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SIU Director’s Report - Case # 18-PCI-133

Contents:

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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 a serious injury sustained by a 32-year-old man.

The Investigation

Notification of the SIU

On April 28, 2018, at 10:30 a.m., the Ontario Provincial Police (OPP) reported that on April 28, 2018, at 5:00 a.m., police officers stopped a vehicle on Chemong Road, Peterborough for possible impairment. The driver was arrested for impaired driving. The passenger, the Complainant, was arrested for public intoxication. He resisted arrest and as a result, he received an injury to his eye. He was taken to the Peterborough Regional Health Centre (PRHC) and diagnosed with a fractured orbital bone.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed

Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The arrest of the Complainant occurred on the north side of Summerhill Drive a short distance west of Chemong Road, Peterborough. The area is primarily residential single family homes and there is next to no artificial lighting in the immediate area. The scene was not held by police. The area of the scene was examined by SIU investigators. No CCTV cameras were located in the area and no civilian witnesses identified.

Video/Audio/Photographic Evidence

Sally Port Video:

Video of the sally port at the OPP Peterborough Detachment was received and reviewed.

At 2:39 a.m., a black coloured unmarked Ford Taurus OPP vehicle enters into the garage sally port area and parks. WO #2 is the operator of this police vehicle and WO #1 is the passenger. The Complainant is under arrest seated in the rear seat area.

At 2:52 a.m., the Complainant gets out of the rear passenger side on his own accord and has handcuffs on both wrists to the back. WO #1 conducted a search of the Complainant and at 2:53 a.m., he is assisted back into the rear seat area of the police vehicle. The Complainant was compliant the entire time the search was conducted and there is no use of force utilized by any police officers present in the sally port garage. The video does not show any injury sustained to the left eye of the Complainant as a result of the interaction with the SO earlier.

At 2:54 a.m., the overhead bay door opens and the OPP vehicle reverses out from the garage and the door closes.

Communications Recordings

The communication recording is six minutes and nine seconds in duration.

At 2:12 a.m., the SO tells the OPP dispatcher that he has a person in custody for impaired and he will need a breath tech at the Peterborough Detachment.

At 2:15 a.m., the SO tells the dispatcher he needs another unit because he has another person in custody there now. Shortly after, he requests another unit sooner than later.

At 2:19 a.m., the dispatcher checks on the well-being of the SO who says he has the man in custody and there is loud yelling from a man’s voice in the background.

At 2:28 a.m., WO #1 and WO #2 are en route to the Peterborough Detachment with the Complainant in custody and he is yelling very loudly in the background.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP and the Peterborough Police Service (PPS):
  • Duty Roster;
  • Event Details;
  • Notes of WO #1, WO #2, WO #3, WO #4, and WO #5;
  • PPS Duty Roster;
  • PPS Occurrence Summary;
  • Procedure - Arrest;
  • Procedure - Use of Force; and
  • Training Record of the SO, WO #1 and WO #2.

Incident Narrative


On April 28, 2018, shortly after 2:00 a.m., the SO stopped and arrested the CW for impaired driving. The CW’s passenger, the Complainant, exited the vehicle and began to handle property seized from the CW that was on the hood of the vehicle. The SO directed the Complainant to stop what he was doing but the Complainant refused and became belligerent. The SO arrested the Complainant for public intoxication and obstruction, and in the process took him to the ground. The Complainant was later diagnosed with a fractured orbital bone.

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


The Complainant was arrested for obstructing a police officer in the course of his duties and public intoxication in the early morning hours of April 28, 2018 in Peterborough. He was subsequently taken to PRHC where he was diagnosed with a fractured orbital bone. For the reasons that follow, I am satisfied there are no reasonable grounds to believe the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

I have little doubt that the Complainant’s arrest was lawful. He had been drinking heavily and was clearly inebriated when the vehicle he was in was pulled over by the SO shortly after 2:00 a.m. of the day in question. Following the driver’s (CW) arrest for impaired driving, the Complainant exited the vehicle and began to handle property that had been seized from the CW and placed on the vehicle’s hood. The SO cautioned him to stop what he was doing and then moved in to arrest the Complainant when he persisted. The officer was within his rights in so doing.

The real issue is whether the SO used excessive force in effecting the Complainant’s arrest. This question is made difficult by the lack of a reliable record of what precisely transpired in the course of the officer’s interaction with the Complainant. As was his right, the SO declined to provide a statement to the SIU or to authorize the release of his notes. There was some evidence that the Complainant was grounded by the SO and, while on the ground, was kneed in the left eye and punched four times to the back of the head though he offered little in the way of resistance; however, this evidence does not come from a trustworthy source and is contradicted by other evidence. As for the injury the Complainant suffered, while it lends some credence to the notion that force was used against the Complainant, it is of little assistance in determining whether the injury occurred as the result of the alleged grounding or knee strike.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonable necessary in the execution of a lawful duty. Assuming for the moment that the Complainant was kneed and punched, I am not certain that this force fell outside the range of what was reasonably necessary in the circumstances. As the case law makes clear, officers are not required to measure their responsive force to a nicety; what is required is a reasonable response, not a perfect one: R. v. Nasogaluak, 2010 SCC 6; R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). Alone and confronted with a belligerent, defiant and inebriated individual who had given every indication that he would not cooperate with the police in his arrest, it may well be that conduct of this nature was a legitimate use of force in the circumstances that prevailed at the time. In making this observation, it strikes me as implausible that the Complainant offered little if any resistance given his truculent behaviour just prior to his arrest. Be that as it may, the bigger problem, in my view, is with the veracity of the evidence suggesting the Complainant was kneed and punched. Thus, while I accept that the evidence in total is sufficient to establish that the SO intentionally grounded the Complainant, I am not persuaded that there are reasonable grounds to believe the Complainant was kneed and then punched on the ground given the aforementioned frailties associated with that version of events. In the result, I am unable to reasonably conclude that the Complainant’s grounding, without anything more, constituted excessive force in the circumstances.

In the final analysis, I am of the view for the foregoing reasons that it would be unwise and unsafe to proceed with criminal charges based solely on evidence that I do not believe is credible or reliable.

Date: April 29, 2019



Joseph Martino
Acting Director
Special Investigations Unit