Cruiser and motorbikeRunnersCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 19-PCI-065

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 68-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On April 2, 2019, at 2:45 p.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury.

The OPP advised that on April 2, 2019 at 8:50 a.m., the Complainant attended the OPP Norfolk Detachment in Simcoe to be interviewed regarding historical offences. When investigators made the decision to arrest the Complainant, he became combative and would not remove his hands from his pockets. A Conducted Energy Weapon (CEW) was deployed and the Complainant was subdued by several police officers. A knife was found in his pocket.

He was taken to Norfolk General Hospital and had three broken ribs and a punctured lung.
 

The Team

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

Complainant:

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


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed


Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #3 Did not present for interview or provide notes, as is the subject officer’s legal right


Evidence

The Scene

The scene of this incident was at the Norfolk County OPP Detachment on Queensway West in Simcoe. Just inside the front doors of the detachment to the right of the front doors was the doorway into the boardroom. A large table dominated the room with chairs scattered around it and a counter ran along the rear wall furthest from the door.

There were CEW anti-felon identification tags (AFIDs) on the floor at the end of the table nearest the door. The AFIDs were collected from the floor of the boardroom. The knife said to belong to the Complainant was photographed by an SIU forensic investigator. The boardroom and the route taken to get to the lower level cell block were photographed.

In the hallway on the basement level there were bloodstains on the wall next to a bulletin board.

Physical Evidence

Figure 1 - The knife that allegedly belonged to the Complainant.
Figure 1 - The knife that allegedly belonged to the Complainant.

Video/Audio/Photographic Evidence


OPP Cell Block Area Video Recordings


The SIU obtained video footage from six cameras situated in the cell block area of the Norfolk County OPP detachment, depicting events that occurred on April 2, 2019 between 8:58 a.m. and 9:42 a.m. Of particular interest is the recording associated with the camera capturing events in the booking area:

  • 8:58:58 a.m.: The Complainant enters the booking area with WO #6 on his left and WO #7 on his right. The Complainant is dressed in a brown coat that is pulled down to his elbows, blue-hooded sweater with the hood up, white t-shirt under the sweater, blue jeans around his ankles, full-length pants under the jeans and brown boots;
  • A special constable and two unknown police officers are also in the room;
  • SO #2 and an undesignated detective sergeant also come into the room;
  • 8:59:04 a.m.: The Complainant is seated on a bench with his hands handcuffed behind his back, and WO #7 and WO #8 are removing his brown boots;
  • 8:59:13 a.m.: WO #2 enters room and leaves moments later; SO #2 leaves;
  • 8:59:28 a.m.: WO #7 and WO #8 remove the Complainant’s blue jeans;
  • 8:59:43 a.m.: The Complainant is brought to his feet, turned facing the wall and lifted onto the bench sitting on his knees;
  • 9:00:02 a.m.: WO #2 re-enters the room as the special constable and an undesignated officer assist in removing the handcuffs and jacket from the Complainant;
  • 9:00:59 a.m.: The Complainant’s hooded sweater is removed and an undesignated officer enters the room;
  • 9:01:27 a.m.: The Complainant’s hands are placed on the wall and he is searched;
  • 9:01:55 a.m.: The Complainant is led from the room by WO #7, his hands held behind his back by WO #6. WO #2, SO #2, the special constable and two undesignated officers follow;
  • 9:02:16 a.m.: All the police officers except SO #2 return to the booking room;
  • 9:02:46 a.m.: SO #1 enters booking room;
  • 9:03:43 a.m.: SO #1 demonstrates a movement with his right leg to WO #2, WO #6, WO #7, the special constable and two undesignated officers;
  • 9:11:47 a.m.: SO #2 re-enters the booking room with WO #7 and the special constable. WO #7 opens door to phone room and looks in;
  • 9:13:30 a.m.: The Complainant is placed in the phone room;
  • 9:17:10 a.m.: SO #2 opens door to the phone room as SO #1, the special constable and two undesignated officers are present in booking room;
  • 9:19:30 a.m.: WO #4 comes into the room, looks in the phone room and leaves;
  • A sergeant enters the room as the Complainant is placed in a wheeled chair and moved away from the phone room. The Complainant continues to hold his right side;
  • Norfolk County Emergency Medical Services (EMS) arrive in the booking room;
  • 9:34:30 a.m.: The Complainant is loaded onto a stretcher; and
  • 9:39:55 a.m.: The Complainant is taken from the booking room by EMS.

Communications Recordings

Communications recordings were reviewed and it was determined they had no bearing in this matter since none of the recordings addressed how the Complainant received his injuries and by whom.

Forensic Evidence


CEW Download


On April 2, 2019 at 8:57:01 a.m. SO #3 armed his CEW. Then at 8:57:11 a.m., he pulled the trigger of his CEW. The deployment lasted a total of five seconds. At 8:57:23 a.m., SO #3 activated the safety on his CEW.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • Cell Block Area Video Recordings;
  • Communications Recordings;
  • Computer Aided Dispatch-Event Details;
  • General Report;
  • Data downloaded from SO #3’s CEW;
  • Notes of the witness officers;
  • Occurrence Details;
  • Policy- Arrest - Detention; and
  • Policy-Use of Force.

Incident Narrative

The weight of the reliable evidence gathered by the SIU gives rise to the following scenario. On April 2, 2019, at about 8:45 a.m., the Complainant arrived at the OPP Norfolk County Detachment further to arrangements made the previous day with SO #2, who, together with SO #1, was investigating the Complainant for historic offences. The Complainant was escorted into the boardroom where he was advised by the officers that he was under arrest. The Complainant did not take well to the news. He questioned the charges, became belligerent and physically resisted the officers as they attempted to take him into custody. SO #1 and SO #2 reacted by pinning the Complainant against a wall and then taking him to the floor facedown.

While on the ground, the Complainant flailed his legs and refused to release his arms from underneath his torso to be handcuffed. The officers grappled with the Complainant with little success. At one point, SO #2 observed the Complainant with a knife in his left hand and alerted SO #1; the Complainant had carried the knife to the meeting in a pants pocket. At news of the weapon, SO #1 delivered three knee strikes to the Complainant’s right torso, whereupon SO #2 was able to pry the knife out of the Complainant’s left hand.

Additional officers began to arrive in the boardroom as the struggle with the Complainant continued on the floor, SO #3 among them. With the assistance of WO #4, who pulled up the Complainant’s coat to expose his back, SO #3 deployed his CEW; the probes struck the Complainant’s backside above the waist. Shortly thereafter, the Complainant’s hands were cuffed behind his back.

Following his arrest, the Complainant was searched and then lodged in a cell. Some time later, the Complainant complained of pain and arrangements were made to have him taken 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.

Analysis and Director's Decision

On April 2, 2019, the Complainant was arrested while in the boardroom of the OPP Norfolk County Detachment in Simcoe. He was subsequently taken to hospital and treated for three fractured ribs and a collapsed lung. SO #1 and SO #2 were the arresting officers and identified as subject officers for purposes of the SIU investigation. SO #3 discharged a CEW and was also designated a subject officer. On my review of the information collected by the SIU in its investigation of the circumstances surrounding the Complainant’s injuries, I am satisfied there are no reasonable grounds to believe that the subject officers committed a criminal offence in connection with the Complainant’s arrest and injuries.

It should be noted that there is some evidence suggesting a version of events that involves a far more severe application of police force. This evidence provides that the Complainant was repeatedly kicked by various officers while on the floor and offering no resistance. Moreover, this evidence further indicates that one of the officers discharged a CEW at the Complainant after he was handcuffed, that the Complainant was thrown down a flight of stairs and that the Complainant was assaulted by another officer in a room where he was taken to contact his lawyer.

If true, this version of what occurred would necessarily lead one to believe the Complainant was the victim of an unlawful assault at the hands of multiple officers. However, I am satisfied that it would be unwise and unsafe to rest criminal charges on the strength of this evidence alone. Not only does this evidence stand in stark contrast to the overriding weight of the testimonial evidence, it is belied by video recordings captured by cameras in the cell block area, which establish that no officer entered the room in which the Complainant had been taken to speak with a lawyer. In the circumstances, the evidence of excessive force is, in my view, insufficiently trustworthy to warrant being put to the test by a trier-of-fact in the absence of corroboration. While the Complainant’s injuries might in another case have provided that corroboration, they are incapable of doing so in this one as they are equally consistent with the nature and extent of the police force that emerges on the weight of the remaining 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 was reasonably necessary in the execution of an act that they were required or authorized to do by law. I am unable to conclude on the totality of the evidence gathered by the SIU that SO #1 and SO #2 had insufficient grounds to take the Complainant into custody based on their investigation of the historic offences. When the Complainant physically resisted his arrest, the officers were entitled to resort to a measure of force to effect their purpose. The question is whether they crossed the line into excessive force in so doing. In my view, they did not.

SO #1 took the lead in dealing with the Complainant, first by pinning him against a wall and then grounding him to the floor. I am unable to find fault in the officer’s choice of tactics in this regard. The Complainant had made it clear that he would not be arrested without a struggle of some sort. He had also refused SO #1’s direction that he remove his left hand from inside his left front pants pocket, causing the officer concern about a possible weapon in his possession. In the circumstances, SO #1 was entitled to force him against the wall and then to the ground, from which position the officers could better control the Complainant’s movements.

The Complainant continued to resist while on the ground and gave the officers further cause for concern when it became obvious he was in possession of a knife. SO #1 delivered three knee strikes to the Complainant’s torso attempting to free the Complainant’s arms from underneath his prostrate body. This was followed by a single CEW discharge of five seconds’ duration. Following the CEW discharge, the Complainant’s hands were finally secured and handcuffed. Confronted with a physically recalcitrant individual, armed for a period with a knife and refusing to surrender his hands, the knee strikes and CEW deployment do not seem to me to be a disproportionate or excessive use of force. In arriving at this conclusion, it is important to bear in mind that the law does not require that police officers involved in dynamic and dangerous situations measure their responsive force to a nicety; 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 the result, while I accept that the Complainant’s injuries likely occurred during the altercation that marked his arrest, presumably when he was pinned against the wall, taken to the floor or struck by SO #1’s knee, I am satisfied that the force used by the officers was

legally justified. Accordingly, there are no grounds for proceeding with charges in this case and the file is closed.


Date: November 4, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit