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 of a 36-year-old male during his arrest for public intoxication outside his residence on May 23, 2016.

The investigation

Notification of the SIU

At 3:35 p.m. on June 23, 2016, the SIU was notified of the incident by the Guelph Police Service (GPS).

The GPS reported that the Office of the Independent Police Review Director (OIPRD) had forwarded to the GPS a complaint from a man who stated that, on May 23, 2016, at 1:17 a.m., two police officers came to his apartment to investigate a domestic related matter. The police officers pulled the man from his apartment and assaulted him, causing two broken ribs. The man was arrested for being intoxicated in the common area of his building and lodged in a cell. He was released at 6 a.m. and went to hospital where he was diagnosed with two broken ribs.

The team

Number of SIU Investigators assigned: 3

Complainant

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

Civilian witnesses

CW Interviewed

Police employee witnesses

PEW Interviewed

Witness officers

WO Interviewed

Subject officers

SO #1 Declined interview and to provide 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

Evidence

Video/audio/photographic evidence

The booking video obtained showed the Complainant paraded in front of the WO. The Complainant had no difficulty walking or answering questions from the WO. The Complainant confirmed he had been drinking. He complained of pre-existing elbow and knee injuries, but no other medical conditions were mentioned. The Complainant did not complain about police officers.

Communications recordings

A summary of a 911 call made by a woman on the day in question was obtained by the SIU. The caller said the Complainant was violent and stole a bike from her neighbour. He was intoxicated and belligerent; however, he did not hurt the caller. She did not let the Complainant in and he left. The dispatcher assured the caller the police officers would be sent to the Complainant’s address.

Materials obtained from Police Service

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

  • Custody Tracking Form;
  • Disclosure Log;
  • Dispatch Computer Aided Dispatch Report;
  • DVDs;
  • WO and PEW notes;
  • Officers' Use of Force Requalification Dates;
  • Policy - Arrest;
  • Procedure - Use of Force;
  • Prisoner Booking Sheet Facer Page; and
  • Prisoner Property Report.

Incident narrative

On May 23, 2016, a woman made a 911 call alleging that the Complainant, known to the woman, had stolen her house keys and had stolen a bike from her neighbour. The SOs, traveling in separate vehicles, were dispatched to the woman’s residence. As a result of speaking to the woman, the SOs located the Complainant at his residence in Guelph at shortly after 1:00 a.m.

When the SOs knocked on the door of the residence, the Complainant answered. It was clear that the Complainant had been consuming alcohol. Two other people were inside the apartment at the time but did not appear near the door. When SO #2 explained that they were there to investigate a domestic dispute complaint received from the 911 caller, the Complainant eventually removed a key from his key ring and gave it to the officers. Following some discussion, the Complainant shut the door.

SO #2 knocked on the door a second time to advise the Complainant to not have any further contact with the 911 caller. After a period of time, the Complainant opened the door and this information was conveyed. After some further discussion, the Complainant shut the door again. Shortly afterwards, the Complainant was in the hallway, and arrested for being intoxicated in a common area. A struggle ensued and the Complainant was eventually handcuffed and taken to the police station in SO #2’s cruiser.

Once at the station, the Complainant was booked but did not indicate that he had sustained any injuries caused by the officers during the course of his arrest. The Complainant was released later that morning, and attended the hospital where he was assessed as having sustained two undisplaced rib fractures involving the ninth and tenth left-sided rib posterior laterally. The Complainant filed a report with the OIPRD on May 26, 2016, alleging that his injuries were as a result of being assaulted by police.

Relevant legislation

Section 31(4), Liquor Licence Act – Unlawful possession or consumption

(4) No person shall be in an intoxicated condition,

  1. in a place to which the general public is invited or permitted access; or
  2. in any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

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.

Analysis and Director’s decision

On May 23, 2016, a call was received by the 911 dispatcher for the GPS from a woman alleging that the Complainant had been violent in her home and had stolen a bike from her neighbour, although she later explained that he was not physically violent but did describe him as drunk. She also alleged that he had taken her house keys. The SOs were dispatched and attended the Complainant’s residence. During the course of the Complainant’s interaction with police, he was arrested for being “intoxicated in a common area” contrary to s.31(4) of the Liquor Licence Act. The following day, the Complainant went to the hospital and was assessed as having sustained two undisplaced rib fractures involving the ninth and tenth left-sided rib posterior laterally. In a complaint to the OIPRD, the Complainant alleged that his injuries were as a result of being assaulted by police.

The 911 caller advised that the Complainant had been at a neighbour’s residence when she came home. She advised that the complainant came to her apartment and he was drunk, belligerent and “really in my face”. She advised the 911 dispatcher that she told him to get out and that he was being “really drunk and stupid”. The caller advised that he then grabbed the keys from her counter and left, whereupon she barricaded her door. She indicated that he then returned to her residence 15 minutes later and was knocking on her door and yelling at her, but she would not let him in, directing him to leave her keys under the door, which he did not do. The caller advised that the Complainant then left, taking her neighbour’s bicycle with him.

Medical records confirmed that the Complainant attended the hospital on May 23, 2016, complaining that he had been punched in the left posterior rib area. X-rays were ordered which confirmed that the Complainant had two undisplaced fractures involving the ninth and tenth left side rib laterally.

Although there were apparently two civilians inside the Complainant’s apartment at the time of his interaction with police, they were not interviewed as both indicated they had not observed the interaction. There was no CCTV video footage and no other witnesses to the event. SO #1 declined to participate in an interview with SIU investigators, as is his legal right, but SO #2 provided a statement. No other officers were present for the interaction.

SO #2, in his statement to investigators, advised that on May 23, 2016, he and SO #1 were dispatched to an address for a domestic dispute, where they spoke with a woman. The SOs were travelling in separate vehicles and after speaking with the woman, they attempted to locate the Complainant and the bicycle. SO #2 indicated that he was aware that no assault had been alleged. SO #1 radioed that he had located the bicycle at an address, where it was believed the Complainant resided. Both officers attended.

SO #2 advised that they knocked at the Complainant’s door and he answered. SO #2 was able to detect alcohol on the Complainant’s breath and his eyes were bloodshot. SO #2 explained to the Complainant that they were there to investigate a domestic dispute complaint. In response, the Complainant became very loud and used various profanities.

SO #2 advised the Complainant to keep his voice down as it was past 1 a.m. and cautioned the Complainant with respect to the theft of the bicycle and the keys, both of which the Complainant denied doing. The Complainant, after some further discussion, then removed a key from his key ring and gave it to the officers, who then asked him to provide his side of the story whereupon he slammed the door shut.

SO #2 advised that he still needed to instruct the Complainant not to have any further contact with the woman, so he knocked on the door a second time for that purpose. After a period of time, the Complainant opened the door and SO #2 advised him that the woman did not want him at her home and he was not to attend there. After some further yelling and name calling, the Complainant acknowledged that he understood but continued to deny having taken the bicycle. SO #2 cautioned the Complainant that he could still be charged with the theft of the bicycle and both officers then left and walked towards the elevator.

SO #2 indicated that he was behind SO #1, as they were walking, and he sensed that the Complainant was right behind him. The Complainant was then advised that he was under arrest for being intoxicated in a common area and SO #2 grabbed the Complainant’s left wrist whereupon the Complainant pulled away to go back into his apartment. SO #2 ordered the Complainant to put his hands behind his back, but the Complainant kept trying to go back to his apartment. SO #2 then placed his right hand at the base of the Complainant’s neck and took him to his knees and then onto his stomach. Once on the ground, the Complainant had both hands under his body and appeared to ignore commands from both officers to put his hands behind his back. SO #2 advised that he then delivered a strike with his right hand to the left side of the Complainant’s body, using his knuckles and the back of the hand. SO #2 indicated that the strike was not successful in gaining compliance from the Complainant and there was approximately another minute of struggling before they were finally able to handcuff the Complainant with his hands behind his back. SO #2 advised that no further strikes or kicks were delivered by either officer, and after a moment, the Complainant calmed down and apologized for “being an asshole” and wasting their time. The Complainant was then transported to the station in SO #2’s cruiser.

Once at the station, the booking sergeant (WO), observed the Complainant as being obnoxious and belligerent. During the booking process, the WO asked the Complainant if he had any injuries and the Complainant responded that his elbow was messed up, as well as his hip and knees, but that these injuries were pre-existing. In addition, in response to questions that were noted in the booking form, the Complainant indicated that he had consumed roughly eight beers.

Of note during his booking, the Complainant did not tell anyone about his rib injuries. This tells me one of two things: either he was so intoxicated that he could not feel any pain and his recollections thus cannot be relied on at all, or perhaps the injury did not happen at that time. I am inclined to believe that his intoxication affected his recollections and dulled his pain, thus his failure to complain.

It is difficult to determine exactly what happened in these circumstances, when the only evidence available is the diametrically opposed evidence of the Complainant and SO #2. With respect to the evidence of the Complainant, I have three areas of concern, as follows:

Firstly, in the woman’s call to the 911 operator, she described the Complainant as drunk, belligerent and “in her face”, which I find inconsistent with The Complainant’s description of his behaviour. The WO, similarly, described The Complainant as being obnoxious and belligerent when he was brought into the station.

Secondly, I have taken note of the fact that the Complainant provided differing descriptions of how he sustained his injuries at the hands of the SOs. These various explanations of the source of the Complainant’s injuries leave me with doubt as to whether or not the Complainant actually knows how he sustained his injuries, due, in all likelihood, to his level of intoxication.

Thirdly, it is also of concern that two other persons were inside the apartment during this interaction with police, wherein by all accounts, the confrontation with police was quite loud and forceful and yet they could provide absolutely nothing to investigators to advance the investigation. Surely, at the very least, they would have heard the officers knocking at the door multiple times and the Complainant closing the door on them. I cannot understand how, if this interaction was as described, that no one within the apartment would have heard anything.

I find the evidence of SO #2, however, equally troubling in that officers felt the need to place the Complainant under arrest and into handcuffs for “being intoxicated in a common area” when he was in his own residence and, at most, according to the officer, he only came out of his apartment after they had concluded their business with him and then he came out and SO #2 “turned around, observed the Complainant right there in front of me and didn’t know what he was going to do”, whereupon he advised the Complainant that he was under arrest, and that when he grabbed the Complainant by the arm, the Complainant repeatedly simply attempted to return to his apartment. At no time does SO #2 allege that the Complainant, while in the hallway of his own apartment building outside of his own residence, was loud, abusive, using profanities or in any way, causing a disturbance. If the sole purpose of arresting the Complainant was to ensure that the offence of being intoxicated in a public place did not continue, one would have assumed that this could have been accomplished much more easily by simply allowing the Complainant to return to his own residence. It is surprising to me that officers, rather than simply issuing the Complainant with a ticket pursuant to the Liquor Licence Act, felt a need to place the Complainant under arrest, handcuff him and transport him to the station. On the whole, this appears to be a complete over reaction to the situation, akin to swatting a fly with a sledgehammer. This was, at most, a minor technical breach of the Liquor Licence Act, in that the Complainant only briefly stepped out of his apartment into the common area and apparently only desired to return to his own residence and was not causing any disturbance to the public.

Section 25(1) of the Criminal Code restricts police officers, 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 evidence that the Complainant was intoxicated in a common public area on May 23, 2016. Given all the information that the police had regarding his conduct earlier that day, as well as his continued belligerent animosity towards the 911 caller and the fact that he followed the police into the hallway, the arrest and handcuffing of the Complainant was legally justified despite it being a hasty decision in my opinion.

The question then becomes: Was the use of force to arrest the Complainant excessive in the circumstances?

In short, I cannot come to this conclusion on reasonable grounds. On all of the evidence, I am unable to find that the Complainant’s account of the incident rises to the level required to provide me the reasonable grounds for the laying of criminal charges, especially in light of the fact that the Complainant was intoxicated, whereas SO #2 was not. There is no other evidence to raise the reliability of the Complainant’s evidence to a higher level, other than the injury itself, and I am left with some doubt as to how, when and who caused his injuries. All things being equal, with no independent witnesses and no other physical evidence, the version of events provided by SO #2 is as believable as is the version proffered by the Complainant, if not more so. In this case, however, all things are not equal due to the Complainant’s evidence being compromised by his state of sobriety and by the many inconsistencies in his various statements as to the source of his injuries.

In the absence of any real or independent evidence that support the allegations of the Complainant, I am only left with the Complainant’s own statements. In this case, there is no evidence to support the claims of the Complainant that he was assaulted by police on May 23, 2016, other than the injury itself, and because the numerous and serious inconsistencies with respect to how he was injured, leave him with little, if any, credibility or reliability upon which I can find reasonable grounds to believe that excessive force was used during his arrest. As a result, I cannot conclude that an offence of has been committed.

In fact, I find on the record before me that I am unable to determine with any degree of certainty exactly what happened during the Complainant’s interaction with police on May 23, 2016, due to the many conflicting reports and inconsistences, and, in the absence of some clear and cogent evidence, I am unable to find that there are any grounds for the laying of criminal charges.

In coming to this conclusion, I have taken into account SO #2’s admission that he struck the Complainant in the left side of his body with his knuckles and the back of his hand. For the purposes of my analysis, I worked on the assumption that SO #2 caused the Complainant’s injury when the Complainant had his hands under his body and was struck by SO #2 in order to get him to comply with his demand to give up his hands for handcuffing. Despite the strike it took another minute of struggling for the SOs to get the Complainant’s hands cuffed behind his back.

The jurisprudence makes clear, while using force the police conduct in question must be commensurate with the task at hand. However, police 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.) or to be judged against a standard of perfection (R. v. Nasogaluak [2010] 1 S.C.R. 206). SO #2 was entitled to use reasonable force to get the Complainant to comply with the demand to give up his hands for handcuffing during the course of a legal (however imprudent) arrest. One strike to the ribs in this context when the arrested party resists being handcuffed would not be unreasonable and would not constitute excessive force.

Date: August 11, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit