SIU Director’s Report - Case # 20-PCI-147
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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 an injury a 48-year-old man (the “Complainant”) suffered.
Notification of the SIUOn June 23, 2020, at 6:00 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant and provided the following information.
On June 23, 2020 at 4:00 p.m., OPP police officers responded to a family dispute between a mother and son in Englehart. When a police officer arrived, the Complainant elbowed the police officer in the chest. The police officer chose to arrest the Complainant for assault police and a struggle ensued. During the arrest, the police officer deployed pepper spray. When another police officer arrived, the Complainant was successfully handcuffed with some use of force. Emergency Medical Services (EMS) were requested and attended. The Complainant was taken to the hospital where he was diagnosed with a minor concussion. The Complainant was released from hospital back into police custody.
The TeamNumber of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Complainant:48-year-old male interviewed, medical records obtained and reviewed
Civilian Witnesses (CW)CW #1 Interviewed
CW #2 Interviewed
Witness Officers (WO)WO #1 Interviewed, and notes received and reviewed
WO #2 Interviewed, and notes received and reviewed
Subject Officers (SO)SO #1 Interviewed, and notes received and reviewed
SO #2 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.
The SceneThe scene was a residence in Englehart. The scene was not held and as a result no scene examination was done.
Video/Audio/Photographic Evidence The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following sources:
- Cell phone video filmed by the Complainant’s girlfriend.
Cell Phone Video Filmed by the Complainant’s Girlfriend
At 3:48 p.m., the video commenced. The video was recorded from the driver’s seat of a parked pickup truck or cargo van. The interaction occurred on the front lawn of a small residence. The camera was at times pointed away or down. Consequently, it did not record video every second of the interaction but did record audio the entire time.
A police officer [now known to be SO #1] and a female paramedic [now known to be CW #1] were struggling with the Complainant. They were all standing. They were close to the passenger side door area of a large black SUV (unmarked police vehicle), which was parked in the driveway. The Complainant was facing the police cruiser. SO #1 was on the left side of the Complainant and CW #1 was on his right side. The Complainant was wearing jeans, dark-coloured shoes and a black jacket over a plaid shirt. He was holding a brown envelope.
The Complainant’s girlfriend yelled, “Babe. Stop.” SO #1 was attempting to take the Complainant to the ground by rotating the Complainant counterclockwise while telling the Complainant to get on the ground. The Complainant went to the ground on the grass at a distance of what appeared to be about two metres from the front passenger side wheel of the police cruiser. SO #1 reached for his duty belt, presumably for his handcuffs.
CW #1 remained standing and let go of the Complainant. The Complainant was lying on his right side when SO #1 told the Complainant to give him his hand and attempted to gain control of the Complainant’s left arm. The Complainant would not release his arm. CW #1 knelt down and put one hand on the Complainant’s back. The Complainant yelled that the SO #1 had no reason to arrest him. SO #1 directed the Complainant to give him his hand a second time and told the Complainant to stop resisting. With his left knee, SO #1 delivered four strikes to the chest and left side of the Complainant’s torso where the Complainant’s arms were. The strikes were not particularly forceful. Each time he delivered a knee strike, SO #1 told the Complainant to stop resisting. The Complainant’s girlfriend yelled at him to stop. The Complainant yelled that he was not resisting. SO #1 delivered a fifth similar knee strike. The Complainant would not give up his hands.
SO #1 told the Complainant to put his hands behind his back. CW #1 told the Complainant he was not listening to SO #1. As the Complainant lay on the ground with SO #1 kneeling beside him, SO #1 repeatedly told the Complainant to stop resisting and to put his hands behind his back. The Complainant did not comply.
SO #1, the Complainant and CW #1 remained in the same position for about two minutes as the Complainant squirmed around and refused to comply with SO #1’s directions. SO #1’s police radio microphone could be heard clicking open. The Complainant questioned the merits of his arrest.
At 3:51 p.m., the Complainant squirmed around and managed to get to his knees. SO #1 held the Complainant down on his knees. The Complainant yelled for his girlfriend to come and get his lighter. She got out of the truck, retrieved something and then went back inside the truck, all with the camera still recording.
At 3:53 p.m., the Complainant struggled to stand up and yelled that he required medical attention. CW #1 attempted to reason with the Complainant. SO #1 repeatedly told the Complainant to stop resisting and put his hands behind his back.
At 3:55 p.m., the Complainant squirmed around and got to his feet yelling that he could not breathe. The Complainant walked towards his girlfriend in the truck and she yelled at him to stop. SO #1 drew his conducted energy weapon (CEW) and pointed it at the Complainant. SO #1 asked him if he wanted to be “tased” and ordered the Complainant to get on the ground. The Complainant did not comply and removed his jacket. The Complainant’s girlfriend told the Complainant not to do anything stupid. A siren was heard in the background.
At 3:55 p.m., the Complainant knelt down on the grass as if he was about to comply with the directions from SO #1. As the siren got closer, SO #1 told the Complainant to put his hands behind his back. The Complainant did not comply. The camera was pointed into his girlfriend’s lap. She cried, “Oh my God,” and there were the sounds of a struggle.
The camera came up a few seconds later. The Complainant was on the ground in the area of the walkway, shirtless, laying on his left side. SO #1 and a second police officer [now known to be SO #2] were struggling with the Complainant attempting to put the Complainant’s hands behind his back. SO #2 threw a right-handed punch but it was unclear whether the strike connected with anything. SO #1 had both his hands on the Complainant’s right arm attempting to put it behind the Complainant’s back. The Complainant rolled onto his stomach and SO #1 straddled the Complainant’s torso around the Complainant’s waist. SO #1’s head was above the Complainant’s head. SO #1 continued to tell the Complainant to put his hands behind his back and stop resisting. The Complainant did not comply. The Complainant’s girlfriend pointed the camera inside the truck and turned it off. At 3:56 p.m., the recording ended.
Police Communications RecordingsThe OPP communication recordings received were made on June 23, 2020 and captured the following:
At 2:34 p.m., a woman was connected to the OPP Provincial Communications Centre (PCC). She was difficult to understand. She was upset and crying saying she did not want her son [now known to be the Complainant] at her home. She begged the OPP communicator for police assistance. The telephone call was about nine minutes in duration.
At 2:39 p.m., SO #1 was dispatched. SO #1 was told by the PCC that the Complainant was not present at the residence.
At 2:59 p.m., SO #1 told the dispatcher that he was on scene and everything was okay.
At 3:25 p.m., SO #1 requested an ambulance to attend.
At 3:26 p.m., the OPP PCC called the North Bay Central Ambulance Communications Centre (CACC) and requested an ambulance. SO #2 responded to the call.
At 3:46 p.m., SO #1 requested that SO #2 expedite his response to the scene. SO #2 requested transmissions on the police radio be limited. An “open microphone” on a police radio and heavy breathing were heard on at least one occasion.
At 3:51 p.m., a paramedic [now known to be CW #1] asked the North Bay CACC dispatcher for the ETA of SO #2.
At 3:56 p.m., SO #2 was on scene.
At 3:57 p.m., the Complainant was in custody. Paramedic CW #2 called her dispatcher to retrieve some “times” and relayed what she had observed at the scene.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the OPP:
- Call Details Report;
- Communications recordings;
- Notes-SO #1;
- Notes-WO #2;
- Notes-SO #2;
- Notes-WO #1;
- Event Details;
- Witness statement-CW #2; and
- Witness statement-CW #1.
Materials obtained from Other SourcesThe SIU obtained and reviewed the following records from non-police sources:
- Ambulance Call Centre Log;
- Disclosure Log-North Bay CACC;
- Medical Records-the Complainant;
- North Bay CACC Emergency Alarm Button Activation Report;
- North Bay CACC Emergency Occurrence Report;
- North Bay CACC Incident Report (x2); and
- Cell phone video taken by the Complainant’s girlfriend.
At about 2:30 p.m. on June 23, 2020, the Complainant’s mother contacted police. While crying and distraught, his mother indicated she wanted her son out of her home and sought police assistance. SO #1 was dispatched to the address.
SO #1 arrived at the scene – a residence in Englehart – at about 3:00 p.m. He spoke with the Complainant’s mother inside the home. She told the officer that her son was trying to take her home and put her in a nursing home. The Complainant’s mother wanted her son and his belongings out of the house. SO #1 noticed that the Complainant’s mother was behind in her medication. Concerned for her well-being, the officer asked that paramedics attend the scene.
The Complainant arrived at the residence in the company of his girlfriend and SO #1 stepped out to meet him. The Complainant told the officer he was his mother’s power of attorney and there to check on her as she was developing dementia. They were soon joined in front of the home by the arriving paramedics – CW #1 and CW #2. As the paramedics attempted to speak with SO #1, they were repeatedly interrupted by the Complainant’s interjections. The Complainant was asked to keep quiet so that SO #1 could provide a proper briefing.
Shortly after 3:30 p.m., SO #1, the paramedics and the Complainant made their way into the house. The paramedics met with the Complainant’s mother in the kitchen and tried to complete an assessment. Again, they were continually interrupted by the Complainant. He was angry with the health system for the way they had recently treated him and his mother, and was venting his frustrations on the paramedics. SO #1 intervened and asked the Complainant to leave the residence. The Complainant refused indicating he would not leave his mother’s home and had a right to be there. SO #1 took hold of the Complainant and attempted to escort him out of the house. The Complainant resisted but eventually exited through the front door.
Once outside the home, the Complainant was told by SO #1 that he was under arrest. He objected to his arrest and pulled away as the officer took hold of his left arm. The parties continued to grapple on their feet for a period and made their way over to the passenger side of SO #1’s SUV, which he had parked on the front lawn of the residence. SO #1 repeatedly told the Complainant to stop resisting and then discharged a burst of oleoresin capsicum spray at him. The officer continued to struggle with the Complainant after the discharge and was soon aided by CW #1. Together, they were able to force the Complainant onto the front lawn.
Once on the ground, SO #1 delivered four knee strikes in the direction of the Complainant’s upper left side. He continually screamed at the Complainant to stop resisting and put his hands behind his back. The Complainant continued to question why he was being arrested, refused to surrender his arms to SO #1, and struggled against the officer’s efforts. At one point, the Complainant complained that he could not breathe as the two continued to wrestle. He was assured by CW #1, who had a taken a step or two away from the altercation, that there was nothing restricting his breathing. After several minutes of grappling, the Complainant and SO #1 were winded. The Complainant was, however, able to throw off the officer and make it onto his feet.
SO #1 also regained his footing, drew his CEW and pointed it at the Complainant. The Complainant removed his jacket and proceeded to sit on his knees. The officer screamed at him to place his hands behind his back but he refused.
Within seconds of the Complainant dropping to his knees, SO #2 arrived on scene. The officer rushed to the front lawn and tackled the Complainant. SO #1 joined in the fray as the Complainant continued to struggle against the officers. Following several punches to the Complainant’s head by SO #2, the officers were able to take control of his arms and secure them in handcuffs behind his back.
After his arrest, the Complainant was taken to hospital by police. He was assessed by a doctor, diagnosed with a concussion and prescribed pain medication.
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 authorized or required to do by law. I am satisfied that SO #1 and SO #2 acquitted themselves within the limits of justifiable force.
At the outset, there is insufficient evidence, in my view, to reasonably conclude that the Complainant’s arrest was unlawful. SO #1 was within his rights to ask the Complainant to leave the residence. The Complainant was not only being a nuisance, his belligerence was escalating and he was actively interfering with the paramedics’ ability to assess his mother. The officer would also have known that the Complainant’s mother, the owner of the home, wanted the Complainant out of the house. Indeed, that was the reason she had called police in the first place. In the circumstances, when the Complainant refused to leave the house, SO #1 was entitled to force the issue. SO #1 says he did so to prevent a breach of the peace but I am also satisfied that the officer derived authority from concerns that were at the same time associated with his duty to preserve life and enforce the trespassing laws.
The weight of the evidence indicates that the Complainant scuffled with SO #1 inside the home attempting to prevent his ouster. When that occurred, the officer had further grounds to arrest the Complainant for resisting arrest.
Thereafter, the evidence establishes that SO #1 and SO #2 used reasonable force to take the Complainant into custody. The video evidence is dispositive in this regard. It depicts a protracted struggle by the Complainant against the SO’s efforts to arrest him. While the Complainant does not strike or lash out at the officer, he doggedly refuses to release his arms to be handcuffed. Even after he was pepper sprayed and taken to the ground by SO #1, the Complainant persists and is even able after a period to throw SO #1 off and get to his feet. Within seconds of doing so, the Complainant does get down to his knees but it remains clear that he has no intention of placing his arms behind his back; despite SO #1’s multiple demands that he do so, the Complainant refuses. It is at this time that SO #2 arrives at the scene. He knows that his colleague has been involved in a lengthy struggle - he was responding to a request for assistance by SO #1 and had heard him breathing heavily over the radio – and moves quickly to tackle the Complainant. Again, the Complainant fights back on the ground, squirming and refusing to surrender his arms but is quickly overpowered by SO #1 and SO #2, the latter delivering several punches to the head, and handcuffed. No further hostilities are exchanged. On this record, I am satisfied on reasonable grounds that the officers’ force was proportionate and commensurate at all times with the Complainant’s formidable physical resistance.
In the final analysis, while I accept that the Complainant’s concussion occurred at some point during the physical altercation with the police, perhaps as SO #2 punched him, the officers acted lawfully throughout the incident. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Date: February 8, 2021
Electronically approved by
Special Investigations Unit
- 1) Despite multiple attempts, the SIU was unsuccessful in its efforts to contact her. [Back to text]
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.