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SIU Director’s Report - Case # 18-PCI-216

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 a serious injury sustained by a 59-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 20, 2018, at 2:36 p.m., the Ontario Provincial Police (OPP) in Pembroke advised the SIU of the Complainant’s serious injury.

According to the OPP, on Tuesday, July 17, 2018, at approximately 11:00 a.m., the Complainant was observed ‘shoplifting’ items from a convenience store in Bath, Ontario.

The store clerk observed that the Complainant made no effort of any kind to conceal the merchandise as he walked outside the store and to his residence. Police were called and WO #4 responded to investigate the incident. Witness officer (WO) #4 discovered the Complainant on stairs at his residence holding two bongs, meaning drug paraphernalia. She began inquiries whereby the Complainant attacked WO #4 who attempted to repel his attack with a Conducted Energy Weapon (CEW) without success.

The subject officer (SO) arrived to assist and deployed his CEW to repel the Complainant also with no success. The SO transitioned to his extendable baton commonly known as an ‘ASP’ and the baton was used to subdue the Complainant.

Emergency Medical Service personnel attended and transported the Complainant to the Lennox and Addington County General Hospital (L&ACGH) to be examined following his arrest. The Complainant was, according to an OPP officer not yet identified, overheard telling the paramedics that he had difficulty breathing for several weeks before the incident.

A physician informed the officers that the Complainant’s injuries were “not as a result of police interaction.” At the time of this initial report, the OPP had no information as to the nature of the injuries.

The Complainant’s condition deteriorated at the L&ACGH and he was transferred to the Kingston General Hospital (KGH) where he is currently a patient in the Intensive Care Unit (ICU) suffering from “acute traumatic injuries and on life support.”

At some point following the Complainant’s admission to the hospital, a social worker advocated on behalf of the Complainant by attending Napanee City Hall demanding staff there notify the police of the Complainant’s condition.

On July 20, 2018, at 3:36 p.m., the OPP further informed the SIU that the Complainant had been diagnosed with a “flail chest” meaning a life-threatening condition that occurs when a segment of the rib cage breaks due to trauma and detaches from the rest of the chest wall, and a tear in his aorta that may require surgery to repair. 

The Team

Number of SIU Investigators assigned: 2
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed


Subject Officers

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


Evidence

The Scene

The scene is located at the rear of the Complainant’s residence in Bath. The building is a two-storey complex with apartments on the second floor. There is a gravel parking lot at the rear of the premises. A set of stairs lead up to the common area of the apartments at the rear of the building. There are no closed circuit television camera (CCTV) cameras which monitor the rear parking lot.

Forensic Evidence


Data Downloaded from CEWs

Both cartridges of the CEW presumably used by WO #4 were discharged at the time of the incident. The first occurred at 3:08:08 p.m. and was associated with three trigger pulls, each lasting five seconds in length. The second occurred at 3:08:39 p.m. and was associated with two trigger pulls lasting a total of six seconds.

Both cartridges of the CEW presumably used by the SO were discharged at the time of the incident. The first occurred at 3:12:44 p.m. and was associated with two trigger pulls lasting a total of six seconds in length. The second occurred at 3:13:00 p.m. and was associated with two trigger pulls lasting a total of 29 seconds.

Video/Audio/Photographic Evidence

A copy of the CCTV was obtained from the convenience store; however, there was no CCTV camera footage available from the scene of the arrest.

Communications Recordings

At 1:40:31 p.m., a person contacted the OPP to report a theft at a convenience store in the Town of Bath. The caller explained that a male walked behind the counter where he took two packages of cigarettes and a drink then exited the store. The suspect male was described to be in his 60’s or 70’s, 5’6” or 5’8” with a medium build, and dressed in a white/blue hat, black t-shirt, white/blue shorts and backpack. The male was described as a resident known in the area and the caller did not believe he was stable. The male suspect was captured on CCTV.

At 1:46:11 p.m., the communications operator requested that an available unit attend for a theft that had just occurred at the convenience store. She then informed the SO of the call information and that there were no available OPP officers to respond. The SO transmitted that the call would remain in idle until an OPP officer became available.

At 2:06:18 p.m., the SO informed the communications operator that WO #4 would be available to field calls for service.

At 2:06:35 p.m., WO #4 transmitted to the communications operator that she would be clearing from an MVC and respond to the theft.

At 2:12:54 p.m., WO #4 reported that she was en route to the theft in the Town of Bath.

The dispatcher broadcasted the information received from the police complainant with respect to the theft and description of the suspect.

At 3:08:43 p.m., WO #4, breathing heavily, requested assistance. She then yelled, “Get down.”

At 3:08:52 p.m., the communications operator requested her location.

At 3:09:00 p.m., the communications operator broadcasted a 10-78 (officer requires assistance) and requested OPP officers attend the Town of Bath.

At 3:09:07 p.m., the SO transmitted that he was in the Town of Bath and requested WO #4’s location.

The communications operator broadcast the location where the WO #4’s vehicle was showing.

At 3:09:24 p.m., the communications operator requested 10-3 (radio silence).

At 3:09:58 p.m., WO #3 transmitted he was en route from Highway 401 and County Road 4.

Several unknown OPP officers were responding and notifying the communications operator without a fulsome call sign transmitted.

At 3:11:17 p.m., it appeared that the radio emergency button was pressed and a distinct beep could be heard.

At 3:11:21 p.m., the communications operator asked for the SO to confirm if he was with WO #4.

At 3:11:48 p.m., CW #2 contacted the OPP communications centre to report that a female OPP officer was in trouble and provided the location. The caller further explained that the OPP officer was trying to arrest someone and they were wrestling on the ground. The caller described that the OPP officer had their firearm out and it appeared as if she required assistance.

At 3:11:49 p.m., the communications centre supervisor transmitted he was monitoring the call.

At 3:12:01 p.m., WO #1 requested further directions which were then provided by the communications operator.

The communications operator broadcasted that information received from a female caller was that a female OPP officer was wrestling with a person and her firearm was drawn.

WO #4 broadcasted that the male was tasered and 10-92 (person in custody).

At 3:13:27 p.m., the communications operator transmitted that the male was in custody.

At 3:14:08 p.m., WO #4 confirmed that both she and the SO were okay.

Multiple OPP officers were taken off the call for service and others arrived on scene.

At 3:22:11 p.m., the SO requested an ambulance to assess the male.

At 3:45:51 p.m., WO #4 reported that the ambulance was on scene in response to the communication operator’s request for a status check.

At 4:00:41 p.m., the SO informed the communications operator that he would be following the ambulance to the hospital.


Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • CAD Event Details;
  • Communications
  • Data downloaded from CEWs;
  • Email re Enclosing Event Details-July 23, 2018;
  • General Occurrence Report;
  • Notes of all witness officers;
  • Request for Communications; and
  • Training Record of the SO and WO #4.

Incident Narrative

There is some uncertainty around the circumstances of the Complainant’s arrest as the SO declined to be interviewed, as was his legal right, and there is limited evidence about what occurred. What is known of the transaction is gleaned largely from the evidence of the second arresting officer who was present throughout the interaction and and a civilian eyewitness who happened upon the scene, namely, WO #4 and CW #2, as well as the data downloaded from the CEWs that were used. At around 1:40 p.m., the OPP received a call of a theft that had just been committed at a convenience store in the Town of Bath. WO #4 attended the store and reviewed a security video recording which depicted the Complainant committing the theft. The officer made her way to the Complainant’s address and located him in a lot outside the rear of his residence. WO #4 asked to speak with the Complainant about the theft, but he was not interested in discussing the matter. When the officer told him he was under arrest for the theft, the Complainant’s ire escalated and he started to push and grab at the officer. WO #4 tried to reason with the Complainant but his behaviour was undeterred. Having attempted and failed to ground the Complainant, the officer drew her CEW and threatened to use it if the Complainant did not desist. He did not and was met with a CEW discharge aimed at his upper chest. The deployment only temporarily immobilized the Complainant. He continued to come at WO #4 grabbing her wrists, prompting the officer to discharge her CEW a second time. Again, the Complainant locked up for a short period but quickly resumed his combative behaviour. WO #4 called for assistance and the SO was soon on scene.

The SO arrived to find the Complainant holding WO #4 from behind in a bear hug of sorts. When the opportunity presented itself, the SO deployed his CEW, and then again when the first deployment, though meeting its mark, proved ineffective. When the second discharge was of similar effect, the SO drew his baton, extended it and struck the Complainant a number of times. The Complainant was felled by the strikes but still kept his arms clenched tightly underneath him as the officers attempted to secure him in handcuffs. The SO and WO #4 were eventually able to wrest control of the Complainant’s arms and place him in handcuffs. The Complainant was placed in the SO’s vehicle and then, with its arrival, an ambulance for transport to the hospital.

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

In the afternoon of July 17, 2018, the Complainant was arrested by OPP officers outside his residence in Bath. One of the arresting officers was identified as the SO. The Complainant complained of difficulty breathing following the arrest and was taken to hospital. His condition deteriorated, and he was subsequently treated for a tear in his aorta and flail chest – a life-threatening condition that occurs when a segment of the rib cage becomes detached from the rest of the rib cage. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.

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. There is little doubt that the officers had grounds to arrest the Complainant as they attempted to take him into custody. The Complainant had been captured on a video recording stealing items from a convenience store. The real issue is whether the Complainant was subjected to excessive force in the course of his arrest. In my view, the evidence falls short of a reasonable conclusion to that effect. For whatever reason, the Complainant was in a combative mood when WO #4 first approached him. Despite the officer’s repeated attempts to reason with the Complainant, he continued to push and grab at her. In the circumstances, WO #4 was entitled to meet the Complainant’s aggression with force and I am satisfied that she did so within reasonable limits. Thus, for example, she had good cause to discharge her CEW a second time when the Complainant’s assaultive conduct continued after the first discharge. Similarly, the SO, freshly arrived on scene and a witness to the Complainant’s violence, was in my view within his rights to deploy his CEW twice and then deploy his baton when the CEW failed to incapacitate the Complainant. While the number of baton strikes that the SO delivered is unclear, the evidence in its totality suggests he struck the Complainant’s arms and legs, and possibly even his chest. It was only after the baton strikes that the officers were able to ground the Complainant, overcome his resistance and secure him in handcuffs. On this record, the evidence is incapable in my view of giving rise to a reasonably grounded belief that the force used against the Complainant was more than was reasonably necessary to meet his violence and effect his arrest. In arriving at this conclusion, it is important to bear in mind that police officers confronted with violence are not expected to measure their responsive force to a nicety; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.).

In the result, while I accept that the force used by the officers and, in particular, the SO’s baton strikes, may have caused the Complainant’s rib injuries, I am satisfied on reasonable

grounds that the force used was legally justified. Accordingly, there is no basis to proceed with criminal charges in this case and the file is closed.


Date: August 26, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit