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SIU Director’s Report - Case # 18-OCI-356

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 47-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 13, 2018, at 2:00 p.m., the Guelph Police Service (GPS) reported an injury to the Complainant. The GPS advised that the Complainant had sustained a broken nose during his arrest by the GPS the previous day.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned:

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 [1] Not interviewed, but provided a written statement

Witness Officers

WO #1 Interviewed
WO #2 Interviewed

Additionally, the notes from one other officer were received and reviewed.


Subject Officers

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


Evidence

The Scene

The incident occurred in the entrance lobby of the Scotiabank at 83 Wyndham Street South. There are double glass doors which led through an approximately 12 foot by 12 foot ante-room. The second set of double doors led into the large lobby which housed the ATM on the far wall. The bank proper was separated by a sliding and locked partition. The area has four recorded surveillance cameras. The cameras are live monitored by Scotiabank Security.

The struggle between the SO and the Complainant occurred in the ante-room after the SO maneuvered the Complainant from the lobby into the ante-room.

Communications Recordings

On December 12, 2018 at 3:33 a.m., the SO was dispatched along with WO #1 to attend the Scotiabank for trespassers. At 3:37:17 a.m., the SO broadcast, “WO #1, you want to get here a little quicker?” [2]

At 3:38:52 a.m., WO #1 requested that an ambulance attend their location. The Complainant was reported to have refused treatment and was transported to cells.

Video/Audio/Photographic Evidence

The interior of the Scotiabank lobby had four cameras situated to see every angle of the ATM lobby. The Complainant was depicted asleep against the wall on the floor of the lobby. His associates arranged bedding on the floor opposite him. The SO entered the unlocked double doors of the lobby. He stood beside the Complainant while he appeared to speak to the other people. The SO tapped the bottom of the Complainant’s left foot with his right foot several times. It did not rouse the Complainant. When the Complainant woke, he remained seated on the floor. After some discussion the SO touched the Complainant’s left shoulder. The Complainant remained seated. After further conversation, the Complainant rose to his feet quickly and aggressively. His girlfriend, CW #1, restrained him in the corner by the exit door. The SO approached and with his left arm wrapped on the Complainant’s torso physically escorted him out the door and into the ante-room. There was a brief struggle. The Complainant’s back was to the SO’s chest. The Complainant pushed the SO into the far corner of the ante-room. The SO responded by grasping the Complainant in a bear hug and swept his feet. Both the SO and the Complainant fell to the floor. WO #1 entered the ante-room and helped apply handcuffs to the Complainant.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the GPS:
  • Arrest Report- the Complainant;
  • Computer Aided Dispatch (CAD) Event Details;
  • GPS Civilian Witness List;
  • GPS Police Witness List;
  • GPS Preservation Demand for Scotiabank surveillance video;
  • NICHE Profile- the Complainant;
  • Notes of the SO, witness officers and an undesignated officer;
  • Written Statement of CW #2 (Student Ride-Along);
  • GPS Forensic Identification Photos - the Complainant;
  • Scotiabank Surveillance Video;
  • Scotiabank Security report;
  • Prisoner Log - the Complainant; and
  • Prisoner Property Sheet - the Complainant.

Incident Narrative

The events in question are clear on the information collected by the SIU, which included statements from the Complainant, a civilian eyewitness and a witness officer, as well as a video recording that captured the arrest and the moment of the Complainant’s injury. At about 3:30 a.m. of December 12, 2018, the SO and WO #1 were dispatched to 83 Wyndham Street South following a call to police reporting that persons were trespassing in the lobby of the premises. The lobby was that of the Scotiabank located at that address. The Complainant and others had set up in the area to sleep for the night.

The SO arrived and advised the individuals in the lobby that they were trespassing and had to leave. The Complainant was awakened and took exception. He confronted the officer angrily and then pushed the SO into the corner of the vestibule separating the interior and exterior doors of the entry/exit into the bank. The SO took hold of the Complainant and grounded him in the vestibule. The Complainant’s nose fractured as it impacted the floor. With the help of WO #1, who had arrived by that time, the SO arrested the Complainant and secured him in handcuffs.

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.

Section 2(1), Trespass to Property Act -- Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Section 9 (1), Trespass to Property Act – Arrest without warrant 

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

Analysis and Director's Decision

On December 12, 2018, in the early morning hours, the Complainant broke his nose in the course of his arrest by the SO of the GPS. For the reasons that follow, there are no reasonable grounds to believe that 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 immunized from criminal liability for force used in the course of their duties provided such force is no more than is reasonably necessary in the execution of an act that they are required or authorized to do by law. The Complainant was clearly trespassing at the time. When he pushed the SO as the officer was escorting him out of the premises, he was effectively in contravention of section 2(1)(b) of the Trespass to Property Act (TPA) and therefore liable to arrest without warrant under section 9 of the TPA. The SO responded to the push by grounding the Complainant. I am unable to reasonably conclude that the officer’s conduct in this regard was excessive. He was alone in a confined space with a physically aggressive individual and was entitled in the circumstances to seek to control him as quickly as possible by forcing him to the floor. The Complainant was subsequently arrested and handcuffed without further incident.

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


Date: September 13, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) CW #2 was a student ride-along with the GPS. [Back to text]
  • 2) This broadcast was in reference to WO #1 and is depicted in the video recording at the time when the Complainant yelled and acted aggressively before he was physically escorted from the lobby. [Back to text]