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 an 18-year-old man on November 16, 2016 during his apprehension under the Mental Health Act (MHA).

Notification of the SIU

On November 16, 2016 at 8:15 p.m., the South Simcoe Police Service (SSPS) notified the SIU of the Complainant’s custody injury.

SSPS reported that on Wednesday, November 16, 2016 at 1:53 p.m., SSPS officers responded to a 911 call from the Civilian Witness (CW). She reported that the Complainant was out of control and smashing holes in walls at their residence. Police officers responded and apprehended the Complainant under the MHA after a brief foot pursuit into a forested area that backs onto their property and a physical struggle on the ground. The Complainant complained of an injury to his knee and was transported by ambulance to the hospital where he was diagnosed with a left tibia plateau fracture and admitted pending additional procedures. A surgery date was scheduled.

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

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

Civilian witnesses

CW Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed[1]

WO #3 Interviewed

WO #4 Interviewed

Subject officers

SO Interviewed, and notes received and reviewed.

The scene

The Complainant was arrested in a forest that extends beyond the rear property line of his home in Innisfil. It is a large wooded area with trees spaced to allow for easy travel through the forest. The forest floor was covered in fallen leaves, fallen branches, rocks, and fallen tree limbs. The terrain is fairly flat. The scene was not held but later photographed by an SIU forensic investigator. Below is a photo of the wooded area:

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.

Communications recordings

911 communications recording

The SIU investigators obtained and reviewed the 911 Communications Centre recording. The CW called 911 to call police and request their assistance with the Complainant. She reported that he was in her home, out of control, damaging property and threatening to harm others in the home. She expected that the Complainant would be polite with police upon their arrival. An agitated male’s voice could be heard in the background of the 911 call. The Communicator remained on the telephone line with the CW until she reported that police officers had arrived.

Materials obtained from Police Service

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

• Computer aided dispatch
• Communications recordings
• Duty sheets – November 16, 2016
• GPS data table – four police vehicles
• Notes of WO #1, WO #2, WO #3 and WO #4
• Occurrence details
• Previous contact occurrences
• Procedure - mentally ill persons, and
• Procedure - arrest and release

During the afternoon of November 16, 2016, the CW called 911 asking for police assistance. The CW advised that the Complainant was damaging property in the residence and was out of control.

The SO, WO #1, WO #2 and WO #3 attended the residence with the intent of arresting the Complainant under the MHA. WO #1 entered the home, and the Complainant ran through the back doors into an adjoining forest. WO #1, WO #2 and the SO pursued the Complainant, who continued to run in his stocking feet across the uneven ground. The Complainant fell twice while running, and immediately complained that his left knee was broken after the second fall. All three officers restrained the Complainant on the ground while he was being handcuffed. In the course of doing so, the SO placed his knee on the left thigh of the Complainant, causing the Complainant considerable pain.

As the Complainant was unable to walk due to the pain from his knee, paramedics attended the forested area and transported the Complainant to the hospital. X-rays revealed that the Complainant had sustained a left tibial plateau fracture.

Section 17, Mental Health Act – Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person
5. serious bodily harm to another person; or
6. serious physical impairment of the person

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

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 430(1) and (4), Criminal Code – Mischief

430 (1) Every one commits mischief who wilfully

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

(4) Every one who commits mischief in relation to property, other than property described in subsection (3),

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

On November 16, 2016, at approximately 1:53 p.m., a 911 call was received by the SSPS requesting assistance at a residence in Innisfil. The caller, the CW, reported that the Complainant was smashing things in the home and was out of control and she required the assistance of police. As a result, the SO, WO #1, WO #2 and WO #3 were dispatched to the residence. While on scene, the Complainant was apprehended under the MHA; following his interaction with police officers, he was taken to hospital and diagnosed with a left tibial plateau fracture (a break in the very top of the shin bone, within the knee joint) requiring surgery.

During the course of this investigation, two civilian witnesses, including the Complainant, and five police witnesses were interviewed, including the SO; all police officers also provided their notebook entries for review. Additionally, investigators also had access to the communications records and log.

In his statement to investigators, the SO advised that he responded to the residence along with WO #1, WO #2 and WO #3. Upon arrival, the SO described the CW as very emotional and very insistent that the Complainant be taken to hospital. While WO #1 and WO #3 went inside the house to speak with the Complainant, WO #2 went down the east side of the residence, and the SO down the west side of the residence, towards the backyard. The SO advised that once he heard WO #1 and WO #3 speaking with the Complainant, he started to make his way back towards the front yard, but as he was climbing the front porch steps, he heard one of the officers from inside the house shout, “He’s running out the back,” and the SO immediately headed back down the west side of the house to the backyard. Once in the backyard, the SO observed WO #1 and WO #2 in foot pursuit of the Complainant. The SO advised that he then also ran toward the forested area and, when he looked up, he saw the Complainant lying on the ground face down with his hands behind his back. The SO advised that he had not seen the Complainant go to the ground and had no idea how he came to be there, but he observed both WO #1 and WO #2 kneeling on either side of the Complainant’s upper body and holding onto the Complainant’s hands and arms. The SO observed WO #1 attempting to handcuff the Complainant’s hands behind his back and then knelt down on the Complainant’s left side and placed his right knee on the Complainant’s left thigh, above his knee, and held him down; the SO then leaned forward and held both of the Complainant’s hands while WO #1 handcuffed him. The SO advised that it was his intention to control the Complainant’s lower extremities while WO #1 and WO #2 controlled the Complainant’s upper body and handcuffed him. The SO indicated that his actions were consistent with his use of force training. The SO stated that he knelt on the Complainant’s upper left thigh for approximately 20 to 30 seconds and that he and WO #1 then assisted the Complainant to his feet and the Complainant immediately started saying that his leg was hurt and he could not put any weight on it. The SO advised that he had not heard anything that was said prior to his arrival at the Complainant’s location and was unaware that the Complainant had sustained an injury. The SO indicated that at no time did he apply pressure to the back of the Complainant’s left knee and he did not intentionally cause any injury to the Complainant.

The statement of WO #1 was consistent with that of the SO with a few additions. WO #1 advised that he yelled at the Complainant, “Stop, police!,” when he started to run and that he and WO #2 then ran after him. WO #1 advised that during the foot pursuit, WO #2 fell hard onto the ground, while the Complainant continued to run into the forest. WO #1 then ran past WO #2 and continued to pursue the Complainant, when he heard the Complainant shout that he had hurt his leg when he fell. WO #1 then approached the Complainant, who was lying face down on the ground with both hands above his head, and went to his right side and tried to maintain control of the Complainant’s right wrist while he knelt on the Complainant’s right buttock. WO #1 advised that WO #2 and the SO then arrived to assist and that WO #1 maintained control of the Complainant’s right hand while WO #2 and the SO assisted in bringing the Complainant’s left hand behind his back and he was handcuffed. WO #1 advised that he also heard the CW yell “Stop resisting.” WO #1 advised that he and the SO then attempted to turn the Complainant onto his buttocks when the Complainant complained that his left leg was sore; when WO #1 and the SO tried to lift the Complainant to his feet, he was in too much pain to stand.

WO #2 advised that he was outside of the house nearing the backyard when he heard the Complainant shout something to the effect that he was not going with them, and then heard WO #1 shout “he’s running,” at which point WO #2 observed the Complainant run toward the forested area at the edge of the property and WO #2 ran after him. WO #2 observed the Complainant fall forward onto the ground and discard his shoes and jacket; at that point, WO #2 advised that he was approximately 45 to 50 metres behind the Complainant who then immediately jumped to his feet and continued to run into the forest. WO #2 then observed the Complainant to trip and fall again, face down. WO #2 advised that the forest floor was covered with fallen leaves, branches, rocks and tree limbs, and he too tripped and fell. WO #2 then ran to the Complainant and observed him to be lying face up and trying to sit up, whereupon the Complainant indicated that his leg was hurt. WO #1 then arrived and he and WO #2 rolled the Complainant back onto his stomach; WO #1 had control of the Complainant’s right arm and WO #2 moved to the Complainant’s upper left side and pulled the Complainant’s left arm out from under his chest. At that point, WO #2 advised, the SO arrived and assisted by controlling the Complainant’s legs. The SO then held both of the Complainant’s hands and arms behind his back, while WO #1 handcuffed the Complainant. The Complainant complained that his leg hurt.

WO #3, who remained in the backyard and did not engage in the foot pursuit, observed the Complainant running, WO #2 slip and fall hard onto the ground and then WO #1 run past WO #2 in pursuit of the Complainant. WO #3 went to check on the well-being of WO #2, who then got to his feet and ran to catch up to WO #1. WO #3 did not see the Complainant go to the ground, but did observe WO #1 on the Complainant’s right side and the SO to his left while he was being handcuffed behind his back.

On all of the evidence, but giving specific weight to the evidence of the Complainant and the CW, it is clear that the Complainant, while attempting to flee from police officers, fell on at least one occasion. On the last occasion when he fell, by the Complainant’s own admission and as confirmed by the CW, the Complainant believed his left knee to be broken. This was before the SO had made any physical contact with the Complainant. On this evidence alone, it is clear that the Complainant injured himself prior to the arrival of the SO, and that he believed, at that time, that his leg was broken.

On the evidence of the SO, and consistent with the evidence of both the CW and the Complainant, and all three of the other police officers present, the SO was neither present when the Complainant fell nor when he made these utterances, but arrived shortly thereafter and proceeded, as he had been trained, to take control of the Complainant’s legs. There is absolutely no evidence that the SO was aware that the Complainant had fallen and had injured his knee or that he heard the Complainant shout that his knee was broken. I take specific note that WO #1 also placed his knee on the Complainant’s buttock in order to control him while attempting to handcuff him; in WO #1’s case, however, he was situated to the Complainant’s right, while the SO was situated on his left. The act, however, of placing his knee on the Complainant’s buttock would appear to corroborate the statement of the SO that taking control of the lower extremities of a person being handcuffed is how police officers are trained to proceed and that the SO was acting pursuant to his training when he also placed a knee on the thigh of the Complainant.

While it is possible that the SO may have exacerbated the Complainant’s injury when he took control of his legs and placed his knee on the Complainant’s thigh, it is far more likely that the Complainant’s knee had already been broken when he fell; certainly the Complainant appeared to believe at the time that his leg was broken in the fall. I have no doubt that if the Complainant’s knee was broken prior to the arrival of the SO, that the SO placing his knee on the left thigh of the Complainant would have caused the Complainant extreme pain, as would any contact with a broken limb. On this evidence, I find that there is insufficient evidence to reasonably believe that it is more likely that the Complainant’s knee was broken while being restrained, than it is that it was broken when he fell and immediately complained that he believed that he had broken his leg.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the 911 call that the Complainant was damaging her property, issuing threats and totally out of control and was therefore, at the very least, arrestable for mischief to property contrary to s.430(1)(a) of the Criminal Code. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by police officers in their attempts to apprehend and handcuff the Complainant, I find that their behavior was justified in the circumstances and that they used no more force than necessary to subdue the Complainant who, up until the point of his fall and injury, was clearly intent on evading police. I also find that it is more than likely that the Complainant suffered his injury when he tripped and fell, however, even if it were caused by the SO’s efforts to take control of the Complainant’s legs, I cannot find that to have been an excessive use of force. In coming to this conclusion, I am mindful of the law as set out in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), that police officers are not expected to measure the degree of their responsive force to a nicety, nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206).

On this record, there is no evidence that the SO was aware that after the Complainant had fallen to the ground, he had injured his knee or that he had called out that his leg was broken; had the SO been aware of those particular circumstances, he may well have resorted to other options in attempting to take control of the Complainant. However, in the absence of that knowledge, the SO was taking control of a fleeing party as he was trained to do, and ensuring that the Complainant could not again try to flee prior to being handcuffed. As such, I find that the force to which the SO resorted falls within the range of what was reasonably necessary in the circumstances to effect the Complainant’s lawful detention.

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 injury which he suffered, even were I to find that the police officers caused the injury, which I am not inclined to do. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: October 4, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #2 was originally designated as the Subject Officer. The witness officer interviews, however, did not support the notion that WO #2 was the Subject Officer and WO #2 was re-designated as a witness officer and the SO was re-designated as Subject Officer. [Back to text]