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SIU Director’s Report - Case # 20-OCI-017

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 the injuries that a 44-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On January 27, 2020, at 6:35 p.m., the Durham Regional Police Service (DRPS) notified the SIU of the following.

On January 26, 2020, at 9:20 p.m., police officers were dispatched to a residence on Bloor Street West in Oshawa. An unknown man had entered the residence and assaulted a woman. Police officers found the man, the Complainant, in the kitchen area of the residence. The Complainant was aggressive with the police officers and a conducted energy weapon (CEW) was deployed. The Complainant continued to advance towards the police officers and a second CEW was deployed. The Complainant exited the residence through the back door and a third police officer deployed his CEW. After three deployments, the Complainant told the police officers that he liked it. The Complainant was taken to Lakeridge Health Oshawa (LHO), as excited delirium was suspected. On January 27, 2020 at 5:30 p.m., after an X-ray examination, the Complainant was diagnosed with a fractured jaw.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 44-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed

Witness Officers

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


Subject Officers

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


Evidence

The Scene

The scene, which was not held, was located in the kitchen area of, and the grounds around, the residence on Bloor Street West, Oshawa.

Forensic Evidence


CEW Data Downloads

CEW Belonging to WO #5

On January 26, 2020 at 9:34:01 p.m., the CEW was deployed for a period of 8 seconds.
On January 26, 2020 at 9:34:09 p.m., the CEW was deployed for a period of 8 seconds.
On January 26, 2020 at 9:34:18 p.m., the CEW was deployed for a period of 5 seconds.

CEW Belonging to the SO

On January 26, 2020 at 21:36:08 p.m., the CEW was deployed for a period of 5 seconds.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was unable to locate any sources.

Police Communications Recordings


Communications Report


The communications report and telephone report were reviewed and there was no investigative value to either report.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the DRPS:
  • CAD-Detailed Call Summary for this incident;
  • Communications Audio;
  • Directive containing guidelines about lawful arrests;
  • Directive containing guidelines about appropriate Use of Force;
  • General Occurrence Hardcopy for this incident;
  • General Occurrence Hardcopy for this incident-WO #1’s Will State;
  • Notes from all WOs;
  • Records from WO #5’s CEW for 26 January 2020; and
  • Records from the SO’s CEW for 26 January 2020.

Materials obtained from Other Sources

In addition to the materials received from the DRPS, SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant, the SO, and several civilian and police witnesses. At about 9:30 p.m. on January 26, 2020, the SO arrived at a residence on Bloor Street West in Oshawa following a 911 call from the residence reporting a home invasion in progress. Minutes earlier, a severely impaired intruder – the Complainant – had entered the home from the unlocked rear sliding-glass door. While inside the home, the Complainant was confronted by the owners of the home – CW #1 and CW #3 – and several tenants. They asked him to leave the premises, but he refused. The Complainant started kicking the refrigerator, helped himself to a bottle of wine or champagne, and followed CW #3 upstairs, where he proceeded to assault her as she called the police.

The assault on CW #3 was significant. The Complainant entered CW #3’s bedroom, smashed her television against a wall and then pulled her out of the room against her will, biting her in the process. CW #1 and one of the tenants, CW #2, came to CW #3’s aid as the Complainant was attempting to drag her by the hair down the stairs. The men struck the Complainant in the head and other areas with their fists and a small plastic handheld vacuum. The Complainant remained undeterred, but fled down the stairs upon the arrival of the police.

WO #5 had preceded the SO’s arrival at the home. The officer made his way into the home through the back sliding-glass door and confronted the Complainant from the bottom of the stairs. The Complainant was still holding CW #3 by the hair trying to pull her down the stairs. The Complainant kicked out at WO #5 and then advanced on the officer down the stairs, letting go of CW #3. WO #5 backed up a distance and then went mano-a-mano with the Complainant as he continued to advance in his direction. With his right hand, WO #5 struck the Complainant in the upper left chest and neck area. The two struggled with each other and eventually found themselves through the rear sliding-glass door in the backyard. By this time, WO #5 had deployed his CEW three times at the Complainant, each time to no effect. It was at this point that the SO arrived and joined the fray.

The Complainant managed to escape from the officers and fled toward the northwest corner of the lot, whereupon he scaled a fence onto the neighbour’s land.

The SO ran to the front of the residence where he re-engaged the Complainant. An enraged Complainant refused the SO’s direction to get on the ground and was met with another CEW discharge as he advanced on the officer. Again, the CEW failed to immobilize the Complainant. When he then neared to about a metre of the SO’s location, the officer used his right hand, still holding the CEW, to strike the Complainant’s head in the area of his left eye.
The blow felled the Complainant but did not pacify him. There ensued a struggle on the ground in which the Complainant flailed his body, kicked his legs and refused to surrender his arms to be handcuffed. The SO delivered a knee strike to the Complainant’s torso. Other officers arrived on scene and intervened to give the SO a hand. Aside from their combined grappling efforts, no further strikes appear to have been struck against the Complainant aside from a series of punches by WO #1 to the Complainant’s right arm. Shortly after those blows, the officers were able to secure the Complainant’s arms in handcuffs and take him into custody.

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

The Complainant was arrested by DRPS officers in the evening of January 26, 2020 and subsequently diagnosed with a fractured right mandible. 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. The Complainant had broken into a home and violently assaulted its occupants. He was clearly subject to lawful arrest.

With respect to the propriety of the force that was used by the officers, consisting of four CEW discharges, a knee strike, and a series of punches to the Complainant’s head, torso and right arm, I am satisfied that it too was lawful. The Complainant was in a highly excited and violent state when confronted by the police. He was in the middle of assaulting CW #3 when WO #5 first discharged his CEW at him. That and three subsequent CEW discharges had little if any effect in quelling his violence. The same was true of the two punches, delivered one a piece by WO #5 and the SO. While the second one was able to force the Complainant onto the ground, he continued to vigorously resist his arrest. It was not until the arrival of additional officers, a knee strike to the torso and punches to the right arm that the Complainant was finally subdued and placed under arrest. On this record, I am satisfied that the force used by the officers was measured, proportionate and reasonably necessary in the circumstances.

The precise cause of the Complainant’s broken jaw remains unknown. There is a distinct possibility raised in the evidence that it was fractured as CW #1 and CW #2 fought with the Complainant in defence of CW #3. Be that as it may, as I am satisfied that the SO and the rest of the officers who engaged with the Complainant did so lawfully throughout their encounter, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: May 25, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit