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SIU Director’s Report - Case # 18-PCI-351

Contents:

News Releases for this Case:

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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 serious injury sustained by a 61-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 13, 2018, at 1:15 a.m., the Ontario Provincial Police (OPP) Dryden Detachment notified the SIU of the serious injury sustained by the Complainant during his arrest on the afternoon of December 12, 2018. The OPP reported that at 4:50 p.m., on December 12, 2018, OPP police officers responded to a disturbance call at a property on Highway 665, Dryden. When the police arrived, the Complainant, the land owner, was arrested on weapons and assault charges and taken to the detachment. At 8:30 p.m., the Complainant asked the cell police officer if he could have access to medications that were at his home in Dryden. The police officers obliged and drove the Complainant to retrieve the medicine and while on the way back to the detachment, the Complainant complained that his wrist was sore. At 10:19 p.m., he was taken to the Dryden Regional Health Centre where a fractured right wrist was diagnosed.

The Team

Number of SIU Investigators assigned: 3

Complainant:

61-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 

Witness Officers

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


Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The incident occurred on a property situated on Highway 665 in Wainwright Township, Dryden.  

Video/Audio/Photographic Evidence

The SIU reviewed the cell videos and found nothing that would indicate the Complainant was injured while in custody at the Dryden Detachment.

Police Communications Recordings

The recording starts at 5:28 p.m., with a telephone call from CW #3 at the scene. CW #3, in the presence of the Complainant, pretended to be speaking to a work colleague. He spoke in a hushed, barely audible voice and sounded afraid and nervous about his ruse being discovered. He pleaded for the dispatcher to send police immediately but had difficulty explaining the situation to the dispatcher. The operator tried to understand CW #3 but his voice was low and he could not fully explain his dilemma. At one point he told the dispatcher to send all three services, meaning police, fire and EMS to no avail. He said, “I can’t talk, just come. Somebody is going to get shot. Please help me.”

At 5:37 p.m., upon the conclusion of CW #3’s call for help, the dispatcher received a telephone call from a frantic CW #4 who had fled to safety. He was able to explain the urgency of the situation and police were then sent. Ten minutes had elapsed for both calls.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • Arrest Booking Report for the Complainant;
  • Arrest Report for the Complainant;
  • Drawings of the scene by WO #1 and the SO;
  • Duty Roster for the OPP Dryden Detachment on December 12, 2018;
  • Event Details Report;
  • Notes of all witness officers;
  • Prisoner Custody Report for the Complainant;
  • Prisoner Medical Assessment Record for the Complainant; and
  • Prisoner Security Check on the Complainant.

Incident Narrative

The events in question are clear on the weight of the reliable evidence collected by the SIU and may be summarized in short order. At about 4:30 p.m. on December 12, 2018, the SO, together with WO #2 and WO #4, were dispatched to the Complainant’s address for a dispute involving a firearm. The officers arrived in separate police vehicles at about 4:45 p.m. The Complainant placed his shotgun in his Dodge pick-up truck before he angrily confronted the officers. WO #2, who knew the Complainant and had established a rapport with him over the years, exited his cruiser, moved toward the Complainant and engaged him in conversation. The SO followed WO #2 and asked the Complainant where the shotgun was located. The Complainant did not respond. Meanwhile, WO #4 approached the individuals in a Mazda pick-up and gathered from them additional details of the days’ events.

Not long after the officers arrived, the SO located the shotgun inside the Dodge pick-up truck and moved toward the Complainant to arrest him. The officer advised the Complainant what was happening and took a hold of his right arm, bringing it around his back. The Complainant resisted slightly, prompting the officer to employ a wrist lock, which he described as holding the Complainant’s right wrist/hand with his left hand and rotating that hand/wrist downward and forward to control him. Together with WO #2, who had control of the Complainant’s left arm and hand, the officers handcuffed the Complainant and lodged him in WO #4’s vehicle for transport back to the police station. The time was now about 5:00 p.m.

At about 9:20 p.m., while in a police cell, the Complainant began to complain about soreness in his right wrist. He was taken to hospital by WO #1 and WO #3, where his fractured wrist was diagnosed and placed in a cast.

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 in the afternoon of December 12, 2018 on his property by OPP officers. He was subsequently taken to hospital while in the custody of the police and diagnosed with a fractured right wrist. Among the arresting officers, the SO was identified as the one 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 the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

While there is evidence to suggest that the Complainant’s injury occurred prior to his interaction with police, specifically, the result of a shotgun’s recoil as he discharged it, the more likely scenario suggests it happened when the SO applied the wrist lock. Without deciding that issue, the more incriminating account is that the SO is responsible for the injury and I am prepared to proceed on that basis for the purpose of assessing the officer’s potential criminal liability.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in 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 SO was clearly authorized to arrest the Complainant. He had information from multiple sources that the Complainant had threateningly discharged a firearm in the presence of four individuals, and he had seen the firearm in question resting on the front seat of a pick-up truck on the property. In the circumstances, he had reasonable grounds to believe that the Complainant had committed any number of serious offences, including possession of a weapon for a dangerous purpose contrary to section 88 of the Criminal Code. I would add, parenthetically, that the officers were on the Complainant’s property lawfully given the exigencies of the situation involving a firearm and a potentially active shooter.

The real issue to be decided as far as the SO’s potential liability is concerned is whether he used excessive force in arresting the Complainant. More particularly, was the use of a wrist lock reasonably necessary. I begin by noting that the manner in which the Complainant was handcuffed seemed uneventful to others in the vicinity. There is no evidence to suggest that the Complainant winced in pain or otherwise complained about what was happening. On this evidence, it seems that the force that was used in applying the wrist lock, which is a technique in which officers receive training, was at the low to mid-end of the spectrum. I do not mean to suggest that the force that was used was not significant; clearly, it was if it in fact caused the Complainant’s wrist to fracture. However, the SO was dealing with an intoxicated and belligerent individual whom he had reason to believe had just threatened the lives of four individuals with a firearm. He was entitled to meet the Complainant’s resistance, minimal though it may have been, quickly, firmly and resolutely. In the circumstances, I am reasonably satisfied that the wrist lock applied by the SO was a measured and proportionate response, which fell within the range of what was reasonably necessary at the time to effect the Complainant’s arrest.

In conclusion, though it may well be that the SO caused the Complainant’s injury through the wrist lock he applied, the force in question was legally justified and there are therefore no grounds for proceeding with charges in this case. The file is closed.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit