SIU Director’s Report - Case # 20-OCI-197
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Mandate of the SIU
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.
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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 injuries that a 26-year-old man (the “Complainant”) suffered.
Notification of the SIUOn July 31, 2020, at 12:30 p.m., the Stratford Police Service (SPS) reported that the SPS had received an Office of the Independent Police Review Director (OIPRD) complaint that was submitted by the Complainant. The complaint contained minimal details about his interactions with police officers. The complaint essentially advised that the Complainant had been involved in a physical interaction with police officers, and expressed his dislike for the police.
The SPS advised that on February 18, 2020 at 2:18 p.m., the Complainant was at 552 Ontario Street when he pointed his finger at a police cruiser that drove by him. The police officer, Witness Officer (WO) #2, got out of his cruiser and attempted to speak with the Complainant. Soon after, a confrontation started, and the Complainant ran off. Eventually, the Complainant was apprehended and arrested. Two additional police officers, the Subject Officer (SO) and WO #1, assisted in the apprehension.
An SPS Staff Sergeant (S/Sgt) attempted to contact the Complainant and he left a voice message. The S/Sgt contacted the Complainant’s mother, who stated that the Complainant had attended the Stratford General Hospital (SGH), which is also known as the Huron Perth Health Care Alliance, after his release from custody. The Complainant’s mother provided a photocopy of the Complainant’s medical records. The records showed that the right 7th and 8th ribs had possible un-displaced fractures. The medical record was dated February 20, 2020. The S/Sgt attempted to contact the doctor to obtain more information about the injury; however, the S/Sgt never heard back.
On August 7, 2020, the SPS advised that the S/Sgt had not heard back from the doctor, even after messages had been left. The emergency room (ER) doctor and the radiologist – the Civilian Witness (CW) – were identified.
The TeamNumber of SIU Investigators assigned: 3
Complainant:26-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW Interviewed
Witness OfficersWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
Subject OfficersSO Interviewed, but declined to submit notes, as is the subject officer’s legal right.
The SceneThe Complainant was arrested on the northeast corner of the Ontario and Romeo Streets intersection, Stratford. The scene was not held.
SPS Booking and Search Room Video
In another video recording, at about 2:49 p.m., the Complainant was seen being put in the search room, which appeared to be an interview room with two chairs and a table. A police officer entered the room and took away the telephone and cord. The Complainant had no shoes on. WO #3 entered the room, stood with his back to the camera and spoke to the Complainant. The audio echoed and was difficult to interpret. The Complainant tried to explain his actions, which he repeated to the investigators during his interview. WO #3 brought up the possibility of mental health issues and the Complainant said that was an inappropriate question; he did not want to discuss his mental health. At about 2:58 p.m., WO #3 told the Complainant he had concerns about his mental health. The Complainant said he may not be his best self, and that he jaywalked to avoid being murdered by police officers. At about 2:59 p.m., WO #3 left the room. At about 3:58 p.m., WO #3 returned to the room. The Complainant spoke to him again. At about 4:13 p.m., WO #3 gave the Complainant his backpack and shoes. The Complainant wanted to call someone, and WO #3 said he could only call a lawyer. At about 4:21 p.m., the Complainant was released. There was no mention of an injury by the Complainant, but the audio was difficult to understand.
At 2:18 p.m., WO #2 reported a man [now known to be the Complainant] had pointed and shot an imaginary rifle toward WO #2 on Ontario Street. A second police officer [now known to be the SO] said he was close by and was supplied with a clothing description of the Complainant. WO #2 reported they were out front of the Arden Park Motel and the next radio transmission was that WO #1 had arrived out front of the Romeo Café at 2:29 p.m. The Complainant was placed under arrest at 2:30 p.m. The rest of the radio transmissions dealt with trying to obtain information on the original (and different) name which the Complainant supplied to the police. In one transmission, the Complainant could be heard in the background making noises. The last communication indicated that the Complainant was taken to the police station at 2:37 p.m., and his rights to counsel were read.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the SPS:
- Case File Synopsis;
- Computer-assisted Dispatch (CAD) Details;
- E-mail regarding SPS Disclosure-OIPRD Complaint;
- General Order-Arrest, Cell Block and Prisoner Care and Control;
- General Order-Use of Force;
- Will says-WO #1 and WO #3;
- Notes-WO #1 and WO #2;
- PRIDE Subject Profile-the Complainant;
- Scanned Notes-WO #1 and WO #2;
- Scanned requested docs (split into separate documents);
- SPS Audio File;
- SPS Video File; and
- Scanned SGH medical documentation-the Complainant.
WO #2, the driver of the cruiser, saw the Complainant’s gestures and decided to speak with him. WO #2 performed a U-turn on the roadway, travelled east a short distance and parked his cruiser in the parking lot of the Best Western hotel. Joined by the SO, arriving in the area in his own cruiser, the officers approached the Complainant at the northwest corner of Ontario and Romeo Streets.
The Complainant fled from the police officers eastward across the intersection. He did so while traffic was still flowing north and south on a green light, and was almost struck by a minivan which came to an abrupt stop.
WO #2 and the SO followed the Complainant and reached him at the northeast corner of the intersection. When advised that he was under arrest, the Complainant objected verbally and then struggled with the officers as they grabbed hold of his arms. The SO punched the Complainant once to the abdomen before the officers jointly took the Complainant to the ground. The struggle continued on the ground as the officers were joined by WO #1, who interceded by attempting to control the Complainant’s legs. Two more punches were struck by the SO to the Complainant’s right torso, following which the Complainant was handcuffed and stood on his feet.
The Complainant was taken to the police station, charged with uttering threats, and released on an undertaking. He subsequently attended hospital later in the week and was diagnosed with two fractured ribs.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(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,
Analysis and Director's Decision
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 required or authorized to do by law. I am satisfied that there was an objective basis justifying the Complainant’s arrest for uttering threats contrary to section 264.1 of the Criminal Code. While I accept that the Complainant did not intend to follow through on his threat, his act of gesturing with his hands as if he were shooting WO #2 as WO #2 passed him on Ontario Street, coupled with the Complainant’s animus toward the police, establishes to my satisfaction that the Complainant’s conduct was no joke. It was his intention to convey a threatening message.
WO #2 did not perceive it as a joke. But whether he honestly believed there were grounds to effect the Complainant’s arrest for uttering threats is less clear. As R. v. Storrey,  1 SCR 241 makes clear, a warrantless arrest must be premised on a subjective belief that reasonable and probable grounds exist justifying the arrest, not merely that those grounds exist on an objective assessment of the circumstances. In the absence of such a subjective belief, the arrest is prima facie unlawful, as is any force applied in its aid. Some evidence suggests that the Complainant was never told he was under arrest for uttering threats. Rather, the evidence suggests the Complainant was informed by WO #2 that he was under arrest for “jaywalking”. Each of WO #2 and the SO indicate that the Complainant was clearly informed he was being arrested for uttering threats.
Contests in the evidence, be they questions of fact or law, are ultimately to be decided by a court of law where the competing pieces of evidence are tenable per se in the circumstances. In my view, the cogency of the suggestion raised in the aforementioned-evidence, namely, that the officers did not harbour a subjective belief that they were arresting the Complainant for uttering threats, falls short of being put to the test before a court. WO #2 had performed a U-turn on the road and subsequently approached the Complainant on foot because of the Complainant’s threatening gestures. In the circumstances, it would seem highly improbable that the WO #2 did not view the threatening behaviour as at least part of the reasons why the Complainant was being arrested.
With respect to the propriety of the force that was used against the Complainant, I am unable to reasonably conclude that it crossed the line into excessive force. According to multiple lines of evidence, the Complainant struggled physically to prevent the officers from securing him in custody. When a punch to the torso by the SO did not subdue the Complainant, he was taken to the ground. The takedown, which was not overly aggressive, was a reasonable tactic in my view as it would assist the officers in containing the Complainant’s resistance given their positional advantage. While prone on the ground, the Complainant refused to release his arms to be handcuffed and was met with two additional punches in the back by the SO. The punches, delivered in quick succession, would appear to have been a proportionate escalation in the force used by the SO given that the Complainant remained undeterred notwithstanding the earlier punch and takedown. Following the strikes on the ground, the officers were able to wrest control of the Complainant’s arms and handcuff them behind his back.
In the result, while I accept that the SO is likely responsible for breaking the Complainant’s ribs, there is insufficient evidence to reasonably believe the SO acted other than lawfully throughout the encounter. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Date: November 23, 2020
Electronically approved by
Special Investigations Unit
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.