SIU Director’s Report - Case # 17-OCI-036

Mandate of the SIU

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

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

Information restrictions

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

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

• Confidential investigative techniques and procedures used by law enforcement agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• location information
• witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence and
• other identifiers which are likely to reveal personal information about individuals involved in the investigation

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

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

Other proceedings, processes, and investigations

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

Mandate engaged

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

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

This report relates to the SIU’s investigation into the serious injury sustained by a 49-year-old man while he was being investigated on February 20, 2017.

The investigation

Notification of the SIU

On February 20, 2017, at 11:00 p.m., the Peel Regional Police (PRP) notified the SIU of the Complainant’s custody injury in Brampton.

PRP reported that the Subject Officer (SO) responded to a 911 call in regards to two men fighting on a residential street in Brampton. The SO arrived and saw a man [later identified as the Complainant] fitting the description provided and called out to him but he did not respond.

When the SO got out his cruiser, the Complainant took out a knife. A struggle ensued and the SO grounded the Complainant and took him into custody. The Complainant was taken to the hospital where he was diagnosed with a broken orbital bone and received three stitches to close a cut above his eye.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scene associated with the incident by way of notes and photography.

Complainant

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

Civilian witnesses

CW Interviewed

Witness officers

WO #1 Interviewed

WO #2 Not interviewed, but notes received and reviewed

Subject officers

SO Interviewed, and notes received and reviewed

Incident narrative

During the early evening hours of February 20, 2017, the Complainant was engaged in a physical dispute with another man while he was walking on the street near his home. He was intoxicated at the time. The dispute was observed by the CW, who called 911.

The SO responded to the call and found the Complainant on the street. No one else was present. The Complainant denied any assault occurring and started to walk past the SO. Concerned that the Complainant may have a weapon due to the way he was walking, the SO asked the Complainant to stop. The Complainant ignored the SO, and the SO grabbed the Complainant by the arm to lead him to the cruiser. As they approached the cruiser, the Complainant reached into his jacket and the SO saw a silver reflection, similar to the blade of a knife, from the Complainant’s hand. Concerned for his safety, the SO used a “hip toss” technique^{footnote 1[1]} to ground the Complainant. The Complainant let go of a knife that he had been holding and was handcuffed. As the Complainant was bleeding from his forehead, an ambulance was called to the scene.

The Complainant was taken to the hospital and it was determined that he sustained a fracture of his left orbital bone and a comminuted fracture of the anterior wall of the left antrum.

Evidence

The scene

The scene was located on the roadway in front of a home on a residential street in Brampton.

Physical evidence

The SO seized a large knife from the Complainant, which was provided to the SIU. Below is a photo of the knife seized at the scene:

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and located closed circuit television (CCTV) video from a residence on the street.

CCTV recordings from nearby residence

The CCTV recordings from the nearby residence depicted the following:

• At 7:26:58 p.m.^{footnote 2[2]}, the Complainant walked on the roadway to his residence located on the street [approximately 3 homes away from the residence with the CCTV]
• At 7:27:48 p.m., the Complainant exited his residence and walked on the roadway back towards the direction he had initially come from
• At 7:31:12 p.m., the SO arrived on the street in his police vehicle. The Complainant walked on the roadway towards his residence. As the SO exited his police vehicle, the Complainant walked beside the SO. He stopped for a second beside the SO and then began to walk past the SO towards his residence. The SO followed the Complainant and grabbed his left arm and escorted him towards the trunk of his police vehicle
• At 7:31:40 p.m., the SO held the Complainant’s left arm with his left hand and stood behind the Complainant. The Complainant’s right elbow moved and the SO immediately pulled the Complainant’s left arm towards the ground and forced the Complainant to fall towards the ground
• At 7:31:49 p.m., the SO placed his right knee on top of the Complainant’s back and hand cuffed the Complainant’s hands behind his back. The SO then searched the Complainant
• At 7:33:56 p.m., WO #1 and WO #2 arrived at the scene. WO #1 assisted the SO by holding on to the Complainant
• At 7:34:53 p.m., the SO picked up a knife from the ground and placed it on top of his trunk
• At 7:35:41 p.m., the Complainant was escorted by the SO and WO #1 to the rear seat of the SO’s police vehicle
• At 7:41:36 p.m., an ambulance arrived, and
• At 7:53:40 p.m., the Complainant was placed in the ambulance

Communications recordings

911 audio recordings

The SIU received and reviewed the 911 call recordings relevant to this investigation. The recordings depicted the following:

6:35:37 p.m. to 6:39:44 p.m

The CW called 911 and told the operator that an unknown man struck another man [later identified as the Complainant] several times. The Complainant then went to a nearby house and later came out and went back to the area where he was struck.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP

• Communications recordings
• Audio Copy Report - 911 Calls
• Audio Copy Report - Radio Transmissions
• Event Chronology
• Notes of WO #1 and WO #2
• Occurrence Details
• Explanation of “Hip Toss” technique
• Procedure - Use of Force, and
• PRP Witness Statement – the CW

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 88(1), Criminal Code - Possession of weapon for dangerous purpose

88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

Section 265(1), Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Analysis and Director’s decision

On February 20^th, 2017 at 6:35:37 p.m., a 911 call was received by the Peel Regional Police (PRP) from the CW who advised that she had observed two men fighting on the street and that one male had just pushed the other man down. She advised that the second man had entered a house on the street and was now returning to the area where the initial interaction had taken place. As a result, the SO was dispatched to the scene, arriving at approximately 6:40 p.m., and parked his cruiser in front of the home but was unable to locate anyone in the area. A few seconds later, the SO saw the Complainant walk towards him and the SO asked him if he had been involved in a fight.

The Complainant had no recollection as to how his face came to be injured but recalled telling the SO that he had not been involved in a fight. The Complainant denied having any weapons in his possession at the time of his interaction with police.

The SO, in his statement, confirmed the evidence of the Complainant in that when he asked the Complainant if he had been in a fight, the Complainant indicated he had not and then continued to walk away from him. Based on his training, the SO believed that the way in which the Complainant was walking was similar to someone who was trying to hide a weapon, and he asked him to stop, but the Complainant continued to walk away. The SO further confirmed the evidence of the Complainant that he then walked towards the Complainant and escorted him to the rear of his cruiser; the SO advised that he recalled a strong odour of alcohol on the Complainant’s breath. Where the evidence of the Complainant and the SO diverges is when the SO indicated that he then advised the Complainant that he was detaining him for investigative purposes and took hold of the Complainant’s left arm, while standing behind him, at which point he observed the Complainant to suddenly move his right elbow, as if trying to retrieve something from inside his jacket. The SO advised that he then observed a silver reflection and believed that the Complainant may be in possession of a knife and he feared for his own safety. The SO apparently considered all of his options to disarm the Complainant, and concluded that taking the Complainant to the ground using a “hip toss” technique that he had been trained to use while at the Ontario Police College would be the best option, and he employed this method and took the Complainant to the ground, whereupon the Complainant let go of a knife that he had been holding. The SO was then on top of the Complainant and held on to him with his left arm while he picked up the knife with his right arm and tossed it towards his police vehicle. The SO advised that the Complainant lost consciousness when he was on the ground, and he later observed him to have blood on his left eyebrow. When WO #1 arrived at the scene, she recalled the SO informing her that the Complainant had pulled out a knife and that the SO had taken him to the ground and, as a result, he had sustained an injury to his left eye.

Fortunately, the entire interaction between the SO and the Complainant was captured on CCTV footage from a nearby residence. The footage revealed the Complainant walking towards his residence and then exit again shortly thereafter and walk back in the direction of which he had just come. The SO is seen to arrive in the area at 7:31:12 p.m. and the footage reveals the SO exit his vehicle, the Complainant walk beside the SO, the Complainant briefly stopped beside the SO and then the Complainant begin to walk back towards his residence. The SO is seen to follow the Complainant and grab his left arm and escort him to the trunk of his cruiser. At 7:31:40 p.m., the SO is seen behind the Complainant holding his left arm, when the Complainant’s right elbow moves, and the SO immediately pulls the Complainant down and he falls to the ground. The SO is then seen to place his right knee on top of the Complainant’s back and the Complainant is handcuffed behind his back. At 7:34:56 p.m., the SO is seen to pick up a knife from the ground and place it on top of his cruiser’s trunk.

WO #1, who transported the Complainant to hospital, advised that the Complainant admitted to her that after the altercation on the street with the driver of the car^{footnote 3[3]}, wherein the Complainant had been knocked to the ground, the Complainant returned to his home and got a knife and then went back out to look for his assailant when he was apprehended by the SO. The Complainant indicated that he could not recall how he sustained his injuries but believed it may have been when he was pushed to the ground by his civilian assailant.

Once at hospital, the Complainant was assessed as having sustained a fracture of the left orbital bone (the eye socket). His toxicology screen revealed his blood alcohol level as 51.1 mmol/l or the equivalent of 235 mgs of alcohol per 100 mls of blood, almost three times the legal limit at which one can operate a motor vehicle, which is not consistent with the amount of alcohol the Complainant had claimed he had consumed that evening.

On the basis of this evidence, and as clearly confirmed by the CCTV footage, I am unable to rely on the evidence of the Complainant except where it is confirmed by other evidence. The Complainant’s assertion regarding the amount of alcohol he had consumed over the course of the evening is inconsistent with the toxicological screening; his denial of possessing a knife at the time of his interaction with the SO is clearly contradicted both by the CCTV footage as well as by his own admission to WO #1 that he had armed himself with a knife and was returning to the location of his previous altercation; and his lack of recall of the events surrounding his injury appears far more consistent either with his high level of blood alcohol or, more probably, with selective memory on his part. On all of the available reliable evidence, I have no difficulty finding that the Complainant was armed with a knife when he came into contact with the SO, that he had armed himself with the knife for the purpose of returning and continuing his previous altercation, and that he was reaching for the knife when the SO attempted to detain him, as the knife then fell from his hand when he was grounded, and which knife the SO is later seen on the CCTV footage to pick up.

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 the CW that there had been what she described as an assault with one male punching another and knocking him to the ground; on this basis, she made a 911 call and, based on the information contained in that call, the SO had reasonable grounds to believe that the offence of Assault had been committed and he was duty bound to investigate. As the CW had left the area prior to the SO’s arrival, the SO was unable to determine who was the assailant and who was the recipient of the punch, and as such, he was legally entitled to detain the Complainant for investigative purposes. I specifically reject the Complainant’s allegation that the SO immediately handcuffed the Complainant, instead preferring the evidence of the SO, as confirmed by the CCTV footage, that the SO did not arrest and handcuff the Complainant until after he removed the knife from his clothing, at which point he would have been arrestable for the offence of Weapons Dangerous contrary to section 88 of the Criminal Code. As such, both the initial detention of the Complainant, in order to investigate the assault allegation revealed in the 911 call, and the subsequent apprehension and arrest of the Complainant, were legally justified in the circumstances.

With respect to the amount of force used by the SO in his attempt to disarm and subdue the Complainant, I find that his behavior was justified in the circumstances and that he used no more force than necessary to ensure his own safety and to disarm the Complainant, who was armed with a knife and appeared to be reaching for it at the time that the SO took him to the ground. In light of the fact that the SO was in possession of information that an assault had already occurred, but was unaware if the Complainant was the assailant or the victim, it was both subjectively and objectively reasonable for the SO to fear that the Complainant was a danger to the SO and that both his life and his safety might be at risk if the Complainant was not immediately disarmed. On this record, it is clear that the force used by the SO was no more than what was required to disarm the Complainant and fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention and ensure the safety of the SO.

While I find it very likely that the Complainant sustained an orbital bone fracture when he was reaching for a knife concealed on his person and had to be forcefully taken to the ground, where he likely struck his face on the pavement resulting in the injury above his left eye, as observed by the SO, and the consequent fracture, I cannot find that to have been an excessive use of force. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, as follows:

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

On this record, it is clear that the SO found himself in a situation which could reasonably be viewed as being imminently dangerous as he observed the Complainant reaching for a weapon while he was in close proximity to the SO, particularly as he was alone without back up and he did not have the opportunity to avail himself of any other options by which he could quickly and safely disarm the Complainant. I find that his course of action in taking the Complainant to the ground, which had the immediate effect of causing the Complainant to lose his grip on the knife, fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention and to remove the risk that he continued to pose as long as he had the knife in his possession. While it is unfortunate that the Complainant fell onto his face, which caused the fracture of his orbital bone as well as a momentary loss of consciousness, the SO did not have the luxury of measuring his use of force to a nicety while he was in immediate peril as a result of dealing with an armed man.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention and the manner in which it was carried out were lawful notwithstanding the injury which he suffered. 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.

Date: January 5, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit