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SIU Director’s Report - Case # 18-PCI-003

Contents:

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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 a serious injury sustained by a 28-year-old male when he was arrested on January 2, 2018.

The Investigation

Notification of the SIU

The SIU was notified of the incident by the OPP on January 3, 2018 at 10:40 a.m.

The OPP advised that on January 2, 2018, at 7:30 p.m. the Complainant walked into the OPP detachment located in Orillia because it was cold and he had nowhere to go. OPP police officers queried the Complainant’s name in the Canadian Police Information Centre (CPIC) database and found that the Complainant had an outstanding warrant for his arrest with the Toronto Police Service (TPS). After the Complainant was told that he was under arrest, two OPP police officers struggled with the Complainant in the lobby area of the detachment. During the struggle, one of the police officers deployed a conducted energy weapon (CEW) and the Complainant was subsequently taken to the ground. The Complainant suffered a nose bleed during the struggle.

OPP police officers transported the Complainant to the area of Highway 400 and County Road 8 where they met with TPS police officers. After TPS police officers took custody of the Complainant, the Complainant complained that he was having a seizure. The Complainant was subsequently taken to Toronto Western Hospital (TWH) where he was diagnosed with orbital fractures.

The Team

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

Complainant:

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

Witness Officers

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

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right


Incident Narrative

On January 2, 2018, the Complainant attended the Orillia OPP Detachment. The Complainant had an outstanding warrant for his arrest and SO #1 attempted to arrest him. Several officers in the detachment heard a struggle between SO #1 and the Complainant and attended the lobby to assist. The Complainant was taken to the ground where he was pinned, face down, by several officers. The Complainant actively resisted arrest and both SO #1 and SO #2 struck him. SO #1 also used a CEW against the Complainant. As a result, the Complainant stopped resisting and was arrested. It is alleged that during his arrest, the Complainant sustained a fracture to the orbital bone on his face.

The Complainant was eventually transported to meet two TPS officers, who took him into custody and brought him to TPS 14 Division. He was eventually assessed by paramedics and taken to TWH.

Evidence

The Scene

The OPP detachment that the Complainant attended on January 2, 2018, was located at 66 Peter Street South in Orillia. The main front doors into the lobby consisted of two sets of glass doors. Inside the lobby and to the east was a small waiting area with seats. To the west of the front doors was a waiting/seating area and a collision reporting centre desk. Directly across the front main doors was a window/front desk area that said “Reception”. To the west of the front desk window was a door. To the east of the front desk window was an alcove that had a door leading into the back area of the detachment. To the west of the front desk area was another door leading into the back area of the detachment.

Expert Evidence

On April 4, 2018, a Forensic Pathologist agreed to review the Complainant’s medical record to determine the mechanism of the Complainant’s injury and the level of force that would have been exerted to cause such an injury. On May 4, 2018, the Forensic Pathologist sent a letter to the SIU investigator and provided his opinion. He explained that the type of injury the Complainant had sustained were fractures commonly seen in direct eye or orbital trauma where a blunt force was applied directly to the eye or to the orbit. The potential mechanisms of injury, according to the Forensic Pathologist, were a blow to the eye/orbit, a fall or grounding with contact between the ground and the eye/orbit. This type of injury could not have been caused by a CEW. As well, the injury sustained was not a reasonable cause for seizures.

The Forensic Pathologist was not able to quantify the degree of force that was exerted to have caused such an injury. However, the fractured bone is extremely thin and it would not take an “exceptional” blow to cause the fracture.

In summary, the Forensic Pathologist stated that the most reasonable interpretation of the Complainant’s injury was that it was caused by the application of direct blunt force to the eyes/orbits or contact with the ground.

Video/Audio/Photographic Evidence

The following is a summary of the video footage that was captured by the in-car camera system (ICCS) from TPS officers WO #5 and WO #6 on January 2, 2018, at 9:10 p.m.:
  • The video starts at 9:10:06 p.m. The Complainant can be seen lying down in the rear seat of the cruiser. His hands were handcuffed behind his back and his head was facing the rear passenger side door; 
  • At 9:11 p.m., from the audio, it sounded like WO #5 and WO #6 put on their seatbelts and soon afterwards, the cruiser was in motion. Throughout the transport, the Complainant laid fairly still and did not change his position; 
  • At 10:00 p.m., the cruiser arrived inside the sally port of TPS 14 Division. The rear driver side door opened and then closed; 
  • At 10:01 p.m., a police officer opened the rear passenger side door and called out the Complainant’s name several times, but received no response. The Complainant could be seen moving a little;
  • At 10:08 p.m., two police officers pulled the Complainant out of the rear passenger side door and the Complainant could be seen standing up in between two police officers. Shortly afterwards, the police officers placed the Complainant back in the rear of the cruiser where he sat upright; 
  • At 10:27 p.m., paramedics arrived with a stretcher and placed the Complainant on the stretcher; and 
  • At 10:29 p.m., the Complainant was wheeled out of camera view. 

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP and TPS:
  • ICCS footage;
  • OPP Involved Officer List;
  • OPP Notes of WO #1, WO #2, WO #3 and WO #4;
  • TPS Booking Video [1];
  • TPS History- the Complainant;
  • TPS Notes of WO #5 and WO #6;
  • TPS Record of Arrest; and
  • TPS Warrants.


TPS Warrant for Arrest Summary

On December 11, 2017, a Justice of the Peace and/or Judge signed and authorized an arrest warrant for the Complainant based on the Complainant failing to comply with probation conditions contrary to section 733.1(1).

CPIC results showed that the Complainant was a high risk offender. The conditions that the Complainant had to abide by stipulated that he was prohibited from attending a public park, swimming area, school, daycare or community centre where persons under the age of 16 would be present.

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.

Analysis and Director's Decision

At approximately 7:15 p.m. on January 2, 2018, the Complainant attended the Orillia OPP Detachment looking for a hotel voucher because it was cold outside and he had nowhere to go. [2] The police discovered that the Complainant had an outstanding warrant for his arrest with the TPS and therefore SO #1 attempted to arrest him in the lobby of the police station. The Complainant resisted being immediately arrested. Several officers inside the OPP Detachment heard a commotion and attended the lobby to assist. The Complainant was taken to the ground where he was pinned face-down by several officers. The Complainant struggled against the officers and both SO #1 and SO #2 struck him. SO #1 also used a CEW against the Complainant, resulting in the Complainant’s immediate arrest. Two TPS officers eventually took custody of the Complainant and he was taken to TPS 14 Division where he was assessed by paramedics and taken to TWH. It is alleged that the Complainant sustained a fracture to the orbital wall of his face during his arrest or transport to TPS 14 Division.

The SIU interviewed the Complainant and eight witness officers. After carefully considering the totality of the evidence, I am unable form grounds to believe the subject officers committed a criminal offence in relation to the Complainant’s injury. There is simply insufficient evidence establishing that the subject officers’ use of force exceeded the amount of force permitted by law.

The precise details of the arrest and the amount of force used are unknown. Several witness officers within the OPP Detachment told the SIU that they overheard a struggle in the lobby and attended to assist. WO #1 and WO #4 were the first officers to arrive and they saw the Complainant pulling away from SO #1. SO #1 and WO #4 grabbed the Complainant’s arms, and the Complainant was taken to a wall for about 30 seconds. WO #4 told the SIU that, when he let go of the Complainant, SO #1 grounded the Complainant in a controlled manner. He did not see the Complainant hit his head.

It is not contentious that the Complainant was held face-down on the floor of the lobby. From the officers’ statements, it is apparent that WO #4 and SO #1 initially held the Complainant on the ground. The Complainant is reported to have struggled for approximately 30 to 60 seconds. SO #1 told him to stop resisting and to put his hands behind his back. At some point, SO #2, WO #2, WO #7, WO #8, WO #9, and WO #10 also arrived in the lobby. SO #2 positioned himself near the Complainant’s head. WO #8 and WO #9 held the Complainant’s legs, using their body weight to prevent him from moving his legs and kicking. None of the witness officers saw any officer kick or punch the Complainant, although an OPP officer told the SIU that SO #1 and SO#2’s duty notes indicate that they delivered strikes to the Complainant. The details of these strikes are unknown. In addition, several witness officers confirmed that they heard a CEW being deployed on drive stun mode. SO #1 acknowledged that he deployed the CEW in his notes and to a witness officer.

Immediately after the CEW was deployed, the Complainant stopped struggling and was handcuffed. The Complainant was stood up, and several witness officers observed drops of blood on the Complainant’s face and on the floor. The Complainant was eventually transferred into the custody of two TPS officers, WO #5 and WO #6, and taken to TPS 14 Division. The TPS ICCS did not capture any force being used against the Complainant during his transport to Toronto.

The Complainant alleges he was forcibly arrested due to going into medical distress and that he did not resist arrest. He further alleges that he was not only punched, but kicked in the face, before a CEW was used against him. While the allegation describes considerable force, I have serious doubts about its accuracy. The allegation was sparse on details and was inaccurate when it came to basic confirmable (and confirmed) facts about the officers involved in the Complainant’s transport. Most significantly, the allegation stated the injuries may have been caused during the Complainant’s transport. No witness described any force used against the Complainant during his transport and a review of the ICCS footage from WO #5 and WO #6’s vehicle confirmed that no force was used. In conjunction, these oddities and inaccuracies make me reluctant to accept the truth of the allegation without corroborating evidence.

On the remainder of the evidence, there is no indication that the subject officers exceeded the scope of force permitted to be used by law. Section 25(1) of the Criminal Code permits police officers to use force that is reasonably necessary in the execution of their lawful duties. SO #1 and SO #2 were acting in accordance with their lawful duties when they arrested the Complainant, who was arrestable on an outstanding arrest warrant, and I have no doubt that some force was used during the arrest. SO #1 clearly took the Complainant to the ground where he was pinned face-down by several officers. SO #1 and SO #2 apparently admit to striking the Complainant in their duty notes, although the nature of these strikes are unknown. Depending on the circumstances, strikes are often not inappropriate to use against an actively resisting suspect as a distraction or to gain compliance. Given the Complainant’s confirmed resistance to his arrest, without more information, I am unable to conclude that the strikes were unreasonable or unnecessary. Likewise, although SO #1 deployed a CEW against the Complainant, I do not believe such force was unreasonable. The Complainant had failed to respond to verbal orders to comply and continued to actively resist arrest. It took considerable force to restrain the Complainant. Several officers were required to pin him down and the struggle left SO #1, who was in good shape, extremely winded. Use of a CEW in drive stun mode in these circumstances was not unreasonable and, in fact, resulted in the immediate cessation of the Complainant’s resistance and his arrest.

Finally, while the Complainant’s injury is circumstantial evidence indicating that force was used against him, I am reluctant to attribute the injury to the subject officers. The Complainant’s medical reports indicate that he had been hit by a motor vehicle and assaulted sometime in the two days prior to his contact with the subject officers. [3] The SIU sought the opinion of an expert Forensic Pathologist to help determine the amount of force required to cause an injury such as the one suffered by the Complainant, and he stated in essence that the fractured bone is a thin bone that would not require an exceptional blow to fracture. The jurisprudence is clear that the standard to which officers are to be held is not perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are police officers expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). Assuming the Complainant’s injury was caused by an OPP officer, his injury alone does not establish that the level of force used was unreasonable.

In closing, there is simply insufficient evidence to form grounds to believe that either of the subject officers committed a criminal offence in connection with the Complainant’s injuries. Officers are permitted to use some force in the execution of their lawful duties and there is no reliable evidence establishing the officers used more force than that permitted by law.


Date: November 13, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) This video is of the Complainant after he was brought back to TPS 14 Division from the hospital. It depicts nothing unusual of note except that the Complainant was paraded by a Sergeant in the booking room and then lodged in a cell. [Back to text]
  • 2) The OPP in Orillia have the ability to provide vouchers but generally only provide them after doing a cursory police check. [Back to text]
  • 3) At the hospital, he indicated that he could not recall the specifics of either incident, which suggests either that they involved significant injuries that affected his memory because he was rendered unconscious, or that the Complainant was in some impaired state at the time. [Back to text]