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 fractured right orbital bone suffered by a 29-year-old male during his arrest on May 21, 2016.

Notification of the SIU

On May 21, 2016, at 8:10 p.m., London Police Service (LPS) notified the SIU of a custody injury that occurred that morning.

LPS reported that at 12:25 a.m., the Subject Officer (SO) apprehended the Complainant at his parents’ home. The Complainant was believed to have been living at a group home as a court imposed condition. At the time of his arrest, the Complainant agreed to go to the hospital in London for treatment under addictions and mental health programs. When the SO took the Complainant to hospital, it was felt there was no reason to admit him and he was released. The SO checked with the group home and discovered that there was no bed for the Complainant.

As they left the hospital, the SO decided to arrest the Complainant for breaching his bail conditions. A physical altercation resulted during which the SO struck the Complainant in the face. He was then taken to the LPS station and lodged. Injuries to his face were noted at the time of booking but were not deemed serious. The Complainant refused treatment and said he would not go to hospital.

The Complainant went to the hospital via ambulance after he was released from custody.

The LPS learned later that day that the Complainant was diagnosed with a fractured right orbital wall and floor and a fractured sinus. The Complainant was admitted to hospital not for his injuries but for treatment under addictions and mental health programs and was expected to be in hospital for some time.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant

29-year-old male, medical records obtained and reviewed

Civilian witnesses

CW #1 Not Interviewed[1]

CW #2 Not Interviewed

CW #3 Interviewed[2]

CW #4 Interviewed

CW #5 Not Interviewed [3]

CW #6 Interviewed

CW #7 Interviewed

Police employee witnesses

PEW #1 Interviewed

PEW #2 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

Additionally, the notes from two other officers were received and reviewed.

Subject officers

SO #1 Interviewed, and notes received and reviewed

The scene

There was no scene examination.

Video/audio/photographic evidence

Hospital surveillance video recording

The hospital surveillance recording contained colour video recordings with no audio.

The SO and the Complainant were seen arriving in the triage area at 11:21 p.m. on May 20, 2016. After being assessed by the triage nurse, both the Complainant and the SO moved about the area and appeared on and off the recordings at various times.

At 12:25:08 a.m. on May 21, 2016, the Complainant re-entered the triage area, followed by the SO. While the Complainant sat in a chair, the SO appeared to speak to the triage nurse. About ten seconds later, the SO approached the Complainant and less than ten seconds later, grabbed the left shoulder area of the Complainant’s shirt, brought him to his feet and escorted him to a wall. There, he appeared to try to position the Complainant against the wall for handcuffing. The Complainant resisted the police officer’s efforts and moved toward a chair where he sat and tried to curl up.

The SO then grounded the Complainant from the seated position to a prone position on the floor. The SO immediately positioned his right knee on the Complainant’s back and brought his left arm behind his back. Holding the Complainant’s left arm with his left arm, the SO secured a cuff with his right hand. The Complainant’s right arm remained extended over his head during the struggle and he tucked his forearm under his head for about two seconds, after his left hand was cuffed. The Complainant raised his head and upper body while writhing on the floor, propping himself up by his right forearm. The SO rose slightly. He positioned his feet on the floor while his hands remained in the area of the Complainant’s back as he delivered a right knee strike to the Complainant’s head at 12:25:58 a.m., about 10 seconds after he was grounded.

The Complainant continued resisting but the other handcuff was secured as hospital security personnel arrived. The Complainant was immediately brought to his feet and escorted out of the triage area.

The video recording revealed that the handcuff on the Complainant’s left wrist was not properly secured prior to the knee strike. As the Complainant continued resisting after the knee strike, the SO was clearly seen re-securing the handcuff on the Complainant’s left wrist.

Booking photograph

The booking photograph released to the SIU confirmed that the Complainant had no visible injury at that time.

The photograph taken of him on the following day showed swelling and reddening to the area around his right eye.

Communications recordings

The communications recordings were unremarkable.

Materials obtained from Police Service

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

• Detailed Call Summary - May 20, 2016 Bail Violation
• Detailed Call Summaries - CAD Complaints May 11, 16, 18 and 20, 2016
• Detention Records (Narrative Text) - May 21 and May 22, 2016
• Detention Record completed by WO #5 May 22, 2016 at 10:25 p.m.
• Disclosure Letter-May 31, 2016
• Incident Summary with statements from CW #4 and CW #7 (Hardcopy)
• Mugshot-May 21, 2016
• Mugshot-May 22, 2016
• Will States – WO #1 (General Occurrence Hardcopy) and the SO
• Notes of WO #1, WO #2, and WO #4
• Notes - two other officers
• Occurrences - May 9, 2016
• Occurrence – May 16, 2016
• Occurrences – May 17, 2016
• Occurrence – May 18, 2016
• Occurrence – Ma 20, 2016 (minus the SO’s statement)
• Occurrences – May 22, 2016
• Photo of the Complainant with booking information - May 21, 2016
• Photo of the Complainant - May 22, 2016
• Police involvement – the Complainant, and
• Property Items Report shown during PEW #2 Interview - May 21, 2016

On May 20, 2016, LPS were called to a residence regarding the unwelcome presence of the Complainant, who was subject to a court order not to attend and to reside at a local shelter. When the SO arrived at the residence, the Complainant was not there but was located at a nearby convenience store.

Although the Complainant had stolen a bag of chips from the store, rather than arrest him, the SO attempted to find him somewhere to stay for the night as it was clear that the Complainant was suffering from mental health issues. The shelter where the Complainant was required to stay would not accept him, however, and a second shelter asked police to remove him when it became apparent that the Complainant would not comply with its rules. As a last resort, the SO took the Complainant to the hospital, who also would not accept him under the Mental Health Act.

The SO decided to arrest the Complainant for breaching his recognizance and bring him into custody for the night. When the SO attempted to handcuff the Complainant, the Complainant resisted and a struggle ensued. The Complainant was grounded and struck in the face by the SO’s knee. Although there were no visible injuries until after the Complainant was taken to the station and placed in the cells, a visit back to the hospital the next day confirmed the diagnosis of a fractured right orbital bone.

Section 145(3), Criminal Code - Failure to comply with condition of undertaking or recognizance

145 (3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding two years; or
2. an offence punishable on summary conviction.

Section 25(1), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law:

1. as a private person,
2. as a peace officer or public officer,
3. in aid of a peace officer or public officer, or
4. by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

On May 21^st, 2016, the Complainant was arrested by the SO for Breaching his Recognizance contrary to s. 145(3) of the Criminal Code. During the course of his interaction with police, the Complainant sustained a fracture to his right orbital bone. It is alleged that the Complainant’s injury was sustained as a result of an excessive use of force by the SO.

SIU investigators were fortunate to be able to retrieve the security footage from the hospital, and as such we have it to rely upon with respect to the sequence of events the evening of May 20^th, 2016, into the morning of May 21^st. The video footage reveals the following:

11:21:09 p.m. The SO and the Complainant enter the Triage 2 area;

11:23:38 p.m. The Complainant is seen seated in the chair in front of the nurse being triaged. The nurse is not visible to the camera, but the SO is present with the Complainant throughout;

11:42:48 p.m. The Complainant leaves the nurse’s room but the SO stays and is apparently speaking with the triage nurse;

11:44:10 p.m. The SO appears to leave the triage area;

12:25:09 a.m. The Complainant re-enters the triage area followed by the SO. The Complainant proceeds to a chair in the waiting area while the SO re-enters the nurse triage area and apparently speaks with the nurse;

12:25:20 a.m. The Complainant is seated in the waiting area and gets up as the SO approaches but when the SO signals for the Complainant to come with him, the Complainant sits back down;

12:25:28 a.m. The SO approaches the Complainant and stands in front of him appearing to speak with him;

12:25:33 a.m. The SO grabs the Complainant by the sweatshirt in the shoulder area of his left arm and stands the Complainant up and they walk towards the exit; as they are almost at the exit door, the Complainant pulls his arm away from the SO and they end up in the corner;

12:25:40 a.m. The SO pushes the Complainant against the wall;

12:25:43 a.m. The Complainant is struggling against the SO and lands sideways in a chair in the corner of the waiting area struggling against the SO, who is still holding on to him and is over top of him. The SO is seen to take the Complainant to the floor in what appears to be a controlled movement;

12:25:52 a.m. The Complainant is seen face down on the floor struggling against the SO who is on his knees and trying to handcuff him. There is quite a bit of movement as the SO appears to be attempting to gain control but the Complainant is actively resistant. The SO is seen with his right knee in the back shoulder area of the Complainant trying to hold him down, while reaching under the Complainant’s torso for his left arm. The Complainant then rises up partially, moving forward on the floor and causing the SO to also move forward; one can see that the SO is having some difficulty getting purchase on the floor as his feet keep sliding out. It is clear from the various camera angles, that the SO neither punches, kicks nor strikes the Complainant while trying to handcuff him but he appears to be trying to hold him down with his knee. Security finally arrives as the SO manages to handcuff the Complainant’s right hand behind his back; and

12:27:13 a.m. The Complainant is seen being led out of the hospital in handcuffs by the SO and hospital security.

The SO agreed to make himself available for an interview with SIU investigators and advised that on May 20^th, 2016, he was dispatched to the home of the parents of the Complainant because his parents had called police when their son returned home after being released from jail. They advised the SO that they were afraid of the Complainant and did not want him in their home. Upon arrival, the Complainant was no long present at his parents’ home but was later located by the SO at a nearby plaza.

The SO advised that he believed the Complainant to be under the influence of drugs when he met him, as he spoke quickly, his thoughts were scattered and he was unable to stay focused. The Complainant advised the SO that he wanted his things from his parents’ home and that he loved his mother. The SO also became aware that the Complainant had stolen a bag of chips from the store. The SO advised that it was clear to him that the Complainant had mental health issues but it did not appear to the SO that he had sufficient grounds to apprehend him under the Mental Health Act. This was also the view of WO #4, who was present at the time. The SO learned that the Complainant was on bail conditions to reside at a local shelter, so he called there but was advised that the Complainant had not registered and they had no room to accommodate him. The SO advised that he had sympathy for the Complainant’s plight and agreed to drive him to a Crisis Walk-In Centre, which he then did.

The SO in his statement advised that he believed that the Complainant would be able to be accommodated at the Crisis Centre, and as such, he left the Complainant there and returned to his cruiser to complete the paperwork, when he received a radio call asking him to return to the Centre as they wanted the Complainant removed from the premises as he would not listen to staff.

The SO then took the Complainant to the hospital and escorted him to the triage area where the SO told the nurse, CW #7, that he believed the Complainant had mental health issues. The SO stated that CW #7 advised him that the Complainant would not be admitted under the Mental Health Act, whereupon the SO returned to his cruiser and contacted WO #1, the patrol sergeant, and advised him of the situation. He was told by WO #1 to arrest the Complainant for breaching the residence clause of his bail release. The SO was of the view that he had done everything possible for the Complainant and he was out of options.

While the SO was seated in his cruiser, he observed the Complainant exit the hospital and believed that he might be leaving. The SO then returned to the triage area with the Complainant and spoke to CW #7 who confirmed that the Complainant would not be admitted to hospital that night. At that point, the SO approached the Complainant and explained to him that he was under arrest for breaching his bail conditions and that he could return to hospital in the morning. He described the Complainant as becoming angry and using profanity, telling the SO that he was not going to leave and that he had to see the doctor. The SO advised that he placed his right hand on the Complainant and told him he was under arrest. The Complainant turned but remained in his seat, at which point he pulled the Complainant to his feet and the Complainant began to resist. The SO advised that he told the Complainant to stop resisting and that he tried to bring his arms up behind his back when the Complainant pulled away and they ended up in a corner of the room with the Complainant’s back to the SO’s chest. The Complainant continued to physically resist and told the SO that he needed to see a doctor and would not go to jail.

The SO advised that, pursuant to his police training, he felt it would be best to take the Complainant to the ground to handcuff him and that he turned to his right and grounded the Complainant in a controlled manner. The Complainant ended up on the floor with his right arm underneath his body and his left arm free. The SO advised that in the process of grounding the Complainant, the SO’s knee impacted the floor and he later sought treatment for a contusion to his knee.

The SO described the Complainant as continuing to resist once on the floor and that the SO had to knee the Complainant with his right knee in order to subdue him and get his right arm out from under his body SO he could be handcuffed. The SO advised that he targeted the Complainant’s right shoulder and upper arm area, but that due to the Complainant’s movements, his knee made contact with the Complainant’s face area and the Complainant said that the strike hurt and the SO observed his nose to be bleeding. At that point, the Complainant released his right arm, the SO completed the handcuffing process and hospital security arrived and assisted in escorting the Complainant out of the hospital.

At 12:53:17 a.m., when the Complainant was photographed at the police station, there is no injury visible whatsoever to the Complainant’s face or eye in the photo. The following evening, when he was again arrested, he was photographed at 10:22:46 p.m. and in that photo he appears to have a swollen black eye and a bandage on his face below his eye. Both PEW #1 and PEW #2, who were present when the Complainant was booked into the station, advised that they saw absolutely no sign of injury on the Complainant when he arrived, which is confirmed by the photograph taken by PEW #2. Both PEW #1 and PEW #2, however, indicate that when they observed the Complainant approximately 20 to 30 minutes later, he had an injury to the right side of his face. When the Complainant returned to hospital at 1:11 p.m. on May 21^st, 2016, his medical records indicate that his explanation for his injury was that his face hit a brick wall. On this basis, I am unable to definitively determine the source of the Complainant’s injury. Although it was assumed that it occurred during the struggle at the hospital between the SO and the Complainant, I find it unusual that there was absolutely no sign of injury when the Complainant was booked in and photographed and that CW #7, who observed the entire interaction between the SO and the Complainant, did not see the cause of the injury.[4] The medical records appear to indicate that the Complainant attributed his injury to hitting a brick wall when he was attempting to break into his parents’ home.

On a review of all of the evidence, however, there appears to be little dispute between the witnesses that there was a physical interaction between the Complainant and the SO at the hospital when the SO attempted to arrest and handcuff the Complainant for breaching his bail release. That physical interaction is fully recorded by the security video and accords with the evidence of the witnesses.

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 that at the time of the Complainant’s interaction with police he was on a condition of bail to reside at a shelter. He was in breach of that condition when he failed to register at the shelter and to reside there as directed. As such, the arrest and apprehension of the Complainant was legally justified in the circumstances.[5] On this issue, I believe it worthy of note that the SO made every effort to avoid arresting the Complainant, including overlooking the fact that he had stolen a bag of chips from the store and that he was in breach of his bail release, and only placed him under arrest as a last resort when all else had failed.

With respect to the amount of force used by the SO in his attempt to subdue the Complainant, I find that the actions of the SO, as clearly shown in the security video, were justified in the circumstances and that he used no more force than necessary to subdue the Complainant who was actively resisting the SO in his attempts to handcuff and remove the Complainant from the hospital. It is clear from the video that the SO was having difficulty gaining control of the Complainant and that his actions were in response to a fast moving situation where he was alone with the Complainant and responding to the Complainant’s active physical resistance to his arrest. The courts have been very clear with respect to the amount of force which is permissible when an officer is carrying out his lawful duties and that 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). Although I am unable to definitely determine the source of the Complainant’s injury, if it was caused by the actions of the SO in attempting to take control and effect the arrest of 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 the SO progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance and surprising strength, 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 may have suffered during the course of his arrest. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officer fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: August 15, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] CW #1 and CW #2 were involved in the initial call to the police at the residence. [Back to text]
• 2) [2] CW #3 was the security partner of CW #4. Neither were present for the arrest or handcuffing of the Complainant. CW #3 did not appear for an interview and made no notes of the incident. [Back to text]
• 3) [3] CW #5 was the supervisor of CW #3 and CW #4, and was not present for the incident. [Back to text]
• 4) [4] However, the SOdid indicate that he saw the Complainant’s nose was bleeding after the knee strike. [Back to text]
• 5) [5] I say this despite the fact that the shelter indicated to the SO that they had no space to accept the Complainant due to the bed bug situation. Although in these circumstances it may be that the Complainant could not be convicted of a breach of his bail, it does not detract from there being reasonable grounds to believe that he had breached his bail condition. [Back to text]