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; an
• 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 informatio
• witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence an
• other identifiers which are likely to reveal personal information about individuals involved in the investigatio

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 38-year-old male sustained during his arrest on February 13, 2016.

Notification of the SIU

On February 13, 2016, the Ontario Provincial Police (OPP) notified the SIU of the serious injury sustained by the Complainant during a high risk takedown arrest earlier that morning.

The OPP reported on February 13, 2016, at 3:13 a.m., the Mattawa OPP Detachment received a call from a Mattawa residence indicating that a home invasion had just occurred and the two suspects had fled in a vehicle towards the city centre. The Subject Officer (SO) soon located and stopped the vehicle in a rural area and ordered the occupants from the vehicle. The Complainant failed to comply with the SO’s demands to get to the ground and, during the ensuing scuffle, sustained a fractured rib.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Refused to be interviewed

CW #4 Refused to be interviewed

CW #5 Interviewed

CW #6 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Not interviewed, but notes received and reviewed

Subject officer

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

The scene

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

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

• The Computer Aided Dispatch - Event Details Report
• Disclosure Log
• notes of non-designated police employee witness
• notes of WO #1, WO #2, and WO #3
• Prisoner Log Report
• witness statements of CW #2
• witness statements of CW #3
• witness statements of CW #4
• witness statement of the Complainant’s spouse, and
• witness statement of the registered owner of the red Dodge pick-up and grey Jeep (RO)

In the early morning hours of February 13, 2016, the Complainant and CW #1 attended a residence in the Town of Mattawa. Once at the residence, the Complainant and CW #1 were confronted by CW #2 and CW #4, while CW #3 hid in the basement. A scuffle ensued and the Complainant and CW #1 fled in a red Dodge pick-up. The residents then called 911.

Upon receiving the information from the 911 call, the SO attended the scene and spoke with CW #2, CW #3 and CW #4. From the information received, the SO determined that the Complainant was involved in the incident, and soon thereafter located the Complainant and CW #1 in a grey Jeep registered to the RO. As the SO was alone, and given the information that he had received that the Complainant and CW #1 were armed with weapons, including a firearm, he armed himself with his rifle prior to ordering the Complainant and CW #1 out of their vehicle.

The Complainant and CW #1 complied to an extent with the SO’s requests to exit the vehicle with their arms raised, and to walk backwards towards him and then get onto their knees. Once the Complainant was on his knees, the SO used his foot to force the Complainant onto the ground, striking his back. Later that same day, the Complainant was transported to the hospital and x-rays revealed undisplaced fractures of the ninth and tenth 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.

On February 13^th, 2016, a 911 call was received by the operator for the OPP North Bay Detachment. The caller, CW #2, advised that two men had forced their way into his home in the Town of Mattawa. CW #2 advised that one of the men was armed with a baton. Two units were dispatched to the call, WO #1 and the SO, and, once at the residence, the SO interviewed the three residents and was advised by CW #4 and CW #3 that one of the intruders had a firearm. As a result, the SO went off in search of the intruders and stopped a motor vehicle driven by the Complainant, with CW #1 as passenger, and both occupants were subsequently arrested. Later that day, the Complainant was taken to hospital and was diagnosed with two fractured ribs.

During the course of the police investigation into the alleged home invasion which lead to the SIU investigation, each of CW #2, CW #3 and CW #4 provided two statements to police; additionally, CW #2 also provided a statement to SIU investigators. At the time of this investigation, CW #3 and CW #4 were themselves in custody for very serious offences and were not available to speak with investigators. Upon review of the six statements provided to police, and the one statement to the SIU, I find that they are rife with inconsistencies, not only as between each other but there are also significant internal inconsistencies in the statements of each. As the allegations of the actual offences against the Complainant and CW #1 are not of paramount importance in this investigation, I have not set them out, other than to say that I doubt the veracity of any of the three OPP complainants or that either masks or a firearm were involved in the alleged home invasion. In the final analysis, however, OPP officers relied on the information received at the time and that information dictated their response. As such, I will only refer to the information as received by the SO, upon which he relied in formulating his plan to apprehend and arrest these two men.

During the course of their investigation, SIU investigators interviewed four civilian witnesses, including the Complainant, and three police witnesses, including the SO. Investigators also had access to the officers’ notebooks, the statements provided to police in the “home invasion” investigation, the medical records and the communications recordings. There was no CCTV or other footage and no independent witnesses present during the actual arrest. The evidence of the incident under investigation was only witnessed by the SO and the Complainant and CW #1. Surprisingly, there is little dispute as to the sequence of events, the details of which follow.

The SO, in his statement to investigators, advised that he received a call at 2:50 a.m. on the morning of February 13^th, 2016, advising that CW #2 had reported that two males had forced their way into his home in the Town of Mattawa and that the males were armed with a baton. As the SO proceeded to the address, further information was received that one of the suspects may be a certain individual (Initial Suspect). The SO advised dispatch that this was not possible, as the Initial Suspect had been arrested the previous week and was still in custody. Information was also passed on to the SO that the suspects had left in a red Dodge pick-up truck.

Upon arrival at the residence, the SO spoke to the three OPP complainants and was advised that one of the males had a handgun and that it was brandished in a threatening manner in the face of CW #3; that CW #4 had been injured (a scratch to her calf) as a result of a fight in the residence; that there had been a struggle; that CW #2 was punching the suspects on their way out; and that an individual with the first name of the Complainant, who was married to a specific, named person, was one of the suspects. The SO advised that he took this information and ran a check and the name of the Complainant came back as the possible suspect. At that point, WO #1 arrived at the residence and at 3:02 a.m., the SO went out alone to look for the vehicle. The SO ran a check and found that a red Dodge pick-up was registered in the name of the registered owner (RO). The SO advised that his thinking process was that the RO had been with the Initial Suspect the week before when he was arrested and he knew that the Complainant sometimes drove the RO’s vehicles, so he headed in the direction of the RO’s residence to try to locate the suspect vehicle. En route, he stopped at a gas station and got his C8 rifle out of the trunk because he wanted to be prepared since his information was that the suspects had a gun. He then continued in the direction of the RO’s residence. The SO advised that it was minus 40 degrees that night, so there was no one out and about. He observed a little grey jeep on a side street and ran the licence plate, and learned that it was also registered to the RO. He then heard WO #1 over the radio confirming the involvement of a gun in the home invasion.

The SO, the Complainant and CW #1 are all in agreement as to the sequence of events from this point. The SO put on his emergency roof lights and the jeep pulled over to the side. The Complainant was driving and CW #1 was in the front passenger seat. The SO put his spotlight on the vehicle and both occupants exited. The SO got his rifle out, due to the allegation involving a gun, and approached the vehicle. He continuously yelled at the two men to walk backwards towards him and keep their hands in the air. While the Complainant and CW #1 were of the view that they were doing as told, the SO believed them to be less than compliant as they kept putting their hands down and looking towards him. The SO advised that he repeatedly told them to face away from him as he was concerned, if they had a gun and knew his exact location, that he could be harmed. The SO described the interaction as “a shouting match” with him doing all the shouting; so much so, that after the incident, he had little voice left. The SO also advised that he immediately told both men that this was a gunpoint arrest, and although neither the Complainant nor CW #1 recalled those words being said, they do not dispute that they were aware that they were being arrested at gunpoint. The Complainant and CW #1 also do not dispute that they then went down to their knees and that the SO ordered them to lay flat on the ground.

According to the SO, the men would not lay down and the Complainant said outright “no”, he was not going down. At that point, the SO saw the two men look away from him and he took the opportunity to quickly get to their location, with his rifle in hand, and he pushed the Complainant to the ground with his left foot. He advised that the Complainant then went down and sprawled out, following which CW #1 went down on his own and also sprawled out. The SO then walked over to CW #1, told him to put his hands behind his back, slung his rifle to the side and tried to handcuff CW #1. CW #1 pulled his hands away and the SO stepped back, brought his rifle back up, reminded CW #1 that this was a gunpoint arrest and to put his hands behind his back, at which point he complied. During his interaction with CW #1, the Complainant never moved and stayed sprawled out on the ground. The SO advised that he then went over to the Complainant, the Complainant put his hands behind his back and the SO handcuffed him as well, at which point he helped both men to their feet and WO #1 arrived and took the Complainant to his cruiser, while CW #1 went to the SO’s cruiser.

Once CW #1 had been placed in the SO’s cruiser, the SO advised that CW #1 told him that he had gone to the residence but denied there was any firearm and also stated he was invited into the house. The SO observed CW #1 to be bleeding from a cut on his forehead and when he asked CW #1 how he received his injury, he advised that they struck him with a broom handle and caught him over the left eye. The SO indicated that he had called over the radio that the two guys involved had been arrested. The SO then requested an ambulance for CW #1 and, after the paramedics advised that he would require stitches, the SO transported CW #1 to hospital. The SO indicated that while they were at the hospital, CW #1 told him the reason they were at the house was because of the Complainant’s involvement with CW #4, and that CW #4 was with CW #3 and they were going there “to settle the score”. This version of events is confirmed by the second statement of CW #4, which contradicted her first statement wherein she had advised that she did not know the men.

The Complainant alleges that he was struck by a foot or knee in his ribs when he was being handcuffed. The SO repeated that the only force he used was to push the Complainant to the ground with his foot because his hands were tied up with the rifle. He advised that he was aiming for the centre of his back between his shoulder blades and that is where his foot landed. The SO opined that the force that he used was not enough to cause cracked ribs, but was only enough to push him down.

No firearm or masks were ever located either in the little jeep or in the red pick-up truck.

The medical records indicate that the Complainant suffered undisplaced fractures of the right ninth and tenth ribs. There are no notes as to any utterances made by the Complainant as to the cause of his injury.

In assessing the credibility of the Complainant and CW #1, I do not find any significant inconsistencies in their statements either internally, between the two of them or between their statements and that of the SO. The only real difference in the statements of the three men is as to the specifics of the kick or push to the Complainant’s back, and I find those differences to relate more to perspective than to credibility. I do not find that the Complainant’s failure to outline to hospital personnel that the officer had caused his injury to detract from his credibility, in light of the fact that two OPP officers were present with him at the time. In particular, I find the evidence of CW #1 to be particularly convincing in that at no time does he appear to exaggerate the nature of the use of force, he does not allege any excessive use of force against himself, his version of the background of the attendance at the residence is confirmed by CW #4, and each specific detail of his evidence is confirmed by either the Complainant or the SO. At no time does he allege that the officer’s actions were as a result of vindictiveness or sheer brutality.

I accept on these facts, that in all likelihood, CW #1 and the Complainant believed that they were complying with the SO’s commands and were walking backwards with their hands up but had difficulty remaining faced forward as they walked backward, as confirmed by all three. I accept that it is human nature to look where you are going and towards the person who is speaking to you, and that CW #1 and the Complainant did not consider this to be resisting, while the SO indicated he believed them to be non-compliant. I further accept that the Complainant was still on his knees, at the time that the SO kicked or pushed him to the ground with his foot. I find that, in all likelihood, the SO intended to use his foot to push the Complainant down and did aim for the area in the upper back between the shoulder blades, but I suspect that with the adrenaline flowing in a high risk arrest at gunpoint, while the officer was standing erect and the Complainant was on his knees, with the officer holding the rifle in his hands and the ground being snowy and/or icy, that he misjudged and that he struck the Complainant in the lower right rib area, as confirmed by the location of the injury.

While I question the prudence of the SO going off to arrest two allegedly armed men on his own, when a second officer was available to attend with him, when the SO found himself in the situation that he was in, holding two possibly armed men at gunpoint in minus 40 degree weather with no one else to assist and having to arrest those two males while concerned that they might pull a firearm on him, I have no doubt that things were moving very quickly and the SO was unable to judge either the location or the force with which he kicked or pushed the Complainant with his foot.

I further find that the Complainant was immediately arrested at that point. The SO kicked the Complainant to force him to the ground and then immediately got on top of him to handcuff him. Despite the evidence of the SO to the contrary, I find it implausible that the SO would have left the Complainant, who he believed was non-compliant, to such a degree that he had to use physical force to get him down, and go instead to the already prone CW #1, who was being totally compliant at that point, and handcuff him first.

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 information in the possession of the SO at the time, that he had reasonable grounds to believe that the Complainant had just been involved in Breaking and Entering into a Residence (s. 348(1)), Being Unlawfully in a Dwelling House (s.34), Pointing A Firearm (s.87) and/or Weapons Dangerous (s.88), all contrary to the Criminal Code. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in his attempt to arrest and handcuff the Complainant, a male who he had been informed may be armed with a firearm and had just committed a number of serious offences involving violence, I find that his behaviour was justified in the circumstances. The circumstances being that he was the lone officer involved in the arrest of two possibly armed and dangerous men, out in an isolated area in the bitter cold and with the fear that he might at any moment be overpowered by either or both of these men and possibly shot and killed. In this context, I accept that it was impossible for the SO to measure the exact amount of force that he used to bring a very stressful and seemingly dangerous situation to a successful close. 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:

And in a similar vein, the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.) ruled that officers are not expected to measure the degree of their responsive force to a nicety.

On a review of all of the evidence, I am satisfied for the foregoing reasons that the Complainant’s apprehension and the manner in which it was carried out were lawful notwithstanding the injury which he suffered. Further, upon finding that each of the Complainant and CW #1 and the SO are credible, I am unable to find reasonable grounds for the laying of criminal charges. Although I am of the view that the SO exercised questionable judgment in going off and attempting to single handedly apprehend two armed men and needlessly placed himself in a possibly dangerous situation, once he was in that situation, I find that his actions were justified and did not rise to the level necessary for the laying of criminal charges.

Date: September 5, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit