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 an interaction between Ontario Provincial Police (OPP) officers and a 31-year-old man outside a coffee shop in Tillsonburg on October 30, 2016.

Notification of the SIU

The SIU was notified of the incident by the OPP on October 31, 2016, at 12:41 p.m.

According to the OPP, on October 30, 2016, the Complainant was arrested for a breach of the peace at the Coffee Culture Café and Eatery on Broadway Street in Tillsonburg. He was taken to the Tillsonburg Detachment and lodged in the cells. At 7:00 p.m., the Complainant complained of pain in an arm he had previously broken. He was taken to the hospital where the arm was reset. The Complainant was taken back to the Detachment and logged in the cells.

On October 31, 2016, at 11:35 a.m., upon release from custody, the duty sergeant learned that the Complainant had been at the hospital in London, where he was involved in a fight with security guards and had broken his arm. The duty sergeant notified the SIU liaison who notified the SIU.

The team

Number of SIU Investigators assigned: 3

Complainant

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

Civilian witnesses

CW #1 Not interviewed (provided video evidence)

CW #2 Not interviewed (contacted in attempt to locate complainant)

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Not interviewed (contacted in attempt to locate complainant)

CW #8 Not interviewed (contacted in attempt to locate complainant)

CW #9 Not interviewed (contacted in attempt to locate complainant)

CW #10 Not interviewed (contacted in attempt to locate complainant)

CW #11 Not interviewed (consulted regarding injuries)

CW #12 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3[1] Interviewed

WO #4 Interviewed

Subject officers

SO[2] Declined interview and to provide notes, as is the subject officer’s legal right.

The scene

The incident occurred outside the side entrance of the Coffee Culture Café and Eatery on Brock Street and Broadway in Tillsonburg.

Expert evidence

Investigators consulted with CW #11, an uninvolved physician at another southern Ontario hospital, and were advised the following:

…there are multiple opportunities whereby displacement of the existing fracture could have occurred and only one constituted an opportunity where police intervention may have played a minor role in the displacement. This fracture was inherently unstable from the onset, given the comminuted nature of the displaced fracture and the treatment provided.

Video evidence

Video summary from Coffee Culture Café and Eatery

The video was reviewed and the majority of the time, the Complainant was out of view of the camera situated in the dining room. The side door was not covered. The camera at the front counters could barely be seen due to a blooming effect caused by lighting. Most of the Complainant’s reported behaviour can be observed. The SO was the first police officer to arrive, followed by WO #3. There was no physical contact seen with the Complainant. The Complainant followed a couple steps behind WO #3 through the dining room and toward the side door. The SO was about two to three steps behind the Complainant. The SO spent about four minutes with the Complainant.

Initially, the Complainant wore the sling on his right forearm to support his arm. At times it appeared the arm was practically out of the sling. The sling allowed a lot of movement of the arm. When walking out of the café, it appeared the Complainant had the sling now supporting the elbow.

Video from the London Hospital

Upon request the SIU obtained and reviewed the incident report and notes of security guards from the London hospital.

The video from the hospital was reviewed and supported the information from several witnesses interviewed.

Video from the OPP cells

The video showed the Complainant was handcuffed to the front when he arrived at the station. The atmosphere throughout the video was relaxed and the Complainant appeared to be communicating with the police officers throughout. The video indicated the first time the Complainant appeared to complain about his arm. Medical attention was provided at the cells and he was taken to the hospital.

Materials obtained from Police Service

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

• Mental health screening form for the complainant
• Custody video of the complainant
• Event chronology – unwanted guest
• Event chronology –prisoner care
• Notes from WO #1, WO #2, and WO #3[3]
• Occurrence history of the complainant
• Two occurrence summaries
• OPP communications and copy of 911 call, and
• Prisoner custody report

On October 25, 2016, the Complainant attended the Emergency Department at a London hospital. After the Complainant was finished in the Emergency Department, he refused to leave the hospital. Hospital staff and security became involved. As the Complainant was being arrested for trespassing, a struggle ensued and the Complainant’s right humerus bone was broken. The Complainant was given an outpatient orthopedic appointment and a temporary cast was put on his arm.

On October 30, 2016, OPP officers in Tillsonburg received a call to the local hospital as the Complainant had refused to leave. WO #3 located the Complainant in the area, and he was given a ticket for failing to leave under the Trespass to Property Act. The Complainant then went on his way.

Later that day, the SO and WO #3 responded to another 911 call concerning the behaviour of a person inside the Coffee Culture Café and Eatery on Brock Street.

When the SO and WO #3 arrived at the restaurant, they recognized the Complainant. He was escorted from the establishment and arrested for breach of the peace. The Complainant was handcuffed and transported to the OPP Tillsonburg Detachment and lodged in the cells.

When in the cells, the Complainant complained of his right arm being sore. OPP officers took the Complainant to the hospital, where the bone in his right arm was straightened and realigned. The old cast was put back on and a proper wrapping was put on the arm.

The Complainant was taken back to the cells and released the next morning.

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 31(1), Criminal Code - Arrest for breach of peace

31(1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.

On October 30, 2016, the Complainant was arrested by the SO and WO #3 of the Tillsonburg OPP Detachment for breach of the peace. Five days earlier, the Complainant’s right arm had been broken while he was arrested by security guards at a London hospital. At that time, his arm was placed in a splint and he was directed to attend the Fracture Clinic for a follow-up appointment. When the Complainant was arrested on October 30, by the SO and WO #3, his arm was still in the original splint, but it was in poor condition. The Complainant acknowledged to one doctor that he had earlier cut it with scissors. Later on October 30, at the local hospital, WO #1 saw that the cast was tattered, torn, and crumbly. As seen on the video from Coffee Culture and the booking video, as well as described by various witnesses, the Complainant demonstrated significant movement and mobility, apparently without discomfort, with his right arm despite the splint.

Although the Complainant did not complain of any pain in his arm when he was handcuffed, both police officers were aware of the pre-existing injury and took effort not to aggravate it. However, it was imperative that the Complainant be handcuffed in the circumstances, as he was going to be transported to the station and acknowledged having a syringe in his pocket at the time. He was also known to have significant mental health issues, and had been involved with the Tillsonburg Detachment many times before. The SO handcuffed the Complainant’s right hand and WO #3 his left. The booking video from that afternoon demonstrated that the Complainant was handcuffed to the front when he arrived at the station. After being placed in the cells, the Complainant began to complain of pain in his right arm. Police officers also observed his right hand to be discoloured and swollen.

The Complainant was taken to the hospital. It was found that the cast the Complainant had at that time was not adequate for his injury and did not have the capability of holding the arm in place. An X-ray was taken and it indicated his right arm was fractured. The bone in the right arm was realigned.

The issue is whether the actions of the police officers on October 30, caused or intentionally worsened the fracture to the Complainant’s right arm that was seen later at the hospital. 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.

There is no evidence, however, that the SO or WO #3 used any force whatsoever in their dealings with the Complainant. Perhaps the very act of handcuffing the Complainant’s right wrist contributed to the observed fracture, but it is only speculation. As opined by CW #11:

…there are multiple opportunities whereby displacement of the existing fracture could have occurred and only one constituted an opportunity where police intervention may have played a minor role in the displacement. This fracture was inherently unstable from the onset, given the comminuted nature of the displaced fracture and the treatment provided.

When the SO and WO #3 met and arrested the Complainant, the Complainant had a pre-existing fracture to his right arm that was only five days old. In those five days, the Complainant purposely cut his splint with scissors, presumably to increase mobility, and took no efforts whatsoever to address his own medical needs. Both before and after the Complainant was handcuffed by the SO and WO #3, he made no complaint of pain and the recovered videos demonstrated that he did not appear to suffer from any discomfort. It was only after several hours, while the Complainant was in the cells, that he began to experience pain in his right arm. Accordingly, even if either police officer used any force in their dealings with the Complainant, and I do not have any evidence of such, they clearly fall within section 25(1) of the Criminal Code. The jurisprudence is clear, 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).

As such, there are no grounds to believe the SO committed a criminal offence, and no charges will issue.

Date: October 3, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #3 was originally designated as a Subject Officer, but was later re-designated. [Back to text]
• 2) [2] The SO was initially designated as a Witness Officer. After viewing his notes, it was determined the officer should be a Subject Officer. The notes were returned and the next day he was designated as the SO. [Back to text]
• 3) [3] WO #4 was off duty at the time of the incident. [Back to text]