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SIU Director’s Report - Case # 18-OCI-381

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 26-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 31, 2018, at 5:14 p.m., the Ottawa Police Service (OPS) notified the SIU of an injury to a man, identified using an alias of the Complainant.

The OPS advised that OPS officers responded to Booth and Wellington Streets on December 31, 2018 at 7:57 a.m. regarding a domestic disturbance. Subject Officer (SO) #1 attempted to stop the Complainant from assaulting a female. Once SO #1 engaged the Complainant, the female also attacked the officer. The Complainant was finally apprehended with the assistance of SO #2. A conducted energy weapon (CEW) was discharged at the Complainant during the altercation. At some point the female pulled an imitation gun.

The Complainant was taken to the Ottawa Civic Hospital (OCH) and diagnosed by a physician with a fractured orbital bone.

The Team

Number of SIU Investigators assigned: 3

Complainant:

26-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
CW #6 Interviewed
CW #7 Interviewed

Witness Officers

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


Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

Booth and Wellington Streets are a commercially zoned area. Booth Street is a four lane roadway running north and south and Wellington Street, also known as Sir John A. MacDonald Parkway, is a four lane roadway running east and west.

On the northwest corner of the intersection is a large public park known as LeBreton Flats Park. The National Holocaust Survivors monument occupies the northeast corner, there is a vacant field on the southeast corner and a large construction site (future site of the LeBreton Sports Complex) on the southwest corner of the intersection. There is a City of Ottawa traffic camera on the south side of the intersection.

Video/Audio/Photographic Evidence

Summary of City of Ottawa Traffic Camera Footage - December 31, 2018

There is no audio and the quality of the images is very poor.
• 8:00 a.m.: The Complainant and CW #6 are seen standing on the west sidewalk of Booth Street just south of Wellington Street. A four foot high chain link fence is directly behind them;
• 8:02 a.m.: SO #1 arrives on scene and approaches the Complainant and CW #6. SO #1 reaches out to take hold of the Complainant who abruptly pulls away. SO #1 pushes the Complainant in the chest with both hands, pushing him back into the chain link fence and both interact with each other, pushing and pulling each other. CW #6 intervenes and is also pushing and pulling SO #1 away from the Complainant. CW #6 walks away from SO #1 and the Complainant. SO #1 then pushes the Complainant up against the chain link fence once again and delivers two to three knee strikes to the legs/knees of the Complainant;
• 8:03 a.m.: An OC Transpo bus is seen on Booth Street and stops opposite the Complainant and SO #1 blocking the camera view;
• 8:05 a.m.: The OC Transpo bus moves off northbound and SO #1 and the Complainant can be seen still holding onto each other’s arms and pushing and pulling each other. SO #1 knees the Complainant and the Complainant delivers one kick to SO #1;
• 8:06 a.m.: SO #2 arrives on scene, takes hold of the upper back of the Complainant and grounds him onto his right side and back. SO #1 walks away doubled over with his face in both hands;
• 8:07 a.m.: WO #2 arrives on scene and grounds CW #6 who is standing about ten feet north of SO #2 and the Complainant;
• 8:07 a.m.: Three uniformed OPS officers bring the Complainant to his feet. He appears to have both his hands restrained behind his back and some type of restraint device on his legs. OPS officers carry him to a nearby OPS vehicle and place him in the back of that vehicle. He is actively resisting the officers throughout;
• 8:13 a.m.: An ambulance arrives on scene and a female paramedic walks to the rear of the police vehicle that the Complainant is in, where she speaks with OPS officers briefly, then returns to her ambulance; and
• 8:29 a.m.: The OPS vehicle with the Complainant leaves the scene.

Communications Recordings

Summary of 911 Call from Civilian - December 31, 2018 7:53 a.m.

“There’s a guy on Booth Street at Wellington Street slapping his girlfriend around. They are arguing. He just slapped her in the head-they are still arguing. I see the officer now-perfect he’s coming right at them. He’s going after them. He’s got the right people.”

Summary of 911 Call from CW #3 - December 31, 2018 8:00 a.m.

“I was crossing the bridge into Gatineau on a bus by the War Museum and I saw an officer involved in an altercation with an individual and the officer looks like he might need help. There were two people, a man and a lady-the man was combative and fighting with the officer and when the officer let go of the man, the man attacked the lady that was there.”

Summary of OPS Communications

8:02 a.m.: (SO #1) I will be at Booth and Wellington Streets;
8:04 a.m.: (SO #1) [Sounding quite excited and out of breath] I need another unit now.
What’s the ETA for the other unit?
8:04 a.m.: (SO #2) I’m coming across Scott Street. I will be there in two;
8:05 a.m.: (SO #1) [Shouting and sounding out of breath] I need another unit;
8:06 a.m.: (SO #2) Pulling up on scene now;
8:07 a.m.: (SO #1) (ambulance) please; and
8:09 a.m.: (SO #2) [Sounding quite out of breath] Officer and subject have been pepper
sprayed. We have two under arrest.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPS:
• Booking/Cell Recordings;
• Call Hardcopy;
• Duty Roster;
• List of involved officers;
• List of involved witnesses;
• Notes and Narrative of witness officers;
OPS News Release-Booth Street Disturbance;
• Person Hardcopy;
• Policies on Arrest and Use of Force;
• Use of Force training records for SO #1 and SO #2
• Witness Statements of CW #1, CW #2, CW #3, CW #4, CW #7 and an additional civilian witness; and
• Communications and 911 Recordings.

Materials obtained from Other Sources

Upon request the SIU obtained and reviewed the following items from sources other than the involved police service:
• Footage of incident from the City of Ottawa Traffic Camera Department;
• Patient health records of the Complainant from the OCH; and
• Ambulance Call Reports from the Ottawa Paramedic Service.

Incident Narrative

The weight of the reliable evidence collected by the SIU paints the following picture of the circumstances surrounding the Complainant’s arrest. Shortly before 8:00 a.m. of December 31, 2018, the OPS was alerted to reports of a man violently assaulting a woman at the intersection of Booth and Wellington Streets in Ottawa. The man was the Complainant.

SO #1 was the first officer to arrive. He parked his marked cruiser facing south curbside on the west side of Booth Street south of Wellington and approached the Complainant and CW #6, who were on the sidewalk nearby. Observing dried blood on both of their faces and CW #6 with blackened eyes, SO #1 announced that the Complainant was under arrest and moved in to take him into custody. The Complainant objected when the officer took hold of him and there a followed a physical altercation between the two.

SO #1 and the Complainant wrestled with each other as the former attempted to force the Complainant to the ground. The sidewalk was slippery with snow and ice, resulting in SO #1 falling backward onto the ground at one point. Fearing for his safety with the Complainant now over him, SO #1 kicked him in the head and returned to his feet, whereupon the Complainant punched him in the head. The Complainant remained undeterred as the struggle continued, prompting SO #1 to deliver two or three knee strikes to the Complainant’s left thigh followed by two to four hand strikes to the Complainant’s body and face. The Complainant continued to resist, pushing and pulling SO #1, holding onto CW #6 and the chain-link fence that lined the west end of the sidewalk in the vicinity, and kicking the officer. Unable to retrieve his conducted energy weapon, SO #1 pulled out his OC spray and directed a blast in the Complainant’s direction. The spray backfired and struck the officer in the face; it appeared to have little effect on the Complainant.

In response to SO #1’s broadcasted and repeated requests for assistance, SO #2 arrived on scene shortly after the OC spray had been deployed and was able to forcibly ground the Complainant face first. With the assistance of other arriving officers, the Complainant was handcuffed and lodged in the backseat of an OPS cruiser. There, he began to violently bang his head on the rear passenger side window and the Plexiglas partition that separated the front and rear compartments of the cruiser. A paramedic who arrived on scene was unable to assess the Complainant given his hostility. He was taken to hospital by police and diagnosed with his injury.

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

In the morning of December 31, 2018, the Complainant suffered a fractured left orbital bone. The injury was diagnosed following his arrest by OPS officers and may well have been caused by the altercation that marked his apprehension by police. [1] Among the arresting officers, SO #1 and SO #2 were identified as the ones most likely to have inflicted the injury. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that SO #1 and SO #2 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 that they are required or authorized to do by law. The Complainant had clearly assaulted CW #6 and SO #1 was proceeding to lawfully arrest him for the offence when the struggle began. The officer repeatedly told the Complainant he was under arrest and to stop resisting. When those calls went unheeded, SO #1 was entitled to escalate his level of force to effect his purpose. He did so by first attempting to wrestle the Complainant into submission. The Complainant proved a formidable opponent; despite his smaller physical stature, he was able to keep the officer at bay and delivered strikes of his own. The officer countered with several hand and leg strikes in an effort to ground the Complainant and resorted to his OC spray when those were ineffective. It was only with the intervention of additional officers, principally SO #2, that the Complainant was finally subdued and taken into custody. On this record, it seems to me that the force used by the officers was at all times measured and proportionate, rising incrementally in severity to meet the challenge of the Complainant’s physical obstinance.

In the final analysis, I am unable to reasonably conclude that the force used by SO #1 and SO #2 fell outside the range of what was reasonably necessary to overcome the Complainant’s resistance and effect his arrest. Consequently, whether or not the force in question caused the fracture to the Complainant’s left orbital bone, I am satisfied it was legally justified. Consequently, there are no grounds to proceed with charges in this case and the file is closed.


Date: October 7, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) There is a possibility raised in the evidence that the Complainant’s injury was caused prior to the officers’ arrival in the course of a physical altercation with CW #6. It may also have resulted when the Complainant repeatedly struck his head against the cruiser’s rear passenger window and Plexiglas partition following the altercation. [Back to text]