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 20-year-old man during his arrest on January 5, 2017.

Notification of the SIU

On January 5, 2017 at 1:39 p.m., the Ottawa Police Service (OPS) notified the SIU of a custody injury to the Complainant.

OPS reported that on January 5, 2017 at 4:32 a.m., OPS police officers responded to a break and enter call at a residence in Ottawa. Upon arrival, the police officers followed footprints to a nearby residence and rang the doorbell. The Complainant opened the door and after some verbal interaction, told the police officers to leave. The police officers left and returned to their police vehicles.

Shortly thereafter, the Complainant’s brother came to the police vehicle and told the officers that it was their mother’s residence, and that her brother was not welcome. The two police officers returned to the residence to ask the Complainant to leave. The Complainant threw a beverage at them and he was subsequently arrested. A struggle ensued and the Complainant was subdued and taken outside where he was placed in a police vehicle.

The Complainant kicked at the rear door and window of the police vehicle. To avoid the glass being broken, and to prevent the Complainant from being injured, the police officers decided to roll the windows down. A third police officer was called to attend the scene. The Complainant attempted to climb through the open window of the police vehicle. He was able to get his body half way through the window before the police officers removed him and then placed him back inside the police vehicle. A Temporary Restraint Device (TRD) was placed around the Complainant’s legs and he was then transported to the station.

While at the police station, the Complainant complained of a sore ankle but refused an ice pack. At 10:15 a.m., Emergency Medical Services (EMS) was called and the Complainant was taken to the hospital, where he was diagnosed with a broken fibula.

The team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 0

Complainant

20-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.

Materials obtained from Police Service

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

• Communications recordings
• Computer Aided Dispatch Report
• OPS Cell block video
• Investigative Action – WO #1 and WO #2
• Notes of WO #1 and WO #2
• Procedure – Arrest
• Procedure – Prisoner Care and Control
• Witness Statement – CW #3 (audio recording and monitor notes)
• Witness Statement – 911 caller (audio recording), and
• Witness Statement – other civilian witness

During the early morning hours of January 5, 2017, the SO and WO #1 responded to a call regarding a break and enter from a garage at a residence in Ottawa. The 911 caller reported that she had confronted a young man who had broken into her garage and he had made off with a quantity of beer. The caller provided a description of the young man.

Upon arriving at the scene, the SO followed a fresh set of footprints in the snow to a nearby residence. When the SO knocked on the door, the Complainant answered. The SO recognized the Complainant as someone he had dealt with earlier that morning, where it was alleged that the Complainant had urinated and masturbated inside an ATM lobby.

The Complainant refused to allow the police officers into the residence and slammed the door shut. A short time later, CW #1 came outside and asked the police officers to come inside and remove the Complainant from the home as he was on court ordered conditions not to attend the residence.

The SO and WO #1 entered the residence and the Complainant was arrested. The Complainant resisted his arrest, and a struggle ensued. The Complainant was eventually removed from the residence and placed into the rear seat of the SO’s cruiser. The Complainant began to repeatedly kick at the door and window of the cruiser. The SO rolled down the rear window to prevent it from being smashed and injuring the Complainant, however, the Complainant then climbed out of the open window and attempted to jump out of the cruiser. The SO pulled the Complainant out of the window and, with the assistance of WO #1, placed the Complainant back into the rear seat of his cruiser. WO #2 then arrived and she placed a Temporary Restraint Device around the Complainant’s legs.

The Complainant was transported to the station where he complained of a sore ankle. He was later taken to the hospital and was diagnosed with a fracture to the left ankle.

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 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

Section 2(1), Trespass to Property Act - Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,

1. without the express permission of the occupier, the proof of which rests on the defendant
   1. enters on premises when entry is prohibited under this Act, or
   2. engages in an activity on premises when the activity is prohibited under this Act; or
2. does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier

is guilty of an offence and on conviction is liable to a fine of not more than $10, 000.

On January 5^th, 2017, a 911 call was received by OPS at 4:17:55 a.m., reporting a break, enter and theft at a residential garage in the City of Ottawa. The caller reported that she had confronted a young man who had broken into her garage and her car and had stolen a knapsack from the car and made off with eight or twelve cans of beer from the garage; the caller also provided a description of the man and indicated that he was last seen heading east on the street on foot. The SO and WO #1 were dispatched to investigate; they were travelling in separate vehicles. Upon arrival at the garage, the SO followed a set of footprints in the freshly fallen snow from the location of the break, enter and theft, to a nearby residence.

Both the SO and WO #1 then attended the front door of the residence and knocked; the door was answered by the Complainant. The SO explained the reason for their presence, and the Complainant immediately became abusive, yelling profanities at both police officers and then slamming the door shut; both officers then returned to their police vehicles.

It is not in dispute that officers attended the residence and advised the Complainant that he was alleged to have committed a break and enter and theft from a nearby garage. Nor is it in dispute that the Complainant slammed the door on the officers.

One of the witnesses advised that the Complainant woke them after the police arrived and they observed the Complainant in the refrigerator hiding some beer. All of the civilian witnesses described the Complainant as acting erratically and appearing intoxicated, and observed the Complainant yelling at police, swearing and threatening them. The civilian witnesses told police that the Complainant was not to be at the house and that they wanted him removed.

All the civilian witnesses then observed the Complainant having a drink of some type of alcoholic beverage in the kitchen and that he then either threw the drink at the SO, or sprayed the SO in the face and on his uniform with the drink, at which point the SO knocked the bottle out of the Complainant’s hand, placed him in a headlock and walked him towards the front door. Once at the front door, the witnesses observed the SO put the Complainant down onto the floor and he rolled onto his stomach and tucked his hands under his chest. The SO then straddled the Complainant, pried out his arms and handcuffed him behind his back while the Complainant was resisting. The Complainant was handcuffed and taken out to the police vehicle, where he was placed into the back seat.

It has been alleged that once the complainant was placed in the police vehicle, he was ripped out of the rear seat by his feet and thrown to the ground by the SO, who began to punch the Complainant in the face, and then raised his foot and, with his heel, stomped on the Complainant’s left ankle, causing the fracture.

These allegations are disputed by the civilian witnesses, none of whom observed any police officer punch, kick or strike the Complainant. None of the three witnesses to the Complainant’s interaction with police support the allegations of excessive use of force or assaultive behaviour by police.

The SO advised that once the Complainant was placed in the police vehicle, he began to aggressively kick at the door frame and the window in the cruiser, which was the reason behind the opening of the cruiser window, in order that the window not be smashed out; this evidence was also consistent with the observations of WO #1. The SO described seeing at least three forceful kicks delivered by the Complainant before the SO was able to get around the cruiser, open the door and lower the window. Once the SO returned to the driver’s seat, and while he was giving the Complainant his Charter of Rights and Freedoms rights and the police cautions, the Complainant began to physically climb out of the open window and the SO had to run around to the rear passenger door, grab onto the Complainant and pull him out and down onto the ground, thereby preventing him from falling out of the window and possibly striking his head on the ground. The SO attributed the Complainant’s injury as possibly having occurred as a result of the forceful kicks to the rear door and window. The SO then called for an officer to attend with a leg restraint system and, when WO #2 attended and put the restraints on the Complainant’s legs, she saw that he was barefoot. From this evidence, one can infer that the Complainant was barefoot when he was forcefully kicking at the door and window of the cruiser, making it far more likely that he could have sustained an injury at that time.[1]

Once en route to the station, and later at the station, the Complainant began to complain of various injuries, most of which were not substantiated, and he was taken to hospital where an x-ray confirmed that he had sustained a fractured ankle and a cast was applied. Later in the day, the Complainant was again returned to hospital as he had ripped the cast off of his ankle. The cast was re-applied. The Complainant’s medical records indicate that throughout both of his visits to hospital, he was loud, rude, belligerent, spitting, and screaming, and that he urinated himself. According to the records, he was still screaming and yelling when he was wheeled away in a wheelchair after the cast had been applied a second time.

On this evidence, it is clear that the version of events as set out by the SO and WO #1 is almost entirely confirmed by the three civilian witnesses, who also directly contradict the Complainant’s version of events which included allegations of his ankle being stomped on and excessive use of force by the SO in the form of punching. The Complainant’s credibility is further undermined by his denial of the allegation that he broke into the garage of the nearby residence, when CW #3 specifically observed him to be hiding the beer, as well as his assertion that he did not spray his drink at the SO, when all three civilian witnesses, as well as the SO and WO #1, observed the Complainant intentionally spray his drink onto the SO and/or throw the drink at him. On the basis of these glaring inconsistencies between the evidence of the Complainant and that of the three civilian witnesses, I am unable to place any credence in the Complainant’s version of events and find that his account of the incident does not rise to the level required to satisfy the requirement of reasonable grounds to believe that an offence has been committed.

That being said, I am still obliged to assess the remainder of the evidence to determine if the use of force was reasonable in the circumstances. 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 various witnesses that the Complainant was breaching the terms of his court ordered conditions by attending the residence, that the witnesses had requested the Complainant be removed from the residence, and that he had assaulted the SO by spraying and/or throwing his drink on him; consequently, the Complainant was arrestable under the Criminal Code for the offences of breaching his court ordered conditions and assaulting a peace officer. The Complainant was also arrestable for trespass when he failed to leave the premises when directed, contrary to s.2(1)(b) of the Trespass to Property Act. As such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue and arrest the Complainant, I find that their behavior was more than justified in the circumstances and that they used no more force than necessary to subdue the Complainant, who was clearly intoxicated, out of control, resisting arrest, combative and assaultive. In light of the fact that he had already assaulted the SO, it was reasonable to conclude that he was capable of doing so again, if not subdued. Although I am unable to determine exactly how the Complainant came to sustain his broken ankle, on the evidence, it appears possible that the injury was self-inflicted, when he forcefully kicked the window and door of the cruiser with his barefoot on at least three occasions, that the injury was accidental, when he landed awkwardly on his ankle when the SO forcefully had to remove him from the window of the cruiser to avoid him falling and striking his head, or by some other means during his actively resisting and assaulting police during his lawful arrest. I am, however, able to conclude that there is no credible evidence to support an allegation of excessive use of force and that the allegation made by the Complainant that the SO caused the fracture to his ankle when he intentionally stomped on his ankle with his heel is totally disproven by the evidence of CW #1. However, even if the Complainant’s injury was caused by the efforts of the officers to subdue him, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by both the SO and WO #1 progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance, his assaultive behaviour and his efforts to escape police, and fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention.

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

Date: November 16, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The fact that the Complainant was barefoot is inferentially confirmed by the fact CW #3 provided the police officers with the Complainant’s shoes and clothes as they left the house after arresting him. [Back to text]