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SIU Director’s Report - Case # 19-OCI-202

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 59-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 20, 2019, at 11:00 p.m., the North Bay Police Service (NBPS) notified the SIU of the Complainant’s injury. The NBPS reported that on August 20, 2019 at 5:15 p.m., NBPS officers were guarding a crime scene at a residence on Main Street East, in North Bay, where a stabbing and several weapons offences had occurred earlier in the day. NBPS officers were alerted that two males were attempting to gain access into the second floor of this residence using a ladder.

When NBPS officers confronted the males, they fled on foot. NBPS officers pursued the males on foot for about a block on Main Street East, where the males were arrested. As the officers were struggling to gain control of the males, the Complainant exited a nearby residence and ordered the officers from the property. He spat at one of the arresting officers, then kicked the same arresting officer in the chest. The Complainant was taken to the ground and arrested for assault police. He complained of a sore leg and was taken to North Bay Regional Health Centre where he was diagnosed with a fractured hip.

The Team

Number of SIU Investigators assigned: 3
 
On August 21, 2019, at 4:59 p.m., two SIU investigators arrived in the city of North Bay and commenced an investigation. SIU investigators interviewed civilian and police witnesses. Despite numerous requests, the Complainant declined to be interviewed by the SIU; he did, however, consent to the release of his medical records of his treatment relevant to this incident. A canvass of the area where the Complainant was arrested did not produce any further witnesses or video surveillance.

Following a preliminary investigation, SIU investigators designated the SO as a subject officer on August 21, 2019. On September 8, 2019, the SO provided a statement and a copy of his notebook entries to the SIU.

Complainant:

Not interviewed (Declined)


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

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


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The incident took place in front of two adjacent residences situated on Main Street East, North Bay.

Communications Recordings

The SIU obtained and reviewed the communications recordings of the events of August 20, 2019, leading up to the Complainant’s arrest. The communication recordings establish that WO #3 was chasing two males down Main Street East at about 5:11 p.m. At 5:14 p.m., there is a broadcast that five persons have been taken into custody. A couple of minutes later, there is a further broadcast that another person (presumably, the Complainant) was also taken into custody. At 5:19 p.m., a transmission is made requesting an ambulance for an injured hip.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NBPS:
  • 911 calls and radio communication recordings;
  • The Complainant’s occurrence history with NBPS;
  • Civilian witnesses list;
  • General Occurrence and Arrest Report regarding the Complainant;
  • Prisoner Injury Report;
  • Computer-Aided Dispatch printout;
  • Use of Force records for the SO;
  • NBPS Use of Force Policies; and
  • Notes of the witness officers and the SO.

Incident Narrative

The material events in question are largely apparent on the weight of the evidence collected by the SIU, which included statements from the SO and a number of other police and civilian eyewitnesses. The Complainant declined to speak with the SIU. On the day in question, uniformed NBPS officers involved in an ongoing investigation were guarding a residence on Main Street East awaiting the arrival of search warrants, which would allow them lawful entry to search for a firearm. Several persons were observed attempting to covertly enter the property under guard, and police officers pursued those parties. The officers caught up to them and placed them under arrest.

The police officers were in the process of handcuffing the arrested parties when the Complainant, an uninvolved party, began shouting at the police officers to get off his property; the Complainant was not the owner of the premises. The police officers, including the SO, directed the Complainant repeatedly to return to his residence, but he refused and continued to shout and yell profanities at them at close range.

When the Complainant’s belligerence did not abate after a time, the SO informed him he was under arrest for obstructing police and causing a disturbance. At news of his pending apprehension, the Complainant made his way to the porch of the address where he happened to reside – an adjoining property on Main Street East. The SO followed the Complainant up the stairs to the small porch. As the officer was about to effect the arrest, the Complainant, standing in the threshold of the open doorway, kicked the SO in the stomach. The SO reacted by taking hold of the Complainant’s leg, whereupon both parties fell off the porch onto a concrete footpath. The Complainant landed first with the SO falling on top of him.

The Complainant was handcuffed soon after the fall and placed in a seated position. An ambulance was summoned to the scene when he complained of a broken hip and transported him to hospital. The Complainant was diagnosed with a broken left hip and right leg.

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 August 20, 2019, the Complainant sustained serious injuries, including a fractured hip, in the course of his arrest at an address on Main Street East in North Bay. The SO was the arresting officer. 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 injuries.

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. The Complainant had not simply made himself a nuisance by his cursing and hostility. He had placed himself in the immediate vicinity of the arrests that were then ongoing of several suspects - one or more of whom were suspected of being in possession of firearms - so much so that his spittle as he spoke was striking the officers as they endeavoured to complete their work at the scene. The Complainant was clearly interfering in the lawful discharge of their duties and was subject to arrest for obstruction of justice.

Thereafter, when the Complainant kicked the SO, the officer was entitled to defend himself from attack and use a measure of force to effect the Complainant’s arrest. The evidence is discrepant as to whether the SO simply took hold of the Complainant’s foot and lost his balance causing the two to fall, or whether the SO forcibly took the Complainant to the ground following the kick. Either way, I am satisfied that the SO’s conduct was proportional measured against the Complainant’s assaultive behaviour and that he did no more than was reasonably necessary to protect himself and effect the Complainant’s lawful arrest.

In the result, while it is unfortunate that the Complainant broke his left hip in his dealings with the SO, there is no evidence to suggest the officer acted other than lawfully throughout the encounter. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: April 14, 2020


Electronically approved by

Joseph Martino
Director
Special Investigations Unit