RunnersCruiser and motorbikeCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 19-OCI-038

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

The Investigation

Notification of the SIU

On February 17, 2019, at 7:29 a.m., the Brantford Police Service (BPS) notified the SIU of the Complainant’s injury.

According to the BPS, on February 17, 2019, at 3:11 a.m., the BPS received a call from a security company advising that there had been a break-in at a construction site. The site was monitored by 11 security cameras and a man [now known to be the Complainant] was observed inside the site. BPS officers arrived at 3:15 a.m. The Complainant was observed running from the area into a field which was covered with ice. The police officers chased and apprehended the Complainant.

Part of the foot pursuit was recorded by the closed circuit television (CCTV) system at the site and during the chase, several police officers fell but the apprehension was not within the view of the camera. Three police officers were involved in the foot pursuit and they returned to the police station to complete their notes. The Complainant complained of a sore back and was taken to the Brantford General Hospital where at 7:00 a.m., he was diagnosed with a fractured rib and collapsed lung.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Not interviewed (Next-of-kin)
CW #3 Interviewed 

Witness Officers

WO #1 Not interviewed, but notes received and reviewed
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 Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The scene of the foot pursuit and arrest were confined to the ice and snow-covered ground at the south and west peripheries of a two-storey condominium building under construction at the northeast corner of Morrell and Holme Streets in Brantford.

Video/Audio/Photographic Evidence

Surreal Homes had a construction site located at Morrell Street. The site was equipped with various CCTV cameras that monitored the construction site.

The majority of the interaction between BPS police officers and the Complainant took place at the northeast corner of the building. There was no audio component to the video recordings.


February 17, 2019 – Camera 3


• 3:16:20 a.m.– the Complainant is seen exiting the building through a patio door.

• 3:16:29 a.m. – a light shines on the Complainant, he drops items in his arms to the ground and runs eastbound on the walkway at the north side of the building.

• 3:16:30 a.m. – BPS officer [known to be SO #1] is seen running after the Complainant. A forklift is in-between the Complainant and SO #1.

• 3:16:32 a.m.– SO #1 is seen slipping several times on the ice and continues to run after the Complainant. The Complainant is no longer in view of the camera.

• 3:17:22 a.m.– the Complainant is on the ground in front of the north east side of the building. There are two BPS officers interacting with the Complainant [known to be SO #1 and SO #2]. Another BPS officer is approaching from the east. Two BPS vehicles are parked in the parking lot of the construction site with their lights facing north. Two other BPS vehicles can be seen parked on Morrell Street.

• 3:17:32 a.m.– there are four BPS officers interacting with the Complainant. The Complainant is on his stomach with his feet facing north, his head facing south. A fifth BPS officer is approaching the scene from Morrell Street.

• 3:17:40 a.m.– BPS officers are struggling to secure and handcuff the Complainant.

• 3:17:51 a.m.– the Complainant is handcuffed and rolled onto his left side. The Complainant’s facial expression indicates that he is in pain.

• 3:18:03 a.m.– BPS officer [believed to be SO #1] walks around the north east corner of the building leaving the Complainant with three BPS officers.

• 3:18:10 a.m.– BPS officer [believed to be WO #3] follows SO #1 around the building. There are four BPS officers with the Complainant.

• 3:18:32 a.m.– the Complainant still on his left side is being searched by a BPS officer [believed to be WO #2].

• 3:19:10 a.m.– Another BPS officer is assisting WO #2 in the search of the Complainant. SO #1 and WO #3 return to the scene.

• 3:19:33 a.m.– the Complainant is turned over onto his stomach onto his right side and is being searched.

• 3:20:44 a.m.– a BPS officer finds a bag and hands it over to another BPS officer.

• 3:21:10 a.m.– the Complainant is assisted into the sitting position by two BPS officers.

• 3:21:23 a.m.– the Complainant is assisted up to the standing position by two BPS officers.

• 3:21:38 a.m.– the Complainant appears to be bending his upper body forward then downward. It appears that there is some dialogue between the BPS officers and the Complainant.

• 3:21:43 a.m.– a BPS officer appears to be making radio communication.

• 3:21:55 a.m.– the Complainant is being assisted by two BPS officer towards the police vehicle.

• 3:22:17 a.m.– the Complainant is being assisted into the police vehicle.

• 3:24:04 a.m.– BPS leave the scene; WO #2 enters the driver side of his vehicle.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the BPS:
  • BPS Email request for radio communications;
  • Communications audio recordings;
  • CAD-Dispatch Details;
  • Duty Roster (x2);
  • Notes of witness officers;
  • Scene Photographs; and
  • Shift Summary Details.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU in its investigation, which included statements from the Complainant, SO #1 and a couple of other officers present when the Complainant was arrested. The investigation also benefitted from CCTV video recordings from surveillance cameras situated at the construction site, which captured portions of the circumstances surrounding the Complainant’s arrest. In the early morning of February 17, 2019, BPS received a call from the security company hired to keep watch over a construction site in the Morrell and Holme Streets area. Their cameras had detected a male individual accessing the site without authorization and helping himself to property that was not his.

A number of BPS officers were dispatched to investigate, including SO #1 and SO #2. Arriving at about 3:15 a.m., SO #1 exited his cruiser to search the site and soon came upon the Complainant. The Complainant was exiting a building holding several items. At the sight of SO #1, the Complainant dropped the items and ran away from the officer. SO #1 gave chase on foot. It was dark and the ground was slippery with snow and ice in places; the Complainant fell as he fled from the officer and SO #1 lost his footing on several occasions. SO #1 caught up with the Complainant as the latter fell again, sliding into him and taking him to the ground as the Complainant tried to get up. Now joined by his partner, SO #2, the officers wrestled with the Complainant to control his arms as the Complainant kept them tucked underneath his torso. WO #2 and WO #3 joined the fray; the former placing his right knee on the Complainant’s back between his shoulders, the latter threatening the use of his CEW if the Complainant did not stop resisting. SO #1 punched the Complainant’s right arm twice and, when that did not work to release the Complainant’s arms, punched him twice to the right side of his head. With the punches to the head, SO #1 was able to free the Complainant’s right arm and bring it around his back, whereupon SO #2 was able to secure the Complainant’s arms in handcuffs.

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 BPS officers on February 17, 2019 at the site of a construction project in the area of Morrell and Holme Streets in Brantford. He was subsequently taken to hospital and diagnosed with a fractured left rib and collapsed lung. SO #1 and SO #2 were among the arresting officers. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s arrest and injuries.

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 reasonably necessary in the execution of an act that they are required or authorized to do by law. The Complainant was by all appearances trespassing on the construction site and in the process of stealing property therefrom when he was confronted by police officers. He was clearly subject to arrest.

With respect to the force that was used against the Complainant, I am satisfied that it reasonably fell within the range of what was permissible in the circumstances. The Complainant fled from the police and gave every indication he was bent on escaping custody. In the dark, over uneven and slippery terrain, it seems to me SO #1 acted sensibly in tackling the Complainant to the ground at the first opportunity having caught up with him. I am of the same mind with respect to WO #2’s efforts to keep the Complainant on the ground by placing his knee on the Complainant’s back. The officers’ efforts to subdue the Complainant were best served by having him remain on the ground where they could exert greater control over his movements. The two punches to the head of the Complainant, delivered by SO #1 while the Complainant was still on the ground and surrounded by four officers, might seem over the top. However, consider that they were delivered after SO #1’s first two punches to the Complainant’s right arm and a threatened CEW discharge were unsuccessful in overcoming the Complainant’s resistance. Thereafter, the Complainant’s arms were wrenched free by SO #1 and SO #2, and handcuffed, following which no further force was used. On this record, I am unable to reasonably conclude that the force used by the officers fell afoul of the limits prescribed by the criminal law.

In the final analysis, while I accept that the Complainant’s fractured rib and collapsed lung may have been caused by the force used by the officers, [1] I am satisfied on reasonable

grounds that the force in question was legally justified in aid of a lawful arrest. 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

Footnotes

  • 1) The evidence gives rise to the distinct possibility that the Complainant’s injuries were caused as he fell to the ground while fleeing from the police. [Back to text]