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SIU Director’s Report - Case # 19-OCI-296

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

The Investigation

Notification of the SIU

On December 6, 2019, at 8:20 a.m., the London Police Service (LPS) reported to the SIU that at 1:52 a.m., LPS Emergency Response Unit (ERU) police officers attended a unit of an address on Simcoe Street London, to conduct a high-risk arrest of the Complainant for firearms offences.

On the strength of an arrest warrant with a Feeney [1] endorsement, the police officers breached the door to the unit and encountered a non-compliant Complainant. The Complainant was taken to the floor but refused to comply with the police officers’ commands and tried to get back up. Knee strikes were used and a conducted energy weapon (CEW) was deployed.

The Complainant was transported to London Health Sciences-Victoria Hospital (LHS-VH) where he was diagnosed as having sustained one and possibly two broken hands, a collapsed lung and possible fractured ribs. No scene was held.

The Team

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

Complainants

Complainant: 34-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Not interviewed, but notes received and reviewed
WO #8 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.
SO #3 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

The scene was inside an apartment at an address on Simcoe Street, London.

Forensic Evidence


CEW Download


On December 6, 2019, at 11:50 a.m., an SIU Forensic Investigator arrived at LPS headquarters. A Taser Model X2 was received from the LPS along with a box containing a used Taser cartridge, Taser wire and one probe. The Taser was returned to the LPS at 12:20 p.m. The data indicated that the CEW was discharged twice around the time of the incident. The first discharge was associated with a charge lasting five seconds. Sixteen seconds later, the trigger was pulled again resulting in a discharge of an additional five seconds.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was not able to locate any.

Police Communications Recordings

The following is a summary of the LPS communications recordings. There were no times on the 12 hours and 40 minutes-long recording.

The recording began when a woman from London Housing called the LPS and said there was a need for police at a unit. The resident there was in a wheelchair and two men had given him trouble. The person from London Housing witnessed one of the two men go into the unit, and that man was identified. Tenants at the address on Simcoe Street advised the person from London Housing that the man was armed with a handgun and was “running for the Complainant.” LPS police officers were made aware of something in another unit and requests were made for dispatch to run checks. The tenant of the unit was broadcast as the CW.

LPS police officers went to the video room of the address on Simcoe Street and confirmed the Complainant entered the CW’s unit. Throughout the audio, LPS police officers tried to speak to the CW, but he refused to open the door, come out or cooperate with police. At about 1:34 a.m., on December 6, 2019, a police officer advised that the Feeney warrant had been signed and he would bring it over from LPS headquarters. At about 1:43 a.m., ERU staged in the Goodwill lot. At about 1:52 a.m., WO #6 of ERU advised the warrant was read and the front door of the CW’s unit was breached. At about 1:53 a.m., a man said, “Contact with the Complainant,” and, at about 1:55 a.m., a man said, “Taking male into custody.” At about 1:56 a.m., WO #6 advised that they had one in custody and needed EMS (Emergency Medical Services). A man asked for an update, and WO #6 advised the CW had gone with the “CID” officers. EMS had to re-route but would come “Code 2”, and, about 2:18 a.m., the ERU was out.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the LPS:
  • Computer-Assisted Dispatch report;
  • Civilian Witness List;
  • Communication recordings;
  • Feeney warrant;
  • Narrative Text-all WOs;
  • Narrative Text-all SOs;
  • Notes-all WOs;
  • Notes-all SOs;
  • Occurrence Report - Redacted;
  • Policy-Use of Force;
  • Policy-Arrest;
  • Policy-Tactical Units;
  • Taser Download Model X26P – SO #3;
  • Training Records-all SOs; and
  • Use of force report.

Materials obtained from Other Sources

In addition to the materials received from the LPS, the SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records from the LHSC.

Incident Narrative

The following scenario emerges on the weight of the evidence collected by the SIU, which included interviews with the Complainant and several witness officers. While none of the subject officers agreed to interviews with the SIU, they did authorize the release of their notes of the incident. At about 1:55 a.m. on December 6, 2019, a team of ERU officers under the command of WO #6 forced their way into a unit of the apartment building located at an address on Simcoe Street, London. They were there based on information that the Complainant, who was wanted on firearms offences, was inside the unit. The Complainant was, in fact, inside the apartment. The ERU officers’ forced entry into the apartment occurred after several hours during which time the officers had attempted to negotiate the Complainant’s arrest from outside the apartment door.

With the door open, the Complainant made his way into the hallway from the kitchen/living room area of the unit. He was holding a can of beer. From the threshold of the doorway, the officers directed the Complainant to walk in their direction, but he refused. The Complainant left the hallway but returned shortly, again holding the can of beer, which he proceeded to open. With his free hand, the Complainant reached into a pocket to access his cell phone. He continued to refuse to do as directed by the officers and was met with a CEW discharge from SO #3’s weapon. The probes met their mark, but the Complainant remained standing and was able to make his way back into the kitchen/living room area.

SO #3’s CEW was discharged a second time either before or after the Complainant was taken to the ground.

Following the CEW discharge or discharges, SO #1, SO #2 and SO #3 entered the unit and confronted the Complainant while other ERU officers arrested the CW and cleared the rest of the apartment. SO #2 and SO #1 took a hold of the Complainant and forced him to the floor. The Complainant struggled with the officers and tried to get up, prompting SO #2 to knee him in the chest. The Complainant was knocked backward but continued to resist the officers by refusing to surrender his arms to be handcuffed. Following further punches from SO #1 and SO #3, to the shoulder and left ear, respectively, the Complainant’s arms were secured and affixed in handcuffs. No further force was used by the officers.

While another source offers a different picture of events regarding the altercation, I am unable to rely on it to any significant degree for a variety of reasons. According to this more incriminating account, the Complainant was beaten up by a total of six or seven officers, some of whom repeatedly punched the back of his head and side of his face. The Complainant, according to this account, had his ribs punched as he lay prone on the floor, and his hands and arms were stomped upon. However, by his own admission, the source of this incriminating account was significantly inebriated at the time of the incident and would have had trouble accurately perceiving and recalling the events in question.

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 December 6, 2019, the Complainant was arrested by members of the LPS ERU and suffered injuries in the process. SO #1, SO #2 and SO #3 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 any of them 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. The officers were within their rights in forcing their way into the apartment to arrest the Complainant; they had in their possession a Feeney warrant authorizing precisely that course of action.

The question turns to the propriety of the force used by the officers in effecting the Complainant’s arrest. The first CEW deployment was, in my view, a reasonable tactic. The officers had reasonable cause to believe that the Complainant was in possession of a firearm, the very offence giving rise to the arrest warrant they were intending to execute. In the circumstances, when the Complainant rebuffed their repeated commands to surrender peacefully and instead reached into a pocket with his hand, they were entitled to engage the Complainant from a distance to neutralize a reasonably perceived threat. Once the CEW was deployed, and appeared to have little effect on the Complainant, who remained standing, the officers acted with prudence in taking the Complainant to the floor at the first opportunity. They had yet to satisfy themselves that the Complainant was not armed and had reason to believe that he would continue to resist arrest. With the Complainant on the ground, the officers would be in a better position to manage those risks. Finally, I am satisfied that the Complainant struggled with the officers on the ground and refused to surrender his arms to be handcuffed. In response, each of the subject officers delivered a single strike to various parts of the Complainant’s body. Given the volatility of the situation at hand, the potential dangers associated with a possible firearm in the mix and the need to quickly bring the Complainant under control, I am unable to reasonably conclude that these blows were more than were reasonably necessary to overcome the Complainant’s resistance and take him into custody. [2]

In the result, while I accept that the Complainant was subjected to significant force by the subject officers and suffered serious injuries as a result, I am satisfied on reasonable grounds that the officers acted lawfully throughout the encounter. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: September 14, 2020


Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Named after the Supreme Court of Canada decision in R. v. Feeney, [1997] 2 SCR 13 and obtained pursuant to section 529 of the Criminal Code, a Feeney warrant authorizes the forcible entry of police officers into a dwelling-house to effect an arrest. [Back to text]
  • 2) With respect to the second CEW deployment, discharged sixteen seconds after the first, I am satisfied it would have occurred while the Complainant was still standing or on the ground during the struggle with the officers, and does not change the liability analysis. [Back to text]