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SIU Director’s Report - Case # 19-OCI-282

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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 the injuries that a 33-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On November 24, 2019, at 7:30 p.m., the St. Thomas Police Service (STPS) contacted the SIU and relayed that on November 23, 2019, at about 8:00 p.m., the Complainant was arrested on outstanding warrants after a short foot pursuit in a rear alley on Talbot Street in St. Thomas. The Complainant was taken to St. Thomas Elgin General Hospital (STEGH) to be treated for a dog bite to his arm. On November 24, 2019, the Complainant was in court and complained that he was dizzy. He was again taken to the STEGH, where he was diagnosed as having sustained a fractured orbital bone and a fractured nose. After treatment, he was transported to the Elgin Middlesex Detention Centre, where he was held.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 33-year-old male interviewed, medical records obtained and reviewed


Witness Officers

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


Subject Officers

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


Evidence

The Scene

The scene, which was not held, was located in the rear alley on Talbot Street in St. Thomas.

Video/Audio/Photographic Evidence


Booking and Sally Port Video


At 10:27 p.m., November 23, 2019, the Complainant was led through the sally port hallway into the booking room by two police officers. The Complainant wore a dark jacket over a blue hospital gown, and had swelling and bruising to his left eye.

Police Communications Recordings

On November 23, 2019, at 7:52:21 p.m., SO #2, who was in plainclothes, broadcast that the Complainant was walking on Talbot Street at Flora Street. At 7:52:50 p.m., SO #1, who was a K9 police officer, advised that his police service dog was out of the cruiser. At 7:52:58 p.m., SO #1 broadcast that he had one in custody for a bench warrant. At 7:55:10 p.m., SO #1 requested that Medvia Emergency Medical Services be called for a dog bite.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the STPS:
  • Computer-Assisted Dispatch Details Report;
  • Communications recordings;
  • Curriculum Vitae-SO #1;
  • General Occurrence Report authored by WO #3;
  • Involved Officer List;
  • Mugshot picture of the Complainant;
  • Notes from all WOs;
  • Notes-SO #2;
  • Occurrence Report authored by WO #3;
  • Policy-Arrest;
  • Policy-Canine Unit;
  • Policy-Use of Force;
  • STPS Charges-History;
  • STPS Charges-Nov 23, 2019;
  • STPS Station Video;
  • Will-State-WO #3;
  • Will-State-WO #1;
  • Will-State-WO #2; and
  • The Complainant’s arrest warrant.

Materials obtained from Other Sources

In addition to the materials received from the YRP, SIU obtained and reviewed the following materials from other sources:
  • Ambulance Call Report; and
  • The Complainant’s medical records from STEGH.

Incident Narrative

Shortly before 8:00 p.m. on November 23, 2019, the Complainant, wanted on an arrest warrant, fled from police on foot with SO #1 in pursuit. SO #1 was a dog handler and had with him, in his cruiser, his police service dog. SO #1 yelled at the Complainant to stop running or he would release his dog. The Complainant continued his flight until the dog, having been released from the cruiser, caught up with him, bit him in the upper right arm and took him down in the parking lot behind the Pizza Pizza at the northwest corner of Horton and Talbot Streets.

SO #1 arrived shortly after the takedown and directed the Complainant to stop struggling with the dog. The dog maintained its grip on the Complainant’s arm until he was removed by SO #1 following the arrival at the scene of SO #2. SO #2 was in plainclothes and working that day as part of a property crime enforcement team among whose target was the Complainant. The undercover team had moments earlier detected the Complainant entering and then exiting a bar at 595 Talbot Street. It was SO #2 who had radioed for the assistance of a uniformed officer to attend in the area to effect the Complainant’s arrest as they tracked their subject east along a laneway north of Talbot Street. SO #1 had answered the call.

SO #2 first took hold of the Complainant’s left side so that SO #1 could safely release the dog. Thereafter, the Complainant struggled against SO #2’s efforts to secure his hands so he could be handcuffed, keeping them tucked under his torso as he lay prone on the ground. SO #2 delivered two open-handed strikes to the Complainant’s head area and a knee strike to the torso, following which SO #2 was able to wrest control of his arms and affix them in handcuffs.

Following the Complainant’s arrest, he was taken to hospital for treatment of his bite injuries. The following day, while still in police custody, he was returned to hospital and diagnosed with several facial fractures.

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 November 23, 2019, the Complainant was arrested by STPS officers and suffered injuries in the process. The arresting officers – SO #1 and SO #2 – were designated as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject officer committed a criminal offence in connection with the Complainant’s arrest and injuries.

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. The Complainant was wanted on an outstanding arrest warrant and his apprehension was clearly lawful. The real issue is with the propriety of the force used against him by the officers.

I begin with the dog bite or bites that the Complainant endured. The Complainant had every opportunity to surrender peacefully to arrest but chose to attempt to escape custody instead. He ran away from SO #1 and ignored SO #1’s repeated warnings that he would release the dog if he did not desist. In the circumstances, I am unable to fault SO #1 for deploying his dog, particularly when it appeared that he was losing ground on the Complainant, who might make good his escape. The dog quickly caught up with the Complainant and did what it was trained to do – take hold of a fleeing suspect’s limb, preferably the suspect’s right arm – and bring him or her down. While the dog inflicted significant injuries, the nature and extent of these injuries is not surprising considering the Complainant’s efforts to release himself from the dog and the dog’s efforts to maintain its grip.

As for the force used by SO #2, consisting in the main of two open-handed strikes to the head area and a knee strike to the torso, here too I am unable to reasonably conclude that the police used excessive force. SO #2 repeatedly directed the Complainant to release his arms from underneath his body. When the Complainant refused to do so, the officer delivered his first blow – a palm strike to the head area. The Complainant continued to resist and was then met with a knee strike, which also failed to quell his fight. Finally, with the delivery of one final open-handed strike to the head area, SO #2 was able to gain control of the Complainant’s arms and handcuff them. No further force was used. While I accept that SO #2’s blows might well be responsible for one or more of the Complainant’s facial fractures, I am persuaded that they did not cross the line into unlawful territory. The officer was alone and having to deal with a combative individual; SO #1 was unable to intervene to assist for fear that the dog might again bite the Complainant were the dog left alone. In the circumstances, one appreciates why SO #2 believed it was necessary to quickly take the Complainant into custody. It should further be noted that the blows were not delivered in rapid succession; rather, it appears SO #2 assessed the Complainant’s behaviour after each strike, proceeding only to the next blow when the Complainant’s resistance did not abate. On this record, I am satisfied on reasonable grounds that the force used by SO #2 was measured, proportionate and necessary.

In the result, as I am satisfied that SO #1 and SO #2 conducted themselves lawfully throughout their dealings with the Complainant, there is no basis for proceeding with criminal charges against either of them notwithstanding the injuries the Complainant suffered during his arrest.


Date: May 11, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit