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SIU Director’s Report - Case # 19-OCI-307

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 26-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 19, 2019, the Complainant reported an injury he suffered during his arrest by the Ottawa Police Service (OPS) on January 5, 2018. The incident reportedly occurred in an apartment on Cummings Avenue, Ottawa. 

The Team

Number of SIU Investigators assigned: 3

The Complainant was interviewed, and he provided Authorization for the Release of Medical Information in respect of The Ottawa Hospital (TOH) and his family doctor. The medical records were subsequently obtained.

Investigators interviewed a Civilian Witness (CW) and canvassed the apartment building for witnesses, but none were identified.

One Subject Officer (SO) and three Witness Officers (WOs) were designated and interviewed.

Because the incident had not been reported for approximately two years, no scene examination was conducted.

Complainant:

Male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW Interviewed 

Witness Officers

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


Subject Officers

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


Evidence

The Scene

The Complainant was taken to the ground and arrested inside his apartment. Following his arrest, he was quickly removed from the apartment into a hallway where he was placed against a wall and searched.

This incident occurred in 2018 and was not reported to the SIU until late 2019. When the interaction occurred between the Complainant and the police officers, no complaint of injury was made by the Complainant and the scene was not held or examined.

Communications Recordings


911 Calls Made to the OPS


First Call

At 11:04:42 p.m., a man called 911 and reported witnessing what he believed was an incident of domestic violence in an apartment complex. He reported that a man and woman were arguing in the hallway near the entrance to their apartment. The man pushed the woman and, after they entered their apartment, he heard the woman screaming and sounds of a possible struggle. 
 
Second Call

At 11:04:53 p.m., a woman called 911 and reported hearing screams coming from her neighbour’s apartment. She heard the woman scream for the man to get off her. She also heard the man scream, “How do you like that?” The woman wanted police to check on the well-being of the woman as she believed there was a struggle in progress.

Third Call

At 11:04:53 p.m., another woman called 911 and reported ongoing domestic violence coming from an apartment. She heard four or five screams from a woman who sounded frightened. She also heard thumps and bangs, which caused her to be concerned for the safety of the woman.

OPS Radio Communications


The dispatcher broadcast over the air for two OPS units, the SO and WO #3, to attend a domestic call at Cummings Avenue. The dispatcher reported that the 911 caller had seen a man push a woman. The caller had reported he could hear yelling and fighting in an apartment. The dispatcher broadcast that there were unknown injuries, no children in the apartment, and it was unknown if there were any weapons involved.

The dispatcher advised there was a second 911 call received in relation to the domestic. A description for the man [now known to have been the Complainant] was given out as a male, approximately 25 years old, wearing a blue jacket and dark pants and having a bag with him. A description for the woman [now known to have been the CW] was given out as a female, 25 to 30 years old, wearing a white jacket and black pants.

The dispatcher indicated there was no past history in relation to the apartment. The dispatcher advised a third 911 call had been received in relation to the domestic. This caller could hear a woman screaming.
WO #1 asked the dispatcher to get one of the 911 callers to open the door to the apartment building. The dispatcher asked the SO a question (indiscernible) and he replied all was good. The dispatcher called WO #1 and he replied they were inside.

The dispatcher asked WO #2 if she was clear of the call. There was no response and the dispatcher called on three more occasions. A police officer was heard over the radio shouting in the background, saying “10-92”. [1] WO #2 called in on the radio looking for information on the original 911 caller. While talking to dispatch, shouting and loud voices could be heard in the background. The dispatcher advised the original caller only wanted to be contacted by telephone.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPS:
  • Notes of the witness officer;
  • Audio recordings of 911 calls;
  • OPS Radio Communications;
  • OPS Arrest Policy; and
  • OPS Use of Force Policy.

Materials obtained from Other Sources

Investigators also obtained and reviewed the following materials from other sources:
  • Medical Records from TOH; and
  • Medical Records from the Complainant’s family doctor.

Incident Narrative

The following scenario around the events in question emerges from the weight of the reliable evidence collected by the SIU. At about 11:10 p.m. of January 5, 2018, the SO, in the company of WO #1, WO #2 and WO #3, arrived at an apartment complex on Cummings Avenue. They were there following three 911 calls reporting a possible assault in progress. Upon the officers’ entry into the building, they heard a woman – the CW – screaming for help.

The officers made their way to the apartment and, finding the door partially opened, entered the unit. Once inside, they observed the Complainant on top of the CW, who was lying on her backside on the sofa. They ordered him off the sofa and told him he was under arrest. The Complainant stepped back from the sofa. The SO and WO #1 took hold of the Complainant and attempted to handcuff him. The Complainant struggled against their efforts and was taken to the floor. The Complainant continued to struggle against the officers’ efforts to handcuff him and was met by three punches to the right side of the head by the SO.

Following the punches, with WO #2’s assistance, the Complainant was handcuffed and raised to his feet. He was escorted outside the apartment, placed up against the hallway wall across from the apartment door and searched. Again, the Complainant struggled against the officers’ efforts, continually trying to turn around and prompting WO #1 to use a forearm to pin him against the wall.

With the search complete, the Complainant was lodged in the backseat of the SO’s cruiser, where he declined an opportunity for medical treatment. Once at the police station, the Complainant indicated that his head was sore but again turned down an offer for medical attention.

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 529.3, Criminal Code - Authority to enter dwelling without warrant

529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. 
 
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

Analysis and Director's Decision

In the evening of January 5, 2018, the Complainant was arrested by OPS officers in relation to a domestic assault and subsequently released on a promise to appear. A week later, the Complainant attended hospital and was diagnosed with a concussion. 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.

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 authorized or required to do by law. There is little question that the officers acted lawfully in seeking to take the Complainant into custody. Given what they knew of the 911 calls and what they heard upon entering the building, they were within their rights under section 529.3 of the Criminal Code in entering the apartment without the occupants’ express permission to intervene in what they reasonably believed was an assault in progress. The issue turns to the propriety of the force used against the Complainant.

On the record established by the SIU investigation, I am unable to reasonably conclude that the force used by the officers was excessive. I accept on the weight of the evidence that the Complainant physically resisted arrest by refusing to surrender his arms to be handcuffed. In the circumstances, I accept that the takedown that ensued, forceful though it was, was a reasonable tactic; once on the ground, the officers would be better positioned to deal with any further resistance on the Complainant’s part. In fact, the Complainant did continue to struggle on the floor, at one point managing to lift himself onto all fours. The SO reacted by delivering three quick punches to the Complainant’s head, following which the Complainant was brought back to the floor and his arms affixed behind his back in handcuffs.

The SO’s punches accomplished their objective, but would lesser force have sufficed? Strictly speaking, perhaps, but that is not the test. It is a principle of the common law that officers embroiled in volatile and potentially dangerous situations are not expected to measure their responsive force with precision; what is required is a reasonable response, not necessarily an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.). The SO had come into a violent situation. He had good cause to believe that the Complainant was assaulting the CW and he, the Complainant, was now resisting his arrest. With the CW still nearby and the Complainant threatening to break free from the officers’ hold, the SO believed, reasonably in my view, that resolute action was required to quickly bring the Complainant quickly into custody. Considered in context, I am satisfied on reasonable grounds that the three punches he struck did not run afoul of the latitude of permissible force in the circumstances.

There is evidence suggesting that the Complainant was subjected to force on the part of the SO that was more extensive and severe – up to seven punches while on the floor and a shove of his face into a wall after he was handcuffed – but I am unable to give credence to this evidence. This evidence also suggested the Complainant offered very little if any resistance to the officers, but these claims are clearly belied by the violence with which he treated the CW in the moments prior to his arrest. This and other frailties associated with his evidence lead me to conclude it would be unsafe and unwise to rest criminal charges based on this evidence alone in the face of the countervailing evidence.

In the final analysis, while it may well be that the Complainant’s concussion was the result of his run-in with the police in the course of his arrest on January 5, 2018, I am satisfied that the officers acted lawfully throughout their encounter. Accordingly, there is no basis for proceeding with criminal charges in this matter and the file is closed.


Date: May 11, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes