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SIU Director’s Report - Case # 20-OVI-044

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 injuries that a 61-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On February 26, 2020 at 8:33 a.m., the Ottawa Police Service (OPS) reported an injury suffered by the Complainant. According to the OPS, on February 25, 2020 at 8:40 p.m., OPS officers were dispatched to a domestic incident involving a male chasing a female with a knife on Trenton Avenue, Ottawa. When police officers arrived at Trenton Avenue, the male attempted to stab them with a knife. The officers utilized their police vehicles to pin the male into a snowbank and took him into police custody. The male was later identified as the Complainant. The Complainant was transported by ambulance to the Ottawa Civic Hospital for medical treatment and was later diagnosed with having a fractured rib, chipped vertebrae and an internal stomach injury.

At the time the incident was reported, the OPS indicated that Ottawa was expecting a snow storm. Accordingly, arrangements were made for OPS to take photographs of the scene and secure the scene.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainants

Complainant: 61-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Not Interviewed; next of kin
CW #6 Not Interviewed; next of kin

Witness Officers

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


Subject Officers

SO Interviewed but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The incident took place on the roadway in front of a residential address on Trenton Avenue, Ottawa. The address has a narrow private driveway that runs southbound, which allows access to the back properties of townhouses on Trenton Avenue. Trenton Avenue is a two-way roadway that runs westbound and eastbound. The SO’s police vehicle, a marked OPS SUV, was parked facing eastbound on Trenton Avenue blocking the laneway that enters the Trenton Avenue townhouse complex.

The front passenger side of the SO’s vehicle was against a large snowbank with the passenger door partially open, and a knife with an approximately 30-centimetre blade was found on the front passenger seat. WO #1’s police vehicle was parked in the private laneway, facing southbound. There was a second knife with an approximately 20-centimetre blade located on the ground next to the driver side of a white Kia Soul parked in the south parking lot of the townhouse complex.

The SO’s police vehicle was forensically examined by SIU FI and no frontal collision damage was found.

Forensic Evidence


The Global Positioning Satellite (GPS) Data from the SO’s Police Vehicle


The GPS data collected from the SO’s police vehicle were reviewed.

The SO travelled down Parkdale Avenue to the intersection of Parkdale Avenue and Carling Avenue for approximately three kilometres, reaching speeds of 70.7 km/h. The SO turned west to travel on Carling Avenue for a short distance to the intersection of Fisher Avenue where he turned southbound. While on Carling Avenue, for approximately one kilometre, the SO reached speeds of 59.3 km/h. The SO travelled southbound on Fisher Avenue for approximately three kilometres and reached speeds of 62.1 km/h. At the intersection of Emperor Avenue, the SO turned west and travelled less than a kilometre to the intersection of Hollington Street, reaching speeds of 67 km/h. The SO turned south on Hollington Street and travelled less than two kilometres to the intersection of Trenton Avenue, where he turned east.

The GPS data showed that the SO travelled eastbound on Trenton Avenue for a short distance where he reached speeds of 18 km/h. The recorded speed of 18 km/h is believed to be the speed at which the Complainant was struck by the SO’s police vehicle. [In the SO’s interview, he indicated he was traveling approximately 20 km/h when he struck the Complainant. He reached this speed while travelling less than about nine metres from a stopped position, which was substantiated by the GPS data.]

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Police Communications Recordings

At 8:39:39 p.m., information was transmitted that a female (CW #5) was currently safe at a neighbour’s house.

At 8:43:52 p.m., information was transmitted that the Complainant went after his wife and son with a knife.

At 8:48:03 p.m., information was transmitted that the Complainant had two large kitchen knives.

At 8:51:16 p.m., information was transmitted that the Complainant was going toward WO #1 with a knife and that the officer was still in his cruiser.

At 8:52:37 p.m., information was transmitted that the Complainant was down.

At 8:52:47 p.m., information was transmitted that the SO had struck the Complainant with his cruiser.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPS:
  • General Occurrence report;
  • OPS Policy Use of Force;
  • OPS Scene Photographs and Scene Diagrams;
  • Narrative Text Hardcopy-WO #4;
  • Notes-All WOs;
  • GPS data from the SO’s police vehicle;
  • Will State-All WOs; and
  • Witness Information List.

Materials obtained from Other Sources

In addition to the materials received from the OPS, SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records.

Incident Narrative

The material events in question are relatively clear on 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 8:45 p.m. on February 25, 2020, the SO, in the company of his partner, WO #2, arrived at an address on Trenton Avenue. They were there following a call to police reporting that a male – the Complainant – had threatened his daughter with a knife. The officers parked their vehicle curbside facing east just west of the driveway running adjacent to the address – a residential complex – and exited. Shortly after, a cruiser operated by WO #1 reversed out of the driveway such that it was nose-to-nose with the SO and WO #2’s cruiser and facing west on the east side of the driveway. WO #1 shouted a warning to the officers that the Complainant was in the vicinity and armed with a knife.

The Complainant, holding a knife in his right hand with a blade about 30 centimetres in length, approached the driver’s side of WO #1’s cruiser and swung the knife at the officer through the partially open driver’s-side window. WO #1 was not struck and closed his window fully.

Concerned for the safety of WO #1, the SO and WO #2 drew their firearms. The Complainant then turned his attention on the SO and began to move in the SO’s direction with the knife raised in his right hand while shouting that he wanted to be shot. The SO walked backward toward his cruiser and decided against discharging his weapon given the potential for a stray bullet striking third parties in the residential neighbourhood. The SO and WO #2 re-entered their cruiser as the Complainant was about 3.5 metres from the vehicle.

The SO decided to use his vehicle as a weapon. The cruiser accelerated forward, and its front right bumper collided with the Complainant. The impact felled the Complainant and dispossessed him of the knife. WO #1 exited his cruiser and handcuffed the Complainant without further incident.

The Complainant was taken from the scene to hospital, where he was diagnosed with multiple rib fractures.

Relevant Legislation

Section 25, 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.

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservations of any one under that person’s protection from death or grievous bodily harm.

Section 34, Criminal Code -- Defence of person - Use of threat of force

34 (1) A person is not guilty of an offence if
(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 
(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) The act committed is reasonable in the circumstances.

Analysis and Director's Decision

In the evening of February 25, 2020, the Complainant was struck and injured by an OPS cruiser on the roadway outside his residence in Ottawa. The SO, the driver of the cruiser, 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 injuries.

Whether considered pursuant to sections 25(3) or 34 of the Criminal Code, I am satisfied that the force used by the SO was lawful. The former governs the use of force by police officers in the course of their duties that is intended or likely to cause grievous bodily harm or death. [1] Such force will not be justified unless the officer reasonably believed it was necessary to protect him- or herself, or another, from death or grievous bodily harm. The latter regulates the use of force in the defence of oneself or another from a reasonably apprehended attack. It requires that such force be limited to that which is reasonable in all the circumstances, having regard to such considerations as the nature of the force or threat; the use or threatened use of any weapons; and, the nature and proportionality of the person’s response to the use or threat of force.

I begin by noting that the SO was clearly in the lawful execution of his duty at the time of the incident. The officer was aware from the information broadcast on dispatch that he was responding to a violent situation in which the Complainant had threatened his daughter with a knife. Thereafter, the SO personally observed the Complainant attempting to harm WO #1 with the knife before turning to threaten the SO with it. In the circumstances, there were ample grounds for the officers’ presence and the Complainant’s arrest.

While unconventional, I am also satisfied that the SO’s use of the cruiser to strike the Complainant constituted permissible force. By the time the SO adopted the course he did, there was little doubt he believed the Complainant meant to do him harm with the knife given what he knew of the conflict with his daughter and what he had personally observed. While the SO and WO #2, and, indeed, WO #1, may not have been in any imminent danger at the time given the safety of their cruisers, I am satisfied there was an immediate imperative to neutralize the Complainant lest he turn the knife on a third party who may have been present in the area or, given his utterances as he advanced on the SO, himself. In this regard, it is important to note that the SO, having just arrived on the scene, would not have known whether there was anyone in the residential complex who might be at risk. Retreat or delay, in other words, were not realistic options. Finally, while the use of a motor vehicle was inherently dangerous, the SO was aware of the risk and kept his speed down to no more than 18 km/h at the point of impact.

On this record, I am unable to reasonably conclude that the SO’s tactic fell outside the range of what was reasonably necessary to defend against a potentially lethal attack at the hands of the Complainant and to effect his arrest. In arriving at this determination, I am mindful of the common law principle that officers faced with having to make split-second decisions in highly-charged and volatile situations are not expected to measure their force with precision; what is required is a reasonable response, not an exacting one: R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 CCC (2d) 96 (Ont CA) .

In the final analysis, as I am satisfied there are no reasonable grounds to believe that the SO conducted himself other than lawfully in his encounter with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: July 6, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) While I have proceeded on the presumption that the use of a motor vehicle constituted force that was “likely to cause grievous bodily harm or death,” it is arguable that the SO’s use of the cruiser constituted something less than this level of force given the speed at which he struck the Complainant. In any event, as I am of the view that the SO’s use of lethal force, if it be such, was justified, I would also have found the use of the cruiser, ipso facto, lawful force pursuant to section 25(1) of the Code. [Back to text]