Cruiser and motorbikeRunnersCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 17-OCI-328

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 48-year-old man during his arrest on October 10, 2017.

The Investigation

Notification of the SIU

At approximately 9:26 a.m. on November 9, 2017, the Ottawa Police Service (OPS) notified the SIU that they had received an Ontario Independent Police Review Director (OIPRD) complaint on November 7, 2017, which had been filed by the 48-year-old Complainant and involved a custody injury.
The OIPRD complaint indicated that the Complainant had been arrested on October 10, 2017, by the OPS for public intoxication and that he had been assaulted by a police officer while in police custody. Upon his release from custody, he told a police officer that he thought his left arm was broken and asked the officer to call an ambulance, but he then left the police station before the ambulance arrived, making his way to the Anglican Social Services Centre where he had breakfast. A social worker at the agency summoned an ambulance and the Complainant was taken to the hospital where he was diagnosed with a fractured left wrist.

The OPS advised that on October 10, 2017, the Complainant was arrested for public intoxication in the common area of an address in the City of Ottawa, after his ex-girlfriend called the OPS to have him removed from her residence. At 7:34 p.m., OPS police officers arrived at the apartment and, shortly thereafter, the Complainant was arrested following a struggle. During the struggle, the Complainant sustained a slight laceration to his forehead. The Ottawa EMS was summoned and the Complainant was examined and cleared by paramedics, before he was transported to OPS Headquarters and lodged in a cell overnight.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 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

Police Employee Witnesses

PEW #1 Interviewed
PEW #2 Interviewed

Subject Officers

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


Incident Narrative

On October 10, 2017, the OPS received a 911 call requesting the removal of an unwanted party from the caller’s apartment in the City of Ottawa. Four officers responded to the call, with three going up to the apartment to investigate.

Upon arrival at the apartment, the Complainant was observed in the hallway outside of the apartment. SO #2 went inside the apartment in order to interview the 911 caller, while WO #1 and WO #3 remained in the hallway to speak with the Complainant. When the Complainant refused to stay to speak with the officers, it was determined that he should be detained for purposes of the investigation and he was taken down to the floor and handcuffed. At that time it was observed that he had sustained a small laceration to his forehead and so an ambulance was called and he was assessed and medically cleared.

The Complainant was then lodged in a cell overnight and released in the morning when he was sober. Following his release, the Complainant went to the hospital where he was again assessed.

Nature of Injuries / Treatment

The Complainant’s arm was X-rayed and it was discovered that he had sustained a comminuted fracture of the left distal ulnar (the ulna is the thinner and longer of the two bones in the human forearm, on the side opposite to the thumb) diaphysis (the shaft or central part of a long bone). The Complainant required surgery and the insertion of a plate and screws in order to repair the injury.

Evidence

Video/Audio/Photographic Evidence

Video in cell area

Good quality video and audio recording.

The video captures:
  • The Complainant being led into the station via the sally port;
  • The Complainant being paraded before SO #1;
  • The Complainant being led into the search area where he is searched by PEW #1. In the search room, the Complainant complains about his carpal tunnel syndrome and the tightness of the handcuffs. His agitation escalates and he starts to cry and complain about the handcuffs. After sometime, the handcuffs are removed. The Complainant continues to complain. At one point, he falls to the floor and continues to scream. He is then seen to clutch his left wrist with his right hand and alleges that PEW #1 has dislocated his left wrist. He is then led away to the cell by PEW #1 and SO #1 and he is screaming for a doctor. He is then placed in a cell. 

Communications Recordings

The 911 call and police transmission communications recordings were received and reviewed.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPS:
  • Accused Identification Sheet;
  • Computer Aided Dispatch (CAD) Details;
  • Detention Hardcopy for the Complainant;
  • Narrative Text Hardcopy of WO #1;
  • Notes of WO #s 1-4 and SO #1;
  • OIPRD Complaint (copy);
  • OPS Booking Photo of the Complainant;
  • OPS-SIU Investigations Sign out Sheet;
  • 911 Call Recording;
  • Police Transmissions Communications Recording;
  • Booking hall/sally port/ cell video;
  • Procedure: Prisoner Processing Intake; and
  • Procedure: Arrest Search Courts.

The SIU obtained and reviewed the following materials and documents from other sources:
  • Ambulance Call Reports (x2); and
  • Medical Records of the Complainant relating 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 219 and 221, Criminal Code -- Criminal negligence causing bodily harm

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Section 31(4), Liquor Licence Act -- Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,
(a) In a place to which the general public is invited or permitted access; or
(b) In any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

Analysis and Director's Decision

On October 10, 2017 at 7:25:49 p.m., a 911 call was received by the Ottawa Police Service (OPS) requesting that an unwanted party be removed from the caller’s residence in the City of Ottawa. As a result, Witness Officer (WO) #1 and WO #2 were dispatched to the scene. Two bicycle police officers, WO #3 and Subject Officer (SO) #2, also volunteered to attend the scene to assist.

Upon their arrival, WO #1, WO #3, and SO #2 attended the apartment where the occupant, CW #1, confirmed that the Complainant, her former boyfriend, was not wanted in the apartment and she wanted the police to remove him.

The Complainant, who was already out in the hallway upon police arrival, was arrested for being intoxicated in a common area contrary to s. 31 (4) of the Liquor Licence Act and transported to the station, where he was lodged in a cell for the night and was released in the morning when he was sober. Following his release from the station, the Complainant went to the hospital, where it was determined that he had sustained a fracture to his forearm area. The Complainant then filed a complaint with the OIPRD wherein he alleged that his injury had been caused by an excessive use of force by the arresting police officer on the night of his arrest.

The complaint outlines that on October 10, 2017, the Complainant’s girlfriend called the police to have him removed from her apartment. When the police officers arrived, the Complainant told them that he was just leaving but the police told him to stay where he was while they spoke to CW #1.

The Complainant indicated in his complaint that the next thing he remembered was WO #1 grabbing his hands to arrest him and taking a gram of weed out of his hand, while squeezing his elbow causing him pain due to a previous surgery on his elbows. WO #1, it is alleged, then stated that he was resisting arrest and began to toss him around the hallway, where he landed on his knees and began to yell in pain because another police officer then grabbed his right arm, twisting it, while also kneeing him in the back and slamming him to the ground. The Complainant further alleged that when they slammed him to the ground, his arm was twisted and broke upon impact with the ground. He alleges that the police officers then continued to apply pressure to his arm and legs and to bang his head into the floor, resulting in cuts to his forehead and face. He then blacked out and did not recall leaving the building, but later awoke at the police station, in the cells, and his arm was very swollen and bruised, and his face had cuts which were bleeding.

The Complainant then detailed how he went to a shelter, from which an ambulance was called and he was taken to the hospital. At the hospital, the Complainant indicated that he was diagnosed with having a broken arm, he required stitches, and he was told that he had a possible concussion. The Complainant claimed that he told the hospital staff that he had been beaten by the police.

CW #3, who assisted the Complainant with his OIPRD complaint, indicated that when he saw the Complainant on the morning of October 11, 2017, he noted that the Complainant was favouring his left arm and that his left arm/wrist was noticeably swollen. The Complainant told him that he had been arrested the previous evening at his girlfriend’s apartment while intoxicated and that he struggled with the police in the hallway outside of her apartment. While the Complainant was actively resisting his arrest, one police officer struck his left arm with one of his hands and fractured his left wrist. The Complainant also advised CW #3 that after several police officers piled on top of him, he lost consciousness, following which he was taken to the police station and placed in a cell, while still unconscious.

The Complainant further advised CW #3 that when he awoke the following morning, he asked to be taken to the hospital to have his wrist examined and the same police officer who had arrested him said that he would have to wait outside of the police station. That same officer then gave him a ticket for being intoxicated in a public place and released him. He said that the officer’s name on the ticket was ‘Black’ or ‘Blake’.

In the Complainant’s statement to SIU investigators, he indicated that on October 10, 2017, prior to attending his girlfriend’s residence, he had been involved in a ‘pretty bad’ physical altercation with an unknown male in downtown Ottawa, about an hour prior to attending CW #1’s apartment, but that he was not injured in that altercation.

The Complainant stated that he was in the hallway of CW #1’s apartment building when the police arrived. He described two female officers remaining in the hall with him, (according to the three police officers present, WO #3 and WO #1, one male and one female officer, remained in the hall with the Complainant) while another officer (SO #2) entered CW #1’s apartment.

The Complainant indicated that while his back was to the elevator, someone approached him from behind and grabbed his left wrist and took a gram of marijuana from his hand; he could not describe this person. This same person then pushed him and he stumbled, and then WO #3 and WO #1 grabbed his arms and began twisting them. When the Complainant refused to go down onto the floor, an unknown police officer then kicked him in the left rib cage area and he fell to his knees, whereupon an unknown person then delivered an elbow strike to the back of his head and he went down, face first, and struck his forehead on the floor.

He further described that at that point, the officer who had been inside of CW #1’s apartment (SO #2) came out and knelt on the Complainant’s left hip and took hold of his left wrist, while an unknown person was on his right side, and the two female officers were controlling his feet. The officer who had exited CW #1’s apartment and the unknown person then began to twist and bend his arms, with the Complainant shouting that his arms could not bend due to previous surgeries. The unknown person then elbowed him in the head and he ‘blacked out’ and did not recall anything further until he awoke in the jail cell.

Upon reflection, the Complainant was of the view that it was the police officer who had entered CW #1’s apartment (SO #2) who was responsible for his wrist/arm injury.

Despite the Complainant’s allegations that his wrist/arm was injured in the hallway of CW #1’s apartment building, the two paramedics who were called to assess the Complainant at the apartment building both indicated that the only injury that the Complainant had when they assessed him was a small half inch laceration on his forehead above his left eye. When questioned by the paramedics as to how he had sustained this injury, the Complainant advised him that he had been involved in an argument with his neighbour.

After the small laceration to the Complainant’s forehead had been cleaned and dressed, CW #2, a paramedic, conducted a physical assessment of the Complainant. Both paramedics recalled the Complainant mentioning that he had carpal tunnel syndrome and that his handcuffs were too tight. The Complainant was observed to have redness and slight swelling to both wrists, which CW #4, a second paramedic, believed was exacerbated by the Complainant’s constant pushing and pulling on the handcuffs. CW #4 observed that the handcuffs were loose, with a finger width between the handcuffs and the Complainant’s wrists.

Both paramedics stated that they constantly asked the Complainant if he wished to go to the hospital, but he adamantly refused.

CW #4 indicated that during the 25 minutes or so that the Complainant was in the ambulance with them, his only complaint was about the small laceration to his forehead and at no time did he make any complaint about police misconduct.

CW #3 stated that she observed the police officers check the Complainant’s handcuffs at least three times, and loosen them once, in her presence, but that the Complainant continued to insist the cuffs be removed, while he continued to fidget with them, causing redness around his wrists. When the Complainant indicated that he had had surgery on his wrists in the past and had suffered from carpal tunnel syndrome, CW #2 handled the Complainant’s hands, arms, and wrist, to ensure adequate circulation. She stated that in handling his extremities, at no time did the Complainant wince in pain or have any mobility problems with his hands, which he continually twisted inside the handcuffs.

Other than the small laceration to his forehead, CW #2 also was of the view that the Complainant was fine, with his only complaint being that the handcuffs were too tight. At no time did the Complainant make any complaint about police misconduct in CW #2’s presence.

In attempting to determine when and how the Complainant was injured, relying upon the evidence not only from the paramedics, but also based on the fact that the Complainant was constantly twisting and aggravating his wrists with the handcuffs, which, had his wrist/forearm been broken at that point, would have undoubtedly caused him unbearable pain, and the fact that despite this, he made absolutely no mention of any injury to his wrist with his only concern being the small laceration to his forehead and the handcuffs being too tight, I must infer that either the Complainant was not yet injured when he was seen by paramedics, or, in the alternative, he was so inebriated that he did not feel the pain of his injury.

If this second scenario is accurate, then it is possible that the Complainant was injured at any time prior to being seen by paramedics, including when he had his “pretty bad” physical altercation with the unknown male in downtown Ottawa prior to his arrival at CW #1’s residence.

Once at the police station, the video reveals that in the booking hall, however, the Complainant constantly complained that he was in pain, but attributed it to the handcuffs and asked that they be loosened. The booking officer reassured him that they would be removed momentarily, as soon as he was searched. The Complainant is loudly heard complaining that the female officer was pulling on his arm, that his wrist hurts, that he has ‘carpal tunnel,’ and that the female officer was pulling on him and his cuffs. It is clear that the officers were not taking the Complainant’s complaints seriously at the time, likely due to the fact that his primary complaint appeared to be that the handcuffs were too tight, and they had been repeatedly checked and found to be loose.

The Complainant then slipped incrementally down to the floor, whereupon he is seen grabbing his left wrist and claiming, “You just dislocated my wrist.” It is impossible to determine if the injury actually occurred at that point, or if the Complainant, who is possibly now less anaesthetized by alcohol than he was previously, is only now feeling the pain of an earlier injury. The Complainant again repeats that he believes that someone “dislocated my fucking wrist!”

The booking officer then told the Complainant to remove a ring from his left hand and, when the Complainant makes no movement in that direction, the officer grabbed his left hand to remove the ring himself. At that point, the Complainant really begins to loudly complain of pain and again falls to the floor, writhing on the floor, stating, “Fuck my arm! I need a doctor! I want a doctor!”

Unfortunately, due to all of the previous histrionics about the handcuffs being too tight, none of the officers present appeared to take his complaints seriously and he was removed from the booking area and placed into a cell, holding his left wrist in his right hand throughout.

In the Complainant’s medical records, the doctor had noted that the Complainant provided the following version of events:

The patient stated that both his arms were being drawn behind his back while he was lying on his back. Both shoulders were being twisted at the time. He stated that he felt pain from some time (sic some type?) of direct blow to the ulnar aspect of his left forearm but he was not able to see what struck him.

Furthermore, the medical report describes the injury to the Complainant as:

Radiographs taken in the Emergency Department revealed a fracture pattern and area of fragmentation which was consistent with a classic “night-stick” fracture configuration.

While the term ‘classic night-stick fracture configuration’ seems self-explanatory, I researched several apparently reputable medical websites and confirmed that this did indeed refer to the following:

Nightstick fractures are isolated fractures of the ulna, typically transverse and located in the mid-diaphysis and usually resulting from a direct blow. It is a characteristic defensive fracture when the patient tries to ward off an overhead blow from an assailant (or local law enforcement) branding a bar-like weapon. … Historically this fracture was seen not infrequently due to a strike from a policeman’s baton (known as a nightstick in the USA). (https://radiopaedia.org/articles/nightstick-fracture).

Finally, while the Complainant provided a version of events in his OIPRD statement, and another to SIU investigators, wherein he alleged that SO #2 had caused his fracture while in the hallway outside of CW #1’s apartment, it is clear that on the station video, the Complainant attributes his fracture as having occurred when he was in the booking hall.

According to the police officers involved in the arrest of the Complainant, they arrived at CW #1’s apartment building and WO #3, WO #1, and SO #2 went up to the fifth floor where they encountered the Complainant in the hallway just exiting the apartment with his bicycle. WO #2 only went up to the fifth floor after the Complainant had already been arrested and handcuffed and she played no part in his arrest.

SO #2 then entered the apartment to speak with CW #1, while WO #3 and WO #1 remained in the hallway with the Complainant.

While in the hallway, the Complainant became agitated and was weeping and telling the police to just take him to jail. WO #1 stated that the Complainant had an odour of alcohol on his breath and admitted that he had consumed a quantity of alcohol that afternoon.

WO #3 attempted to speak to the Complainant to find out what had happened, but the Complainant began to walk away, ignoring commands to remain. WO #3 then placed his left hand on the Complainant’s right forearm and triceps. The Complainant reacted and pushed WO #3 back, following which WO #3 quickly used his left hip to trip and ground the Complainant. The Complainant then landed face down in the hallway and began to kick and scream.

WO #3 then attempted to handcuff the Complainant, while WO #1 held his legs down. The Complainant, however, tucked his hands under his torso and was ignoring WO #3’s commands to give up his hands.

SO #2 stated that while he was inside CW #1’s apartment, he heard a commotion in the hallway and he went out and saw the Complainant down on the floor struggling with WO #3 and WO #1 and he went out to assist. SO #2 indicated that despite his own 190 lbs, and the fact that the Complainant was a much smaller man, the Complainant was able to lift SO #2, who was on the Complainant’s back, twice during the struggle.

WO #3 was then able to secure the Complainant’s left arm, and SO #2 his right arm, following which he was handcuffed behind his back. Once the Complainant was sat back up, he was observed to be bleeding from a cut to his forehead and an ambulance was called. WO #1 then arrested the Complainant for being intoxicated in a common area.

According to the three police officers present, no police officer ever kicked, struck, or kneed the Complainant, nor did they twist his arm, and no use of force option was ever resorted to, including a baton. Additionally, there is no mention by any officer of any unknown persons being present who became involved, with only the three police officers, WO #3, WO #1, and SO #2, taking part in his arrest and handcuffing.

I find it would be redundant to list all of the many inconsistencies and demonstrably inaccurate claims contained in the Complainant’s various statements here, but find it sufficient to point to at least the most significant inconsistencies and inaccuracies as follows:

1. The Complainant’s claim that he fell unconscious when the police officers piled on top of him in the hallway, and remained unconscious thereafter while he was both transported to the police station and lodged in a cell;
2. The Complainant’s claim that he required stitches at the hospital and had a possible concussion; and
3. The Complainant’s various versions of how he came to be injured.

I take from the assertion by the Complainant that he was unconscious from the time that he was outside in the fifth floor hallway, that he has no recall of being brought down from the fifth floor, of being seen by paramedics, of being booked in at the station, or of falling to the floor in the booking hall where he claims that he injured his wrist/arm. It is, however, clear from the independent evidence of the two paramedics and the undisputed evidence of the station video that the Complainant was conscious throughout. As such, I infer from his assertion of being unconscious, that either he simply has no recollection of this fairly extensive period of time, likely because of his inebriated state or alternatively that he is being deliberately untruthful.

With respect to the Complainant’s claim that at the hospital he was told, in addition to the fracture to his forearm, that he required stitches and that he had a possible concussion, I note that his hospital records make absolutely no mention of his either requiring sutures or having a possible concussion. 
 
In the Complainant’s various statements and his OIPRD complaint, he indicated that he was injured in the following ways:

  • In his OIPRD complaint, the Complainant alleged that when they slammed him to the ground, his arm was twisted and broke upon impact with the ground;
  • In recounting events to CW #3, he indicated that while actively resisting his arrest, one police officer struck his left arm with one of his hands and fractured his left wrist;
  • In his statement to SIU investigators, he indicated that SO #2 came out and knelt on the Complainant’s left hip and took hold of his left wrist, while an unknown person was on his right side. The officer who had exited CW #1’s apartment and the unknown person then began to twist and bend his arms;
  • His claim, as recorded on the station video, that he believed that either of PEW #1 or WO #1 had “just dislocated his wrist”; or, finally
  • In his report to medical staff, wherein it is noted that he attributed his injury to “both his arms were being drawn behind his back while he was lying on his back. Both shoulders were being twisted at the time. He stated that he felt pain from some time (sic some type?) of direct blow to the ulnar aspect of his left forearm but he was not able to see what struck him” (from which language I clearly infer that these were not actually the Complainant’s words).

Based on the injury sustained by the Complainant, that being the ‘classic night-stick fracture configuration’, it appears clear that none of the first four versions of events provided by the Complainant, as listed, is consistent with his injury, as it is neither consistent with his breaking his arm as it impacted the ground, nor with it breaking as a result of being hit with a hand, being twisted and bent, or being pulled on as evidenced in the station video.

The only scenario that is consistent with the injury sustained, as defined, appears that which is attributed to the Complainant in his medical records. As indicated above, however, I have my doubts as to whether this is the actual version provided by the Complainant or whether it is a version hypothesized by the doctor, as this is the only time that the Complainant ever alleged that he was struck by an object. I further note that this is an allegation which he does not repeat in his later interview with SIU investigators, nor does he ever mention, in any of his other versions, that he believed that he was ever struck with an object. Specifically, I note that the Complainant was of the view that his wrist had been dislocated, and not that his mid forearm had been broken by being struck with a bar or stick.

Even if this last version is the correct version, however, according to the medical records, the Complainant neither saw who struck him nor with what he was struck, thereby still leaving me without sufficient evidence upon which to determine, if a criminal act was committed, by whom it was committed – assuming I have reasonable grounds to believe that a criminal act had occurred.

On the basis of the five different versions provided by the Complainant as to how he came to sustain his fractured ulna, however, I am forced to accept that the Complainant, likely due to his state of intoxication, was unaware who caused his injury or when and how it was sustained.

In conclusion, based on the unreliability of the Complainant’s various versions of events, I find that it would be unsafe to rely on his evidence in any way, in order to form reasonable grounds to believe that a criminal offence occurred here.

On this record, I find that there is no reliable evidence that any police officer involved in the arrest of the Complainant resorted to an excessvie use of force, nor is there any reliable evidence that the actions of any police officer were responsible for the Complainant’s injury. On this basis, I find that there is no basis for believing that any police officer acted outside of the limits of the criminal law and no charges will issue.

With respect to the culpability, if any, of the booking sergeant, SO #1, who failed to immediately obtain medical attention for the Complainant when he claimed that the booking officer or WO #1 had just dislocated his wrist, it is clear that as booking sergeant, SO #1 was in charge of the station and tasked with the duty to ensure the safety of its occupants and to obtain medical assistance for any who required it.

The only criminal charge open for consideration on these facts would be one of criminal negligence contrary to s.219 of the Criminal Code. There is no dispute that the serious injury sustained by the Complainant was in no way attributable to the actions, or lack thereof, of SO #1, the only question being whether or not SO #1 failed in his duty toward the Complainant when he failed to appreciate that the Complainant had, at some point, sustained an injury and thus failed to arrange for him to obtain medical assistance. Specifically, the question to be posed is whether SO #1 omitted to do anything that it was his duty to do and, in failing to do so, showed a wanton or reckless disregard for the life or safety of the Complainant (s.219 of the Criminal Code: definition of criminal negligence).

There are numerous decisions of the higher courts defining the requirements to prove an offence of criminal negligence; while most relate to offences involving driving, the courts have made it clear that the same principles apply to other behaviour as well. In order to find reasonable grounds to believe that SO #1 was criminally negligent, one must first have reasonable grounds to believe that he had a duty toward the Complainant which he omitted to carry out, and that omission, pursuant to the decision of the Supreme Court of Canada in R. v J.F. (2008), 3 S.C.R. 215, represented ‘a marked and substantial departure from the conduct of a reasonably prudent person in circumstances where SO #1 ‘either recognized and ran an obvious and serious risk to the life’ of the Complainant ‘or, alternatively, gave no thought to that risk’.

I note that on these facts, the information provided to SO #1 was that the Complainant was constantly and loudly complaining that his handcuffs were too tight, which claim had been looked into numerous times and discovered to be unfounded. Additionally, SO #1 was advised that the Complainant had already been examined by paramedics and medically cleared. Clearly, SO #1 was entitled to rely upon this information in considering whether or not the Complainant required further medical attention.

On these facts, I accept that it may not have been apparent to SO #1 that the Complainant had sustained an injury, in the same way that it was neither apparent to the two paramedics, who were trained to examine and assess injuries as SO #1 was not, and all of the other police officers who dealt with the Complainant. Unfortunately, due to the Complainant’s loud and insistent complaints that his handcuffs were too tight, and since that complaint had been looked into and disproven a number of times, those dealing with the Complainant came to disregard his complaints as unreliable and only meant to aggravate and annoy.

Additionally, there is no offence of simple criminal negligence, with the Criminal Code requiring that the criminal negligence must be the cause of either death (s. 220) or bodily harm (s. 221). While it is clear on these facts that nothing that SO #1 did, or failed to do, lead to the Complainant’s injury, there is no basis in this evidence upon which I can find reasonable grounds to believe that SO #1’s actions fell within the ambit of s. 221 and therefore I find that the evidence equally does not provide me with reasonable grounds to believe that SO #1’s actions, or inaction, ran afoul of any Criminal Code provisions.

In conclusion, I find that the evidence, both with respect to the actions of SO #2, and the inaction of SO #1, does not satisfy me that I have reasonable grounds to believe that the actions of either amounted to a criminal offence and no charges will issue.



Date: October 5, 2018





Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) No officers by those names had any contact with the Complainant on October 10, 2017. [Back to text]
  • 2) Who were unable to find any injury to the Complainant’s arm or wrist. [Back to text]