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SIU Director’s Report - Case # 19-OCI-160

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 16-year-old youth (the “Complainant”).

The Investigation

Notification of the SIU

On July 4, 2019 at 11:40 a.m., the Brantford Police Service (BPS) notified the SIU of the Complainant’s custody injury.

According to the BPS, on July 4, 2019, at 9:58 a.m., the Ontario Provincial Police (OPP) called the BPS to report that on July 3, 2019, at about 2:30 a.m., several youths were knocking on doors in Brant County. One of the homes belonged to a BPS officer, Witness Officer (WO) #1. WO #1 hid in bushes outside his home to wait for the youths to return. When one of the youths [now known to be the Complainant] returned, WO #1 arrested him with the assistance of two other people. One of the people was also reported to be a BPS officer [now known to be the Subject Officer (SO)]. WO #1’s spouse had called the OPP. The OPP officers arrived and transported five youths home. On July 4, 2019, the Complainant told his father he was aware that WO #1 was a police officer and that WO #1 punched him in the head. The Complainant was vomiting so his father took him to a walk-in clinic where he was diagnosed with a concussion.

The Team

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

SIU investigators interviewed civilian and police witnesses, and canvassed for additional civilian witnesses and Closed Circuit Television (CCTV) data.

One SIU forensic investigator made a digital photographic record of the scene.

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Not interviewed (No direct knowledge)
CW #7 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Not interviewed (No direct knowledge)


Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The scene was limited to the concrete front porch, paved driveway, and grass-covered lawn of a residence in Brant County.

Communications Recordings

What follows is the transcription of the 911 call placed to the OPP’s Provincial Communications Centre (PCC) by WO #1’s spouse (S) in respect of this incident. The 911 call was one minute and forty-five seconds in duration.

July 3, 2019, 2:35:08 a.m.:

PCC: Ontario Provincial Police, where is your emergency?

S: [Address]. My husband and [the SO] just tackled some kid’s been going around knocking on doors (inaudible) on my front lawn.

PCC: Sorry, what are these kids doing?

S: Ringing door bells, and knocking on the doors…my baby is crying. (Inaudible)

PCC: Okay, and your husband just tackled this kid?

S: My husband just tackled this kid in, on our driveway. They were waiting for them to come back. That’s all they’ve been doing all night. My baby is crying. They’re both police officers by the way [laughing].

S: [Presumably to her spouse and the SO outside] They’re on their way.

PCC: Okay.

PCC: What is your name?

S: No! I have a baby you asshole!

PCC: Hello...?

S: Hi.

PCC: What is your name?

S: [Provides name and spelling].

PCC: [Requests clarification]
S: [Clarifies spelling].

PCC: And you live at [address of scene]?

S: Yes.

PCC: And what’s your date of birth?

S: [Provides date of birth].

PCC: Were these kids trying to get into vehicles at all? Or, were they just ringing door bells?

S: (Inaudible) It’s the middle of the night. Ringing door bells banging on my door and then [the SO], my hu…ah [the SO] just tackled this kid and my husband ran out.

PCC: Yeah, Okay.

S: Like I said they both work for Brantford Police they’re not going to hurt him but like they’re trying to get him to stop, ya know.

PCC: Okay. Well our officers, he’s on his way okay?

S: Thank you

PCC: Thank you

S: Bye

PCC: Bye

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the BPS:

  • Disclosure Memorandum;
  • Duty Sheets;
  • Emails (received from BPS);
  • Memo from BPS to SIU dated July 24, 2019; and
  • Procedure/Officer Note-taking.

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:

  • 911 communications audio recording;
  • Email dated August 5, 2019, confirming no email exchange between OPP and BPS;
  • Event Details;
  • General Report;
  • Notes of WO #2, WO #3, WO #4 and WO #5;
  • Statement of the Complainant; and
  • Supplementary Occurrence Reports.

Materials obtained from Other Sources

Upon request the SIU obtained and reviewed the following additional materials and documents:

  • Brant Community Health System medical records relevant to the incident;
  • Drawings by civilian witnesses;
  • County of Brant aerial photographs of the scene;
  • Photographs made by the Complainant of facial soft tissue injuries;
  • SIU photographs marked by CW #3;
  • Notes of WO #1;
  • Photographs from WO #1; and
  • Pricing quotations regarding door and CCTV from WO #1.

Incident Narrative

The circumstances surrounding the Complainant’s injuries are clear based on the weight of the evidence collected by the SIU, which includes statements from the Complainant, six civilian eyewitnesses and five witness officers. In the early morning hours of July 3, 2019, the 16-year-old Complainant was in a vehicle with several of his friends and decided to play a prank on a residence in Brant County. Unknown to him, this was the residence of WO #1 of the BPS who had just returned home from work.

The Complainant pranked WO #1’s home three times. The first prank occurred at around 2:00 a.m. and involved the Complainant ringing the doorbell and fleeing. WO #1 opened his door to see the youths’ vehicle speeding away. At this time, he was unconcerned and assured his wife that it was probably just some kids. A short time later, the Complainant pranked his home a second time by knocking loudly on the door. WO #1 grew concerned that the knocker had ill intent. He wondered if he upset someone at work and had been followed home. His wife was now frightened and their child was crying. He ran to the door, but the Complainant was gone by the time he arrived. Instead, he was approached by the SO, who was in the area and had come to check on WO #1 after he heard tires squealing. WO #1 told the SO about the earlier incident and his growing concerns. The two off-duty officers decided to wait and see if the vehicle returned in order to get a plate number.

WO #1 was inside his home, getting dressed, when the Complainant returned to prank his home for the third time. The time was about 2:30 a.m. The Complainant was near WO #1’s door when the SO emerged from behind a parked vehicle in WO #1’s driveway, tackled the Complainant to the ground and punched him at least once, and probably twice, in the head. The Complainant raised his arms reflexively but did not resist and was apologetic. WO #1 ran from his home to assist the SO. The Complainant was advised that he was under arrest for “Trespass by Night” and the officers had the youths wait for the arrival of OPP officers. The youths including the Complainant, were eventually issued a warning and taken home.

As a result of the incident, the Complainant sustained soft tissue injuries and was later diagnosed with a mild-traumatic brain injury.

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 177, Criminal Code – Trespass at night

177 Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.

Analysis and Director's Decision

The Complainant was diagnosed with a concussion after he was grounded and punched by an off-duty BPS officer in the early morning hours of July 3, 2019. The altercation occurred during a prank by the Complainant on WO #1’s home. The SO was designated as the subject officer for the purposes of the SIU’s investigation. For the reasons that follow, I am unable to form reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injuries.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in the force they may use to that which is reasonably necessary in the execution of something that they are required or authorized to do at law. There is no question that the SO was acting within the execution of his duty when he arrested the Complainant. The Complainant had been found committing the offence of trespassing by night contrary to section 177 of the Criminal Code and could therefore be arrested without a warrant. Trespassing at night requires more than simply being on someone’s property at night. The trespasser is also required to loiter or “prowl” near a dwelling-house. Prowling includes secretive or clandestine movement and does not require proof of an intention to commit an additional evil act (see R. v. Priestap (2006), 79 OR (3d) 561 (C.A.)). I am satisfied that the Complainant’s prank, childish though it was, involved a level of stealth sufficient to constitute “prowling”.

The more challenging question is whether the officer’s use of force was excessive. There is some indication that WO #1 also punched the Complainant while he was on the ground. If established, WO #1’s use of force would be excessive because it was clear that the Complainant was not a threat by the time WO #1 left his home. However, I am unable to accept this evidence because it only comes from one source and is contrary to all other evidence. Instead, the weight of the evidence establishes that the use of force was limited to the SO roughly taking the Complainant to the ground and punching him at least once, and likely twice, in the head.

While it is regrettable that significant force was used against a teenage prankster, the SO’s actions are to be judged based on what was apparent to him in the moment and not with the benefit of hindsight. At the time the SO engaged the Complainant, he had no idea who the Complainant was or what his intentions were. All he knew is that the Complainant was lingering around WO #1’s home and that WO #1 was afraid he was being targeted because he was a police officer. The SO suddenly found himself alone with the trespasser and, dressed only in jeans and a t-shirt, presumably without his use of force options. In this context, I cannot fault the SO for tackling the Complainant to the ground where he would be in a better position to control the Complainant should the circumstances turn volatile. Once grounded, the SO punched the Complainant at least once and perhaps multiple times. While it would have been preferable for the SO to show greater restraint, the courts are clear that police officers are not to be held to the level of perfection. Police officers are not expected to measure the nature and degree of their responsive force with precision; what is required is a reasonable response, not necessarily an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.). In finding the force reasonably necessary it is noteworthy that the punch(es) occurred quickly and contemporaneously with the Complainant’s takedown and did not continue after it was apparent that he was not a threat.

In the result, I am unable to form reasonable grounds to believe that the SO, or any other police officer, committed a criminal offence in connection with the Complainant’s injuries. While the SO’s actions had regrettable consequences, they did not exceed the level of force permitted by section 25. No charges will issue, and the file will be closed.


Date: February 10, 2020

Original signed by

Joseph Martino
Director
Special Investigations Unit