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 62-year-old man on September 11, 2015 during his arrest for impaired driving.

Notification of the SIU

On February 28, 2017, at 3:10 p.m., a student-at-law contacted the SIU and, with the Complainant, advised of the incident.

The Complainant reported that on September 11, 2015, at about 7:00 p.m., the Complainant was arrested for impaired driving by Hamilton Police Service (HPS) police officers [the arresting police officer is now known to be Witness Officer (WO) #2]. The arrest occurred in the area of Mohawk Rd. East and Upper Gage Ave., in Hamilton. The Complainant advised he was placed into the rear seat of a police cruiser and that his right foot was broken when the vehicle’s door was closed. He was transported to an HPS police station, processed, and later released. On September 12, 2015, the Complainant attended the hospital where he was diagnosed with several fractured bones in his right foot requiring a cast to heal.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators (FI) assigned: 1

Complainant

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Police Employee Witnesses

PEW Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed[1]

WO #4 Interviewed

Subject Officers

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

The scene

The Complainant’s arrest occurred at the location set out below:

Video/audio/photographic evidence

Unfortunately, due to maintenance of the audio video equipment operated in the booking and cells area of the HPS station at the material time, the recovery function of the audio video data was inoperable for about three weeks. In addition, had it been fully functional, that data was retained for only six months, meaning that in any event it would have no longer been available as of March 12, 2016.

HPS detention logs

The HPS Detention Log created Sept 11, 2015 at 9:35 p.m., when the Complainant was booked, indicated the following:

• "Be advised you are being both audio and video recorded in the custody area and do not expect privacy in this area except for private conversations with counsel. Do you understand?" Accused refused to listen or answer
• "Are there any physical or medical problems I should be aware o‎f?" Accused refused to listen or answer
• "Do you have any complaints?" Accused refused to listen or answer
• "Red mark on his left foot from earlier kicking at officers. Highly intoxicated and belligerent. Uncooperative"

The Detention Log created Sept 12, 2015, at 5:39 a.m., on the Complainant’s release, indicated the following:

• "Do you have any complaints?" Response, "No."
• Comments: None
• Injuries: Sore Foot‎
• Action taken: None

Physical evidence

The SIU FI photographed WO #2’s cruiser to depict its appearance and profile, with the right rear door open and closed, the prisoner compartment, and the placement of an FI’s right leg and foot in the door frame and hinge area.

Materials obtained from Police Service

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

• Alcohol Influence Report
• Arrest Report
• Case File Synopsis
• Video from HPS Breath Room
• Communications audio recordings
• Detention Log
• Drawing by WO #1
• Global Positioning System (GPS) data for WO #2’s police vehicle
• Intoxilyzer Certificates
• Notice to Registrar
• Statement by Communications Operator - 2015-11-12
• Witness Statements (for two police witnesses to impaired driving)
• Witness Victim List
• Motor Vehicle Collision Report
• Notes of WO #2, WO #3 and WO #4
• Notes of the PEW
• Occurrence Details Report
• Service and Repair History for WO #2’s Cruiser
• Subject Profile Report – the Complainant
• Supplementary Occurrence Report
• Will State – WO #2, and
• Will State – WO #4

During the early evening of December 11, 2015, the Complainant was driving his vehicle in Hamilton, and was observed by witnesses swerving, hitting a trailer being pulled by a pickup truck and damaging the Complainant’s side mirror, and continuing on, almost hitting the guard rail. 911 was called.

WO #2, in response to the 911 dispatch, located the Complainant and pulled him over to investigate. The Complainant exhibited strong signs of impairment. WO #2 placed the Complainant under arrest for impaired driving and failing to remain at the scene of an accident. WO #3 and WO #4 also attended the scene and tried to maneuver the Complainant into the rear seat of WO #2’s cruiser for transportation to the HPS Central Station.

The Complainant struggled against the officers’ efforts to place him in the cruiser, both spitting and attempting to bite them. Once the Complainant was put inside the cruiser, he started to kick at the doors and the officers so that the rear door could not be closed. The Complainant kicked WO #4 twice in the chest. The SO arrived on scene and pushed the Complainant by his chest, and used his leg to push against the Complainant’s thigh, to force him further into the cruiser. The Complainant continued to resist, and kicked his legs at the door whenever the officers attempted to close it. Eventually, the officers were able to close the door and the Complainant was transported to the HPS station where he refused to provide a breath sample. He was charged and released from the station.

The next day, the Complainant attended the hospital and was diagnosed as having two dislocated toes and a broken bone in his right foot. No surgical repair or operation was performed.

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 252(1), Criminal Code - Failure to stop at scene of accident

252 (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

1. another person
2. a vehicle, vessel or aircraft, or
3. in the case of a vehicle, cattle in the charge of another person

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

Section 253(1), Criminal Code - Operation while impaired

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

1. while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
2. having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood

Section 254(5), Criminal Code - Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

Section 270(1), Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure

On September 11^th, 2015, a 911 call was received at approximately 7:15 p.m. by the HPS advising that the caller had just observed a hit and run accident involving a white car which had struck a trailer being towed by a pick-up truck. The motorist continued to follow the car, which was being operated by the Complainant, and continued to update the 911 call taker, resulting in the Complainant being stopped by WO #2 on Upper Gage Avenue in the City of Hamilton. The Complainant was arrested for impaired driving and transported to the police station where he refused to provide breath samples and was lodged in the cells and released in the morning; he was subsequently charged with impaired driving, refusing to provide breath samples, failing to remain at the scene of an accident and assaulting a peace officer contrary to the Criminal Code. Following his release, the Complainant attended the hospital where he was diagnosed as having two dislocated toes and a broken bone in his right foot.

On February 28^th, 2017, over 17 months after the Complainant’s arrest and injury, he notified the SIU, with the assistance of a student at law, of his complaint against the HPS; the Complainant’s trial date on his charges was scheduled to occur on July 17^th, 2017.

The Complainant, in his statement to the SIU, advised that on September 11^th, 2015, he had attended a friend’s home after work where he had eaten but did not consume any alcohol. He indicated that his friend, for whom the Complainant could not provide a last name, was not available to be interviewed by investigators as he had left the country. The Complainant advised that he was stopped by police on his way home and was asked to get into the cruiser; the officers then struggled with him and pushed him inside, at which time the cruiser’s door was slammed on his leg causing the second and third right toes to be caught in the bottom of the door. The Complainant advised that he was wearing Puma shoes at the time his foot was caught in the door and that he still had those in his possession, but he declined to provide them to investigators to be examined or photographed. The Complainant advised that he had no idea why he was stopped by police.

Two civilian witnesses provided statements to police in which they indicated that they had been in a motor vehicle on September 11^th, 2015, at approximately 7:15 p.m., when they observed the Complainant’s motor vehicle. One witness, in her written statement, indicated that she “saw a white Buick swerve in and out of his lane, hit the back end of a trailer” after which she continued to follow the vehicle and observed him to “almost hit the guard rail twice” and she called 911. She further advised that when the Complainant hit the trailer, his driver side mirror was knocked off.

The other civilian witness, in her written statement, confirmed that the white Buick in front of her was driving “in and out of traffic” when it struck the back side of a trailer damaging the Buick’s driver side mirror. She followed the Buick and then observed it to “almost hit the guard rail twice” and her passenger called police. She advised that she followed the vehicle to Upper Gage Avenue.

The Complainant’s medical records indicate that he initially attended the hospital on September 12^th, 2015, where he is recorded as having advised the triage nurse that “a female police officer had shut car door while pt’s (patient’s) foot was in it”. Two of his toes apparently had been dislocated and were realigned with closed reduction (non-surgical) and his foot was placed in a cast. On September 15^th, 2015, he returned to hospital where he was seen by an orthopedic surgeon. The following is recorded on his medical records:

The patient relates a history of being arrested by Hamilton Police on September 11^th, 2015 while apparently intoxicated. He indicates to me that he was arrested simply for having had two beers and denies any wrong doing. He apparently suffered his injury when he was put into a police cruiser and may have jammed his right foot in the door of the cruiser.

The orthopedic surgeon dealt with the fracture of the second metatarsal shaft (a bone in the foot leading to the second toe) by placing it in a non-weight bearing cast for six weeks. Contrary to the Complainant’s recollection, the orthopedic surgeon confirmed that no surgery was required for either his toes or the broken bone in his foot.

CW #1, the only civilian witness to the arrest of the Complainant, completely contradicted the Complainant’s version of events.

WO #2, in her statement to investigators, advised that she was dispatched to a fail to remain collision on the Kenilworth Access and that she then received further information that the suspect’s vehicle was seen travelling southbound on Upper Gage Avenue. WO #2 observed the Complainant’s vehicle, which matched the description, travelling southbound on Upper Gage Avenue, and she made a U-turn and activated her emergency lights whereupon the Complainant moved to the curb lane and reduced his speed, but did not stop. WO #2 then activated her siren, the Complainant slowed more, but again did not stop until she activated her siren a second time whereupon the Complainant stopped; the Complainant’s final stop at 7:16 p.m., was some 700 metres after WO #2 had first activated her emergency lights.

WO #2 advised that she approached the Complainant’s vehicle on the driver’s side and the Complainant put down his window, whereupon she immediately detected the odour of alcohol emitting from him. WO #2 asked the Complainant to produce his driver’s licence, ownership and insurance and, following some fumbling with his wallet, he produced his SIN card and a blue bank card along with his ownership and insurance. WO #2, noting the damage to the Complainant’s mirror, asked him what happened and he indicated that he did not know. When WO #2 asked the Complainant a second time to produce his driver’s licence, he produced two. WO #2 noted that the Complainant’s eyes were glassy and bloodshot, his speech was slurred and he appeared confused and disoriented, from which she formed the opinion that his ability to operate a motor vehicle was impaired by the consumption of alcohol; at that point, WO #3 and WO #4 arrived. WO #4 advised that WO #3 parked their cruiser directly behind that of WO #2 and he walked to the passenger side of the Complainant’s vehicle where he also smelled a strong odour of alcohol on the Complainant’s breath and noted him to be unsteady on his feet. WO #2 asked the Complainant to turn off his vehicle and exit, which he then did, after which he stumbled while walking towards her cruiser and had to support himself by holding onto his vehicle.

At 7:21 p.m., WO #2 advised, she arrested the Complainant, handcuffed him with his hands behind his back and placed him into the rear seat of her cruiser, while she read him his right to counsel and the breath sample demand and the Complainant advised he could not understand as he did not speak English. WO #2 then closed the cruiser door and called for a Polish interpreter. Shortly thereafter, WO #4 realized that he had omitted to remove the Complainant’s wallet from the Complainant, so he helped the Complainant to exit WO #2’s vehicle, got his wallet from his pocket and asked the Complainant to get back into the cruiser, when the Complainant refused indicating that he had to urinate and gestured toward a nearby lawn.

WO #4 assured the Complainant that it was a short trip to the police station and that he could not urinate on a residential lawn, at which point the Complainant told WO #4 to “fuck off” and refused to re-enter the vehicle. Each of WO #2, WO #3 and WO #4 spent some time encouraging and attempting to negotiate with the Complainant to convince him to re-enter the car. WO #4 advised that due to the time requirements in which they had to legally obtain the Complainant’s breath samples, he believed it was necessary to physically assist the Complainant back into the car and he placed a hand on the Complainant’s shoulder and guided him into the rear seat, where the Complainant sat but then began to kick at both WO #3 and WO #4. The Complainant then placed his back against the edge of the seat and extended his legs out, rigid at the knees. WO #3 and WO #4 told the Complainant to unlock his knees and get into the car, to which the Complainant responded by repeatedly shouting, “Fuck you!” while rapidly kicking at WO #3 and WO #4, WO #2 having removed herself from within reach of the Complainant. WO #4 advised that when WO #3 reached into the cruiser to move the Complainant’s right shoulder, the Complainant tried to bite him; this is consistent with the evidence of WO #2 who called for backup on her radio and observed WO #3 reach into the cruiser toward the Complainant when she heard WO #3 shout, “Don’t bite me!”, WO #2 then observed the Complainant kick WO #4 twice in the chest and heard WO #3 say, “Don’t spit on me!” WO #4 advised that he tried to use a soft hand technique and pushed down just above the Complainant’s knee to invoke a reflex action and then he tried to hit the Complainant in the back of the knee to force the knee to flex. Both of these maneuvers proved to be unsuccessful and failed to get the Complainant to bend his knees and get into the car. CW#1, in his statement, confirmed the evidence of the police officers in that he observed the officers attempt to encourage the Complainant to voluntarily enter the police vehicle, that he heard the Complainant use profanities at the officers, and that he observed the Complainant to kick the door of the cruiser some six to seven times in order to prevent it being closed.

WO #3 advised that the SO then arrived and grabbed the Complainant by the upper torso while WO #3 grabbed his legs near the knees. WO #3 described the SO twisting the Complainant’s shoulders while WO #3 folded up the Complainant’s legs and stuffed them into the cruiser. The SO and WO #3 together were then able to get the Complainant’s legs into the cruiser in one “fluid motion” and WO #3 indicated that he then shut the cruiser door before the Complainant could get his feet back out. WO #3 did not observe the Complainant’s legs or feet get caught in the door. After the door was fully closed, WO #3 observed the Complainant to turn his body and again kick at the cruiser door repeatedly while yelling that he wanted out to urinate.

The SO advised that he was called to assist three police officers and he attended Upper Gage Avenue and parked his cruiser behind the other two. Upon arrival, he received information that the Complainant had kicked WO #4 in the chest and had attempted to bite WO #3. The SO approached WO #2’s cruiser and observed the Complainant in the rear seat with his back against the partition in the middle of the seat and his legs extended with both feet against the inside of the still open rear door. The SO told the Complainant several times to put his feet in the cruiser, while the Complainant repeatedly shouted, “Fuck Off!” and “Stop!” The Complainant kicked forward in a thrusting fashion, and the SO pushed the Complainant in the chest to get him further into the cruiser. The SO then used his right leg a few times to push the Complainant’s right thigh using a moderate amount of force to release the rigidity in the leg. This is confirmed by the evidence of CW #1. The SO then observed WO #3 use some kind of open hand technique to get the Complainant to comply while repeatedly telling him to put his feet in the cruiser. At no time did the Complainant comply. The SO described that he and WO #3 and WO #4 were able to get the door closer to being closed and that WO #3 had his foot inside the door opening keeping the Complainant’s feet inside the cruiser until the last second when WO #3 removed his leg from inside the cruiser and the SO and WO #3 and/or WO #4 quickly closed the door. The SO advised that when closing the door, he did not feel any resistance as if a foot was caught in the door and he did not hear the Complainant say anything or move once the door was closed, giving no indication that he had been injured.

On all of the evidence before me, I find that I can place little credence in the statement provided by the Complainant as it is contradicted by all three of the civilian witnesses and by his own statements provided to medical personnel, specifically, while the Complainant denied to investigators the consumption of any alcohol on the date in question, he advised the orthopedic surgeon that he had been arrested for being “apparently intoxicated” following having consumed two beer. Additionally, his own account of his behaviour while interacting with police is contradicted by the evidence of CW #1, who was present during the Complainant’s interaction with police. The Complainant’s assertion as to his sobriety also appears contrary to the observations of the earlier civilian witnesses, who called 911 after observing the Complainant swerving in and out of the lanes of traffic, colliding with a trailer and thereby damaging his car mirror, and almost striking the guardrail on two occasions while they were following him as he left the scene of the collision between his own motor vehicle and the trailer. I find that the evidence of his very poor driving, combined with what can only be described as his extremely defiant behaviour with police, including refusing to put his legs into the police car, continuously shouting obscenities at the officers and kicking, spitting and biting at the officers, all appear to confirm the officers’ observations as to the intoxication of the Complainant.

In addition to the inconsistencies in his evidence, I find that the Complainant himself appears unaware as to how his injury occurred; both in his statement to investigators and in the information he provided to the triage nurse at hospital, the Complainant indicated that WO #2 was the one who closed the car door on his foot. In his statement to investigators he then contradicted his own evidence, saying that WO#2 was already either in the driver’s seat or just getting into the driver’s seat at the time that the car door was closed. This leads me to believe that the Complainant really has no clear recollection, either due to his level of intoxication, other medical issues, or the passage of time, as to who closed the car door and how his injury occurred. The evidence of CW #1 is very clear that WO #2 was nowhere near the car door when it was closed. I also find that the Complainant, in his statement, frequently exaggerated and made great effort to paint himself as totally innocent in this entire interaction.

Finally, I also find that the Complainant’s obstructive behaviour continued both when he was placed in front of the Breath Technician at the police station and refused to provide the breath samples as required by law, and in his statement to investigators when he refused to turn over the footwear he was wearing at the time of his injury, which may have had some evidentiary value and which was still in his possession. On this basis, I reject the evidence of the Complainant as being completely self-serving and not supported by the independent evidence, in favour of the version of events as provided by the police officers and confirmed by the civilian witnesses.

While I find that it is very possible, although not certain, that the Complainant’s foot was injured when it may have been inadvertently crushed by the cruiser door, I find that the injury was a direct result of the Complainant’s own actions in repeatedly kicking the door and placing his foot in an area of the car door in order to prevent the door being closed. I find that the four police officers who interacted with the Complainant continuously attempted to encourage and negotiate with the Complainant in order to get him to enter the vehicle. Despite their encouragement and their repeated exhortations to him that the sooner he got into the car, the sooner they would be at the police station where he could use the facilities, the Complainant was apparently intent in being as obstructive as possible and insistent that he wished to urinate on someone’s front lawn, which the officers clearly could not allow. On the evidence before me, I find that the officers made every effort to get the Complainant safely into the cruiser and to the station in order that they could comply with their legal obligations to get him before an Intoxilyzer machine as soon as practicable, that they used all options at their disposal including encouragement, soft hand techniques to get his knees to reflex and bend and, finally, shoving him into the car. While his foot may have been inadvertently caught in the door mechanism, I have no hesitation in finding that it only did so because he intentionally put his foot there in order to obstruct police while police were making every effort to safely lodge him in the vehicle.

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 statements of the civilian witnesses who called 911 that the Complainant had been involved in a fail to remain accident and was driving in a dangerous manner; additionally, once stopped, the observations of WO #2 of the odour of alcohol emanating from the Complainant, combined with his being unsteady on his feet, his eyes being glassy and bloodshot, his slurred speech, his apparent confusion and disorientation and his producing his SIN card and a bank card when asked to produce his driver’s licence, all combined to give WO #2 reasonable grounds to believe that the Complainant’s ability to operate a motor vehicle was impaired by alcohol and he was arrestable on that basis. As such, the arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to get the Complainant into the police cruiser, I find that their behavior was more than justified in the circumstances and that they used no more force than necessary to fully seat the Complainant into the police cruiser while he was actively being combative, resistant and very obstructive, biting, spitting and kicking at the officers and kicking at the car door. In fact, on the evidence before me and confirmed by CW #1, the SO did no more than push the Complainant into the police cruiser, when he refused to cooperate and enter voluntarily. Even had the officers not been under legal time constraints to get the Complainant to the police station to provide his breath samples, I cannot find that their actions in finally forcefully shoving the Complainant into the car, after exhausting all other options, was unreasonable in the circumstances. Clearly, the Complainant, in his churlish and obstructive behaviour, could not be allowed to carry on indefinitely. Although it is clear that the SO had his hands on the door when it was ultimately closed, I cannot find that there was any intention on his part to do harm to the Complainant. Both WO #3 and WO #4 indicated that they struck the Complainant in the knee area several times in order to bend his knees and remove his feet from where they were obstructing the door, while the SO finally, after all else failed, shoved the Complainant back from the door and then quickly closed the car door before the Complainant could again put his legs in the path of the door and prevent the door being safely closed.

While I find that the most likely explanation for the Complainant’s injuries was that his foot was caught in the car door, I find that this could only have occurred because the Complainant intentionally put his foot in a position where it would be injured and that police, in shoving him into the car and back from the door, did everything possible to avoid any injury to the Complainant. On this basis, even if the Complainant’s injury was caused when his foot may have become jammed in the car door, I cannot find that to have been an excessive use of force. The jurisprudence is clear, officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.) nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206). On this record, it is clear that the techniques employed by WO #2, WO #3 and WO #4, along with the SO, progressed in a measured and proportionate fashion from encouragement, negotiation, soft handed techniques to get the Complainant’s knees to bend, hard handed techniques for the same purpose and finally shoving the Complainant into the car and back from the door and were all required to meet and overcome the Complainant’s resistance and obstructive behaviour. The Complainant’s foot was not seen in the path of the door at the time the door was closed and the SO, standing outside of the cruiser, would have had no way of knowing that the Complainant had again succeeded in placing his foot in the path of the door. Additionally, neither CW #1 nor any of the police officers present, including WO #2 who was inside the cruiser, heard any complaint or indication from the Complainant that he had been injured.

On this evidence, it is clear that the Complainant was actively resisting the best efforts of the officers to ensure that he was safely lodged in the cruiser and transported to the station. Despite the actions of the officers, the Complainant somehow managed to place his right foot in harm’s way after the officers had successfully shoved him back and fully into the cruiser and closed the door. On this record, I find that the injuries to the Complainant were caused by his own actions, either when kicking the door or when placing his foot in the path of the cruiser door as it was being closed; that the SO in all likelihood did not see the location of the Complainant’s right foot, as it was not visible from his vantage point outside the car; and that the Complainant’s injuries were as a result of his own behaviour which lead to an unfortunate injury. As such, there is no basis for finding that reasonable grounds exist for the laying of criminal charges and no charges will issue.

Date: November 23, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Initially, WO #3 and WO #4 were designated with the SO as subject officers. Upon further investigation and information received, WO #3 and WO #4 were re-designated as witness officers. [Back to text]