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SIU Director’s Report - Case # 18-OCI-256

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 36-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 28, 2018 at 3:00 p.m., the St. Thomas Police Service (STPS) contacted the SIU and reported an injury to the Complainant. The Complainant was arrested at a residence in St. Thomas. A subsequent assessment at St. Thomas Elgin General Hospital revealed a fractured rib.

The Team

Number of SIU Investigators assigned: 3

Complainant:

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


Witness Officers

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


Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The building was an older home converted into individual apartment units. The common entrance is accessed via the front stairs. A woman resided in unit one on the main floor. The main floor hallway has a trap door which leads to the basement.

The basement was an unlit utility area with windows providing ambient light. There were several water heaters, a furnace, and debris throughout the room. The floor was cement. At the far end of the basement was a crawl space raised several feet above the basement floor. The interior of the crawl space was about three feet high with a dirt floor. It extended to the end of the building. There was debris and construction material discarded at the entrance and inside the crawl space. There was no surveillance video of the interior of the building.

Communications Recordings

The SO was recorded in a phone conversation with the woman residing in the apartment. He arranged through her to obtain her apartment keys to search her residence for the Complainant. He told her a neighbour reported seeing the Complainant enter the building at 7:00 a.m., the morning of August 28, 2018. The woman had changed the locks as a result of the previous day’s events and suggested the Complainant could not get into her apartment without breaking something. She further stated that in the past the Complainant had hidden in the crawl space and listened to the activities in her apartment.
At 11:50 a.m., the SO and WO #1 arrived at the residence. At 11:55:03 a.m., WO #1 broadcast he had located the Complainant in the crawl space. Indecipherable yelling is heard in the background. A minute later a microphone was keyed open with brief sounds of a struggle. At 11:56:24 a.m., WO #1 broadcast the Complainant was in custody.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from STPS:
  • Arrest Report August 28, 2018;
  • Computer Aided Dispatch (CAD) Event Details;
  • General Report - Complainant arrest on warrant;
  • General Report - previous domestic no offence;
  • General Report - previous attempted break in August 22, 2018;
  • General Report - substantive assault offences August 27, 2018;
  • Notes and Will State of all witness officers;
  • Occurrence Summary the Complainant;
  • Prisoner Booking Document;
  • Communications recordings; and
  • STPS Scene photos.

Incident Narrative

On the day in question, there was a warrant in effect for the arrest of the Complainant. In addition, the police were aware of information indicating that the Complainant had the day prior broken into the residence of his former common law wife, and threatened and assaulted her before leaving. With his partner, WO #1, the SO attended the residence in search of the Complainant to arrest him. They located him in a small crawl space located in the basement of the building. The crawl space was situated under the floor of the apartment. The Complainant crawled out toward the officers at their direction, and was taken to the ground by the SO and WO #1 when he was within reach. There followed a brief struggle in the course of which the officers had difficulty handcuffing the Complainant until they were able to control his arms following a punch to the right side and a knee strike to the left torso delivered by the officers. Following his arrest, the Complainant was taken to hospital, where his injury was diagnosed.

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 arrested by STPS officers on August 28, 2018 and suffered a fractured rib in the process. The SO was one of the arresting officers and seems likely to have been most responsible for the injury. For the reasons that follow, I am satisfied there are no reasonable grounds to believe 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 required or authorized to do by law. The officers were acting within the confines of their lawful authority in seeking to arrest the Complainant based on the outstanding arrest warrant and the information at their disposal regarding the assault the Complainant had allegedly perpetrated the day before. Having located him hiding in a crawl space, the SO and WO #1 reasonably concluded, in my view, that it would be prudent to ground the Complainant at the first opportunity. They did so, and thereafter found themselves in a struggle to handcuff the Complainant’s hands, during which WO #1 was struck by the Complainant’s elbow. It may well be that the Complainant could not easily surrender his arms owing to the position he found himself in on the ground. Be that as it may, the officers were in confined quarters and aware of the Complainant’s potential for violence; they did not have the luxury of time and could reasonably conclude in the heat of the moment that they were dealing with a wholly recalcitrant individual. On this record, a single knee strike and punch, delivered by the SO and WO #1, respectively, strike me as falling within the range of what was reasonably necessary in the circumstances to secure the Complainant’s arms in handcuffs.

In the result, as I am satisfied on reasonable grounds that the force used by the officers was legally justified, there are no grounds to proceed with criminal charges in this case and the file is closed.


Date: August 19, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit