SIU Director’s Report - Case # 20-PCI-255
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 30-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 30-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On October 6, 2020, at 8:24 p.m., the Hanover Police Service (HPS) reported the following.HPS reported that on October 5, 2020, at 6:22 p.m., police took custody of the Complainant from the Ontario Provincial Police (OPP) Grey Bruce County. The Complainant had warrants for his arrest. The OPP had arrested the Complainant after he was involved in a motor vehicle collision.
On October 6, 2020 at 3:45 p.m., the Complainant said he had a broken foot and a sore shoulder. At 4:00 p.m., he was taken to the Hanover & District Hospital (HDH). The Complainant was diagnosed with a broken bone in his foot.
The HPS officers took an audio-recorded statement from the Complainant in which he stated his injury occurred two weeks prior to his arrest, but it was reaggravated by OPP officers during the arrest.
At the time of notification, the Complainant was still at the hospital.
The Team
Number of SIU Investigators assigned: 3 Number of SIU Forensic Investigators assigned: 0
Complainant:
30-year-old male interviewed, medical records obtained and reviewedWitness Officers (WO)
WO #1 Interviewed, notes received and reviewedWO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
Subject Officers (SO)
SO #1 Declined interview and to provide notes, as is the subject officer’s legal rightSO #2 Declined interview and to provide notes, as is the subject officer’s legal right
SO #3 Declined interview and to provide notes, as is the subject officer’s legal right
Evidence
The Scene
The collision occurred in the intersection of Concession Road 3 and Sideroad 35, Flesherton, Ontario. The Complainant was arrested east of the intersection in a wooded area. The SIU did not attend the scene of arrest.
Police Communications Recordings
911 Audio Emergency Response Team (ERT) SO #2
- On October 5, 2020, at about 12:34 p.m., SO #2 called OPP dispatch advising he was an ERT member and had been called out. He accepted the call out and asked for the address, which was provided. He estimated his time of arrival at about 90 minutes.911 Audio ERT Officer
- On October 5, 2020, at about 12:35 p.m., an officer called to advise he was an ERT member and would be able to attend the call out. The OPP dispatcher advised that they had called out SO #2 and him as two extra bodies. Another officer, SO #1 and SO #3 were en route already. The officer advised he would be 60 plus minutes to arrive.911 Audio One
- On October 5, 2020, at about 11:20 a.m., a woman called 911 to report a crash at the intersection near her home. A black car was in the ditch and other cars and trucks were stopping. There were about four or five people in the black car and they walked away.911 Audio Two
- On October 5, 2020, at about 11:24 a.m., an ambulance called OPP dispatch to advise they were attending 35 Side Road and 3 Concession regarding a two-vehicle collision where a van rolled twice and a car was in the ditch. OPP advised they were close to arriving.911 Audio Three
- On October 5, 2020, at about 11:21 a.m., a transport driver came across a two-vehicle collision at 35 Side Road and 3 Concession. He called 911 and advised that the van driver was upright but complained of chest pains. There were four occupants of the car, one female and three males, and they walked away eastbound on 3 Concession. The transport driver spoke to one of the men, asking if he was alright, but there was no response. He felt the male was the driver, as he had an abrasion to his nose. There was alcohol in the vehicle in plain sight, and he provided the licence plate number of the vehicle. The four persons did not run, they walked away. OPP dispatch then updated ambulance dispatch.Dispatch Audio Dispatcher Telephone
- On October 5, 2020, at about 11:23 a.m., OPP dispatch was able to find the owner of the van licence plate and spoke to the owner who said the van was in her driveway with no plates. OPP dispatch then called a man who was listed as the owner of a black VW Jetta and he said his Jetta was sold two days ago to an unknown male for cash.WO #2 called OPP dispatch to advise that the Staff Sergeant had authorized the deployment of ERT and a canine team. OPP dispatch made several calls to organize the deployment. At about 2:08 p.m., OPP dispatch was speaking with someone and advised that one man was in custody and WO #2 was transporting him, with three persons outstanding. The rest of the audio was dispatch trying to arrange a tow truck.
Dispatch Audio Radio
- On October 5, 2020, at about 11:21 a.m., OPP dispatch broadcasted that four or five persons had walked away from the two-vehicle motor vehicle collision, and that one man might have a cut to his face. Dispatch indicated that alcohol was found in the vehicle. Dispatch advised that the plate on the vehicle was stolen. An OPP officer went eastbound on 3 Concession but found no one. The ERT and canine team were discussed as it was believed that the four persons had fled into a farmer’s field. A fire truck put up its aerial ladder and was unable to see anyone hiding. An OPP officer asked if any of the four persons was injured; all that was known was just the facial laceration on the one man. The motor vehicle collision was a significant impact. The deployment of ERT and canine team was approved and containment was set up. Five ERT members were requested. An OPP officer broadcasted that someone was galloping through the field, and later broadcasted that it was a man. An OPP officer broadcasted that at the scene, in the vehicle, a collapsible ASP baton was located, so he advised to be aware of other outstanding weapons that might have not been found.An OPP officer broadcasted that a person in a nearby house saw four people at the second farm down 3 Concession. ERT and canine began their track in that area. WO #1, the canine handler, broadcasted that he had located a multi-coloured drug bong. The canine track was eastbound paralleling 3 Concession. An OPP officer said, “Contact,” and one in custody, then later advised they had the Complainant in custody. Canine and ERT continued to track for the other outstanding people. The Complainant had a lot of stolen identification on him. WO #2 had the Complainant in his custody and was transporting him to OPP Chatsworth. The Complainant’s criminal record was broadcasted; he had outstanding warrants from the HPS. The canine track continued.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the HPS and OPP:- Notes-WO #1;
- Notes-WO #2;
- Notes-WO #3;
- Notes-WO #4;
- Notes-WO #5;
- General Occurrence Report;
- HPS-Prisoner In Custody Medical Assessment Form;
- Computer-assisted Dispatch (CAD) Information;
- The Complainant’s Prisoner Report;
- Updated CAD Information;
- Communication recordings; and
- Audio recording of the Complainant talking about injuries from HPS.
Materials obtained from Other Sources
The SIU obtained and reviewed the following records from non-police sources:- Medical records.
Incident Narrative
In the morning on October 5, 2020, the Complainant, while an occupant of a black Volkswagen, was involved in a motor vehicle collision. The collision occurred in the intersection of Concession Road 3 and Sideroad 35. The Volkswagen, traveling east on Concession Road 3, had apparently entered the intersection against a stop sign, striking a van traveling northward. Realizing that police would soon be at the scene, and aware of outstanding warrants for his arrest, the Complainant fled into a wooded area east of the intersection. Three other occupants in the Volkswagen also left the scene.
OPP officers were dispatched to the intersection and made aware that persons from the Volkswagen had left the crash site. They had received calls to that effect from the driver of the van and neighbours in the area. A dog handler, WO #1, and his dog were deployed to assist in finding the individuals, as was a team of ERT officers – SO #1, SO #2 and SO #3. Local officers – WO #5 and WO #3 – were also present and assisted in the search efforts.
At about 2:10 p.m., shortly after their search started, the police dog located the Complainant hiding behind a cedar tree some 30 metres off the roadway. He was handcuffed, placed in a police vehicle and taken to the OPP detachment.
OPP officers were dispatched to the intersection and made aware that persons from the Volkswagen had left the crash site. They had received calls to that effect from the driver of the van and neighbours in the area. A dog handler, WO #1, and his dog were deployed to assist in finding the individuals, as was a team of ERT officers – SO #1, SO #2 and SO #3. Local officers – WO #5 and WO #3 – were also present and assisted in the search efforts.
At about 2:10 p.m., shortly after their search started, the police dog located the Complainant hiding behind a cedar tree some 30 metres off the roadway. He was handcuffed, placed in a police vehicle and taken to the OPP detachment.
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 October 6, 2020, the HPS contacted the SIU to report that a male in their custody – the Complainant – had been diagnosed with a fractured left foot. The Complainant had been transferred into the custody of the HPS by the OPP on the strength of a warrant taken out by the HPS that was then outstanding. The Complainant had been arrested by the OPP on October 5, 2020 following a motor vehicle collision. The SIU initiated an investigation. The three OPP officers who had arrested the Complainant – SO #1, SO #2 and SO #3 – were identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officers committed a criminal offence in connection with the Complainant’s 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 little doubt that the Complainant’s arrest was lawful. Officers arriving at the scene were able to determine that the Volkswagen’s plates had earlier been stolen. The issue turns to the propriety of the force used by the subject officers.
There is evidence that one of the ERT officers may have pushed the Complainant’s left foot to the ground when the Complainant, lying prone at the time, was unable to do so because of a pre-existing foot injury. There is no reason to believe that the officer, whomever might have pushed the Complainant, was aware of the injury. In the circumstances, I am unable to fault the officer for forcing the Complainant’s foot down to the ground when the Complainant failed to do so himself.
Further there is a version of events proffered in the evidence that the Complainant was also forced to the ground and had a knee pressed into his shoulder by an officer or officers. In addition, an officer punched his ribs at one point. These allegations are to a degree contested by witness officers – WO #1 and WO #5 – who were present at the time. While acknowledging that they were not entirely focused on the conduct of each subject officer, they described the arrest as uneventful. Owing to significant frailties associated with the alleged punch to the ribs, I am not satisfied on balance that the evidence is sufficiently cogent to warrant being put to the test by a trier-of-fact. With respect to the takedown and knee push, whether they occurred or not, I am not satisfied that they constituted excessive force in the context of the arrest of an individual who had fled from the scene of a collision and taken steps to conceal his location in a wooded area. The officers were entitled to quickly and decisively neutralize the Complainant in this context until such time as they could be assured he did not represent a threat, and I am satisfied that the impugned force would not have exceeded their remit in so doing.
It is clear that the Complainant’s fractured left foot was sustained days before his arrest on October 5, 2020 by OPP officers. What remains unclear is whether the injury was aggravated in the course of his arrest by police. Be that as it may, as I am unable to reasonably conclude that any of the subject officers acted other than lawfully in their dealings with the Complainant, there is no basis for proceeding with criminal charges and the file is closed.
Date: April 6, 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 little doubt that the Complainant’s arrest was lawful. Officers arriving at the scene were able to determine that the Volkswagen’s plates had earlier been stolen. The issue turns to the propriety of the force used by the subject officers.
There is evidence that one of the ERT officers may have pushed the Complainant’s left foot to the ground when the Complainant, lying prone at the time, was unable to do so because of a pre-existing foot injury. There is no reason to believe that the officer, whomever might have pushed the Complainant, was aware of the injury. In the circumstances, I am unable to fault the officer for forcing the Complainant’s foot down to the ground when the Complainant failed to do so himself.
Further there is a version of events proffered in the evidence that the Complainant was also forced to the ground and had a knee pressed into his shoulder by an officer or officers. In addition, an officer punched his ribs at one point. These allegations are to a degree contested by witness officers – WO #1 and WO #5 – who were present at the time. While acknowledging that they were not entirely focused on the conduct of each subject officer, they described the arrest as uneventful. Owing to significant frailties associated with the alleged punch to the ribs, I am not satisfied on balance that the evidence is sufficiently cogent to warrant being put to the test by a trier-of-fact. With respect to the takedown and knee push, whether they occurred or not, I am not satisfied that they constituted excessive force in the context of the arrest of an individual who had fled from the scene of a collision and taken steps to conceal his location in a wooded area. The officers were entitled to quickly and decisively neutralize the Complainant in this context until such time as they could be assured he did not represent a threat, and I am satisfied that the impugned force would not have exceeded their remit in so doing.
It is clear that the Complainant’s fractured left foot was sustained days before his arrest on October 5, 2020 by OPP officers. What remains unclear is whether the injury was aggravated in the course of his arrest by police. Be that as it may, as I am unable to reasonably conclude that any of the subject officers acted other than lawfully in their dealings with the Complainant, there is no basis for proceeding with criminal charges and the file is closed.
Date: April 6, 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.