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SIU Director’s Report - Case # 19-OCI-249

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 63-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On October 12, 2019, at 12:48 a.m., the Durham Regional Police Service (DRPS) reported an injury involving the Complainant.

The DRPS advised that DRPS officers responded to a domestic disturbance in the City of Pickering, where the Complainant was reportedly chasing his son with a knife. The event was captured on video by the DRPS helicopter, Air One. Police officers apprehended the Complainant under the ¬Mental Health Act and, during the struggle, they knocked the knife out of his right hand. The Complainant was taken to the Ajax Pickering Hospital, where he was diagnosed with a fractured left wrist.

The Team

Number of SIU Investigators assigned: 3
 
Two SIU investigators were dispatched to speak to the Complainant at the hospital. Arrangements were made to interview him with the assistance of an interpreter.

An SIU forensic investigator was dispatched to download the internal data from the CEW that had been deployed by the Subject Officer (SO).

Complainant:

63-year-old male interviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

WO Interviewed


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

Forensic Evidence


CEW Deployment Data


On October 11, 2019, at 8:37:18 p.m., the SO’s CEW was armed. At 8:37:49 p.m., the trigger was activated and the CEW discharged a probe cartridge. The CEW cycled for 17 seconds. At 8:38:07 p.m., the trigger was activated again and the CEW was deployed for five additional seconds.

Video/Audio/Photographic Evidence


DRPS Air One Video


At 8:33:27 p.m., Air One arrived over a residence on Conacher Crescent. The thermal imaging camera was active and a heavyset man could be seen standing at the top of the driveway (closest to the house), while two other men were standing at the end of the driveway (at the roadway). The driveway was large enough to accommodate four vehicles, in two rows of two vehicles. There were two cars parked at the top of the driveway, near the garage, and a minivan closer to the roadway, essentially in the middle of the driveway.

At 8:33:49 p.m., the heavyset man, now known to be the Complainant, walked toward the front door of the residence. One of the two men standing further down the driveway, likely the Complainant’s son, CW #1, followed the Complainant toward the front door. The other man, who had been standing at the end of the driveway, opened the driver’s door of the minivan at the end of the driveway and appeared to move his right hand up to his right ear, in a manner suggesting he was using a cellular telephone, as he walked back out onto the roadway.

The man believed to be CW #1 could then be seen shuffling down the driveway, as the Complainant started to walk down the driveway again. CW #1 and his friend walked out onto the road.

At 8:34:33 p.m., the Complainant lifted his right hand and he could be seen holding a knife-shaped object in his right hand. The police officer in Air One reported the Complainant was holding something in his right hand and the other two men appeared to be frightened of him.

At 8:35:11 p.m., CW #1 walked slowly up the driveway with his hands raised, as though pleading with the Complainant.

At 8:35:15 p.m., the WO and SO arrived and they approached the Complainant, each of them with their arms in front of them in a manner consistent with being armed. The WO walked up the lawn on the left side of the driveway, while the SO was at the end of the driveway. The SO could be seen reaching for a microphone on his left shoulder and he then reported, “He’s got a knife. We’re gonna need a 10-3 [stop radio transmissions].”

The Complainant can be seen waving his left hand, while looking toward the WO, as though indicating a negative response to the WO. His right hand was down at his side, still holding the knife. CW #1 was standing at the passenger side front fender of the minivan parked at the end of the driveway.

At 8:35:40 p.m., the Complainant folded forward and fell backward onto the driveway.

The WO then approached the Complainant and he kicked at the Complainant’s right wrist, three times. He then appeared to reach down and remove the knife from the Complainant’s hand and he kicked the knife away.

Civilian Video


The video showed the Complainant standing in the driveway with the knife in his right hand. He was wearing black pants and a white tank-top shirt. The aiming lasers of the SO’s CEW could then be seen on the Complainant’s chest and right leg as the Complainant was waving his left hand around.

The Complainant then fell straight backward. Once he fell, he was no longer visible on the video recording.

Police Communications Recordings

At 8:31 p.m. on October 11, 2019, a man called 911 to report a family member was armed with a knife. The caller stated the armed man was possibly intoxicated and was acting stupid.

Police officers and the DRPS helicopter, Air One, were dispatched. Air One arrived on scene and reported there were two males on the street who appeared to be in fear of a man standing on the driveway near the garage, waving his arms around. The police officer in Air One reported there appeared to be something in the man’s right hand.

Police officers arrived at the residence and could be heard yelling at the Complainant to drop the knife. The person on the telephone to 911 called out to the police officers, “Sir, he’s drunk.”

At 8:35:18 p.m., a police officer reported, “He’s got a knife. We’re gonna need a 10-3.”

At 8:36:22 p.m., one of the involved police officers reported everything was in order and a CEW had been deployed. The police officer asked that an ambulance be dispatched.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the DRPS:
  • The communications recordings related to the incident;
  • A copy of the video recording from the Air One helicopter;
  • Computer-Assisted Dispatch-Detailed Call Summary;
  • General Occurrence Hardcopy;
  • A narrative incident report authored by the WO;
  • Notes of the WO; and
  • Notes of the SO.

Incident Narrative

The material events in question are apparent on the evidence collected by the SIU, which included a statement from the WO, the notes of the SO and interviews with the Complainant and his two sons. The investigation also benefited from a review of the police communications recordings and a video recording of the incident captured by a police helicopter.

On October 11, 2019, the WO and SO were dispatched to a residence on Conacher Crescent in Pickering following a 911 call from the home reporting that a man - the Complainant - was in possession of a knife, possibly intoxicated and acting “stupid”. Arriving at the address at about 8:35 p.m., the WO and SO observed the Complainant standing at the top of the home’s driveway by the garage holding the knife. The Complainant was agitated and appeared angry with his son – CW #1 – standing further down the driveway. With his firearm drawn, the WO made his way along the grass lining one side of the driveway toward the Complainant as the SO moved a step or two forward on the driveway with his CEW trained on the Complainant. The WO repeatedly asked the Complainant to drop the knife, but he failed to do so. Less than 30 seconds following their arrival on the driveway, the SO discharged his CEW at the Complainant. The charge immobilized the Complainant, who fell backward with the knife in hand. Following several kicks of the Complainant’s right hand, the WO was able to dislodge the knife. The Complainant was turned onto his stomach and handcuffed.

Relevant Legislation

Section 34, Criminal Code -- Defence of person - Use of threat of force

34 (1) A person is not guilty of an offence if
(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 
(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) The act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon; 
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and 
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Analysis and Director's Decision

In the evening of October 11, 2019, the Complainant was arrested outside his residence in Pickering by the WO and SO. He was subsequently taken to hospital and diagnosed with a fractured left wrist. The SO was identified as the subject officer for purposes of the SIU investigation. 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 injury.

Section 34 of the Criminal Code prescribes the statutory limits within which force that is intended to thwart an actual or apprehended attack on oneself or another is lawful. Put simply, such defensive action is justified provided it was reasonable having regard to all the relevant circumstances, including such considerations as the nature of the force or threat, the extent to which the attack was imminent and whether there were other means available to respond, and whether any party to the incident used or threatened to use a weapon. The officers had every right to be on the driveway confronting the Complainant when the CEW was used and the Complainant was arrested. They had been called to the address by someone at the home reporting a domestic disturbance involving a man wielding a knife. I am further satisfied that the SO acted reasonably when he discharged his CEW at the Complainant. By that time, the officer had a legitimate fear for the well-being of CW #1 as it appeared the Complainant was threatening to harm his son, who remained in close proximity to his father despite the officer’s direction, with the knife that he failed to drop despite repeated direction to do so by the officers. In the circumstances, I am unable to fault the SO for attempting to neutralize the Complainant at a distance with his CEW. Nor does it appear the WO acted unreasonably when he kicked the Complainant’s right hand multiple times to dislodge the knife before moving in to effect his arrest.

In the result, while I accept that the Complainant likely fractured his wrist when he fell backward having been struck by a CEW discharge, I am satisfied the officers acted lawfully in the defence of CW #1 within the limits of section 34 of the Criminal Code. Accordingly, there is no basis to proceed with charges in this case and the file is closed.

Date: April 27, 2020
Electronically approved by
Joseph Martino
Director
Special Investigations Unit