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 24-year-old man on March 11, 2017 during his arrest.

Notification of the SIU

On March 11, 2017, at 8:58 a.m., York Regional Police (YRP) notified the SIU of a custody injury that occurred earlier that morning.

YRP reported that at 2:08 a.m. on March 11, 2017, the police received a call for a possible impaired driver and a report of a car in a ditch at Kennedy and Vivian Roads in Stouffville.

Police officers arrived at the scene at 2:25 a.m. and became involved a struggle with the Complainant. A conducted energy weapon (CEW) was deployed and the Complainant was arrested. He was taken to the hospital and diagnosed with a broken nose. He ‎refused treatment and was then taken to a YRP station where he was lodged in a cell.

The Team

Number of SIU Investigators assigned: 2

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:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

Subject Officers

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

The Scene

This incident occurred on the south side of Vivian Road in Stouffville, east of Kennedy Road and about 150 metres east of a railway line that transects the road. The road is a two-lane, two way asphalt paved road with no lane markings. There are gravel shoulders on both sides of the road with drainage culverts and farm fields beyond the shoulders on both sides of the road.

The ground was snow covered when this incident occurred. At the time the scene was examined, numerous footprints were observed on the south shoulder, in the culvert, and in the field. Tire tracks were visible in the snow that appeared to originate from the first driveway east of the scene.

Examined about 12 hours post-incident, no evidence was found of CEW deployment. Aphids from the deployment had blown away in the wind and/or became concealed in the snow.

Physical Evidence

WO #2’s CEW was deployed in this incident and was released to the SIU. It was examined and the data was downloaded.

Download of the data revealed that the device was armed at 2:31:53 a.m. Two seconds later, it was “arced” for one second; 16 seconds after that phase, it was discharged for five seconds starting at 2:32:12 a.m. At 2:32:55 a.m. it was placed in “safe” mode. That was the only discharge event data.

Video/Audio/Photographic Evidence

Neither the SO nor WO #2 activated their police cruisers’ emergency equipment when responding to the incident and thus the in-car camera (ICC) system did not record the event. Further, neither police officer wore the portable microphones when they exited the vehicles and engaged the Complainant.

Communications Recordings

911 Call Recording

CW #1 called 911 reporting there was a vehicle in a farm field and said he was talking to the driver who was impaired. CW #1 added, “He’s either very impaired or he’s very sleepy so I would assume it’s more the impaired part.” During the call, CW #1 said the male turned off the car then ran east in the ditch alongside the road.

The Complainant was heard on the recording while standing beside CW #1’s driver door. The Complainant told CW #1 he needed a tow to get his vehicle out of the field. The Complainant said he used to live on the property and that he had been there “trying to chill” for one-and-a-half to two hours. He said he was okay and only needed to use a phone to call a tow truck.

CW #2 remained on the phone until the police officers arrived.

Communications Recording

In the initial radio transmission, police officers were dispatched to the scene with the dispatcher providing updates as information was received from the callers [now known to be CW #1 and CW #2].

There was no radio report of the police officers arriving but in a subsequent transmission, a police officer reported “We have one in custody. We’ve had a Taser deployment,” and requested an ambulance and a supervisor to attend the scene.

Detailed Call Summary Report

The Detailed Call Summary report indicated that CW #1 called 911 at 2:07 a.m. The SO and WO #2 were dispatched about two minutes later.

At 2:26:06 a.m., CW #2 told the dispatcher she saw the police arriving.

At 2:32:53 a.m., WO #2 reported, “One in custody. Had a Taser deployment.” He then requested an ambulance and a supervisor to attend the scene.

Materials obtained from Police Service

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

• Call History / Detailed Call Summary Report
• Communication recordings
• 911 recording
• CEW Tracking Sheet
• Duty Roster
• General Occurrence / Crown disclosure brief (redacted)
• ICC video
• Notes of WO #1 and WO #2
• YRP Station video recordings, and
• Procedure - Use of Force

During the early morning hours of March 11, 2016, CW #1 and CW #2 called 911 reporting a possible impaired driver. The Complainant’s car was stuck in a farmer’s field, and the Complainant was hoping for a tow truck to remove it. The SO and WO #2 arrived on scene, and arrested the Complainant for impaired operation of a motor vehicle. The Complainant resisted and was grounded. Once on the ground, the Complainant’s left arm was handcuffed, but he pulled that arm under his body. The SO delivered a distractionary elbow blow to the Complainant, likely hitting the Complainant in the side of the face. The Complainant started to kick at the SO. WO #2 deployed his CEW, and the Complainant was handcuffed.

The Complainant was bleeding from his face, and was taken to the hospital by ambulance. He was examined and diagnosed with a broken nose.

The Complainant re-attended the hospital later that day with his mother. He was discharged 51 minutes later with the same diagnosis as the initial admission.

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 253, 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

On March 11, 2016 at 2:07:07 a.m., a 911 call was received by the YRP from CW #1 reporting a possible impaired driver. CW #1 reported that a car was stuck approximately 50 feet (15.24 metres) in a farmer’s field and that he was speaking to the driver, the Complainant, who he described as either very impaired or very sleepy, and he assumed him to be impaired. CW #1 described his location as being on Vivian Road just east of Kennedy Road in the Township of Whitchurch-Stouffville. The SO and WO #2 were both dispatched to the scene, with WO #2 arriving first. During the Complainant’s interaction with police, a CEW was deployed and the Complainant was later assessed at hospital as having sustained a broken nose.

In his statement to investigators, the Complainant denied consuming any alcohol or drugs prior to the incident. He alleged that a group of police officers attacked him and one police officer punched him in the nose, breaking it. Following his initial interview with investigators, the Complainant later amended his statement indicating that he had not been punched in the nose, but rather had been struck with a police baton.

On a review of all of the evidence, I am unable to place much credence in the version of events supplied by the Complainant and find that he is not a reliable historian; whether due to his level of intoxication or for some other unknown reason, his recollection of events is directly contradicted by the civilian witnesses, the communications recordings, his medical records and the evidence of the police officers present.

While the Complainant indicated that he had not consumed any drugs or alcohol prior to his arrival at the field where his vehicle became stuck, his blood was screened at hospital later that morning and he was found to have a blood/alcohol level of 49 mmol/L, which translates to 225 milligrams of alcohol per 100 milligrams of blood, or almost three times the limit at which one can legally operate a motor vehicle pursuant to the Criminal Code. The Complainant’s medical records also describe him as “combative, uncooperative” and “aggressive”. Additionally, his blood/alcohol level was noted as “49.3 HP”, which refers to “High Panic”, an alert to emergency room physicians to be extra attentive due to the high level of alcohol and the potential danger to the patient.

While the Complainant advised that he sat in the vehicle of CW#1 and CW#2 while waiting for the tow truck, both CW#1 and CW#2 advised that at no time did he enter their vehicle. Further, the Complainant indicated that he had arrived at the farmer’s field at 9:00 p.m., and waited there for 1 and one half to two hours, the 911 call confirmed that CW#1 called at 2:07 a.m.; which would put the Complainant as either having arrived much later than he believed, or having spent five hours in the field.

Moreover, while the Complainant described his interaction with police as involving four to five Caucasian male police officers who attacked him, both CW#1 and CW#2 indicated that only two male officers were involved in the arrest of the Complainant, with a third female police officer arriving shortly after the interaction, along with an ambulance. This information is also confirmed by CW#3 and by the communications recordings. While the Complainant advised that he had been “attacked” by the police officers, and that one police officer had either punched him in the nose or struck him with a baton, neither CW #1 nor CW #3, who witnessed the interaction, described any police officer striking or punching the Complainant at any time.

According to WO #2, he approached the Complainant while the SO spoke to CW #1 and CW #2 in their vehicle; this is consistent with the evidence of the SO and all three of the civilian witnesses. WO #2 described the Complainant as appearing intoxicated, staring through him and unable to stand still. After detecting a faint odour of alcohol on the Complainant’s breath, in addition to his other observations, WO #2 was of the view that he had reasonable grounds to arrest the Complainant for impaired driving and advised him as such. WO #2 then told the Complainant to turn around and place his hands behind his back; this evidence is confirmed by CW #3. WO #2 advised that he then reached for the Complainant’s left arm and brought it behind his back, whereupon the Complainant clenched his fists and attempted to pull his arms to his front. WO #2 advised that the Complainant was then taken to the ground, landing face down on the asphalt, where he continued to actively resist. The SO advised that he was the one who made the decision to ground the Complainant as he was not complying and was becoming more resistant. The SO advised that he told WO #2 that he was going to ground the Complainant and he pulled on the Complainant’s left wrist and triceps to the left and then pushed him to the ground, in a controlled manner, where he landed first on his knees and then on his stomach on the snow-covered shoulder of the road. None of the civilian witnesses observed exactly how the Complainant was taken to the ground, but two of the civilian witnesses observed seeing both police officers and the Complainant go the ground together, while the third observed the Complainant face down on the ground, cursing at the police officers.

The SO advised that he placed his left knee below the base of the Complainant’s neck in an attempt to pin him to the ground; this is confirmed by CW #3. The SO advised that he then managed to secure the Complainant’s left wrist with a handcuff, when the Complainant pulled his right arm forward and tried to free his left arm. The SO advised that he was aware of the danger and risk posed by a loose swinging handcuff and, as such, he maintained a grip on the unsecured handcuff as the Complainant started to pull the cuffed hand under his body. At that point, the SO advised that he had intended to deliver a distractionary elbow blow to the Complainant’s upper shoulder area, but the Complainant started to roll over and the SO believed that he grazed the top of the Complainant’s shoulder striking him in the side of the face. The SO advised that the Complainant then managed to roll onto his back and began to kick at the SO, making contact with his right inner thigh within inches of his groin area, at which point the SO then rolled the Complainant back onto his chest and WO #2 asked if he should deploy the CEW. WO #2 sparked the CEW and warned the Complainant to stop or he would discharge the CEW; when the Complainant continued to resist, the SO stepped away and WO #2 discharged the CEW making contact with the Complainant’s lower back and upper buttocks, at which point he was successfully handcuffed.

WO #1, who arrived shortly after the Complainant had been handcuffed, observed the Complainant still being aggressive, squirming and shouting obscenities while the SO had one knee on the Complainant’s lower back and the other on his left shoulder and WO #2 stood on his right side with his CEW in his right hand and the wires extending to the Complainant’s lower back. She also overheard WO #2 then ask the Complainant “Are you done yet?” WO #2 then provided WO #1 with a summary of what had occurred which was consistent with his statement to investigators.

WO #2 opined that the Complainant may have been injured when he was grounded and shocked with the CEW, while the SO was of the view that the injury could have occurred either when he delivered the distractionary elbow strike which inadvertently struck the Complainant in the face, when he was initially grounded or later, after he kicked out at the SO, when he was pushed back down to the ground a second time.

At hospital, the Complainant was diagnosed with a broken nose which was realigned with no further treatment required.

The CEW discharge data log confirmed that WO #2’s CEW was discharged on one occasion for a period of five seconds at 2:32:12 a.m.

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 CW #1, the information provided to the police officers in the 911 call and the observations made of the Complainant by both the SO and WO #2, that they had reasonable grounds to believe that the Complainant had been operating a motor vehicle while impaired. Despite the fact that the determination was later made that because the police were unable to determine the actual time of driving due to the circumstances wherein the car was immobile and stuck in the farmer’s field at the time of the arrival of police and no one actually saw the Complainant driving, that the Complainant would not be charged, that does not change the fact that at the time of the interaction the police had sufficient information in their possession to form reasonable grounds to believe that the Complainant had committed the offence of impaired driving, relying on the information that he was intoxicated, he was in possession of the key to the motor vehicle, he had admitted to witnesses that he had been driving the motor vehicle, and he was taking actions which indicated that he still had the motor vehicle in his care or control including attempting to have the vehicle towed. As such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by police officers in their attempts to subdue the Complainant, one has to consider what the police officers were dealing with at the time the injury was sustained in order to determine if the amount of force used was excessive or not. The police officers on scene both indicated that the Complainant was intoxicated, he was actively able to resist being placed into handcuffs, he kicked the SO in the upper thigh area near his groin, and he pulled away after one hand was handcuffed while the other cuff was still hanging loose from his hand and could be used as a potential weapon against the police officers. Additionally, he is variably described as struggling, tucking one arm under his torso, shouting, swearing, thrashing about and kicking at the police officers. I find that these observations of the behaviour of the Complainant during his interaction with the SO and WO #2 are consistent with the observations of medical staff that he was “combative, uncooperative” and “aggressive” and with the observations of WO #1 after the fact, when she observed the Complainant still behaving aggressively, shouting obscenities and squirming, while the SO was holding him down on the ground. As such, I am satisfied that the Complainant was loudly and actively resisting his arrest by police and, as such, was first taken to the ground, and then had the CEW deployed at him, in order for the officers to gain control and to handcuff the Complainant.

On these facts, although I find that the Complainant’s injury was caused by the police officers either when the Complainant was taken to the ground or when the SO delivered a distractionary elbow strike which inadvertently struck the Complainant in the face, I find that pursuant to section 25(1) of the Criminal Code, the police officers involved used no more force than was reasonably necessary in the execution of their lawful duties in apprehending an intoxicated, combative and resistant man and that the force used by them was no more than was required to protect themselves from the Complainant and to subdue and handcuff him. As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the police officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: November 20, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit