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 injury suffered by the complainant during his arrest for pointing a firearm on February 15, 2016.

Notification of the SIU

The SIU was notified of the incident by the Ontario Provincial Police ( OPP) Perth County on March 31, 2016. The OPP reported that six weeks earlier, on February 15, 2016, two officers had stopped a truck to investigate the occupants. The complainant was arrested for pointing a firearm and later released unconditionally when the police complainant changed his story.

On February 16, 2016, the complainant was diagnosed with a fractured left sixth rib anteriorly. A friend of the complainant’s notified the OPP of the injury on the complainant’s behalf.

The Team

Number of SIU Investigators assigned: 3

Complainant

71 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 Interviewed

WO # 3 Interviewed

WO # 4 Not Interviewed, but notes received and reviewed. Seized firearms from truck, post incident.

Note: A witness officer is a police officer who, in the opinion of the SIU Director, is involved in the incident under investigation but is not a subject officer.

Witness officers have a duty under Ontario Regulation 267/10 of the Police Services Act, to submit to interviews with SIU investigators and answer all their questions. The SIU is also entitled to a copy of their notes from the police service.

Subject Officers

SO # 1 Interviewed, notes received and reviewed

SO # 2 Interviewed, notes received and reviewed

Materials obtained from the OPP Perth County Detachment and the Stratford Police Service (SPS)

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

• Arrest Report,
• Event Chronologies,
• Notes of WO #1, WO #2, WO #3 and WO #4,
• Notes of SO #1 and SO #2,
• Occurrence Summary,
• Provincial Offence Notices (2) – for CW # 1, and
• Witness Statement of CW # 3.

On February 15, 2016 just before 6:00 p.m., OPP and SPS officers responded to a call that two persons driving a grey truck had been discharging firearms into a field in the vicinity of County Road 111 and Line 26 in Perth Township and had pointed a firearm at a citizen and threatened that party. As a result, the truck was located and stopped. CW #1 was the driver and the complainant was the passenger. WO #1 arrested CW #1 without incident. SO #1 and SO #2 ordered the complainant out of the truck, and then to walk backwards towards the officers, to go down onto his knees and onto his stomach. The complainant complied but did not lie on the roadway. SO #2 moved in to handcuff the complainant from behind. SO #2 was on the complainant’s right side, while SO #1 was on the complainant’s left side. The officers guided the complainant to the ground face down. The complainant was not resisting, but was fidgeting and moving around. SO #1 placed his left knee on the small of the complainant’s back to assist in controlling him. SO #2 placed his right knee on the complainant’s mid back area and secured his right arm.

As SO #1 leaned forward to grab the complainant’s wrists, the pressure on his knee increased forward and down on the complainant’s back. A “pop” or “crack” sound was heard from that area of the complainant’s back. SO #2 handcuffed the complainant’s hands behind his back and assisted him to a standing position and then placed him in the back of his police vehicle.

SO #1 then attended at CW #3’s home to take a statement. It was determined that no criminal offence had been committed and the complainant and CW #1 were unconditionally released.

The complainant attended a hospital the next day and was diagnosed with a fractured left sixth rib.

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

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) 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 February 15 ^th, 2016, OPP officers responded to a call that two male persons driving in a grey Toyota truck had been discharging their firearms into a field and had pointed a firearm at a citizen and threatened that party. Consequently, that motor vehicle was stopped and SO #1 and SO #2 were involved in removing the complainant from the motor vehicle and handcuffing him. It is alleged that during the process of apprehending the complainant, he was either kneed or kicked by one of the officers and sustained a fractured left sixth rib.

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 upon reviewing the communications tape from February 15 ^th, 2016 that a dispatch was sent out to OPP officers, all available units, for a weapons call involving an older male passenger of a Toyota  pickup truck who pointed a shot gun at a 16-year-old youth on a snowmobile. The allegations made by the 911 caller gave those officers reasonable grounds to believe that a number of Criminal Code offences had been committed, including, but not limited to, pointing a firearm and possession of a weapon for a purpose dangerous to the public peace pursuant to sections 87(1) and 88(1) respectively. As such, the apprehension of the complainant was legally justified in the circumstances. Ultimately these allegations were withdrawn, however, at the time of his arrest, officers were acting appropriately in apprehending the complainant pursuant to the information that was in their possession at that time.

SO #1 advised that he and SO #2 arrived at the location where the truck had been stopped simultaneously. Both officers exited their respective vehicles with firearms drawn, due to the nature of the allegation. Upon their arrival, WO #1 was already in the process of handcuffing and arresting CW #1. SO #1 stated that he shouted at the complainant to exit the vehicle and walk backwards towards him with his hands in the air, and he complied. He then ordered the complainant to his knees and then to lay face down on the roadway, and, although the complainant went to his knees, he would not lie down. SO #2 then moved in to handcuff the complainant, at which point the complainant began to fidget. Both SO #1 and SO #2 moved in and gently guided the complainant to the ground face down. The complainant was moving around, but not violently resisting. As a result, SO #1 placed his left knee on the small of the complainant’s back to assist in controlling him. He then leaned forward to grab the complainant’s wrists in order to assist in handcuffing him and, as he leaned forward, the pressure on his knee increased forward and down on the back of the complainant and he heard a “pop or crack” sound come from the complainant’s back. He advised that he did not hear the complainant cry out or say anything. Once the handcuffing was completed, both officers assisted the complainant to his feet and put him in the police cruiser. SO #1 claims that he asked the complainant if he was okay, and he indicated that he was. SO #1 advised that he did not intentionally cause injury to the complainant, but concedes that in leaning with his knee on his back, he may have inadvertently done so.

SO #2’s statement to investigators is consistent with that of SO #1, with a few additions. SO #2 advised that he also placed his right knee on the mid back area of the complainant while trying to secure the handcuffs. Further, he advised that when SO #1 placed his knee on the back of the complainant while securing his left arm, he heard a “pop” noise from his back and the complainant said “aaahhh.” SO #2 believed, as did SO #1, that SO #1’s applying pressure to the complainant’s back may have caused the injury. He further advised that the complainant told him later, after he had been released, that “When you guys had me on the ground that really hurt.”

No other officers present at the scene had any physical contact with the complainant.

I accept on all of the evidence that the complainant was either injured when SO #1 put his knee into his back to stop him moving so that he could be handcuffed, or a possible injury he had earlier sustained was further aggravated. The statements of both SO #1 and SO #2 that when SO #1 had his knee in the complainant’s back, they heard a “pop or crack”, and SO #2’s statement that the complainant let out a groan of pain, are consistent with this version of events.

With respect to the amount of force used by officers in their attempts to arrest and handcuff the complainant, on a review of all of the evidence, I find that their actions were justified in the circumstances and that they used no more force than necessary to effect the arrest of the complainant. Based on the information officers had at the time, that they were apprehending two armed men who had allegedly pointed a firearm at a 16-year-old and were alleged to have been discharging their firearm, the actions of the officers in executing a high risk apprehension at gun point and securing both gentlemen as quickly as possible was completely justified.

In the final analysis, although I am satisfied that SO #1 either caused or aggravated an injury to the complainant’s rib when he put his knee into his back to keep him still while trying to handcuff him, I find that pursuant to section 25(1) of the Criminal Code, the officers involved used no more force than was reasonably necessary in the execution of their lawful duties in apprehending an allegedly armed man who had already pointed a firearm at a youth. 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. The jurisprudence makes clear that while their actions must be commensurate with the task at hand, police officers cannot be expected to measure their responsive force to a nicety ( R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.)) or to be judged against a standard of perfection ( R. v. Nasogaluak, [2010] 1 S.C.R. 206). 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.

Date: July 24, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit