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SIU Director’s Report - Case # 20-PCI-034

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 39-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On February 9, 2020, at 11:23 a.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

The OPP advised that on February 9, 2020, shortly after midnight, two OPP police officers attended the Complainant’s residence for a noise complainant. Upon arrival, the police found the Complainant throwing items out of his apartment window. The Complainant answered his door to the police officers and then attempted to slam it shut. One of the police officers stopped the Complainant from closing the door and the Complainant spat at the police officer. The Complainant was arrested and taken to Hawkesbury District General Hospital (HGH) suffering from a possible drug-induced psychosis.

The Complainant was released back into police custody and lodged at the Hawkesbury OPP Detachment. Witness Officer (WO) #2 was in the process of releasing the Complainant when he complained of a sore elbow. The Complainant was taken back to HGH where it was determined the Complainant had suffered a fractured elbow. He was released from hospital back into police custody and returned to the detachment.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

39-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

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

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Police Employee Witnesses

PEW Interviewed


Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.
SO #2 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

The scene was in the area of the front door to an apartment unit at an address on Abbott Street in Hawkesbury. Forensic investigators were not dispatched to the scene and the scene was not examined.

Police Communications Recordings

The recordings took place on February 9, 2020 and captured the following:

At 12:18:27 a.m., CW #2 called police to report a noise complaint;

At 12:24:50 a.m., the dispatcher advised the location of the noise complaint was identical to the location attended by police officers the previous day;

At 12:24:56 a.m., the dispatcher reported that a man [now determined to be the Complainant] was throwing things from his apartment;

At 12:28:53 a.m., a police officer reported the Complainant was in police custody;

At 12:29:07 a.m., the dispatcher received information that a police officer [now determined to be SO #1] was spat on in the face;

At 12:29:48 a.m., a supervisor was notified of the incident and was heading to the scene;

At 12:32:55 a.m., police officers at the scene reported that the Complainant was resisting his arrest;

At 12:38:10 a.m., the Complainant was placed in the backseat of a police cruiser;

At 12:38:48 a.m., SO #1 advised he was going to the hospital;

At 12:45:17 a.m., SO #1 and SO #2 were taking the Complainant to the hospital;

At 12:47:34 a.m., SO #1 and SO #2 were out at the hospital;

At 1:04:18 a.m., the dispatcher was on the phone talking to CW #1 and reported CW #1 saying that the Complainant was her boyfriend; and

At 1:18:39 a.m., WO #1 advised the dispatcher they would talk to CW #1.

Video/Audio/Photographic Evidence


OPP Cell Video


The recording had a date stamp of February 9, 2020. It was in colour but did not have any audio. The recording captured the following:

Cell 2

Starting at 3:50:32 a.m., the Complainant was brought into the cell by police officers. He wore blue jeans, a grey, hooded sweatshirt and a jacket pulled down to his elbows. A spit hood covered his mouth area. The Complainant was handcuffed with his hands behind his back. A police officer (Police Officer 1) removed an unbuckled belt from the Complainant’s pants. The Complainant paced around the cell, appearing to be in an agitated state;

Starting at 4:45:55 a.m., two police officers (Police Officer 2 and Police Officer 3) entered the cell area. The Complainant’s handcuffs were removed. The police officers appeared to struggle to unlock the handcuffs. The Complainant did not appear to be in any pain as the handcuffs were being removed. As the Complainant tried to remove his outer jacket, he appeared to favour his left arm and the police officers helped him remove his jacket. Police Officers 2 and 3 conducted a pat down search of the Complainant inside the cell. For the next few hours, the Complainant was captured repeatedly moving both of his arms around. He undressed and dressed himself several times, using both his arms without any apparent difficulty. The Complainant’s elbow was captured in the video and it did not appear to be discoloured or bruised;

Starting at 9:07:02 a.m., the Complainant began to show obvious signs of discomfort in his left arm;

Starting at 9:30:35 a.m., a police officer [now known be to WO #2] opened the cell door and inspected the Complainant’s elbow. The Complainant was handcuffed with his hands in front of his body; and

Starting at 9:32:35 a.m., the Complainant was escorted out of the cell by police officers.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Communication Recordings;
  • Computer-Assisted Dispatch - Event Details;
  • Notes of the WOs and SOs;
  • OPP Witness List - Civilian;
  • OPP Cell 2 Video; and
  • OPP Prisoner Security Check.

Materials obtained from Other Sources

The following records were obtained from other sources:
  • Medical Records-HGH; and
  • Medical Records-Montfort General Hospital.

Incident Narrative

The following scenario emerges on the weight of the evidence collected by the SIU, which included interviews with the Complainant and a witness officer who was present at the time of the arrest. While neither subject officer, as was their right, interviewed with the SIU, SO #1 and SO #2 did provide a copy of their notes of the incident. At about 12:25 a.m. of February 9, 2020, SO #1 and SO #2, in the company of WO #1, arrived at the door to the Complainant’s apartment at an address on Abbott Street, Hawkesbury. They were there following a call to police reporting a disturbance in the apartment. The Complainant had been playing music very loudly and was throwing objects outside through his window.

SO #1 and SO #2 attempted to speak with the Complainant, but he was not interested. Instead, he attempted to shut the apartment door on the officers. SO #2 reacted by using his foot to keep the door open. Further efforts to speak with the Complainant ended abruptly when the Complainant spat on SO #1. SO #1 and SO #2 reacted by taking hold of the Complainant and forcing him to the floor. There ensued a short struggle on the ground ending with the Complainant in handcuffs. Following his arrest, the Complainant was escorted outside and led to a cruiser, where he was searched by SO #2.

The Complainant was taken from the scene of his arrest to hospital to be assessed as the officers had concerns with his fitness for custody. He was subsequently taken to the detachment and lodged in a police cell. At about 9:30 a.m., after complaining of pain in his left elbow, the Complainant was again taken to hospital, where he was diagnosed with a fractured left elbow.

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 hours of February 9, 2020, the Complainant was arrested by OPP officers of the Hawkesbury Detachment. He was subsequently taken to hospital by the police, where he was diagnosed with a broken left elbow. SO #1 and SO #2 were among the arresting officers and identified as the subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either 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. SO #1, SO #2 and WO #1 were lawfully at the Complainant’s door in response to a noise complaint. Thereafter, when the Complainant intentionally spat on SO #1, he was subject to arrest for assault. [1] The issue turns to the propriety of the force used by the officers.

Having been confronted by the Complainant in a hostile fashion at the front door, and knowing full well that he was in an agitated state and had been throwing objects out his window, SO #1 and SO #2 acted reasonably in forcing the Complainant onto the floor as soon as he spat on SO #1. In that position, the officers would have a relative advantage with which to better manage any further resistance on the part of the Complainant. The Complainant did struggle while on the floor, but was quickly overpowered by SO #1 and SO #2, and handcuffed. There is no evidence of the Complainant having been struck at any time by the officers. On this record, I am satisfied that the force used by the officers was commensurate with the Complainant’s behaviour and fell within the range of permissible force in the circumstances.

In the result, while it may well be that the Complainant broke his left elbow when he was grounded or handcuffed by the officers, I am unable to reasonably conclude that the officers acted other than lawfully in taking the Complainant into custody. Accordingly, there is no basis for proceeding with criminal charges against either of SO #1 and SO #2 in relation to the Complainant’s injury, and the file is closed.



Date: June 23, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) As the arrest took place in the area of the threshold of the door to the apartment, the issue arises whether the arrest took place in the Complainant’s dwelling-house. Pursuant to R. v. Feeney, [1997] 2 SCR 13 in the absence of permission or exigent circumstances, police officers cannot lawfully enter a dwelling-house to effect an arrest without judicial pre-authorization. While the officers had no such authorization, whether the arrest happened in the apartment or outside on the landing in front of the door is unclear on the evidence. In the circumstances, I am unable to reasonably conclude that the officers were inside the apartment unlawfully when they arrested the Complainant. [Back to text]