RunnersCruiser accidentCruiser and motorbike
thick blue gradient line

SIU Director’s Report - Case # 19-OCI-199

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 a serious injury sustained by a 33-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 20, 2019, at 1:00 a.m., the Ottawa Police Service (OPS) notified the SIU of an injury to the Complainant.

The OPS reported that on August 18, 2019, it received a report of a vehicle being driven dangerously. An OPS officer located the vehicle at the rear of the business premises located at 175 Montreal Road and waited for the driver to exit the business on Montreal Road.

The Complainant was arrested when he returned to his vehicle. During the arrest, a struggle ensued between the OPS officer and the Complainant. Several other OPS officers arrived at the scene to assist and one of the officers deployed a Conducted Energy Weapon (CEW) at the Complainant. The Complainant was grounded, handcuffed, and transported to the police station.

On August 19, 2019, during his show cause hearing, the Complainant complained of an injury to his eye. He was subsequently transported to Ottawa General Hospital (OGH) and diagnosed with a fracture to his orbital bone.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Not interviewed (Refused)

Witness Officers

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


Subject Officers

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


Evidence

The Scene

The scene was a parking lot across from the business premises located at 175 Montreal Road in Ottawa.

Forensic Evidence

 

Witness Officer (WO) #2’s CEW:


The SIU received and reviewed the report from WO #2’s CEW. The report indicated that WO #2 discharged her CEW in drive-stun mode at 8:17 p.m., for four seconds.

The CEW deployment was consistent with WO #2’s notes and statement.

Video/Audio/Photographic Evidence


Closed-Circuit Television (CCTV) Recordings


The SIU received and reviewed the CCTV recordings from a business on Montreal Road. The recordings from the CCTV were blurry and depicted the following:

  •  At 7:54 p.m. A man wearing a red jacket [later identified as the Complainant] was having a verbal interaction with a police officer [later identified as WO #1] near the left rear passenger side door of a police vehicle in the parking lot;
  • At 7:58 p.m. Another police officer [later identified as the SO] arrived at the parking lot;
  • At 8:01 p.m. The SO wore his gloves. The SO then grabbed the Complainant’s left arm while WO #1 grabbed the Complainant’s right arm and placed it behind the Complainant’s back. The Complainant was either handcuffed or in the process of being handcuffed when a struggle broke out among the parties;
  • At 8:02 p.m. The Complainant was taken to the ground by the driver’s side door of the police vehicle. The interaction on the ground between the SO and WO #1 and the Complainant was obstructed by the police vehicle;
  • At 8:05 p.m. The SO and WO #1 picked the Complainant up from the ground. The Complainant continued to struggle with the SO and WO #1 and was immediately placed on the ground. The SO and WO #1 continued to struggle with the Complainant;
  • At 8:06 p.m. The SO and WO #1 picked the Complainant up by his arms and legs and placed him on the ground by the rear right passenger side door of another police vehicle [later identified as the SO’s police vehicle]. As the SO opened the right rear passenger door of his police vehicle, a woman [later identified as CW #1] approached the SO’s police vehicle. The SO and WO #1 continued to struggle to place the Complainant in the rear seat of the police vehicle;
  • At 8:08 p.m. Another police officer [later identified as WO #2] arrived and approached the SO, WO #1 and the Complainant;
  • At 8:10 p.m. A man [later identified as CW #3] arrived and stood metres away from the SO, WO #1, WO #2 and the Complainant. WO #2 opened the left rear passenger side door of the SO’s police vehicle and returned to assist the SO and WO #1 with placing the Complainant in the rear seat of the police vehicle; and
  • At 8:12 p.m. The Complainant was placed inside the rear seat of the police vehicle.


Cellular Video from Civilian


The video recording is approximately 59 seconds in length, with no time stamp, and depicts the following:

  • The Complainant, with his hands handcuffed behind his back, struggled with two police officers [later identified as the SO and WO #1];
  • The SO and WO #1 attempted to place the Complainant into the right rear seat of the police vehicle. A woman [later identified as CW #1] yelled at the Complainant to stop resisting the police officers;
  • WO #1 yelled at the Complainant not to grab his firearm;
  • The Complainant asked the SO why he struck him in the face and the SO asked the Complainant why he grabbed WO #1’s firearm; and
  • WO #2 arrived and discharged her CEW on the right side of the Complainant’s body.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPS:
  • Prison Booking Record of the Complainant;
  • Computer-Aided Dispatch record of the incident;
  • Assignment of Patrol Vehicles of the Involved Officers;
  • List of Civilian Witnesses;
  • List of Involved Officers;
  • Narrative report from Witness Officers;
  • Notes of Witness Officers; and
  • WO #2’s CEW Report.

Materials obtained from Other Sources

The SIU obtained and reviewed the following materials and documents from other sources:
  • The Complainant’s medical records from OGH;
  • CCTV video footage; and
  • Cellphone video of incident.

Incident Narrative

The weight of the evidence establishes the following factual scenario. On August 18, 2019, at approximately 6:18 p.m., the OPS received a number of 911 calls complaining of a beige Jaguar that was being driven in a dangerous manner. As a result, officers were advised to be on the lookout for the vehicle, which was eventually located at 175 Montreal Road in the City of Ottawa. After reviewing the CCTV footage, the Complainant was identified as the driver and the grounds were formed to arrest him for the offence of dangerous driving. [1]

The SO and WO #1 approached the Complainant and advised him that he was under arrest. The officers grabbed the Complainant’s arms to place him in handcuffs, and the Complainant began to resist the police officers by trying to pull away. The Complainant openly advised the officers that it was his intention to fight them, and the SO told him to calm down and not to resist. The two officers placed the Complainant against a police vehicle to complete the handcuffing, but the Complainant pushed himself away, slamming his face against the police vehicle’s rear door while kicking backwards at the officers, landing a kick in the area of the SO’s groin. When the Complainant then grabbed onto the SO’s CEW, which was on his duty belt, the SO responded by pulling away and striking the Complainant once on his right temple. The blow was successful in that the Complainant then immediately released his hold on the CEW, and the officers were able to place him in handcuffs.

As a result of the blow from the SO, the Complainant appeared to become even more agitated and he began to strike his face on the exterior of the police vehicle, following which his nose began to bleed and he began to spit blood at the police officer. The SO and WO #1 took the Complainant to the ground in order to exercise more control over him.

At this point in the interaction, a civilian witness began to video record the incident. In the video, the Complainant can be heard to loudly, and repeatedly, object to his having been struck in the face by the SO, while he continues to violently struggle against the officers who are trying to place him inside the police vehicle. CW #1 (the Complainant’s mother) can be heard on the video repeatedly screaming at the Complainant to calm down, stop resisting, and to cooperate with the police. WO #1 placed a temporary restraining device (TRD) on the Complainant’s legs, as the Complainant continued to violently twist and turn his body preventing the officers placing him into the police vehicle. The Complainant then grabbed at the use of force options on the officers’ duty belts and one of the officers can be heard, on the video, indicating that the Complainant was reaching for the firearm of one of the officers, while the other officer shouts, “Do not grab my weapon!” WO #2 then arrived, approached the area where the Complainant was struggling against the SO and WO #1, and also directed the Complainant to stop resisting. The Complainant continued to resist, however, and WO #2 warned the Complainant that if he did not stop, she would discharge her CEW. WO #2 then reached in and discharged her CEW directly against the body of the Complainant, which is referred to as being a ‘drive stun’. The SO can then be seen on the video stepping away from the Complainant, at which point the Complainant is placed inside the rear of the police vehicle by the SO and WO #1.

During the course of his arrest, the Complainant sustained an injury which was later identified as a fracture of the orbital bone.

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 SIU’s investigation into the circumstances surrounding the Complainant’s injury consisted of interviews with the Complainant; the SO; two civilian witnesses; and, four witness police officers. The investigation was also significantly aided by CCTV, as well as a video recording created by a civilian witness, both of which captured significant portions of the incident. From a review of this evidence, and for the reasons that follow, I am unable to find that the force used against the Complainant was excessive, and therefore have no reasonable grounds to believe that any police officer committed a criminal offence in relation to his injury.

Pursuant to section 25(1) of the Criminal Code, a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. The SO was in the execution of his duty in arresting the Complainant for dangerous driving based on the information supplied in the 911 calls and the CCTV footage, which confirmed that the Complainant was the driver of the motor vehicle described by the 911 callers. When the Complainant, during his struggle with the officers, grabbed at the SO’s duty belt and made contact with his CEW, the SO delivered one punch to the Complainant’s facial area. The evidence indicates that the Complainant was violently resisting the efforts of the police officers, and his resistance continued over a protracted period of time despite the repeated pleas from his mother to stop. Even after having been placed into the TRD, the Complainant continued to resist, buck, and twist his body, in order to prevent his being placed into the police vehicle.

While there is some evidence that the Complainant’s face struck the police vehicle as a result of the officers pushing him against the vehicle, I have no doubt, based on the violent movements of the Complainant as depicted on the video, that if his actions were not the sole cause of his striking the vehicle, they certainly contributed to it. Furthermore, I find it impossible to determine if the Complainant was injured when he struck the police vehicle, as opposed to when he was struck by the SO.

In any event, whether or not the SO is responsible for fracturing the Complainant’s orbital bone, I am satisfied that his level of force was reasonably necessary in the circumstances to not only prevent the Complainant’s attempts to grab onto the use of force options on the officers’ duty belts, but also to subdue the Complainant, whose resistance was captured on the CCTV footage as extending over a period of 11 minutes. This level of force falls within the scope of that permitted by law, and I am accordingly unable to form reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

Somewhat more problematic was the CEW discharge by WO #2. At the time she deployed her weapon to drive-stun the Complainant, his arms and legs were affixed in restraints, and he was being held down by the SO and WO #1. Strictly speaking, the Complainant was no threat to anyone at that moment. That said, the Complainant’s resistance against the officers to that point had proven prolonged and formidable. WO #2 also had reason to believe that the Complainant had also just grabbed an officer’s firearm. Considered in context, I am unable on this record to reasonably conclude that WO #2 used excessive force. The officers were within their rights in wishing to bring their physical engagement with the Complainant to an end. In circumstances in which the Complainant had managed to prevent the combined manpower of two officers from lodging him in a cruiser, the resort to the CEW was not unreasonable. As it turned out, following the discharge, the Complainant’s fight abated sufficiently that the officers were able to place him in the cruiser.

For the foregoing reasons, there is no basis for proceeding with criminal charges against any of the officers involved in the Complainant’s arrest, and the file is closed.


Date: May 25, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes