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SIU Director’s Report - Case # 18-OCI-081

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 32-year-old man.

The Investigation

Notification of the SIU

On March 15, 2018, at 7:55 p.m., the Halton Regional Police Service (HRPS) called the SIU and reported an injury to the Complainant.

The HRPS advised that police had responded to the area of Lakeshore Road and Elizabeth Street in Burlington after a citizen reported that a man who was panhandling damaged her vehicle. When police officers arrived they located the Complainant who verbally identified himself then fled on foot. The Complainant was located, grounded, and arrested after a brief foot pursuit. He was transported to a police station.

On March 15, 2018, the Complainant was transported to court in Milton where he complained of a sore right arm. He was taken to the Milton District Hospital (MDH) at 11:45 a.m., where he was diagnosed with a fractured right elbow. 
 

The Team

Number of SIU Investigators assigned: 5

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed


Police Employee Witnesses

PEW #1 Interviewed
PEW #2 Interviewed
PEW #3 Not interviewed, but notes received and reviewed
PEW #4 Not interviewed, but notes received and reviewed
PEW #5 Not interviewed, but notes received and reviewed
PEW #6 Not interviewed, but notes received and reviewed


Subject Officers

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


Evidence

The Scene

The Complainant damaged CW #2’s Jeep in a parking lot next to 423 Elizabeth Street in downtown Burlington. WO #5 stopped the Complainant on the north side of James Street east of Elizabeth Street, less than 100 metres from the original scene.

The Complainant fled on foot for a distance of about 50 metres and was apprehended in an asphalt parking lot in between two buildings, 2021 and 2031 James Street. The area between the original scene and the arrest was canvassed. There was some video surveillance which captured the parking lot where the Complainant damaged CW #2’s vehicle, but none in the parking lot where the arrest occurred.

Video/Audio/Photographic Evidence


Civilian Cell Phone Videos


Two short audio/video clips of the arrest of the Complainant were recorded on a civilian’s cell phone.

The first clip was five seconds in duration and commenced while the civilian was walking northbound towards the arrest scene. She was situated in the parking lot on the south side of James Street across the street from the arrest scene. The civilian was zooming into the arrest scene. The image bounced around. The SO’s police service dog (PSD) was barking.

CW #1 yelled at the Complainant. A police vehicle with its emergency lights flashing was parked in the parking lot facing north. The headlights of the police vehicle were illuminating a wall behind the arrest making the police officers appear as silhouettes. Three police officers were standing and it would appear that two police officers were crouched or kneeling down. It was difficult to see exactly what the police officers were doing. No kicking motion was seen. The outline of the PSD was visible. The activity was to the passenger side of the parked police vehicle.

The second clip was three seconds in duration and appeared to have been recorded consecutive to the first clip. A police officer was standing to the east of the Complainant and a couple of police officers were kneeling or crouching over the Complainant in the parking lot in the same location as the previous clip, next to the police vehicle which appeared now to be an unmarked SUV. No kicking motion was seen. WO #5 walked southbound across James Street towards CW #1 as CW #1 yelled at the Complainant.


Central Lock-Up (CLU) Videos


HRPS provided the SIU with a clip of video (no audio was recorded) from the CLU. WO #3, WO #6, WO #7, and special constables, Police Employee Witness (PEW) #4 and PEW #6, were present.

WO #3 and the special constables left the booking area and walked towards what is believed to be the sally port. They returned with the Complainant. The Complainant sat on the bench across from WO #6. A red handled garden rake was removed from the Complainant’s backpack.

The Complainant stood up and turned around to face the wall. The handcuffs were removed and the Complainant was searched. The two special constables seemed to pay some extra attention to the Complainant’s right arm.

The Complainant was led off camera for a purpose of a Level 3 search. The Complainant was returned to a bench and WO #6 continued the paper work. The Complainant was then led to a cell.

At no time was the Complainant seen to support his right elbow with his left hand and raise his right arm up and down as described by WO #6. It is possible this action was brief and out of view of the camera due to where PEW #6 was standing.

At 3:25 a.m., PEW #6 entered the cell. The Complainant stood up, appeared to speak quite animatedly and repeatedly pointed to his bare right arm. The actions of the Complainant were consistent with complaining about his right arm.

At 8:24 a.m., the Complainant was awakened. He appeared to be favouring his right arm, which was in his T-shirt, and doing everything with his left hand. PEW #5 handcuffed the Complainant (right wrist first, then left) to the front.

Communications Recordings

The HRPS provided the SIU with a copy of the police radio communications regarding this incident. The recording was introduced as having been recorded between 11:57 p.m. on March 14, 2018, and 12:53 a.m. on March 15, 2018. The individual radio transmissions were not time stamped on the eight-minute-long audio file provided to the SIU. There was nothing in the recording to indicate how the injury had occurred. It did indicate that there was a foot chase and an arrest.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HRPS:

  • Computer Aided Dispatch (CAD) Event Details;
  • Duty Roster;
  • General Occurrence Report;
  • HRPS Witness Statements of CW #1 and CW #2
  • Notes of WO #7, WO #8, WO #9, PEW #1, PEW #2, PEW #3, PEW #4, PEW #5 and PEW #6;
  • Policy – Use of Force;
  • Policy – Arrest, Search, and Release of Prisoners;
  • Policy – Prisoner Care and Control; and
  • Prisoner Custody Record – the Complainant.


PEW #6’s Notes


PEW #6 noted the Complainant complained about his arm during the booking process. At 3:26 a.m., PEW #6 attempted to fingerprint the Complainant but he complained of a “sore/broken arm,” and refused to be fingerprinted. PEW #6 observed no injuries. PEW #6 advised WO #7 of the Complainant’s complaint. WO #7 said the Complainant “will not be going to the hospital.”


PEW #4’s Notes


PEW #4 observed the Complainant was high and intoxicated when he arrived in CLU and believed the Complainant was “under the influence.” The Complainant complained two times during the night while in his cell about his right arm being broken. PEW #4 notified WO #7.


PEW #5’s Notes


At approximately 7:15 a.m., PEW #5 could not fingerprint the Complainant as his hand was sore. The Complainant agreed to be fingerprinted at court.

PEW #5 escorted the Complainant from court to MDH. At the time of his transport, PEW #5 observed the Complainant’s right hand was swollen. The Complainant was advised by the doctors that he had a broken elbow and required a splint cast.


PEW #3’s Notes


While PEW #3 was handcuffing the Complainant for transport to court, the Complainant told PEW #3 to be careful with his right arm because it was sore. PEW #3, along with PEW #5, escorted the Complainant to the hospital.

Incident Narrative

This was a relatively simple SIU investigation that took over a year to complete, due in large measure to HRPS members’ failure to cooperate with the SIU as required by s. 113(9) of the Police Services Act. [1] Within four months of the incident, SIU investigators had taken statements from the Complainant, two civilian witnesses and eight witness officers, and had received the majority of police records required to complete the investigation. The investigation was nevertheless at a standstill. Special constable, PEW #1, had been identified as a witness to the incident but the HRPS chief of police refused to make him available for an interview or to provide the SIU with his notes. After several months of correspondence, the chief eventually provided PEW #1’s notes. PEW #1 was finally interviewed in December of 2018 but refused to answer any questions about the Complainant or his injury. The SIU asked the Chief of Police to direct PEW #1 to answer incident-related questions in good faith, but the Chief of Police declined to do so. In February of 2019, the SIU filed an application with the Superior Court of Justice for a court order compelling both the chief of police and the special constable to cooperate with the SIU. [2] After the application was filed, approximately eleven and a half months after an interview was first requested, PEW #1 finally submitted to an interview where he answered the SIU’s questions. The SIU became aware of additional witnesses and one additional police employee witness was interviewed in late March of 2019. At this point the investigation was finally completed and the following evidence was available.

On March 14, 2018, shortly before midnight, the HRPS were dispatched to downtown Burlington because the Complainant reportedly knifed CW #2’s vehicle. WO #1 attended and gathered more information about the Complainant. WO #1 knew the Complainant from having dealt with him before and broadcasted the Complainant’s name over police radio.

Police searched the area until they found the Complainant near James Street and Elizabeth Street. The Complainant identified himself, but fled on foot when he was told he was under arrest. He was chased into a parking lot by WO #2, who was joined by WO #1, WO #3, WO #5 and the SO. WO #1 had his conducted energy weapon out and the SO had a police service dog. The officers told the Complainant that he was under arrest, and the Complainant went to the ground voluntarily and laid onto his stomach. WO #2 attempted to handcuff him but had difficulties because the Complainant resisted giving up his hands. The officers described the Complainant resisting to various degrees: by trying to roll over, by kicking his legs and by tucking his arms underneath himself. The officers were concerned that the Complainant had a knife, and WO #5 and WO #3 restrained the Complainant by placing their knees on the Complainant’s back and calves. The Complainant was handcuffed and searched. No knife was located but a garden rake was found. Other than restraining the Complainant and handcuffing him, none of the witness officers described using any force against the Complainant during his arrest.

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.

Sections 113(9), Police Services Act – Duty to Cooperate with the SIU

113 (9) Members of police forces shall co-operate fully with the members of the unit in the conduct of investigations.

Section 2, Police Services Act – Definitions

2 (1) “member of police force” means an employee of the police force or a person who is appointed as a police officer under the Interprovincial Policing Act, 2009

Analysis and Director's Decision

On March 15, 2018, the Complainant was diagnosed with a fractured elbow after he was arrested by HRPS officers for mischief. There is some evidence that the Complainant was injured when a police officer “stomped” on his arm; however, none of the witness officers saw this or otherwise knew how the Complainant was injured. After a careful consideration of the available evidence, I am unable to form reasonable grounds to believe that any HRPS officer, including the SO, committed a criminal offence.

The SIU’s investigation revealed evidence that the Complainant complied with the officer’s commands and did not resist his arrest. Yet, after the Complainant was handcuffed, it was alleged that an unidentifiable officer delivered a deliberate “stomp” to his right arm, causing 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. In these circumstances, it is clear that the officers were acting within the course of their duties when they arrested the Complainant for mischief based on the information they received from the civilian witnesses. More troublesome is the question about whether the police officers’ use of force was reasonably necessary in the circumstances. While it is true that police officers are not held to a standard of perfection or expected to measure their degree of responding force to a nicety (see R. v. Nasogaluak [2010] 1 S.C.R. 206 and R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.)), if a police officer stomped on the Complainant’s elbow while he was handcuffed and not resisting then I have no trouble finding that the force used was excessive. However, the only evidence of this comes from a source that I do not believe is credible or reliable and whom I am hesitant to accept without corroboration. [3] In the result, I am unable accept this version of events where it is contrary to the witness officers’ accounts. In coming to this conclusion I am comforted that the alleged force was not reported by the independent witnesses who saw part of the Complainant’s arrest. Nor was the alleged force captured on a civilian’s cell phone videos. I also note that the injury, which otherwise may be circumstantial evidence of an assault, could have reasonably occurred when the Complainant fell to the ground [4] or prior to his encounter with the police.

In the absence of contrary reliable evidence, I accept that the Complainant went to the ground on his own accord, put up some resistance when WO #2 attempted to handcuff him, was pinned to the ground by multiple police officers and then handcuffed. This level of force was reasonably necessary in the circumstances because the officers believed the Complainant was in possession of a knife and he was not cooperating. As such, I believe the force was permitted by law and am unable to form reasonable grounds to believe a HRPS officer committed a criminal offence in connection with the Complainant’s injury.

Before closing the file, I should note that even if I am wrong and a police officer stomped on the Complainant’s elbow, I still would be unable to form reasonable grounds to believe any particular HRPS officer committed a criminal offence. The officer alleged to have delivered the stomp was not identifiable although the evidence established it was not WO #2. The SO, WO #1, WO #3 and WO #5 were also present during the Complainant’s arrest and it is impossible to determine which of these four officers delivered the alleged blow.


Date: May 10, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) Section 113(9) of the Police Services Act states that “members of police forces shall co-operate fully with the members of the [SIU] in the conduct of investigations.” This provision does not apply only to police officers but includes a “member of a police force” which is defined by s. 2(1) of the PSA as including “an employee of the police force or a person who is appointed as a police officer under the Interprovincial Policing Act, 2009.” [Back to text]
  • 2) See court file no. 094/19. Following the cooperation of the special constable, the application was discontinued. [Back to text]
  • 3) The same source of these allegations described many facts that were proven inaccurate by reliable evidence, including that the Complainant was not chased, that there were multiple police dogs present and that the Complainant’s injury was bleeding. [Back to text]
  • 4) There is some evidence that there was a heavy impact when the Complainant went to the ground. [Back to text]