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SIU Director’s Report - Case # 17-OCI-220

Contents:

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Mandate of the SIU

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

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

Information restrictions

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

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


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

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

Other proceedings, processes, and investigations

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

Mandate engaged

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

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

This report relates to the SIU’s investigation into the serious injury reportedly sustained by a 40-year-old man during his arrest on August 21, 2017.

The Investigation

Notification of the SIU

At approximately 2:55 p.m. on Monday, August 21, 2017, the York Regional Police (YRP) notified the SIU of the custody injury to the Complainant.
The YRP reported that at approximately 11:58 a.m. on that same date, YRP officers responded to a report of a man [now determined to be the Complainant] armed with a machete in the Yonge Street and Savage Road area in the City of Newmarket.

Initially two police officers engaged the Complainant and they were subsequently assisted by another four police officers. At some point, the Complainant abandoned the machete and was arrested by the police. During his arrest, the Complainant sustained a serious injury and as a result was transported to the hospital. The Complainant was diagnosed with having suffered a fractured right humerus and his right arm was placed in a cast, following which he was released from the hospital. The Complainant was then transported to the police station, where he was charged with having a weapon dangerous to the public peace.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2

Complainant

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


Civilian Witnesses

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

Police Employee Witnesses

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



Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Interviewed, notes received and reviewed


Incident Narrative

On August 21, 2017, the Complainant was seen in possession of a machete at a commercial plaza. YRP officers quickly responded to the scene and confronted the Complainant from a distance of 20 feet or more and commanded him to drop the weapon. The Complainant was highly agitated and failed to respond to the police demands and continued to brandish the machete. The Complainant then walked away from the police officers, while the police officers followed him on foot and repeatedly urged him to stop and drop the machete. The Complainant was then surrounded by the police officers, whereupon he raised his hands and knelt down and placed the machete on the ground in front of him. SO #1 approached the Complainant and, using his boot, forced him onto the ground. Seconds later, more police officers ran up and took physical control of the Complainant.

While the Complainant was on the ground, Subject Officer (SO) #2 and SO #1 tried to get his hands behind his back to be handcuffed. Witness Officer (WO) #2 grabbed the Complainant’s left leg while WO #1 controlled both legs. The Complainant was strong and continued to struggle with the police officers. SO #2, who was positioned on the right side of the Complainant, used his right arm to control the Complainant’s right elbow and his left hand to control the Complainant’s right wrist. The Complainant continued to struggle and at one point tried to pull his arm free. SO #2 repeatedly told the Complainant to stop resisting. Abruptly, the Complainant pulled his right arm free and it was then that SO #2 heard a pop coming from the Complainant’s right shoulder. The Complainant then stopped struggling entirely and did not resist whereupon he was placed into handcuffs by SO #1 and SO #2. Once secured, the Complainant settled down and stopped yelling.

Nature of Injuries / Treatment

The Complainant was transported to the hospital where he was diagnosed as having sustained a right mid-humeral fracture with moderate angulation; the arm was placed in a cast.

Evidence

The Scene

The scene was at 16635 Yonge Street in the City of Newmarket, a large retail plaza.

There was an area along the east side of the property that was cordoned off with yellow police security tape. Upon arrival of the SIU investigators, the area was being guarded by two YRP officers. This area was part of a driveway that was configured in an east-west direction in the plaza. The driveway separated two sections of commercial property.

The structure on the north side of the driveway occupied businesses identified as Cuties and Patooties Day Care, Function Health and Yoga Studio, and Punter’s Café and Sandwiches. There were two service doors on the south side of this structure. One door was close to the west part of the structure and the second door was close to the east part of the structure. There were security video surveillance domes (x2) on the walls near these service doors.

The structure on the south side of the driveway occupied a business identified as Bill Gosling Outsourcing. The structure also had a gated rest area that was used by employees. There was an employee door near the cordoned area, but not within the cordoned area. There was a security camera affixed to the wall on the northeast corner of this structure. The front of the camera pointed in a westerly direction along the length of the driveway.

The area was checked for blood and use of force options. but none were found.

The scene was at 16635 Yonge Street in the City of Newmarket, a large retail plaza.

Physical Evidence

Physical evidence

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Closed Circuit Television (CCTV) Recordings

On August 21, 2017, SIU investigators canvassed the commercial establishments near and at the scene for possible CCTV recordings. The Bill Gosling Outsourcing Centre at 16635 Yonge Street in Newmarket provided CCTV recordings. However, the recordings did not show the arrest of the Complainant and were of no value to this investigation.


Cell Phone Recordings

On August 21, 2017, SIU investigators obtained a cell phone recording from a civilian witness (CW). The cell phone recording did not capture the arrest of the Complainant and therefore had no value to this investigation.


YRP In-Car Camera (ICC) Recordings

YRP provided the SIU with nine ICC recordings made on August 21, 2017, from a number of police cruisers at the scene. Eight of the nine ICC recordings did not capture the arrest of the Complainant and therefore did not provide any value to this investigation.

The ICC recording from SO #1’s police cruiser had some value and showed the following:

  • At 1205:45 hrs, SO #1 stopped his cruiser at the northwest corner of the Bill Gosling Outsourcing Centre at the extreme east end of the plaza;
  • There was an outdoor patio at the northwest corner of the Bill Gosling Outsourcing Centre. At 1205:54 hrs, the Complainant ran from west to east with a sheathed machete in his right hand. An unidentified man’s voice was heard shouting, “Police, don’t move, put it down, put it down”;
  • At 1205:58 hrs, the Complainant was stopped at the northwest corner of the Bill Gosling Outsourcing Centre, north of the patio entrance. He was facing north and he raised both his hands above his head keeping the sheathed machete in his right hand;
  • At 1205:59 hrs, a police officer (believed to be SO #2), had his rifle aimed at the Complainant and walked towards him. The Complainant turned around and faced south. The Complainant then bent forward and placed the sheathed machete on the ground using his right hand, after which he had both hands down towards the ground;
  • At 1206:04 hrs, two police officers [now determined to be WO #4 and WO #1] with their side-arms drawn and WO #2 walked from east to west towards the Complainant. A uniformed police officer (believed to be SO #1) approached the Complainant from behind and used his foot against the Complainant’s back pushing him forward onto the ground;
  • At 1206:13 hrs, five police officers [now determined to be WO #2, SO #2, SO #1, WO #1, and WO #4] engaged the Complainant on the ground. The police officers knelt on the ground and were over top of the Complainant. SO #2 and SO #1 were near the Complainant’s upper body, WO #1 was positioned near the Complainant’s mid-section, WO #4 was near the Complainant’s feet, and WO #2 stood near the Complainant’s feet. The view of the Complainant was completely obscured by all the police officers;
  • Details of the police officers’ interaction with the Complainant could not be seen because of the obstruction of a cement pillar and metal black fence surrounding the patio; and 
  • At 1206:52 hrs, an unknown man’s voice was heard over the police radio requesting EMS. EMS arrived at 1213:34 hrs and the recording stopped.

Communications Recordings

The 911 calls and the police transmissions 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 Ontario Provincial Police (OPP) Kawartha Lakes Detachment and the YRP:

  • Booking Information;
  • Booking Photo of the Complainant;
  • CPIC;
  • Detailed Call Summary Report;
  • General Occurrence Reports (x3);
  • List of Involved Officers and Roles;
  • Medical Transportation of a Prisoner;
  • Notes of WO #s 1-5, PEW #s 1 and 2 and SO #2;
  • Person Hardcopy of the Complainant;
  • Procedure: Use of Force;
  • Procedure: Processing the Offender (Arrest, Provincial Offences and Release);
  • Procedure: Emotionally Disturbed Persons;
  • Scene Photos;
  • Training Records of SO #1 and SO #2; 
  • Witness List;
  • Non-emergency call recordings;
  • Police transmissions communications recordings; and
  • 911 call recordings.

The SIU obtained and reviewed the following materials and documents from other sources:
  • Medical records of the Complainant relating to this incident.

Relevant Legislation

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

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

Section 88(1), Criminal Code -- Possession of weapon for dangerous purpose

88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

Analysis and Director's Decision

On August 21, 2017, several 911 calls were received by the communications centre for the York Regional Police (YRP) reporting that a man, the Complainant, was in the parking lot of a commercial premises in the area of Yonge Street and Savage Road in the City of Newmarket and was wielding a machete.

As a result, numerous police vehicles were dispatched to the scene, with the initial arrival of Subject Officer (SO) #2, Witness Officer (WO) #1 and WO #3, and later followed by WO #2 and WO #4, WO #5 and SO #1. The Complainant was eventually apprehended and arrested for possession of a weapon dangerous to the public peace contrary to s.88 of the Criminal Code. Following his interaction with police, the Complainant was transported to the hospital by ambulance where he was diagnosed as having sustained a right mid-humeral fracture (the humerus is the long bone in the upper arm) with moderate angulation.

Although the Complainant agreed to be interviewed by SIU investigators, it is clear from his statement which contained many verifiably impossible fact scenarios, that he was unable to accurately recall his interaction with the police, or what lead up to his interaction, or how he sustained his injury. On the basis of the many and obvious inaccuracies in the Complainant’s statement, I have not relied on the evidence of the Complainant in formulating my conclusion as to whether or not there are reasonable grounds to believe that the Complainant’s injury was caused by an excessive use of force by police.

During the course of this investigation, however, in addition to the Complainant, five civilian witnesses (CWs), two special constables from a different police service who were in the area for unrelated reasons, and six police officers were interviewed and provided their memorandum book notes for review. SO #1 declined to be interviewed or to provide his memorandum book notes for review, as was his legal right, SO #2 provided both a statement and his notes. Additionally, investigators also had access to the in-car camera (ICC) videos from a number of different police cruisers, police radio transmission recordings, 911 call recordings, and the Complainant’s medical records.

With the exception of the evidence provided by the Complainant, the statements of all of the other witnesses were both internally and externally consistent, resulting in a clear picture of what occurred.

On all of the evidence, it is clear that until the Complainant got down onto the ground and gave up his weapon, although police had been seen by numerous witnesses with their firearms drawn pursuing the Complainant, no officer ever came into physical contact with him; the first physical contact only taking place after the Complainant was already on the ground and was being restrained and handcuffed.

Due to the location of the Complainant’s ultimate arrest, it was not seen by any CWs, with the exception of CW #1, who observed the Complainant on the ground surrounded by a number of uniformed police officers while being handcuffed. CW #1, however, advised that she did not see how the Complainant came to be on the ground, but she stated that at no time did she observe any police officer use any excessive force towards the Complainant.

Further, there is no dispute on the evidence that although numerous police officers were seen with either long guns or their side arms drawn, and WO #2 had her CEW in hand, no use of force option was ever deployed against the Complainant.

According to SO #2, after his arrival at the scene he tried to communicate with the Complainant, but the Complainant only looked back at him with a blank stare. This evidence is confirmed by CW #3 who described the Complainant as having a “dead stare” and a frightening look on his face.

SO #2 indicated that the Complainant periodically waved the machete around over his head and that he ordered the Complainant to drop it while at the same time, he tried to reassure the Complainant that the police were not there to hurt him. CW #3 indicated that she heard WO #1 speak to the Complainant and asked him, “Can we talk for a minute”, but that the Complainant did not reply.

After the Complainant turned and walked away, SO #2, WO #1, WO #3 and WO #2 followed. The Complainant finally stopped near a fenced patio connected to a commercial building; he still had the machete in his hand. SO #1 was then seen to drive up and park his cruiser so as to block the Complainant. When SO #1 exited his cruiser, he told the Complainant, “Police, don’t move!” and to drop the machete. The fact that numerous commands were shouted by various officers to “Drop the knife!” is confirmed by CW #1 and Police Employee Witness #1, while CW #2 heard the officers yelling, “Get down, get down!”

SO #2 stated that he and SO #1 continued to issue commands to the Complainant to drop the machete, and the Complainant finally placed the sheathed machete on the ground and dropped down to his knees. SO #1 then used his foot to ‘thrust’ the Complainant all the way down to the ground, which is confirmed by the ICC video from SO #1’s police cruiser wherein SO #1 is seen to contact the Complainant in the back, with his foot, forcing him forward and face down onto the ground.

Once the Complainant was fully on the ground, SO #2 shouldered his rifle and the police officers approached the Complainant. SO #2 described SO #1 on the Complainant’s left side trying to control his left arm, while SO #2 was on the Complainant’s right side trying to control his right arm; WO #2 and WO #1 were also on the ground trying to control the Complainant, while another police officer that SO #2 could not identify was holding the Complainant’s legs to prevent him from kicking. This evidence is confirmed by the ICC video wherein the police officers are seen to kneel on the ground around and over top of the Complainant, with SO #2 and SO #1 positioned near his upper body, WO #1 near his mid-section, WO #4 near his feet, and WO #2 also standing near his feet.

SO #2 indicated that he held the Complainant’s right arm in what he described as an “arm-bar,” which involved SO #2 using his right arm to control the Complainant’s right elbow and his left hand to control the Complainant’s right wrist, while the Complainant was struggling and trying to pull his arm free and SO #2 was repeatedly telling the Complainant to stop resisting. SO #2 described the Complainant as then abruptly pulling his arm away, at which point SO #2 heard a pop from the Complainant’s right shoulder and the Complainant completely stopped struggling and did not resist any further. He was then handcuffed and EMS were contacted to attend.

WO #4 indicated that as SO #2 was trying to pull the Complainant’s arms behind his back for handcuffing, the Complainant was resisting and struggling and would not allow the police officers to gain physical control of him.

WO #5 described the Complainant as face down on the ground with his hands not yet cuffed, and being agitated, confused, and uncooperative, in that he was yelling and struggling with the police. WO #5 advised that he heard the police officers collectively trying to calm and reassure the Complainant, and he described SO #2, SO #1, WO #4 and WO #1 as all being physically engaged with the Complainant, with SO #2 on top of the Complainant’s mid-section holding him down, while the other police officers were somewhere below the Complainant’s shoulders. WO #5 then took control of the Complainant’s head and neck as the Complainant was moving to and fro, and placed his knee on the Complainant’s left shoulder.

WO #1 indicated that as SO #2 and SO #1 were trying to handcuff the Complainant behind his back, the Complainant resisted and tried to flip over onto his back, at which point she heard a loud “pop”.

WO #2 described SO #2 and SO #1 as being busy trying to get the Complainant’s hands behind his back to be handcuffed while the Complainant was struggling and trying to get away. WO #2 described the Complainant as strong, since both SO #2 and SO #1 together had to struggle to handcuff him, and that it took a concerted effort to get the Complainant into handcuffs. WO #2 advised that after SO #2 had requested EMS assistance, he told her that he had heard a pop from the Complainant’s shoulder, and he thought the shoulder may have become dislocated.

The evidence of all of the police officers present for the arrest of the Complainant is consistent in that all indicated that no use of force options were ever deployed, nor was the Complainant ever punched, kicked, or struck in anyway, with the interaction being described as a struggle to control and handcuff him.

On all of the evidence, I accept that while SO #2 and SO #1 were trying to pull the Complainant’s hands behind his back, a ‘pop’ was heard, and that at that point the Complainant fractured his right humerus. I further accept, there being no reliable evidence to the contrary, that no use of force options were resorted to, nor was the Complainant ever struck, punched, or kicked by any police officer. The question that remains, then, is whether or not the actions of SO #1, in using his foot to push the Complainant to the ground by putting his foot on the Complainant’s back, or the actions of both SO #2 and SO #1, in struggling to control the Complainant and pulling his hands behind his back for handcuffing, amounted to an excessive use of force in the circumstances.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear on the evidence of all of the independent CWs, as well as the police witnesses, that the Complainant was, at the very least, a danger to the public in that he was wielding a machete and waving it around in a public area which was well populated at that time of day by pedestrians and that, as such, he had the potential to cause serious injury. It is clear on this evidence that police had ample grounds to arrest the Complainant for possession of a weapon dangerous to the public peace contrary to s. 88 of the Criminal Code and that the resultant pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force resorted to by police, dealing first with SO #1’s pushing the Complainant to the ground with his foot in his back, I cannot find this to be an excessive use of force in these circumstances. While the Complainant appeared to be getting to his knees on his own at the time, he still had the machete within arm’s reach and continued to pose a danger to both the police officers and the public until he was fully restrained and disarmed. In these circumstances, where the Complainant had already led the police in a foot pursuit through a busy parking lot while waving around a machete and ignoring all police commands to drop the weapon, I cannot find that SO #1’s actions amounted to an excessive use of force.

On all of the evidence, it is clear that there was some urgency to apprehend and restrain the Complainant before he could have again got his hands on the machete. Furthermore, it would not have been wise for SO #1 to get any closer to the Complainant until the weapon was fully out of reach and he was ‘incapacitated’, and therefore, his resorting to his foot to push the Complainant to the ground was more than reasonable in the circumstances. In the final analysis, of course, it is clear that this was not the source of the Complainant’s injury.

While I accept that the Complainant sustained the fracture to his right humerus during the course of SO #1 and SO #2 attempting to handcuff him behind his back, while he was actively struggling and resisting, I find that pursuant to section 25(1) of the Criminal Code, the police officers involved used no more force than was reasonably necessary in the execution of their lawful duties. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R v Nasogaluak [2010] 1 S.C.R. 206, as follows:
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

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

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety. I find that the degree of force applied by the two police officers in their attempts to handcuff the Complainant was directly proportionate to the amount of resistance that he was offering up and that it was neither expected nor foreseeable that struggling with the Complainant to attempt to gain control of his hands for handcuffing could lead to the fracture of his humerus.

On this record, and in these circumstances, it is clear that the force used by SO #1 and SO #2, and the other police officers involved in the arresting and handcuffing of the Complainant, fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention and to remove the risk that he continued to pose until he was properly restrained and handcuffed. As such, on this evidence, I am unable to form reasonable grounds to believe that either police officer resorted to an excessive use of force in these circumstances, and there is no basis for the laying of criminal charges.


Date: June 20, 2018




Tony Loparco
Director
Special Investigations Unit