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SIU Director’s Report - Case # 18-OCI-045

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 sustained by a 60-year-old man (the Complainant) during his arrest on February 18, 2018.This report relates to the SIU’s investigation into the serious injury sustained by a 60-year-old man (the Complainant) during his arrest on February 18, 2018.

The Investigation

Notification of the SIU

At approximately 8:15 a.m. on February 19, 2018 the Ottawa Police Service (OPS) notified the SIU of a reported custody injury to the Complainant.

The OPS reported that on February 18, 2018, at about 11:50 p.m., OPS officers responded to a 911 call of a man, (the Complainant), going crazy and threatening to shoot people at a Boston Pizza restaurant in the City of Ottawa.

Upon the police arrival, OPS officers attempted to negotiate with the Complainant, who then swung a beer stein at one of the officers. The Complainant was subsequently subdued and arrested. Once in custody, the Complainant began slipping in and out of consciousness, at which time he was transported to a hospital and diagnosed with a fractured orbital bone. He was later released back into the custody of the OPS.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 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 Interviewed, notes received and reviewed
WO #7 Interviewed, notes received and reviewed
WO #8 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Incident Narrative

At approximately 11:50 p.m. on February 18, 2018, Ottawa Police Service (OPS) officers, WO #8 and SO #2, responded to a 911 call of a man, the Complainant, going crazy and threatening to shoot people at the Boston Pizza in the City of Ottawa.

Upon their arrival, WO #8 and SO #2 attempted to negotiate with the Complainant, but the Complainant refused to leave the premises and then swung a large 32-ounce glass beer stein towards SO #2’s head.

A struggle ensued and the Complainant was subsequently subdued and arrested with the assistance of several OPS officers. During the course of the struggle, SO #2 delivered three closed fisted strikes and one knee strike to the Complainant’s head.

The Complainant was then transported to hospital where he was assessed.

Nature of Injuries / Treatment

A Computed Tomography (CT) Scan was conducted on the Complainant which revealed an acute fracture of the right orbital bone (cheek bone) which was considered to be chronic (an older injury, not recent). No acute (new or recent) fractures were identified. The Complainant was directed to seek follow-up consultation with a plastic surgeon for his likely pre-existing injury, at a later date.

Evidence

The Scene

The scene took place within the Boston Pizza restaurant located in the City of Ottawa.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Expert Evidence

The CT scan was read by a radiologist who prepared a report regarding the Complainant’s injuries, and indicated the following:

“Blowout fractures of the right medial orbital wall and medial aspect of the right orbital floor, however, the lack of fat stranding or associated sinus changes favors that these are chronic (old or in the healing stages).

No acute (new or recent) facial fracture is identified.”

Video/Audio/Photographic Evidence

A canvass of the neighbouring business establishments was conducted with a view to obtaining any relevant CCTV footage, but none other than the video from the Boston Pizza itself could be located. The Boston Pizza footage was viewed and found to be consistent with the chronology of events as recounted by the civilian and police witnesses.

Communications Recordings

The police transmissions recordings were obtained and reviewed and found to be consistent with the witness evidence provided.

Materials obtained from Police Service

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

  • Computer Aided Dispatch (CAD) Call Hardcopy Report;
  • 911 Call Recording;
  • Initial Radio Dispatch Recording;
  • Police Transmissions Communications Recordings;
  • Investigation Action Reports authored by WO #s 2-4 and 5-8;
  • Notes of WO #s 1-8;
  • OPS Written Statements taken from CW #s 1 and 3; and
  • Written Statements prepared by WO #s 5 and 8.

The SIU obtained and reviewed the following materials and documents from other sources:

  • Medical Records of the Complainant related to this incident;
  • CCTV from Boston Pizza; and
  • Ottawa EMS 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.

Analysis and Director's Decision

At approximately 11:46 p.m. on February 19, 2018, a 911 call was received by the Ottawa Police Service (OPS). The caller, a waitress at the Boston Pizza restaurant in the City of Ottawa, indicated that as she had been going around from table to table advising that patrons would have to finish drinking within the next 20 to 30 minutes, a customer, the Complainant, stated, “You’re going to take my fucking beer? If I had a gun, I’d shoot you in the head right now!” The caller advised the operator that the Complainant seemed “really drunk” and was “very aggressive” and that she had asked him to leave, but he was refusing. The caller further indicated, “I just need help to get him out of here … I’m getting worried.”

As a result, a dispatch went out to all units requesting anyone in the area of the Boston Pizza to attend the restaurant to deal with the call. SO #2 and WO #8 indicated that they would respond to the Boston Pizza, and attended the restaurant.

During the course of the Complainant’s interaction with the police, he was eventually arrested for assault resist arrest, assault, and uttering death threats. Following his arrest, he was taken by ambulance to the hospital, where he was observed to have bruising to his right eye and tenderness to the orbital floor (eye socket/cheek bone area). As a result, a CT scan was performed, with the following findings:

Blowout fractures of the right medial orbital wall and medial aspect of the right orbital floor, however, the lack of fat stranding or associated sinus changes favors that these are chronic (old or in the healing stages).
No acute (new or recent) facial fracture is identified.

I also note that the paramedic records indicate that they were called to assess and transport the Complainant as a result of police concern that he had a head injury. Upon being assessed, the paramedic records indicate the following:

Head; Neck; Face (Details: golf-ball sized hematoma to right forehead – blood around both nares, several superficial lacerations to scalp, pt (patient) denies pain to head or neck, all facial bones stable on palpation, denies pain to c-spine on palpation, actively moving head around on arrival and ambulatory since head injury)

The Complainant alleges that while he was in the Boston Pizza drinking his beer, and after having consumed a line of cocaine in the restroom, he was violently slammed to the floor by an OPS officer, resulting in his becoming freaked out and entering into fight mode, whereby he was fighting for his life.

The Complainant described three or four OPS officers being present at the time, and that none had attempted to speak with him prior to using force against him. The Complainant indicated that he then stood up and tried to strike them, indicating, “So I got up and I just fucking tried to nail the fuckers!” and that thereafter he “lost it” and started to thrash about and ultimately fell to the floor. The Complainant described his thoughts at the time as, “You fuckers, this is a situation where I’m fighting for my life and so I’m just going to fucking try to kill you fuckers with my fists!” He further explained, “I just tried fucking kicking the fucking shit out of these guys, these cops.” The Complainant indicated that he delivered three to four punches to the police officers, following which he found himself on the floor and he used his hands to protect his head as the officers were punching and kicking him. He described himself at the time as already being handcuffed with his hands behind his back.

The Complainant described the officers present, which he numbered at six in total, as all being Caucasian males in their thirties, none of whom were bald and one of whom may have been named ‘Fontain’ [1], but he could not identify any of the officers.

The Complainant alleges that he was then dragged out of the Boston Pizza and walked through the parking lot to an ambulance, where an unknown police officer drove the Complainant’s head into a portion of what he believed was the aluminum bumper affixed to the ambulance, from behind, causing a loud bang and the injury to his face. After sustaining his injury, the Complainant alleges that he was down on the ground being kicked, while he yelled and screamed in pain. The Complainant was then transported to the hospital where he told hospital staff everything that had occurred, and he was told that he had sustained three fractures to his orbital bone.

Despite the Complainant’s claims, I note that the medical records in fact indicate that the fractures to the Complainant’s right orbital area were most likely pre-existing injuries and that the CT scan revealed no new fractures. Additionally, while the Complainant indicated that he told the medical staff exactly what had happened, I note that the notations in the medical records indicate that the Complainant told them on one occasion that “the police beat him up” and, on another occasion, he attributed his injury to, “Fall to ground in parking lot.” At no point in his medical records is it noted that the Complainant ever claimed that a police officer drove his face into the outside of the ambulance.

During the course of this investigation, in addition to the Complainant, four civilian and eight police witnesses were interviewed, as well as both subject officers. Most importantly, the entirety of the interaction between the police and the Complainant inside the Boston Pizza was recorded on CCTV footage, which was provided to SIU investigators to review. Based on the blatant inconsistencies between the evidence of the Complainant, and the video footage, which corroborates the statements provided both by the civilian and the police witnesses, as well as the subject officers, I have concluded that I must reject the Complainant’s version of events as being neither accurate nor reliable. Instead, I rely on the following facts to make my decision, which have been garnered from the reliable evidence provided, relying primarily upon the video evidence, which is confirmed by the witness evidence.

Despite the Complainant’s allegation that he was suddenly attacked in the Boston Pizza restaurant by four to six police officers, none of whom first attempted to speak with him, the video clearly reveals that the Complainant was in fact approached inside the restaurant, as he was coming down the stairs from the restroom, by only two OPS officers, one of whom was a female. While the video had no sound, it appears clear from the movements of the individuals that SO #2 approached the Complainant, as he reached the bottom of the stairs, and spoke with him, following which the Complainant gestured to his booth where the last of his three 32-ounce draught beer was awaiting his return, and he continued walking past the officers and back to his table. According to a civilian witness present, CW #1, she heard one of the officers say to the Complainant, “Hi sir,” and, “Can we talk to you?” A second civilian witness, CW #3, confirmed the evidence of CW #1, adding that she also heard the officers ask the Complainant to follow them outside but, instead, the Complainant became aggressive, walked to his booth while ignoring the police officers, and said that he wanted to finish his drink.

While the Complainant alleges that he was then suddenly attacked by three or four police officers, the video clearly shows that only SO #2 and WO #8 were present at the time and that they followed behind the Complainant to his booth, whereupon the Complainant is seen to pick up his beer mug and begin to walk away. SO #2 is then seen to place his left hand on the Complainant’s right arm, whereupon the Complainant then clutches the beer mug with both hands while continuing to walk. SO #2 then brings up his right hand beneath his left hand, which is still on the Complainant’s arm, and tries to take the beer mug from the Complainant. The Complainant is then seen to pull the mug away violently, causing beer to splash everywhere. The Complainant then rotates to his left, while SO #2, who is still holding onto the Complainant’s arm with one hand, is pulled along with him. The Complainant then moves to the left and away from SO #2 and the beer stein is hidden from view beneath his torso. WO #8 then moves in on the Complainant’s right and tries to grab him from behind, while SO #2 is still to the Complainant’s left. The Complainant then falls back against the booth seat and begins to fight and kick against the officers. It is clear from the video footage that neither officer delivered any blows, strikes or kicks against the Complainant before he started to fight.

The video reveals that WO #8 and SO #2 were both now over top of the Complainant, whose legs can be seen to be kicking out. The Complainant then ends up on the floor, his legs still kicking, and the two officers try to move him onto his stomach, presumably to handcuff him to the rear of his body. The Complainant is clearly kicking and fighting. The two officers finally get the Complainant onto his stomach and SO #2 begins to straighten up, when the Complainant again rolls onto his side. WO #8, who was over top of the Complainant, then falls to the floor with him. WO #8 is then seen to hand her eyeglasses off to a witness, and SO #2 is seen to deliver three closed fisted punches to the Complainant’s head area. The Complainant is still fighting hard and both police officers are struggling to try and contain him. WO #8 is seen to try and key her radio, which is on her shoulder. The Complainant continues to roll around.

Things finally seem to calm and SO #2 again tries to get to his feet, but the Complainant continues to fight and both officers again move over top of him. The Complainant finally stops struggling and WO #8 appears to be speaking into her radio. As both police officers again try to roll the Complainant onto his stomach, he again starts to fight. The Complainant finally ends on his stomach, with both officers on top of his body, at which point he lifts his torso, and in doing so, lifts both officers off of the floor with him. Finally, one minute and 55 seconds after the police entered the restaurant, the Complainant finally stops struggling and everything appears to calm down.
WO #4 is then seen entering the restaurant, with his expandable baton drawn, and he kneels down to assist the two officers, and all three officers appear to be holding the Complainant down in order that the handcuffs can be applied. SO #1 is then seen to enter seconds after WO #4, and he too kneels beside the Complainant to assist. The Complainant does not appear to be moving at this point, and all four officers back away from him, while still kneeling on the floor.

Three minutes and 42 seconds into the video, WO #8 gets to her feet, followed by WO #4 and SO #1, while SO #2 is still seen kneeling at the Complainant’s head area. As the officers stand, the Complainant can now be seen lying on his stomach with his hands cuffed behind his back. The Complainant is assisted to a seated position and WO #4 is seen to move back and to collapse his baton and return it to his duty belt. All four officers are then seen standing around the Complainant, as he is seated on the floor, and appear to be speaking with him. SO #2 keeps one hand on the Complainant’s shoulder throughout. A waitress walks up to WO #8 and returns her glasses to her, which WO #8 then puts back on.

At four minutes and 28 seconds into the video, SO #1 and SO #2 are seen to assist the Complainant to his feet; the Complainant is still squirming, apparently against the handcuffs, and he suddenly pulls away and kicks out backwards at the officers, following which he continues to struggle against them.

At four minutes and 43 seconds into the video, SO #1 and SO #2 take the Complainant back to the floor, where he lands on his backside, kicking and flailing his legs. WO #8 is seen to grab onto the Complainant’s feet and the other three officers move back in and hold the Complainant down on the floor. The Complainant is seen on his side and he appears to stop fighting, whereupon the officers again roll him onto his stomach and he is again assisted first to his knees and then to his feet.

At five minutes and 21 seconds into the video, the officers move the Complainant, who is still struggling and resisting, towards the exit. The three male officers are holding him, while WO #8 walks on ahead. When the Complainant continues to resist, WO #4 again removes his baton and extends it, placing it between the Complainant’s cuffed hands and his back, forcing his torso to bend at the waist, and in that way pushes the Complainant towards the exit. At five minutes and 43 seconds into the video, everyone has exited the restaurant.

Upon reviewing the video, it is clear that the Complainant had a height and weight advantage over WO #8 and SO #2, and definitely appeared to have a strength advantage, as the officers struggled to control him only with their body weight. It is clear that without any resort to some force, other than their body weight, the Complainant would have overpowered the two officers, putting them and the other patrons in the restaurant at some risk. While the Complainant was described as having a strong physique, it is impossible to know whether he was simply a very strong man, or whether his strength or resistance was aided by his admitted consumption of cocaine and alcohol.

I further note that when SO #1 arrived at the restaurant, he described WO #8 and SO #2 as winded and gasping for air, fatigued, breathing heavily, and looking as if they had been through a battle, while WO #4 described the two officers as being clearly out of breath and looking for help. 
 
WO #8 described the interaction with the Complainant as using all of her strength to control the Complainant, and she believed that SO #2 had to do the same. WO #8 also indicated that she feared that if the Complainant got to his feet, she and SO #2 would be fighting for their lives, and that if they lost control, she would have had to resort to the use of her firearm to shoot the Complainant. WO #8 indicated that had SO #2 not delivered the two to three strikes to the Complainant when he did, that the struggle would have continued and she would have shot the Complainant.

SO #2 described himself as delivering individual stunning blows to the Complainant’s face, with a closed fist, after the Complainant tried to strike SO #2 with the beer mug, which SO #2 opined could have seriously injured or killed him. Once on the ground, SO #2 indicated that he could not allow the Complainant to get up because he could have easily taken over and it would have been “over” for SO #2. SO #2 indicated that he then delivered a right knee strike to the head area of the Complainant, which caused the Complainant to relent somewhat.

While the video does not clearly depict either the swinging of the beer mug by the Complainant against SO #2, nor that SO #2 delivered a knee strike to the Complainant’s head, as much of the detail is obstructed by the movement of the three bodies, I have no hesitation, on all of the evidence, in accepting that these two incidents did in fact occur. SO #2 indicated that he used the level of force which he did against the Complainant because both he and his partner were smaller in stature and he felt he had no other options, and would do the same again in the same situation. SO #2 described the physical altercation as scary, and openly conceded that the Complainant could have been injured by one of the strikes that SO #2 delivered to him.

While the Complainant alleges that he was then dragged out of the restaurant, based on the evidence of the civilian witnesses, as well as the video, it is clear that he was walking out of the restaurant on his own, and not being dragged.

Furthermore, while the Complainant alleges that once in the parking lot, he was taken to an ambulance where an unknown officer drove his head into some part of the exterior of the ambulance, causing his injury, I do not accept this allegation as it is contradicted not only by the two paramedics who were immediately present at the ambulance, but also by the evidence of CW #1. Further, both of the paramedics, as well as CW #1, and all of the police officers present, observed that the Complainant had already sustained some injury to his facial area prior to being removed from the restaurant, and that no further injuries were sustained by him after he was in the parking lot.

Based on the fact that the evidence of the police officers, as to what occurred inside of the restaurant, is fully corroborated by the CCTV footage, I accept that their evidence is credible as to what occurred outside of the restaurant as well. Additionally, the evidence of the two civilian witnesses outside of the restaurant, that being the two paramedics at the ambulance, is fully consistent with the evidence of the involved police officers, while the video, the witnesses inside the restaurant, and the witnesses outside in the parking lot, all contradict the evidence of the Complainant. As such, I find that the Complainant’s version of events is not reliable in its entirety, while the accounts of the remaining witnesses appear consistent in all areas.

The accounts of both the paramedics and the police witnesses indicate that the Complainant was escorted to the ambulance and, at the request of the paramedics, not immediately placed on a stretcher, but allowed to enter the ambulance under his own steam. As the Complainant was about to enter the ambulance, he was held by WO #1 on one side, and SO #1 on the other, with SO #1 assisting the Complainant onto the back step of the ambulance, as there was insufficient space for all three men to enter together. Once SO #1 was on the step, the Complainant then delivered a backwards ‘mule kick’ with his right leg, and then leaned back and pushed against the two police officers. While the kick just missed SO #1’s knee, the Complainant was brought back down from the step, while continuing to swear, resist, and pull away, and was taken to the ground in a controlled fashion.

Based on the video evidence from inside the restaurant, wherein the Complainant had also taken a backward kick against the officers, I have no difficulty in accepting that this in fact occurred at the ambulance as well. Furthermore, while the Complainant was taken to the ground yet again, I note that WO #2 indicated that when the Complainant was being taken down, WO #2’s sole focus was to ensure that the Complainant’s head did not strike the ground, and as such, WO #2 kept his hands on the Complainant’s head during the grounding, and ensured that at no time did that occur.

Once on the ground, SO #1 then placed his right knee on the Complainant’s shoulder area and used his right hand to push the right side of the Complainant’s face down against the asphalt, in order to prevent the Complainant from moving onto his side or lifting his shoulders, which would have allowed him to easily kick backwards. Other than pushing the Complainant’s face down, no force was used and at no time, according to all witnesses present, did his face strike the ground nor did he sustain any additional injuries. The Complainant was then placed into a Temporary Restraining Device (TRD) which was used to secure his legs, following which he was placed onto a stretcher, to which he was handcuffed. He was then transported to hospital, where he again attacked the officers once they had removed his handcuffs in order that he could be transferred to a hospital bed. At that point, the Complainant crouched down and body checked SO #1, and the Complainant was again taken to the ground. The Complainant does not assert that he sustained any injury during this third incident, nor was any observed.

On a weighing of all of the evidence, I fully accept that the Complainant was not injured in the parking lot of the Boston Pizza, that no officer drove his head into the outside of the ambulance, and that SO #1 was not responsible for any injury sustained by the Complainant, as all witnesses are clear that any injuries sustained by the Complainant had already occurred prior to his removal from the restaurant and that no further injuries were sustained thereafter.

On the weight of the reliable evidence then, I find that if the Complainant sustained a serious injury on the date of his interaction with the police, which appears unlikely based on the medical records, he was most likely injured when SO #2 delivered the three closed fisted strikes against the Complainant’s face, as clearly seen in the video and as conceded by SO #2, or when SO #2 delivered the one knee strike to the Complainant’s head, to which SO #2 openly admitted, despite it not being visible on the video.

On all of the evidence, I find that other than the three closed fisted punches and the one knee strike to the Complainant’s head during the physical altercation between the Complainant and SO #2 and WO #8, that no other strikes, kicks, or blows, were delivered by any officer. I further find that no resort was made to any use of force option, with the exception of WO #4’s resort to his expandable baton, which was used for leverage only and was never used to strike the Complainant.

While I have rejected the allegations as set out by the Complainant as to how he came to be injured, that, however, does not end the matter. Since there is a slim possibility, although unlikely, that the Complainant was seriously injured during his interaction with the police, an assessment is still required to determine whether or not the actions of SO #2, in attempting to take control of the Complainant and to place him under arrest, amounted to an excessive use of force in the 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 SO #2 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 information provided by the 911 caller, and as confirmed at the scene by CW #1, that the Complainant was clearly in contravention of s. 2 of the Trespass to Property Act (TPA) in that he had been asked to leave the restaurant and had refused to do so. Furthermore, once the Complainant swung his beer mug at SO #2, and by his own admission, threatened to kill the officers, they also had reasonable grounds to arrest the Complainant for these Criminal Code offences. As such, the apprehension and arrest of the Complainant by SO #2 and WO #8 was legally justified in the circumstances.

Based on the results of the CT scan, as defined in the medical records, while I find that the Complainant did not sustain a serious injury during this interaction with the police, even if he did so, it would most likely have occurred when he was resisting the officers’ efforts to remove him from the restaurant and then when he continued to resist and fight while they attempted to gain control over him and handcuff him, which I cannot find to have been an excessive use of force in these circumstances.

On reviewing the video evidence, along with the reliable witness evidence, it is clear that SO #2 and WO #8 were unable to gain control over the Complainant using only their body weight and physical strength, and that had the Complainant gotten the upper hand, both they and the occupants of the restaurant could have been at risk of harm from the Complainant, as he appeared completely out of control. As such, I accept that it was fully reasonable for SO #2 to deliver the three closed fisted punches and the one knee strike to the Complainant’s head and face area, presumably in order to stun him into acquiescence and allow the officers to gain control and place him in handcuffs. I find this especially so since the other possible non-lethal use of force options, the CEW, the OC (or pepper spray), and the baton, could not be effectively used in such close confines [2], even were they available to the officers at the time. I have also considered the fact that WO #8 had already considered that she would have had to resort to her firearm to stop the Complainant, if the strikes delivered by SO #2 had not proven to be effective.

In coming to the conclusion that SO #2 did not use any unnecessary or unjustified force against the Complainant, 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 SO #2 in attempting to take control of the Complainant fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention and to remove the risk that he continued to pose until he was restrained and handcuffed. I further find that SO #2’s actions were resorted to in a very fast moving and dangerous situation, with little time for contemplation.

In conclusion, on considering all of the evidence, I find that it does not leave me with reasonable grounds to believe that the force resorted to by SO #2, or any police officer who dealt with the Complainant on February 18 into February 19, 2018, was excessive, but rather it appears to have been measured and proportionate to the degree of resistance exhibited by the Complainant, and was only as much as was required to gain control over him, with no further force having been resorted to once the Complainant stopped fighting. As such, while I lack the required grounds for the laying of criminal charges, none shall issue.


Date: December 20, 2018




Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) No OPS officer by that name was present at the Boston Pizza restaurant. [Back to text]
  • 2) Particularly as they were in a restaurant with the potential to harm other patrons and staff. [Back to text]