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 serious injuries sustained by a 42-year-old man (the “Complainant”).

Notification of the SIU

On October 30, 2020, the Ottawa Police Service (OPS) contacted the SIU and reported a custody injury to the Complainant.

On October 30, 2020, at 3:45 p.m., the OPS reported the August 7, 2020 arrest of the Complainant, at 9:00 p.m., for public intoxication in an area of Orleans. During the arrest, police officers took him to the ground. Police officers then decided to drive him to a shelter, where he was released from custody.

On August 13, 2020, the Complainant attended an urgent care centre for assessment. On October 8, 2020, the Complainant attended an OPS facility to file a complaint. On October 30, 2020, the OPS reviewed the complaint. A police officer contacted the Complainant and he told the police officer he had sustained nasal fractures during his arrest. The OPS confirmed his injuries with medical records.

The Team

Number of SIU Investigators assigned: 3

Complainant:

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

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed

Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right

The Scene

The scene was neither attended nor examined by SIU members. It was a trail system north of the residential neighbourhood that contained the intersection of Chantenay Drive, running eastbound only, from where it met Bilberry Drive, a road that ran principally north and south. Further north, the Ottawa River ran predominantly east and west.

Communications Recordings

911 call:

A man called 911 on August 7, 2020, at 8:35:55 p.m., and reported that while walking his dog along the bicycle paths near Bilberry Drive and Chantenay Drive he was approached by a man [now known to be the Complainant] who was covered in dirt, visibly upset, crying, and incoherent. He told the man he was, “all fucked up.” The man heard a woman
screaming and crying somewhere down the bike path but could not see her. The Complainant gave the man his cellular telephone and asked him to call 911 before walking

away. The man opined to the call-taker that his impression was the Complainant, and perhaps the woman screaming from a distance, night be on drugs.

The dispatcher obtained the man’s particulars and told him the police were on their way. The man then hung up the telephone.

Police radio communications:

There were nine communication files relevant to this matter. Recorded on August 7, 2020, they began at 9:14 p.m., and concluded at 9:54 p.m. They included messages updating the dispatch centre of what police officers learned upon their arrival and what they planned to do. One broadcast was an offer for the assistance of a police service dog, which was declined. There was a broadcast that voice contact had been made with the people in distress and another indicating they had been found. A broadcast cancelling an ambulance was made as neither of the people was injured. None of the radio transmissions indicated or suggested there had been a struggle between police officers and the Complainant nor did they record any police officer broadcasting an arrest had been made or a person had been injured. The only requests made were for a database query of the Complainant, and that a wheelchair accessible taxi be dispatched to Bilberry Drive and Chantenay Drive.

Mobile data terminal (MDT) communications:

The following summarizes the MDT communications between the SO and WO #4 on August 7, 2020. They communicated by MDT during the detention, transport, and release of the Complainant.

Relevant communications covered from 9:58 p.m., to 10:17 p.m., while the Complainant was being transported from the area of the trail system, in Orleans, to a shelter. Parts of the communications were in the French language.

At 9:58 p.m., the SO asked WO #4 to print off a provincial offence notice for Public Intoxication, to be served upon the Complainant, indicating the charge had been laid by the SO.

At 9:59 p.m., WO #4 responded he would, and the SO indicated he would serve the Complainant at the shelter.

At 10:12 p.m., the SO asked WO #5 to meet him, later, at the yards. [1]

At 10:14 p.m., the SO informed WO #4 he was passing OPS vehicles, and Ottawa Ambulance Commission vehicles with their emergency lights activated.

At 10:15 p.m., WO #4 told the SO he was driving on the parkway. [2]

At 10:16 p.m., the SO asked WO #4 if the Complainant was still bleeding. WO #4 responded he was, but not as much. The SO then asked WO #4 if the Complainant’s eyes were swollen. WO #4 responded they were dry.

At 10:17 p.m., WO #4 messaged the SO that the Complainant had been crying for a while. The SO asked why, and WO #4 responded it was hard to say. The SO proposed the Complainant was likely crying about his family and his girlfriend.

At 10:37 p.m., the two police officers agreed to meet at the yards.

Materials obtained from Police Service

The SIU obtained and reviewed the following records from the OPS:

• Arrest Policy;
• Call hardcopy (Completed Call);
• Intoxicated Persons Policy;
• List of Involved Officers;
• MDT messages for the SO and WOs;
• Notes for WO #2, WO #3, WO #4 and WO #5;
• OPS email regarding officer notes (x2);
• Photo of injuries;
• Medical record, Canadian Diagnostic Record – the Complainant.;
• Prisoner Care and Control Policy;
• Release of Persons policy; and
• Witness list SIU.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and several OPS officers who were present at the time of the events in question. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

On August 7, 2020, the Complainant and his girlfriend had travelled together to a wooded area north of Bilberry Drive and south of the Ottawa River. They spent their time talking and drinking alcohol. The Complainant’s girlfriend was confined to a wheelchair which became stuck in the uneven dirt path. The Complainant left to get help.

A man was out walking his dog when he was approached by the Complainant near the entrance to the pathway that wound through the wooded area off Bilberry Drive. The Complainant was visibly upset, covered in dirt and incoherent. He provided the man his mobile phone and asked him to call 911 before walking away into the woods again. A woman – his girlfriend – could be heard screaming and shouting from within the wooded area.

The OPS received the 911 call at about 8:35 p.m. Officers were dispatched to the scene.

The SO, WO #2, WO #3, WO #4 and WO #5 arrived on scene and met in the area of a parking lot just west of the paved entrance into the wooded area off Bilberry Drive. They agreed that WO #3 would remain behind, to organize whatever further resources might be necessary, while the other four officers entered the woods to search for the Complainant and his girlfriend. It was sometime after 9:00 p.m. and dark when the four officers set off into the wooded area with their flashlights.

The officers, having heard voices in answer to their calls, located the Complainant and his girlfriend in short order. She had fallen from her wheelchair. Both were inebriated and had insect bites across their bodies. The Complainant was assisted to his feet and his girlfriend returned to her wheelchair. With the Complainant leading the way, followed closely by the SO and WO #4, and then WO #2 and WO #5, the latter assisting the Complainant’s girlfriend in her wheelchair, the parties set off down a path to exit the wooded area.

After several minutes of travel, as the parties were making their way out of the woods toward Bilberry Drive, the SO grounded the Complainant. The Complainant landed face first, breaking his nose in the process. He was assisted to his feet, arrested for public intoxication and placed in the backseat of WO #4’s cruiser.

With the Complainant’s approval, he was escorted to a shelter by WO #4 where the plan was that he would spend the night. He had refused medical treatment at the scene and did not want to be taken to his parents’ residence. Once at the shelter, he was issued a provincial offence notice for public intoxication, following which he exited the cruiser.

The Complainant’s injuries came to the attention of the OPS on October 8, 2020, when the Complainant attended an OPS station to file a complaint about his arrest. When the police service confirmed the injuries on receipt of the Complainant’s medical records, the SIU was notified.

Section 34, Criminal Code -- Defence of person - Use of threat of force

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 

(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) The act committed is reasonable in the circumstances.

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon; 

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and 

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

On August 7, 2020, the Complainant suffered a fractured nose in an encounter with an OPS police officer. That officer – 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 broken nose.

Section 34 of the Criminal Code sets out the limits of justifiable force used in self-defence or the defence of another. It provides that an act that would otherwise constitute an offence is not an offence if it was intended to thwart a reasonably apprehended attack, actual or threatened, and the act was itself reasonable in the circumstances. In the instant case, the issue is whether there is sufficient evidence to reasonably conclude that the defence is unavailable to the SO vis-à-vis his grounding of the Complainant. In my view, the evidence falls short of reaching that threshold.

Though the SO did not provide a statement to the SIU, I am satisfied on the evidence of WO #2 and WO #4, both of whom were in the vicinity at the time, that the officer was acting to protect himself when he took the Complainant to the ground. The Complainant’s intoxicated condition had made the trek through the wooded area a slow one. He swayed from side to side and often had to be physically guided back on course. By the time the party had arrived in the area of a clearing out of the woods, it seems the SO took hold of the Complainant’s right arm to help push him along. According to WO #2, the Complainant reacted by pulling his arm away from the SO, lifting it above his head, and turning toward the officer. It was at this point that the SO, says WO #2, pulled the Complainant to the ground by the right arm. WO #4’s take on the immediate events preceding the takedown is similar, if not identical, to WO #2’s account. He too saw the Complainant pull away from the SO [3] and turn to face him. The officer adds that the Complainant then took a step or two toward the SO in an aggressive manner, whereupon the officer forced him to the ground. In light of the speed with which the SO reacted to what, on the aforementioned-record, was a threatening posture adopted by the Complainant, I accept that the takedown by the officer was executed in self-defence.

I am unable to place much if any weight on contrary evidence suggesting that the Complainant was tackled from behind by the SO because he was annoyed by the Complainant’s slow pace. If that were so, however, why wait until the parties were about to clear or had cleared the wooded area and were at or nearing the parked cruisers, in view of several neighbourhood homes and potential witnesses? There are other reasons to question the reliability of this evidence. In the circumstances, it would be unwise and unsafe to rest criminal charges on the strength of this evidence where it conflicts with countervailing accounts.

The issue turns to the propriety of the force. On the one hand, one wonders whether a takedown was strictly necessary to ward off the Complainant’s threat of force. After all, there were four officers present and the Complainant was only one. That said, given the rapidity with which events unfolded, I am satisfied that the takedown was more in the nature of an instinctive reaction than a deliberate course of action. In the circumstances, it seems to me that forcing the Complainant to the ground, as he turned in a threatening fashion toward the SO, was a legitimate tactic to deter a reasonably apprehended attack. In that position, any threat the Complainant represented would be quickly and effectively neutralized without the need to a resort to weapons or physical blows. In arriving at this conclusion, I am mindful that the law does not require that police officers who reasonably perceive themselves to be at risk of physical violence measure their responsive force with precision; what is required is a reasonable response, not an exacting one.

In the result, while I accept that the SO broke the Complainant’s nose when he grounded him, there are no reasonable grounds to believe that the officer’s conduct exceeded the bounds of legitimate force in self-defence as set out in section 34 of the Criminal Code. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: April 8, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit