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SIU Director’s Report - Case # 18-OCI-208

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 64-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On Monday, July 16, 2018, at 9:32 a.m., the Ottawa Police Service (OPS) contacted the Special Investigations Unit (SIU) and reported the following:

The OPS reported that on Friday, July 13, 2018, at 3:30 a.m., OPS police officers responded to a call in front of the OPS building for a man [now known to be the Complainant] that had threatened the call taker from the OPS communications centre.

OPS police officers attended the front door of the police station and found the Complainant on a motorized scooter. The Complainant threatened the officers with a hammer before fleeing the area on his motorized scooter. He stopped a short distance away and threatened the police officers with the hammer again. A conducted energy weapon (CEW) was deployed and the Complainant was subsequently arrested. The Complainant was transported and lodged in the cells. He was later transported to the Ottawa Carlton Detention Centre (OCDC) and complained that his left leg was fractured (his left leg is amputated one inch below the knee). He was taken to the Ottawa General Hospital (OGH), where he was diagnosed with a fractured left fibula. The Complainant was released with no further treatment.

The Team

Number of SIU Investigators assigned: 2
 

Complainant:

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


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located at the intersection of Frank Street and Elgin Street, on the northeast side of the Elgin Street Diner, located in the City of Ottawa. The surrounding area was a dense urban setting with concrete and asphalt for the varying ground surfaces.

Video/Audio/Photographic Evidence


Ottawa Police Service Closed Circuit Television (CCTV) – Summary


The OPS CCTV captured an interaction with the Complainant and members of the OPS.

The Complainant approached the main entrance of the OPS station, located at 474 Elgin Street. He engaged in a conversation with an OPS employee operating an intercom system. The Complainant held a hammer in his hand while he communicated through the intercom. At the completion of his conversation, the Complainant accelerated up and down the sidewalk in front of the OPS station, striking cylindrical barriers with the hammer.

The Complainant reached towards his right hip and grabbed a knife with a silver blade. He held it in his right hand while continuing to operate his motorized wheelchair. The Complainant confronted an unknown female by driving his wheelchair in front of her. He waved his hammer around with his left hand before the female left the area. The Complainant approached a tree and stabbed it twice with the knife using his right hand.

The Subject Officer (SO) exited the police station. The Complainant accelerated towards the SO while holding the knife and hammer in his hands. The SO stepped back behind a concrete flower box. He held his hand up in a stop motion while he drew his CEW. The Complainant turned his wheelchair around and proceeded northbound along Elgin Street on the sidewalk. The SO jogged northbound with the CEW held in his right hand, faced towards the ground.

Minutes later, a police cruiser [now known to be operated by Witness Officer (WO) #1] entered the camera’s field of view from the south and headed northbound on Elgin Street. The police cruiser was a marked sedan with the emergency lights activated.

Communications Recordings


Communications Audio - Summary


WO #1 asked the SO through a radio transmission if he was at the police station [located at 474 Elgin Street.] He continued that there was a man [now known to be the Complainant] hitting something and wanting to turn himself in to the police. The SO responded, “Yeah, he’s banging the barrier.”

The SO made a radio broadcast moments later stating that he was outside with the Complainant and the Complainant was threatening to kill them. The Complainant left the area of Argyle Street and Elgin Street. He headed northbound on Elgin Street in his motorized wheelchair. Several minutes passed without radio communications. WO #1 shouted, “You’re under arrest. Put the knife down, put the hammer down.”

A police officer made an utterance that was inaudible. An OPS dispatcher followed up after the inaudible comment with, “Checking the male for a CEW deployment?” At 3:24 a.m., a police officer made a radio broadcast stating that they were requesting the attendance of EMS to remove the CEW probes. The Complainant was breathing normally with no other injuries. At 3:33 a.m., members of the EMS arrived on scene and tended to the Complainant.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPS:
  • Accused Information Sheet-the Complainant;
  • Call Hardcopy;
  • Investigative Action Report of all witness officers;
  • Notes of all witness officers;
  • OPS Witness Statement; and
  • CCTV footage from the OPS Elgin Street Station.

Incident Narrative

The circumstances surrounding the incident are clear on the weight of the reliable evidence and may be summarized in short order. Shortly before 3:30 a.m., the Complainant approached the OPS police station at 474 Elgin Street in his motorized wheelchair. Using an intercom system located beside the door, he reported that he wanted to turn himself in for a crime he had committed. He then became very agitated and started to bang on metal parking bollards outside the station with a hammer. The SO, who had observed this behaviour from the station’s external cameras, exited the building and confronted the Complainant. By this time, the Complainant had retrieved a knife from his person and was holding it as well. The Complainant moved toward the officer and threatened to kill him. The SO found cover behind a concrete flowerbox. He then pursued the Complainant on foot as the latter began to travel north along the west sidewalk of Elgin Street, still holding the knife and hammer. WO #1, who had heard the SO broadcast the fact that he had been threatened, arrived in the area in his cruiser and followed north on Eglin Street alongside the Complainant. Both the SO and WO #1 shouted at the Complainant directing him to drop his weapons. At one point, WO #1 attempted to block the Complainant by positioning his cruiser in front of him at an intersection, but the Complainant managed to maneuver around it. As the chase neared the Elgin Street Diner just south of Frank Street, the SO, who by now had caught up to the Complainant, discharged his CEW at the Complainant. The probes struck and immobilized the Complainant, causing him to drop his hammer and roll forward out of his wheelchair onto the ground. The knife was then kicked from the Complainant’s hand by WO #1 after the CEW discharge cycle came to an end. Paramedics were summoned to the scene, removed the CEW probes and medically cleared the Complainant, following which he was taken to the station. The Complainant was subsequently taken to hospital and diagnosed with a fracture to his left leg.

Relevant Legislation

Section 25(1) and 25(2), 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 a fracture to his left fibula in the course of his arrest by OPS police officers in the early morning hours of July 13, 2018. The subject officer in the SIU’s investigation was one of the arresting officers. For the reasons that follow, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in the force they may use to that which is reasonably necessary in the execution of an act that they are authorized or required to do at law. I have no hesitation in finding that the SO was in the lawful discharge of his duties in seeking to take the Complainant into custody at the time he discharged his CEW. The Complainant had threatened him while holding a knife and hammer, and was clearly liable to arrest. I am further satisfied that the force that was used, namely, a single CEW discharge, was reasonably necessary in the circumstances. The Complainant was armed with dangerous weapons and had demonstrated a willingness to use them against the officer. The SO’s fears for the safety of the public were also well-grounded as the Complainant moved toward a group of pedestrians in the area of a restaurant. The Complainant had ignored repeated directions that he stop and drop his weapons, and had managed to circumvent a block established by WO #1 with his cruiser. On this record, the SO’s decision to immobilize the Complainant from a safe distance through the use of his CEW was in my view a measured and proportionate use of force that fell within the range of what was reasonably necessary to effect the Complainant’s arrest.

In the result, while I accept that the Complainant’s leg fracture likely occurred as he fell forward out of his wheelchair after being struck with a CEW discharge, there are no reasonable grounds for proceeding with charges in this case and the file is closed.



Date: August 1, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit