Director's Report Details

The Special Investigations Unit is a civilian law enforcciteent 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 enforcciteent), 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 enforcciteent agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcciteent matter or an investigation undertaken with a view to a law enforcciteent 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 statciteents 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 enforcciteent 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 involvciteent.

This report relates to the SIU’s investigation into the serious injury of a 27-year-old man, discovered following his interaction with police on July 21, 2016.

Notification of the SIU

The SIU was notified of the incident by the York Regional Police (YRP) on July 21, 2016 at 10:25 p.m.

YRP reported that on July 21, 2016 at 8:44 p.m., YRP officers attended a shelter in East Gwillimbury for an assaultive man who was living there. When the police officers arrived, the man apparently attacked the police officers. A conducted energy weapon (CEW) was deployed and the man was arrested. The man was then taken to the hospital after complaining that his right hand was broken.

According to YRP, the man had fractured his hand approximately two weeks prior and had rciteoved his cast sometime before his arrest. The man’s hand was re-casted and he was taken back to the police station.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the scene by way of notes, photography, and measurciteents.

Complainant

27-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 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

The scene

The shelter is located on Yonge Street. Upon the investigator’s arrival, the SO’s cruiser was parked at the side of the roadway by a shed and it was facing south. WO #2’s cruiser was parked facing west and towards the property of the shelter. WO #1’s cruiser was parked to the right of WO #2’s and it was also facing west and towards the property of the shelter.

There was a skid, a roller belt, and a drain tube located to the south of where WO #1 and WO #2’s cruisers were parked. Some of the Complainant’s personal itcites were located on the driveway in the area where the CEW was deployed by the SO.

Scene diagram

Physical evidence

The CEW deployed by the SO, as well as the probes and a quantity of CEW wire, were inspected by the SIU.

Video evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. Closed circuit television (CCTV) video was received from the shelter as well as the in-car camera (ICC) video from the SO’s and WO #2’s cruisers.

ICC video footage summary

ICC footage of the incident was captured from WO #2’s cruiser. The following is a summary of what was captured:

• At 8:44:58 p.m., video commenced from WO #2’s cruiser;
• At 8:45:27 p.m., WO #2’s cruiser faced in a westerly direction and towards the driveway of the property. A man [now known to be the Complainant] wearing pants but no shirt moved back and forth in front of WO #2’s cruiser;
• At 8:45:31 p.m., the Complainant picked up a large wooden skid off the ground and put it back down;
• At 8:45:33 p.m., WO #2 said, “Okay guys it secites like he [the Complainant] is going to be combative here.” The Complainant moved back and forth, and pointed at WO #2’s cruiser. The Complainant repeatedly yelled and walked quickly towards the driver’s side of WO #2’s cruiser as WO #2 exited. Two other police officers [now known to have been WO #1 and the SO] ordered the Complainant to the ground. A red dot from the CEW was visible in the centre of the Complainant’s chest as he moved around directly in front of WO #2’s cruiser. The Complainant’s arms were straight down and his fists were clenched;
• At 8:45:52 p.m., the SO was seen on the driver’s side of WO #2’s cruiser and he was holding a CEW which was pointed at the Complainant;
• At 8:46:01 p.m., the Complainant backed up and said, “You are a pussy. Come on, you are a fucking pussy. Let’s go”;
• At 8:46:09 p.m., audio commenced from the SO;
• At 8:46:12 p.m., the SO and WO #2 ordered the Complainant to get on the ground. The Complainant moved backwards and a third police officer [now known to be WO #1] appeared from the right side of the screen. The Complainant said, “shoot me, I hope I die”;
• At 8:46:20 p.m., the Complainant moved quickly towards WO #2;
• At 8:46:20 to 8:46:25 p.m., sounds of the SO’s CEW could be heard being deployed. The Complainant fell backwards and the back of his head bounced off the ground when he landed. The Complainant said, “Ahhhh, okay, okay okay.” The SO ordered the Complainant to stay down or he would “taze” him again. The SO continued to point the CEW at the Complainant. WO #2 and WO #1 moved in towards the Complainant;
• At 8:46:30 p.m., the Complainant said, “My hand’s broken sir;”
• At 8:46:50 p.m., the SO called dispatch and requested an ambulance for a CEW deployment;
• At 8:48:30 p.m., WO #2 said, “EMS [Emergency Medical Services] is coming, ya?” The Complainant said, “Ya, I gotta broken hand, so we gotta get that sorted out.” One of the police officers asked the Complainant how he broke his hand;
• At 8:48:36 p.m., the Complainant said, “I fucking broke it way before you guys got here. I gave up on life. Like I’d rather die. I would rather die,” and “Cuz I’ve been treated like a punk since I was a kid;”
• At 8:57:39 p.m., the Complainant said, “I punched a fucking sign…man…cuz I fucking give up.” The Complainant said he would rather die, if someone could “do” him right now he would be happy, he does not want to live this way;
• At 9:01:24 p.m., an ambulance arrived;
• At 9:04:10 p.m., the Complainant asked to have the handcuffs rciteoved and said to look at his hand, it was broken;
• At 9:04:55 p.m., a paramedic asked the Complainant what he did to break his hand. The Complainant said, “I hit the fricken fence sign thing and it, it popped out and when I seen it popping out I…(his voice drifted off)”;
• At 9:05:45 p.m., a paramedic asked the Complainant if he lost consciousness and the Complainant said no, he rcitecitebered everything; and
• The Complainant said he had been drinking “Forty Creek” [whisky]

Communications recordings

911 communications rummary

• CW #1 called 911 and reported that she needed police assistance at the shelter located on Yonge Street because there was a client [now known to be the Complainant] who was out of control and that he had been drinking [now known to be alcoholic beverages]
• The Complainant was screaming and yelling and saying that he wanted the police to “Come and get him”
• The Complainant was kicking property, such as the Plexiglas from the smoking area, and he was also kicking soccer balls at people;
• CW #1 said she was able to smell a strong odour of an alcoholic beverage citeanating from the Complainant’s breath, and
• CW #1 believed that from the way the Complainant was acting, it appeared to her that the Complainant wanted to start a fight with anyone

Materials obtained from Police Service

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

• Computer Aided Dispatch (CAD) Report-Communications record
• Communications recordings
• Duty Roster (Telestaff Roster) -July 21, 2016
• General Occurrence Report
• Notes of WO #1 and WO #2, and
• ICC video for the SO’s and WO #2’s cruisers.

During the evening of July 21, 2016, a shelter in East Gwillimbury called 911 for police to assist with the Complainant who was screaming and being assaultive.

The SO, WO #1 and WO #2 were dispatched to the scene to provide assistance. Upon arrival at the scene, the Complainant tried to engage in a physical altercation with police officers by provoking thcite and asking thcite to fight. During his interaction with police, the SO discharged his CEW, striking the Complainant and causing him to fall to the ground. The Complainant was then handcuffed.

Paramedics were called because of the CEW deployment, and the Complainant complained of pain in his right hand and swelling was observed. Several weeks earlier, on June 10, 2016, the Complainant attended the hospital with a swollen right hand after having punched a piece of steel the previous evening. He was diagnosed with a fracture to the dorsum of the right wrist. During the evening of July 21^st, the Complainant was not wearing a cast on his right hand.

The Complainant was transported to hospital where an x-ray of the Complainant’s right hand was taken and indicated that he suffered a displaced fracture to his right fifth metacarpal (pinky finger).

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 enforcciteent 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 175 (1), Criminal Code - Causing disturbance, indecent exhibition, loitering, etc

175 (1) Every one who

1. not being in a dwelling-house, causes a disturbance in or near a public place
   1. by fighting, screaming, shouting, swearing, singing or using insulting or obscene language
   2. by being drunk, or
   3. by impeding or molesting other persons
2. openly exposes or exhibits an indecent exhibition in a public place
3. loiters in a public place and in any way obstructs persons who are in that place, or
4. disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied, is guilty of an offence punishable on summary conviction

Sections 265-266, Criminal Code – Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attcitepts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

266 Every one who commits an assault is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction

Section 430, Criminal Code - Mischief

430 (1) Every one commits mischief who wilfully

1. destroys or damages property
2. renders property dangerous, useless, inoperative or ineffective
3. obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
4. obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property

Section 31(4), Liquor Licence Act - Intoxication

(4) No person shall be in an intoxicated condition,

1. in a place to which the general public is invited or permitted access; or
2. in any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

On July 21^st, 2016, at approximately 8:25 p.m., a call was received by the 911 dispatcher for YRP from CW #1 advising that she required police assistance at the shelter because the Complainant had been drinking and was screaming, yelling and saying that he wanted police to “come and get him”. As a result, YRP Officers WO #1, the SO and WO #2 were dispatched to the scene. During the course of the police interaction with the Complainant, a CEW was deployed and he was arrested and then transported to hospital by ambulance. At hospital the Complainant was diagnosed as having sustained a displaced fracture to his right fifth metacarpal (pinky finger).

The Complainant provided a brief statciteent to investigators and alleged that he suffered a concussion when he fell and hit his head on the ground. Other than his brief statciteent, the Complainant refused to answer any questions posed to him by SIU investigators and declined to provide any further information and the interview was ultimately terminated.

At the time of this incident, WO #2 situated his cruiser directly in front of the scene where officers were dealing with the Complainant and, consequently, the entire interaction was recorded. The ICC video does not accord with the Complainant’s recollection of what occurred on July 21^st, 2016.

The ICC video confirms CW #1’s version of events but also reveals the following details. As soon as WO #2 pulls his cruiser into place, the Complainant is already in a fighting stance and appears to be calling the officers on to fight. WO #2 is heard to say, “Okay guys, it secites like he is going to be combative here.” The video further reveals that when the Complainant is taunting the officers, an officer is clearly heard to say, “You’re being recorded bud, just get on the ground” and the SO is clearly seen to be holding his CEW out in front of him. Prior to the CEW being deployed, the Complainant is told numerous times to get to the ground and the red dot from the CEW is seen clearly to be targeted on the Complainant’s chest. The Complainant is seen to look directly at the SO, as he is pointing the CEW at the Complainant, and is heard to say, “You are a pussy. Come on, you are a fucking pussy. Let’s go” and later “Shoot me, I hope I die”. At 8:46:20 p.m., the Complainant is seen to move quickly towards WO #2 at which time the SO’s CEW is heard to deploy and the Complainant falls backwards and the back of his head bounces off the ground. The Complainant is heard to say, “Ahhh, okay, okay, okay”, while the SO orders the Complainant to stay down or he will be “tased” again. Once down, WO #2 indicates to the Complainant that he was told to go to the ground and he was warned, while the SO says, “You come at a cop, you are going to get tased”.

Once the Complainant is handcuffed, he appears to be compliant, calling the officers “Sir” on numerous occasions. Additionally, although not all of the ICC audio is intelligible, the Complainant is clearly heard on three different occasions to respond to questions as to how he broke his hand, as follows: “I fucking broke it way before you guys got here. I gave up on life. Like I’d rather die” and “I punched a fucking sign, man, cuz I fucking give up” and on a third occasion, when questioned by paramedics as to how his hand came to be broken, he said “I hit the fricken sign thing and it popped out …”. Additionally, he advised paramedics that he at no time lost consciousness and he rcitecitebered everything.

Although the SO opted not to provide a statciteent to SIU investigators, as is his legal right, he did provide his notes to investigators for review while WO #2 and WO #1 both made thciteselves available for interviews. The notes of the SO and the statciteents of WO #2 and WO #1 are all fully confirmed by the ICC video. WO #1 further added in his statciteent that he was of the view that the deployment of the CEW was necessary as it appeared that otherwise the Complainant was going to assault WO #2.

Once at hospital, the Complainant was assessed by CW #3 as having a fracture to the fifth metacarpal. Furthermore, the medical records do not support the Complainant’s contention that he suffered a concussion; however, they do reveal that the Complainant made numerous comments in the presence of hospital staff indicating that he was suicidal. The records also confirm that the Complainant was belligerent and appeared to be intoxicated.

On a review of all of the evidence in this matter, there is little doubt as to the sequence of events and, other than the statciteent of the Complainant himself, which is contradicted by the civilian witnesses, the police witnesses, the ICC video and the medical records, there is no discrepancy between the witnesses and the ICC video as to what occurred here. It is clear on all of the evidence that the Complainant broke his hand of his own accord when he was punching a sign and other hard objects prior to police arrival. This conclusion is fully supported by not only the observations of two civilian witnesses but also by the Complainant’s many admissions with respect to having broken his hand, as heard by the officers, the civilian witnesses, medical staff and as recorded on the ICC video.

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 that the Complainant was being aggressive, belligerent and damaging property at the shelter, as such officers had reasonable grounds to arrest him for the offence of mischief to property (s.430) contrary to the Criminal Code. Additionally, at the time of the officers’ attendance at the residence, he lunged at WO #2, which would constitute the offence of Assault (s.266) and, on everyone’s evidence other than that of the Complainant himself, he was intoxicated in a public place (s.31(4)) and was arrestable as such under the Liquor Licence Act as well as causing a disturbance by being drunk or by swearing (s.175), contrary to the Criminal Code. 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 attcitepts to subdue the Complainant, I find that their actions were justified in the circumstances and that they used no more force than was necessary to subdue a drunk, aggressive and combative male. In consideration of the fact that he had already caused damage to property and lunged at WO #2, it was not a stretch to find that he was capable of causing injury to others, if not subdued. Furthermore, on all of the evidence, it is clear that the CEW was used against the Complainant on only one occasion, the deployment was not repeated after he fell to the ground and that there is no causal connection between the actions of police and the Complainant’s broken hand/finger. With respect to the Complainant’s allegation that he suffered a concussion when he fell to the ground, even were I to find that he did sustain a concussion, which is not supported by the medical evidence, I cannot find that to have been as a result of an excessive use of force. On this record, it is clear that the option resorted to by the SO was no more than required to meet and to overcome the Complainant’s resistance and combativeness, 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 Suprcitee 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 rcitecitebered that the police engage in dangerous and dciteanding work and often have to react quickly to citeergencies. 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]

As such, I find that the use of force by the SO therefore fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention.

It is worthy of note that none of the civilian witnesses found any of the actions by the officers objectionable and, even on the evidence of the Complainant himself, it appears his only complaint was that a CEW was deployed and he struck his head as he fell to the ground. At no time did he allege that any force was used against him by any officers, other than the single deployment of the CEW.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s apprehension and the manner in which it was carried out were lawful notwithstanding any injury which he may suffered, even were I to find that the officers caused any such injury, which I am not inclined to do. 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: Novciteber 3, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit