SIU Director’s Report - Case # 18-OCI-370
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Mandate of the SIU
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.
Freedom of Information and Protection of 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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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”).
Notification of the SIUOn 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 TeamNumber 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 CW #1 Not interviewed
CW #2 Not interviewed
CW #3 Interviewed
CW #4 Not interviewed
CW #5 Not interviewed
Witness OfficersWO #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 OfficersSO Interviewed, but declined to submit notes, as is the subject officer’s legal right.
The SceneThe incident occurred just outside the exit doors to the LCBO store in Stratford.
Data Downloaded from CEWs
SPS Custody Video
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 RecordingsOn 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 ServiceUpon 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.
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.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(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,
Section 31(4), Liquor Licence Act -- Arrest without warrant
Analysis and Director's Decision
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
Special Investigations Unit
- 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]
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.