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SIU Director’s Report - Case # 18-OCI-128

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 39-year-old man.

The Investigation

Notification of the SIU

On April 24, 2018, at 11:40 p.m., the Ottawa Police Service (OPS) contacted the SIU to report an injury to the Complainant. 

The OPS advised that on April 24, 2018, at approximately 4:49 a.m., OPS officers responded to a residence in Kanata regarding a man armed with a knife stalking his ex-partner. The arriving police officers located the man [now known to be the Complainant] in the garage area of the residence and were able to disarm him with a baton strike to his arm/wrist area. The Complainant was taken to the Queensway Carlton Hospital (QCH) after he complained of having pain in his arm. He was released back into police custody later that day, after the medical staff failed to diagnose an injury.

At 4:49 p.m., after complaining of pain in the same arm, the Complainant was re-admitted to the QCH, where he was diagnosed with a right radial bone fracture. He was treated for his injury and released back into police custody.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

39-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


Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPS:
  • Cell Block Booking Sheet;
  • General Occurrence Report;
  • Investigative Action Report of the Subject Officer (SO) and Witness Officer (WO) #4;
  • Notes of WO #1, WO #2, WO #3 and WO #4;
  • Procedure – Mental Health Incidents;
  • Procedure – Arrest;
  • Procedure – Prisoner Care and Control;
  • Procedure – Search of Person; and
  • Use of Force Reports.

Incident Narrative

On April 23, 2018, at approximately 11:45 p.m., the civilian witness (CW) called the OPS to report that the Complainant, her ex-common law partner, was trespassing on her property in Kanata. The SO responded, discovered the Complainant near the CW’s property, cautioned him and transported him to a different location.

Sometime before 5:00 a.m., on April 24, 2018, the CW called 911 again to report a possible break and enter. It was believed that the Complainant had re-attended the CW’s property and entered her garage. The SO responded again, arriving at the residence at the same time as WO #4. The two officers discovered the Complainant inside the garage, slumped against the steps leading into the house. WO #4 observed that the Complainant had a box cutter in his hand and alerted the SO to its presence. The SO immediately drew his service pistol, as per his training, and WO #4 drew his conducted energy weapon (CEW). The officers reported that the Complainant ignored their commands to drop the knife, but was not physically or verbally threatening towards them. Instead, he made eye contact with the officers and held the box cutter against his wrist, moving it back and forth. The SO was concerned for his and WO #4’s safety, but was even more concerned for the safety of the Complainant. The Complainant was wearing heavy clothing which the SO suspected would render a CEW ineffective, so he holstered his firearm and took out his ASP baton. He used the baton to strike the Complainant’s right wrist, causing the Complainant to drop the box cutter. WO #4 said the SO hit the Complainant’s wrist two or three times before he dropped his weapon.

The Complainant was arrested for break and enter and criminal harassment, and apprehended under section 17 of the Mental Health Act (MHA), following which he was taken to QCH for a mental health assessment. He was medically cleared without QCH discovering an injury to his wrist and OPS officers took him back into custody. The Complainant was eventually transported back to QCH later that day and diagnosed with a fracture to his right wrist.

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

On April 24, 2018, the Complainant sustained a fracture to his right wrist in the course of his apprehension and arrest after breaking into a garage in Kanata. The SO advised that he struck the Complainant’s wrist with an ASP baton to knock a box cutter from his hands; however, there is some evidence that the Complainant was injured when he was handcuffed. The SIU’s investigation into this incident included an interview with the Complainant, the CW, the SO and four additional WOs. After reviewing this evidence, I believe that the Complainant was injured when he was struck with the baton but that this action did not constitute a criminal offence.

There is some evidence the Complainant was injured when he was handcuffed; however, I find this claim challenging to accept because its source had significant issues with their memory. Instead, I believe that the Complainant’s injury was caused by the SO striking him with an ASP baton, which reasonably explains his injury.

Pursuant to section 25 of the Criminal Code police officers are permitted to use reasonable force in the execution of their lawful duties. The jurisprudence about this provision states that police officers are not held to the standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are they expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)). I accept that the SO was within his rights when, upon discovering the Complainant’s unlawful presence in the CW’s garage demonstrating self-injurious behaviour, he moved to take the Complainant into custody. I am also persuaded that the SO’s use of force was reasonably necessary and, in fact, believe it was a measured response to an inherently difficult and potentially dangerous situation. The evidence establishes that the officers observed the Complainant with a box cutter and repeatedly commanded him to drop it to no avail. The SO drew his firearm in response to the presence of a weapon and then, after reassessing the situation and believing the Complainant was a greater threat to himself, decided the best way to disarm him was with his ASP baton. The presence of the box cutter constituted a clear threat to the health and safety of the officers, as well as the Complainant, and the force used to meet that threat (up to two to three baton strikes on the evidence of a witness officer) fell within the range of what was reasonably necessary in the circumstances. As such, I believe the force used was within the scope of force permitted by law and I am unable therefore to form reasonable grounds to believe that the SO committed a criminal offence in relation to the Complainant’s injury. This file is closed.


Date: May 3, 2019




Joseph Martino
Interim Director
Special Investigations Unit