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SIU Director’s Report - Case # 19-PCI-064

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 a serious injury sustained by a 48-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On March 31, 2019 at 8:20 a.m., the OPP reported the following:

On March 30, 2019 at 10:00 p.m., police responded to a barricaded persons call in Minesing. The Complainant was threatening to harm himself and his family. Officers set up containment around the house.

On March 31, 2019 at 12:30 a.m., the Emergency Response Team (ERT) entered the house. There was a struggle to take the Complainant into custody. A conducted energy weapon (CEW) was deployed and a police service dog (PSD) bit the Complainant.

The Complainant was taken to the hospital and was diagnosed with a fractured rib. 

The Team

Number of SIU Investigators assigned: 3

Complainant:

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


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Interviewed
WO #7 Interviewed


Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The scene was located at a residence in Minesing.

Forensic Evidence


CEW Download


The CEW which was carried by WO #1 was model Taser x2. The download of its data showed that the weapon was triggered at about 12:07 a.m. on March 31, 2019 for a discharge duration of ten seconds. At 1:03:53 a.m., the CEW was arced for 1 second. It was also arced for 1 second at 1:03:54 a.m. and made safe at 1:03:56 a.m.

Communications Recordings

On March 30, 2019, at 9:13 p.m., the Complainant’s spouse telephoned the OPP and reported that the Complainant was drunk and had threatened to kill both her and her kids. She had locked herself in the washroom; however, her husband broke the door lock. At 9:14 p.m., police officers were dispatched and at 9:36 p.m., police units arrived on scene. At 9:40 p.m., a request was made for a K9 unit. A unit advised that police officers had safely got the caller and her kids out of the residence. At 9:52 p.m., WO #5 advised that she had driven the caller and her kids out of the area. At 10:36 p.m., a request was made to do a ping on a telephone number. At 11:59 p.m., a request was made for an ambulance and the police officer, who was out of breath, advised that the Complainant was in custody.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP Huronia West Detachment:
  • Arrest Report-the Complainant;
  • Computer Aided Dispatch Chronology;
  • Communications Audio;
  • Canadian Police Information Centre Response Report-the Complainant;
  • Crown Brief Synopsis- the Complainant;
  • Domestic Violence Risk Management Report;
  • General Report;
  • Historic Occurrence Summaries;
  • List of Offences-Charges- the Complainant;
  • Non-Communication Order- the Complainant;
  • Notes of witness officers;
  • Occurrence Summary;
  • Officer Listing and Roles;
  • OPP K9 Photos;
  • Person Details Report- the Complainant;
  • Police Drawing of Attic;
  • Show Cause Hearing Report;
  • Supplementary Occurrence Report;
  • Supplementary Occurrence Report;
  • Taser Download Request Form;
  • Taser x2 - Full Download;
  • Victim Documented History;
  • Victim Reports; and
  • Warrant Remanding a Prisoner.

Incident Narrative

The weight of the reliable evidence gathered by the SIU gives rise to the following sequence of events. Shortly after 9:00 p.m. on March 30, 2019, the OPP received a 911 call from the Complainant’s wife, reporting that her inebriated husband had just threatened to kill her and their children. Officers were dispatched to the home located in Minesing.

WO #6 was among the first officers to arrive at about 9:30 p.m. From outside the home, he observed the Complainant in the foyer make an aggressive movement toward his wife. The officer identified himself and demanded that the door be opened. The Complainant’s wife opened the door as the Complainant fled further into the residence. Around this time, the SO and WO #7 of the ERT were on scene. Not knowing exactly what they were up against, the decision was made by the ERT officers to back out of the residence, remove the Complainant’s wife and her children to a safe location, and set up containment around the home.

Over the next couple of hours, led by the officer in charge at the scene, WO #1, efforts were made to reach the Complainant. Multiple phone calls were made into the home and a loud hailer was used to initiate contact, all to no avail. At about 11:00 p.m., WO #1 consulted with a critical incident commander. Advised to gather as much information as possible from the Complainant’s wife, WO #1 spoke with her and learned that the Complainant had indicated he had a car full of gasoline which he would blow up with the kids inside.

At about 11:50 p.m., together with a canine unit consisting of WO #2 and his PSD, which had also been dispatched to the scene, the SO, WO #1 and WO #7 entered the home through the open front entrance. The plan was to have the canine unit clear areas of the home in advance of the other officers entering to search for the Complainant. The search party eventually made their way into a small bathroom on the second floor, from which a small hatch-door in the wall led into an attic. Looking in through the door, the officers could see the Complainant lying on his back on insulation on the attic floor some metres away from them.

Having been located, the officers advised the Complainant he was under arrest and directed him to approach the door. The Complainant eventually rose to his feet but delayed in surrendering himself. WO #2 repeatedly indicated that he would release the dog into the attic if the Complainant did not come out, and then did so when his warnings went unheeded. The dog latched onto the Complainant’s right arm, causing the Complainant to fall on top of the dog. WO #2 reached into the attic and managed to pull the Complainant out onto the bathroom floor, at which point the dog released the Complainant’s arm and bit his lower right leg. Shortly thereafter, WO #2 released the dog’s grip on the Complainant and focused his attention on controlling the dog while the other officers dealt with the Complainant.

There ensued a brief but vigorous altercation in which the police officers resorted to force to deal with the Complainant, who was uncooperative, as they tried to secure him in custody. The Complainant flailed his body, kicked his legs and refused to give up his arms. In response, WO #7 kicked the Complainant’s right arm and punched him once in the shoulder; WO #1 punched the Complainant once in the back and then deployed his CEW – to no effect - as the Complainant continued to struggle; and, WO #3, having arrived in the middle of the fracas, punched the Complainant’s thigh and upper back. The SO’s participation in the struggle remains unclear, the officer having exercised his legal right to silence, other than none of the other officers present in the bathroom saw him strike the Complainant. The Complainant was eventually dragged out of the bathroom into open space where the officers were able to wrestle control of his arms and restrain them in handcuffs. No further violence was exchanged between the parties.

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 529 (3), Criminal Code - Authority to enter dwelling without warrant

529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. 
 
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

Analysis and Director's Decision

The Complainant suffered a fractured left rib and dog bites in the course of an altercation with police officers that marked his arrest shortly after midnight of March 31, 2019. The SO was among the arresting officers and identified by the SIU as the one most likely to have caused the fractured rib. On my assessment of the information collected by the SIU, there are no reasonable grounds to believe that the SO, or any of the other officers involved in the arrest, committed a criminal offence in connection with the Complainant’s injuries.

There is some evidence that the Complainant willingly surrendered to police upon being discovered but was nevertheless subjected to needless attacks by the police dog, a CEW discharge, and kicks to the ribs and face. I am, however, unable to place much if any weight on this version of what occurred, particularly the suggestion of passivity. This evidence conflicts with the overriding weight of the countervailing evidence proffered by the witness officers, and is belied by the hostile and violent posture the Complainant adopted with his wife and children moments before the police arrival. In the circumstances, I am not prepared to rest criminal charges on this evidence in the absence of corroboration. The Complainant’s injuries, I note, are unable to provide that corroboration as they are equally consistent in my view with force that was lawful as they are with excessive force.

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 was reasonably necessary in the execution of an act that they were authorized or required to do by law. The Complainant had threatened his family with death and was clearly subject to lawful arrest. Moreover, whether on the basis of exigent circumstances pursuant to section 529.3 of the Criminal Code or the express or implied consent of the Complainant’s wife, who had informed the police that the Complainant had also threatened to kill himself, I am satisfied the officers were lawfully inside the residence when they searched it and came upon the Complainant hiding in the attic.

The analysis turns to a consideration of the propriety of the force used by the officers. This begins with the deployment of the dog into the attic. By this time, the Complainant had given the officers good cause to believe he would not surrender peacefully to arrest; he had threatened his wife and children while in a state of inebriation, hid in an attic for over two hours seeking to avoid apprehension, and refused to step forward once discovered despite being cautioned about the dog’s pending release. In the circumstances, the officers were within their rights in first seeking to engage the Complainant at a safe distance with the dog before directly intervening in his apprehension. Thereafter, the Complainant was subjected to several punches that struck his back, shoulders and legs, a kick to the right arm and CEW discharges, all in the course of a struggle in which the Complainant strenuously resisted the officers’ efforts to secure and restrain his arms in handcuffs. On this record, I am unable to reasonably conclude that the nature and extent of the police force established on the evidence transgressed the limits prescribed by the criminal law. In arriving at this conclusion, it is important to bear in mind that the law does not require that police officers engaged in dynamic and violent confrontations measure their responsive force with precision; what is required is a reasonable response, not an exacting one: R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.).

In conclusion, there are no grounds for proceeding with criminal charges against any of the officers involved in the Complainant’s arrest, including the SO, as the force that was used was legally justified notwithstanding the injuries that the Complainant suffered in the process. Accordingly, the file is closed.


Date: November 4, 2019



Joseph Martino
Interim Director
Special Investigations Unit