Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

• Confidential investigative techniques and procedures used by law enforcement agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• location information
• witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence and
• other identifiers which are likely to reveal personal information about individuals involved in the investigation

Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury of a 27-year-old man, allegedly sustained on February 19, 2016 during his arrest.

Notification of the SIU

The SIU was notified of the incident by the Ottawa Police Service (OPS) on May 9, 2016, at 2:00 p.m.

OPS reported that police officers were investigating a traffic infraction involving the Complainant, who was subsequently arrested in a residence where he alleged he was assaulted by the police officers.

OPS became aware of this allegation after the Complainant had lodged a complaint with the Office of the Independent Police Review Director (OIPRD). On discovery of the nature of the Complainant’s injury, the SIU was notified.

The Complainant reported to the OIPRD that he had sustained a fractured rib during his arrest.

The team

Number of SIU Investigators assigned: 4

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness officers

WO Interviewed

Subject officers

SO #1 Interviewed, and notes received and reviewed.

SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

The scene

The Complainant was arrested inside a residence in Ottawa. The residence was an unoccupied townhouse owned by the Complainant’s father at the time of this incident. The scene was not held for SIU purposes, as the incident occurred on February 19, 2016, and OPS did not become aware of the Complainant’s injury until May 9, 2016.

Video/photographic evidence

The Complainant advised that there was no Closed Circuit Television (CCTV) surveillance video available to advance the investigation of this incident.

The Complainant provided the SIU with photographs of his injuries, the damage to the front door of the residence, and his court documents.

Communications recordings

There were no 911 calls.

The recorded transmissions between SO #2 and the OPS dispatcher were unremarkable.

Materials obtained from Police Service

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

• Communications recordings
• Detailed Call Summary
• Prepared Statement – SO #1
• Provincial Offences Act ticket issued to the Complainant, and
• OPS Policy - Use of Force

On February 19, 2016, just before 1:00 a.m., the Complainant was observed by SO #1 and SO #2 driving westbound along Queen Mary Street towards Vanier Parkway in Ottawa. At one point, the Complainant drove through a stop sign at a speed of approximately 25 km/h. A short time later, the Complainant turned into the driveway of his father’s residence, parked the vehicle, and walked towards the entrance of the house.

SO #1 parked his unmarked cruiser behind the Complainant’s vehicle, identified himself as a police officer and asked to speak with the Complainant.

Without speaking to SO #1, the Complainant entered the residence and locked the door.

SO #2 kicked open the door and both police officers entered the residence. The officers attempted to arrest the Complainant, who resisted. Both officers struck the Complainant’s head and SO #1 delivered two knee strikes to the Complainant’s right thigh. The Complainant was eventually handcuffed, searched, and placed in the back seat of the cruiser while the residence was searched. The Complainant had visible injuries to his face.

He was issued a Provincial Offence Notice (PON) (ticket) for failing to stop at a stop sign and released from police custody.

The Complainant attended the hospital later that evening, where he was advised of the possibility of fractured ribs. On June 15, 2016, the Complainant re-attended the hospital where an x-ray of his bilateral rib revealed a healing or a healed fracture through the posterior aspect of his right 10th rib.

Section 33 (3), Highway Traffic Act – Identification on failure to surrender licence

33 (3) Every person who is unable or refuses to surrender his or her licence in accordance with subsection (1) or (2) shall, when requested by a police officer or officer appointed for carrying out the provisions of this Act, give reasonable identification of himself or herself and, for the purposes of this subsection, the correct name and address of the person shall be deemed to be reasonable identification.

Section 136 (1), Highway Traffic Act – Stop at through highway

136 (1) Every driver or street car operator approaching a stop sign at an intersection,

1. shall stop his or her vehicle or street car at a marked stop line or, if none, then immediately before entering the nearest crosswalk or, if none, then immediately before entering the intersection…

Section 217 (2), Highway Traffic Act – Arrests without warrant

217 (2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9(1), subsection 12(1), subsection 13(1), subsection 33(3), subsection 47(5), (6), (7) or (8), section 51, 53, subsection 106(8.2), section 130, 172 or 184, subsection 185(3), clause 200(1)(a) or subsection 216(1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention.

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 129 (a), Criminal Code – Offences relating to public or peace officer

129 Every one who

1. resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer…

is guilty of

4. an indictable offence and is liable to imprisonment for a term not exceeding two years, or
5. an offence punishable on summary conviction.

Section 495 (1), Criminal Code – Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant

1. a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
2. a person whom he finds committing a criminal offence; or
3. a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

On February 19, 2016 at around 1:00 a.m., the Complainant was driving westbound along Queen Mary Street towards Vanier Parkway in Ottawa. At one point along Queen Mary Street, the Complainant did a U-turn and drove back east along Queen Mary Street to his father’s residence, just over a block away. The Complainant got out of his car and walked towards the entrance door of the house, which was unoccupied at the time. SO #1 and SO #2 pulled into the driveway behind the Complainant’s car. SO #1 attempted to verbally engage the Complainant before he entered the home. The Complainant, however, stated “fuck that” or “fuck you” and entered the residence and locked the front door. SO #1 and SO #2 broke through the door and, after a struggle, arrested and handcuffed the Complainant. The Complainant was subsequently charged with disobeying a stop sign under the Highway Traffic Act (HTA) and issued a ticket. At the time, it was apparent to the officers that the Complainant had an injury to his head, but he refused medical services.

The next day, the Complainant attended the hospital where he complained of being punched in the head repeatedly and kicked in the abdomen by police officers. Swelling and bruising was noted by the emergency room physician to the left side of his forehead, as well as a small cut to the right side of his forehead and a bruise behind his left ear. There was no swelling, marks, bruising or tenderness to his rib cage observed. Nonetheless, the attending physician advised the Complainant of the possibility of fractured ribs, but did not perform any x-rays and could not give a definitive diagnosis. Almost four months later on June 15, 2016, the Complainant re-attended the hospital and had x-rays taken of his chest and ribs. The x-ray of his chest cavity did not indicate any evidence of a rib fracture, however his bilateral rib x-ray revealed a healing or a healed fracture through the posterior aspect of his right 10^th rib. The Complainant alleges that SO #1 and SO #2 caused his broken rib when they arrested him inside his home.

SO #1 advised investigators that he was working a night shift on February 19th with SO #2, and they were operating a black Ford Taurus as an unmarked OPS police cruiser. At approximately 12:39 a.m., while traveling westbound on Queen Mary Street, SO #1 saw the Complainant driving a Toyota with out of province licence plates also westbound on Queen Mary Street. The Complainant made a U-turn in the intersection of Quill Street and Queen Mary Street and then continued eastbound on Queen Mary Street. SO #1 made a U-turn at the same location and followed the Complainant eastbound on Queen Mary Street. SO #1 stated that he saw the Complainant fail to stop for a stop sign at the intersection of Queen Mary Street and Edith Avenue, driving through the stop sign at about 25 km/h. Rather than stop the Complainant at the time, SO #1 continued to follow him to the residence. The Complainant parked and immediately exited the vehicle and walked to the side entrance of the home. SO #1 pulled up and positioned his police car behind the Complainant’s Toyota, activated the rear emergency lights of the police cruiser and exited from the driver’s side and approached the Complainant with a flashlight in his hand. SO #1 stated that he identified himself as a police officer and asked the Complainant to come and speak with him. When SO #1 was within 20 feet (6.1 metres) of the Complainant, the Complainant unlocked and opened the door of the residence, muttered “Fuck you,” and went inside. The Complainant locked the door behind him. SO #1 yelled at the Complainant to open the door and the Complainant refused. Believing he had authority under section 33 of the HTA, SO #1 tried to force the door open with several shoulder strikes, but was unsuccessful. SO #2 joined SO #1 and kicked the door open and then both police officers entered the residence. The Complainant was standing in the living room. SO #1 told the Complainant that he was under arrest for failing to identify himself to the police. The Complainant started to move away, so SO #1 took control of the Complainant’s right arm. The Complainant immediately tensed up and refused to place his hands behind his back for handcuffing. SO #1 repeatedly told the Complainant to get down on the ground. As the Complainant continued to resist, SO #1 struck the Complainant once on the right side of his head with his forearm. After he was struck, the Complainant slumped down slightly but would not get down onto the floor. SO #1 delivered two knee strikes to the Complainant’s right thigh which caused him to drop to his knees. Following a short struggle on the floor, SO #1 managed to bring the Complainant’s hands behind his back and handcuff his wrists. SO #1 did not believe he positioned any part of his body on the Complainant’s torso or back during the struggle. The Complainant was searched, and taken outside and placed in the back seat of the police cruiser. At that point the Complainant verbally identified himself to police and provided his date of birth. Satisfied as to the Complainant’s identity, SO #1 advised the Complainant of his rights and cautioned him. The Complainant asked why he had been stopped and SO #1 explained he had failed to stop at the stop sign, and failed to identify himself when asked to do so by police[1]. The Complainant told the police officers he thought he was being stopped for an outstanding warrant out of another province[2]. SO #1 noticed the Complainant had a small bump over his left eye and a scratch on his forehead. He asked the Complainant if he wanted medical treatment or an ambulance to which the Complainant replied he was fine. SO #1 issued the Complainant a PON for failing to stop at a stop sign after which the Complainant was released from police custody.

SO #2 told investigators that he was working that night with SO #1 in a blue or black Ford Taurus with subdued markings. Both officers were in uniform, as well as wearing body armour with the word “Police” embossed on the front chest pocket and back panel. SO #2 stated that he and SO #1 were driving westbound on Queen Mary Street when SO #2 noticed the Complainant make a U-turn and continue eastbound on Queen Mary Street. Then, at the intersection of Quill Street and Queen Mary Street, SO #2 saw the Complainant drive through a stop sign at approximately 15 km/h and head southbound on Quill Street. Immediately after the Complainant had failed to stop, SO #1 made a U-turn and followed the Complainant from a distance for about two blocks. The Complainant pulled into a driveway and parked the car. SO #1 positioned the cruiser behind the Complainant’s car and also stopped. The Complainant exited his car and walked directly toward the residence. SO #1 approached the Complainant and told him “I’ve got to talk to you, come here, we need to talk”. The Complainant looked at SO #1 and then disappeared inside the residence. As soon as the Complainant entered the residence, SO #2 exited the police cruiser and joined SO #1 who was trying to force the front door open with his shoulder. SO #2 placed a kick to the door and forced it open and he and SO #1 entered. SO #2 was confident he had the authority to enter the residence without a warrant as the Complainant was arrestable for having contravened sections under the HTA. Once SO #2 entered the home, he told the Complainant that he was under arrest and ordered him to get down on the floor. When the Complainant refused to cooperate, SO #2 took control of his left arm and SO #1 took control of the Complainant’s right arm. The Complainant immediately began resisting the police officers as they tried to bring him to the floor. SO #2 and SO #1 struggled with the Complainant for about a minute before he was taken to the floor. The Complainant continued to resist as the officers tried to get him handcuffed. SO #2 punched the Complainant once or twice in the face, and then was able to handcuff him with his hands behind his back. The Complainant was brought to his feet and searched, and placed in the back seat of the police cruiser. SO #2 was unable to recall if SO #1 had also punched the Complainant. Except for punching the Complainant in the face, SO #2 advised he did not punch or kick the Complainant anywhere else on his body, nor did he see SO #1 either punch or kick the Complainant. A short time after removing the Complainant from the residence, SO #2 re-entered the house, apparently to search the area where the arrest had taken place (although it is unknown what SO #2 was searching for). More police officers arrived on scene, and SO #2 left the house and told the newly arrived police officers that everything was alright. SO #2 returned to the cruiser, and the Complainant explained that he thought there was an outstanding warrant for his arrest. SO #2 noticed that the Complainant had a small cut on his right eye and bump over his left brow near his forehead, and asked if he wanted paramedics but the Complainant declined. The Complainant was issued a traffic ticket for disobeying a stop sign and released.

The WO also attended the residence that night. He advised that he heard SO #2 broadcast over the police radio that he was at the residence and engaged in a struggle. The WO was less than a kilometre away, and when he arrived on scene he found a residence with a front door that appeared to have been forced open. The WO entered the townhouse and saw SO #1, SO #2 and the Complainant. The Complainant was lying on the floor with his hands handcuffed behind his back. The WO asked SO #2 what led up to the Complainant’s arrest. SO #2 advised that the Complainant had driven through a stop sign, but when he and SO #1 tried to stop the Complainant, he pulled into a parking lot instead. At that point the Complainant exited his car and walked toward the front door of a residence. SO #1 approached the Complainant on foot, and had a short verbal exchange with the Complainant and then the Complainant entered the home and locked the door. SO #1 and SO #2 forced their way through the front door and placed the Complainant under arrest. The WO was uncertain for what offence the Complainant had been arrested, but thought it was for failing to stop at a stop sign. He asked SO #1 and SO #2 if they needed his help and they told him everything was under control. After that, he left the residence.

The WO’s recollection of this incident contradicts both SO #1 and SO #2, as he states that the officers advised him that the Complainant had avoided their efforts to stop him at the time he drove through the stop sign. No other witness confirms that. However, the reliability of his recollection is something I question as the events occurred seven months prior to his interview and he made no notes in relation to this incident because, according to him, the event was quite unremarkable. Accordingly, I am doubtful that he would have an accurate, independent memory of the events and I will give little weight to his observations.

Both subject officers provided interviews to the SIU, in which they referred to their notes. SO #1 consented to the SIU receiving a copy of this notes, while SO #2 did not, as was his legal right. The SIU also obtained and reviewed the investigative report completed by SO #1 about an hour after the incident and found it consistent with his statement. There were some differences between SO #1 and SO #2’s version of events. SO #2 stated that he saw the Complainant go through a stop sign at Quill Street and Queen Mary Street, and then head southbound on Quill Street. This is not SO #1’s recollection, who stated that the Complainant failed to stop for the stop sign at Edith Avenue and Queen Mary Street. Given that the Complainant’s recollection of the route is consistent with SO #1, this difference is likely explained by SO #2 mistakenly referring to Edith Avenue as Quill Street. More significantly, SO #1 recalled doing a U-turn in response to seeing the Complainant do the same, and then observing him fail to stop at the stop sign before turning onto Edith Avenue. Yet, SO #2 recounted the failure to stop being the reason they turned around to follow the Complainant. Furthermore, SO #2 did not mention in his interview that SO #1 told the Complainant he was police officer when he approached him, only that SO #1 asked him come over and told him they needed to talk[3].

While there are some inconsistencies between the officers’ accounts, the Complainant’s evidence also has issues which affect his credibility and the reliability of his version of events. The first and foremost is his claim he was beaten extensively during his arrest. Nonetheless, when CW #1 examined the Complainant, over 18 hours later, CW #1 did not note any swelling, marks, bruising or tenderness in his abdomen/torso area. CW #1 noted only mild bruising, swelling and tenderness on the left side of his head, a small contusion on the right side of his forehead and tenderness behind his right ear.

Additionally, the Complainant provided investigators with photographs he said were taken shortly after the incident and, other than a small abrasion to his right shoulder, the only observed injuries to the Complainant’s torso were the abrasions to his back seen in the photo below:

As one can see, there is a clear abrasion evident on the left side of the Complainant’s ribs. However, there is virtually no mark on the right side where it was subsequently determined that the Complainant had a broken rib. The most significant injury visible in the photos he provided was a large swollen area above his left eye. Again, the degree of beating the Complainant alleges and the documentation of his injuries are not congruent.

After the Complainant reported to the OIPRD that he had sustained a fractured rib during his arrest, the matter was referred to the SIU. Although a rib fracture or soreness was not noted in the medical records, CW #1 advised the Complainant on the day of the incident that he may have fractured ribs. Following his interview with the SIU, the Complainant attended the hospital for x-rays. Those x-rays were taken on June 15, 2016, almost four months after the incident, and revealed a healing or healed fracture through the posterior aspect of his right 10th rib.

The Complainant also never challenged the officer’s assertion that he failed to stop for the stop sign, yet he made no mention of it in his statement to investigators. Although that may have been an oversight, I expect it was not as the Complainant was given a ticket specifically for that offence and even provided investigators with a copy of his court disclosure. By not referring to the traffic offence, the Complainant diminishes his role in the events that night, which causes me to question his credibility. I am also concerned about the Complainant’s attempt to convey that he did not know SO #1 and SO #2 were officers and his description of a much more muscular or threatening type of vehicle than the one actually used. The Complainant description of the officers’ attire added to his sense of danger when they approached. I accept SO #2’s evidence, however, that they were simply in their uniforms, with vests clearly marked as “Police”. The Complainant was also very specific regarding the arrival of two additional officers (one being female). The OPS detailed call summary, however, indicates that only a male officer, WO #1, arrived at the residence while SO #1 and SO #2 were there. Although it is possible for officers to attend and not be recorded in the call summary, none of the officers reported a female officer attending.

The Complainant description of the events also spanned a considerable amount of time. The Complainant’s copy of his ticket states that it was issued at 1:02 a.m. The OPS detailed call summary, which is an automated record based on call times, indicates that SO #1 and SO #2 arrived at the residence at 12:42:56 a.m. and the WO arrived at 12:47:44 a.m. The WO remained on scene approximately 5-6 minutes. Accordingly, all of the events described by the Complainant had to have happened in the twenty minutes between SO #1’s and SO #2’s arrival and the ticket issuance, less the 5-6 minutes that WO #1 was present. I find it difficult to accept that it did, particularly given the Complainant’s assertion that the officers’ search of the residence was lengthy. This again calls into question the reliability of the Complainant’s evidence.

I turn my attention to the lawfulness of the Complainant’s arrest and the authority to forcibly enter his residence. SO #1 and SO #2 reported observing the Complainant failing to stop as directed by a stop sign. There was no alternative reason uncovered by this investigation for the officers to have followed him to his house. As the unmarked police vehicle pulled in behind the Complainant’s car in the driveway, SO #1 activated his emergency lights. SO #2 described both he and SO #1 being in typical black OPS uniforms with the word “Police” written on the front and back of their bullet proof vests. SO #1 got out of his vehicle with his flashlight illuminated and approached the Complainant with the intent to issue him a ticket for failing to stop pursuant to section 136(1)(a) of the HTA. SO #1 asked the Complainant to stop and speak with him but the Complainant continued toward the side entrance door.

As the Complainant was in the process of unlocking the door, SO #1 recalled identifying himself as a police officer and again asking the Complainant to speak with him. The Complainant replied “fuck that” and ran inside locking the door behind him. Police officers have a common law duty to enforce the law. When the Complainant shut the door on SO #1, the Complainant prevented the officer from being able to make inquiries about his identity. SO #1 yelled at him to open the door, but the Complainant refused. Section 217(2) of the HTA gives police officers the authority to arrest someone without a warrant if the person fails to identify themselves when directed to do so pursuant to section 33(3) of the HTA. In addition, section 129(a) of the Criminal Code prohibits the willful obstruction of a peace officer in the execution of his/her duty. If the Complainant was aware SO #1 was a police officer, and I believe he was for the preceding reasons, his actions in evading SO #1’s efforts to speak with him and allow him the opportunity to ascertain his identity were arguably in and of itself a refusal to identify, and certainly an effort to obstruct the officer’s furtherance of his lawful duty. Section 495 of the Criminal Code allows officers to arrest without warrant those found committing a criminal offence, such as obstructing a peace officer, whose identity it was necessary to establish. SO #1 thereby had the grounds to arrest the Complainant without a warrant.

The issue then turns to the officers’ authority to forcibly enter the residence. Canadian courts jealously guard the protection of one’s residence, and the Supreme Court of Canada (SCC) made it clear in R. v. Feeney, [1997] 2 S.C.R. 13 at para. 162 that warrantless arrests in private dwellings are prohibited unless there are exigent circumstances, including hot pursuit, where one’s privacy interest must give way to the interest of society in ensuring adequate police protection. Sopinka J. states at para. 162 that “[i]n cases of hot pursuit, society’s interest in effective law enforcement takes precedence over the privacy interest and the police may enter a dwelling to make an arrest without warrant.” Both officers did not lose sight of the Complainant while en route to his residence and SO #1 immediately pursued him on foot upon arrival at the house in an attempt to ascertain his identity, forming a single continuous transaction. Prior to Feeney, the SCC specifically addressed the hot pursuit exception in relation to provincial offences in R. v. Macooh, [1993] 2 S.C.R. 802. Despite acknowledging the sanctity of the home, Lamer C. J. asserted that,

It is well settled at common law that police officers have the power to enter private premises to make an arrest in hot pursuit… Police who arrive shortly after the offence is committed and see the offender fleeing should be able to follow him into private premises, for a provincial offence as well as for an indictable offence. This power of entry should also be enjoyed by police continuing a pursuit already begun… I conclude that even where there is no arrest warrant, there is in a case of hot pursuit a right to enter residential premises to make an arrest both for provincial offences and for indictable offences, provided the circumstances justify an arrest without a warrant[4].

Believing he had the authority under section 33 of the HTA to arrest the Complainant without a warrant for failing to identify himself and therefore enter the residence, SO #1 directed SO #2 to kick in the door with the intent of arresting the Complainant. SO #2’s position was that the Complainant was avoiding being identified. As a result, SO #2 believed they had grounds to arrest him for obstruction for running into the house and not allowing the officers to identify him after they had observed the Complainant committing an HTA offence. I accept that, in the circumstances, SO #1 and SO #2 had a warrantless arrest power and were in the execution of their lawful duty when, in hot pursuit and in response to the Complainant’s obstruction of their lawful duties, they kicked in the Complainant’s door and effected his arrest.

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. SO #2 reported punching the Complainant in the face once or twice, and SO #1 striking him in the right side of his face once with his forearm and kneeing him twice in his thigh, in response to the Complainant resisting their efforts to handcuff him. The jurisprudence is clear that officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)) nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206). Although the Complainant reported not resisting and being struck more extensively than conveyed by the subject officers, his injuries were not consistent with the severity of assault he described. Furthermore, there is no evidence beyond the Complainant’s assertion that his fractured right rib was caused by SO #1 and SO #2 during his arrest. Neither officer acknowledged striking him in that area nor was there any evidence in the medical records of a right rib fracture until an x-ray was taken four months after the incident, which cannot conclusively tie the injury to the incident date. As such, I am not satisfied on this record that the force used to arrest the Complainant fell outside the prescribed limits of the criminal law.

Accordingly, I am unable to form reasonable grounds to believe that SO #1 and SO #2 committed a criminal offence in relation to their interactions with the Complainant on February 19, 2016. As a result, no charges will issue and this case will be closed.

Date: October 31, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit