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 suffered by a 25-year-old male, during his arrest for breaching his probation conditions on June 17, 2016 at approximately 11:45 p.m.

Notification of the SIU

The SIU was notified of the Complainant’s custody injury by the Saugeen Shores Police Service (SSPS) on June 18, 2016 at 1:50 a.m.

SSPS advised that on June 17, 2016 at 11:45 p.m., SSPS officers went to arrest the Complainant for breaching probation conditions. The Complainant resisted the Subject Officer (SO) and a foot pursuit ensued. The Complainant complained of a sore jaw after he was taken into custody by the SO in a residential backyard on Eugenie St. in the town of Port Elgin.

The Complainant was first taken to the hospital in Southampton where he received four sutures to close a cut on his head and then to the hospital in Owen Sound for x-rays.

At 4:05 a.m., on June 18, 2016, SSPS confirmed that the Complainant had a broken jaw.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant

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

Civilian witness

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

Subject officers

SO #1 Interviewed, and notes received and reviewed

The scene

The scene of the incident was confined to the flat, grass-covered lawn at the rear of a residence on Eugenie St., centred approximately eight metres from the rear of the dwelling.

Physical evidence

The SO’s flash light was obtained and inspected by the SIU.

Materials obtained from Police Service

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

• Communications audio recordings
• Computer Aided Dispatch (CAD) Event Report
• Disclosure Letter
• Flashlight issued to the SO
• General Order-Use of Force
• Court file (Information, Arrest Report, Order of Disposition, Drug Offence Disposition Report, Promise to Appear, Undertaking given to a Peace Officer, Synopsis for a Guilty Plea, Occurrence Summary, General Occurrence Report, Property Report, Report to a Justice, Supplementary Occurrence Reports)
• Notes of WO #1 and WO #2
• Photographs of the arrest scene
• Use of Force Report (not requested)
• Will State - SO and WO #1

On June 17^th, 2016, the SO, WO #1 and WO #2 from SSPS were dispatched to a residence on Eugenie Street in the town of Port Elgin with respect to a call regarding a suspicious man knocking on the rear door of that residence. No description was provided of the suspicious man. En route to the call, the SO encountered the Complainant riding his bicycle late at night at the intersection of Waterloo Street and Eugenie Street. The SO approached the Complainant in his fully marked police vehicle and greeted him. The two men engaged in a brief conversation. The SO knew that the Complainant was on court conditions at the time, which he appeared to have breached. The Complainant dismounted his bicycle and left it lying in the roadway. The Complainant removed his backpack and began to hand it in to the SO, when he suddenly decided to run away with the backpack instead. Consequently, the SO engaged in a foot pursuit trying to apprehend the Complainant.

The Complainant ran down Eugenie Street into a residential backyard and the SO followed. Once in the backyard of Eugenie Street, the SO and the Complainant had an altercation which caused both of them to hit the ground. During the altercation, the SO lost control of his flashlight. In an effort to apprehend the Complainant, the SO punched the Complainant to the face and put him into a headlock. The SO finally managed to handcuff the Complainant. After the Complainant was handcuffed, WO #1 and WO #2 arrived at the scene and walked the Complainant to the police vehicle. The SO then drove the Complainant to hospital in Southampton.

At the hospital, the Complainant received four stiches to the left side of his head. WO #1 and WO #2 then transported the Complainant to the hospital in Owen Sound where he was diagnosed with a fractured jaw.

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 34(1), Criminal Code – Use or threat of force

A person is not guilty of an offence if

1. they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
2. the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
3. the act committed is reasonable in the circumstances.

Section 495(1), Criminal Code – Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant

1. a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
2. a person whom he finds committing a criminal offence; or
3. a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

On June 17^th, 2016, the SO was dispatched to a residence on Eugenie Street in the town of Port Elgin with respect to a call received regarding a suspicious man knocking on the rear door of that address. En route to the call, the SO encountered the Complainant riding his bicycle and, knowing that the Complainant was on various court ordered conditions, the SO approached the Complainant and placed him under arrest for breach of probation. Following the Complainant’s interaction with police, he was taken to hospital where he was found to have sustained a cut on the left side of his head requiring four sutures and a closed displaced fracture of the right mandible. The Complainant alleges his injuries were caused by an excessive use of force by the SO.

At the hospital in Southampton, the Complainant received four stitches to the left side of his head and was discharged with instructions to return in the morning to have his jaw x-rayed. The Complainant’s medical records from that hospital indicate that he sustained his injuries when “Arrested by police. Fought with them”. It is also indicated that there was no loss of consciousness; however, it is unclear if this information came from the Complainant or from police. Later on in the records, under the heading “Chief Complaint” it again reads “Fight with police. Under arrest for drugs and trespassing. Flight from police. Fought with police officer.” As it is also unclear if these comments were made by the Complainant or by the officer, I have attributed no weight to them. WO #1 and WO #2 then transported the Complainant to a Health Centre in Owen Sound where, after being x-rayed, he was told that his jaw was fractured on the right side below his ear. In the medical records from the hospital in Owen Sound, however, the following comments are directly attributed as coming from the Complainant: “Patient into ER from Southampton. States was assaulted, flashlight to back of head. Loss of consciousness X2 minutes, as per patient” and then again, “Patient cooperative. States was assaulted by police officer.” The Complainant was then released by the police at the hospital, after signing some papers.

Despite canvassing the area for any civilian witnesses or CCTV footage, none were located. As such, the only persons with any information as to the interaction between the Complainant and the SO, are the Complainant and the SOO. No police officers observed the actual interaction as they did not arrive until after the Complainant had already been handcuffed. The SO made himself available to investigators for an interview and provided his notebook entries for review.

The SO advised that on June 17^th, 2016, he received a radio call regarding a suspicious man knocking on the rear door of a residence on Eugenie Street in the town of Port Elgin; no description was provided. At the intersection of Eugenie and Waterloo Streets, the SO observed the Complainant riding his bicycle, carrying a backpack. The SO advised that the Complainant was known to him and that he knew he was on court ordered conditions with respect to not possessing drugs or alcohol. As a result of this information, and having no further description to go on with respect to the suspicious male, the SO called the Complainant over to speak with him. The SO described his interaction with the Complainant as cordial, although he observed him to be fidgety, refused to make eye contact, could not hold a conversation and presented as being in a hyper excited state. The SO asked the Complainant to move to the front of his cruiser, as he was standing in a live lane of traffic, whereupon the Complainant dropped his bicycle in the middle of the road and walked to the front as directed. The SO advised that he detected an odour of fresh marijuana emanating from the Complainant as well as an odour of alcohol on his breath, and, on that basis, concluded that the Complainant was in possession of a controlled substance and in breach of his court-ordered conditions and advised him he was under arrest for breaching the conditions of his probation order. The Complainant removed his backpack and began handing it to the SO and the SO’s intention was to search it incidental to arrest. He did not ask for permission to search the backpack. Just as the SO received the backpack, the Complainant grabbed it back and ran off with it and the SO followed while simultaneously broadcasting over his portable radio, “Foot pursuit” with the Complainant.

The SO had already removed his flashlight at that point and was holding it in his right hand while running. The SO observed the Complainant to run into the rear yard of a residence on Eugenie Street and yelled to him to stop. It was dark in the back yard, according to the SO, and he could only see shadows but he tackled the Complainant by grabbing his upper torso and they both fell sideways to the ground, where they landed facing each other. During the tackle, the SO lost his flashlight but maintained he did not throw it at the Complainant.

The SO advised that he was down on his knees while the Complainant was hitting and kicking at him. As the Complainant was trying to get up, he hit the SO several times in the chest and scratched at his arms. The SO then punched the Complainant in the face with his right fist, three times, and the Complainant turned his head away. The SO then put him into a headlock in order to gain control, but the Complainant continued to struggle and attempt to escape. The Complainant tried to use his portable radio to call for assistance but was unable to access the emergency button while maintaining his hold on the Complainant. The SO then observed a man in the backyard of a residential home on Catherine Street and yelled at him to call police and advise that an officer needed assistance, while continuing to yell for WO #1 and WO #2 and at the Complainant to stop resisting. As the Complainant began to tire, the SO was able to handcuff him behind his back. The SO then retrieved his flashlight from where it was lying approximately two feet away from the Complainant.

The SO described his interaction with the Complainant as one of the worst scenarios he had encountered in his career. He indicated that he feared that no other officer knew where he was, that the man at the residential home on Catherine Street had not called police, he was alone with the Complainant, who appeared to be physically fit and might gain control and assault him further and he could be seriously harmed by the Complainant; it was for all of these reasons, the SO advised, that he struck the Complainant in the face three times. Thereafter, the Complainant complained of a sore jaw and that he was bleeding, and was transported to hospital. En route, the Complainant asked the SO several times, “Why did you throw your flashlight at me?” and the SO indicated that he denied it then, and he denied it in his statement to investigators; the SO indicated that at no time did he throw his flashlight at the Complainant.

The SO advised that as a result of the altercation with the Complainant, he suffered scratches to his right arm and hand and a soft tissue injury to his right shoulder that was still being treated, at the time of the interview, with physiotherapy.

WO #1, in his statement, advised that he had been dispatched to attempt to locate the male person who had knocked at the back door of a residence on Eugenie Street. While searching for the male, he heard the SO report on his radio that he was in a foot pursuit with the Complainant and he came across the SO’s unoccupied vehicle at the intersection of Eugenie and Waterloo Streets as well as a bicycle, and inferred that the SO was in a foot pursuit. WO #1 was unable to reach the SO by radio, but did hear several attempted radio transmissions, but no words. He then activated his emergency lights so that hopefully the SO could see him, when he heard the SO yell, “I’m back here,” and saw the flash of a flashlight from the backyard at a residential home on Eugenie Street. WO #1 then saw that the SO had the Complainant in handcuffs, lying on his left side with some blood on the right side of his face. He described the Complainant as agitated and swearing. WO #1 also heard the SO ask a group of people who had collected in a backyard on Catherine Street if they had called police, and when they said no, he asked them why did they not call the police for back up for him, to which he received no response.

The SO advised WO #1 that he had a scuffle with the Complainant and WO #1 observed that the SO had blood on his arm. While at hospital, WO #1 indicated that the nurse showed him the cut to the left side of the Complainant’s head, and while the Complainant did not refer to the cut, he indicated to WO #1 that the SO had punched him and he thought his jaw was broken.

WO #2, who arrived at the scene after WO #1, described the SO’s breathing as laboured and he appeared as if he had just experienced a traumatic event. WO #2 also heard the SO explain that the Complainant had run into the backyard and he had tackled him and when the Complainant fell onto his back he raised his hands to fight with the SO and that the SO struck the Complainant twice in the face and rolled him onto his stomach, and when the Complainant tried to push up and away from him, he hit him one more time and then handcuffed him. At no time did the SO indicate to either officer that he had struck the Complainant with his flashlight. WO #2 did, however, overhear the Complainant tell the triage nurse that a flashlight had been thrown at him.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the statements of both the Complainant and the SO that the Complainant was on court ordered conditions not to be found in possession of any drugs or alcohol. The SO indicated that he reasonably believed, based on having detected both the odour of marijuana and alcohol emanating from the Complainant, that he was in breach of those conditions and therefore arrestable as such. Pursuant to s.495 of the Criminal Code, the SO was therefore authorized to arrest the Complainant without a warrant in order to secure or preserve evidence of the offence and to prevent the continuation or repetition of the offence. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in his attempt to subdue the Complainant, I believe that this requires a separate analysis with respect to the infliction of each of the two injuries sustained by the Complainant, that being the laceration to the left side of his head, which the Complainant alleges was as a result of the SO throwing his flashlight at him, as well as the fractured jaw, which both the Complainant and the SO appear to indicate was as a result of the SO punching the Complainant in the face.

On the whole of the evidence, it appears, with a few exceptions, that the Complainant and the SO’s versions of events are not that far apart. The differences that exist relate primarily to whatever was said at the cruiser prior to the Complainant running off and how the Complainant was injured. There is no dispute that the Complainant did not wish to be arrested for possession of drugs, that he initially handed over his backpack to the SO and then grabbed it back, and that he then ran into the backyard of a residential home on Eugenie Street where the physical altercation occurred.

With respect to the altercation in the backyard of the residential home on Eugenie Street, I find that the Complainant’s description of the SO throwing his flashlight and striking the Complainant’s head is inconsistent with the location of the injury, although I have no difficulty finding that the Complainant may, in the heat of the moment, have believed that the SO threw his flashlight at him. Had the Complainant had his back to the SO, then, the flashlight would have hit him in the back of the head, but it did not. The injury to the Complainant was to the left side of his head, in an area above the left ear. There is no dispute that the SO had his flashlight in his hand when he entered the yard chasing the Complainant and that the yard was dark; on that basis, with the flashlight as his only source of light, it would appear to be illogical to throw that source of light especially considering that once he raised the flashlight in order to be able to throw it, it would no longer be illuminating the Complainant and the odds that it would find its target in the dark were very slim. Additionally, the Complainant was running away from the SO, so he was clearly not in a position to see what the SO was doing with his flashlight.

Although it is impossible to determine exactly how the Complainant received the laceration to his scalp, I find that it is far more likely based on all of the evidence that it occurred when the SO tackled the Complainant, in the dark, with the flashlight in his dominant right hand, with the flashlight striking the Complainant on the left side of the head. In fact, this scenario is consistent with the SO’s account of his tackle of the Complainant, which was to the effect that when they landed on the ground, they were facing each other and that he lost his flashlight after the tackle. The fractured jaw was, without dispute, caused by the SO punching the Complainant in the face. On these facts then, as I have found, the issue is whether or not these actions by the SO were justified in the circumstances or constituted an excessive use of force.

With respect to the Complainant’s version of what happened in the backyard, I find that his version of events is contradicted by the following evidence: a crowd had gathered to watch, implying that something worth watching was definitely going on; the several failed radio transmissions as indicated by the SO and corroborated by WO #1 indicate that the SO was definitely in a situation where he was having some problems; WO #1 overheard the SO question the crowd that had gathered as to why they had not called the police for back up for him and none of them denied that they had heard the SO make that request which would obviously have indicated that the SO was in need of assistance; the version of events that the SO related to both WO #1 and WO #2 at the scene, and to medical personnel at the hospital, was consistent with the version he proffered to investigators; WO #1 observed the Complainant to be agitated and swearing; WO #1’s observation that the Complainant was intoxicated or ‘high” on some drug and that his speaking was unintelligible; the injuries sustained by the SO and, finally, the observation of WO #2 that when he arrived at the scene he observed the SO’s breathing to be laboured and he appeared to have just experienced a traumatic event. On all of these factors, I conclude that the Complainant was definitely fighting the SO and was resistant to being arrested.

On the evidence of the SO, it is clear that he feared for his own safety due to the assaultive behaviour of the Complainant when the SO was on his knees, after having tackled the Complainant to the ground, and the Complainant was hitting and kicking at the SO and scratched at his arms, as confirmed by his injuries. In these circumstances, I have to consider the defence of self-defence pursuant to s. 34(1) of the Criminal Code of Canada. On a review of all of the evidence, it is clear that the SO was alone and without the ability of calling for back up due to his being unable to access his portable radio, he was in the dark without access to his flashlight, he was being assaulted by the Complainant and was becoming fatigued and, by his own evidence, feared that if the Complainant gained control of the situation he, the SO, would be further assaulted and, despite his calling out to the bystanders to call police for back up, he had no way of knowing if they had done so and he feared that no other officers knew of his location. On that basis, I have little difficulty accepting that the SO feared for his safety and that he found himself, as he indicated, in “one of the worst scenarios of his career”.

As required by s. 34(1), it is clear on all of the evidence that the SO had reasonable grounds to believe that force or a threat of force was being used against him by the Complainant; that he punched the Complainant in the face three times for the purpose of defending or protecting himself from that threat of force; and, that his actions were reasonable in the circumstances.

With respect to the SO’s actions in tackling the fleeing Complainant to the ground and possibly inadvertently striking the Complainant on the head with his flashlight as they both went to the ground, although I find that the Complainant’s injury was caused by the SO, I find that pursuant to section 25(1) of the Criminal Code, the SO used no more force than was reasonably necessary in the execution of his lawful duty in apprehending a suspect who was actively fleeing from police after having been observed committing an offence and being placed under arrest. Although I find that the degree of force with which the SO’s flashlight may have inadvertently struck the Complainant’s head while he was being tackled to the ground was sufficient to have caused his scalp injury, I find that, in all of the circumstances, the option resorted to by the SO to apprehend the Complainant was more than reasonable in the circumstances. 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:

In conclusion, I am satisfied on reasonable grounds that the actions resorted to by the SO which resulted in the Complainant’s fractured jaw were in self-defence and were justified pursuant to s.34(1) of the Criminal Code, while the scalp injury which was caused when the fleeing Complainant was tackled to the ground was justified pursuant to s.25(1) of the Criminal Code and that both fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: August 17, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit