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SIU Director’s Report - Case # 19-PFI-302

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 December 11, 2019 at 3:30 p.m., the Ontario Provincial Police (OPP) contacted the SIU and reported the following:

On December 10, 2019, at approximately 2:37 a.m., the Complainant attended his estranged wife’s residence in White River, threw an object through a front window and fled the scene.

A couple hours later, at approximately 7:30 a.m., the Complainant called his estranged wife on the phone and threatened to kill her and their daughter. The estranged wife called the OPP and an investigation was commenced. The OPP attended the Complainant’s residence and established that he was inside.

The Complainant began to taunt the police officers on scene but would not come out of his residence. The OPP waited the Complainant out until 6:10 a.m., this date, when he emerged from the residence carrying beer cases in front of him to shield himself from any Conducted Energy Weapon deployment.

The Complainant walked to the end of the driveway and again began taunting the police officers. When the police officers attempted to apprehend the Complainant, he ran back towards the house and an Anti-Riot Weapon ENfield (ARWEN) [1] was deployed three times. The Complainant was observed to smash his right arm against the door frame of the front door as he tried to get back into the house.

Police officers were able to apprehend the Complainant before he could close the door. The Complainant complained of pain to his arm and was transported to hospital in Wawa.

The Complainant was diagnosed with multiple fractures to his right arm.

The OPP were holding the scene and had the ARWEN secured.

The Team

Number of SIU Investigators assigned: 1
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW Not interviewed [2] 

Witness Officers

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


Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The scene – the driveway of an address in White River - was examined by an SIU Forensic Investigator. The scene was photographed, and items were collected, including four spent ARWEN cartridges and two ARWEN projectiles.

Physical Evidence


Figure 1 - The SO's ARWEN.

Figure 1 - The SO's ARWEN.


Figure 2 - The four ARWEN cartridges collected from the scene.

Figure 2 - The four ARWEN cartridges collected from the scene.


Figure 3 - The two ARWEN projectiles collected from the scene.

Figure 3 - The two ARWEN projectiles collected from the scene.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Feeney warrant; and
  • Notes of the witness officers.

Materials obtained from Other Sources

The Complainant’s medical records were also obtained and reviewed.

Incident Narrative

The following scenario emerges from the weight of the reliable evidence gathered by the SIU in its investigation. On December 10, 2019, OPP officers began to converge at the Complainant’s home following complaints from a woman that the Complainant had threatened to kill her and her daughter. A Feeney warrant was obtained by the police authorizing the Complainant’s arrest and the officers’ entry into his dwelling-house to take him into custody.

With officers outside his home, the Complainant taunted the police but refused to emerge from the residence. Rather than force their way inside, the OPP decided to bide their time while maintaining containment around the residence. The standoff continued through the night.

Emergency Response Team officers began arriving at the scene the morning of December 11, 2019. Among their ranks was the SO, who was equipped with an ARWEN.

Shortly after 6:00 a.m., the Complainant emerged from a door of his house. He carried empty beer cases around his body and walked down his driveway toward officers taunting them in the process. At one point, the Complainant slipped and fell on some ice. A number of officers moved in to arrest him but were unsuccessful. The Complainant managed to get back up and retreat into his home. As he did so, his backside was struck by several rounds fired from the SO’s ARWEN.

Once inside, the Complainant began to damage property in the home. Eventually, the Complainant exited the home, surrendered to the police and was arrested without further incident.

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

On December 11, 2019, the Complainant was diagnosed with a fractured right arm following his arrest by members of the OPP at an address in White River. His arrest followed a standoff with police that started the day before. In the course of that standoff, the Complainant was struck several times by rounds discharged by the SO’s ARWEN. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the incident.

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’s detention and arrest were lawful. The Complainant had thrown an object through the window of his ex-girlfriend’s residence and then proceeded to call and threaten her and her daughter with death. Accordingly, the police had grounds to detain him as they surrounded and contained his home. They also had grounds to take him into custody based on a Feeney warrant that had been issued early in the morning of December 11, 2019.

With respect to the ARWEN rounds that were fired at the Complainant, I am satisfied they did not constitute excessive force. The Complainant had emerged from his home belligerent and threatening the officers. In the circumstances, the police had good reason to believe he would not be arrested peacefully. They were also wise to want to end the standoff at the first reasonable opportunity. Such an opportunity presented itself when the Complainant left the home and walked toward the officers. Regrettably, the plan to deploy the police dog fell through when the dog failed to confront the Complainant, who had slipped and fallen on some ice, leaving the Complainant time to gather himself and head back inside. Not wanting to lose the moment to take the Complainant into custody before he made it back inside and realizing that the officers were not in position to engage him physically, the SO, reasonably in my view, fired his ARWEN. Though several rounds met their mark, none of them felled the Complainant, who retreated indoors.

At the end of the SIU investigation, the cause of the Complainant’s broken right arm remains somewhat of a mystery. While the likeliest scenario suggests he injured himself inside the home after being struck by the ARWEN rounds, the possibility that one or more of the SO’s ARWEN discharges caused or contributed to the fracture cannot be dismissed. Be that as it may, as I am satisfied that the use of the ARWEN fell within the range of what was reasonably necessary in an effort to effect a lawful arrest, there is no basis for proceeding with criminal charges against the SO and the file is closed.


Date: May 19, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) An ARWEN is designed to fire rounds made of plastic or other less lethal materials. [Back to text]
  • 2) The CW was not interviewed because they did not witness the incident. [Back to text]