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SIU Director’s Report - Case # 19-OCI-130

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 45-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On June 12, 2019, at 4:17 a.m., the London Police Service (LPS) notified the SIU of an injury. The LPS understood that at approximately 9:44 p.m., on June 11, 2019, the Complainant sustained an injury during his arrest on Ashland Avenue. The Complainant was taken to the LPS station and lodged in a cell. At 1:15 a.m., on June 12, 2019, the Complainant complained of pain in his left wrist. He was taken to London Health Sciences Centre where he was diagnosed with a fractured left wrist. 

The Team

Number of SIU Investigators assigned: 4
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary
WO #9 Notes reviewed, interview deemed not necessary
WO #10 Interviewed


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

Both subject officers provided the SIU with a written statement.


Evidence

The Scene

A residence on Ashland Avenue. The interaction between the Complainant and the officers took place on the front porch of the residence.

Video/Audio/Photographic Evidence

A video recording of the Complainant’s entrance into the detention unit was reviewed, as was his lodgment in a cell. For one 15-minute period, an animated Complainant is captured ranting at WO #10.

Communications Recordings

The SIU obtained a copy of a 911 call and related LPS Communications. The following is a summary. There were no date and time stamps associated with either of these recordings.


911 Call

  • A woman called the LPS and reported that she was at the Saturn Play Park near Kiwanis Park Drive;
  • She reported that a woman was approached by a man [now known to be the Complainant] who was aggressive toward her and slapped her;
  • She reported that the Complainant would grab onto the woman’s arm as she tried to walk away;
  • She reported that the woman walked by the caller and mouthed help;
  • She reported that she walked up to the woman and the woman asked that the police be called; and
  • She reported that she was unable to wait for police arrival.


Communications


The communications file was 1:09:47 in length. It captured the following information:
  • Police officers [now known to be SO #2 and WO #1] were sent to a service call at Saturn Park;
  • They were to check the well-being of a lady who was involved in an argument with a man [now known to be the Complainant];
  • SO #1 reported that a citizen supplied information that the Complainant was westbound in the backyards on Ashland Avenue, north of York Street;
  • WO #1 reported a citizen, about 30 seconds ago, saw the Complainant in the area of Ashland Avenue;
  • SO #1 advised that the Complainant was in custody; and
  • The next transmission was that the Complainant was being taken to the station.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from LPS:
  • Computer-Assisted Dispatch - Event Chronology;
  • Communications related to the incident;
  • Detention Record Disclosure;
  • General Occurrence Hardcopy;
  • Police Witness Statement of SO #1 and SO #2;
  • Notes-SO #2, WO #1, WO #2, WO #4, WO #6, WO #7, WO #8 and WO #9
  • Cell video; and
  • Property Form.

Incident Narrative

At about 9:45 p.m., on June 11, 2019, the Complainant was found hiding from police on the front porch of a house situated on Ashland Avenue, London. He had fled on foot from police officers looking to arrest him for having assaulted a woman in Kiwanis Park shortly before 9:00 p.m. SO #2 and his partner, WO #1, had attended at the park, spoken with the woman and the Complainant, and made the decision to arrest him. WO #1 chased after the Complainant on foot while SO #2 searched for him in his cruiser. Other officers were brought in to assist with finding the Complainant and establishing a search perimeter. SO #1 was among those officers.

With the assistance of a resident from a home on Ashland Avenue, who observed the Complainant on the porch and alerted the police to his whereabouts, the Complainant was located and approached by SO #1 and SO #2. The Complainant complied with the officers’ requests that he show his hands and lay prone on the ground, but then became agitated as SO #1 and SO #2 tried to secure his arms in handcuffs. The Complainant kicked his legs and rolled his body but was quickly subdued by the officers who were able to affix the handcuffs.

Following his arrest, the Complainant was transported to the detention centre and lodged in a cell. He complained of pain in his left wrist and arrangements were made to take him to hospital, where his fracture was diagnosed.

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 LPS officers on June 11, 2019 and sustained a fractured left wrist in the process. SO #1 and SO #2 were the arresting officers and identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either of the subject officers 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 but only to the extent that such force was reasonably necessary in the execution of an act that they were authorized or required to do by law. The Complainant was being arrested for assault when he appears to have broken his wrist. Based on the information obtained from the woman at the park, and the person who witnessed her and the Complainant arguing, I am satisfied that the officers had sufficient grounds to effect the Complainant’s arrest. I am further satisfied that SO #1 and SO #2 used only reasonably necessary force in taking the Complainant into custody. This consisted in the officers using their muscular power to force the Complainant’s arms behind his back to be handcuffed. No strikes of any kind were delivered by the officers. On the weight of the evidence, I am satisfied that the Complainant offered the officers a degree of resistance and that SO #1 and SO #2 responded with moderate and proportionate force.

There is a suggestion in the evidence that the Complainant’s wrist was fractured when, while handcuffed and prone on the ground, an unidentified officer stepped on his left wrist. This piece of evidence stands in conflict with weight of the evidence (each of the officers involved in the arrest or present at the time makes no mention of any such act) and is equivocal as to whether the step was intentional or inadvertent. Be that as it may, the fact is that the investigation did not identify any particular officer who may have been responsible for this action.

In the result, while I accept that the Complainant’s wrist was broken in the course of his arrest, the force established in the evidence to have been used by SO #1 and SO #2 was, in my view, legally justified in aid of a lawful arrest. With respect to the allegation that an officer stepped on the Complainant’s wrist after he had been handcuffed, no officer was identified as implicated in this potential misdeed. In either event, accordingly, there are no grounds for proceeding with criminal charges against the subject officers, and the file is closed.


Date: December 3, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit