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SIU Director’s Report - Case # 18-OCI-370

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 serious injuries sustained by a 46-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 20, 2018, at 8:45 p.m., the Stratford Police Service (SPS) notified the SIU of the Complainant’s injury. According to the SPS, on December 20, 2018, at 6:09 p.m., SPS officers responded to an LCBO store for a report of a disorderly man who was making threats. Responding officers encountered the Complainant in a highly intoxicated and aggressive state. At least one conducted energy weapon (CEW) was deployed and the Complainant was arrested. He was taken to the hospital and found to have a fractured orbital bone and a possible broken nose. A complete examination could not be completed due to the Complainant’s violent and aggressive behaviour and he was returned to the police station and lodged. At the time of the intake the SPS reported that the Complainant was extremely uncooperative and still highly intoxicated. 
 

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses [1]

CW #1 Not interviewed
CW #2 Not interviewed
CW #3 Interviewed
CW #4 Not interviewed
CW #5 Not interviewed 

Witness Officers

WO #1 Not interviewed, but notes received and reviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Not interviewed, but notes received and reviewed


Subject Officers

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


Evidence

The Scene

The incident occurred just outside the exit doors to the LCBO store in Stratford.

Forensic Evidence


Data Downloaded from CEWs


The CEWs used in this event were each triggered once, with each trigger associated with a five second discharge.

Video/Audio/Photographic Evidence


SPS Custody Video


At 8:28 p.m., the Complainant was walked through the sally port and taken to the search room by WO #1. The Complainant was wearing blue jeans, socks and running shoes. He was handcuffed with his hands in front of his body. Injuries to his nose and around his left eye were obvious. He was yelling and screaming, kicking doors and the cell wall at times. He accused the police of stealing his wallet and telephone and breaking his cheek bone and nose.

While waiting in the search room to be released by WO #3, the Complainant paced the room and spoke out loud about his lip and cheek being frozen and questioned if the police smashed his face to teach him a lesson. The Complainant questioned why there were marks on his left knuckle area. He then stated, “There is no way I would have smashed my fucking head this hard. I would have fell straight backward.” The Complainant lifted his sweater and looked at the probe marks and his right hand. He re-enacted pulling the probe and said, “Oh yea.”

Communications Recordings

On December 20, 2018, a man [now known to be CW #1] called the SPS and reported an inebriated man [now known to be the Complainant] was causing a disturbance at the LCBO. CW #1 further stated that the Complainant was creating a problem for the staff and he refused to leave. The Complainant was swearing and threatening both staff and other customers in the store. A woman [now known to be CW #3] called 911 and said she was calling from the LCBO.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the SPS:
  • CAD Event Details;
  • Communication recordings;
  • Crown Brief Synopsis;
  • Custody Video of the Complainant;
  • Disclosure Letter from LCBO to Stratford Police;
  • Download for Taser (x2);
  • LCBO Incident Report;
  • LCBO Video Footage from inside store;
  • Notes of witness officers;
  • Occurrence Report;
  • SPS External Camera capturing LCBO and parking lot;
  • SPS Photographs of Scene and the Complainant’s injuries;
  • Prisoner Booking form; and
  • Witness Statements of civilian witnesses.

Incident Narrative

The material events in question are apparent on the weight of the reliable evidence collected by the SIU in its investigation, which included statements from the Complainant, the SO, and the SO’s partner, WO #2, as well as data downloaded from the officers’ CEWs.

In the evening of December 20, 2018, the SPS received two phone calls from an LCBO in Stratford regarding an inebriated man – the Complainant – who was causing a disturbance and threatening LCBO employees. The SO and WO #2 were at the police station, a short distance away, and made their way on foot to the LCBO store. They encountered the Complainant just outside the store’s front entrance and attempted to engage him in conversation. The Complainant was cursing and yelling, incoherent in his speech, and unsteady on his feet. The officers could smell a strong odour of alcohol coming from the Complainant. The Complainant was told he was under arrest for public intoxication. The Complainant resisted as the officers moved in to take hold of his arms, eventually breaking free of their grasp. His belligerence turned to open hostility and he raised his arms in a fighting stance toward the officers. Not wishing to engage the Complainant physically, each officer drew their CEWs and pointed them in the Complainant’s direction. WO #2 was the first to fire but the deployment did not have the desired effect. The Complainant was able to detach one of the probes and resume his aggressive posture. The SO followed with a discharge of her own. This time, the Complainant was incapacitated and fell onto the sidewalk, fracturing his orbital bone in multiple places. With the Complainant on the ground, the officers were able to quickly handcuff him without further incident, whereupon the Complainant was 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.

Section 31(4), Liquor Licence Act -- Arrest without warrant

31 (5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) [2] if, in the opinion of the police officer, to do so is necessary for the safety of any person.  

Analysis and Director's Decision

On December 20, 2018, outside a LCBO store in Stratford, the Complainant was arrested at the hands of two SPS officers, suffering facial fractures in the process. One of those officers, the SO, was identified as the officer responsible for the Complainant’s injuries. 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 injuries.

Under 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 that they are required or authorized to do by law. Pursuant to section 31(5) of the Liquor Licence Act, a police officer may arrest without warrant intoxicated persons in public if, in the opinion of the officer, doing so is necessary for the safety of any person. At the time the officers decided to arrest the Complainant outside the LCBO store, they knew they were dealing with an inebriated and belligerent individual who had just threatened persons inside the store and was now yelling unintelligibly. On this record, I am satisfied that the officers could reasonably conclude that the Complainant’s arrest was warranted for his own safety as well as that of others in the area, including the officers. The issue turns to whether the officers used excessive force in aid of the Complainant’s arrest. In my view, they did not. By his words and actions, the Complainant was openly confrontational and priming for a physical confrontation when told he was under arrest. In the circumstances, the officers’ decision to engage him at a distance with their CEWs in a coordinated fashion, with the SO firing her weapon only when it was apparent that WO #2’s discharge was ineffective, seems a reasonable one.

In the result, while the Complainant’s facial fractures were an unfortunate consequence of the force used by the SO, that force, I am reasonably satisfied, was legally justified. Accordingly, there are no grounds for proceeding with charges and the file is closed.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) Civilian witnesses that were not interviewed by the SIU were interviewed by the SPS. These SPS witness statements were received and reviewed. [Back to text]
  • 2) Section 31(4) of the Liquor License Act makes it an offence to be in an intoxicated condition in a public place. [Back to text]