SIU Director’s Report - Case # 20-PCI-123
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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 injury a 39-year-old man (the “Complainant”) suffered.
Notification of the SIUOn May 26, 2020, at 5:05 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant. The OPP reported that, at approximately 2:45 p.m. on this date, police officers from the Peterborough Detachment, as well as an Emergency Response Team (ERT) and Community Street Crime Unit (CSCU), attended a residence in Selwyn Township to execute a search warrant in a stolen property investigation. When they arrived, two males fled the residence in a vehicle. The vehicle was followed to County Road 4 near Television Road where it was stopped, and the two males were arrested.
After one of the males - the Complainant - was handcuffed, he fled on foot while being escorted to a cruiser. He was chased and brought to the ground. Following the arrest, he was taken to Peterborough Regional Health Centre (PRHC) where he was diagnosed with two fractured ribs on his left side.
The other occupant of the vehicle, identified as Civilian Witness (CW) #1, was arrested without incident.
The TeamNumber of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Complainant:39-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
Witness Officers (WO)WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
Subject Officers (SO)SO Declined interview and to provide notes, as is the subject officer’s legal right
The SceneThe incident occurred in the southbound lane, shoulder and ditch area of Television Road, south of County Road 4, in Peterborough County.
Video/Audio/Photographic Evidence The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.
Police Communication RecordingsThe radio communication recordings provided consisted of discussions between the Police Communications Centre (OPP Provincial Communications Centre ">PCC) and members of the OPP. It commenced at 1:29 p.m. and totaled 34 seconds in length.
WO #1 advised the OPP Provincial Communications Centre ">PCC that he had the Complainant in custody and was en route to the detachment. He had a start mileage of 24,395 and requested the assistance of a cell block guard upon his arrival.
WO #1 admitted there was an altercation and requested the assistance of an officer upon his arrival.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the OPP:
- Arrest Report;
- Disclosure Log forwarding cell video;
- General Occurrence Report;
- Notes-WO #2;
- Notes-WO #1;
- Notes-WO #3;
- Guard Medical Check Sheet;
- Prisoner Security Check and Custody Report;
- Cell Video;
- Global Positioning System Gate Data; and
- Communication Recordings.
Materials obtained from Other SourcesThe SIU obtained and reviewed the following records from non-police sources:
- Medical records from PRHC.
At about 1:15 p.m. on May 26, 2020, WO #2 and WO #1, in separate police vehicles, initiated a traffic stop of a Chevrolet Silverado in the southbound lane of Television Road south of County Road 4. The driver of the Silverado was the Complainant; his front seat passenger, CW #1. Acting on information provided by other officers who were investigating the Complainant for the theft of scaffolding, it was the intention of WO #2 and WO #1 to arrest the Complainant.
As the Complainant brought the Silverado to a stop, WO #2 positioned his vehicle directly behind the Silverado while WO #1 maneuvered his cruiser in front of the pickup truck at an angle. WO #1 exited and approached the Complainant to advise him he was being investigated for theft. Once out of the Silverado, WO #1 advised the Complainant that he was being arrested and tried to secure him in handcuffs. The Complainant resisted by attempting to pull away. With WO #2’s assistance, the officers grounded the Complainant on the roadway and handcuffed him in relatively short order.
Following his arrest, the Complainant was brought to his feet and escorted to WO #1’s vehicle. Once there, the Complainant freed himself from WO #1’s hold and ran toward the west side of the road jumping over an adjacent ditch. WO #1 ran after the Complainant, grabbed hold of him with both hands from behind and tackled him to the ground. The Complainant thrashed on the ground for a short time but was eventually subdued with the help of WO #2 and the SO, the latter arriving on the scene to assist in the arrest.
The Complainant was taken to the PRHC when he complained of pain to his ribs. At hospital, he was diagnosed with two minimally displaced left-sided fractures.
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
There are conflicting accounts in the evidence of the nature and extent of the force used on the Complainant after he was handcuffed. There is a version of events proffered in the evidence which suggests that after the Complainant was tackled to the ground by WO #1, the SO arrived, yelled at him about an assault he had allegedly perpetrated ten years ago, and began to jump up and down on his back, fracturing his ribs in the process.
In contrast, WO #2 says that he arrived in the grassy ditch to find the Complainant prone on the ground with WO #1 kneeling on his left side and the SO to his right. The latter had a knee on the back of the Complainant as he struggled before indicating that he was “done”. Similarly, after the Complainant was taken to the ground, says WO #1, the SO arrived and assisted in restraining him by placing a knee on his back.
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 accept that there was a lawful basis to arrest the Complainant in relation to a theft investigation. Officers conducting surveillance on the Complainant’s home had earlier that day observed the stolen items – scaffolding – against the side of the residence. The real question lies with the propriety of the force used by the officers.
If true, an account of the Complainant’s arrest suggests he was subjected to excessive force. In this version of events, the SO arrived shortly after he was grounded and started to jump up and down on his back with a knee while spewing about the Complainant’s alleged involvement in an assault that occurred years ago. As the Complainant was handcuffed at the time, it may be inferred on this record that the SO’s force was motivated by personal animus and not by any need to overcome the Complainant’s resistance.
There are, however, a number of significant frailties associated with this version of events Foremost among these is the degree to which the Complainant’s resistance to his arrest is underplayed. Thus, the account suggests that the Complainant started to run from WO #1 the moment he exited his pickup truck but fails to mention what is apparent on the weight of the evidence, namely, that he struggled with WO #1 and WO #2 prior to running toward the grassy ditch area and had to be taken to the ground. In similar vein, the account seems to conflate and confuse the two takedowns that occurred. For example, the claim is that there were only two officers who initially dealt with him on the grassy ditch area and that the SO was the third in arriving. WO #2 was in fact the second officer to assist in his arrest, but that was in relation to the first time the Complainant was grounded. As for the incident in the grassy ditch area, it appears that the SO was already with him by the time WO #2 arrived.
While I am mindful of the need for charging authorities to restrict their assessment of the strength of competing evidence to threshold considerations, I am not satisfied on the basis of the aforementioned difficulties that the outlying version of events is cogent enough to warrant being put to the test before a trier-of-fact. That analysis might be different if there were sufficient evidence capable of corroborating this story. However, the injuries he sustained are, in my view, as likely to have resulted from the force described by the witness officers. And there were other witness accounts inconsistent with this version of events.
I am left with a situation in which the Complainant was tackled to the ground by WO #1 and then kneed in the back by the SO as the Complainant thrashed on the ground for a period before he was subdued and lifted to his feet. It seems to me that the tackle was a tactic reasonably available to WO #1 in the circumstances. The Complainant had already made clear his intention of resisting arrest and was by then in full flight attempting to escape police apprehension.
More difficult to justify is the SO’s decision to forcefully place his knee on the Complainant’s back (in what I am satisfied was a continuous and unbroken application of force), particularly as it would have been clear to the officer that the Complainant’s hands were cuffed behind his back. That said, I accept that the Complainant was vigorously struggling with the officers while prone on the ground despite being handcuffed, and that the officers were within their rights in responding with a measure of force to promptly bring him under control. Considered in context, while perhaps at the upper end of what was appropriate force, I am satisfied on reasonable grounds that the SO’s conduct fell within the range of what was reasonably necessary force in the circumstances.
In the result, while I accept that the Complainant’s fractured ribs occurred when he was tackled by WO #1 and/or kneed by the SO, there are no reasonable grounds in my view to
believe that the officers acted other than lawfully throughout the exchange. 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
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.