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SIU Director’s Report - Case # 18-OCI-001

Contents:

News Releases for this Case:

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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 sustained by a 60-year-old man during his arrest on December 31, 2017.

The Investigation

Notification of the SIU

At approximately 3:00 a.m. on January 1, 2018, the Belleville Police Service (BPS) notified the SIU of the serious injury sustained by the Complainant.

The BPS reported that on December 31, 2017 at 7:30 p.m., the Complainant called the police to his residence in the City of Belleville because he had cut himself.

When officers arrived, the Complainant attempted to hit an officer with a broom stick. The broom stick was taken away but the Complainant then grabbed a large butcher knife and the officers deployed a Conducted Energy Weapon (CEW).

The Complainant was taken to hospital and, at 3:20 a.m. on January 1, 2018, the BPS learned that the Complainant had sustained a skull fracture.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

An SIU forensic investigator photographed and measured the scene, but it had already been cleaned prior to notification, limiting its relevance.

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

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

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

Incident Narrative

On the evening of December 31, 2017, the Complainant consumed a large quantity of alcohol and became engaged in a verbal altercation with his female partner. During that exchange, he struck himself in the forehead with an empty drinking glass with sufficient force to break the glass and lacerate his head, causing him to bleed profusely. The Complainant then called 911 for assistance.

The SO and the paramedics arrived at the residence at the same time and found the Complainant lying on the kitchen floor, crying, with a towel over his head. He responded to their presence by immediately standing up and taking hold of a broom, holding it with the bristle end toward himself and swinging the stick end in the direction of the paramedics and the SO. The SO was able to grab the broom and pull it from the Complainant’s grasp. The Complainant then opened a kitchen drawer, containing a quantity of knives, and was reaching for one when the SO deployed his CEW, with the probes striking the Complainant in the torso and making contact with his bare chest.

The Complainant then fell backwards, striking the edge of a dining room table as he fell. Other police officers arrived at that time and the Complainant was handcuffed and assisted to his feet. Police officers then noted that the Complainant had a laceration to the back of his skull.

The Complainant was transported by ambulance to hospital and assessed.

Nature of Injuries / Treatment

The Complainant sustained several fairly serious lacerations to his head. The lacerations on his forehead appeared to have been self-inflicted, while the laceration on the right rear of his head was consistent with falling backwards and striking his head against a hard object.

Medical staff at the first hospital where the Complainant was seen were concerned that the Complainant had suffered a fractured skull and he was intubated and sedated to keep him from causing further injury. The BPS was advised of the medical findings relating to the Complainant at that time, and they in turn notified the SIU.

The Complainant was then transferred to a second hospital where it was determined that he had not, in fact, sustained a skull fracture, but that he possibly had a concussion with a loss of consciousness noted. The Complainant demanded that he be released from hospital while he was still intubated and catheterized, following which he signed himself out of hospital against medical advice.

Evidence

The Scene

The scene was in a two bedroom walk-up apartment on the third floor of an apartment complex. It was rented by the Complainant’s domestic partner and shared by the Complainant.

Inside the apartment, and immediately to the right of the front entrance, a galley kitchen was located which opened to an eating area on the south side of the apartment. There was an L-shaped living room and two bedrooms and a bathroom connected by a hallway running east and west from the front door to the rear of the unit.

Physical Evidence

One of the knives recovered that had blood stains on it.

One of the knives recovered that had blood stains on it.

The broom wielded by the Complainant.

The broom wielded by the Complainant.

Blood staining on the carpet inside the apartment near the table upon which it was reported that the Complainant had struck his head when he fell after the SO deployed his CEW.

Blood staining on the carpet inside the apartment near the table upon which it was reported that the Complainant had struck his head when he fell after the SO deployed his CEW.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

No recordings or photographs were located.

Communications Recordings

The initial call from the ambulance communications centre requesting police assistance on a call, and the subsequent police transmissions communications recordings, were obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the BPS:
  • Background Event Chronology;
  • Event Details Report;
  • Communications Recording of Call for Assistance from Ambulance;
  • Police Transmission Communications Recording;
  • Notes of WO #s 1-3;
  • Occurrence Summary;
  • Previous Incidents involving the Complainant;
  • Procedure: Use of Force; and
  • Procedure: Arrest.

The SIU obtained and reviewed the following materials and documents from other sources:
  • Medical Records of Complainant related to this incident from both hospitals, obtained with his consent; and,
  • Ambulance Call Report.

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 265, Criminal Code -- Assault

265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Section 267, Criminal Code -- Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant, 
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Analysis and Director's Decision

At 7:33:40 p.m. on December 31, 2017, the Hastings-Quinte Paramedic Services were en route to an apartment unit in the City of Belleville as a result of a call that a 60-year-old male, the Complainant, had been drinking and struck himself in the head with a glass cup. While en route, Paramedic Services called the Belleville Police Service (BPS) requesting police assistance at the address.

As a result, at 7:37:56 p.m., two police units were dispatched, with the SO arriving first at the residence at 7:41:37 p.m., almost simultaneously with the paramedic services.

While the SO opted not to provide a statement to SIU investigators, he did relate the details of the incident to several witnesses following the injury to the Complainant. The various utterances made by the SO are fully consistent with the evidence of the two paramedic witnesses, the medical records, and the limited recall of the Complainant. There is no dispute as to the facts.

Upon arrival at the residence, the Complainant was observed to be lying on the floor with a towel over his head, which was covered with blood. There were also significant amounts of blood seen throughout the kitchen and dining room area of the residence. A second occupant of the apartment advised paramedics and the police that the Complainant was in a drunken rage and had smashed either a bottle or a glass on his own forehead, resulting in lacerations to his forehead and scalp, causing her to call 911.

CW #2, an Advanced Care Paramedic, approached the Complainant and touched his right shoulder, following which the Complainant immediately sprang up from the floor, grabbed a broom, and began to swing the stick end of the broom at the two paramedics to keep them back. The Complainant was also observed to be verbally abusive toward CW #2, while swinging and/or jabbing the handle of the broom at her.

The SO then intervened and yelled at the Complainant to put the broom down, while placing himself between the paramedics and the Complainant. The SO then grabbed the broom away from the Complainant. The Complainant was then described as continuing his aggressive behaviour while the SO was trying to reason with him.

The Complainant then reached toward a kitchen drawer, which the other occupant of the apartment advised was the knife drawer.

The SO yelled at the Complainant to “Stay back!” and “Don’t touch that drawer!” a number of times, but when the Complainant continued to open the drawer, the SO drew his Conducted Energy Weapon (CEW) and discharged it twice at the Complainant, resulting in the Complainant falling and striking his head against a nearby table. The SO then immediately radioed for assistance.
When the knife drawer was later examined, it was noted that there was blood both on the drawer handle as well as on several of the knives inside the drawer, confirming that the Complainant had indeed managed to open the drawer and reach inside, prior to the CEW being deployed.

CW #2 then again approached the Complainant and observed that he was now bleeding to the back of his head. When CW #2 tried to assist him, the Complainant told her to “Fuck off” and commented that he liked the police officers better than he liked her.

Additional police officers arrived at that point, and the Complainant was handcuffed; he was described as being verbally abusive toward all officers present, while taunting them and inviting them to fight.

The Complainant was observed to have two CEW probes embedded in his chest and abdomen with the wires still attached to the probes at one end and the SO’s CEW at the other.

While being escorted to the ambulance, the Complainant continued to be uncooperative and verbally abusive and a civilian witness heard a police officer repeatedly tell the Complainant to stop lunging at him. Between the verbal abuse being issued by the Complainant, he was heard several times thanking the SO for not “Fucking me up” and apologizing for his behaviour.

Once at hospital, the evidence of witnesses and the medical records indicate that the Complainant continued to be non-compliant, verbally abusive, and aggressive, on one occasion attempting to bite a police officer after indicating to the officer that he had Hepatitis C and AIDS.

Eventually, the Complainant was sedated in order to calm him down.

The medical records confirm that the Complainant was indeed severely intoxicated, with an analysis of his blood revealing that he had 69.9 mmol of alcohol in a litre of blood (or 322 mgs of alcohol in 100 mls of blood). [1]

While there was initially a suspicion that the Complainant had sustained a skull fracture, the medical records indicate that a CT scan of his head revealed:

No specific features of intracranial hemorrhage, mass effect, large territory vascular ischemia, parenchymal contusion.
Scalp hematoma overlying the left occipitoparietal region.
No fracture identified.

Based on these findings, it is unclear as to whether the Complainant actually sustained a serious injury.

Pursuant to s. 25(1) of the Criminal Code, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the subject officer to qualify for protection from prosecution pursuant to s. 25, it must be established that he was in the execution of a lawful duty, that he was acting on reasonable grounds, and that he used no more force than was necessary.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear based upon the direct observations of the SO, as confirmed by the other witnesses present, that the Complainant had already armed himself with a weapon, that being the broom, and had used it in an aggressive fashion towards the paramedics. While s. 267 (a) of the Criminal Code, which defines the offence of assault with a weapon, includes both actions and threats to use a weapon, despite the Complainant not actually striking either of the paramedics, it is clear that the SO at that point in time would have had reasonable grounds to arrest the Complainant under this provision.

Furthermore, when the Complainant then moved toward the knife drawer, it is clear that he posed a threat pursuant to s. 27 of the Criminal Code (Use of Force to Prevent Commission of Offence) in that there was a real risk that he was going to arm himself and again commit the offence of assault with a weapon, and that the SO, pursuant to s. 34 (Defence of Person), had reasonable grounds to believe:

34 (1) (a) that force is being used against them or another person or that a threat of force is being made against them or another person;

And he acted:

(b) for the purpose of defending or protecting themselves or the other person from that use or threat of force.

Furthermore, the third requirement under s. 34 which would justify the actions of the SO, that being under (c) that ‘the act committed is reasonable in the circumstances’, appears also to be fully satisfied.

In these circumstances, where the Complainant had already proven himself quite capable of assaulting those present with a weapon (the broom) and appeared to be moving towards arming himself with a far more dangerous weapon (a knife), after having ignored repeated requests to move away from the knife drawer and to stay away from the knives, and while his overall behaviour was aggressive, combative, and irrational, I find that the action of the SO in deploying his CEW was completely reasonable and in all likelihood the only effective non-lethal use of force option available to the SO to stop the Complainant before he injured or killed someone, with the only other option open to the SO being to draw his firearm, which could obviously have had far more serious consequences should the officer have been forced to use it.

On this record, while I find that the injury to the Complainant was caused by the SO deploying his CEW and the Complainant consequently falling and striking his head against the dining room table, I have no reluctance in finding that the actions of the SO did not amount to an excessive use of force, but rather were both justified and necessary to prevent harm to either himself, or other persons, present in the apartment.

In making this finding, I have considered the direction from the Supreme Court of Canada as set out 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 conclusion, having found on these facts that the actions of the SO fell within the limits prescribed by the criminal law, I further find that I lack the grounds for the laying of criminal charges and none shall issue.


Date: November 9, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) The equivalent of over four times the limit at which a person can legally operate a motor vehicle in Canada. [Back to text]