Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

• Confidential investigative techniques and procedures used by law enforcement agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• location information
• witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence and
• other identifiers which are likely to reveal personal information about individuals involved in the investigation

Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into an interaction between police and a 24-year-old man on May 6, 2016. The man was subsequently diagnosed with a fractured orbital bone.

Notification of the SIU

On May 6, 2016, at 7:30 a.m., the London Police Service (LPS) notified the SIU of the custody injury to the Complainant.

LPS reported that on May 6, 2016, at 12:06 a.m., police officers were at an apartment building located near Wellington Street and Horton Street East on an unrelated investigation. The police officers saw the Complainant, who was a wanted suspect. When the police officers approached the Complainant, he ran and the police officers pursued. After the Complainant exited the building the police officers went to take him into custody and a struggle ensued. The Complainant was taken to the ground and then transported to the police station. During his booking process he complained of a sore abdomen and was subsequently taken to hospital at 1:02 a.m. At 4:30 a.m., the Complainant was diagnosed with a fractured orbital bone. No scene was held by the LPS. The Complainant was in the cellblock and would be moved at 9 a.m. to the court buildings in London.

The team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 1

Complainant

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

Civilian witness

CW Interviewed

A canvass for witnesses and a flyer appealing for witnesses were posted and no one came forward.

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

Subject officers

SO #1 Interviewed, and notes received and reviewed

SO #2 Interviewed, and notes received and reviewed

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and located the following:

Summary of Video Footage at apartment building:

May 4, 2016

At 1:03 a.m., video recordings for the apartment building show the Complainant walking toward the front entrance of the apartment building. He enters the building carrying possibly a medium sized black bag held very closely under his right arm. As he moves through the building it is clear that he has no injury to his face.

At about 1:06 a.m., the Complainant enters an apartment unit.

At 1:09 a.m., he quickly walks out of the apartment without the black bag and away from the camera view. The Complainant is seen in several locations holding the left side of his face and eventually he appears with a plastic bag held to his injured left eye. Blood is seen on his coat and there is a mark on his forehead above his left eye. The Complainant’s movements suggest he was in significant pain.

May 6, 2016

At 12:08 a.m. on May 6, 2016, the SOs are seen walking toward the elevator doors in the lobby of the building. Moments later, the Complainant walks out of the elevator holding a bicycle on the left side of his body. As SO #1 reaches forward to arrest the Complainant, he pushes the bicycle toward the police officers. The Complainant then runs from the police officers and glances back over his left shoulder at the pursuing officers. The Complainant is chased through a hallway and outside where SO #2 grabs hold of the back of the Complainant’s shirt.

SO #1 almost immediately arrives and also grabs hold of the Complainant. The police officers and the Complainant spin in circles as the Complainant tries to break free from the police officers toward the parking lot. SO #1 holds the Complainant in a bear hug and the Complainant frees himself from SO #1 when the Complainant’s shirt is pulled up over his head and off his body.

The police officers seemed to grasp for anything to hold the Complainant who continues to struggle trying to break free. SO #2 and SO #1 each attempt a knee strike to the Complainant. Neither strike appears to have force because the police officers are off balance and the Complainant is a difficult moving target to hit. The blows seem to have no effect on the Complainant. The three individuals struggle off the walk way and back toward the building and then around a small tree.

At 12:08:37 a.m., between the pulling and pushing by the two police officers, the Complainant is taken down to a grass/gravel area to the right and mostly out of the camera view. What is seen are the Complainant’s feet and the very lower bare legs of one of the police officers. By the position of the legs and feet of both men, the Complainant is likely on his belly with a police officer lying onto top of the Complainant’s back. The Complainant’s feet continue to move which suggest a struggle was still happening.

At 12:10:16 a.m., SO #2 stands and goes back into the building.

At 12:10:30 a.m., the Complainant’s leg movements stop.

At 12:10:50 a.m., SO #1 is seen standing to the right of the walkway.

At 12:10:55 a.m., bystanders begin to appear outside the building.

At 12:11:11 a.m., WO #6 arrives from the left and walks toward the Complainant’s location and out of camera view.

At 12:12:08 a.m., the Complainant’s feet disappear from view.

No blow was seen to the Complainant’s head.

LPS booking video

Police officers are present in the booking area and they are talking about a Code 1 call to the apartment building and a prisoner being brought in.

At 12:44 a.m., on May 6, 2016, a sally port door opens and the Complainant walks in and is directed to stand on an X painted on the floor. He is un-handcuffed. WO #1 comes in through the same door. The Complainant stands erect with his head bent forward and chin to his chest. His left arm is down to his side and right forearm is held against the front of his belt area. He is wearing a grey long sleeve shirt/sweater, dark pants, and grey coloured footwear. The Complainant’s biographical information is collected by the booking sergeant. The Complainant’s speech has a distinctive nasal sound. There is debate between the sergeant and the Complainant about his knowledge of what he is charged with and whether the Complainant resisted anyone’s arrest.

At 12:45 a.m., the Complainant lifts his head to face the sergeant. It is apparent the Complainant has a black left eye. He is seen touching his forehead and holding his left hand to his head for a time.

At 12:48 a.m., the Complainant says, “I want to go to the hospital my ribs are broken… because I was beat up last night.” The sergeant asks the Complainant why he did not go to the hospital today and he responds, “Because I didn’t think I was that bad.” The sergeant asks if the black left eye was from last night and the Complainant replies, “Yep.” The sergeant asks about the sore ribs and the Complainant says, “They were hurt last night, but they hurt really bad now.” The Complainant is asked to show his face to the sergeant and he complies.

At 12:51 a.m., the sergeant asks WO #1 to take the Complainant to hospital and he departs moments later.

At 4:57 a.m., WO #2 and the Complainant arrive in the booking area from the sally port door. WO #2 tells the booking sergeant that the Complainant has a follow up medical appointment with a plastic surgeon for a fractured orbital cheek bone. The sergeant asks if the injury happened last night and WO #2 replies, “They can’t say.” WO #2 says the Complainant had been assaulted two days ago and he was knocked unconscious. The Complainant says nothing in comment to those words. WO#2 says no ribs were broken.

At 4:59:10 a.m., it is decided that the Complainant would be placed in cell 13. The sergeant asks more about the assault and WO #2 says the assaulted happened on Wednesday at the apartment building. The Complainant did not want to identify the assailants and get them in trouble.

Materials obtained from Police Service

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

• Detailed Call Summaries
• General Occurrence Reports
• Hospital Outpatient Referral - Complainant
• London Middlesex Housing Corporation [LMHC] - Housing Agreement with LPS for address
• LMHC - Trespass Notice served to Complainant on April 27, 2016
• Mugshot of Complainant
• Narrative Text-Detention Record - Complainant
• Notes for WO #1, WO #2, WO #3, WO #4, WO #5, WO #6 and WO #7
• Officer Activity Log - May 5 and 6, 2016 - SOs
• LPS Procedure - Use of Force
• LPS Procedure - Prisoner Care and Detention, and
• Will States - SO #1 and SO #2

On April 27^th, 2016, the Complainant was observed by the SOs damaging the surveillance cameras at an LMHC apartment building in London. The SOs confronted the Complainant, and advised him not to return to the building. Several days later, a warrant for the Complainant’s arrest was issued for damaging the cameras.

On May 4^th, 2016, the Complainant was again at the apartment building, and was assaulted when inside a unit. This assault was not reported and did not involve any police officer.

On May 6^th, 2016, the Complainant returned to the building. The SOs were also present in the apartment building to investigate an unrelated matter. The SOs observed the Complainant inside the elevator and they decided to arrest him for the outstanding warrant.

When the Complainant stepped out of the elevator into the lobby, the SOs approached the Complainant, who was holding his bicycle on his left side. SO #1 reached forward and grasped the Complainant’s left arm and began to tell him he was under arrest. The Complainant looked at SO #1, pulled his arm away, dropped the bicycle and ran down the south hallway to the right. SO #1 tripped over the bicycle. SO #2 ran after the Complainant, with SO#1 not far behind. SO #2 grabbed hold of the back of the Complainant’s clothing as he burst through the door outside. The Complainant’s jacket or some article of clothing was pulled off as he twisted and turned to get away from SO #2. SO #2 struggled to hold the Complainant as he pulled away. SO #1 grabbed hold of the Complainant and unsuccessfully tried to pull him back toward the building. The Complainant continued to move toward the parking lot. The two police officers shouted repeatedly at the Complainant to stop resisting, and that he was under arrest. He did not comply. The struggle went on for some time with the Complainant using his legs and upper torso to break free. SO #1 deployed two knee strikes. One missed because of the Complainant’s momentum and the second was a glancing blow to a forearm in front of the Complainant’s chest.

The Complainant grabbed SO #1’s right wrist and would not let go. SO #1 punched the Complainant in the face and he immediately collapsed face first onto the ground. SO #1 landed on top of the left side of the Complainant’s body and SO #2 was on the right side. The police officers were unable to get control of the Complainant, and the Complainant struck SO #1 in the right leg with his left knee. SO #1 was able to hold onto the Complainant’s left arm, but could not get it behind his back to handcuff. SO #1 punched the Complainant twice on the left side of his abdomen. The blows were ineffective and the Complainant still tried to get away. SO #1 then punched the Complainant once in the mouth and nose area. The Complainant immediately became compliant and he was handcuffed.

Soon after arriving at the police station, the Complainant complained of pain to his ribs and he was transported to hospital. At the hospital, it was determined he did not have any rib injury but was found to have a fracture of the left eye socket.

Section 2(1), Trespass to Property Act – Trespass an offence

2. (1) Every person who is not acting under a right or authority conferred by law and who,

1. without the express permission of the occupier, the proof of which rests on the defendant,
   1. enters on premises when entry is prohibited under this Act, or
   2. engages in an activity on premises when the activity is prohibited under this Act; or
2. does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

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 May 6^th, 2016, the SOs were present at an apartment building in the City of London investigating an unrelated matter when their attention was drawn to the Complainant, who was observed in the building, was known to have been banned from the building, and was wanted on a warrant for mischief as a result of damaging cameras in the building. As a result, the SOs attempted to arrest the Complainant, following which there was a pursuit, followed by a struggle and the eventual arrest and handcuffing of the Complainant. Once transported to the station, the Complainant complained of pain to his ribs and he was transported to hospital. At the hospital, it was determined he did not have any rib injury but was found to have a comminuted mildly displaced fracture of the left maxilla involving the orbital floor and anterior/posterior maxillary sinus walls and buckling of the lateral wall of the left orbital (fracture of the left eye socket).

The Complainant advised that he had been assaulted at the apartment building a few days earlier. This is confirmed by the surveillance video footage from May 4^th, 2016, where the Complainant is seen to enter the building without any noticeable injury to his face at 1:03 a.m., but is seen exiting a unit at 1:09 a.m., where he is observed to be either holding the left side of his face or holding a plastic bag to his left eye. Blood can be seen on his coat as well as a mark on his forehead above his left eye. The movements of the Complainant, as evidenced on the video, indicate that he is in significant pain. The May 4^th incident is unrelated to his interaction with police two days later.

It is of note that the Complainant’s complaint to the booking sergeant was that his ribs were broken and that is why he was taken to hospital; he made no complaint at that time about his face or left eye area. Upon assessment at hospital, there was no injury found to his ribs. On the booking hall video, the Complainant is heard to say “I want to go to hospital my ribs are broken … because I was beat up last night.” When questioned by a sergeant as to whether his black eye was also from the previous night – ie. the incident not involving the police - the Complainant responded that it was. In response to a question about his ribs, the Complainant clarified, “They were hurt last night, but they hurt really bad now.” As such, it is clear from the booking hall video that at no time did the Complainant attribute his facial injury to his interaction with police, only that his already pre-existing injury to his ribs was aggravated by his contact with police. Furthermore, the Complainant repeatedly told all persons to whom he came into contact during his interaction with police and thereafter at hospital, that the injury to his face was caused when he was beaten on May 4^th, 2016, and at no time does he attribute it to his contact with police. It is only later that the Complainant indicates some lack of certainty as to whether the injury happened either when he was beaten on the 4^th or as a result of his interaction with police.

The fact that the Complainant’s left eye area is already black and swollen prior to his interaction with police would lend credence to his many earlier comments that this injury was not attributable to police but was caused on May 4^th when he was beaten by an unknown assailant who he refused to identify. In addition, there is a significant possibility that the injury happened or was aggravated after his arrest in that the Complainant is observed striking his head on the protective plexiglas screen between the front and rear seats of the car.

On a review of all of the evidence, but attributing the most weight to the statements of the Complainant himself, as confirmed by the video footage from the apartment building as well as all of the police witnesses to whom the Complainant indicated that he had sustained his injuries when beaten on May 4^th, 2016 by unknown perpetrators, I do not have reasonable grounds to believe that the Complainant’s injury was caused by police. Additionally, upon a review of the actions of the SOs, I find that officers used no more force than was justified in the circumstances to apprehend and handcuff a combative, resistant and fleeing individual.

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, at the time that police attempted to apprehend him they were in possession of video footage from the apartment building which revealed that the Complainant had damaged their cameras and was therefore arrestable for the offence of mischief to property pursuant to the Criminal Code and had applied for and been granted a warrant for the arrest of the Complainant for that offence. Additionally, the Complainant had previously been trespassed from the property and, as such, would have been arrestable for that offence under s. 2(1) of the Trespass to Property Act. As such, the pursuit and apprehension 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 actions were more than justified in the circumstances and that they used no more force than necessary to subdue the Complainant who was clearly going to great lengths to avoid apprehension by police. The Complainant’s efforts to avoid apprehension included throwing his bicycle into the path of SO #1, slipping out of both his backpack and later his shirt in order to throw off SO #2 and using his legs and upper torso to break free and continuing to shout and squirm, even after he had been handcuffed, as witnessed by officers who came on the scene after the fact.

As indicated earlier, I find that it is more than likely that the Complainant suffered his injury when he was beaten on May 4^th, 2016, however, even if it were caused or exacerbated by the efforts of the officers to subdue the Complainant, I cannot find that to have been an excessive use of force in light of the Complainant’s extreme efforts to avoid apprehension. On this record, it is clear that the force used by both SO #1 and SO #2 progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance and his unflagging determination to avoid arrest, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.

The jurisprudence makes clear, while their conduct in question must be commensurate with the task at hand, police officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.) or to be judged against a standard of perfection (R. v. Nasogaluak [2010] 1 S.C.R. 206). In general, the more significant the resistance, the greater the necessity for significant responsive force.

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 officers 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 officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: August 23, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit