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 injuries suffered by the Complainant, a 25 year-old male, during his arrest for a residential break and enter on April 8, 2016 at approximately 11:40 a.m.

The investigation

Notification of the SIU

The SIU was notified of the serious injuries to the Complainant by the Halton Regional Police Service (HRPS) on April 8, 2016 at 7:35 p.m.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant

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

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

WO #8 Interviewed

Subject officer

SO Interviewed, and notes received and reviewed

Evidence

Video/audio/photographic evidence

This incident occurred on a public gravel walking trail which ran through a ravine located south of the GARC and north of the Peartree Circle sub-division, as seen below:

Image of a public gravel walking trail which ran through a ravine located south of the GARC and north of the Peartree Circle sub-division

Physical evidence

The CEW deployed by SO, as well as a single probe and a quantity of taser wire, was inspected by the SIU.

Materials obtained from Police Service

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

  • Collision Statement
  • Event Details
  • Incident Details (redacted)
  • Motor Vehicle Collision Report
  • Notes of WO #1, #2, #3, #4, #5, #6, #7 and #8
  • Notes of SO
  • Procedure-CPO-001-Use of Force
  • Procedure-CPO-028-Prisoner Care and Control
  • Procedure-CPO-004-Arrest and Search of Persons, and
  • Training Record-Use of Force- SO

Incident narrative

On April 8th, 2016, HRPS officers were dispatched to a residential break and enter in progress in the area of Silversmith Drive in the City of Oakville. Upon arrival at the scene, police officers observed the three suspects driving away from the area and followed. Once police activated their lights and sirens to initiate a traffic stop, the suspect vehicle fled. The suspect vehicle then collided with a parked, unmarked cruiser that was trying to block its escape in the area of Upper Middle Road and Postmaster Drive, Oakville. The three men fled from the vehicle and a foot pursuit was initiated. Two of the men were quickly apprehended and taken into custody, while the third man, the Complainant, evaded arrest.

The Complainant was observed jumping fences and running through the backyards of the surrounding area. The Complainant also ran through the GARC, and exited into the adjacent ravine. The Canine Unit was dispatched to track the Complainant, as was the Tactical Response Unit. The Complainant returned to the residential neighbourhood, running between the houses where he was observed by the SO. The SO ordered the Complainant to stop and advised that he was under arrest, but the Complainant ignored her commands. The Complainant then confronted the SO, who fell to the ground, and ran off again with the SO in foot pursuit. After jumping a residence’s fence into the ravine area, followed by the SO, the Complainant again confronted and approached the SO. The SO ordered the Complainant to stop but he continued to advance towards her. The SO deployed her Conducted Energy Weapon (CEW) at the Complainant as he turned away from her. The probes connected with the back of his head and his mid back area. The Complainant seized and fell to the ground. Other officers arrived and the Complainant was handcuffed. An ambulance was called and the Complainant was taken to hospital to have the CEW prongs removed. The Complainant was bleeding from his mouth and appeared disorientated, fatigued, and was sweating. He complained of being thirsty. The Complainant was assessed by medical staff as having suffered a contrecoup brain injury as a result of the motor vehicle collision. The Complainant also suffered an acute kidney injury. It was determined that the Complainant had suffered a prolonged tonic event (seizure), following the deployment of the CEW.

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

  1. as a private person,
  2. as a peace officer or public officer,
  3. in aid of a peace officer or public officer, or
  4. 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 34(1), Criminal Code - Use of threat or force

A person is not guilty of an offence if

  1. they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
  2. the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
  3. the act committed is reasonable in the circumstances.

Analysis and Director’s decision

On April 8th, 2016, HRPS officers were alerted to attend the area of Silversmith Drive in the City of Oakville in response to a report of a break and enter in progress. As officers arrived, a motor vehicle with three suspects was observed to be leaving and officers pursued the vehicle. The suspect vehicle collided with an unmarked cruiser that was trying to block their escape and the three occupants fled from the vehicle and were chased by officers on foot. During the course of the apprehension of one of the three suspects, the Complainant, the SO deployed her CEW, the prongs of which struck the Complainant embedding in his back and head. Thereafter, as the Complainant was seizing, an ambulance was called and he was transported to hospital. After much investigation, he was assessed by medical staff as having suffered a contrecoup brain injury and a kidney injury.

There is no dispute about any of the events, save and except the Complainant’s interactions with the SO. With respect to those interactions, there are no other witnesses other than the two parties involved.

The SO, in her statement to investigators, reported that she parked her vehicle facing westbound with her emergency lights activated in order to set up a perimeter to assist in the capture of the Complainant. She reported that she heard over the police radio that the Complainant had been observed running northbound through a backyard on Greenridge Circle just south of her perimeter point, after which she observed him to come out from between two houses. She exited her vehicle and attempted to radio in her observation, but the radio was tied up and she was unable to do so. The SO, from the information she had in her possession with respect to the offence committed and the description of the perpetrators, believed that she had reasonable grounds to arrest the Complainant for the break and enter as well as flight from police. She took a few steps to the front of her cruiser and yelled, “Police!” and told the Complainant to stop and that he was under arrest.

The SO reported that the Complainant did not stop, but continued to walk towards her. She reported that he was sweating and appeared fatigued but was not injured at that point. The SO reported that the Complainant then pushed her with both his hands on her shoulders, knocking her back three or four steps, which she interpreted as an assault. The Complainant then ran off again and the SO followed. The SO was able to radio in that she was in pursuit of the Complainant and, between houses on Peartree Circle, she grabbed the Complainant and told him to get on the ground. At that point, she reported, the Complainant voluntarily went to the ground on his stomach and the SO, who was on his left side, put her right knee on his lower back. She had hold of his left arm with both of her hands and he told her he would cooperate. The SO again tried to make a radio transmission, but was unable to do so due to radio traffic. She observed a police cruiser driving west away from her and she shouted for help but apparently the occupant of the cruiser did not hear.

The Complainant, according to the SO, then took advantage of this opportunity and pushed his body up and rolled over. Both the officer and the Complainant then stood up and the Complainant pushed her with such force that her feet left the ground and she fell backwards onto her tailbone and back and felt a sharp pain in her back. She reported that the Complainant then ran off and jumped over another fence and she followed, repeatedly calling for him to stop. The SO observed the Complainant to jump a second fence and she followed, landing on one foot and one knee in a kneeling position about 10 – 15 feet from the Complainant. The SO reported that she observed the Complainant to turn and advance towards her while uttering words to the effect of “fuck you bitch”. The SO told the Complainant to stop, but he did not. The SO felt that she was trapped between the garden fence and the Complainant and drew her CEW and again told him to stop, but he continued to advance towards her. At this point, the SO reported, she feared for her safety due to the two prior assaults upon her by the Complainant and his weight and height advantage. She reported that since she was alone and could not reach other police officers, she believed that her only viable use of force option was her CEW, which she aimed and deployed at the lower center mass of the Complainant’s body. She reported that as she deployed her weapon, the Complainant turned away from her and the probes connected with the back of his head and his mid back area. The SO then observed the Complainant to seize up and he fell to the ground, where she gave him verbal commands to put his hands behind his back, but he was unable or unwilling to do so. Other officers then arrived on scene. The SO confirms that at no time did she witness any police officer hit, kick or punch the Complainant.

The versions of events from both the Complainant and the SO are consistent, with the exception that the SO describes her interaction with the Complainant as three separate incidents with brief intervals between. Additionally, the SO describes the Complainant as assaulting her while the Complainant’s evidence, and understanding of assault, differs in that regard. In a situation which is quite fluid and fast moving, as this situation was, I believe this is likely just a matter of perception and semantics. What is clear is that the Complainant was actively making efforts to evade police while the SO was actively making efforts to apprehend him.

What is further clear, from the radio transmissions heard by other officers, is that the SO was concerned for her safety and that she was involved in an altercation. WO #1 reported that he heard a female police officer scream over the radio and that it sounded like she was in an altercation or scuffle with someone. Similarly, WO #8 heard over the radio what sounded like a female officer engaged in a struggle, and, despite the transmissions being broken, described her voice as panicked and that she sounded out of breath. Shortly after hearing this transmission, WO #8 reported that he heard a pop sound and he and WO #4 immediately ran in that direction, where he observed the Complainant lying face down on the trail and the SO standing approximately ten feet away with her CEW in her hand and the probes connected to the Complainant. At that point, WO #8 described the SO as physically shaken and breathing hard. The SO, according to WO #8, told him that she had tried to stop and arrest the Complainant but he had physically grabbed her and thrown her to the ground. She also reported that the Complainant had also struggled with her when she had initially seen him and tried to stop him. These statements, within seconds of her interaction with the Complainant, give credence to the SO’s version of events.

Once at hospital, the Complainant was diagnosed with a possible contrecoup brain injury due to his vehicle colliding with the stationary police vehicle. This injury is clearly of his own making and not attributable to any police behaviour. He was further diagnosed with a kidney injury, the cause upon which the medical experts appeared to disagree. Clearly, in the absence of some consensus by the experts, it is impossible for me to determine what injuries, if any, were caused by the deployment of the CEW. None of the doctors involved had ever seen a CEW deployment result in this type of injury. In the final result, all issues related to the Complainant’s health were finally resolved without any permanent damage and he was released from hospital.

Despite the disagreement of the medical experts, I have formulated my opinion on the basis that there is a possibility that the deployment of the CEW by the SO may have caused the kidney injury to the Complainant and must consider whether the officer’s resort to the CEW was an excessive use of force in the circumstances.

Pursuant to s.34(1) of the Criminal Code, the SO would have been justified in using whatever force necessary to repel the Complainant, if:

  1. She believed on reasonable grounds that force or a threat of force was being used against her;
  2. That she only acted to defend or protect herself against that force or threat of force and;
  3. The act was reasonable in the circumstances.

On the basis that the SO had already had physical force used against her by the Complainant on two occasions prior to her deployment of the CEW and the Complainant was coming towards her and using words (Fuck you bitch) that could be interpreted as threatening, I find that the SO had reasonable grounds to believe that force or a threat of force would be used against her again.

I also find that the SO, in her particular circumstances, that being: she was alone; the Complainant had already twice assaulted her; the Complainant had both a height and weight advantage over her and she was unaware of the location of any other officers who could back her up, acted in self-defence or to protect herself against the threat of force from the Complainant. Additionally, I note that she did not unholster or discharge her firearm, to her credit, but rather looked to a less lethal use of force upon which to defend herself. In all of these circumstances, I find that her actions were reasonable in the circumstances.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear on all of the evidence, including the 911 caller’s report of a residential break and enter, the description of the perpetrators and the motor vehicle in which they were travelling, the behaviour of the perpetrators in what appeared to be an intentional collision with a police vehicle as well as the Complainant’s extreme and ongoing efforts to escape apprehension including his assaults upon the SO, that the SO had more than reasonable grounds to believe that the Complainant had committed an offence. As such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in her attempts to apprehend the Complainant and in defending herself against the Complainant, I find on all of the evidence and for the same reasons as cited under s.34 above, that the SO’s actions were justified in the circumstances and that she used no more force than necessary to effect her lawful purpose. The jurisprudence is clear, officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.)) nor should they be judged to a standard of perfection (R. v. Nasogaluak [2010] 1 S.C.R. 206). On this record, it is clear that the force used by the SO fell within the range of what was reasonably necessary in the circumstances to affect the Complainant’s lawful detention and to protect herself from harm.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s arrest and detention, and the manner in which they were carried out, were lawful notwithstanding whether the injury which he suffered, may have been as a consequence of the CEW deployment (which is not certain). I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officer fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case, and no charges will issue.

Date: August 9, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit