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 an incident that took place on Saturday, March 5, 2016 at 2:15 a.m. between the complainant and Halton Regional Police Service (HRPS) officers. Later that day, the complainant went to the hospital where he was diagnosed with a broken nose.

Notification of the SIU

The SIU was notified of the incident by the complainant on March 9, 2016 at 11:00 a.m.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant

35 year-old male, interviewed

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

Subject officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.

The scene

The incident took place at the Lourice Restaurant, in the northern quadrant of the intersection of Trafalgar Road and Marlborough Court in Oakville. The entrance to the restaurant is on the south east side of the building and faces onto the parking lot of the strip mall. Entrance to the parking lot can be accessed from Marlborough Court or from Trafalgar Road.

Video/audio/photographic evidence

The SIU searched the area for any video or audio recordings, and photographic evidence, of the incident in question, and found none.

Materials obtained from HRPS

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

• arrest booking report
• event chronology
• full criminal brief (Crown brief)
• involved officer list
• WO notes
• occurrence report
• HRPS policy for use of force
• HRPS policy for arrest and search
• prior HRPS involvement
• prisoner custody record and log
• prisoner property log, and
• roster for Platoon 1-March 2016.

In the early morning hours of Saturday, March 5, 2016, the complainant was at the Lourice Restaurant in Oakville when he became involved in arguments with multiple individuals. As a result, 911 was called and HRPS officers were dispatched.

The complainant was outside the restaurant when police arrived. He appeared to be intoxicated and he was unsteady on his feet and his speech was slurred. In addition, he appeared agitated and aggressive, and continued to yell. Despite being told by WO #1 to stay calm, the complainant kept walking towards the officer in an aggressive manner. He would not step back when told to do so.

WO #1 attempted to arrest the complainant for public intoxication, but the complainant resisted arrest. Other police officers responded to WO #1’s request for assistance. The police officers assisted in securing the complainant, bringing him to his feet and walking him towards WO #1’s cruiser. While at the side of the police cruiser, the struggle continued. In order to gain compliance and to avoid the assaultive behavior of the complainant, the SO delivered two to three palm heel strikes to the face of the complainant. As the complainant continued to resist, the SO brought the complainant to the ground.

The complainant was released from the police station at 8:30 a.m. and went to the hospital later that day where he was diagnosed with a broken nose.

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.

The Criminal Code of Canada, section 25(1) provides that police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Firstly, in dealing with the lawfulness of the complainant’s apprehension, I have no difficulty in finding on review of all the evidence that the complainant, during the relevant time, was intoxicated, belligerent and openly resisting police officers in the execution of their duties in trying to arrest him for being intoxicated in a public place. Although one or two of the civilian witnesses did not believe the complainant to be intoxicated[1], several certainly believed him to be so, including one who put him as an eight or nine on a scale of one to ten. As well, on the accounts of all of the civilian witnesses, the complainant was loud, abusive and erratic in his behaviour. I find that WO #1 had more than reasonable grounds to believe, on his observations of the complainant, that he was indeed intoxicated and as such he was lawfully entitled to apprehend him under the Liquor Licence Act.

With respect to the amount of force used by officers in their attempts to subdue the complainant, one has to consider what the officers were dealing with at the time, in order to determine if the amount of force used was justified or not. For instance, prior to the arrival of the police, the complainant yelled out that he was a soldier and threatened to kill CW #4 and everyone in the restaurant. All of the civilian witnesses, as well as the officers on scene, confirmed the complainant was actively resisting his arrest and handcuffing. He is variably described as shouting, threatening, struggling, yelling obscenities and flinging himself forward and waving his arms about as WO #1 tried to gain control. As such, I am satisfied that the complainant was loudly and actively resisting his arrest by police and, as such, was taken to the ground in order for the officers to gain control and to handcuff him and later, two to three palm heel strikes were delivered to his face when he refused to cooperate in a search and was spitting on officers.

Although I find the complainant’s injury was caused by the HRPS officers in their attempts to apprehend and handcuff the complainant, I am unable to positively determine at what point the injury occurred. Although it is possible that the complainant was injured on either of the occasions that he was taken to the ground, I find on the weight of the evidence that that the two or three palm heel strikes to the face delivered by the SO is the most likely cause of the injury. 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 intoxicated, resistant and combative male. I find that the degree of force with which the complainant was taken to the ground and in the delivery of the palm heel strikes to his face fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention. Particularly in light of the fact that the jurisprudence makes clear that while their actions must be commensurate with the task at hand, police officers are not expected to measure their responsive force to a nicety or to be judged against a standard of perfection.

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. I am, therefore, satisfied on reasonable grounds on this record that the degree of force exercised by the officers was justified in law and thus there are no grounds for proceeding with charges in this case.

Date: June 29, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Although one of these witnesses indicated that the complainant had never previously behaved so erratically. [Back to text]