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 suffered by a 40-year-old male on June 11, 2016 at approximately 8:00 p.m., following his arrest for being intoxicated in a public place.

Notification of the SIU

The SIU was notified of the incident by the St. Thomas Police Service (STPS) on June 12, 2016 at 9:35 a.m. STPS notified the SIU that following his arrest on June 11, 2016, the Complainant was treated for a fractured right shoulder.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witness

CW Interviewed

Police Employee Witnesses

PEW #1 Interviewed

PEW #2 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right, but did provide a notebook entry of the statement of the CW.

The Scene

The Complainant’s arrest occurred in the back parking lot of a plaza on Wellington Street, on the southwest corner of Wellington Street and First Avenue in St. Thomas. The plaza housed businesses including a Little Caesars pizza restaurant.

Video Evidence

Police Station CCTV Video

Five video files that recorded activity within the STPS station were collected. The Complainant was only in the facility for less than six minutes. The content of the video was comprehensively captured in a follow-up report but was largely uneventful.

The only points of note were captured at 8:09 p.m., when, while in the garage, PEW #2 took hold of the Complainant’s right arm to lead him through a door. The Complainant did not exhibit a pronounced or obvious pain reaction when PEW #2 held his arm. At 8:09 p.m., in a hallway, PEW #2 again took the Complainant by his right shoulder and again the Complainant showed no pain reaction. And finally, at 8:10 p.m., WO #1 patted the Complainant on his right shoulder, in a re-assuring fashion. The Complainant did not appear to react in pain to WO #1’s touch, but he was swaying back and forth and was not able to balance very well.

Communications Recordings

911 Telephone Call and Communication Tapes

The times may not be exact as the dispatcher did not broadcast the time when she broadcast the information.

At 7:54 p.m., the SO reported he had been flagged down by two young men and was told about an intoxicated man [now known to be the Complainant] on First Avenue.

PEW #1, who was off-duty, contacted the station duty operator at 7:55 p.m., and asked for a police officer to investigate a man [now known to be the Complainant] walking northbound on First Avenue, between Erie Street and Wellington Street. The Complainant was intoxicated and almost fell into the road, in front of her vehicle. The communications operator told the SO about PEW #1’s call.

At 7:55 p.m., the SO reported he would be out with the Complainant behind a plaza and at 7:56 p.m., the SO requested a Canadian Police Information Centre (CPIC) check on the Complainant. Shortly after 7:56 p.m., PEW #2 arrived upon the SO and the Complainant and told the dispatcher the Complainant was in custody. The SO reported the Complainant was bleeding from his nose when the SO advised the dispatch operator he was returning to the police station with a prisoner.

There was no mention of a fight and the remainder of the audio was post-incident and included nothing more than notification of transportation to the hospital and subsequent transports.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and received a cell phone video from one of the two youths who had initially informed the SO about the Complainant.

The video was mainly of two young men walking and holding skateboards. The video was aimed at the ground and recorded their feet, most of the time. The videographer was not aiming the camera’s lens at the police interaction. There was audio associated with the video but nothing that recorded the SO or the Complainant, just the two young men talking.

The video was three minutes and 32 seconds long and was date/time stamped, “2016-06-11, 7 44 38 PM”; that time did not advance with the video. Twenty seconds into the video the two young men became excited to find a police officer driving a police cruiser [now known to be the SO]. One of the young men reported, “There’s a guy over there, he looks kinda’ drunk” and pointed him out [that person is now known to be the Complainant]. The video was still aimed at the ground and the camera did not capture the Complainant but the audio suggested the SO saw the Complainant in the distance. The SO asked the two young men if the Complainant had done anything “bad” and they described that they were posting “lost cat” posters when he confronted them and they ran away.

The SO drove towards the Complainant but, again, that was only captured amidst a view of the videographer’s feet. The two young men are heard to say they saw the SO and the Complainant “just talking” and they were going to stay away and just watch. The camera mostly filmed the ground and when it was pointed at the police interaction, from across the street, it was not focused for several seconds. When the camera became focused it was from such a distance that very little could be seen.

One of the young men said, “No way, he’s getting arrested,” but the camera stopped filming the interaction and only showed the ground and the young men’s feet. One of the young men then said, “OK, boys, he’s getting into cuffs now,” and pointed the camera back toward the interaction where the SO can be seen standing behind the Complainant, from a distance, with the Complainant against the SO’s police cruiser. The camera work continued to be poor and was pointed to the ground again. One of the young men said, “There’s a second cop pulling up right there.” [believed to be PEW #2]

One of the young men said, “OK, he’s resisting”; the camera was unstable, held sideways and it was difficult to see anything happening on the video. One of the young men said, “He just got thrown down,” but the view of the SO and the Complainant was obstructed, their figures blending into the dark colour of a large garbage dumpster and the video abruptly ended.

Materials obtained from Police Service

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

• disclosure log with additional information - 2016-06-15,
• disclosure log - 2016-06-15,
• general overview of incident by a non-designated officer,
• Intergraph Computer Aided Dispatches (ICAD),
• lost cat poster,
• niche records – complainant,
• notes of WO #1, #2 and #3,
• notes of SO - containing statement of CW,
• notes of PEW #2,
• police records – complainant,
• policy - use of force,
• police station CCTV video,
• communication tapes and 911 call, and
• witness statement – CW.

On June 11^th, 2016 just before 8 p.m., the SO was stopped by two youths indicating that they had observed an intoxicated male in the area. They pointed out the Complainant to the SO. As the SO was approaching the Complainant, dispatch advised that they also received a call from PEW #1 regarding a man being intoxicated in the same area, who had stepped off a curb into traffic.

The SO observed the Complainant stumble and almost fall. The SO approached the Complainant and engaged in a conversation with him. The SO could smell a strong odour of alcohol emanating from the Complainant, and his eyes were red and his speech was slurred. The SO decided to arrest the Complainant for being intoxicated in a public place. The SO first put a handcuff on the right wrist of the Complainant, without incident. As the SO attempted to put both of the Complainant’s hands together, however, the Complainant suddenly spun around, faced the SO and raised his handcuffed right hand in a fist. In response to the Complainant’s sudden movement and concerned that the Complainant could use the unattached handcuff as a weapon, the SO grabbed the Complainant and grounded him. The Complainant hit the ground hard, landing on his face. At that time, PEW #2 had attended the scene and assisted the SO handcuffing the Complainant with his hands behind his back.

It was immediately observed that the Complainant’s right hand was very swollen. The SO transported the Complainant to the police station. At the police station, WO #1 met with the SO and the Complainant and instructed the SO to take the Complainant to hospital to have his hand examined.

At the hospital, the Complainant was diagnosed with a fractured right shoulder. Subsequently, the SO drove the Complainant home and issued him a provincial offences notice for being intoxicated in a public place.

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 Licence 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 Licence 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.

On Saturday June 11^th, 2016 at approximately 7:48 p.m., the SO was flagged down by two youths indicating that they had observed an intoxicated male in the area. The SO located and investigated the Complainant and arrested him pursuant to s. 31(4) of the Liquor Licence Act for being “intoxicated in a public place”. Following the Complainant’s interaction with police, he was taken to hospital where he was assessed as having sustained a fractured right shoulder. The Complainant alleges that his injury was sustained as a result of an excessive use of force by the SO.

There were no civilian witnesses to this incident, other than the youths who had originally contacted police about the Complainant’s behaviour; however, those youths did not provide statements to police. Additionally, there was no CCTV footage found in the area, but one of the youths did have his cell camera recording during the incident, and that was made available to SIU investigators. The SO agreed to provide a statement to investigators. Three other witness officers, as well as two police employees, were interviewed, along with one civilian who provided information outside of the time frame of the police interaction.

Sometime between 6:30 p.m. and 7:30 p.m., PEW #1, who was not working on Saturday June 11^th, 2016, was driving south on First Avenue when she observed the Complainant staggering along the sidewalk. As she drove past she observed the Complainant lose his footing and fall off the curb directly in front of her vehicle; he did not fall to the ground however, but had he done so, she opined she would have struck him with her vehicle. As a result, she contacted the dispatcher at STPS and advised them of what she had observed.

The SO, in his statement, advised that he was driving in his marked patrol car on June 11^th, 2016, at approximately 7:50 p.m., when he was flagged down by two youths who had been putting up lost cat posters. They told the SO that a stranger, the Complainant, was intoxicated and yelled and charged at them. The youths pointed the Complainant out to the SO as a result of which the SO advised dispatch of what had just occurred and drove towards the Complainant. The communications record reveals that when the SO called in, the dispatcher also told him that another call had come in reporting an intoxicated male who had stepped off the curb into traffic.

The SO advised that he followed the Complainant to Erie Avenue, which is a small street behind a strip mall, where the Complainant stumbled and almost fell. The SO then parked his cruiser and advised dispatch that he was dealing with the Complainant. The SO advised that he identified himself to the Complainant as a police officer and advised him that there had been complaints about him. The Complainant denied causing problems, indicating that he was just trying to get home. The SO indicated that he detected a strong odour of alcohol coming from the Complainant, his eyes were red and his speech was slurred. The SO, based on his experience, estimated that on a scale of one to ten, with ten being passed out drunk, the Complainant fell at about an eight. The SO indicated that the Complainant identified himself verbally and gave his address whereupon the SO placed the Complainant under arrest for being intoxicated in a public place. The Complainant indicated that he just wanted to go home and the SO told him he would take him to the police station and might give him a ride home once he sobered up. The SO indicated that the Complainant seemed agreeable to this solution. The SO described the Complainant as a large man, approximately 188 cm tall and weighing about 109 kgs, while the SO is 181 cm.

The SO advised that the Complainant put his hands behind his back and the SO handcuffed his right wrist. As the SO tried to cuff the Complainant’s second wrist, the Complainant suddenly spun around, faced the SO and raised his handcuffed right hand in a fist. At that point, the SO advised that he feared he was about to be assaulted and that the handcuff he had already put on the Complainant might be used as a weapon. The SO advised that he then grabbed the Complainant by his left hand and grounded him, with the Complainant going down to the ground hard and landing on his face. The SO then knelt beside the Complainant on his left side while PEW #2 went to his right side and together they completed handcuffing the Complainant with his hands behind his back. When they sat the Complainant up, he noticed that the Complainant was bleeding heavily from his upper lip and nose. At that point, WO #2 arrived and the Complainant was taken to the SO’s cruiser and put in the back seat, where he complained that he was in pain. As the Complainant was now compliant, the SO readjusted the handcuffs from behind to in front of the Complainant, at which time he noted, and WO #2 remarked, that the Complainant’s right hand was swollen quite large. When the SO asked the Complainant how his hand had been injured, the Complainant indicated that he had been in a fight, but then changed his story to having punched a tree and denied having been in a fight. The SO opined that the injury to the Complainant’s hand must have occurred previously, as it would not already be that swollen had it just occurred. Once at the station, WO #1 directed that the Complainant be taken to hospital to have his hand examined. The SO indicated that the Complainant made no complaint of injury and indicated that he did not need to go to hospital.

While the Complainant was at hospital, his behaviour fluctuated between being compliant and then acting erratically. At one point, the Complainant stood on a chair and said that the police had “tased” him; at another point he told the radiologist that he had been shot. Due to his behaviour, the Complainant was moved to a private room where he was put into physical restraints by hospital security. The SO advised that the doctor removed the Complainant’s shirt and observed swelling to his shoulder and ordered an x-ray which showed that the Complainant’s shoulder was broken. The SO indicated that he was of the view that the Complainant’s injury would have required a great amount of force and therefore could not have been caused by him; he specifically indicated this was so as the Complainant had landed on his face, not on his shoulder, when taken to the ground. The SO further opined that, looking back, it was after he had handcuffed the Complainant’s right wrist and pulled the cuffs toward his left wrist that the Complainant suddenly spun on him and he believed that may have been due to a reaction to the pain from his previously broken shoulder.

Due to his injury, the Complainant was taken back to his residence, rather than being lodged in the cells. When the Complainant was questioned about the injury to his shoulder, he advised the SO that while purchasing meth from a guy, the deal went wrong and he struck him on the head and arm with a baseball bat. The SO issued the Complainant a ticket pursuant to the Liquor Licence Act for being “intoxicated in a public place”.

PEW #2 advised investigators that he heard the radio communications between the SO and the dispatcher about the intoxicated male and made his way to the area to assist. When PEW #2 arrived at the plaza, he observed the SO with the Complainant, but he was still approximately 18 metres away. He observed the SO turn the Complainant to face the cruiser and began to cuff him with his hands behind his back while the Complainant swayed and leaned against the cruiser for balance. As PEW #2 neared, he saw the Complainant pull one of his arms free and turn to the left towards the SO, whereupon there was some conversation between the two that PEW #2 could not make out. PEW #2 then observed the SO take the Complainant to the ground by grabbing the Complainant’s left arm with both of his hands and pulling the Complainant towards him and then barring the Complainant’s left elbow and forcing him down to the ground. PEW #2 indicated that the Complainant went to the ground knees first and then midriff, until he folded forward and his face struck the ground.

PEW #2 then came up and assisted the SO in applying the handcuffs by placing one knee on the Complainant’s lower back and holding both of the Complainant’s hands together. PEW #2 noted that the Complainant already had a handcuff on his right wrist and heard the SO ask him, “Why did you pull away?” to which the Complainant did not respond. As the Complainant was walked to the cruiser, there was blood flowing from his mouth and nose and the Complainant began to spit blood, but not in a combative way; he was cooperative and apologized. PEW #2 also noted a strong odour of alcohol emanating from the Complainant’s breath and that his speech was slurred and that the Complainant complained about pain in his right hand. PEW #2 observed that the back of the Complainant’s right hand and knuckles were bruised and swelling and that the injury appeared recent but he did not attribute it to having been caused by the grounding; the Complainant explained these injuries by indicating that he had punched a tree or a wall.

Later at the hospital, PEW #2 noted that the Complainant was often uncooperative and would not remain seated when being examined. The Complainant complained to the nurse about his sore right arm, and when his shirt was removed, he could see that the Complainant’s arm was swollen. The Complainant was taken to a room where security personnel placed him in restraints in a hospital bed and the Complainant continued to curse and speak loudly, asking, “Did you guys do this to me?” but then answering his own question, saying, “No, you guys are really nice, you wouldn’t do this.” He then heard the Complainant say that he knew who had done this to him, and when the SO asked him who, he responded that he had received the injury when he was downtown buying meth and the drug dealer hit him with a baseball bat. When the SO asked him for further details, the Complainant did not respond. PEW #2 observed the Complainant was issued with a provincial offence notice for being intoxicated in a public place.

When WO #2 arrived at the scene, he observed that the Complainant’s right hand was swollen and grey and when he asked how that had happened, the Complainant told him that the police had done that to him. WO #2 recalled that the SO told him that the Complainant had been cooperative right up until the SO had applied one handcuff, at which point he began to resist and pull away so the SO had to ground him, during which the Complainant’s face was injured.

WO #2 was of the view that the injury to the Complainant’s shoulder and hand must have occurred prior to the interaction with the SO as his hand was already very swollen at that time. The SO also repeated to WO #2 that the Complainant had told him that his shoulder had been injured when a local drug dealer hit him with a baseball bat during a drug deal. The drug dealer was known to WO #2; he felt that this was entirely possible.

WO #3 advised that he was present at the hospital when the SO explained to the triage nurse that the Complainant’s face had struck the pavement when he was arrested. He described the Complainant as highly intoxicated, very unsteady on his feet and his speech was slurred. While at hospital, he noted that the Complainant’s mood alternated between calm and irate and he questioned police as to what they were doing and why they had injured him. The Complainant also wondered out loud as to why he was bleeding and questioned WO #3, asking him, “Why did you punch me, why did you tase me?” When WO #3 explained that he had not been present during his arrest, the Complainant offered a variety of explanations as to how he had been injured, including that he hurt himself either by punching a guy, punching a tree or punching a wall.

WO #1, the officer in charge of the station the evening that the Complainant was brought in, advised that she went to the detention unit to await the arrival of the Complainant and observed his face to be covered in blood and his appearance was disheveled. The SO explained that the Complainant’s face had been injured when he was taken to the ground after the SO had placed one handcuff on his right wrist and the Complainant had then pulled away. WO #1 also noticed that the Complainant’s speech was slurred, he had difficultly standing without assistance and was very intoxicated. The SO further advised WO #1 that he had some difficulty placing the Complainant in handcuffs as his right hand was quite swollen. WO #1 looked at the hand and directed the SO to take the Complainant to hospital.

The video that the youth made with his cellphone camera of this incident was not overly helpful, showing primarily the youth’s feet and, at times, the interaction between the Complainant and the SO, but from such a distance that the events were not really distinguishable. The value of the video, however, is in that the youth appears to be narrating what he is observing and, as such, it does provide something of a statement for the boy. The video has a time stamp of 7:44 p.m. and shortly after the start of the video you can hear the boys excitedly saying “Yes! Yes! You got a cop, you got a cop!” The video then depicts a police cruiser drive up to the boy and one of the boys is heard to tell the officer (who is not visible, only the side of the cruiser is in view) that “there’s a guy over there, he looks kinda’ drunk.” In response to the SO asking if the man had done anything bad or not, the boys described that they were posting some lost cat posters when they heard the Complainant say “Hey! Come back here, what are you doing?” and he “looked kinda drunk” so they ran away but decided to hang around and “investigate”. The boys then continue walking and one of the boys is heard to say that the SO and the Complainant were just talking and then, more excited, that “no way, he’s getting arrested,” followed by, “OK, boys, he’s getting into cuffs now” and then, “There’s a second cop pulling up right there”, “OK, he’s resisting,” and finally, “Oh! He just got thrown down! He just got thrown down!”

The medical records indicate that the Complainant’s behaviour at hospital was unpredictable, resulting in the need to put him into restraints. He was seen by a doctor who wrote the following in her emergency room report:

[The Complainant] is a 40 year old gentleman who is well known to our department …causing a repeat altercation and interaction with police. Today … it was well recognized that the Complainant was quite inebriated. … When we tried to elicit a story from him, he is variable in the story we get. He indicates he was beaten up by somebody in a bar and then he changes his story to being assaulted by somebody else with a bat. We could never get a straight story from [the Complainant].

The doctor noted that the Complainant had a “lip laceration on the inner side of his upper lip” and “a small laceration over the bridge of his nose” but no other facial deformities. She goes on to indicate further that:

The most notable piece of [the Complainant]’s exam was a massively swollen shoulder and a swollen hand over the fourth and fifth metacarpals. [The Complainant] was in utter pain moving his arm on that side. Thus we went ahead and x-rayed the arm. This took almost an hour to organize as he was quite combative and verbally quite aggressive with police and the staff. (X-rays showed) a surgical neck fracture of the greater trochanter of the humerus.

The doctor went on to indicate that she had sutured his lip, left the bridge of the nose as it was more of an abrasion and put the Complainant in a “collar and cuff”. Also of note, the doctor notes as follows:

I did not feel the need at this point to CT [Computerized Tomography] his head, as he had a good story for the cuts and abrasions on his face and … staff said that he had come home every night inebriated with numerous bruises and bumps on him.

As the doctor refused to be interviewed by SIU investigators, we do not have any definitive expert evidence as to how much time would have had to pass between the Complainant being injured and his shoulder and hand becoming as swollen as it was at the time it was observed by police. However, we can safely assume that the human body, absent extraordinary circumstances, does not instantly become “massively swollen” without some passage of time. It was the evidence of all of the officers who had contact with the Complainant and observed his swollen hand that this injury, due to the state of the swelling, must have occurred prior to the Complainant’s interaction with police.

Furthermore, it appears that the swelling to the hand and the swelling to the arm of the Complainant are related and neither the versions of the SO, nor of the Complainant, appear to be able to account for these injuries. The video statement of the youth appears to confirm the SO’s version of events in that he indicated as follows: they are just talking; he’s getting arrested; he’s getting into cuffs now; there’s a second cop pulling up right there (this would have been PEW #2); he’s resisting, and he just got thrown down. I find that this statement fully confirms the SO’s version of events, in that the Complainant did not resist until he attempted to handcuff him when he spun around and the SO took him to the ground. The SO’s statement that the Complainant went down on his front, stomach and then face, is consistent with the evidence of both the Complainant and PEW #2 as well as the injury to the Complainant’s face.

On a review of all of the evidence, I find that the Complainant likely did not actually know how his injury occurred. The Complainant’s version of events was inconsistent with a number of other pieces of evidence. He had no recollection of being taken to the station prior to be taken to hospital nor that he was actually served with an offence notice under the Liquor Licence Act; the Complainant repeatedly asked WO #3 why he had hurt him, despite the fact that WO #3 was not present during the arrest. At the hospital, the Complainant alleged at various times that he had been either tased or shot by police. Further, he provided numerous different versions of what happened to everyone he spoke to and the Complainant’s injuries - a broken shoulder and a massively swollen hand - are not consistent with his allegations.

On the basis of all of the inconsistencies in the Complainant’s version of events and the various inconsistent utterances he made to various persons at various times as to how he came to sustain his injury, as well as the fact that he was extremely intoxicated, had gaps in his memory and that the injuries sustained by him are not consistent with his allegations of an excessive use of force by the SO, I find that I am unable to rely upon the evidence of the Complainant to find reasonable grounds to believe that a criminal offence has been committed here or that the Complainant sustained his injuries, other than the laceration to his lip and the abrasion over the bridge of his nose, during his interaction with the SO.

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 everyone who came into contact with the Complainant, that he was extremely intoxicated on the night in question and was out in a public place contrary to s.31(4) of the Liquor Licence Act and was a potential danger to himself or others. As such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in his attempts to subdue the Complainant, I find that his actions were justified in the circumstances and that he used no more force than necessary to subdue the Complainant who was clearly resisting being handcuffed. I also find that the injuries to the Complainant’s shoulder and hand were more than likely caused prior to his ever coming into contact with the SO; however, even if it were caused by the efforts of the SO to subdue the Complainant, which I find to be extremely unlikely, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by the SO progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention. 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).

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 officer 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 officer fell within the limits prescribed by the criminal law and thus no charges will issue.

Date: September 5, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit