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SIU Director’s Report - Case # 18-OCI-228

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 a serious injury sustained by a 55-year-old man (the “Complainant”)

The Investigation

Notification of the SIU

On August 1, 2018, at 11:15 p.m., the York Regional Police (YRP) notified the SIU of an injury to the Complainant.

The YRP reported that on July 29, 2018, at 7:00 a.m., YRP officers responded to a domestic call at a residence located in Newmarket. A woman [later identified as the civilian witness (CW)] called 911 and told the operator that her husband, the Complainant, had left the residence on foot. The Complainant had an outstanding apprehension order under Mental Health Act (MHA).

YRP officers located the Complainant near the intersection of Gorham Street and Prospect Street. A struggled ensued between the police officers and the Complainant. The Complainant was handcuffed and transported to Southlake Regional Health Care (SRHC) and admitted in the mental health ward.

Sometime in the evening of Wednesday, August 1, 2018, the CW contacted the YRP and reported that the Complainant sustained fractures to three of his ribs during his apprehension.

The Team

Number of SIU Investigators assigned: 2
 

Complainant:

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


Civilian Witnesses

CW Not interviewed (Next-of-kin)

Witness Officers

WO #1 Interviewed
WO #2 Interviewed

Additionally, the notes from two other officers were received and reviewed.


Subject Officers

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


Evidence

The Scene

The scene was located in the area of Prospect Street and Gorham Street in Newmarket. The SIU investigators canvassed for closed circuit television recordings and witnesses around the scene and found none.

Video/Audio/Photographic Evidence


In-Car Camera System (ICCS) Recordings – Witness Officer (WO) #1’s Police Vehicle:


The SIU received and reviewed ICCS recordings of WO #1’s police vehicle from YRP. The ICCS recordings did not capture the interaction between the police officers and the Complainant and depicted the following:

  • At 9:36:56 a.m., three police officers [later identified as the Subject Officer (SO), WO #1 and WO #2] kneeled over a man [later identified as the Complainant] on a grassy sidewalk.
  • At 9:37:03 a.m., the Complainant was assisted to his feet by the SO and WO #1 and escorted to the rear passenger seat of WO #1’s police vehicle.
  • At 9:40:53 a.m., WO #1 transported the Complainant to SRHC.

Communications Recordings

The SIU received and reviewed the communications recordings related to the incident from the YRP. The communications recordings, which were not time stamped, captured conversation between the dispatcher and the responding officers.

The dispatcher transmitted over the radio that she received a call from a woman [later identified as the CW] in regards to an unwanted person [later identified as the Complainant] at her residence. the Complainant was mentally ill and was walking towards Leslie Street.

WO #1 later told the dispatcher that he had located the Complainant and was on his way to SRHC.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the YRP:
  • Detailed Call Summary Report;
  • WO #1’s Narrative;
  • Notes of the witness officers and two undesignated officers;
  • YRP policy in regards to Emotionally Disturbed Persons; and
  • In-Car Camera System (ICCS) video.

Incident Narrative

The material events in question are evident on the weight of the evidence gathered by the SIU. In the morning of the day in question, the Complainant’s wife, the CW, contacted police to report that her husband had left their residence on foot following an argument between the two. There was an outstanding Form One under the MHA authorizing the Complainant’s apprehension for purposes of a psychiatric assessment at a psychiatric facility. The SO, WO #1 and WO #2 received word of the call. The officers located the Complainant at the south-east corner of the intersection of Gorham and Prospect Streets and sought to enforce the Form One, which was still in effect. They spoke with the Complainant and made him aware that he was required to go to hospital. The Complainant objected and resisted as the officers attempted to handcuff him. He held his arms close to his chest and refused to release them. The officers walked the Complainant toward a grassy area adjacent to the sidewalk and took him to the ground. The Complainant landed on his stomach and, with his arms underneath him, continued to resist as the officers tried to wrest his arms behind his back. The SO placed a knee on top of the Complainant’s upper torso, at which point the Complainant’s struggle waned and the officer, together with WO #1, was able to handcuff him.

Following the Complainant’s apprehension, he was taken to SRHC and admitted to the mental health ward. He was subsequently diagnosed with multiple 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

The Complainant suffered multiple fractured ribs in the course of his apprehension by YRP officers on July 29, 2018. The SO was among the arresting officers and the most likely to have caused the injuries. He was, accordingly, identified as the subject officer in the SIU investigation. There are no reasonable grounds, in my view, to believe that the SO committed a criminal offence in connection with the Complainant’s apprehension and injuries.

Pursuant to section 25(1) of the Criminal Code, police officers may only use reasonably necessary force in the execution of an act that they are required or authorized to do by law. The Form One under the MHA authorizing the Complainant’s apprehension was still in effect at the time and the officers, including the SO, were within their rights in seeking to enforce it. The Complainant objected to his apprehension and refused to give up his arms to be handcuffed. In the circumstances, I am satisfied that the officers acted reasonably when they decided to walk him over to a grassy area and take him to the ground. The grounding does not appear to have been overly aggressive, nor was it successful in overcoming the Complainant’s resistance. The Complainant struggled against the officers’ efforts to control his arms on the ground and only quit struggling after the SO placed his knee on the Complainant’s back. It should be noted that there was some evidence the Complainant was struck by a knee to the right upper torso. In either event, I am satisfied on this record that the force used by the SO was measured and fell within the range of what was reasonably necessary to overcome the Complainant’s resistance and affect his apprehension.


Date: August 2, 2019




Joseph Martino
Interim Director
Special Investigations Unit