SIU Director’s Report - Case # 20-PCI-266
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Mandate of the SIU
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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 30-year-old man (the “Complainant”).
Notification of the SIUOn October 13, 2020, at 10:50 p.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury.
The OPP reported that on October 13, 2020, at 10:10 p.m., Cambridge OPP received a 911 call for a report of a pedestrian running on Highway 8 near the Grand River bridge in Cambridge. The Subject Officer (SO) responded and engaged the male, now known to be the Complainant. The Complainant fled and the SO caught the Complainant. A struggle ensued in which the SO deployed his conducted energy weapon (CEW). One of the probes fell off the Complainant and the Complainant removed the second probe from his body. The Complainant ran and jumped over the railing of the bridge, falling about 40 to 50 feet to the ground below. The Complainant survived and was transported to Hamilton General Hospital (HGH) by air ambulance with life-threatening injuries.
The TeamNumber of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1
The SIU arrived on the scene at 12:37 a.m. of October 14, 2020 and immediately began an investigation.
The Complainant was interviewed and consented to the release of his medical records.
Due to the coronavirus pandemic, arrangements were made to have SIU investigators speak with civilian witnesses and witness officers by telephone.
The scene was forensically examined and photographed.
The involved CEW was seized for evidence. The CEW history was downloaded and reviewed by an SIU Forensic Investigator.
On October 14, 2020, SIU investigators conducted a telephone interview of the Complainant’s father to obtain preliminary information regarding the Complainant.
On October 14, 2020, the SO was designated as a subject officer. On October 26, 2020, the SO provided a statement to the SIU. However, under the advice of his legal counsel, the SO declined to provide copies of his notebook entries.
Complainant:30-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW Interviewed
Witness OfficersWO #1 Interviewed
WO #2 Interviewed
Subject OfficersSO Interviewed, but declined to submit notes, as is the subject officer’s legal right.
The SceneHighway 8 is a roadway that runs in a general eastbound and westbound direction. There are four marked paved lanes in each direction of the highway with paved shoulders with concrete retaining walls situated at the north and south edges of the paved shoulders. This section of the highway is a bridge over the Grand River, near the Fairway Road exit ramp.
The eastbound lanes and westbound lanes are separated by concrete barriers with an opening of 1.8 metres. Through the opening the Grand River can be seen below. Lying in the muddy embankment appeared to be a yellow medical blanket. There were large overhead streetlights situated in the 1.8 metres opening, illuminating the roadway.
The SO’s marked OPP 4-door Dodge Charger was parked on the south shoulder of the roadway facing in an easterly direction on Highway 8. Located east of the SO’s police vehicle on the south shoulder of the roadway were 4-pylons marking an area containing CEW anti-felon identification tags, blast doors and separators. Located on the north shoulder of the roadway was a pylon next to a CEW probe. Located further to the east on the north shoulder of the highway were additional pylons in the area of CEW taser wire.
Police Communications RecordingsThe first radio transmission from any of the involved officers was from the SO being dispatched to attend Highway 8 near the Fairway Road exit ramp in relation to a male running on the shoulder of the highway.
According to the Intergraph Computer Aided Dispatch (ICAD) records, at 9:49:42 p.m., the SO advised the police dispatcher that he was unable to locate the male. The SO then reported he found the male on Highway 8 near the Fairway Road exit ramp. A short time later, the SO was captured sounding panicked while he transmitted over the radio that the male was running in and out of traffic. Further audio recordings captured him shouting in a panicked voice, “Get on the ground, there is a lot of traffic.” During the SO’s radio transmissions there were background noises suggesting the sounds were vehicles passing by on the highway. WO #2 informed the police dispatcher that he was on his way to assist the SO and asked that Waterloo Regional Police Service (WRPS) be contacted.
At 10:16 p.m., the SO could be heard broadcasting again, “The male is hopping over the lanes, stop, stop, the male just tried to jump over the Grand River bridge, and has fallen but moving, send EMS.” The SO further informed the police dispatcher that he deployed his CEW. He noted that the male had fallen approximately 40 feet to the ground below the bridge.
The remainder of the radio transmissions involved traffic control and emergency service involvement, of no evidentiary value to the investigation.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the OPP Cambridge:
- OPP General Report and the Complainant’s charges and undertaking;
- ICAD Event Log;
- Global Positioning System (GPS) Data;
- Occurrence Details;
- OPP Computer Screen Shot of previous occurrences with the Complainant;
- Training Record-Use of Force and CEW Training of the SO; and
- Record about using Google Earth for viewing files.
Materials obtained from Other SourcesThe SIU also obtained and reviewed the Complainant’s medical records from HGH.
Arriving in the area at about 9:50 p.m., the SO, while eastbound in his cruiser on Highway 8, located the Complainant running eastward on the southside shoulder of the roadway. The officer pulled onto the shoulder ahead of the Complainant, parked his cruiser and exited. The Complainant ran past the officer and the driver’s side of the cruiser, saying nothing as the SO asked if he was okay.
The SO chased after the Complainant on foot, caught up with him, and grabbed his back, shoulders and arms. The two began to wrestle and eventually found themselves on the ground by the side of the highway. Making it back onto their feet, the Complainant, north of the SO’s position, squared up against the officer. The SO backed up a step to create distance and ordered the Complainant to stand down for everybody’s safety. The Complainant yelled, “No,” and refused to get to the ground when directed to by the SO. The SO drew his CEW and discharged it at the Complainant.
The Complainant was initially felled by the discharge, but was back on his feet within seconds and running into the eastbound lanes of Highway 8 in a northeasterly direction. The SO ran parallel with the Complainant on the shoulder pleading with him to get off the highway. Some of the eastbound traffic slowed and stopped, while other motorists sped by.
The Complainant, narrowly avoiding being struck, made it to the concrete barrier that lined the northern edge of the north shoulder of the Highway 8 eastbound lanes. This area of the highway was a bridge that traversed the Grand River with an open gap dividing the east and westbound lanes. The Complainant climbed onto the barrier and then fell through the gap onto the river’s embankment, a drop of more than ten metres.
The SO maneuvered across the highway onto the northern shoulder of the eastbound lanes, looked over the barrier, and saw the Complainant on the ground below.
Fire department personnel, paramedics and WRPS officers began to arrive on scene. The Complainant was rescued from the riverbank and airlifted to hospital in Hamilton. He was diagnosed with a serious injuries.
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,
Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
Section 17, Mental Health Act -- Action by police officer
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or(c) has shown or is showing a lack of competence to care for himself or herself,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) serious physical impairment of the person,
Analysis and Director's Decision
The liability issues that arise in this case are twofold. First, was the force used by the officer against the Complainant lawful? Second, did the care exercised by the SO as he engaged the Complainant and tried to save him harmless from the perils of highway traffic fall within the limits of the criminal law? In my view, the answer to both questions is in the affirmative.
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. The Complainant gave every indication of being of unsound mind at the time and at risk of doing himself harm. He was walking along the shoulder of the highway for no apparent reason and confronted the officer aggressively when asked if he was okay. In the circumstances, I am satisfied that the SO was proceeding to lawfully apprehend the Complainant under section 17 of the Mental Health Act.
Thereafter, I am satisfied that the officer acted reasonably in attempting to take the Complainant into custody. The two wrestled by the side of the road, neither getting the upper hand, after the officer took hold of the Complainant. No strikes were thrown by the officer, though there is evidence of the Complainant throwing a punch or two at the officer.
The subsequent use of the CEW by the SO was, in my view, commensurate with the exigencies at hand. As the Complainant was dangerously close to the live lanes of traffic, the officer could not risk physically engaging him once again without endangering both of their lives. What was needed was a means by which the Complainant could be immediately incapacitated from a distance. The CEW fit that bill and appeared to work if only, regrettably, for a period. Within seconds, one of the probes dislodged, whereupon the Complainant was able to regain his strength and run headlong into the eastbound lanes.
At this point there was very little the SO could do other than what he did – track the Complainant’s path of travel from the shoulder while shouting at him to remove himself from the roadway. When traffic finally cleared sufficiently to allow the SO to cross, he did so; by this time, however, it was too late. The Complainant had fallen through the gap between the concrete barriers to the ground below. On this record, there is no question of any criminal negligence on the part of the officer that can be said to have contributed to the Complainant’s injuries.
For the foregoing reasons, I am satisfied that the SO conducted himself lawfully throughout his engagement with the Complainant – in the force he used attempting to apprehend the Complainant and the care he exercised endeavouring to keep him safe from the live lanes of traffic on Highway 8. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Date: March 22, 2021
Electronically approved by
Special Investigations Unit
- 1) The times are derived from the weapon’s internal clock, and are not necessarily synchronous with actual time. [Back to text]
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.