SIU Director’s Report - Case # 17-TCI-323

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 37-year-old man during his arrest on November 7, 2017.

The investigation

Notification of the SIU

At approximately 3:14 a.m. on November 8, 2017, the Toronto Police Service (TPS) notified the SIU of the custody injury sustained by the Complainant.

The TPS reported that officers responded to a possible Mental Health Act (MHA) situation at a residence. Upon TPS arrival, the Complainant slammed the front door on the police. The door was then opened by the Complainant’s wife, who allowed the police officers into the house.

The Complainant then struck out by kicking one of the police officers and a struggle ensued during which the police officers were struck and bitten by the Complainant. The police officers gained control and apprehended the Complainant under the MHA. He was taken to the hospital where he was sedated and admitted under the MHA. The Complainant sustained a displaced right nasal bone fracture.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 0

Complainant:

37-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, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

WO #5 Interviewed, notes received and reviewed

WO #6 Notes received and reviewed, interview deemed not necessary

WO #7 Notes received and reviewed, interview deemed not necessary

WO #8 Notes received and reviewed, interview deemed not necessary

WO #9 Interviewed, notes received and reviewed

WO #10 Interviewed, notes received and reviewed

WO #11 Interviewed, notes received and reviewed

WO #12 Notes received and reviewed, interview deemed not necessary

WO #13 Notes received and reviewed, interview deemed not necessary

WO #14 Interviewed, notes received and reviewed

WO #15 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, notes received and reviewed

SO #2 Interviewed, notes received and reviewed

Incident narrative

At approximately 9:01 p.m. on November 7, 2017, CW #1 called the TPS for police assistance with the Complainant. She said the Complainant was acting strangely and she hoped someone could talk him into going to the hospital. CW #1 did not relay a sense of urgency to the 911 call taker. She said there were no weapons and she did not indicate that the Complainant was violent. A call for service was created for an Emotionally Disturbed Person (EDP) and dispatched as a priority 2 to SO #1 and SO #2, who were primary response officers in full uniform. While en route to the call, SO #1 and SO #2 looked into any prior occurrences involving the Complainant and found he had been apprehended under the MHA by other police officers about one year previously, without any violence.

At 9:30 p.m., SO #1 and SO #2 arrived at the house and knocked on the front door. CW #1 opened the door but the Complainant slammed it shut again after a few words were spoken. CW #1 then re-opened the door and allowed SO #1 and SO #2 inside.

Through her face and body language, CW #1 relayed to SO #1 and SO #2 that she needed police assistance, so they stepped inside. The Complainant immediately moved towards SO #1 and SO #2 and, without warning, drop kicked SO #2 in the chest with both feet. SO #2 was knocked backwards into SO #1. The Complainant then rolled to his feet and took a fighting stance, with his fists clenched.

SO #1 and SO #2 attempted to arrest the Complainant and he violently resisted. They struck the Complainant several times using their asp batons. The Complainant sustained a serious facial injury. CW #1 was pulled into the fray and the Complainant forcefully bit her on the arm. They all then landed on a chair. There was blood everywhere.

At 9:33 p.m., about three minutes after having arrived in front of the house, SO #2 made a frantic request for backup on his police radio. The Complainant was able to break free and stood up with a fire place poker raised in the air. SO #2 grabbed the poker and the struggle continued.

At 9:35 p.m., additional police officers began to arrive. During the ensuing prolonged struggle, several police officers were kicked, bitten, and otherwise injured; furniture was displaced and home décor accessories were broken. The police officers on scene repeatedly called for the attendance of a sergeant with a Conducted Energy Weapon (CEW), as well as ambulances.

Eventually, enough police officers arrived that the Complainant was brought under control and held down. He was restrained with two sets of leg restraints known as Ripp Hobble devices, and handcuffed to the back. Despite the restraints, the Complainant continued to struggle, he chewed on a house plant, he banged his head repeatedly off the floor, and he hissed, growled, and spat at the police officers.

Between 10:07 and 10:32 p.m., as the Complainant was being held down by the police officers, paramedics administered multiple doses of sedative in sufficient amounts to ensure the Complainant could be put on a stretcher and safely transported to the hospital. At the hospital, the Complainant’s physical injuries were assessed and he was admitted for a psychiatric evaluation.

Nature of Injuries / Treatment

The Complainant was assessed and diagnosed with having sustained several lacerations to his face as well as a displaced right nasal bone fracture.

Evidence

The Scene

The Complainant lived in a fully detached house with CW #1 in the City of Toronto. The interaction occurred entirely within the residence, on the main floor, just inside the front door.

Immediately upon entering through the front door was the front living area in which the interaction with the Complainant was confined. The room was about 4 metres deep by 5 metres wide with hardwood floors. At the far left end there was a brick wood burning fireplace which was painted white. There was a screen across the fireplace and a set of fireplace tools on a stand next to it.

In the centre of the front living area there was a round dining table with assorted chairs. In the opposite corner to the door, just to the right of the fireplace, there was an arm chair. It was on this chair that part of the struggle with the Complainant occurred.

Past the front living area, and in the centre of the main floor, there was a staircase to the second floor. Behind the staircase was the dining room. The kitchen was at the back of the house.

Video/Audio/Photographic Evidence

The TPS provided scene photographs of the location where the interaction between the police officers and the Complainant took place inside the Complainant’s residence.

Communications Recordings

TPS Communications, Integrated Computer Aided Dispatch (ICAD), and TPS Summary of Conversation

At 9:01 p.m., CW #1 called the police dispatcher and asked if she had reached “Mobile Crisis.” The call taker responded it was where they dispatched the police officers from, and asked CW #1 what she could help her with. CW #1 said the Complainant was having a psychotic breakdown. He was saying “crazy things” and talking really weird, his physical gestures were strange, and he was almost incoherent.

The call taker asked if the Complainant needed an ambulance and if the Complainant had threatened to kill himself. CW #1 responded “no” to both questions.

CW #1 advised the same thing happened last year around the same time and the Complainant was apprehended and went to CAMH. Last year a “whole group of police” came because the Complainant had threatened to hurt himself.

The call taker explained there were two ways to get the Complainant to go to the hospital. The first way was for the police to arrest him. The second way was for CW #1 to get a form. CW #1 indicated something was wrong with the Complainant and he should go see someone. She said the Complainant was really defensive. She believed if the police came the Complainant will see it is “more real.”

CW #1 indicated that the Complainant had not been diagnosed with any mental illness. Last year the medical staff attributed his behaviour to cocaine or marijuana use. CW #1 was not aware of any drug use by the Complainant since that time and indicated that the Complainant had recently been doing really well. CW #1 said the Complainant’s strange behaviour started the day before and had increased in intensity. He had been moving things around the house, and talking and laughing to himself. He had ripped up pictures, paced, could not focus, could not have a conversation, and fixated on things like Princess Diana and Tutankhamen.

CW #1 said the Complainant was not being physically violent, did not have any weapons, and there was no history of mental health other than just the breakdown last year that was attributed to drug use. Further, the Complainant was not willing to go to the hospital with CW #1.

The call taker advised CW #1 that police officers would attend and that the Complainant may go voluntarily with the police officers. If not, and if he was “apprehendible” under the MHA, then the police officers would arrest him. If he was not “apprehendible” under the MHA, then the police officers would explain to CW #1 what she had to do to make it possible for police to apprehend the Complainant through a form from a doctor or a Justice of the Peace.

CW #1 was directed to leave the house if she felt sufficiently concerned and to wait for the police officers outside. She was directed to call back if the situation changed.

At 9:09 p.m., SO #2 and SO #1 were dispatched to the EDP call. Most of the relevant details obtained from CW #1 were provided by the Dispatcher in the call. The information included that the caller was having a problem with the Complainant, that he was not violent, that he had been taken to CAMH last year, and that his previous visit was attributed to cocaine or marijuana use. The dispatcher also said that in the last few days, the Complainant had been doing really strange things, did not want an ambulance, and was not willing to go to the hospital voluntarily. More detailed information was made available in the ICAD, which was available on the officers’ mobile work station in their police vehicle.

At 9:30 p.m., using the mobile work station in the police vehicle, SO #1 and SO #2 marked themselves as having arrived at the scene.

At 9:33 p.m., SO #2 called for another unit to attend at the residence. He said the Complainant was assaultive and the officers were holding him down. It was clear in the transmission that there was urgency in the request for assistance. The dispatcher requested additional police officers to attend.

At 9:35 p.m., WO #2 and WO #1 arrived at the residence, and the MCU unit with officers WO #14, WO #15, and WO #12, indicated they were one minute away.

At 9:36 p.m., an unknown police officer on scene indicated that the police officers responding to the call could slow down as there were enough police officers on scene. That same police officer requested two ambulances, one for the Complainant, who was bleeding and conscious, and one for CW #1. The Complainant could be heard screaming in the background. A different unknown police officer requested a sergeant with a CEW. WO #10 said he would be responding. Another police officer stated emphatically, “We need a Taser. We need a Taser,” and WO #11 said he would be responding from the station as well.

At 9:40 p.m., an unknown police officer asked for the estimated time of arrival for the CEW. WO #10 responded he was “five seconds out.”

At 9:42 p.m., an unknown police officer indicated they needed a rush on the ambulance as the Complainant had gone unconscious. At 9:43 p.m., WO #4 and WO #5 requested two more ambulances for two police officers who had been injured, one who had been bitten and one who had an injured leg.

At 9:47 p.m., WO #3 said the Complainant was banging his head off the floor. At 10:39 p.m., WO #4 indicated that police officers were in an ambulance and he would be following the ambulance to the hospital. At 10:53 p.m., WO #9 and WO #3 indicated they had arrived at the hospital.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

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

• Event Details Report
• General Occurrence Report
• Recording of Call to TPS from CW #1
• Police Transmissions Communications Recording
• In-car camera system (ICCS) video (x4) for involved police vehicle
• Notes of WO #s 1-15 and SO #s 1 and 2
• Procedure: Arrest
• Procedure: Emotionally Disturbed Persons
• Procedure: Emotional Disturbed Persons (Appendix A)
• Procedure: Emotional Disturbed Persons (Appendix B)
• Procedure: Use of Force
• Procedure: Use of Force (Appendix A)
• Procedure: Use of Force (Appendix B)
• Summary of Conversation (TPS Communications)
• TPS Entity Search Results for the Complainant
• TPS Person Search Results for the Complainant
• Training Records of WO #9 for Ripp Hobble device
• Training Records of WO #3 for Ripp Hobble device
• Scene of Crime Photos and Photos of Injuries to Officers and CW #1
• Use of Force Re-Qualification for SO #s 1 and 2, and
• Witness List for charges against the Complainant

The SIU obtained and reviewed the following materials and documents from other sources:

• Medical records of the Complainant related to this incident
• Ambulance Call Reports (x3), and
• EMS Incident Reports (x4)

Relevant legislation

Section 25(1), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. by virtue of his office

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Section 34, Criminal Code - Defence of Person – Use of Threat of Force

34 (1) A person is not guilty of an offence if

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

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

1. the nature of the force or threat
2. the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force
3. the person’s role in the incident
4. whether any party to the incident used or threatened to use a weapon
5. the size, age, gender and physical capabilities of the parties to the incident
6. the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
   1. (f.1) any history of interaction or communication between the parties to the incident
7. the nature and proportionality of the person’s response to the use or threat of force, and
8. whether the act committed was in response to a use or threat of force that the person knew was lawful

Section 270(1), Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure

Section 17, Mental Health Act - Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person
5. serious bodily harm to another person; or
6. serious physical impairment of the person

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

Analysis and director’s decision

On November 7, 2017, at 9:01 p.m., CW #1 contacted the Toronto Police Service (TPS) on their non-emergency line to request some assistance for the Complainant. CW #1 had hoped that the Mobile Crisis Intervention Team (MCIT) would attend, as they had done the year before, and take the Complainant to the hospital. CW #1 indicated that the Complainant had been behaving unusually and she believed him to be having a psychotic breakdown, but he was neither suicidal, nor violent, and he did not have access to any weapons.

As a result of the call, SO #1 and SO #2 were dispatched to the Complainant’s residence in the City of Toronto. After the Complainant’s arrest and apprehension by police, he was transported to the hospital where he was assessed and found to have sustained a displaced right nasal bone fracture, as well as a number of lacerations to his face. The Complainant was committed to hospital on a Form 1 under the Mental Health Act (MHA), due to his psychotic behaviour, as being a danger to himself or others and unable to care for himself.

During the course of this investigation, five civilian witnesses, including the Complainant, and 17 police witnesses were interviewed, including the two subject officers. There is no real dispute as to the facts, other than that the Complainant’s perception of why things unfolded as they did differed somewhat from those of the other witnesses. The following is a summary of the facts based on the credible and reliable available evidence.

While en route to the residence, SO #1 and SO #2 queried the Complainant on their in-car computer and discovered that there had been a similar incident the year prior in which the Complainant had been taken to hospital, which had involved a lack of violence. On that basis, despite the availability of an MCIT, SO #1 and SO #2 decided that they would go to the house alone and assess the situation first to see if the Complainant needed, and/or was willing, to see a doctor, before deciding what should be done. According to SO #1 and SO #2, this was a routine type of call which they would normally deal with on average of once per week. While the decision not to dispatch the MCIT was not unreasonable in the circumstances, it was ultimately the impetus for the unfortunate events that followed.

At 9:30 p.m., when SO #1 and SO #2 arrived at the Complainant’s residence, CW #1 opened the door. The Complainant then came to the door and, upon seeing that the MCIT was not present and there was no social worker to assist him, only police officers, the Complainant immediately became belligerent and slammed the door on the officers. CW #1 then re-opened the door and allowed the officers entry. Both CW #1 and the two police officers tried to reassure the Complainant that they were only there to talk and have a conversation with him.

According to SO #1 and SO #2, despite the Complainant’s resistance, they felt the need to enter to assist CW #1, as she appeared to be frightened and distraught and did not appear to wish the police to leave. Both SO #1 and SO #2 felt it was their duty to stay and assist CW #1, rather than to leave the residence.

Upon entry, the Complainant was standing in the background, approximately 15 feet away, with his fists clenched, when he suddenly took two steps toward SO #2 and then “drop kicked” SO #2 in the chest with both feet, with the force of the kick knocking SO #2 backwards. This was observed and confirmed by both CW #1 and SO #1. SO #1 caught SO #2 and stood him back up. The Complainant then rolled and bounced right back up and started to charge towards both police officers.

At that point, both SO #2 and SO #1 were of the view that they had reasonable grounds to arrest the Complainant for assault police contrary to s. 270 of the Criminal Code.

The TPS procedure on Emotionally Disturbed Persons indicates that when dealing with such a person, it is preferable, if one has reasonable grounds to believe that the person has committed a criminal offence, to take the party into custody and lay the appropriate charges and that police officers ought only to proceed to the second step, that being an apprehension under the Mental Health Act, if there are no grounds to arrest. I can only infer that this procedure is meant to expedite matters in that if police have reasonable grounds, it is quicker and simpler to arrest, than to attempt to justify an apprehension under the MHA, in order to get the emotionally disturbed person to hospital as quickly as possible and get them the help that they require.

There is no question that after the Complainant ‘drop kicked’ SO #2 in the chest, police had ample grounds upon which to arrest the Complainant, and both police officers advised the Complainant that he was, indeed, under arrest.

The Complainant was described as then going “ballistic,” with both police officers trying to restrain him and the entire incident becoming very physical.

The Complainant rolled across the floor and came up in a fighting stance, with his knees bent and his fists clenched, and SO #2 took out his expandable baton and approached the Complainant, executing three to four baton “X” pattern strikes to the Complainant. SO #2 stated that though it was his intent to strike the Complainant in the shoulders and sides, that because of the Complainant’s erratic movements, the baton ended up making contact with the Complainant in the head area. SO #2 indicated that he was of the view that in the close quarters in which their contact was taking place, no other use of force option was viable in the circumstances. The baton strikes were described as completely ineffective and did nothing to slow or stop the Complainant.

The Complainant then lunged at, and grabbed, SO #2; when SO #1 moved in, the Complainant grabbed him as well, around the upper chest/neck area, and all three struggled back and forth.

Both police officers and the Complainant then fell back into the corner and into a chair by the fireplace, and the Complainant dragged CW #1 into the melee as well, and began to bite her forearm. SO #2 was eventually able to extricate CW #1 and remove her from within the Complainant’s reach. The Complainant then continued to try and bite each of the two police officers, and SO #1 was heard to yell that he had been bitten.

The struggle on the chair continued and the Complainant was able to keep SO #1 at a distance by pressing his feet against SO #1’s chest while simultaneously striking him in the back and neck area. SO #1 then struck the Complainant five to six times in the upper body with the butt of his baton, with some of the strikes again making contact with the Complainant’s head area. SO #1 advised that as the Complainant was pushing him back, he could not quite reach the Complainant to deliver effective strikes. The Complainant then pulled back and hit SO #1 a few more times.

Both of SO #1 and SO #2 continuously told the Complainant to stop resisting, but they described him as fixated on causing them harm.

SO #1 then tried to gain control of the Complainant’s legs by wrapping his left arm around them, while grabbing at the Complainant’s left arm. The Complainant then started to deliver rapid-fire kicks, with his heels, across SO #1’s neck and shoulders, following which he bit the knuckle area of SO #1’s left index finger, cutting him, and SO #1 punched the Complainant with his right fist in the cheek or jaw area as hard as he could in order to get him to release. Once released, SO #1 punched the Complainant again.

SO #2 radioed for help, immediately following which the Complainant ripped the portable radio extension off of SO #2’s chest, preventing any further transmissions. The transmission recording confirms that a call was made by SO #2 at 9:33 p.m. requesting assistance as the Complainant was assaultive and the officers were holding him down. SO #2 is heard to be both exhausted and exasperated and there is a clear urgency in his request for assistance. The dispatcher then sent numerous other units to the residence, with 15 other police officers eventually attending.

The Complainant and the two police officers then fell backwards and onto the floor, with the Complainant swinging and hitting both police officers. At one point, the three ended up back at the chair where they had been earlier, and SO #1 heard his shoulder pop and knew he had been injured.

The Complainant was described as bleeding and slippery with blood and sweat when SO #2 administered several hand strikes to the Complainant’s face and body to gain control, while the Complainant continued to resist. As the officers tried to remove the Complainant from the chair and down onto the floor, he pushed them back and into the bay window, and then spun free and grabbed a fireplace poker, standing up with the poker in his hand. The fireplace poker was about three feet in length and the Complainant was seen to raise it over his shoulder and above his head, causing SO #1 to push the Complainant back and reach for his firearm. The Complainant was just about to swing the poker when SO #2 immediately reacted and grabbed the poker from him with his bare hands in mid-air. SO #1 then re-holstered his firearm.

As they were still engaged in the struggle, WO #2 and WO #1 attended and WO #2 tapped SO #1 on the shoulder and told him, “I got this,” and SO #1 responded, “No, you don’t.” When additional police officers arrived, they then all piled onto the Complainant and continued to try to control him. At one point, the Complainant was seen to lift up his body, with the large group of police officers on top of him, and the police officers then pushed him back down. Even after SO #1 and SO #2 were told that they could let go, with the other officers assuring them that they had the matter in hand, each of the officers refused to let go as they feared that the other officers did not know what they were dealing with and that the Complainant would again overpower them.

Police officers called for a CEW several times and eventually a sergeant arrived with a CEW, but the Complainant had been handcuffed and placed in two sets of lower body restraints just as the sergeant arrived, and the CEW was ultimately not used. Suddenly, the Complainant stopped resisting. When paramedics arrived, they sought, and received, approval to sedate the Complainant three different times, before he finally calmed enough to be put on a stretcher and transported to hospital^{footnote 1[1]}; once at hospital, the Complainant was sedated yet again.

All of the police officers present described both of SO #1 and SO #2 as large, strong, and physically capable officers; they were also described as breathing heavily and exhausted following their interaction with the Complainant, and each described the interaction with the Complainant as the most difficult they had ever been involved in.

SO #1 received an injury to his finger, where the Complainant had bitten him, which was rinsed and bandaged by paramedics, as well as an injury to his knee and a tear to the upper part of the rotator cuff of his left shoulder, for which he has been receiving physiotherapy. SO #2 had a scratch across his head and bruising to his chest area, but no broken bones; he missed two days of work due to his injuries.

While it is clear that the Complainant received his nasal bone fracture sometime during his interaction with police, I find it impossible to pinpoint, in the melee, exactly when that occurred, although the injury appears consistent with being struck in the head area by a baton, by either of SO #1 or SO #2, or being forcefully punched in the face twice, when he bit SO #1, or even the open handed strikes delivered by SO #2, when the Complainant continued to resist. By whatever method, it is clear that the injury was caused by police.

In assessing whether or not these actions by the subject officers amount to an excessive use of force in these circumstances, I have considered that pursuant to s. 25(1) of the Criminal Code, police officers are protected from prosecution if they are acting pursuant to their lawful duties and as long as they use only as much force as is necessary to achieve that lawful purpose.

On the facts before me, it is clear that both of SO #1 and SO #2 were acting in the course of their lawful duties when they responded to CW #1’s call for assistance and attended her home to speak with the Complainant. Additionally, they were acting lawfully when they entered the home at her invitation. When the Complainant ‘drop kicked’ SO #2 in the chest, it is further clear that they had ample grounds upon which to arrest him for the offence of assaulting a police officer contrary to s. 270 of the Criminal Code. On this basis, therefore, the attempted apprehension and arrest of the Complainant was both lawful and reasonable in the circumstances, and the actions of both of SO #1 and SO #2, which ultimately led to the Complainant’s serious injury, is exempt from prosecution as long as they used no more force than was necessary and justified in the circumstances.

While I have no difficulty in accepting that the actions of both of SO #2 and SO #1 were directly proportionate to the level of resistance put up by the Complainant and did not violate s. 25 of the Criminal Code, which therefore protects them from prosecution, I note that both officers additionally were entitled to rely upon s. 34 of the Criminal Code in that they were entitled to act in their own defence, and the defence of others, from the onslaught of assaults perpetrated against them by the Complainant.

In accepting that both of SO #1 and SO #2’s actions are exempt from prosecution pursuant to s.25(1), 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:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

I have also considered the decision of Justice Power of the Ontario Superior Court of Justice in Chartier v. Greaves, [2001] O.J. No. 634, who, after considering the requirements to bring oneself within the provision for self-defence or defence of others as set out in s. 37 of the Criminal Code, as follows:

37(1) Preventing assault - Everyone is justified in using force to defend himself or anyone under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Extent of justification - Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

then set out a number of legal principles gleaned from the legal precedents, including the following:

8. Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event
9. "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14^th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver)
10. Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances
11. "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.)

Taking into consideration what must have been a very dynamic and fast moving situation, I have also 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 force used by SO #1 and SO #2, and indeed all of the other 15 officers who responded to their call for assistance, was no more than what was necessary to not only subdue, but to protect themselves, from further assaults from a very violent and extremely powerful man who was apparently not at that time in his right mind, as later confirmed by his admission to hospital under the Mental Health Act.

While in hindsight it may have been preferable to have the MCIT attend to deal with the Complainant, I see nothing in the information that was available to SO #1 and SO #2 at the time that they made the decision to attend the address and assess the situation, before dispatching the MCIT, which should have alerted them to this fact. Nor do I expect a level of perfection from these officers. The quote from Foster v. Pawsey (above) as enunciated in Chartier v. Greaves seems extremely apt in these circumstances in that “the policeman cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course."

On these facts, and with no hesitation, I find that the evidence does not satisfy me that there are reasonable grounds to believe that either of SO #1 or SO #2 resorted to an excessive use of force in their conduct towards the Complainant and, despite the injury which he

sustained, I find that there are no reasonable grounds upon which to lay criminal charges and none shall issue.

Date: September 10, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit