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 48-year-old man during his arrest on July 18, 2016.

Notification of the SIU

On July 18, 2016 at 7:35 p.m., Peel Regional Police (PRP) notified the SIU of the Complainant’s custody injury.

PRP reported that on Monday, July 18, 2016 at 1:50 a.m., PRP officers responded to a domestic situation at a residence in Brampton. The Complainant was arrested for various domestic related offences. A struggle ensued during the Complainant’s arrest. The Complainant was returned to the PRP division where he was processed, lodged into cells at 2:54 a.m., and held for a bail hearing.

The Complainant was later transported to Davis Courthouse in Brampton and placed into the holding cells. The Complainant complained of soreness in his chest. He was then transported to the hospital, where he was diagnosed with a fractured left rib.

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

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

Civilian witnesses

None

Police employee witnesses

PEW #1 Interviewed

PEW #2 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Not interviewed, but notes received and reviewed

WO #3 Not interviewed, but notes received and reviewed

WO #4 Interviewed

WO #5 Interviewed

Subject officers

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

During the late evening hours of July 17, 2016, the Complainant’s former spouse (the ex-Spouse) was home with a male visitor. The Complainant, who had attended the residence to collect some belongings, was angry and confronted the male. The male fled the home, and the Complainant assaulted the ex-Spouse. 911 was called and the Complainant fled the scene prior to police arrival.

WO #1 responded to the 911 call and transported the ex-Spouse to the PRP station to provide a video statement. After this, during the early morning hours of the next day, WO #1 returned the ex-Spouse to her home to develop a safety plan. The SO followed WO #1 in a separate cruiser. As WO #1 pulled into the driveway of the ex-Spouse’s residence, she shouted that she could see the Complainant in the second floor bedroom window. WO #1 and the SO entered the home. WO #1 located the Complainant in the attic, hidden under the insulation. WO #1 attempted to remove the Complainant from the attic, and a struggle ensued. The SO, who remained on the floor below, grabbed the Complainant’s foot through the attic opening, and the Complainant fell through the opening to the floor. Once on the ground, the Complainant continued to resist the officers, but was eventually handcuffed.

The Complainant was taken to the PRP division and held in custody for a bail hearing. Later that morning, while the Complainant was at the courthouse, he complained of pain to his left side. He was transported to hospital and was diagnosed with a fractured ninth left rib.

Communications recordings

The communications recordings of the events of July 17, 2016 and July 18, 2016, leading up to the Complainant’s injury are consistent with the Intergraph Computer Aided Dispatch (ICAD) printouts and the radio communications. This data corroborates the statements of involved police officers, the Complainant and the PRP supporting documentation.

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.

Materials obtained from Police Service

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

• Communications recordings
• Cell video
• Audio Copy Report - 911 Calls
• Audio Copy Report-Radio
• Disclosure Log - Jul 22, 2016
• Event Chronologies
• Historical Contact Summary – the Complainant
• Notes of WO #1, WO #2, WO #3, WO #4 and WO #5
• Notes of PEW #1 and PEW #2
• Occurrence Details Report
• Prisoner Details Report
• Procedure - Use of Force, and
• Use of Force Training Record - the SO

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 349, Criminal Code - Being unlawfully in dwelling-house

349 (1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein.

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 17^th, 2016, a 911 call was received by a PRP call taker requesting police assistance at a residence in the City of Brampton as a result of a domestic assault. WO #1 responded to the call and spoke to the ex-Spouse, who advised she had been assaulted by the Complainant, who had fled prior to police arrival. The ex-Spouse was then transported to the police station to provide a video statement with respect to the incident, and then was driven back to her home in the company of the SO, WO #1 and WO #3. Upon arrival at the home, the ex-Spouse spotted the Complainant in her house and alerted police, who went inside to arrest him. The following day, the Complainant was transported to hospital where he was diagnosed with a fractured ninth left rib.

It is not in issue that the Complainant had entered the ex-Spouse’s house uninvited and assaulted the ex-Spouse, or that after fleeing, the Complainant returned, again uninvited, to the ex-Spouse’s home later that evening and hid in the attic.

The Complainant alleges that when the SO and WO #1 entered the ex-Spouse’s home, the SO grabbed the Complainant, threw him hard onto the floor, and then delivered several knee strikes to the Complainant’s left rib area and punched his left eye multiple times.

During the course of this investigation, only one civilian witness was interviewed, that being the Complainant, as neither the ex-Spouse nor the male with her earlier in the evening observed the arrest of the Complainant; additionally four police officers and two police employee witnesses provided statements, including the SO. Investigators also had access to the notebooks of seven police witnesses and the communication recordings; unfortunately, no video was available that captured any part of the incident.

WO #1 advised that he received a radio call regarding a domestic dispute at the residence in Brampton at approximately 10:19 p.m. on July 17, 2016, wherein the 911 operator reported hearing a female screaming in the background. WO #1 then attended the address on his own, as no other officer was available at that time to assist. Upon arrival, WO #1 was flagged down by the ex-Spouse and her male visitor; WO #1 observed the ex-Spouse to be crying, her face was bloody, and her nose was swollen. Upon questioning, the ex-Spouse indicated that she had been assaulted by her ex-common-law partner, the Complainant, but that he had already fled on his bicycle. The ex-Spouse was later transported to the station to provide a video statement.

At approximately 1:23 a.m. on the morning of the 18^th of July, 2016, WO #1 drove the ex-Spouse back to her home to develop a safety plan and the SO followed in his police vehicle accompanied by WO #3. As WO #1 pulled into the driveway of the ex-Spouse’s residence, she shouted out that she could see the Complainant in the second floor bedroom. As a result, WO #1 and the SO entered the house while the ex-Spouse stayed in the police vehicle with WO #3. WO #1 advised that he and the SO shouted for the Complainant to surrender himself, but there was no response, and they were in the process of searching the house when they heard a commotion upstairs. The officers then entered the second floor bedroom, still shouting for the Complainant, without response, when WO #1 looked inside a closet and noted that there was an access door to the attic; the door was approximately two feet by two feet [0.61 metres by 0.61 metres]. After again yelling to the Complainant, without response, WO #1 opened the attic door and shouted into the attic, identifying himself as a police officer and warning the Complainant to leave the attic or he would be removed; again, nothing. WO #1 then climbed up into the attic and was using his flashlight to search when the Complainant suddenly came out from under the insulation and stood up. WO #1 was startled by the Complainant and, unsure as to whether or not the Complainant was armed, he backed away from the Complainant and shouted at him to show his hands, but the Complainant only showed his left hand. The SO then yelled up to bring the Complainant down and WO #1 told the Complainant that he was under arrest for assault and grabbed the Complainant’s left arm and struggled with him to get him through the attic door.

WO #1 described the Complainant as not compliant and actively resisting by pulling his arm away, making it difficult for WO #1 to get the Complainant through the attic door and out. WO #1 then shoved the Complainant toward the attic entrance and forced him through the attic opening while the SO grabbed the Complainant’s legs from below and pulled him down from the attic. From his vantage point inside the attic, WO #1 was unable to see what was happening below, but he heard a bang and believed the Complainant must have fallen to the floor. WO #1 then heard the SO order the Complainant to put his hands behind his back and to lie on his stomach and stop resisting, following which WO #1 heard a commotion from below and tried to get out of the attic but his duty belt became wedged in the frame and he had to free himself before he could jump down to assist the SO.

The SO, in his statement to investigators, advised that he heard WO #1 in the attic continuously shouting at the Complainant to come out and show his hands. As the SO could not see into the dark attic, he asked WO #1 what was happening and WO #1 responded that he had seen the Complainant hiding under the insulation. The SO then heard footsteps moving towards WO #1 in the attic and he observed the light from WO #1’s flashlight bouncing around; he advised that he became concerned for the safety of WO #1 not only because he was balancing himself on the ceiling joists and was at risk of falling through the ceiling, but also because the Complainant might have a weapon and could become assaultive toward WO #1. The SO advised that he believed he needed to get the Complainant out of the attic immediately and, after having given the Complainant numerous opportunities to surrender himself and the Complainant remaining actively resistant and refusing to come down from the attic on his own, the SO advised that when he saw one of the Complainant’s legs near the attic opening, he grabbed onto the Complainant’s legs and tugged, following which the Complainant “free fell” from the attic, causing the SO to lose his balance. The SO advised that as a result of losing his balance, he was unable to ease the Complainant’s body down to the floor, with the Complainant instead falling hard onto the floor and landing on his side and back area.

Immediately after landing, the Complainant surprised the SO by trying to get to his knees and the SO responded by pushing the Complainant to the floor and using his body weight to keep the Complainant down. The SO advised that he did not use any of his available use of force options, other than physically restraining the Complainant; neither did he strike, kick or punch the Complainant. While waiting for WO #1 to exit the attic and assist him, the SO restrained the Complainant on the floor while the Complainant, who the SO described as strong and muscular, tried to push himself up and the SO struggled to keep him down. The SO advised that he had one knee on the Complainant’s back and was using both hands to pull the Complainant’s arms out from under his chest for handcuffing. The SO continuously shouted commands at the Complainant to stop resisting, but he did not comply and continued to be actively resistant.

Once WO #1 was out of the attic, he advised that he observed the Complainant on the floor lying on his stomach with his arms under his chest trying to push himself upwards, while the SO was at the Complainant’s left side and was trying to control the Complainant’s left arm to prevent him getting to his feet, while still yelling at him to stop resisting. WO #1 then went to the right side of the Complainant and tried to restrain his arms for handcuffing using his body weight and his left elbow to push the Complainant down onto the floor. WO #1 advised that the Complainant continued to resist, resulting in WO #1 using a pain compliance technique which involved turning the Complainant’s right wrist clockwise, following which the Complainant finally complied and surrendered his left arm and was handcuffed behind his back. The Complainant was then lifted to his feet, escorted to WO #1’s vehicle and transported to the station; WO #1 advised that once he was in custody, the Complainant became compliant. While being booked in, the Complainant made no complaint of injury but WO #1 observed him to have a red mark under his right bicep and red marks on his face. WO #1 indicated that he was surprised when he heard the following day that the Complainant had suffered a fractured rib; both of WO #1 and the SO indicated that they believed the Complainant must have been injured when he fell out of the attic and hit the floor hard.

The following morning, PEW #1, who was picking the Complainant up for court, advised that when questioned, the Complainant said his ribs were sore but he did not require medical treatment. PEW #1 also noticed the Complainant was moving slowly and was having trouble entering the van, but each time he was asked, the Complainant indicated that he did not require medical assistance. Once at the courthouse, arrangements were made to transport the Complainant to hospital. PEW #2, who was partnered with PEW #1, made the same observations.

WO #4 and WO #5 attended the courthouse to transport the Complainant to hospital. En route, the Complainant told the officers that he had hidden in an attic before being found by police officers and that a struggle ensued wherein he was kneed in the side by one of the arresting officers. The Complainant further conceded that he was a drunken “asshole” and deserved what he got from the police because he was a “dirt bag” for assaulting his girlfriend. At hospital, WO #5 overheard the Complainant tell the nurse that he had sustained his injury during his arrest. WO #5 observed the Complainant to have scratches to his left arm and bruising near his left eye. The notebook entries of WO #4 are consistent with the statement of WO #5.

The Complainant’s medical records indicate that his chest was x-rayed at the hospital and revealed a left ninth rib fracture and a possible right sided rib fracture. The Complainant indicated, however, that he had sustained the right side rib fracture when he fell from a step ladder and it was unrelated to this incident.

On the record before me, although I find that the Complainant’s version of events coincides with much of the other evidence in many respects there are certain aspects of his account that I do not accept. In particular, I am unable to accept that the Complainant was neither intoxicated nor resisted police on the night in question; I make this finding based on the inconsistences between his statement to investigators and utterances that he made to several persons at the time. The Complainant’s own utterances to WO #4 and WO #5, while en route to hospital, wherein he confirmed that he had hidden in an attic before being found by police officers and that a struggle ensued thereafter appears to discredit the assertion that he was fully compliant; a struggle implying that there was resistance, as opposed to his indicating that he had been beaten. Furthermore, the Complainant conceded to WO #4 and WO #5 that he was a drunken “asshole” and deserved what he got from the police because he was a “dirt bag” for assaulting his girlfriend; which I again find inconsistent not only with the assertion that he was sober but also that he did not resist.

Beyond the Complainant’s own admissions, however, I find on the balance of the evidence that he was intoxicated at the time, and am inclined to believe that it was due to his state of sobriety, or lack thereof, that the Complainant exercised the extremely poor judgment which he did in returning to his ex-partner’s home and hiding in the attic, when he must have known that police would be actively searching for him. Furthermore, I find the Complainant’s allegations to investigators that the SO delivered multiple strikes to the Complainant’s left rib area, after he fell from the attic to the floor, and then punched his left eye several times to be completely inconsistent with his utterances to WO #4 and WO #5 wherein his only complaint was that there had been a struggle between himself and police wherein he was kneed in the side by one of the arresting officers. Although his assertion that he was kneed in the side could possibly be interpreted as being kneed repeatedly, I do not take that from his utterance as he appears to imply it occurred only once. Additionally, I find that this utterance is completely consistent with the evidence of the SO that he had his knee in the Complainant’s back while he was attempting to subdue him. On the whole, I find that the utterances by the Complainant to WO #4 and WO #5 are consistent with the evidence provided by both WO #1 and the SO, and I accept them as confirmation of their evidence. Any discrepancy between the Complainant, wherein he alleged he was grabbed by the SO and thrown hard on the floor, and the SO’s version, wherein he indicates that the Complainant “free fell” from the attic, I find to be one more of perspective than of credibility; I have no doubt that the Complainant fell hard onto the floor below after he had been grabbed by the SO and that in the circumstances it would have been difficult to differentiate between the two.

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 ex-Spouse that the Complainant had earlier assaulted her and was now unlawfully present in her home without her permission. On that evidence, it is clear that police had reasonable grounds to arrest the Complainant both for assaulting the ex-Spouse and for his unlawful entry into her home. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by both the SO and WO #1 in apprehending the Complainant, one has to consider the circumstances faced by the police officers at the time. The officers were in possession of information that the Complainant had already earlier seriously assaulted his former partner, he was now hiding in a dark attic in her home after having illegally entered the home, he was in a dark and confined space with WO #1 and there was only one avenue open to both for exiting the attic, and the officers were unable to determine whether or not the Complainant was armed. Additionally, WO #1 was having to deal with the Complainant while simultaneously balancing himself on the ceiling joists to avoid falling through the ceiling to the floor below. With all of these factors, I have no difficulty finding that both the SO and WO #1 would have been under extreme pressure to get the Complainant out of the attic as quickly as possible and to confine him before he had the opportunity to do any harm to WO #1. While WO #1 unfortunately found himself in this dangerous situation as a result of the poor judgment and possibly the inexperience of both officers, once he was in that situation, clearly it was incumbent on both officers to act quickly to protect WO #1 from the possible harm to which he was exposed as long as he remained in the dark and closed confines with the Complainant, and thereafter to restrain and confine the Complainant once he was removed from the attic.

While I fully accept that the Complainant likely sustained his injury when his legs were grabbed by the SO and he then was either pulled or fell hard onto the floor below, I cannot find this to amount to an excessive use of force in the circumstances. I find that it was incumbent upon the SO to come to the aid of his partner in the dark and close confines of the attic where WO #1 had little, if any, ability to protect himself should the Complainant decide to use force against him. As such, I find that the SO was fully justified in grabbing onto the Complainant’s legs when it appeared to him that WO #1 was attempting to remove the Complainant from the attic and the Complainant was resisting. Furthermore, whether the Complainant came down hard from the attic because the SO pulled him down, or whether the SO lost control and the Complainant fell hard, or a combination of both, I cannot find this to amount to an excessive use of force. Thereafter, when the Complainant continued to resist and the officers struggled with him on the floor, which the Complainant described to WO #4 and WO #5 as being kneed in the side, while both the SO and WO #1 described it as they’re only using their physical weight to restrain the Complainant following which, when the Complainant continued to resist, WO #1 used a pain compliance technique on his right arm to get him to comply, I still have no hesitation in finding these actions to have been justified in the circumstances. As indicated by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206:

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 and WO #1 was in direct correlation to the active resistance of the Complainant and the dangerous situation in which the officers found themselves. As indicated earlier, while I find that both officers exercised poor judgment by sending a lone police officer into a dark and confined space to search for a known violent offender, who may or may not have been armed, once in that situation, I find that it was incumbent to act as quickly and with as much force as necessary to apprehend the offender and to eliminate the risk posed to one or both of the officers until the offender was apprehended and restrained.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s apprehension 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.

Before closing, however, I would strongly recommend to the Chief of the Peel Regional Police that both of these police officers receive additional training and are counseled with respect to dealing with these types of situations and would hope that in future, rather than putting a lone police officer at great risk by sending him into a dark and confined area with a possibly violent offender, they will choose to call for back up and possibly have the Emergency Task Force attend to deal with the situation, as they are more than adequately trained and equipped to do.

Date: November 29, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit