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 reportedly sustained by an 18-year-old man following his arrest on June 24^th, 2017.

Notification of the SIU

At approximately 10:52 a.m. on June 25^th, 2017, the Ontario Provincial Police (OPP) reported the custody injury of the Complainant.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian witnesses

There were no civilian witnesses to the incident, as it occurred inside the police cells at the OPP detachment.

Witness officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

Subject officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right

On June 24^th, 2017 at approximately 10:31 p.m., the Complainant was arrested for being intoxicated in a public place contrary to the Liquor Licence Act. After his arrest, the Complainant was lodged in a cell at the OPP detachment. The Complainant removed his shirt and put it around his neck in the cell. OPP officers went into the cell to retrieve the shirt, in order that the Complainant not harm himself, but the Complainant refused to give them the shirt and resisted, causing a struggle between himself and the police officers over the shirt.

Nature of injuries / treatment

On June 25^th, 2017, at 7:51 a.m., the Complainant went to a medical clinic where he was examined and x-rays were taken of his left elbow and the third finger on his right hand. The Complainant was diagnosed with a non-displaced fracture involving the mid to distal aspect of the middle phalanx of the second digit of his right hand, with associated soft tissue swelling.

The scene

The scene was cell #6 at the Sioux Lookout OPP detachment. The SIU investigators received custody video that included the interaction in the cell.

Forensic evidence

No submissions were made to the Centre of Forensic Sciences.

Video/audio/photographic evidence

OPP custody video

The OPP provided video of the Complainant while he was in custody. There was no audio on the recording.

At 11:55 p.m., the Complainant was escorted to the cell area by two male OPP officers and the cell door was locked. On several occasions, the Complainant struck the wall in the cell with his hands and banged his fists against the wall. He constantly paced around the cell and kicked the cell door. Every ten to 15 minutes, various OPP staff conducted a physical check on the Complainant in the cell and looked in from the cell door.

At 4:21 a.m., the Complainant repeatedly banged his body against the cell door and kicked the cell door. He took his shirt off and threw it on the floor. At 4:48 a.m., he picked his shirt up from the floor, rolled it into a long roll, and tied the rolled shirt around the front of his neck.

At 4:49 a.m., a male OPP employee went to the cell door then left. Two male OPP officers (now known to be WO #2 and the SO) arrived at the cell door. The Complainant removed the shirt from around his neck and had a discussion with the police officers.

At 4:52:08 a.m., two more male OPP officers (now known to be WO #1 and WO #3) arrived at the cell door and four police officers (now known to be WO #3, WO #2, the SO, and WO #1) entered the cell. The Complainant was sitting on the bench in the cell. WO #1 entered the cell and stood in front of the Complainant. WO #2 went and held the Complainant’s right arm and WO #1 went and held the Complainant’s left arm. WO #3 stood back. The SO forcefully pulled the shirt from the Complainant’s hand. The Complainant held out his right hand and fingers.

At 4:52:36 a.m., the SO walked away carrying the shirt and WO #2 and WO #3 left the cell. At 4:53:12 a.m., the SO and WO #3 returned to the cell with a white safety gown. Either the SO or WO #3 put the gown on over the Complainant’s head and the Complainant struggled.

At 4:54:20 a.m., there was a struggle as the police officers removed the Complainant’s clothing and put him in the safety gown. At 4:54:32 a.m., the Complainant stood up and the four police officers had physical control of him.

At 4:54:36 a.m., the Complainant’s hand was in the air with his left hand in a fist and his right hand was open. At 4:54:41 a.m., the third finger on the Complainant’s right hand was sticking up in the air.

At 4:55:41 a.m., the Complainant’s pants were thrown outside the cell. WO #1 was holding the Complainant’s right elbow and wrist. WO #2 was holding the Complainant’s left elbow and wrist.

At 4:56:09 a.m., the four police officers removed the remaining clothing from the Complainant and threw it out of the cell. At 4:56:31 a.m., the four police officers left the cell and locked the door. The Complainant sat on the cell floor and looked at his right hand.

At 4:56:58 a.m., a police officer approached the cell door and the Complainant showed the police officer his right hand. At 4:59:50 a.m., a police officer approached the cell door and the Complainant pointed to his right hand and spoke to the police officer.

At 6:24:56 a.m., the Complainant was released from the cell by two police officers, WO #2 and the SO.

Communications recordings

OPP Computer-Aided Dispatch (CAD or recordings log)

The CAD was reviewed and the information was consistent with the statements provided by the witness officers.

Materials obtained from Police Service

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

• Event Details Report
• Invoice from the medical clinic re: the Complainant’s assessment and treatment, and
• Notes of WO #s 1-3

The SIU also obtained and reviewed the Complainant’s medical records.

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 Licence Act – Intoxicated in a public place

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.

Section 175 (1), Criminal Code – Causing a Disturbance

175 (1) Every one who

1. not being in a dwelling-house, causes a disturbance in or near a public place,
   1. by fighting, screaming, shouting, swearing, singing or using insulting language,
   2. by being drunk,
   3. by impeding or molesting other persons,

Is guilty of an offence punishable on summary conviction.

On June 24^th, 2017 at approximately 10:00 p.m., or shortly thereafter, an employee of an inn in Sioux Lookout called 911 to request an ambulance to attend to a man who was present at the inn, but was not a customer. The caller reported that the Complainant was acting strangely and that he smelled of alcohol, but was not intoxicated. In response, the Sioux Lookout Detachment of the Ontario Provincial Police (OPP) dispatched the SO, WO #2, WO #3 and WO #1 to the inn and the Complainant was subsequently arrested for being intoxicated in a public place contrary to the Liquor Licence Act. The Complainant was then transported to the detachment where he was lodged in a cell for the night. During the course of his stay, the Complainant was observed to have placed his shirt around his neck and, as a result of a concern that the Complainant intended to harm himself, police forcefully removed the shirt from the Complainant. The Complainant was later transported to hospital and diagnosed with a fractured finger.

During the course of this investigation, only one civilian witness was interviewed, that being the complainant; since the interaction leading to his injury occurred in the police cells, there were no other civilian witnesses present. Investigators also interviewed three witness officers and reviewed their memorandum book notes. The subject officer declined either to provide a statement or his notes, as is his legal right. SIU investigators also had access to video of the cell area which captured the entire incident. Save for the disagreement as to whether or not the Complainant was intoxicated at the time of his arrest, there is no dispute as to the facts.

The Complainant was staying at an inn on June 24^th, 2017, as he had attended Sioux Lookout for medical treatment. During the night, the Complainant attended a second inn to see a friend, but was not allowed entry. The Complainant had consumed alcohol earlier, but did not consider himself to be intoxicated. When the Complainant began to suffer a panic attack, an employee of the inn called 911.

WO #1, in his statement, indicated that upon his arrival, the Complainant was banging on a door at the inn and indicated that he was trying to contact a friend who was staying there. WO #1 advised that he observed the Complainant to have glossy eyes and slurred speech. The Complainant told him that he was staying in Sioux Lookout to attend counseling and that he was sad and upset because his escort had left him alone and he felt that no one cared about him. WO #1 formed the opinion that the Complainant was exhibiting signs of intoxication. WO #1 advised that he was aware that the Complainant would be unable to return to the inn where he was staying, as they had a policy that they would not allow intoxicated persons to stay at their establishment.

The SO and WO #2 then attended shortly thereafter, and the Complainant was arrested for being intoxicated in a public place for his own safety, as it was the opinion of police that he could not care for himself. The Complainant indicated that he was under the impression that the police were going to help him, so he voluntarily entered the police cruiser, but instead, he was taken to the detachment and placed in the “drunk tank”. WO #2 indicated that both during the arrest and thereafter, until the Complainant was lodged in the cell, he was compliant and cooperative and did not have to be handcuffed.

Once in the cell, the Complainant made the guard aware that he suffered from PTSD; he later suffered a panic attack while in the cell.

WO #2 advised that at 3:29 a.m., he was advised by a guard that the Complainant had removed his shirt and was acting crazy. WO #2 and the SO both attended the cell and WO #2 noted that the Complainant’s demeanour had significantly changed from the time of his arrest: the Complainant had thrown his food into the hallway, and WO #2 observed food both on the wall and on the floor; and the Complainant was breathing heavily, pacing in an agitated manner and fidgeting with his shirt, which he held in his hands. According to WO #2, they told the Complainant to relax and calm down and asked him to give up his shirt so he could not hurt himself with it. The Complainant refused to give up his shirt at that time and the police officers then left the cell area.

The Complainant openly conceded that during the course of the night, he tried to choke himself with his shirt as he had heard that if he tried to stop his breathing for a moment, the panic attack would stop.

At 3:29 a.m., WO #2 became aware that the Complainant had put his shirt around his neck and was strangling himself, and WO #2 and the SO went to the cell. WO #2 again asked the Complainant for his shirt, as it appeared that he had tried to harm himself with it, but the Complainant refused and told the officers they would have to enter the cell and take it from him. The Complainant advised that he would give them the shirt if they agreed to leave the cell door open as his PTSD was as a result of being confined in a small area in the past. WO #2 was of the view that he could not leave the cell door open, as the Complainant was in custody.

WO #1 and WO #3 then arrived at the cell area and, when the Complainant refused to give up the shirt, WO #2 opened the cell door. The Complainant then retreated to the corner of the cell and sat on the bed with his shirt in his left hand.

WO #2 indicated that he entered the cell area and he took the Complainant’s right arm, while the SO took his left arm, and they tried to loosen the grip the Complainant had on his shirt, but they were unable to do so. WO #1 then entered the cell and took the Complainant’s left arm while WO #2 moved the Complainant’s left hand off of the shirt, leaving the Complainant only grasping the shirt in his right hand. The SO then pulled the shirt from the Complainant’s right hand and the Complainant immediately complained that the middle finger on his right hand was injured. WO #1 advised that he observed that the Complainant’s middle finger was bent.

The Complainant advised that he struggled with the officers because he did not want to give them the shirt, but they took the shirt and the Complainant immediately knew his middle finger had been broken.

The Complainant was then placed in a safety gown and had all of his own clothing removed, in order to prevent him from doing harm to himself. The Complainant was then transported to hospital where it was discovered that his finger had been fractured.

This version of events is consistent between the Complainant and the three police officers who provided statements and is fully confirmed by the video from the cell area. The cell video also verifies that the Complainant was checked every ten to 15 minutes, which clearly confirms that the police officers were concerned about the Complainant’s well-being, either due to his level of alcohol consumption or his mental health issues, or most likely, a combination of the two.

Although the video also shows the Complainant repeatedly striking the wall with his hands, banging his fists against the walls and kicking and banging his body against the cell door, it is very clear that he was not injured until the SO pulled the shirt from his grip, as the Complainant is immediately seen holding out his right hand and fingers, establishing that he had been injured at that time.

On all of the evidence, I have no difficulty in accepting that the Complainant’s finger was fractured when the SO forcefully pulled the shirt from the Complainant’s grasp. The only question remaining then is whether or not this action constituted an excessive use of force on the part of the SO.

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. I turn first to the lawfulness of the Complainant’s apprehension. While there is a dispute between the evidence of the Complainant and that of the police officers as to whether or not the Complainant was actually intoxicated at the time of his arrest, with the inn employee also being of the view that while the Complainant had been consuming alcohol he was not intoxicated, on the observations of WO #1 that the Complainant’s eyes were glossy, his speech was slurred, his behaviour was erratic, and he seemed sad and upset, there can be little dispute that WO #1 had reasonable grounds to believe that the Complainant was intoxicated in a public place contrary to s.31(4) of the Liquor Licence Act.

Additionally, as the 911 caller had requested the Complainant’s removal from the inn, and WO #1 was aware that the Complainant would not be allowed back to the inn where he had been staying, due to his condition, there were really no other options available to police to ensure that the Complainant did not continue to cause a disturbance and/or cause harm to himself. Furthermore, I have no hesitation in finding that police would also have had reasonable grounds to arrest the Complainant for causing a disturbance in a public place contrary to s.175 of the Criminal Code. As such, the arrest of the Complainant was legally justified in the circumstances and he was lawfully detained in the police cells at the time that he sustained his injury.

With respect to the amount of force used by officers in their attempts to remove the Complainant’s shirt from his grasp and thereby prevent him from possibly taking his own life, I find that their behaviour was more than justified in the circumstances and that they used no more force than necessary to ensure that the Complainant could not harm himself.

It is clear based not only on the video evidence, but also on the undisputed evidence of all three police officers and the Complainant, that at no time did any police officer punch, strike, or kick the Complainant, and that the entirety of the force used by the officers consisted of their holding onto the Complainant’s arms while forcefully pulling the shirt from his hands. Based on the video evidence, wherein the Complainant was physically checked every ten to 15 minutes, it is clear that police were taking all necessary precautions to ensure the Complainant’s safety while he was in their care; they would have been negligent in their duties had they not removed the source by which the Complainant had for whatever reason already attempted to hang himself.

In conclusion, I have no hesitation in finding that the Complainant’s finger was broken, when, after failed negotiations to get the Complainant to voluntarily give up the shirt with which he had already tried to choke himself, the SO used no more than his own physical strength to pull the shirt from the Complainant’s hand while the Complainant equally used all of his physical strength to hold onto the shirt, ultimately resulting in his finger being fractured.

I find that the actions of the SO were necessary and that he used no more force than was required to remove the shirt and ensure the Complainant’s safety. In coming to this conclusion, I have considered the law as set out by our highest courts 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.). As such, 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 that there are no grounds to believe that any of the police officers committed a criminal offence during their interaction with the Complainant and that they were acting at all times in his best interests. Based on this finding, no charges will issue.

Date: June 8, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit