Cruiser and motorbikeRunnersCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 18-OCI-032

Contents:

News Releases for this Case:

French:

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury reportedly sustained by a 27-year-old male (the Complainant) during his arrest on February 3, 2018.

The Investigation

Notification of the SIU

At approximately 9:55 p.m. on February 3, 2018, the Ontario Provincial Police (OPP) notified the SIU of the custody injury sustained by the Complainant.

The OPP reported that earlier on that date, at approximately 8:00 p.m., a police officer attempted a traffic stop of a vehicle. The vehicle pulled off the highway at the Twin Towers Restaurant, on Hwy 17 in the City of Dryden and the police officer noticed that the passenger and driver tried to switch seats.

A struggle ensued during the arrest of the Complainant, with the police officers eventually placing the Complainant into a police vehicle, following which he was taken to the Dryden OPP Detachment. The Complainant passed out and was given a dose of Narcan. [1] He was then taken to the hospital, where he was diagnosed with a broken foot.

The scene was not held for the SIU.

The Team

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

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Written Statement provided (undated)
CW #4 Written Statement provided: February 4, 2018

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

Subject Officers

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



Incident Narrative

On February 3, 2018, Witness Officer (WO) #1 left the Dryden OPP Detachment and drove eastbound on Hwy 17 where he noticed a black BMW cross the center line on the roadway. WO #1 got behind the BMW, which then pulled into a driveway at the Twin Towers restaurant, located at 13790 Highway 17, in the City of Dryden.

WO #1 noticed that the driver, the Complainant, and the passenger, Civilian Witness (CW) #1, switched seats. WO #1 approached the BMW and arrested the Complainant for obstructing a police officer. The Complainant resisted the efforts of WO #1 as WO #1 attempted to gain control of him. WO #1, assisted by a retired OPP Constable, CW #4, then gained control of the Complainant and he was handcuffed and transported to the OPP, Dryden detachment.

At the Dryden OPP detachment sally port, Dryden Police Service (DPS) officers, WO #4 and the Subject Officer (SO), as well as a Treaty Three Police Service (TTPS) officer, CW #2, were present. The Complainant was uncooperative and was physically moved to the lodging area. While in the lodging area, the Complainant resisted the efforts of the police officers to control him and to remove his clothing. The Complainant was taken to the ground and his clothing was removed, with the exception of his underwear, and he was then lodged in a cell.

Once in the cell, the Complainant was given a cell gown to wear. The Complainant was later found to be unresponsive in the cell, and a dose of Narcan was administered, following which the Complainant was taken to the hospital, where he was diagnosed as having a broken left foot.

Nature of Injuries / Treatment

An X-ray of the Complainant’s left foot revealed an oblique fracture at the base of the third metatarsal bone. [2] The fracture appeared to be hardening and was considered to be a sub- acute or chronic fracture. [3] There appeared to be a nondisplaced hairline fracture at the base of the second metatarsal bone. There was also a sub-acute traverse fracture of the fourth metatarsal bone. [4]

Evidence

The Scene

While it was difficult to determine when the Complainant may have been injured, the scene was determined to be at the Dryden OPP detachment, in the lodging area.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

On February 9, 2018, the closed circuit television (CCTV) footage of the OPP Dryden detachment sally port, lodging area, and cell area, from February 3, 2018, was obtained. The footage does not have audio. A review of the video was conducted and the following was observed:

  • At 16:13:24 hrs, WO #1 opened the right rear passenger door of a blue police vehicle. The Complainant stepped out of the police vehicle under his own power and stood in the opened door. His hands were handcuffed to the front of his body. WO #1 was facing the Complainant. The SO was to the left of WO #1;
  • At 16:13:28 hrs, the Complainant was grabbed by the arms by WO #1 and the SO and pushed toward the entrance to the lodging area; 
  • At 16:13:43 hrs, the Complainant was pushed to a seated position on a bench beside a desk in the lodging area. WO #3 and WO #2 were present. WO #1 was to the left of the Complainant’s upper body, WO #4 was to the right of the Complainant’s upper body, and the SO was near the legs of the Complainant. The police officers were struggling to control the Complainant;
  • At 16:13:57 hrs, the Complainant’s legs were lifted up by WO #4 or the SO;
  • At 16:14:18 hrs, the SO pulled the Complainant’s pants off;
  • At 16:14:40 hrs, WO #2 pulled the Complainant’s socks off;
  • At 16:14:51 hrs, WO #4 lowered the Complainant’s legs to the ground;
  • At 16:15:05 hrs, the SO’s left foot was on top of the Complainant ’s left foot, covering his toes, while WO #1, WO #4, and the SO, struggled to remove the Complainant’s shirt;
  • At 16:16:32 hrs, the police officers pushed the Complainant’s upper body and took the Complainant to the ground. The Complainant was handcuffed;
  • At 16:17:27 hrs, WO #1 and the SO pulled the Complainant to his feet by his upper arms. The Complainant had handcuffs on, with his hands behind his back; 
  • At 16:17:34 hrs, the Complainant, who was still wearing his underwear, had the garment search by the SO;
  • At 16:17:42 hrs, WO #1 was behind the Complainant holding his upper arms. WO #1 pushed the Complainant towards vestibule 2. The Complainant walked, however, it was difficult to tell if he limped;
  • At 16:17:51 hrs, the Complainant was placed in cell 7 and placed on a bed on his knees facing the wall;
  • At 16:18:02 hrs, the SO placed a cell gown over the Complainant’s head;
  • At 16:18:25 hrs, the SO removed the handcuffs from the Complainant;
  • At 16:28:54 hrs, the Complainant sat on the cell floor and rubbed his left foot;
  • At 16:34:59 hrs, the Complainant laid on his back with his head beside the metal toilet;
  • At 16:36:48 hrs, the Complainant rolled to his left in a semi-recovery position;
  • At 16:47:42 hrs, WO #2 entered the cell and the Complainant sat up with his back to the toilet;
  • At 16:48:46 hrs, WO #2, the SO, and WO #4, entered the cell and pulled the Complainant up by his arms and sat him on the bed; 
  • At 16:58:23 hrs, three EMS paramedics entered the cell;
  • At 17:29:15 hrs, a paramedic and WO #2 removed the Complainant from Cell 7 and placed him on a stretcher; and,
  • At 17:30:36 hrs, the Complainant was wheeled out of the sally port by the paramedics. 

Communications Recordings

The police transmission communication recordings were obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP, Dryden Detachment, the DPS, and the TTPS:

  • Arrest Report;
  • Police Transmission Communications Recording;
  • Videos from Dryden OPP Detachment of sally port area, lodging area, and cells;
  • Interview Reports (OPP) of two undesignated civilian witnesses;
  • List of Involved Officers;
  • Notes of CW #2 and WO #s 1-4;
  • Procedure: Prisoner Care Manual;
  • Procedure: Prisoner Care and Control;
  • Procedure: Prisoner Transportation; and
  • Written Witness Statements from CW #s 3 and 4.

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

  • The Medical Records of the Complainant relating to this incident; and,
  • Ambulance Call Reports (x2).

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

On February 3, 2018, at approximately 2:40 p.m., Witness Officer (WO) #1 was on routine patrol on Highway 17 in the City of Dryden, in an unmarked police vehicle, when he observed a black BMW crossing the yellow centre line on the highway and driving 25 km/h below the speed limit. As a result, WO #1 believed that the driver might be impaired and he followed the BMW into a driveway at the Twin Towers Restaurant located at 13790 Highway 17 and activated his emergency lighting system. While still seated in his police vehicle, and parked behind the BMW, WO #1 observed the front seat passenger, Civilian Witness (CW) #1, and the driver, the Complainant, switch places, with CW #1 then ending up seated behind the steering wheel. The BMW then began to roll backwards toward WO #1’s police vehicle, and he activated his siren in order to alert the occupants of the BMW as to what was happening. WO #1 then used his police radio to call for back-up.

CW #3, a retired OPP constable who was seated inside the restaurant at the time, and had a clear unobstructed view of the parking lot, observed the two motor vehicles enter the lot and then stop. While the officer was still seated inside the unmarked police vehicle, CW #3 observed the BMW start to roll backwards and the police officer reverse his vehicle and give a short siren blast.

The police transmissions recording confirms that at 2:41:54 p.m., WO #1 called in that he was in the Twin Towers parking lot performing a traffic stop, and provided the description of the vehicle as a black BMW X6 SUV, and the plate number, to be run on the computer. At 2:42:33 p.m., WO #1 transmitted, “Can you send me another unit? They just switched seats here.”

WO #1 then approached the driver door of the BMW and spoke with CW #1, who was seated in the driver seat, asking her to provide her licence, registration, and insurance. WO #1 also asked CW #1 why she had switched seats, which she denied doing. WO #1 asked CW #1 to give him the keys for the BMW, but she appeared unsure of how to turn off the car. Consequently, WO #1 indicated that he was satisfied that he had reasonable grounds to arrest both CW #1 and the Complainant for obstructing police (contrary to s. 129 of the Criminal Code).

WO #1 then moved to the front passenger door, where he spoke with the Complainant, advising him that he was under arrest and to get out of the car. When the Complainant refused to do so, WO #1 told him to get out of the car a second time. When the Complainant still made no movement to exit the car, instead indicating that he was going to call his father, WO #1 reached in through the open window and opened the door. WO #1 then used his right hand and grabbed the Complainant’s left wrist, while the Complainant began to struggle and resist.

WO #1 advised that he was surprised by the strength of the Complainant. He repeatedly told the Complainant to stop resisting as he struggled. WO #1 then drew his Conducted Energy Weapon (CEW) and told the Complainant to get out of the car or he would be “tazed.”

This evidence is consistent with CW #3’s statement, wherein he indicated that he observed WO #1 attempt to remove the passenger from the BMW and a struggle ensued, with the passenger, the Complainant, resisting strenuously and violently. CW #3 then observed the officer to disengage from the passenger and appear to point something at the Complainant, which CW #3 assumed might have been pepper spray. CW #4, a second witness inside the restaurant, also a retired police officer, observed WO #1 at the passenger door and observed some sort of commotion, with WO #1 being described as either moving back, or being pushed back, from the passenger door. Both CW #3 and CW #4 then exited the restaurant to see if they could assist.

As he approached, CW #4 observed that the Complainant was still seated inside the vehicle, with his legs partially out of the vehicle. He then heard WO #1 state that the Complainant was under arrest, and the Complainant responded, “You’re not arresting me!” The Complainant then began to flail his legs at WO #1 while WO #1 tried to grab the Complainant’s arm. WO #1 managed to gain control of the Complainant and removed him from the car, placing him up against the side of the car. As CW #4 got closer to the cruiser he asked WO #1 if he needed any help, and he assisted WO #1 to gain control of the Complainant, who was out of the vehicle at that point, but still struggling and resisting. Because the Complainant was physically resisting WO #1, CW #4 then moved in, while advising the Complainant that he was there to assist the officer. CW #4 grabbed the Complainant’s left arm to try and control him, while the Complainant continued to resist.

CW #4 heard WO #1 tell the Complainant that he was going to ‘taze’ him if he did not stop resisting, but the Complainant continued to fight. The Complainant then threw a backward kick at CW #4, making contact with his left front shin. CW #3 indicated that he repeatedly heard the Complainant say, “You’re not arresting me!” “You can’t arrest me!” while WO #1 repeatedly advised him to stop resisting. CW #3 described the Complainant as resisting both WO #1 and himself, while the Complainant was simultaneously kicking them. CW #4 specifically noted that the Complainant was wearing sandals and that one of the sandals came off during the struggle.

CW #4 described all three men as then falling to the ground due to the Complainant violently resisting, and the fact that the ground was snow covered and icy, making it difficult to gain any traction. Once on the ground, CW #4 observed that the Complainant had his arms under his torso, and WO #1 again indicated that if the Complainant did not stop resisting, he was going to ‘taze’ him.

WO #1 advised that he observed the Complainant face down on the ground with his arms underneath his body, at which point the Complainant grabbed WO #1’s left forearm, and WO #1 delivered a knee strike to the Complainant’s abdomen, in order to distract him and cause him to let go. CW #4 described getting the Complainant’s left arm out from under him and holding it in a ‘scissor lock,’ while WO #1 managed to handcuff the Complainant’s right hand, whereupon CW #4 provided the Complainant’s left arm, and the Complainant’s hands were handcuffed behind his back. Once back on his feet, the Complainant kicked CW #4.

CW #3 described the struggle as “a long couple minutes of violent resistance on the suspect’s part,” following which the Complainant was handcuffed, but continued to resist and struggle to try to get away from WO #1 and CW #4, at which point the Complainant was placed against the side of the BMW and then searched. CW #4 advised that WO #1 had to hold onto the Complainant, because of his active resistance, while CW #4 searched the Complainant’s pockets and the Complainant again attempted to kick CW #4 a number of times, with backward kicks.

WO #1 described the Complainant as refusing to walk and still resisting as he was escorted to the rear of the police vehicle and placed inside.

CW #3 observed WO #1 try to place the Complainant inside the rear seat of the police vehicle, managing to partially get the Complainant inside the car, but the Complainant brought up his legs in what he described as an apparent effort to prevent WO #1 from closing the door. Once inside the car, WO #1 observed that the Complainant was thrashing around, making the car rock and shake, while CW #3 observed him to start to scream and kick the rear window of the cruiser which was reinforced with steel strips. Similarly, CW #4 also observed the Complainant kicking at the interior of the car door on at least one occasion.

Later that evening, CW #4’s leg was quite sore and he noted that he had sustained a two inch hematoma and a small abrasion on his left shin, where he had been kicked by the Complainant.

Both CW #4 and CW #3 observed, after the struggle had ended, that WO #3 and WO #2 had arrived in separate vehicles, but neither was involved in the struggle with the Complainant. This evidence is consistent with that of both WO #3 and WO #2, and contradicts the evidence of CW #1, wherein she indicated that it was one male and one female police officer who struggled with the Complainant at the side of the car.

CW #1, in her evidence, indicated that WO #1 grabbed the Complainant and pulled him out of the car and onto the ground, while telling the Complainant to stop resisting. CW #1 then moved to the passenger seat of the car, in order to better see what was happening, when she observed that there were now two police officers fighting with the Complainant, a female officer, and WO #1, who had his knee in the Complainant’s back. She described both police officers, the male and the female, as having their weight on the Complainant and that they had full control over him, even though he was not resisting, while they continuously told him to stop resisting.

CW #1 indicated that the Complainant fought with the two police officers for a short time, following which they picked him up and dragged him to the police cruiser.

Based on the blatant and material inconsistencies between the evidence of CW #1 and the other witnesses present, and with the evidence of the Complainant himself, who clearly described the second person with whom he was struggling as a male and a civilian, and not a female police officer, I find that CW #1’s evidence is wholly unreliable and I reject her evidence in its entirety.

The Complainant alleges that he voluntarily exited the motor vehicle and, while he was doing so, WO #1 pulled out his CEW, at which point the Complainant went to his knees and put his hands up. Another man, CW #4, then put him into a choke hold, kneed him in the back, and punched the Complainant in the back of the neck. The Complainant further alleges that WO #1 punched him three times in the nose and face, and kneed him in the stomach, while the Complainant told them to stop hitting him as he was cooperating. The Complainant professes that at no time did he swear at the men. The Complainant also alleges that CW #4 then told him, “If you make one more move, I’m just going to snap it,” at which point he finally let go of the Complainant’s neck. The Complainant was then handcuffed with his hands behind his back and dragged to the police vehicle, where he was thrown into the rear seat. The Complainant advised that he was bleeding from his face in the police cruiser and was spitting blood; he also had a small gash over his left eyebrow which was caused by a punch from WO #1.

The Complainant, despite denying ever resisting WO #1, did concede that he told the officer at the time that he was not going back to jail, and once inside the police vehicle, he broke the door handle to the police cruiser in his desire to use the spare key to the BMW to escape.

The Complainant indicated that the BMW was then searched, and he was told that a “meth pipe” was found inside, which the Complainant denied being his. Instead, the Complainant asserted to the SIU investigators during his interview that he had not used any type of drugs or alcohol that day. This evidence appears to be directly contradicted by the medical records, which indicate that the Complainant’s toxicology screen revealed that he had 13 Mmol/L of ethanol (alcohol) in his blood (or the equivalent of 60 mgs of alcohol in one hundred millilitres of blood), and he tested positive for cocaine, methamphetamines, and amphetamines.

The Complainant does not allege that he sustained any serious injury as a result of his interaction with WO #1 and CW #4 in the parking lot of the Twin Towers Restaurant.

With respect to how the Complainant sustained his injury, he alleges that when he arrived in the sally port at the OPP Detachment, the police officers came to the door of the cruiser, grabbed him by the handcuffs, and threw him down. The Complainant described a “big guy,” presumably the Subject Officer (SO), WO #1, and two additional DPS police officers, as restraining him in the lodging area of the police station. He alleges that the big police officer then grabbed his foot and the Complainant stated, “Let go of my foot, you are going to break it!” The Complainant then felt something move in his foot and thought that his foot was “gone”.

The police officers then put the Complainant down and stripped off all of his clothing, including his pants, shirt, and underwear, and threw him naked into a cell, where they gave him a gown. The Complainant then lied to the police officers and told them that he had taken a ‘load’ of fentanyl pills, following which he was taken to hospital. The Complainant alleges that he told the doctor that his foot was broken. The Complainant denied ever having a broken foot prior to his interaction with police.

Fortunately, the entire interaction between the Complainant and the police at the OPP detachment was video recorded, leaving little doubt as to what actually occurred.

The video reveals that rather than the police officers coming to the cruiser door and grabbing the Complainant by the handcuffs and throwing him down, the Complainant exited the police vehicle under his own steam and stood up in the opened door to the car, at which point WO #1 and the SO grabbed him by the arms and pushed him toward the entrance to the lodging area.

Once inside the lodging area, the Complainant is seen to be pushed down into a seated position on a bench seat. Present at that time were WO #3, WO #2, WO #1, WO #4 (DPS), and the SO, and all of them are struggling with the Complainant.

The police officers are then seen to remove the Complainant’s clothing, apparently without his cooperation. While I note that at 4:15:05 pm, the SO is seen to cover the Complainant’s left foot with his foot, I note that this is not how the Complainant alleges that his foot was injured, alleging instead that it occurred when ‘the big officer’ grabbed his foot.

While the Complainant alleged that all of his clothing was forcefully removed and he was shoved naked into a cell, it is clear from the video that the Complainant is left with his underwear intact, which was searched, and he was then walked to the cell, again under his own steam but with WO #1 holding his upper arms and pushing him forward. He is then provided with a gown and his handcuffs are removed.

While it is not seen on the video, WO #4, in his statement to SIU investigators, indicated that as he was attempting to remove the Complainant’s footwear, while the Complainant was seated on the bench in the booking area, the Complainant moved his foot and cocked his leg as if to kick out, in response to which WO #4 grabbed hold of the Complainant’s foot, although he believed it to have been the right foot, and the Complainant immediately stated, “It’s broken, my foot’s broken.”

Based on all of the obvious contradictions between the evidence of the witnesses at the Twin Towers Restaurant parking lot and the evidence of the Complainant, and the contradictions between what is seen on the video and the evidence of the Complainant, as with the evidence of CW #1, I find that the evidence of the Complainant is not reliable with respect to his relating of the facts. Clearly, I accept the video evidence over that of the Complainant and reject the allegations of the Complainant in that regard. Furthermore, as the Complainant’s evidence is clearly unreliable with respect to those aspects which can be positively confirmed by other evidence, I find that I am unable to accept the evidence of the Complainant in its entirety, except where it is corroborated by other independent evidence, other than that of CW #1, who is equally unreliable.

With respect to WO #4’s statement that the Complainant appeared to be about to kick out, I have no difficulty, based on the observations of both the civilian witnesses and the police officers at the parking lot, in accepting that the Complainant continued to kick out at the police officers once at the station, as he had previously done in the parking lot.

Furthermore, based on the evidence contained in the medical records with respect to the fact that at least two of the fractures in the Complainant’s left foot were pre-existing, the fact that the Complainant was wearing sandals, or as described by WO #3, flip flops, in the middle of a snowy and icy day in February, and WO #4 immediately hearing the Complainant indicate that his foot was broken when he held onto it, I have no difficulty accepting that the Complainant’s foot was already broken prior to his interaction with the police.

While the medical records clearly indicate that the fractures at the base of the third and fourth metatarsals were pre-existing, and in the healing stages, there is an indication that the fracture at the base of the second metatarsal could have been newly sustained. I find that this would be consistent with the Complainant, as seen on the video at 4:28:54 pm, after he was placed into the cell, to be rubbing his left foot, and the swelling of the foot as described in his medical records. I hasten to add, however, that this evidence is as consistent, if not more so, with the Complainant having aggravated his previous injury when he forcefully kicked the interior door and steel reinforcements on the door of the police cruiser when he was placed inside, as it is with the Complainant’s previous injury simply being aggravated by either the actions of the SO in placing his foot over the Complainant’s left foot, or WO #4 grabbing and holding the foot. I further have no difficulty accepting that with two previous fractures of his left foot, that even just grabbing onto the foot to prevent the Complainant kicking, would have caused him significant pain. I further note that the radiologist’s report indicates that, “The changes in the proper clinical setting could be due to stress related injury”, which I have interpreted as meaning that stress alone, and not trauma, could be the cause of the “non-displaced hairline fracture at the base of the second metatarsal.”

As such, while there is some evidence that a hairline fracture occurred in the Complainant’s already twice fractured left foot, during his interaction with police, I must consider whether police resorted to an excessive use of force in their dealings with the Complainant. While the Complainant does not allege that his foot was injured while in the parking lot, the only actions, as viewed on the video and indicated in the police witness statements, which could have caused the injury were the SO’s actions in placing his foot over the Complainant’s left foot to maintain control over him while struggling to remove his clothing, or the action by WO #4 in grabbing onto the Complainant’s foot to stop him kicking.

Pursuant to s. 25(1) of the Criminal Code of Canada, 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 involved police 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.

On the record before me, it is clear that WO #1 had ample grounds to believe, when he first stopped the BMW, that the driver might be impaired, and later, when he observed the driver and passenger switching seats, and that CW #1, despite being then seated in the driver’s seat, was unfamiliar with how to turn the car off and remove the keys from the car, and she allowed the vehicle to roll backwards almost striking WO #1’s vehicle, that CW #1 and the Complainant were attempting to obstruct his investigation by obfuscating who the actual driver was. Once WO #1 attempted to arrest the Complainant, and the Complainant violently resisted, WO #1 also had reasonable grounds to arrest the Complainant for assault resist arrest (s. 270 of the Criminal Code). As such, the apprehension and arrest of the Complainant was pursuant to a lawful duty and based on reasonable grounds and the police officers would be immune from prosecution pursuant to s. 25 (1), as long as they used no more force than was necessary or justified in the circumstances.

In light of the finding of the methamphetamine pipe in the BMW, the methamphetamine powder in CW #1’s bra, and the Complainant’s utterance to WO #1 that CW #1 had methamphetamine concealed in her body, it was further both necessary and prudent that the Complainant be fully searched prior to his being placed in the cell area, in order to remove any drugs or other items by which he could cause harm to himself or others. When the Complainant continued to resist the removal of his clothing, I cannot find that the SO’s action in placing his foot over the Complainant’s left foot, not knowing that the foot was already twice fractured and not yet healed, in order to maintain control over the Complainant, and to remove his clothing as required, constituted an excessive use of force in the circumstances. It is clear that the action of the SO was in no way meant to be a use of force or to cause injury to the Complainant, but simply to quickly and efficiently accomplish the purpose of the search.

It is further clear that the Complainant tended to resort to kicking when dealing with the police officers, as illustrated by his behaviour at the parking lot, both when he attempted to kick WO #1 and when he was successful in kicking CW #4, and in his kicking of the police car door and window, as observed by numerous witnesses. As such, it was a reasonable assumption on WO #4’s part that when the Complainant cocked his leg, while the police were trying to remove his clothing, that his intent was again to kick out at the officers and it was reasonable for WO #4 to grab his foot to stop him from doing so. Again, I find that WO #4 did not intentionally grab the Complainant’s foot as a method of inflicting pain or force upon the Complainant, but simply to prevent his kicking out.

Furthermore, with respect to the SO putting his foot over the Complainant’s left foot, or WO #4 grabbing the foot, I find that it would have been unforeseeable that these seemingly innocuous actions would, or could, have caused a serious injury to the Complainant, and in all likelihood, based on the medical records, would not have done so had the Complainant not already had two pre-existing fractures to that foot.

As such, with respect to the actions of both of WO #4 and the SO, I cannot find that their actions amounted to an excessive use of force in these circumstances. In coming to this conclusion, I am mindful of the direction from 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]

Having fully considered all of the evidence in this matter, and having made findings of fact as based on the reliable and credible evidence before me, I find that the remaining evidence does not satisfy me that there are reasonable grounds to believe that either of the SO or WO #4, or indeed any police officer who dealt with the Complainant on February 3, 2018, resorted to an excessive use of force. As such, as I lack the bases for the laying of criminal charges, none shall issue.


Date: December 18, 2018




Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) Narcan is nasal form of naloxone for the emergency treatment of a known or suspected opioid overdose. [Back to text]
  • 2) An oblique fracture is a slanted fracture at any angle other than 90 degrees. [Back to text]
  • 3) An acute fracture is one considered to have just occurred, while a sub-acute fracture is one considered to have occurred weeks or months prior to discovery and is in the healing stage. A chronic fracture is one considered to have occurred sometime prior to discovery and has failed to heal over time. [Back to text]
  • 4) A traverse fracture is a fracture perpendicular to the long shaft of a bone. [Back to text]