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SIU Director’s Report - Case # 19-OCI-197

Contents:

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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 61-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 18, 2019, at 6:40 a.m., the Barrie Police Service (BPS) reported an injury to the Complainant.
The BPS advised that on August 18, 2019, at 4:07 a.m., the BPS received a call to attend to two men fighting at the Barrie Public Library at 60 Worsley Street. When a police officer arrived, the Complainant was arrested and taken to the ground.
The Complainant was taken to the Royal Victoria Regional Health Centre (RVHC) and diagnosed with a broken left arm. 

The Team

Number of SIU Investigators assigned: 2
 

Complainant:

61-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


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The Complainant was arrested and taken to the concrete ground outside the Barrie Public Library. There was no scene to examine and it was not preserved.

Video/Audio/Photographic Evidence


Booking Hall Video


The BPS station booking hall/sally port video was reviewed and was of no evidential value.

Communications Recordings


Non-Emergency Telephone Call to BPS


CW #1 telephoned the BPS and requested a police officer come to the library to shut some drunk people up. She reported that one of the men present was bashing his head off the library window. There was a group of homeless people sleeping at the library, but two men were carrying on.

CW #1 reported she heard one of the men say he would stab another. She told the call taker she had not seen a knife and that the men concerned were sitting beside some garbage cans. She described the man who was banging his head on the window [now known to have been the Complainant]. She described how he had been arguing with a younger man who had left the area.


BPS Radio Communications


The radio dispatcher asked for units to attend the library for a disturbance as a man had taken after a second man and had threatened to stab him. She provided a description of the aggressor [now known to have been the Complainant]. 

The SO and WO #1, in separate police cruisers, responded to the call. The SO reported that he had the Complainant in custody arrested under the Liquor License Act (LLA) for public intoxication. He reported that he was going to await the arrival of WO #1 before he moved the Complainant to his police cruiser.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the BPS:
  • Event Details;
  • Audio Copy-Non-emergency telephone call;
  • Audio Copy-Radio Communications;
  • Sally-port, Booking Hall video;
  • Duty Report of WO #1; and
  • Notes of witness officers and the SO.

Materials obtained from Other Sources

Investigators also obtained and reviewed the following materials:
  • Contemporaneous Handwritten notes of CW #1;
  • Medical Report from RVHC; and
  • Emergency Medical Services - Ambulance Call Report.

Incident Narrative

The weight of the reliable evidence gives rise to the following sequence of events. At about 4:00 a.m. on August 18, 2019, a resident in the area of the Barrie Public Library called the BPS to complain about a group of people sleeping outside the library; two, in particular, were creating a disturbance. Among them was a male – the Complainant – who had argued with a younger person in the group and reportedly threatened to stab him. Police officers were dispatched to investigate the matter.

The SO was the first officer to arrive. He observed a dozen or so homeless persons sleeping under the overhang at the south side of the library east of the entrance doors. Apart from the Complainant and CW #2, who were drinking beer and speaking loudly, they were all sleeping or resting quietly. CW #2 was asked to leave by the officer and agreed to do so.

The Complainant was not as cooperative when he too was asked to leave the premises. He swore at the SO, objected to his presence and challenged the officer to a fight. The SO replied that he was not interested in fighting but did want the Complainant to vacate the area, warning the Complainant repeatedly that he would otherwise be arrested for public intoxication. The Complainant was not appeased; he ripped his T-shirt to reveal his right bicep muscle and again invited the officer to fight him. The SO reacted by shoving the Complainant into one of the pillars supporting the library overhang. There followed a brief struggle between the two as the SO took the Complainant face-first to the ground, whereupon the officer was able to secure the Complainant’s arms in handcuffs behind him. The takedown resulted in the Complainant’s fractured left arm.

WO #1 arrived at the library to find the Complainant on the ground in handcuffs. He and the SO assisted the Complainant to his feet and lodged him in the backseat of the SO’s cruiser. The Complainant repeatedly complained that his arm was broken and asked for medical attention. Upon his arrival at the police station, an ambulance was summoned and took the Complainant to hospital.

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 31(4), Liquor Licence Act -- Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,
(a) In a place to which the general public is invited or permitted access; or
(b) In any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

Section 31(5), Liquor Licence Act -- Arrest without warrant

31 (4) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.  

Analysis and Director's Decision

In the early morning of August 18, 2019, the Complainant was arrested in front of the Barrie Public Library and had his left arm broken in the process. The SO was the arresting officer. On my assessment of the evidence collected by the SIU, which included statements from the Complainant, the SO and several eyewitnesses to the events in question, 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.

It should be noted that there is some evidence presenting a different version of what occurred around the Complainant’s arrest. Among the material differences is the suggestion that the Complainant was grounded by two police officers without any provocation on his part. The suggestion that the Complainant was passive is belied by the accounts of independent eyewitnesses, whose evidence indicates that the Complainant behaved in a threatening matter toward a single officer ahead of the takedown and then struggled with the officer following the initial shove into the pillar. For these and other reasons, it would be unwise and unsafe to place much if any credence on the more incriminating evidence.

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 clearly intoxicated by alcohol when confronted by the SO and asked to leave to the area in front of the library – a public space. When the Complainant refused and then threatened the officer with violence in words and deeds, the SO concluded, reasonably in my view, that the Complainant’s arrest was necessary in the interests of the officer’s safety, as well as his own. Accordingly, I am satisfied that the SO was acting lawfully when he moved in to arrest the Complainant under section 31(5) of the LLA.

Turning to the propriety of the force used by the SO – a shove followed by a takedown – I am unable to reasonably conclude on the evidence that the officer exceeded the limits prescribed by the criminal law. The Complainant was the aggressor throughout his interaction with the SO. When his belligerence became overtly threatening to the SO, the officer was within his rights in using a measure of moderate force to push the Complainant away from him. Thereafter, I am satisfied that the takedown, following a brief struggle between the SO and the Complainant on their feet, was a reasonable tactic in the circumstances; in that position, the officer could better deal with the Complainant’s combativeness and take him safely into custody. While it is regrettable that the Complainant’s left arm was broken in the process of being grounded, there is no indication whatever that the SO intended to inflict any injury, nor that the injury was anything other than an unfortunate accident.

In conclusion, as there are no reasonable grounds to believe, in my view, that the Complainant’s arrest was unlawful or that his injury was the result of excessive force, there is no basis for proceeding with criminal charges against the SO. The file is therefore closed.


Date: November 4, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit