SIU Director’s Report - Case # 20-PCI-219
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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 injuries a 58-year-old man (the “Complainant”) suffered.
“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 injuries a 58-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On September 2, 2020, at 9:35 p.m., the Ontario Provincial Police (OPP) reported the following. On September 2, 2020, at about 11:30 a.m., officers from the OPP Crime Unit attended a residence in Moosonee to arrest the Complainant. The Complainant barricaded himself in a washroom shortly thereafter. Police officers spoke to him through the door telling him he would be released from custody after his arrest. Some officers returned to the detachment to get a Feeney [1] warrant while others remained at the residence. Four hours later, officers returned to the residence with the Feeney warrant and they opened the bathroom door to arrest the Complainant. The Complainant began to cut his throat with a knife.
EMS attended and the Complainant was taken to the hospital in Moosonee. He was then transferred to a hospital in Moose Factory. The Complainant received 60 stitches to close a wound on his neck. The Complainant had been admitted to the hospital but, at the time of reporting, the OPP was not sure if he was being held under the authority of the Mental Health Act or for the injuries.
The Complainant’s wife was also at the residence during the incident.
The Team
Number of SIU Investigators assigned: 2 Number of SIU Forensic Investigators assigned: 0
Complainant:
58-year-old male interviewedCivilian Witness (CW)
CW Interviewed Witness Officers (WO)
WO #1 Interviewed and notes received and reviewed WO #2 Interviewed and notes received and reviewed
WO #3 Interviewed and notes received and reviewed
Subject Officer (SO)
SO Declined interview and to provide notes, as is the subject officer’s legal rightEvidence
The Scene
The scene was located inside a residence in Moosonee.Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following records from the OPP:
- Notes (Rough)-WO #2;
- Notes (Vetted)-WO #2;
- Notes (Vetted)-WO #3;
- Notes-WO #1;
- Notes-WO #2;
- Notes-WO #3; and
- Computer-assisted Dispatch, Events Log.
Incident Narrative
The material facts in question are clear on the evidence collected by the SIU, which included interviews with the Complainant and three OPP officers who participated in his arrest. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the morning of September 2, 2020, WO #1, WO #2, WO #3 and another officer travelled to a residence in Moosonee, where the Complainant and his wife, the CW, resided. They were there to arrest the Complainant on sexual assault charges. The Complainant and the CW had been anticipating their arrival and the Complainant’s pending arrest.
At word that police officers were at his door, the Complainant fled to a second floor bathroom, locking himself inside. On his way to the bathroom, he had grabbed a box cutter-type knife. The Complainant was fearful of police and the prospect of incarceration.
The officers entered the home and began to speak with the Complainant through the bathroom door. The Complainant indicated he would hurt himself with the knife if the police entered the bathroom. The officers encouraged the Complainant to disarm himself and exit. They explained that he would be released quickly from police custody in an effort to persuade him to open the door and not hurt himself. The CW also took a turn at speaking with the Complainant attempting to prevail on him to surrender. The Complainant refused to open the door. There ensued a standoff over the next several hours.
At about 3:00 p.m., after the officers had applied for, and obtained, a Feeney warrant, the door to the bathroom was forced open by the police. The Complainant was found lying inside the bathtub. As the officers entered, he took the knife he was holding and cut his neck with it several times, inflicting serious lacerations. An officer discharged his CEW at the Complainant. The deployment incapacitated the Complainant and he dropped the knife, after which officers took hold of him and placed him under arrest.
The officers on scene began to render first aid to the Complainant, who was bleeding from his cuts. Paramedics attended and took charge of the Complainant’s care. He was transported to hospital and treated with about 50 stitches to close the wounds.
In the morning of September 2, 2020, WO #1, WO #2, WO #3 and another officer travelled to a residence in Moosonee, where the Complainant and his wife, the CW, resided. They were there to arrest the Complainant on sexual assault charges. The Complainant and the CW had been anticipating their arrival and the Complainant’s pending arrest.
At word that police officers were at his door, the Complainant fled to a second floor bathroom, locking himself inside. On his way to the bathroom, he had grabbed a box cutter-type knife. The Complainant was fearful of police and the prospect of incarceration.
The officers entered the home and began to speak with the Complainant through the bathroom door. The Complainant indicated he would hurt himself with the knife if the police entered the bathroom. The officers encouraged the Complainant to disarm himself and exit. They explained that he would be released quickly from police custody in an effort to persuade him to open the door and not hurt himself. The CW also took a turn at speaking with the Complainant attempting to prevail on him to surrender. The Complainant refused to open the door. There ensued a standoff over the next several hours.
At about 3:00 p.m., after the officers had applied for, and obtained, a Feeney warrant, the door to the bathroom was forced open by the police. The Complainant was found lying inside the bathtub. As the officers entered, he took the knife he was holding and cut his neck with it several times, inflicting serious lacerations. An officer discharged his CEW at the Complainant. The deployment incapacitated the Complainant and he dropped the knife, after which officers took hold of him and placed him under arrest.
The officers on scene began to render first aid to the Complainant, who was bleeding from his cuts. Paramedics attended and took charge of the Complainant’s care. He was transported to hospital and treated with about 50 stitches to close the wounds.
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.
Sections 219 and 221, Criminal Code - Criminal Negligence Causing Bodily Harm
219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Analysis and Director's Decision
On September 2, 2020, the Complainant suffered serious lacerations to his neck in and around the time of his arrest by OPP officers. Among 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 required or authorized to do by law. There is no suggestion in the evidence gathered by the SIU that the Complainant’s arrest on sexual assault charges was itself unlawful. Nor is there any indication that the officers were not lawfully placed inside the Complainant’s residence at the time of his arrest. Whether by way of consent, which they seemed to have obtained from the CW, or via a Feeney warrant, in their possession at the time they breached the bathroom door, I am satisfied that the officers were lawfully inside the dwelling-house.
As for the force that was used, a CEW discharge by an undesignated officer, I am unable to reasonably conclude that the officer’s conduct was objectionable. Indeed, it would appear that the discharge accomplished exactly what it was meant to achieve as the officers entered the bathroom and saw the Complainant cutting himself – it immediately dispossessed the Complainant of the knife and prevented him doing any further damage to himself.
The senior officer at the scene, the SO, was ultimately responsible for the decision to force entry into the bathroom to arrest the Complainant. The issue, therefore, is whether there was any want of care in the manner in which he approached the standoff. If so, and his want of care caused or contributed to the Complainant’s injuries and amounted to a marked and substantial departure from a reasonable level of care in the circumstances, there could be grounds to charge the officer with criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. I am satisfied that no such grounds exist.
There is insufficient evidence, in my view, to conclude that the officers’ conduct during the hours long standoff, including the SO’s endorsement of a plan to force entry into the bathroom, transgressed the limits of care prescribed by the criminal law. For about three to four hours, the officers patiently waited outside the bathroom door for the Complainant to surrender himself peacefully. Though they knew the Complainant was armed with a knife and had threatened to harm himself with it if they entered, the officers were not free to simply leave the home. Not only did they have grounds to arrest the Complainant for a serious criminal offence, they also had legitimate concerns for his state of mind and his personal safety should he be left to his own devices. As time wore on, and it seemed less and less likely that the Complainant would give himself up, the officers decided to adopt a more proactive posture and started to formulate a plan to forcibly enter the bathroom. Even still, and though they likely were lawfully inside the residence on the basis of the CW’s consent, they thought it prudent to first secure judicial authorization in the form of a Feeney warrant. The plan itself was also sensible. The SO would breach the door whereupon the undesignated officer and WO #3, armed with a less lethal CEW and a firearm, respectively, would enter to take the Complainant into custody. The weapons were in order given it was clear that the Complainant was armed with a knife with which he could harm the officers or himself. As it turned out, the Complainant turned the knife on himself as the officers entered, but was deterred from inflicting even more grievous injury than he did because of the use by the undesignated officer the CEW. On this record, I am satisfied that the SO and the other officers comported themselves with due regard for the Complainant’s health and safety.
In the result, as there are no reasonable grounds to believe that the involved officers, including the SO, comported themselves unlawfully, there are no grounds for proceeding with criminal charges in this case and the file is closed.
Date: April 19, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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. There is no suggestion in the evidence gathered by the SIU that the Complainant’s arrest on sexual assault charges was itself unlawful. Nor is there any indication that the officers were not lawfully placed inside the Complainant’s residence at the time of his arrest. Whether by way of consent, which they seemed to have obtained from the CW, or via a Feeney warrant, in their possession at the time they breached the bathroom door, I am satisfied that the officers were lawfully inside the dwelling-house.
As for the force that was used, a CEW discharge by an undesignated officer, I am unable to reasonably conclude that the officer’s conduct was objectionable. Indeed, it would appear that the discharge accomplished exactly what it was meant to achieve as the officers entered the bathroom and saw the Complainant cutting himself – it immediately dispossessed the Complainant of the knife and prevented him doing any further damage to himself.
The senior officer at the scene, the SO, was ultimately responsible for the decision to force entry into the bathroom to arrest the Complainant. The issue, therefore, is whether there was any want of care in the manner in which he approached the standoff. If so, and his want of care caused or contributed to the Complainant’s injuries and amounted to a marked and substantial departure from a reasonable level of care in the circumstances, there could be grounds to charge the officer with criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. I am satisfied that no such grounds exist.
There is insufficient evidence, in my view, to conclude that the officers’ conduct during the hours long standoff, including the SO’s endorsement of a plan to force entry into the bathroom, transgressed the limits of care prescribed by the criminal law. For about three to four hours, the officers patiently waited outside the bathroom door for the Complainant to surrender himself peacefully. Though they knew the Complainant was armed with a knife and had threatened to harm himself with it if they entered, the officers were not free to simply leave the home. Not only did they have grounds to arrest the Complainant for a serious criminal offence, they also had legitimate concerns for his state of mind and his personal safety should he be left to his own devices. As time wore on, and it seemed less and less likely that the Complainant would give himself up, the officers decided to adopt a more proactive posture and started to formulate a plan to forcibly enter the bathroom. Even still, and though they likely were lawfully inside the residence on the basis of the CW’s consent, they thought it prudent to first secure judicial authorization in the form of a Feeney warrant. The plan itself was also sensible. The SO would breach the door whereupon the undesignated officer and WO #3, armed with a less lethal CEW and a firearm, respectively, would enter to take the Complainant into custody. The weapons were in order given it was clear that the Complainant was armed with a knife with which he could harm the officers or himself. As it turned out, the Complainant turned the knife on himself as the officers entered, but was deterred from inflicting even more grievous injury than he did because of the use by the undesignated officer the CEW. On this record, I am satisfied that the SO and the other officers comported themselves with due regard for the Complainant’s health and safety.
In the result, as there are no reasonable grounds to believe that the involved officers, including the SO, comported themselves unlawfully, there are no grounds for proceeding with criminal charges in this case and the file is closed.
Date: April 19, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Named after the Supreme Court of Canada’s decision in R v Feeney, [1997] 2 SCR 13, and obtained via the framework prescribed in sections 529 and 529.1 of the Criminal Code, a Feeney warrant authorizes an officer’s forcible entry into a dwelling-house to effect an arrest. [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.