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SIU Director’s Report - Case # 19-PCI-234

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

The Investigation

Notification of the SIU

On September 23, 2019, at 9:00 p.m., the Ontario Provincial Police (OPP) Stormont, Dundas and Glengarry Detachment notified the SIU of the serious injury sustained by the 65-year-old Complainant during his arrest earlier that afternoon in Ingleside. The OPP Stormont, Dundas and Glengarry Detachment reported that at 3:30 p.m., uniformed detachment police officers had gone to the Complainant’s home to arrest him on a warrant. The Complainant had come out of his house and threatened the police officers while carrying a shotgun. The police officers had retreated and called for reinforcements who quickly arrived and contained the area. The Tactics and Rescue Unit (TRU) eventually took control of the situation and arrested the complainant after a lengthy standoff. The Complainant suffered fractured ribs during the arrest.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

Complainants

Complainant: 65-year-old male interviewed, medical records obtained and reviewed


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed


Police Employee Witnesses

PEW Interviewed, notes received and reviewed


Subject Officers

SO #1 Declined to interview with the SIU or to release notes, as is a subject officer’s legal right
SO #2 Interviewed and notes received



Evidence

The Scene

The incident occurred in front of a rural residence at an address on Dafoe Road, Ingleside. The residence was situated on a small farm and surrounded by thick brush and foliage. The scene was extensively photographed by the SIU forensic investigator.

Forensic Evidence


The Conducted Energy Weapon (CEW) Download


A CEW deployed by WO #7 was discharged three times on September 23, 2019, as follows:
  • 3:42:22 p.m., for a duration of five seconds;
  • 3:43:06 p.m., for a duration of five seconds; and
  • 3:43:19 p.m., for a duration of five seconds.

Video/Audio/Photographic Evidence


Videos recorded by a remotely-piloted aircraft system (RPAS) drone


The footage is from a RPAS operated by an OPP officer of the arrest incident/scene at the address on Dafoe Road, Ingleside, on September 23, 2019.

Arrest Video #1 (No Audio)

This footage has no dates or times on it and is nine minutes and 30 seconds in length. At six minutes and 40 seconds into the footage, the Complainant is seen to exit the front of his residence in a southerly direction. He is carrying a long gun in his right hand with the barrel pointing up to the sky.

At six minutes and 57 seconds into the footage, the camera pans up and out and the Complainant is no longer in the frame. An OPP Armoured Rescue Vehicle (ARV) can be seen about three metres south of the front door of the residence and it is parked pointing in a northwesterly direction. Four police officers, all in grey/green tactical uniforms and helmets are standing around the ARV focused on the front of the residence. As all police officers are wearing identical uniforms and helmets and are very similar in physical appearance, it is not possible from the video footage to distinguish one officer from the other.

At seven minutes and four seconds into the footage, the camera pans back to where the Complainant was last seen walking southbound and the Complainant can now be seen rolling around on the grass about three metres in front of his residence. The long gun he had been carrying was lying on the grass about one metre to his left. He is rolling around on the ground kicking violently at a police dog that is engaged with him, biting at his legs.

At seven minutes and six seconds into the footage, the Complainant was successful in kicking the dog off him. The Complainant was now in a kneeling position with his head down to the ground and facing the group of four tactical police officers walking towards him. The police dog was now on the right side of the Complainant biting at his right shoulder and arm trying to re-engage.

One of the tactical police officers has his right hand and arm fully extended and a CEW in that hand. When that police officer gets to within about a metre of the Complainant, who is still on his knees with his head bowed towards the ground, the police officer deploys the CEW into the back of the Complainant. The wires from the CEW are clearly seen.

At seven minutes and nine seconds into the footage, the Complainant rolls over onto his right side on the grass, exposing his left side immediately after being struck by the probes from the CEW. The dog immediately re-engages the left shoulder and upper arm of the Complainant. Two other tactical officers join the original four and all six tactical officers engage the Complainant, kneeling over him. The Complainant is on his back but is still rolling around on the grass.

At seven minutes and 21 seconds into the footage, one of the tactical officers raises his right hand in a fist over his head and delivers three rapid punches down into the direction of the Complainant. Because of the crowd of officers kneeling over the Complainant it is difficult to see the position the Complainant is in at the time the punches are delivered or where on his body they land.

At seven minutes and 24 seconds into the footage, that same police officer delivers another four punches down in the direction of the Complainant with his right fist. This makes now seven punches this same police officer has delivered to the Complainant. The Complainant’s hand can be seen on the ground at the feet of the police officers who are around him and it appears that he may possibly be on his left side or stomach when the punches are contacting him and that those punches may be possibly landing on his left side or back.

At seven minutes and 28 seconds into the footage, the camera immediately pans out, up and away from the police officers and the Complainant to a position where they are no longer in the frame. No further interaction between the Complainant and police officers is seen in the footage.

Arrest Video #2 (No Audio)

This footage has no dates or times and is 11 minutes and 27 seconds in length. The video is taken from a much greater altitude than Arrest Video #1 and it is very difficult to see the interaction between police officers and the Complainant. The deployment of the CEW and the punches being delivered by one of the tactical officers cannot be seen on this video. The majority of the video is of the outbuildings on the property and the surrounding countryside/foliage.

At one minute and one second into the footage, five tactical officers can be seen standing over the Complainant who is lying on his stomach on the ground about ten feet in front of his residence. At one minute and 20 seconds into the footage, one of the tactical officers can be seen with his right hand and arm outstretched and a CEW in that hand. He is standing about one metre to the southeast of the Complainant who is now kneeling on the ground. All five police officers are standing then kneeling over the Complainant.

At three minutes into the footage, all of the tactical police officers are standing up over the Complainant who is now lying face down on the ground with both of his hands handcuffed behind his back. At four minutes and 34 seconds into the footage, two tactical police officers bring the Complainant to his feet and walk him in a southerly direction off the property towards Dafoe Road, out of the frame, still with both hands handcuffed behind his back.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP Stormont, Dundas and Glengarry Detachment:
  • Event Details;
  • Intergraph-Computer Assisted Dispatch (ICAD) Event Chronology;
  • Letter from the Complainant to his daughter;
  • Negotiator's Log Book regarding incident-September 23, 2019;
  • Notes of all WOs;
  • Notes of the PEW;
  • Data downloaded from CEW used in incident;
  • Video recordings of incident captured by police drones; and
  • Occurrence Summary.

Materials obtained from Other Sources

In addition to the materials received from the OPP, SIU obtained and reviewed the following materials from other sources:
  • Medical reports for the Complainant from the Cornwall and Ottawa Civic Hospital.

Incident Narrative

The events in question are largely apparent on the weight of the evidence collected by the SIU, which included interviews with the Complainant, several WOs who participated in the operation culminating in the Complainant’s arrest, and one of the two SOs – SO #2. As was his legal right, SO #1 declined to interview with the SIU or authorize the release of his notes. The investigation further benefitted from a review of data downloaded from a CEW discharged during the incident and video footage of parts of the arrest captured by a police drone.

Shortly after 11:00 a.m. on September 23, 2019, members of an OPP TRU team were mobilized to deal with a situation in the Town of Ingleside at an address on Dafoe Road. Local OPP officers had earlier that morning attended at the address to arrest the Complainant for mischief to public property. Upset at the township over a municipal grievance, the Complainant had intentionally dug up the roadway in front of his home. Greeted with profanity, the sound of a shotgun being racked and a threat by the Complainant that he would not be taken alive, the officers had left the property in the interests of everyone’s safety. OPP Emergency Response Team officers were then deployed to surround and contain the property pending the arrival of the TRU.
Within an hour of being notified of the incident, the TRU team were further advised that the Complainant was holed up in his residence with a gun and refusing to come out.
The OPP set up a command post near the intersection of Dafoe and Aultsville Roads. From that location, the TRU team commander and a couple of Critical Incident Commanders developed a plan whereby the TRU team would approach the property in an ARV, first stopping to clear several outbuildings on the Complainant’s land before proceeding to the house. Two snipers would also be set up in the outbuildings to monitor the Complainant’s movements in and out of the home, reporting their intelligence to the other team members via radio.

SO #2 was the team leader. With him were WO #6 – a dog handler with his dog; WO #7, whose role it would be to discharge his CEW, if necessary; SO #1, tasked with wielding an ARWEN during the operation; WO #3, responsible for operating the ARV; and WO #5 and WO #4. Also in the ARV were trained crisis negotiators – WO #8 and WO #1 – and the PEW, a tactical paramedic.

The outbuildings having been successfully cleared, the ARV approached to within several metres of the front of the Complainant’s residence. From that position, with the use of the vehicle’s loudhailer, WO #4, WO # 8 and WO #1, the latter two in English and French, repeatedly directed the Complainant to disarm himself and exit the home with his hands up. Their entreaties were ignored, as were WO #4’s efforts to attract the Complainant’s attention by periodically activating the vehicle’s emergency lights and siren. One of the two snipers, WO #2, reported that he could see the Complainant seated in the kitchen holding a long gun.

As the standoff continued, the officers decided to deploy a throw phone next to the front door of the home in the hopes that the Complainant would collect the phone and use it to speak with police. He did not. A distractionary device was set off outside the home at about 3:22 p.m., but it too failed to elicit a response from the Complainant.

At about 3:48 p.m., with officers in and out of the ARV, the Complainant emerged from the front of his home. He was holding a loaded shotgun and walking toward the front of the ARV. Multiple officers ordered the Complainant to drop his firearm and put his hands in the air, to no effect. As the Complainant continued forward, SO #1, from a position in front of the Complainant, fired his ARWEN multiple times. The Complainant was struck, dropped his shotgun, and fell to the ground.

At SO #2’s direction, WO #6 quickly released his dog, who bit onto the Complainant’s lower right leg. The Complainant kicked the dog away with his left foot and made it to his knees before his left arm area was bit by the dog.

The Complainant was on his knees with his torso bowed forward when WO #7 approached to within a metre or two of the Complainant and discharged his CEW into the Complainant’s back. The Complainant immediately lunged forward onto his front but was not incapacitated. He tucked his arms into his chest, rolled quickly onto his back and then again onto his front, his arms and legs moving throughout these movements.

WO #7, SO #1, WO #6 and WO #4 were surrounding the Complainant at this time, standing over him. The dog, who had disengaged, returned and bit into the right upper arm / shoulder area of the Complainant, appearing to pull the Complainant a short distance on the ground. The Complainant was temporarily back onto his knees before he appears to have been dragged back to the ground onto his right side by the dog, shortly after which SO #1, from a kneeling position behind the Complainant on the ground, delivered three punches to the Complainant’s back.

It was at this time that SO #2 arrived and entered the fray. The Complainant’s upper body appeared to be prone on the ground and his arms close to his chest. As SO #2 attempted to pry the Complainant’s left arm out from under him, SO #1 punched the Complainant’s back a further four times.

The struggle persisted for a period in what was largely a wrestling match by this time, punctuated some 25 and 38 seconds after the last of SO #1’s punches with two additional CEW discharges from WO #7’s weapon. Shortly thereafter, with WO #4’s help, SO #2 managed to handcuff the Complainant.

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

The Complainant suffered multiple rib fractures in the course of his arrest on September 23, 2019 by the OPP. Among the arresting officers, SO #2 and SO #1 were 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 officer committed a criminal offence in connection with the Complainant’s arrest and injuries.

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 required or authorized to do by law. By the time the TRU team entered onto the Complainant’s property, they had secured a warrant authorizing their presence at the address for the purpose of arresting the Complainant. Accordingly, I am satisfied the officers had a lawful basis to seek the Complainant’s arrest. The issue turns to the propriety of the force used by the officers in taking the Complainant into custody.

There are no qualms to be had with respect to the police operation preceding the immediate circumstances of the Complainant’s arrest. Knowing that the Complainant was armed with a firearm and had threatened officers earlier in the day when they arrived at his home to arrest him, the deployment of the TRU team was reasonable. With their specialized training and array of weapons, the team was best equipped to attempt to negotiate the Complainant’s peaceful surrender while ensuring their safety, as well as his, as they did so. The team moved prudently toward the home, clearing outbuildings in the process, and approaching with the protection of an ARV. They patiently tried to resolve the situation, employing trained crisis negotiators to engage the Complainant, all to no effect. A distractionary device and a throw phone were used to solicit a response, but none was forthcoming from the Complainant. In all of this, there is nothing to suggest that the police acted other than professionally.

When the Complainant emerged after a standoff with the officers of close to two hours, he was met with what in my view was appropriate force. The use of the ARWEN and the dog, and the initial CEW discharge, were reasonable. The Complainant was armed with a shotgun, walking toward the officers positioned in and around the ARV and disregarding repeated commands that he drop his weapon. In the circumstances, the officers cannot be faulted for attempting to neutralize the Complainant at a distance. While the ARWEN discharges were successful in felling the Complainant and dispossessing him of the shotgun, the weapon remained in close proximity to the Complainant on the ground providing the officers good reason to fear that he remained a serious threat as the dog and the CEW were deployed.

Thereafter, I am further satisfied that the punches struck by SO #1 and the additional CEW discharges fell within the ambit of lawful force in the circumstances. Though he was by this time on the ground and surrounded by multiple officers, the Complainant continued to struggle against the officers’ efforts to secure his arms. In fact, he held one of his hands closed – his left hand – and his arms tucked by his chest for periods of time, leading the officers to fear that he might still be in possession of, or attempting to access, a weapon on his person. The fear was not without merit. By his conduct throughout the day, the Complainant had made it clear that he had no intention of being arrested peaceably and that he was ready, willing and able to brings weapons to bear against the police. On this record, while a total of seven punches delivered by SO #1 might appear excessive, considered in context and given the fact that the Complainant had yet to be subdued at the time the punches were thrown, I am unable to reasonably conclude that the officer’s force crossed the line. In arriving at this conclusion, I am mindful of the common law principle that police officers in dangerous situations are not expected to measure their responsive 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. C.A.). The same, I am satisfied, may be said of WO #7’s additional CEW discharges, following which the officers were able to overcome the Complainant’s resistance and secure him in custody. No further hostilities were exchanged after the Complainant was handcuffed.

In the result, while I accept that the Complainant was subjected to significant and even severe force in the course of his arrest, suffering multiple broken ribs as a result, I am not satisfied on reasonable grounds that either of the SOs, or any of the involved officers for

that matter, acted unlawfully in the incident. 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