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SIU Director’s Report - Case # 20-PCI-037

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 injury that a 28-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On February 13, 2020, at 2:50 p.m., [1] the Ontario Provincial Police (OPP) reported that on February 11, 2020, at 3:53 a.m., four OPP officers responded to a domestic dispute at an address on Fish House Road in Pikangikum. The police officers attempted to arrest the Complainant for domestic-related offences, and he resisted. The four police officers were in a prolonged struggle to subdue the Complainant, and eventually handcuffed and transported him to the OPP detachment.

Later that day, the Complainant was about to be transported to court and one of his wrists was swollen. He was taken to Pikangikum Nursing Station (PNS) and a temporary cast was applied. The Complainant was then taken to Kenora District Jail and transferred to Lake of the Woods Hospital (LOTWH) in Kenora.

The OPP advised that the hospital staff refused to provide any information about the Complainant’s injury. According to the OPP, it had received information that one of the Complainant’s wrists was fractured earlier in the day.

The Complainant was to be transferred to a hospital in Winnipeg for treatment at a fracture clinic.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 28-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed


Subject Officers

SO Interviewed and notes reviewed


Evidence

The Scene

The scene was located at an address on Fish House Road in Pikangikum, Kenora, Ontario.

Video/Audio/Photographic Evidence


Sally Port Closed-circuit Television (CCTV) Recording


The OPP provided a copy of the CCTV recording from the sally port at the Pikangikum Detachment on February 11, 2020. There was no audio on the recording.

At 5:26:27 a.m., a Pikangikum police pickup truck was in the sally port. WO #2, the SO, WO #1 and WO #3 were in the sally port. At 5:27:11 a.m., WO #1 opened the back passenger door. At 5:28:40 a.m., an office chair was placed beside the back passenger door. WO #1 put the Complainant onto the office chair and pushed the chair into the main building.


Booking Hall CCTV Recording


The OPP provided a copy of the CCTV recording from the booking hall at the Pikangikum Detachment on February 11, 2020. There was no audio on the recording.

At 5:29:53 a.m., WO #2 rolled the chair with the Complainant sitting on it into the booking hall. The Complainant’s hands were handcuffed to the front and his legs were also cuffed. He was searched while sitting on the chair. At 5:30:18 a.m., the SO put a net over the Complainant’s head and held onto the back of the net. At 5:31:20 a.m., the Complainant fist bumped WO #2 and tried to fist bump WO #3 but WO #3 left the room. At 5:39:15 a.m., the Complainant was wheeled out of the booking hall on the chair.


Cell #1 CCTV Recording


The OPP provided a copy of the CCTV recording from cell #1 at the Pikangikum Detachment on February 11, 2020.

At 5:45:37 a.m., the SO brought the Complainant to cell #1 on a chair. The Complainant sat on the bed and the SO removed the cuffs from his legs. A female sergeant held a net over the Complainant’s head and the SO removed his socks. The female sergeant removed the net from the Complainant’s head, and the police officers left the cell. At 5:47:35 a.m., the Complainant lay on the bed with his hands handcuffed to the front. At 5:48:03 a.m., the Complainant went to the bars of the cell, stuck his hands through the bars, and the handcuffs were removed. At 5:50:30 a.m., the Complainant laid a mat on the floor and laid down on the floor. At 10:58:58 a.m., the Complainant awoke and left the cell. At 11:04:20 a.m., he returned to the cell. At 11:32:25 a.m., the Complainant rubbed both of his wrists. At 12:34:46 p.m., he left the cell. At 12:35:26 p.m., the Complainant returned to the cell. At 12:41:30 p.m., he left the cell again.


iPhone Video Clip from CW #1


The short, six second video clip depicts WO #2, WO #1 and WO #3 in a small bedroom. The SO is seen outside the bedroom beside the doorway. WO #2, WO #1 and WO #3 appear to be physically engaged with a male party, presumably the Complainant, but the movements of the parties are difficult to discern.

Police Communications Recordings

The OPP provided a copy of the communication recordings for February 11, 2020.

At 3:51:50 a.m., a woman called the police and reported a domestic dispute between CW #3 and the Complainant at an address on Fish House Road. The Complainant and CW #3 were fighting. At 3:53:37 a.m., the operator dispatched police officers to a domestic dispute between CW #3 and the Complainant at the address on Fish House Road. The dispatcher conducted a check on the Complainant and broadcast that the Complainant was charged with fail to comply and ordered not to have contact with CW #3. One police unit was on his way over and another police unit advised everything was okay.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Arrest Report;
  • Computer-Assisted Dispatch - Event Details;
  • Email from the OPP to the SIU regarding records-February 19, 2020;
  • General Report;
  • Notes-all WOs;
  • Notes-the SO;
  • Occurrence History-the Complainant;
  • OPP Witness Address List;
  • OPP Station Video;
  • OPP zip files regarding station video; and
  • OPP communication recordings.

Materials obtained from Other Sources

In addition to the materials received from the OPP, SIU obtained and reviewed the following materials from other sources:
  • iPhone Video from CW #1;
  • The Complainant’s Medical Record – LOTWH;
  • The Complainant’s Medical Record – PNS; and
  • The Complainant’s Medical Record – Health Sciences Centre Winnipeg.

Incident Narrative

The material events in question are clear on the weight of the evidence collected by the SIU, which included interviews with the Complainant, the SO, several civilian eyewitnesses and three WOs. At around 4:00 a.m. on February 11, 2020, the SO, in the company of his partner, WO #2, and WO #1 and WO #3, arrived at the residence at an address on Fish House Road, Pikangikum. They were there following a call to police reporting a domestic disturbance between the Complainant and his partner, CW #3.

The officers entered the residence with the permission of one of the occupants and located the Complainant and CW #3 in a bedroom. Three small children were present in the room as well. CW #3 denied having been assaulted. Though the officers did not believe they had grounds to arrest anyone for assault, they were aware that the Complainant was under a condition of bail to refrain from being in proximity to CW #3 and decided to arrest the Complainant on that basis.

The Complainant resisted his arrest. Upon realizing that he was about to be taken into custody, the Complainant grabbed one of his children and raised her in his arms. The officers enlisted the aid of another female occupant of the residence to take custody of the children. Thereafter, the Complainant pulled away as WO #2 and WO #1 took hold of his arms. The officers forced him to the ground and handcuffed him to the front. As the Complainant was being helped to his feet, he spat in the face of WO #3, who was also in the bedroom at the time. WO #3 reacted by delivering a knee into the Complainant’s abdomen, following which the Complainant was brought out of the bedroom.

The Complainant continued to struggle against the officers’ efforts to escort him out of the house, flailing his body and kicking his legs. Once through the front door, the officers decided to take him to the ground again. Following a further brief struggle on the ground, in the course of which WO #2 discharged his OC spray at the Complainant’s head, the Complainant’s legs were also shackled, whereupon he was stood up and lodged in the backseat of WO #1 and WO #3’s cruiser.

A far different version of events comes from a civilian witness suggesting that the Complainant was largely passive during his arrest and was beaten for no reason, but I am unable to place any weight on this account. The person was significantly inebriated at the time, detracting from his ability to accurately perceive and recall the events in question. Indeed, this impairment by alcohol may well be what explains the person’s failure to mention that the Complainant was taken down in the bedroom and either punched or kneed by WO #3, as other witnesses attested, and the person’s suggestion that it was the SO who caused the Complainant’s fracture when it was clear that the SO had few if any physical dealings with him at the scene. For these and other reasons, it would be unsafe and unwise to place any credence on the person’s account where it conflicts with other evidence.

Following his arrest, the Complainant was taken to the Pikangikum detachment and lodged in a cell. The following day, he was taken from the Kenora Jail to hospital, where his injury was diagnosed.

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

On February 11, 2020, the Complainant was arrested by members of the OPP at his residence in Red Lake. The following day, he was diagnosed with a fractured hand/wrist. The SO 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 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. I readily accept that the officers were proceeding lawfully to arrest the Complainant for violating the terms of his bail recognizance by being intoxicated and in proximity to CW #3. The issue turns to the propriety of the force used by the officers in effecting the Complainant’s arrest.

The person who made the strongest allegations suggested that the officer who broke the Complainant’s hand was bald. That description suggested that the SO was the subject of the person’s allegation. However, the overriding weight of the evidence established that the SO was not at any point physically engaged with the Complainant.

While the other three officers – WO #1, WO #2 and WO #3 – did participate in a physical struggle with the Complainant, I am unable to reasonably conclude that any of them used other than justified force. The two principal players in the Complainant’s arrest were WO #1 and WO #3. They were the first to make contact with the Complainant and were joined in the two takedowns of the Complainant, one inside and the other outside the home.

The evidence is clear that the Complainant physically resisted arrest, pulling away from the officers, kicking his legs and flailing his body at various times. In the circumstances, the officers were within their rights in forcing the Complainant to the ground in order to mute any continuing struggle by the Complainant. The officers were also justified in meeting the Complainant’s resistance on the ground by wrestling with him and deploying OC spray to subdue and control him. It should be noted that neither WO #2 nor WO #1 struck the Complainant at any time.

WO #3 did strike the Complainant. He did so immediately upon being spat on in the face by the Complainant, delivering a knee into the Complainant’s abdomen. In my view, the force used by WO #3 was on the cusp of being excessive given that the Complainant was handcuffed at the time. That said, the Complainant’s conduct constituted an assault upon the officer, whose reaction was immediate and singular. In the circumstances, I am satisfied that WO #3 was within his rights in using the force he did to defend himself against a reasonably apprehended attack. In arriving at this conclusion, I am mindful of the common law’s edict that police officers engaged in volatile situations are not expected to measure their responsive force with precision; what is required is reasonable not exacting, force: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont CA).

In the result, while it is likely that the Complainant broke a hand/wrist in the course of the takedowns and grappling that occurred during his arrest, I am satisfied that the involved officers acted lawfully throughout the encounter. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: August 10, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Unless otherwise indicated, times set out in this report are Central Standard Time. [Back to text]