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SIU Director’s Report - Case # 18-OCI-124

Contents:

News Releases for this Case:

French:

Mandate of the SIU

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

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

Information restrictions

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

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


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

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

Other proceedings, processes, and investigations

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

Mandate engaged

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

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

This report relates to the SIU’s investigation into the serious injury sustained by a 23-year-old man (the Complainant) following his arrest on April 21, 2018.

The Investigation

Notification of the SIU

At approximately 2:20 p.m. on April 22, 2018, the Cornwall Community Police Service (CCPS) notified the SIU of the Complainant’s custody injury.

The CCPS reported that on April 21, 2018, at 11:15 p.m., WO #1 and WO #2 arrested the Complainant for a domestic incident. He resisted arrest and was subdued at the scene by two police officers. He complained of a sore jaw, and was taken to the police station. He refused to get out of the police cruiser at the station and was pulled out and taken into the booking area, where he continued to be uncooperative. The SO became involved and the Complainant was placed into a cell. The CCPS reported that indications were that the booking sergeant may have struck the Complainant in the face. The Complainant was taken to the hospital and, at 1:30 a.m., the CCPS learned that the Complainant had a broken nose.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

No civilian witnesses were identified, nor did any come forward to provide information to SIU investigators.

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed



Subject Officers

The SO Interviewed, notes received and reviewed


Incident Narrative

At approximately 11:15 p.m. on April 21, 2018, a 911 call was received reporting that the Complainant, who was the ex-husband of one of the occupants of the house, was knocking at the patio door; the male was reported to have left the area of the residence ten minutes later.

A second call came in approximately 15 minutes later, from the same caller, reporting that the Complainant had re-attended at the residence, had again knocked at the door, and was yelling at the caller, and then caused mischief to property outside of the residence, after which he again fled the area.

WO #1 was dispatched on the call and located the Complainant crossing Brookdale Avenue, just south of Cornwall Centre Road, in the City of Cornwall. WO #1 arrested the Complainant and he was transported to the CCPS station.

Upon arrival, the Complainant refused to exit the police cruiser; after being told to exit several times, and refusing to do so, WO #1 physically removed the Complainant from the police cruiser and he was taken into the station to be booked in.

During the booking-in process, in front of the SO, who was the booking sergeant, the Complainant became very agitated and refused to answer any questions. The Complainant’s handcuffs were then removed, and WO #1 briefly stepped out of the booking room. The CCTV reveals the Complainant raising both arms to the SO, whereupon the SO places the Complainant into a headlock and both fall to the floor. Once down, the SO appears to deliver one or more blows to the Complainant.

When WO #1 heard elevated voices and the sound of a scuffle, he returned to the booking room and assisted the SO, and the Complainant was again handcuffed and placed into a cell. Once in the cell, the CCTV video shows the Complainant bang his head on the concrete block wall.

The Complainant was later transported to hospital.

Nature of Injuries / Treatment

A CT scan was performed on the Complainant, with the conclusion that the Complainant had sustained a, “left-sided nasal bone fracture without significant displacement. There are associated tiny chip fracture fragments originating from the nasal spine. No other additional fractures detected.” The Complainant was discharged without any treatment required, as the fracture was expected to heal without medical intervention.

Evidence

The Scene

The scene took place at the CCPS station, in the booking room, which was adjacent to the outer room. A staircase led from the outer room to the basement, where the cell was located. There were traces of what appeared to be blood stains located on the walls and bed in the cell.

Scene Diagram

Scene diagram

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Expert Evidence

On April 22, 2018, the Complainant was examined at the hospital. An X-ray and a CT scan of his facial bones was conducted and he was diagnosed with a fracture of the nasal spine, with several bone fragments dislodged.

The on-duty physician in the Emergency Department provided an opinion as to the possible cause of the injury, indicating that nasal fractures can result from a blow to the nose and can be caused by a variety of movements, each of which would be defined as a blunt force trauma. The doctor opined that multiple mechanisms of such injury would be possible, including: the face being smashed down on a hard object, such as the hood of a vehicle; the face receiving punches from a closed fist; or, a person smashing their own face into a wall or hard surface.

Video/Audio/Photographic Evidence

Several videos were provided by the CCPS from within the police station; summaries of those videos follow.

Camera “Garage (Sally Port)”

WO #1 drove into the garage, WO #2 followed on foot. WO #1 opened the rear passenger side door and spoke with the Complainant, who was not visible inside the car. The Complainant was walked from the garage into the booking area, escorted by WO #1; WO #2 and the SO were present.


Camera “East”

The Complainant was helped to his feet by WO #1 and the SO, turned around and held against the left wall by both police officers. The SO conducted a search of the Complainant. The Complainant had his coat removed. WO #1 left the room, returned with a bottle and applied a substance from the bottle to the Complainant’s hand, following which a ring was removed by WO #1 and placed on the desk. WO #1 left the room. The SO held the Complainant by the shoulders against the wall. The Complainant raised both arms between the SO’s arms. The SO moved the Complainant to the right and engaged him in a headlock and they spun to the right and down to the floor. WO #1 returned to the room and moved to the right of the SO to assist. The SO moved his right arm three times, in succession, in apparent strikes toward the Complainant’s head; where the blows landed is not visible on the video. The Complainant then had handcuffs applied and was escorted out of the room.


Camera “West”

The Complainant turned to face the SO. The SO held the Complainant by his right upper arm and left shoulder. The Complainant raised his arms between the SO’s arms. The SO spun the Complainant to the right, in a headlock, and they both fell to the floor. The SO placed his right hand on the Complainant’s face and punched the Complainant in the face (the contact was either using the SO’s fist or forearm). WO #1 is seen holding the left arm of the Complainant. Together, the SO and WO #1 turned the Complainant over to lie face down on the floor. The handcuffs were applied to the Complainant by the SO, following which the Complainant was lifted to his feet by the SO and WO #1. The Complainant was walked from the booking room.


Camera Outside “Cell # 1”

WO #1 had control of the Complainant as they arrived at the cell. There was an obvious red mark on the Complainant’s right cheek and blood near the right corner of his mouth. He was moved into the cell by WO #1. There was a brief struggle. WO #1 pushed the Complainant onto the concrete bed and held him face down. WO #2 was present and engaged in conversation with the Complainant, while WO #1 continued to maintain control of him. WO #1 stood up and released his pressure on the Complainant. All police officers left the cell. The Complainant was still handcuffed, with his hands behind his back, seated on the bed area. The SO locked the cell door. The Complainant moved sideways to his right and suddenly banged his own head on the concrete block wall, striking the top right side of his head.

Communications Recordings

The 911 caller reported that the Complainant was trying to get into the house and that he had smashed patio furniture. Units were dispatched and the caller was asked to remain on the line. The caller reported that the Complainant took off as soon as the police officer arrived.

A dispatcher communicated information to police officers in regards to the Complainant’s bail conditions. The Complainant’s grandmother provided his description and current location to the police officers. WO #1 reported that he had arrested the Complainant and transported him to the police station.

The SO told the dispatcher that he was going “to keep these two down there, because he was violent and assaultive.”

Materials obtained from Police Service

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

  • Arrest Report;
  • Background Event Chronology;
  • 911 Call Recordings;
  • Police Communications Transmissions Recordings;
  • CCPS videos from the Sally Port/Garage, Booking Hall, Cell Area;
  • Booking Form;
  • Domestic Violence Risk Management (DVRM) Report;
  • Duty Roster;
  • Event Details Report;
  • General Report;
  • Involvement History of the Complainant;
  • Involvement Occurrence Report;
  • Notes of WO #s 1-5 and the SO;
  • Prisoner Log;
  • Procedure: Search of Persons;
  • Procedure: Arrest;
  • Procedure: Use of Force;
  • The Complainant’s Recognizance of Bail;
  • Training Records of the SO and WO #1 and WO #2; and
  • Written Statements of WO #1 and WO #2.

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

  • Medical Records of the Complainant related to this incident, obtained with his 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.

Analysis and Director's Decision

On April 21, 2018, at 11:15:44 p.m., a 911 call was received by the CCPS from a caller reporting that a man was smashing things outside of the house from which she was calling. She also indicated that he was destroying her car in the driveway, was trying to smash patio furniture into the house, and was now pounding on the door; the caller identified the man causing the mischief as being the Complainant. The caller identified herself as calling from the residence of the Complainant’s former girlfriend, from whom the Complainant was on court-ordered bail conditions at the time not to have any contact, or to be within 150 metres of her residence. Police were dispatched in response to the call but, at 11:21:33 p.m., prior to the arrival of the police, the caller reported that the Complainant had fled through the backyard.

At 11:29 p.m., the Complainant was located in the area of Brookdale Avenue and Cornwall Centre Road in the City of Cornwall, where he was arrested by WO #1 for breaching the conditions of his bail release; he was then transported to the police station.

During the course of the Complainant’s time in custody, he sustained an injury and he was taken to the hospital, where it was discovered that he had sustained a fracture to his nasal spine.

Since the Complainant appears to have been injured while in police custody, either at the roadside or inside the police station and away from public view, there were no civilian witnesses to the incident, with the Complainant being the only civilian interviewed. In addition to the Complainant, however, five police witnesses, as well as the subject officer, the SO, were interviewed, with all providing their memorandum book notes to SIU investigators for review.

Additionally, and fortunately, the inside of the CCPS station was under constant video surveillance, and almost every second of the Complainant’s time in custody at the station was recorded on CCTV, which was provided to SIU investigators. While the Complainant failed to mention in his statement both his obstructive behaviour, and his physical resistance, which were clearly seen on the CCTV footage, causing me to approach with caution the reliability of his account of his interactions with the police officers, the fact remains that the Complainant was injured during his interaction with them on April 21, 2018, requiring a determination of whether or not the injury was caused as a result of an excessive use of force by any of the officers who had contact with him. The following narrative is derived from the CCTV footage, along with the reliable eyewitness evidence.

The Complainant, in his statement to the SIU, related that he was walking on Brookdale Avenue at about midnight on April 21, 2018, when he saw a marked police cruiser driving parallel to him, but he kept walking. The Complainant described himself at that time as having consumed a number of alcoholic beverages and he placed himself at a five or a six on a scale of one to ten for sobriety, with ten being falling down drunk; at no time in his statement, does the Complainant make any reference to being at his former girlfriend’s residence earlier that evening.

As he was walking, the Complainant alleges that WO #1 grabbed him from behind, swung him around, and forced his head against the hood of the police cruiser. The Complainant was then told that he was being charged with breaching the conditions of his bail release, and he was handcuffed with his hands behind his back and pushed into the rear seat of the police cruiser, face down, and told to stay there and be quiet. The Complainant alleged that he told the officers several times that he wished to speak with his lawyer and that he required medical attention, as his jaw hurt from striking the hood of the police car.

WO #1, followed by WO #2 in a separate police cruiser, then transported the Complainant to the police station. Once in the garage area of the police station, WO #1 and WO #2 walked the Complainant into the booking area, where the SO was present. The Complainant recalled that he again demanded to speak with his lawyer and to get medical attention, but the SO told him to calm down, so he (the Complainant) stopped talking. At that point, he alleges, the SO told the Complainant that he presumed, from his actions, that he no longer wished to speak with counsel. The SO then had the two uniformed police officers remove the handcuffs from the back of his body, and he was re-handcuffed to the front, in order to accommodate his being searched.

According to the Complainant, the SO then held the Complainant’s face against a cement block wall to search his pockets and clothing; this was done in the presence of three or four police officers. The Complainant agreed that he was agitated at the time, and was yelling that he wanted to speak to a lawyer. At one point, the Complainant was able to turn to face the SO, and he screamed at him about his right to counsel.

The Complainant indicated, in his statement, that the SO then took him by the right arm and the back of his head, and pulled him forcefully to the floor, where he landed on his right side and then rolled onto his back. The SO then punched the Complainant in the face with his left fist, three times, causing him severe pain to his right cheek, nose, and lips; he was also bleeding from his nose and mouth.

Other police officers then dragged the Complainant to a cell and placed him face down on the concrete bed. The Complainant spat blood on the wall of the cell and vomited into the toilet. Two of the police officers, one of whom was WO #2, then stayed near his cell until he had calmed down, at which point WO #2 removed the Complainant’s handcuffs and told him that she would arrange for a call to his lawyer. After speaking to his lawyer, the police officers called for an ambulance and the Complainant was taken to the hospital, where he was diagnosed with a fractured nose.

There is little dispute between the evidence of the Complainant and the police officers, including the SO, as to the actions of police inside the police station, and there is no dispute that the SO struck the Complainant; the differences between the evidence of the Complainant and the SO appear more in the nature of why the SO struck the Complainant, and the actions of the Complainant, while in custody.

According to WO #1, while he agrees that he approached and exited his police cruiser on Brookdale Avenue, after he had driven alongside of the Complainant, who ignored the presence of the police officer and the police cruiser, his statement differs from that of the Complainant in that WO #1 indicated that he approached the Complainant and immediately took physical control by holding the Complainant’s left arm and pushing on the back of his shoulder, causing the Complainant to turn slightly sideways and lean across the hood of his police cruiser. WO #1 described using his right forearm to put enough pressure on the Complainant’s back to hold him in place, while holding the Complainant’s hands together with his left hand; WO #1 then informed the Complainant that he was under arrest for breaching the conditions of his bail release.

WO #1 described the Complainant as arguing and indicating that he had only been walking down the street and that, at least twice, he tried to stand up, but WO #1 was able to hold him in place over the hood of the police cruiser. Upon the arrival of WO #2, the Complainant was then handcuffed with his hands behind his back and WO #1 again told the Complainant the reason for his arrest and read him his right to counsel (pursuant to the Canadian Charter of Rights and Freedoms, s. 10). WO #1 further described the Complainant as ignoring WO #1, refusing to acknowledge that he had been advised of his right to counsel, refusing to indicate whether or not he wished to exercise his right to counsel, continuously speaking over WO #1, and demanding medical attention for his sore jaw.

With the exception of the opinion of WO #1 that the Complainant refused to indicate whether or not he wished to contact counsel, this evidence is substantially consistent with that of WO #2, who indicated in her statement that upon her arrival, she observed WO #1 to have the Complainant bent forward over the hood of his police cruiser and was holding him down on the hood. WO #2 then approached and handcuffed the Complainant with his hands behind his back. She described the Complainant as being very agitated, and yelling loudly to the effect that the police had no reason to arrest him and demanding to speak with a lawyer.

Neither WO #1, nor WO #2, indicated that they used any force, or observed any force used, against the Complainant at the roadside.

Upon arrival at the police station, WO #1 described the Complainant as refusing to exit the police cruiser on his own, instead lying down across the rear seat forcing WO #1 to reach into the cruiser and pull the Complainant out by the waistband of his pants. Once the Complainant was on his feet outside of the car, he did not want to walk inside and he had to be assisted, with WO #1 and WO #2 on either side of him. Once inside the booking room, the Complainant was seated on a stool beside the table from which the SO, the booking sergeant, carried out the booking process.

This evidence is consistent with that of WO #2, who also indicated that when she entered the sally port she saw the Complainant lying across the rear seat, face down, and refusing to exit the police cruiser, causing WO #1 to reach in and pull him out by the waistband of his pants. Thereafter, WO #2 described the Complainant as not wanting to walk into the booking hall and that she and WO #1 had to assist him, with one officer on each side.

Despite the Complainant’s failure to mention his obstructive behaviour in the sally port and his refusal to exit the police cruiser, the CCTV from the sally port/garage area, although without audio, appears to confirm that while WO #1 is seen to open the rear passenger door for the Complainant to exit the vehicle, he stands and speaks to him for some moments, followed by WO #2 coming over and looking into the rear seat, and finally, after 91 seconds of discussion, WO #1 pulls the Complainant out of the cruiser. Thereafter, the Complainant appears to stand on one spot, swaying back and forth, while WO #1 links his arm under that of the Complainant and then walks him into the station.

WO #2, in her statement, outlined how, once the Complainant was seated on a stool in the booking hall in front of the SO, he refused to answer any questions or to acknowledge that he heard what the SO was asking him, instead continually yelling loudly about his rights, about wanting to speak with a lawyer, and about wanting medical attention for his jaw.

This evidence is consistent with that of WO #1, who also added that when the Complainant was asked his lawyer’s name, he refused to provide it.

Because the video of the booking room does not have audio, I am unable to determine, from the CCTV footage, exactly what was being said in the booking room at the time, but, as the evidence of all three of the police officers present is consistent in this regard, and, as indicated by the SO in his interview, the booking record for the Complainant simply has a line through it with the word, “refused” written across it, I find that the Complainant was indeed refusing to answer any questions posed to him by the SO.

WO #1 further advised that in order to facilitate a search of the Complainant, prior to his being lodged in the cells, he and the SO stood the Complainant up, facing a cement block wall, and held him against it, while the Complainant’s handcuffs were removed to allow for the removal of his winter jacket.

The statement of WO #2, who was standing nearby and watching while WO #1 and the SO dealt with the Complainant, is again consistent in this regard with the evidence of WO #1, as it is with the CCTV footage. While the Complainant, in his statement, alleged that the SO held the Complainant’s face against a cement block wall in order to conduct the search, I note that the video, while revealing that the Complainant is leaned against the wall and appears to rest his forehead against the wall, also reveals that no one is holding his face against a cement block wall; in fact, he appears to be leaning against some type of whiteboard on the wall, and it is WO #1 who is holding him by the right arm, while the SO searches him.

WO #1 then left the booking room. Once WO #1 was outside of the booking room, WO #2 observed the Complainant flail his arms and the SO respond by trying to take the Complainant to the floor. WO #2 described the SO putting the Complainant into a headlock, following which there was a short tussle, and both men fell to the floor, with the Complainant lying on his back. WO #2 then moved to the Complainant’s legs, in order to assist the SO, who was straddling the Complainant; WO #1 then also returned to the room to assist.

WO #2 then observed the SO deliver several strikes to the Complainant with his right arm, but she could not see where the strikes landed.

Similarly, WO #1 described hearing raised voices and the sounds of a scuffle, causing him to return to the booking room, where he saw that the SO had the Complainant in a sort of headlock and was attempting to turn him around, when both men fell to the floor, with the Complainant landing on his right side, face up, and rolling onto his back. The SO then straddled the Complainant, while WO #1 went to the area of the Complainant’s head in order to assist. WO #1 recalled seeing the SO then make several arm movements, which may have been punches, but he too was unable to see, because of the position of the parties on the floor, where or if the blows landed on the Complainant.

When viewing the video at slow speed, however, I noted the following:

At 11:51:40 p.m.
WO #1 leaves the room after removing the Complainant’s ring from his hand. The Complainant, who had been facing the wall, was then turned to face forward by the SO, who maintains his hold on the Complainant’s left arm. The Complainant then pulls his left arm away from the SO and the SO places his right hand on the Complainant’s left shoulder and his left hand on the Complainant’s right side, as if to calm him. The Complainant then raises both of his hands to push the arms of the SO away, and then raises his left hand and arm in the SO’s face.

At 11:51:46 p.m.
The SO immediately pushes the Complainant sideways and places his forearm to the back of the Complainant’s head/neck area. When the Complainant continues to struggle, the SO then places his forearm around the Complainant’s neck and puts him into a headlock and pulls him down towards the floor.

At 11:51:48 p.m.
While going to the floor, and with the Complainant still violently struggling, the Complainant falls onto his back and the SO falls with him.

At 11:51:59 p.m.
All three officers are now over top of the Complainant, trying to control him, with WO #2 holding his legs down, WO #1 pinning his upper body down with his own upper body, and the SO over top of the Complainant, holding him down.

From 11:52:01 until 11:52:24 p.m.
All movement stops and the officers are still while holding the Complainant down, as if waiting for him to calm.

At 11:52:34 p.m.
The SO gets up. WO #2 hands the handcuffs to the SO and the Complainant is handcuffed. WO #1 continues to pin the Complainant down using his own upper body.

Both WO #2 and WO #1 then described the Complainant as being rolled over onto his stomach and handcuffed with his hands behind his back, following which he was assisted to his feet. At that time, WO #1 observed an abrasion to the Complainant’s right check area, with blood visible on his face, while WO #2 described seeing a small amount of blood on the floor, which she realized originated from the Complainant’s face. Again this is confirmed on the CCTV footage.

The Complainant was then escorted to the cell area by WO #1 and WO #2 and he was placed face down onto the concrete bed. WO #1 described the Complainant as still being actively resistant, with the Complainant squirming, causing both WO #1 and the Complainant to stumble into the cell, with WO #1 landing on top of the Complainant, on top of the concrete bed, where the Complainant was left in handcuffs until he calmed down. WO #2 described the Complainant, once in the cell, as still being uncooperative and non-compliant and spitting blood onto the bed and wall. Once the Complainant calmed down, the cell door was then locked and WO #2 and WO #3 were left to watch the Complainant while he was in his cell; WO #1 left the area. WO #2 then described hearing a thump and seeing the Complainant strike his own head on the wall of the cell.

The evidence of WO #2 is consistent with that of WO #3, who observed the Complainant bang his head on the concrete wall inside the cell, which he described as the Complainant taking a step and then hitting his head against the wall. WO #3 indicated that he believed that the Complainant’s forehead made contact with the wall, following which the Complainant sat on the floor.

At 12:07:09 a.m., the video reveals the Complainant facing the door to his cell, when he takes one step to the right and slams his head into the wall, making contact with the top part of his head, but not his face.

According to WO #5, who accompanied the Complainant to the hospital in the ambulance, the Complainant told him that he had been “roughed up” by a large police officer with a bald head and tattoos (while WO #1 is a large man who is bald, I note that he does not have tattoos, and that it is only the SO who is both bald and has tattoos, but not nearly as large as is WO #1; as such, I cannot establish with certainty exactly to whom the Complainant was referring as the officer who “roughed” him up) and that he had been punched while he was handcuffed.

If the Complainant’s utterance to WO #5 is referring to WO #1 as having “roughed” him up, I note that the only allegation made by the Complainant against WO #1 is that he smashed his head onto the cruiser of the police vehicle causing his jaw to be sore, which WO #1 describes as leaning the Complainant over the hood of the cruiser, while applying pressure to his back, to keep him down. So if this allegation relates to the actions of WO #1, despite the Complainant’s repeated complaints that his jaw had been injured, I note that the later assessment at the hospital, a CAT scan, and X-rays, all clearly indicated that the Complainant’s jaw was not injured and, this action, if it did indeed occur, did not cause a serious injury, or indeed any injury, to the Complainant.

If the Complainant is referring to the SO as being the officer who “roughed” him up, there is no dispute that the SO delivered three blows to the Complainant in the booking hall. I note, however, that the Complainant was not handcuffed at the time, as he alleged to WO #5, which can be clearly seen in the video, where the Complainant is seen to raise his arms up, as a result of which the SO places the Complainant into a headlock and takes him down onto the floor, where the SO is seen to move his arm three times in what appear to be strikes or blows to the Complainant while the Complainant struggles vigorously with the sergeant. Only when the struggle ends, are the handcuffs seen to be re-applied to the Complainant.

Furthermore, since the Complainant is only first seen to have any visible injury or bleeding to the face after his interaction with the SO, when he is on the floor in the booking room, I find that there can be no dispute that the serious injury sustained by the Complainant, that being the nasal spine fracture, occurred when he was on the floor with the SO. I find, however, that in closely viewing the video, it appears that the abrasion to the Complainant’s face is already visible as soon as he and the SO fall to the floor, and prior to the movement which appears to be the SO bringing his elbow back as if to strike the Complainant. While this is not definitive of when the Complainant’s nose was broken, it appears likely that it occurred when the two men fell to the floor; although it is still possible that it occurred when the SO struck the Complainant.

While there is little disagreement between the evidence of the Complainant, and that of the three police officers, as to what occurred leading up to the Complainant’s injury, I note that the Complainant specifically failed to mention certain aspects of his own behaviour, which causes me some concern as to his credibility and reliability. A sampling of those omissions follows:

  • The failure of the Complainant to mention his actions at his ex-girlfriend’s home, which led to his arrest, insisting instead that when he was stopped and arrested by WO #1 that he was just walking along and had done nothing wrong;
  • The failure of the Complainant to mention both his refusal to exit the police vehicle, thereby forcing WO #1 to have to physically remove him from the car, and his resistance to walking into the police station;
  • The failure of the Complainant to mention his obstructive behaviour while in front of the SO, including his refusal to answer any questions, his speaking over and ignoring the SO, and his refusal, despite his continuous and loud assertions about wanting to speak to a lawyer, to provide the name of a lawyer, with the Complainant, in his statement, instead indicating that he simply stood quietly after the SO told him to calm down;
  • The failure of the Complainant to mention that he raised his arms on two occasions at the SO, which is clearly seen on the CCTV footage, instead indicating only that he managed to turn around and scream at the SO;
  • The Complainant’s clear assertion that he was handcuffed when the incident with the SO took place, when the video confirms the evidence of all of the officers present, that the Complainant was, in fact, not handcuffed at that time, which allowed him to raise his arms against the SO and struggle vigorously throughout; and, most importantly, 
  • The failure of the Complainant to mention that he had purposely and intentionally struck his own head against the concrete wall in his cell.

As a result of these specific obstructive actions by the Complainant, which he failed to mention in his statement to the SIU either because he did not recall them due to his state of intoxication, or he purposely omitted them in order to place himself in a better light, or for some other unknown purpose, I find that I am unable to place any reliance on the evidence of the Complainant, except where it is specifically confirmed by some other evidence. In coming to my conclusion with respect to the facts in this matter, I find that the video evidence supports the evidence of the various police officers in every respect, and as such I have made my findings of fact based primarily on the video evidence, but also on the evidence of the police witnesses, as their version of events is confirmed by the video evidence.

That, however, does not end the matter. Since there is no dispute that the Complainant was seriously injured during his interaction with the SO, an assessment is still required to determine whether or not the actions of the SO, in subduing the Complainant, amounted to an excessive use of force in the circumstances thereby vitiating his protection from prosecution pursuant to s. 25 (1) of the Criminal Code.

As such, the question to be determined is whether taking the Complainant to the floor, following his attempts to push the SO away, and then to strike him, and the delivery of a number of blows to the Complainant, when he continued to fight, was justified in the circumstances or if it amounted to an excessive use of force.

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.

Turning first to the lawfulness of the Complainant’s arrest, it is clear from the information in the 911 calls that the Complainant was not only being disruptive and frightening the occupants of the home from which the 911 caller made her call, but that he was also in breach of his conditions of release, wherein he had been ordered to stay 150 metres away from the residence of his former girlfriend. As such, the police were acting in the execution of a lawful duty when they arrested the Complainant for breaching the conditions of his release, contrary to s. 145 (3) of the Criminal Code. As long as the officers used no more force than was necessary and reasonable in the circumstances, therefore, their actions are protected from prosecution pursuant to s. 25.

It is clear on all of the evidence, and as seen on the CCTV footage, that the Complainant was being resistant and combative with the SO, and that he was physically resisting the officer, as a result of which the SO immediately reacted to take the Complainant to the floor and to regain control over him. While the Complainant was actively fighting the SO, both men then fell to the floor, which may have been responsible for the injury to the Complainant’s face. While the video reveals the Complainant continuing to actively struggle and fight, the SO is then seen to bring his arm back and strike the Complainant; with the SO indicating that he used his right fist to strike the Complainant in the face once, near his mouth, following which he then delivered two further blows using his right forearm to strike the Complainant in the face with the outer part of his arm, which he described more as a “press to the face” than a strike. The CCTV footage appears quite consistent with this description of events and confirms the evidence of the SO. On this basis, I conclude that the actions of the SO, both in taking the Complainant down to the floor in a head lock and in delivering the three blows to the Complainant, who continued to actively fight and resist, even after all three of the police officers were holding him down, were both reasonable and justified in the circumstances, bringing the SO under the protection of s. 25.

In concluding that the actions of the SO do not amount to an unnecessary or excessive use of force, I am mindful of the decision of the Supreme Court of Canada as set out in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows: 
 
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

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

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

On all of the evidence, it is clear that had the Complainant not resisted and not been combative with the SO, no force would have been required to search him and then lodge him in the cells. [1] As such, while I find that the Complainant’s serious injury was sustained during his struggle with the SO, and as a result of the efforts of the SO to regain control over the Complainant, the evidence does not satisfy me that there are reasonable grounds to believe that the SO, or any of the officers involved with the Complainant, acted outside of

the parameters of the Criminal Code. As such, as I lack the necessary grounds for the laying of criminal charges, none shall issue.


Date: January 28, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) In fact, the booking video shows clearly that until the Complainant broke the SO’s grasp on his left arm, and then flailed both of his arms in the SO’s face, no force whatsoever was used during the search procedure. [Back to text]