RunnersCruiser and motorbikeCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 18-OCI-276

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 September 15, 2018 at 9:00 p.m., the Belleville Police Service (BPS) reported the following:

On September 14, 2018, at about 10:46 p.m., BPS attempted to stop a motorcycle in the North Frost Street area. The driver of the motorcycle [now known to be the Complainant] subsequently abandoned his vehicle and ran into a marsh area next to a Lowes Home Improvement in an effort to evade police.

Police officers were able to locate and arrest the Complainant. While the Complainant was being walked out of the marsh area, the police officers along with the Complainant stepped off a retaining wall and all three fell approximately four to five feet to the ground. According to the BPS, the area was poorly lit and no one was aware of the drop.

The Complainant was taken to the station where he was processed and later released.

On September 15, 2018, the Complainant’s mother attended Belleville Police and advised that the Complainant had suffered a concussion and lost two teeth as a result of the fall. The Complainant apparently attended Belleville General Hospital (BGH).

The Team

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

Complainant:

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


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Not interviewed [1]


Subject Officers

SO #1 Declined interview and to provide 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


Evidence

The Scene

North Front Street changed to Highway 62 just north of Highway 401. It was a two-lane road; that is, two lanes travelled north and two lanes travelled south. Millennium Parkway travelled east and west and it was a predominantly a one lane road; that is, one lane travelled east and one lane travelled west. The intersection was controlled by two sets of traffic lights on the north side of the intersection and two sets of traffic lights on the south side. The east side and west side of the intersection were also controlled by two sets of traffic lights.

There was a Petro Canada gas station and a Tim Horton’s restaurant at the northwest corner of Millennium Parkway and Highway 62. The restaurant and gas station shared a parking lot. There was a drive-through laneway that travelled from the north side of the restaurant, behind the building, and exited to the south. There was a silver chain linked fence directly behind the back of the restaurant and gas station and it made up a perimeter around a heavily grassed shrubby area with a large pond or body of water in the middle. The fence ran north on Highway 62, north of Millennium Parkway and it also ran west along Millennium Parkway. It resembled an “L” shape. To the west of the restaurant and gas station, on the north side of Millennium Parkway, was a Lowes Home Improvement store. The east side of the parking lot ran along the west side fence line of the grassy compound.

Inside the compound, at the northwest corner of Millennium Parkway and Highway 62, was a raised piece of cement. It was approximately one foot wide, two feet tall, and 12 feet long. On the south side of the cement was a sunken area that contained water, grass and bush. The distance from the top of the cement to the bottom of the sunken area was approximately three feet or more of a drop. There were several lamp posts that were positioned to illuminate the parking lot of the restaurant and gas station and there were lamp posts that were located within the Lowe’s store parking lot. There were no lamp posts within the compound or none that were positioned to illuminate inside the compound.

Communications Recordings

On September 14, 2018, the following was communicated via radio:

  • At 10:24 p.m., Witness Officer (WO) #2 advised that she had a visual on a motorcycle [now known to be driven by the Complainant] travelling north on Highway 62;
  • At 10:47 p.m., WO #2 advised that the motorcycle was turning around and travelling south and that he was going around in circles;
  • At 10:48 p.m., WO #2 advised that she and the motorcycle were travelling around in circles and that the motorcycle crashed;
  • At 10:49 p.m., a police officer was heard asking WO #2 her location. WO #2 advised that she was behind the Petro Canada gas station;
  • At 10:50 p.m., WO #2 advised that the Complainant was wearing a light blue t-shirt, and that he was wearing a helmet. She also advised who the Complainant looked like.
  • At 10:52 p.m., a police officer [possibly Subject Officer (SO) #2] advised that he and WO #1 would go on foot to search for the Complainant
  • At 10:53 p.m., WO #3 advised that she was at the Lowes, and mobile;
  • At 10:56 p.m., WO #2 advised that the Complainant was probably in the bushes;
  • At 11:08 p.m., SO #1 advised that he was en route;
  • At 11:10 p.m., SO #2 advised that he was with SO #1 and that they were going to push towards WO #1;
  • At 11:11 p.m., SO #2 advised that if you see “subject” to call out, radio communications are garbage right now;
  • At 11:13 p.m., SO #2 advised, “We got him”; and,
  • At 11:18 p.m., there were communications regarding the licence plate number from the motorcycle that the Complainant was driving. The licence plate was registered to someone from Sudbury and it was “missing.”

Video/Audio/Photographic Evidence


BPS Booking Room Video Summary


On September 14, 2018 at approximately 11:30 p.m., the Complainant was brought to the station by WO #2 and WO #3, and was paraded before WO #5 in the booking room. WO #1 was also present during the booking process.

At 11:35 p.m., the Complainant was escorted to a cell by WO #5. His hands remained handcuffed when he entered into the cell.

At 11:50 p.m., WO #1 attended the Complainant’s cell and escorted him out.

At 11:55 p.m., WO #1 and the Complainant returned to the cell; however, the Complainant was wearing only his underwear.

At 11:55 p.m., an unidentified female police officer arrived at the Complainant’s cell and provided him with a thermal blanket. Shortly after, an unidentified male police officer arrived and provided the Complainant with a blue suit.

On September 15, 2018, at approximately 10:33 a.m., the Complainant was observed leaving the station via the sally port.

Expert Evidence

A forensic pathologist with the Ontario Forensic Pathology Service reviewed the SIU’s file, including the Complainant’s medical records, and arrived at the following observations and conclusions:

• The Complainant’s injuries had the appearance of injuries that could have occurred at or around the time of the Complainant’s police pursuit and arrest.

• All of the injuries were blunt force injuries. Blunt force injuries are caused by either the impact of a blunt object or body part (such as a fist, elbow, knee, or foot) against the body or the impact of the body against a surface or blunt object.

• The injuries alone did not differentiate between the possibilities of inflicted injury (such as a blow from a fist or foot) and injuries that may have occurred in the setting of moving through dense vegetation in the dark, coupled with at least one fall.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from BPS:
  • Arrest Report;
  • Event Details;
  • List of Involved Officers;
  • Notes of WO #1, WO #2, WO #3, WO #4 and WO #5; and
  • Supplementary Occurrence Report (x2).

Incident Narrative

At about 10:30 p.m. of the day in question, WO #2 and WO #3 observed the Complainant on a motorcycle traveling north on North Front Street. Believing the Complainant to be speeding, the officers began to follow the motorcycle as it approached Millennium Parkway. In the area of the Highway 62 and Millennium Parkway intersection, having identified the motorcycle’s licence plate marker and confirmed that it had been reported missing, WO #3 activated her cruiser’s emergency light and siren with the intention of stopping the Complainant. The Complainant, who was prohibited from driving, attempted to elude the cruiser. He performed a couple of U-turns and ultimately came to a stop in the area of the northeast corner of the intersection, whereupon he left his vehicle and ran in a northwest direction toward a Tim Hortons restaurant and gas station. He was pursued on foot by WO #2. She ordered him to stop and continued after him toward a fence located behind the restaurant and gas station. The Complainant dropped his helmet and climbed over the fence, finding himself in a fenced-in lot containing overgrown weeds, tall grass and shrubs, trees and pooled water. He proceeded further into the lot and WO #2 lost sight of him.

WO #2 called for the assistance of other officers and waited as the subject officers and WO #1 arrived. The three officers climbed over the fence and began to search for the Complainant. SO #1 and SO #2 located the Complainant lying down. The Complainant was arrested and escorted toward the fence line by the officers. As the three climbed onto a cement structure to assist them in scaling the fence, they accidentally fell off the structure. SO #1 and SO #2 are reported to have suffered minor injuries in the fall. The time was now about 11:15 p.m. The Complainant was transported to the police station.

The following morning, having been released from custody, the Complainant attended the BGH, having broken a tooth, and was diagnosed with a concussion. There is some evidence that the concussion was the result of the Complainant being punched and kicked without reason by the subject officers as they walked him toward the fence following his discovery and arrest.

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.

Section 249.1, Criminal Code -- Flight from peace officer

249.1 (1)  Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances.

Analysis and Director's Decision

The Complainant was arrested by SO #1 and SO #2 of the BPS on September 14, 2018. He is reported to have sustained a concussion and other injuries in the course of the arrest. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that the subject officers committed a criminal offence in connection with the Complainant’s arrest.

Pursuant to section 25(1) of the Criminal Code, officers may only use such force as is reasonably necessary in the execution of an act that they are required or authorized by law to do. There is no question that the Complainant had fled from the police on his motorcycle contrary to section 249.1 [2] of the Criminal Code and, therefore, was subject to lawful arrest. The question is whether there are reasonable grounds to believe the subject officers used excessive force in effecting the arrest. If it were believed that the Complainant was the victim of an unjustified beating, there would be sufficient grounds to proceed with assault-based charges against the officers. However, there is evidence belying this description of what occurred. Most forcefully, WO #1, who was present with the Complainant soon after he was discovered until he was escorted back over the fence, at no point saw either SO #1 or SO #2 strike the Complainant. The medical evidence, while largely equivocal as to whether the Complainant sustained his injuries as the result of punches and kicks, or the fall from the concrete structure and/or his interaction with the brush, also tends to undermine the suggestion the Complainant was beaten in certain respects. For example, a medical expert who reviewed the Complainant’s medical records suggested he would have expected to see more soft tissue injury to the Complainant’s face if he had been punched as much as was alleged.

In the result, I am satisfied that the record is insufficiently reliable to conclude on reasonable grounds that the injuries the Complainant suffered in and around the time of his arrest were the result of any force that might have been used against him by the subject officers, much less excessive force. [3] Accordingly, there is no reasonable basis upon which to believe that the Complainant was assaulted, and the file is closed.


Date: July 17, 2019




Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) WO #6 was not involved in the apprehension of the Complainant. He was assigned as the releasing officer at the time the Complainant was released from police custody on September 15, 2018. WO #6 did not make notes regarding his conversation with the Complainant before he was released. [Back to text]
  • 2) Presently, section 320.17. [Back to text]
  • 3) It is just as likely, in my view, that they were caused by the Complainant’s fall from the concrete structure and/or his contact with bushes and branches as he made his way through thick brush at night. [Back to text]