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SIU Director’s Report - Case # 17-OCI-164

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Mandate of the SIU

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.

Information restrictions

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.

Mandate engaged

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 a 69-year-old man during his arrest on June 29th, 2017.

The Investigation

Notification of the SIU

At approximately 8:20 a.m. on June 30th, 2017, the SIU was notified by the Peterborough Police Service (PPS) of the serious facial injury sustained by the 69-year-old Complainant during the booking process at the PPS station the previous evening.

The PPS reported that on June 29th, 2017, at 7:30 p.m., two PPS police officers arrested the Complainant for public intoxication at Fleming Park in the City of Peterborough. The Complainant was taken to the station booking room where his handcuffs were removed. While the Complainant was being searched, he suddenly struck the SO in the face. The SO then punched the Complainant in the face once. The Complainant was not taken to hospital until the following morning,when he was diagnosed with a fractured nose and the SIU was notified.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

None located as the incident occurred inside the police station.

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed

Subject Officers

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


Incident Narrative

On June 29th, 2017, at approximately 7:15 p.m., the Complainant was arrested by the SO in a public park in the Town of Peterborough for being intoxicated in a public place contrary to the Liquor Licence Act.

The Complainant was transported to the station where he was brought into the booking room, in front of the booking sergeant, to be searched and booked into the cells; his handcuffs were removed by the SO.

While the SO was searching the Complainant, and in the process of removing his belt in order that he could not use it to harm himself while in custody, the Complainant struck the SO in the face. The SO immediately responded with two rapid punches, the first of which did not make contact with the Complainant, while the second landed on his nose. The Complainant was then taken to the floor where he was restrained and it was observed that he was bleeding from the nose and paramedics were called to the station.

The following day, the Complainant was taken to hospital and treated.

Nature of Injuries / Treatment

The Complainant had his nose x-rayed, which confirmed a minimally displaced nasal bone fracture.

Evidence

The Scene

The incident occurred in the booking area of the PPS main building at 500 Water Street. The incident was captured on audio/videotape.

Video/Audio/Photographic Evidence

The Booking Room Videotape

PPS DVD #2, Booking Room Video with Audio 15:44 minutes in length


Timer on the video commenced at 00:00 minutes

00:01 minutes

The booking room is not occupied. The door leading from the sally port into the booking room is propped open and voices can be heard coming from the sally port. The Complainant is shouting obscenities at the police officers and his speech is very slurred.

00:24

The booking sergeant enters the camera frame and is standing at a small stainless steel booking stand which is permanently affixed to the opposite wall of the doorway leading from the sally port to the booking room. A man’s voice can be heard coming from the sally port saying, “Are you going to fight us?” and the Complainant can be heard responding, “Yes.”

01:32

WO #2 escorts the handcuffed Complainant into the booking room and up to the booking sergeant who is standing behind the booking stand. WO #2 is on the Complainant’s left side holding onto his left arm with his right hand and the SO is to the right of the Complainant. All parties are standing to the left of the booking sergeant. The Complainant is unsteady on his feet.

01:56

The SO asks the Complainant if he is going to behave himself after he takes the handcuffs off of him and the Complainant responds with obscenities; his speech is very slurred.

02:00

The SO, while still standing to the right of the Complainant, removes the handcuffs and the Complainant immediately leans forward resting his forearms on the booking stand. WO #2 takes hold of the Complainant’s left hand and holds it down on the stand to retain control of it. The booking sergeant remains behind the stand and all three parties are still to the sergeant’s left.

02:59

The SO reaches across in front of the Complainant and removes a watch/wristband from the left wrist of the Complainant. The SO then does the same with the right wrist, and removes the Complainant’s eyeglasses and a necklace from around his neck, all without incident.

04:04

The SO, still standing to the right of the Complainant, reaches down and is in the process of removing the Complainant’s belt while the Complainant is still leaning forward with both forearms resting on the stand and WO #2 is still holding onto, and controlling, the Complainant’s left hand.

04:12

The Complainant looks down at the SO, who is in the process of removing the Complainant’s belt, and asks, “What the fuck are you doing?” The Complainant then suddenly lifts up his free right open hand and backhands the SO, striking him somewhere in the right side of his face.

04:15

WO #2 immediately pulls the Complainant back and away from the SO, while the SO simultaneously advances and immediately delivers two rapid punches with a closed right fist, the first of which does not appear to make contact, while the second lands on the Complainant’s nose. The SO and WO #2 then take the Complainant to the floor, backwards, where he is restrained by both police officers.

04:24

The SO advises the Complainant that he is now going to be charged with assaulting a police officer, commenting, “For punching me in the face.”

05:23

The Complainant is brought to a seated position by the SO and the Complainant can be seen bleeding from his nose.

06:13

The Complainant comments to the SO, “You punched me in the face,” and the SO responds with “Yes, I did punch you in reaction to your punch, I punched you.”

06:59

WO #2 comments to the booking sergeant, “We should release him on a PTA (promise to appear release), either that or unconditionally. I don’t want to sit up all night with a fucking drunk.”

08:40

WO #2 asks the booking sergeant if he has called an ambulance and the booking sergeant replies that he has.

09:09

While still seated on the floor of the booking room, bleeding, the Complainant comments to the SO, “I’m going to charge you,” and WO #2 interjects saying to the Complainant, “No, you are going to be charged. You don’t punch police in the face, you are right on camera and you don’t have a leg to stand on.”

10:09

WO #2 then says to the Complainant, “Yea, that’s what happens when you fight with the police.”

Communications Recordings

The police transmission communications recording was obtained and reviewed.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

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

  • The arrest report;
  • BBM Conversation between WO #1 and the Liaison Officer;
  • Duty Roster Report;
  • Event Details and Occurrence Summary regarding the transport of the Complainant from the hospital to the PPS;
  • Event Details Report;
  • Notes of WO #s 1 and 2;
  • Occurrence Summary;
  • PPS Officers Call Signs and Qualifications;
  • Prisoner Record of Detention; 
  • Procedure: Use of Force; and
  • The booking room video.

Materials and documents obtained from other sources:

  • Medical records of the Complainant.

Relevant Legislation

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.

Section 27, Criminal Code of Canada -- Use of force to prevent commission of offence

27 Every one is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or
(b)To prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

Section 34, Criminal Code - Defence of Person -- Use of threat of force

34 (1) A person is not guilty of an offence if
(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 
(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) The act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon; 
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and 
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Section 270(1), Criminal Code -- Assaulting a peace officer

270 (1) Every one commits an offence who 
(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;
(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
(c) assaults a person
(i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
(ii) with intent to rescue anything taken under lawful process, distress or seizure.

Section 31(4), Liquor Licence Act -- Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,
(a) In a place to which the general public is invited or permitted access; or
(b) In any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

Analysis and Director's Decision

On June 29th, 2017, the Subject Officer (SO) and Witness Officer (WO) #2 of the Peterborough Police Service (PPS) were called to Fleming Park in the Town of Peterborough by the Peterborough Paramedic Service, which was requesting assistance dealing with an unconscious man. Upon police arrival, the Complainant, who was by then conscious, was observed to be swaying, had an odour of alcohol on his breath, his speech was slurred, and his eyes were bloodshot. Two 375 millilitre bottles of liquor were located beside the Complainant.

The police officers formulated reasonable grounds to believe that the Complainant was intoxicated and he was arrested for being intoxicated in a public place contrary to the Liquor Licence Act (LLA). At approximately 7:30 p.m., the Complainant was transported to the police station where he was taken in front of the booking sergeant in order to be booked into the station. During the course of being searched and removing any items that were on his person that could be used to harm himself or others, the Complainant was injured. He was later taken to hospital by ambulance, where he had X-rays taken which determined that he had sustained a minimally displaced nasal bone fracture.

During the course of this investigation, in addition to the Complainant, no other civilian witnesses were interviewed, as the incident in question took place within the PPS station; two other police witnesses were, however, interviewed. The subject officer, the SO, declined either to be interviewed or to provide his memorandum book notes for review, which is his legal right. While the Complainant, in his interview, appeared to be confused as to when and where he had sustained his injury, providing instead a version of events which was positively disproven by the physical evidence, and the SO declined to be interviewed, the booking hall was, fortunately, equipped with a video recording system and the entire incident during which the Complainant was injured was video recorded and available for review. On that basis, there can be no dispute as to the sequence of events.
The video does not have a time stamp synchronized with the 24 hour clock, but reveals that at 00:01 minutes into the video, the Complainant is seen being brought into the booking room. He is heard shouting obscenities at police and his speech is very slurred. He is obviously intoxicated.

An officer is heard to ask the Complainant if he is going to fight the police, and he responds in the affirmative.

The Complainant is then asked by the SO if he will behave himself if the officer removes the handcuffs, and the Complainant responds with various obscenities; his speech is again notably slurred.

At 2:00 minutes into the video, the SO removes the handcuffs from the Complainant and the Complainant leans against the booking stand, presumably due to his unsteady gait.

At 2:59 minutes into the video, the Complainant is being searched and various items removed from his person by the SO, in order that he can be safely booked into the cells. As the SO is seen to be removing the Complainant’s belt from his trousers, the Complainant says to the SO, “What the fuck are you doing?” and then, without warning, raises his right hand and backhands the SO in the face.

Immediately following the striking of the SO, WO #2 simultaneously pulls the Complainant back and away from the SO, while the SO is seen to deliver two closed fisted punches with his right hand, with the first punch not making contact, while the second lands on the Complainant’s nose and it starts to bleed.

The Complainant is then taken to the floor where he is restrained.

When the Complainant comments to the SO that, “You punched me in the face,” the SO is heard to respond, “Yes, I did punch you. In reaction to your punch, I punched you.”

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, there is no dispute that the Complainant was arrested for being intoxicated in a public place pursuant to the LLA.

While the Complainant was adamant that he was not intoxicated at the time of his arrest, I find that the video establishes, with a fair degree of certainty, that he was quite intoxicated. Additionally, I note that the initial call from the paramedics was for an unconscious male; that the Complainant is described by the booking sergeant as being intoxicated, with a strong smell of alcohol on his breath, agitated, belligerent and shouting obscenities; and that the Complainant had a total lack of recall of the incident under investigation, all pointing to the fact that he was severely intoxicated. As such, it is clear that the SO and WO #2 had ample grounds on which to arrest the Complainant for being intoxicated in a public place and, due to his extreme condition and having been found unconscious by paramedics, they had ample grounds to believe that he was unable to care for himself. As such, the arrest and detention of the Complainant was legally justified in the circumstances.

With respect to the one punch delivered by the SO which made contact with the Complainant’s nose, I note that the punch was delivered almost immediately upon his having been struck in the face by the Complainant, and that once the Complainant was restrained, no further force was used against him.

Pursuant to s. 25 (1), the SO will be exempt from prosecution if he acted on reasonable grounds, and he only used as much force as was necessary for that purpose.
Furthermore, pursuant to s. 27 of the Criminal Code, any person is ‘justified in using as much force as is reasonably necessary to prevent the commission of an offence’. In this case, the offence which the SO was acting to prevent was a further assault upon himself, a police officer.

And finally, pursuant to s. 34 (1) of the Criminal Code,

34 (1) A person is not guilty of an offence if

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) The act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Pursuant to these sections, it is clear that force had been used against the SO by the Complainant (s.34(1)(a)), and that the Complainant was capable of continuing to use force against the SO, if not subdued. In making this finding, I have considered not only the fact that the Complainant assaulted the SO, but also that he had made it quite clear, early on in their interaction, that he intended to fight the police.

Furthermore, based on the fact that the punch from the SO was delivered immediately upon his being struck by the Complainant, it appears reasonable to believe that the SO acted to defend or protect himself against any further use of force by the Complainant (s. 34(1)(b)) and that the single punch from the SO, taking into account the factors for consideration above, appeared reasonable and proportionate to the threat posed by the Complainant (s.34(1)(c)) at the time.

On these facts, while the Complainant’s nose was unfortunately broken by the punch delivered by the SO, I find that the SO’s use of force was measured and directly proportionate to the threat posed by the Complainant and, after the single punch that made contact with the Complainant, following which the Complainant was taken to the floor and did not continue to pose a threat, no further force was used. On this basis, I cannot find that the SO resorted to an excessive use of force in these circumstances.

In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R v Nasogaluak [2010] 1 S.C.R. 206, as follows: 
 
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

In the final analysis, I am satisfied for the foregoing reasons that the single punch delivered by the SO, which made contact with and ultimately broke the Complainant’s nose, did not amount to an excessive use of force in these circumstances and his actions fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.


Date: May 8, 2018




Tony Loparco
Director
Special Investigations Unit