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 39-year-old man on December 12, 2016 during his arrest for trespassing at night.

Notification of the SIU

On December 13, 2016, at 8:11 a.m., the Chatham-Kent Police Service (CKPS) reported that the Complainant sustained a serious injury during an interaction with CKPS members on Monday, December 12, 2016.

CKPS reported that police were called to a residence in Wallaceburg for a report of a prowler dressed in camouflaged clothing around the home. Officers located the Complainant and, during the arrest, a fight ensued and the Complainant was punched numerous times by the officers as they tried to control him. The Complainant was eventually subdued and handcuffed.

The Complainant had some abrasions and cuts which were older injuries. The Complainant complained of a sore neck and facial pain and was transported to hospital for treatment. The Complainant was eventually diagnosed with an orbital bone fracture. The Complainant is presently under police guard at the hospital and the investigation is continuing into the thefts from stores in the area.

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 relevant scenes associated with the incident by way of notes and photography.

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Not interviewed, but prepared statement and notes received and reviewed[1]

Subject Officers

SO Interviewed, and notes received and reviewed.

The Scene

Below is a Google satellite image of the parkette between Bruce Street and King Street in Wallaceburg, where the Complainant was arrested. There was no information on Google satellite to indicate the month or year of the image but Forensic Investigators confirmed that, absent that the ground, on December 12, 2016, was snow covered, the parkette was then the same as it appears in this image. The image is, for all intents and purposes, oriented with North at the top of the page.

Video/Audio/Photographic Evidence

Video Recordings

Walmart:

The Closed Circuit Television (CCTV) video which recorded the Complainant’s actions in the Walmart store in Wallaceburg, about three hours before his interaction with the police on December 12, 2016, was of poor quality and could not corroborate or contradict the possibility that the Complainant’s facial injury existed prior to his interaction with CKPS.

CKPS Custody Video:

The video capturing the Complainant’s time in the custody of the CKPS was unremarkable. It captured the Complainant being booked and clearly showed an injury to his right eye. Review of the video in its entirety excluded the possibility the Complainant was injured, further injured or caused injury to himself while in the police facility.

Communications Recordings

The information on the communication tapes was consistent with the statements given by the SO and WO #1.

Materials obtained from Police Service

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

• Background Event Chronologies
• Booking Photo – the Complainant
• Computer Aided Dispatch – 3 units
• Canadian Police Information Centre (CPIC) – the Complainant (Niche Offence Record Reports)
• Duty Roster - Dec 12, 2016
• GPS data
• Niche Reports for the Complainant
• Notes of WO #1 and WO #2
• Procedure - Use of Force
• Procedure - Prisoner Care and Control
• Procedure - Prisoner Escort and Transportation
• Training Records – the SO
• Use of Force Report
• CCTV – the Complainant in custody
• Communications recordings
• Prepared statements – the SO and WO #2, and
• Witness Statement – CW #1

During the early evening of December 12, 2016, the Complainant was in the Wallaceburg Walmart, attempting to steal approximately $1400 in merchandise. Once he was confronted by store personnel, the Complainant removed the stolen items from his bags and left the store. At that time, he had a fresh scratch on his face and a bandaged right hand, and his clothes were dirty as if he had fallen on the ground. He told CW #1 that he had been in an “accident”.

A few hours after the Complainant left Walmart, he was discovered in the backyard of CW #2. CW #2 called 911, and the Complainant fled. CW #2 followed the Complainant in her car.

The SO and WO #1 responded to the call and located the Complainant in a nearby parkette. Upon seeing the police officers, the Complainant ran and fell face first onto the ground. The Complainant resisted the officers’ efforts to arrest and handcuff him, and grabbed at the SO’s Conducted Energy Weapon (CEW). The SO punched the Complainant twice on the right side of his face to free the Complainant’s grip on his CEW. The Complainant let go, and was handcuffed and arrested for trespass at night and assault resisting arrest.

As the Complainant had visible facial injuries, an ambulance was called and he was taken to the hospital. He was diagnosed with subtle fractures of the right orbital floor nondisplaced.

Section 177, Criminal Code - Trespassing at night

177 Every one who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.

Section 270, Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure

Section 348(1), Criminal Code - Breaking and entering with intent, committing offence or breaking out

348 (1) Every one who

1. breaks and enters a place with intent to commit an indictable offence therein
2. breaks and enters a place and commits an indictable offence therein, or
3. breaks out of a place after
   1. committing an indictable offence therein, or
   2. entering the place with intent to commit an indictable offence therein

is guilty

4. if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
5. if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction

Section 25(1), Criminal Code - Protection of persons administering and enforcing the law

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 34, Criminal Code – Defence — use or threat of force

34 (1) A person is not guilty of an offence if

1. they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person
2. the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force, and
3. the act committed is reasonable in the circumstances

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

1. the nature of the force or threat
2. the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force
3. the person’s role in the incident
4. whether any party to the incident used or threatened to use a weapon
5. the size, age, gender and physical capabilities of the parties to the incident
6. the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat
    
   • f.1) any history of interaction or communication between the parties to the incident
7. the nature and proportionality of the person’s response to the use or threat of force, and
8. whether the act committed was in response to a use or threat of force that the person knew was lawful

On December 12, 2016 at approximately 6:50 p.m., the Complainant was in the Wallaceburg Walmart, attempting to steal various items, including work boots which he wore throughout the store. Once he was confronted by store personnel, the Complainant removed the items, including the work boots, and left without wearing shoes. At that time, he was observed to have a fresh injury to his right cheek and a bandaged left hand.[2] At approximately 10:20 p.m. that same evening, the Complainant was found in the backyard of CW #2’s residence, which was near the Walmart. The police were called but the Complainant left on foot prior to their arrival, with CW #2 following in her vehicle. The SO and WO #1, who each had had prior dealings with the Complainant, located him in a nearby parkette. Upon seeing the police officers, the Complainant ran and fell, face first, into a snowbank. When the police officers approached, the Complainant resisted their efforts to arrest and handcuff him. The Complainant grabbed the SO’s CEW, although it did not become unholstered, and would not let go. The SO punched the Complainant on the right side of his face twice in an effort to free the Complainant’s grip on the device. The Complainant let go, and was handcuffed and put into the police cruiser. Noticing an injury to the Complainant’s face, an ambulance was called and the Complainant was taken to the hospital where a computed tomography (CT) scan revealed “subtle fractures of the right orbital floor nondisplaced” (a fractured orbital bone). It was also observed at the hospital that the Complainant had a one inch cut to the top of his head, and a significant second degree burn to his left hand. It was determined that the burn, at least, was pre-existing, and unrelated to the events of that evening. The Complainant alleges that his broken orbital bone occurred when he was punched in the face by the SO.

CW #1 advised CKPS that the Complainant was observed in the store that evening around 6:00 p.m. Store personnel noticed the Complainant as he walked around the store with large shopping bags, filling them with several items of merchandise valued at approximately $1400. The Complainant also went to the shoe department and was seen wearing a brand new pair of work boots with the tags still attached. When the Complainant was confronted, he left the two bags and removed the new work boots. CW #1 saw that the Complainant had his left hand wrapped in a bandage, and a deep scratch on the right side of his cheek that was still bleeding slightly. The Complainant advised CW #1 that he had been in an accident. He wore a tattered and dirty beige coat, and torn and dirty blue pants. The Complainant left the store without his original shoes. Police were contacted.

The SO was interviewed and stated that at approximately 10:20 p.m., he and WO #2 received a radio call for a suspicious man in the backyard of a residence[3]. While checking the area, the SO saw WO #1’s police cruiser beside CW #2’s vehicle and she and WO #1 were talking through the windows. At that point, the SO saw the Complainant run east, down the railway tracks, and north through residential backyards. The SO intended to detain and investigate the Complainant, believing he may have committed a criminal offence while in CW #2’s backyard. WO #1 radioed that he located the Complainant at a nearby parkette[4]. The SO drove to the parkette and saw the Complainant run into it. The SO yelled “stop, police”. The Complainant looked at him, but continued to run north. The SO followed and yelled a second time “Stop, police!” The Complainant ran towards WO #1, who was on the north side of the parkette. At the exit gate, WO #1 and the Complainant stumbled to the ground together. Once on the ground, the Complainant resisted WO #1’s attempts to take him into custody. The SO arrived and knelt in the snow beside the Complainant. The SO said several times, “You’re under arrest, stop resisting.” The Complainant did not comply and continued to try to get to his feet. The SO could not effectively grasp the Complainant’s arm because of the material from the several coats he was wearing. The Complainant continued his attempts to get away and grabbed at the pistol grip of the SO’s CEW. The SO grabbed the Complainant’s arm to remove it from his CEW, but was unsuccessful. The SO yelled, “Let go, let go of my Taser,” but the Complainant did not. The SO was concerned that the Complainant could easily release the CEW, putting he and WO #1 in danger. After about ten seconds, the SO punched the Complainant twice in the face with his closed right fist. His hand was not injured. The Complainant immediately released his grip on the CEW and stopped struggling. The SO and WO #1 secured the Complainant’s arms behind his back and the SO applied handcuffs.

The SO advised that after the Complainant was handcuffed, he was rolled onto his back and the SO told him he was under arrest and to calm down. The Complainant complained he could not breathe and so he was raised to a seated position before being walked to WO #1’s police cruiser and placed in the rear seat. The Complainant repeatedly said, “I’m sorry, I’m drunk, I’m sorry I didn’t know.” The SO detected the odour of alcohol on the Complainant’ breath and noted his speech was slurred. The Complainant’ right eye had a cut under it and appeared to be swollen and bruised.[5] Emergency Medical Services (EMS) were summoned. The Complainant displayed increased slurred speech and confusion and the SO believed the Complainant may have ingested drugs before his arrest. When EMS arrived, they discovered a small cut to the top of the Complainant’s head. The SO did not know how the cut occurred. The Complainant told the EMS personnel that he was hit by a stick but did not respond to follow up questions. He was transported to the hospital. The SO advised that he never struck the Complainant with a knee or foot at any time during the struggle, and did not deploy any use of force equipment. He did not see WO #1 use any use of force equipment.

WO #1 told investigators that upon hearing the dispatch for a suspicious man in the backyard of a residence, he drove to the area to assist. WO #1 saw CW #2 in her vehicle on Albert Street and stopped alongside her. CW #2 reported that the Complainant had been in her backyard shed. WO #1 believed that the Complainant had committed the Criminal Code offence of break and enter. The Complainant was observed about 50 metres to WO #1’s east and was running along the railway tracks[6]. The SO arrived in his police cruiser, and both police officers pursued the Complainant. The Complainant ran behind WO #1’s police cruiser into a nearby parkette, and WO #1 broadcast his location to the SO and stopped on the north side of the park. The SO was on the south side of the park. The Complainant entered the park from the south side and ran diagonally toward the north east corner, toward WO #1. WO #1 recognized the Complainant’s gait as he ran, and realized that he and the SO had dealings with him a week earlier and the Complainant had outstanding arrest warrants. WO #1 and the SO chased the Complainant into the park, from opposite sides, yelling for the Complainant to stop. The Complainant continued to run until he fell near the north east gate, just as WO #1 was about to catch him. The Complainant landed face down in snow bank. WO #1 grabbed the Complainant’s shoulders from the back and told him he was under arrest. The Complainant wore two bulky winter coats and nylon rain pants, making it difficult for WO #1 to hold him. The Complainant continually tried to rise to his feet and WO #1 forced him back to the ground. WO #1 knelt on the Complainant’s left side and the SO, who had arrived within seconds, knelt to the Complainant’s right side. The Complainant kicked his legs and tried to rise to his knees, and WO #1 noticed that the Complainant wore brand new large winter work boots and was concerned about getting kicked.

WO #1 advised that he and the SO told the Complainant several times to stop resisting. During the struggle, WO #1 heard the SO, whose back was to him, tell the Complainant to “Let go”, and “Let go of the Taser.” WO #1 then saw the SO’s right arm cocked as he delivered two punches toward the Complainant’s head. He did not see the SO’s punches land on the Complainant. The Complainant stopped struggling and WO #1 and the SO handcuffed the Complainant’s hands behind his back and placed him on his left side. The Complainant said he could not breathe, and WO #1 noticed that the Complainant had a cut under his right eye. WO #1 and the SO assisted the Complainant to his feet and WO #1 saw some blood in the snow near where the Complainant’s head had been. They walked the Complainant to WO #1’s police cruiser where the Complainant was searched and seated in the back seat. EMS was called to assess the Complainant and they discovered a cut on the Complainant’s head, above his hairline. WO #1 did not know what caused the cut. The Complainant told paramedics that the police had hit him with a stick. During the struggle WO #1 did not deliver any strikes to the Complainant nor did he employ any use of force options. WO #1 did not smell any odour of alcohol on the Complainant’s breath but did notice he had a bandage wrapped on one of his hands. EMS transported the Complainant to the hospital.

Although the medical personnel who attended to the Complainant were not interviewed, the Complainant consented to the release of his medical records. The EMS records indicate that the Complainant stated to the paramedics that he could not breathe, although he made clear breath sounds, and complained of neck and back pain in addition to the injuries to his face. The hospital records indicate that the Complainant was intoxicated, his speech was slurred and he was incoherent at times. In addition to the cut, bruising and swelling around the Complainant’s right eye, staff noticed a four inch second degree burn to his left hand, wrapped in a dirty bandage, as well a one inch cut on the top right of his head. The Complainant was not forthcoming with information. When the Complainant was transferred later that day to an eye specialty facility, he advised the attending physician that [I] “think I got kicked in the eye”.

To begin, I do not find the Complainant to be a reliable or credible historian of the events. The Complainant chose not to tell the investigators about his earlier activities at Walmart, or trespassing in CW #2’s backyard near her shed. Instead, he maintained an alternative explanation for why he ran from the officers and his presence in CW #2’s backyard. Not only is that explanation contradicted by all the other witnesses, it makes no sense given the presence of CW #2 when the police officers arrive, or her conversation with WO #1 before the police officers begin their pursuit. He also did not acknowledge or share details of his preexisting injuries in any way. We know from CW #1 that the Complainant had an injury to his right cheek and that his left hand was wrapped in a bandage at least three hours before his arrest – injuries which he attributed to her as coming from an “accident”. Where the Complainant stated he was stopped by the police officers was is a full block away from where the events actually happened. He also described a lengthy and involved beating at the hands (and feet) of both police officers, and yet his medical records only indicated the injury to his eye, the one inch cut on the top of his head, and the burn on his left hand (which we know was preexisting). I do not know if the Complainant’s recollection of that evening was affected by an earlier ingestion of drugs, or the “accident” he had told CW #1 about, or for some other reason. But for either reason, I find the Complainant to be neither credible nor reliable. Given my concerns regarding the Complainant’s credibility and reliability, it would be dangerous to accept such allegations without some form of corroboration, and none exists.

The SO acknowledged that he punched the Complainant twice on the right side of his face, in an effort to get him to release the CEW. Although the fracture to the Complainant’s right orbital bone could have been caused by another action, such as his fall in the snowbank, or indeed during the earlier “accident”, I accept that the SO’s punches to that area of his face are the most likely explanation for the fractures. Accordingly, the issue for my consideration is whether the SO was justified in doing so under either section 34(1) or 25(1) of the Criminal Code.

Under section 34(1) of the Criminal Code, the SO was justified in punching the Complainant if:

1. The SO believed on reasonable grounds that force or a threat of force was being used against him or another person or that a threat is being made against him or another person
2. The SO punched the Complainant for the purpose of defending or protecting himself or another person against that force or threat of force, and
3. The punches were reasonable in the circumstances

Just prior to the two punches, the Complainant had grabbed the SO’s CEW and refused to let go when directed. Given the manner in which the SO wore the CEW and secured it, it could be released very easily. Accordingly, the possibility of the Complainant gaining possession of the CEW and using it against the police officers became very real and dangerous. A period of approximately ten seconds also elapsed before the SO resorted to punching the Complainant to force his release. The punches, therefore, were not immediate. And by only resorting to two punches, rather than more significant uses of force, the SO demonstrated considerable restraint in the circumstances. I accept that by punching the Complainant, the SO was engaged in his self-defence and the requirements of section 34 were satisfied.

Further, the SO’s actions were justified under section 25(1). 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. I have no doubt that the SO and WO #1 were in the lawful execution of their duties that evening when they were attempting to arrest the Complainant with regards to the trespassing and possible break and enter in CW #2’s backyard. The Complainant was clearly resisting their efforts, and went so far as to grasp the SO’s CEW in his resistance. The SO was justified to use no more force than necessary to address the danger caused by the Complainant and effect his arrest and handcuffing. The SO used two punches to the face which immediately caused the Complainant to release the CEW and permitted the police officers to apply the handcuffs.

In the circumstances, I find that such punches were necessary and reasonable given the other options available to the SO. The jurisprudence is clear that police 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 the facts set out above, the force used by the SO fell within the range of what was reasonably necessary in the circumstances to effect 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 11, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #2 was not present for the Complainant’s arrest. [Back to text]
• 2) [2] The Complainant told CW #1 that he had been in an accident. [Back to text]
• 3) [3] WO #2’s prepared statement indicated that he was in a separate police cruiser that evening and did not arrive at the scene until the Complainant was already handcuffed and on his feet. [Back to text]
• 4) [4] The parkette in question is located a full block south of Wallace Street, with Bruce Street to the north, King Street to the south, Prince Street to the east and Albert Street to the west. [Back to text]
• 5) [5] Although the bruising was in the area where the Complainant was punched, the SO felt the bruising looked historic and not fresh. [Back to text]
• 6) [6] The railway tracks run to the south of King Street [Back to text]