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SIU Director’s Report - Case # 19-OCI-020

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 42-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On January 26, 2019, at 10:55 p.m., the Barrie Police Service (BPS) reported the following:

On January 26, 2019, at 7:45 p.m., BPS police officers responded to a Raymond Street address regarding a family dispute. The Complainant had been involved in a domestic dispute with family members and had been jumping on the roof of a car to prevent family members from leaving. Responding police officers deployed a Conducted Energy Weapon (CEW) and subdued the Complainant. He was taken to the Royal Victoria Hospital (RVH) and diagnosed with a broken arm.

The Team

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

An SIU Forensic Investigator (FI) attended the scene and made a photographic and video record of the scene. The SIU FI photographed the police vehicle of the Subject Officer (SO), the injuries of the Complainant and seized the Complainant’s clothing.

A scene canvass was conducted by SIU investigators with respect to potential witnesses and closed circuit television footage. This resulted in the locating and interviewing of two civilian witnesses. An SIU media release appealing for witnesses was issued with negative results.

Complainant:

42-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

Additionally, the notes from five other officers were received and reviewed.


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

Raymond Crescent is a two-lane paved roadway that runs east and west in a residential area. At the time of the incident, it was dark with artificial lighting from street lights and the roads and sidewalks were icy and snow covered.

Forensic Evidence

The SO’s CEW was seized from the BPS and a download to a pdf file was completed. This download showed the CEW was deployed two times on January 26, 2019: at 7:46:19 p.m. for three seconds; and, at 7:46:42 p.m. for five seconds. The probes and leads from both cartridges of the CEW of the SO were recovered and seized by the SIU FI.

Communications Recordings


Summary of 911 Recordings


On January 26, 2019, at 6:35:13 p.m., CW #2 contacted police requesting that they check on the safety of CW #3’s daughter.

On January 26, 2019, at 7:35:40 p.m., CW #2 contacted police to report what the Complainant was doing to CW #3’s vehicle and request police assistance.


Summary of BPS Communication Recording


7:38:29 p.m.: (Dispatcher) The SO and WO #1 are dispatched to the address on Raymond Crescent and told that a child is with her father there and he is very intoxicated. Mother has come to pick up the girl and the father is causing problems. He jumped on the hood of her car while she was trying to drive away. He is now trying to light the tires on fire with a lighter and has hold of the windshield wiper. Father is the Complainant. He is on charges of assault with a weapon, assault, theft under and transportation fraud.

7:41:07 p.m.: (Dispatcher) Update: [CW #3] is in a white Honda CRV trying to drive away. The Complainant is hanging onto the vehicle, banging on the windshield and there are three young kids in the vehicle.

7:45:41 p.m.: (The SO) Taser deployed.
7:46:16 p.m.: (Dispatcher) All units 10-3.
7:46:28 p.m.: (The SO) I need a rush.
7:47:25 p.m.: (The SO) I got him in custody.
7:57:14 p.m.: (The SO) Can I have another unit meet me at the RVH; he wants to go there.
7:59:29 p.m.: (The SO) He’s banging his head off the uh partition here.

Video/Audio/Photographic Evidence


Summary of BPS Booking/Cell Recordings


There is no audio in the cell area; only in the booking area. Throughout the recording the Complainant’s left arm is in a cloth sling and he appears to be in moderate discomfort. He is polite, calm and cooperative. He was able to stand and walk unassisted. He is compliant and in good spirits. His speech was clear and at no time does he complain of injury or of any officer’s conduct. His time in the cell is uneventful, standing and sitting throughout. He was in the booking area at 11:27:25 p.m., in the cell at 11:33:48 p.m. on January 26, 2019, and is released from custody on a Promise to Appear on January 27, 2019, 2:01 a.m.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the BPS:
  • Appendix-Use of Force Model;
  • Arrest and Arrest Booking Report;
  • Arrest Booking Report;
  • BPS Communications and 911 recordings;
  • BPS Booking/cell recordings;
  • CAD Event Details;
  • CPIC Response Report – the Complainant;
  • Custody Summary;
  • CEW download;
  • Mobile Data Terminal Messages Sent and Received;
  • Notes of subject officer, witness officers and five undesignated police officers;
  • Occurrence Summary (x2);
  • Occurrences History;
  • Policing Standards Manual-Training Standard for CEW Users;
  • Policing Standards Manual-Training for CEW Trainers;
  • Procedure-Arrest;
  • Procedure-Use of Force;
  • Promise to Appear;
  • Radio Transmission Log;
  • Roster for January 26, 2019; and
  • Training Record-the SO (Training-Qualifications).

Materials obtained from Other Sources

Upon request, the SIU obtained and reviewed the following items from sources other than the involved police service:
  • Patient health records of the Complainant from the RVH, Barrie.

Incident Narrative

The events in question are clear on the weight of the evidence collected by the SIU. In the evening of January 26, 2019, CW #2 made a 911 call to the BPS asking that they check on the well-being of the Complainant’s daughter who was with her father, the Complainant, on Raymond Crescent. The Complainant became inebriated and the child contacted CW #3, asking she be picked up and brought home. CW #2 subsequently called police to cancel her request for a safety check on the child when she and CW #3 decided to drive over to Raymond Crescent to gather the child.

With CW #2 as her front seat passenger and two children in the back of her Honda CRV, CW #3 arrived in front of the home on Raymond Crescent at about 7:30 p.m. CW #2 called the police again to report an altercation with the Complainant. The police were still en route as CW #3 attempted to drive away east along Raymond Crescent. The Complainant launched himself onto the hood of the vehicle. He then pulled a windshield wiper from the vehicle and tried to light its tires on fire with a lighter. The children in the backseat were crying.

The SO arrived at about 7:45 p.m. and parked his cruiser behind CW #3’s vehicle, which had come to a stop along the south curb of Raymond Crescent. He exited the cruiser and immediately confronted the Complainant, who was lying face down on the hood of the Honda. The Complainant came off the hood and approached the SO. He had his left hand in his left front jeans pocket and refused to remove it when asked to by the SO, prompting the officer to train his CEW in the Complainant’s direction. When he was within arm’s reach, the SO grabbed the Complainant by the collar and pinned him against the hood of his cruiser. The Complainant continued to refuse to reveal his left hand and was able to lift himself off the cruiser’s hood and break free from the officer. The SO chased after the Complainant west along Raymond Crescent, discharging his CEW twice at the Complainant. The weapon was ineffective owing to the thick coat the Complainant was wearing. As the pair reached a driveway, the SO caught up to the Complainant and tackled him to the ground. The Complainant resisted the officer’s efforts to control his arms and was met with two or three punches to the head, whereupon he surrendered his arms and was handcuffed by the officer.

With the Complainant now in his custody, the SO assisted him up off the ground and escorted him back to his cruiser. During the short trip, the officer had occasion to knee the Complainant’s left leg as the Complainant tried to body check the officer. When back at the cruiser the Complainant again tried to break free of the SO’s hold, the officer swept his feet out from under him, causing both of them to fall to the ground.

WO #1 was now on scene and approached the parties on the ground. The Complainant was trying to roll over and kicking his legs and feet. WO #1 delivered a knee strike to the Complainant’s right thigh and subsequently assisted the SO in lifting the Complainant and walking him to the rear of the SO’s cruiser. The Complainant struggled against the officers as they attempted to place him in the cruiser, but eventually relented following a kick by WO #1 to the back of his right calf.

Once inside the SO’s cruiser, the Complainant complained that he did not feel well and was taken directly to hospital where his fractured arm was diagnosed and treated.

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 the SO of the BPS on January 26, 2019. He was subsequently taken to hospital by the officer and diagnosed with having suffered a fractured left arm. 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.

Pursuant to section 25(1) of the Criminal Code, police officers are shielded from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. By the time of his altercation with the SO, the Complainant was intoxicated, had threatened harm to CW #3 and her friend, CW #2, and had damaged CW #3’s vehicle. There were ample grounds for his arrest on any number of grounds, including public drunkenness, causing a disturbance and mischief. Thereafter, I am satisfied on reasonable grounds that the SO and, indeed, WO #1 as well, used legally justified force to secure the Complainant in custody. The evidence establishes that the Complainant was out of control. Drunk and infuriated with his estranged partner’s attempts to remove her daughter from his care, the Complainant went on a rampage in which he climbed onto her moving vehicle, damaging it with his bare hands and trying to light it on fire. The Complainant’s combativeness spilled over unabated in his dealings with the police. He managed to break free of the SO’s grasp and take flight, was undeterred by two CEW deployments and strenuously resisted being handcuffed after being tackled to the ground until the SO delivered two to three punches to the head. Thereafter, the SO and WO #1 resort to force – a further grounding beside the SO’s cruiser, two knee strikes and a kick to the Complainant’s right leg - was strictly in answer to the Complainant’s aggressions as he continued to make life difficult for the officers despite being in handcuffs. On this record, I am of the view that the force used to arrest and secure the Complainant was commensurate with the physical challenges the Complainant presented.

In the result, while I accept that the Complainant’s left arm was fractured in the course of his dealings with the SO and WO #1, more than likely during one or the other grounding to which he was subjected, I am unable to reasonably conclude that the force used by the officers ran afoul of the latitude prescribed by the criminal law. Accordingly, there are no grounds for proceeding with charges in this case and the file is closed.


Date: October 7, 2019
Original signed by


Joseph Martino
Interim Director
Special Investigations Unit