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 a 46-year-old man during his arrest for public intoxication on March 4, 2016 in the City of Markham.

Notification of the SIU

The SIU was notified of the incident by the York Regional Police (YRP) on March 5, 2016 at 2:00 a.m. YRP reported a 46-year-old man sustained a serious facial injury during his arrest for public intoxication a few hours earlier in Markham.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. Investigators measured and photographed the scene.

Complainant

Interviewed. Medical records were 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 Interviewed

WO #5 After a review of WO #5’s notebook entries, officer was not interviewed.

Subject officer

SO Interviewed. The SO did not provide copies of notebook entries, as is a SO’s legal right.

The scene

The complainant was injured in the driveway to 4331 14^th Avenue, the entrance to a business known as Magic Wok Restaurant. At that location, 14^th Avenue is a four lane roadway with a posted speed limit of 60 km/h and is a high volume thoroughfare.

Physical evidence

The scene was examined and thoroughly photographed. Blood stains on the driveway to the restaurant were measured and photographed.

Forensic evidence

The complainant attended Scarborough Grace Hospital following his arrest. The SIU reviewed medical records that were obtained on consent from the hospital. The medical evidence confirmed that the complainant suffered several facial fractures and had a significant quantity of alcohol in his system at the time of his arrest on March 4, 2016.

The SIU reviewed photographs of the complainant’s injuries that were taken by YRP.

Video/audio/photographic evidence

The SIU secured video recordings from the last establishment visited by the complainant before the incident.

In-cruiser dash camera footage from the SO’s cruiser captured the interaction between the SO and the complainant and this video was also reviewed by the SIU.

Communications recordings

The SIU obtained and reviewed a recording of the police communications relating to the incident.

Materials obtained from the YRP

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

• detailed call summary #16-60437
• General Occurrence
• WO notes
• photo thumbnails of scene (two contact sheets)
• provincial offences notice issued to the complainant, and
• the YRP policy entitled Processing the Offender – Arrest and Release. The policy covers the care and handling of intoxicated persons.

On March 4, 2016, the complainant spent the afternoon consuming alcohol at a licensed establishment on Kennedy Road in Markham.

At 8:30 p.m., the complainant left the establishment. He was very intoxicated.

Around 10:45 p.m., the SO viewed the complainant walking on the south side of 14^th Avenue, west of Kennedy Road. The complainant was staggering and stumbling. More than once, the complainant almost veered into the roadway and live traffic.

The SO approached the complainant, observing the man had difficulty maintaining his balance, slurred his speech, and smelled strongly of alcohol.

At 10:47 p.m., the SO informed the complainant that he was under arrest for being ‘Intoxicated in a Public Place’ pursuant to the Liquor Licence Act.

The SO tried to handcuff the complainant and had secured one of his wrists when the complainant reached away from the SO and attempted to grab a pack of cigarettes that had been placed on the hood of the police cruiser. This prevented the SO from securing the second handcuff, which was left dangling from complainant’s wrist. The complainant then grabbed the loose handcuff in his right hand and tried to pull away from the SO.

The SO delivered a knee strike to the complainant’s right thigh and grounded the man. The complainant landed on his right side with his lower body contacting the ground first. The SO completed handcuffing the complainant and, seeing the man bleeding profusely from his nose, called for paramedics.

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.

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 all of the witnesses who had contact with man on the evening of March 4, 2016, that the complainant was extremely intoxicated when he left the licensed establishment and when he was walking home. The SO was justified in his concerns for the safety of the complainant and others that he may have come in contact with, as the complainant, on a number of occasions, almost walked into traffic and on one occasion, almost walked into the side of a car. As such, apprehension of the complainant was legally justified in the circumstances pursuant to the Liquor Licence Act.

With respect to the amount of force used by the SO in his attempts to arrest and handcuff the complainant, I find on all of the evidence before me, and as clearly confirmed by the in car video, that the SO’s actions were justified in the circumstances and that he used no more force than necessary to gain control of the complainant, who was actively resisting the handcuffing and search procedure that was the SO’s duty to carry out. On this record, it is clear that the force used by the SO fell within the range of what was reasonably necessary in the circumstances to effect the complainant’s lawful detention.

In the final analysis, I am satisfied for the foregoing reasons that the complainant’s arrest and detention, and the manner in which they were carried out, were lawful notwithstanding the significant injury which he suffered. The jurisprudence is clear, 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. Nasogaluk [2010] 1 S.C.R. 6.). 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: June 22, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit