background saying, “Help, help”, and
• When told to put his hands behind his back, the Complainant said he needed help

File 83 Channel 16 - 2017-05-05 01:25:40 hrs (02:33 seconds in length)

• The SO reported being sore and that he had to warm up because of the prolonged foot pursuit
• The SO said he found a bag containing illicit drugs in the Corvette on top of a purse and the Corvette was being towed back to the office
• The SO reported that the Complainant wore a purple wig and the SO did not know what the Complainant tossed in the field
• The SO said the Complainant had resisted forcefully
• The dispatcher asked if the Complainant had a gun and the SO said that he did not report that the Complainant had a gun, and
• The dispatcher reported that she listened to the recording several times and now thought WO #6 might have mentioned a gun when he was on the fence

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the SPS:

• Communications recordings
• Scenes of Crimes photos taken by WO #2
• Arrest Report of the Complainant
• Arrest Report of CW #3
• Crown Brief Synopsis of the Complainant’s charges
• Crown Brief Synopsis of CW #3’s charges
• Dispatch from Computer Aided Dispatch Details
• General Report authored by WO #2
• Notes of WO #2, WO #3, WO #4, WO #5, WO #6 and WO #7
• SPS Prisoner Booking and Property report for the Complainant
• SPS Prisoner Booking and Property report for CW #3
• Taser Download Report
• Taser Download-X26, and
• Victim Witness List

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 May 4^th, 2017, the SO was in the community in an unmarked police vehicle when he observed a yellow Corvette known to belong to a local alleged drug dealer who the SO knew to have outstanding warrants for his arrest. After requesting that the dispatcher check the licence plate to ensure that the vehicle was actually registered to the alleged suspect, the SO decided to make a vehicle stop. The SO then activated his emergency lighting system. The vehicle eventually stopped, and the SO pulled in behind the vehicle and requested documentation from the driver. The passenger of the vehicle, the Complainant, exited the vehicle and, despite numerous directions by the SO to get back inside the vehicle, he ran from the area with the SO in pursuit. The SO recognized the Complainant and was aware that he was also wanted on a number of outstanding warrants. Following a foot pursuit, the Complainant was arrested and taken to hospital. It is unclear what injuries, if any, the Complainant suffered in his interaction with the police.

The Complainant alleges that his back was injured when the SO used excessive force to apprehend him. Conversely, the SO contends that he exercised no more than a justified amount of force to subdue the Complainant, who was combative and resisted being handcuffed.

During the course of this investigation, one civilian witness in addition to the Complainant and eight police officers, including the SO, were interviewed. Additionally, investigators had access to the communications recordings from the SPS Dispatcher and the memo book entries of the seven police witnesses.

The evidence of CW #3 is fully consistent with that of the SO; contrary to the Complainant’s allegations, at no time did the SO tell the Complainant that he should cooperate or he would be hurt, and it was obvious that the Complainant was looking around as if to run immediately upon the SO approaching the car. The radio dispatcher confirms on the recording hearing the SO telling the Complainant numerous times to get back into the car and to get his hands out of his pocket.

Despite the Complainant’s allegations to the contrary, the SO denies that he told the Complainant to stop running or he would be “Tasered”. This is also confirmed by the communications recording which reveals that the SO yelled at the Complainant on at least six occasions to “get on the ground” while they were running and at one point, the Complainant is heard to say “don’t shoot”. The recording does not reveal the SO ever mentioning a “Taser”.

The Complainant alleges that once he was on the ground, the SO placed his knee on the Complainant’s back, and the SO then placed his hands on the Complainant’s shoulders and pushed his face into the ground at which point he struck the Complainant’s middle back several times with his knee. The Complainant also alleges that he was punched on both sides of his head. The Complainant described specific injuries resulting from these punches, which, if these injuries occurred, are not mentioned anywhere in the Complainant’s medical records. The Complainant also contradicts himself within his statement regarding when he was struck by the SO’s CEW.

The SO, in his evidence, confirmed the majority of the Complainant’s evidence up to the point where he had scaled the second fence and was beginning to slow due to exhaustion. The SO put the entire foot pursuit at approximately one kilometre. The SO, however, describes that the Complainant then stopped, turned and took up a boxing stance with his fists in the air as if prepared to fight the SO. The SO advised that when he came to within 15 feet [4.57 metres] of the Complainant, he dropped his portable radio and took out his CEW and deployed it at the Complainant but he immediately knew that it did not cycle properly due to an odd noise that it was making. The SO then dropped the CEW and moved toward the Complainant. The SO advised that his intent was to put his arms around the Complainant’s body and take him to the ground, but that the Complainant punched him in the face, striking his nose and causing a cut to the bridge of his nose. This evidence is consistent with that of WO #2 who saw the SO after the incident and observed his eyes to be a bit swollen, which would be consistent with a punch to the nose.

The SO advised that he then spun the Complainant around, while simultaneously taking him to the ground, where he landed on his front with his arms beneath his body and the SO on top of him. The SO described the Complainant as reaching down into his pants with the SO repeatedly yelling at the Complainant that he was under arrest and to show his hands; all of which the Complainant appeared to ignore as he resisted all attempts to bring his arms and hands out from under his body. The SO advised that he did not want to get involved in a fist fight with the Complainant while he was alone in a field with him, so instead, he struck the Complainant in the back of the head with a closed fist and hooked his legs underneath the Complainant’s legs to prevent him rolling. At that time, as confirmed by the radio communications recording, a dispatcher is heard to report something about a gun and the SO advised that he became concerned that the Complainant might be armed. Additionally, the SO advised that he was unsure if other officers were going to come and assist him, or go instead to WO #6, who had apparently become entangled in the electrified fence and was heard screaming for help and stating that he was being electrocuted. Consequently, the SO continued to punch the Complainant in the head to get him to bring his hands behind his back until WO #3 finally arrived and grabbed the Complainant’s arm and he was quickly handcuffed. After the arrival of WO #3, the SO advised that the Complainant no longer resisted. This is consistent with the evidence of WO #3. The SO advised that he only learned that the Complainant may have had an injury to his spine when he overheard the Complainant complain to the paramedic. The SO advised that at no time did he contact the Complainant’s back and the only force he used was the CEW and the empty handed strikes to the Complainant’s head. The SO specifically denied delivering any knee strikes to the Complainant’s back.

WO #3 advised that he observed the SO in the field approximately 300 metres away and that it took him approximately two minutes to approach. He further advised that during that time he did not see the SO strike the Complainant or otherwise use any excessive force against him, but did observe that the SO was sprawled on top of the Complainant and that the Complainant had his hands underneath his body. He also observed the CEW on the ground nearby with the wires leading to the Complainant but no aphids on the ground, from which he concluded that the CEW had malfunctioned. The evidence of WO #3 is further consistent with that of the SO in that he heard the SO yell at the Complainant to put his arms behind his back and stop resisting. These repeated commands by the SO are also confirmed in the communications recording.

The medical records of the Complainant indicate that “mild anterior wedging deformity of the T12 and L1 vertebrae” were observed but that the doctor was unable to determine when this occurred. The records go on to refer to the “sclerotic changes” as being “compatible with a Schmorl node deformity, a chronic finding”, which would appear to indicate that the diagnosis was that the deformity was due to Sclerosis (a hardening of the tissues over time) and not a recent traumatic injury. As such, I am unable to find in the medical records of the Complainant any evidence that his interaction with the SO actually caused him any serious injury or if it only aggravated his pre-existing injury. The finding in the medical records appears consistent with the Complainant’s indication that he had previously suffered a back injury and that this appears to have led to sclerosis.

On all of the evidence in this matter, I do not see significant differences between the version of events of the Complainant and that of the SO. The SO readily admitted that he punched the Complainant in the head a number of times to get him to submit and give up his hands for handcuffing. Additionally, it is not in dispute that the Complainant fled from police, that he disobeyed all commands to stop and get on the ground, that he scaled two fences in his efforts to get away, that the SO deployed his CEW at the Complainant but that it was ineffective, and that the SO eventually took him to the ground and landed on top of him. The only real inconsistencies between the SO’s evidence and that of the Complainant is the allegation by the SO that the Complainant took up a boxer’s stance and punched the SO in the nose and the allegation by the Complainant that the SO delivered multiple knee strikes to the Complainant’s mid back which he claims caused his injury. The SO adamantly denies delivering any knee strikes to the Complainant’s back or anywhere else, but both the Complainant and the SO agree that the SO took the Complainant down to the ground and landed on top of him. In these particular circumstances, where it had been described by all witnesses as being extremely dark outside and raining, where the SO and the Complainant were apparently slogging around in the mud, where the SO is consistently yelling commands at the Complainant which the Complainant is just as consistently ignoring, where in the background is heard the screaming of WO #6 that he was being electrocuted and then, for whatever reason, the dispatcher voiced over the radio that there was a gun involved, I can imagine that the entire scene was extremely chaotic. Each of the persons involved would have had adrenaline flowing through them in what must have been an extremely frightening experience for both the SO, who did not know if help was coming to assist him, and for the Complainant, who was on the ground with the SO on his back and was being punched in the head.

On the basis of this evidence, combined with the medical records, I am inclined to accept the evidence of the SO, who was extremely forthright in admitting that he punched the Complainant in the head numerous times, and would therefore have had no logical reason to deny delivering knee strikes to the Complainant’s back, which would have been completely justified in the circumstances. I also find that the evidence of WO #2 that he observed the SO’s eyes to be a bit swollen is consistent with the SO’s evidence that he was punched by the Complainant. Additionally, I find on the basis of the medical records that the Complainant did not suffer a back injury as a result of this incident but that he may have mistakenly taken the SO landing on top of him as being an assault on his back. Whatever happened to the Complainant’s back, it is fairly clear on the medical records that it was not of such a degree of force to cause the Complainant any acute injury.

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 from the statement of the SO, and as openly conceded by the Complainant, that the Complainant had numerous outstanding warrants for his arrest. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in his attempts to apprehend, subdue and arrest the Complainant, I find that his actions were justified in the circumstances and that he used no more force than necessary to subdue the Complainant, who was clearly intent on escaping from police and was willing to go to great lengths to attain his goal. In light of the fact that the Complainant led the SO on a foot pursuit, in extremely dark conditions, through muddy fields, scaled two electrified fences and continued with his evasive efforts after numerous shouted commands by the SO and the deployment of a CEW, it is clear that the Complainant was willing at almost all costs to avoid being apprehended. Once the SO tackled the Complainant to the ground, and the Complainant did not give up his hands, coupled with the announcement over the radio that a gun was involved, I have no doubt that the SO was extremely concerned for his safety and the possible presence of a weapon. Additionally, the fact that WO #6 was screaming in the background that he was being electrocuted, and the very real possibility entertained by the SO that any help coming would have been diverted to assist WO #6, leaving the SO unaided to deal with the Complainant, I have no doubt that the SO felt the need to subdue and handcuff the Complainant as quickly as possible to eliminate the risk that he continued to pose until any weapon was located and removed and the Complainant was fully handcuffed.

While I find that the Complainant’s back was not injured as a result of his interaction with the SO and that the SO did not deliver knee strikes to the Complainant’s back, even had that been the case, I could not find that the SO would have been exercising an excessive use of force. In coming to this conclusion, I have considered the direction of both the Supreme Court of Canada and the Ontario Court of Appeal with respect to the weighing of the responsive force of police officers in situations such as the one in which the SO found himself. In the Supreme Court of Canada decision in R. v. Nasogaluak, [2010] 1 S.C.R. 206, the Court set out the following parameters:

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 this record, it is clear that the force used by the SO progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance and overwhelming desire to escape police, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.

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 any injury which he may have suffered, even were I to find that the SO caused the injury, which I am not inclined to do. I am therefore satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: January 10, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] CW #1 is a member of the Stratford Fire Department and assisted in the treatment of WO #6. His evidence was strictly first aid related. [Back to text]
• 2) [2] CW #2 is the Deputy Fire Chief in Stratford and oversaw the rescue of WO #6. [Back to text]
• 3) [3] The actual driver of the Corvette was later found to be CW #3. [Back to text]