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SIU Director’s Report - Case # 18-PCI-044

Contents:

News Releases for this Case:

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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.

Information restrictions

Freedom of Information and Protection of Personal 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. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • 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 the serious injury reportedly sustained by a 55-year-old man (the Complainant) during his arrest on January 25, 2018.

The Investigation

Notification of the SIU

At approximately 8:15 a.m. on February 16, 2018, the Ontario Provincial Police (OPP) contacted the SIU about a complaint that had been redirected to them from the Office of the Independent Police Review Director (OIPRD).

The OPP reported that on January 25, 2018, at about 10:25 p.m., a resident of a home in the City of Leamington flagged down a passing OPP cruiser and told the officers that the Complainant was inside the residence going berserk. OPP officers went into the residence and subsequently removed the Complainant. OPP officers also located several crack pipes with cocaine residue on the Complainant at the time and he was arrested and transported to the Leamington OPP detachment, where he was lodged in a cell.

Sometime later, the Complainant became restless and began acting up in the cell. The Complainant requested that Emergency Medical Services (EMS) attend, as he was suffering from drug withdrawal and wished to be taken to hospital. EMS was called; they attended and attempted to transport the Complainant to the hospital. The Complainant was released by the OPP at the hospital on the morning of January 26, 2018.

The Complainant subsequently filed a complaint with the OIPRD in which he alleged that the arresting officer, the SO, had punched him in the face fracturing his cheek bone.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0

Complainant:

55-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed
CW #2 Not Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed

Police Employee Witness

PEW #1 Interviewed, notes received and reviewed

[Note : A police employee witness is an employee of a police force who is not a police officer, such as a special constable, who, in the opinion of the SIU Director, is involved in the incident under investigation.
 
Police employees witnesses have a duty to cooperate with the SIU pursuant to the Police Services Act. Upon request by the SIU, police employee witnesses are required 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

The SO Interviewed, notes received and reviewed


Incident Narrative

On January 25, 2018, the Complainant was at a known drug house in the City of Leamington. The tenant at the residence, Civilian Witness (CW) #1, knew that the Leamington OPP were always in the area keeping an eye on his residence, so he went outside and waved down an OPP vehicle which was travelling nearby. Subsequently the Subject Officer (SO), Witness Officer (WO) #1, and Police Employee Witness (PEW) #1 attended the residence.

CW #1 complained to police that the Complainant had forced his way into the residence and was causing a disturbance. The Complainant was subsequently arrested for breach of the peace and taken to the Leamington OPP Detachment. When the Complainant was being booked into the cells, he showed no signs, nor did he make any complaint, of any injury.

While in the cells at the detachment, CW #2 was also lodged in the cells near the Complainant and the two traded insults and threatened each other.

After being processed, the Complainant asked for medical attention for his withdrawal symptoms, as he had not had his methadone in a few days. The EMS arrived but refused to take him to the hospital, because he was being belligerent with them, they did not dispense methadone, and they were not a transportation service. OPP members took the Complainant to the hospital for his withdrawal symptoms in the early morning hours of January 26, 2018, and he was provided with some medication and released. On that occasion, the Complainant did not indicate that he had sustained any injury, nor was any injury observed.

On January 27, 2018, the Complainant again attended the hospital, this time complaining that his cheek was swollen and painful as a result of being assaulted by a party known to him at approximately 1:00 p.m. on that date, but that he did not wish to report the matter to police. He was treated and released.

Subsequently, the Complainant filed a complaint with the OIPRD, alleging that his cheek had been injured by the SO during his arrest on January 25, 2018.

Nature of Injuries / Treatment

There were two visits recorded in the Complainant’s medical records, the first being when he was transported to hospital by the OPP on the morning of January 26, 2018, to be treated for his withdrawal symptoms. The second was when the Complainant attended on his own on January 27, 2018. The records revealed the following:


 Visit

The Complainant entered the hospital at 1:39 a.m. on January 26, 2018. He was brought in by WO #1 and WO #2. The Complainant complained of withdrawal symptoms (from drugs). Since the hospital does not dispense methadone, the Complainant was given two
medications to assist him with the withdrawal symptoms, and he left at about 1:51 a.m. on


his own. While the records reveal that the Complainant indicated some issue with his right cheek as a result of having received a blow to the area, the notes indicate that nothing was seen.


Second Visit

The Complainant walked into the hospital at about 1:56 p.m. on January 27, 2018. The Complainant complained of swelling and pain to his left facial area, and swelling was observed by medical staff. The Complainant indicated that he had been assaulted at about 1:00 pm that same day. The Complainant indicated that he knew the other party he had the altercation with but did not want to contact the police. The Complainant’s face was X-rayed and it was discovered that he had sustained an “acute transverse fracture mid left zygomatic arch and anterior left maxillary sinus wall.” The X-rays also revealed a, “Suspected old fracture right zygomatic arch.”

Evidence

The Scene

As the matter was not reported to the SIU until almost three weeks after the incident, there was no longer any scene capable of providing any relevant information.

Other Evidence

Occurrence Report: January 27, 2018 1:20 p.m.:

During the interview of CW #1, new information was introduced about the Complainant having an altercation with a man, CW #2, after his arrest on January 25, 2018. As a result of this information, SIU investigators requested all the occurrence reports involving the two men from the OPP and a report from January 27, 2018 was located, which revealed that on that date, at about 1:20 p.m., there was a ‘disturb the peace’ call for a fight at the Rexall Pharmacy located on 33 Princess Street. An OPP officer attended and spoke with CW #2, who stated that he and the Complainant had been involved in a consensual fight. Neither party wished to pursue charges and would not cooperate with police, as a result of which no charges were laid.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Cell Video

On January 25, 2018, at about 10:38 p.m., WO #1 was in the sally port of the OPP Leamington detachment. WO #1 escorted the Complainant out of the left rear passenger seat of the police vehicle; the Complainant was in handcuffs. He had no visible facial injury. The Complainant was brought to the booking desk and processed by WO #4.

At about 10:41 p.m., the SO searched the Complainant. WO #1 was present, along with PEW #1 and WO #4. At about 10:46 p.m., the Complainant was placed into a cell.

At about 10:28 p.m., another man, believed to be CW #2, was processed and brought to a cell.

At about 1:21 a.m., on January 26, 2018, a paramedic can be seen speaking to the Complainant, who was still in his cell. She spoke to the Complainant through the cell bars. After a short time, the paramedic left. At about 1:25 a.m., the Complainant was taken out of his cell, and taken to the hospital by the OPP.

Communications Recordings

Police Transmissions Communications Recording: January 25, 2018

At about 10:27 pm, the SO advised dispatch that he and WO #1 would be attending a residence in the city of Leamington. Dispatch contacted the two officers to ask how familiar they were with “the male party.” An OPP officer responded “very familiar.”

At about 10:34 p.m., WO #1 indicated that he was transporting an arrested party to the detachment. The SO advised dispatch that the Complainant was arrested for causing a disturbance and breaching the peace.

At about 1:34 a.m., on January 26, 2018, an OPP officer advised that he was transporting the Complainant to hospital.


Telephone Calls: January 26, 2018

At about 1:13 a.m., WO #3 contacted the OPP Provincial Communications Centre (PCC) to have them request an ambulance for the Complainant for methadone withdrawals. The PCC contacted the ambulance service to attend the Leamington OPP detachment.

At about 1:35 a.m., the SO answered a telephone call from the PCC. An unknown female asked, “What’s going on with (the Complainant)?” The SO responded “He’s losing his shit,” and that he was, “Going through methadone withdrawals and shit.”

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP Leamington Detachment:

  • Arrest Report with Charge;
  • Event Details Report;
  • Cells Video;
  • Police Transmissions Communications Recording;
  • Recordings of telephone calls to OPP Detachment;
  • Notes of WO #s 1-4, the SO, and PEW #1;
  • Occurrence Details from 01Jan to 17 Feb, 2018;
  • OPP Photo of the Complainant;
  • OPP Leamington Log On Sheet with call signs for 25 Jan 2018;
  • Prisoner Custody Report; and,
  • Promise to Appear for the Complainant.

The SIU obtained and reviewed the following materials and documents from other sources:

  • Medical Records of the Complainant from January 26 and January 27, 2018 (two separate visits), obtained with consent.

Relevant Legislation

Section 31(1), Criminal Code -- Arrest for breach of peace

31 (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.

Section 4(1), Controlled Drugs and Substances Act -- Possession of substance

4 (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.

Section 2(1), Trespass to Property Act -- Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Section 9 (1), Trespass to Property Act – Arrest without warrant on premises

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

Analysis and Director's Decision

On January 25, 2018, the Subject Officer (SO) was on patrol and in uniform in the area of a known drug house in the city of Leamington, when he was flagged down by Civilian Witness (CW) #1, a tenant of the residence. CW #1 advised the SO that the Complainant was in his (CW #1’s) residence, was causing a disturbance, and that CW #1 had told him to leave, but the Complainant had refused to do so. Shortly thereafter, the SO was joined by Witness Officer (WO) #1 and Police Employee Witness (PEW) #1, and the three officers, along with CW #1, entered the house. Thereafter, the Complainant was arrested for breaching the peace and for being in possession of illegal narcotics, and was taken to the OPP detachment where he was later released on an Appearance Notice and then transported by the police to the hospital, as he was suffering from withdrawal symptoms from methadone.

Two days later, the Complainant again went to the hospital, where he had his facial area X-rayed and it was discovered that he had sustained an “acute transverse fracture mid left zygomatic arch (cheek bone) and anterior left maxillary sinus wall.” Thereafter, the Complainant filed a complaint with the OIPRD, which was forwarded to the OPP as it involved a serious injury, and the OPP then notified the SIU on February 16, 2018, and an investigation was launched.

The Complainant alleges that when he was arrested by the SO on January 25, 2018, the SO pushed him face first into the refrigerator at the known drug house in the city of Leamington, following which he was handcuffed and searched. He further alleges that the SO then turned the Complainant around and punched him in the face. The Complainant alleges that when the police later took him to the hospital, he was diagnosed with a fracture to his cheekbone.

During the course of this investigation, one CW, in addition to the Complainant, was interviewed, along with four police witnesses and the SO. The video from the cells at the OPP Detachment during the time that the Complainant was housed there was also provided and reviewed, and, with the Complainant’s consent, the SIU reviewed the Complainant’s medical records from January 25 and 27, 2018. The preponderance of the evidence contradicts the allegations made by the Complainant, and I find that his evidence does not satisfy me that there are reasonable grounds to believe that he was ever punched by the SO, or that he sustained any injury as a consequence of his arrest on January 25, 2018. The following facts were garnered based on all of the reliable evidence obtained during the investigation, and with the exception of the evidence of the Complainant, all of the evidence leads to the same conclusion, which follows.

On January 25, 2018, the Complainant was in the residence of CW #1 causing a disturbance and refused to leave when told to do so by CW #1. As a result, CW #1 went out and flagged down a police car, driven by the SO, and requested assistance in having the Complainant removed from his home. Pursuant to s. 2 of the Trespass to Property Act (TPA), it is an offence to refuse to leave a premises when requested to do so by the lawful occupants, and, pursuant to s. 9 (1) of that same act, a police officer may arrest any person, without warrant, who he has reasonable and probable grounds to believe is in breach of s.2.

After CW #1 informed the SO about the Complainant’s refusal to leave CW #1’s residence, that the Complainant was causing a disturbance in his home, and that CW #1 authorized the police to remove the Complainant from his residence, the SO, along with WO #1 and PEW #1, entered the residence. In the presence of CW #1, the SO told the Complainant to leave the property, and when the Complainant still refused, the SO and WO #1 put the Complainant up against the refrigerator and handcuffed his hands to the rear of his body. Thereafter, the Complainant was searched and three pipes suspected for the use of smoking cocaine were located, and the Complainant was arrested in order to prevent a breach of the peace (s. 31 of the Criminal Code) and possession of a controlled substance (s. 4(1) of the Controlled Drugs and Substances Act).

At no time during the arrest was the SO ever observed by any of the three witnesses, including the one civilian witness who had a clear and unobstructed view, to strike the Complainant.

The Complainant was then transported to the OPP detachment in WO #1’s police vehicle. During the booking in process, at no time were any injuries noted to the Complainant, nor did he complain of being injured. He did, however, during a cell check by WO #3 at approximately 11:00 p.m., scream and yell about having been punched in the back of the head when he was arrested and that he wished to have the SO criminally charged. As a result of this allegation, WO #3 double-checked to ensure that the Complainant did not have any injury, and none was observed, nor did the Complainant complain of any injury.

At approximately 1:13 a.m., the Complainant was heard to be yelling and was kicking at the cell bars, indicating that he required an ambulance as he was suffering from withdrawal symptoms and needed methadone. When the EMS paramedics arrived, and observed no injury to the Complainant, they would not transport him to hospital. However, in order to allow the Complainant to get some assistance in respect of his withdrawal symptoms, the OPP released the Complainant on an Appearance Notice to attend court on a later date, and then transported him, in a police vehicle, to the hospital.

The medical records indicate that the Complainant was seen at the hospital at 1:42 a.m. on January 26, 2018, complaining that he was suffering from methadone withdrawal symptoms. The Complainant’s records also indicate that he made a complaint that he had received a blow to his right cheek, however the records also indicate that nothing was seen upon examination and the doctor recommended he follow up at a later time with an X-ray. Under ‘Final Diagnosis’ is indicated that the Complainant suffered from drug withdrawal and under ‘Condition on Discharge’ is indicated ‘Stable’. The Complainant then left the hospital and went on his way.

A police occurrence report, filed on January 27, 2018, indicates that a 911 caller reported a fight outside of the Princess Centre at 1:20 p.m. on that date. The occurrence report indicates as follows:

Police attended and spoke with the male invovled (sic) in fight (name vetted out). Advised consensual fight between himself and the Complainant. Declined to lay charges and cooperate with police. NFA (no further action) from police.”

The police officer involved in this occurrence was unrelated to any officer involved in the SIU investigation from January 25.

The Complainant’s medical records note that the Complainant returned to hospital on January 27, 2018 at 2:15 pm where he, the Complainant, advised as follows:

Pt (patient) physical altercation @ 1pm. 1 person involved. Knows individual but does not wish to contact police. No weapons. No LOC (loss of consciousness). Injured face and left leg.

And later in the notes:

Involved in altercation this am. States was struck in face with fist this am. + bruising to left orbit and cheek.

And under Triage notes:

Admits to being assaulted at this hour; has swelling to left facial area …

Included in the observations by medical staff, are that the Complainant had intraorbital and mandibular swelling on the left side of his face.

Thereafter, the Complainant’s face was X-rayed and revealed that he had an:

Acute transverse fracture mid left zygomatic arch and anterior left maxillary sinus wall. Suspected old fracture right zygomatic arch.

In the final notes from January 27, 2018, medical staff has indicated under the heading ‘Reassessment’, “Asked for pain mgmt. Verbally abusive. Threatened and left ED (Emergency Department) on free will.” Under ‘Final Diagnosis’ is indicated, “Zygomatic fracture.”

While I do not wish to speculate, this case leaves me pondering about the accuracy of the following facts: the Complainant initially complained to WO #3 that he had been assaulted by the SO, who he alleged had punched him in the back of the head; he then attended hospital and alleged he had been struck on the right side of his face; and then, finally, he was involved in a consensual fight in which he was apparently injured to the left side of his face, following which he then filed a complaint with the OIPRD alleging that he had been punched in the face by the SO resulting in his cheek being fractured.

I have further misgivings related to the fact that the X-rays taken on January 27, 2018 revealed an old healing fracture to the right cheek bone, where the Complainant had originally claimed that he had been struck in the face apparently by the SO. Whether the Complainant had hoped to exploit a previous injury to his right cheek bone, or whether he was purposely involved in a consensual fight with another male in order to be able to allege that he had been injured by the SO, is beyond the scope of this investigation, but I believe the inferences are clear.

Finally, I find it suspicious that in his interview with SIU investigators, the Complainant at no time mentioned that he had been involved in a consensual fight with this other male, wherein he had been punched in the face and his cheekbone was fractured.

I find that it is abundantly clear, based on the evidence of the independent CW, CW #1, as well as the two police witnesses, that at no time did the SO punch or strike the Complainant in anyway.

Furthermore, I find that it is equally clear from the medical records that the Complainant’s cheekbone was only fractured two days after his encounter with the SO, when he was involved in a fight with a second male. This fact is further confirmed by the evidence of CW #1, who saw the Complainant a couple of days after his arrest on January 25 and observed his face to be swollen. When CW #1 asked the Complainant what had happened, the Complainant told him that he had been in a fight with “a guy”, whose first name he provided. When CW #1 then later spoke to “that guy” in person, “the guy” admitted to him that he had fought the Complainant, had hit him twice, and had knocked him out.

The fact that the Complainant’s injury occurred after his encounter with “this guy” is supported as well by the following facts: no officer who observed the Complainant following his interaction with the SO observed him to have any injury, nor did the Complainant make any complaint to the booking officer of any injury; the medical records of January 25, 2018, indicate that the Complainant had no apparent injury to his face; and, the medical records of January 27, 2018, indicate that the Complainant’s face was only first seen to be swollen on that date, when he advised medical staff that his injury was as a result of an altercation in which he had been involved within the previous hour with a male known to him. As indicated earlier, while I would not wish to speculate as to the motives of the Complainant in making an obviously false allegation against the SO, it is clear, based on the overriding credible evidence, that the SO at no time punched the Complainant, as alleged, nor did the Complainant sustain any injury from his interaction with the SO.

In conclusion, the evidence of the Complainant is neither credible nor reliable. The reliable evidence overwhelmingly satisfies me that at no time did the SO resort to an excessive use of force as against the Complainant, nor did he cause the Complainant any injury, thus I lack the grounds for the laying of criminal charges and none shall issue.


Date: December 6, 2018


Original signed by

Tony Loparco
Director
Special Investigations Unit