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 custody injuries allegedly sustained by a 36-year-old man in the district of Vanier during an interaction with police on May 10, 2016.

The investigation

Notification of the SIU

On May 13, 2016 at 10:09 a.m., Ottawa Police Service (OPS) notified the SIU of a custody injury that occurred on May 10, 2016 at 12:24 p.m. OPS reported that the Complainant called police on May 10, 2016, to attend a residential apartment building in Vanier because Civilian Witness #7 was leaving with the Complainant’s vehicle, which was registered to her. The police explained it was not a police matter and explained his civil remedy. They left and the Complainant called again. The same explanation was given to him.

Police left and the Complainant called again and was arrested for public mischief and causing a disturbance by OPS officers. The Complainant was taken to the hospital. He left before he was treated but returned later and reported his arm was fractured and was put in a cast.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Not Interviewed footnote 1

CW #6 Not Interviewed

CW #7 Not interviewed, but provided written statement to OPS

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Notes received and reviewed, interview deemed not necessary footnote 2

WO #4 Interviewed, notes received and reviewed

Subject Officers

SO #1 footnote 3

SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

Evidence

The Scene

The arrest took place on the exterior grounds of a multi-level eight unit residential apartment in the Vanier district of Ottawa. The residence is located on the northwest corner of the intersection. A service road runs east and west on the north side of the residence.

Video/Audio/Photographic Evidence

Efforts were undertaken to identify any municipal or private security cameras that may have covered the arrest scene, to supplement civilian and police accounts. This proved unsuccessful. While an external security camera system was in operation at an adjacent convenience store, enquiries determined that any recordings were no longer accessible due to the relatively brief loop time of the recording system, that being 14 days.

Materials Obtained from Police Service

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

  • investigative action report- SO #1, SO #2, WO #1, WO #2, WO #3,
  • notes for WO #1, WO #2, WO #3 and WO #4,
  • witness statement – CW #7,
  • radio communications,
  • Ottawa Police Service policy – arrest, and
  • Ottawa Police Service policy – prisoner care and control.

Incident narrative

On May 10, 2016, OPS officers responded to a 911 call in the Vanier district in the City of Ottawa. The Complainant called police and advised he had been assaulted and his vehicle had been stolen. Consequently, WO #1, WO #4, and SO #1, attended and informed the Complainant that the ownership of the motor vehicle was a civil matter, not a criminal matter, and there was insufficient evidence to form reasonable grounds to lay a charge of assault. Police left the scene. The Complainant was not satisfied with the police response, and he called OPS multiple times requesting that a Sergeant attend the scene.

As a result of the Complainant’s subsequent calls, SO #2 attended the scene, as well as WO #4 and WO #1. SO #2 spoke with the Complainant and advised him that the ownership of the motor vehicle was a civil matter. The Complainant continued to call 911 for other police officers to respond and attend the scene. WO #3 directed SO #2 to reattend the residence. SO #1 also reattended to speak to CW #7. At this time, the Complainant was placed under arrest for causing a disturbance and public mischief, handcuffed with his hands behind his back, and placed into the rear of a cruiser.

The Complainant advised that his implantable cardiac defibrillator (ICD) had gone off. An ambulance was subsequently requested.

Once the ambulance arrived, SO #2 entered the ambulance to remove the handcuffs from the Complainant, and the Complainant was transported to the hospital. Upon arriving at the hospital, the Complainant left without being assessed.

The following day, the Complainant returned to the hospital and his left arm was x-rayed but determined not to be broken. On May 15, 2016, the Complainant attended another hospital for assessment of potential injuries to his chest during his arrest on May 10th. At that time, he was assessed as possibly having a hairline fracture to his left fourth rib. On May 24, 2016, however, the radiologist who viewed the Complainant’s x-rays did a re-assessment of his x-rays and concluded that it was unlikely that the Complainant had a fractured rib.

Relevant legislation

Section 175(1), Criminal Code – Cause Disturbance

175 (1) Every one who

(a) not being in a dwelling-house, causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

(ii) by being drunk, or

(iii) by impeding or molesting other persons,

(b) openly exposes or exhibits an indecent exhibition in a public place,

(c) loiters in a public place and in any way obstructs persons who are in that place, or

(d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied,

is guilty of an offence punishable on summary conviction.

Section 140(1),Criminal Code – Public mischief

140 (1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by

(a) making a false statement that accuses some other person of having committed an offence;

(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;

(c) reporting that an offence has been committed when it has not been committed; or

(d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.

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.

Analysis and director’s decision

On May 10th, 2016, OPS responded to a 911 call to a residence in the City of Ottawa. The Complainant had called 911 to report that CW #7 had stolen his motor vehicle and CW #2 had assaulted him. In response, numerous officers attended the address and eventually the Complainant was arrested for causing a disturbance and public mischief. It is alleged that during the course of his arrest, officers, specifically SO #1 and SO #2, used excessive force and caused the Complainant to suffer one or more injuries. It is unclear from the medical records whether or not the Complainant suffered any actual injury.

At the time of the SIU investigation, CW #7 was no longer living in Ontario and was unavailable to be interviewed. In her written statement provided to SO #1, however, she confirmed CW #2’s statement as to what occurred, adding the following descriptions about the Complainant’s behaviour: freaking out in CW #2’s face and screaming at me “you fucking took my car”; he told the other officer “get outta here with your attitude” but the officer didn’t say anything yet; he was freaking out on the officers for no reason; he was completely screaming at them; he’s tripping out at you guys (police) screaming that you beat him, I saw you (SO #1) arrest him, walk him to the car.

In the report from the paramedics who assessed and transported the Complainant, the Complainant is described as being aggressive and agitated and the delay in his treatment was attributed to an “uncooperative patient”. Paramedics also noted that they were unable to get any further information or vitals from the Complainant as he was “too agitated about police interaction and pre-occupied speaking on cell phone”. The final summation from paramedics in their report was as follows:

Called to above location to assess a male with the police reporting that his internal pace maker “went off”. Patient report feeling dizzy when put in the back of the car handcuffed when he reports the pacemaker/defibrillator fired. Upon arrival, patient aggressive and aggravated with police, verbally yelling at police and people in a nearby building. Difficulty assessing patient/difficulty getting him to answer questions as he was more focused on all other events surrounding his dealing with police. Patient initially wanted to be assessed at hospital due to defibrillator but was then more concerned with possibly left arm/wrist injury from the police removing the handcuffs.

According to the medical records, on May 10th, 2016, while at the hospital, the Complainant was agitated and speaking loudly about discussions with his lawyer. The nurse noted that he wanted the names of all of the police officers and Emergency Medical Services personnel he had contact with that date but had no medical complaint and did not wish to stay to see the doctor. An officer provided information to the Complainant with respect to obtaining the names, but he was not content and wanted papers. He began to take photos and the team leader told him not to do this. Apparently the Complainant was upset that the triage documents were written in French and he became aggressive and began insulting the clerks in the waiting room and eventually security was called and he was escorted out.

The medical records of May 11, 2016, indicate that the Complainant returned to the hospital complaining his left wrist was numb, but he was then observed by medical staff to be holding his cell phone in that same hand without difficulty. The records indicate that the Complainant attributed his injury to “being pushed into the car by police and left arm being pulled aggressively during handcuffing”. It was observed that he had a wrist contusion/sprain but refused Advil.

WO #4, in his statement to investigators, advised that he and WO #1 responded to a call at 10:33 a.m. to the residence from the Complainant indicating that he had been choked by CW #2. SO #1 was simultaneously dispatched to the same call. WO #4, in his statement to investigators, indicated that they met with the Complainant who advised them that he came to speak with CW #7 about a vehicle that he owned, when CW #7 choked him. The Complainant explained to officers that he was involved in a legal dispute with CW #7 and he needed the vehicle to support his claim. The Complainant admitted that he did not have a valid driver’s licence but claimed he had purchased the vehicle and registered it in CW #7’s name; he showed WO #4 a handwritten bill of sale purportedly signed by CW #7. The Complainant claimed that CW #7 refused to sign over the ownership papers to him and, as such, she had stolen the vehicle from him. The Complainant claimed that the taxi driver who had transported him was witness to CW #7’s choking him, whereupon WO #4 spoke to the taxi driver who stated he had observed a female push the Complainant, but not choke him. WO #4 returned and advised the Complainant that the ownership of the motor vehicle was a civil matter, and not a police matter. The Complainant was upset and dissatisfied with this response and began screaming and refused to speak further with WO #4, instead calling 911 and requesting that other police officers be dispatched to deal with the matter. At that point, SO #1, who had been in the apartment speaking with CW #3 and had viewed the registration papers, came out and also confirmed to the Complainant that this was a civil matter. The Complainant continued to argue and make calls on his phone, whereupon WO #4 reiterated that the Complainant would have to resolve the matter with the provincial authorities and they left. WO #4 advised that the three officers further discussed the matter and agreed that there was insufficient evidence to form reasonable grounds to lay a charge of assault and that the ownership of the vehicle was a civil matter.

Dispatch advised that the Complainant continued to demand that police officers respond to his complaint and SO #2 was dispatched to speak with him. WO #1, WO #4 and SO #1 all met with SO #2 to fill him in on what had occurred up to that point in time, before he went and met with the Complainant. The officers also returned to the address with SO #2. WO #4 advised that SO #2 listened to the Complainant and then informed him that his view of the matter was the same as that of the officers. The Complainant then became upset again and was dissatisfied and continued to make calls on his cell phone. Officers left the scene, leaving the Complainant sitting on the curb speaking on his phone. WO #1s’ statement was consistent with that of WO #4 and neither returned to the scene or observed the arrest of the Complainant.

SO #1, in her statement to investigators, confirmed the above version of events as set out by WO #1 and WO #4. Additionally, she advised that when the Complainant alleged that CW #2 had choked him, SO #1 looked at his neck and did not observe any injuries to the Complainant. She observed the Complainant to be irate and she heard him say, “You’re not going to fucking do anything”. SO #1 further advised that when she went out to speak with the Complainant she made it clear that he was not welcome at the residence and she directed him to leave or he would be charged with trespass. She described the Complainant as continuing to be loud and profane and SO #1 told him to stop screaming and swearing or he would be charged with causing a disturbance. In her presence, the Complainant then called police dispatch again and said, “These cops aren’t doing anything. Get me fucking new cops!” and asked to speak with a sergeant. The Complainant did, however, leave the property, as a result of which the officers also left. SO #1 advised that she heard on the radio that SO #2, along with WO #1 and WO #2, were all returning to the residence and all three officers spoke with her after their attendance.

SO #1 advised that she returned to the residence as she realized that she did not have the vehicle information for her report. As a result, she and CW #7 went to the parking lot to retrieve the registration papers from the car, when she observed the Complainant standing by the vehicle screaming into his cell phone. SO #1 advised that she told the Complainant to step away from the vehicle and he did so. While she was at the vehicle, SO #2 arrived back at the property and she overheard the Complainant address SO #2 saying, “Fuck you and your attitude. I’m fucking calling 911 again”. The Complainant then began to call again, at which point SO #1 walked directly over to the Complainant, advised him he was under arrest for causing a disturbance and public mischief and handcuffed his hands behind his back. The Complainant responded, “Okay. Fuck, whatever.” SO #1 advised that SO #2 was not involved in the arrest, but was standing approximately five feet away observing. SO #1 advised that the Complainant did not resist when she handcuffed him but did call out that she was beating him up. SO #1 then took the Complainant’s phone from his hand, removed his wallet and other personal effects, placed them inside his hat and handed them to SO #2. SO #1 took the Complainant by the left bicep and walked him to the cruiser. The Complainant did not resist. This version of events is confirmed by the written statement of CW #7.

SO #1 then advised that she directed the Complainant towards the open door of her cruiser and directed him to get in and sit down, which he did. She advised that she put her hand on top of the Complainant’s head to prevent him striking his head on the door frame. She advised that the Complainant entered the vehicle, sat down and she closed the door. She advised that at no time did the Complainant strike any part of the partition as he entered the vehicle, nor did he complain of same. SO #1 advised that the Complainant continued to scream in the back seat.

SO #1 advised that SO #2 then attended the cruiser and placed the Complainant’s property on the rear closed trunk lid while she read the Complainant his Right to Counsel as well as the Cautions as he continued to swear at her. Once SO #1 had closed the door, the Complainant began to thrash about in the rear seat, moving wildly and slamming his shoulder against the rear passenger door. SO #1 opened the door again and directed the Complainant to stop. The Complainant demanded that his handcuffs be removed saying that his pacemaker was zapping him and he was going to go straight to the media to report the officers. He claimed, according to SO #1, that the handcuffs were hurting his pacemaker and he wanted them off and wanted to go to hospital. He screamed that SO #1 was beating him. SO #1 advised that she then opened the rear door and allowed the Complainant to place his feet outside. SO #2 called an ambulance as the Complainant had complained that his pacemaker had gone off. Again, this version of events is confirmed by the written statement of CW #7, as well other witnesses.

While awaiting the ambulance arrival, SO #1 advised, the Complainant continued to thrash about and scream, but she observed no injuries and he made no complaint other than that his pacemaker had gone off. Once paramedics arrived, the Complainant shouted and demanded that his handcuffs be removed, but the paramedic indicated, given the Complainant’s agitated state, that he preferred the cuffs stay on. The paramedic then walked the Complainant to the ambulance, while the Complainant continued to scream at her that he would have her job and calling her a bitch. SO #1 then returned to her vehicle to prepare the Complainant’s promise to appear after which she attended at the ambulance and observed SO #2 direct the Complainant to stand so that his cuffs could be removed. SO #1 stated that she heard the Complainant exclaim that SO #2 was breaking his arm, as his handcuffs were being removed. SO #1 then returned the Complainant’s hat and personal items to him and she observed him to take them using both hands. He then made two more calls to 911 on his cell phone and she observed that he did not appear to be suffering from pain or have any problems with dexterity or movement, notwithstanding his allegation that his arm was broken. The observations of SO #1 as to the Complainant’s condition appear to accord with observations made both by paramedics and staff at the hospital.

The interview of SO #2 corroborates the statement of SO #1 with a few additions. He described the Complainant’s thrashing about in the back of the cruiser as the Complainant moving as if he was being electrocuted, whereupon SO #2 immediately called for an ambulance. SO #2 indicated that once the Complainant was in the ambulance, SO #2 maneuvered the Complainant’s wrist to access the keyhole on the handcuff and the Complainant exclaimed that S #2 was breaking his wrist. SO #2 stated that he, at no time, observed any officer to use force against the Complainant and that the Complainant did not complain of being injured by SO #1 when he was placed in the cruiser, other than complaining that his pacemaker was going off.

It is clear on all of the evidence that throughout the Complainant’s involvement with police, paramedics, and later at the hospital, he was loud, rude, aggressive and combative. It is also clear that the statement of the Complainant is diametrically opposed to that of SO #1 and SO #2 as to by whom and how he was arrested. It is clear, however, that the written statement of CW #7 confirms the events as set out by SO #1 and SO #2, in that she specifically states that she observed SO #1 arrest the Complainant and walk him to the cruiser and place him inside. Neither SO #1 nor SO #2 allege that the Complainant resisted his arrest or handcuffing, and there is no basis in the evidence of the Complainant to find that any injury was caused to him by the process of being handcuffed; again this is confirmed by the statement of CW #7 wherein she states that the Complainant was freaking out at police “for no reason”. Presumably had police mistreated the Complainant, as he alleges, CW #7 would have considered that a reason for him to be “freaking out”.

The Complainant was heard by numerous civilian witnesses to complain that his pacemaker was going off in the back of the cruiser. SO #1 described the Complainant as thrashing about, moving wildly and slamming his shoulder against the rear passenger door while SO #2 described the Complainant’s actions as moving as if he was being electrocuted, which resulted in SO #2 immediately calling for an ambulance. Since there is no indication by the hospital or in his medical records that the ICD actually went off, it appears that the Complainant’s behaviour in the back of the cruiser was as a result of drama, meant to mislead both civilians and police into believing that he was having some type of cardiac event involving his pace maker. I find additional support in this belief on the basis that paramedics noted that once the Complainant became aware that he might have some injury to his left wrist, he appeared less concerned with the supposed ICD incident despite his earlier dramatics.

I cannot find any evidence to corroborate the Complainant’s specific allegation against SO #2 and the paramedics are silent in their reports about any abuse from SO #2 towards the Complainant in the removal of the handcuffs. I note as well that although paramedics detail that they observed trauma to the Complainant’s left forearm where they observed a handcuff mark, paramedics found the Complainant to have a normal range of motion in his extremities while medical staff at the hospital noted that despite his complaint about his arm being numb, he was observed to use his left arm to hold his cell phone.

On a review of all of the evidence, I find that there are numerous inconsistencies between the Complainant’s allegations and his complaints to police, paramedics and hospital staff and it is evident that the Complainant exaggerated, if not outright fabricated, his various medical maladies. I find on the evidence of CW #7, that the Complainant was indeed arrested, handcuffed and placed into the cruiser by SO #1 and that this interaction, as observed by the civilian witnesses, was uneventful and did not give rise to any actions that could have been responsible for the contusion or sprain to the Complainant’s left arm/wrist. Furthermore, I am very doubtful that SO #2, in the presence of the paramedics, used any violence towards the Complainant in the removal of his handcuffs which may have resulted in any injury to him. It is clear, on all of the evidence, that the Complainant’s ICD did not “shock” him at any time and, as such, his thrashing about in the back seat of the cruiser could only be due to his pretending that a shock was occurring, in order to make false allegations against police. I further am unable to find, on all of the evidence, that any actions by police, as witnessed by the independent civilian witnesses, could have caused any injury to the Complainant. It is clear on all of the evidence that neither SO #1 nor SO #2 was ever alone with the Complainant and therefore there would have been no opportunity to cause him injury as described, unless it was witnessed by others, none of whom claim they observed any such actions. I find, however, that it is more than likely that the Complainant injured his left wrist/forearm after he was handcuffed and placed in the rear of the cruiser, when he was thrashing about in the back seat, moving wildly and slamming his shoulder against the rear passenger door of the cruiser pretending that he was being electrocuted by his ICD.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the statement of several civilian witnesses that the Complainant was being loud, swearing, screaming and causing a disturbance in a public place (contrary to 175(1) of the Criminal Code) outside of the residence. Additionally, he was tying up the 911 dispatcher, as well as numerous police personnel, by continually contacting 911 when he had clearly been told on numerous occasions by numerous police officers that his matter was one that he would have to deal with in civil court and that he was to cease and desist calling 911 and tying up valuable police resources. On that basis, the officers also had reasonable grounds to arrest the Complainant for committing the offence of public mischief contrary to s. 140 of the Criminal Code. As such, the arrest and apprehension of the Complainant was legally justified in the circumstances.

Finally, I am unable to find that the actions of police officers who were involved in the arrest, handcuffing and removal of handcuffs from the Complainant acted in any way that would have caused the sprain or contusion to the Complainant’s wrist. If, however, this was the source of the Complainant’s injury, which is highly unlikely, I find that pursuant to section 25(1) of the Criminal Code, the officers involved used no more force than was reasonably necessary in the execution of their lawful duties in apprehending an aggressive, agitated man. I find that the degree of force used to both handcuff and later remove the handcuffs from the Complainant, as witnessed by a number of civilian witnesses, was no more force than was necessary to effect that lawful purpose. The jurisprudence is clear when using force in the execution of their duties, officers should not be judged to a standard of perfection (R. v. Nasogaluak [2010] 1 S.C.R. 206). As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and thus there are no grounds to believe they committed a criminal offence and no charges will issue.

Date: August 11, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit