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 injuries of a 23-year-old man during his arrest by police on October 7, 2016.

Notification of the SIU

The SIU was notified of the incident by Peel Regional Police (PRP) on October 7, 2016 at 11:40 p.m.

PRP reported that the Complainant suffered a fractured ankle during his arrest on October 7, 2016 at approximately 7:00 p.m.

PRP advised that police officers responded to a neighbour dispute in Mississauga. The officers were met by an aggressive, intoxicated and belligerent Complainant, who then became assaultive. The Complainant was grounded and handcuffed. He was subsequently transported to a PRP police station, where he complained of a sore ankle. The police transported the Complainant to hospital and while en route the Complainant was banging his head against the safety screen in the police cruiser. The Complainant was diagnosed with a fractured ankle. He also received four staples to close the cuts on his head.

The Team

Number of SIU Investigators assigned: 3

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 and photography.

Complainant

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Not interviewed[1]

WO #5 Not interviewed[2]

WO #6 Not interviewed

WO #7 Not interviewed

WO #8 Not interviewed

Subject Officer

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

The Scene

The incident occurred outside a semi-detached two-storey residence in Mississauga. There is a driveway leading from the roadway to a covered carport at the side of the house. The driveway is surfaced in asphalt and is wide enough to allow for two cars to be parked next to each other.

The police vehicle used to transport the Complainant to the police station, and then to hospital, had blood on the rear seat, blood on the metal frame above the security screen, and a mix of what appeared to be blood and spittle on the Plexiglas surface of the security screen. There was a hair, similar with the Complainant’s hair, stuck to the Plexiglas. There was also blood on the rear passenger side door window. The blood on the security screen and rear door window had a pattern that suggested it was deposited by the Complainant’s bloodied hair being put in contact with those surfaces.

Forensic Evidence

The Complainant’s medical records indicate that blood samples determined the Complainant’s blood alcohol level was 23 mmol/L.[3].

Communications Recordings

Police Global Positioning System (GPS) Data and Radio Communications

On October 7, 2016 at 6:20 p.m., PRP received a telephone call regarding an assault. Two police officers were dispatched immediately but they were pre-empted to another call at 6:37 p.m. At 6:40 p.m., WO #2 and the SO were dispatched to the assault call. The SO arrived on scene at 6:52 p.m.

At 6:56 p.m., the dispatcher initiated a “Unit Emergency” and the SO requested backup attend immediately. He then reported he had one party in custody. At 6:57 p.m., WO #3 and another police officer were dispatched to the call and WO #2 reported he was arriving on scene. WO #3 arrived on scene at 7:00 p.m.

The Complainant was transported to a PRP station at 7:16 p.m.

At 8:03 p.m., prior to departing the PRP police station, WO #2 reported his starting odometer reading, 30194 km, to the dispatcher. WO #2 then drove northbound on South Millway, which curves eastbound to an intersection at Erin Mills Parkway.

There was a time difference of one minute and 55 seconds (from 8:04 p.m. to 8:06 p.m.) between the last data point on South Millway and the first data point northbound on Erin Mills Parkway. That time span suggests the police cruiser was stopped at the intersection prior to continuing northbound. During that time period, at 8:04 p.m., WO #3 radioed the dispatcher and reported the person they were transporting [the Complainant] had hit his head against the divider in the car and he was bleeding from his forehead. The Complainant could be heard being quite vocal in the background of the transmission. WO #3 stated the Complainant banged his head only once, but he did so “pretty hard.”

WO #2 then continued northbound to the hospital. He arrived at the hospital at 8:11 p.m. and reported his finishing odometer reading was 30198 km. The Complainant continued to be heard in the background of the radio transmissions.

Materials obtained from Police Service

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

• Audio Copy Report – 911
• Audio Copy Report – Radio Transmissions
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7 and WO #8
• Event Chronology
• Communications recordings, and
• GPS Data for WO #2’s cruiser

On October 7, 2016 7:00 p.m., the Complainant assaulted CW #1 outside a semi-detached residence in Mississauga. CW #2 contacted 911 requesting police assistance. The SO responded to the call and was dispatched to the residence. Upon the SO’s arrival, the Complainant approached him in the driveway and stated that he had struck CW #1. CW #1 had visible injuries. The Complainant was very agitated, and screaming and yelling.

The SO arrested the Complainant and proceeded to handcuff him. The Complainant resisted the SO’s efforts to handcuff him. The SO decided to ground the Complainant to gain control of him. During the grounding of the Complainant on the front lawn of the residence, the Complainant suffered a fractured ankle.

WO #2 arrived at the scene and assisted the SO with escorting the Complainant to the police cruiser. Once in the rear of the police cruiser, the Complainant began to kick the door and bang his head on the security screen. The Complainant was transported to the police station. The Complainant continued to be agitated.

After completing the booking process at the police station, WO #2 and WO #3 transported the Complainant to hospital in order to treat his ankle injury. En route to the hospital, the Complainant continued to bang his head inside the cruiser. At the hospital, the Complainant was diagnosed with a fractured right ankle and received four staples to close cuts on his head.

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 265(1),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 attempts 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

Section 266, Criminal Code –Assault

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

On October 7, 2016, at approximately 6:26 p.m., a 911 call was received by PRP from CW #2 requesting police attend her address in the City of Mississauga. CW #2 advised that the downstairs neighbours were all drinking in the back yard and that the Complainant was drunk. She further indicated that the downstairs tenants had a domestic in their house and that she and CW #1 had gone down to ask them to stop “all the drama” and swearing when the Complainant started attacking CW #1 and “just punched him in the face right now and knocked him down”. Yelling and screaming is heard on the communications recording, in the background, while CW #2 is speaking. CW #2 described the Complainant as “clearly intoxicated, slurring his words and everything” and she is heard to be in tears begging the dispatcher to “please come quickly”. As a result of the 911 call, the SO was dispatched to the address, followed by WO #2 and WO #3. Following the interaction with police, the Complainant was transported to hospital where he was treated for a broken ankle and a laceration above his left temple which required four staples to close.

The Complainant provided a statement to investigators, and described each officer by badge number or appearance. Upon review of the various badge numbers assigned to the various police officers, it was confirmed that the SO has a different badge number than the one identified by the Complainant; that badge number, which the Complainant had attributed to the officer who handcuffed him and broke his ankle, is actually the badge number of WO #2. The badge number that the Complainant attributed to WO #3, is not assigned to any of the three officers who responded to this call.

According to the communications log:

• At 6:40:06 p.m., WO #2 was dispatched to the scene, followed by the SO at 6:40:57 p.m.
• At 6:56:04 p.m., the SO was the first to arrive on scene
• At 6:56:19 p.m., another unit was requested to attend “ASAP”
• At 6:57:44 p.m., WO #2 arrived on scene
• At 6:56:54 p.m., the communications tape recorded that there was “one in custody”, and
• At 7:00:44 p.m., WO #3 was the third officer to arrive on scene

Based on the statement of the Complainant, and his injuries, it appears that there are two allegations to be addressed here, that being:

1. Whether or not the grounding of the Complainant, which likely caused his ankle to break, was an excessive use of force, and
2. Whether the Complainant’s striking his head on the partition in the police cruiser was caused by an intentional act by police officers and therefore an excessive use of force

Despite the fact that the Complainant, in his statement, attributes both of these injuries to WO #2, it is clear on all of the independent evidence, that it was actually the SO who handcuffed the Complainant and subsequently took him to the ground and thereby may have caused the Complainant to break his ankle, while it was WO #2 who was driving at the time that the Complainant alleges the police cruiser was deliberately brought to a sudden stop causing the Complainant to strike his head against the partition and suffer a laceration to his forehead.

During the course of this investigation, five civilian witnesses, in addition to the Complainant, and three police witnesses were interviewed. The SO also made himself available to be interviewed. Additionally, investigators had access to the notes made by all witness officers, the communications recordings and log and the GPS positioning data from WO #2’s police cruiser.

According to all of the civilian witnesses, the Complainant was yelling and swearing after his argument with his girlfriend. Upon the arrival of CW #1 and CW #2, the Complainant punched CW #1 in the face and they both fell to the ground. When the SO arrived, it was at the initiation of the Complainant that he was arrested. All civilian witnesses who observed the Complainant’s interaction with police at the house confirmed that at no time did any police officer hit, kick or punch the Complainant.

The statement of the SO is substantially confirmed by all of the civilian witnesses. The SO agreed that it was the Complainant who initially insisted that he be arrested whereas the SO only wanted to find out what was going on. When the Complainant continued to yell, scream and behave aggressively, however, the SO decided he would place the Complainant under arrest as he was of the view that as the situation was becoming volatile, he was the lone officer on the scene and he had ample grounds for arresting the Complainant for assaulting CW #1, and that arresting and handcuffing the Complainant would be the best way to remove the Complainant from the situation.

The SO indicated that as soon as he grabbed the Complainant’s hand to place the second handcuff on him, he immediately lunged forward and took a swing, although he was unsure what or whom the Complainant was swinging at. At that point, the SO attempted to regain control of the Complainant and pulled him back in toward him in order to apply the second handcuff. The SO believed the Complainant to be extremely intoxicated by alcohol or under the influence of drugs. While the Complainant continued to pull away, the SO decided he had to take the Complainant to the ground and, as he did not wish to ground him on the asphalt, he picked the Complainant up by wrapping his arms around the Complainant to get him off balance, carried him around the back of a car and over to the grass where he took him to the ground. Although the SO could not recall exactly how he grounded the Complainant, he believed that he may have placed his foot in front of the Complainant and pushed him forward onto the ground. The SO observed the Complainant to land on his side and did not recall either stepping on the Complainant’s foot nor did he land on him. The SO could not explain how the Complainant’s ankle was broken.

The SO further observed that once the Complainant was placed in the rear of the police cruiser, he began to kick the door and strike his face on the cage; the Complainant was also spitting inside the vehicle. WO #2 transported the Complainant to the station and the SO followed. Once at the station, the SO observed the Complainant to still be kicking the back door of the cruiser, screaming and head-butting a window.

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 arrest, it is clear from the statements of all of the civilian witnesses, as well as the admission that the Complainant made to the SO, that the Complainant had assaulted CW #1 and was arrestable pursuant to s.266 of the Criminal Code. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in his attempts to subdue the Complainant, I find that his actions were more than justified in the circumstances and that he used no more force than necessary to subdue the Complainant who was extremely intoxicated by alcohol and/or drugs, was acting out and appeared out of control. On the observations of all the civilian witnesses present, the Complainant was combative, abusive, aggressive and assaultive. Despite his apparent willingness to be arrested and his going so far as to suggest to the SO that he should arrest him, once partially handcuffed and becoming aggressive towards CW #1, it became clear that the Complainant was not going to come along peacefully and was creating a volatile situation which it was incumbent on the SO to alleviate and bring under control. The SO was the lone police officer dealing with the Complainant at that point in time, he had few options available to him and was of the view that taking the Complainant to the ground would be the only possible route to get him to calm down. In this particular circumstance, where the Complainant continued to rage and was attempting to get at CW #1, and where he had already assaulted CW #1 and appeared to be intent on doing so again, I cannot find this to have been an excessive use of force, despite the injury suffered by the Complainant in the process.

In all of the circumstances, the option resorted to by the SO to apprehend the Complainant was more than reasonable in the circumstances. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

In response then to the first question posed above, I am unable to find that there are reasonable grounds to believe that taking the Complainant to the ground was an excessive use of force by the SO in these circumstances.

Turning next to the allegation that WO #2 deliberately brought the police cruiser to a sudden stop in order that the Complainant strike his head on the partition causing his injury; on all of the evidence available, including that from the Complainant, as well as from WO #2 and WO #3, I am unable to find that reasonable grounds exist to believe that WO #2 acted as alleged. I base this finding on the following facts:

• On the basis of inconsistencies between the version of events at the house as between the Complainant and all other witnesses, as well as the confirming evidence as to which officer did what, I am unable to place a lot of credence on the evidence of the Complainant as he is an unreliable historian, likely due to his extreme state of intoxication, as witnessed by all persons present
• On the evidence of CW #1, the SO, WO #2 and WO #3 and the admission of the Complainant himself, it is clear that the Complainant had been hitting his head on the security screen and the passenger rear window of the police cruiser long before his allegation that WO #2 deliberately slammed on the brakes and that he could have self-inflicted the injury to his head at any time
• On the evidence that even after his arrival at hospital, the Complainant continued to be agitated and was banging his head on surfaces inside the hospital room
• On the evidence of both WO #2 and WO #3 that the Complainant struck his head on the security screen not as a result of WO #2 slamming on the brakes suddenly, but while the vehicle was already at a standstill waiting to make a left turn, and
• On the data downloaded from the GPS of WO #2’s police vehicle that the police cruiser only stopped en route to hospital at one point in time, and that was at the red light when they were going to make a left turn

On all of this evidence, it is impossible to determine exactly when or how the Complainant received the injury to his head, but it is clear that he was doing everything possible to cause harm to himself both in the police vehicle and later at hospital and that his injury was very likely caused by his own hand. In the absence of some credible independent evidence, I am unable to find any reasonable grounds to believe that the injury to the Complainant’s head was deliberately caused by WO #2 slamming on the brakes while transporting the Complainant as opposed to having been self-inflicted by the Complainant or as having been caused due to an unfortunate accident inside the cruiser when the Complainant inadvertently struck the partition.

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

Date: October 11, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #4 was the booking officer present when the Complainant was brought into the police station. [Back to text]
• 2) [2] WO #5, WO #6, WO #7 and WO #8 attended the hospital to relieve WO #2 and WO #3 and to determine the nature of the Complainant’s injuries. [Back to text]
• 3) [3] This is the equivalent of approximately 106 milligrams of alcohol per 100 millitres of blood – or greater than 1 and ¼ times the legal driving limit (80 mgs per 100mls). [Back to text]