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 an 18-year-old man, during his arrest on December 9, 2016.

Notification of the SIU

The SIU was notified of the incident by the Guelph Police Service (GPS) on December 14, 2016 at 4:30 p.m. [1]

On December 13, 2016, Civilian Witness (CW) #1 informed GPS of the serious injury sustained by the Complainant. The Complainant told CW #1 that he had been arrested by a GPS officer on December 9, 2016, and charged with theft and assaulting a police officer.

On December 9, 2016, shortly after his arrest, the Complainant was examined at the hospital for a possible facial injury. He was released into custody when his examination was negative. However, the Complainant returned to hospital on December 12, 2016, and was found to have suffered a fractured orbital bone. GPS subsequently notified the SIU of the injury on December 14, 2017.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

Subject officers

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

The scene

The map shown above depicts the route allegedly taken by the Complainant from the intersection of Hadati Road and Auden Road, the scene of the alleged thefts from vehicles, to the intersection of Victoria Road North and Eastview Road, where the Complainant was arrested. The total distance was 1.35 kilometres.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. The Complainant provided photos of his injuries taken on December 10 and December 12, 2016.

Communications recordings

At 8:30 p.m., on December 9, 2016, CW #6 called the GPS Communications Centre and reported a suspicious man walking on Hadati Road whom he believed was entering parked vehicles. He supplied the man’s direction of travel and described his appearance and clothing.

The SO asked for another unit at Victoria Road North and Eastview Road. Very shortly thereafter and with a strained voice, he broadcast that he was engaged in a foot pursuit.

The Complainant was heard in the background asking why he was being detained. The SO aired that he had the Complainant on the ground and in custody. The SO sounded out of breath. A second unit arrived and the Complainant was handcuffed. The SO replied to the dispatcher that he and the other officer were still dealing with the Complainant and to stand by.

Materials obtained from Police Service

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

• Arrest Report
• Communications recordings
• GPS Cell video
• Dispatch from Computer Aided Dispatch Details
• Notes of WO #2, WO #3 and WO #4
• GPS photographs of the SO’s injuries
• The SO’s pen
• Property List
• Witness List, and
• Witness Victim List

During the evening of December 9, 2016, GPS received a call regarding a male pulling on vehicle door handles in the area, trying to enter various vehicles. The SO responded to the call and located the Complainant approximately 1.35 kilometres away. The Complainant matched the description provided and the SO decided to arrest him.

The SO stopped his cruiser on the sidewalk near the Complainant, exited and informed the Complainant that he was under arrest for theft. The Complainant denied stealing anything. The SO called for another unit to assist him in arresting the Complainant. The SO drew his conducted energy weapon (CEW) and pointed it at the Complainant’s chest, asking him to place his hands on the hood of the cruiser. The SO attempted to handcuff the Complainant and a struggle ensued. The Complainant was taken to the ground and handcuffed. He was then transported to the GPS station by the SO.

At the station, the Complainant complained of pain to his face, and had an obvious facial injury. He was transported to the hospital by the SO and WO #4, but no x-rays were taken and he was diagnosed with no serious injury and returned to police custody. When the Complainant returned to hospital three days later, an x-ray confirmed that he had sustained a fractured orbital bone.

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 December 9^th, 2016 at approximately 8:30 p.m., a 911 call was received by the GPS from CW #6 requesting police assistance in the area of Hadati Road and Victoria Street near a convenience store in the City of Guelph. CW #6 provided a description of a male, including his clothing, who was seen pulling on door handles attempting to enter motor vehicles in the area. As a result, the SO was dispatched to the area but was unable to locate anyone so he continued to patrol the area. While en route to speak to the 911 caller, the SO located the Complainant walking northbound on Victoria Street, matching the description provided by the caller, and attempted to arrest him. Following the Complainant’s interaction with police, he was taken to hospital but diagnosed with no serious injury. When he returned to hospital days later, he was diagnosed with a fractured orbital bone.

It is alleged that the SO, in his interaction with the Complainant, caused the Complainant’s injury and in doing so, exercised an excessive amount of force. On the contrary, although the SO concedes that he may have caused the injury to the Complainant, the SO asserts that his use of force was justifiable and directly in response to the Complainant’s resistance and assaultive behaviour.

It is not in dispute that the Complainant had a methamphetamine pipe with residue in his possession at the time of his arrest, or that he had smoked the pipe several hours prior to his interaction with the SO. It is also not in dispute that in the course of the interaction, the SO pointed his CEW at the Complainant, or that the SO sustained an injury to his face. The Complainant alleges that the SO tackled him to the ground and punched him in the face multiple times, in the area of his right eye. He also alleges that an officer struck his forehead against the hood of the cruiser. The Complainant denies resisting his arrest in any way.

In the days following the Complainant’s interaction with the SO, he made several statements to various persons, including a written complaint to the OIPRD.

In the Complainant’s OIPRD complaint, he indicated that he had been walking home from Hadati Street on Victoria Street when a police officer drove past him and then stopped in the driveway in front of him. He described the SO quickly getting out of his car and the Complainant said, “Hey, can I help you sir?” when the SO pulled out his “Taser” and said he was under arrest and to put his hands on the hood of his cruiser and the Complainant did as asked. His report indicates that he continually asked the officer why he was being arrested but the officer would not tell him so he took a couple of steps away from the car and continued to question the officer why he was being arrested. The SO then “got frustrated and tackled me and started punching and kicking me (sic) another officer joined in I layed (sic) still and asked why are you arresting me Why are you hitting me sir please stop and kept repeating that. Then I got lifted to my feet and my face smashed off the car.” The Complainant’s report goes on to indicate that as he continued to question the officers as to the purpose of his arrest, “they put cuffs on me and threw me backwards and started hitting me I layed still and just was asking why was I being arrested.”

The medical records of the Complainant confirm that he was diagnosed on a second visit to hospital as having sustained a fracture to the floor of the right orbit with mild herniation.

On a review of all of the evidence provided by the Complainant, I find that his statements are unfortunately rife with inconsistencies, a sampling of which are listed below:

In the Complainant’s statement to the SIU investigators and in his OIPRD statement, as well as his utterances to CW #3 and CW #8, the Complainant was very clear that he was confused as to why the SO was arresting him and that, despite numerous requests, the SO refused to tell him the reason behind his arrest. This directly contradicts what he told CW #5 and CW #7 to the effect that he was immediately advised by the SO as he approached that there were reports of someone stealing from cars in the area and that the description of the culprit was similar to the complainant’s.

In all of the Complainant’s statements, he is very clear that he was stopped by the SO while he was walking back towards his residence. It is however quite clear upon a review of the map of Guelph that the direction that the Complainant travelled from the convenience store, at Cassino Road and Hadati Street, to the point where he was approached by the SO, at Victoria Road North and Eastwood Avenue, indicated he was in fact walking in the opposite direction away from his residence.

In his statement to the SIU, the Complainant described the SO assaulting him, but could not recall if any other officers who arrived on scene had any contact with him or not. On the contrary, in his OIPRD statement, the Complainant alleged that he was assaulted by at least two police officers. He wrote that the SO “started punching and kicking me another officer joined in …. Then I got lifted to my feet and my face smashed off the car”. The Complainant’s report goes on to indicate that as he continued to question the officers as to the purpose of his arrest, “they put cuffs on me and threw me backwards and started hitting me I layed still and just was asking why was I being arrested.”

The Complainant’s statement to the SIU contradicted what he told CW #5, about the timing, nature and reasons for the SO’s assault upon him and is further contradicted by what he told CW #3. The Complainant’s version of the assault given to CW #3 also would have occurred after other police officers were on scene and in a position to have seen the assault.

The Complainant alleges that he did not cause the injury to the SO’s eye, but instead it resulted from two pens that the officer had in his vest pocket. (I note, as an aside, that in the photos taken of the SO’s injury, it is clear that the pocket in which he has a pen is on the left side of his chest, while the injury is to his right eye.) In the Complainant’s statement to CW #5, the Complainant provided an alternative explanation for the SO’s injury, indicating that the officer was scratched by the zipper on the Complainant’s coat. While one or the other of the explanations proffered by the Complainant as to the source of the injury to the SO’s eye may have seemed plausible at the time that the Complainant saw the SO, that being when the injury only appeared to be a small scraping of the area below the eye with blood showing but not actively bleeding, the later photos, once the injury had fully developed, revealed that the SO’s entire eye was swollen and black, which I find to be less consistent with the two explanations offered by the Complainant.

As indicated above, this is but a small sampling of the inconsistencies in the Complainant’s various statements. I find on the whole that the Complainant has provided, between his statement to the SIU, his report to the OIPRD and his utterances to various other parties, at least three totally different versions of events, which unfortunately leave the Complainant with little, if any, credibility. His versions of events contradict each other regarding the number of officers assaulting him, the timing of the assault in relation to being handcuffed, and the manner of the assault. Additionally, he contradicts himself as to whether he was told why he was being arrested, and whether he resisted the arrest in any way. Based on these many and varied accounts from the Complainant with respect to what occurred during his interaction with the SO and other police officers on December 9, 2016, I find that his evidence fails to rise to the level required to satisfy me on reasonable grounds that an offence of assault bodily harm was committed on the Complainant by the SO and/or other police officers.

Having made that finding, however, I will also address the evidence of the SO and the other police officers involved in the Complainant’s arrest. On a review of all of the evidence, it appears that the Complainant’s initial statement to CW #5, where there was no allegation of being punched or kicked by any police officer, is corroborated to some degree by the statements of the SO, WO #3 and WO #4.

The SO, in his statement, advised that he received notification of the person who was attempting to break into cars and a description of the perpetrator and he headed to that area. He advised that after being unable to locate the party in the area, he was driving to the 911 caller to speak with the witnesses, when he observed the Complainant, who he described as matching the description of the alleged perpetrator, walking northbound on Victoria Road. The SO indicated that he spotted the Complainant in an area approximately one to two kilometres (subsequent investigation confirmed the distance as being 1.35 kilometres) from where the alleged perpetrator was initially seen but that the suspect would have had sufficient time to walk that distance in the intervening time frame. On that basis, the SO believed that he had sufficient grounds to arrest the Complainant for theft and he illuminated him with his spotlight and then pulled in and stopped his vehicle on the sidewalk a few metres ahead of the Complainant. As the SO exited his police vehicle, he indicated that the Complainant turned and began to walk away. The SO called out to the Complainant, who then turned and began to walk toward the SO as the SO walked around the front of his SUV. The SO indicated that the Complainant’s behaviour, that being that he appeared jittery, his eyes were darting around, he was quite animated and full of energy and was hopping up and down, were indicators to him that the Complainant could be under the influence of an intoxicant.

The SO advised that as he was about ten feet [3.05 metres] from his SUV and about 20 feet [6.10 metres] from the Complainant, he told the Complainant that he was under arrest for theft and to put his hands on the hood of the police vehicle. He described the Complainant as immediately becoming upset and yelling that he did not steal anything and that he had his hand by his chest and appeared to be digging in his right jacket sleeve for something which the SO thought might be a weapon, but which later turned out to be his methamphetamine pipe. The SO described the Complainant as telling the SO continuously that he could not arrest him and his actions became aggressive, at which point the SO became concerned and called for another unit to assist, while withdrawing his CEW and directing the laser light at the Complainant’s chest. This evidence is confirmed by the radio transmissions recording which reveals the SO asking for another unit at Victoria Road North and Eastview Road.

The SO indicated that he again told the Complainant that he was under arrest and to put his hands on the hood of the SUV, which the Complainant started to do, and the SO approached from behind with the CEW light still activated and directed at the Complainant. This is consistent with the evidence of the Complainant. The SO advised that he then reached for the Complainant’s right hand and simultaneously holstered his CEW at which point the Complainant turned and pushed away from the SO and ran to the rear of the SUV and then northbound toward Eastview Road. This evidence is confirmed by the radio transmissions recordings where the SO is heard to broadcast “Foot pursuit. Male”. The SO appears to be breathing heavily when he makes this transmission and the sounds of running are heard on the tape. The SO then caught up to the Complainant within approximately 50 feet [15.24 metres], at which point the Complainant suddenly stopped, turned, and brought his hands up in what the SO described as a boxing stance. The SO advised that he was about four feet [1.22 metres] away from the Complainant when the Complainant suddenly stopped and, due to the snow on the ground, the SO was unable to stop in time and he put his hands up in front of his face but the Complainant punched him in the right eye. The SO conceded that he was unsure if the Complainant meant to punch him or that he was just concerned that the SO was going to run into him and made contact with the SO for that reason. I find that the photographs of the abrasion under the SO’s right eye and his black and swollen eye are consistent with this evidence.

The SO advised that after he was struck in the eye, whether intentionally or not, his eye began to tear up and it was difficult for him to see for a moment and he and the Complainant collided and their heads made contact. The SO then used a forward foot sweep and pulled the Complainant’s body forward whereupon the SO’s momentum brought the Complainant to the ground with the SO landing on the Complainant’s back and side. I find that this evidence is consistent with the statement of events that the Complainant provided to CW #5. The SO conceded the possibility that either the collision or his forearm may have caused the injury to the Complainant’s eye. The SO advised that the Complainant continued to resist while he was on the ground and he put the Complainant onto his stomach while the Complainant continued to indicate that he had not done anything wrong and asked the SO what he stole. The SO then made a second request for police assistance over the police radio. The radio communications recording confirms that the SO is heard to state “he’s in custody” while apparently out of breath while a second officer is then heard to transmit to the SO asking “[SO’s first name], where are you exactly, I can see your car.” I find that these recordings corroborate the evidence from the SO that the Complainant had run from the area of the police cruiser and was apprehended some distance away. The SO is then heard to transmit “I’ve got another unit here. Everybody can slow down – he’s cuffed”, again the SO is heard to be breathing heavily on the recording. Following that transmission, the SO is heard to say “We’re still dealing with him, stand-by, we’re 10-4” and again labored breathing is heard from the SO. The dispatcher is heard to question “10-4?” which is the code for message received, but there is no further response from the SO at that point.

The SO advised that after he made the call for back up, the Complainant was resting on his arms and struggling to prevent his arms from being brought behind his back to be handcuffed. The SO indicated that he was lying on, or straddling, the Complainant, with his left arm across the Complainant’s upper back and head. With his right hand, the SO then delivered open and closed hand distractions to the upper torso, shoulder blade and possibly facial area of the Complainant in order to get him to comply and be handcuffed. The SO advised that he did not know how many hand strikes he delivered but that he was concerned that the Complainant could access a weapon in his hoodie sleeve. The SO described the hand strikes as effective and he completed handcuffing the Complainant, after which he located the crystal methamphetamine pipe up his right sleeve, but no weapons. WO #4 then arrived and parked his cruiser on the boulevard and took control of the Complainant while telling the SO to catch his breath. WO #4 then took the Complainant to his police vehicle and rested him across the hood where the SO completed his search of the Complainant while WO #4 held him against the hood.

The SO advised that the Complainant continued to resist while being searched and pushed off the police vehicle at which point he was pushed back onto the hood and his head made contact with the hood, but he described it as a control technique and not a use of force and there was no audible bang. The SO then located four baggies of white crystal powder in the Complainant’s right front pocket. When the Complainant continued to struggle, he was taken to the ground to complete the search. The SO advised that the Complainant was then picked up by himself and WO #4 and placed into the SO’s police vehicle. The SO indicated that he had received a cut to his right eye lid and it began to swell and that the Complainant apologized to him. While the Complainant acknowledged his possession of less than a point (1.1 grams) of methamphetamine and that he had been smoking crystal methamphetamine that evening, he continued to repeat that he had done nothing wrong. With respect to the Complainant’s allegation that the SO punched him multiple times in the eye, the SO conceded that was a possibility given the circumstances of the fluid situation and the Complainant actively resisting throughout.

WO #4 advised that he heard the service call indicating that someone was stealing from parked vehicles and he noted the description of one of the males. He also heard the SO indicate that he would start searching the area and, at 8:45 p.m., he heard the SO radio for assistance which, he indicated, caused him some concern as he had never known the SO to request assistance before. WO #4 then drove to the area of Victoria Avenue and Eastview Road, but could not locate the SO. He then asked where the SO was and located him three or four houses south of Eastview Road. Again, this is confirmed by the radio transmission recording. WO #4 advised that upon his arrival, the Complainant was face down on the sidewalk with the SO kneeling on his right side and holding him down with both hands on his back. The Complainant was already handcuffed at that point. WO #4 observed the SO to be out of breath but did not observe any signs of a struggle. The SO then told WO #4 that the Complainant had struck him and WO #4 observed a purple mark on the lower portion of the SO’s right eye. The SO also advised WO #4 that the Complainant had tried to get away, but provided no details. WO #4 advised that the Complainant was then picked up from the ground and taken to the police cruiser where he was placed against the hood. WO #4 described the Complainant as being agitated and acting like a “bucking bronco” while being searched. The Complainant continued to complain that he had done nothing for which he could be arrested while WO #4 told him to stop resisting. WO #4 observed the SO to remove a number of baggies from the Complainant’s front right pant pocket. When the Complainant continued to struggle, WO #4 suggested that he should be put back onto the ground to regain control, at which point the Complainant was put onto a snow bank in a controlled manner and WO #4 held the Complainant, who continued to try to get away, while the SO completed his search.

WO #3, in his statement, indicated that he heard the SO’s request for assistance, over the radio, and that it sounded to him as if the SO was out of breath and might possibly be involved in a struggle. He advised that upon his arrival, the SO and WO #4 already had the Complainant in custody and that WO #4 was kneeling on the left side of the Complainant in the area of his head and shoulders while the SO was straddling or kneeling over the Complainant’s upper legs; he indicated that the Complainant was already handcuffed with his hands behind his back at that point. WO #3 and WO #4 then picked the Complainant off the ground and walked him over to the hood of the police SUV where he was gently leaned over the hood and searched and later transported to the station.

WO #1 also advised that he heard the radio transmission from the SO requesting assistance and that his tone indicated a sense of urgency. When the Complainant was being booked in, WO #1 asked him if he understood the charges, to which the Complainant responded, “I guess so but I did not steal anything.” WO #1 observed that the Complainant had a swollen right eye and an abrasion to the right centre of his forehead and a swollen upper lip and that the Complainant advised him that the SO had inflicted the injuries and had pointed a CEW at him and subsequently punched him. WO #1 indicated that though the Complainant indicated that he did not drink alcohol, he noted a moderate odour of alcohol on his breath and his speech was slurred. WO #1 advised that he also observed a contusion under the SO’s right eye with slight swelling and he was told by the SO that the Complainant had punched him in the eye during the arrest.

On all of the evidence before me, I find that the evidence of the SO is substantially confirmed both by the initial statement of the Complainant to CW #5 as well as the radio transmission recordings, the utterance of the Complainant to CW #8, the utterances made by the SO immediately after the incident to both WO #4 and to WO #1 that he had been struck in the eye by the Complainant, and the evidence of both WO #4 and WO #3 wherein the evidence of the Complainant is refuted. On all of the evidence, I find that the Complainant’s credibility is severely damaged both by the fact that his evidence of incidents that occurred in front of other witnesses is contradicted by those witnesses and by the many inconsistencies in his various statements, while the evidence of the SO is both internally consistent and confirmed by his injury, the radio transmission recordings, his utterances to other officers immediately following the incident and the initial statement of the Complainant to CW #5. As such, while only the SO and the Complainant were present during the initial interaction, I find that I am unable to accept the evidence of the Complainant overall, due to the damage done to his credibility, except where it is confirmed or consistent with some other evidence. On that basis, I accept that the Complainant ran from the SO and then struck the SO in the eye, that the SO took the Complainant to the ground, that the SO fell with the Complainant and that once on the ground, when the Complainant continued to resist, the SO delivered a number of open and closed hand strikes to the Complainant which may have caused the injury to his eye. I reject the evidence of the Complainant where it is inconsistent with the other evidence but I do accept the Complainant’s statement to CW #5 as being substantially accurate. Furthermore, while there is insufficient evidence to confirm that the Complainant was in fact stealing property from parked cars, I am satisfied he was in the very area of the cars that had been approached, and checked, by a suspicious male to see if the doors were locked, that he matched the description given by the 911 caller, that he was still in the general area when the SO arrived and that the SO had reasonable grounds to believe that the Complainant was the culprit being sought and could be arrested for theft or attempted theft. I also find that the Complainant’s continued protestations that he had not stolen anything was as consistent with him not being the culprit observed by the 911 caller trying to enter parked cars, as it is with him, in fact, being that same party but that he never found anything or had been unable to enter any cars and therefore had not actually stolen anything. I find support in this finding from the fact that the Complainant repeatedly asked what he had stolen and claimed he had not stolen anything, but never indicated that he had not tried to enter the parked cars.

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, for the reasons already mentioned above, the SO had reasonable grounds to arrest the Complainant for theft contrary to the Criminal Code based on the information and description provided by the 911 caller. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in his attempts to apprehend and then subdue the Complainant, I find that his behaviour was justified in the circumstances and that he used no more force than necessary to subdue the Complainant who was clearly intent on evading the SO, was actively resistant, and was continuously reaching into his right sleeve for what could have been a weapon. Furthermore, in light of the fact that he had already caused injury to the SO, either intentionally or otherwise, it was reasonable to conclude that he was capable of doing so again, if not subdued. While I find that the injuries to the Complainant were caused by the SO during his attempts to arrest the Complainant, either when the Complainant stopped suddenly and the SO, with his forward momentum, collided with the Complainant and their heads made contact, or thereafter, when the SO used a number of open and closed hand strikes to attempt to subdue the Complainant and handcuff him, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by the SO progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention. 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:

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 in apprehending and subduing the Complainant fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention and to remove the risk that he continued to pose as long as he was not handcuffed and reaching for whatever he had secreted in his right sleeve. While, in hindsight, we now know that the Complainant was not reaching for a weapon, that is not a risk that the SO could afford to take in the circumstances.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention and the manner in which it was carried out were lawful notwithstanding the injury which he suffered. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: November 16, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] On December 10, 2016, the Complainant filed a complaint with the Office of the Independent Police Review Director (OIPRD). [Back to text]