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SIU Director’s Report - Case # 19-PCI-174

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 25-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 28, 2019, at 12:00 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury. The OPP understood that at approximately 12:55 a.m., on that same date, OPP police officers arrested the 25-year-old Complainant for public intoxication in front of “Moguls Bar & Grill” on Simcoe Street in downtown Collingwood. The Complainant struggled with the police officers and was taken to the ground. He was later transported to the Collingwood General and Marine Hospital where he was treated for a fractured nose. He was subsequently released on two provincial offences tickets.

The Team

Number of SIU Investigators assigned: 3
 
The SIU investigators visited the arrest scene and canvassed the area for possible video evidence. They also interviewed the Complainant, five civilian witnesses, and four witness officers. 

Complainant:

25-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 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

The scene was located in the area around the front entrance of Moguls Bar & Grill located on Simcoe Street in Collingwood.

Video/Audio/Photographic Evidence

The area surrounding the bar was canvassed but there was no video evidence found.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP Collingwood Detachment:
  • Copy of Computer-Assisted Dispatch printout; and
  • Notes of witness officers and SO #2.

Incident Narrative

On July 27, 2019, the Complainant attended the Moguls Bar and Grill in the City of Collingwood. After paying and having his hand stamped, the Complainant entered. Sometime later, the Complainant left the bar. When the Complainant attempted to re-enter the bar, security staff refused to allow him entry.

The restaurant and the surrounding public spaces were extremely busy as the Elvis Presley festival fell on that weekend and there were a great many people on the streets, which had been closed to vehicular traffic for that purpose.

As the Complainant was causing a scene at the entrance of the bar, two paid-duty police officers, WO #2 and SO #1, and two on-duty police officers, WO #1 and SO #2, attended to investigate. Shortly thereafter, at about 12:55 a.m. of July 28, 2019, the Complainant was grounded by the police and arrested under the Liquor Licence Act (LLA). He was transported to the hospital and diagnosed with a broken nose.

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 31(4), Liquor Licence Act -- Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,
(a) In a place to which the general public is invited or permitted access; or
(b) In any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

Section 31(5), Liquor Licence Act – Arrest without warrant

31(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.  

Analysis and Director's Decision

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their lawful duties to the extent the force in question was reasonably necessary in the execution of an act that they were authorized or required to do by law. The Complainant was significantly intoxicated, belligerent and report draft combative when the officers moved in to take him into custody. In the congested area in which events were unfolding, he was clearly a safety risk to himself and the people around him. In the circumstances, I am satisfied on reasonable grounds that the Complainant’s arrest was lawful under section 31(5) of the LLA.

With respect to the propriety of the force that was used by the officers, I am further satisfied that it was reasonably necessary in aid of the Complainant’s arrest. Prior to being grounded by WO #1 and SO #1, the Complainant’s had jostled with SO #1 and angrily confronted WO #2 as the officers directed him to leave the area after he was refused reentry in the restaurant. In light of the Complainant’s threatening behaviour, I am unable to find fault with the officers’ decision to force him to the ground. In that position, the officers would be better equipped to deal with any continuing resistance on the part of the Complainant.

The Complainant did, in fact, continue to resist on the ground and was met with a punch to the face by SO #1 and two punches to the torso by WO #1. [1] These strikes, in my view, did not exceed the ambit of lawful force. At the time they were delivered, the Complainant was actively struggling against the officers’ efforts to secure his arms in handcuffs. The area was highly congested, and the officers had good cause in seeking to effect the Complainant’s arrest as soon as possible. Following the last of these punches, the officers were able to gain control of the Complainant’s arms and handcuff them behind his back, following which no further force was used. In the circumstances, I am satisfied that the punches were no more than were necessary to overcome the Complainant’s resistance and effect his arrest.

In the result, while I accept that the Complainant’s fractured nose was the result of him being forced to the ground or struck by the officers, I also accept that the officers conducted themselves lawfully throughout. Accordingly, there are no grounds to proceed with criminal charges in this case and the file is closed.


Date: April 14, 2020


Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) It should be noted that the evidence establishes that SO #2 used minimal force in the incident, limited to controlling the Complainant’s neck and prying free his left arm, and certainly does not appear to have broken the Complainant’s nose. [Back to text]