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 injuries sustained by a 28-year-old male during an interaction with the Sarnia Police Service (SPS) on May 31, 2016.

Notification of the SIU

On June 1, 2016, at 12:30 a.m., SPS reported the serious injury sustained by the Complainant. SIU was notified that on May 31, 2016, SPS was called to an apartment in the city of Sarnia because the Complainant had gone to visit his sister and started to act bizarre and was wielding a hatchet. It is believed the Complainant was under the influence of drugs, possibly methamphetamines.

Numerous officers responded and the SO deployed his CEW numerous times in an attempt to subdue the Complainant. When that had little effect, the SO employed baton strikes to the Complainant. The strikes had little effect and police backed out of the apartment and held the apartment for the Emergency Response Team (ERT) Unit. ERT members entered and pinned the Complainant with a shield and arrested him.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, video recording and measurements.

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Not Interviewed, declined to provide statement.

A canvass of the apartment building residents did not reveal any additional witnesses.

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

WO #4  Interviewed

WO #5  Interviewed

WO #6  Interviewed

WO #7  Not interviewed, but notes received and reviewed

WO #8  Interviewed

WO #9  Interviewed

Additionally, the notes and will-state from one other, non-designated officer, and will-states from eleven other non-designated officers, were received and reviewed.

Subject Officers

SO Interviewed, and notes received and reviewed.

The Scene

The apartment building in Sarnia is a three storey walk up building with a controlled entrance. The apartment was on the third floor across the hallway from a stairwell. The two bedroom unit is less than 1, 000 square feet. The entrance to the apartment is a door from a common hallway that opens into a living room. The living room extends to the balcony exit and in an ‘L’ formation to a dining area to the left. The kitchen is immediately left of the entrance.

The dining room area was in complete disarray. The dining table was moved, a water cooler overturned, an apartment sized chest freezer was askew and debris littered the hardwood floor throughout. There were large blood smears on the walls, floor, freezer and water cooler. The scene was videotaped and photographed.

Physical Evidence

Weapons located at the scene included a broken black knife blade, a bicycle seat with post and a broken metal screen frame. These items were consistent with all witness accounts of the incident. A black handled hatchet was seized by police prior to the arrival of the SIU. The hatchet was examined and photographed, as seen below:

Numerous Conducted Energy Weapon (CEW) identification aphids and wires with attached electrodes were scattered throughout the apartment. Three CEWs were photographed, downloaded and returned to the SPS. A canister of oleoresin capsicum (OC) spray and a collapsible ASP baton were seized from the SO.

Video/Audio/Photographic Evidence

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

Communications Recordings

On May 31, 2016, there were 83 recorded communications related to this incident commencing at 8:14:49 p.m., and ending at 10:28:26 p.m. The noteworthy excerpts are summarized below:

At 8:14 p.m., the father of the Complainant called the SPS dispatcher and advised that his son was under house arrest and at the residence of CW #1, stoned on crystal meth.

At 8:43 p.m., CW #2 called the police dispatcher and advised she was trying to get the Complainant out of CW #1’s apartment. CW #2 stated the Complainant was swinging an edged weapon and as a result, the occupants of the apartment had fled with the exception of CW #1.

At 8:49 p.m., the dispatcher informed the responding police officers that the Complainant was flagged as violent and an escape risk. The Complainant was facing several charges involving violence and assaulting police officers.

At 8:52 p.m., WO #3, the SO and WO #9 arrived at the apartment, followed shortly after by WO #2 and WO #8.

During the course of several updates transmitted by the police officers on scene, an audible commotion accompanied by unintelligible yelling can be heard in the background.

At 9:02 p.m., an unknown unit transmitted, “…(unintelligible)…with a hatchet”. WO #2 radioed, “we have him at gunpoint”. In the background of the transmission an unknown person yelled the Complainant’s first name.

At 10:21 p.m., WO #5 gave the order “Blue, blue, blue” to direct members of the ERT to take the Complainant into custody.

Materials obtained from Police Service

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

• Case File Synopsis
• Money Envelope and Property Control Forms
• Notes from WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #8, and WO #9
• Notes and will-state from a non-designated police officer
• Policy-Use of Force
• Supplementary Occurrence Report-High Risk Arrest
• Training Records of SO
• Communications recordings of May 31, 2016
• Will State from WO #2, WO #3, WO #4, WO #6, WO #7, WO #8, WO #9, and the SO, and
• Will States from 11 other non-designated police officers.[1]

On May 31, 2016, the Complainant attended the apartment of CW #1 in the city of Sarnia. At 8:14 p.m., the Complainant’s father called the SPS dispatcher and advised that the Complainant was under house arrest and at the residence of CW #1, stoned on crystal meth.

Once at CW #1’s, the Complainant armed himself with knives and refused to leave the apartment when asked. The other occupants (with the exception of CW #1) left and CW #2 called the police at 8:43 p.m., stating that the Complainant was swinging an edged weapon and as a result, the visitors to the apartment had fled.

At 8:52 p.m., WO #9, the SO, WO #8 and WO #3 arrived on scene, and made their way to the apartment. WO #2 arrived a short time later. CW #1 opened the door and police entered the apartment and found the Complainant out of control and screaming incoherently. Upon the arrival of the officers, the Complainant hid behind a freezer and armed himself with a bicycle seat with a 12 inch metal post attached. The Complainant was repeatedly directed to put it down, but he refused. Attempts were made by the SO and several other officers to force the Complainant to drop the bicycle seat, including deploying OC spray and several CEW deployments, but their efforts had no effect on the Complainant.

Attempting to force the Complainant to drop the bicycle seat, the SO hit the Complainant’s left arm twice just above the elbow with his baton. Upon the second strike, the Complainant fell to the floor and dropped the bicycle seat but picked up a black hatchet. WO #2 and the SO drew their firearms and ordered the Complainant to drop the weapon, but to no avail. Further CEW strikes were deployed, but with no apparent effect on the Complainant. Once the Complainant was cornered behind the freezer, he eventually dropped the hatchet but remained barricaded in the apartment until the arrival of the ERT. The Complainant was subdued and handcuffed after ERT arrived and entered the apartment.

The Complainant was transported to the hospital where he was diagnosed with an open fracture of his left elbow and a bruise on the left side of his scalp. A toxicology screen upon admission indicated the presence of cocaine, ecstasy, methamphetamine and methadone.

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.

There are no reasonable grounds to believe that the SO committed a criminal offence in connection with the injury the Complainant sustained to his left elbow on May 31, 2016.

During the evening hours of May 31, 2016, the Complainant was under the influence of methamphetamine, contrary to the terms of his recognizance at the time. He also had cocaine, ecstasy and methadone in his system. He armed himself with a hatchet, contrary to a court order, and left his home where he was required to remain under the same order, and went to CW #1’s apartment.

Once at CW #1’s, the Complainant armed himself with knives. The Complainant was asked to leave, but refused. Fearing for their safety, the other occupants left the apartment and called the police. The police were told that the Complainant was armed with an edged weapon. The Complainant’s father also called the police and advised that his son was breaching his house arrest and was stoned on crystal meth. CW #1 remained in the apartment with the Complainant. At the time, the Complainant was flagged as violent and an escape risk, with outstanding charges of violence and assaulting police officers. This was communicated to the officers responding to the 911 call. Approximately nine minutes after receiving the 911 call, WO #9, the SO, WO #8 and WO #3 arrived on scene, and made their way to the apartment. Police interaction with the Complainant lasted over 90 minutes, until ERT arrived and received their order to take the Complainant into custody. In the end, it took two shields and the weight of four officers to subdue the Complainant to the point that he could be handcuffed and arrested. In the course of those 90 minutes, the Complainant’s left elbow was fractured.

When the four first responding officers were outside the apartment, they heard screaming. Given that and the information received on the 911 call was to the effect that the Complainant was armed with a weapon, and the knowledge that another individual was present in the apartment, the SO unsuccessfully attempted to breach the door. After CW #1 opened the door and they entered the apartment, the Complainant was found out of control and screaming incoherently. The Complainant then hid behind a freezer and armed himself with a bicycle seat with a 12 inch metal post attached. He was swinging it at the officers. The Complainant was repeatedly directed to put it down, but he refused. The SO deployed his OC spray, but it had no effect on the Complainant. At one point, the Complainant approached the SO with the seat and post. Several officers deployed CEWs, including the SO, but the Complainant was unaffected, repeatedly removing the probes himself. Other than yelling and stumbling on a couple of occasions, the Complainant did not react to the pain caused by the CEW deployment.

In an effort to get the Complainant to drop the bicycle seat and attached metal pole, the SO hit the Complainant’s left arm just above the elbow with his baton. The Complainant’s left arm was extended towards the SO at the time, while he continued to hold the seat and pole in his right hand. The Complainant did not react. The SO hit the Complainant a second time with his baton, causing the Complainant to fall to the floor. While on the floor, the Complainant kicked at the SO, who then used his baton to hit the Complainant on the leg. All the officers present indicate that those were the only times a baton was used against the Complainant. The Complainant’s arm began bleeding. The Complainant, however, was not subdued or deterred. He dropped the bicycle seat and picked up what appeared to be a knife or the hatchet. He motioned as if he were going to throw it at the officers. An officer radioed to request Emergency Medical Services (EMS) out of fear that the Complainant was suffering the effects of excited delirium. WO #2 and the SO drew their pistols in an effort to subdue the Complainant and ordered him to drop the weapon, but again, to no avail. Further CEW strikes were deployed, but with no effect on the Complainant. Once the Complainant was cornered behind the freezer, he eventually dropped the hatchet but he remained barricaded in the apartment. He was only subdued and handcuffed after ERT arrived and entered the apartment. After arriving at the hospital, the Complainant had to be sedated and restrained to his hospital bed.

There appears to be little doubt that the Complainant’s fractured elbow was caused by the SO striking his left arm with his baton in the course of the confrontation in the apartment that night. The SO, himself, was not surprised when he was advised of the injury. The Complainant’s recollections of that evening are incomplete and undependable given his circumstances at the time. The Complainant has no memory of holding the hatchet or how his elbow was injured. CW #1’s account of the incident varies from the accounts of the officers in several significant areas. For instance, CW #1’s recollection of the number of officers who deployed their batons is contradicted by all the officers present, who consistently indicated that only the SO used his baton. Similarly, the number of times the Complainant was struck before he fell partly to the ground, which is again contrary to the account of the officers who consistently describe two to three baton blows at most being administered by the SO. Additionally, the CW #1 indicates that only one officer drew his pistol at the Complainant – whereas the officers consistently indicated that it was two. However, CW #1’s account is consistent with that of the officers, insofar as the Complainant’s repeated failure to respond to verbal instructions to drop his weapon, he was unresponsive to the OC spray or the CEW deployments, and he did not respond to having a firearm drawn on him and continued to wave the hatchet in the presence of the police. All witnesses were consistent that, even after being stuck numerous times by the baton, the Complainant was not incapacitated or disarmed and the police could not arrest him because he had a hatchet in his hands.

I note that the medical evidence also does not support the allegation that the Complainant was struck with full force ten-twelve times by a baton. If that had been the case, you would have expected the injuries to the Complainant to be much more numerous and serious. Moreover, it is clear that whatever the use of force that was deployed, it did not disarm or deter the Complainant and he remained a threat to the officers. So much so that the initial six officers on scene were ultimately unable to arrest him and left that task to the ERT while deciding to contain the Complainant in the apartment.

It is clear that the SO and the other officers that night were in the execution of their lawful duty at the time of the events in question. They were faced with a violent, out of control individual who was armed with multiple weapons and threatening to cause harm to others. Pursuant to section 25(1) of the Criminal Code, police officers are entitled to use reasonable force in the execution of their duties. With the information that the officers received prior to entering the apartment, and the situation they observed upon entry, they had sufficient grounds to arrest the Complainant at the outset. Given this and the situation that the SO and the other officers then found themselves in, I believe they acted reasonably and with remarkable restraint and patience. Given the circumstances, their use of force progressed in a measured and proportionate fashion to overcome the Complainant’s armed resistance. They began by using verbal commands, then OC spray, CEW strikes and baton strikes, all with little or no effect on the Complainant. Firearms were even drawn, and yet the Complainant would not drop his weapon. It is fortunate given the situation and the Complainant’s behaviour that a firearm was not discharged. In the end, the SO and his colleagues were unable to overcome the Complainant’s resistance and he was only subdued, handcuffed and arrested when the ERT intervened.

I appreciate that the Complainant suffers from serious mental health issues; however, there was no possibility of reasoning with him, or talking him through his mental state. The police were faced with a violent, dynamic and unpredictable situation, and they took all reasonable steps to disarm and control the Complainant. In the circumstances, I conclude that the SO’s baton strike which unfortunately broke the Complainant’s elbow did not fall outside the range of what was reasonable necessary to attempt to disarm and subdue the Complainant and take him into custody. 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). Accordingly, there are no reasonable grounds to proceed with charges in this case and no charges will issue.

Date: August 18, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The notes, will states, and occurrence reports submitted by police officers who were not interviewed were reviewed and were consistent with the accounts of all interviewed witness officers, civilians and the Subject Officer. [Back to text]