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SIU Director’s Report - Case # 19-OCI-305

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 the injuries that a 45-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On December 14, 2019, at 4:22 p.m., the York Regional Police (YRP) notified the SIU of an injury that occurred to the Complainant.

At approximately 7:50 a.m., YRP responded to a domestic incident at an address on Claridge Drive in Richmond Hill. The caller, the Civilian Witness (CW), resides at the residence with her son, the Complainant, who is confined to a wheelchair. The Complainant had consumed alcohol and marijuana and was reportedly violent towards his mother by threatening to harm her and smashing glass in the residence.

As a result, the CW called YRP and asked that the Complainant be removed from the residence. YRP arrived on scene and arrested the Complainant for uttering threats. He was wheeled out to a police cruiser without incident, placed into the rear seat, and transported to Two District to be booked. While being booked, the Complainant complained of pain to his ankle and was transported to MacKenzie Health Hospital (MHH), where he was diagnosed with a fractured ankle.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 45-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO Interviewed but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The scene was located inside the sally port of Two District at 171 Major MacKenzie Drive West, Richmond Hill. The area of the incident was fully captured by the YRP closed-circuit television system (CCTV) from a 365-degree view, as well as being captured in an audio recording.

Video/Audio/Photographic Evidence


CCTV Recordings from YRP:


The SIU received CCTV recordings from YRP capturing the sally port and booking area at Two District. Upon review, the recordings revealed the following:

At 8:46:57 a.m., a police cruiser [operated by WO #1] entered the sally port followed by another police cruiser [operated by the SO]. The SO proceeded to open the trunk of WO #1’s police cruiser and removed a wheelchair before entering the booking hall briefly.

At 8:51:42 a.m., the SO and WO #1 approached WO #1’s police cruiser with WO #1 opening the rear-passenger door of WO #1’s police cruiser. There was a conversation between WO #1 and the Complainant. The conversation was mainly inaudible but WO #1 can be heard asking the Complainant to swing his legs out so police can lift him in the chair, with the Complainant responding something to the effect of, “I want you to remember what happens right now.”

At 8:52:21 a.m., WO #1 reached inside WO #1’s police cruiser and the Complainant yelled, “Ow”. There was another inaudible conversation between WO #1 and the Complainant, in which the Complainant can be heard yelling profanities while WO #1 tells the Complainant, “Let’s go.”

At 8:53:23 a.m., the SO reached inside WO #1’s police cruiser. Both the SO and WO #1 had their hands inside the police cruiser, as the Complainant yelled out in pain.

At 8:53:36 a.m., the SO and WO #1 removed the Complainant from the police cruiser, as he continued to yell out in pain. The Complainant fell to the floor of the sally port. The Complainant was immediately picked up by WO #1, the SO, WO #2, and another police officer, and placed in his wheelchair.

At 8:53:53 a.m., the Complainant stated, “Ow, you just broke my shit,” and requested a hospital, stating, “My leg is broken. You just broke my fucking ankle. You just broke my leg.” Looking at the Complainant’s injury, a police officer said, “That looks like that happened a long time ago”.

At 8:56:02 a.m., the Complainant was picked up, in his wheelchair, by the SO, WO #1 and WO #2, and escorted into the booking hall.

At 8:56:42 a.m., the Complainant stated, “This officer just pulled me out and broke my fucking knee.” The Complainant later nodded to the SO as being the police officer who pulled him out of the police cruiser and caused his injury.

At 8:58:30 a.m., a police officer queried what injury the Complainant had sustained as he had made multiple complaints. The police officer requested the Complainant tell him what happened, but the Complainant declined and continued demanding to go to the hospital. Throughout his time in the booking hall, the Complainant made numerous threats of bodily harm towards the police officers.

At 9:11:20 a.m., the Complainant fell out of his wheelchair onto the floor and appeared to hyperventilate. Emergency Medical Services arrived on scene within eight minutes and placed the Complainant inside the ambulance.


Police Communications Recordings


911 Communications Recording:

The following is a summary of the pertinent information obtained from the recording:

The CW called 911 and subsequently hung up. The operator called her back and she said that she had called by mistake. When asked if she was alone, the CW said her son [later identified as the Complainant] was home with her. When asked if everything was okay with her son, the CW responded no.

The CW advised that her son, who was in a wheelchair, had been drinking, was on medication, and had threatened her. When asked what the Complainant specifically threatened, the CW advised he was not being nice. When asked if the Complainant can walk, the CW responded that the Complainant uses his wheelchair all the time.

The line was disconnected again. When the operator called back, the CW advised that the Complainant had hung up the phone. Throughout the conversation, the CW was hesitant to provide information to the operator. She alluded to the fact that the Complainant was looking at her and monitoring her conversation.

The CW advised that the Complainant had a licence for a firearm, but she was unaware if he had a firearm at the residence. The CW advised he may have a big knife under his mattress, further stating he knows how to use knives as he used to hunt with his father.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the YRP:
  • Call History (Computer-Assisted Dispatch Report);
  • General Occurrence Hardcopy discussing the incident in detail;
  • Notes from both WOs;
  • Sally Port/Booking Video;
  • Communication Recordings;
  • YRP Involved Officer List; and
  • YRP Photo of Sally Port/Booking Hall’s personnel.

Materials obtained from Other Sources

In addition to the materials received from the YRP, SIU obtained and reviewed the following materials from other sources:
  • MHH medical records; and
  • MHH digital x-rays.

Incident Narrative

The material events in question are evident on the weight of the evidence collected by the SIU, which included interviews with the Complainant, the SO, and two other police officers who witnessed, between the two of them, the entirety of the SO’s interaction with the Complainant. The investigation was also aided by video recordings of the Complainant’s time in custody at the police station. At about 8:45 a.m. on December 14, 2019, the Complainant, who uses a wheelchair, arrived in police custody at YRP Two District. He had been arrested a short time prior at his home on Claridge Drive in Richmond Hill for uttering threats. His mother, the CW, had called police to the home concerned for her safety with her son acting up.

Seated in the back of WO #1’s cruiser, the Complainant was repeatedly asked to swing his legs out of the cruiser so he could be transferred into his wheelchair. The officers knew the Complainant was capable of doing so as they had witnessed him walking for brief periods at the scene of his arrest. When the Complainant refused to cooperate, WO #1 grabbed hold of his lower left leg to move it for him. The Complainant yelled out in pain and the officer withdrew. With the assistance of the SO, WO #1 continued to ask that the Complainant position his feet so he could be safely removed from the cruiser. When his refusals continued, the SO physically removed the Complainant’s feet from the cruiser and, together with WO #1, pulled the Complainant out of the vehicle. The Complainant fell as he exited the cruiser. When he was picked up and placed in his wheelchair, the Complainant complained that the officers had just broken his ankle.

An ambulance attended at the police station and transported the Complainant to hospital, where his fractured left ankle was diagnosed.

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 219, Criminal Code -- Criminal negligence 

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

Section 221, Criminal Code -- Causing bodily harm by criminal negligence 

221 Every one who by criminal negligence causes bodily harm to another person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.

Analysis and Director's Decision

On December 14, 2019, the Complainant was arrested at his residence in Richmond Hill and diagnosed later that day with a fractured left ankle. The SO was among the arresting officers and 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 arrest and injury.

The liability issues that arise in this case are two-fold: first, is the Complainant’s injury attributable in any way to a want of care on the part of the SO; and, second, did the SO use excessive force in his dealings with the Complainant? In my view, each of these questions are easily resolved in the negative.

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 are no questions raised in the evidence regarding the lawfulness of the Complainant’s arrest. Given what the officers knew of the domestic dispute that had prompted their attendance at his residence, the officers were within their rights in taking the Complainant into custody. Moreover, by all accounts, there is no suggestion that force of any kind was used against the Complainant in the home.

Once the Complainant was in lawful custody, the officers were entitled to exercise control over his movements to ensure his safety and to process him through the systems in place to safeguard his legal rights and protections. This clearly included removing him from the cruiser once they had reached the police station so the Complainant could be booked. The officers did what they could to facilitate the Complainant’s removal from the cruiser without the use of any force. When the Complainant’s obstinance persisted, they were entitled to press the issue and forcibly extricate him from the vehicle. This consisted of the SO and WO #1 grabbing a hold of the Complainant and pulling him out of the cruiser’s backseat. While it is regrettable that the Complainant fell to the floor in the process, he has as much himself to blame for that given his resistance to what the officers were trying, justifiably, to do. In the circumstances, I am unable to reasonably conclude that either of the SO or WO #1 crossed the line into excessive force in their brief physical engagement with the Complainant.

With respect to a possible want of care on the part of the officers possibly contributing to the Complainant’s injury, the offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is predicated, in part, on conduct that amounts to a marked and substantial departure from a reasonable level of care in the circumstances. At its highest, the allegation is that the SO pulled the Complainant out of the cruiser without due regard for the pain the Complainant was experiencing in his left leg, causing the Complainant to collapse as soon as he was made to stand up and resulting in his injury.

There is little to no evidence of the SO’s conduct approaching or transgressing the limits of care prescribed by the criminal law. That argument might have carried weight were there credible evidence to suggest the Complainant was inclined to assist in his own removal. However, the weight of the evidence is quite the contrary; namely, that the Complainant was not at all interested in cooperating with the officers. In the circumstances, I find it difficult to fault the SO for taking hold of the Complainant and, with WO #1’s help, pulling him out of the cruiser. The fact that the Complainant fell to the floor and may have broken his ankle in the process is regrettable, but not, I am satisfied, the result of any criminal negligence on the part of the SO.

Whether the Complainant broke his ankle in his dealings with police officers on the day of his arrest remains an open question. There is a distinct possibility raised in the evidence that his fracture pre-existed his encounter with the police on December 14, 2019. Be that as it may, as I am satisfied that the officers acted lawfully throughout the Complainant’s time in custody, there is no basis for proceeding with criminal charges against the SO and the file is closed.


Date: May 4, 2020

Electronically approved by


Joseph Martino
Director
Special Investigations Unit