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SIU Director’s Report - Case # 19-PCI-244

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 October 7, 2019, at 10:50 a.m., the Ontario Provincial Police (OPP) notified the SIU of an injury. The OPP understood that at 3:10 a.m., on that same date, the OPP had responded to reports of suspicious activity in an area in Bayham, a rural area in Elgin County where several farms were harvesting hemp plants for commercial purposes.

Upon OPP arrival, numerous individuals ran from the area, leaving behind two rental trucks and numerous passenger cars. Several suspects were arrested, including the Complainant in this investigation, who was tracked down with the assistance of the OPP K-9 and Emergency Response Team (ERT) members. Following his arrest, the Complainant was transported to the St. Thomas-Elgin General Hospital where he was treated for minor dog bites and two non-displaced fractured ribs. 
 

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Civilian Witnesses

CW Not interviewed 

Witness Officers

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

Additionally, the notes from one other officer were received and reviewed.


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right


Evidence

The Scene

A rural field in the vicinity of an address on Coyle Road, Elgin County.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Arrest Report;
  • Computer-Assisted Dispatch-Event Details;
  • General Report;
  • Global Positioning Satellite Tracking Information;
  • Notes of witness officers and an undesignated police officer;
  • Occurrence Summary;
  • Officer and Witness Lists
  • Photo of the Complainant;
  • Property Report;
  • Will State of WO #3;
  • Witness Statement of civilian witness; and
  • Witness Statement of Complainant.

Incident Narrative

On October 7, 2019, at approximately 3:57 a.m., ERT officers were called out to attend at a hemp farm located in Elgin County. There had been a break, enter and theft at the farm, with ten to twelve suspects fleeing into the adjoining fields. The police officers had recently been involved in two other thefts of hemp grow operations, which were violent in nature and had involved the suspects carrying weapons. Five members of the ERT attended the callout: the two subject officers, SO #1 and SO #2, along with WO #2 and two other officers; a K-9 officer was also called to attend with his police service dog (PSD). The Complainant was located in the field and arrested. He was later taken to hospital where he was diagnosed with having sustained two non-displaced fractures.

There is some evidence that the Complainant was lying on his stomach in the knee-high grass when, without warning, a police dog came up and grabbed his left pant leg and began to shake, pull and tug at him. This evidence further suggests that four or five police officers then began to cheer the dog on, while the Complainant was ordered not to move, to put his hands behind his back, and not to resist. Police officers then surrounded the Complainant and the Complainant put his hands behind his back. One police officer placed his foot between the Complainant’s shoulders to keep his face down in the dirt. This evidence indicates that after the Complainant was handcuffed he was kicked four or five times in his left ribcage.

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 SIU’s investigation into the circumstances surrounding the Complainant’s injuries consisted of interviews with the Complainant, one of the subject officers, SO #2, and four witness police officers. The second subject officer, SO #1, declined to provide a statement or his notebook entries, as was his legal right. From a review of this evidence, and for the reasons that follow, I am unable to find that the force used against the Complainant was excessive and therefore have no reasonable grounds to believe that any police officer committed a criminal offence in relation to the Complainant’s injuries.

The only evidence that the Complainant was beaten comes from a single source; however, I am unable to find this source sufficiently trustworthy to warrant resting criminal charges on the strength of this evidence. The source of this evidence proved to be unreliable and provided details that were contrary to other reliable evidence. For example, the evidence suggested that there were four to five police officers present while the Complainant was being arrested; however, in totality, only five ERT and the K-9 officer attended the scene, with only two of the ERT officers being present for the Complainant’s arrest while two officers remained on the roadway to check both the dark roadway and the adjacent field, and one officer was stuck in a ravine and making his way out. I find the evidence of the police officers reliable in this regard, as it seems implausible that most, if not all, of the ERT officers would be present in one location while there was apparently a total of ten to 12 suspects at large and being sought by police. I also note that the remaining three ERT officers who attended the scene were all otherwise accounted for when SO #1, SO #2 and the K-9 officer were searching for, and located, the Complainant. There are other weaknesses associated with the source of the allegations. The cumulative impact of these frailties significantly detracts from the reliability and credibility of the incriminating evidence.

In contrast, the information proffered by SO #2 and the witness officers is consistent and uncontradicted by independent evidence, and I therefore accept it where it is at odds with the incriminating evidence. On this account of what transpired, shortly after 6:19 a.m., the PSD hit on a human scent in the air, and SO #1 and SO #2 joined the K-9 officer and the PSD on tracking that scent. SO #1 and SO #2 were each equipped with C8 rifles fitted with lights and both stayed close to the K-9 officer. The three police officers and the PSD left the roadway and went up an embankment; the surroundings were described as pitch black with no artificial lighting. The PSD led the officers toward a tree line, whereupon the K-9 officer asked the ERT officers to extinguish their lights. The officers were in a field with knee high grass. At 6:21 a.m., the PSD’s leash went slack, prompting the K-9 officer to illuminate the area with his head lamp, at which point he observed the PSD gripping and tugging at the ankle of a man, the Complainant, who was lying motionless and face down in the long grass. SO #1 and SO #2 both yelled at the Complainant to show his hands, but the Complainant neither moved, nor did he respond. The Complainant was observed to have his hands under his body, where the officers were unable to see whether or not he had anything which might be a source of danger to the officers. SO #2 then delivered a kick to the Complainant’s left side ribcage, following which the Complainant lifted his head and showed his hands; he was then handcuffed to the rear. Once the Complainant had been handcuffed, and the threat he posed was eliminated, the K-9 officer ordered the PSD to release the Complainant’s leg and he removed the dog from the scene. The K-9 officer examined the Complainant’s leg, but found no injury associated with a dog bite. SO #1 and SO #2 escorted the Complainant back to the road. The Complainant then complained that his ribs were broken, and an ambulance was called.

There is no doubt that some force was used against the Complainant when he continued to lie motionless in the tall grass with his hands underneath his body. Despite being told on more than one occasion to show his hands, the Complainant failed to do so, causing SO #2 legitimate concern that the Complainant may have been in possession of concealed weapons. Additionally, considering the dark surroundings and the fact that other suspects were still at large, I accept that there was some considerable urgency to arrest, handcuff, and remove the Complainant as quickly as possible, as the officers were at risk as long as they were exposed in the field and did not have the Complainant contained. Having said that, I note that other than the single kick utilized by SO #2, no other force was used against the Complainant. I also note that the single use of force served its purpose, in that the Complainant then immediately raised his head and gave up his hands, following which he was immediately cuffed and then removed from the field.

On the aforementioned record, I cannot find that the force used by the officers was excessive. Pursuant to section 25(1) of the Criminal Code, a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. I believe the ERT officers, and the K-9 officer, were acting in accordance with their lawful duty when they arrested the Complainant for the break, enter, and theft of the hemp from the farm. Having been informed that the farm growing the hemp had just been broken into, that the trucks at the farm were seen to have been filled with the stolen hemp, and that ten to 12 suspects from the theft had dispersed into the fields, the officers had reasonable grounds to believe that the Complainant had just been involved in a crime and was attempting to escape, rendering him subject to lawful arrest. The use of the PSD to track and locate the suspects was entirely reasonable in the circumstances as it would permit the officers to engage potentially dangerous individuals at a distance. The PSD appears to have performed his task well, locating the Complainant and latching onto one of his legs. No serious injury was inflicted by the dog, and it released its hold as soon as directed after the Complainant was handcuffed. To effect the arrest, SO #2 used some force in order to get the Complainant to comply and to give up his hands in order that he could be arrested. For the reasons indicated earlier, I am satisfied that this level of force was reasonably necessary in the circumstances. I am unable to accept the suggestion that the Complainant was kicked some four to five times and instead believe he sustained his injury when he was kicked once by SO #2 when he failed to comply with the officers’ demands to show his hands. This level of force falls within the scope of that permitted by law, and I am accordingly unable to form reasonable grounds to believe SO #2, or any of the police officers involved in the Complainant’s arrest, committed a criminal offence in connection with the Complainant’s injury. As such, no charges will issue, and this file is closed.


Date: April 20, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit