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SIU Director’s Report - Case # 19-PCI-101

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 51-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On May 6, 2019, 1:50 p.m., the Northwest Region of the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury.

The OPP reported that on May 2, 2019, at 2:51 p.m., OPP officers in Fort Frances responded to Vandrunen Road and Ontario Trans-Canada Highway 11 for a report of a possible impaired driver. The responding OPP officers located a pickup truck stopped on Vandrunen Road with a male driver slumped over the wheel. The officers attempted to rouse the male, now identified as the Complainant. The Complainant was actively resistant with the officers and tried to start the truck. The Complainant was forcibly removed from the truck by the officers and taken to the ground. The Complainant was arrested for impaired driving and resisting arrest. The Complainant was lodged in a cell at the Fort Frances detachment. At 11:40 p.m., on the same day, the Complainant was fingerprinted and released from police custody.

On May 3, 2019, the Complainant called the OPP Fort Frances detachment and reported his arm was fractured during his arrest the previous day. He was told to obtain medical confirmation of his injury and report back to the OPP. On May 6, the Complainant attended the detachment and presented medical records showing that he visited the hospital three times on Friday, May 3, 2019, complaining of left arm injury caused by the police. He was diagnosed with a fractured left elbow and forearm.

The Team

Number of SIU Investigators assigned: 2
 
Two SIU investigators were assigned to investigate the Complainant’s injury on May 7, 2019. On May 8, 2019, SIU investigators arrived in Fort Frances where they attended the Complainant’s residence to interview him. The Complainant consented to the release of his medical records. Two civilian witnesses were present at the time of the Complainant’s arrest. One of them declined to be interviewed by the SIU. SIU investigators were unsuccessful in locating the other civilian witness. 
 

Complainant:

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


Civilian Witnesses

CW Declined

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed



Evidence

The Scene

Vandrunen Road just north of Highway 11 near Devlin, Ontario.

Police Communications Recordings

The SIU obtained and reviewed the communications recordings of the events of May 2, 2019, leading up to the Complainant’s arrest. The communication recordings are consistent with the involved officers’ radio communications and the 911 calls to the OPP communication centre received regarding an impaired driver. This data corroborated the statements of the involved police officers and the OPP supporting documentation.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • General Report;
  • Communications recordings;
  • Notes of witness officers and the SO;
  • Occurrence involving the Complainant; and
  • Training Record-Transcript-the SO.

Incident Narrative

The following scenario surrounding the Complainant’s arrest emerges from the evidence collected by the SIU, which included statements from the Complainant, the SO, and a couple of other police officers who were present at the time. In the afternoon of May 2, 2019, the OPP received 911 calls from concerned citizens reporting a drunk driver operating a pickup truck. The Complainant was the driver of the truck. Officers were dispatched to investigate the matter and located the pickup truck stopped in the middle of Vandrunen Road just north of Highway 11.

WO #1 was the first to arrive at the scene, followed closely by the SO and WO #2. Seated on the pickup’s tailgate and drinking from a bottle of alcohol were the CW, the Complainant’s partner, and an additional civilian witness. The Complainant was asleep in the driver’s seat, slumped to his right over the vehicle’s centre console. He was clearly intoxicated. In the back of the vehicle in a child seat, also asleep, was the CW’s infant child.

The Complainant was roused when the officers opened the driver’s door and reacted with belligerence. He screamed at the officers and asked to be left alone. The officers advised him he was under arrest for impaired operation of a motor vehicle and took hold of him. The Complainant tensed up and refused to willingly exit his vehicle. He gripped the steering wheel refusing to let go and planted his left leg firmly on the floor as the SO and WO #1 tried to pull him out. As the struggle continued at the driver’s side of the vehicle, WO #2 reached in through the front passenger side and pressed his thumb behind the Complainant’s right ear. The Complainant continued to resist and was met with three or four punches to the right thigh by WO #2, following which the SO and WO #1 were able to pull him out of the vehicle. With the Complainant lying prone on the ground, the SO handcuffed his arms behind his back without further incident.

Following his arrest, the officers arranged for the safety and well-being of the child. The Complainant was taken to the police station and then released from custody. He attended a health clinic the following day and was diagnosed with a fractured left elbow and forearm.

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 OPP officers on May 2, 2019, and subsequently diagnosed with a fractured left arm. The SO was among the arresting officers and the one most likely to have inflicted the injury. On my assessment of the evidence, 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 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’s pickup truck had been observed operating erratically, the vehicle reeked of alcohol when approached by the officers and the Complainant gave every indication in his behaviour of being intoxicated. On this record, the officers had ample grounds to proceed with the Complainant’s arrest. Thereafter, I am satisfied on reasonable grounds that the force used by the officers was legally justified in aid of the Complainant’s arrest. Though not assaultive, the Complainant made it clear he would not be arrested willingly. Using his hands and legs to grip onto the interior of the vehicle, the Complainant resisted as the officers attempted to pull him from the vehicle. In response, WO #2 applied pressure to the back of the Complainant’s right ear with his thumb and then punched his right thigh three or four times with the intention of causing the Complainant enough pain to have him release his grip. The techniques sufficiently weakened the Complainant to the point that the SO and WO #1 were able to extricate him from the vehicle, grounding him in the process. I am unable to conclude that the force applied by WO #2 was excessive given the Complainant’s resistance at the time. Nor are there reasonable grounds to believe that the grounding transgressed the limits prescribed by the criminal law. The Complainant had demonstrated resolve in counteracting his arrest. In the circumstances, the officers were entitled to take him to the ground, in which position they could better deal with any further resistance by the Complainant.

In conclusion, while I accept that the Complainant’s left arm was fractured in the course of his arrest, most likely in the process of being yanked from his vehicle and taken to the ground, I am satisfied that the SO and the other officers acted reasonably and lawfully throughout their dealings with the Complainant. Accordingly, there are no grounds for proceeding with criminal charges in this case and the file is closed.


Date: November 4, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit