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SIU Director’s Report - Case # 18-PCI-065

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 a serious injury sustained by a 24-year-old man (the Complainant) during his arrest on February 22, 2018.

The Investigation

Notification of the SIU

At approximately 8:00 p.m. on March 4, 2018, the Ontario Provincial Police (OPP) notified the SIU of a serious injury sustained by the Complainant during his arrest on February 22, 2018.
The OPP reported that on February 22, 2018, the Complainant was arrested for impaired driving by the SO. During the arrest, a struggle ensued between the SO and the Complainant; the Complainant later complained of a sore ankle. On February 23, 2018, the Complainant went to the hospital for X-rays, following which he underwent surgery on March 4, 2018 for a fractured ankle. The OPP was notified of the Complainant’s injury later that day.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

No civilian witnesses were identified nor did any come forward to be 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

Subject Officers

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


Incident Narrative

On February 22, 2018, the Complainant was stopped pursuant to the Highway Traffic Act by the SO of the OPP Norfolk County Detachment, on Front Road in the Town of Port Rowan. The Complainant was asked to produce his documents, which he did, in the course of which the SO observed an open empty beer bottle lying beside the Complainant on the front seat of the motor vehicle. After checking the Complainant’s documents in his police vehicle, the SO returned to the Complainant’s vehicle and directed the Complainant to exit his vehicle; the Complainant did not initially comply, instead questioning the officer; after three requests to exit the vehicle, the Complainant eventually did so.

Once outside of the car, the Complainant made a sudden movement, and the SO tackled him to the ground, during the course of which the Complainant heard a pop in his right ankle. When the SO then attempted to handcuff the Complainant, the Complainant was again resistant, and the SO delivered several distractionary strikes to the Complainant’s head and body, followed by a threat that the SO would deploy his CEW if the Complainant did not comply, at which point the Complainant gave up his hands and was handcuffed.

Despite the injury to the Complainant’s right ankle, of which he made several police officers aware, and the fact that he was heavily limping, the Complainant was not offered any medical assistance at the police station. Following his release at 2:48 a.m., the Complainant made his own way to a hospital where he was assessed.

Nature of Injuries / Treatment

The Complainant was seen at hospital, his right ankle was X-rayed, and he was assessed as having sustained a malleolus fracture of his right ankle. The surgeon was of the opinion that the best option for the Complainant’s recovery was surgery and, on March 4, 2018, the Complainant had a plate and six pins surgically inserted into his ankle.

Evidence

The Scene

The arrest took place at the roadside in the area of 57 Front Road in the Town of Port Rowan, Ontario.

Video/Audio/Photographic Evidence

Video from Police Station for February 23, 2018 (times are as per the 24-hour clock)

0040 hrs: The Complainant is ushered into the station; he is limping and appears to be favouring his right leg;
0049 hrs: The Complainant’s handcuffs are removed;
0052 hrs: The Complainant’s boots are removed; he needs assistance from WO #4 to remove his right boot;
0058 hrs: The Complainant speaks to counsel;
0106 hrs: The Complainant enters the Breathalyzer room and is limping; and
0144 hrs: The Complainant leaves the Breathalyzer room.

Communications Recordings

February 22, 2018 (times are as per the 24-hour clock)

2349 hrs: The SO advises the dispatcher that he is stopping a vehicle on Front Street in Port Rowan near a funeral home; a residential area; and
2352 hrs: The SO advises the dispatcher that everything is OK now.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the Norfolk County OPP Detachment:

  • Computer Aided Dispatch (CAD) Event Details Report; 
  • Police Transmissions Communications Recording;
  • Notes of WO #s 1-4;
  • Video from OPP Detachment with respect to the booking in and obtaining of breath samples from the Complainant; and,
  • General Report authored by the SO.


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

  • Medical Records of the Complainant related to the incident under investigation, with consent.

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 216 (1), Highway Traffic Act -- Power of police officer to stop vehicles/ escape by flight

216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

Section 32, Liquor Licence Act -- Conveying liquor in vehicle, boat

32 (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit.

Exception

(2) Subsection (1) does not apply if the liquor in the vehicle,
(a) is in a container that is unopened and the seal unbroken; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.

Search of vehicle or boat

(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without warrant, enter and search the vehicle or boat and search any person found in it.

Analysis and Director's Decision

On February 22, 2018, the Complainant was driving on Front Road in the Town of Port Rowan, when he was stopped by a marked OPP cruiser operated by the SO of the Norfolk County Detachment. After investigating the Complainant, the SO arrested him for impaired driving contrary to s. 253 of the Criminal Code, as well as resisting arrest pursuant to s. 270 (1) (b). The Complainant was then transported to the police detachment, where he provided breath samples and was then charged and released. In the days following his release, the Complainant attended the hospital and had his right ankle x-rayed, following which he was booked in for surgery to repair his fractured ankle. On March 4, 2018, the Complainant underwent surgery and had a plate and pins placed into his ankle; on that same date, the OPP were notified of the serious injury sustained by the Complainant and the SIU was notified and commenced an investigation.

During the course of this investigation, the only civilian witness interviewed was the Complainant himself, as no other witnesses came forward or were identified as having been present. In addition to the Complainant, four police witnesses were also interviewed, with the SO, the subject officer, declining to be interviewed or to provide his notes for review, as was his legal right. The SO did however provide the SIU investigators with a third person narrative of the arrest of the Complainant which he had authored to assist in the prosecution of the Complainant on his criminal charges. SIU investigators also obtained and reviewed the communications recording of the police transmissions during the arrest of the Complainant, as well as the videos from the OPP detachment which captured the booking in and the taking of breath samples from the Complainant. There is little dispute as to the facts.

The Complainant, after having gotten lost as he was driving home, at approximately 11:35 to 11:45 p.m., noticed flashing lights behind him and pulled over to the side of the road. At that point, the SO approached his vehicle and told him that his tail light was out and requested that he produce his driver’s licence, ownership, and insurance for the motor vehicle he was operating. As the Complainant reached inside the pocket of his jacket, which was lying on the front seat, for his documents, he saw an empty beer bottle lying on the seat; this was also observed by the SO. The Complainant then provided his documents to the SO, which the SO took away with him, returning to his window moments later and directing the Complainant to exit his vehicle. The SO advised the Complainant that he was not being placed under arrest at that time, but that he had to turn off his vehicle and exit. The Complainant did not immediately do so, instead questioning the officer as to the basis for his request. Upon the SO requesting that the Complainant exit his vehicle a third time, and reaching for the door, the Complainant finally complied.

According to the Complainant, he was holding his jacket and cell phone in his right hand, and had a small knife clipped to his belt. The Complainant exited, closed the driver’s door behind him, and faced the windshield of the car with the SO behind him. The SO then requested that the Complainant put his hands on the hood of the vehicle. The Complainant indicated that he went to grab for his cell phone, in order that it not fall to the ground, when the SO tackled him and they both went to the ground. The Complainant heard a pop in his right ankle, prior to his striking the ground. The SO then took hold of the Complainant’s right wrist and ordered him to give up his left arm, which the Complainant refused to do. The SO then punched the Complainant in the right side of his head and rib area eight times, and repeatedly told the Complainant to stop resisting, while the Complainant told the SO to stop hitting him.

When the SO warned the Complainant that he would use his Conducted Energy Weapon (CEW or ‘Taser’) on him, if he did not give up his hands, the Complainant questioned the need to give up his hands and what he was under arrest for, to which the SO responded that he was being arrested for drinking and driving offences. The Complainant then stopped resisting and gave up both his arms to the SO, and he was handcuffed with his hands behind his back. The Complainant then advised the SO that his ankle hurt, and, when other police officers arrived, he was assisted to his feet and to a police cruiser.

Upon arrival at the police detachment, when the Complainant attempted to exit the police vehicle, he realized that he could not put any pressure on his right foot and had to hop into the detachment. In his statement to SIU investigators, the Complainant advised that he told a police officer that his right ankle hurt and that it was broken. After providing two breath samples into an approved instrument, as required by law, the Complainant was charged and released from the station at 2:48 a.m. and he took a cab home.

The following day, the Complainant went to hospital where his ankle was x-rayed and the doctor advised him that it had been fractured. An appointment was then scheduled for surgery, and on March 4, 2018, the Complainant underwent surgery and had a plate and six pins inserted into his right ankle.

While the SO, the only other party present for the arrest of the Complainant, opted not to attend for an interview with SIU investigators and to be questioned on his actions, his utterances at the scene to two of the other police officers, and the third person narrative of the incident authored by the SO, which he provided to the SIU investigators, provides at least some evidence of what occurred.

WO #1, the first officer to arrive on the scene after the SO called for assistance, observed the Complainant lying on the ground, face down, with his hands cuffed to the rear and an empty beer bottle on the ground in front of him. WO #1 indicated that the SO told him that he had stopped the Complainant for driving erratically and that he observed open liquor in the car when he approached. The SO also mentioned that the Complainant had a pocket knife in his pocket, which the SO removed, and that the Complainant kept hiding his hands in the area of his waist, crotch, or leg. The SO indicated that he had to use force to control the Complainant when he arrested him.

WO #1 stated that as he and the SO assisted the Complainant to his feet, he noted that the Complainant was limping as he was led to the police vehicle. Upon searching the Complainant’s vehicle, WO #1 located two more bottles of beer. Once at the station, WO #1 indicated that he assisted the Complainant into the booking room and that he, WO #1, told the booking officer, WO #4, that he had seen the Complainant limping.

WO #1 was also present while the Complainant was providing the two required breath samples, and he made a note that the Complainant told him that his ankle had been injured during the arrest. WO #1 did nothing with this information.

WO #4 acknowledged that he observed the Complainant to be limping as he entered the booking area and, when he asked him, as part of the booking process, if he had any injuries or complaints of injuries, the Complainant told him that his right ankle was sore. WO #4 made no further inquiries as to the cause or nature of the possible injury, nor did he summon any medical assistance for the Complainant.

According to WO #2, when he attended to assist the SO, he was told by the SO that he had pulled the Complainant over for impaired driving and that the Complainant was uncooperative when the SO asked him to exit his vehicle. The SO further indicated to him that the Complainant had a knife and that he had his hands tucked away and would not show them. When the SO got the Complainant’s hands out, a beer bottle fell from the Complainant and onto the ground. The SO stated that he then grabbed the Complainant and “the fight was on and he took him down to the ground right away.” WO #2 indicated that the SO told him that he had been concerned for his personal safety, and he illustrated a motion with his arms in which he swept his arms to one side, to indicate the manner in which he had grounded the Complainant.

Despite the SO having apparently detailed to each of WO #1 and WO #2 that he stopped the Complainant’s motor vehicle for driving erratically or for impaired driving, that unfortunately does not accord with his written narrative of the incident, wherein he wrote that he believed the driving of the Complainant’s motor vehicle to be “suspicious”, and he noted “that the area that the vehicle was observed in had a high volume of break and enter activity recently and believed that this vehicle, due to its driving behaviour and its out-of-town residence, may be linked,” which appears to have little to do with drinking and driving.

The narrative goes on to detail that at 11:41 p.m., the SO activated his emergency equipment and the vehicle pulled over, at which time he observed that one tail light on the vehicle was not functioning. While the SO described the Complainant as nervous and appearing to take a long time answering questions, at no point does he indicate that he believed this behaviour to be indicative of impairment; instead, he noticed an open bottle of beer on the front passenger seat, and a case of beer in the back (I note that this was apparently not seen by WO #1, who later searched the vehicle and indicated that he only observed two bottles of beer.)

The narrative indicates that the SO then ran the Complainant’s documents on his in-car computer, following which he returned to the vehicle and told the Complainant that he was going to search the car, as a result of his observing open liquor in the car in contravention of the Liquor Licence Act. The SO then directed the Complainant to turn off the car, which he did, and to exit. Despite the request, the Complainant simply sat in his vehicle. When the SO asked him a second time, the Complainant asked him, “Why?” whereupon the SO again explained the authority provided him under the Liquor Licence Act and he again directed the Complainant to exit. The report indicates that it was only when the SO cautioned the Complainant about obstructing police, that the Complainant then finally exited the vehicle, holding his jacket between his legs as he was walking.

The narrative details how the SO then told the Complainant to drop the jacket, and he did so, at which point the SO saw a pocket knife hanging out of the Complainant’s front left pocket. The SO immediately removed the knife. The Complainant then turned around and began to reach for his front waistband with his left hand, with the SO directing him to show his hands. When the Complainant continued to reach for his waistband, the SO pushed the Complainant against the hood of the car, while continuing to direct him to show his hands. When the Complainant ignored the commands, and was still attempting to grab something in his front waistband, the SO, “utilized a grounding technique, forcing him and the SO to the ground. The SO landed on top of the male’s back with the male’s chest towards the ground.” The report goes on to indicate that the SO then grabbed the Complainant’s right arm, but he refused to show his left arm, as a result of which the SO, “utilized empty hand strikes to the male’s head in order to gain compliance and control.” The Complainant then placed both hands behind his back and, when the SO began to apply the handcuffs, “the male pulled both arms away again and began grabbing at the SO’s right wrist. The SO then delivered more empty hand strikes to the male’s head, at which point compliance and control was gained.”

According to this prepared narrative, it was only after he placed the Complainant under arrest for impaired driving and resisting arrest, at 11:52 p.m., that the SO detected a “strong odour of alcohol emanating from the male” (which appears to beg the question as to what the arrest for impaired driving was based upon, if the odour of alcohol was not detected until after the arrest and there was no erratic driving noted). The SO then observed the Complainant to be limping and favouring his right leg, as he was escorted to the police vehicle.

The breath samples taken from the Complainant confirmed that he had been drinking prior to his arrest, as his blood/alcohol level was well above the legal limit.

Based on all of the evidence, it appears not to be in dispute that the Complainant’s ankle was fractured during his interaction with the SO, and specifically when the SO took the Complainant to the ground. As such, the question to be answered is whether the SO was justified in his actions, or whether he resorted to an excessive use of force and did thereby cause the injury to the Complainant.

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 the SO 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.

Having reviewed all of the evidence in this matter, I find that the Complainant is a credible and reliable witness, based on the fact that he openly conceded some facts which reflected badly upon him, including the presence of the beer bottle in his motor vehicle, and his resistance as against both the SO’s direction to exit his vehicle and his direction to give up his hands to be handcuffed.

On the other hand, I find that the SO’s narrative of the incident appears to be contradicted by his own statements to his fellow officers at the scene as to the reason behind his stopping the Complainant’s motor vehicle. I note that WO #1 related that the SO told him that he stopped the car for driving erratically and that the SO told WO #2 that he stopped him for drinking and driving, while in his narrative, the SO makes no mention of erratic driving [1], instead indicating that he felt the vehicle was driving suspiciously in an area where break and enters were frequent. Finally, according to the Complainant, the SO told him that he was stopping him for a broken tail light.

On the whole, I find the evidence of the Complainant quite credible and I have based my decision on his version of events. Having said that, however, the inability of the SO to consistently articulate the reason why he stopped the Complainant’s motor vehicle, while likely germane to the trial of the Complainant on his Criminal Code charges, does not change the fact that in the context of the SIU investigation, pursuant to s. 216 of the Highway Traffic Act (HTA), the SO was acting lawfully when he stopped the Complainant and asked him to produce his documents. Furthermore, once the SO spotted the open beer bottle in the car, as confirmed by the Complainant himself, the Liquor Licence Act authorized him to search the vehicle. As such, pursuant to s. 25 (1) of the Criminal Code, the first two requirements, that the SO be acting in the execution of a lawful duty and that he was acting on reasonable grounds, are satisfied, leaving only the question of whether his action in grounding the Complainant, which ultimately led to his injury, was justified in these circumstances.

While it is clear to me that the actions of the various police officers in this matter leave much to be desired, including the failure of WO #4 to investigate any further after the Complainant told him that he had an injury, the failure of WO #1 to alert WO #4 that the Complainant had disclosed to him that he believed his ankle was broken and that it had occurred during his arrest, and the failure of any of the officers to initiate a call to paramedics in order that his injury could be seen and attended to, which resulted in an ultimate delay in the notification of the SIU for some ten days or more, these are matters to be addressed by the OPP Commissioner and do not influence my decision as to whether or not the SO acted outside of the limits of the criminal law when he took the Complainant to the ground and caused his ankle to be broken.

The facts as openly conceded by the Complainant indicate that he was being both obstructive and resistant when the SO asked him to exit his motor vehicle, and later when he refused to give up his hands to the SO for handcuffing. Furthermore, I note that the SO only initiated taking the Complainant to the ground after he had seen the knife, which the Complainant openly conceded was on his person, and when the Complainant described himself as reaching out to grab his cell phone, as a result of which the SO tackled him to the ground. While we are without the benefit of the SO’s thinking as to why he reacted as he did, I find that the combination of the presence of a weapon and the sudden movement of the Complainant in his attempt to grab his cell phone would have been sufficient to cause any police officer stopped in the middle of the night at the side of the road with an obstructive male, to react as quickly as possible to take control of that male. The jurisprudence is clear, police officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.)) nor should they be judged to a standard of perfection (R. v. Nasogaluak [2010] 1 S.C.R. 206.). Additionally, I have taken note of the quote relied upon by Justice Power of the Ontario Superior Court of Justice in Chartier v. Greaves, [2001] O.J. No. 634, as follows:

It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.).

Furthermore, I have taken note that, despite having been taken to the ground, the Complainant openly conceded that he continued to resist the SO and refused to give up his hands, even after the SO had delivered a number of blows to the Complainant’s face and body, and that it was not until the SO threatened him with the use of the CEW that he finally stopped resisting. As such, it appears that the SO’s response was both measured and proportionate to the amount of resistance being put forward by the Complainant, and that once the Complainant was fully handcuffed, no further force was used, as indicated both by the Complainant and the three later responding police officers.

On this basis, while I have some reservations with respect to the actions of the SO, and the later inaction of other police officers at the police station in failing to see to the Complainant’s medical needs, I find that the evidence does not satisfy me that there are reasonable grounds to believe that the SO, despite the unfortunate injury sustained by the Complainant, acted outside of the limits of the criminal law. As such, since I lack the basis for the laying of criminal charges, none shall issue.


Date: January 17, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) In the narrative authored by the SO, his only mention of the manner of the Complainant’s driving was that he “stopped at the stop sign for a prolonged period of time”, which I would hardly qualify as erratic. [Back to text]