Director's Report Details

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.

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. 

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.

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

Notification of the SIU

On August 4, 2020, the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant. A woman had left a voice mail message with the OPP reporting that the Complainant had been injured during his arrest on August 1, 2020 at 1:43 a.m. The woman was contacted by the OPP and she reported that the Complainant had a broken foot, broken finger and facial fractures, all resulting from his interaction with the police.

The Scene

The scenes were located on Ann Street in Bracebridge and outside the Emergency Department entrance at South Muskoka Memorial Hospital.

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

OPP Communications - August 1, 2020

911

• 1:42 a.m. – CW #1, an employee at the South Muskoka Memorial Hospital, contacted the OPP communication centre and reported that two intoxicated males just left the emergency department. One of the males had broken a gate in the parking lot.

Radio

• 1:44:37 a.m. – The dispatcher advised that there was a call from the hospital indicating that a male had left and broken a parking lot gate. The male was impaired by alcohol and was walking on Ann Street towards the river;
• An officer advised that they were on River Street and had the males on Ann Street;
• The same officer asked for a check on a name – the Complainant’s. There was screaming in the background of the communication. A male voice said the guy was acting like a fool and they were going to figure out what to do with him;
• Another officer advised that she had CW #2 and was going to take him home;
• An officer said that the male was assaultive and punched him in the face, but everything was good;
• The officer advised that the male was being held for assault police and mischief and they were going to have the male checked at the hospital;
• 1:58:18 a.m. – The dispatcher spoke to the sergeant [now known to be SO #1] in Bracebridge. SO #1 advised that he was fine and was taking the suspect to the hospital; and
• 1:59:14 a.m. – SO #1 told the dispatcher that he had been assaulted and got a shiner; nothing serious.

 

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:

• Background Event Chronology;
• OPP Communications – 911 and Radio
• Email with shift roster and requested disclosure;
• Notes-WO #3;
• Notes-WO #5;
• Notes-WO #2;
• Notes-WO #1;
• Notes-WO #4;
• Notes-WO #6;
• Occurrence-Involved Persons;
• Occurrence-List of Records; and
• Photographs – SO #1’s right eye.

Materials obtained from Other Sources

The SIU obtained and reviewed the following records from non-police sources:

• Medical Records – South Muskoka Memorial Hospital; and
• Injury photos of the Complainant.

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, SO #1, and several witness officers and civilians who were present at points during the Complainant’s period of custody. As was his right, SO #2 chose not to interview with the SIU or authorize the release of his notes.

At about 1:40 a.m. on August 1, 2020, the OPP received a 911 call from CW #1, an employee at the South Muskoka Memorial Hospital. CW #1 indicated that two inebriated men had just left the emergency department and one of them had broken a gate in the parking lot. Officers were dispatched to investigate.

The Complainant was responsible for the property damage. In the company of his friend, CW #2, the Complainant had gone to the hospital in a cab to have his left arm checked out. He and CW #2 had been at a house party the evening before where they drank to excess. In the course of the festivities, the Complainant had fallen from a deck and begun to feel pain in his left arm and side. The Complainant was loud and belligerent at the hospital. At one point, while still being triaged and concerned about being infected with the coronavirus, the Complainant up and left the hospital with his friend in tow.

SO #1 and SO #2 arrived in the area of the hospital in a marked SUV and located the Complainant and CW #2 walking along Ann Street. The Complainant was limping and clutching his left arm. He greeted the officers with the same belligerence he had displayed at the hospital. With the arrival of other officers, CW #2 was placed into a cruiser and offered a ride home while the Complainant agreed to be returned to hospital to be examined.

The Complainant was placed in the back seat of SO #1’s cruiser where he sat peacefully but only for a while. His ire returned and he started striking the divider cage inside the cruiser. SO #1 opened the rear door and advised the Complainant that he was under arrest for public intoxication. The Complainant tried to exit the cruiser and at one point punched SO #1 in the right eye. With his right forearm across the Complainant’s chest, SO #1 used his weight to keep the Complainant in the cruiser and reacted to the punch by delivering a punch of his own to the Complainant’s face with his left hand. With the help of WO #1 and SO #2, the officers were able to reinsert the Complainant’s legs into the cruiser and close the doors.

SO #1 and SO #2 drove the Complainant back to the hospital and parked in front of the emergency doors. They were accompanied by the other officers who were present when the Complainant was picked up. The Complainant’s combativeness remained unabated. As SO #1 opened the rear driver’s side door, the Complainant immediately flailed his arms and legs at the officer striking him several times. SO #1 punched the Complainant twice to the face, after which the officer grabbed hold of the Complainant and forcibly removed him from the cruiser. The Complainant was placed face first on the ground. He continued to resist as the officers attempted to handcuff him and was struck with an additional punch by SO #1 and one or two strikes to the torso by SO #2. Following the punches, the Complainant’s hands were handcuffed behind his back and he was escorted into the hospital.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

On August 1, 2020, the Complainant was taken into police custody and subsequently diagnosed with fractures of the right orbit and nasal bone. SO #1, the arresting officer, and SO #2, 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 the subject officers 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 Complainant was lawfully in the custody of the police for public intoxication. By all accounts, he was severely inebriated at the time of the events in question, apparently injured and in need of medical attention, and in no condition to be by himself on a public roadway. His friend, CW #2, was also intoxicated and had been placed in another cruiser for a ride back to his residence. The issue turns to the propriety of the force used by the subject officers in taking and keeping the Complainant in custody.

With respect to the first altercation, occurring inside the cruiser on Ann Street just after the Complainant was advised he was being placed under arrest, I am satisfied that SO #1 did not resort to excessive force when he punched the Complainant. The strike was a reaction to the officer having himself just been punched in the face by the Complainant and seems a reasonable and proportionate tactic in the circumstances to have adopted in deterrence of any further aggression.

I am further satisfied that SO #1 and SO #2 acted within the confines of the law in the course of their physical engagement with the Complainant on the hospital grounds. The Complainant had yet to be handcuffed when he attacked SO #1 as soon as the rear driver’s side door was opened. This time, the officer punched the Complainant twice before he was able to grab hold of him and force him to the ground outside the cruiser. In view of the Complainant’s violence at this time, I am unable to reasonably conclude that SO #1’s strikes and the takedown exceeded what was necessary in the moment to counter the Complainant’s resistance. For similar reasons, I am not persuaded that the officers crossed the line as they dealt with the Complainant on the ground. Though clearly at a disadvantage at the time, the weight of the evidence indicates that the Complainant continued to resist the officers as they attempted to secure his arms so they could be handcuffed. In the circumstances, I am not satisfied on reasonable grounds that the officers acted indiscriminately when, in an effort to overcome the Complainant’s resistance and wrestle control of his arms, they delivered another two, and possibly three, punches. The strikes proved effective as the officers were thereafter able to handcuff the Complainant. No further force was used.

It should be noted that a paramedic present in the area – CW #4 – characterized the use of force by the police at the hospital as excessive. According to CW #4, the Complainant was repeatedly kicked and punched by up to five police officers while offering no resistance of his own.

CW #4’s rendition of events stood alone among the witness accounts. Not even his partner, and similarly situated witness, CW #5, saw the type and number of strikes that CW #4 did. In view of the weight of the countervailing evidence, I am not satisfied that CW #4’s evidence is sufficiently cogent to warrant criminal charges. This is particularly true as CW #4 was unable to identify any of the officers while also acknowledging that he was not fully apprised of the entirety of the interaction between the police and the Complainant.

In the result, while I accept that the Complainant’s facial fractures resulted from the force used by one or both of SO #1 and SO #2, the evidence is insufficient to reasonably establish that the subject officers acted unlawfully in their dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: March 1, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit