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SIU Director’s Report - Case # 18-OCI-082

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 serious injuries sustained by a 37-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On March 20, 2018, at 8:20 a.m., Durham Regional Police Service (DRPS) notified the SIU of the serious injury sustained by the 37-year-old Complainant subsequent to a violent struggle with police officers in the booking room at 17 Division during processing.
The DRPS reported that at 2:41 a.m., on March 20, 2018, the Complainant was arrested on Roseheath Street, Oshawa, for a driving offence and refusal to provide a roadside breath test. The Complainant was overly aggressive and struggled with police at the scene of his arrest and again at the station. He was taken to the hospital and diagnosed with rib fractures later that morning.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

37-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
WO #2 Interviewed
WO #3 Interviewed


Police Employee Witnesses

PEW #1 Not interviewed [1]
PEW #2 Interviewed


Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right
SO #3 Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The incident that led to the injury of the Complainant occurred in and around the booking desk at DRPS 17 Division.

Video/Audio/Photographic Evidence

DRPS provided the SIU with videotapes recorded in 17 Police Division on March 20, 2018, between 3:20 a.m. and 6:03 a.m. The recordings included 19 video files from 11 cameras located in the booking area, the cell area and the sally port. The sound was present on a single audio file. It was audible only between 3:39:40 a.m. (a few seconds before the Complainant arrived at the booking desk) and ended at 3:47:35 a.m. (a minute before the Complainant was brought to the ground). The video recordings and the event chronology depicted the following:

Subject Officer (SO) #1 was standing behind the booking desk and made a call while Witness Officer (WO) #3 was sitting at the booking desk. Police Employee Witness (PEW) #2 was walking back and forth in the booking area, examining items on a table in the hallway and speaking with the officers at the desk. He wore a blue shirt with short sleeves and blue gloves.

PEW #1 was also walking back and forth in the booking area, examining items on a table in the hallway or speaking with the officers at the desk. She also wore a blue shirt with long sleeves and body armour. At 3:30:38 a.m., a white unmarked SUV entered the sally port #1. The driver, SO #2, exited the cruiser.

At 3:31:20 a.m., SO #3 walked into the sally port and talked with SO #2, then both entered the booking area and spoke with WO #3 for eight minutes. At 3:39:30 a.m., all the officers briefly left the booking area, except WO #3 who stayed behind his desk, and SO #3, who stood in the hallway.

At 3:39:40 a.m., WO #3 switched on the audio recording. At 3:40:17 a.m., the Complainant arrived in the booking area through a hallway, escorted by SO #1, SO #2, PEW #1 and PEW #2. SO #1 held the Complainant’s hands behind his back.

At 3:40:20 a.m., the Complainant stood in front of the booking desk. SO #1, SO #2, PEW #1 and PEW #2 stood behind him. From 3:40:20 to 3:47:35 a.m., the Complainant spoke with WO #3 (audio recorded). At times he was very agitated and raised his voice. PEW #1 held his left arm and SO #1 his right arm. WO #3 stood behind the booking desk and SO #3 stayed at the back of the booking desk, in a doorway.

The Complainant replied to a few questions asked by WO #3. He identified himself and said his wife, civilian witness (CW) #2, had passed out that night. He repeatedly said that he did not know why he was arrested and punched in the face by an officer indicating SO #3. WO #3 told the Complainant that he was under arrest for having failed to provide a proper sample [believed to be a breath alcohol test sample].

The Complainant repeated he did the “pipe” test three times and SO #2 had witnessed that. The Complainant was not cooperative and replied “no” to all of the questions asked by WO #3 or said he did not understand the reasons for his arrest and detention. WO #3 told the Complainant that he could call a lawyer and file a complaint later. He asked him if he had medical issues, took drugs or alcohol. He also asked him if he had intended to harm himself and had access to firearms.

The Complainant refused to call a lawyer and said he did not consume drugs or alcohol. Each time WO #3 asked him if he had an injury, the Complainant looked towards SO #3 and said that officer had beaten him. At 3:46:35 a.m., the Complainant started yelling and said, “What the fuck, why you don’t listen to me? I want to ask this officer, look at my face, he punched me…”

At 3:46:50 a.m., the officers placed the Complainant’s hoodie onto his back. PEW #2 started holding the Complainant’s hands behind his back. At 3:47:05 a.m., the Complainant looked to his right at SO #1 and said, “Relax man, calm down.” PEW #2 said, “What the fuck does that mean?” The Complainant replied, “What the fuck is that?” and then asked WO #3 to be left alone with him because he wanted to ask him a question.

PEW #2 came to the Complainant’s right side, held his right arm and said, “Let’s take your cuffs off, we don’t have any issues.” At 3:47:30 a.m., WO #3 said, “That’s it,” then switched the audio recording off. At 3:48:00 a.m., PEW #2 removed the Complainant’s left handcuff and kept holding his right hand, handcuffed.

At 3:48:30 a.m., PEW #2 grabbed the Complainant by the left shoulder/neck area with his right hand and used his right leg to trip the Complainant. The Complainant fell onto his back. PEW #2 grabbed the Complainant’s neck with both hands to pin him to the ground. He pressed his right knee onto the right side of the Complainant’s chest.

SO #1 walked around the Complainant and placed his left knee near or onto the left side of the Complainant’s chest. PEW #1 rushed to control the Complainant’s legs. At 3:48:40 a.m., the Complainant tried to stand up and move away. PEW #2 and SO #1 tried to catch and control him with the help of SO #2, SO #3 and PEW #1.

WO #3 had arrived from behind his desk. He stood back two metres, behind the group and watched them. The Complainant placed himself in a crouched position, face against the floor, his hands under his body. SO #1 leaned in and pushed his right knee onto the right side of the Complainant’s chest.

At 3:49:00 a.m., the officers had controlled the Complainant, handcuffed him from behind his back. They rolled him onto his left side. SO #1 maintained the left side of the Complainant’s head onto the floor.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the DRPS:
  • CAD Detailed Call Summary;
  • Directive - Prisoner Care and Control;
  • Directive - Arrest;
  • Disclosure Letter;
  • General Occurrence Report;
  • Narrative of WO #1;
  • Narrative of WO #2;
  • Notes of all witness officers and PEW #2; and
  • Release Documents.

Incident Narrative

The investigation into this incident took over a year to complete and the delay was largely caused by DRPS members refusing to cooperate with the SIU. The incident occurred on March 20, 2018, and SIU investigators attended the scene and canvassed the area for video and civilian witnesses. Interviews of all witnesses, with the exception of two civilian DRPS employees, were completed by the end of April 2018. The investigation could not conclude because DRPS employees, PEW #1 and PEW #2, refused to submit to an interview or to provide a copy of their incident notes which they are legally required to do under the Police Services Act (PSA). [2] The SIU requested the DRPS chief of police to direct them to comply, but he initially refused. Only after months of correspondence and the threat of legal action did the DRPS chief direct PEW #2 to submit to an interview. [3] PEW #2’s first interview occurred in December 2018, but he refused to answer any questions pertaining to the incident. On March 28, 2019, the SIU filed an application for a court order requiring PEW #2 to submit to an interview and answer questions. [4] After being served, PEW #2 agreed to a second interview and answered the SIU’s questions. At this stage, the investigation into the incident was finally completed and the following facts were known.

On March 20, 2018, at approximately 2:40 a.m., the Complainant was stopped for a traffic offence after WO #2 observed the Complainant driving at approximately twice the posted speed limit on Taunton Road. WO #2 followed the Complainant’s vehicle and observed him turn aggressively onto Roseheath Street before pulling over. The Complainant told WO #2 that his passenger, CW #2, was in medical distress. CW #2 was unconscious and he said he was taking her to the hospital. WO #2 requested an ambulance and other officers arrived on scene including SO #2 and SO #3, and WO #1. SO #2 performed a sternum rub on CW #2 causing her to momentarily respond before she became unresponsive again with her hands crossed in her lap.

When paramedics arrived and tended to CW #2, SO #2 told WO #2 she wanted to investigate the Complainant for impaired driving and requested an approved screening device (ASD). SO #2 declined to be interviewed; however, the general occurrence report authored by her states that a faint odour of alcohol was detected on the Complainant’s breath. [5] SO #2 approached the Complainant and requested he provide a breath sample. The Complainant tried multiple times but refused to continue trying. At this moment, the weight of the evidence establishes that the Complainant became very belligerent and swore profusely at the officers. SO #2 and SO #3 arrested the Complainant, handcuffed him and walked him towards the police vehicle. According to WO #1, the Complainant swung his body as if attempting to elbow SO #3, causing them both to fall to the ground. [6] The witness officers reported that when the Complainant returned to his feet he refused to enter the police vehicle by making his body rigid. The officers tried to physically place the Complainant into the cruiser and, during the struggle, the Complainant kicked SO #3 in the upper chest.

The Complainant was then transported to the police station where he was paraded before WO #3. PEW #1 and PEW #2 were also present along with SO #1. The booking area was captured by closed-circuit television (CCTV), and based on the footage it is clear there was a verbal and then physical altercation between the Complainant and members of the DRPS. WO #3 asked the Complainant a series of questions and the Complainant responded to a few but was argumentative. He repeatedly said he did not know why he was arrested and yelled at SO #3, accusing him of punching him in the face. WO #3 decided to lodge the Complainant in a cell and PEW #2 released his left handcuff. Before PEW #2 could release the Complainant’s right handcuff the Complainant moved his hands away and gestured angrily while yelling at the officers. PEW #2 believed the Complainant was resisting and was worried because the Complainant could use the handcuffs as a weapon. The CCTV footage shows PEW #2 suddenly grab the Complainant by the collar of his shirt and bring him to the ground on his back in a smooth motion. PEW #2 pinned the Complainant to the ground by the neck and SO #1 assisted in restraining the Complainant by placing his left knee near the left side of the Complainant’s chest. PEW #1 controlled his legs. The video shows PEW #2 trying to roll the Complainant onto his stomach. The Complainant stood up and moved away from the officers before falling to a crouched position with his face against the floor with his hands under his body. SO #1 delivered two distractionary knee strikes to the Complainant’s right rib area before the Complainant gave up his hands to be handcuffed. The Complainant was lodged in a cell until he complained of pain and was transported to a hospital, where he was diagnosed with fractured ribs.

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

On March 20, 2018, the Complainant was arrested in Oshawa by the DRPS for failing to provide a breath sample. During his booking, the Complainant was grounded by a special constable, restrained by multiple members of the DRPS and kneed twice in the right side by SO #1. He was subsequently transported to hospital where he was diagnosed with fractured ribs. For the reasons that follow, I am unable to form reasonable grounds to believe that any DRPS police officer, including SO #1, committed a criminal offence in connection with the Complainant’s injury.

On the record as established by the SIU investigation, it is possible the Complainant was injured when he went to the ground at the scene of the traffic stop or at the police station, or when SO #1 kneed him in the ribs. I am inclined to believe that the Complainant was injured by SO #1 because SO #1 thought the knee strikes could account for the Complainant’s injuries. In any event, regardless of the precise cause of the injuries, I do not believe that any police officer exceeded the scope of force permitted by law.

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. It is clear that the officers were acting in the performance of their lawful duties when they investigated the Complainant for impaired driving at the traffic stop. SO #2 detected an odour of alcohol on the Complainant’s breath, which was an observation that was also echoed by WO #2. That, coupled with knowledge that the Complainant was stopped for poor driving and the suspicion he was deflecting attention to his passenger, provided ample grounds for her to suspect he had consumed alcohol enabling her to request a breath sample. It is clear this request was made and that the Complainant failed to provide an adequate breath sample after having multiple opportunities to do so. As such, the officers had reasonable grounds to arrest the Complainant for failing to provide a breath sample and were therefore acting within the scope of their lawful duties.

Force was used against the Complainant during his arrest although its precise scope is disputed. There is some evidence that the Complainant was pushed to the ground by a police officer during the traffic stop although this evidence is frail and contrary to other reliable evidence. Without further evidence, I am therefore unwilling to accept the Complainant was needlessly pushed. Based on the remainder of the evidence, it is clear that police officers used force against the Complainant by physically placing him in the police vehicle, restraining him on the floor of the police station and kneeing him the ribs. [7] I believe this force was reasonably necessary in the circumstances because of the Complainant’s level of resistance. The force used to place the Complainant in the cruiser and to restrain him on the floor was proportional to his resistance, and – besides the knee strikes – there is no evidence that the Complainant was kicked, hit or punched by the officers. SO #1 said he delivered the knee strikes only after the Complainant failed to comply with verbal demands to give up his hands, and with the intention of overcoming the Complainant’s resistance through “pain compliance.” In assessing SO #1’s knee strikes I am cognizant that 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. I accept that SO #1 intended to gain the Complainant’s compliance and not to injure him, that he was aware the Complainant had a handcuff which could be used as a weapon, that he knew the Complainant had fought with officers previously and that he only resorted to knee strikes after the Complainant disobeyed verbal commands. In these circumstances, I believe the knee strikes were reasonably necessary and fell within the scope of force permitted by section 25 of the Criminal Code.

In summary, I suspect the Complainant sustained his injury when SO #1 delivered two knee strikes to his ribs but do not believe SO #1, or any DRPS police officer, used force which is not permitted by law. As such, I am unable to from reasonable grounds to believe any police officer committed a criminal offence and this file is closed.

Date: July 15, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) PEW #1 declined to be interviewed on the advice of counsel despite being subject to a legal duty to cooperate. The SIU was later advised that PEW #1 was on a leave from work and PEW #1 did not return to duty during the course of the SIU’s investigation. [Back to text]
  • 2) 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 applies to any “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]
  • 3) At this stage, PEW #1 could not be interviewed because she was on leave. The SIU requested the DRPS chief make her available when she returned to work; however, she did not return to work during the course of the SIU’s investigation. [Back to text]
  • 4) See Court File No: 178/19 (Divisional Court) for more information. This application was filed after it became clear that a similar court application would not result in a court decision (see SIU Director’s Report for 18-OCI-081 at https://www.siu.on.ca/en/directors_report_details.php?drid=324). The court application was discontinued following PEW #2’s cooperation. [Back to text]
  • 5) WO #2 said he smelled alcohol on the Complainant’s breath, although WO #1 did not. [Back to text]
  • 6) What caused the Complainant and SO #3 to fall was disputed and there is some evidence that an officer pushed the Complainant. [Back to text]
  • 7) PEW #2 also used force against the Complainant when he grounded him in the police station; however, PEW #2 is a civilian member of the DRPS and not a police officer. It is not within the SIU’s mandate to investigate the actions of non-police officers and I will decline to comment on the appropriateness of this takedown. [Back to text]