SIU Director’s Report - Case # 17-OCI-017

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 56-year-old man during his arrest on January 17, 2017.

The investigation

Notification of the SIU

The SIU was notified of the incident on January 18, 2017 at 3:15 a.m. by the London Police Service (LPS).

LPS reported that on Tuesday, January 17, 2017 at 7:36 p.m., LPS officers arrested the Complainant at his residence on the strength of a warrant with a Feeney endorsement^{footnote 1[1]}. The Complainant was taken to the hospital because it was thought he ingested drugs. At 10:30 p.m., while the Complainant was still at hospital, it was discovered that he had a fractured left arm.

The Complainant would be held for a bail hearing in the morning on the outstanding warrant related charges and on additional charges related to his arrest.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

Additionally, the notes from six other, non-designated officers were received and reviewed.

Subject Officers

SO #1 Interviewed, and notes received and reviewed

SO #2 Interviewed, and notes received and reviewed

Incident narrative

During the evening of January 17, 2017, a warrant was issued for the Complainant’s arrest as he had failed to meet with his parole officer as required. The warrant permitted officers to enter his residence to arrest him. WO #1, WO #2, WO #3, WO #4 and WO #5 attended and entered the residence. When WO #1 and WO #4 entered the Complainant’s room, he quickly ingested a large quantity of an unknown white powder. The Complainant refused to obey the officers’ commands and resisted their efforts to handcuff him. A struggle ensued. The Complainant was taken to the ground and punched twice in the face to prevent him from biting the officers. Once the Complainant was handcuffed, he was escorted outside and custody was transferred to SO #1 and SO #2.

As the Complainant’s handcuffs were not applied properly and were causing him pain, WO #1, SO #1 and SO #2 applied a new set of handcuffs and the original ones were removed. Because of concern regarding the Complainant’s ingestion of the white powder, he was transported by ambulance to the hospital. SO #2 travelled with the Complainant in the ambulance.

At the hospital, the Complainant complained that his arm was sore and an x-ray was ordered. It was determined that the Complainant had an acute ulnar shaft fracture of the left wrist. The Complainant alleged that his wrist was broken when the second set of handcuffs were applied.

Evidence

The Scene

The Complainant was arrested in his room at a residence in London, Ontario. The scene was not held for SIU investigators.

Warrants

On January 17, 2017, a Warrant of Apprehension, Suspension and Recommitment to Custody of Statutory Release was issued for the Complainant. The Complainant was released from prison under the Corrections and Conditional Release Act. The Complainant’s Statutory Release was from November 17, 2016 to March 16, 2017 unless revoked or terminated by the Corrections and Conditional Release Act. On January 17, 2017, the Complainant’s statutory release was suspended.

On January 17, 2017, at 7:30 p.m., a Telewarrant to Enter a Dwelling House was issued in Newmarket for the arrest of the Complainant inside his residence. The warrant authorized peace officers to enter the residence in London, Ontario for the purpose of arresting or apprehending the Complainant between 8:30 p.m. and 11:59 p.m., on January 17, 2017. The warrant was executed at 7:36 p.m.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and received the LPS booking video of the Complainant and a photo taken of the Complainant by the Ontario Provincial Police (OPP) upon his arrest.

Booking Video

On January 18, 2017, the Complainant was escorted to the LPS booking hall by two non-designated police officers. The Complainant had a cast on his left wrist. He introduced himself to the booking sergeant and the sergeant asked the Complainant several questions. The sergeant advised the Complainant that he was arrested because his parole was suspended and drugs were found in his home. The sergeant asked the Complainant if he had any medical concerns. The Complainant said his wrist was broken and the cast was causing him pain. A non-designated officer escorted the Complainant out of the booking hall.

Communications Recordings

• On January 17, 2017, at 2:39 p.m., a non-designated OPP Repeat Offender Parole Enforcement (ROPE) officer (the OPP ROPE Officer) arrived at the residence
• At 3:10 p.m., the OPP ROPE Officer announced to LPS cars that the Complainant had a warrant
• At 4:27 p.m., the OPP ROPE Officer arrived at the residence then at 4:32 p.m., WO #3 arrived at the address
• At 5:14 p.m., WO #3 requested uniformed police officers to attend the residence to assist. The Complainant was in a room at the address
• At 5:17 p.m., two uniformed police officers were dispatched to the residence
• At 5:23 p.m., the OPP ROPE Officer advised he was going to headquarters to write a Feeney warrant
• At 6:10 p.m., SO #1 and SO #2 were dispatched to the residence to relieve two police officers
• At 6:56 p.m., WO #3 advised SO #1 there was movement in the Complainant’s room and to watch the Complainant’s window
• At 7:45 p.m., WO #3 asked for a uniformed police officer to enter the residence to process a drug charge. A non-designated officer responded
• At 7:47 p.m., communications advised that an ambulance was on the way. WO #3 advised that the Complainant appeared to be fine but EMS [Emergency Medical Services] should attend
• At 7:57 p.m., SO #1 advised he was following the ambulance to the hospital and SO #2 was in the ambulance with the Complainant. He added that the ambulance was on an emergency run to the hospital because the paramedics did not know what type of drugs the Complainant had consumed, and
• At 8:34 p.m., communications asked SO #1 for an update on the Complainant’s condition. SO #1 said he would call in with the information because of poor radio reception in the hospital

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the LPS, OPP and the Windsor Police Service (WPS):

• LPS booking video
• Communications recordings
• Call Information (two incidents)
• Detailed Call Summary
• Duty Rosters
• General Occurrence (Redacted)
• Global Positioning System (GPS) Data – Replay File (3)
• LPS Detention Record
• Mobile Data Terminal (MDT) Logs for SO #1, SO #2, WO #2, WO #3, and seven other, non-designated officers
• Narrative – WO #2
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5 and six other, non-designated officers
• Occurrence Summary
• LPS Procedure - Arrest
• Prosecution Summary
• Parole Suspension Warrant – the Complainant
• Signed Telewarrant for Arrest
• Subject Information and Prisoner Log
• Vehicle Information
• Prepared statements of SO #1, SO #2, WO #3 and one other, non-designated officer, and
• WPS Confidential Duty Report – WO #1

Relevant legislation

Section 135(1), Corrections and Conditional Release Act - Suspension of parole or statutory release

135 (1) A member of the Board or a person, designated by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of parole or statutory release or when the member or person is satisfied that it is necessary and reasonable to suspend the parole or statutory release in order to prevent a breach of any condition thereof or to protect society, may, by warrant,

1. suspend the parole or statutory release
2. authorize the apprehension of the offender, and
3. authorize the recommitment of the offender to custody until the suspension is cancelled, the parole or statutory release is terminated or revoked or the sentence of the offender has expired according to law

Sections 529-529.5, Criminal Code – Powers to Enter Dwelling-houses to Carry out Arrests

529 (1) A warrant to arrest or apprehend a person issued by a judge or justice under this or any other Act of Parliament may authorize a peace officer, subject to subsection (2), to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending the person if the judge or justice is satisfied by information on oath in writing that there are reasonable grounds to believe that the person is or will be present in the dwelling-house.

(2) An authorization to enter a dwelling-house granted under subsection (1) is subject to the condition that the peace officer may not enter the dwelling-house unless the peace officer has, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the dwelling-house…

529.1 A judge or justice may issue a warrant in Form 7.1 authorizing a peace officer to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending a person identified or identifiable by the warrant if the judge or justice is satisfied by information on oath that there are reasonable grounds to believe that the person is or will be present in the dwelling-house and that

1. a warrant referred to in this or any other Act of Parliament to arrest or apprehend the person is in force anywhere in Canada
2. grounds exist to arrest the person without warrant under paragraph 495(1)(a) or (b) or section 672.91; or
3. grounds exist to arrest or apprehend without warrant the person under an Act of Parliament, other than this Act

529.2 Subject to section 529.4, the judge or justice shall include in a warrant referred to in section 529 or 529.1 any terms and conditions that the judge or justice considers advisable to ensure that the entry into the dwelling-house is reasonable in the circumstances.

529.5 If a peace officer believes that it would be impracticable in the circumstances to appear personally before a judge or justice to make an application for a warrant under section 529.1 or an authorization under section 529 or 529.4, the warrant or authorization may be issued on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with any modifications that the circumstances require, to the warrant or authorization.

Sections 25(1) and 25(2), 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.

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

Analysis and director’s decision

The ROPE Unit is a partnership between provincial and municipal police services in Ontario staffed with police officers from various services. The ROPE Unit’s mandate is to locate and arrest offenders that escape custody or violate the conditions of their release, as well as apprehend violent criminals and other serious offenders that are wanted by various law enforcement agencies. In the afternoon on January 17, 2017, police officers from the ROPE Unit went to a residence in London, Ontario to execute a parole suspension warrant for the Complainant.^{footnote 2[2]} The Complainant resided in a room in a house at this address that is owned by CW #2. A warrant was issued as the Complainant failed to report to his parole officer. The attending police officers were from LPS, OPP and WPS.

Around 4:30 p.m., members of the ROPE Unit, including WO #1, WO #2, WO #3 and WO #4, arrived at the house. The home owners confirmed the Complainant was home, and allowed the officers to enter and knock on the Complainant’s bedroom door. The Complainant would not come out of his room or respond to the ROPE Unit’s attempts to communicate with him. As a result, the police prepared a telewarrant pursuant to section 529.5 of the Criminal Code to gain authorization to enter the Complainant’s bedroom to arrest him. In the meantime, an LPS negotiator arrived and made attempts to communicate with the Complainant through the closed door but there was no response. At 6:50 p.m., WO #5 from the ROPE Unit arrived at the scene and was updated by the team.

At 7:30 p.m., the OPP Rope Officer called and informed the ROPE Unit on scene that the telewarrant had been issued.^{footnote 3[3]} At 7:36 p.m., WO #1 used a butter knife to unlock the Complainant’s door. WO #1 and WO #4 entered the room, while WO #2 stood behind them and WO #5 stood in the back. WO #4 told the Complainant that they were police and directed him to get on the ground and to show his hands. The Complainant looked up at WO #4 as he leaned over a dresser and proceeded to sniff a line of white powder. WO #4 suspected this substance was crystal methamphetamine and pulled the Complainant away from the dresser in an attempt to prevent further ingestion. The Complainant pulled away from WO #4 despite WO #4 providing repeated commands to comply. WO #4 tried to pull the Complainant’s hands behind his back but the Complainant resisted, so WO #4 quickly took him down to the ground. According to WO #4, the Complainant landed on his left knee and right shoulder. WO #1 attempted to hold the Complainant’s left arm behind his back to be handcuffed but the Complainant pulled free. WO #1 had his conducted energy weapon un-holstered but did not use it. Both officers continued their attempts to gain control of the Complainant’s hands as he struggled with them and told the officers to leave him alone.

WO #4 grabbed hold of the Complainant’s right arm and held him down on the ground. WO #1 attempted to control his left arm. The Complainant would not follow the officers’ commands to put his hands behind his back. WO #4 saw the Complainant attempt to bite his right arm, so he retracted his arm about six inches [0.15 metres] and punched the Complainant in the side of his face to prevent and deter him from biting. The Complainant continued to struggle and pulled his left arm away from WO #1. At some point during the struggle, WO #4 heard a cracking sound but was uncertain of the origin. WO #4 saw the Complainant make another attempt to bite his arm, so he again retracted his arm about six inches [0.15 metres] and punched him in the side of the face again. After about two minutes of struggling, the Complainant was handcuffed with his hands behind his back.

WO #1 and WO #2 escorted the Complainant outside the house and transferred custody to uniformed LPS officers, SO #1 and SO #2. SO #1 and SO #2 stood on either side of the Complainant and held his upper arms. SO #1 heard the Complainant complain that he had a metal plate in his left arm and the handcuffs were hurting. WO #1 noticed the Complainant’s handcuffs were not applied properly, as the Complainant’s left palm was facing out and his right palm was facing in so he took SO #1’s handcuffs and put them above the handcuffs that were already on his wrist. WO #1 removed his handcuffs, placed both the Complainant’s palms out, then he double locked SO #1’s handcuffs. The Complainant was arrested for his parole violation and for possession of a controlled substance for the purpose of trafficking based on the large quantity of drugs subsequently found in his bedroom.

As the ROPE officers were concerned that the Complainant had ingested drugs, he was assessed by paramedics and transported to the hospital. SO #2 accompanied the Complainant in the ambulance, while SO #1 followed in a vehicle. The Complainant complained to a doctor at the hospital that his left wrist was sore and an x-ray revealed he had an acute left ulnar shaft fracture.

The Complainant’s recollection differed in part from that of the involved officers. He alleges that once he was outside in front of the house, he was handcuffed by two uniformed police officers [SO #1 and SO #2]. While being handcuffed, one of these officers intentionally bent his left wrist and thumb up behind his back as he tightly affixed the handcuffs on his wrists and it was then that the Complainant felt a bone in his left wrist break. The police officer who injured his left wrist was with the Complainant at the hospital. The Complainant knew the name of the police officer who caused his injury from viewing his name tag at the time of his arrest, but would not provide his name to the SIU.

During the investigation, the SIU interviewed the Complainant, residents from the house including the owner, the attending emergency physician, five witness officers and SO #1 and SO #2 who consented to providing both an interview and a copy of their notes. Additionally, the police radio communications, warrants and custody video were reviewed by investigators. Medical records were obtained and reviewed to confirm the Complainant’s injury.

I will first address the issue of whether the involved officers had the authority to arrest the Complainant. The ROPE Unit was acting on a valid parole suspension warrant when they set out to arrest the Complainant on January 17, 2017. When they arrived, the officers met with the homeowner who provided them access to the house and directed them to the bedroom where the Complainant resided. The involved officers made repeated attempts to communicate with the Complainant through the closed door over the course of almost three hours, including having a trained negotiator attend, but all efforts were unsuccessful.

At 7:30 p.m., the ROPE Unit received a call from the OPP ROPE Officer who advised that the warrant to enter the bedroom and arrest the Complainant had been issued. The warrant was executed at 7:36 p.m. and was therefore not in compliance with the terms on the face of the warrant that authorized entrance between 8:30 p.m. and 11:59 p.m. Although the warrant did not authorize immediate entry, I am satisfied that the involved officers were unaware of this and believed at that time that they had the grounds to enter the Complainant’s bedroom and arrest him based on the authority of the warrant. It is my view that the involved officers are sheltered from criminal liability for the consequences of their actions that stemmed from this violation as they were acting in good faith. Section 25(2) of the Criminal Code states:

25 (2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

From this record, it is apparent that the involved officers were acting in good faith when they entered the Complainant’s bedroom to arrest him at 7:36 p.m., believing on the direction provided by the OPP ROPE Officer that the warrant was valid. There was no evidence found to suggest the involved officers had any knowledge that the warrant was not valid until 8:30 p.m. and, as it had been signed only minutes prior to their being notified, they were not in possession of a copy to review. As a result, I find that the officers were justified in entering and arresting the Complainant in his bedroom as they were acting on good faith on the authority of a valid warrant.

The focus now turns to whether the force used to arrest the Complainant was excessive 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.

I find that it was reasonable for WO #4 to ground the Complainant at the outset given his lack of cooperation, failure to follow commands and the nature of the confined surroundings. While the Complainant continued to resist efforts to handcuff him, WO #4 admitted to punching the Complainant twice in the side of his face to ward off what he perceived to be imminent bites. WO #4 described the amount of force he used to deliver two punches to the Complainant’s face to be enough to stun but not injure the Complainant. WO #4’s hand was not injured as a result of the punches and he believed the amount of force he used was not enough to injure the Complainant’s face. His belief was consistent with the fact that there was no indication in the medical records or from any witnesses that the Complainant had injuries to his face, other than a bloody nose.

The only subsequent use of force applied was the switching of handcuffs outside the residence. Both the Complainant and one civilian witness asserted that while outside the house, an officer moved the Complainant’s hands up behind his back in such a way as to cause the Complainant pain. The Complainant claims this is when the fracture to his left wrist occurred. Yet his description of his wrist and thumb being bent was consistent with routine police handcuffing technique and inconsistent with CW #2’s description of the Complainant’s arms being held up behind his back. There is significant uncertainty as to the timing and mechanism of the Complainant’s wrist injury. WO #4 recalled hearing a cracking sound while struggling with the Complainant but was uncertain of its origin, but the Complainant was adamant that his wrist was broken outside the house by one of the two officers who had not previously been inside the house. As a result, I cannot therefore conclude from this record that the sound WO #4 heard inside the bedroom was the Complainant’s wrist breaking. The Complainant also had a prior injury to his left arm and it is unknown what role this played in increasing the vulnerability of this area to future injury.

The current jurisprudence set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, directs that police actions should not be judged against a standard of perfection nor should they be expected to measure their force with exactitude. Additionally, the Ontario Court of Appeal in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), held that officers are not expected to measure the degree of their responsive force to a nicety. As a result, I am not satisfied that the actions of the officers went beyond the extent of their prescribed use of force authority. Based on the totality of the evidence, I find that the amount of force used by the officers was reasonable and measured given the circumstances.

In conclusion, while I believe that the Complainant likely suffered a fracture to his left wrist during his encounter with the police officers on January 17, 2017, I am satisfied that the Complainant was lawfully under arrest and that the force used by the involved officers during the encounter fell within the limits prescribed by the criminal law. I therefore have no reasonable grounds to believe a criminal offence was committed. Accordingly, no charges will issue and this case will be closed.

Date: January 5, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit