RunnersCruiser and motorbikeCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 18-OCI-333

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 23-year-old male (the “Complainant”).

The Investigation

Notification of the SIU

On November 13, 2018, at 1:50 p.m., the Barrie Police Service (BPS) notified the SIU of the Complainant’s injury.

The BPS reported that on November 12, 2018, at 8:56 p.m., police officers were watching an unoccupied stolen vehicle and had deployed a piranha tire deflation device on the vehicle in the area of Montserrand Street.

Three men [1] entered the vehicle and managed to drive a short distance, after which the men abandoned the vehicle and fled on foot. One of the men [now known to be the Complainant] was tracked by a K-9 police officer, accompanied by tactical police officers.

The Complainant was located trying to hide in a swampy bog. He was taken into custody; however, a short time later he complained his hand was sore as a result of one of the tactical police officers stepping on it.

The Complainant was taken to the Royal Victoria Hospital, where he was diagnosed with a fractured knuckle on his right hand. 
 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed

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


Subject Officers

SO #1 Interviewed, and notes received and reviewed
SO #2 Interviewed, and notes received and reviewed


Evidence

The Scene

The scene of the Complainant’s arrest was located west of the Four Points hotel in a field beside a culvert / storm drain next to a body of water between Bryne Drive and Essa Road.

Forensic Evidence


Data Associated with WO #3’s Conducted Energy Weapon (CEW) Discharge


The data indicated that WO #3 discharged his CEW for about two seconds in and around the time of the Complainant’s arrest.

Video/Audio/Photographic Evidence


Summary of Drone Footage


The BPS provided a tracking video taken during the Complainant’s arrest by the police drone operator. The drone’s camcorder was in the infrared mode; therefore, the thermal footage depicted the activity of the police officers without providing details. The video did not have a timestamp. The following is a summary of what can be gleaned from the recording, with time “0” indicating the start of the footage:

  • 00:00 – 02:43: The K-9 unit (WO #4 and his police service dog (the “PSD”)), and SO #1, SO #2 and WO #3 commenced a track, searching the area;
  • 02:43 – 02:55: The Complainant was located by the PSD. WO #4 recalled the PSD;
  • 02:55 – 05:05: SO #1, SO #2 and WO #3 moved towards the Complainant. Some sort of struggle appears to occur; and
  • 05:05 – 05:50: The Complainant was escorted by the tactical police officers to WO #2’s police cruiser.


Summary of CTV Closed Circuit Television Recording


Four police cruisers with emergency lights activated drove into the CTV driveway. Four people [now known to be SO #1, SO #2, WO #3 and WO #4] and a dog were visible on the roadway near the police vehicles.


Summary of Police Video


The following is an overview of the activity observed in the police sally port:

  • On October 12, 2018 at 11:57:37 p.m. the police cruiser with the Complainant enters the sally port. A uniform police officer exits the vehicle and enters the door to the booking room; and
  • On October 13, 2018 at 12:00:42 a.m. the officer returns to the sally port and removes the Complainant from the passenger’s rear door and escorts him into the booking room. The Complainant is hand cuffed to the rear and his hands are not in any clear view.

The following is an overview of the activity in the booking room:
  • The Complainant enters the booking room and is walked to a bench area and sits down;
  • The Complainant is still hand cuffed to the rear and his hands are not in clear view;
  • The is one Special Constable (SC) and two uniform police officers in the booking room as well;
  • The Complainant is taken through the booking process. The audio is poor and broken up but the Complainant is told that the room is being monitored by audio and camera. He is given his rights and asked the questions with regard to his health and injuries. He tells the officers he has an injury to his head, his buttock from being tasered and his right hand. It is not clear by the audio if he tells the officers how he came to be injured. The handcuffs are removed and the Complainant is searched. He is asked if the swelling of his right hand was caused before and the Complainant is heard to reply, “It just happened.” His coat is removed and he is searched again and it appears that his right hand has some kind of wrapping around the knuckles;
  • At 12:08:58 a.m. the Complainant is taken to his cell by a uniform police officer and the SC;
  • At about 12:25:00 a.m. the Complainant is escorted through the booking room area to a room where he makes a call to Duty Counsel. There is no video coverage of him making that call;
  • Following his call to Duty Counsel the Complainant is escorted back to his cell;
  • At about 2:18:40 a.m. the Complainant is again brought from his cell through the booking room and into a room where his photo and fingerprints are taken by the SC;
  • At 2:23:30 a.m. the Complainant is returned to his cell; and
  • During this process it is unclear if his right hand is still wrapped.

The following is an overview of the activity in the Complainant’s cell (Cell # 1):

  • After being placed in his cell the Complainant is seen to be favouring his right hand but the view is blocked by a cover blocking the area of the toilet for a person’s privacy;
  • He is seen to leave the cell with the SC twice for his call to Duty Counsel and photos and printing. The remaining time in his cell he is laying down and again seen to be favouring his right hand which appears to be wrapped around the knuckle area;
  • At about 8:24:45 a.m. the Complainant is brought from his cell to the booking room and is shown his property bag in preparation for his being taken for his bail hearing;
  • At this time there is some conversation with regard to the Complainant wanting to go to the hospital but the audio is unclear and it is believed that he was not taken to the hospital until he was in the custody of the court officers; and
  • During the video coverage at the police facility the Complainant is not seen to be resistive to the officers and there is no aggressiveness toward the Complainant by the officers.

Communications Recordings

The following is a summary of the police audio communications:
  • The audio begins on November 12, 2018 at 10:46:23 p.m. and there are some transmissions regarding unrelated matters;
  • Communications asks for two officers to copy a detail to attend an address in relation to a drug related call;
  • The audio describes the setup of the officers watching the stolen vehicle;
  • There are transmissions between the communication dispatcher and units setting up perimeter locations;
  • At about 11:00 p.m. WO #5 is heard to advise regarding the three parties entering the stolen vehicle;
  • WO #5 is heard directing on scene officers to move to box the stolen vehicle in before it can be moved;
  • It is believed to be WO #5 calling in a 10-33 (officer needing assistance);
  • Officer advises that they are not pursuing the vehicle;
  • WO #5 confirms the vehicle has gotten out of the stationary block and left and that they are not pursuing the vehicle;
  • WO #5 advises the stop stick had been deployed and the expectation was the vehicle would have a flat tire, and he gives a description of the driver and occupants;
  • WO #5 requests Canine;
  • WO #5 advises that the stolen vehicle has been located abandoned on Beacon Drive at the CTV building and that the driver can be identified;
  • WO #5 request a perimeter near the 400 Highway north of the CTV building;
  • Several transmissions between the dispatcher and units setting up various perimeter positions;
  • Communications advises that Canine is en route;
  • WO #5 advises he is staying with the abandoned vehicle;
  • Some transmissions occur with regard to a male person in the area of the abandoned stolen vehicle who was stopped and questioned and allowed to leave;
  • Further transmissions regarding perimeter points;
  • Transmissions between Canine and communications advising of the progress of the track;
  • Transmissions confirming that the cab companies are put on notice regarding pickups in the area;
  • Transmission with regards to a report of a person seen by a citizen running across the 400 Highway;
  • Transmission from Canine regarding an update and identifying an area over a fence to be searched;
  • Canine advised contact and gives a location in the reservoir area near Four Points;
  • Canine request units attend the new condo complex across from Lowe’s store;
  • Units advise their availability and Canine advises it is beginning a second track;
  • Units are advised to maintain their perimeter points; and
  • Unit heard to request communications run a check on a male, the Complainant, and advises he will be taking the Complainant to the police station.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the BPS:
  • Unmanned Aerial Vehicles (UAV) Pre-Flight Checklist;
  • Stolen veh UAV Pre-Flight Checklist;
  • Taser Pulse Graph;
  • Arrest and Booking Reports;
  • Arrest Booking Report;
  • Stolen veh UAV Pre-Flight Checklist and STOLEN VEH UAV Report Form;
  • CAD - Event Details;
  • CEW Pulse Log Graph;
  • Departmental MVC;
  • Drone Certification-WO #6;
  • Event Details;
  • General Report;
  • Map (WO #4) K9 Track;
  • Notes of witness officers, subject officers and undesignated officer;
  • Occurrence Summaries (x3);
  • Procedures - Arrest and Use of Force;
  • Radio Transmission Log;
  • Training Records (SO #1, SO #2, WO #3, WO #6);
  • Training Record-X2 Conversion Course-WO #3.

Incident Narrative

The following scenario surrounding the Complainant’s arrest emerges from the weight of the evidence collected by the SIU in its investigation, which included statements from the Complainant, each of the two subject officers and two witness officers who were present at the time, as well as video footage captured by a police drone of the incident in question. At around 11:00 p.m. on November 12, 2018, the Complainant entered a vehicle on Montserrand Street in Barrie with two other persons. The vehicle in question had been reported stolen and was under surveillance by BPS officers. Prior to the Complainant’s entry, a tire deflation device had been placed under one of the vehicle’s tires in order to prevent it being driven away. The plan among the officers was to box the vehicle in with their vehicles, thereafter approaching it on foot to investigate its occupants. The events that followed did not go exactly according to plan.

The Complainant, after police cruisers had converged on his vehicle, began to ram them back and forth trying get away. Having made enough space for himself, the Complainant maneuvered his vehicle around the cruisers and fled east on Montserrand Street toward Beacon Road, where he turned right and continued a short distance north before ditching the vehicle near the CTV building south of Essa Road. The Complainant fled into a wooded area and eventually took up concealment in and around a storm drain west of the Four Points hotel. The officers involved in the initial attempt to apprehend the Complainant discovered his vehicle and asked for the assistance of a canine unit to track and locate their suspect.

WO #4 and his dog, the PSD, were deployed to the area. With him for support were the two subject officers and WO #3. After a track of some 25 minutes, the PSD discovered the Complainant. It is at this point that there is material discrepancy in the evidence regarding the way the Complainant was taken into custody.

There is some evidence the Complainant immediately complied with requests by the officers that he show them his hands and not move; however, he was nevertheless bit by the dog and kicked two or three times by the dog’s handler. This evidence suggests he was then struck by a CEW discharge by another police officer, followed by a stomp to the right hand by a third officer and a few more kicks to the head.

The evidence of the arresting officers, while not entirely consistent, paints a different picture. They are all agreed that the Complainant, when found lying on the ground, physically resisted his arrest by refusing to voluntarily surrender his hands. I take further from their evidence that the police dog was the first to make contact with the Complainant, following which the Complainant was punched once by SO #1, drive-stunned for several seconds with WO #3’s CEW, and then handcuffed by SO #1 and SO #2. Each of the officers specifically denies stomping on the Complainant’s hand, and none of them indicate having seen anyone else do so.

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 BPS officers on November 12, 2018. He was subsequently taken to hospital and diagnosed with a fractured right hand. SO #1 and SO #2 were among the arresting officers and identified as the ones most likely to have caused the Complainant’s injury. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that either officer 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 immune 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 they are required or authorized by law to do. It is plain and obvious that the officers were proceeding to lawfully arrest the Complainant at the time force was administered. The Complainant had been in possession of a reportedly stolen vehicle which he had used to intentionally strike police cruisers. The real issue as far as the subject officers’ potential criminal liability is concerned is whether they used excessive force in effecting the Complainant’s arrest.

If the Complainant did not resist and was subjected to the level of force alleged in a body of evidence collected by the SIU, then what occurred would give grounds for believing that he was unlawfully assaulted. However, there are aspects of this evidence that give cause for pause. The most significant of these is the assertion that the dog handler kicked the Complainant in the head two to three times. The thermal imaging video recording of the arrest captured by the police drone, while far from clear in resolution, does appear to show that WO #4 was never near enough to the Complainant to have delivered the alleged kicks. In view of this and other frailties, it would be unwise and unsafe to rest criminal charges on this account of what occurred in the absence of corroborating evidence. The Complainant’s injury, which might otherwise have amounted to such corroboration, cannot do so in the circumstances of this case given the distinct possibility the hand was fractured in the vehicle collisions that preceded his arrest and other evidence suggesting the injury occurred before his encounter with the officers. As for the video recording taken by the drone, it too is incapable of buttressing the evidence of excessive force as the images are insufficiently distinct to clearly capture what precisely occurred between the arresting officers and the Complainant. In the final analysis, the incriminating evidence is insufficiently trustworthy in my view to warrant being put to the test by a trier-of-fact.

As for the officers’ accounts, while they too are problematic in important ways, including the fact that they suggest a shorter physical engagement with the Complainant than what is captured on the drone video, I am unable to reasonably conclude that the force they acknowledge having used was excessive. This force – consisting of a short CEW discharge delivered in drive-stun mode, a single punch to the Complainant’s shoulder area and a bite by the police dog that left no puncture wounds – was purportedly administered in response to resistance on the part of the Complainant to his arrest. Given what they knew of the Complainant, namely, that he had freshly escaped police apprehension by using his car to strike police vehicles and was intent on avoiding arrest, the officers were within their rights in approaching him with caution as a potentially dangerous individual and engaging him at a distance with the use of the dog. Thereafter, I am reasonably satisfied that the force used by the officers to overcome the Complainant’s resistance and effect his arrest did not run afoul of the latitude prescribed by the criminal law. Consequently, there are no grounds for proceeding with criminal charges against the subject officers and the file is closed.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The BPS could not identify the third man. [Back to text]