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SIU Director’s Report - Case # 20-PCI-066

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 the injury that a 42-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On March 26, 2020, at 4:37 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

The OPP advised that on March 26, 2020, at 7:00 a.m., OPP police officers responded to a break and enter (B&E) call in progress on Talbot Street in Leamington, Ontario. The location was a medical cannabis production plant and two men were trying to get in.

Upon arrival, witness officer (WO) #1, the Subject Officer (SO) and WO #2 found a man [now known to be the Complainant] sitting on the ground being held by workers of the plant. The Complainant told the police officers his right arm was broken. The police officers tried to handcuff the Complainant and he resisted. Subsequently, one of the police officers struck the Complainant and the Complainant relented and was handcuffed.

An ambulance was requested, and the Complainant was transported to the hospital. At the hospital, the Complainant was assessed and diagnosed with a fractured right forearm. He was released from police custody and the police officers left the hospital.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 42-year-old male interviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

Witness Officers

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


Subject Officers

SO Interviewed and notes reviewed


Evidence

The Scene

The incident occurred on the exterior premises of a cannabis growing operation on Talbot Street West in Leamington, Ontario. The scene was not held and, therefore, no scene examination was done.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following source:
  • The cannabis growing operation’s security video.

Cannabis Growing Operation’s Security Video:


  • At 6:58:07 a.m., two men ran out of a bunkhouse. One man appeared to be chasing another;
  • At 6:58:09 a.m., four men were running. In total, there appeared to be six men, with some waiting near a doorway;
  • At 6:58:31 – 6:58:48 a.m., two all-terrain vehicles (ATVs), believed to be security forces from the growing operation, made their way into the field leading to the bunkhouse. There was lots of activity near the ATVs, but due to the distance, the action was indiscernible;
  • At 7:07:19 – 7:07:33 a.m., an SUV police cruiser entered the field on its way to the bunkhouse and a second SUV police cruiser made its way into the field.

Police Communications Recordings

The recordings had no bearing on this case since they did not address when or how the Complainant received his injury.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • The Complainant’s Release Document;
  • Event Chronology;
  • Police Audio Recordings of the incident;
  • Notes-the SO;
  • Notes-all WOs;
  • Scenes of Crime Officers Photos;
  • Synopsis of Civilian Audio Statements; and
  • Witness Statements from members of the cannabis growing operation’s security team.

Materials obtained from Other Sources

In addition to the materials received from the OPP, SIU obtained and reviewed the following materials from other sources:
  • The cannabis growing operation’s security video.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, the SO, and several civilian and police eyewitnesses. At about 7:00 a.m. on March 26, 2020, WO #3 and the SO, WO #1 and WO #2 were dispatched to the premises of a medical cannabis growing operation situated on Talbot Street West. They had been sent following calls reporting that the Complainant had been caught breaking and entering into the business.

The officers arrived to find the Complainant in rough shape. He had been confronted by workers at the facility, who had accused him of theft and chased him down when he tried to flee on his bicycle. Several workers had knocked the Complainant off his bike and then fought with him on the ground. The Complainant was still on the ground, surrounded by the workers and security personnel, when the police moved in to arrest him. In the course of his arrest, the Complainant was punched and kneed a number of times by a couple of officers before he was handcuffed.

The Complainant was taken to hospital from the arrest scene and reportedly diagnosed with a fractured right arm. Allegations that the Complainant had suffered fractured ribs at the hands of the police could not be confirmed because the Complainant’s medical records, which would have revealed the precise extent of the Complainant’s injuries, were not released to the SIU.

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 265 (1), Criminal Code -- Assault

265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.

Analysis and Director's Decision

The Complainant was arrested in Leamington by OPP officers on March 26, 2020 and subsequently taken to hospital where he was diagnosed with a fractured right arm. The SO was 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. Based on the information they had received on dispatch and what they gathered at the scene upon speaking with the marijuana growing operation’s workers and security guards, I am satisfied that the officers had grounds to arrest the Complainant for theft and break and enter. The real question is whether the officers and, in particular, the SO, overstepped in the amount of force they used to take the Complainant into custody.

Multiple sources, including the officers, paint a similar if not identical picture of the force used by the officers. The officers’ evidence indicates that the SO punched the middle of the Complainant’s back six or seven times while he was on the ground at about the same time as WO #1 was delivering a couple of knee strikes to the Complainant’s right leg. Another account of this confrontation asserts that the officers, none of whom were identified, beat the Complainant with a series of punches and kicks. Where their accounts materially differ is with respect to the alleged passivity of the Complainant throughout their interaction on the ground. According to the officers, the Complainant struggled with the officers as they attempted to place him in custody and, in particular, refused to release his left arm to be handcuffed.

If true, the evidence that the Complainant was passive would leave the SO open to an assault-based charge; however, I am not satisfied that this evidence is sufficiently reliable to warrant it being put to the test by a court. I arrive at this conclusion based principally on the conflict in the evidence relating to whether the Complainant was ever inside the bunkhouses that housed the migrant workers on the morning of the incident. Whereas the evidence suggesting the Complainant was passive also claims that the Complainant was not in the bunkhouse, another account claims that one of the workers had confronted the Complainant and an associate inside the residence before the Complainant and the Complainant’s associate both exited and attempted to flee. The video recording captured by a security camera in the area also suggests that the Complainant was inside the bunkhouse. This evidence is particularly corrosive of the claim that the Complainant was passive, as it undermines a fundamental aspect of that narrative; namely, that the Complainant was not on the premises committing a crime. On this record, it would be unwise and unsafe to rest charges on the strength of allegations about the Complainant’s passivity alone. The injuries he purportedly suffered are not enough to corroborate this story in which he was a passive and harmless victim of potentially illegal assaults as they were not confirmed by any medical records (which the SIU failed to receive) and might well have been inflicted by the workers prior to the officers’ arrival.

In the result, one is left with a record in which the Complainant resisted his arrest and was met with a series of quick punches to the back and two knee strikes to the right leg before he was subdued and handcuffed; no blows were struck after the Complainant was restrained. While the number of punches were perhaps at the upper end of the range of what was permissible in the circumstances, I am unable to reasonably conclude that they transgressed the limits of the law.

For the foregoing reasons, whether the officers injured the Complainant in their encounter, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: June 22, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit