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SIU Director’s Report - Case # 18-OCI-312

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 custody injury sustained by a 17-year-old youth (the “Complainant”).

The Investigation

Notification of the SIU

On October 23, 2018 at 11:09 p.m., the London Police Service (LPS) notified the SIU of an injury sustained by the Complainant at 4:30 p.m. of the same date at a group home in London.

The Team

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

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed 

Witness Officers

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


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located on the front lawn and driveway of a group home. The residence, which was on the east side of the roadway, had a driveway to the south of the front lawn.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the LPS:
  • Call Hardcopy;
  • Detention Record;
  • General Occurrence Report;
  • Notes of witness officers and the subject officer;
  • Prior Occurrences on TD-Large Document form;
  • Procedure-Use of Force;
  • Procedure-Arrest;
  • Procedure-Young Persons and Youth Investigations;
  • Will State of witness officers and the subject officer; and
  • Communication recordings.

Incident Narrative

While there is some discrepancy in the information collected by the SIU, which includes statements from the Complainant, the SO, and a host of civilian and police witnesses, the following story emerges from the weight of the evidence. At about 4:15 p.m., the LPS were called to a group home in London in relation to a youth committing a weapons offence.

WO #1 and WO #5 were the first to arrive on scene in their cruiser, followed closely by the SO and WO #3. They were aware that the complaint involved a youth who was armed with a knife, had threatened to use it to harm himself and others, and was very violent. There is evidence that by the time of their arrival, the Complainant had discarded the knife but was holding a cordless phone. The Complainant stood in front of the home’s porch as the officers approached him from the road. WO #1 tried to speak with the Complainant encouraging him to put the knife down; it appears the officers were not aware that the Complainant was no longer holding a knife. The Complainant was unappeasable. He yelled at and threatened the officers, and challenged them to shoot him.

WO #3 was the first to physically engaged the Complainant. He did so fearing for the safety of a group resident and workers standing on the home’s porch when the Complainant turned toward them and took a step in their direction. The officer grabbed hold of the Complainant from behind in a bear hug. His partner, the SO, soon followed and wrapped his left arm around the Complainant’s head. The Complainant fought vigorously against the officers’ efforts to control him. The three rammed into a vehicle parked in the home’s driveway before making their way onto the front lawn, where the Complainant was grounded. The Complainant resisted while on the ground, at one point biting the SO’s left leg above the knee. The SO reacted by punching the Complainant two to three times to the right side of his face. The Complainant also kicked upwards with his leg, striking WO #5’s right eye. In response, the officer delivered two knee strikes to the Complainant’s thigh. The SO and WO #3 were eventually able to wrest control of the Complainant’s arms and, with the help of WO #1, handcuffed them behind his back.

The Complainant, with his arms restrained and still on the ground, continued to kick at the officers around him, striking WO #1 and WO #5. Because he was still biting at the air and spitting in the officers’ direction, WO #4 placed a spit mask over him. A prisoner transport vehicle arrived at the scene and the Complainant was lodged inside and taken to 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 October 23, 2018, outside a group home in London, the Complainant was arrested by LPS officers and suffered injuries as a result, the most significant of which was a fractured right orbital bone. Among the arresting officers, the SO was identified as being the one most likely to have caused the fracture. For the reasons that follow, there are no reasonable grounds to believe that he or the other officers committed a criminal offence in connection with the Complainant’s arrest and injuries.

There is no question that the Complainant was subjected to physical force in the course of his arrest. The only issue is whether the force in question constitutes an unlawful assault at the hands of the officers, or whether it was legally justified. Pursuant to section 25(1) of the Criminal Code, police officers are immunized from liability for force used in the course of their duties provided such force was no more than was reasonably necessary in the execution of an act that they were required or authorized to do by law.

I accept that the Complainant’s arrest was lawful. Displeased with staff at the group home when it appeared they were not in favour of his participation in a community work program, the Complainant lashed out at them, armed himself with a knife, and threatened to do him and them harm with it. The officers who arrived on scene were aware of this information and were within their rights in seeking to arrest the Complainant for his violent behaviour.

I am also satisfied on reasonable grounds that the force used by the officers in aid of the arrest was legally justified. The violence that prompted the 911 call to police was still on display as the officers arrived. Though the officers could not see a knife in the Complainant’s possession, he was wearing loose fitting clothing and they were entitled to proceed with caution lest the knife be hidden on the Complainant’s person. WO #1 was the first officer to confront the Complainant. He trained his Conducted Energy Weapon at him as a precaution, reasonably so in my view, and tried to de-escalate the situation verbally. The Complainant could not be placated. When the Complainant turned toward the porch, WO #3 approached the Complainant from behind and placed him in a bear hug. The SO joined the fray and placed the Complainant in a headlock. I find no fault with the officers’ decision to physically engage the Complainant at this time; given the Complainant’s erratic behaviour, they had legitimate cause to be concerned for the safety of the people standing on the porch in close proximity to the Complainant. There followed a brief but strenuous wrestling match in which the Complainant proved a formidable opponent. The officers forced the Complainant onto the ground and were eventually able to overcome his resistance and restrain him in handcuffs, but not before the Complainant bit into the SO’s left leg and was met with two to three punches to the head, likely fracturing his orbital bone. In assessing the necessity of these punches, I remind myself that officers involved in violent and dynamic situations are not expected to measure their responsive force with precision; they are afforded some latitude in the heat of the battle: R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 C.C.C. (2d) 96. The SO was in the middle of such a battle. In the circumstances, I am unable to reasonably conclude the punches fell outside the range of what was reasonably necessary at the time to quell the Complainant’s violence and assist in his arrest. The same may be said, in my view, of the knee strikes delivered by WO #5 after being kicked in the right eye by the Complainant.

In the final analysis, there being no evidence to reasonably believe that the conduct of the officers, including the subject officer, ran afoul of the criminal law’s proscriptions regarding excessive force, there is no basis for proceeding with charges in this case and the file is closed.


Date: September 13, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit