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SIU Director’s Report - Case # 19-OCI-181

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 38-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 6, 2019 at 6:10 a.m., the Belleville Police Service (BPS) contacted the SIU and reported that, the same day, at approximately 1:30 a.m., the BPS responded to a domestic disturbance at an address in Belleville. There they encountered the Complainant, who was very intoxicated. The Complainant was belligerent and combative, and was arrested for public intoxication. The Complainant resisted and was grounded by the officers. The Complainant was transported to the Belleville Police station and lodged. He complained of some pain to his shoulder while in his cell. At approximately 3:45 a.m. BPS officers transported the Complainant to Belleville General Hospital where it was determined by x-rays that he had a fractured humerus bone. 

The Team

Number of SIU Investigators assigned: 3

On August 6, 2019, SIU investigators were assigned. The Complainant was interviewed and a medical release was signed. There were no other civilian witnesses.

The medical documentation was obtained, and two witness officers were interviewed. The subject officer gave SIU investigators an interview on October 25, 2019.

The property line of the residence where the incident occurred was ascertained. Cellular telephone photographs of the front door and a measurement from the front door to the communal sidewalk were taken.

A Canadian Police Information Centre computer check was performed on the Complainant. 

Complainant:

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


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 scene was located at the top of the front step of a private residence in Belleville. The steps to the front door only led to the Complainant’s residence and no other unit. The scene was not held. The communal sidewalk was found to be 5.8 metres from the front door of the residence.

At 12:05 p.m., on October 1, 2019, an SIU investigator learned that the 15 feet walkway from the front door to the sidewalk would be considered private property, and the community walkway and any grass on the other side of the community walkway would be considered public property. At the back of the property there was an eight-foot distance from the back door to a fenced in patio, which would be considered private property.

Video/Audio/Photographic Evidence

The sally port video, booking video, and cell video were reviewed. It was obvious that the Complainant was highly intoxicated, and he favoured his right arm when he was observed to sit in the cell. The videos had no further investigative value.

Communications Recordings

On August 6, 2019, at 1:13 a.m., a woman telephoned the BPS to report that her daughter had called her and said her husband was highly intoxicated, abusive and would not let her leave the residence. It was reported that there were two small children present. The SO, WO #1 and WO #2 were dispatched. At 1:39 a.m., WO #2 advised that they had one person in custody. At 1:49 a.m., the SO advised that he had arrested the Complainant for Intoxication in a Public Place.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the BPS:
  • Arrest Booking Report;
  • BPS sally port, booking and cell video;
  • Computer-Assisted Dispatch-Event Details;
  • Communication recordings;
  • Notes of the witness officers;
  • Procedure - Use of Force; and
  • Procedure - Arrest Procedure.

Materials Obtained from Other Sources

The SIU also obtained and reviewed the Complainant’s medical records from Belleville General Hospital.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, which included statements from the Complainant and the SO. At about 1:10 a.m. of August 6, 2019, the BPS received a 911 call from a woman expressing concern about the welfare of her daughter. Her daughter had contacted her to say that the Complainant, the woman’s partner, was drunk and abusive, and would not let her leave the residence with her children. Police officers were dispatched to the home of the woman’s daughter in Belleville.

The SO, WO #1 and WO #2 arrived at the residence and were let inside by the Complainant’s spouse. While the Complainant had not assaulted or threatened her, she told the officers that she was concerned for her safety and the safety of her children given the Complainant’s state of intoxication and belligerence. The Complainant’s spouse explained that she wanted the Complainant to leave the residence or assistance by the officers in facilitating her own departure with her children. As the children were sleeping, the officers decided to pursue the first option as the most practical in the circumstances.

The SO, WO #1 and WO #2 proceeded to the second floor to speak with the Complainant in his bedroom. The Complainant was upset that his spouse had contacted the police but did agree to leave the home and stay with an acquaintance. He was escorted down the stairs and out through the front door. The officers offered the Complainant a ride to his friend’s place. When the Complainant declined the offer and refused to indicate where he would be going, the officers grew worried that he would return to the home and resume his behaviour with his spouse.

The Complainant re-entered the home to gather some clothing and continued to berate his spouse as he did so. Once out the front door again, the SO informed him that he was under arrest and took hold of his left arm. The Complainant pulled his arm away from the officer and fell off the small porch in front of the door. He landed on his right side on a section of grass with the SO falling on top of him. With the assistance of WO #1 and WO #2, the Complainant was quickly handcuffed on the ground.

Following his arrest, the Complainant was transported to the station and lodged in a cell. He subsequently complained of pain in his right arm and was 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.

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

On August 6, 2019, the Complainant suffered arm fractures in the course of being arrested by the SO of the BPS. On my assessment of the evidence, 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 authorized or required to do by law. It is apparent that the SO arrested the Complainant for public intoxication under section 31(5) of the Liquor Licence Act. Section 31(4) of the statute provides, in part, that no person shall be in an intoxicated condition in a place to which the general public is invited or permitted access. Though the porch in front of the doorway to the home constituted private property, I am satisfied by way of the implied licence doctrine that the general public could access the place: R. v. Evans, [1996] 1 SCR 8; R. v. Tricker (1995), 96 CCC (3d) 198 (Ont. CA). A breach of section 31(4) is subject to an arrest without warrant by a police officer if, in the opinion of the officer, the arrest is necessary for the safety of any person. Having heard from the Complainant’s spouse and personally observed the Complainant’s aggressive behaviour toward her, the SO’s concerns for her safety were well-founded, particularly when the Complainant gave the officers reason to believe he would return to the residence. In the circumstances, it is apparent that the SO was proceeding lawfully to arrest the Complainant when they fell from the porch.

Turning to a consideration of the force used by the officers against the Complainant, it too, I am satisfied, fell within the range of what was reasonably necessary to effect the Complainant’s arrest. The force consisted of the SO briefly taking hold of the Complainant’s left arm and then engaging in a quick struggle as the Complainant pulled away from the officer. The fall to the ground, it should be noted, appears to have been largely accidental as the two lost their footing on the small porch during the struggle. Once on the ground, it appears very little force if any was used to secure the Complainant in handcuffs. On this record, I am unable to reasonably conclude that the force was anything other than moderate, measured and legally justified.

In the result, while I accept that the Complainant’s injury occurred as he was being arrested by the SO, the likely result of his tumble to the ground with the weight of the officer on top of him, there are no reasonable grounds to believe that the arrest was unlawful or the force used in its aid excessive. Accordingly, there is no basis to proceed with criminal charges in this case and the file is closed.


Date: February 5, 2020
Original signed by

Joseph Martino
Director
Special Investigations Unit