SIU Director’s Report - Case # 20-PCI-290
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Contents:
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.
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 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.
- 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 a serious injury sustained by a 26-year-old man (the “Complainant”).
“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 a serious injury sustained by a 26-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On November 1, 2020 at 8:40 a.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.The OPP reported that on November 1, 2020, at 2:56 a.m., the Complainant was arrested for impaired driving and, while being released from police custody, he uttered death threats to the officers. As a result, the Complainant was taken to the ground in the parking lot of the Rockland-Clarence OPP Detachment.
The Complainant was taken to the Ottawa Civic Hospital (OCH) where he was diagnosed with a fractured nose. The Complainant was later charged with uttering death threats to the involved officers. At the time of notification, the Complainant was in the process of being released from police custody.
The OPP indicated that the Rockland-Clarence OPP Detachment did not have external surveillance cameras situated on the building.
The Team
Number of SIU Investigators assigned: 3
On November 2, 2020, investigators were assigned to investigate the Complainant’s custody injury. On the same day, SIU investigators conducted a canvass of the north side parking lot of Rockland-Clarence OPP Detachment where the incident occurred in search of surveillance footage. No surveillance video was located.
Due to the coronavirus pandemic, arrangements were made to have SIU investigators conduct audio recorded interviews with the subject officer and witness officers by telephone.
On November 3, 2020, an audio recorded interview of the Complainant was conducted outside his residence as result of the coronavirus pandemic.
[Note: A complainant is an individual who was involved in some form of interaction with police, during the course of which she or he sustained serious injury, died or is alleged to have been sexually assaulted.]
Witness Officers
WO #1 Interviewed
WO #2 Interviewed
Additionally, the notes from one other officer were received and reviewed.
[Note: A witness officer is a police officer who, in the opinion of the SIU Director, is involved in the incident under investigation but is not a subject officer.
Upon request by the SIU, witness officers have a duty under Ontario Regulation 267/10 of the Police Services Act, to submit to interviews with SIU investigators and answer all their questions. The SIU is also entitled to a copy of their notes from the police service.]
Subject Officers
SO #1 Interviewed, and notes received and reviewed
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right
[Note: A subject officer is a police officer whose conduct appears, in the Director’s opinion, to have caused the death or serious injury under investigation.
Subject officers are invited, but cannot be legally compelled, to present themselves for an interview with the SIU and they do not have to submit their notes to the SIU pursuant to Ontario Regulation 267/10 of the Police Services Act.]
On November 3, 2020, an audio recorded interview of the Complainant was conducted outside his residence as result of the coronavirus pandemic.
Complainant:
26-year-old male interviewed, medical records obtained and reviewed[Note: A complainant is an individual who was involved in some form of interaction with police, during the course of which she or he sustained serious injury, died or is alleged to have been sexually assaulted.]
Witness Officers
WO #1 Interviewed WO #2 Interviewed
Additionally, the notes from one other officer were received and reviewed.
[Note: A witness officer is a police officer who, in the opinion of the SIU Director, is involved in the incident under investigation but is not a subject officer.
Upon request by the SIU, witness officers have a duty under Ontario Regulation 267/10 of the Police Services Act, to submit to interviews with SIU investigators and answer all their questions. The SIU is also entitled to a copy of their notes from the police service.]
Subject Officers
SO #1 Interviewed, and notes received and reviewed SO #2 Declined interview and to provide notes, as is the subject officer’s legal right
[Note: A subject officer is a police officer whose conduct appears, in the Director’s opinion, to have caused the death or serious injury under investigation.
Subject officers are invited, but cannot be legally compelled, to present themselves for an interview with the SIU and they do not have to submit their notes to the SIU pursuant to Ontario Regulation 267/10 of the Police Services Act.]
Evidence
The Scene
The OPP Rockland-Clarence Detachment is located at 626 De La Baie Road, in the town of Rockland. The Complainant’s arrest occurred on the asphalt parking lot, located on the north side of the building, close to the detachment entranceway. The scene was not forensically examined by SIU Forensic Investigators. Located on the northside of the detachment was Highway 17 and the Ottawa River.
Video/Audio/Photographic Evidence
OPP Video of the Complainant’s Breathalyzer Test
The video was obtained and reviewed by SIU investigators. This video offered no evidentiary value to this investigation as the incident occurred outside the OPP detachment.
Communications Recordings
Police Radio Recordings and Telephone Recordings Summary
The first radio transmission from any of the involved officers was believed to be from SO #1. At about 2:54 a.m. SO #1 broadcasted he needed an [ambulance] to attend the Rockland Detachment. Additional radio broadcasts were recorded between an OPP dispatcher and a sergeant, requesting an update from SO #1. SO #1 broadcasted that he had a [person in custody], that he went to release the [person in custody] who “uttered some threats”, and that the “[person in custody was] bleeding from his face now”.
Further radio transmissions were made between the same OPP dispatcher and a sergeant. The sergeant transmitted he only heard a segment of SO #1’s radio transmission. The OPP dispatcher repeated by broadcasting that the “[person in custody] is injured and bleeding in the face, unsure how that happened”. SO #1 immediately updated the OPP dispatcher and transmitted “resisting arrest”. The OPP dispatcher asked over the radio if the sergeant was attending the Rockland Detachment. The sergeant broadcasted that he was.
Further radio transmissions recorded different officers and the same sergeant planning for officers to be assigned to follow the ambulance to the hospital. More radio transmissions related to the [person in custody] being released from the hospital to be returned to the Rockland Detachment before being released from police custody.
The beginning of the telephone recordings involved a dispatcher from the OPP Communication Centre speaking with an ambulance dispatcher, requesting that an ambulance attend the Rockland OPP Detachment. The OPP dispatcher was unable to provide the ambulance dispatcher with details regarding the prisoner’s injuries and was waiting for further information from officers. The same dispatcher made a telephone call, reporting a [person in custody] was irate, resisted arrest and was bleeding from the face. The dispatcher indicated an ambulance was dispatched to the Rockland Detachment but was unaware of the [person in custody]’s injuries.
The same dispatcher made a telephone call to the Rockland OPP Detachment, where SO #1 is believed to have answered the telephone. The dispatcher asked SO #1 the reason for the prisoner’s arrest. SO #1 responded, “He was released from custody for impaired driving, while waiting for his ride, he threatened, he uttered death threats to me, and say no more … So, we arrested him, he resisted arrest.” The dispatcher asked if the injury was to the nose. SO #1 indicated the injury was a “broken nose and maybe a cheekbone, but it is hard to say”.
Materials obtained from Police Service
The SIU obtained and reviewed the following records from the OPP:
The OPP Rockland-Clarence Detachment is located at 626 De La Baie Road, in the town of Rockland. The Complainant’s arrest occurred on the asphalt parking lot, located on the north side of the building, close to the detachment entranceway. The scene was not forensically examined by SIU Forensic Investigators. Located on the northside of the detachment was Highway 17 and the Ottawa River.
Video/Audio/Photographic Evidence
OPP Video of the Complainant’s Breathalyzer Test
The video was obtained and reviewed by SIU investigators. This video offered no evidentiary value to this investigation as the incident occurred outside the OPP detachment. Communications Recordings
Police Radio Recordings and Telephone Recordings Summary
The first radio transmission from any of the involved officers was believed to be from SO #1. At about 2:54 a.m. SO #1 broadcasted he needed an [ambulance] to attend the Rockland Detachment. Additional radio broadcasts were recorded between an OPP dispatcher and a sergeant, requesting an update from SO #1. SO #1 broadcasted that he had a [person in custody], that he went to release the [person in custody] who “uttered some threats”, and that the “[person in custody was] bleeding from his face now”. Further radio transmissions were made between the same OPP dispatcher and a sergeant. The sergeant transmitted he only heard a segment of SO #1’s radio transmission. The OPP dispatcher repeated by broadcasting that the “[person in custody] is injured and bleeding in the face, unsure how that happened”. SO #1 immediately updated the OPP dispatcher and transmitted “resisting arrest”. The OPP dispatcher asked over the radio if the sergeant was attending the Rockland Detachment. The sergeant broadcasted that he was.
Further radio transmissions recorded different officers and the same sergeant planning for officers to be assigned to follow the ambulance to the hospital. More radio transmissions related to the [person in custody] being released from the hospital to be returned to the Rockland Detachment before being released from police custody.
The beginning of the telephone recordings involved a dispatcher from the OPP Communication Centre speaking with an ambulance dispatcher, requesting that an ambulance attend the Rockland OPP Detachment. The OPP dispatcher was unable to provide the ambulance dispatcher with details regarding the prisoner’s injuries and was waiting for further information from officers. The same dispatcher made a telephone call, reporting a [person in custody] was irate, resisted arrest and was bleeding from the face. The dispatcher indicated an ambulance was dispatched to the Rockland Detachment but was unaware of the [person in custody]’s injuries.
The same dispatcher made a telephone call to the Rockland OPP Detachment, where SO #1 is believed to have answered the telephone. The dispatcher asked SO #1 the reason for the prisoner’s arrest. SO #1 responded, “He was released from custody for impaired driving, while waiting for his ride, he threatened, he uttered death threats to me, and say no more … So, we arrested him, he resisted arrest.” The dispatcher asked if the injury was to the nose. SO #1 indicated the injury was a “broken nose and maybe a cheekbone, but it is hard to say”.
Materials obtained from Police Service
The SIU obtained and reviewed the following records from the OPP:- Alcohol influence report;
- Breathalyzer Technician results;
- Computer-assisted Dispatch Event Details Report;
- Communication recordings;
- Crown Brief;
- Email from OPP regarding names of paramedics-November 9, 2020;
- General Report (x2)
- The Complainant’s breath-test video recording;
- Notes of SO #1, WOs and additional officer;
- Use of Force Training - SO #1, and
- Use of Force Training - SO #2.
Materials obtained from Other Sources
The SIU obtained and reviewed the Complainant’s medical records from OCH.Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included statements from the Complainant and SO #1. As was his right, SO #2 chose not to interview with the SIU or authorize the release of his notes.
In the early morning hours of November 1, 2020, the Complainant was at the OPP Rockland-Clarence Detachment on De La Baie Road, Rockland, having been arrested for drunk driving. SO #1 was the arresting officer and the officer who dealt principally with the Complainant at the detachment, including with respect to his release. The Complainant had initially refused to sign his release papers, but eventually did so when it was explained he would otherwise be maintained in cells pending a bail hearing. Thereafter, believing the Complainant was still intoxicated, SO #1 refused to let him go without a ride being arranged to pick him up. The officer was concerned for the Complainant’s ability to care for himself, particularly as he was not dressed appropriately for the cold weather. The Complainant became irate with the police and asked to be allowed to go outside to smoke a cigarette. SO #1 allowed him to do so, hoping the Complainant would calm and cooperate with the police in planning his transportation home.
Once outside on the parking lot of the detachment, the Complainant’s belligerence returned and he started to challenge the officers verbally. SO #1 and his partner, SO #2, warned him about being charged for uttering threats. When the Complainant threatened to kill the officers, he was told he was under arrest.
SO #1 took hold of the Complainant and forced him to the ground face first. There ensued a physical altercation in the course of which the Complainant was punched multiple time to the face by the officers. The Complainant was ultimately handcuffed with his hands behind his back and lifted to his feet. He was bleeding from the face.
Following his arrest, the Complainant was transported to hospital where his fractured nose was diagnosed
In the early morning hours of November 1, 2020, the Complainant was at the OPP Rockland-Clarence Detachment on De La Baie Road, Rockland, having been arrested for drunk driving. SO #1 was the arresting officer and the officer who dealt principally with the Complainant at the detachment, including with respect to his release. The Complainant had initially refused to sign his release papers, but eventually did so when it was explained he would otherwise be maintained in cells pending a bail hearing. Thereafter, believing the Complainant was still intoxicated, SO #1 refused to let him go without a ride being arranged to pick him up. The officer was concerned for the Complainant’s ability to care for himself, particularly as he was not dressed appropriately for the cold weather. The Complainant became irate with the police and asked to be allowed to go outside to smoke a cigarette. SO #1 allowed him to do so, hoping the Complainant would calm and cooperate with the police in planning his transportation home.
Once outside on the parking lot of the detachment, the Complainant’s belligerence returned and he started to challenge the officers verbally. SO #1 and his partner, SO #2, warned him about being charged for uttering threats. When the Complainant threatened to kill the officers, he was told he was under arrest.
SO #1 took hold of the Complainant and forced him to the ground face first. There ensued a physical altercation in the course of which the Complainant was punched multiple time to the face by the officers. The Complainant was ultimately handcuffed with his hands behind his back and lifted to his feet. He was bleeding from the face.
Following his arrest, the Complainant was transported to hospital where his fractured nose was diagnosed
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
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Analysis and Director's Decision
On November 1, 2020, the Complainant suffered a broken nose in the course of his arrest by OPP officers outside the Rockland-Clarence Detachment. The arresting officers – SO #1 and SO #2 – were identified as the subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s arrest and injury.
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were authorized or required to do by law. I am satisfied that the Complainant, annoyed with SO #1 and SO #2, threatened them with death. According to SO #1, the Complainant said he would blow the officer’s brains out if he ever saw him off-duty in downtown Ottawa. In the circumstances, there were lawful grounds, in my view, to take the Complainant into custody. The issue turns to the propriety of the force.
There is some evidence of excessive force used by the officers in the Complainant’s arrest, but I am unable to place much if any weight on this evidence owing to two significant factors. The source of this evidence was significantly impaired at the time of these events, compromising their ability to accurately perceive and recall what was happening. Beyond that, this evidence indicated that the Complainant only consumed a couple of beers on the night in question, an amount seemingly inconsistent with the Complainant’s blood/alcohol concentration. In the circumstances, it would be unwise and unsafe, in my view, to rest charges on the strength of this evidence alone where it conflicts with other evidence.
The remainder of the evidence, derived in the main from SO #1’s account, indicates that the Complainant was grounded when he adopted an aggressive posture toward the officers after having been advised that he was under arrest for uttering threats. Once on the ground, the Complainant repeatedly refused SO #1’s directions that he release his left arm out from underneath his torso. After a period of trying and failing to wrestle it free, SO #1 struck the Complainant in the face three times. The blows were ineffective in subduing the Complainant. SO #2, who intervened to assist SO #1, also appears to have struck the Complainant in the head. None of the blows were immediately effective in overcoming the Complainant’s resistance. However, after a further short period of struggle, the officers were able to wrest control of the Complainant’s left arm, bring it around his back and affix it in handcuffs to his right arm.
In view of the Complainant’s belligerence towards the officers and the serious threat of personal harm he had directed at them, one can understand why SO #1 felt it necessary to ground the Complainant when he turned toward the officers looking as if he intended to do them harm. The punches that were struck by the officers are a source of some concern given that the officers, two of them, had the Complainant on the ground at the time without any concern that he was armed. And yet, given the Complainant’s continued struggle for a period after the punches, I am unable to reasonably conclude with any confidence that the force fell outside the range of what was necessary in the circumstances to effect the Complainant’s arrest.
In the result, while I accept that the Complainant’s nose was broken when he was forced to the ground or punched in the face, I am not satisfied on reasonable grounds that the injuries were the result of unlawful force brought to bear by either SO #1 and SO #2. There is, accordingly, no basis to proceed with criminal charges in this case, and the file is closed.
Date: April 26, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were authorized or required to do by law. I am satisfied that the Complainant, annoyed with SO #1 and SO #2, threatened them with death. According to SO #1, the Complainant said he would blow the officer’s brains out if he ever saw him off-duty in downtown Ottawa. In the circumstances, there were lawful grounds, in my view, to take the Complainant into custody. The issue turns to the propriety of the force.
There is some evidence of excessive force used by the officers in the Complainant’s arrest, but I am unable to place much if any weight on this evidence owing to two significant factors. The source of this evidence was significantly impaired at the time of these events, compromising their ability to accurately perceive and recall what was happening. Beyond that, this evidence indicated that the Complainant only consumed a couple of beers on the night in question, an amount seemingly inconsistent with the Complainant’s blood/alcohol concentration. In the circumstances, it would be unwise and unsafe, in my view, to rest charges on the strength of this evidence alone where it conflicts with other evidence.
The remainder of the evidence, derived in the main from SO #1’s account, indicates that the Complainant was grounded when he adopted an aggressive posture toward the officers after having been advised that he was under arrest for uttering threats. Once on the ground, the Complainant repeatedly refused SO #1’s directions that he release his left arm out from underneath his torso. After a period of trying and failing to wrestle it free, SO #1 struck the Complainant in the face three times. The blows were ineffective in subduing the Complainant. SO #2, who intervened to assist SO #1, also appears to have struck the Complainant in the head. None of the blows were immediately effective in overcoming the Complainant’s resistance. However, after a further short period of struggle, the officers were able to wrest control of the Complainant’s left arm, bring it around his back and affix it in handcuffs to his right arm.
In view of the Complainant’s belligerence towards the officers and the serious threat of personal harm he had directed at them, one can understand why SO #1 felt it necessary to ground the Complainant when he turned toward the officers looking as if he intended to do them harm. The punches that were struck by the officers are a source of some concern given that the officers, two of them, had the Complainant on the ground at the time without any concern that he was armed. And yet, given the Complainant’s continued struggle for a period after the punches, I am unable to reasonably conclude with any confidence that the force fell outside the range of what was necessary in the circumstances to effect the Complainant’s arrest.
In the result, while I accept that the Complainant’s nose was broken when he was forced to the ground or punched in the face, I am not satisfied on reasonable grounds that the injuries were the result of unlawful force brought to bear by either SO #1 and SO #2. There is, accordingly, no basis to proceed with criminal charges in this case, and the file is closed.
Date: April 26, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.