SIU Director’s Report - Case # 20-PCI-303
Warning:
This page contains graphic content that can shock, offend and upset.
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 the injury a 76-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 the injury a 76-year-old-man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On November 12, 2020, at 4:45 p.m., the Ontario Provincial Police (OPP) reported the following:On November 11, 2020, at 4:32 p.m., police officers were called to attend a residence in Penetanguishene. The call was with regards to a man [now known to be the Complainant] who refused to leave the residence.
When the police officers arrived, the Complainant was placed on the ground and charged with resisting arrest. The Complainant complained he had difficulty breathing and was taken to the Georgian Bay District Hospital (GBDH), where he was released from police custody.
On November 12, 2020, the GBDH staff called the police for assistance because the Complainant had assaulted a nurse.
When the police officers arrived, medical staff showed them the Complainant’s medical records, which indicated that he had suffered a fractured rib and lumbar. The Complainant was held further for assessment under the Mental Health Act.
The Team
Number of SIU Investigators assigned: 2 Number of SIU Forensic Investigators assigned: 0
Complainant:
76-year-old male interviewed, medical records obtained and reviewedCivilian Witness (CW)
CW Interviewed Witness Officers (WO)
WO #1 Interviewed, notes received and reviewedWO #2 Interviewed, notes received and reviewed
Subject Officers (SO)
SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal rightSO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right
Evidence
The Scene
The scene was an apartment in Penetanguishene. The incident occurred in the living area of the apartment which was littered with drug paraphernalia. Police Communication Recordings
The seven audio files obtained from the OPP consist of telephone calls and radio communications. The audio files commenced on November 11, 2020 and follow in chronological order until November 12, 2020.
911_Audio_0_Call_to_Provincial Communications Centre (PCC)_North Bay
- The telephone call is from the property landlord and is a brief transfer of telephone lines. The call starts at 4:27:14 p.m., on November 11, 2020, and lasts for 56 seconds.
911_Audio_1_Complainant
- The audio file begins at 4:27:40 p.m. on November 11, 2020 and lasts for 05:08 minutes. The landlord explained that the Complainant refused to leave the apartment, owned by the caller. The door had been left open by the previous tenant and the Complainant had moved in. The caller details some of the history with the Complainant.
Dispatch_Audio_2_Radio
- The audio file begins at 4:32:58 p.m. and consists of the PCC broadcasting the details of the incident and requesting confirmation of additional police officers to attend. The police officers on scene can be heard trying to communicate with the Complainant. The Complainant was heard yelling in the background. The assistance of Emergency Medical Services (EMS) was requested.
Dispatch_Audio_3_Telephone
- The audio file began at 4:43:39 p.m. on November 11, 2020. It consists of telephone calls and its content detailed an attempt to contact the landlord on three attempts. The final telephone call is from the PCC requesting the apartment be locked upon the departure of the OPP. A fourth telephone call in this recording was to EMS, seeking their assistance with the Complainant. Finally, a fifth telephone call sought the estimated time of arrival for EMS.
911_Audio_0
- The audio file is on November 12, 2020 at 10:46:13 a.m. and is from the GBDH security officer requesting the assistance of police regarding a patient, the Complainant. The Complainant had assaulted a nurse.
Dispatch_Audio_1
- The audio file begins on November 12, 2020, at 10:47:08 a.m. The PCC directed police officers to attend the GBDH. They continued that a mental health assessment would be conducted by the hospital on the Complainant. The Complainant would be transported to Waypoint Mental Health Facility subsequent to the police officers’ dealings with the Complainant.
Dispatch_Audio_2
- The audio file starts at 10:50:09 a.m. on November 12, 2020 and is a telephone call from members of the OPP to GBDH, seeking the availability of the assaulted nurse to speak further.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:- Notes-WO #1;
- Notes-WO #2;
- General Occurrence Reports (x2);
- Persons Detail Report – the Complainant;
- Official Statement – civilian witness; and
- Communication Recordings.
Incident Narrative
The following scenario emerges on the weight of the evidence collected by the SIU, which included interviews with the Complainant and both subject officers. In the afternoon of the day in question, SO #1 and SO #2 were dispatched to a unit in a building in Penetanguishene. They were there following a call to police by the property manager complaining that a man – the Complainant – had unlawfully taken up residence in the unit following the tenant’s recent departure, and was refusing to leave.
SO #1 and SO #2 arrived at the unit, located on the second floor, and spoke with the Complainant. They communicated their purpose and asked that he leave the apartment. The Complainant refused to do so. The officers explained that the Complainant was trespassing and would be arrested if he continued to refuse their request that he leave. The Complainant insisted he would not leave, challenged the officers to arrest him, and offered up his arms to be handcuffed.
Just as the officers took hold of the Complainant’s arms, he collapsed to the ground and started to moan and groan. He remained on the ground for a period and was advised by the officers that paramedics had been summoned to check on his health. As the parties waited for the paramedics, the Complainant was handcuffed without incident and placed in a seated position on the floor with his back to the sofa.
With the arrival of the paramedics, the Complainant was escorted down the stairs and out through the building’s entrance/exit to the waiting ambulance. He was taken to hospital where diagnostic imaging revealed a fracture of a vertebra and right-sided rib.
SO #1 and SO #2 arrived at the unit, located on the second floor, and spoke with the Complainant. They communicated their purpose and asked that he leave the apartment. The Complainant refused to do so. The officers explained that the Complainant was trespassing and would be arrested if he continued to refuse their request that he leave. The Complainant insisted he would not leave, challenged the officers to arrest him, and offered up his arms to be handcuffed.
Just as the officers took hold of the Complainant’s arms, he collapsed to the ground and started to moan and groan. He remained on the ground for a period and was advised by the officers that paramedics had been summoned to check on his health. As the parties waited for the paramedics, the Complainant was handcuffed without incident and placed in a seated position on the floor with his back to the sofa.
With the arrival of the paramedics, the Complainant was escorted down the stairs and out through the building’s entrance/exit to the waiting ambulance. He was taken to hospital where diagnostic imaging revealed a fracture of a vertebra and right-sided rib.
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.
Analysis and Director's Decision
On November 11, 2020, the Complainant was diagnosed with a fractured rib and vertebra following his arrest by a couple of OPP officers in Penetanguishene. The officers, SO #1 and SO #2, were identified as the subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either officer 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. Having been repeatedly asked to leave the apartment, even offered accommodations at a shelter or local hotel, the Complainant was lawfully arrested under the Trespass to Property Act. Thereafter, I am satisfied that the officers did nothing to cause the Complainant’s injuries. Their physical interventions consisted of reaching out to take hold of the Complainant in order to arrest him, whereupon he immediately fell to the ground, followed by the application of the handcuffs, which on all the evidence was done without incident.
There is an allegation, which I am unable to accept as accurate, that the Complainant’s injuries were the result of an assault perpetrated on his person by SO #2 and SO #1. Specifically, it is alleged that the Complainant was kicked in the back while in the apartment and then pushed to the floor. The officers deny that this occurred and the one witness who reportedly witnessed the altercation, the CW, had nothing to say about what went on in the apartment in the course of the Complainant’s arrest. Moreover, in evidence that lends credence to the rendition of events proffered by SO #1 and SO #2, the behaviour described by the officers was reportedly repeated by the Complainant at hospital. According to WO #1, who went to the hospital the day after the arrest following a call to police that the Complainant had assaulted a nurse, he was advised by staff that the Complainant had thrown himself on the floor when they attempted to deal with him.
In the result, as there is insufficient evidence to reasonably conclude that SO #1 and SO #2 acted other than lawfully in their dealings with the Complainant, there is no basis for proceeding with criminal charges against the officers notwithstanding the injuries the Complainant may have incurred in the course of his arrest. The file is closed.
Date: February 8, 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 authorized or required to do by law. Having been repeatedly asked to leave the apartment, even offered accommodations at a shelter or local hotel, the Complainant was lawfully arrested under the Trespass to Property Act. Thereafter, I am satisfied that the officers did nothing to cause the Complainant’s injuries. Their physical interventions consisted of reaching out to take hold of the Complainant in order to arrest him, whereupon he immediately fell to the ground, followed by the application of the handcuffs, which on all the evidence was done without incident.
There is an allegation, which I am unable to accept as accurate, that the Complainant’s injuries were the result of an assault perpetrated on his person by SO #2 and SO #1. Specifically, it is alleged that the Complainant was kicked in the back while in the apartment and then pushed to the floor. The officers deny that this occurred and the one witness who reportedly witnessed the altercation, the CW, had nothing to say about what went on in the apartment in the course of the Complainant’s arrest. Moreover, in evidence that lends credence to the rendition of events proffered by SO #1 and SO #2, the behaviour described by the officers was reportedly repeated by the Complainant at hospital. According to WO #1, who went to the hospital the day after the arrest following a call to police that the Complainant had assaulted a nurse, he was advised by staff that the Complainant had thrown himself on the floor when they attempted to deal with him.
In the result, as there is insufficient evidence to reasonably conclude that SO #1 and SO #2 acted other than lawfully in their dealings with the Complainant, there is no basis for proceeding with criminal charges against the officers notwithstanding the injuries the Complainant may have incurred in the course of his arrest. The file is closed.
Date: February 8, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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.