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SIU Director’s Report - Case # 18-OCI-373

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 23-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 23, 2018, at 4:30 p.m., the Durham Regional Police Service (DRPS) notified the SIU of the injury sustained by the 23-year-old Complainant subsequent to an arrest earlier that day. The DRPS reported that at 3:45 a.m., on December 23, 2018, the Complainant was stopped and investigated for erratic driving in Oshawa. He underwent a roadside screening test to determine his level of intoxication, if any, and failed the test. He ran from police officers into a wooded section of a housing complex where he tripped and fell. One of the pursuing police officers fell on top of the Complainant. When he complained of pain in his right hand, police officers drove the Complainant to Lakeridge Health Centre where he was diagnosed with a fracture to the tip of the right middle finger.
 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW Interviewed 

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.


Length of Investigation

The completion of this investigation was delayed over the SIU’s efforts to obtain from the DRPS the video recording of the incident captured by the SO’s body-worn camera. When first requested, the DRPS refused to provide the recording on the basis that it constituted the SO’s “notes” and was therefore protected from production to the SIU pursuant to section 9(3) of O. Reg. 267/10. The SIU disagreed with this interpretation, maintained that the recording was not a “note” of the SO, and requested that it be turned over pursuant to the police service’s statutory duty to cooperate with the SIU under section 113(9) of the Police Services Act.

After an exchange of correspondence failed to resolve the issue, the SIU served and filed an application for judicial review seeking a declaration from the court that the body-worn camera video recording did not constitute the SO’s notes under O. Reg. 267/10. Thereafter, by way of correspondence dated February 5, 2020, the DRPS confirmed that they would produce the video recording to the SIU. They did so, however, on the basis that the SO had consented to its production to the SIU, thereby sidestepping the issue of the SIU’s entitlement to the recording regardless of the SO’s consent. Nevertheless, the application was rendered moot when the recording was produced to the SIU February 23, 2020.

Evidence

The Scene

The Complainant was pulled over on Galahad Street, Oshawa where he was investigated by the SO and WO #1. The area is entirely residential and sufficiently illuminated.

Video/Audio/Photographic Evidence


The Body Camera Synopsis – WO #1


The following is a description of the route taken by the SO and WO #1 in their foot pursuit of the Complainant as captured by the body camera worn by WO #1. WO #1 was on routine patrol when the SO asked for an additional police officer to meet him on Galahad Street.

WO #1 activated the camera when he arrived at the scene at 3:05 a.m., and captured the breath test being administered, followed shortly thereafter by the foot chase. After supplying a breath sample, the Complainant ran from the police officers into an adjacent housing complex. He initially ran westward to the parking lot entrance of a housing complex on Gladfern Street. The SO was in front of WO #1 during the brief pursuit.

From there the Complainant fled northwest to a walkway that led to a footpath where a wooden fence paralleled the walkway. The wooden fence was visible in WO #1’s body camera footage. The foot pursuit then headed north to another footpath that was snow and ice covered and sloped downwards.

From there they ran westward along the footpath to a tree-covered area. The area of arrest was near a ‘U’ shaped suspended tree branch. This area was covered with ice and snow; roots, twigs, brush and leaves were visible beneath the ice and snow. A large brown spike protruded from the ground near the area of interest.

The distance travelled from Galahad Street to the area of interest was approximately 150 to 175 metres. WO #1 was a distance behind the SO because he dropped a piece of equipment and arrived shortly after the SO had located the Complainant and was in the process of handcuffing him.

The Body Camera Synopsis – the SO


At 25 seconds into the video recording, the SO parks his vehicle and exits. The Complainant can be seen on a driveway walking toward the officer.

At 33 seconds into the video recording, the SO asks for the Complainant’s licence. The Complainant responds that he does not have his licence with him “right now”.

At 39 seconds into the video recording, the Complainant says that he was not driving the vehicle, to which the SO responds that he watched the Complainant emerge from the driver’s seat. The Complainant is being escorted by the officer toward his cruiser.

At 51 seconds into the video recording, the SO tells the Complainant he is going to have him do a breath test.

At one minute and one second into the video recording, the Complainant asks if he can retrieve his identification. The SO responds, “No, not right now, we’ll do this first.”

At one minute and three seconds into the video recording, the SO makes a formal breath demand.

At one minute and 25 seconds into the video recording, the Complainant asks the officer again if he can retrieve his identification. The SO responds that he will be arrested for obstructing if he refuses to provide a breath sample.

At two minutes and 30 seconds into the video recording, the SO again refuses the Complainant’s request to retrieve his identification. The Complainant asserts that he was not driving the vehicle, and the officer tells him that he saw him driving.

At three minute and 30 seconds into the video recording, the SO demonstrates how to provide a breath sample. The Complainant walks away toward a house saying he wants to obtain his identification. The SO tells him that it is his last opportunity or he will arrest him.

At four minutes and 18 seconds into the video recording, the SO prepares another breath test.

At four minutes and 29 seconds into the video recording, the Complainant blows into the device, after which he walks away from the SO. The SO tells him to come back.

At four minutes and 54 seconds into the video recording, the SO tells the Complainant that he has registered an “alert” on the device.

At five minutes and two seconds into the video recording, the SO tells the Complainant that his driver’s licence is going to be suspended.

At five minutes and six seconds into the video recording, the Complainant runs away from the officer.

At five minutes and nine seconds into the video recording, the SO runs after the Complainant across the street, through the parking lot of a housing complex, and along a path and fence line that separates the housing complex from a wooded area. The video recording becomes progressively darker as the officer enters into the wooded area.

At five minutes and 50 seconds into the video recording, the SO says, “Put your hands behind your back”, and repeats the phrase multiple times.

At six minutes and five seconds into the video recording, the Complainant says, “Relax.”

At six minutes and ten seconds into the video recording, one can see the SO’s handcuffs being affixed to the Complainant’s hands behind his back as the Complainant lies prone on the ground.

At six minutes and 27 seconds into the video recording, the SO says, “Let’s go. Stand up.” The Complainant asks for help and is heard to say that he has a broken “rib” or “wrist”.

At six minutes and 40 seconds into the video recording, the Complainant proclaims that he “didn’t do nothing”.

At six minutes and 45 seconds into the video recording, the Complainant is up and being escorted out of wooded area by WO #1.

At eight minutes and 53 seconds into the video recording, the Complainant is back at the SO’s cruiser.

At nine minutes and 17 seconds into the video recording, the Complainant says that he ran because he was scared.

At nine minutes and 24 seconds into the video recording, the Complainant is searched.

At nine minutes and 55 seconds into the video recording, the Complainant is placed into the rear of the SO’s cruiser.

At 13 minutes and 25 seconds into the video recording, the SO reads the Complainant his rights and a caution.

At 14 minutes and three seconds into the video recording, the Complainant tells the SO, “My apologies, my apologies.”

At 18 minutes into the video recording, the SO tells the Complainant that he is also being arrested on outstanding arrest warrants for break and enter, possession of stolen property and breach of probation.

At 22 minutes and 50 seconds into the video recording, the SO drives away.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the DRPS:
  • Detailed Call Summary;
  • Disclosure Letter;
  • General Occurrence;
  • Narrative for Bail Hearing authored by WO #1;
  • Notes of the witness officers;
  • Detention Record by WO #2;
  • Narrative of WO #1;
  • Scene photographs taken by DRPS Scene of Crime Officer;
  • The Body-Camera video from WO #1;
  • The Body-Camera video from the SO; and
  • The Booking Room video.

Materials obtained from Other Sources

The Complainant’s medical records were also obtained on consent.

Incident Narrative

The following scenario emerges from the weight of the reliable evidence collected by the SIU, which included statements from the Complainant, the SO and a witness officer, WO #1, who witnessed portions of the arrest, as well as video recordings captured by cameras worn by the SO and WO #1 and another camera that recorded the Complainant’s booking at the station. In the early morning hours of December 23, 2018, the SO was on patrol in his cruiser taking part in the service’s RIDE program. He observed the Complainant leave a bar, enter a vehicle, pick up a passenger and drive east on Rossland Road East. The SO followed the vehicle as it approached Gladfern Street, whereupon it turned right, travelled south, turned right again and came to a stop on the driveway of a residence on Galahad Drive. At the officer’s direction, the Complainant took a roadside breath test and registered an “ALERT”.

At the news of the test results, the Complainant fled on foot northward toward and then past a housing complex, and down a hill in a forested area. The SO followed in kind, as did WO #1, who had arrived on scene to assist the SO in his roadside dealings with the Complainant. The pursuit route was slippery with snow and ice in parts, and the Complainant slid and fell down the hill before he collected himself and continued his flight. He fell again a short time later as the officer caught up with him from behind. The SO placed his left knee on the Complainant’s back and managed to secure him in handcuffs on the ground.

Following his arrest, the Complainant was escorted back to Galahad Drive and lodged in the SO’s cruiser. He was transported to the station and lodged in a cell. Later that day, the Complainant was taken to hospital and diagnosed with a fractured finger.

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 320.27, Criminal Code – Testing for presence of alcohol

Testing for presence of alcohol or drug

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:
(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;
(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;
(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

Analysis and Director's Decision

The Complainant broke the tip of his right middle finger in the early morning hours of December 23, 2018. In and around the same time, the Complainant was being arrested by the SO of the DRPS. For the reasons that follow, I am satisfied there are no reasonable grounds to believe the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

There is some evidence that the SO broke the Complainant’s finger, the result of an intentional stomp on his right hand prior to being handcuffed by the officer. However, that evidence is at odds with what the Complainant told the officer responsible for his booking shortly after his arrest, WO #2. When asked by the officer why his finger was hurting, the Complainant replied that he thought he “fell on it the wrong way”. Neither of the SO’s nor WO #1’s body-worn cameras were of assistance on this point as they did not capture with clarity the immediate events around the time the Complainant was being handcuffed. In the circumstances, it would be unwise and unsafe to proceed with criminal charges based solely on the incriminating evidence in this regard, particularly when the Complainant’s injury could very well have resulted from either of the two falls that occurred as he fled from the SO.

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 is limited to what is reasonably necessary in the execution of an act that they are required or authorized to do by law. The SO had seen the Complainant leave a bar and drive away; he could reasonably conclude in these circumstances that he had the right to administer a roadside breath test pursuant to section 320.27 of the Criminal Code. Thereafter, when the Complainant registered an “ALERT” on the screening device, he was subject to an immediate roadside licence suspension. The Complainant took off before the officer could issue him a notice of suspension, effectively frustrating the officer in the course of his duties and thereby rendering him subject to arrest for obstruction of justice. The SO chased after the Complainant and caught up with him a short distance away in a wooded embankment. With the SO positioned over top of the Complainant, the latter’s hands were secured in short order and he was taken into custody. No strikes were delivered by the officer. On this record, confronted by an individual who was actively trying to avoid apprehension, I am satisfied on reasonable grounds that the force used by the SO to bring the Complainant’s flight to an end and control him on the ground fell within the range of what was reasonably necessary to effect his arrest.

In the final analysis, whether the Complainant’s injury occurred while he and the officer were physically engaged, or he was alone running to get away, the SO’s conduct was legally justified throughout and there are therefore no grounds for proceeding with charges in this case.
Date: March 30, 2020
Electronically approved by

Joseph Martino
Director
Special Investigations Unit