Cruiser and motorbikeCruiser accidentRunners
thick blue gradient line

SIU Director’s Report - Case # 20-PCI-068

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 38-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On March 31, 2020, at 1:02 p.m., the Ontario Provincial Police (OPP) reported an injury to the Complainant of North Bay.

The OPP advised that on March 30, 2020, at 6:37 p.m., the Complainant was arrested on outstanding warrants near his residence. When Subject Officer (SO) #1 attempted to arrest the Complainant, the Complainant fled on foot and was chased by SO #1. The Complainant fell and, as SO #1 attempted to arrest the Complainant, a struggle ensued. The arrest took place at Sixth Street North and Cassells Street in North Bay.

The Complainant was lodged at the North Bay Detachment of the OPP overnight. In the morning, the Complainant complained of a sore shoulder while he was fingerprinted. The Complainant was taken to the North Bay Regional Health Centre (NBRHC) at 11:21 a.m. and diagnosed with a fractured clavicle.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 38-year-old male interviewed


Civilian Witnesses

CW Efforts were made to locate the CW without success.

Witness Officers

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


Subject Officers

SO #1 Interviewed and notes reviewed
SO #2 Interviewed and notes reviewed


Evidence

The Scene

The incident took place on the front lawn of 1108 Cassells Street in North Bay, which was on the north side of Cassells Street east of 6th Avenue West.

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 sources:
  • Booking and Cell Video.


Booking and Cell Video


The booking and cell video were reviewed and found to have no investigative value regarding the cause of the Complainant’s injury.

Police Communications Recordings

The communications audio was reviewed and found to have no investigative value regarding the cause of the Complainant’s injury.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Arrest Report;
  • Communications Audio;
  • General Report;
  • Notes-All WOs;
  • Notes-Both SOs;
  • Cell and Booking Video;
  • Prisoner Custody Report-the Complainant;
  • Prisoner in Custody Medical Assessment Record-the Complainant;
  • Report to Justice-WO #2; and
  • Tele-warrant to Search.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, both subject officers and three witness officers. In the morning of the day in question, officers with the OPP’s North East Region Community Street Crime Unit (CSCU) convened in North Bay with a view to arresting the Complainant on drug possession and trafficking charges. The day before, they had obtained a warrant under the Controlled Drugs and Substances Act (CDSA) to search the Complainant’s home on Percy Street. Because of concerns that the Complainant might be armed with a handgun, the officers sought and received an extended period of time within which to execute the warrant to accommodate tactical contingencies to ensure the officers’ safety. The officers, in plainclothes and unmarked vehicles, staked out the area. It was their plan to arrest the Complainant once he stepped out of the house. While many persons came and went, in what the officers presumed to be drug transactions within the home, the Complainant was not seen leaving the residence until later in the day.

Shortly before 6:30 p.m., the Complainant, in the company of a female, exited the home on Percy Street and travelled on foot eastward on the north sidewalk of Cassells Street. As the Complainant did so, he was observed by undercover officers with the CSCU. The team’s supervisor, SO #1, called for the Complainant’s arrest as he crossed 6th Avenue West.

SO #2 pulled up in his vehicle into a driveway east and ahead of the Complainant as SO #1 came to stop in the westbound lanes of Cassells Street behind the Complainant. Following a brief struggle on the ground, the Complainant was handcuffed and taken into custody by the officers. A search of the Complainant’s person at the scene revealed he was in possession of controlled substances.

The following morning, after spending the night in cells at the OPP’s North Bay Detachment, the Complainant was taken to hospital and diagnosed with a broken clavicle.

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 evening of March 30, 2020, the Complainant suffered a fractured clavicle in the course of his arrest in North Bay at the hands of several OPP officers. SO #1 and SO #2 were among the arresting officers and identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject officer 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 CDSA search warrant that was obtained and the information in the possession of the CSCU, I accept that SO #1 and SO #2 had lawful grounds to seek the Complainant’s arrest. The real issue is with the propriety of the force used to take the Complainant into custody, an issue made more interesting by the discrepant evidence about the officers’ force that the SIU had to deal with.

One strand of evidence indicates that the Complainant essentially froze when confronted by the officers and was quickly tackled to the ground by one or more of them. For his part, SO #1 says that the Complainant reacted to the officers’ presence by running westward. The Complainant had taken two to three steps, says SO #1, before he fell onto a section of lawn beside the sidewalk. With SO #2’s assistance, SO #1 was able to handcuff the Complainant on the ground following a brief struggle. SO #2 confirms that the Complainant ran away from him upon being confronted, whereupon the officer was able to briefly grab hold of his right arm before he fell. According to SO #2, he too fell, though he was not sure if his tumble occurred simultaneously with the Complainant’s. As with SO #1’s rendition of events, SO #2 says that there was a short struggle on the ground with the Complainant before he was handcuffed. SO #1, SO #2, and the more incriminatory evidence agree that no blows of any kind were struck by SO #1 or SO #2.

In my view, I need not resolve the contest in the evidence as I am prepared to proceed on the basis of the most incriminating evidence. In the moments leading to the takedown, the Complainant had not given the officers any overt reason to believe that his arrest would be violent or contentious. Arguably, his takedown in the circumstances may appear precipitous and heavy-handed. However, this is not the whole story. The officers had reason to believe that the Complainant was in possession of a handgun. In fact, that was precisely the reason they chose to wait the better part of a day to arrest the Complainant when he stepped outside his home where they believed they could better manage the threat of a weapon. Considered in this context, the officers were within their rights in seeking to immediately neutralize that threat by taking the Complainant to the ground as quickly as possible.

In the result, while the Complainant’s fall to the ground in the course of his arrest was the likely cause of his injury, I am unable to reasonably conclude that the officers acted other than lawfully throughout this incident. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: July 14, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit