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SIU Director’s Report - Case # 20-PCI-180

Contents:

News Releases for this Case:

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

The Investigation

Notification of the SIU

On July 23, 2020, at 6:14 p.m., the Ontario Provincial Police (OPP) notified the SIU of the following.

On July 23, 2020, at approximately 11:33 a.m., OPP Norfolk Detachment police officers responded to a disturbance call at a hotel, [1] located on Talbot Street in Delhi. There they encountered the Complainant, who was believed to be in crisis. The police officers apprehended the Complainant for his safety under the Mental Health Act (MHA) as he attempted to run into traffic. Emergency Medical Services (EMS) transported the Complainant to the Norfolk General Hospital (NGH) for an MHA assessment. When they arrived at the hospital, the Complainant was placed into a waiting area, but attempted to flee. The police officers got a hold of him, but he tripped over his loose-fitting pants. He put his arm up to brace himself and hurt his right arm while falling. The Complainant was examined at the Emergency Department and it was determined that he had suffered a hairline fracture to his right forearm.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 30-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 #5 Interviewed
WO #4 Interviewed
WO #5 Interviewed


Subject Officers

SO Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

There were two scenes: the front lawn area of the motel; and, the NGH Observation Room.

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:
  • Closed circuit television (CCTV) video recordings from the motel.


CCTV video recordings from the Motel


The video recording captured by a camera situated at the motel captured the following on July 23, 2020:

11:09:23–11:09:30 a.m.: CW #3 approaches the door of a unit and motions for a person inside to come out. The Complainant exits in a highly agitated state and is flailing his arms all around.

11:09:33 – 11:10:17 a.m.: A fistfight ensues between CW #3 and the Complainant during which the Complainant throws no fewer than 16 punches to the head of CW #3 with his right hand. CW #3 is bleeding from a cut over his right eye. CW #2 is present. The fistfight ends, and the Complainant can be seen acting in a manner consistent with someone high on narcotics; he is flailing his arm all around, wiping what appears to be sweat from his eyes, and cannot stop moving.

11:10:52 – 11:11:41 a.m.: The Complainant can be seen staggering around the parking lot attempting to go back to the area of the unit. The long pant legs on the Complainant’s blue jeans can be seen to bunch around his ankles. The Complainant is staggering toward the front of the office building.

11:12:36 – 11:13:02 a.m.: The Complainant is running toward Talbot Road, but runs face first into a sign board positioned on the eastside grass median next to Talbot Street. The Complainant makes his way to a picnic table on the median and kneels on the bench with his chest over the table and then remains motionless.

11:13:22 – 11:15:45 a.m.: CW #4 comes from the front of the office building with a telephone up to her ear and speaks with an identified civilian (IC). He runs across Talbot Road (to retrieve Narcan from his unit) and then returns to the area of the picnic table, where the Complainant is still lying motionless on top of the table.

11:18:13 – 11:19:00 a.m.: The Complainant gets to his feet momentarily before falling on the ground next to the table in a sitting position. CW #4 returns to the area of the picnic table with the telephone still to her ear. The Complainant falls and lies motionless.

11:20:10 – 11:23:51 a.m.: The EMS and police pull into the western most driveway of the motel. WO #1 arrives and walks toward the Complainant.

11:24:21 – 11:26:21 a.m.: WO #3 and the SO walk into the scene and paramedics approach the Complainant with a stretcher.

11:26:25 – 11:29:31 a.m.: The Complainant suddenly sits straight up and begins flailing his arms before getting to his knees. A paramedic continues to speak with the Complainant as the three OPP officers look on. WO #4 arrives and the Complainant is still on the ground.

11:30:15 – 11:30:27 a.m.: The Complainant walks into the parking lot followed by WO #1. The police officers do not touch the Complainant at any time, and he walks back toward the EMS.

11:32:03 – 11:32:26 a.m.: WO #2 arrives. The SO places his hands on the back of the Complainant as WO #1 has a hold of his right arm and attempts to direct the Complainant back to the EMS stretcher. The Complainant sits on the stretcher but is still very unsettled and continues to flail his arms and kick his legs. Four police officers form a semi-circle around the stretcher and prevent the Complainant leaving the area. The Complainant is yelling at the police officers before finally running to the west around the end of the stretcher.

11:33:53 – 11:35:12 a.m.: WO #2 is chasing after the Complainant as he runs toward Talbot Road and grabs him from behind, lifts him, and places him back on his feet. WO #1 assists WO #2. The Complainant is placed face down on the picnic table with WO #2 holding his left arm and WO #1 holding his right arm behind his back. The Complainant is actively resisting the efforts of the police officers. WO #3 assists on the right side of the Complainant and holds his right shoulder. The SO climbs onto the picnic table and pins the Complainant’s left shoulder with his left knee until the handcuffs are secured. The Complainant is brought back to the stretcher by WO #1 and WO #2, and sits down on the stretcher.

11:43:44 a.m.: The Complainant attempts to get up and off the stretcher. He is grabbed by WO #2 on his left side, the SO on his right side, WO #3 on his legs, and WO #1 from across the stretcher. The Complainant continues to fight with the police officers as they try to remove the handcuffs from behind his back and handcuff him to the stretcher. The straps are placed over the Complainant to secure him to the stretcher.

11:46:13 – 11:54:11 a.m.: The Complainant is taken to the rear of the ambulance and the SO is accompanying him. The EMS leaves followed by an unmarked OPP SUV.

Communications Recordings


911 Call


On July 23, 2020, at 11:32 a.m., CW #4 called 911 because an unknown man ran across the street from a motel and told her to call the police. CW #4 heard a lot of noise and yelling but was confused as to what was going on. She reported a man [now known to be the Complainant] was trying to walk but could not stay standing. His arm was bleeding, he was having problems breathing, and he was sweating. A man from the hotel, the IC, told her the Complainant was on drugs. The IC went to get a Narcan kit and CW #4, who had a medical background, went to assist the Complainant. She found a pulse, but the Complainant got up and walked to the middle of the road. The IC spoke to the call-taker. He reported the Complainant was in an identified room and refused to leave. A man from a nearby identified room came to assist and he and the Complainant exchanged punches. The man threw the first punch and, in the exchange, received a cut over his eye which was bleeding. The Complainant was known to use fentanyl. The IC said he did not use the Narcan on the Complainant, who was snoring. The Complainant confirmed the police officers had arrived.


Dispatch Audio


On July 23, 2020, at 11:33 a.m., a dispatch went out regarding a disturbance at an identified motel, and someone was yelling to call the police. The police officers began making their way to the disturbance. An ambulance was responding to the motel. There was a man, identified as the Complainant, who had been involved in a fight and was bleeding from his arm. He was under the influence of a drug and possibly dying as he laid on the ground with problems breathing. A manager from the motel felt that Narcan was required. It was reported a pulse had been found.

WO #1 arrived just behind the EMS. He reported nothing had been administered and the EMS were checking out the Complainant. At 1156 a.m., WO #4 reported the Complainant had run out into traffic, he was being violent, and he was apprehended under section 17 of the MHA.

WO #4 requested a second ambulance for a man [now known to be CW #3] who had an eye injury.


Dispatch Telephone


There were calls made to the EMS and the NGH. There was nothing heard in these recordings to assist with this investigation.


Communications Centre Telephone


A police officer was the supervisor on duty at the Communications Centre. He was updated that the Complainant had been apprehended under the MHA and no police officer administered Narcan. The Complainant tried to escape, but he tripped and hit the floor. He complained of a sore wrist. The Complainant had a hairline fracture to the wrist. There was a conversation about notification to the SIU.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Arrest Report;
  • Communications recordings;
  • General Occurrence Report;
  • Notes-all WOs; and
  • Training Record-Use of Force-the SO.

Materials obtained from Other Sources

In addition to the materials received from the OPP, the SIU obtained and reviewed the following materials from other sources:
  •  The Complainant’s Medical Record - Ambulance Call Report, Norfolk County Paramedic Service;
  • The Complainant’s Medical Record – NGH; and
  • CCTV video recordings from the motel.

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 and a number of civilian and police witnesses who were either present at the arrest scene or hospital where the Complainant was brought for examination. As was his legal right, the SO declined to interview with the SIU or authorize the release of his incident notes. The investigation also benefitted from a review of a video recording of the Complainant’s arrest.

In the morning of July 23, 2020, CW #4 called 911 to report her concerns about the wellbeing of a man – the Complainant – who appeared not to be breathing on the ground in front of a motel in Delhi. Paramedics and police officers were dispatched to the scene.

The Complainant had earlier that morning attended the motel, where he had fought with CW #3. The combatants had exchanged multiple punches during their tussle, following which the Complainant had made his way to a picnic table out in front of the motel where he had collapsed.

Upon the arrival of the police and paramedics, the Complainant suddenly roused from his slumber. His behaviour was irrational and erratic. On several occasions, the Complainant moved toward Talbot Road, a busy east-west roadway south of the motel, and had to be escorted back to safety. Eventually, the Complainant was handcuffed by the officers, placed onto a stretcher and taken in ambulance to the NGH.

Arriving at the hospital shortly after noon, the Complainant was placed in the Observation Room of the emergency department pending examination by a physician. While waiting for the doctor, the Complainant’s behaviour swung between moments of calm and periods of hostility.

At about 1:30 p.m., the Complainant exited the room and started to make his way to the ambulance bay doors. The SO, one of the officers involved in the Complainant’s arrest, and WO #5, both at the hospital maintaining custody over the Complainant, intervened to stop the Complainant leaving. They took hold of the Complainant and forcibly escorted him back to the Observation Room. A metre or so into the room, the Complainant lost his balance and fell to the floor. The officers left the room and the door was closed behind them.

Immediately following his fall, the Complainant rose to his feet and started kicking and punching the door. He was subsequently taken for x-rays and diagnosed with a break of one of his lower forearms.

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.

Section 17, Mental Health Act -- Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

Analysis and Director's Decision

On July 23, 2020, the Complainant was diagnosed with a fractured arm while in the custody of the OPP. He had earlier in the day been apprehended by OPP officers. The SO was among the arresting officers and 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 apprehension 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 required or authorized to do by law. The Complainant was clearly not of sound mind on the morning of his arrest. His violent and disorderly behaviour caused those around him to believe that he was intoxicated by drugs. The Complainant’s condition while lying on the ground in the area of the picnic table, and behaviour in the presence of paramedics and police officers, were also disconcerting. In the circumstances, I accept that the Complainant was lawfully arrested under section 17 of the MHA.

Once in custody under the MHA, and having been brought to hospital for examination, the officers were entitled to exercise control over the Complainant’s movements in the interests of his safety and others in the Complainant’s presence. Thus, when the Complainant exited the Observation Room and attempted to leave the hospital, the SO and WO #5 were within their rights in taking hold of the Complainant and escorting the Complainant back to the room. The evidence indicates that they did so with minimal force; no strikes of any kind were delivered at this time, nor at any time while the Complainant was in police custody. The Complainant fell shortly after entering the room, the result of his tripping on his oversized pants which fell below his waist and feet. I am unable to fault the officers for what seems to have been a regrettable accident. If anything, it appears that one or both of the officers were able to break the Complainant’s fall to an extent.

At the end of the investigation, it remains unclear when and how the Complainant’s arm was broken. While I acknowledge the possibility that the fracture was the result of the Complainant’s fall in hospital, there is a distinct possibility that the injury was self-inflicted as the Complainant fought CW #3 ahead of his arrest or repeatedly punched at the door of the Observation Room. Be that as it may, as I am unable to reasonably conclude that the SO acted other than lawfully throughout his engagement with the Complainant, there are no grounds for proceeding with criminal charges in this case, and the file is closed.


Date: September 8, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes