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SIU Director’s Report - Case # 19-PCI-107

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 27-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On May 12, 2019, at 1:25* a.m. [1], the Ontario Provincial Police (OPP) Northwest Region reported an injury sustained by the Complainant. On May 11, 2019 at 2:00 p.m., Kenora OPP police officers arrested the Complainant for breaching bail conditions by consuming alcohol. He was taken to the OPP detachment where he was lodged and complained of a sore knee. At 9:36 p.m., he was taken to the Lake of the Woods Hospital (LOTWH) in Kenora. Police officers were told at that time that the Complainant had a suspected dislocated knee. The OPP advised it would monitor the situation and provide updates.

On May 12, 2019 at 1:20* p.m., the OPP reported that the Complainant had been transferred to Thunder Bay Regional Health Sciences Centre (TBRHSC) for further treatment. The OPP advised that TBRHSC would not release any information on the Complainant’s condition. On May 14, 2019, the OPP reported that the Complainant was still in hospital, and refused to speak to anyone about this incident.

The Team

Number of SIU Investigators assigned: 2

Complainant

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


Civilian Witnesses

CW Not interviewed (Declined)

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located on a grassy/gravel surface on the north side of Highway 17 East, Kenora, between Highway 17 East and the Kenora Jail at 1430 River Drive.

Communications Recordings


Telephone Communications:


On May 11, 2019 at 1:55 p.m., the CW telephoned the Kenora Detachment of the OPP and reported that she had been threatened by a First Nations man outside her place of employment. The CW reported that the man [now known to be the Complainant] shouted at her and told her she was a racist white bitch. The Complainant was intoxicated and described as being a 30-year-old, who wore a black hoodie and a bandana. The Complainant had left on foot and was headed eastbound.


Communications Audio:


At 1:56 p.m., WO #2 and WO #3 were dispatched to the call and at 1:57 p.m. WO #1 volunteered for the call. At 2:03 p.m., WO #1 was on scene and had located the Complainant. At 2:07 p.m., after running the Complainant on CPIC (Canadian Police Information Centre database) with conditions to abstain from alcohol consumption, WO #1 advised he had a prisoner in custody.

Video/Audio/Photographic Evidence


OPP Kenora Detachment Video:


There were two cameras located in the sally port. Sally port 1 camera was at the back and faced toward the inside of the garage doors. Sally port 2 camera was at the front and viewed the back wall. At 2:22 p.m., on May 11, 2019, WO #2 entered the sally port from the cell block and the right exterior garage door went up. A fully marked SUV entered and WO #1 appeared at the passenger side of the SUV. The camera did not have a view of the driver’s side of the SUV. At 2:28 p.m., WO #2 was observed to drag the Complainant by his shoulders from the back of the SUV towards the cell block door. The Complainant was obviously passed out and on his back. Neither sally port 1 camera, nor sally port 2 camera captured the Complainant’s exit from the rear driver’s side of the SUV. There was no sound to the recording.

At 2:28 p.m., the hallway camera showed WO #1 enter the hallway from the garage and WO #2 was behind him. WO #2 dragged the Complainant through the hallway into the booking area. There was no sound to the recording. WO #1 wrote down some notations and the Complainant lay on his back. He kept moving his right leg but never moved his left leg and his left foot showed at an unusual angle. WO #2 removed the handcuffs from the Complainant and took the Complainant’s top clothing off. The Complainant could be seen speaking but there was no sound. At 2:33 p.m., WO #2 dragged the Complainant into a cell. At 2:33 p.m., the camera in cell 2 captured WO #2 dragging the Complainant into the cell. The Complainant lay on his back on the cell floor. The Complainant kept moving his right leg and he bent his right leg, but he never bent or moved his left leg.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP Kenora Detachment:
  • Booking Video;
  • Computer-Assisted Dispatch-Event Details Report;
  • Communications and Video recordings;
  • Crown Brief Cover and Synopsis;
  • Email Correspondence;
  • General Report;
  • Guard Check Sheet;
  • Notes of the SO and witness officers;
  • Occurrence Summary;
  • Person Details-CW;
  • Prisoner Custody Report;
  • Recognizance of Bail;
  • Section 11 Request;
  • Summons with affidavit;
  • Supplementary Report; and
  • Witness List.

Materials obtained from Other Sources

The SIU also obtained and reviewed the following records from other sources:
  • Ambulance Call Report;
  • LOTWH Medical Records;
  • Photos of injuries; and
  • TBRHSC Medical Records.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, which included statements from the Complainant, the SO and several other police witnesses who participated in, or were present at the time of, the arrest. Just before 2:00 p.m., on May 11, 2019, the CW contacted the OPP. She called to complain that a man – the Complainant – had accosted her at her place of business; the Complainant had threatened the CW and called her a racist white “bitch”. Police officers were dispatched to investigate the matter.

The Complainant was confronted by police officers as he walked near the Kenora Jail on the north side of Highway 17 East. He had consumed alcohol in breach of his bail conditions and was inebriated when approached by the police. The Complainant demurred when told by WO #1 that he was under arrest. WO #1 took hold of the Complainant’s right arm as the SO grabbed his left arm. The officers directed the Complainant to place his arms behind his back so he could be handcuffed, but he objected. The Complainant flailed his arms and attempted to pull away as the officers tried to control his movements. The SO warned the Complainant that he would be grounded if he continued to struggle and then proceeded to do so when the Complainant persisted. Specifically, the SO applied rotational pressure on the Complainant’s left arm to force him to the ground. As the Complainant went down, WO #1 fell with him. Once on the ground, the officers were able to quickly secure the Complainant in handcuffs without further incident.

Following the Complainant’s roadside arrest, he was taken to the police station and lodged in a cell at about 2:30 p.m. Starting at about 6:00 p.m. and a couple of times thereafter, the Complainant complained of pain in his left leg. At 10:44 p.m., paramedics arrived at the police station and ultimately transported the Complainant to hospital where he was diagnosed with a left knee fracture and dislocation.

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 175 (1), Criminal Code -- Causing a disturbance

175 (1) Every one who
(a) not being in a dwelling-house, causes a disturbance in or near a public place,   
(i) by fighting, screaming, shouting, swearing, singing or using insulting language, 
(ii) by being drunk,
(iii) by impeding or molesting other persons, 
Is guilty of an offence punishable on summary conviction.

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.  

Section 495(1), Criminal Code - Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Analysis and Director's Decision

The Complainant was arrested on May 11, 2019 by OPP officers and suffered a fractured and dislocated left knee in the process. The SO was among the arresting officers and identified by the SIU as the one most likely to have caused the Complainant’s injury. For the reasons that follow, 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 required or authorized to do by law. It would appear the officers were proceeding to lawfully arrest the Complainant. As far as the officers knew, the Complainant, while intoxicated, had berated and intimidated a citizen at her place of business for no apparent reason, threatening her and calling her vile names, and was now walking back toward the location of the citizen’s business. In the circumstances, I am satisfied that there were reasonable grounds to proceed with the Complainant’s arrest for public intoxication contrary to section 31(5) of the Liquor Licence Act. [2]

The issue turns to the propriety of the force used in the course of the Complainant’s arrest. Here too I am satisfied that the SO and WO #1 comported themselves lawfully. The force in question – a forcible takedown – occurred only after the Complainant had made it clear he would not be arrested willingly and ignored repeated requests that he place his arms behind his back. While it is regrettable that the takedown appears to have caused the Complainant’s knee injury, I am unable to reasonably conclude on the evidence that the tactic was excessive in the circumstances; with the Complainant on the ground, the officers could better manage any continuing resistance on his part.

In conclusion, while I accept that the Complainant’s left knee was fractured while being arrested by the SO, I am satisfied that there are no reasonable grounds to believe the officer transgressed the limits of the criminal law at any point. Accordingly, there is no basis to proceed with criminal charges against the SO and the file is closed.


Date: December 16, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Endnotes

  • 1) All times are Central Daylight Time unless denoted with “*”, in which case the times are Eastern Daylight Time [Back to text]
  • 2) WO #1 indicated that he also arrested the Complainant for having caused a disturbance, contrary to section 175(1)(a) of the Criminal Code, in relation to his behaviour toward the CW. An arrest without warrant based on this offence alone, however, would arguably have been unlawful as it is strictly a summary conviction offence and the delict had already transpired. Such offences may only form the basis of a warrantless arrest pursuant to section 495 of the Criminal Code where the police officer finds it being committed; WO #1 was not present when the offence was allegedly being committed. [Back to text]