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SIU Director’s Report - Case # 18-OCI-173

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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 the serious injury reportedly sustained by a 22-year-old male (the Complainant) on May 5, 2018.

The Investigation

Notification of the SIU

On May 15, 2018, the Complainant’s father notified the SIU of the serious injury sustained by his son. Initial information received from the Complainant’s father was that on May 5, 2018, four masked Ottawa Police Service (OPS) officers attacked the Complainant. He stated that the police hit his son causing him to lose consciousness, and that he had been diagnosed with a concussion. This occurred at a small plaza opposite the St. Laurent Shopping Centre in Ottawa, in front of the Pizza Pizza store. The Complainant’s father sent medical records to show that his son was diagnosed with a concussion.

The OPS confirmed that the Complainant had been arrested following a drug trafficking investigation by police officers from the Street Crime Unit, assisted by police officers from the Direct Action Response Team (DART), following which he had been transported to hospital by the arresting police officers, at his request, and treated for superficial abrasions to his face.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0

Complainant:

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


Civilian Witnesses

There were no civilian witnesses to the event identified, nor did any come forward to be interviewed.

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
WO #6 Interviewed, notes received and reviewed
WO #7 Interviewed, notes received and reviewed


Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The location of the arrest was a small strip mall plaza on the east side of St. Laurent Boulevard, in the City of Ottawa, containing small stores including a convenience store, a Pizza Pizza outlet, and a mattress store.

Due to the passage of time between the incident and the notification of the SIU, the scene was no longer capable of providing any relevant evidence and was therefore not forensically examined.

Video/Audio/Photographic Evidence

The SIU canvassed the area of the strip mall where this incident occurred, but was unable to locate any CCTV cameras or witnesses from the businesses located there.

Communications Recordings

There were no communications recordings relevant to this event.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

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

  • Computer Aided Dispatch Report;
  • Investigative Action Report;
  • Notes of WOs #1-7 and SOs #1 and 2;
  • Surveillance Photos;
  • Police Report on the Complainant; and
  • Surveillance Report.


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

  • Medical Records of the Complainant related to this incident, obtained with his consent; and
  • Photos of the injuries to the Complainant provided by the Complainant’s father.

Incident Narrative

The following sequence of events emerge from the weight of the reliable evidence gathered in the SIU’s investigation, which included statements from the Complainant, the SOs and the other officers on scene at the time of the arrest, as well as a review of the Complainant’s medical records. At about 2:00 p.m. of the day in question, members of the OPS’s DART and Street Crimes Unit convened to be briefed on an ongoing drug investigation. The Complainant was the target of the investigation. He had previously sold illicit substances to an undercover OPS officer. The objective was to arrest the Complainant following another drug transaction with the same officer. The team made their way to the area of a strip mall parking lot located at 1911 St. Laurent Boulevard, where arrangements had been made by the undercover officer to purchase a quantity of Xanax and cocaine from the Complainant. The undercover officer arrived as the front seat passenger in a black vehicle operated by a fellow undercover team member. The Complainant arrived sometime later, and parked his vehicle to the passenger side of the undercover officer. The undercover officer exited her vehicle, traveled around the back of the Complainant’s vehicle and entered the front passenger seat. When she exited a short time later, she gave a signal indicating that the drug transaction had occurred and the arrest could proceed.

WO #7 was the first to arrive in an unmarked minivan. He parked it directly behind the Complainant’s vehicle so as to prevent it from backing up and fleeing the scene. WO #2, a member of DART and a passenger in the minivan, exited the vehicle and rushed toward the driver’s door of the Complainant’s vehicle. He opened the door and, with the assistance of SO #2, pulled the Complainant from the vehicle directly onto the ground. Following a brief struggle on the ground, in which SO #2 delivered two punches to the Complainant, one to the left forehead and the other to the left shoulder, the officers were able to secure the Complainant in handcuffs. He was subsequently taken to hospital for the treatment of forehead abrasions and released back into the custody of the police.

Nature of Injuries / Treatment

At the time of his arrest on May 5, 2018, the Complainant was observed to have abrasion injuries to both sides of his forehead, which did not appear to be serious. He was taken to the hospital where medical staff examined and bandaged the area of abrasion and released him into police custody.

On May 9, 2018, the Complainant attended a second hospital on his own accord, complaining of ongoing headache, photosensitivity, and dizziness. He was diagnosed as having suffered a concussion.

The Complainant was seen by a concussion specialist on July 18, 2018, and again on August 15, 2018. This assessment was in addition to the findings reported by the second hospital attended by the Complainant. The specialist assessed the Complainant on each occasion and determined that a concussion was possible, but not definite, because he had no previous baseline with which to compare. He also noted that the Complainant had no improvement in symptoms between the two visits, which he found to be unusual.

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

In the evening of May 5, 2018, the Complainant was arrested by members of the OPS for drug trafficking. Days later, he was diagnosed with a concussion, which is said to be atrributable to the force used by the officers in the course of his arrest. For the reasons that follow, I am satisfied that there is no basis for proceeding with charges against the arresting officers, including the subject officers, SO #1 and SO #2.

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 discharge of a lawful duty. In applying this provision, the common law makes clear that officers are not to be judged to a standard of perfection. What is required is a reasonable response in the circumstances, not necessarily an exacting one: R. v. Nasogaluak [2010] 1 SCR 206. The officers had cogent evidence that the Complainant had just engaged in an illegal drug transaction and they were within their rights in moving in to effect his arrest. Thereafter, I am satisfied that the force they used fell within the latitude prescribed by the criminal law. This consisted of forcibly taking the Complainant to the ground from the driver’s seat of his vehicle and the use of manpower, punctuated by two punches struck by SO #2, to overcome the Complainant’s resistance on the ground and have him surrender his arms to be handcuffed. In the context of an arrest of a drug trafficker, where the officers harboured legitimate concerns about the presence of possible weapons and the destruction of evidence, the nature and extent of the force used was in my view measured and proportional to the task at hand.

In the result, while it may well be that the Complainant suffered his concussion during the course of his arrest, there are no reasonable grounds to believe that the involved officers and, in particular, the subject officers, committed a criminal offence. Accordingly, this file is closed.


Date: May 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit