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SIU Director’s Report - Case # 19-OCI-312

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 serious injury that a 47-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On December 31, 2019, at 8:25 a.m., the Ottawa Police Service (OPS) reported that earlier that day, at 1:47 a.m., the Subject Officer (SO) was in the area of 123 Augusta Street where he approached a vehicle with two men in it. The driver of the vehicle, the Complainant, walked away, and the Subject Officer (SO) asked him to stop. The SO smelled alcohol on the Complainant. The Complainant refused to stop, and a struggle ensued. The Complainant was grounded and taken in custody in the area of 233 Augusta Street. He complained of injury and was taken to Montfort Hospital, where he was diagnosed with a broken humerus.

The other occupant of the vehicle was identified as Civilian Witness (CW) #2.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 47-year-old male; declined to provide statement


Civilian Witnesses

CW #1 Not interviewed; did not witness incident but provided video recording
CW #2 Not interviewed; could not be located

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Not interviewed


Subject Officers

SO Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

Due to the weather conditions, arrangements were made for the OPS to photograph the area and secure the closed-circuit television (CCTV) recording.

Video/Audio/Photographic Evidence


Ottawa Housing Security (OHS) Video


The SIU obtained a copy of the OHS video recording relative to the incident. The following is a summary of the salient portions of the recording, which is dated and time stamped:
  • Starting at 1:44:16 a.m. on December 31, 2019, the recording shows the parking lot of the building located at 123 Augusta Street, Ottawa. The parking lot contains approximately ten snow-covered vehicles, and the ground is covered with snow. There is a bright light from a building illuminating the parking lot, and obstructing the view on the recording;
  • Starting at 1:44:17 a.m., two figures [believed to be the Complainant and the SO] appear on the recording and are moving from the right to the left on the screen;
  • Starting at 1:44:21 a.m., the Complainant and the SO stop moving;
  • At 1:44:36 a.m., the Complainant can be seen again walking away from the SO;
  • Starting at 1:44:38 a.m., the SO grabs the back of the Complainant and attempts to sweep his right leg. The Complainant does not go to the ground and the Complainant turns to face the SO. The SO has a hold of the Complainant’s left arm and pushes the Complainant up against the hood of a parked vehicle. The Complainant is resisting;
  • Starting at 1:44:44 a.m., the Complainant goes to the ground and the SO remains on his feet, bent over at the waist attempting to control the Complainant’s arms;
  • Starting at 1:45:17 a.m., the Complainant is rolling around on the ground, and another OPS officer arrives to assist the SO. This officer appears to punch the Complainant twice;
  • Starting at 1:45:25 a.m., two more OPS officers arrive and assist the SO. The Complainant appears to still be rolling around. One of these officers appears to punch the Complainant once;
  • Starting at 1:45:28 a.m., another OPS officer arrives and engages with the Complainant;
  • Starting at 1:45:34 a.m., another OPS officer arrives and engages with the Complainant;
  • Starting at 1:45:38 a.m., the first officer that arrived to assist the SO disengages from the struggle and heads from the left of the screen to the right. It appears the Complainant has stopped struggling;
  • Starting at 1:45:54 a.m., an officer turns on a flashlight and it appears the Complainant, who is still on the ground, is being searched;
  • Starting at 1:46:04 a.m., all OPS officers disengage from the Complainant and the Complainant remains lying on the ground;
  • Starting at 1:47:20 a.m., the Complainant is picked up off the ground;
  • Starting at 1:47:33 a.m., the Complainant is escorted from the parking lot by officers; and
  • Starting at 1:47:46 a.m., all officers and the Complainant are off screen.

Police Communications Recordings


Summary of OPS Communications Recording


The SIU received several MP3 files containing copies of the OPS communications recordings relative to the incident.
One file contained the radio call from the SO at the commencement of this incident. There was no time stamping on the recording. The following is a summary of the salient portions of the recording. [1]
  • At 0:40 on the counter, the SO indicates he is off with one; and
  • At 0:50 on the counter, the SO says he is in the back of 123 Augusta.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPS:
  • Communication Recordings;
  • Narrative Text Hardcopy (2)-all WOs;
  • Notes-all WOs;
  • OPS Call Hardcopy;
  • OPS General Occurrence Hardcopy; and
  • OPS General Occurrence Hardcopy, Associated Documents.

Materials obtained from Other Sources

In addition to the materials received from the OPS, SIU obtained and reviewed the following materials from other sources:
  • OHS Video.

Incident Narrative

Regrettably, the events in question are less than clear based on the evidence collected by the SIU. While several witness officers gave evidence related to the arrest, which was also captured in a video recording from a security camera in the area, the investigation was largely left in the dark with respect to the circumstances precipitating the Complainant’s apprehension as neither of the two principal players, the SO and the Complainant, gave statements to the SIU (as was their legal right).

Based on second-hand information contained in police records, it appears that the SO was on patrol in the area of 123 Augusta Street, Ottawa, when his attention was drawn to an idling car and two occupants within it. The driver – the Complainant – motioned to the SO but then exited the vehicle and walked away as the SO approached. The SO is reported to have smelled alcohol on the Complainant’s person and attempted to detain him to investigate a possible impaired-driving offence. The Complainant refused to cooperate, continued to walk away and was cautioned by the SO that he was obstructing his investigation. The parties eventually found themselves in the parking lot of the apartment complex at 123 Augusta Street, where a struggle ensued as the SO attempted to arrest the Complainant.

Hearing the SO on the radio indicating that a male was walking away from him, other officers responded to the scene where they found the SO and the Complainant on the ground. In all, six officers, including the SO, became physically engaged with the Complainant. The struggle, consisting in the main of the officers wrestling with the Complainant to secure his arms, was over in short order but not before the Complainant was punched in the face twice by WO #3 and once by another police officer.

Following his arrest, the Complainant was taken to hospital where his fractured arm was diagnosed and treated.

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

In the early morning of December 31, 2019, the Complainant was arrested by several OPS officers, reportedly suffering a broken humerus in the process. The SO was one of 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 required or authorized to do by law. As neither the SO nor the Complainant provided statements to the SIU, as was their right, there is a dearth of information relating to the circumstances preceding the Complainant’s arrest. Second-hand information gleaned from police reports suggests that the SO was attempting to detain the Complainant to investigate him for impaired-driving, and then moved in to effect an arrest for obstruction of justice when the Complainant continued to walk away from him. I am unable on the record to reasonably assess whether the SO had the necessary grounds to lawfully detain the Complainant. If not, then the Complainant was entitled to walk away from the officer and his arrest for obstruction would be unlawful. Given the gaps in the evidence, and the operation of the presumption of innocence, I am left to proceed on the basis that the SO was in the lawful execution of his duty when he sought to arrest the Complainant.

The issue turns to the propriety of the force used by the officers in effecting the Complainant’s arrest. The witness evidence is unanimous to the effect that the Complainant physically resisted his arrest and struggled with the officers as they attempted to secure his arms behind his back. The security camera video recording is corroborative of the witness officers’ evidence to an extent. It depicts a brief struggle between the SO and the Complainant on their feet – no blows are struck – before the Complainant is either taken to the ground by the officer or slips and falls. Thereafter, a half-dozen officers huddle around the Complainant on the ground and not much can be discerned other than two of them – not the SO – appear to each deliver a single right-handed punch. This evidence is roughly congruous with the statements of WO #3 and the other police officer who struck the Complainant, the former acknowledging punching the Complainant twice, the latter, once. On this record, I am unable to reasonably conclude that any of the officers acted with excess when the Complainant was grounded, struck three times and then wrestled into submission given his level of resistance. No further force was used after the Complainant was placed in custody.

In the final analysis, as there is insufficient evidence to suggest that the SO or any of the other involved officers acted unlawfully in their dealings with the Complainant, there is no basis for proceeding with charges in this case notwithstanding the serious injury suffered by the Complainant.


Date: July 6, 2020

Electronically approved

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) The other files contained officer-to-officer communications dealing with the Complainant being transported to hospital, and with having the Complainant’s vehicle towed. [Back to text]