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SIU Director’s Report - Case # 20-OCI-067

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 32-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On March 27, 2020, at 2:58 p.m., the Thunder Bay Police Service (TBPS) notified the SIU of the following.

The TBPS reported that on March 27, 2020 at 1:35 p.m., the Complainant phoned the police station and indicated he had sustained a right wrist fracture as the result of his hands being handcuffed.

On March 24, 2020, at 10:06 a.m., Witness Officer (WO) #3 had conducted a traffic stop and the Complainant was arrested by the Subject Officer (SO) for breach and traffic offences. WO #1 and WO #2 were also present during the arrest.

Upon his arrest, the Complainant said he had a sore right wrist and that his cast had been taken off recently. The Complainant was taken to the hospital for further assessment and was diagnosed with an old and a new fracture to his wrist.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

32-year-old male interviewed


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Notes reviewed, interview deemed not necessary



Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.



Evidence

The Scene

The Complainant was arrested in the parking lot at the Academy Plaza at the northwest side of Beverly Street and Ravenwood Avenue, Thunder Bay.

Police Communications Recordings

The following is a summary of the radio communications that took place on March 24, 2020, just prior to the arrest of the Complainant:

A male police officer, possibly WO #3, requested a CPIC check on the Complainant, who had been seen on Memorial Avenue. The dispatcher advised that the Complainant had a history of theft over and theft of a vehicle, and that he was not to have contact with the CW. The Complainant had a court date on March 23, 2020, but there were no updates listed from that appearance. The Complainant also had a suspended driver’s licence for a Highway Traffic Act (HTA) racing infraction.

A second male police officer, WO #2, asked the dispatcher to be placed on the call. He noted that he was not driving a marked cruiser.

A third police officer, the SO, was asked to locate him at the “Macs [now known to be the Circle K convenience store] at Beverly Street and Ravenwood Avenue” for a traffic stop on a vehicle [now known to be the Nissan Rogue that the Complainant was driving].

About three minutes later, the SO advised that the Complainant was in the back of his cruiser and that he was in custody for breach. The SO also asked the dispatcher if the vehicle that the Complainant was driving was impoundable. The dispatcher reported back that the vehicle was impoundable under the HTA. The Complainant driver’s licence was suspended due to unpaid fines and for racing.

About seven minutes later, the SO advised that he was on his way to the police station with the Complainant.

Video/Audio/Photographic Evidence


TBPS Booking Room Video Summary


The following is a summary of the booking room video after the Complainant was arrested and brought to the station:

At 10:37 a.m., the SO escorted the Complainant into the booking room from the sally port area. The SO directed the Complainant to stand inside a yellow box that was marked on the floor of the room while he took the handcuffs off the Complainant’s hands. At 10:37:52 a.m., as it appeared that the SO was trying to take off the right handcuff, the Complainant began to yell out “Ow, ow, ow,” and then screamed in pain. Once the Complainant’s right hand was released, he brought it up to his face to look at it.

At 10:38:44 a.m., the SO released the Complainant’s left hand from the handcuff and the Complainant could be heard saying something to the effect of “I have a broken hand too.” The SO could be heard saying something to the effect of “How did you manage that?” The The Complainant’s answer was inaudible. At 10:39:25 a.m., the Complainant stretched out his right arm to the SO and said, “That’s where you broke my hand, bro, it’s all fucked up.” As the Complainant walked to get hand sanitizer from the wall dispenser, the SO said something to the effect of, “It wasn’t hard.” The Complainant chuckled and said, “You re-broke my hand, bro. I just got the cast off a week ago… I can’t even make a fist… now I gotta go to the hospital where more people are sick.” While holding onto his right wrist area, the Complainant grunted in pain.

At 10:40 a.m., WO #3, who was leaning over a desk and writing, asked, “Sore wrist?” to which the Complainant answered, “Broken wrist, broken hand. I just got the cast off a week ago, I was supposed to go for another X-ray, but this guy (as he twisted his right wrist to gesture at the SO)…” WO #3 interrupted and stated that it was not broken since he was moving his wrist. The Complainant then said, “Well broken hand and fractured wrist is what I have, and it definitely just re-broke.” The Complainant went on to say the name of his doctor and that he was not on any medication.

Eventually, the Complainant was escorted out of the booking room by the SO and WO #3 and into the cell area.

The Complainant was later escorted out of cell 12 by two uniformed police officers and escorted into the booking room area where he put his shoes back on and was escorted into the sally port. Sometime later, when the Complainant returned into the booking room area, his right arm was in a cast and he was placed back into cell 12.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from TBPS:
  • Arrest sheet – the Complainant;
  • Communication recording;
  • Booking Video;
  • Email - Disclosure and Involved Officers;
  • General Occurrence Report – WO #3;
  • Notes of the WOs and SO; and
  • Supplementary Report by the SO, WO #1 and WO #2.

Incident Narrative

The material events in question are relatively apparent on the evidence collected by the SIU, which included interviews with the Complainant and a civilian witness. Though the SO, as was his legal right, chose not to interview with the SIU, he did provide a copy of his incident notes. In breach of a driver’s licence suspension and a non-communication / no-contact court order with respect to the CW, the Complainant was observed by police to be driving his wife’s car on the day in question in the company of the CW. While the Complainant’s vehicle was parked at a plaza on Beverly Street and Ravenwood Avenue, the SO approached the Complainant and took him into custody. The process involved affixing the Complainant’s arms in handcuffs behind his back.

Following his arrest, the Complainant was taken to the police station, where he complained of pain and indicated that his right hand had been broken in the handcuffing process. He was subsequently transported to hospital, where the injury was reportedly confirmed.

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 morning of March 24, 2020, the Complainant was arrested by the SO of the TBPS and suffered a fractured right hand in the process. 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 on the job provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. There is no question that the Complainant was subject to lawful arrest for being in breach of a non-communication / no-contact court order with respect to the CW. Nor is there much of a question regarding the propriety of the force that the SO used to place handcuffs on the Complainant. By all accounts, the Complainant cooperated fully with his arrest and, aside from the officer taking hold of the Complainant’s hands and maneuvering them in the handcuffing process, little if any force was used by the officer. Regrettably, while it appears that the Complainant’s right hand was broken at this time, perhaps the result of the same hand being particularly susceptible to injury as it was newly healed from a previous fracture, I am unable to reasonably conclude that the SO acted with excessive force.

In the result, as I am satisfied that the SO acted lawfully throughout his dealings with the Complainant, there are no grounds to proceed with charges against the officer and the file is closed.

Date: June 8, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit