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SIU Director’s Report - Case # 18-OCI-377

Contents:

News Releases for this Case:

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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 a serious injury sustained by a 46-year-old man.

The Investigation

Notification of the SIU

On December 27, 2018 at 5:05 p.m., the Saugeen Shores Police Service (SSPS) contacted the SIU to advise that the Complainant had contacted the Ontario Provincial Police (OPP) to advise that the SSPS broke five of his ribs and fractured his pelvis. The OPP in turn notified the SSPS.

The SSPS had queried the SSPS records and was able to locate two arrests involving the Complainant in December, where force was used (as no specific incident or date was given by the Complainant). There were two incidents with the Complainant, and both times the Complainant was grounded. The first was on December 4, 2018 and the second was on December 11, 2018.

The Complainant attended the Wiarton Hospital on either December 25th or 26th where he received the fracture diagnosis.

The Team

Number of SIU Investigators assigned: 2

Complainant:

46-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


Subject Officers

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



Evidence

Communications Recordings

On December 11, 2018, at about 12:57 p.m., the Subject Officer (SO) asked SSPS dispatch to run a check on the Complainant. The SO indicated that he was following the Complainant. SSPS dispatch confirmed there were outstanding warrants on the system, with a 200 kilometre radius. While following the Complainant into Port Elgin, an attempt to stop him failed, and the SO broadcast grounds for fail to stop. Shortly thereafter, Witness Officer (WO) #1 broadcast an attempt to stop the Complainant, and he went around her.

At about 1:03 p.m., WO #2 broadcast that the Complainant was at Bruce Telecom and that he had parked his vehicle. The SO asked if the Complainant was out of the vehicle and WO #2 said she had blocked him in.

WO #1 was at Bruce Telecom and broadcast, “Ya, this is gonna be a problem. Just get here please.” The SO broadcast that he was almost on scene.

At about 1:04 p.m., WO #1 broadcast that the Complainant went into Bruce Telecom and, quickly thereafter, the SO broadcast that he had one in custody.

Video/Audio/Photographic Evidence


Video from Bruce Telecom/The Scene


SIU investigators obtained a copy of the closed circuit television (CCTV) video from inside the Bruce Telecom building. The scene was located in an office setting with desks and a display stand for cellular telephones. The door to the store faced Green Street and was clear and surrounded by windows.

On December 11, 2018, at about 1:01 p.m., the Complainant walked past the clear door from an area which was later learned to be the wheelchair parking spot for Bruce Telecom. The Complainant appeared to be talking to someone to the right of the front door and he was motioning with his hands as he talked. An SSPS vehicle could then be seen arriving in the parking lot, in view of the doorway, and stopping. WO #2 entered the range of the inside camera; she had a conducted energy weapon (CEW) drawn and pointed at the Complainant. They were still outside the store at that time. The Complainant appeared to ignore WO #2 and opened the door to the Bruce Telecom store and let the door close behind him. As he entered the store, he put his hands to the side and appeared to be speaking to the two employees. The Complainant’s arms were not in a surrender position, but rather it appeared he was using his arms to make a point while saying something. Two seconds later, WO #2 opened the clear glass door and pointed her CEW at the Complainant from outside, while she looked into the office. Both Bruce Telecom employees rolled their chairs back against the wall. The Complainant ignored WO #2 and continued to walk into the store, with his arms still outstretched to the side.

At 22 seconds into the video, the Complainant and WO #2 are seen speaking to each other. The Complainant stopped walking, but did not fully turn around to address WO #2, who still had her CEW out and pointed at the Complainant. At 28 seconds into the video, the SO entered the store right behind WO #2 and ran towards the Complainant, who was walking away from WO #2. The SO tackled the Complainant by lunging at him and taking him to the ground, landing on top of the Complainant, who fell onto his right side.

WO #2 was right behind the SO, and WO #1 followed behind them. Attempts were made to handcuff the Complainant, but he was laying on his hands. The SO delivered two knee strikes to the Complainant’s upper body, while WO #1 was trying to hold the Complainant’s legs.

WO #3 entered the store to assist. It took the efforts of all four SSPS officers to control the Complainant and get him into handcuffs. WO #4 arrived to assist, but the Complainant was already in handcuffs at that point. At about 1:04 p.m., the Complainant was assisted to his feet but appeared to be unable to bear weight on his legs.


Audio of Arrest


The audio recording began part way through the Complainant’s arrest.

The recording began with screaming from the Complainant saying, “You’re kicking me,” and, “Ow that hurts. I didn’t do anything.” The Complainant then said, “You’re killing me,” and a male voice said, “No, we’re not.” The Complainant again stated, “You’re kicking me. No. It hurts.” Commands were issued by the SSPS officers but, as they are not yelling loudly, their words were not audible. The Complainant asked, “What are you doing this for?” An SSPS officer said that he was under arrest for warrants. The Complainant kept repeating, “What did I do, and why did you do that to me?” and, “Why were you stopping me/or stalking me?” A male SSPS officer again stated that he was wanted for warrants. The Complainant asked for what and the male SSPS officer told him for uttering threats. The Complainant stated he threatened no one, and continued to ask for details. The SSPS officer told him to calm down. It sounded like the Complainant was still in the process of being handcuffed, as he was being told to calm down. The Complainant yelled that his ribs were broken and he need to go to the hospital.

With the Complainant still yelling at the SSPS officers, an SSPS officer tried to talk over the Complainant and told him that he was under arrest for warrants for uttering threats, failing to stop for police, and dangerous driving; he then asked him if he understood. The Complainant was yelling “What threats? What dangerous driving?”

The SSPS officer asked the Complainant if he understood and he said yes. The SSPS officer asked if the Complainant wanted to speak to a lawyer, and the Complainant said yes. The SSPS officer began to read the 800 number for counsel and the Complainant cut him off saying he needed to speak to a personal injury lawyer about what the police had done to him. The SSPS officers helped the Complainant to stand and the Complainant yelled that they broke his leg. As the Complainant was being assisted out of the store, he was yelling, “You broke my fucking leg!” the entire time it took them to leave.


SSPS Cell Video


The SSPS cell video depicted the Complainant in obvious discomfort. He had great difficulty putting pressure on his right leg and was unable to bend it; the Complainant had to use the counters to support himself. He appeared to be gesturing to his right side at the time of booking. SSPS officers had to remove the Complainant’s footwear for him and help him walk to his cell. The Complainant had to hold the wall or cell bars to move. The Complainant was unable to walk in order to be fingerprinted, so the officers brought a chair for him to sit on and rolled him to the fingerprint room.

The Complainant did not appear to do anything while in the cells to further injure himself.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the SSPS:
  • Arrest Reports-Dec 4 and 11, 2018;
  • Booking Photo and Intake-the Complainant;
  • CAD Report;
  • Communication recordings;
  • SOCO Photos;
  • Police Station Video;
  • General Report;
  • Notes of all witness officers;
  • Subject Profile-the Complainant;
  • Will State of all witness officers; and
  • General Orders of the SSPS, Prisoner Care and Control.

Incident Narrative

The events surrounding the Complainant’s injuries are clear on the information gathered in the SIU investigation, which included statements from the Complainant, the SO and a number of other police and civilian eyewitnesses. The investigation further benefitted from a video recording of the incident obtained from the commercial premise in which the arrest occurred, and an audio recording of portions of the arrest. Shortly before 1:00 p.m. of the day in question, the Complainant was spotted operating a motor vehicle by the SO. He was under a driving prohibition at the time and wanted on an outstanding arrest warrant. The SO arranged for officers to attempt to stop the vehicle. The Complainant took flight in his vehicle. As he did so, he drove off the roadway over a snowbank and into a ditch at one point before returning to the road and making his way into the downtown Port Elgin area. WO #2 observed the Complainant on Harbour Street and followed him in her police pick-up to the parking lot of Bruce Telecom on Green Street. The Complainant stopped near the front entrance of the business and exited his vehicle. WO #2 came to a stop blocking the Complainant’s vehicle at the rear. She exited her pick-up and pointed her CEW at the Complainant, telling him he was under arrest and to get to the ground. The Complainant ignored the officer and walked into the store. WO #2 followed him to the threshold of the front entrance, her CEW still pointed through the open door at the Complainant. The Complainant continued to ignore WO #2 as he walked further into the store toward two employees. Within moments, the SO arrived, went around WO #2 through the door and ran toward the Complainant, tackling him to the ground. A physical altercation ensued in which the SO, soon joined by WO #1, WO #2 and WO #3, struggled to subdue the Complainant, who was combative, and secure him in handcuffs. The SO delivered two knee strikes to the Complainant’s upper body before the Complainant was taken into custody. It does not appear any of the other officers struck the Complainant at this time.

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 suffered fractures of his ribs and pelvis in the course of his arrest by SSPS officers on December 11, 2018. One of the arresting officers, the SO, appears to have inflicted the injuries. For the reasons that follow, there are no reasonable grounds in my view to believe the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.

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 execution of something that they are authorized or required by law to do. The SO was within his rights when he moved to take physical custody of the Complainant. Having observed him in violation of a driving prohibition and knowing that the Complainant was wanted on a warrant, the officer had lawful grounds to arrest the Complainant. Thereafter, I am satisfied that the SO used no more force than was reasonably necessary in the circumstances to effect the Complainant’s arrest. The Complainant had just taken flight from the police in his vehicle, almost striking a police vehicle in the process. At the Bruce Telecom store, though having every opportunity to surrender peacefully while a CEW was trained on him, he repeatedly refused to do so, instead upping the ante by walking toward two employees seated at their desks. In the circumstances, I find no fault with the SO’s decision to rush at and tackle the Complainant to the ground, nor with his decision to knee the Complainant as he continued to resist his arrest on the ground. In arriving at this conclusion, I note that the law does not demand that officers measure their responsive force with exactitude; what is required is a reasonable response, not a perfect one: R. v. Baxter (1975), 27 CCC (2d) 96 (OCA); R. v. Nasogaluak, [2010] 1 SCR 206. There is no doubt that the SO used significant force, which very likely resulted in the Complainant’s fractures. However, given the volatility of the situation, involving a belligerent person in close proximity to a couple of innocent bystanders and who continued to resist his arrest on the ground, I am not satisfied on reasonable grounds that the force used by the SO fell outside the latitude permitted by the criminal law. Accordingly, there are no grounds in my view for proceeding with charges in this case.


Date: July 2, 2019



Joseph Martino
Interim Director
Special Investigations Unit