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SIU Director’s Report - Case # 18-PCI-166

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 the serious injury sustained by a 43-year-old male (the Complainant) during an interaction with police on June 3, 2018.

The Investigation

Notification of the SIU

At approximately 10:40 a.m. on June 3, 2018, the Ontario Provincial Police (OPP) contacted the SIU and reported a custody injury sustained by the Complainant at 1:15 a.m. on that same date, in the City of Burlington.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed


Subject Officers

The SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

The scene was located at the top of the westbound ramp from Fairview/Plains Road to southbound QEW in the City of Burlington.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Due to the nature of the area, no video/audio/photographic evidence was available.

Communications Recordings

The radio communications between the SO and the dispatcher were reviewed. They began only after the SO notified the dispatcher that he would be transporting a prisoner and did not assist with the investigation.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the Burlington OPP (Highway Safety Division):

  • Notes of WOs #1-3 and the SO;
  • Police Transmissions Recording;
  • Arrest Report;
  • Event Details Report;
  • Police Witness List;
  • Prisoner Custody Report; and,
  • Prisoner Security Check.

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

  • Medical records of the Complainant relating to this incident, obtained with his consent.

Incident Narrative

The circumstances surrounding the Complainant’s fractured left toe are fairly clear on the information collected by the SIU in its investigation, which included statements from the Complainant, the witness officers present at the roadside spot check, and the one civilian witness (CW) who was the operator of the motor vehicle in which the Complainant was a passenger, as well as the notes made by the SO of the incident. On June 3, 2018, in the early morning hours, police officers from the Highway Safety Division connected with the Burlington Detachment of the OPP were conducting a RIDE spot check program in the area of the westbound ramp from Fairview Street/Plains Road to the southbound Queen Elizabeth Way (QEW). At approximately 1:15 a.m., WO #1 performed a vehicle stop of a Chevrolet Avalanche pick-up truck being driven by CW #1; the Complainant was intoxicated and seated in the front passenger seat at the time. After determining that CW #1 had been consuming alcohol, she was directed to provide a breath sample into the screening device. While police officers were dealing with CW #1, the Complainant exited the vehicle and attempted to disrupt the test. The Complainant was repeatedly told to remain in his vehicle, as it was unsafe for him to be on the roadside on foot, but he continued to exit his vehicle and engage the officers. After several interactions with police, and having been told time and again to return to his vehicle, the Complainant was arrested by the SO for being intoxicated in a public place (s.31(4) Liquor Licence Act) and causing a disturbance (s.176 Criminal Code). The Complainant was handcuffed and placed into the SO’s police vehicle. When the SO closed the door to the police vehicle, the Complainant sustained an injury to his left foot.

Nature of Injuries / Treatment

The Complainant was transported to the hospital, and was diagnosed with a fractured left foot. The Complainant was released from hospital without the necessity of any further treatment. He was prescribed Tylenol for pain.

Relevant Legislation

Section 265 (1), Criminal Code -- Assault

265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly.

Analysis and Director's Decision

The Complainant says that the SO slammed the door when his left foot was still in the door frame, thereby causing the injury. That may very well be the case, but I am not satisfied it is the full story. Far more plausible is the SO’s rendition of events, in which the Complainant was using his feet to actively prevent the officer from closing the door and was, therefore, an active contributor to the injury that occurred. Telling in this regard is the Complainant’s behaviour both before and after his arrest where he went out of his way to disrupt what the officers were doing, belying the suggestion that the Complainant was a passive victim.

In either event, I am not satisfied on the record gathered in the investigation that there are reasonable grounds to proceed with criminal charges against the SO. To begin with, the Complainant’s inebriation at the time and his unruly behaviour on the on-ramp to the QEW placed his health and safety, and those of the officers, in peril, and the SO was within his rights in proceeding to arrest him. With respect to the injury, at worst, it was the unintended product of the interplay between the officer and the Complainant for which the Complainant was largely responsible. At best, it was an accident attributable perhaps to a moment’s inattention on the part of the SO. In neither case does the evidence establish an intentional use of force by the SO against the Complainant that could ground consideration of a possible assault-based offence. In the result, as there are no reasonable grounds for believing the subject officer committed a criminal offence, this file is closed.


Date: May 17, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit