SIU Director’s Report - Case # 20-PCI-198
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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 serious injuries sustained by a 56-year-old man (the “Complainant”).
“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 serious injuries sustained by a 56-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On August 13, 2020, at 4:30 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant. The OPP advised that on August 13, 2020, at about 12:00 p.m., the Complainant was arrested in relation to a domestic violence incident, which occurred on August 12, 2020. The arresting police officers noticed the Complainant was sweating profusely and appeared to be in pain. When questioned, he admitted to taking heroin and various pain medications. The Complainant was subsequently transported to the Muskoka Algonquin Health Care Centre (MAHCC) in Bracebridge and diagnosed with having old fractured ribs. According to the OPP, the treating physician believed the injuries to be at least two weeks old. While in hospital, the Complainant stated the rib injuries were caused by police when he was arrested six weeks ago.
The OPP advised the Complainant was arrested on June 23, 2020 at a motel in Bracebridge in relation to a domestic violence incident. During the arrest, the Complainant struggled with the arresting police officers. The OPP advised that upon the Complainant’s release from custody on June 24, 2020, he complained of rib pain. However, the Complainant refused the offer to be transported to hospital by the releasing police officer.
The arresting police officers on June 23, 2020 were Subject Officer (SO) #1 and SO #2.
The Team
Number of SIU Investigators assigned: 3
Complainant:
56-year-old male interviewed, medical records obtained and reviewedCivilian Witnesses
CW Interviewed Witness Officers
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
Subject Officers
SO #1 Declined interview and to provide notes, as is the subject officer’s legal rightSO #2 Declined interview and to provide notes, as is the subject officer’s legal right
Evidence
The Scene
The incident occurred outside of the Complainant’s motel room in Bracebridge. The scene was not held and, therefore, no scene examination was conducted. Police Communications Recordings
The recordings which were made on June 23, 2020 were reviewed. The recordings were unremarkable. At about 6:11 p.m., the Complainant’s common law partner advised police that the Complainant was suicidal and had made suicide attempts in the past. Per the Complainant’s partner, the Complainant had indicated he was going to drive into a rock cut. At 9:14 p.m., the dispatcher was notified that police officers were with the Complainant. At 9:18 p.m., the dispatcher was notified the Complainant was en route to the detachment and the starting mileage was 22204 kilometres. At 9:20 p.m., the ending mileage was reported as 22206 kilometres. Video/Audio/Photographic Evidence
Motel’s Closed-circuit Television (CCTV) video
OPP Cell Video
At 9:26 p.m., the Complainant took off his shirt and tore it up. A guard came into his cell and removed the shirt. The Complainant made suicidal remarks. [1] The remainder of the cell video was unremarkable.
Police Videos on June 24, 2020
The first video showed the Complainant walking into a room with his hands handcuffed to the front. It appeared the Complainant was in some pain as he came into the room and sat down on a stool. The remainder of the footage, including the second video, was unremarkable.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:- Arrest Booking Report;
- Arrest Report;
- Computer-assisted Dispatch Details (x2);
- Communications recordings;
- Domestic Violence Report;
- Email regarding detachment guards on duty-August 19, 2020;
- General Occurrence;
- Notes of witness officers;
- Occurrence Report;
- Prisoner Custody Report;
- Show Cause Report;
- Supplementary Occurrence Report;
- Police custody video recordings; and
- Victim Report.
Materials obtained from Other Sources
The SIU also obtained a copy of the Complainant’s medical records from MAHCC.Incident Narrative
The following scenario emerges on the weight of the evidence, which included interviews with the Complainant and WO #1, the latter present during the arrest. As was their legal right, neither subject officer consented to interviews or the release of their incident notes. On June 23, 2020, OPP officers in Bracebridge were on the lookout for the Complainant. They were seeking to arrest him in relation to a domestic disturbance involving his spouse earlier in the day. Based on reports by the Complainant’s spouse, they also had reason to believe that the Complainant was suicidal.
At about 9:00 a.m., the Complainant’s vehicle was located parked at a motel in Bracebridge. WO #1, together with SO #1 and SO #2, convened at the motel and approached the Complainant’s unit. The subject officers made their way to the front door, knocked on it, and loudly announced their presence. There was no response from inside the unit. WO #1 walked to the rear of the unit, and was soon joined by SO #2. Unable to elicit a response from inside, WO #1 and SO #2 slid open the unlocked patio sliding doors and entered the unit.
The Complainant was inside the room and asleep in bed when he was woken by WO #1 and SO #2. Upon being advised that he was being arrested for making threats and the theft of a motor vehicle, the Complainant griped and complained but otherwise did not physically resist his arrest. The Complainant was given time to get dressed and collect his belongings before being escorted to the motel office to receive a refund for the room. Thereafter, the officers accompanied the Complainant back to his room whereupon be briefly entered the unit alone before again exiting.
It is at this point, as far as can be discerned, that the evidence diverges. There is evidence that the officers, frustrated at the length of time the Complainant was taking to ready himself to be taken into custody, threw him onto the ground outside his motel room and started to assault him. Specifically, it is suggested that three of the four officers present beat the Complainant with their knees and shins for about five minutes. In contrast, WO #1 alleges that the Complainant immediately began to physically resist his arrest as the two subject officers took hold of his arms and were preparing to handcuff him. SO #1 and SO #2, says WO #1, responded by taking the Complainant to the ground. The Complainant refused to release his arms on the ground for a short period but was eventually overcome by the combined efforts of the officers and handcuffed. WO #1 makes no mention of any strikes being delivered by the officers.
At about 9:00 a.m., the Complainant’s vehicle was located parked at a motel in Bracebridge. WO #1, together with SO #1 and SO #2, convened at the motel and approached the Complainant’s unit. The subject officers made their way to the front door, knocked on it, and loudly announced their presence. There was no response from inside the unit. WO #1 walked to the rear of the unit, and was soon joined by SO #2. Unable to elicit a response from inside, WO #1 and SO #2 slid open the unlocked patio sliding doors and entered the unit.
The Complainant was inside the room and asleep in bed when he was woken by WO #1 and SO #2. Upon being advised that he was being arrested for making threats and the theft of a motor vehicle, the Complainant griped and complained but otherwise did not physically resist his arrest. The Complainant was given time to get dressed and collect his belongings before being escorted to the motel office to receive a refund for the room. Thereafter, the officers accompanied the Complainant back to his room whereupon be briefly entered the unit alone before again exiting.
It is at this point, as far as can be discerned, that the evidence diverges. There is evidence that the officers, frustrated at the length of time the Complainant was taking to ready himself to be taken into custody, threw him onto the ground outside his motel room and started to assault him. Specifically, it is suggested that three of the four officers present beat the Complainant with their knees and shins for about five minutes. In contrast, WO #1 alleges that the Complainant immediately began to physically resist his arrest as the two subject officers took hold of his arms and were preparing to handcuff him. SO #1 and SO #2, says WO #1, responded by taking the Complainant to the ground. The Complainant refused to release his arms on the ground for a short period but was eventually overcome by the combined efforts of the officers and handcuffed. WO #1 makes no mention of any strikes being delivered by the officers.
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 529.3(1), Criminal Code - Authority to enter dwelling without warrant
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
Analysis and Director's Decision
The Complainant was arrested by OPP officers in Bracebridge on June 23, 2020. Several weeks later, he was diagnosed with multiple un-displaced or minimally displaced rib fractures. As his injuries were not new at the time they were diagnosed, there is evidence to suggest that they were the result of the force inflicted on the Complainant in the course of his arrest in June. SO #1 and SO #2 were the arresting officers and 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 subject officer committed a criminal offence in connection with the Complainant’s 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. Based on the information at their disposal from the Complainant’s spouse, it would appear that the officers had lawful grounds to arrest the Complainant for having uttered threats and the theft of a motor vehicle. The interesting issue is whether the officers were on the premises of the motel unit lawfully at the time they arrested the Complainant.
Police officers who effect arrests while trespassers within a private dwelling-house may well render their arrests unlawful. The question, therefore, is whether the officers were unlawfully inside the unit at the moment they arrested the Complainant. [2] Though they had not been given permission to enter, nor had they secured judicial warrant to do so regardless of the occupant’s consent, I am satisfied that the existence of exigent circumstances legally justified their entry into the room.
Pursuant to R. v. Feeney, [1997] 2 SCR 13, except under exceptional circumstances, police officers are prohibited from forcibly entering a private dwelling without warrant to effect an arrest. Subsequent to Feeney, supra, sections 529 – 529.5 were introduced into the Criminal Code to codify the Feeney warrant requirement. Section 529.3, however, delineates circumstances in which a warrant to enter is not required. It provides as follows:
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
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. Based on the information at their disposal from the Complainant’s spouse, it would appear that the officers had lawful grounds to arrest the Complainant for having uttered threats and the theft of a motor vehicle. The interesting issue is whether the officers were on the premises of the motel unit lawfully at the time they arrested the Complainant.
Police officers who effect arrests while trespassers within a private dwelling-house may well render their arrests unlawful. The question, therefore, is whether the officers were unlawfully inside the unit at the moment they arrested the Complainant. [2] Though they had not been given permission to enter, nor had they secured judicial warrant to do so regardless of the occupant’s consent, I am satisfied that the existence of exigent circumstances legally justified their entry into the room.
Pursuant to R. v. Feeney, [1997] 2 SCR 13, except under exceptional circumstances, police officers are prohibited from forcibly entering a private dwelling without warrant to effect an arrest. Subsequent to Feeney, supra, sections 529 – 529.5 were introduced into the Criminal Code to codify the Feeney warrant requirement. Section 529.3, however, delineates circumstances in which a warrant to enter is not required. It provides as follows:
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
In the instant case, WO #1 explained that the officers entered the unit out of concern for the Complainant’s well-being. I believe WO #1, and believe he had good cause to be so concerned. The officers were in receipt of information from the Complainant’s spouse indicating that the Complainant had threatened to drive into a rock cut to end his life as he left her premises earlier that day. Having arrived at the motel unit and receiving no response of any kind from inside, it seems to me the officers acted reasonably in entering the room as they did to assess the Complainant’s condition. Having entered, lawfully in my view, they were thereafter acting within the lawful execution of their duties in arresting the Complainant for the threats and theft. The issue turns to the propriety of the force used against the Complainant during his arrest.
If one were to believe the more incriminating evidence, the Complainant was clearly the victim of excessive force and an unlawful assault at the hands of several officers. However, I am satisfied that this evidence is insufficiently reliable to warrant being put to the test by a trier-of-fact. For example, this evidence appears to be inaccurate about the timing of the Complainant’s disclosure of his injuries to police. Moreover, given the uncertainty around the age of his rib fractures, the injuries the Complainant suffered are not capable of bolstering the evidence of excessive force. In any event, it seems to me that the injuries are not inconsistent with the police version of events as proffered by WO #1, to which we turn next.
In the absence of the more incriminating evidence, what is left is WO #1’s description of the arrest. To reiterate, he says that the Complainant was grounded when he physically began to resist SO #1 and SO #2’s efforts to place him in handcuffs. I am unable on this record to reasonably conclude that the takedown fell afoul of the limits of justifiable force in the circumstances. It does not appear to have been unduly aggressive in WO #1’s telling and would reasonably have been expected to safely subdue the Complainant’s resistance given the parties’ relative positional advantages with the Complainant on the ground. Thereafter, the reliable evidence indicates that no further significant force was used other than the officers’ superior manpower to wrest control of the Complainant’s arms.
In the result, whether or not the Complainant’s rib fractures occurred in the course of his arrest by SO #1 and SO #2, there is insufficient evidence to reasonably conclude that either officer committed a criminal offence. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.
Date: January 11, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
If one were to believe the more incriminating evidence, the Complainant was clearly the victim of excessive force and an unlawful assault at the hands of several officers. However, I am satisfied that this evidence is insufficiently reliable to warrant being put to the test by a trier-of-fact. For example, this evidence appears to be inaccurate about the timing of the Complainant’s disclosure of his injuries to police. Moreover, given the uncertainty around the age of his rib fractures, the injuries the Complainant suffered are not capable of bolstering the evidence of excessive force. In any event, it seems to me that the injuries are not inconsistent with the police version of events as proffered by WO #1, to which we turn next.
In the absence of the more incriminating evidence, what is left is WO #1’s description of the arrest. To reiterate, he says that the Complainant was grounded when he physically began to resist SO #1 and SO #2’s efforts to place him in handcuffs. I am unable on this record to reasonably conclude that the takedown fell afoul of the limits of justifiable force in the circumstances. It does not appear to have been unduly aggressive in WO #1’s telling and would reasonably have been expected to safely subdue the Complainant’s resistance given the parties’ relative positional advantages with the Complainant on the ground. Thereafter, the reliable evidence indicates that no further significant force was used other than the officers’ superior manpower to wrest control of the Complainant’s arms.
In the result, whether or not the Complainant’s rib fractures occurred in the course of his arrest by SO #1 and SO #2, there is insufficient evidence to reasonably conclude that either officer committed a criminal offence. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.
Date: January 11, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Based on a notation made in the OPP Prisoner Security Check form. [Back to text]
- 2) Though the Complainant was not handcuffed until sometime after the initial entry into the motel room by the officers, I am satisfied that he was under arrest as soon as the officers woke him. It was at that point that the Complainant was advised that he was being arrested and restrictions placed on his freedom of movement. [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.