SIU Director’s Report - Case # 17-OCI-243
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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 the serious injury reportedly sustained by a 28-year-old man during his arrest on September 4, 2017.
Notification of the SIUAt approximately 9:06 a.m. on September 5, 2017, the Chatham-Kent Police Service (CKPS) notified the SIU of a custody injury to the Complainant.
The CKPS reported that on September 4, 2017, at about 1:00 p.m., the Subject Officer (SO) observed the Complainant riding a bicycle which was reported stolen on August 29, 2017. When the SO attempted to stop the Complainant, the Complainant ran. The SO chased the Complainant on foot into backyards and over fences. The SO was able to grab hold of the Complainant and the SO received an elbow to his nose and a blow to his head. The SO discharged his Conducted Energy Weapon (CEW), missing the Complainant. The chase continued and the SO discharged his CEW again, striking the Complainant in the chest. The Complainant fled over a fence and was arrested by another CKPS officer. The Complainant was taken to hospital where he complained about his hand and it was x-rayed. He was diagnosed with a fracture in his left hand.
The TeamNumber of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Complainant:28-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
Witness OfficersWO #1 Interviewed, notes received and reviewed
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
Subject OfficersSO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
Once the SO had placed the Complainant under arrest, the Complainant began to struggle and tried to flee. During the struggle, the SO had the Complainant by the shirt, when the Complainant was observed to drop suddenly to the ground and come out of his shirt, following which he shoved the SO and broke free. The SO then grabbed onto the Complainant’s arm, whereupon the Complainant spun and struck the SO in the bridge of his nose with his elbow, causing the SO to release his hold on the Complainant. The Complainant and the SO again ended up in a struggle, during which the SO and the Complainant struck the brick wall of a residence. The SO was of the view that the struggle needed to end, and he withdrew his CEW and deployed it against the Complainant on two occasions, without any effect.
The Complainant then jumped atop a fence, with the SO trying to pull him off by his belt. While atop the fence, the Complainant then spun again and struck the SO above his left eyebrow, following which the SO was able to pull the Complainant from the fence and again deployed his CEW, which still appeared to have no effect on the Complainant. The Complainant then turned and jumped the fence again and ran off. The SO initially followed the Complainant over the fence, but due to fatigue, the SO returned back over the fence, radioed the position of the Complainant to other police officers, and returned to his police vehicle.
The Complainant was arrested shortly thereafter by two other police officers, whereupon he complained of pain to his left hand.
Nature of Injuries / TreatmentThe Complainant was taken to hospital and an x-ray was taken of his left hand which revealed an oblique oriented fracture through the shaft of the fourth metacarpal (the bone in the ring finger closest to the ‘pinkie’), with a mild displacement of the fracture fragment measuring about six millimetres. The hand was placed in a cast.
The SceneThe scene was not held for the SIU. The Google map image below captures the front of the two houses between which the initial struggle between the Complainant and police took place.
The Stolen Bicycle The photo below was included in the email that the SO received about a stolen bicycle.
Forensic Evidence No submissions were made to the Centre of Forensic Sciences.
Video/Audio/Photographic Evidence No video or audio recordings were located in the area. The scene photo taken by Civilian Witness (CW) #2 was reviewed.
Communications ReportThe communications report confirmed that the SO’s microphone “queued” twice with no one speaking. CW #1 called 911 and described a fight between a police officer and another man. As stated in his SIU interview, the SO radioed communications at the end of the struggle with the Complainant, at which point he was heard to be out of breath.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the CKPS and Ontario Provincial Police (OPP), Chatham-Kent Detachment:
- Audio Playlist;
- Booking Photo of the Complainant;
- 911 Call Recording;
- Police Transmissions Communication Recordings;
- Photos of Scene;
- Charge Summary;
- CKPS Witness Statements for CW #s 1 and 2;
- Email to CKPS re Stolen Bike from Ridgetown with Photo Attachment dated August 29, 2017;
- General Occurrence Report;
- Notes of WO #s 1-4;
- Subject Profile for the Complainant;
- Conducted Energy Weapon (CEW) Download data; and
- Written Statements for WO #s 1-4.
The SIU obtained and reviewed the following materials and documents from other sources:
- Medical Records of Complainant relating to this incident; and
- Photo of Scene taken by CW #2.
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,
Section 129, Criminal Code -- Offences relating to public or peace officer
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or(c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,
(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or(e) an offence punishable on summary conviction.
Section 145 (1), Criminal Code – Escape and Being at Large Without Excuse
(a) escapes from lawful custody, or(b) is, before the expiration of a term of imprisonment to which he was sentenced, at large in or out of Canada without lawful excuse, the proof of which lies on him,
Section 270(1), Criminal Code -- Assaulting a peace officer
(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or(c) assaults a person(i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or(ii) with intent to rescue anything taken under lawful process, distress or seizure.
Section 354(1), Criminal Code -- Possession of property obtained by crime
(a) the commission in Canada of an offence punishable by indictment; or(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
Section 2(1), Trespass to Property Act -- Trespass an offence
(a) without the express permission of the occupier, the proof of which rests on the defendant,(i) enters on premises when entry is prohibited under this Act, or(ii) engages in an activity on premises when the activity is prohibited under this Act; or
is guilty of an offence and on conviction is liable to a fine of not more than $10,000.(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
Analysis and Director's Decision
The Complainant, in his statement to SIU investigators, stated that he was riding a bicycle given to him by a friend, unaware that it was stolen, when the SO pulled up behind him in a police vehicle. The Complainant advised that he went off of the roadway and into someone’s backyard in order that he not have to deal with police. The Complainant advised that at the time of the incident, he was foggy as he was coming off of pills (opiates).
The Complainant alleged that the SO told him that he was under arrest for trespassing and to put the bicycle down; as soon as he did so, however, the SO started to punch him in the head and in his side. The Complainant put up a fight and tried to get away, as he had done nothing wrong. The Complainant alleged that the SO told him, “You’re going down,” while he was beating him, and the Complainant pushed back against the SO and tried to hold the SO’s hands to prevent him from striking the Complainant. They wrestled for about five minutes, during which they had moved from the backyard to the back fence area.
The Complainant further alleged that the SO took out his CEW and deployed it about four times, but it did not really bother the Complainant, and he just ripped out the prongs. He advised that he had four red marks on his stomach where he had been struck with the probes. Because the SO kept deploying the CEW, the Complainant had to jump the fence to get away. After running through some backyards, the Complainant was tackled by seven CKPS officers. The Complainant indicated that he realized that his left hand had been injured and was painful when he was on the fence. He was later told that his left hand was fractured and he believed that it happened when the SO slammed him against the exterior brick wall of a house, and his hand smashed into the wall with his own left hip compressing his hand, as the momentum carried his body into the wall.
During the course of this investigation, three civilian witnesses, including the Complainant, and five Witness Officer’s (WO’s), including the SO, were interviewed. SIU investigators also had access to the police radio transmissions recording and the memorandum book notes of all WO’s, as well as the Complainant’s medical records, the booking photo of the Complainant, the download data from the SO’s CEW, and photos taken of the injuries to the SO’s face on the date in question.
The Complainant’s paramedic records indicate that when being assessed, the Complainant “Stated that he had used crystal meth aprox (sic) 3-4 hours ago and was coming down off it. No other complaints.”
In his hospital records, the Complainant is quoted as indicating to medical staff, “Crystal meth, tased by police, now coming down, nauseated and vomiting, thirsty” and in his triage notes “C/o (complains of) weakness, thirst, nausea and L (left) hand pain after altercation with CKPD where he was tasered (possibly multiple times). Patient states used meth 4-6 hours ago …” Other than being ‘tasered’ by police, there is no notation anywhere in the Complainant’s records that he made any complaint about police, and there is no mention whatsoever that he was ever assaulted or beaten by any officer.
CW #1, in his written statement to police and in his interview with the SIU, advised that he saw the SO wrestling with the Complainant, between two houses on Adelaide Street, and he called 911 to let them know that the SO was struggling to arrest the Complainant and required assistance. In his written statement, he opined that the struggle was as a result of the Complainant “Trying to fight him (the SO) off and trying to flee.” He then observed the SO push the Complainant against the brick wall of a residence, back first; he described the Complainant as holding onto the SO’s vest while the SO was attempting to control the Complainant and turn him around to face the wall. CW #1 observed the Complainant to then suddenly drop down, with his shirt coming off, and he then shoved the SO and broke free, running to the rear of the yard and climbing the fence; he described the SO trying to pull him off the fence and indicated that this may have been when the SO deployed his CEW, or tried to, but the Complainant made it over the fence.
CW #2 was in a residence near the location where the SO and the Complainant were engaged. CW #2 indicated that he was inside the residence when he heard the Complainant yell as if in pain; he looked out and saw the SO trying to contain the Complainant at the fence in the backyard of a neighbouring property. CW #2 saw the Complainant behind a tree and heard the SO say, “Put your hands behind your back,” to which the Complainant responded, “Ok, ok,” and the SO then backed away holding his CEW in his right hand pointed at the Complainant. The Complainant then jumped over the rear fence and CW #2 heard a sound that he equated with the use of the CEW, but he did not think that it struck the Complainant. CW #2 also saw the SO jump over the fence, but he returned within two minutes and indicated the direction in which the Complainant had run to another officer who had just arrived. CW #2 described the SO at that time as being out of breath and observed him to have blood on his forehead and a cut on his nose.
The SO, in his statement, indicated that he recognized the bicycle that the Complainant was riding as being identified as stolen in an earlier email that had been circulated; additionally, the Complainant was holding two large duffle bags on his handlebars, which he described as catching his attention as the area was known to be a high property crime area. The SO observed the Complainant enter the backyard of a residence and, because he was aware that the Complainant did not live there, he formed the opinion that the Complainant was trying to hide from him.
The SO then followed and located the Complainant hiding behind a tree and advised him that he was under arrest for possession of stolen property and trespassing, at which point the Complainant took off running.
The SO stated that he grabbed the Complainant by his shirt, but the Complainant spun away and out of his shirt, leaving the SO holding his shirt, but not the Complainant. The SO then again caught up with the Complainant and grabbed his left arm, but the Complainant spun to the right and hit the SO in the bridge of his nose with his right elbow, stunning the SO and causing him to lose his hold on the Complainant. The SO stated that he grabbed the Complainant by the shoulders to push him to the ground, but he was unable to do so, with the Complainant remaining standing with his upper body bent over. The SO then put his torso and weight onto the Complainant’s back and held the Complainant by the waist while issuing commands to stop resisting and to get on the ground, to which the Complainant responded, “I will, I will.” This evidence appears to be supported by the observations of CW #2.
The SO indicated that he noticed that one of the pouches on his uniform was keying his microphone, and he heard dispatch ask if he was okay, but he was unable to respond. This is consistent with the evidence of WO #1, who advised that he heard a broadcast of the SO activating his talk button on his portable radio but nothing being said, while only rumbling and rustling was heard as if the SO was in a struggle. This caused WO #1 to attend to assist the SO.
The SO stated that during the struggle, he and the Complainant backed into a brick wall of the house and the SO hurt his shoulder from plowing into the wall. The SO advised that at that point he was feeling fatigued and he could feel blood running down his nose.
The SO indicated that he was of the view that the struggle needed to end, so he reached for his CEW, which the Complainant then “pawed” at, knocking it out of his hand. When the SO reached to pick up the CEW, the Complainant broke free. The SO then picked up the CEW and deployed it, but it was ineffective and the Complainant kept running towards the fence. The SO caught up with the Complainant and deployed his CEW a second time, this time in drive stun mode (putting the CEW directly against the skin, without the use of probes), but this too was ineffective.
The SO alleged that the Complainant then grabbed the CEW, which the SO was holding with both hands, and the SO commanded the Complainant to stop resisting and get on the ground. The Complainant then released his grip on the CEW and the SO was able to pull it away from the Complainant, who then jumped the six foot rear privacy fence. Since the Complainant was shirtless, the SO was only able to grab onto his belt and the Complainant then spun and struck the SO above his left eyebrow with what the SO assumed was his fist.
The SO stated that he pulled hard on the belt and brought the Complainant down off of the fence and then deployed his CEW in normal mode (using the prong cartridge), and two prongs struck the Complainant in the chest, but this was also ineffective and the Complainant turned, jumped the fence, and ran. The SO advised that he too then hopped the fence, but the Complainant was in the distance, so he holstered his CEW, broadcast his location and the fact that the Complainant was fleeing, and returned to his vehicle; he described himself at that point as being out of breath and bleeding from his nose.
The evidence of WO #1 is again consistent with that of the SO, in that when he arrived, he observed the SO to be out of breath and with marks on his face, and the SO pointed in a direction and said the Complainant’s name.
WO #3 also indicated, in his statement, that he observed the SO at his police vehicle and described him as being out of breath, perspiring, and having a cut on the left side of his face, a cut to the right side of his nose, and that he was bleeding. The SO then relayed to WO #3 what had occurred, and this account was totally consistent with his statement to SIU investigators.
WO #1 stated that he was then approached by CW #1, who indicated that he had seen the Complainant at the Montessori School, and WO #1 and WO #2 then attended the school where they caught the Complainant and pulled him from a fence to the ground by the back of his pants.
While the Complainant was being seen at hospital, WO #4 overheard him tell medical staff that he had injured his hand during a struggle when he hit it “Between a fence.”
Photos taken of the SO shortly after the incident confirmed that he had sustained injuries to his nose and forehead.
Based on the evidence of the two civilian witnesses, who saw almost the entirety of the interaction between the SO and the Complainant in the rear yard of the residence to which the complainant had fled, I am unable to accept the evidence of the Complainant that the SO repeatedly punched him in the head and side and slammed him against the exterior brick wall of the house wherein he smashed his hand into the wall due to the momentum of the forward movement of his body against the wall and his hand being compressed by his left hip.
With respect to the punching, it is clear that CW #1 saw almost the entire incident between the SO and the Complainant and he at no time saw the SO strike or punch the Complainant, but rather described the physical interaction as a struggle which appeared due to the Complainant fighting the SO in order to flee, and the SO attempting to control him.
With respect to the smashing into the wall, it is clear on the evidence of CW #1 that rather than smashing the Complainant into the wall, the SO and the Complainant both went towards the wall during the struggle and the Complainant went back first against the wall while holding onto the SO’s vest with both hands. On that evidence, while he had both hands on the SO’s vest, he clearly could not have smashed his hand between his hip and the wall.
Additionally, CW #2 also described the SO as trying to “contain” the Complainant and observed the injuries to the SO’s face and that the SO was out of breath, following his interaction with the Complainant.
Relying primarily on the evidence of the two independent civilian witnesses, I find that I am unable to accept the evidence of the Complainant as to the interaction between himself and the SO in the rear yard of the residence, but accept instead that the Complainant had entered the rear yard in order to evade the SO and that he was actively fighting and struggling with the SO in order to prevent his arrest.
I further find, based on the evidence of CW #1, that the SO did not slam the Complainant into the brick wall thereby injuring the Complainant’s hand, nor did he repeatedly punch the Complainant in the head and side.
Based on the evidence of both of the civilian witnesses, I accept that the SO was struggling to attempt to detain the Complainant, while the Complainant was fighting the SO in an attempt to flee.
Furthermore, I accept the evidence of the SO that the Complainant twice assaulted him, as corroborated by the injuries to the SO’s face.
While I find on the evidence of CW #1 that it was not possible that the Complainant injured his hand when he went up against the brick wall, it is still possible that the Complainant was injured when the SO pulled him down off of the fence. I accept, however, that it is equally plausible that the Complainant injured his hand when WO #1 and WO #4 pulled him off of the fence at the school, or anytime time in between.
I find support for this conclusion based on a number of pieces of evidence, that being: that the Complainant was heard to tell medical staff that he injured his hand “Between the fence”; that he never made any complaint to hospital staff of mistreatment at the hands of police; that despite his assertion that he received the injury earlier at the brick wall, he apparently had no difficulty climbing and jumping at least two fences thereafter; and, in the Complainant’s own statement to SIU investigators, his indication that he first felt any pain in his hand when he was atop the fence at the back of the school, where he first realized his left hand was injured and painful.
On a review of all of the evidence, I accept the evidence of the SO as to the interaction between himself and the Complainant, as it is substantially confirmed by the evidence of the two independent witnesses, the observations of other police officers, and the injuries to the SO’s face.
Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from all of the evidence, and confirmed by the email notifying police of the stolen bicycle, that the SO had reasonable grounds to arrest the Complainant for being in possession of stolen property contrary to s.354 of the Criminal Code.
When the Complainant then entered the rear yard of a residence that he apparently had no connection to in order to evade the SO, he was on that property without permission, and the SO was entitled to investigate him for trespassing contrary to s.2 of the Trespass to Property Act.
After the Complainant began to struggle with the SO in an attempt to evade his arrest, and when he twice struck the SO, the SO again had reasonable grounds to arrest him for assault resisting arrest and assaulting a police officer in the execution of his duties contrary to s. 129 and s. 270 of the Criminal Code. As such, the apprehension and arrest of the Complainant were legally justified in the circumstances
With respect to the amount of force used by the SO in his attempts to arrest the Complainant, I find that his behaviour was more than justified in the circumstances and that he used no more force than necessary to attempt to detain the Complainant, who was actively and violently resisting his arrest, and who twice assaulted the SO causing him injury.
On the whole, I find that the SO’s actions progressed to meet the Complainant’s resistance and that, in reality, his actions never reached the level of the Complainant’s, which caused the SO’s injuries and allowed the Complainant to escape. On the evidence of CW #1 and CW #2, it is clear that the actions of the SO were never more than attempting to control and contain the Complainant, and at no time was he seen to punch, kick or strike the Complainant.
Furthermore, once the SO began to get fatigued, I can find no issue with his resort to his CEW in order to attempt to bring the struggle to an end. Unfortunately, likely due to the Complainant’s ingestion of narcotics, the CEW was ineffective and the Complainant did not feel the effects of the CEW, allowing him to escape.
Finally, while the evidence of CW #1 specifically contradicts the allegation that the Complainant was injured by the SO throwing him against a brick wall, the question remains whether or not the SO may have injured the Complainant when he pulled him off of the fence while trying to prevent his escape.
On the evidence, it is as likely, if not more so, that he was only injured later, when he indicated that he first felt pain in his wrist while he was atop the fence, but, even if his injury was caused by the SO when he pulled him off of the fence, I cannot find that to amount to an excessive use of force.
In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak  1 S.C.R. 206, as follows:
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):
In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]
Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.
On this record, it is clear that the SO, in pulling the Complainant, who had already been arrested, from the fence in order to prevent him escaping lawful custody contrary to s. 145(1)(a) of the Criminal Code, used no more force than was reasonably necessary in the circumstances, and possibly less than could have been justified. On all of the evidence, I am of the opinion that the actions of the SO in attempting to apprehend the Complainant fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.
In the final analysis, I am satisfied for the foregoing reasons that the actions resorted to by the SO in his attempts to arrest and detain the Complainant were lawful notwithstanding the injury which he suffered, even were I to find that the SO caused the injury, which I am not inclined to do. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.
Date: June 22, 2018
Original signed by
Special Investigations Unit
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.