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SIU Director’s Report - Case # 18-OCI-242

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 53-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 13, 2018, at 9:57 p.m., the Durham Regional Police Service (DRPS) reported an injury to the Complainant. The DRPS advised that on August 11, 2018, at 12:55 a.m., police officers from the DRPS arrested the Complainant at a pub in Oshawa. The Complainant attended the DRPS on August 13, 2018 at 9:30 p.m. and reported that his left wrist was fractured during his arrest.

The Team

Number of SIU Investigators assigned: 2
 

Complainant:

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


Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Not interviewed, but notes received and reviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Interviewed
WO #8 Not interviewed, but notes 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 of this incident is a Green “P” Self-Pay City of Oshawa Public Parking lot situated at Athol and Celina Streets in Oshawa. The lot is artificially illuminated and is a paved asphalt lot with parking for 100 vehicles. It is bordered on the north by Athol Street, on the west by Celina Street and on the east by Albert Street. There is vehicular access to this lot off of Celina and Albert Streets. There are two pedestrian accesses to this lot via the south east corner of Athol and Celina Streets and the south west corner of Athol and Albert Streets.

Video/Audio/Photographic Evidence


Closed Circuit Television (CCTV) Footage from the Pub in Oshawa


This footage showed the Complainant being escorted through the pub by a security person. The Complainant appeared cooperative until he was about to exit the front door of the premises at which time he pulled up, became uncooperative and was pushing back and resisting the security person’s efforts to remove him. The security person with one hand on the back of the Complainant then pushed him out of the front door and the Complainant walked out of view southbound onto the street from the pub. This footage showed no interaction between the Complainant and any police officer.

CCTV Footage from Albert Street


This footage captures a very small portion of the north east corner of the public parking lot at Albert and Athol Streets where the Complainant was apprehended by DRPS. The footage was very distorted, lighting was very poor and overall, images very unclear. There is no audio. This footage does not show any interaction between the Complainant and any police officer.

Communications Recordings

A review of this recording simply revealed the original radio call, the apprehension of the Complainant nearby and police officers advising that witnesses had been interviewed at the pub and no person(s) ever saw the Complainant with a knife. It did not provide any relevant information or advance the investigation.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the DRPS:
  • CAD Call Report;
  • Communication Recordings;
  • Duty Sheets;
  • General Occurrence Report (x3);
  • Notes of WO #2, WO #3, WO #4, WO #5 and WO #6;
  • Procedure-Arrest and Warrant Applied For;
  • Procedure-Police Use of Force;
  • Procedure-Memo and Note Taking;
  • Training Records-the SO; and
  • Will State of WO #1, WO #2, WO #3, WO #4, WO #6, WO #7 (x2) and WO #8.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU. The Complainant had been ejected from a pub in Oshawa, and a member of the pub’s staff called 911 and reported that he had a knife. Several officers were sent to the scene, the SO among them. The Complainant was quickly located walking in the parking lot just south of the bar. The SO approached the Complainant and directed him to stop and get to the ground. The Complainant immediately complied and was quickly handcuffed behind the back. The SO informed him he was being investigated in relation to concerns that he might have threatened persons with a knife. The officer searched the Complainant but found no knife. Other officers attended the bar and quickly ascertained that no one had actually seen the Complainant with a knife and a search of the parking lot failed to reveal any knives in the area. Satisfied there was no evidence to suspect the Complainant had committed any wrong, the SO released the Complainant from the handcuffs and sent him on his way.

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 was briefly detained in handcuffs in the early morning hours of August 11, 2018 by an officer with the DRPS. The detention occurred in the City of Oshawa parking lot located at the southeast corner of Celina Street and Athol Street East. There is reason to believe that the Complainant’s left wrist was fractured in the course of his hands being handcuffed. For the reasons that follow, there are no reasonable grounds to believe that the officer who detained the Complainant and handcuffed him, the SO, committed a criminal offence in connection with the Complainant’s detention.

Pursuant to section 25(1) of the Criminal Code, police officers are exempt from liability for force used in the course of their duties if the force in question is no more than is reasonably necessary in the execution of an act that they are required or authorized to do by law. Given the information that was reported during the 911 call, namely, that the Complainant was armed with a knife and had returned to a bar after being ejected, I am satisfied that the SO had reasonable grounds to suspect the Complainant was implicated in a crime, and the officer was therefore within his rights in detaining him to investigate the matter: R. v. Mann, [2004] 3 SCR 59. I am further satisfied that the SO had lawful grounds to search the Complainant for the knife to ensure his safety as the investigation unfolded: Mann, supra. The only force that was applied, and it was minimal at most, was the SO taking hold of the Complainant’s arms and handcuffing them behind his back. By all accounts, the handcuffing was entirely uneventful. At no point did the Complainant resist what was happening, and he was released within minutes. Regrettably, while it may well be that the application of the handcuffs caused the Complainant’s injury, I am unable to reasonably conclude on the record that the SO used excessive force in securing the Complainant’s hands. The officer had good cause to be concerned about a potentially dangerous weapon in the Complainant’s possession and acted reasonably in taking steps to meet that risk.

In the result, as I am satisfied on reasonable grounds that the SO was legally justified in the force he used in detaining the Complainant, there is no basis to proceed with criminal charges and the file is closed.


Date: August 14, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit