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SIU Director’s Report - Case # 17-OCI-347

Contents:

News Releases for this Case:

French:

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 34-year-old man (the Complainant) during his arrest on November 23, 2017.

The Investigation

Notification of the SIU

At approximately 1:00 p.m. on November 24, 2017, the Greater Sudbury Police Service (GSPS) notified the SIU of the serious injury sustained by the Complainant during his arrest.
The GSPS reported that on the previous day, November 23, 2017 at about 8:12 p.m., police and Emergency Medical Services (EMS) were called to the area of MacKenzie Street and Evergreen Street in the City of Sudbury, regarding a cyclist who may have been struck by a vehicle. The police officers arrived at the same time as the paramedics. The cyclist, the Complainant, was observed to have superficial cuts, but no vehicles could be seen in the area. For this reason, the police officers believed that the Complainant may have simply fallen off his bicycle. The Complainant then ran away from the intersection.
Shortly thereafter, a civilian witness (CW) informed the police officers that the Complainant was on Durham Street. This witness said he saw the Complainant fall and he was covered in blood.

Two police officers approached the Complainant on Durham Street and found him lying on the ground. The police officers then woke the Complainant and he became agitated, following which he was arrested for public intoxication.
The paramedics examined the Complainant and he was taken to the hospital; he was later released from the hospital, taken to the police station, and lodged in a cell.
On November 24, 2017, the Complainant was taken to court and then back to the hospital because he complained of pain. At the hospital, the Complainant was diagnosed with a broken jaw.

The Team

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

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Interviewed, notes received and reviewed
WO #9 Notes reviewed, interview deemed not necessary
WO #10 Notes reviewed, interview deemed not necessary


Police Employee Witnesses

PEW #1 Notes reviewed, interview deemed not necessary
PEW #2 Notes reviewed, interview deemed not necessary

Subject Officer

The SO Declined interview, as is the subject officer’s legal right, but provided a written statement. Notes received and reviewed.


Incident Narrative

At approximately 8:00 p.m. on November 23, 2017, the Complainant was riding a bicycle at the intersection of Evergreen Street and MacKenzie Street in the City of Sudbury, when he slipped on ice and fell off his bicycle. He would tell nearby witnesses that he was struck by a car, but no cars were seen at the time. Witnesses reported that the Complainant had a head injury over his right eye that was bleeding. The Complainant was initially unconscious, but when he awoke, he became agitated, belligerent, and aggressive toward witnesses who tried to help him. The Complainant fled the area as EMS arrived. About eight to ten minutes later, another witness saw the Complainant lying in the middle of Beech Street, with an injury to his head, and the police were contacted.

Two police officers, including the Subject Officer (SO), arrived and found the Complainant unconscious and in medical distress. Once revived, the Complainant became confrontational, combative, and resistant to assistance. The Complainant was then arrested for being intoxicated in a public place and handcuffed.

The Complainant, still handcuffed, was then secured to the stretcher by its three lower straps and placed in the back of the ambulance. The Complainant’s behaviour became more agitated and angry as he continued to resist any assistance. The Complainant continued his behaviour and, on two occasions, was taken to the hospital where he refused medical treatment.

On both occasions, without being medically assessed, the Complainant was released back into police custody. In the morning, after being transported to the courts, the Complainant was again taken to hospital because he complained of a sore jaw. The Complainant was diagnosed at that time with a fractured jaw on his right side and with non-displaced nasal bone fractures.
The Complainant alleged that he was punched in the face by a police officer while secured to the hospital bed during his first visit to the hospital, after he spit in a police officer’s face at the hospital.

In actual fact, while in the back of the ambulance and handcuffed, the Complainant freed his legs from the restraints. Due to the Complainant’s assaultive behaviour, and because he was damaging equipment, the SO then delivered one or two quick short jabs or punches to the face of the Complainant, which allowed police officers and paramedics to secure the Complainant to the gurney.

Nature of Injury/Treatment

The Complainant was diagnosed with a fractured right jaw (mandibular fracture) and nasal bone. A plastic surgeon performed surgery because the Complainant’s teeth were not fitting, or lining up together, properly. Braces were put on the Complainant’s upper and lower teeth and his entire jaw was wired shut. The Complainant’s prognosis was described as good and his jaw was expected to heal properly.

Evidence

The Scene

The scene was the confined quarters of the back of the ambulance. The gurney was situated along the left side of the ambulance. 

The scene was the confined quarters of the back of the ambulance.  The gurney was situated along the left side of the ambulance.   

Physical Evidence

The defibrillator on the gurney which was kicked and damaged by the Complainant.

The defibrillator on the gurney which was kicked and damaged by the Complainant.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

GSPS Custody Video

The video confirmed the information supplied by all of the police officers about their contact with the Complainant while at the booking area/cell area. There was no audio for any of the video. The hobble previously applied to the Complainant’s legs appeared to be removed at the cruiser and, from then on, two police officers held the Complainant until he was placed in the cell. A spit mask was initially place on the Complainant, then removed when the Complainant was handcuffed to the cell door, and again re-applied when the police officers entered to remove the Complainant’s clothing. The spit mask was still on the Complainant when he left with the EMS.

Communications Recordings

GSPS Communications

The communications indicated that the Complainant identified himself to persons that were helping him and it was apparent he did not know what had happened to him.

Materials obtained from Police Service

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

  • Arrest Report;
  • Copies of Photos taken of the Complainant in Bullpen (with labels on back);
  • Copy of Photo taken of the Complainant at hospital;
  • Current Officers;
  • Duty Roster;
  • Event Details;
  • GSPS List of Involved Officers;
  • High Risk Prisoner;
  • Mug Shot of the Complainant;
  • Non-Police Involvements;
  • Notes of WO #s 1-4 and 5-10, PEW #s 1 and 2, and the SO;
  • Person Caution Flags;
  • Person Cautions from Chatham re: the Complainant;
  • Person Cautions from Sudbury re: the Complainant;
  • Person Occurrence from Chatham re: the Complainant;
  • Person Occurrence from Sudbury re: the Complainant;
  • Prisoner Log;
  • Recognizance of Bail;
  • Strip Search Record;
  • 911 Call Recordings;
  • Police Transmissions Communications Recordings;
  • Cell Video;
  • Photos of damage to ambulance caused by Complainant; and
  • Written Statements of the SO (x2), WO #s 1-4, 7-10, and PEW #1.

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

  • Sudbury Paramedic Services Call Report (x3);
  • Medical Records for the Complainant relating to this incident; and
  • Triage Notes for the Complainant of November 23, 2017.

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 430, Criminal Code -- Mischief to property

430 (1)  Every one commits mischief who wilfully
(a)  destroys or damages property;
(b)  renders property dangerous, useless, inoperative or ineffective;
(c)  obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d)  obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
(3)  Every one who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars
(a) Is guilty of an indictable offence and liable to imprisonment for a term not exceeding then years, or
(b) Is guilty of an offence punishable on summary conviction.
(4)  Every one who commits mischief in relation to property, other than property described in subsection (3),
(a)  is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or 
(b)  is guilty of an offence punishable on summary conviction.

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 November 23, 2017, between 8:10:25 and 8:22:17 p.m., three 911 calls were received by the Greater Sudbury Police Service (GSPS) requesting the assistance of Emergency Medical Services (EMS) in the area of MacKenzie Street and Evergreen Street in the City of Sudbury.

The first caller, who appeared to be a young person, advised the 911 call taker that a male cyclist appeared to have fallen off of his bicycle and hit his head. The caller indicated that the cyclist was claiming that he was struck by a car, but the caller in fact believed that the cyclist had simply crashed on his own, and then fallen and hit his head. The caller also described the cyclist as being initially unconscious, but then awake, and that he was drunk. The cyclist was identified as the Complainant. The caller then indicated that the Complainant was walking away and the caller observed that “he’s drunk so he doesn’t understand. I’m pretty sure he wants to get hit by a car.” While the line is open, people can be heard trying to assist the Complainant, but at least one of the men indicates “we’re trying to help but he wants to fight us. He’s being too aggressive. He’s trying to fight everybody.”

The second 911 caller indicated that there is “a guy lying on the side of the road. Says he just got hit by a car.”

As a result of these 911 calls, two GSPS officers, the Subject Officer (SO) and Witness Officer (WO) #1, were dispatched to attempt to locate the injured cyclist.

At 8:22:17 p.m., the first 911 caller then called again and it was confirmed that the police were on scene.

The first 911 caller, a youth, civilian witness (CW) #9, and his brother, observed the Complainant lying on his back in the roadway beside a bicycle. CW #9 observed the Complainant to be bleeding on the right side of his forehead and the blood was running into his eyes. As the two brothers attempted to assist the Complainant, he accused them of trying to rob him. The Complainant then tried to punch CW #9’s brother, but missed, following which the Complainant fell two more times. CW #9 then observed the Complainant try to throw himself at a car, but the car had already stopped. The Complainant was then observed to walk further up the street and into a bush area, from which he jumped into a ditch, where he landed on his head and stomach.

Another civilian witness, CW #5, observed the Complainant get up and then fall forward and hit his head on the ice, apparently injuring his forehead.

A motorist, CW #8, stopped to assist the Complainant as he lay in the roadway, and observed that the Complainant had blood on his face, mostly on the right side of his forehead, from a cut over his eye. At one point, while attempting to assist the Complainant, CW #8 observed the Complainant throw a punch at another bystander, CW #2, after which the Complainant got up, began yelling and swearing and telling people not to touch him, and kept swinging. CW #8 tried to explain to the Complainant that they were just trying to help him. This evidence was also consistent with that provided by CW #2.

When paramedics arrived at the scene of the first 911 call, they observed the Complainant walking, with a limp, down the street, with blood running around one of his eyes. The two paramedics, CW #4 and CW #3, then stopped the ambulance beside the Complainant, but he continued to walk away.

The paramedics searched for the Complainant, but were unable to locate him. The police then arrived and CW #4 heard CW #5 tell the police officer that he saw the Complainant walking and that he had slipped on the ice and was unconscious for a period of time; this information caused CW #4 concern that the Complainant had a potential head injury and he asked police to search for the Complainant.

CW #1, who was in the area of Beech Street, advised that he had heard a thump, which he believed sounded like somebody’s head hitting the pavement, and saw the Complainant lying on his back by the crosswalk on Beech Street. CW #1 approached the Complainant and observed that he was not moving and that he had foam or saliva coming from his mouth and fresh blood around his swollen right eye and on his hands. CW #1 opined that the Complainant’s injury could not have occurred at that time, because the Complainant had fallen on his back and the injury was above his right eye.

CW #1 then observed two police officers arrive and one of the officers, the SO, turned the Complainant onto his left side and began to search his pockets, following which the Complainant began to panic and ‘freak out’, and resisted the officers. CW #1 heard the SO tell the Complainant that he was looking for anything in the Complainant’s pockets that could cause injury. The Complainant’s arm was then brought behind his back and he yelled that the officer, WO #1, had broken his arm. He was then handcuffed with his hands behind his back and put onto a stretcher.

CW #1 described the actions of the Complainant as being up and down, with periods of calm followed by periods when he would swear at the police officers and tell them to get away from him. CW #1 heard the Complainant say he was going to spit on a police officer, so the officer placed his elbow on the Complainant’s left cheek and pushed his cheek into the stretcher, preventing him from spitting on anyone. The Complainant was then put into the back of the ambulance. CW #1 never saw anyone strike the Complainant.

Within five to ten minutes after the police had gone in search of the Complainant, CW #4 received information that the Complainant had now been located on Beech Street at Durham Street and paramedics attended that location. Upon arrival, CW #4 observed the SO and WO #1 asking the Complainant if he had any weapons and that they would search him for weapons, at which point the Complainant became agitated and refused to identify himself or to allow police to search him. The Complainant also refused to allow the paramedics to assess and treat him.

CW #4 indicated that he was concerned that the Complainant was experiencing an ultra-level of consciousness, which he attributed to either a possible head injury or the consumption of drugs. CW #4 indicated that for these reasons he felt it was important that the Complainant be assessed at hospital.

CW #4 observed the Complainant to then become violent, belligerent, and uncooperative, as he tried to prevent police searching him. The two police officers then took the Complainant face down onto the street, where the Complainant continued to struggle as he was handcuffed with his hands behind his back. CW #4 indicated that the Complainant was angry because he believed that WO #1 had injured his shoulder during the handcuffing process. The Complainant remained uncooperative as he was placed onto the stretcher and he had to be secured with three belts, two on his legs and one around his waist, tying him to the stretcher. The Complainant continuously asked that the handcuffs be removed in order that he could fight WO #1.

Once the Complainant was placed inside the back of the ambulance, he continued to wiggle and was able to pull his legs out from under the bottom two straps, following which he kicked wildly at the defibrillator monitor, which was mounted on a metal stand above the Complainant’s feet. According to the SO, he believed that the Complainant was actually trying to kick him, but the monitor got in his way. The Complainant continued to kick the monitor until it broke off its base and hit the rear door, landing at the feet of the SO. CW #4 indicated that he was concerned that the Complainant was going to hurt either himself and/or the SO if he continued to kick wildly, as he had been doing.

CW #4 described the SO as then stepping forward, in a very calm manner, placing his left hand on the Complainant’s chest and delivering two short jabs/punches to the left side of the Complainant’s chin and jaw area. The Complainant then immediately calmed down and began to cry, complaining that the SO had broken his jaw. CW #4 indicated that he thought that it was possible that the Complainant’s jaw had been broken, but he continued to speak and his speech pattern did not change. CW #4 indicated that the SO told him that he struck the Complainant to settle him down and prevent him causing any further damage. CW #4 advised that, in his view, the actions of the SO were appropriate and justified in the circumstances.

Once at the hospital, the Complainant remained belligerent and CW #4 heard him indicate that he wanted to fight the police again and he threatened to spit on the police officers.

The above version of events, as compiled from the interviews of all of the civilian witnesses, is consistent with that provided by the SO in his written statement, and by WO #1 in his interview.

Additionally, WO #2 advised that once at hospital, the SO disclosed to him that when the Complainant awoke in the street, he refused to identify himself and became agitated, aggressive, and combative towards the SO and WO #1, spitting at them. The Complainant was then arrested for being intoxicated in a public place, contrary to the Liquor Licence Act, and handcuffed. The SO told WO #2 that once the Complainant was inside the ambulance, he kicked the defibrillator mount and the defibrillator fell to the floor, as a result of which the SO punched the Complainant once in the mouth area, to de-escalate his behaviour.

Following the Complainant’s initial visit to hospital, he was released back into police custody at 9:37 p.m., after refusing medical treatment or assessment. He was then transported by police to the police station; en route, he began to kick at the windows and his feet had to be hobbled by a restraint system. Once at the police station, when the Complainant was observed to again apparently lose consciousness and was sweating and frothing at the mouth, EMS was again called and he was transported to the hospital a second time. 
 
Eventually, at 8:22 a.m. the following morning, the Complainant was assessed at the hospital, his jaw was X-rayed, and it was determined that he had a mandibular fracture to the right side of his jaw and nasal bone. The Complainant subsequently required surgery because his teeth were not lining up properly, braces were put on both his upper and lower teeth, and his jaw was wired shut. The doctor who performed the surgery indicated that the Complainant’s prognosis was good and his jaw is expected to heal properly.

The Complainant himself had little accurate recall of the events. He conceded that he had consumed both a bottle of gin and smoked marijuana prior to waking up in the middle of the road being poked and jabbed by two police officers. The Complainant recalled that a police officer poked his finger in behind the Complainant’s right ear, between his jaw and his neck, which he attributed to possibly having broken his jaw, but he was unsure. The Complainant also believed that he had either been hit by a car or fell off his bicycle, and he recalled a cut over his right eye and some scrapes.

The Complainant did recall being handcuffed and placed inside an ambulance and taken to the hospital, and agreed that he was so mad that he kicked the defibrillator in the ambulance.

The Complainant had no recollection of being struck by the SO in the ambulance, instead recalling that once at the hospital, when he was handcuffed to the bed, he spit in the face of one of the police officers, whereupon he was warned that he would be hurt if he spit on the officers again. The Complainant recalled then spitting in the officer’s face again, after which a spit mask was put on his face and he was punched in the face by one of the police officers. The Complainant opined that, alternatively, this may have been when his jaw was broken.

On all of the evidence, it is difficult to determine exactly when the Complainant was injured, with the possibilities ranging between his possibly being hit by a car, his numerous falls onto the icy ground, with at least one fall causing an injury to the right side of his face as evidenced by the cut and bleeding to the area above his right eye, his throwing himself at a car, his throwing himself into the ditch, the one or two jabs/punches to the Complainant’s left side jaw area by the SO in the ambulance, or anything that may have occurred prior to his coming to the attention of the civilian witnesses, police, and paramedics who tried to assist him.

While the Complainant has some limited recollection of events from the afternoon and evening of November 23, he apparently cannot recall if he was struck by a car or simply fell off his bicycle, he is mistaken as to which officer rode in the ambulance with him, he attributed a police officer poking him behind his ear between his neck and his jaw as possibly fracturing his jaw, which was not seen by any of the many civilian and paramedic witnesses who were present during the Complainant’s arrest, or when he was punched by the SO after he spit in the officer’s face on two occasions in the hospital. I note that this last recollection, of being punched in the face in the hospital, is contradicted by all of the other witnesses who were present at that time, including the paramedics and other police officers.

The fact that the Complainant believed that his jaw was possibly already broken when he was poked by a police officer on Beech Street causes me to believe that he was already experiencing jaw pain early on in the events of the evening. Therefore, while the Complainant again experienced pain when he was punched by the SO, with CW #4 hearing him indicate at that time that he thought his jaw was broken, the fact that CW #4 noticed no change in the Complainant’s speech or his ability to speak, makes it less clear if the SO actually caused his injury, or if the jab to the left side of the Complainant’s jaw simply again made him aware of the pain that he had already experienced earlier on.

Additionally, while both the SO and CW #4 indicated that the SO struck the Complainant on the left side of his face, and the mandibular fracture was on the right side of his face, I note that the waters are further muddied by the fact that the Complainant clearly already had an injury to the right side of his face prior to the police arrival.

I also note that the doctor who performed the Complainant’s surgery indicated that the trauma which caused the right side fracture to the Complainant’s jaw need not have necessarily been delivered in that location, with the only requirement being force of some kind, not necessarily over the fracture site. The doctor indicated that the further from the fracture site that the force was applied, the less force that would be required to cause the fracture, as the jawbone has a lever mechanism. The doctor also opined that this type of injury is most commonly seen in people who have fallen on the stairs or when shoveling snow, but could also be consistent with being punched.

When directly asked if a punch to the left jaw could have caused a fracture to the right side of the jaw, the doctor indicated it was possible, but had that been the case, he would have expected there to have been a secondary fracture.

Based on all of the evidence then, it appears that the Complainant most likely received his injury when he fell, either when he fell off of his bicycle onto the icy ground, at which time he also injured the upper right side of his face, as was observed by all of the civilian witnesses prior to the arrival of either police or ambulance, or when (if) he was struck by a car, or when he threw himself at a car, or when he threw himself into the ditch landing on his head and stomach, or any of the many times that he fell, both when observed by the civilian witnesses, or on any prior occasion when no one was present.

Clearly, the opportunities for injury, when a man who is both intoxicated and under the influence of marijuana, and is riding his bicycle on icy streets, are endless. While the doctor indicated that the injury could also possibly be attributable to a punch to the left side of the jaw, in the absence of the secondary fracture referred to by the doctor, it appears that this is far less likely than that the injury was caused by a fall.

On this record, I find that the evidence does not satisfy me that there are reasonable grounds to believe that the Complainant received his injury when he was punched on the opposite side of the face by the SO, in the ambulance. If, however, that was the cause of his fracture, I take the expert opinion of the surgeon to be that the amount of force used by the SO was far less, because of the distance between the fracture site and where the blow was delivered, than what would have been required to fracture the jaw with a direct blow. As such, if the SO did cause the fracture, I accept that he did not use an excessive amount of force to do so.

Whether or not the blow or blows delivered by the SO caused the Complainant’s serious injury, however, I must still assess his actions to determine whether or not the delivery of the one to two quick jabs/punches to the Complainant amounted to an excessive use of force in these circumstances.

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 SO 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 from the observations of all the witnesses present, civilian, paramedic, and police, that the Complainant was intoxicated in a public place and therefore in violation of s. 31 (4) of the Liquor Licence Act and was arrestable as such. It is further clear that the Complainant was not capable of caring for himself and could not simply be left in the street, injured and on occasion unconscious, simply because he refused to be assessed or assisted by paramedics and police. As such, while the SO clearly had reasonable grounds to believe that the Complainant was intoxicated in a public place, he was acting within his lawful duties and on reasonable grounds when he placed the Complainant under arrest.

Once in the custody of police, it was further incumbent upon them to ensure that he obtained whatever medical treatment he required. As such, both the arrest and the Complainant’s subsequently being placed inside an ambulance to be taken for medical treatment, were legally justified.

With respect to the amount of force used in relation to the Complainant, I accept on all of the evidence, and despite the Complainant’s assertion otherwise, that the only force used was the force required to handcuff the Complainant at the scene and secure him to the stretcher, and later, in the ambulance, the one or two quick jabs/punches to the left side of the Complainant’s face after he kicked the defibrillator monitor, smashing it from its mooring, and he continued to kick wildly thereafter. I accept on the evidence of CW #4 that, in the confined space in the back of the ambulance, in which all three men found themselves, that were the Complainant allowed to continue with his wild and unruly behaviour, that there was a great risk that either the Complainant, or the SO, or both, would be injured.

I accept, based on the evidence of CW #4, which was fully consistent with the evidence of the SO, that after the delivery of the one or two quick jabs, which caused the Complainant to stop kicking and fighting, no further force was used by the SO.

I have also taken into consideration CW #4’s observations that the SO was neither angry, nor acting in retaliation, when he calmly approached and delivered the one or two quick jabs. From this evidence, I accept that the SO was neither being vindictive nor vengeful, but was simply and calmly doing his job, which required him to stop the Complainant causing any further injury to himself or others.

On these facts, despite the fact that the Complainant was handcuffed to the stretcher at the time, I find that I must agree with the assessment of CW #4 that the actions of the SO were both justified and appropriate in order to eliminate the risk that the Complainant continued to pose to all three men if he was not forced to discontinue his violent and unruly behaviour. On this basis, even were I to find that the SO caused the injury to the Complainant, of which I am not satisfied on this evidence, I cannot find his actions to amount to an excessive use of force in these circumstances.

Based on these facts, then, despite the unfortunate injury sustained by the Complainant, I cannot find the actions of the SO to be any more than what was necessary and justified in the 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. On this record, it is clear that the force used by the SO was the only viable option open to him to prevent the Complainant continuing with his violent behaviour and possibly causing further harm or property damage. Had the Complainant not acted out in the fashion that he did, there would have been no need for the SO to use force in order to stop the Complainant’s violent actions and calm the situation.

In conclusion, on all of the reliable evidence before me, I find that the evidence does not satisfy me either that the SO’s actions were the cause of the Complainant’s injuries or that his actions fell outside of the limits of the criminal law, and I am therefore left without the grounds to lay criminal charges and none shall issue.


Date: October 23, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit