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 a custody injury that a 52-year-old male sustained to his left arm during an interaction with Thunder Bay Police Service (TBPS) on February 16, 2016. The Complainant attended the hospital and was diagnosed with an oblique fracture through the midshaft of his left humerus.

Notification of the SIU

On June 30, 2016, at 9:50 a.m., TBPS notified the SIU of the following:

On February 16, 2016, police officers from TBPS attended a gas station/convenience store in the area of Red River Road located in Thunder Bay regarding a male, who was later identified as the Complainant, lying on the ground. The Complainant was subsequently arrested for being intoxicated in a public place. He was lodged at the TBPS station and later released when he was sober.

On June 29, 2016, the Complainant attended the TBPS station and filed an Office of the Independent Police Review Director (OIPRD) complaint indicating his left arm had been broken during his arrest on February 16, 2016.

The team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Not Interviewed[1]

WO #3 Interviewed

Subject officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

The scene

The scene was not examined at the time of the Complainant’s arrest. The arrest occurred on the lot of a gas station, which has been described as snow-covered, slushy and slippery.

Scene diagram

Drawing of scene by WO #1

Video/audio/photographic evidence

Summary of cell block video

The TBPS provided the SIU with video images of the Complainant when he arrived at their facility and when he was released. The video provided images of the following areas:

• sally port
• booking room (with audio)
• hallway to cells
• cells, and
• cell #10

Booking video

When the Complainant arrived at the police station, he was driven into the sally port in an unmarked police vehicle by the SO. WO #1 walked into the sally port. The police officers assisted the Complainant in exiting from the rear of the police car. His hands were already handcuffed behind his back. He was led to the booking room, which was audio and video recorded. WO #3 was in the booking room. The Complainant was unsteady on his feet and appeared intoxicated.

One of the male police officers said to the Complainant, “Keep your hands behind you when the handcuffs come off.” The Complainant answered, “I had my rotary cuff done.”[2] The police officer asked, “Which rotary cuff is the one that bothers you?”, but the Complainant did not answer. The SO was holding the Complainant’s right arm and WO #1 held the Complainant’s left arm as they were removing the Complainant’s jacket. The Complainant said, “You’re pulling on my rotary cuff arm”, referring to his left arm. The police officer again asked, “Which shoulder is your bad one?” The Complainant did not answer. The watch commander was present during these conversations.

At no time was the Complainant seen physically struggling with the police officers. It was necessary for the police officers to hold him up as they removed his jacket due to his unsteady condition. There was no action by either police officer that would appear to have caused the Complainant’s fracture.

Release video

When the Complainant was in the booking room preparing to be released, his left arm was hanging motionless at his side. A police officer asked what was wrong with his arm. The Complainant said, “It’s not working ‘cause I told the police officer I had my rotary cuff done. And he just basically didn’t give a crap. It frickin hurts like hell.” The police officer helped put the Complainant’s sweater and coat on over his limp arm.

The Complainant did not tell the police officer that he wished to make a complaint and he did not ask to go to the hospital.

Materials obtained from Police Service

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

• Arrest Report
• audio recordings of phone calls
• Background Event Chronology
• CAD-Event Details
• Disclosure Log - July 11, 2016
• drawing provided by WO #1
• Duty Roster-February 15, 2016-Night Shift
• Duty Roster-February 16, 2016-Day Shift
• notes of WO #1 and the SO
• Policy - Care and Handling of Prisoners
• Prisoner Log Sheet
• Provincial Offence Notice, and
• video images of the cell area

On February 16, 2016, TBPS officers were dispatched to a gas/convenience store located in the area of Red River Road in the City of Thunder Bay, in response to a 911 call. The caller indicated that a male, who was later identified as the Complainant, was intoxicated and had fallen in the parking lot and could not get up.

The SO attended the gas station and located the Complainant on the ground. The Complainant was subsequently arrested for being intoxicated in a public place contrary to s.31(4) of the Liquor Licence Act. The SO handcuffed the Complainant with his arms behind his back. WO #1 arrived shortly thereafter and, with the SO, stood the Complainant up on his feet. The Complainant was put into the rear of a police vehicle and transported to the police station. The Complainant was held overnight, pending his sobriety.

The following day, after his release, the Complainant attended the hospital and was diagnosed with an oblique fracture through the midshaft of his left humerus. The Complainant’s left arm was placed in a solid cast. On June 29, 2016, the Complainant attended the TBPS station and filed an OIPRD complaint alleging that the SO caused his injury due to an excessive use of force when arresting the Complainant.

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(4), Liquor License Act - Intoxication

31(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.

On February 16, 2016, TBPS officers were dispatched to the gas/convenience store in the area of Red River Road in the City of Thunder Bay in response to a 911 call from the gas station indicating that the Complainant was intoxicated and had fallen in their parking lot and could not get up. The SO and WO #1 attended at the gas station and the Complainant was arrested for being “intoxicated in a public place” contrary to s.31(4) of the Liquor Licence Act. The following day, after his release, the Complainant attended the hospital and was diagnosed with an oblique fracture through the midshaft of the left humerus. On June 29, 2016, the Complainant filed a complaint alleging that the SO caused his injury due to an excessive use of force in arresting the Complainant.

Although the SO did not make himself available for an interview with investigators, as was his legal right, and the video recording from the gas station was no longer available due to the delay in the filing of the complaint, three civilian and two police witnesses gave statements to SIU investigators and a fairly clear picture of what occurred was able to be determined.

All the witnesses described the Complainant as intoxicated that night at the gas station, and indicated that he was lying on the ground when police arrived. As well, none of the witnesses described a physical struggle or verbal confrontation between police and the Complainant, or that the SO used excessive force when he pulled the Complainant’s arms behind his back or did anything which could have caused an injury to the Complainant’s arm.

The evidence of WO #1 is consistent with CW #2. WO #1 observed that the Complainant was already handcuffed upon his arrival and was lying face down on the ground. WO #1 assisted the SO to get the Complainant up, as the Complainant refused to do so on his own. The police officers lifted the Complainant up under his armpits and dragged him to the police car. When the Complainant then refused to get into the police vehicle, WO #2 stated that he kicked the Complainant on the back of the knees with his heel, which caused the Complainant to drop down, and he was then placed into the back of the police vehicle. WO #2 further indicated that at no time did the Complainant complain in his presence of an injured arm.

At the station, WO #3 observed that the Complainant had scrapes to his chin and cheeks but had no note of any arm injury. WO #3 advised however, that she did observe on the cell video that the Complainant did not use his left arm much and she overheard the Complainant tell WO #1 that he had something done to his shoulder previously. The booking video revealed that the Complainant was unsteady on his feet and appeared to be intoxicated. When one of the officers told the Complainant to keep his hands behind him once the handcuffs came off, the Complainant responded that he had previously had his “rotary cuff done” and later indicated to the officer “you’re pulling on my rotary cuff arm”, referring to his left arm. When questioned by officers at various points as to which shoulder or arm was his bad one, he refused to respond.

The booking video of the Complainant’s release shows his left arm hanging motionless at his side and when the officer asked what was wrong with his arm, he indicated, “It’s not working ‘cause I told the police officer I had my rotary cuff done. And he just basically didn’t give a crap. It frickin hurts like hell”.

The Complainant’s medical records indicate that he sustained a fracture through the midshaft of the left humerus which he attributed variously as having been caused by an altercation that he had with police on Tuesday morning (being February 16^th) but that he had also fallen down on Monday (February 15^th). On a review of all of the evidence, and with special emphasis on the evidence of the two civilian witnesses who observed the arrest of the Complainant, I can find no evidence that any actions by either police officer could have caused the injury to the Complainant.

It is clear that there is any number of explanations for the Complainant’s injury, including his explanation to medical staff that he had fallen the night before. It is very possible that the Complainant did not realize when his injury occurred due to the fact that he was anesthetized to the pain due to his level of intoxication. It may well be that when the Complainant began to sober in the cells at the station, and began to recognize that he was in pain, that he simply associated that pain with his present predicament and laid the responsibility at the feet of the police officers. What is clear, however, is that there was nothing in the interaction between the SO and the Complainant that could have caused his injury.

On a consideration of all of the evidence, I cannot agree with the Complainant’s belief that his injury was caused by an excessive use of force by the SO.

In the unlikely event, however, that the Complainant was injured when the SO attempted to handcuff him, an assessment of the facts is required to determine whether this amounted to an excessive use of force pursuant to s.25(1) of the Criminal Code. Section 25(1) of the Criminal Code restricts police officers, 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 evidence of all witnesses, both police and civilian, that the Complainant was out in public on February 16 in an extreme level of intoxication and that he was a danger to himself as he could not get up off the ground after falling. As such, the arrest and handcuffing of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by police officers in their attempts to arrest the Complainant, I find that the force used was minimal and no more than required to place the handcuffs on the Complainant, who was clearly intoxicated and less than cooperative, and to get him safely into the police cruiser. In coming to this conclusion, I am mindful of the case law, as set out by the higher courts, that 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.) nor should they be judged to a standard of perfection (R. v. Nasogaluak [2010] 1 S.C.R. 206).

I also find that it is more than likely that the Complainant suffered his injury when he fell on the icy pavement. If, however, the injury was caused by the efforts of the police officers to arrest the Complainant, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by both police officers, but specifically the force used by the SO in handcuffing the Complainant, was minimal and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.

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

Date: August 16, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #2 was designated as a witness officer in order to obtain a copy of notes made in relation to this matter. TBPS advised that WO #2 was dispatched to this incident, but later cancelled. There were no notes made by WO #2 in relation to this matter. [Back to text]
• 2) [2] Rotator cuff is the actual injury, although it was referred to as “rotary cuff” by the Complainant and the police. [Back to text]