SIU Director’s Report - Case # 20-PCI-042
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Contents:
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.
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 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.
- 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 25-year-old man (the “Complainant”) suffered.
“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 25-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On February 24, 2020, at 3:25 a.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury.According to the OPP, on February 23, 2020, at approximately 6:30 p.m., OPP officers responded to an address on John Street in Espanola for a report of an unwanted guest and assault involving the Complainant. The police officers began looking for the Complainant and located him at Adelaide and Marguerite Streets in Espanola. Four OPP officers attempted to arrest the Complainant who was non-compliant. One of the police officers [now known to be the Subject Officer (SO)] discharged a Conducted Energy Weapon (CEW) and the probe struck the Complainant in the area of his left eye. He was taken to hospital in Espanola and then transferred to Health Sciences North (HSN) in Sudbury where it was determined that the CEW probe had struck the Complainant in one of his eyes and may have punctured the eyeball. The Complainant was to be examined by an ophthalmologist [now known to be Civilian Witness (CW) #1] later the same day.
The Team
Number of SIU Investigators assigned: 3Number of SIU Forensic Investigators (FIs) assigned: 1
Complainants
Complainant: 25-year-old male interviewed, medical records obtained and reviewedCivilian Witnesses
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
Witness Officers
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
Subject Officers
SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.Evidence
The Scene
The scene was at the west side/rear of a townhouse-style residence at the southwest corner of Marguerite and Adelaide Streets in the town of Espanola. The frozen ground was covered with fresh, knee-deep snow where a four-foot-high, woven chain-link fence having an east/west bearing intersected in a T-configuration with a similar fence having a north/south bearing, thus establishing a barrier-type perimeter for the backyard at the north side of the residence. There were marks among the footprints in the snow that suggested blood or other bodily fluid(s) had been discharged in that area.Forensic Evidence
Data from the SO’s CEW and its probes, and other CEW components, were collected by the SIU FI.
CEW Data
Video/Audio/Photographic Evidence
The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.Police Communications Recordings
911 and Communications Audio Recordings
The first 911 call was received at 6:29 p.m., from the occupants of an address on John Street, informing police that the Complainant was at their door trying to break into the residence. The 911 call-taker informed the property owner, Identified Civilian (IC) #1, that police were on their way.
The second 911 call was received at 6:58 p.m., from the owner of a vehicle at an address on James Street, informing police that a man [now known to be the Complainant] was trying to break into his vehicle. The man calling 911 informed the call-taker that he had taken the Complainant twice to the ground and that the Complainant had run away.
The third 911 call was received at 7:07 p.m., from a woman inside an address on Albert Street, informing the police that the Complainant had just run past the caller’s residence. The 911 caller also relayed that she saw two police cars in the area at that time.
The fourth 911 call was received at 7:21 p.m. from a man who provided vague information as to the direction the Complainant was running in the area of Adelaide and Marguerite Streets. The man commented that the Complainant appeared “cracked out”.
Provincial Communications Centre (“OPP Provincial Communications Centre ">PCC”) Communications Audio Recordings
The first communications audio recording, which started at 6:30:39 p.m., included transmissions pertaining to the deployment of police officers in Espanola to find and arrest the Complainant.
The recordings included police officer and OPP Provincial Communications Centre ">PCC-initiated updates as to 911 callers, the Complainant’s reported behaviour and history, his appearance, and his and police officers’ movements through a residential area of Espanola, and the Complainant’s arrest. Other transmissions included communications regarding the Complainant’s transportation first to the hospital in Espanola and onward to HSN.
WO #3 radioed the OPP Provincial Communications Centre ">PCC communications operator about 24 minutes and nine seconds into the OPP Provincial Communications Centre ">PCC recordings provided by the OPP, which did not include the SO’s and/or WO #3’s purported announcement at the material moment that a CEW had been deployed. WO #3 asked the OPP Provincial Communications Centre ">PCC communications operator if she would play back the tape, “Like 1925-ish and see when I said Taser is deployed.” The response from the operator was, “Oh I never heard you say that.” WO #3 replied, “It came over, it just never got into the CAD.” The operator responded, “Oh God I never heard it; Jesus.” WO #3 commented, “I heard it come over [the SO]’s radio.” The operator then stated, “Okay, let’s do the old playback.” There were some clarifying transmissions between the two women in efforts to help the operator find the audio. The operator repeated her disbelief, saying, “I honestly did not hear you say that, or I would have typed it in, but I will play everything back and listen real hard – I will try and find it.”
At about 24 minutes and 25 seconds into the OPP Provincial Communications Centre ">PCC communications audio recording, the operator said she found it, saying, “19:29:23, Jesus, I didn’t hear that. Very clear as a bell, too.” WO #3 stated, “Perfect.” The remainder of the communications dealt with updates on the transportation of the Complainant to HSN, his medical status, and post-incident tasks for data management and the impending SIU notification.
Recording 2
The second communications audio recording included telephone communications, and started at 9:26 p.m.
The first call was made by the PPC communications operator informing Identified Police Officer (IPO) #1 that a “Taser” had been deployed and relaying to IPO #1 that “through all that business” she did not hear that a “Taser” had been deployed.
The second call was between WO #4 and IPO #2 discussing briefly the event and where the Complainant was and would be going in terms of hospitals. IPO #2 reminded WO #4 that the SIU would have to be notified. WO #4 asserted that only the SO had deployed his CEW and that the SO and WO #1 were with the Complainant at the hospitals in Espanola and Sudbury.
The third call was to IPO #3 by IPO #2 in the OPP Provincial Communications Centre ">PCC notifying him of the incident and its nature. IPO #3 advised IPO #2 that the OPP would monitor the incident until it was known whether the Complainant’s vision was compromised and admitted to hospital. IPO #3 said he would follow up in the morning with calling WO #4 for an update, reciting that the SIU mandate was activated with him being “admitted to hospital”. There was a discussion regarding whether not the injury involved the eye or just the eyebrow and IPO #3 took the position to wait until more information was known before notifying the SIU. This call occurred when the Complainant was still at the hospital in Espanola, meaning sometime after 7:53:12 p.m. but before 11:15:33 p.m., as per the Ambulance Call Report (ACR) data independent of the OPP Provincial Communications Centre ">PCC communications audio recordings.
The fourth call was from IPO #2 to WO #4 updating him on his conversation with IPO #3 and IPO #3’s decision to wait on an update on the Complainant’s condition before notifying the SIU.
The fifth call was from IPO #3 to IPO #2 reiterating his understanding of the SIU mandate; that since the injury might involve the Complainant’s vision, even though he had not yet been “admitted” to hospital, that the vision issue was enough to notify the SIU. IPO #2 reiterated that medical personnel were still trying to ascertain if the injury was to the eye itself or just a “flesh wound”. IPO #3 indicated that he was to be notified if the Complainant was admitted to hospital or if the OPP learned that the injury impaired the Complainant’s vision.
The sixth call was from WO #4 to IPO #2 updating him on the Complainant’s condition, advising that the Complainant would be remaining in hospital in Sudbury until he was examined by an ophthalmologist in the morning, that they might admit him, and that, “They believe that his eyeball is punctured.” This call occurred sometime after 12:45 a.m. on February 24, 2020, when it was noted in the patient chart that the Computed Tomography (CT) had been completed. IPO #2 informed WO #4 that since the injury affected the Complainant’s vision, this would be a case for notifying the SIU.
The seventh call was from IPO #2 to IPO #3 informing him that the Complainant was being admitted to HSN, that, “They feel his eye has been punctured,” and that he needed to be seen by the correct doctor in the morning.
The eighth and final call was from an unidentified police officer to IPO #2 advising “we” never got notification of the CEW deployment and that the SIU was “invoking”.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:- 911 and communications audio recordings – OPP Provincial Communications Centre ">PCC;
- CAD report;
- Drawings by WO #3 and WO #1;
- Drug paraphernalia photographs;
- Event Chronology;
- General Report;
- Google Maps marked by WO #3;
- IC #2 witness follow-up and statement;
- IC #2 vehicle damage photographs;
- The Complainant - charges;
- The Complainant - involved occurrences;
- The Complainant - knife photograph;
- Notes (2)-WO #3;
- Notes (3)-WO #3;
- Notes-WO #2;
- Notes-the SO (Redacted);
- Notes-WO #3 (unredacted);
- Notes-WO #3;
- Notes-WO #1;
- Notes-WO #4;
- Occurrence Summary;
- IC #3 Witness Synopsis;
- Property Report;
- Release documents;
- Supplementary Report – IC #2;
- Supplementary Report – Injury;
- Supplementary Report – Scene;
- Supplementary – CEW;
- CEW spent cartridge property bag;
- Use of Force certifications – the SO; and
- IC #1 Witness Statement.
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:- ACRs;
- Complainant’s clothing; and
- HSN medical records relevant to the incident.
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 several witness officers. The SO, as was his legal right, declined to interview with the SIU but did supply the investigation with a copy of his notes and a written statement. The investigation also benefitted from a review of the data downloaded from the CEW discharged during the event, as well as the 911 call and radio communication recordings.
In the evening of February 23, 2020, the OPP received a 911 call from the residence at an address on John Street in Espanola. The caller reported that the Complainant was outside the home by the door trying to break into the residence. the Complainant was at the time subject to an undertaking prohibiting his attendance at the address. Police were dispatched to the area.
As police were responding, a second 911 call came in from a male indicating that he had just been in a physical altercation with a male – the Complainant – who had tried to enter his vehicle on James Street. The SO, together with WO #3, arrived on James Street and learned from an occupant of one of the homes that the Complainant had forced his way into the residence before leaving.
The Complainant fled from police across several backyards and over fences. Following his entry into the home on James Street, the Complainant continued to flee on foot in a southerly direction over private properties toward Albert Street, eventually making his way to the area around the intersection of Adelaide and Marguerite Streets.
The Complainant ran toward the backyard of the property situated on the southwest corner of the Adelaide and Marguerite Streets intersection with the SO and WO #3, as well as WO #2, right on his tail. The officers repeatedly yelled at the Complainant to stop, advising him that he was under arrest. The Complainant did not stop. Instead, he climbed over a snowbank and made his way to a small chain link fence around the backyard of the property, which he climbed and fell over.
The SO had his CEW trained on the Complainant at this time. From a distance of about three to three-and-a-half metres, the SO discharged his weapon at the Complainant as he was getting up from the ground. The Complainant fell to the ground following the discharge and was quickly surrounded by the SO, WO #3 and WO #2, whereupon his hands were handcuffed behind his back.
Following the Complainant’s arrest, it was immediately apparent to the officers on the scene that one of the CEW’s probes had struck the Complainant in the area of one of his eyes, resulting in an injury. He was taken from the scene in ambulance to hospital.
The Complainant’s prognosis in the days following his arrest was not favourable. He was anticipated to lose vision in his left eye and the vision in his right eye was determined to be at serious risk as well. There was also some prospect that both of his eyeballs might have to be removed at some point in the future.
In the evening of February 23, 2020, the OPP received a 911 call from the residence at an address on John Street in Espanola. The caller reported that the Complainant was outside the home by the door trying to break into the residence. the Complainant was at the time subject to an undertaking prohibiting his attendance at the address. Police were dispatched to the area.
As police were responding, a second 911 call came in from a male indicating that he had just been in a physical altercation with a male – the Complainant – who had tried to enter his vehicle on James Street. The SO, together with WO #3, arrived on James Street and learned from an occupant of one of the homes that the Complainant had forced his way into the residence before leaving.
The Complainant fled from police across several backyards and over fences. Following his entry into the home on James Street, the Complainant continued to flee on foot in a southerly direction over private properties toward Albert Street, eventually making his way to the area around the intersection of Adelaide and Marguerite Streets.
The Complainant ran toward the backyard of the property situated on the southwest corner of the Adelaide and Marguerite Streets intersection with the SO and WO #3, as well as WO #2, right on his tail. The officers repeatedly yelled at the Complainant to stop, advising him that he was under arrest. The Complainant did not stop. Instead, he climbed over a snowbank and made his way to a small chain link fence around the backyard of the property, which he climbed and fell over.
The SO had his CEW trained on the Complainant at this time. From a distance of about three to three-and-a-half metres, the SO discharged his weapon at the Complainant as he was getting up from the ground. The Complainant fell to the ground following the discharge and was quickly surrounded by the SO, WO #3 and WO #2, whereupon his hands were handcuffed behind his back.
Following the Complainant’s arrest, it was immediately apparent to the officers on the scene that one of the CEW’s probes had struck the Complainant in the area of one of his eyes, resulting in an injury. He was taken from the scene in ambulance to hospital.
The Complainant’s prognosis in the days following his arrest was not favourable. He was anticipated to lose vision in his left eye and the vision in his right eye was determined to be at serious risk as well. There was also some prospect that both of his eyeballs might have to be removed at some point in the future.
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 a devastating eye injury in the course of his arrest by OPP officers on February 23, 2020. 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 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 required or authorized to do by law. The Complainant was clearly subject to arrest at the time the SO discharged his CEW. He had breached the terms of his undertaking by attending at a residence on John Street from which he was barred. The issue turns to the propriety of the force used against the Complainant, namely, the CEW discharge.
On the totality of the evidence, I am satisfied on reasonable grounds that the SO’s use of the CEW did not constitute excessive force, notwithstanding the devastating injuries to the Complainant that resulted. [1] By the time the SO discharged his weapon, the Complainant had been engaged in an hour’s long flight from police on foot in which he had attempted to commandeer a civilian’s vehicle (leading to a physical altercation with the civilian), forcibly entered into a home, and trespassed across multiple properties. He was clearly determined to escape police apprehension and his effort dogged in that purpose. Once finally within reach, the SO was of the view that his immediate apprehension was necessary in the interests of public safety. I agree. Left unchecked, I am satisfied that affording the Complainant any more opportunity to flee constituted a real and present danger to persons in the vicinity. Anything short of a CEW discharge, in my view, would have left open that opportunity. Thus, for example, the SO might have decided to continue chasing the Complainant with his colleagues, but that necessarily would have entailed a pursuit of some additional duration over slippery, snowy ground conditions during which time the Complainant might have made good his escape. On this record, I am unable to reasonably conclude that the SO’s resort to his CEW was anything other than a proportional and measured response to the exigencies of the moment.
It is highly regrettable, to say the least, that a CEW probe struck one of the Complainant’s eyes, but I have no reason to believe that the SO intentionally aimed his weapon at the Complainant’s face or that he was criminally negligent in its use. According to the SO, he aimed at the Complainant’s torso and hip area as the Complainant was in the process of getting up from the ground. The suggestion, which I accept as plausible, is that the fluidity of the Complainant’s movement in the split seconds between the decision to discharge the CEW and probe deployment resulted in the eye being inadvertently struck.
In the result, as I am satisfied that the SO acted lawfully throughout his interaction with the Complainant, there are no grounds for proceeding with criminal charges against the officer. The file is closed.
Date: September 21, 2020
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 subject to arrest at the time the SO discharged his CEW. He had breached the terms of his undertaking by attending at a residence on John Street from which he was barred. The issue turns to the propriety of the force used against the Complainant, namely, the CEW discharge.
On the totality of the evidence, I am satisfied on reasonable grounds that the SO’s use of the CEW did not constitute excessive force, notwithstanding the devastating injuries to the Complainant that resulted. [1] By the time the SO discharged his weapon, the Complainant had been engaged in an hour’s long flight from police on foot in which he had attempted to commandeer a civilian’s vehicle (leading to a physical altercation with the civilian), forcibly entered into a home, and trespassed across multiple properties. He was clearly determined to escape police apprehension and his effort dogged in that purpose. Once finally within reach, the SO was of the view that his immediate apprehension was necessary in the interests of public safety. I agree. Left unchecked, I am satisfied that affording the Complainant any more opportunity to flee constituted a real and present danger to persons in the vicinity. Anything short of a CEW discharge, in my view, would have left open that opportunity. Thus, for example, the SO might have decided to continue chasing the Complainant with his colleagues, but that necessarily would have entailed a pursuit of some additional duration over slippery, snowy ground conditions during which time the Complainant might have made good his escape. On this record, I am unable to reasonably conclude that the SO’s resort to his CEW was anything other than a proportional and measured response to the exigencies of the moment.
It is highly regrettable, to say the least, that a CEW probe struck one of the Complainant’s eyes, but I have no reason to believe that the SO intentionally aimed his weapon at the Complainant’s face or that he was criminally negligent in its use. According to the SO, he aimed at the Complainant’s torso and hip area as the Complainant was in the process of getting up from the ground. The suggestion, which I accept as plausible, is that the fluidity of the Complainant’s movement in the split seconds between the decision to discharge the CEW and probe deployment resulted in the eye being inadvertently struck.
In the result, as I am satisfied that the SO acted lawfully throughout his interaction with the Complainant, there are no grounds for proceeding with criminal charges against the officer. The file is closed.
Date: September 21, 2020
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) While I have assumed for purposes of my decision that the Complainant was incapacitated by the CEW discharge, there is evidence suggesting that, in fact, the CEW discharge was ineffective and it was a loss of footing in the deep snow that caused the Complainant to fall to the ground ahead of his arrest. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.