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SIU Director’s Report - Case # 18-OCI-265

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 55-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

The Niagara Regional Police Service (NRPS) notified the SIU on September 2, 2018, of an injury involving the Complainant.

The NRPS was contacted on September 3, 2018, at 8:40 a.m., to obtain the details of the incident. The NRPS reported that on September 2, 2018, the NRPS received two telephone calls from someone at a pub in Grimsby. The first call was at 1:58 p.m., when the caller reported that a man who had left the bar had been drinking and intended to drive. The police officers identified the man to be the Complainant. At 2:16 p.m., Witness Officer (WO) #1 responded to the Complainant’s house to speak with him.

At 4:04 p.m., the caller from the pub called again to report that the Complainant was calling the bar and harassing staff members. WO #4 responded to the pub, and the Subject Officer (SO) responded to the Complainant’s residence to warn him. The Complainant exited his house holding a bat and the SO grounded the Complainant on the driveway. The SO did not use any weapons against the Complainant.

The Complainant sustained lacerations to his forehead and nose, and he was transported to the West Lincoln Memorial Hospital. The Complainant was sedated and intubated then transferred to the Hamilton General Hospital for CT scans. At 10:32 p.m., the Complainant was diagnosed with a broken nose.

The NRPS advised that the Complainant was charged with assaulting a police officer with the intent to resist arrest, and he would be released from police custody. 
 

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

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

Witness Officers

WO #1 Not interviewed, but notes received and reviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

The Complainant resides in a single detached home with a front door and a side door. There was a small porch at the front of the house with wooden steps. The side door leads to the driveway.

The scene was a gravel driveway that ran along the east side of the Complainant’s house. There was a considerable pool of blood on the driveway, about two metres away from the side entrance to the house. [1]

Communications Recordings

On September 2, 2018, at 1:57 p.m., Civilian Witness (CW) #2 called the police to report an impaired driver, whom she described as a Caucasian man, 55-years-old, wearing khaki pants and a baby blue button up shirt. She said the man operated a brown SUV and provided the vehicle’s licence plate number. [2] CW #2 said the man slurred his speech and almost fell down the stairs.

At 2:03 p.m., the police dispatcher assigned a suspected impaired driver call to the SO. At 2:05 p.m., a licence plate query showed the registered owner of the involved vehicle was the Complainant. At 2:14 p.m., WO #1 arrived at the Complainant’s address and reported the involved vehicle was in the driveway and he was going to do a door knock. At 2:17 p.m., the SO arrived at the Complainant’s address. At 2:21 p.m., the SO said no further checks were needed. At 2:25 p.m., the SO’s status changed to in-service, and the case was cleared, as the Complainant had denied driving anywhere.

At 4:04 p.m., a second complainant from the pub [now known to be CW #3] called the police to report that the man was calling the pub and harassing employees for having earlier called the police on him.

At 4:16 p.m., the SO arrived at the Complainant’s address. At 4:18 p.m., a man [now known to be the Complainant] called 911 and said, “Yes” when the call-taker asked if he needed the police, fire or an ambulance. At 4:20 p.m., WO #4 asked the SO to caution the Complainant not to call the bar or attend that location. The SO reported he had a “92” [a person in custody], and in the background of the radio transmission a man [believed to be the Complainant] said to call his lawyer. At 4:23 p.m., the SO said the man’s head was split and the man was still fighting with him. A man [believed to be the Complainant] yelled “help me” in the background of the radio transmission.

At 4:27 p.m., WO #3 arrived at the address. At 4:32 p.m., the SO said everything was “10-4” and an ambulance had just arrived. At 4:45 p.m., WO #2 arrived. At 4:56 p.m., WO #2 reported the Complainant was being difficult, and WO #2 would be riding in the back of the ambulance.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Communication Recordings;
  • Detailed Call Summary;
  • General Occurrence Report;
  • Notes of all witness officers and the subject officer;
  • Scene Photographs; and
  • Time Stamps for Communication Recordings.

Incident Narrative

The information collected by the SIU in its investigation gives rise to the following sequence of events. In the early afternoon of the day in question, the Complainant had frequented a bar in Grimsby. When the Complainant left the bar, CW #2 called the police and said the Complainant was about to operate his vehicle while impaired. The SO attended at the Complainant’s residence and cautioned him about driving drunk. The Complainant denied having done so.

Later that day, the SO had occasion to visit the Complainant’s residence a second time. The Complainant had called the bar harassing its staff for having called the police, prompting a further call to the police expressing concern over the phone calls. The SO knocked on the front door and, receiving no answer, made his way to the side door. The Complainant eventually exited the home from the front door holding a child’s baseball bat in his possession and moving toward the officer. The SO took the Complainant down and maintained him on the ground pending the arrival of WO #4, whereupon the officers were able to subdue a belligerent Complainant and secure him in handcuffs.

The Complainant had sustained a cut to the forehead and an ambulance was called to the scene. He refused to cooperate with the paramedics and had to be sedated prior to being taken to hospital. At hospital, the Complainant was diagnosed with a broken nose, a fractured spine and a laceration to the forehead.

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 the SO in the afternoon of September 2, 2018, and suffered injuries in the process. 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 injuries.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of anything that they are required or authorized to do by law. When the Complainant advanced toward the SO wielding a baseball bat, the officer had every reason to believe he was being assaulted and was entitled therefore to effect an arrest. While the precise manner in which the grounding occurred remains unknown, it would appear that the Complainant landed face first. There is no indication of any further significant force having been applied by either the SO or WO #4, the latter having arrived after the grounding, other than what was required to wrest control of his arms and handcuff them behind his back. On this record, faced with an individual he had reason to believe was inebriated, had been abusive to staff working at a bar and was now advancing quickly in his direction with a baseball bat, the SO was entitled in my view to act quickly to meet the threat by taking the Complainant to the ground where he could better control him. While it is regrettable that the Complainant suffered serious injuries as a result, I am unable to reasonably conclude on this record that the force used by the SO ran afoul of the limits prescribed by the criminal law. Accordingly, there are no grounds for proceeding 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

Footnotes

  • 1) The blood on the driveway covered an area of about six inches by eight inches. [Back to text]
  • 2) CW #2 initially provided an incorrect licence plate number for the Complainant’s vehicle. The dispatcher spoke with CW #2 a second time and CW #2 provided the correct licence plate for the Complainant’s vehicle. [Back to text]