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SIU Director’s Report - Case # 18-OCI-165

Contents:

News Releases for this Case:

French:

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 20-year-old man.

The Investigation

Notification of the SIU

On June 3, 2018, at approximately 9:55 a.m., the Timmins Police Service (TPS) notified the SIU of the Complainant’s injury.

The TPS reported that on June 2, 2018, at approximately 9:50 p.m., TPS officers responded to a domestic situation in the area of Sixth Avenue. The subject officer (SO) located the Complainant on Sixth Avenue and placed him under arrest. The Complainant became combative and assaulted the SO. The Complainant attempted to flee and a Conducted Energy Weapon (CEW) was deployed striking the Complainant in the back causing him to fall to the ground. The Complainant was taken to the hospital and diagnosed with a fractured clavicle.

The Team

Number of SIU Investigators assigned: 2
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed 

Witness Officers

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


Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The location of the incident was the intersection of Cedar Street and Sixth Avenue. The scene was not held for examination.

Physical Evidence

CEW

The CEW data was downloaded on June 4, 2018, by the TPS Training Branch and the report submitted indicated that on June 2, 2018, at 10:15:25 p.m., the CEW was triggered for a five second deployment. There were two one second deployments from the CEW at 10:15:41 and 10:15:42 p.m.

Communications Recordings

Radio transmissions were reviewed for the incident involving the arrest of the Complainant on June 2, 2018.
  • 9:57:13 p.m. – Police are dispatched to the area of Pine Street and Cedar Avenue regarding a male and female fighting;
  • 10:01:08 p.m. – A female calls 911 and advises that a male is beating up his girlfriend in the area of Pine Street and Cedar Avenue;
  • 10:03:43 p.m. – The female caller tells the dispatcher that the male and female are leaving the area and provides an address;
  • 10:05:04 p.m. – Caller tells the dispatcher what address the female has gone to and requests a second officer attend with him;
  • 10:06:42 p.m. – The SO advises the dispatcher that the Complainant is the suspect of an assault incident;
  • 10:11:05 p.m. – An officer advises the dispatcher that CW #3 is being transported to the police station to provide a statement; and
  • 10:13:22 p.m. – The SO tells the dispatcher that he has the Complainant in custody and is transporting him to the station. The Complainant is the suspect in the assault incident.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Arrest Report – the Complainant;
  • Radio Communications;
  • CEW Download Report;
  • Custody Arrest Report;
  • Duty Roster;
  • Event Details;
  • General Report;
  • Involved Persons List;
  • Notes of WO #1, WO #2, WO #3 and WO #4;
  • Procedure – Use of Force;
  • Procedure – Arrest of Persons;
  • Text message conversation between WO #3 and WO #4;
  • TPS Witness Statement – CW #3;
  • TPS Witness Statement – CW #1;
  • Training Record - the SO;
  • Photographs of the SO’s injuries;
  • Will State of WO #1 and WO #3.

Incident Narrative

The events leading to the Complainant’s arrest are clear on the information gathered in the SIU’s investigation and can be summarized in short order. At around 10:00 p.m. of the date in question, the TPS received a call reporting that the Complainant had just assaulted a female – CW #3 – in the area of Pine Street North. The SO arrived in the area, spoke with CW #3 and was advised that she had been punched, kicked and choked by the Complainant. Moments later, the SO saw the Complainant walking along Sixth Avenue. He drove toward the Complainant, parked his vehicle at the intersection of Sixth Avenue and Cedar Street and called out to the Complainant. The officer exited his vehicle, confirmed the Complainant’s identity and told him he was under arrest for assault. The Complainant told the SO to, “Fuck off,” and took up an aggressive posture toward the officer. The SO reached out to take hold of the Complainant’s right arm and repeated he was under arrest. The Complainant pulled away, tripped on his own pants and fell to the ground. As the Complainant stood up, the SO took hold of him again and was able to force him to the ground. The two fought on the ground exchanging punches before the Complainant managed to break free and run in a westerly direction across Cedar Street. The SO, who by this time had suffered a cut to his right elbow in the tussle, drew his CEW and deployed it at the Complainant. The probes struck the Complainant, incapacitating him and causing him to fall to the ground. The data downloaded from the CEW indicate there were two additional discharges from the weapon in quick succession, each of them one second in duration. The SO reached the Complainant, who resumed his struggle against the officer once the CEW had finished its discharge. WO #1 arrived at this time and assisted in subduing the Complainant and securing him in handcuffs. The Complainant was transported to the police station where he was assessed by paramedics and then taken to hospital.

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 by the SO on June 2, 2018 in Timmins. He was subsequently taken to hospital and diagnosed with a fractured clavicle. For the reasons that follow, there are no reasonable grounds in my view to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the line of duty. Based on the information he had received first hand from CW #3, the SO had the requisite grounds to proceed with the Complainant’s lawful arrest for assault. Thereafter, faced with a combative suspect who had demonstrated a willingness and ability to engage physically with the officer to avoid apprehension, the SO was entitled to resort to force to effect the Complainant’s arrest. On balance, I am satisfied on reasonable grounds that the force in question – the initial takedown executed when the Complainant made it clear he would not surrender peacefully, the punches delivered by the officer while he and the Complainant exchanged blows on the ground, the CEW discharges that followed as the Complainant broke free from the SO and took flight across the roadway, and the simple manpower used to subdue the Complainant and secure him in handcuffs – fell within the range of what was reasonably necessary in the circumstances. Consequently, as I am of the view that the force used by the SO was legally authorized under section 25(1) of the Criminal Code, there are no reasonable grounds to proceed with charges in this case.


Date: May 6, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit