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SIU Director’s Report - Case # 19-OCI-186

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 30-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 10, 2019, at 7:20 a.m., the London Police Service (LPS) notified the SIU of the Complainant’s injury.

According to the LPS, on August 9, 2019, at approximately 7:20 p.m., LPS police officers [now known to be the Subject Officer (SO) and Witness Officer (WO) #1] responded to a domestic incident in an apartment on Huron Street in London.

Upon arrival, they were allowed into the apartment by Civilian Witness (CW) #2. Once inside the apartment, the officers immediately encountered the Complainant who was armed with a plastic knife and had assumed a fighting stance toward the officers. The SO immediately engaged the Complainant and grounded him. The Complainant was arrested and transported to the LPS custody area at 601 Dundas Street in London. The Complainant did not make any injury complaints while being booked.

Later in the evening, the Complainant complained to the Custody Sergeant that his right wrist was sore. The Complainant was taken to the London Health Sciences Centre - Victoria Hospital emergency department where he was diagnosed with a fractured right wrist. The Complainant was discharged back into the custody of the LPS and returned to its cells for a bail hearing. The LPS advised that the cell video, for the cell housing the Complainant, was reviewed and at no time was the Complainant observed punching the cell walls.

The Team

Number of SIU Investigators assigned: 2

SIU investigators interviewed civilian witnesses, and, with the consent of the Complainant, obtained a copy of the medical records and diagnostic imaging relevant to the incident.

The SIU also obtained copies of two photographs of the wall the Complainant struck with his right fist moments before CW #2 called 911.

Complainant:

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


Civilian Witnesses

CW #1 Not interviewed (Next of Kin)
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed


Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The scene was limited to the furnished living room area inside an apartment on Huron Street in London.

Video/Audio/Photographic Evidence


Booking Hall Closed-Circuit Television (CCTV) Data


The review of the CCTV data depicted WO #2 on August 9, 2019, at about 8:05 p.m., asking the Complainant four times if he had any injuries. He also asked the Complainant if he had any medical issues.

The Complainant stated twice, once after the second and once again after the fourth time he was asked, that he had no injuries and he made no complaint of any kind in respect of the way he was treated by the police.

The Complainant’s only remark, when asked by WO #2 if he had any medical issues – specifically, whether he was “intoxicated,” was, “Evidently.”

Cells Area CCTV Data


The CCTV data was reviewed. The Complainant did not punch any structural components of his cell or any structural components of the cell area.


Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the LPS:
  • Booking area CCTV data;
  • Cells area CCTV data;
  • Call Summary;
  • LPS email correspondence;
  • Notes of WO #1 and WO #5; and
  • Statements of WO #1, WO #4 and WO #5.

Incident Narrative

The events in question are largely apparent on the evidence collected by the SIU, which included statements from a police and civilian eyewitness to the Complainant’s arrest. On August 9, 2019, the Complainant was in the apartment of CW #2 while intoxicated. The evidence indicates that the two began to argue with the Complainant eventually punching a concrete wall, using his right fist. CW #2 called 911 and police were dispatched to her residence, with the SO being the first to arrive, followed by WO #1, shortly thereafter.

The Complainant, upon the arrival of the SO, was brandishing a toy knife and goading the SO to fight him. The SO ordered the Complainant to drop the knife and, when the Complainant did not cooperate, pushed the Complainant and guided him to the floor while grabbing his right arm. At that point, WO #1 arrived and both officers straddled the Complainant in order to attempt to apply the handcuffs, while the Complainant actively resisted.

The Complainant complained of pain in his right hand while in police cells and arrangements were made to transport him to hospital. Once at hospital, the Complainant was diagnosed with having sustained a fractured metacarpal and a plaster cast was applied.

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

In the evening of August 9, 2019, the Complainant was arrested by SO and WO #1 of the LPS. Subsequent to his arrest, the Complainant was taken to hospital by police and diagnosed with a fractured right hand. The SO was designated a 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.

On the aforementioned record, it is very likely that the Complainant’s injury was self-inflicted – the result of him striking a concrete wall in CW #2’s residence prior to the arrival of the police. Be that as it may, on the possibility that his interaction with the arresting police officers either caused or contributed to his broken right hand, I have considered the subject officer’s potential criminal liability in relation to the Complainant’s arrest.

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. There is no question raised on the evidence that the Complainant’s arrest was anything other than lawful. Based on the information they had received from CW #2, the Complainant was clearly subject to arrest for his violent behaviour ahead of the officers’ arrival.

With respect to the force that was used in aid of the Complainant’s arrest, I am further satisfied that it was no more than was reasonably necessary to take him into custody. Confronted by the SO, the Complainant took up an aggressive posture while holding a plastic knife and challenging the officer to fisticuffs. The SO responded by pushing the Complainant away from him on two occasions and, thereafter, taking him to the floor. The pushes and takedown were, in my view, proportionate and measured responses to an individual acting violently and threatening bodily harm.

There is a discrepancy as to the force used by the SO while on the floor with the Complainant attempting to handcuff him and, after the Complainant had been handcuffed, in the hallway outside the residence. At its highest, the evidence suggests the officer punched the Complainant once on the floor and, thereafter, once again in the hallway. On each occasion, the evidence is clear that the Complainant was physically resisting his arrest. I take no issue with the first strike. The Complainant was at the time struggling against the SO and WO #1’s efforts to secure his arms and the strike proved effective in completing the arrest. The second punch, delivered at a point in time after the Complainant had been handcuffed, is less easy to square. However, allowing for some latitude to the officer in light of the common law’s prescription that responsive force need not be measured to a nicety (see R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA)), and in view of the Complainant’s combative behaviour toward the officers, before and after the handcuffs were affixed, I am unable to reasonably conclude that the punch fell afoul of the criminal law.

In the final analysis, whether the SO caused or contributed to the Complainant’s injury (and it appears unlikely he did either), there is no basis in my view to believe that the officer acted other than lawfully in his dealings with the Complainant. Accordingly, there are no grounds for proceeding with criminal charges in this case and the file is closed.


Date: May 4, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit