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 of a 53-year-old man, discovered the day after his arrest on September 10, 2016.

Notification of the SIU

The SIU was notified of the incident by the Niagara Regional Police Services (NRPS) on September 19, 2016 at 2:25 p.m.

The NRPS reported that on September 10, 2016, at approximately 6 a.m., NRPS attended a home in St. Catharines, to assist with a domestic situation. During his arrest, the Complainant complained of a prior wrist injury that he sustained several months ago. The Complainant was taken to hospital, where it was determined he did not sustain any new fractures. The Complainant was release back into police custody. The Complainant later complained to NRPS that he had suffered fractures to his ribs and nerve damage to his wrist as a result of his arrest.

The Team

Number of SIU Investigators assigned: 4

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness Officers

WO Interviewed

Subject Officer

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

Communications Recordings

911 Communications Recording Summary

• On September 10, 2016, at 6:05 a.m., CW #1 called 911 and reported that the Complainant was outside of the home where she resides in St. Catharines
• CW #1 described the Complainant as being drunk and high on “something”, screaming and yelling
• CW #1 advised that the Complainant did not live with her and that he lived in Niagara Falls
• CW #1 did not know why the Complainant was at the home where she resided. She tried to reason with him and asked him to leave, but the Complainant would not leave
• CW #1 advised that the Complainant called her parent’s home last week, but they hung up on him, and
• The dispatcher advised CW #1 that police officers would be arriving at the home

Materials obtained from Police Service

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

• booking photo - complainant
• booking video
• Computer Aided Dispatch (CAD) call
• communications - master logger recordings log
• disclosure logs
• duty roster
• medical prisoner transfer form
• notes of the WO
• prosecution summary, and
• record of arrest - complainant

On September 10, 2016 at approximately 6 a.m., the Complainant attended CW #1’s residence to speak with her. The Complainant was CW #1’s ex-husband. The Complainant was yelling and intoxicated at the time. CW #1 asked the Complainant to leave, but he refused. CW #1 contacted the police.

The SO and the WO were dispatched to CW #1’s residence, arriving at approximately 6:15 a.m. The Complainant was found across the street from the residence. Both officers tried to engage in a conversation with the Complainant, but he was confrontational, belligerent and loud. The officers smelled the odour of alcohol emanating from the Complainant’s breath.

The Complainant attempted to re-attend CW #1’s property. He continued to scream. The SO decided to arrest the Complainant for causing a disturbance. The WO handcuffed the Complainant with his hands behind his back. The Complainant complained that his wrist was broken and then suddenly dropped to the ground, yelling that he had a broken hip. The Complainant rolled over and began kicking the WO, striking him on the shin. The SO struck the left side of the Complainant’s face once to stop him from continuing to assault the WO. The Complainant was subdued, and placed in the rear of the police cruiser.

Once in the cruiser, the Complainant continued to be agitated and started kicking the rear window and banging his head against the metal cage inside. Because of the Complainant’s statement that he had a broken wrist and hip, the officers transported the Complainant to hospital where he continued to be combative. The Complainant was subsequently restrained at the hospital and examined.

The test results for the Complainant confirmed that he had no new fractures to his wrist or pelvis. The Complainant was released from police custody on September 11, 2016.

On September 11, 2016, the Complainant attended another hospital complaining of chest pain and a sore right wrist. At that hospital, the Complainant was diagnosed with mildly displaced fractures at the 5^th and 6^th right ribs.

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(4), Liquor License Act - Intoxication

(4) No person shall be in an intoxicated condition,

1. in a place to which the general public is invited or permitted access

Section 31(5), Liquor License Act - Arrest without warrant

(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.

Section 175(1)(a), Criminal Code - Causing disturbance, indecent exhibition, loitering, etc

175 (1) Every one who

1. not being in a dwelling-house, causes a disturbance in or near a public place,
   1. by fighting, screaming, shouting, swearing, singing or using insulting or obscene language
   2. by being drunk, or
   3. by impeding or molesting other persons…

is guilty of an offence punishable on summary conviction.

On September 10^th, 2016, a 911 call was received by the call taker for NRPS at 6:05 p.m. from CW #1 reporting that the Complainant was at her residence, was intoxicated by drugs and/or alcohol and was outside yelling. CW #1 advised that she had asked the Complainant to leave the residence, but he had refused. As a result, the SO and WO were dispatched to CW #1’s residence in the City of St. Catharines. After some interaction with the police officers, the Complainant was arrested for causing a disturbance in a public place contrary to s. 175(1)(a) of the Criminal Code. After his arrest, the Complainant complained of a broken wrist and hip and was transported to hospital where his head, pelvis and wrist were x-rayed and it was determined that the Complainant had no fractures. On September 11^th, 2016, the Complainant attended a different hospital complaining that a police officer had put a knee into his right rib area; x-rays of the area revealed mildly displaced fractures to the fifth and sixth ribs.

The Complainant returned to the hospital on the 20^th of September, where he again had his right wrist x-rayed and the results showed that he had chronic fractures in his distal radius, ulna and fourth metacarpal (fourth finger and wrist area).

The Complainant’s statement outlined three areas of complaint:

1. The SO threw him to the ground
2. The WO put his handcuffs on too tight, and
3. The third officer forcefully kicked him in his right ribs

The Complainant did not complain of being punched in the face by any of the officers present.

During the course of this investigation, three civilian witnesses in addition to the Complainant were interviewed, as well as both officers who attended the scene and who were involved in the arrest of the Complainant. Investigators also had access to the communications recordings and log, the note book entries of the WO and the duty roster for September 10^th, 2016.

The 911 recording reveals that CW #1 contacted the NRPS at 6:05 a.m. and advised that the Complainant was “all high and drunk on something” and was out in front of her residence. She further advised that “he’s out there screaming and yelling” and that his purpose in being there was “to bug” her and her parents. She indicated that “he’s just woke up the whole household” and that she had tried to reason with him and told him to leave, but he wouldn’t.

The communications log reveals that at 6:14 a.m., a cruiser was dispatched to the residence with the SO and WO on board. The log further indicates that both officers arrived on scene at 6:15 a.m. The duty roster confirms that the cruiser was manned by the SO and WO. No other officers were dispatched or attended the scene.

The next call received on the recording is from the SO’s cruiser at 6:21 a.m., reporting that the Complainant requires an ambulance for his wrist; the Complainant is heard screaming very loudly in the background; no words, just loud screams. At 6:23 a.m., the SO’s cruiser again calls in saying that “he just kicked my …” The last word cannot be heard on the tape and the operator advised the officer that she cannot hear him over the screaming and he repeats that “he just kicked my …,” but again the screaming drowns out the last word. The next call from the SO’s cruiser at 6:28 a.m. indicates that the Complainant is “kicking doors of our cruiser now. Nothing damaged yet,” and a further call at 6:33 a.m. indicates he is “banging head off of cruiser” and that the ambulance was just pulling up. At 6:38 a.m., the SO’s cruiser advised they were going to take this gentleman to the hospital and because of his behaviour it “would be nice if a couple of guys could meet us there”. The last transmission indicates that the SO’s cruiser has “no concerns about physical injuries but he’s pretty worked up”. At 6:38 a.m., the SO’s cruiser is en route to the hospital with the ambulance following behind and the hospital is requested to get a bed with restraints ready for the Complainant’s arrival.

During the course of the Complainant’s interaction with police, three more 911 calls were received by the call taker, the second caller was a neighbour down the street advising that “someone down my street is yelling help, help, I’m hurt,” the third call is that “somebody is going crazy” and the last caller indicated that there was a lot of yelling behind her house. On each occasion the callers were assured that police were already on scene.

The Complainant’s medical records reveal that he was seen at 6:55 a.m. and under reason for visit, the staff has entered “Intoxicated/Violent”. The record reads as follows:

At 7:26 a.m., a lap belt restraint and ankle restraints were applied to the Complainant while the handcuffs remained and that, as per the doctor’s orders, the Complainant was sedated;

At 7:45 a.m., soft wrist restraints and shoulder restraints were applied. “Pt (patient) continues to swear, agitated ++”;

At 8:05 a.m., “Pt agitated ++ remains in 5 point restraints. Pt tipped stretcher onto left side. No new injury. Pt did not hit his head. Doctor notified”;

At 8:10 a.m., “Continuing to yell ++ - remains agitated. Trying to get out of restraints. Sedation given”;

At 8:40 a.m., 9:05 a.m., 9:15 a.m. and 9:20 a.m., the Complainant is continually described as agitated; continuing to yell and swear and the restraints are kept on. At 9:20 a.m., the Complainant had to be sedated for a third time;

At 9:54 a.m., the same observations and the Complainant is sedated a fourth time;

At 10:50 a.m. and 11:05 a.m., with continued agitation, the Complainant is sedated a fifth and sixth time;

Finally at 11:25 a.m., the Complainant is noted as resting quietly and the shoulder restraints are removed;

At 12:40 p.m., the Complainant is noted as still drowsy and the ankle restraints are removed and he is to be discharged; and

And at 1:34 p.m., the Complainant was discharged from hospital.

The Complainant’s records further indicate that, as per his complaints of injury, his right wrist and pelvis were x-rayed and compared with previous records on file and no new injuries were observed. He also had a CT scan of his head, which revealed no injuries.

The Complainant’s toxicology screen revealed the Complainant to have 59 millimoles of alcohol per litre of blood (or 272 milligrams (mgs) of alcohol per 100 mgs of blood), about 3 ½ times the legal limit to operate a motor vehicle.

The medical records of the Complainant further reveal that the Complainant attended a second hospital on September 11^th, 2016, where he advised medical staff as follows:

Pt states that he was involved in altercation with police. Pt states that he was held onto the ground pushing left side of face into the ground. Knee was pushed into right rib area. Dragged on the ground. Numerous superficial abrasions to legs and top of head. Pt has sore R wrist from tight handcuffs.

On that occasion, the Complainant again had his right wrist x-rayed and the finding was again that the injuries were old. On this occasion, however, he also had his ribs x-rayed with a finding that “acute mildly displaced fractures are seen at the 5 and 6 right ribs. Old left rib fractures”.

On September 20^th, 2016, the Complainant returned to that hospital for a second time and had his right wrist x-rayed for a third time; again the results indicated that he had chronic (old) fractures with severe degenerative changes, but no new injuries.

The SO advised that on September 10^th, 2016, he was partnered with the WO and that they were operating a marked SUV cruiser and they did not have leg shackles in their vehicle. At 6:14 a.m., the officers received a call to attend a residence regarding a domestic incident; they arrived at 6:15 a.m. and parked their cruiser in front of the house. The SO observed the Complainant standing across the street by a parked car and he asked him for his name to see if he was involved, at which point the Complainant immediately began to scream at him; the SO smelled the odour of alcohol on the Complainant’s breath, noted that he was slurring his speech and that it seemed like he was leaning against the car for balance. The SO advised the Complainant that they were there to investigate a domestic incident, whereupon the Complainant “started telling him to fuck off” and continually yelled and carried on very loudly using extremely vulgar language. The SO observed CW #1 come down the driveway and she advised that the Complainant had put his hands on her and that she wanted him off her property. As CW #1 was returning to her residence, the Complainant attempted to follow her and was yelling at her and the WO put his hand up to stop him. The SO advised that he then told the Complainant to calm down and observed that several people were coming out of their homes to see what was going on. The SO advised that the WO then placed the Complainant under arrest for causing a disturbance, and the SO took hold of the Complainant’s left arm to place him under arrest, while the Complainant continued to scream. The SO then leaned the Complainant against CW #1’s vehicle and the WO handcuffed him behind his back. While the officers were searching the Complainant, the SO advised, the Complainant suddenly screamed that his wrist was broken although the SO indicated that he could not see that anything was out of place. The SO indicated that the Complainant then suddenly flopped to the ground and screamed and yelled that he had a broken hip; the SO told the Complainant to stop yelling, but he continued screaming “help me”. The SO then rolled the Complainant onto his stomach so that he would not be laying on his hands because of his complaint of a broken arm and called for the paramedics. The SO advised that as he was calling the paramedics, the Complainant quickly turned over and started kicking at the WO and he thought the WO fell to the ground. The SO indicated that he thought the WO might get hurt and he wanted to prevent an assault, so he got on top of the Complainant and quickly delivered a distractionary strike to the Complainant’s face and he immediately stopped kicking and momentarily calmed down.

The SO advised that he and the WO then picked the Complainant up and walked him to the cruiser, placing him in the rear, as he was still agitated. The SO and the WO then spoke with CW #1, who advised them that the Complainant had been in a bad accident five years prior and had suffered broken hips and arm. While speaking to CW #1, the SO advised, the Complainant continued screaming and started kicking hard at the rear window of the cruiser. The SO advised that he returned to the cruiser and told the Complainant to stop, whereupon he started to bang his head against the metal cage inside the cruiser and continued to yell and scream and use vulgar language.

Paramedics arrived, but as the Complainant was still yelling and screaming, there was a safety issue. The window to the cruiser was open and paramedics were speaking to the Complainant but he was indicating he did not want any help at all. The SO advised that they were concerned that the Complainant may be under the influence of a drug so they requested the ambulance to follow their vehicle, in case he went into medical distress en route. At 6:51 a.m., they arrived at the emergency room of the hospital and had to physically half walk, half carry the Complainant to the bed, where he was restrained but he kept struggling against the restraints and spitting on the ground. The SO advised that he heard that the WO might have a cut to his arm and because of concerns of contamination, he stayed with the WO while he was medically cleared, and other officers who had attended the hospital remained with the Complainant. The SO and the WO then cleared the hospital at 8:44 a.m. The SO observed a minor abrasion on the WO’s shin from being kicked by the Complainant.

The SO indicated that at no time did he kick the Complainant in the rib area, nor did the Complainant ever complain of pain to his ribs. The SO indicated that he was of the view that it had been necessary to punch the Complainant in the face to “prevent further assault on his partner”.

The statement of the WO is substantially in accord with that of the SO. The WO again confirmed that he and the SO were not in possession of any leg shackles at the time in question and that the Complainant’s legs were never shackled. He also made note of the fact that the Complainant had an odour of alcohol emanating from his breath, was unsteady on his feet, slurring his words, yelling very loudly, confrontational and refused to answer any of the officers’ questions. The WO further advised that when he put his hand on the Complainant’s chest and told him to stop, the Complainant became even louder and more verbally aggressive and repeatedly stated that he was going to file a complaint against the officers and that they were not allowed to touch him. The Complainant continually pointed a finger at one or the other of the officers, made a fist at the officers and clenched his jaw. The WO indicated that at 6:18 a.m., it was determined that the Complainant would be arrested for causing a disturbance and he was placed against the car and handcuffed by the WO, following which the Complainant was searched for officer safety. The WO advised that the Complainant then became even louder than previously, which was quite a feat, and began shouting about pain to his right wrist. While the WO had control of the Complainant’s right arm, he then became weightless and dropped to his knees and then onto his stomach. Once on the ground, the WO advised that the Complainant started to roll around and continue to scream while officers tried to keep him on his stomach and even offered to loosen his handcuffs if he would comply with the officers’ demands and be quiet and calm down but he continued to yell, curse, roll on his back and spit in the direction of the police officers. The WO advised that he checked the handcuffs when the Complainant complained that they were on too tight and determined that they were not; that he had used no more force to apply them than he did in the normal course.

At one point, the WO advised, when he was bending over at the Complainant’s side, he flipped over and kicked him in the leg area causing the WO to jump out of the way but the Complainant did make contact with his leg and shin area. The SO then gave the Complainant a quick distraction strike in the facial area and he quickly calmed down. The WO also observed the Complainant kicking the grate in the rear window of the cruiser and then banged his head on the grate causing facial abrasions to himself. The WO also added that when the paramedics arrived, they refused to take the Complainant to the hospital until he calmed down, and as such, he and the SO transported the Complainant to hospital where he was restrained by medical staff onto a stretcher and that he, the WO, was also treated for the injury he had received when the Complainant kicked him. The WO advised that at no time did he swear or use profanities towards the Complainant and that neither he nor the SO ever kicked the Complainant.

On a review of all of the evidence, it is clear that the Complainant was completely out of control during the early morning hours of September 10^th, 2016; this is confirmed by the evidence of CW #1, CW #2 and CW #3, as well as the 911 caller who referred to “somebody going crazy”, hospital staff and the evidence of the WO and the SO. Additionally, the fact that the Complainant was out of control, combative, resistant and violent is well recorded in the Complainant’s medical records, which indicated that the Complainant was still agitated, yelling and swearing more than four hours after he had been admitted, that the five point restraints could not be removed before the Complainant had been sedated six times and that on one occasion he was so violent that he flipped over the stretcher. Furthermore, it appears to be without question that the Complainant was intoxicated by alcohol and/or drugs, as confirmed by the blood test and by CW #1.

In addition to the Complainant’s level of intoxication and his combative and violent behaviour at the time in question, the Complainant appears to have little, if any, credibility. During his interaction with police, he appeared to have no qualms in relying on prior injuries that he had sustained during a motor vehicle collision some years before and pretending that he had just sustained those injuries at the hands of police. Additionally, details provided in his statement regarding the number of cruisers and officers present, and the use of leg shackles, is inexplicable and contradicted not only by the three civilian witnesses who observed parts or all of the interaction with police, but also by the duty roster and the communications recordings. At no time did more than two police officers and one cruiser attend the residence and at no time were any leg shackles placed onto the Complainant; this evidence is contradicted not only by the WO and the SO, but confirmed by CW #1.

Certainly, these large discrepancies in the Complainant’s evidence alone would be more than sufficient to severely damage any credibility he might have had, without going into all of the other inconsistencies, including his advising medical staff that he had only consumed four beers and some valium and telling the doctor on September 20^th, for the first and only time, that police had “dragged” him when he was on the ground, an allegation that he did not include in his statement to investigators; but when the inconsistencies are combined with his behaviour both at the scene and at the hospital thereafter, I am unable to place any weight whatsoever on the evidence of the Complainant. I can only come to the conclusion that either the Complainant is very adept at manipulating the truth to his own advantage and embellishing and exaggerating the facts, or, due to his severe state of intoxication, he really has no recall of the events at all.

In his statement, the Complainant outlined three areas of complaint. On the first area identified by him, that being that the SO threw him to the ground, I am unable to find that any reasonable grounds exist to determine that this occurred, as it is directly contradicted by the evidence of CW #1.

I am unable to place any credence in the version of facts as offered by the Complainant, I find it is more than likely that he came to be on the ground in the way described by both the SO and the WO, that being that he deliberately dropped all of his body weight onto the ground and then started to scream that his hip had been broken. I find that this version of events also finds support in the Complainant’s other behaviour wherein he dramatically claimed police had injured him when in fact all of the injuries he complained of were pre-existing.

With respect to the Complainant’s second area of complaint, that being that the WO put his handcuffs on too tight, I find that it is very likely that the Complainant, in his struggling and combativeness, caused the handcuffs to tighten, if they were not double locked. Even were they too tight, which I do not accept, I can find no fault with either police officer in refusing to loosen the cuffs when the Complainant was so out of control; in fact, I find that it would have been foolish to do so while the Complainant was in the combative and assaultive state that he was. I would be more inclined to believe, however, based on the Complainant’s behaviour overall, that his claim that the handcuffs were too tight was simply another ruse whereby he could claim that his pre-existing wrist injury was caused by police.

Coming then to the Complainant’s final area of complaint, that being that the third officer kicked him in the ribs and caused his rib injuries, it is of course obvious that there was no third officer. On the assumption, however, that the Complainant’s evidence may have been confused due to his severe state of intoxication, I also am unable to find that reasonable grounds exist to believe that either the WO or the SO kicked the Complainant in the ribs. I make this finding for the following reasons:

The Complainant was very vocal in his complaints about injuries to his wrist and hip; if, in fact, he had been kicked in the ribs and felt instant pain, as he alleges, I would certainly have expected that he would have been equally as vocal, if not more so, for this real injury as he was with his contrived injuries; therefore cannot find reasonable grounds to believe that any officer kicked the Complainant in the ribs.

Although the finding of the two mildly displaced fractures of the fifth and sixth ribs would be seen as corroborating the Complainant’s allegation that the WO kicked him in the ribs in the normal course, I am unable to find that to be the case here for the following reasons:

No injury was found on September 10^th, when the Complainant was taken to hospital immediately after the interaction with police;

The Complainant made no complaint of either pain or injury to his ribs, despite being exceedingly vocal with respect to his other complaints of injuries;

The Complainant purposely dropped himself to the ground, banged his head against the cruiser, kicked at the cruiser window repeatedly and flipped over the stretcher that he was restrained on at hospital causing himself to fall to the floor; all of which could have caused some injury to the Complainant;

The rib injury was not diagnosed until the 11^th of September, when the Complainant attended a different hospital alleging an injury and pain where none had existed on his first visit to hospital immediately after the interaction with police. Based on the Complainant’s lack of credibility, his feigned injuries, his self-destructive behaviour and the interval of time between his first visit to hospital and his second visit to hospital, I am unable to find that there are reasonable grounds to believe that the rib injury was caused by police, as it is more likely that he either injured himself or was otherwise injured in the interval between hospital visits.

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 statements of the civilian witnesses and the observations of the SO and the WO, that the Complainant was intoxicated, loud, yelling and swearing and generally causing a disturbance in a public place in the early morning hours of September 10^th, 2016 and was consequently arrestable not only for causing a disturbance contrary to the Criminal Code s.175 (1)(a) by screaming, shouting or swearing or (2) by being drunk, but also pursuant to the Liquor Licence Act for being intoxicated in a public place. As such, the arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, I find that their behaviour was more than justified in the circumstances and that they used no more force than necessary to subdue the Complainant, who was clearly out of control, combative, assaultive and extremely intoxicated. In light of the fact that the Complainant had already kicked the WO, it was not a stretch to find that he was capable of doing so again, if not deterred. As such, I find that the SO was justified in striking the Complainant in the face as a distractionary measure and that it did have the desired effect in that the Complainant then stopped kicking. 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:

I note that the Complainant at no time complained of or reported having received the blow to the face nor is any injury attributable to that blow. With respect to the injury sustained to the ribs of the Complainant, I am unable to find any credible evidence which would support an inference that this injury was caused by his interaction with police. Not only on the evidence of the SO and the WO, but also on the evidence of CW #1, I am unable to find any acts by either officer that caused any injury to the Complainant. Taking into account the extremely violent and combative behaviour of the Complainant not only at the scene, but as observed by hospital personnel, I find that the WO and the SO appear to have exercised great restraint in their interaction with the Complainant and that no excessive use of force was exercised by either officer.

On this record, it is clear that the force used by both the WO and the SO was minimal and progressed in a measured and proportionate fashion to meet and overcome the Complainant’s assaultive behaviour, and fell within the range of what was reasonably necessary in the circumstances to prevent any further assaults on the officers and to effect his 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 and that there is no causal connection between the injury that was diagnosed on September 11^th and the actions of the officers on September the 10^th. 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 3, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit