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SIU Director’s Report - Case # 18-OCI-038

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 the serious injury reportedly sustained by a 30-year-old man (the Complainant) following his arrest, and while in police custody, on February 7, 2018.

The Investigation

Notification of the SIU

At approximately 4:27 p.m. on February 7, 2018, the Peterborough Police Service (PPS) notified the SIU of the custody injury to the Complainant.

The PPS reported that earlier on that same date, the Complainant went to the headquarters of the PPS to retrieve some property from the service’s property vault.

On arrival, the Complainant was arrested by members of the PPS Sex Crimes Unit (SCU) on the strength of outstanding arrest warrants. The Complainant was subsequently booked and lodged in the PPS holding cells, awaiting transport to bail court.

While being lodged in a cell, the Complainant sustained an injury to his right arm. Medical treatment was immediately sought and the Complainant was diagnosed with, and treated for, a fracture of his arm.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

The investigation involved the interview of the Complainant, four witness officers, and the two subject officers. The scene was both photographed and video recorded and all available relevant reports were obtained and reviewed. Additionally, all relevant PPS policy was obtained and reviewed.

Complainant:

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

Civilian Witnesses

As the incident took place within the Peterborough Police Station, no civilian witnesses were present.

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed

Subject Officers

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


Incident Narrative

On February 7, 2018, the Complainant arranged the pick-up of his personal property which was being held by the PPS. Unknown to him, the members of the PPS SCU were in possession of a warrant for his arrest and were planning to arrest him when he attended the PPS headquarters on Water Street in the City of Peterborough.

Upon entering the foyer, the Complainant was arrested by Witness Officer (WO) #3 and Subject Officer (SO) #1, after which he was brought into an adjacent interview room where he was subjected to a cursory search, handcuffed, cautioned, and advised of his rights to counsel.

Immediately upon being arrested, the Complainant began verbally objecting. When SO #1 and WO #3 started to escort the Complainant to the booking hall, he began physically resisting by dragging his feet and loudly expressing his displeasure at his arrest.

The Complainant was eventually paraded in front of WO #2, the booking officer and the station commander. Throughout the booking process, the Complainant continued his resistive posture by refusing to answer questions posed by WO #2 and refusing to co-operate when asked to remove his outer clothing and shoes; throughout, the Complainant was verbally abusive to the police officers present.

When WO #2 completed the booking process, the Complainant was told that he would be placed into a holding cell; at that point, the Complainant became even more aggressive, both verbally and physically.

SO #2 and SO #1 then secured the Complainant’s arms, at which point he made it abundantly clear that he would not be going into the cell under any circumstances. An effort was made to walk the Complainant from the booking hall into the cell block, but it immediately became necessary for the police officers to drag him along, as he refused to move his feet.

When the police officers had the Complainant at the entrance to the cell door, he resisted with all of his strength, by dropping his center of gravity to prevent his being put into the cell. On three occasions the police officers tried to place the Complainant into the cell, with his thwarting their efforts every time.

On the third attempt to place the Complainant into the cell, SO #2 and SO #1 pushed the Complainant forcefully into the cell, resulting in the Complainant landing against the cell wall at the foot of the cell bed. The Complainant immediately sat on the bed clutching his right arm, and WO #2 immediately requested the attendance of Emergency Medical Services (EMS) to see to the Complainant, following which he was transported to the hospital.

Nature of Injuries / Treatment

The Complainant’s arm was X-rayed at the hospital and it was discovered that he had sustained a fracture to his right arm. His arm was initially placed in a soft cast, followed later by surgery to repair the fracture.

Evidence

The Scene

The scene occurred in Cell #1 in the cells area of the PPS headquarters located at 500 Water Street in the City of Peterborough.

Subsequent to the start of the investigation, the main foyer of the PPS headquarters and the route taken from the interview room to the booking hall and cell-block were video recorded and photographed by a forensic investigator. A scale diagram was also prepared.

Cell #1 where the Complainant was held.

Cell #1 where the Complainant was held.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

The PPS provided a copy of the cell video of the Complainant being placed into cell #1 on February 7, 2018. There was no time/date stamp on the video.

The following is a summary of the video:

  • WO #3 first entered the video with the keys to the cell door. The door to the cell was opened by WO #3;
  • The Complainant entered the video with SO #1 and SO #2. The Complainant’s hands had been handcuffed with his hands behind his back;
  • The police officers and the Complainant entered the cell area. The Complainant was struggling with the police officers and appeared to be resisting the effort to place him into the cell;
  • The Complainant was using his right foot and kept placing it outside of the cell area. This prevented the door from closing without striking his foot, which was between the door frame and the door; 
  • WO #1 was also in the cell area and assisted the two police officers in getting the Complainant to stay in the cell. WO #1 removed his cell phone and handed it to WO #4 for safekeeping;
  • WO #2 was also present on the video;
  • WO #1 left the cell area and SO #1 and SO #2 attempted to leave. The Complainant continued to follow the police officers out of the cell and into the main hallway; 
  • The Complainant was still struggling with the police officers and WO #1 walked back into the cell area to assist; 
  • WO #1 walked out of the cell and SO #1 and SO #2 were still struggling with the Complainant;
  • SO #2 walked out of the cell and SO #1 was still inside with the Complainant;
  • SO #2 re-entered the cell with the Complainant and SO #1;
  • Both police officers attempted to leave the cell and the Complainant also attempted to leave the cell. Both police officers re-entered the cell area. SO #1 was observed pushing the Complainant up against the back wall of the cell. The Complainant appeared to go down on the bench inside the cell. After a short time, the police officers left the cell;
  • The Complainant was on the cell bed and appeared to be leaning toward his right side. The cell door was then locked;
  • WO #2 took control of the cell door. He placed the key into the cell door and appeared to be holding the door while the police officers left the cell. He then closed the door immediately after SO #1 and SO #2 exited;
  • The police officers left the cell area and went into the booking hall. A few minutes later, WO #2 came back into the hallway outside of the cell and appeared to be speaking with the Complainant; 
  • WO #2 stayed with the Complainant for about ten minutes and then WO #1 went into the cell area and spoke to the Complainant. Shortly thereafter, WO #2 left the cell area; and,
  • Approximately ten minutes later, two paramedics arrived in the booking hall outside of the cell area. A uniform police sergeant entered the cell and the Complainant exited the cell and then went off camera.

Communications Recordings

As the entirety of the event took place within the PPS station, there were no relevant communications recordings.

Materials obtained from Police Service

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

  • Arrest Report;
  • Notes of WO #s 1-4 and SO #s 1 and 2;
  • PPS Letter re Subject Officer Interviews-Feb 15, 2018;
  • Prisoner Record of Detention;
  • Procedure: Use Of Force;
  • Procedure: Arrest;
  • Procedure: Search of Persons;
  • Procedure: Prisoner Care and Control;
  • Photos of Injuries sustained by SO #2;
  • Five video segments from inside the PPS, including the entry of the Complainant in the public area, the booking area, and the cell area;
  • Show Cause Hearing Report; and,
  • Scenes of Crime Officer (SOCO) Report.

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

  • The Medical Records of the Complainant related to this incident.

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

During the course of this investigation, in addition to interviewing the Complainant, SIU investigators interviewed four police witnesses and the two subject officers, who both made themselves available to be interviewed. Additionally, all officers provided their memorandum book notes for review. In addition to the witness evidence, fortunately, the Peterborough Police Service (PPS) was able to provide video which included the Complainant’s entry into the public area of the PPS headquarters, where he was arrested, his processing in the booking area, and the efforts made to lodge him into a cell pending his transport to the courthouse for a bail hearing and potential release. The Complainant was, immediately after his arrest in the open area of the PPS, taken into an interview room which was not being recorded. However, as there are no allegations that anything untoward occurred in the interview room, the investigation was not hampered by the absence of a recording of that room. The following factual synopsis is based primarily on the video recordings, which were consistent with the evidence of all six police officers interviewed, and contradicted the allegations of the Complainant as to how he came to be injured.

On February 7, 2018, the Complainant arranged the pick-up of his personal property being held by the PPS at police headquarters at 500 Water Street in the City of Peterborough. Unbeknownst to the Complainant, members of the PPS Sex Crimes Unit (SCU) were in possession of a warrant for his arrest, issued by a Judge, and were planning to arrest him when he arrived at the station and hold him for a bail hearing.

Members of the SCU were out on surveillance on February 7, 2018, with the intention of following the Complainant from the residence where he was temporarily staying, to the station, while other SCU members were in the foyer of the station awaiting his arrival. On entering the foyer, the Complainant was arrested by Witness Officer (WO) #3 and Subject Officer (SO) #1. He was then brought into an adjacent interview room where he was subjected to a cursory search, handcuffed, cautioned, and advised of his rights to counsel.

Immediately upon being arrested, the Complainant began verbally objecting to what was happening. When SO #1 and WO #3 started to escort the Complainant from the main floor of the station to the booking hall, which is in the basement, he began physically resisting by dragging his feet and loudly expressing his displeasure at his arrest.

As this was occurring, other PPS officers became involved. SCU members WO #1 and WO #4 assisted in escorting the Complainant to the booking hall by going ahead and opening doors, or remaining close by in the event that their assistance was required. SO #2, a patrol officer, also accompanied the SCU members during the escort.

The Complainant was eventually led to the booking hall, where he was paraded in front of WO #2, the booking officer and station commander. Throughout the booking process, the Complainant continued his resistant posture by refusing to answer questions posed by WO #2 as part of the booking process and refusing to co-operate when asked to remove his outer clothing and shoes. Throughout, the Complainant was verbally abusive to the police officers present.

The intention of the arresting police officer, as heard on the booking video, was to get the Complainant booked and transported to court in time for an appearance before a Justice of the Peace that same day. Unfortunately, because of the Complainant’s lack of co-operation, it was apparent that the officers might not be able to get him to court in time for a formal remand or release.

The booking video reveals that the police officers repeatedly told the Complainant to calm down and that he was only being treated the same way as everyone else coming into the station, while he made comments such as, “I’m only being violent because this is all bullshit,” and, “You’re trying to book me in. I’m not going in.” Various officers in the booking area are heard to repeatedly tell the Complainant that if he would simply cooperate, he could have his bail hearing and possibly be released that same day, with WO #3 on one occasion indicating, “The more you dick around,” the more likely he would not make it to court that day.

While the Complainant continually asserted to the officer that there was no way he would be released because he was not from the area, the officers responded by suggesting that whoever was waiting out in the car could possibly sign as surety. When asked to remove his two outer sweaters, the Complainant again refused to cooperate, whereupon the booking officer, WO #2, told him, “We’re running out of time here. Take the sweaters off, otherwise you’ll be here all night. We’re trying to work with you.” The Complainant, however, continuously maintained that “I’m not going in that shit” and repeatedly referred to his arrest as being “bullshit.”

While the Complainant alleges that he was cooperating with the police officers, the video completely contradicts that assertion. The most that can be said of the Complainant’s behaviour is that he was not actively assaulting any police officer, but he was being openly verbally and physically resistant, and was making every effort to thwart the efforts of the police officers to get him booked into the station so that he could be transported to the courthouse for his bail hearing.

As the booking was underway, it was apparent to the police officers involved that the Complainant’s resistive behaviour was escalating, causing them to believe that he may have been contemplating an escape, as a result of which WO #1 secured the main entry/exit door to the booking hall as a precaution.

When WO #2 completed the booking process, the Complainant was told that he would be placed in a holding cell while the determination regarding the timing of a court attendance was made. At that point, the Complainant became even more aggressive, both verbally and physically.

SO #2 and SO #1 secured the Complainant’s arms, at which point he made it abundantly clear that he would not be going into the cell under any circumstances. An effort was made to walk the Complainant from the booking hall into the cell block, but it immediately became necessary for the police officers to drag him along, as he refused to move his feet.

WO #3 went ahead and opened the door both to the cell area and to cell #1, and placed the keys into the lock, in order to facilitate the process. When the police officers had the Complainant at the entrance to the cell door, he resisted with all of his strength by dropping his center of gravity to prevent his incarceration. At that point, the officers actively involved in attempting to lodge the Complainant into the cell were SO #2 and SO #1, although WO #3 was present outside of the cell, as was WO #2, with WO #1 entering the cell on occasion to assist, and WO #4 standing at the doorway between the booking area and the cell area, keeping watch.

The first time that the police officers pulled the Complainant into the cell, he placed his leg out through the door entrance in order to prevent the cell door being closed. He was then able to wrap his right hand around the door frame, again preventing the cell door from being closed. This scenario continued until WO #1 pried the Complainant’s fingers away from the door frame.

On the second occasion, when SO #2 and SO #1 appeared to have successfully deposited the Complainant inside the cell, and were exiting, the Complainant also immediately stood and attempted to leave behind the officers, necessitating the officers again having to re-enter the cell to put the Complainant back inside. This happened on a third occasion as well, again resulting in SO #2 and SO #1 re-entering the cell and dealing with the Complainant.

On the final attempt to place the Complainant into the cell, SO #1 was actively pushing the Complainant into the cell, as he was attempting to leave, and SO #2 was standing behind SO #1. The video reveals SO #1 pushing the Complainant up against the back wall of the cell, following which the Complainant then appears to finally stop resisting, and sits on the bed cradling his right arm.

SO #1 advised that he heard a popping sound, immediately followed by a scream from the Complainant, who instantly grabbed his right arm. All of the police officers then quickly exited and the cell door was closed and locked. SO #1 was then heard to advise that he may have injured the Complainant’s arm. WO #2 is then seen to stand at the cell door speaking with the Complainant, who confirmed that his arm had in fact been injured during the final attempt to lodge the Complainant into the cell.

WO #2 then immediately requested the attendance of the Emergency Medical Service (EMS) to attend to the Complainant. EMS subsequently attended and assessed the Complainant’s injury, resulting in his transport to the hospital for further assessment.

The Complainant’s arm was X-rayed at the hospital and it was discovered that he had sustained a fracture to his right arm. His arm was initially placed in a soft cast, followed later by surgery to repair the fracture.

The Complainant alleges that once inside the cell, the police officers pulled him to the floor and held him down, following which the Complainant was able to get onto the bed and sit down, only to be thrown back down onto the floor yet again. The Complainant further alleges that when he was thrown to the ground, he landed on his right side, causing his right arm and the right side of his head to strike the floor, with several of the involved police officers landing on top of him, causing severe pain to his right arm. The Complainant alleges that he then immediately hollered out that he had been injured, following which the police removed his handcuffs.

The video, however, does not support the Complainant’s allegations and fully confirms that the Complainant’s handcuffs had already been removed prior to his being placed inside the cell, which had allowed him to grab onto the door to prevent it from being closed. The video further confirms that the Complainant and the police officers never went to the floor, although it is possible that the Complainant confused the ‘bed’ with the floor, as both were made of cement. As indicated earlier, however, the video fully confirms the evidence of the police officers, and as it is the best evidence of what occurred, it forms the basis for the finding of facts as outlined above.

Despite my rejection of the version of events as outlined by the Complainant as a result of it being unreliable, that does not end the matter, as there is no dispute that the Complainant was seriously injured during his interaction with the police. An assessment is therefore required to determine whether or not the actions of SO #1 and SO #2, in using force to lodge the Complainant in the cell, amounted to an excessive use of force in the circumstances thereby vitiating their protection from prosecution pursuant to s. 25 (1) of the Criminal Code.

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

On the facts before me, it is clear that the PPS had a valid arrest warrant, authorized by a Judge, to arrest and detain the Complainant. As such, both the arrest and subsequent attempts to lodge him in a cell pending his transport to the court in order that he be brought before a Justice of the Peace within the time prescribed by the Criminal Code, and to have his bail hearing, if necessary, were in the execution of their lawful duties and were reasonable. As such, as long as no more force than was necessary and justified in the circumstances was used, the officers would be immune from prosecution.

On these facts, where it was clear that the Complainant had to be lodged in a cell following his arrest, and where it was equally clear, both on the Complainant’s verbal comments as heard on the booking video, and his active physical resistance, as seen on the cell video and as indicated by all of the police officers present, the Complainant left SO #2 and SO #1 no alternatives but to resort to a degree of force slightly greater than that which the Complainant was exhibiting, in order to lodge him in the cell. Furthermore, it is clear that until the point where the Complainant’s arm struck either the cement wall or the cement bed, and he was injured, he had no intention of giving up on his efforts to resist the officers and leave the cell. It was only after SO #1 pushed the Complainant in on the last occasion, whereupon SO #1 heard a popping sound followed by a scream from the Complainant, who then sat on the bed and cradled his arm, that the Complainant finally gave up the fight and acquiesced to remaining in the cell.

On these facts, while it is clear that the Complainant was injured as a result of the officers’ active efforts to lodge him into a cell, while attempting to overcome his resistance, it is equally clear that no force at all would have been necessary had the Complainant simply acquiesced and complied with the various and numerous requests by the police to simply cooperate and he could have very well been released from court on that same day. As such, it appears clear that the Complainant, by his active physical resistance, forced SO #2 and SO #1 to resort to a slighter greater and opposite reaction to his actions, resulting in the injury sustained. Had the Complainant not resisted, I have no hesitation in finding that no force at all would have been necessary, and there would have been no injury.

In all of the circumstances, the option resorted to by SO #1 and SO #2, in pushing the Complainant back and into the cell after his numerous attempts to exit, was more than reasonable in the circumstances and the only option available to the officers. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R v Nasogaluak [2010] 1 S.C.R. 206, as follows: 
 
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

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

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

In conclusion, while the Complainant’s injury was unfortunate, in these circumstances, I find that he left the police officers with no other options when he actively and incessantly resisted the actions of the involved police officers to lodge him into the cell. Furthermore, I have taken note of the fact that no police officer involved with the Complainant, at any time, resorted to any use of force options nor were any strikes, punches, or kicks, ever delivered to the Complainant, with the only force resorted to being to push him back into the cell and quickly close the door. On this record, I have no hesitation in finding that neither of SO #1, nor SO #2, resorted to any force that can be described as unnecessary, excessive, or unjustified. Therefore, as I lack the necessary basis for the laying of criminal charges, none shall issue.


Date: December 20, 2018




Tony Loparco
Director
Special Investigations Unit