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SIU Director’s Report - Case # 17-OCI-292

Contents:

News Releases for this Case:

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Mandate of the SIU

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

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

Information restrictions

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

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


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

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

Other proceedings, processes, and investigations

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

Mandate engaged

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

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

This report relates to the SIU’s investigation into the serious injury sustained by a 30-year-old man during his arrest on October 7, 2017.

The Investigation

Notification of the SIU

At approximately 3:35 a.m. on October 8, 2017, the Peel Regional Police (PRP) reported a custody injury sustained by the Complainant during his arrest.

The PRP reported that the Complainant was arrested at 10:08 p.m. on October 7, 2017, following a short foot chase. The Complainant was wanted on a warrant and his arrest took place in a small park off of Chamney Court in Brampton. Afterwards, the Complainant was taken to the hospital and at 3:00 a.m. he was diagnosed as having suffered a fractured [right] clavicle.

The Team

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

The SIU dispatched two investigators to interview the Complainant at the police station. After some difficulty, investigators were finally able to locate and interview the two civilian witnesses (CWs).

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Notes reviewed, interview deemed not necessary
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed

Witness Officers (WO) #s 1 and 2 transported the Complainant to the hospital and later returned him to the police station. Their duty notes were reviewed but they were not interviewed, as they were not involved in the incident giving rise to the Complainant’s injury.


Subject Officers

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


Incident Narrative

On October 7, 2017, Subject Officer (SO) #1 and SO #2 attended Chamney Court in the City of Brampton. Their purpose, according to SO #1, was to speak to residents on the street and provide a police presence following two shootings that had taken place in the neighbourhood earlier in the year.

SO #1 and SO #2 approached the garage at the residence of CW #2, where they spoke to CW #2, CW #1, and their friend, later determined to be the Complainant.

The Complainant provided a false name to the police officers and SO #1, because of the Complainant’s behaviour, stepped away from the residence to further investigate the Complainant. SO #1 then returned and he and SO #2 informed the Complainant that there was a warrant outstanding for his arrest. The Complainant fled and ran into a small green space next to CW #2’s residence.

SO #1 and SO #2 were able to catch up to the Complainant and they struggled to gain control of him. During that struggle, SO #2 delivered at least two knee strikes to the Complainant’s left side.

Following his arrest, the Complainant was transported to the police station, where he complained of pain in his arm and he was transported to hospital.

Nature of Injury/Treatment

The Complainant was assessed at hospital and it was determined that he had sustained a fractured right clavicle (collarbone).

Evidence

The Scene

CW #2 and CW #1 reside at an address on Chamney Court in the City of Brampton. South of their property, between their home and the next home to the west, is a small green space with a walkway that leads to the parking lot of an apartment building on Kennedy Road. Brick walls along the north and west edges of the green space separate the green space from the two homes. Along the south edge of the green space there is a chain-link fence and a line of shrubs. That chain-link fence separates the green space from the rear yards of the houses along Bartley Bull Parkway.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

There were no video or audio recordings located.

Communications Recordings

The police transmissions recordings were received and reviewed. They begin with an out of breath police officer reporting that there is a male running in the area of Chamney Court, running northbound. The officer is obviously running as well, as he is breathing heavily.

Shortly thereafter, the officer calls in again to report that they have one in custody on a warrant.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:
  • A copy of the communications recordings;
  • Audio Copy Report – summary of radio transmissions;
  • The Event Chronology Report regarding the domestic incident that gave rise to a warrant for the Complainant’s arrest;
  • A copy of a warrant authorising the arrest of the Complainant;
  • The Event Chronology Report related to the Complainant’s arrest;
  • A copy of the police station custody area video recordings;
  • The notebook entries of the witness officers (WOs);
  • The Operational Plan for the Strategic Tactical Enforcement Program (STEP); and
  • The Unit History for SO #s 1 and 2.


The SIU obtained and reviewed the following materials and documents from other sources:
  • The Complainant’s medical records related 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 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.

Analysis and Director's Decision

On October 7, 2017, Subject Officer (SO) #1 and SO #2 of the Peel Regional Police (PRP) were on duty on a Strategic Tactical Enforcement Program (STEP) team. According to SO #1, the purpose of STEP is to provide a visible police presence, develop rapport, and perform compliance checks in problem areas of Peel Region. While performing these duties on October 7, 2017, SO #1 and SO #2 came into contact with the Complainant, who had an outstanding warrant for his arrest. Upon apparently identifying the Complainant as the wanted party and attempting to arrest him, the Complainant ran from the police. He was later apprehended and arrested, following which he was transported to the hospital where he was assessed and found to have sustained a broken right clavicle (collar bone).

During the course of this investigation, three civilian witnesses (CWs), including the Complainant, were interviewed, as was SO #1, while SO #2 declined to be interviewed or to provide his memorandum book notes for review, as was his legal right. While three other police witnesses were also interviewed during the investigation, none were present during the interaction with the Complainant. Other than the actual witness statements, there was no physical evidence or audio/video recordings of the incident. There is, however, very little dispute as to the facts and the Complainant’s memory appears to be consistent with small details provided by other witnesses, making him appear to be a credible and reliable witness.
On October 7, 2017, the Complainant and his friends, CW #1 and CW #2, were at the residence of CW #2 in the City of Brampton. The three were in CW #2’s garage at the time listening to music; the garage door was described as being half open.

The Complainant recalled two male police officers approaching the garage and introducing themselves, indicating that they were doing neighbourhood patrols because there had been a lot of activity in the area recently. The Complainant was able to fairly accurately describe both police officers with respect to height, weight, tattoos, facial hair, and that both were in police uniform. While SO #1, who was not interviewed until some months later, described both himself and SO #2 as sporting beards at the time, I note that both the Complainant and CW #1, who were interviewed the day after the incident, were consistent in describing SO #1 as sporting a beard and SO #2 being clean shaven at that time. This evidence is further confirmed by CW #2 and I accept that the evidence of the Complainant and CW #1 is accurate in this regard, and that SO #1 is very likely mistaken, due to the passage of time. On this basis, when referring to the evidence, I have inferred that the bearded officer was SO #1, while the clean shaven officer was SO #2.

There is no dispute that the police officers asked the three parties to provide their names and identification to the officers, and though they had no obligation to do so, each identified themselves verbally, with the Complainant misidentifying himself. While there was no obligation on the Complainant to identify himself in these circumstances, having opted to do so, it was a criminal offence (s.129 obstructing a peace officer in the course of his duties) to provide a false name.

Despite the false name provided, given the Complainant’s behaviour, SO #1 suspected that this was in fact the Complainant, who was apparently wanted for an outstanding arrest warrant which arose out of an incident the previous evening. As a result, SO #1 stepped away and back to his police vehicle to review a photograph of the Complainant. Upon SO #1’s return, he advised the Complainant that he was under arrest due to an outstanding warrant and he took his handcuffs and grabbed hold of the Complainant’s wrists to place him under arrest. The Complainant openly conceded that he then ran away.

The Complainant ran onto a pathway that leads to a green space between and behind two houses. In his efforts to escape apprehension, he admittedly fell over his own foot and fell face forward onto the ground, landing on his stomach. The Complainant stated that he hit his leg and injured his foot during this fall, but he got back up and continued to run.

According to SO #1, the Complainant’s fall allowed the two police officers to gain some ground on the Complainant. SO #1 stated that SO #2 reported over the police radio that they were involved in a foot chase, and this is confirmed by the police transmission recording wherein a police officer, who is clearly breathing heavily and appears to be running, radios, “Male running, (location), northbound.”

SO #1 described the Complainant as then falling a second time, before running east into some bushes, while the Complainant indicated that he only fell once, before he was pushed on the back by one of the police officers chasing him, and he fell into the hedges on the right side of the pathway, with the police officer who pushed him falling with him.

The Complainant indicated that he fell awkwardly into the hedge but did not believe that he fell onto his right shoulder. The Complainant described himself as facing the police officers at an awkward angle, as they gave orders to him to ‘freeze’ and ‘come out.’ The Complainant stated that he was unable to turn over, due to his awkward position in the hedge, and was unable therefore to comply with the police commands.

SO #1, on the other hand, interpreted the Complainant’s lack of cooperation as actively trying to turn around and struggling to break free of the officers, who had each grabbed a hold of the Complainant on either side. In light of the Complainant’s earlier escape, I find SO #1’s interpretation quite reasonable in the circumstances.

SO #1 described himself and SO #2 as pulling the Complainant from the bushes with both officers falling to the ground with him, while the Complainant fell and landed face first on the ground. SO #1 indicated that the Complainant was still flailing his legs and trying to get away.

The Complainant stated that he was only in the hedge for a few seconds when he was pulled out by the police who tried to turn him over, using force to stop him from escaping. The Complainant described feeling the police officers’ knees in his back as he was twisted onto his right side.

Both the Complainant and WO #3 indicated in their statements that SO #1 made a comment similar to, “You shouldn’t have made us two fat guys run,” indicating again, in my view, the fairly reliable version of events from the Complainant.

The Complainant stated that SO #1 told him to stop resisting, but the Complainant was of the view that he was not doing so. He then described one of the police officers as pushing his head into the ground and the Complainant indicated that it felt as if the officers were punching him in the head some three to four times, following which he was pinned to the ground by the police officers, and he felt a knee in his back to keep him in place. The Complainant opined that it was during this struggle that his shoulder (or clavicle) was injured, which he attributed to the awkward position he was in, combined with the pressure on his right shoulder.

SO #1 described the Complainant trying to push himself up, so SO #1 got on top of the Complainant’s back to push him flat to the ground. SO #1 also described his right arm being in the area of the Complainant’s head and that he was lying across the Complainant’s back and hooking his legs around the Complainant’s legs to prevent them from flailing. SO #1 stated that SO #2 delivered two knee strikes to the Complainant’s left rib area during this struggle.

The Complainant, from his position face down on the ground, believed that SO #1 then placed him into a headlock or chokehold, with SO #1’s arm under his chin and squeezing tightly around his neck causing the Complainant to struggle to breathe. The Complainant also related that SO #1 then said to him, “I’m going to put you to sleep.” It is only this specific portion of the evidence, that being this utterance and the chokehold, which appears to be disputed as between the Complainant and SO #1. The Complainant described being in the chokehold for some 15 seconds after which CW #2 arrived and was using his cell phone in such a way as to lead the Complainant to believe that he was video recording the interaction, when he was in fact not doing so. The Complainant described someone then saying, “He’s not resisting, you can let him up,” following which SO #1 loosened his chokehold and the Complainant was handcuffed and taken to a police cruiser.

Neither of CW #2 or CW #1 ever observed any police officer strike the Complainant, although upon their arrival, they confirmed that the Complainant could be heard struggling and gasping for breath and telling the police to get off of him and that he could not breathe.

CW #2 observed one police officer with his left knee on the Complainant’s right shoulder and lower neck, while the other police officer’s shin was on the Complainant’s ribs. The first police officer was also described as having the Complainant’s arm in an ‘arm-bar’ with the Complainant’s arm pointing upward.

CW #1 supported the evidence of the Complainant, in that she indicated that upon her arrival, she was the party who told the police officers to ease up as they already had the Complainant under control, following which SO #1, who she indicated was holding the Complainant in some sort of chokehold, loosened his grip on the Complainant, but continued to keep him under control. CW #1 described the police officers as being rough with the Complainant, which upset her, but conceded that she at no time observed any police officer to strike the Complainant.

While not particularly relevant to the factual findings in this matter, I again note the Complainant’s accurate recollection as to detail in that he indicated in his statement that when another officer attended to transport him, that officer was smoking a cigar. While WO #3, who was the transporting officer, indicated in his statement that he had smoked a cigar prior to his arrival, but not at the scene, I note that the evidence of the Complainant is again independently confirmed by SO #1 who also described WO #3 as smoking a cigar upon his arrival, again confirming the reliability of the Complainant’s recollection of events.

On the basis of this evidence, then, I have no hesitation in accepting the version of events as provided by the Complainant, particularly in light of the independent confirmation of that evidence by various other witnesses, including SO #1.

I accept that the Complainant, while SO #1 was placing him under arrest and was attempting to handcuff him, escaped from SO #1 and ran. That thereafter, totally without any intervention, the Complainant fell at least once and then either fell, or was pushed, into the hedge by the police on a second occasion, following which the police officers dragged him out of the bush, resulting in both officers falling to the ground with the Complainant. I find that once on the ground, the police officers were none too gentle with the Complainant and I accept that while the Complainant may not have believed that he was resisting, but was incapable of complying, that the police officers were not about to give him the benefit of the doubt at that point, after the Complainant had already evaded arrest on one occasion.

I further have absolutely no hesitation in accepting that the Complainant may have simply been flailing about as he could not breathe, and that gasping for air and being unable to breathe would be a natural result of having two 250 pound men lying, kneeling, or sitting on top of you. I also accept that in his efforts to control and contain the Complainant, SO #2 delivered two knee strikes to the Complainant’s ribs and that SO #1 placed his arm around or against the Complainant’s neck area.

Pursuant to s. 25(1) of the Criminal Code of Canada, 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 subject officers to qualify for protection from prosecution pursuant to s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary.

Turning first to the actions of SO #1 and SO #2 in attempting to arrest the Complainant on the outstanding arrest warrant, it is clear that doing so was within the execution of their lawful duties, and that they were therefore acting lawfully when they attempted first to arrest the Complainant, and then to pursue and detain the Complainant after he resisted arrest and escaped custody. As such, unless the actions of the police officers were excessive and unreasonable in these circumstances, their actions are exempt from prosecution pursuant to s. 25 of the Criminal Code.

In assessing the justification of the force resorted to by SO #2, but more so by SO #1, I am mindful of the fact that the Complainant had already once evaded arrest, that he was actively attempting to escape, and that this incident occurred in a fast paced and fluid environment, in the dark, and without the opportunity to carefully weigh out each particular action. In coming to the conclusion that the actions of these two officers in this particular factual situation did not amount to an excessive use of force, I have been guided by the direction of the Supreme Court of Canada as set out in R v Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

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

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

While I am unable to discern exactly when the Complainant received his serious injury, I note that the collarbone is one of the most commonly fractured bones in the human body and that it commonly occurs as a result of a fall onto the shoulder or an outstretched arm (source: https://orthoinfor.aaos.org; www.mayoclinic.org; www.webmd.boots.com). On that basis, I find that it is very likely that either of the two falls by the Complainant could have caused his injury, but even if he was injured during his struggle with SO #1 and SO #2, I do not find that it was as a result of an excessive use of force, but rather an unfortunate result of two 250 pound men trying to restrain and subdue the struggling Complainant.

In conclusion, I find that the evidence does not satisfy me that I have reasonable grounds to believe that either of SO #2 or SO #1 resorted to an excessive use of force against the Complainant, nor do I have the necessary grounds for the laying of criminal charges and none shall issue.


Date: September 12, 2018



Original signed by

Tony Loparco
Director
Special Investigations Unit