Cruiser and motorbikeRunnersCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 17-PCI-364

Contents:

News Releases for this Case:

French:

Mandate of the SIU

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

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

Information restrictions

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

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


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

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

Other proceedings, processes, and investigations

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

Mandate engaged

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

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

This report relates to the SIU’s investigation into the serious injury reportedly sustained by a 24-year-old man during his arrest on December 13, 2017.

The Investigation

Notification of the SIU

At approximately 5:45 p.m. on December 13, 2017, the Ontario Provincial Police (OPP) contacted the SIU and reported a custody injury in relation to the arrest of the Complainant.

The OPP reported that the police responded to the Complainant’s residence regarding a mental health incident. The Complainant punched the Subject Officer (SO) during the incident, following which the Complainant was transported to the hospital where he was diagnosed with a boxer’s fracture. (A boxer’s fracture is commonly sustained from the impact of a closed fist striking a hard object and fracturing the fifth knuckle).

The Team

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

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

Witness Officers

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


Subject Officers

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


Incident Narrative

On December 13, 2017, at 12:16 p.m., Civilian Witness (CW) #1 contacted the OPP Communications to report that his son, the Complainant, was in a mental health crisis and required hospitalization; CW #1 was calling from his residence in the Community of Ripley, in the Township of Huron-Kinloss. CW #1 also reported that the Complainant had fled the residence in his vehicle. The SO, Witness Officer (WO) #2, and WO #3 responded and WO #3 located the Complainant’s motor vehicle abandoned in a nearby ditch. The Complainant managed to evade police for over an hour after he fled into a forested area.

The Complainant returned to his residence through the backyard wooded area, where he encountered the SO. The Complainant punched the SO a number of times in the head, before the SO was able to subdue him with the assistance of CW #1. The Complainant was then arrested for assaulting a police officer and subsequently transported to hospital where he was involuntarily admitted under the Mental Health Act. 

Nature of Injury/Treatment

The Complainant was X-rayed and the images revealed a fracture to the neck of the fifth metacarpal (knuckle) on his right hand. The attending physician characterized the injury as a “boxer’s fracture.” (Boxer's fractures received their name from one of their most common causes: punching an object with a closed fist. This type of injury is commonly associated with fist fights or from punching a hard object such as a wall).

He was expected to fully recover.

CW #1 was also later examined and, after a series of X-rays were taken, it was discovered that he had suffered soft tissue injuries.

Evidence

The Scene

The scene was in the backyard of the Complainant’s residence in the Community of Ripley, in the Township of Huron-Kinloss. The area surrounding the Complainant’s house was residential with some heavily wooded areas. The Complainant managed to avoid the police search for approximately one hour while intermittently hiding in the woods. The interaction between the SO and the Complainant occurred in the large backyard of the Complainant’s residence. The backyard was bordered by forested area and the ground was snow covered.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

There was no video available from the area of the police interaction with the Complainant.

Communications Recordings

CW #1 contacted the OPP via 911. He spoke with the 911 operator for over 11 minutes, during which time he provided in detail the Complainant’s mental health history, as well as his current crisis. CW #1 reported that his son had threatened his mother and expressed suicidal ideation and that CW #1 “had no idea what his son was capable of.”

The communication recording of the transmissions of the officers who responded to the scene corroborated the statements of WO #2 and WO #3. 

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP South Bruce Detachment:
  • Arrest Report;
  • Computer Aided Dispatch (CAD) Event Details;
  • OPP Field Guide to the Mental Health Act;
  • Occurrence Details;
  • Occurrence Summary;
  • OPP Email from WO #1 to a Staff Sergeant;
  • OPP Mental Health Training;
  • Procedure: Emotionally Disturbed, Mentally Ill, Developmentally Disabled;
  • Training Record for the SO
  • 911 Call recording;
  • Police Transmissions Communications recording;
  • Note of WO #s 1-3; and
  • Photographs (5) of the SO’s injuries.

The SIU obtained and reviewed the following materials and documents from other sources:
  • Medical records of CW #1 relating to this incident; and
  • 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 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.

Section 17, Mental Health Act -- Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

Analysis and Director's Decision

On December 13, 2017, at 12:16:56 p.m., a 911 call was received by the OPP Communications Centre from Civilian Witness (CW) #1 reporting that he required the assistance of the police to have his son apprehended and transported to hospital under the Mental Health Act (MHA). CW #1 reported that his son, the Complainant, was a danger to himself and others and had expressed an intention to take his own life.

As a result of the call from CW #1, Witness Officer (WO) #2, WO #3, and the Subject Officer (SO) were dispatched to the residence in Ripley, in the Township of Huron-Kinloss. CW #1 then reported that his son had left in his motor vehicle and WO #2 and WO #3 searched for the Complainant in the surrounding wooded area, while the SO attended the residence and spoke to CW #1

During the course of this investigation, in addition to the Complainant, his father and three witness officers were interviewed; while the subject officer, the SO, declined to provide a statement, his version of events was provided to SIU investigators indirectly through the officers to whom he had related his version of events shortly after the incident.

In addition to the witness interviews, SIU investigators were provided the 911 call and police transmission recordings, photos of the injuries to the SO, and the medical records of the Complainant. The following version of events has been extracted from the reliable evidence and relies heavily on the evidence as provided by CW #1

CW #1 described his son as being both violent and threatening to do harm to himself and others, as a result of which he called the OPP for assistance to have his son assessed pursuant to the MHA. Following the 911 call, the SO attended the residence and spoke to CW #1 who repeated his concerns, as well as telling the SO that his son may be in possession of a four inch Swiss army knife.

CW #1 observed his son come through the bush at the back of the house and observed him walking from behind the garage followed by the SO. CW #1 could not hear if the SO was saying anything, as he could not be heard over the Complainant’s screaming. CW #1 observed his son spin around and strike out at the SO with his open left hand. CW #1 described the SO ducking, but indicated the SO may still have been struck in the head and that his hat was knocked off. CW #1 saw his son then spin back toward the SO again after the follow through, but he did not see if he actually made contact with the SO.

The SO, in describing the series of events to WO #1, indicated that when the Complainant exited the bushes, he punched the SO in the head three times. This evidence appears consistent with the observations of all three of the WOs that the SO had a red mark on his right forehead and was not wearing his hat. Additionally, in the photos taken after the fact, the SO is seen not only to have a red mark on his forehead above his right eye, but the area around his hairline is also seen to be quite red, and the location of the two marks does not appear to be consistent with a single blow.

WO #2 also related that the SO told him that the Complainant had exited the forest and as the SO was speaking with him, the Complainant punched him in the head.

The Complainant himself admitted that when he exited the bush area and went into his backyard, the SO told him that he just wanted to talk, but the Complainant was not in the mood to speak to police and he yelled and swore at the SO. The Complainant described the SO following him as he walked toward the house, and he felt that the SO was being confrontational in that he purposely stomped on the back of his heels, following which the Complainant turned and swung at the SO with his right hand, which is his dominant hand. The SO then ducked and the Complainant could not recall if he actually made contact with the SO or not.

On this basis, I accept that the evidence establishes that the Complainant did assault the SO in that he swung at him, and, from the marks observed on the SO’s head area, he struck him up to three times in the head and face area and knocked off his hat. I further accept, based on the evidence of the Complainant, that when he swung at the SO, he used his dominant right hand. [1]

CW #1 then tried to get between the SO and the Complainant, and the SO pushed him out of the way and all three fell to the ground. CW #1 described the SO as then rising to his feet and throwing CW #1 off of his son and to the left; CW #1 believes he may then have lost consciousness.

The Complainant described his father coming up behind him and grabbing him in a bear hug and restraining him, following which the SO threw the Complainant into the snow, face down, got on top of him, and put his knee in his back. The SO then put his left hand behind his back and cuffed it. When the SO grabbed his right hand, the Complainant noticed that it immediately hurt, and he believed that the SO purposely broke his hand by twisting it or stomping on it.

WO #2 overheard the Complainant tell the doctor that the SO had twisted his hand when he applied the handcuffs.

CW #1 described that he next saw his son face down in the snow, with his hands cuffed behind his back, and the SO with his right knee in the middle of his son’s back. The SO yelled at the Complainant that he was under arrest for assaulting a police officer. The SO then stood and grabbed the Complainant’s arm and dragged him to his feet, with the Complainant screaming that the SO had broken his finger and was hurting his back.

Once inside the police vehicle, the Complainant kicked the door of the police vehicle with such force that he bent the door outward, damaging it.

Thereafter, the Complainant was taken to the hospital and assessed. Once at the hospital, the Complainant was described as being resistant, pulling away from the officers, and refusing to walk, while his medical records described him as yelling, aggressive and inappropriate.

The Complainant’s right hand was then X-rayed. The attending physician described the injury to the Complainant as a ‘boxer’s fracture of the fifth knuckle on his right hand’. The doctor also went on to indicate that the injury would have been caused as its name stated (i.e. by punching or boxing), and not by being either crushed or twisted.

An internet search on this type of fracture revealed that this type of injury is commonly referred to as a ‘boxer’s fracture’ as it is most commonly caused by hitting a hard object with your fist (Wheeless’ Textbook of Orthopedics, www.Wheelessonline.com; www.orthosports.com; www.handandwristinstitute.com/boxers-fracture-doctor/etc.; https://radiopaedia.org/articles/boxer-fracture-1).

According to ‘The Hand and Wrist Institute’ website:

A boxer’s fracture is caused by forcefully striking an object while the hand is clenched into a fist. This usually occurs in a fistfight or when a person punches a wall in anger. Occasionally, a fall onto an outstretched arm with the hand clenched into a fist can cause this type of fracture. If a clenched fist is hit by an object, like a baseball bat, it may also result in this type of injury.

Therefore, based on all of the evidence, and as corroborated by the medical evidence, I accept that the Complainant sustained his injury when he punched the SO in the head with his clenched right fist, that being his dominant hand.

While on the record before me, I am satisfied that the evidence does not establish reasonable grounds to believe that the SO was the source of the Complainant’s serious injury, I will still assess whether or not his actions amounted to an excessive use of force on these facts, as both the Complainant and his father appear to have taken issue with the SO’s behaviour.

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 apprehension, it is clear from the information provided by CW #1 in the 911 call, and later confirmed at the scene, that the SO and the other responding officers had reasonable grounds to investigate and determine whether the Complainant was a danger to himself or others and whether or not there was an immediate need to apprehend him pursuant to s. 17 of the MHA.

Once the Complainant had assaulted the SO, whether with one punch or three, the SO clearly had reasonable grounds to arrest the Complainant for assaulting a police officer contrary to s. 270 of the Criminal Code.

As such, both the initial attempts to locate the Complainant and investigate him pursuant to the MHA, and his later arrest under the Criminal Code, were legally justified in the circumstances. As such, as long as the SO used no more force than was dictated in the circumstances, his actions are exempt from prosecution pursuant to s. 25 (1).

An assessment of the use of force resorted to by the SO then, requires an assessment of whether the following actions were excessive in these circumstances: the SO grabbing CW #1 and pushing him out of the way when he inserted himself between the SO and the Complainant after the Complainant had assaulted the SO; the SO going to the ground with the Complainant; and, the SO putting his knee in the Complainant’s back and handcuffing him with his hands behind his back.

While the Complainant only first felt any pain in his right hand when the SO grabbed that hand and pulled it behind his back, I have no hesitation in finding that in the absence of any knowledge on the SO’s part that the Complainant had injured his hand when he punched the SO in the head, which he could not possibly have had in these circumstances, that the actions of the SO were no more than what was called for in the circumstances. Additionally, while the Complainant had been aggressive, volatile, and assaultive up until that point in time, and was actively continuing to resist the SO’s efforts to handcuff him, it would have been imprudent if the SO had not put him to the ground in an effort to gain control over him, and pinned him down with his knee in order to apply the handcuffs.

While both the injury to the Complainant’s right hand, and his chronic back pain, were unknown to the SO, I would not have expected him to handle the Complainant with kid gloves. However, even had the SO known about the injuries to the Complainant, I do not find that his actions were excessive in that he could little afford to take the risk that the Complainant was going to continue his assault upon the officer, which risk he continued to pose until he was fully restrained and handcuffed. Even after the Complainant was handcuffed, he managed to cause further damage.

In making this finding, I have considered the direction from 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 before me, I have no hesitation in concluding that the evidence establishes that the Complainant caused his own ‘boxer’s fracture’ when he punched the SO in the head and that the SO showed admirable restraint in the circumstances when he subsequently took the Complainant to the ground and handcuffed him, without ever issuing any blows in retaliation to the assault upon him.

In conclusion, while I find that I lack the basis for the laying of criminal charges, none shall issue.

Date: October 19, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes