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SIU Director’s Report - Case # 19-OCI-110

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 a serious injury sustained by a 56-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On May 18, 2019, at 6:15 a.m., the York Regional Police (YRP) notified the SIU of an injury to the Complainant.

The YRP reported that on May 17, 2019, at about 7:15 p.m., the YRP responded to assist emergency medical services (EMS) in relation to a man in a ditch in the area of Woodbine Avenue and Davis Drive, Newmarket. Upon police and EMS arrival, the Complainant was found to be extremely intoxicated. According to police, the Complainant tried running into traffic and was subsequently subdued, returned to the station, and lodged.

On May 18, 2019, at about 1:30 a.m., the Complainant began complaining of a sore shoulder. He was taken to the Southlake Regional Health Centre (SRHC) where he was diagnosed as having suffered a fractured and separated shoulder. He was treated and later released.

The Complainant offered several versions of how the injury occurred to hospital staff. At one point, he advised the injury was pre-existing and later advised the police caused the injury.

The Team

Number of SIU Investigators assigned: 4
 

Complainant:

56-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, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The gravel shoulder on the north side of Davis Drive approximately 1.25 kilometres east of Woodbine Avenue, Newmarket.

Video/Audio/Photographic Evidence


Police In-Car Camera System (ICCS) footage

WO #1 travelled eastbound on Davis Drive and stopped her police vehicle on the north shoulder. An ambulance with emergency lights activated was stopped in that same shoulder facing westbound. There were three paramedics speaking with the Complainant in front of the ambulance. WO #1 exited and two paramedics approached her. One of the paramedics explained they were trying to get a telephone number for someone who would be able to pick up the Complainant as he did not need to attend the hospital, “He’s volatile - he could go off, just so you know. He doesn’t like you guys at all so there may be a throw down here in a minute.”

The SO arrived, at which time he and WO #1 approached the Complainant, who was stumbling as he was with another paramedic still in front of the ambulance. The SO spoke with the Complainant, “We are just making sure you’re okay man.” He further asked how much the Complainant had to drink that day, to which he replied, “Lots, I’m not finished yet.” He specified he drank “Jack Daniel’s”. His speech was slow and slurred.

The SO asked the Complainant to step aside so they would not get hit by a car, and the Complainant refused. The SO explained to the Complainant he needed to sober up a little, and the Complainant replied, “No fucking way.” The Complainant rolled up both of his sleeves and said, “Fuck you,” and, “You want to go?” The SO said, “No, no, no, don’t do that, don’t do that man.”

The SO explained to the Complainant there would be an easy way and a hard way, then asked which he wanted. The Complainant replied, “I want…just get the hell out…my son’s coming and my ex-wife is coming…it was down there (pointing behind him)…I didn’t want to go…”. The Complainant turned his head to the right with both hands still down by his side, then the SO shouted, “Hey.” The Complainant said, “Somebody getting punched out…”. At that moment, the SO, using both hands, took hold of the Complainant’s left arm and pushed him down towards the north ditch. The Complainant, with his right arm in front of him, landed forcefully on his stomach with his right arm, head and chest hitting the ground first.

Summary of Closed-Circuit Television (CCTV) Footage from a Business in the Area

Nothing of value to the SIU to assist with their investigation.

Communications Recordings

Multiple phone calls came in to emergency services regarding a man [now known to be the Complainant] lying down on the shoulder of Davis Drive, on the north side of the road, just east of Woodbine Avenue. The Complainant appeared to be asleep. The callers were concerned a car may hit the Complainant on the gravel shoulder.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the YRP:
  • Notes of witness officers;
  • Occurrence Report;
  • ICCS video recording;
  • Communication recordings;
  • Booking video;
  • Procedure-Use of Force;
  • Procedure-Processing Offender; and
  • Training Record-the SO (x4).

Materials obtained from Other Sources

Upon request the SIU obtained and reviewed the following records from other sources:
  • Ambulance Call Report×4 from York EMS;
  • Medical Record from SRHC; and
  • CCTV footage from a business in the area.

Incident Narrative

The material events are clear on the evidence collected by the SIU, which included statements from the Complainant, the SO, the SO’s partner, WO #1, who participated in the arrest, and several paramedics who were present at the time. The investigation also benefitted from a video recording of the entire incident captured by a police cruiser camera. At about 7:55 p.m. on May 17, 2019, the SO and WO #1, in separate police cruisers, travelled to the north shoulder of Davis Drive, approximately 1.25 kilometres east of Woodbine Avenue, to assist paramedics. The paramedics had arrived in the area following 911 calls from a number of citizens concerned about a male lying on the shoulder by the roadway. The Complainant was that man. He was belligerent with the paramedics and refused to allow them to examine him.

The officers approached the Complainant having been warned ahead of time by one of the paramedics that he disliked police and might react violently to their presence. The SO took the lead in speaking with the Complainant. The officer indicated they were concerned for his safety and there to help him. The Complainant did not react well to the offer of assistance; he rolled up his sleeves and challenged the officer to fisticuffs. The Complainant was standing a metre or two from the westbound lane and refused the SO’s request that he move further away from the roadway. About two-and-a-half minutes into their interaction, the SO grabbed the Complainant by the left arm and, using his left leg to trip the Complainant, forced him down face-first onto the ground. Once on the ground, the Complainant was quickly handcuffed by the SO and WO #1.

Following his arrest, the Complainant was taken to the station where he was held in a cell for a few hours before arrangements were made to transport him 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(5) 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 evening of May 17, 2019, the Complainant found himself on the north shoulder of Davis Drive, east of Woodbine Avenue, in Newmarket. He was significantly intoxicated. Paramedics and police officers were dispatched to the scene to check on his welfare. Within minutes of the officers’ arrival, the Complainant was arrested and placed in the backseat of a police cruiser. He was subsequently taken to hospital and diagnosed with serious injuries, including a dislocated and fractured shoulder. The SO was identified as the arresting officer most likely to have caused the Complainant’s injuries. On my assessment of the evidence, I am satisfied there are no reasonable grounds to believe the SO 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 protected from criminal liability for force used in the course of their duties but only insofar as such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. In this case, force was used in the execution of an arrest and so the questions that arise are twofold: was the Complainant’s arrest lawful and, if so, was the force used in its execution reasonably necessary? In my view, both must be answered in the affirmative. The Complainant was significantly intoxicated. He was unsteady on his feet and slurred his speech. He was also refusing to move away from the vicinity of a live lane of traffic in which vehicles were routinely passing. In the circumstances, I am satisfied that the SO’s concerns for the Complainant’s well-being were genuine and legitimate concerns that would have only been heightened by the Complainant’s belligerence and threatened violence, and that the officer was proceeding to effect a lawful arrest under section 31(5) of the Liquor Licence Act.

Turning to the propriety of the force that was used against the Complainant, here too I readily accept that it was legally justified. The force in question – a takedown performed by the SO – came after the officer had engaged the Complainant for a couple of minutes in conversation during which the Complainant refused to step further away from the roadway and became increasingly combative. The position of the parties as they stood within metres of fast-moving vehicular traffic was precarious. A physical altercation in that area of any length would have clearly put the officers and the Complainant at great danger of being struck by a passing motorist. Accordingly, once the decision to arrest the Complainant had been made, it was imperative to take him into custody quickly and resolutely. In this context, I am unable to reasonably conclude that the takedown was disproportionate to the risks at hand notwithstanding the injuries to the Complainant that were inflicted as a result. In that position, the officers would clearly have had the upper hand in dealing with any potential resistance from the Complainant.

In conclusion, as I am unable to form reasonable grounds to believe that the Complainant’s arrest or the force used to take him into custody was unlawful, there is no basis to proceed with criminal charges against the SO. Accordingly, the file is closed.


Date: November 18, 2019



Joseph Martino
Interim Director
Special Investigations Unit