MISSISSAUGA – The Director of the Special Investigations Unit, Tony Loparco, has determined there are no reasonable grounds to lay criminal charges against a Dryden Police Service officer in relation to the serious injury reportedly sustained by a 27-year-old man during his arrest on February 3, 2018.
At approximately 9:55 p.m. on February 3, 2018, the Ontario Provincial Police (OPP) notified the SIU of the custody injury sustained by the Complainant.
The OPP reported that earlier on that date, at approximately 8:00 p.m., a police officer attempted a traffic stop of a vehicle. The vehicle pulled off the highway at the Twin Towers Restaurant, on Hwy 17 in the City of Dryden and the police officer noticed that the passenger and driver tried to switch seats.
A struggle ensued during the arrest of the Complainant, with the police officers eventually placing the Complainant into a police vehicle, following which he was taken to the Dryden OPP Detachment. The Complainant passed out and was given a dose of Narcan. [1] He was then taken to the hospital, where he was diagnosed with a broken foot.
The scene was not held for the SIU.
Director of the Special Investigations Unit, Tony Loparco Findings
On February 3, 2018, at approximately 2:40 p.m., Witness Officer (WO) #1 was on routine patrol on Highway 17 in the City of Dryden, in an unmarked police vehicle, when he observed a black BMW crossing the yellow centre line on the highway and driving 25 km/h below the speed limit. As a result, WO #1 believed that the driver might be impaired and he followed the BMW into a driveway at the Twin Towers Restaurant located at 13790 Highway 17 and activated his emergency lighting system. While still seated in his police vehicle, and parked behind the BMW, WO #1 observed the front seat passenger, Civilian Witness (CW) #1, and the driver, the Complainant, switch places, with CW #1 then ending up seated behind the steering wheel. The BMW then began to roll backwards toward WO #1’s police vehicle, and he activated his siren in order to alert the occupants of the BMW as to what was happening. WO #1 then used his police radio to call for back-up.
CW #3, a retired OPP constable who was seated inside the restaurant at the time, and had a clear unobstructed view of the parking lot, observed the two motor vehicles enter the lot and then stop. While the officer was still seated inside the unmarked police vehicle, CW #3 observed the BMW start to roll backwards and the police officer reverse his vehicle and give a short siren blast.
The police transmissions recording confirms that at 2:41:54 p.m., WO #1 called in that he was in the Twin Towers parking lot performing a traffic stop, and provided the description of the vehicle as a black BMW X6 SUV, and the plate number, to be run on the computer. At 2:42:33 p.m., WO #1 transmitted, “Can you send me another unit? They just switched seats here.”
WO #1 then approached the driver door of the BMW and spoke with CW #1, who was seated in the driver seat, asking her to provide her licence, registration, and insurance. WO #1 also asked CW #1 why she had switched seats, which she denied doing. WO #1 asked CW #1 to give him the keys for the BMW, but she appeared unsure of how to turn off the car. Consequently, WO #1 indicated that he was satisfied that he had reasonable grounds to arrest both CW #1 and the Complainant for obstructing police (contrary to s. 129 of the Criminal Code).
WO #1 then moved to the front passenger door, where he spoke with the Complainant, advising him that he was under arrest and to get out of the car. When the Complainant refused to do so, WO #1 told him to get out of the car a second time. When the Complainant still made no movement to exit the car, instead indicating that he was going to call his father, WO #1 reached in through the open window and opened the door. WO #1 then used his right hand and grabbed the Complainant’s left wrist, while the Complainant began to struggle and resist.
WO #1 advised that he was surprised by the strength of the Complainant. He repeatedly told the Complainant to stop resisting as he struggled. WO #1 then drew his Conducted Energy Weapon (CEW) and told the Complainant to get out of the car or he would be “tazed.”
This evidence is consistent with CW #3’s statement, wherein he indicated that he observed WO #1 attempt to remove the passenger from the BMW and a struggle ensued, with the passenger, the Complainant, resisting strenuously and violently. CW #3 then observed the officer to disengage from the passenger and appear to point something at the Complainant, which CW #3 assumed might have been pepper spray. CW #4, a second witness inside the restaurant, also a retired police officer, observed WO #1 at the passenger door and observed some sort of commotion, with WO #1 being described as either moving back, or being pushed back, from the passenger door. Both CW #3 and CW #4 then exited the restaurant to see if they could assist.
As he approached, CW #4 observed that the Complainant was still seated inside the vehicle, with his legs partially out of the vehicle. He then heard WO #1 state that the Complainant was under arrest, and the Complainant responded, “You’re not arresting me!” The Complainant then began to flail his legs at WO #1 while WO #1 tried to grab the Complainant’s arm. WO #1 managed to gain control of the Complainant and removed him from the car, placing him up against the side of the car. As CW #4 got closer to the cruiser he asked WO #1 if he needed any help, and he assisted WO #1 to gain control of the Complainant, who was out of the vehicle at that point, but still struggling and resisting. Because the Complainant was physically resisting WO #1, CW #4 then moved in, while advising the Complainant that he was there to assist the officer. CW #4 grabbed the Complainant’s left arm to try and control him, while the Complainant continued to resist.
CW #4 heard WO #1 tell the Complainant that he was going to ‘taze’ him if he did not stop resisting, but the Complainant continued to fight. The Complainant then threw a backward kick at CW #4, making contact with his left front shin. CW #3 indicated that he repeatedly heard the Complainant say, “You’re not arresting me!” “You can’t arrest me!” while WO #1 repeatedly advised him to stop resisting. CW #3 described the Complainant as resisting both WO #1 and himself, while the Complainant was simultaneously kicking them. CW #4 specifically noted that the Complainant was wearing sandals and that one of the sandals came off during the struggle.
CW #4 described all three men as then falling to the ground due to the Complainant violently resisting, and the fact that the ground was snow covered and icy, making it difficult to gain any traction. Once on the ground, CW #4 observed that the Complainant had his arms under his torso, and WO #1 again indicated that if the Complainant did not stop resisting, he was going to ‘taze’ him.
WO #1 advised that he observed the Complainant face down on the ground with his arms underneath his body, at which point the Complainant grabbed WO #1’s left forearm, and WO #1 delivered a knee strike to the Complainant’s abdomen, in order to distract him and cause him to let go. CW #4 described getting the Complainant’s left arm out from under him and holding it in a ‘scissor lock,’ while WO #1 managed to handcuff the Complainant’s right hand, whereupon CW #4 provided the Complainant’s left arm, and the Complainant’s hands were handcuffed behind his back. Once back on his feet, the Complainant kicked CW #4.
CW #3 described the struggle as “a long couple minutes of violent resistance on the suspect’s part,” following which the Complainant was handcuffed, but continued to resist and struggle to try to get away from WO #1 and CW #4, at which point the Complainant was placed against the side of the BMW and then searched. CW #4 advised that WO #1 had to hold onto the Complainant, because of his active resistance, while CW #4 searched the Complainant’s pockets and the Complainant again attempted to kick CW #4 a number of times, with backward kicks.
WO #1 described the Complainant as refusing to walk and still resisting as he was escorted to the rear of the police vehicle and placed inside.
CW #3 observed WO #1 try to place the Complainant inside the rear seat of the police vehicle, managing to partially get the Complainant inside the car, but the Complainant brought up his legs in what he described as an apparent effort to prevent WO #1 from closing the door. Once inside the car, WO #1 observed that the Complainant was thrashing around, making the car rock and shake, while CW #3 observed him to start to scream and kick the rear window of the cruiser which was reinforced with steel strips. Similarly, CW #4 also observed the Complainant kicking at the interior of the car door on at least one occasion.
Later that evening, CW #4’s leg was quite sore and he noted that he had sustained a two inch hematoma and a small abrasion on his left shin, where he had been kicked by the Complainant.
Both CW #4 and CW #3 observed, after the struggle had ended, that WO #3 and WO #2 had arrived in separate vehicles, but neither was involved in the struggle with the Complainant. This evidence is consistent with that of both WO #3 and WO #2, and contradicts the evidence of CW #1, wherein she indicated that it was one male and one female police officer who struggled with the Complainant at the side of the car.
CW #1, in her evidence, indicated that WO #1 grabbed the Complainant and pulled him out of the car and onto the ground, while telling the Complainant to stop resisting. CW #1 then moved to the passenger seat of the car, in order to better see what was happening, when she observed that there were now two police officers fighting with the Complainant, a female officer, and WO #1, who had his knee in the Complainant’s back. She described both police officers, the male and the female, as having their weight on the Complainant and that they had full control over him, even though he was not resisting, while they continuously told him to stop resisting.
CW #1 indicated that the Complainant fought with the two police officers for a short time, following which they picked him up and dragged him to the police cruiser.
Based on the blatant and material inconsistencies between the evidence of CW #1 and the other witnesses present, and with the evidence of the Complainant himself, who clearly described the second person with whom he was struggling as a male and a civilian, and not a female police officer, I find that CW #1’s evidence is wholly unreliable and I reject her evidence in its entirety.
The Complainant alleges that he voluntarily exited the motor vehicle and, while he was doing so, WO #1 pulled out his CEW, at which point the Complainant went to his knees and put his hands up. Another man, CW #4, then put him into a choke hold, kneed him in the back, and punched the Complainant in the back of the neck. The Complainant further alleges that WO #1 punched him three times in the nose and face, and kneed him in the stomach, while the Complainant told them to stop hitting him as he was cooperating. The Complainant professes that at no time did he swear at the men. The Complainant also alleges that CW #4 then told him, “If you make one more move, I’m just going to snap it,” at which point he finally let go of the Complainant’s neck. The Complainant was then handcuffed with his hands behind his back and dragged to the police vehicle, where he was thrown into the rear seat. The Complainant advised that he was bleeding from his face in the police cruiser and was spitting blood; he also had a small gash over his left eyebrow which was caused by a punch from WO #1.
The Complainant, despite denying ever resisting WO #1, did concede that he told the officer at the time that he was not going back to jail, and once inside the police vehicle, he broke the door handle to the police cruiser in his desire to use the spare key to the BMW to escape.
The Complainant indicated that the BMW was then searched, and he was told that a “meth pipe” was found inside, which the Complainant denied being his. Instead, the Complainant asserted to the SIU investigators during his interview that he had not used any type of drugs or alcohol that day. This evidence appears to be directly contradicted by the medical records, which indicate that the Complainant’s toxicology screen revealed that he had 13 Mmol/L of ethanol (alcohol) in his blood (or the equivalent of 60 mgs of alcohol in one hundred millilitres of blood), and he tested positive for cocaine, methamphetamines, and amphetamines.
The Complainant does not allege that he sustained any serious injury as a result of his interaction with WO #1 and CW #4 in the parking lot of the Twin Towers Restaurant.
With respect to how the Complainant sustained his injury, he alleges that when he arrived in the sally port at the OPP Detachment, the police officers came to the door of the cruiser, grabbed him by the handcuffs, and threw him down. The Complainant described a “big guy,” presumably the Subject Officer (SO), WO #1, and two additional DPS police officers, as restraining him in the lodging area of the police station. He alleges that the big police officer then grabbed his foot and the Complainant stated, “Let go of my foot, you are going to break it!” The Complainant then felt something move in his foot and thought that his foot was “gone”.
The police officers then put the Complainant down and stripped off all of his clothing, including his pants, shirt, and underwear, and threw him naked into a cell, where they gave him a gown. The Complainant then lied to the police officers and told them that he had taken a ‘load’ of fentanyl pills, following which he was taken to hospital. The Complainant alleges that he told the doctor that his foot was broken. The Complainant denied ever having a broken foot prior to his interaction with police.
Fortunately, the entire interaction between the Complainant and the police at the OPP detachment was video recorded, leaving little doubt as to what actually occurred.
The video reveals that rather than the police officers coming to the cruiser door and grabbing the Complainant by the handcuffs and throwing him down, the Complainant exited the police vehicle under his own steam and stood up in the opened door to the car, at which point WO #1 and the SO grabbed him by the arms and pushed him toward the entrance to the lodging area.
Once inside the lodging area, the Complainant is seen to be pushed down into a seated position on a bench seat. Present at that time were WO #3, WO #2, WO #1, WO #4 (DPS), and the SO, and all of them are struggling with the Complainant.
The police officers are then seen to remove the Complainant’s clothing, apparently without his cooperation. While I note that at 4:15:05 pm, the SO is seen to cover the Complainant’s left foot with his foot, I note that this is not how the Complainant alleges that his foot was injured, alleging instead that it occurred when ‘the big officer’ grabbed his foot.
While the Complainant alleged that all of his clothing was forcefully removed and he was shoved naked into a cell, it is clear from the video that the Complainant is left with his underwear intact, which was searched, and he was then walked to the cell, again under his own steam but with WO #1 holding his upper arms and pushing him forward. He is then provided with a gown and his handcuffs are removed.
While it is not seen on the video, WO #4, in his statement to SIU investigators, indicated that as he was attempting to remove the Complainant’s footwear, while the Complainant was seated on the bench in the booking area, the Complainant moved his foot and cocked his leg as if to kick out, in response to which WO #4 grabbed hold of the Complainant’s foot, although he believed it to have been the right foot, and the Complainant immediately stated, “It’s broken, my foot’s broken.”
Based on all of the obvious contradictions between the evidence of the witnesses at the Twin Towers Restaurant parking lot and the evidence of the Complainant, and the contradictions between what is seen on the video and the evidence of the Complainant, as with the evidence of CW #1, I find that the evidence of the Complainant is not reliable with respect to his relating of the facts. Clearly, I accept the video evidence over that of the Complainant and reject the allegations of the Complainant in that regard. Furthermore, as the Complainant’s evidence is clearly unreliable with respect to those aspects which can be positively confirmed by other evidence, I find that I am unable to accept the evidence of the Complainant in its entirety, except where it is corroborated by other independent evidence, other than that of CW #1, who is equally unreliable.
With respect to WO #4’s statement that the Complainant appeared to be about to kick out, I have no difficulty, based on the observations of both the civilian witnesses and the police officers at the parking lot, in accepting that the Complainant continued to kick out at the police officers once at the station, as he had previously done in the parking lot.
Furthermore, based on the evidence contained in the medical records with respect to the fact that at least two of the fractures in the Complainant’s left foot were pre-existing, the fact that the Complainant was wearing sandals, or as described by WO #3, flip flops, in the middle of a snowy and icy day in February, and WO #4 immediately hearing the Complainant indicate that his foot was broken when he held onto it, I have no difficulty accepting that the Complainant’s foot was already broken prior to his interaction with the police.
While the medical records clearly indicate that the fractures at the base of the third and fourth metatarsals were pre-existing, and in the healing stages, there is an indication that the fracture at the base of the second metatarsal could have been newly sustained. I find that this would be consistent with the Complainant, as seen on the video at 4:28:54 pm, after he was placed into the cell, to be rubbing his left foot, and the swelling of the foot as described in his medical records. I hasten to add, however, that this evidence is as consistent, if not more so, with the Complainant having aggravated his previous injury when he forcefully kicked the interior door and steel reinforcements on the door of the police cruiser when he was placed inside, as it is with the Complainant’s previous injury simply being aggravated by either the actions of the SO in placing his foot over the Complainant’s left foot, or WO #4 grabbing and holding the foot. I further have no difficulty accepting that with two previous fractures of his left foot, that even just grabbing onto the foot to prevent the Complainant kicking, would have caused him significant pain. I further note that the radiologist’s report indicates that, “The changes in the proper clinical setting could be due to stress related injury”, which I have interpreted as meaning that stress alone, and not trauma, could be the cause of the “non-displaced hairline fracture at the base of the second metatarsal.”
As such, while there is some evidence that a hairline fracture occurred in the Complainant’s already twice fractured left foot, during his interaction with police, I must consider whether police resorted to an excessive use of force in their dealings with the Complainant. While the Complainant does not allege that his foot was injured while in the parking lot, the only actions, as viewed on the video and indicated in the police witness statements, which could have caused the injury were the SO’s actions in placing his foot over the Complainant’s left foot to maintain control over him while struggling to remove his clothing, or the action by WO #4 in grabbing onto the Complainant’s foot to stop him kicking.
Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the involved police officers to qualify for protection from prosecution pursuant to s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary.
On the record before me, it is clear that WO #1 had ample grounds to believe, when he first stopped the BMW, that the driver might be impaired, and later, when he observed the driver and passenger switching seats, and that CW #1, despite being then seated in the driver’s seat, was unfamiliar with how to turn the car off and remove the keys from the car, and she allowed the vehicle to roll backwards almost striking WO #1’s vehicle, that CW #1 and the Complainant were attempting to obstruct his investigation by obfuscating who the actual driver was. Once WO #1 attempted to arrest the Complainant, and the Complainant violently resisted, WO #1 also had reasonable grounds to arrest the Complainant for assault resist arrest (s. 270 of the Criminal Code). As such, the apprehension and arrest of the Complainant was pursuant to a lawful duty and based on reasonable grounds and the police officers would be immune from prosecution pursuant to s. 25 (1), as long as they used no more force than was necessary or justified in the circumstances.
In light of the finding of the methamphetamine pipe in the BMW, the methamphetamine powder in CW #1’s bra, and the Complainant’s utterance to WO #1 that CW #1 had methamphetamine concealed in her body, it was further both necessary and prudent that the Complainant be fully searched prior to his being placed in the cell area, in order to remove any drugs or other items by which he could cause harm to himself or others. When the Complainant continued to resist the removal of his clothing, I cannot find that the SO’s action in placing his foot over the Complainant’s left foot, not knowing that the foot was already twice fractured and not yet healed, in order to maintain control over the Complainant, and to remove his clothing as required, constituted an excessive use of force in the circumstances. It is clear that the action of the SO was in no way meant to be a use of force or to cause injury to the Complainant, but simply to quickly and efficiently accomplish the purpose of the search.
It is further clear that the Complainant tended to resort to kicking when dealing with the police officers, as illustrated by his behaviour at the parking lot, both when he attempted to kick WO #1 and when he was successful in kicking CW #4, and in his kicking of the police car door and window, as observed by numerous witnesses. As such, it was a reasonable assumption on WO #4’s part that when the Complainant cocked his leg, while the police were trying to remove his clothing, that his intent was again to kick out at the officers and it was reasonable for WO #4 to grab his foot to stop him from doing so. Again, I find that WO #4 did not intentionally grab the Complainant’s foot as a method of inflicting pain or force upon the Complainant, but simply to prevent his kicking out.
Furthermore, with respect to the SO putting his foot over the Complainant’s left foot, or WO #4 grabbing the foot, I find that it would have been unforeseeable that these seemingly innocuous actions would, or could, have caused a serious injury to the Complainant, and in all likelihood, based on the medical records, would not have done so had the Complainant not already had two pre-existing fractures to that foot.
As such, with respect to the actions of both of WO #4 and the SO, I cannot find that their actions amounted to an excessive use of force in these circumstances. In coming to this conclusion, I am mindful of the direction from 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]
Having fully considered all of the evidence in this matter, and having made findings of fact as based on the reliable and credible evidence before me, I find that the remaining evidence does not satisfy me that there are reasonable grounds to believe that either of the SO or WO #4, or indeed any police officer who dealt with the Complainant on February 3, 2018, resorted to an excessive use of force. As such, as I lack the bases for the laying of criminal charges, none shall issue.
Full Director’s Report (with Incident Narrative, Evidence, and Analysis & Director’s Decision):https://www.siu.on.ca/en/directors_reports.php.
The SIU is an arm’s length agency that investigates reports involving police where there has been death, serious injury or allegations of sexual assault. Under the Police Services Act, the Director of the SIU must
- consider whether an officer has committed a criminal offence in connection with the incident under investigation
- depending on the evidence, lay a criminal charge against the officer if appropriate or close the file without any charges being laid
- report the results of any investigations to the Attorney General.
The Special Investigations Unit (SIU) is the civilian law enforcement agency in Ontario that investigates incidents involving police where there has been death, serious injury or an allegation of sexual assault. The Unit is independent of the police and of the government.