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SIU Director’s Report - Case # 17-OCI-348

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 36-year-old man (the Complainant) during his arrest on November 26, 2017.

The Investigation

Notification of the SIU

At approximately 1:44 p.m. on November 26, 2017, the Windsor Police Service (WPS) notified the SIU of the serious injury reportedly sustained by the Complainant during his arrest. The WPS reported that on November 26, 2017, at about 4:45 a.m., the WPS received a 911 call from a residence in the City of Windsor regarding a domestic dispute.

The WPS further reported that the 911 call from Civilian Witness (CW) #2 revealed that she called 911 because her mother, CW #3, asked her to call. Her stepfather, the Complainant, had arrived home yelling and the family was worried. CW #1 also called 911 to report that he overheard his mother saying, “You (the Complainant) are not going to stab my daughter.”

WPS officers arrived at the residence and saw a knife on the kitchen floor. CW #1 let the WPS officers into the residence, but the Complainant then locked himself into a bedroom. The WPS officers attempted to negotiate with him to open the door, but he threatened to stab himself with an insulin needle. The WPS officers forced the door open and the Complainant attempted to punch one of the WPS officers. One of the WPS officers punched the Complainant in the face and then a conducted energy weapon (CEW) was deployed. The Complainant was handcuffed and taken to the hospital, where he was diagnosed with a nasal bone fracture.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW #1 Not Interviewed, however statement provided to WPS officers was obtained and reviewed; this witness was not present for the arrest.
CW #2 Not Interviewed, however statement provided to WPS officers was obtained and reviewed; this witness was not present for the arrest.
CW #3 Declined to be interviewed and refused to allow SIU investigators to interview CW #1 or CW #2.

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 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Interviewed, notes received and reviewed
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary
WO #9 Notes reviewed, interview deemed not necessary



Subject Officers

The SO Declined interview, as is the subject officer’s legal right, however provided both a written statement and his notes, which were reviewed.


Incident Narrative

The Complainant was on a condition of bail that he not purchase, possess, or consume alcohol or other intoxicating substances.

On the morning of November 26, 2017, the Complainant apparently came home intoxicated and both of his stepchildren called 911, as he was acting in an aggressive manner and reportedly was in possession of a knife. WPS dispatched the call as a domestic violence call, and a total of 11 WPS officers attended. Entry to the residence was gained by one of the residents opening the rear door.

The Complainant then locked himself in the en suite bathroom of the master bedroom and refused to come out. WPS officers, including the Subject Officer (SO), spent almost an hour trying to de-escalate the situation, and trying various methods of communicating with the Complainant, to no avail. During the negotiations, the Complainant was noted to have slurred speech and difficulty communicating properly, giving the WPS officers grounds to arrest him for breaching his bail conditions. The Complainant, while locked inside the bathroom, told WPS officers that he had injected himself with up to 10,000 [1] units of insulin, which was not prescribed to him. The SO made the decision to breach the door for the Complainant’s own safety. After the door was breached, the Complainant stood in a fighting position with a syringe in one hand and attempted to assault the SO, who then punched the Complainant in the face. As the Complainant continued to refuse to drop the syringe he was holding, WO #1 then deployed his CEW on two occasions, following which the Complainant dropped the syringe and was arrested and handcuffed. The Complainant was then transported to the hospital because of the suspected insulin overdose.

Nature of Injuries / Treatment

A Computed Tomography (CT) scan was performed on the Complainant at the hospital which the doctor interpreted as revealing a “questionable undisplaced nasal bone fracture, of indeterminate age [2]”. The Complainant also sustained a laceration to the bridge of his nose which required two sutures to close.

Evidence

The Scene

The scene was located in the en suite bathroom of the master bedroom in the residence of the Complainant.

Physical Evidence

Conducted Energy Weapon (CEW) Download Data


An SIU forensic investigator analyzed the CEW data from Witness Officer (WO) #1’s CEW, which revealed that it had been deployed twice on November 26, 2017; once at 5:41:20 a.m. for five seconds, and a second time at 05:41:26 a.m. for six seconds.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

As the matter took place in a private residence, no video could be located.

The SIU obtained and reviewed the scene photos taken of the interior of the residence by WPS officers.

Communications Recordings

The 911 calls and police transmission recordings were obtained and reviewed.

Materials obtained from Police Service

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

  • Booking Sheet;
  • Known Offender Hardcopy for the Complainant;
  • Notes of WO #s 1-9 and the SO;
  • Person Hardcopy for the Complainant;
  • Written Statements of WO #s 1-6, 8-9, the SO, and one undesignated police officer; 
  • 911 Call Recordings;
  • Police Transmissions Communication Recording; 
  • Scene Photos; and
  • Canadian Police Information Centre (CPIC) report for the Complainant.


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

  • Medical Records of the Complainant related to this incident, obtained 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 129, Criminal Code -- Offences relating to public or peace officer

129 Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
(c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, 
is guilty of
(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(e) an offence punishable on summary conviction.

Section 145 (3), Criminal Code -- Failure to Comply with Condition of Undertaking or Recognizance

145 (3)  Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515 (12) or 522 (2.1) or an order under subsection 516 (2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of 
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) An offence punishable on summary conviction.

Section 270(1), Criminal Code -- Assaulting a peace officer

270 (1) Every one commits an offence who 

(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;
(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
(c) assaults a person
(i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
(ii) with intent to rescue anything taken under lawful process, distress or seizure.

Analysis and Director's Decision

On November 26, 2017, two 911 calls were received by the Windsor Police Service (WPS) from a residence in the City of Windsor. The two calls were both from the teenaged children of Civilian Witness (CW) #3; the callers indicated that their mother’s husband, the Complainant, was in the residence with their mother, had been drinking, and was involved in an argument with their mother. CW #1, the son of CW #3, stated that he had heard his mother state to the Complainant, “You are not going to stab my daughter,” while CW #2, the daughter of CW #3, indicated that her mother had requested she call police. Numerous officers were dispatched to the scene. Confirmation was obtained in advance from the police computer that the Complainant was on conditions of a bail release not to possess or consume any alcohol.

Upon police attendance at the residence, the Complainant refused to allow police entry into the home; while the Complainant was engaged with officers at the front door of the house, other officers were admitted entry by way of the back door. The Complainant then locked himself into the en suite bathroom of the master bedroom and threatened to inject himself with his wife’s insulin. Eventually, the door was breached and the Complainant was arrested for breaching the conditions of his bail release (s.145(3)), assaulting a police officer in the execution of his duties (s. 270(1) of the Criminal Code), and resisting arrest (s.129(1)). The Complainant was then transported to the hospital where he received two stitches to the bridge of his nose; X-rays taken of his nose were interpreted in a subsequent report as “Query undisplaced nasal bone fracture. This is a questionable finding and requires clinical correlation” and is described later in the report as “questionable undisplaced nasal bone fracture (of) indeterminate age”.

The Complainant, in his statement to SIU investigators, stated that on November 26, 2017, he returned home in the early hours and an argument ensued between himself and his two stepchildren. The Complainant stated that he had not consumed any alcohol that date. Approximately 90 minutes after his arrival at home, police arrived and the Complainant locked all the doors and refused to allow them entry. He asserted that a WPS officer outside his home pointed a Berretta handgun at him through the back window and that he had this fact recorded on video; upon request, however, he refused to provide SIU Investigators with a copy of the video recording.

The Complainant claimed that the police officers then illegally entered his home and he ran to the en suite bathroom in the master bedroom and closed the door, putting his back against the door and his foot on the shower, in order to hold the door closed. The Complainant told the police officers that he would use his wife’s insulin needle if he was not left alone and he rolled a needle under the door to show the police that he was serious. He then called the WPS station and spoke to the Officer-in-Charge and told him to have the police officers leave his house, following which he told the officer to “fuck off” and hung up the phone.

The Complainant was told by police that he was under arrest for breach (breaching his bail conditions); he was aware that he was on a condition not to drink alcohol and claimed that he had not done so. The police officers then forced their way into the bathroom and he was allegedly immediately punched nine times, by a police officer, and a Conducted Energy Weapon (CEW) was used on him. He indicated that he was covered in blood and there was a puddle of blood on the floor. The Complainant asked the officers to stop hitting him and was told to stop resisting and handcuffed behind his back. He stated that he was knocked unconscious by the police officers and an ambulance had to attend to help him up, after which he was taken to the hospital where he received two stitches to his nose, which was broken.

During the course of this investigation, the only civilian witness (CW) to be interviewed was the Complainant; his wife, CW #3, did not make herself available to be interviewed. The two stepchildren, who made the 911 calls, provided statements to police, which were made available to SIU investigators, but were not interviewed as they were not present during the arrest of the Complainant. Additionally, four police witnesses were interviewed, with the subject officer declining to do so, as was his legal right; he did, however, provide his memorandum book notes of the incident and a written witness statement, as did all nine of the other police witnesses. SIU Investigators also had access to the 911 call recordings, the police transmission recordings, and the medical records of the Complainant.

The medical records, as quoted above, apparently determined that the Complainant’s nasal bone fracture was “questionable” and of “indeterminate age”, which I take to mean that the doctor was unable to conclude if the nose was actually broken, and if it was, could not determine if this was an old injury or not. As the fracture, if there was one, was undisplaced, no treatment was required. The Complainant’s records also indicate that a urine drug screen was conducted on samples from the Complainant which, despite his assertions to the contrary, indicated that he tested positive for alcohol, cocaine, and THC; his alcohol level being determined at 16.9 mmols of alcohol/litre of blood, or the equivalent of 78 mgs of alcohol per 100 mls of blood. [3]

The recordings of the two 911 calls revealed that the first caller, the female child, CW #2, called in to advise that her stepfather “had come home drunk again”; screaming is heard in the background and CW #2 is heard to sound frightened in the call. She goes on to tell the 911 call taker that the Complainant was “hurting” her mom, when she suddenly exclaimed that “I’ve got to go” and tried to hang up, but the 911 call taker encouraged her to stay on the line. The screaming is then heard to intensify and CW #2 is heard to exclaim “he’s about to stab me!” and she described the Complainant as being armed with what she believed was a steak knife and that she had now locked herself in her bedroom and asked the police to please hurry. The 911 call recording reveals CW #2 also indicating that the Complainant had been gone all night and that “he’s not supposed to be drinking”.

The second 911 call, from CW #1, also requested that police attend his address. CW #1 is heard on the recording indicating that his stepfather had gone ‘crazed’, had entered his bedroom and started to smash CW #1’s things, tried to attack him, and threatened to stab his little sister.

As a result of these 911 calls, nine police officers were dispatched to the residence, including the Subject Officer (SO), WO #3, WO #6, WO #1, WO #2, WO #5, WO #9, WO #4 and an undesignated police officer.

According to the memo book notes and the prepared witness statement of the SO, upon his arrival at the residence at approximately 5:05 am, he observed CW #3 speaking with WO #4, and described her as appearing unharmed; he then spoke to both of the children who each indicated that their stepfather was intoxicated and causing problems. The SO also confirmed that the Complainant was on bail conditions prohibiting him from purchasing, possessing, or consuming alcohol.

The SO went to the en suite bathroom in the master bedroom where he observed WO #1, WO #2, and WO #6, along with WO #3, speaking to the Complainant through the bathroom door. The Complainant repeatedly indicated that he was not coming out and that he wanted the police to leave.

The SO then spoke to the Complainant by telephone, but was unable to convince him to exit the bathroom. The SO noted that the Complainant’s speech was slurred, his volume was amplified, and he was hostile towards police, stating that any police officer who came into the bathroom would be stabbed in the neck. It was unclear to the SO at that time whether or not the Complainant was still in possession of the steak knife that had been referred to in the 911 call. From looking under the door, the SO was able to determine that the Complainant was standing right at the door.

WO #3 then told the Complainant, through the door, that he was under arrest for breaching his no alcohol bail condition, whereupon the Complainant began threatening that he would inject himself with his wife’s insulin. The SO noted that they had medics nearby and, when the Complainant threatened to inject himself with insulin, the medics were asked to approach in order to immediately be able to deal with the Complainant if he followed through on his threat.

At approximately 5:38 am, the SO noted that the Complainant told the officers that he had injected himself and he slid an empty insulin injector under the bathroom door. This was heard by WO #6, WO #2 and WO #1, with WO #1 indicating in his statement that he heard the Complainant state that he had just injected himself with 10,000 mls of insulin after which he observed him slide a number of insulin packages and an empty insulin injector out under the bathroom door. WO #6 indicated that the SO and WO #3 then directed that the police would have to enter the bathroom for the Complainant’s own safety and the SO breached the door.

WO #1 indicated that when the police officers communicated to the Complainant that they were growing concerned for his well-being, and that his continuous refusals to exit the bathroom left the police no other alternative but to breach the door, the Complainant responded that he would stab the first officer through the door in the neck with insulin.

WO #3 stated that after he heard the Complainant indicate that he had insulin and needles in the bathroom and that if they didn’t leave he would inject himself, he was told by CW #3 that if the Complainant injected himself with her insulin, he would get very sick. At 5:38 am, WO #3 heard the Complainant shout that he had injected himself in the neck, after which he tossed an insulin injector under the door. WO #3 stated that he then became concerned for the Complainant’s safety and a decision was made to breach the door. WO #3 indicated that the decision to breach the door was made by himself and the SO for the Complainant’s safety; he opined that if the Complainant ended up in a coma or dying from the injection, that they would be heavily criticized for not having done anything to prevent it.

The SO’s notes and written statement indicate that he determined that the behaviour of the Complainant showed a lack of concern for the safety of everyone in the house, including the Complainant himself, and that he would have to breach the door in order to apprehend the Complainant and have paramedics assess his medical condition as quickly as possible. The SO attempted several times to breach the hollow core door by kicking it, but the Complainant was able to use his body to prevent the door from opening. The SO then punched through the door, striking the Complainant in the process, causing the Complainant to back up, and the door opened. Immediately upon the SO’s entering the bathroom, the Complainant came at the SO with his hands in the air, in a stance that the SO interpreted as his being ready to fight, and the SO struck him once in the face with a closed fist and attempted to take him to the ground.

WO #6 stated that he observed the SO punch the Complainant in the face and observed WO #1 deploy his CEW, the combination of which were then effective in subduing the Complainant, allowing WO #6 to handcuff him.

WO #2 observed that once the door was breached, the SO entered, followed by WO #1 and WO #6. WO #2 described the Complainant as facing the SO in an aggressive stance, with a syringe in his hand, when the SO delivered two to three rapid closed fist punches to the Complainant’s face, and both went to the floor. When the Complainant continued to resist, WO #1 deployed his CEW, which assisted in neutralizing the Complainant’s aggression and he was handcuffed.

WO #1 indicated that he observed the SO kick and punch through the door, forcing the Complainant back, and that they then gained entry to the washroom, with the SO in the lead and WO #1 right behind him. WO #1 described that the SO had been designated to go in ‘hands’ (meaning no use of force options), WO #1 was ‘less lethal’ (meaning the CEW) and WO #2 was lethal (meaning a firearm).

Upon entering the bathroom, WO #1 observed that the Complainant now had his fists clenched and was in a fighter’s stance, facing off toward the SO. He observed the Complainant attempt to punch the SO with his right fist while holding an insulin injector. The SO, however, landed the first punch, striking the Complainant’s face and forcing him back, and then to the floor, where WO #1 observed the Complainant to continue fighting. WO #1 stated that he shouted at the Complainant to stop resisting, with no results, and, knowing that a Taser deployment would immediately end the struggle, he deployed his CEW into the right side of the Complainant’s rib cage at close range. WO #1 stated that he was aware that deploying his CEW at such close range would not get the desired effect, so he extended the CEW to the Complainant’s upper back. The Complainant then surrendered his hands and was handcuffed.

The download data from WO #1’s CEW confirmed that it had been discharged at 5:41:20 a.m. for a period of five seconds, and then a second time, at 5:41:26, for a further period of six seconds. This data is fully consistent with the evidence of WO #1.

The SO described the Complainant as still being in possession of an insulin injector, following the punch, which he refused to drop, as a result of which WO #1 deployed his CEW and prevented the Complainant from using the injector as a weapon; the Complainant was then handcuffed on the bathroom floor.

The SO described the Complainant then being assisted to his feet, at which point he observed that there was blood on the floor, and the Complainant had a small cut to the bridge of his nose.

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 from the information in possession of police at the time, that the police had reasonable grounds to believe that the Complainant had been drinking alcohol and was therefore in breach of the conditions of his bail release and arrestable pursuant to s. 145(3) of the Criminal Code.

Additionally, from the information provided in the 911 calls that the Complainant had threatened to stab CW #2 and that he was armed with a knife, it was incumbent upon the police to respond to the residence and investigate to ensure everyone’s safety. Once the Complainant began to threaten to inject himself with insulin, which police were advised would make him very ill, and after he indicated that he had done so, it is clear that simply walking away was not an option; as indicated by WO #3 in his statement, if they left the Complainant and he fell into a coma or died, they would be severely criticized. As such, the police officers were acting lawfully and within their duties when they chose to breach the door to the bathroom, in order to ensure the Complainant’s safety, and they were legally justified when they subsequently apprehended and arrested the Complainant.

On all of the evidence, there appears no dispute that the police spent a considerable amount of time trying to coax, negotiate, and plead with the Complainant to exit the bathroom in order that they could see that he was safe and not in need of medical assistance. There is further no question that the Complainant lied to police when he asserted that he had already injected himself with a significant amount of a medication which was not prescribed for him, and to back up that lie, he then slid some packages of insulin and an injector under the door. It is unclear to me what the purpose of this tactic was, or why the Complainant engaged in it, other than to surmise that his actions may have been influenced by the alcohol and drugs in his system.

With respect to the amount of force used by officers to apprehend the Complainant, I am unable to accept the version of events proffered by the Complainant due to the obvious inconsistencies between his statement and the physical evidence, for the following reasons:

• Throughout the Complainant’s statement, he vehemently denied ever consuming any alcohol and asserted that therefore police had no legal basis for arresting him. The toxicological screening of the Complainant’s urine sample at hospital clearly puts the lie to this assertion and causes me to doubt the veracity of other of the Complainant’s claims;

• The external injury to the Complainant’s face, that being the cut to the bridge of his nose which required two sutures to close, appears inconsistent with his allegation that he was punched in the face nine times. I would expect, at the very least, that nine punches would have resulted in more bruising and injury to the Complainant’s face, if not more broken bones;

• With respect to the alleged broken nose, I find that I am unable to determine that the Complainant’s nose was indeed broken on this occasion, and am extremely suspicious of the Complainant’s allegation that it was, in light of the medical report in which it appears that the medical experts were also extremely skeptical, as they specifically pointed to the ‘questionable’ nature of the fracture being of an ‘indeterminate’ age; and

• Finally, the Complainant’s assertion that he was covered in blood, and that there was a pool of blood on the floor of the bathroom, seems to be contradicted by the scene photos and the photos of the Complainant’s injury, and causes me further concern that the Complainant is prone to exaggeration.

I find that these inconsistencies, combined with the Complainant’s obvious misstatement to police at the time that he had injected himself with dangerous amounts of insulin when he had not in fact done so, leave him with very little credibility and I find that I am unable to accept his version of events, except where it is confirmed or consistent with some other evidence.

On the remaining reliable evidence, while there is no dispute that the Complainant was punched in the face by the SO, I am unable to accept that he was punched nine times, and find it unlikely, as indicated by WO #2, that he was even punched up to three times. I take specific note of the fact that events inside the bathroom, once the officers breached the door, moved very quickly and with some urgency as a result of the Complainant’s indication that he had already injected himself with a dangerous amount of insulin, his aggressive stance toward the SO, and his still being armed with a needle, which he had already threatened to use to stab the first officer in the door, which officer was the SO.

I further make note that while WO #2, who was outside of the bathroom at the time, indicated that he believed that he saw the SO deliver two to three rapid closed fist punches to the Complainant, WO #1 and WO #6, who were both inside the bathroom and directly behind the SO, each advised that they observed only one punch to the Complainant’s face. The evidence of these two officers is completely consistent with the notes and written statement of the SO, who clearly noted that he punched the Complainant in the face after the Complainant took a fighter’s stance and refused to drop the insulin injector, which he still held in his hand. I find further support in the conclusion that it may have been difficult to discern exactly what was happening in the bathroom, from outside of the bathroom, based on WO #3’s statement, wherein he indicated that from outside of the bathroom he saw no punch delivered by the SO at all.

Having said that, however, even if the SO had delivered three punches to the Complainant, rather than the one punch which I am more inclined to accept, I find that pursuant to section 25(1) of the Criminal Code, he used no more force than was reasonably necessary in the execution of his lawful duties in apprehending a man who appeared to be under the influence of intoxicants, had already indicated that he may have done extreme harm to himself, and had threatened to stab the first officer through the door. In these circumstances, with the threat made by the Complainant, in combination with his clearly exhibited hostility toward police, the aggressive stance he had taken towards the SO, his being armed with an insulin injector that he had already threatened to use against police, and the fact that the four men were in very close confines inside the bathroom, in my opinion, the option resorted to by the SO to apprehend the Complainant was more than reasonable in the circumstances. 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. In this particular factual situation, where time was of the essence both to protect the officers from the Complainant, but also to get the Complainant the medical attention which his claims, which were later proven to be unfounded, appeared to indicate that he immediately required, I accept that the SO did not have the luxury of time to weigh and measure his actions.

Furthermore, I accept that the Complainant continued to fight and resist, even after he had been punched, as is evidenced by WO #1’s resort to his CEW on two occasions to finally bring the stand off to an end. On the undisputed evidence, it is clear that the actions of the police progressed from requests, to negotiation, and only to physical force after all else had failed and the Complainant continued to pose a danger both to himself and to the police officers. On this record, it is clear that the force used by both the SO and thereafter by WO #1 progressed in a measured and proportionate fashion to meet and overcome the Complainant’s unflagging resistance, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s apprehension and the manner in which it was carried out were lawful notwithstanding the injury which he sustained, even were I to find that the SO caused a serious injury, of which I am extremely skeptical. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.


Date: October 16, 2018




Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) Different WPS officers had different accounts of how much insulin he purportedly said he injected, but the highest amount reported was 10,000 units. [Back to text]
  • 2) Which I take to mean that it was both questionable as to whether the nose was actually fractured, and if so, when it was fractured. [Back to text]
  • 3) 80 mgs of alcohol per 100 mls of blood is the legal limit at which one can drive pursuant to the Criminal Code. [Back to text]