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SIU Director’s Report - Case # 19-OCI-163

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 of a 75-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 9, 2019, at 9:59 a.m., the City of Kawartha Lakes Police Service (CKLPS) contacted the SIU to report a serious injury. On July 8, 2019 at about 3:50 p.m., CKLPS were called to 133 Adelaide Street South in Lindsay for a criminal harassment investigation. The Complainant was harassing his ex-wife at the Lindsay Recreation Complex (LRC). CKLPS officers located the Complainant at the LRC and placed him under arrest. He resisted, and was grounded on the sidewalk and then transported to the police station. He declined medical attention for his scrapes and bruises. The following morning, the Complainant’s face was swollen and this prompted CKLPS to take him to the hospital. It was determined that he had a fractured orbital bone.

The Team

Number of SIU Investigators assigned: 4
 

Complainant:

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


Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Not interviewed, but notes received and reviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Not interviewed, but notes received and reviewed


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 rear parking lot of the LRC. The address was 133 Adelaide Street South in Lindsay. The property did not have closed-circuit television.

Video/Audio/Photographic Evidence

Custody video was received from CKLPS for July 8, 2019. The booking process was from 4:09 to 4:23 p.m. At 4:23 p.m., the Complainant complained of a headache and sore knees but refused medical attention. The Complainant was placed in a cell. He slept in the cell. At 7:51 p.m., the Complainant became very agitated and appeared to be yelling and visibly shaking. He sat up at the edge of the bed and then he leaned forward and struck his head on the concrete across from the bed. WO #1, an undesignated police officer and the cell monitor went to the cell and spoke to the Complainant and then left him alone.
At 8:02 p.m., the Complainant leaned to the right side of the bed and slumped against the wall. The undesignated officer, WO #1, WO #5 and WO #7 went to the cell and spoke to the Complainant. At 8:14 p.m., the Complainant leaned against the wall, then fell forward onto the bed. At 8:18 p.m., the Complainant was about to lay on the bed and there was blood on the bedding. The undesignated officer, WO #1, WO #5, WO #7 and two other police officers went to the cell. At 8:30 p.m., two paramedics went to assist the Complainant and at 8:44 p.m., the Complainant left the cell area on a stretcher. 
 

Communications Recordings

The communication recording was received from CKLPS for July 8 and 9, 2019. The CKLPS were dispatched to the LRC to deal with a male [now known to be the Complainant] allegedly harassing a female [now known to be the Complainant’s ex-spouse]. At 3:49 p.m., a police officer [now known to be the SO] advised he had a male [now known to be the Complainant] in custody and the Complainant fought the SO. The Complainant was transported to the police station. At 5:24 p.m., the SO said he had blood on his rear seat in his police vehicle from the Complainant. At 7:51 p.m., the dispatcher said the Complainant was moving in the cell and appeared to have a “Charlie horse”. A police officer suggested the Complainant be taken to Ross Memorial Hospital (RMH) by ambulance and the emergency medical services were called. At 8:48 p.m., the Complainant arrived at RMH accompanied by a police officer. At 10:27 p.m., the Complainant was released from the hospital and returned to CKLPS
 

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the CKLPS:
  • Arrest Report;
  • Supplementary Arrest Report;
  • Booking video;
  • Computer-Assisted Dispatch/Event Details Report;
  • Communication recordings;
  • Crown Brief Synopsis of the Complainant;
  • Dispatch Event Details;
  • Domestic Violence Report Occurrence Report;
  • Domestic Violence Supplementary Report;
  • Duty notes of all designated witness officers;
  • List of involved officers and their respective roles;
  • Photographs of the Complainant;
  • Policy – Arrest, Security and Control of Prisoners, Search of Persons, Prisoner Transportation;
  • Policy – Officer Note Taking;
  • Policy – Special Investigations Unit;
  • Recognizance of Bail;
  • Show Cause Hearing Report;
  • Subject Profile of the Complainant;
  • Supplementary Subject Profile of the Complainant; and
  • Supplementary Occurrence Report

Incident Narrative

Despite the interviews by SIU investigators of the Complainant, one civilian witness, the subject officer, and seven witness officers, it remains unclear as to when exactly the Complainant sustained his injury.

There is limited evidence that does not come from the SO, but there is some evidence the Complainant resisted his arrest by the SO, following which the SO twisted his arm. This evidence does not indicate that any police officer ever struck or hit the Complainant.

There is further evidence that, once the Complainant awoke in his cell, he stumbled and hit his head on the wall, following which he began to bleed from his mouth and nose. This evidence is somewhat confirmed by the cell video, wherein the Complainant is seen to sit up on the edge of his bed, lean forward, and then strike his head on the concrete across from his bed. Later, he is seen leaning to the right side of his bed and slumping against the wall, and on a third occasion, the Complainant is observed to lean against the wall and then fall forward onto the bed.

In the absence of any other evidence as to what occurred during the Complainant’s arrest, the only evidence as to the actions of the SO come from the SO himself. I have no reason to doubt the reliability of his account of events and note that it is not materially inconsistent with any other evidence gathered by the SIU. Accordingly, I have relied upon his evidence as the basis for the following finding of fact.

According to the SO, after advising the Complainant that he was under arrest for criminal harassment, he asked the Complainant to place his hands in front of him to be handcuffed. The Complainant said no and put his arms behind his back. When told a second time, the Complainant again said no, that he was not under arrest, and that he was not going to jail. The SO then grabbed the Complainant by the right arm and the Complainant tensed and tried to spin away from the SO. In doing so, the Complainant grabbed ahold of a handle on his truck and started to turn away. The SO then lost his hold on the Complainant and he believed that the Complainant was trying to get back into his vehicle. The SO opined that if the Complainant was able to gain access to his vehicle, a police pursuit might ensue, which he felt should be avoided. As a result, the SO struck the Complainant in his left temple with his right elbow causing the Complainant to release the handle. The Complainant continued to resist by clenching his hands into his chest area. The SO again attempted to grab onto the Complainant, but the Complainant pulled away, resulting in the SO grabbing the Complainant’s left hand and taking him to the ground, at which point the Complainant stopped resisting and was handcuffed. Following the grounding, the Complainant had a road rash-type abrasion on his forehead. The SO assumed that the Complainant had struck his forehead on the ground.

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

On July 8, 2019, following complaints from a woman that her husband, the Complainant, was harassing her, and having been warned that he would be charged if he continued to contact his wife, the Complainant was arrested by the SO of the CKLPS in the LRC parking lot. The following morning, the Complainant was taken to the hospital where he was diagnosed with an orbital fracture.

There are two incidents wherein the injury may have been caused to the Complainant. The first involved the Complainant’s arrest, either when the SO struck the Complainant in the left temple with his right elbow or when he took the Complainant to the ground and he struck his forehead on the ground. I note, however, that while both of these actions involved the left side of the Complainant’s forehead, his actual injury was to the eye socket, or orbital bone. The second possibility relates to the Complainant’s time in a police cell where he fell off the bed and struck his head on the concrete. In the absence of some definitive evidence, therefore, it would be difficult to prove who, if anyone, or how, the Complainant sustained his injury, and it would therefore be impossible to prove that the injury was attributable to anything done by the SO.

With respect to the actions of the SO, however, even assuming he caused the Complainant’s injury, I cannot find that he applied excessive force when he first used his right elbow to strike the Complainant’s left temple and then grounded the Complainant as the Complainant continued to actively resist the officer’s attempts to arrest and handcuff him. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows: 
 
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety. On this record, it is clear that the force used by the SO in effecting the Complainant’s arrest fell within the range of what was reasonably necessary in the circumstances and does not meet the minimum requirements for a criminal charge.


Date: March 30, 2020
Electronically approved by


Joseph Martino
Director
Special Investigations Unit