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 22-year-old man during his arrest on January 17, 2017.

Notification of the SIU

On January 17, 2017, at 9:25 p.m., York Regional Police (YRP) notified the SIU of the serious injury sustained by the Complainant during his arrest earlier that day on a charge of residential break and enter in Richmond Hill.

YRP reported that at about 1:15 p.m., on January 17, 2017, YRP officers responded to a break and enter call at a home in Richmond Hill. The suspect was seen running from the scene. A YRP police service dog (PSD) picked up the track and led police officers to the rear of a residence where the arresting police officers found the Complainant hiding in a rubber garbage bin.

When the Complainant came out from the bin, he resisted the officers. The PSD was released and inflicted a superficial wound to the Complainant’s right buttock; during the struggle to subdue him, the Complainant suffered an injury that was later found to be a fractured left orbital bone.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness officers

WO Interviewed

Subject officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

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

During the afternoon of January 17, 2017, the Complainant was found inside a person’s residence. 911 was called and the Complainant fled through various backyards in the neighbourhood.

The WO and his PSD, accompanied by SO #1 and SO #2, were dispatched to track the Complainant, and located him inside a plastic storage box. The Complainant did not comply with the officers’ demands to exit the box, and the PSD bit the Complainant on his upper right arm. The Complainant lunged out of the box and towards SO #1, landing face down on the ground because of the icy surface. SO #1 also fell to the ground, landing on top of the Complainant. The PSD bit the Complainant a second time on his upper right thigh.

SO #1 and SO #2 attempted to handcuff the Complainant, but he resisted, flailing his arms and kicking out with both legs. SO #1 reached around behind his back and delivered two closed fist “reverse” punches to the Complainant’s face. SO #2 then delivered two closed punches to the left side of the Complainant’s head/face area. The Complainant was subdued and handcuffed.

The Complainant was examined later that day at the hospital, and it was determined that he had sustained a fracture through the floor of the left orbit.

The scene

The Complainant was arrested in the backyard of a residence in Richmond Hill. The home is situated in an entirely residential subdivision. The yard was snow covered and the weather was inclement that day, resulting in icy conditions.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and received a copy of a cell phone video taken by CW #1.

Materials obtained from Police Service

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

• Communications recordings
• Computer Aided Dispatch Call History
• General Occurrence
• Notes of the WO
• Procedure - Use of Force, and
• Procedure - Canine Handling

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.

Section 348(1), Criminal Code - Breaking and entering with intent, committing offence or breaking out

348 (1) Every one who

1. breaks and enters a place with intent to commit an indictable offence therein
2. breaks and enters a place and commits an indictable offence therein, or
3. breaks out of a place after
   1. committing an indictable offence therein, or
   2. entering the place with intent to commit an indictable offence therein

is guilty

4. if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
5. if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction

On January 17^th, 2017, at 1:12:40 p.m., a 911 call was received by the YRP reporting a residential break and enter at a residence in the City of Vaughan. The caller advised that he had been in the basement of his residence when he heard someone upstairs and, when he came up, he observed a male who had apparently broken into his home exit the house by the rear sliding doors and he was now in his backyard. The caller advised that the male he had observed in his home had approached him while he was on the phone to 911 and asked him if he was calling police and then ran off. At 1:15:23 p.m., officers were dispatched to the scene to attempt to locate the male; other callers continued to contact 911 providing information regarding a male person running through their backyards.

The WO, who was the K9 Officer, arrived at the scene with his police service dog and spoke to the homeowner, who advised him that the suspect had just run east through backyards and was hopping fences. The WO took his service dog on a 15 foot [4.57 metres] tracking line and entered the homeowner’s backyard where the dog immediately picked up a scent and began to track eastward through a number of backyards. The WO advised that he then heard the dispatcher report that a citizen had called after observing the male running through the backyard at a specific residence and he and the dog attended there, where the dog again picked up the scent and ran east over several fences and through various backyards until they reached another residence, where they met up with SO #2, who provided him with cover during the track. The dog then jumped over the fence at the rear of the residence and into a rear yard on a neighbouring street, where they were joined by SO #1. All three police officers and the dog then approached a small three foot [0.91 metre] chain link fence between two residences, where the dog jumped over the fence and showed great interest in a plastic Rubbermaid storage box under the lip of the rear deck at a home; the box was described as three feet [0.91 metres] in length and two feet [0.61 metres] high and wide. The WO then opened the front door of the box and observed the Complainant hiding inside the box.

The Complainant, in his statement to investigators, alleged that four police officers were involved in his apprehension, one of whom grabbed him and pushed him down to the ground where he landed on his knees. The service dog then bit his upper arm, whereupon the officers knocked him to the ground, and the dog bit him again on the upper thigh. The four officers then punched him in the head and face.

From the cell phone video provided by CW #1, prior to CW #1 approaching the window, one can hear a dog incessantly barking. When at the window, two police officers are seen, one on each side of the Complainant, who is on his feet, and the WO and his service dog are seen about ten feet ahead of the Complainant; the WO is restraining his service dog, who is barking and straining against him, while trying to go towards the Complainant. The Complainant is seen to be pulling away from the bald police officer, who has him by one arm, while the second officer has him by the other; the Complainant appears to already have been handcuffed at this point and the bald officer then directs him towards the front of the property and the camera pans away. The camera then pans back to the window, the Complainant and the two officers are no longer present, but the service dog is seen continuing to bark and the WO is still restraining him for a few moments, at which point the WO then takes the dog by his leash and also walks toward the front of the property. The camera then moves to a street-facing window where the Complainant is seen being taken to the police cruiser; the WO and service dog are no longer seen, but another uniformed officer is now with the first two officers and the Complainant, who is escorted to the cruiser, is searched at the side of the cruiser and then placed inside the cruiser. No inappropriate conduct on the part of any police officer is seen during the entirety of the video, although it does not capture the removal of the Complainant from the storage container, or his initial contact with police after being removed.

At no time did any of the civilian witnesses observe more than three police officers in the backyard; that being the WO and the two other uniformed officers.

Once the service dog indicated his interest in the storage box under the deck, the WO opened the front door of the box and observed the Complainant crouched inside. The WO observed the ground surface outside the box to be ice-covered with about an inch [2.54 centimetres] of rainwater on top. The WO advised that he was only able to see the right side of the Complainant, and could not see his hands at all. The WO immediately shouted, “Police canine, show me your hands or you are going to be bitten.” He repeated this command a second time, each time in a loud voice. The WO advised that when the Complainant neither moved nor made any effort to show his hands, he became concerned that the Complainant might be armed and he felt it was unsafe for any police officer to approach him while he remained inside the bin and without his hands visible. At that point, SO #1 ran over to the storage box and saw that the front door and lid were now open and he observed the Complainant sitting inside. After the WO shouted at the Complainant for the second time without any movement from the Complainant, the WO deployed his service dog, who engaged the Complainant by biting down on his upper right arm causing the Complainant to lunge out of the box towards SO #1. Because the area around the bin was sheer ice covered with freezing rain water, as soon as the Complainant stood on the ice, he fell to the ground and SO #1 fell on top of the Complainant’s head and chest area. SO #1 advised that as the Complainant was underneath him, he was making extremely wild movements, twisting, turning and engaging in violent quick motions to try to get up and escape. SO #1 described the Complainant as about 6’4” [1.93 metres] and 200 pounds [90.718 kilograms] and as exhibiting great strength. SO #1 advised that he shouted several times at the Complainant to “Stop resisting, you are under arrest,” but to no avail. SO #1 indicated that he realized that he was losing the struggle to control the Complainant, describing his position as being on the Complainant’s left side with his back toward the Complainant, who was flailing about wildly. I note that while SO #1 described the Complainant as falling face up onto the ground, other witnesses, including the WO, described the Complainant as falling face down. I note that it may well be, since SO #1 had his back to the Complainant, that he could not properly see how the Complainant landed on the ground. On this evidence, I find it more than likely that the Complainant did fall to the ground face down, as observed by the WO and one of the civilian witnesses.

The WO advised that at that point his dog re-engaged the Complainant by biting down on his upper right thigh, while the Complainant flailed his arms and kicked out with both legs. SO #1, while lying on top of the Complainant, reached around behind his back and delivered two quick closed fist “reverse” punches which made contact with the Complainant’s face; he advised that he used this as a distraction and compliance technique, which appeared to be effective, as the Complainant immediately put both of his hands up, covering his face, and he and SO #2 each were able to grab onto one wrist. SO #1 advised that the Complainant continued to be violent and tried to push himself away from the officers and that it was extremely difficult to take control of the Complainant due to the icy surface that they were on at the time. SO #1 then also observed that SO #2 delivered two quick closed right hand punches to the left side of the Complainant’s head/face area, which slowed him down and both officers were able to apply the handcuffs.

The WO advised that he was completely focused on controlling his dog and was trying to do so by both leash and harness, but that the dog did not disengage from the Complainant until the Complainant was under control, but not yet handcuffed; at that point, the dog released the Complainant and the WO removed him from the immediate area and went further down the backyard to get the dog away from the excited atmosphere in order that the dog calm down. The WO estimated that from the time that his dog first made contact with the Complainant, until the dog released him, approximately 20 seconds had elapsed.

SO #1 advised that he and SO #2 then lifted the Complainant to his feet and walked him out to the waiting cruiser in front of the residence.

SO #1 was of the view that the distractionary punches he delivered to the Complainant were consistent with his use of force training and that no other use of force option would have been appropriate, given the small and restricted area that they were in at the time. SO #1 estimated that from the time that the dog first bit the Complainant, until the time the Complainant was handcuffed, a period of roughly 12 seconds elapsed. SO #1 described the Complainant as violent, confrontational, and assaultive at all times during his interaction with police and that at no time did he cooperate, even after he was handcuffed. This account is consistent with the cell phone video taken by CW #1.

Although the WO advised the SIU that he at no time saw either SO #2 or SO #1 strike the Complainant, he indicated that SO #1 later told him that both he and SO #2 had to deliver punches to the Complainant’s head in order to get him under control.

As SO #1 was escorting the Complainant to the cruiser, he noted that the Complainant had swelling under his right eye and, when he was later examined and x-rayed at hospital, it was confirmed that he had sustained a fracture through the floor of the left orbit (a traumatic injury to the bone of the eye socket).

While it is unfortunate that neither of the civilian witnesses observed the Complainant while he was being removed from the storage bin, it is clear that the evidence of CW #2 does not accord with the allegations of the Complainant. I find that had an officer forcefully grabbed the Complainant, CW #2 would certainly have seen that. I am more inclined, on this evidence, to believe that the Complainant fell due to the icy ground, as indicated by the police officers. Additionally, had the dog handler told the dog to attack the Complainant while he was on the ground and the PSD then bit his upper arm, I find it would again have been seen by CW #2.

I find that the evidence of CW #2 supports that of the WO, who indicated that his dog bit the Complainant on the upper arm while he was still inside the bin refusing to come out and, as such, would not have been seen by CW #2. I further find that the credibility of the Complainant is greatly damaged as his assertion of being compliant throughout is clearly contradicted by the video evidence. Similarly, had an officer ripped the Complainant’s jeans in the inside of his upper right thigh, this would again have been after the Complainant was down on the ground and would have been visible to CW #2, and, from common experience, I find that it would have been impossible to rip denim material with one’s bare hands, but this could easily be done by a dog’s teeth. Finally, the Complainant’s allegation regarding the number of officers who punched him is contradicted by both the video and the civilian witnesses. The video and the civilian witnesses confirm the evidence of the police officers that there were never more than three police officers present in the backyard, and that the WO was fully engaged with restraining his dog and could not have been involved in punching the Complainant continuously in the head and face.

While there is some evidence provided by the Complainant which is consistent with the evidence of the other witnesses, specifically that he was bitten twice by the dog and that he was punched in the face by police officers, I find that the majority of his evidence is undermined both by the cell phone video, and by the civilian witnesses, whose evidence appears more consistent with that of the police officers. As such, I cannot find that the Complainant’s allegations rise to the level capable of satisfying the test of reasonable grounds to believe that incidents unfolded as he claimed.

Having said that, however, I must still determine whether on the evidence of the police officers themselves, that being that the service dog twice bit the Complainant and that both SO #2 and SO #1 twice punched the Complainant in the face, their actions constitute an excessive use of force such as to warrant criminal charges.

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 information provided by the initial 911 caller, and later confirmed by the WO at the scene, as well as all of the 911 callers thereafter who observed the Complainant running through their yards, that the police officers had reasonable grounds to believe that the Complainant had just committed a residential break and enter with the intent to commit an indictable offence therein, contrary to s.348(1) of the Criminal Code, and would have been arrestable for that offence. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, I will deal first with the dog bites and then with the two punches delivered by each of SO #1 and SO #2.

With respect to the service dog biting the Complainant, when the Complainant neither showed his hands nor made any movement to leave the storage bin, I find that the WO was fully compliant with the YRP Command Directive, in that he called out a warning, twice, to the Complainant, and gave the Complainant a reasonable opportunity to exit the bin and show his hands before he released the dog. I further find that the WO was acting prudently when he released the dog on the first occasion, as a result of his concern that the Complainant may be armed, and that it would be unsafe for any police officer to approach the Complainant in what was a very confined space and without knowledge of what they might face in that situation. As such, I find that the WO was fully justified in releasing the dog in order to force the Complainant out of the storage bin. With respect to the second biting of the Complainant, I reject the Complainant’s allegation that an officer tore his jeans and then told the dog to bite in that location, for reasons that I have previously stated regarding the lack of credibility of the Complainant, and find that, in all likelihood, the dog bit the Complainant on the second occasion as a consequence of the Complainant falling to the ground with SO #1 and flailing and struggling against police. As such, I find the actions of the WO do not constitute an excessive use of force and that the service dog was prudently deployed in a situation that had the potential to be dangerous to the police officers involved in the arrest of the Complainant.

With respect to the actions of SO #1 and SO #2, who both struck the Complainant in the face twice in order to gain control of the Complainant, who was struggling and resisting while they were on icy ground and unable to sufficiently gain control of the Complainant, I find that their behavior was justified in the circumstances and that they used no more force than necessary to subdue the Complainant who was openly resistant and thrashing and flailing about. While I find that the Complainant’s injury may have been caused when he fell face down on the icy ground, even if it was caused by the two punches delivered by either of SO #1 or SO #2 in their efforts to subdue the Complainant, I cannot find that to have been an excessive use of force. On this record, where the officers were reacting to a fast moving situation and were unable to gain control of the Complainant due to the icy ground on which they were located and the Complainant’s ongoing efforts to resist and escape, it is clear that the force used by both SO #1 and SO #2 progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance and unforeseen strength, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful arrest. I note that the backward punches delivered by SO #1, while he was lying on his back on top of the Complainant, while not stopping the Complainant in his efforts to escape, were effective in that he covered his face allowing SO #1 to then grab onto his right wrist. It is also clear, however, that the Complainant continued to resist and be violent and tried to push himself away from the officers until SO #2 delivered the second set of two quick closed punches to the Complainant’s head and face area. On this evidence, it is clear that the punches had the desired effect of distracting the Complainant and slowing him down enough to allow police to finally handcuff him. I find in these circumstances, that the delivery of two quick punches from each officer to the Complainant appeared to be effective and no more than was necessary to subdue the Complainant who appeared intent on his escape. I find further support in this conclusion from the video evidence where the Complainant is still resisting and is seen to pull away from the officers even after he has been handcuffed.

In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, as follows:

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.

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.

Date: December 4, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit