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SIU Director’s Report - Case # 19-OCI-117

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 serious injuries sustained by a 29-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On June 1, 2019 at 7:33 p.m. the Waterloo Regional Police Service (WRPS) contacted the SIU and reported the following:

On June 1, 2019, in the early morning hours, the WRPS responded to an address on Parkview Crescent, Cambridge, for a domestic incident. The Complainant was arrested for domestic assault. The Complainant was transported to WRPS Central Station and eventually released on a promise to appear with conditions. One of the conditions required him to stay away from the residence on Parkview Crescent, Cambridge. WRPS officers were called back to the residence and located the Complainant in a vehicle at the residence. He was arrested again for a breach. The officers had to forcefully remove the Complainant from his car. He was taken back to the Central Station Lock-Up where he complained about pain in his right forearm. WRPS took him to the Grand River Hospital at 4:39 p.m. The Complainant’s right arm was X-rayed, which revealed a fracture. He was admitted and would be having corrective surgery the next day. No scene had been secured.
 

The Team

Number of SIU Investigators assigned: 4
 

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Notes reviewed, interview deemed not necessary


Subject Officers

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


Evidence

The Scene

The incident occurred in a parking lot adjacent to the address in question on Parkview Crescent.

The scene of the Complainant’s grounding and arrest was not held by the WRPS. The SIU performed no scene examination.

Communications Recordings

On February 3, 2020, the SIU received two audio files related to the WRPS communications recordings relative to June 1, 2019. The following is a summary of the salient portions of the recordings:

  • On June 1, 2019, at 10:50:42 a.m. the WRPS received a 911 call from a woman who reported a domestic violence situation taking place in an apartment. She did not know the names of the individuals in the apartment, but she could hear a male [later identified as the Complainant] and a female [later identified as the CW] yelling and banging and there was also a baby crying. The 911 caller had looked into the hallway and she saw clothing being thrown into the hallway and the Complainant’s t-shirt was half ripped off. The 911 caller told the Complainant he needed to leave and the Complainant re-entered the apartment.
  • On June 1, 2019, at 1:38:55 p.m., the WRPS received another 911 call from the woman. She reported that the Complainant was back and he was kicking the door of the apartment and yelling. The 911 caller then reported that the Complainant had left the building followed by the CW and they were both getting into a black vehicle in the parking lot. The pair were screaming at each other.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the WRPS:
  • Communications recordings;
  • Letter to SIU re Disclosure; and
  • Notes of all witness officers.

Incident Narrative

In the morning of June 1, 2019, the Complainant became embroiled in a domestic dispute with the CW at her residence in Cambridge. Officers attended the scene and arrested the Complainant, releasing him on an undertaking that he not return to the CW’s address. Later that day, the Complainant did just that.

At about 1:30 p.m., the CW had another run-in with the Complainant at her residence. The police were contacted. The SO and WO #4 were dispatched to investigate. The officers arrived on scene and located the Complainant sitting in the driver’s seat of his vehicle in the parking lot adjacent to the apartment building. The CW was outside in the vicinity as well.

Despite the Complainant’s resistance, the officers were able to forcibly remove him from his vehicle. The Complainant continued to resist his arrest outside the vehicle, prompting the officers to take him to the ground on a grassy area. The struggle continued during which WO #4 delivered one or two knee strikes to the Complainant’s torso as he lay prone on the ground. Following the knee strikes, the officers were able to control the Complainant’s arms behind his back and restrain them in handcuffs.

The Complainant was transported to the police station and lodged in a cell. Later that evening, he complained of pain in his right arm and was taken to hospital where he was subsequently diagnosed with a broken right arm.

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 twice by WRPS officers on June 1, 2019. On the second arrest, the Complainant suffered a fracture of his right arm. The SO was among the arresting officers and identified by the SIU as the one most connected to the Complainant’s injury. On my assessment of the evidence, there are no reasonable grounds to believe that she committed a criminal offence in connection with the matter.

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. WO #4 and the SO were within their rights in arresting the Complainant. In an apparent breach of a condition of his release from arrest earlier that day, he had returned to meet with the CW at her address.

The issue turns to the propriety of the force used by the officers in the course of the Complainant’s arrest. While the witness accounts regarding the nature and extent of the physical interaction between the parties is discrepant, the weight of the evidence establishes that the Complainant struggled against the officers’ efforts to place him in custody. Thus, for example, I am satisfied that he refused to willingly exit his vehicle and had to be pulled out, resisted as the officers attempted to control him on his feet, and refused to surrender his arms to be handcuffed once on the ground. The officers responded with force. At its highest, the evidence suggests the Complainant was yanked by his arms out of the vehicle, elbowed once in the torso by WO #4 before the takedown, and kneed twice to the ribs by the same officer while on the ground. Following the last knee strike, the officers were able to subdue the Complainant sufficiently to apply handcuffs. I am unable to reasonably conclude on this record that the officers used excessive force. On the contrary, I am persuaded that they reacted with force that was measured and proportional to the Complainant’s dogged efforts to avoid apprehension. No further force was used after the Complainant was handcuffed.

In the final analysis, while I accept that the Complainant’s right arm was fractured in the course of his altercation with the police, perhaps in the process of the handcuffs being applied or while the officers, with WO #4 holding his left arm and the SO his right, took him to the ground, the evidence falls short of establishing that the force used by the officers fell outside the range of what was reasonably necessary to effect the Complainant’s arrest. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: February 18, 2020


Original signed by

Joseph Martino
Director
Special Investigations Unit