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SIU Director’s Report - Case # 19-OCI-281

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 a serious injury sustained by a 28-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 23, 2019 at 11:10 a.m., the North Bay Police Service (NBPS) notified the SIU of the Complainant’s injury.

The NBPS reported that on November 20, 2019, at approximately 10:30 a.m., the Subject Officer (SO) observed the Complainant operating a pickup truck. The SO was aware that the Complainant had a current court order prohibiting him from operating a motor vehicle. The SO followed the Complainant to the parking lot of a Canadian Tire store. He then parked his unmarked police vehicle behind the Complainant’s pickup truck and attempted to arrest the Complainant. A struggle ensued between the Complainant and the SO. The Complainant managed to drive his pickup truck out of the parking lot and fled.

On November 22, 2019, at 10:08 p.m., the Complainant was located and arrested in Bonfield. He told the police officers that he had injured his hand as a result of his interaction with a police officer on November 20, 2019.

The Complainant was subsequently transported to North Bay Regional Health Centre (NBRHC) and diagnosed with a fracture to his left hand. 

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

WO Interviewed

The notes from eight other police officers were also obtained and reviewed.


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located at the parking lot of the Canadian Tire store, located at 890 McKeown Avenue in North Bay.

The SIU investigators conducted a canvass for Closed-Circuit Television recordings within the area and found none.

Video/Audio/Photographic Evidence


Cellular Video Recording #1


The SIU received and reviewed the cellular video recordings from a civilian. The video recordings started at 10:43 a.m. and depicted the following:

  • A white-coloured Chevrolet pickup truck [later identified as the Complainant’s vehicle] reversed out of a parking spot and collided with a blue Kia Sportage [later identified as the SO’s unmarked police vehicle] parked behind it.
  • The Complainant drove his pickup truck forward, before he reversed it at a high rate of speed and again collided with the SO’s vehicle. A man [later identified as the SO] stood near the front driver’s side door of the pickup truck.
  • The pickup truck then drove away from the parking lot.


Cellular Video Recording #2


Another civilian recorded part of the incident on her cellular phone; this was identical to Cellular Video Recording #1 and did not have any information to further this investigation.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NBPS:
  • NBPS Witness Statement (x5);
  • Disclosure Log;
  • Cellular Video Recordings;
  • Notes of the WO, the SO; and eight undesignated officers;
  • Occurrence Brief;
  • Scene Photographs of Canadian Tire parking lot; and
  • Scene Photographs – the Complainant’s vehicle.

Materials obtained from Other Sources

In addition to the materials obtained from the NBPS, the following materials were obtained and reviewed:
  • NBRHC Medical Records.

Incident Narrative

The material events in question are relatively clear on the evidence collected by the SIU, which included interviews with the Complainant, the SO and a couple of civilian eyewitnesses. The investigation also benefitted from video recordings of part of the incident captured by the cell phones of two civilians. In the morning of November 20, 2019, the SO observed the Complainant operating a pickup truck in violation of a driving prohibition. The officer followed the Complainant into the parking lot of the Canadian Tire on McKeown Avenue, parked his unmarked vehicle behind the pickup truck, and made his way to the driver’s door intending to effect an arrest. At the sight of the SO, the Complainant placed his pickup into gear, reversed a couple of times, striking the SO’s vehicle in the process, and drove away. The Complainant was arrested two days later, at which time he claimed that the SO had injured his left hand during their encounter on November 20, 2019.

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 November 20, 2019, the Complainant broke a bone in his left hand while escaping from arrest at the hands of the SO of the NBPS. 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 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 required or authorized do by law. It is apparent that the Complainant was unlawfully operating a motor vehicle in breach of a court order and was subject to lawful arrest.

I am further satisfied that the force used by the SO against the Complainant did not exceed the ambit of what was lawful in the circumstances. The precise nature and extent of the force remains unclear. According to the SO, the only contact he would have had with the Complainant would have been inadvertent, as he reached into the cab of the truck to try and remove the key from the ignition. In contrast, there is contradictory evidence suggesting he grabbed hold of the Complainant’s left arm. This evidence further suggests that the officer may have struck the Complainant’s left hand with an object or grabbed it in a manner that caused it to break just before he was able to free himself and drive away. On either rendition, I am unable to reasonably conclude that the SO used more force than was necessary. As the violent and repeated collisions between his truck and the vehicle behind him amply attests, the Complainant had made it clear he was not about to surrender peacefully. On this record, I am satisfied that the SO was within his rights in trying to immobilize the pickup, unintentionally making contact with the Complainant in the process, or grabbing hold of the Complainant’s left arm. As for the allegation that the officer may have struck the Complainant’s hand with an object or grabbed his left hand in such a way as to break it, these were speculations that are incapable of giving rise to a reasonable belief of excessive force on the part of the officer.

In the final analysis, though it appears that the Complainant might well have sustained his injury in the brief skirmish that occurred between him and the officer before he made good his escape, there is no reasonable basis to conclude that the SO acted other than lawfully throughout their encounter. Accordingly, there are no grounds for proceeding with charges in this case against the officer, and the file is closed.


Date: June 8, 2020
Electronically approved by

Joseph Martino
Director
Special Investigations Unit