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SIU Director’s Report - Case # 18-OCI-057

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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 39-year-old male when he was apprehended by the Halton Regional Police Service under the Mental Health Act.

The Investigation

Notification of the SIU

On February 23, 2018, at 8:59 a.m., the Complainant notified the SIU of the serious injury he sustained during his arrest by members of the Halton Regional Police Service (HRPS) eight days prior in Milton. He reported that on February 14, 2018, he deliberately overdosed on prescribed medication because he was despondent over a domestic situation. He called Emergency Medical Services (EMS) when he realized that he no longer wished to commit suicide and was taken to Milton District Hospital (MDH) where he was treated and placed under a Form 1 under the Mental Health Act (MHA) for later assessment. On February 15, 2018, while still under the authority of the Form 1, the Complainant left the hospital and started to walk home. He was soon intercepted by police and apprehended. A struggle ensued during the apprehension and the Complainant was taken to the ground. His left shoulder was dislocated during the incident.

The Team

Number of SIU Investigators assigned: 4

Complainant:

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

Civilian Witnesses

CW Interviewed

Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Incident Narrative

On February 15, 2018, a nurse from MDH called the HRPS to report that the Complainant had eloped from the hospital while detained there by a Form 1. Subject Officer (SO) #1 and SO #2 were dispatched to the Complainant’s address.

SO #2 spotted the Complainant walking towards his home and the officers drove towards the Complainant, who attempted to hide between two houses. SO #2 exited his vehicle and advised the Complainant that he had to return to the hospital, but the Complainant refused. SO #2 grabbed the Complainant’s arm and tried to reassure him that he was not in trouble. The Complainant pulled away and the SO #1 ran over to assist SO #2. Together, the officers took the Complainant to the ground. The Complainant managed to stand back up and he was taken to the ground again.

The Complainant was eventually handcuffed with his hands behind his back. It is alleged that he told the officers while they were handcuffing him that he had a pre-existing shoulder injury and his arms ‘did not bend that way.’ The officers nevertheless handcuffed him with his hands behind his back, resulting in his shoulder becoming dislocated.

After the Complainant complained of pain and reassured the officers that he would no longer resist, the officers removed his handcuffs and re-handcuffed him with his hands in front of him. The Complainant was then transported back to MDH.

Evidence

The Scene

The Complainant was apprehended in front of a residence in a mixed commercial and residential area of Milton. No surveillance devices were found in the vicinity of the arrest.

Communications Recordings

On February 15, 2018, at about 11:00 a.m., a nurse called the HRPS dispatcher to report an elopee from MDH.

The nurse told the dispatcher that the Complainant, who was admitted to MDH under a Form 1, had walked out of the main front door prior to being assessed. She supplied the Complainant’s address, his description and noted that he was wearing black pants, a black jacket and a white hooded sweater.

The dispatcher then broadcast the information. SO #1 accepted the call and drove to the Complainant’s address to await the Complainant should he be heading home. SO #2 agreed to back up SO #1. SO #1 was somewhat familiar with the Complainant having taken an initial report hours earlier from the Complainant’s estranged girlfriend, the CW, who reported that the Complainant had caused damage at the residence that they shared. At that time, SO #1 informed the Civilian Witness (CW) that the Complainant was at MDH for treatment of an overdose of prescription medication.

At about 11:30 a.m., SO #1 reported that he and SO #2 had apprehended the Complainant near his address and were returning him to MDH. SO #1 further reported that the Complainant had sustained a shoulder injury.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HRPS:
  • CAD Overview;
  • Communication Recordings;
  • Duty Roster;
  • Email correspondence;
  • General Report regarding Provincial Stats (MHA);
  • General Report regarding Suicides and Attempt Suicide;
  • General Report regarding Tenant Protection;
  • Notes of SO #1; and
  • Supplementary Occurrence Report.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Section 17, Mental Health Act -- Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

Analysis and Director's Decision

On February 15, 2018, the Complainant sustained a serious injury after being apprehended under the Mental Health Act (MHA). The night before, the Complainant was detained at Milton District Hospital (MDH) under the MHA after attempting suicide. The Complainant left the hospital without being cleared by a doctor and MDH staff reported his absence to the police. Subject Officer (SO) #1 and SO #2 of the Halton Regional Police Service (HRPS) attended the Complainant’s residence and attempted to apprehend him to return him to MDH. It is alleged that the HRPS officers used excessive force against the Complainant by forcefully moving his arms behind his back to be handcuffed after they had been informed the Complainant had a pre-existing injury to his shoulder. The Complainant was nevertheless handcuffed with his hands behind his back and his left shoulder became dislocated.

SO #1 and SO #2 were both designated as subject officers in the SIU’s investigation, which consisted of interviews with the Complainant and a civilian witness. SO #2 agreed to be interviewed and SO #1 provided the SIU with a copy of his incident notes. The communications recordings and the Complainant’s medical records were also obtained and reviewed. Although there are significant contradictions between the officers’ accounts and the Complainant’s account, after a careful review of evidence I have been able to determine the material circumstances surrounding the Complainant’s apprehension.

The incident occurred after the Complainant left the MDH while detained there pursuant to a Form 1 under the MHA. The Complainant left MDH at around 10:30 a.m. on February 15, 2018, and returned to his home. He had not been cleared by a psychiatrist or been given permission to leave the hospital.

On February 15, 2018, SO #1 and SO #2 were dispatched to the Complainant’s residence in Milton. SO #1 was dispatched at around 10:40 a.m. because the CW (who lived at the same address as the Complainant) had returned home and called the police to report issues with the Complainant. At around 11:08 a.m., SO #2 was also dispatched to the residence in response to a call from the MDH. A nurse at the MDH had reported to the police that the Complainant had left the hospital without a MHA assessment being completed or being properly discharged by a physician. SO #2 was concerned that the Complainant may return home and that SO #1 was by himself.

After SO #2 arrived at the residence, dispatch broadcasted a description of the Complainant. SO #2 spotted the Complainant walking towards the home. Both SO #1 and SO #2 drove towards the Complainant. The Complainant spotted the police vehicles and attempted to hide between two houses. SO #2 got out of his vehicle and called out to the Complainant and told him that he had to return to the hospital. The Complainant refused and SO #2 grabbed the Complainant’s right arm, stating that he was not in any trouble but that he had to return to the hospital. The Complainant pulled away from him, protesting loudly, and SO #1 ran towards them to assist. SO #2 claims that the Complainant continued to resist and the officers brought him to the ground to handcuff him. However, the Complainant managed to stand up, also causing the officers to stand back up as well. [1] The officers took him to the ground again and SO #2 threatened to use his conducted energy weapon (CEW) against the Complainant, but he was unable to access it. The Complainant was eventually handcuffed with his hands behind his back.

It is alleged that the Complainant told the officers while he was being handcuffed that he had surgery to his right shoulder and that his arm did not move in the way the officers were trying to move it. Despite this, the officers forced his arms behind his back and at this moment his shoulder dislocated. Both officers claim that the Complainant mentioned his pre-existing shoulder injury after he was already handcuffed with his hands behind his back. SO #2 said the Complainant complained that his shoulder hurt after he was handcuffed and told them that he had a metal plate in his right arm. This is consistent with SO #1’s notes which indicate that the Complainant said his arm was “full of metal” and complained of shoulder pain after the handcuffs were applied. After the Complainant complained of pain and reassured the officers that he would no longer resist, the officers removed his handcuffs and re-handcuffed him with his hands in front of him.

The Complainant was then transported back to MDH, where it was discovered that he had dislocated his shoulder. The Complainant placed the injured shoulder back in the socket himself.

On this record, I am unable to conclude that either subject officer committed an unlawful assault in relation to the Complainant’s injury. Assault causing bodily harm is made out where a person intentionally applies force to another person, without the consent of that person, and that force causes bodily harm. Section 25(1) of the Criminal Code provides a defence for police officers who use force that is reasonably necessary in the execution of their lawful duties. The officers’ actions must therefore be assessed against this standard.

I will start by considering the lawfulness of the Complainant’s apprehension. Section 17(d) of the MHA allows a police officer to apprehend a person who they have reasonable grounds to believe (a) has attempted to cause bodily harm to himself, and (b) is suffering from an apparent mental disorder that would likely cause serious bodily harm to the person. Clearly, SO #2 had reasonable grounds to believe that the Complainant had attempted to harm himself. SO #2 was aware that the Complainant was taken to the hospital for a suicide attempt and that he was detained under a Form 1 at about 3:00 a.m. In my opinion, it was also reasonable for SO #2 to believe that the Complainant remained a threat to himself because his suicide attempt was very recent and he had not been psychiatrically assessed. I am mindful that SO #2 did not articulate these as his reasons for apprehending the Complainant and instead told the SIU that he formed the opinion that the Complainant was a danger to himself and others because of his violent behaviour towards the officers. The problem with this explanation is that the Complainant became violent towards the officers only after SO #2 had already initiated the apprehension. Although SO #2 did not address his subjective reasons for initiating the apprehension, I am satisfied that I can infer that SO #2 believed he had grounds to apprehend the Complainant from his order to the Complainant that he had to return to the hospital. It can also be inferred that the basis for this belief was the information that was available to the officer at the time.

Having found that the officers were acting within the execution of their lawful duties, I will now consider whether the level of force used was excessive. Both SOs, in their statement or notes, described the Complainant as violently resisting arrest. Unfortunately, there is no independent or objective evidence that confirms or denies this. [2] I am nevertheless satisfied that, on either account, I have insufficient evidence to believe that the subject officers unlawfully assaulted the Complainant. According to the officers, the Complainant was actively resisting throughout his apprehension and demonstrated considerable strength by standing up while two officers attempted to keep him to the ground. In these circumstances, handcuffing the Complainant with this hands behind his back was reasonably necessary to control him. Even if the Complainant were not violently resisting I still believe the force used was reasonably necessary. The Complainant was, at the very least, passively resisting by not cooperating and ignoring commands to stop resisting arrest. While it is concerning that the officers may have ignored the Complainant’s statement about a pre-existing injury, the Complainant initially had his right hand in his pocket and SO #2 was concerned that the Complainant may have a weapon. In these circumstances, I believe that handcuffing the Complainant with his hands behind his back was reasonably necessary to protect officer safety. In coming to this conclusion, I have considered the jurisprudence about reasonable force which is clear that the standard to which police 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.).

Finally, I have also considered whether there are grounds to believe that the subject officers committed the offence of criminal negligence causing bodily harm contrary to s. 221 of the Criminal Code. Section 219 of the Criminal Code states that “[e]very one is criminally negligent who in doing anything, or omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” The decision of the Court of Appeal for Ontario in R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.), sets out the test for criminal negligence as requiring “a marked and substantial departure from the standard of a reasonable person in circumstances.” This is a high threshold which is not met by the conduct of the subject officers. The SOs did not demonstrate a marked and substantial departure from the conduct of a reasonable police officers by handcuffing the Complainant, who was resisting apprehension. Nor did the SOs show a wanton or reckless disregard for the Complainant’s safety. In fact, the strength of the evidence indicates that the officers’ intention was to help the Complainant by returning him to MDH. Once the Complainant agreed to be cooperative and was no longer a threat his handcuffs were reapplied with his arms to the front.

I am accordingly unable to form reasonable grounds to believe either subject officer committed a criminal offence in relation to the Complainant’s injury. While I believe that the Complainant’s injury was caused when he was handcuffed with his hands behind his back, this action fell within the scope of force the subject officers were permitted to use by law and was not criminally negligent. Thus, no charges will issue and the file will be closed.



Date: December 24, 2018


Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) This was also reflected in SO #1’s notes which indicated that SO #1 almost went over the Complainant’s shoulders as the Complainant stood up. [Back to text]
  • 2) The Complainant was vague on the details regarding his own behaviour throughout the apprehension and I believe he possibly chose not to address his own resistant behaviour. The subject officers, to the contrary, described the Complainant’s (and their own) behaviour in consistent detail and I believe their account is the accurate version of the apprehension. However, as I will address, I do not believe it is necessary to choose between the two accounts because even assuming the Complainant’s account is accurate, I do not believe the subject officers committed a criminal offence. [Back to text]