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 33-year-old man on December 12, 2016 during his arrest for drug related offences.

Notification of the SIU

On December 13, 2016, at 1:30 a.m., Peel Regional Police (PRP) reported the Complainant’s custody injury.

PRP reported that the PRP Street Crime Unit (SCU) was conducting observations at a residence in Brampton when they observed a vehicle arrive at the residence and a drug deal take place. The police officers tried to box the vehicle in and the driver tried to flee. A collision occurred with at least one of the four police vehicles involved. The driver (the Complainant), was taken to the hospital where he was diagnosed with a broken nasal bone and broken orbital bone.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, sketches and measurements.

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

WO #4  Interviewed

WO #5  Interviewed

Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right.

The Scene

The scene was on the roadway in front of a residence in Brampton. The road had some snow and ice on it. There were five vehicles at scene, four of which were unmarked police vehicles and a BMW. Initial information indicated that the injuries to the Complainant were the result of a collision, but upon investigation it was revealed that his injuries occurred during his interaction with the police officers during his arrest. There was blood on the roadway beside the driver’s door of the BMW.

Below is a photo of the vehicles involved:

Scene Diagram

Conducted Energy Weapon (CEW) Download

WO #3 deployed his CEW. The CEW had no effect on the Complainant and played no role in the Complainant being injured. The data from the CEW was reviewed and one deployment lasting nineteen seconds was recorded.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

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

• Communications recordings
• Audio copy reports
• Incident History
• Notes of WO #1, WO #2, WO #3, WO #4 and WO #5
• Occurrence Details
• Procedure – Suspect Apprehension Pursuit
• Procedure – Stopping and Approaching a Suspect Vehicle
• CEW Event Download

During the late evening hours of December 12, 2016, the Complainant and CW #1 were observed by members of PRP SCU driving a stolen BMW to a residence in Brampton, and then consuming narcotics. After the Complainant and CW #1 returned to the residence a second time, and then were stopped by the side of the road, the order went out to arrest them.

Four police vehicles were used to box in the stolen BMW. In an effort to flee the area, the Complainant struck several of the police vehicles in the process and became stuck in a snowbank. To remove the Complainant from the locked BMW, the driver’s side window was broken. When the SO, WO #4 and WO #5 attempted to pull the Complainant through the driver’s window, however, the Complainant’s legs were wrapped around the steering wheel. WO #3 deployed his CEW on the Complainant, but to no effect. The Complainant was eventually pulled through the window. The officers allege the Complainant fell face first onto the pavement, injuring his nose. The Complainant alleges that he was put face down on the ground and kicked repeatedly.

When the Complainant was brought to his feet, his had visible facial injuries. An ambulance was called and he was taken to the hospital, where he was diagnosed with a broken orbital bone and nasal 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 12, 2016, the Complainant drove with CW #1 in a stolen BMW to a residence in Brampton. At the time, officers from PRP SCU were conducting observations of the address, where it was believed narcotics were being sold. While the Complainant and CW #1 were in their vehicle smoking drugs, WO #3 ordered that they be arrested. Four unmarked PRP SCU vehicles attempted to box in the stolen BMW, but the Complainant attempted to flee, striking several of the police vehicles in the process. Officers attended the BMW, and WO #1 extracted CW #1 through the rear passenger door. In an effort to extract the Complainant, the driver’s window was broken. The SO, WO #4 and WO #5 attempted to pull the Complainant through the broken window, but he held onto the steering wheel with his legs. WO #3 deployed his CEW, to no effect. According to the officers, the Complainant was resisting, and once he was pulled out the window, he fell face first onto the pavement. The Complainant alleges that he was put face down on the ground near the driver’s side of the vehicle, and kicked repeatedly over several minutes by an unknown officer. The Complainant was eventually handcuffed and taken to the hospital, where he was diagnosed with a broken orbital bone and nasal bone.

In his interview, the Complainant did not acknowledge attending the residence that was under surveillance, or purchasing drugs from its occupants. The Complainant did not describe falling to the ground once he was extracted from the BMW. Rather, he claimed that he was put face down on the ground, and kicked repeatedly over several minutes. The Complainant did not recall being punched, and did not mention the CEW being deployed. The Complainant could not describe any officer involved. The Complainant denied resisting the police officers in any way.

The Complainant’s associate, CW #1, had a significantly different version of events from the Complainant. CW #1 did not acknowledge that the BMW was stolen, attending the residence or that he was using drugs with the Complainant at the time. CW #1 did not see how the Complainant was removed from the vehicle.

Five PRP SCU officers were involved in the takedown and arrest of the Complainant and CW #1: the SO (who declined to be interviewed or to provide his notes, as is his legal right), WO #1, WO #3, WO #4 and WO #5. WO #1 stated that he observed a BMW, occupied by the Complainant and CW #1, arriving at the location under surveillance. The two men went inside the residence for a short time, before returning to the vehicle. The Complainant and CW #1 were then seen smoking drugs inside the vehicle while still parked in the driveway. The BMW left the area, but returned a short time later and the Complainant went back inside the house, then returned to the vehicle and drove away again. The BMW was seen stopping at the side of the road three times before WO #3 gave the command to stop the vehicle. WO #1 activated the emergency lights and siren in his vehicle. The BMW tried to flee and collided with several of the police vehicles, then reversed and became stuck in the snow bank. WO #1 positioned his vehicle facing the front of the BMW, and went to the passenger side of the vehicle. The SO’s vehicle was positioned at the passenger side of the BMW, WO #4’s vehicle was at the driver’s side, and WO #3’s vehicle at the back driver’s side, boxing the BMW in. WO #1 heard the police officers giving multiple commands to the Complainant to put the vehicle into park, but the Complainant continued to rev the engine. WO #1 heard WO #3 deploy his CEW, but did not see it. WO #1 entered the BMW through the rear passenger door and put the vehicle into park. He then pulled CW #1 into the back seat and out of the vehicle. When WO #1 first saw the Complainant, he was already handcuffed and standing on the driver’s side of the BMW.

WO #4 stated that he observed a BMW vehicle arrive at the address and the Complainant and CW #1 attended at the side door to the residence. The Complainant and CW #1 then returned to the BMW a short time later and drove away. The BMW pulled to the curb, and the Complainant and CW #1 were seen to be smoking something in the vehicle. The BMW drove off, only to pull to the curb once again. WO #3 called a takedown of the BMW. WO #4 took a position in his vehicle at the back of the BMW, activated his emergency lights and siren. The BMW reversed into WO #4’s vehicle, and appeared to be attempting to escape the box that the police vehicles had formed. WO #4 adjusted his vehicle’s position and hit the front driver’s corner of the BMW. The Complainant was spinning the BMW wheels, but was unable to get traction due to the snow. WO #4, WO #5 and the SO got out of their vehicles and went to the driver’s door of the BMW. WO #3 had his CEW drawn. WO #4 yelled at the Complainant to shut the BMW’s ignition off and get out of the vehicle, but the Complainant instead was trying to move the BMW from its position. WO #4 tried to open the driver’s door of the BMW, but it was locked, as was the rear driver’s side door. WO #5 was beside WO #4, and broke the driver’s side window by punching it. WO #4 grabbed the Complainant by the jacket on his left side and he believed that WO #5 grabbed the Complainant on the right side, and they pulled him from the vehicle. The Complainant wrapped his legs and feet around the steering wheel, preventing him from being pulled completely out of the BMW. The Complainant’s feet were eventually freed from the steering wheel, but when he was pulled from the BMW he hit the ground face first. The Complainant’s coat and sweater had been pulled up over his head when he was pulled from the vehicle. Once on the ground, WO #4 was on the Complainant’s right side with WO #5 on his left side and the SO near his left shoulder area. WO #4 placed a knee onto the Complainant’s back as he had his arms under his body and resisted being handcuffed. WO #4 did not see any officer strike or kick the Complainant. WO #4 handcuffed the Complainant and when he sat up, WO #4 removed the Complainant’s coat and sweater from around his face and saw injuries to his right eye and blood coming from his nose.

According to WO #5, after WO #3 called for a takedown of the BMW in order to arrest the occupants, he arrived at the location of the BMW and saw police vehicles around the BMW and it was moving back and forth smashing into them trying to escape. Eventually the BMW became stuck in the snowbank on the west side of the street, with its wheels spinning in the snow. WO #5 parked to the south of the police vehicles doing the takedown, then walked behind the BMW. He did not see any of the SCU officers with use of force options out. WO #5 yelled at the driver of the BMW to shut the vehicle off and step out, but his commands were ignored. WO #5 went to the driver’s side door and continued to issue commands to shut the vehicle off, but the driver continued to rock the BMW back and forth. WO #5 was joined at the driver’s side window by WO #4 and the SO. WO #4 was positioned to WO #5’s right. WO #1 was on the passenger side of the BMW. WO #5 heard WO #3 deploy his CEW. WO #5 tried to open the driver’s door but it was locked, so he punched the driver’s side window twice with a bare fist, causing it to break. He did not strike the Complainant when breaking the window. WO #5 grabbed the Complainant by his jacket and started to pull him out through the window – in the course of this, the Complainant’s coat and sweater were pulled up over his face and head. The Complainant was swinging his arms in an attempt to avoid being extracted, and was still trying to get the BMW to go forward. WO #4 grabbed onto the Complainant on the left side of his jacket. The Complainant had his feet wrapped around the steering wheel of the BMW preventing him from being extracted, so WO #5 reached inside the BMW and freed the Complainant’s legs. The SO assisted in extracting the Complainant from the BMW. When the Complainant was pulled through the driver’s side window of the BMW, he was holding onto WO #5’s coat. The coat ripped, and the Complainant fell to the ground beside the BMW. Once on the roadway, WO #5 was positioned on the Complainant’s right side with WO #4 on his left side. The SO was near the Complainant’s left shoulder area. The Complainant refused to give up his hands and tucked under his chest. WO #5 delivered a distractionary punch to the left side of the Complainant’s body, but it had no effect. WO #5 then delivered two knee strikes to the Complainant’s left torso and he was handcuffed by WO #4. WO #5 did not see any of the other police officers strike the Complainant, and he denied hitting the Complainant in the face. The Complainant’s sweater and coat were readjusted and WO #5 saw that he was bleeding from the nose and he had swelling to his right eye.

WO #3 observed the BMW attend at the residence which was under observation and saw the Complainant and CW #1 go inside. After approximately ten minutes, both men returned to the BMW where they remained for several minutes. WO #3 drove by, and saw that they were smoking in the vehicle, and believed that they were smoking heroin. The BMW left the residence, then stopped and again they were seen to be smoking what WO #3 believed to be drugs. The BMW then returned to the residence and the Complainant was seen entering the home. When the Complainant returned to the BMW, it drove for a period then stopped on the side of the road. WO #3 drove past the BMW and saw the Complainant and CW #1 inside smoking drugs. The BMW drove forward again, but stopped at the side of the road. WO #3 gave the order for the SCU officers to stop the BMW. WO #3 along with the SO, WO #1 and WO #4, attempted to box the BMW in. WO #3 was behind WO #4, who was toward the rear of the BMW. The emergency lights and siren were activated on all of the unmarked police vehicles. The BMW reversed and collided with the front of WO #4’s vehicle, then made a sharp left turn. WO #3 drove around WO #4’s vehicle and intentionally hit the driver’s side door of the BMW. WO #1’s pick-up truck collided with the front passenger side door of the BMW. The BMW reversed and got stuck in the snow bank. WO #3 moved his vehicle and hit the driver’s side back door of the BMW. The BMW was still in gear and the rear tires were spinning in the snow bank. WO #3 saw WO #5 use his fist to shatter the driver’s side window of the BMW, and WO #4 and WO #5 attempted to pull the Complainant through the driver’s side window. WO #3 saw the Complainant trying to move towards the passenger side of the BMW while the Complainant’s foot was still on the accelerator and the wheels were still spinning. WO #3 drew his CEW and deployed it through the driver’s side window. WO #1 entered the rear passenger side of the BMW and put it into park. The Complainant had wrapped his legs around the steering wheel of the BMW while the SO, WO #4 and WO #5 continued to try and extract him from the vehicle. WO #3 remained with WO #1 until CW #1 was secured. When WO #3 returned to the driver’s side of the BMW, he saw the Complainant handcuffed on the ground. WO #3 saw that the Complainant had a bloody nose and some scrapes on his arms, but no injury to the Complainant’s eyes. WO #3 did not see any of the SCU police officers strike or kick the Complainant. WO #3 called for an ambulance to attend in case the CEW probes had to be removed from the Complainant.

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, given his behaviour that evening in relation to the residence under surveillance, and WO #3’s observation that the Complainant was smoking drugs, likely heroin, in the BMW after leaving the residence, I accept that WO #3 had reasonable grounds to believe that the Complainant had committed a criminal offence. As such, the Complainant’s apprehension was legally justified in the circumstances, and the SO, WO #4 and WO #5 were entitled to arrest the Complainant.

I then must consider whether the SO (and WO #4 and WO #5) only used such force as was reasonably necessary in the circumstances. To start, I have significant issues with CW #1’s evidence, as it contradicts all of the other witnesses, including the Complainant, in several material ways. From this, it appears that CW #1 was attempting to minimize his own involvement in the incident, which calls into question the veracity of his other observations. As a result of these concerns, I cannot rely on CW #1’s evidence at all in my decision.

Of the remaining witnesses, only the Complainant and the SO, WO #4 and WO #5 were present for his extraction from the BMW and subsequent handcuffing. As I’ve noted earlier, we do not have the SO’s version of what happened. The version of events between the Complainant and WO #4 and WO #5, however, are consistent in several respects. All agree that the BMW’s driver’s side window was shattered and the Complainant was removed through the broken window. WO #4 and WO #5 stated that it was necessary to do so as the driver’s door was locked. I accept that that was the case – otherwise, the door would have been opened (by either the Complainant or the officers) and the Complainant would have been removed from the BMW that way. The requirement that the police break the window in order to remove the Complainant causes me to question whether the Complainant was cooperative and compliant with police demands. WO #4 and WO #5 also stated that the Complainant wrapped his legs around the steering wheel as they were attempting to remove him through the window. The Complainant denied that it was intentional. In either case, I accept that it was very difficult to remove the Complainant through the window because of his legs, particularly given the expected heightened emotions and adrenalin one would expect in such a situation. WO #4 and WO #5 agreed that once the Complainant was removed, he fell face first to the ground, where he continued to resist being handcuffed. WO #5 punched the Complainant once and kneed him twice in order to gain control of his arms, and he was then handcuffed. Other than those strikes (which were not witnessed by WO #4), the Complainant was not struck by any officer.

I find that the Complainant created a very dangerous situation for the officers when they attempted to stop his car. He refused to turn the car off or exit, even though he knew he was being asked to do so by the police. Instead he put the BMW into reverse in an effort to escape, thereby hitting a police vehicle. He also did not unlock the driver’s door even when it was clear that the officers wanted him out of the vehicle, requiring them to break the window and extract him through it. By refusing to do those things, with the BMW continuing to run to the extent that the wheels were spinning in the snow bank, the officers were put in the position of having to act quickly to extract the Complainant and turn the car off. Accordingly, their forceful efforts to remove the Complainant through the driver’s window were justified.

The Complainant, however, alleges that once he was on the ground, he was kicked repeatedly. This is specifically denied by the officers, and the only corroboration for his allegation are the litany of tests performed on the Complainant at the hospital – namely computed tomography (CT) scans to his head, cervical spine, chest, abdomen, pelvis and face, looking for signs of traumatic injuries in these locations. The breadth of these tests goes well beyond an allegation of simply falling on one’s face and injuring a nasal or orbital bone. Clearly, someone at the hospital may have suspected there were possible injuries to these areas or the tests would not have been performed. Nonetheless, the only injuries revealed by all those tests were the Complainant’s nasal and orbital bone fractures. The fact that these tests were performed at all, however, would seem to confirm that the Complainant complained to medical staff at the time such that they considered it prudent to order the medical tests. Nonetheless, given the fluid and fast moving situation the officers were faced with when trying to apprehend the Complainant, the difficulty they had when removing him from the vehicle, and that his only serious injuries were limited to his face, I accept that the Complainant likely fell to the ground once he was pulled out of the BMW by the three officers, and that is what caused the nasal and orbital bone fractures.

Even if I were to accept The Complainant’s allegations that he was kicked repeatedly – which I do not[1] - and that is what caused his injuries, I would be faced with the insurmountable issue of determining which officer committed the offence. All of the officers deny kicking the Complainant. The Complainant has no recollection of which officer or officers kicked him. Even if I accepted the evidence of CW #1, who identified one of the officers who beat the Complainant by his facial hair and vehicle (a pick-up truck), there is no evidence that it was the SO (or WO #4 or WO #5). According to WO #1, the SO was operating a SUV. WO #3 was also operating a SUV. WO #4 was driving a SUV, and WO #5 a Toyota sedan. It was only WO #1 who was driving a pick-up truck, and all of the officers agree that he was the officer dealing with CW #1, and had no interaction with the Complainant at all. Accordingly, there is no evidence indicating which officer or officers may have done what the Complainant alleged.

Accepting, then, that the Complainant’s injuries were caused when he was removed from the BMW through the driver’s window and fell to the ground, I find that the officers used no more force than necessary to affect their lawful purpose. 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). On this record, it is clear that the force used by the SO, WO #4 and WO #5, given the dynamic nature of the arrest and the danger caused by the BMW trying to escape the police block, fell within the range of what was reasonably necessary in the circumstances to affect the Complainant’s lawful detention, notwithstanding the injury he suffered as a result. Accordingly, there are no grounds for proceeding with charges in this case, and no charges will issue.

Date: October 31, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] If someone were truly kicked the number of times alleged by the Complainant while laying on the ground, for the time period alleged, one would expect much more severe injuries than those suffered by the Complainant. [Back to text]