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SIU Director’s Report - Case # 18-OCI-176

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 the serious injury sustained by an 18-year-old male (the Complainant) on May 18, 2018 during an interaction with police.

The Investigation

Notification of the SIU

At approximately 12:19 p.m. on June 11, 2018, the Ottawa Police Service [OPS] notified the SIU of the Complainant’s injury.

The OPS reported that they had received correspondence from the Complainant’s counsel concerning an injury he had sustained during his arrest. The correspondence indicated that on May 18, 2018, the Complainant had entered the Movati Athletic Centre, located at 15 Crestway Drive, in the City of Ottawa, where he was not permitted entry because he was not a member. The Movati staff notified the OPS. OPS officers arrived and directed the Complainant to leave the gym and he complied. A short time later, the Complainant returned to the gym with a membership and entered the facility to play basketball. The OPS was contacted again to remove the Complainant from the facility. WO #1 and the SO were identified as the arresting officers who had allegedly assaulted the Complainant, fracturing his left orbital bone. 
 

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

Three SIU investigators were assigned on June 11, 2018, to investigate the Complainant’s injury. On June 14, 2018, arrangements were made to interview the Complainant, with his legal counsel present, and he consented to the release of his medical records. A staff member at the Movati Athletic Centre provided SIU investigators with raw video footage relating to the events surrounding the Complainant’s arrest. Civilian witnesses were identified and interviewed.

Complainant:

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


Civilian Witnesses

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

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Notes reviewed, interview deemed not necessary

The notebook entries of WOs #2-4 were obtained and reviewed by the lead investigator. These witness officers were not interviewed because they were not directly involved in the arrest of the Complainant and could not offer anything of further evidentiary value to this investigation.


Subject Officers

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


Evidence

The Scene

The scene was located in the basketball court of the lower gymnasium, inside the Movati Athletic Centre.

Due to the passage of time between the interaction and the notification of the SIU, the scene was not forensically examined as it was no longer capable of yielding any evidence relevant to this investigation.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence


Movati Athletic Centre Surveillance Video


An SIU investigator reviewed the surveillance videos for the front reception desk and a gymnasium with a basketball court at Movati Athletic Centre. The front entrance and gymnasium were not equipped with audio capability. All video footage relevant to the events surrounding the Complainant’s arrest were provided; the relevant video commenced on May 18, 2018 at 1:11 p.m.

The recordings depicted the Complainant’s behaviour as being noncompliant and resistant with OPS officers and Movati staff. The involved police officers can be seen trying to communicate with the Complainant in the gymnasium. The Complainant ignored them, while he moved around them dribbling a basketball. The Complainant continued to play basketball and shot the ball toward a basketball net. After he threw the basketball, the Complainant ran immediately to the opposite side of the gymnasium and away from the police officers.
The police officers ran to block the Complainant from escaping the gymnasium and they tackled him into several punching bags against the gymnasium wall. The police officers and the Complainant fell to the floor where a struggle ensued. The video captured the Complainant continually resisting the police officers on the floor. The video recordings captured the SO delivering a knee strike and a punch to the Complainant’s upper body. The knee strike and the punch proved to be ineffective, and the Complainant continued to put up forceful resistance against the SO and WO #1’s attempts to apprehend him on the gymnasium floor.

During the struggle, the SO can be seen reaching for his Conducted Energy Weapon (CEW) from his right side and placing it near the Complainant’s right thigh. The Complainant then became abruptly compliant with the police officers, allowing them to handcuff him with his hands behind his back. After the Complainant was restrained with the handcuffs, the police officers lifted him to his feet and escorted him out of the gymnasium.

CW #3 was captured in the video standing in the gymnasium watching the police officers as they tried to arrest the Complainant. Video images also captured three youths in the gymnasium, while the arrest was taking place. One of the youths began shooting basketballs at the opposite side of the gymnasium while the police officers struggled with the Complainant on the gymnasium floor. CW #3 was unable to identify these youths.

Communications Recordings

The communications recordings and the 911 calls of May 18, 2018, leading up to the Complainant’s arrest were reviewed and found to be consistent with the ICAD printouts and the statements of the involved police officers, civilian witnesses, surveillance videos, and the OPS supporting documentation.

Materials obtained from Police Service

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

  • List of Involved Officers;
  • Communications Recordings;
  • 911 Call Recordings
  • Computer Aided Dispatch (CAD) Report;
  • Investigative Action Report authored by WO #1;
  • Training Record of the SO;
  • Procedure: Mental Health Incidents;
  • Procedure: Use of Force; and
  • Notes of WOs #1-4.


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

  • Surveillance video from the Movati Athletic Centre;
  • Written statements from five Movati Employees;
  • Movati Athletic Centre Incident Reports (x2);
  • Movati Athletic Centre Injury and Accident Report;
  • Ottawa EMS Ambulance Call Report; and
  • Medical Records of the Complainant related to this incident, obtained with his consent.

Incident Narrative

The sequence of events culminating in the Complainant’s arrest is clear on the weight of the reliable evidence gathered in the SIU’s investigation, which included statements from the SO, the witness officer who partook in the arrest (WO #1), the complainant and an independent civilian eyewitness. It was further assisted by a video recording that captured the Complainant’s arrest at the hands of SO and WO #1.

On May 18, 2018, OPS officers were twice dispatched to the Movati Athletic Centre at the request of management to remove an unwanted party. On the first occasion, the male - the Complainant - was told by police that he would have to leave the premises as he did not have a valid membership. He voluntarily did so on that occasion, and the police officers left the Centre.

Shortly thereafter, the OPS was notified by way of a second 911 call requesting that police officers again attend the Centre for the removal of an unwanted party. On this occasion, WO #1 and the SO attended in response to the call. WO #1, who had responded to the earlier call to the same location, was aware that the Complainant had already been told to leave the premises and not to return, with the caution that he would be arrested if he did return.

Upon the arrival of the police officers at the Centre, they were escorted to the gymnasium by the manager, CW #3. As the officers approached and called out to the Complainant, he continued to play basketball around them, ignoring them. After several attempts to get the Complainant’s attention, the police officers ran toward the Complainant and pushed him into a row of punching bags that were hanging against the wall of the gymnasium. The two police officers were observed to grab the Complainant by the shoulders and upper body and all three men fell to the floor, with the Complainant struggling against the police officers. The Complainant continued to resist by thrashing about on the floor and flailing his arms and legs. The two police officers continuously told the Complainant to put his arms behind his back and to stop resisting. When the Complainant refused to give up his hands for handcuffing and continued to struggle, the SO delivered one distractionary knee strike and one closed fisted strike to the Complainant, in order to get him to release his arms from under his body in order that he could be handcuffed. These two strikes proved ineffective, however, and the Complainant continued to struggle and to thrash about on the floor.

The SO then resorted to his CEW, which he used in ‘drive stun’ mode; that is, he placed the CEW directly against the Complainant’s thigh and deployed it for a brief interval. This technique proved effective, and the Complainant immediately complied and released both hands from under his body, whereupon he was handcuffed and lifted to his feet. He was subsequently transported home in a police vehicle, where he was released.

Later in the day, the Complainant was taken to hospital from his home and assessed as having sustained a comminuted depressed fracture of the left orbital floor (eye socket). The Complainant was released from the hospital the same day. There was no indication from his medical records that he required surgery. The Complainant was expected to make a full recovery from his injury.

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

There is no doubt that some force was used to apprehend the Complainant and handcuff him with his hands behind his back; however, I am not satisfied that there are reasonable grounds to believe the force in question was excessive. Pursuant to s. 25(1) of the Criminal Code, a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. I believe the OPS officers were acting in accordance with their lawful duty when they arrested the Complainant for being unlawfully in the premises and failing to leave after being requested to do so, contrary to s. 2 of the Trespass to Property Act (TPA). When the Complainant refused to acknowledge the presence of the police officers or to listen to their requests, it was lawful for the OPS officers to arrest the Complainant pursuant to the TPA and to remove him from the property. To effect the arrest, the SO and WO #1 used some force first to take the Complainant down to the floor and then to forcefully remove his hands from under his body, in order that he could be handcuffed and removed from the premises. I am satisfied that this level of force – consisting in the main of the takedown, a punch, a knee strike and the deployment of the CEW in drive stun mode – was reasonably necessary in the context of an uncooperative trespasser who forcefully resisted his arrest right up until he was stunned by the CEW.

In the result, while it is entirely possible that the Complainant’s altercation with the SO and WO #1 was the cause of his broken left orbital bone, their conduct in my view was at all times lawful, and there are therefore no grounds for proceeding with criminal charges in this case. The file is closed.


Date: May 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit