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 hospitalization of a 23-year-old man that occurred on June 5, 2016 in Norfolk County after being involved in an interaction with Ontario Provincial Police officers earlier that morning.

The investigation

Notification of the SIU

The SIU was notified of the incident by the Ontario Provincial Police (OPP) on June 5, 2016, at 6:25 a.m.

OPP reported that on June 5, 2016 at 2:10 a.m., the Complainant was arrested for public intoxication near a hotel in the area of Turkey Point Road and Cedar Drive. The Complainant was taken to the Norfolk County OPP detachment. At 2:50 a.m., the Complainant was observed lying on the floor of the cell shaking. Emergency Medical Services (EMS) arrived and took the Complainant to hospital for treatment due to intoxication, but no injuries were sustained.

On June 5, 2016 at 12:30 p.m., OPP provided an update that the Complainant had woken up; however, he continued to have convulsions and he was sedated again by the doctor.

On June 6, 2016, at 12:16 p.m., OPP advised that the hospital was transferring the Complainant to the Hamilton Health Sciences Hospital.

The team

Number of SIU Investigators assigned: 4

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Not interviewed, hospital doctor, medical records reviewed

Police employee witness

PEW #1 Not interviewed, but notes received and reviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Not interviewed, but notes received and reviewed

WO #5 Not interviewed, but notes received and reviewed

Subject officers

SO Interviewed, and notes received and reviewed

Video/audio/photographic evidence

The SIU canvassed for any video or audio recordings, and photographic evidence. The following evidence was obtained:

Booking room video

• On June 5, 2016, at 2:04 a.m., the Complainant was escorted from the SO’s cruiser through the sally port by the SO, WO #2 and WO #4. The Complainant’s hands were handcuffed to the front of his body and he appeared calm and cooperative. The Complainant was wearing cargo style shorts and he did not have a shirt on;
• At 2:06 a.m., the Complainant sat on a bench while the SO was standing to his left. WO #2 and WO #4 were standing to the right of the Complainant. The Complainant appeared to be calm and it appeared that he was engaging in conversation with the police officers;
• At 2:08 a.m., the Complainant attempted to stand up, but WO #2 placed his hand on the Complainant’s shoulder and pushed him to sit back down. It appeared that the Complainant was speaking with aggression by sticking his head out and flailing his upper body; and
• At 2:11 a.m., the SO and WO #2 pulled the Complainant up from the bench and the Complainant flailed his body. The police officers picked up the Complainant by the upper and lower portions of his body and they walked towards the cell corridor door. The Complainant continuously flailed and thrust his body and he placed his feet on the frame of the corridor door. The police officers eventually walked past the door while carrying the Complainant and they placed the Complainant on the bench of a cell.

Cell video footage

• At 2:12 a.m., the Complainant was placed in a cell by the SO and WO #2 and they immediately left the cell. The Complainant walked up to the cell door once it closed and it appeared he was shouting through the bars. The Complainant was seen continuously pacing and trying to pick the lock of the cell door. The Complainant was seen trying to cover the lens of a camera with a green piece of paper;
• At 2:20 a.m., the SO returned to the cell and it appeared that he and the Complainant conversed through the bars. The SO took off the handcuffs from the Complainant’s hands;
• At 2:35 a.m., the SO returned to the cell and it appeared he and the Complainant conversed through the cell doors again. The Complainant fiddled with the cell door lock and he reached down towards the bottom of the cell door;
• At 2:47 a.m., the Complainant sat on the toilet seat, tilted his head down, and rested his head in his hands;
• At 2:51 a.m., the Complainant started to slowly slide off the toilet seat and he eventually fell on the ground. The Complainant was resting on his right side and his body continuously shook;
• At 2:54 a.m., the SO and WO #5 arrived and the SO opened the cell door and attended to the Complainant, who was on the ground. The SO was seen checking the Complainant’s breathing many times and the SO was seen rolling the Complainant in a supine position and placing a blanket under his head; and
• At 3:06 a.m., EMS arrived and the Complainant was eventually placed on a stretcher by the paramedics and transported out of the police station.

Materials obtained from police service

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

• Arrest Report-Complainant
• Disclosure Log
• Email from Inspector re cell area audio
• Event Chronology Reports
• General Occurrence Report
• Involved Officers List
• Involved Persons List
• Notes of WO #1, WO #2, WO #3, WO #4 and WO #5
• Notes of the PEW
• Prisoner Custody Report;, and
• Complainant’s Liquor Licence Act (LLA) provincial offence notice.

At approximately 1 a.m. on June 5, 2015, the Complainant and some friends were at a hotel in Turkey Point, in the County of Norfolk. The Complainant was intoxicated, and was waiting outside the hotel, under the awning of a neighbouring business. Two police cruisers – belonging to the SO and WO #1 – were parked across from the hotel. At about 1:20 a.m., they witnessed the Complainant exit the hotel. He was shouting and had ripped his shirt and threw it on the ground. Soon after, a high powered light from one of the police cruisers shone in the direction of the Complainant, and the Complainant lowered his head.

The SO and WO #1 approached the Complainant. When asked to provide identification to the police officers, the Complainant refused to do so. The Complainant was belligerent towards the officers, he smelled of alcohol and his speech was slurred. The Complainant was then handcuffed with his hands behind his back by the SO and told that he was under arrest for public intoxication. As the Complainant walked towards the cruiser, he became resistant. As a result, the SO bent the Complainant face forward over the hood of the police vehicle while WO #1 conducted a pat down search. The Complainant was eventually placed into the cruiser and transported to the Norfolk Detachment.

Once at the detachment, the Complainant, who was calm and cooperative, was escorted to the booking room. However, the Complainant then became angry and agitated and refused to stand up when directed, as a result of which the SO took hold of the Complainant’s arms and attempted to pull him up while the Complainant struggled, pulled away and thrashed about with his body. The SO and WO #2 placed the Complainant in a cell.

At approximately 2:50 a.m., the Complainant suffered from an apparent seizure and a loss of consciousness. An ambulance was called and he was transported to the hospital where he was placed on life support and from there to the Hamilton Health Sciences Centre from which he was eventually discharged.

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, Liquor Licence Act – Public intoxication

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

1. in a place to which the general public is invited or permitted access; or
2. in any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

(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 June 5^th, 2016, at approximately 2:10 a.m., the Complainant was arrested outside of a hotel in Turkey Point, in the County of Norfolk, by the SO and WO #1 of the OPP, Norfolk Detachment. The Complainant was arrested pursuant to the LLA for being in contravention of s. 31(4), that is, being intoxicated in a public place. The Complainant was transported to the Norfolk Detachment where he was placed in a cell. At approximately 2:51 a.m., the Complainant suffered from an apparent seizure and a loss of consciousness. An ambulance was called and he was transported to the hospital where he was placed on life support and from there to the Hamilton Health Sciences Centre from which he was eventually discharged.

The Complainant alleges that, other than being kicked in the back of the knees by WO #3 to get him onto the ground, no officer struck him anywhere nor did he sustain any physical injuries.

The SO made himself available to be interviewed by SIU investigators and confirmed that he was on general patrol in the area of the hotel the evening of June 4^th, 2016, beginning at approximately 11:35 p.m., and that he met with WO #1 at that location. The SO confirmed the evidence of the Complainant, that he observed the Complainant exit the hotel, that WO #1 shone a pillar light at the Complainant when he was on the porch of the neighbouring business and that the Complainant then crouched down. The SO added that the Complainant was shouting when he first exited the hotel and ripped off his shirt and threw it on the ground. The SO also indicated that he kept observation of the Complainant because of his attendance at the business, which was closed at the time, and suspected that the Complainant might be contemplating some illegal activity.

The SO further corroborated the evidence of the Complainant in that he indicated that he and WO #1 approached the Complainant and asked him what he was doing and that, upon request, the Complainant refused to provide any identification to the officers. The SO, however, added that the Complainant was immediately belligerent towards the officers and that he could smell a strong odour of alcohol emanating from the Complainant’s breath and that he had slurred speech and was having difficulties forming sentences, and when requested to provide identification, the Complainant became increasingly agitated. The Complainant admitted to having consumed alcohol, and subsequently, at 1:32 a.m., the SO placed him under arrest for being intoxicated in a public place, pursuant to s.31 of the LLA, on the basis, according to the SO, that the Complainant was intoxicated, belligerent and causing a disturbance. The SO indicated that he had a concern that if he did not arrest the Complainant, he might do damage to property or harm to himself. The SO indicated that as soon as the Complainant was advised that he was being arrested, he held out his hands towards the officers and was handcuffed. Initially, the SO indicated, the Complainant was calm and cooperative, but as he was being escorted to the cruiser, he began to yell loudly, became ever more agitated and began to pull, twist and move his body in an attempt to break free.

The SO stated that the Complainant was surprisingly strong for someone of his size (approximately 68 kilograms) and that he continued to actively resist as they arrived at the cruiser, at which point the SO bent the Complainant face forward over the hood of the police vehicle while WO #1 conducted a pat down search. The SO advised that he had to place his forearm on the small of the Complainant’s back to keep the Complainant still as the Complainant continued to resist and constantly move about. The SO indicated that once searched, he and WO #1 attempted to place the Complainant into the rear of his cruiser but the Complainant placed his feet on the frame of the door and pushed himself away. At that point, WO #1 lifted the Complainant by the legs while the SO held up his upper body and they placed him down on the sandy ground. The Complainant then calmed and they picked him up again and placed him head first into the rear of the SO’s cruiser. Once inside, the Complainant immediately sat upright and continued to scream. The SO transported the Complainant to the station, while WO #1 remained behind.

Despite his state of sobriety, the Complainant appears to be surprisingly accurate in his version of events as it is fully corroborated by the statement of the SO, with the exception of the number of officers with the Complainant in the cruiser. Whereas CW #2 believed that the Complainant’s head was bounced off the hood of the cruiser several times, there is no mention of any such incident ever occurring in the Complainant’s statement, which is consistent with the evidence of the SO. I am inclined to believe that what CW #2 actually saw was the SO attempting to hold the Complainant’s head against the hood of the cruiser with his forearm, while the Complainant continued to move about. I accept the evidence of the Complainant, as confirmed by the SO, and find the allegation by CW #2 to be unreliable and unsubstantiated. I find further support in this conclusion in light of the fact that both the paramedic records, as well as the medical records, indicate that there was no injury nor any signs of trauma to the Complainant’s head or body, which one would have expected to find had his head been bounced off the hood of a car, other than abrasions to the wrists and ankles (which the records noted) that were consistent with the use of constraints.

The SO further stated that while the Complainant constantly shouted profanities at the SO en route to the station, he made no complaint of injuries. At 2:04 a.m., the Complainant was escorted to the booking room and, at that point, he was calm and cooperative; however, according to the SO, as confirmed by the booking video, the Complainant then again became angry and agitated and refused to stand up when directed, as a result of which the SO took hold of the Complainant’s arms and attempted to pull him up while the Complainant struggled, pulled away and thrashed about with his body. The SO and WO #2, again as seen in the video, then carried the Complainant to the cell door where the Complainant placed his feet on the frame of the door and attempted to push away and continued to struggle.

At 2:52 a.m., the SO’s notes indicate that he received information through WO #5 from the PEW that she had observed the Complainant lying on the floor of his cell. Approximately 10 seconds later, the SO and WO #5 arrived at the cell where the SO saw the Complainant laying on his right side and his whole body was shaking as if with convulsions. An ambulance was called and the SO and WO #5 continued to monitor and assist the Complainant, who was unresponsive, until the ambulance arrived and he was taken to hospital. The SO advised that at no time did he apply excessive force to the Complainant nor did he see the Complainant strike his head on any hard surfaces. The SO was of the view that he did all that he could to care for the Complainant.

The statement of WO #1 and WO #3 are fully consistent with those of the Complainant and the SO with respect to what occurred outside of the hotel, with the only addition being that WO #1 indicated he suspected that the Complainant’s erratic behaviour was due to something more than alcohol consumption and believed that he was under the influence of drugs, since his level of agitation and combativeness continuously fluctuated. On that basis, WO #1 advised, he asked the Complainant if he had taken anything other than alcohol, but the Complainant did not respond.

The details provided by the SO as to what occurred at the station are fully consistent with the statement of WO #2 as well as the notebook entries made by WO #4, WO #5 and the PEW, as well as the booking and cell video.

The paramedic records indicate that there were no visible injuries to the Complainant, nor was there any trauma. The medical records similarly indicate “Multiple minor abrasions over his body and limbs. Most appeared to be related to restraints. He had no signs of significant head trauma” and describe the Complainant as “Combative and aggressive at hospital and had to be sedated numerous times” and “Patient placed in restraints overnight due to level of agitation”. The toxicology screening at the hospital concluded that he had “consumed considerable quantities of alcohol and his tox screen is positive for cocaine, MDMA and amphetamines”. His blood/alcohol level was determined to be more than twice the legal limit. Over the course of his stay at the two different hospitals, various doctors listed his diagnosis as follows in his medical records: “Decreased LOC (level of consciousness), likely secondary to a combination of ETOH (ethyl alcohol) and drugs”; “June 6/16 Decreased LOC secondary to polysubstance use (cocaine, ETOH, ecstasy, methamphetamines)”; “patient took multi-drug OD of street drugs and alcohol”; “Apparently he told nursing staff he was intentionally trying to end his life when he took the OD”; “Able to say clearly this was not a suicide attempt. Had taken more cocaine, mdma and alcohol than usual in an attempt to get high. Was upset about break-up with girlfriend’; “Admitting Diagnosis: Acute respiratory failure, seizures multiple recreational drug use. Discharge Diagnosis: same” and finally “Assessment: I wonder if this was alcohol related seizures”.

Although the medical records do not specifically state the cause of the Complainant’s seizures, it is clear that none of the many doctors who saw him attributed his condition to anything other than due to his excessive use of drugs and alcohol; all are clear that there was no sign of any physical injury or head trauma. The medical findings appear to confirm the statements of the Complainant and the SO, WO #1 and WO #3 that there was no force used to apprehend the Complainant, other than to put him on the sandy ground once, during the course of which he did not strike his head.

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 all of the witnesses who came into contact with the Complainant that the Complainant was intoxicated while outside of the hotel on the night in question. Further, the observations of police officers outside of the hotel describe the Complainant as throwing off his shirt and being loud, agitated, belligerent and causing a disturbance. As such, the arrest of the Complainant pursuant to the LLA was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to arrest, search and transport the Complainant, I find that their behaviour was justified in the circumstances and that they used no more force than necessary to subdue the Complainant who was quite agitated and resistant, likely due to his state of intoxication. I also find that there is no evidence whatsoever that the Complainant suffered any injury at the hands of any police officer, but went into respiratory distress and convulsions as a direct result of his over consumption of alcohol and street drugs, as found by the doctors who treated him; additionally it is clear from the medical records that none of the many medical personnel who examined the Complainant found any evidence of trauma or injury to the Complainant. Indeed, it appears on the record that it may have been fortunate that the Complainant was arrested on the morning of June 5^th; had that not been the case, and he had been left to the care of his friends who were also apparently well under the influence of alcohol, it is doubtful if the result would have been the same.

As a side note, in my opinion, the diligence of the PEW in keeping a constant observation of the Complainant in his cell, and the speed with which she reported her observations as well as the quick actions of the SO and WO #5 in tending to the Complainant and securing him medical assistance were commendable and may well have saved his life.

On this record, it is clear that the force used by the SO, WO #1 and WO #3 was no more than necessary to overcome the Complainant’s significant 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 and that there is no evidence of any causal connection between the actions of the police officers who apprehended the Complainant and his subsequent medical condition. 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. No charges will issue.

Date: August 18, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit