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 27-year-old man during his arrest on October 23, 2016.

Notification of the SIU

On Sunday, October 23, 2016, at 2:47 p.m., the Halton Regional Police Service (HRPS) notified the SIU of the Complainant’s custody injury.

According to HRPS, at about 1:38 a.m., HRPS officers responded to a complaint of an unknown woman [later identified as Civilian Witness (CW) #2] screaming, yelling and attempting to break into a residence in Oakville.

HRPS officers arrived and arrested CW #2. A man [later identified as the Complainant] who lived nearby began to scream at the police officers for arresting CW #2. As CW #2 was being escorted into a police vehicle, the Complainant grabbed one of the police officers and tried to pull him away from CW #2.

As a result, HRPS officers arrested the Complainant and transported him to the police station. At approximately 8:15 a.m., the Complainant woke up and complained of a headache and a pain on his face. He was subsequently transported to the hospital and was diagnosed with an orbital fracture.

The Team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 2

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:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

WO #4  Interviewed

Subject officers

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

The scene

The scene is located on a driveway between two residences in Oakville. The Complainant and CW #2 resided at one residence. CW #2 was located in the backyard of the neighbouring residence.

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

Audio communications recordings & event chronology report

The SIU investigators obtained and reviewed the audio communication recordings and the event chronology report from HRPS. The audio communication recordings and the event chronology report depicted the following:

• At 1:25 a.m., HRPS received a 911 call from a man [later identified as CW #3] requesting police officers to attend his residence. A woman [later identified as CW #2] can be heard yelling and screaming
• At 1:27 a.m., WO #2 was dispatched to attend CW #3’s residence in Oakville
• At 1:35 a.m., WO #2 arrived at the residence, and
• At 1:41 a.m., WO #2 reported that he had one person in custody [later identified as CW #2]

The event chronology report obtained from HRPS corroborated with the audio communications recordings.

Materials obtained from Police Service

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

• Arrest Booking Report – the Complainant
• Canadian Police Information Centre (CPIC) Query - the Complainant
• Event Chronology
• Incident Details
• Cell video
• Notes of WO #1, WO #2, WO #3 and WO #4
• Notes of a non-designated police employee
• Occurrence Summary
• Prisoner Custody Record – the Complainant, and
• Witness Statement – CW #3

During the early morning hours of October 23, 2016, the Complainant and CW #2 were very intoxicated. CW #2 attempted to enter her neighbour’s home, and CW #3 called 911.

WO #2 arrived at the residence first, and CW #2 was arrested in her neighbour’s backyard. The SO arrived while CW #2 was being arrested. The Complainant took exception to CW #2 being arrested, and grabbed WO #2 by the shoulder as he was leading CW #2 to his cruiser. The SO pushed the Complainant away and told him that he was under arrest for assaulting a police officer. The Complainant became aggressive and the SO grounded the Complainant. The Complainant’s face struck the ground. Once he was handcuffed and placed in the cruiser, the Complainant began to hit his head against the metal cage inside.

Later that morning, the Complainant complained of a headache and pain on his face. He was transported to the hospital and was diagnosed with an orbital fracture.

Section 270(1), 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 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 October 23, 2016 at almost 1:30 a.m., officers were called to a disturbance at a residence in Oakville. CW #2 was banging at the door of a home, and screaming for the occupants to leave as it was her house. She was very intoxicated, and her house, in fact, was next door. WO #2 responded and arrested CW #2 in her neighbour’s backyard. The SO also responded to the call, arriving after WO #2. When the SO arrived, he was confronted by CW #2’s spouse, the Complainant. The Complainant was also very intoxicated, and took exception to CW #2 being arrested (although he denied knowing her – likely a result of his level of intoxication). As WO #2 was escorting CW #2 to the cruiser, the Complainant grabbed WO #2 by the shoulder. The SO pushed the Complainant away and told him that he was under arrest for assaulting a police officer. The Complainant became aggressive and the SO grounded the Complainant. The Complainant’s face struck the ground. Later that morning, the Complainant woke up at the station and complained of a headache and a pain on his face. He was transported to the hospital and was diagnosed with an orbital fracture.

Given their levels of intoxication, neither CW #2 nor the Complainant had any reliable recollections of their interactions with the police that morning. There was also no audio or video recording from an in-car camera or any other device of the Complainant’s interaction with the police that night. Accordingly, I only have the evidence of CW #1 and CW #3 and the attending officers to consider. Unfortunately, CW #3 did not witness the Complainant’s arrest or grounding. CW #1 observed even less. Of the attending officers, only the SO and WO #2 were involved in, and observed, the Complainant’s arrest. Both officers observed the Complainant to be very intoxicated, aggressive and uncooperative.

The SO stated that when he pushed the Complainant away from WO #2, the Complainant became agitated and immediately raised his arms with his fists closed. The SO and WO #2 approached the Complainant and pushed him toward the parked vehicle on the Complainant’s driveway. The SO wanted to handcuff the Complainant, but the Complainant turned around with his fists swinging at the SO. The SO grabbed the Complainant’s left arm with his left arm and placed his right arm around the Complainant’s right shoulder and pulled the Complainant towards the ground. As a result, the Complainant’s face struck the ground.

WO #2’s evidence is largely consistent with the SO. WO #2 stated that as he was leading CW #2 to the cruiser, the Complainant approached him, grabbed his right shoulder, pulled back and said to let CW #2 go. The SO arrived and pulled the Complainant away from WO #2 and told the Complainant that he was under arrest for assaulting a police officer. The Complainant was told to place his hands behind his back. The Complainant turned around towards the SO in an aggressive manner. The SO grabbed the Complainant’s left arm and pulled the Complainant towards the ground. The Complainant landed on his face with the SO on top of him. The Complainant began to struggle. WO #2 assisted in pulling the Complainant’s arms out from underneath his body. Once handcuffed and placed into the cruiser, the Complainant banged his head against the cage.

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. When the Complainant grabbed WO #2, WO #2 was escorting CW #2 to the cruiser. The SO had reasonable grounds to believe that the Complainant had assaulted a peace officer and so he was arrestable. The Complainant continued to be aggressive, confrontational and uncooperative with the SO at that point, and so the SO grounded the Complainant in order to handcuff him. In the course of that grounding, the Complainant hit his head. Given that the Complainant was observed post-arrest banging his head off the cage inside the cruiser, I am unable to say with any certainty that the Complainant’s orbital fracture occurred in the course of the grounding versus being self-inflicted by his behaviour in the cruiser.

Nonetheless, even assuming the fracture occurred as a result of the SO grounding the Complainant, given the Complainant’s level of intoxication, aggressiveness and unwillingness to cooperate, I conclude that the SO’s conduct did not fall outside the range of what was reasonably necessary to take the Complainant into custody. The jurisprudence is clear, 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, I am satisfied on reasonable grounds that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds to believe they committed a criminal offence. No charges will issue.

Date: October 3, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit