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SIU Director’s Report - Case # 20-OCI-059

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

The Investigation

Notification of the SIU

On March 15, 2020 at 6:13 a.m., the Chatham-Kent Police Service (CKPS) notified the SIU of an injury suffered by the 42-year-old Complainant during his arrest earlier that morning.

According to the CKPS, on March 15, 2020 at 1:05 a.m., the CKPS received a call from a third-party reporting a domestic dispute at a residence in Chatham. The Complainant attended the residence of Civilian Witness (CW) #1 and pointed a gun at a door separating him from CW #1. The Complainant had a probation order prohibiting him from attending CW #1’s address. The Complainant left the residence riding a bicycle.

The Complainant was located on Edgar Street. He was arrested and taken to the police station, where he mentioned his hand had been injured. The Complainant was taken to the Chatham-Kent Health Alliance (CKHA) hospital and diagnosed with a broken finger and a possible concussion.

The Team

Number of SIU Investigators assigned: 2

Complainants

Complainant: 42-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed
WO #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

Edgar Street runs parallel to Park Avenue West in Chatham. It is a residential street that ends in a cul-de-sac area, near Lacroix Street. Across Lacroix Street is a Sobeys grocery store.

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 sources:
  • Sobeys Video; and
  • In-station Custody Area Video Recordings.


Sobeys Video


The Sobeys grocery store in Chatham is located on the northwest corner of the intersection of Lacroix Street and Park Avenue West.

A camera mounted on the front of the store was approximately 130 metres away from the location of the Complainant’s arrest. Given that the Complainant’s arrest took place at nighttime and the emergency lighting on the police vehicles were active, the video recording did not assist the SIU in understanding the circumstances of the police interaction with the Complainant.


In-station Custody Area Video Recordings


WO #2 and a special constable were in the booking area when the Complainant was escorted into the area by the SO, at 1:50 a.m. The Complainant was soft-spoken and was difficult to hear on the audio portion of the video recording.

WO #2 asked the Complainant if he had any injuries and the Complainant responded he had a broken hand. He said he had just suffered the injury. WO #2 asked, “And how did that come about?” The Complainant’s response was too difficult to hear. He made a comment that ended in the words, “… snap it.” He also complained his head had been “smashed” against a window. The Complainant stated he had smoked marijuana earlier and had been smoking methamphetamine “pretty much all day.” He denied any alcohol consumption.

At 2:06 a.m., the Complainant was taken to be lodged in a cell.

At 2:18 a.m., WO #2 escorted the Complainant back into the booking area. He asked the Complainant to confirm they had spoken and the Complainant did not wish to be taken to hospital. WO #2 also noted the Complainant had earlier alleged a police officer had done something to him, but after speaking the Complainant did not want to do anything about the matter. The Complainant nodded affirmatively. WO #2 asked, “So you’re not making a complaint of any wrongdoing?” and the Complainant shook his head “no”. At 2:19 a.m. the Complainant was returned to the cells area.

Police Communications Recordings


911 Communications Recording


A man called the CKPS to report his friend, CW #1, was sending him messages claiming her ex-boyfriend, the Complainant, was threatening to kill her. The caller reported CW #1 was locked in her garage and the Complainant was in her backyard somewhere. The caller stated he believed the Complainant might be in possession of a firearm.

Police officers responded to CW #1’s residence. An officer reported the Complainant had departed the area. Police officers travelled to where the Complainant was known to reside. An officer then reported the Complainant was riding a bicycle westbound.

The SO reported he had the Complainant detained on Edgar Street. He asked someone to check the south side of Park Avenue West.

One officer then reported, “I’ve located it, SO.” A police officer, believed to be the SO, could be heard over an open microphone saying, “You fucking (possibly “tire”) eh?”
The officer who located the firearm stated the firearm was recovered at an address on Park Avenue West. He reported it was a replica handgun. The dispatcher reported the Complainant was prohibited from possessing firearms. The Complainant was also prohibited from communicating with CW #1. A police officer then reported he had a person in custody.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the CKPS:
  • A copy of the communications recordings;
  • The Computer-aided Dispatch Details report;
  • A copy of the in-station custody area surveillance recordings;
  • Notes of the SO;
  • Will State – the SO;
  • Notes of designated WOs; and
  • CKPS Statement – CW #1.

Materials obtained from Other Sources

In addition to the materials received from the CKPS, SIU obtained and reviewed the following materials from other sources:
  • Medical records from the CKHA; and
  • A surveillance camera recording from a Sobeys grocery store in the area where the Complainant was arrested.

Incident Narrative

While the material events in question were not uncontested, the following scenario appears common ground in the evidence gathered by the SIU, which included statements by the Complainant, an independent civilian eyewitness and several witness officers. The SO refused to be interviewed by the SIU, as was his legal right, but did provide the investigation his report and notes in respect of the incident. Shortly after 1:00 a.m. of March 15, 2020, the CKPS received a 911 call from an acquaintance of CW #1. CW #1 had contacted him from within her locked garage, in which she had sought refuge when her estranged partner – the Complainant – had confronted her in the backyard of her home. According to CW #1, the Complainant was threatening her and had pointed a handgun at the garage door. Officers were immediately dispatched to the address.

Having arrived at CW #1’s home to learn that the Complainant had fled the area, the SO, together with WO #4 and WO #1, set about trying to locate him. The Complainant was quickly located emerging from his residence. When WO #4 called out to him, the Complainant mounted a bicycle and pedalled away. The officers pursued the Complainant in their cruisers a short distance to Edgar Street.

The Complainant dismounted his bicycle in the cul-de-sac which marked the end of Edgar Street, raised his arms as directed to do so, and was taken into custody by the SO. The SO walked the Complainant back to his cruiser – an SUV-type vehicle – and held him front-first against the passenger side. WO #4 arrived and searched the Complainant in this position. The Complainant was then handcuffed and lodged in the rear seat of WO #4’s cruiser.

Back at the police station, the officer-in-charge – WO #2 – learned about evidence that suggested that one of the Complainant’s hands was broken, the result of force used by the SO during his arrest. The Complainant was subsequently transported to the hospital, where his fractured hand and possible concussion were 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

In the early morning hours of March 15, 2020, the Complainant was arrested by CKPS officers and subsequently taken to hospital, where he was diagnosed with a fractured hand and possible concussion. One of the arresting officers – 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 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 authorized or required to do by law. I accept that the officers were proceeding lawfully to effect the Complainant’s arrest given what they had been told about the 911 call involving the Complainant and a gun, and what they personally learned from speaking with CW #1. The issue turns to the propriety of the force used by the SO in the course of the Complainant’s arrest.

If true, the incriminating evidence’s rendition of the circumstances surrounding the Complainant’s arrest suggests the SO used excessive and, therefore, unlawful force. According to the incriminating evidence, the SO was needlessly rough as he held the Complainant against the side of the cruiser, pushing his face forcefully into the vehicle on multiple occasions and smashing one of his hands against the passenger window, causing his hand to break.

While a charging authority must limit its assessment of the strength of the evidence to threshold considerations to avoid usurping the role of the court, I am satisfied that the incriminating evidence is insufficiently trustworthy to warrant being put to the test in the form of charges. The incriminating evidence suggests that the Complainant had not consumed any drugs around the time of the incident. However, other, more reliable evidence indicates that Complainant was intoxicated by drugs during his confrontation with police, and that his intoxication rendered a concussion diagnosis uncertain. This casts doubt on the credibility and reliability of the incriminating evidence. The incriminating evidence was also less than forthcoming about the Complainant’s prior discreditable conduct involving CW #1 and his possession of a BB gun, which the weight of the other evidence clearly established.

What remains of the evidence, suggests that the Complainant may well have been roughhoused when initially confronted by the SO, who quickly grabbed hold of the Complainant and forced him against the passenger side of his cruiser, but did not have his head and one of his hands slammed into the cruiser in the fashion as alleged. On this record, I am unable to fault the SO for robustly taking hold of the Complainant and pinning him against the cruiser. He had good reason to believe that the Complainant might be armed with a firearm, with which he had just threatened CW #1, and was therefore entitled to assert firm physical control over his movements.

In the final analysis, while the injury the Complainant sustained is some corroboration of the force that incriminatory evidence suggests was used against him, it falls just short, in my view, of justifying charges in this case considering the significant frailties associated with the incriminatory evidence, the weight of the countervailing evidence, and the possibility of the fracture having been inflicted some time prior to his interaction with the police. 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