SIU Director’s Report - Case # 20-PCI-311

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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.

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. 
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.

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 serious injury a 37-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On November 18, 2020, at 12:36 a.m., the Ontario Provincial Police (OPP) notified the SIU of the following.

The OPP reported that on November 17, 2020, the Complainant was arrested for breach of conditions related to a domestic dispute at a residence that he had been ordered not to be at.

The Complainant was taken to the OPP Lennox and Addington County Detachment and placed in a cell. While inside, he was observed on the monitor ingesting drugs. Police officers entered the cell to intervene, and while they were grounding the Complainant, his head struck the cell bench as he went to the floor.

The Complainant was taken to the Lennox and Addington County General Hospital (L&ACGH) where he was diagnosed with a broken jaw.

The Complainant had been escorted back to cells to await a video bail hearing at 2:00 p.m.

The Team

Date and time team dispatched: 11/18/2020 at 7:16 a.m.

Date and time SIU arrived on scene: 11/18/2020 at 9:06 a.m.



Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

Complainant:

37-year-old male interviewed; medical records obtained and reviewed

The Complainant was interviewed on November 18, 2020.


Witness Officers (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

The witness officers were interviewed on November 23, 2020.



Police Employee Witness (PEW)

PEW Interviewed

The police employee witness was interviewed on November 23, 2020.


Subject Officer (SO)

SO Interviewed, and notes received and reviewed

The subject officer was interviewed on January 22, 2021.


Evidence

The Scene

The scene was a cell in the cellblock at the OPP Lennox and Addington County Detachment.

Video/Audio/Photographic Evidence

Summary of Communication Recordings

On November 26, 2020, the OPP provided the SIU with the communications and 911 recordings in relation to the injury involving the Complainant.

911 Call – November 17, 2020
At 8:56:10 p.m., a woman calls into the Provincial Communications Centre (PCC) and says she is at an address in Deseronto. The Complainant is at the house and he is not supposed to be there. He was not supposed to have any contact with any family members. The Complainant is outside on the back deck and all the doors to the house are locked. The Complainant has just run from the house and is running up a nearby street. The Complainant had broken into the house twice previously. The OPP dispatcher tells the caller police officers have been dispatched and are on the way to the house. The call is ended, and the OPP dispatcher calls back the phone number associated to the caller’s residence numerous times without anyone answering.

Communications Recordings – November 17, 2020
At 8:56:50 p.m., the OPP PCC dispatches WO #2 and the SO to the call at the address in Deseronto. The Complainant is at the address and not leaving. The Complainant is then said to have left running. His address is given to the police officers.

WO #1 arrives at the house and confirms the Complainant has left, and is walking on foot on a nearby street.

The SO tells the OPP dispatcher he has the Complainant in custody for breach, and is heading back to the detachment.
WO #2 at the station, near the cells, broadcasts a request for the return of the other police officers because the Complainant has a white powder. A short time later, WO #1 requests that an ambulance attend the detachment.

The Complainant is in an ambulance on the way to the hospital along with the SO and WO #3 inside the ambulance, with WO #2 following in a police vehicle.

Summary of Custody Video

On November 18, 2020, the OPP provided to the SIU video pertaining to the incident on November 17, 2020. There was no audio on any of the recordings.

Sally Port
9:27:56 p.m.
OPP fully marked Dodge Charger enters the sally port. The SO is driving. WO #1 and WO #2 are on foot in the sally port. The SO exits the vehicle and joins WO #1 and WO #2 at the rear passenger door. WO #2 opens the rear passenger door.

9:29:17 p.m.
The Complainant exits the rear passenger door of the vehicle. His hands are in handcuffs behind his back. He exits the vehicle unassisted, seems unsteady on his feet, and follows WO #2 into the booking area. The SO and WO #1 follow the Complainant into the booking area. The Complainant is wearing a hoodie, jeans and running shoes. He does not appear to have any injuries.

Booking Area
In this detachment, prisoners are not paraded before a booking officer. Arresting police officers did their own booking and searching in the booking area, after which the prisoner is escorted to the cell area.

9:29:37 p.m.
The SO, WO #2 and WO #1 enter the booking area with the Complainant. Up to this point no officer has had any physical contact with the Complainant. WO #2 retires to a counter and is preparing some documents while the Complainant sits (still handcuffed to the rear) in a nearby chair. The Complainant kicks off his shoes.

9:31:20 p.m.
The SO and WO #1 assist the Complainant to stand up, conduct a quick search of him, and remove his belt and give it to WO #2, who puts it in a nearby locker.

9:31:49 p.m.
The SO turns the Complainant around and holds him against a nearby wall while WO #1 removes the handcuffs from the Complainant and conducts a more thorough search of him from behind.

9:32:29 p.m.
The SO and WO #1 remove the hoodie and sweater under it from the Complainant by pulling it up over his head. The Complainant is wearing a T-shirt.

9:32:43 p.m.
The Complainant is escorted out of the booking area with the SO holding his left arm and WO #1 holding his right arm.

Cell
9:32:51 p.m.
The Complainant walks into a cell unassisted. The SO and WO #1 do not enter the cell. The SO slides the cell door closed behind the Complainant. The sliding cell door is comprised of bars from top to bottom.

9:33:10 p.m.
The Complainant sits on the bunk in the cell with his feet on the floor facing the cell door.

9:35:07 p.m.
The Complainant, while seated on the bunk, leans back, puts his right hand deeply into his right front pants pocket and removes a white or grey small packaged item. He then unwraps the item and places the packaging and contents, which appear to be a white substance (possibly powder), on the bench beside him to his right.

9:36:35 p.m.
The Complainant stands, leans forward facing the bunk and, with his right hand, prepares lines of the white substance on the bunk. He leans forward and down and, with his right hand holding closed his right nostril, sniffs the white substance with his left nostril.

9:37:14 p.m.
The Complainant stands and walks back towards the cell door where the civilian guard, the PEW, is standing looking at him. The PEW and the Complainant appear to be speaking to each other briefly. The PEW leaves the cell area and returns to the booking area.

9:37:21 p.m.
The PEW returns to the hall area outside the Complainant’s cell with WO #2 standing behind him. The Complainant stands in front of the bunk in his cell with his back to the bunk, facing the cell door. He is standing in front of the front corner of the bunk where the white substance is still lying smeared on the bunk, blocking the view of the PEW and WO #2 from being able to see the white substance on the bunk.

9:37:32 p.m.
The PEW and WO #2 leave the hallway outside the cell and return to the booking area. The Complainant returns to the bunk and with his right hand swipes the remaining white substance from the bunk onto the floor. He then licks the palm and fingers of his right hand.

9:38:05 p.m.
The SO slides open the cell door and enters the cell. WO #1 remains standing at the open cell door.

9:38:15 p.m.
The SO approaches the Complainant in the cell. The Complainant, standing in the cell, turns to his left and faces the SO.

The SO is talking to the Complainant as he approaches him and is pointing with his right index finger down in the direction of the right front pants pocket of the Complainant.

The Complainant reaches into his right front pants pocket with his right hand and the SO immediately grabs both wrists of the Complainant with both hands, pulling the Complainant’s right hand out of the pocket.

The Complainant reacts by backing away from the SO and trying to pull free from the SO’s grasp, but is unsuccessful in doing so.

At this point, WO #1 moves from just inside the cell door towards the SO to assist him.

The SO, while still maintaining a hold on both wrists of the Complainant, pushes him backwards into a cell wall. WO #1 is still behind the SO. The Complainant is lifting up his arms, trying to break free from the SO, who maintains his hold on both wrists of the Complainant.

9:38:18 p.m.
WO #1 approaches from behind and to the left of the SO, and to the right of the Complainant, and takes hold of the right upper arm/bicep of the Complainant while the SO still has hold of both wrists of the Complainant.

The Complainant moves forward off the wall and begins moving towards the opposite cell wall. The SO and WO #1 maintain their hold on the Complainant.

WO #1 maintains hold of the right arm of the Complainant. The SO is holding onto the left wrist with his left hand and his right hand is now holding the left upper arm just under the left arm pit of the Complainant pushing/pulling the Complainant while all three of them move forward across the cell to an opposite cell wall.

There is momentum built up as the SO pushes/pulls the Complainant towards the opposite cell wall.

Just prior to reaching the opposite wall, with the SO to the left and slightly behind the Complainant and pulling/pushing the Complainant in that direction, the Complainant is pulled free from WO #1, who is on the Complainant’s right side.

With the SO maintaining his hold on the Complainant, the right side of the face of the Complainant strikes that wall.

WO #1 then moves in on the Complainant’s right side and once again takes hold of the Complainant’s right upper arm.


9:38:20 p.m.
With the SO holding onto the Complainant’s left wrist with his left hand and his right hand holding onto the left upper arm just under the left arm pit of the Complainant, he pulls down and to his left pulling the Complainant down and away from the wall and towards the front edge of the nearby bunk. This movement causes the Complainant to be slightly pulled away from WO #1 who is on the right side of the Complainant. WO #1 now has a very loose hold of the Complainant’s right arm. This puts the Complainant in a position in which neither hand is free to brace himself from falling forward face first onto the bunk.

The Complainant lands face first on the front edge of the bunk with the lower half of his body kneeling on the floor and the upper half of his body lying face down on the bunk.

The SO is on the left side of the Complainant, leaning over him still holding onto the left wrist of the Complainant with his left hand and holding onto the left upper arm just under the left arm pit with his right hand. WO #1 is on the right side of the Complainant leaning over him with his left hand on the back of the Complainant and the right hand holding onto the right wrist of the Complainant.

The Complainant then pulls his right hand free from the grasp of WO #1 and puts that hand up to his face. Blood can be seen on the bunk under his face.

9:38:23 p.m.
The SO pulls the left hand and arm of the Complainant up behind his back and holds it there by holding onto the left wrist of the Complainant.

The Complainant is lying face down on the bunk, squirming around trying to get up off the bunk and away from the SO.

WO #1 moves away momentarily. The SO then gets up, kneeling on the bunk and puts his left knee on the left shoulder blade of the Complainant holding him down while still holding the left wrist up behind the back of the Complainant.

The Complainant is thrashing his legs about, squirming around trying to push himself up off the bunk.

9:38:31 p.m.
WO #1 moves in and takes hold of the legs of the Complainant while the SO is still on the left side of the Complainant kneeling on the Complainant’s back with his right knee. WO #1 reaches into the front right pants pocket of the Complainant and retrieves a white substance. The Complainant appears to calm down.

9:39:04 p.m.
The SO and WO #1 leave the cell. The Complainant stands up in front of the bunk and is bleeding heavily from his face. There is a great deal of blood on the bunk, the floor and on his clothing. He then swipes the blood off of the bunk and flicks it towards the SO and WO #1 who are standing outside the closed door of the cell in a hallway. Those officers then leave that hallway and return to the booking area.


9:43:45 p.m.
The Complainant returns to the white substance still smeared on the bunk, swipes at it with his right hand, and licks his hand and fingers again; he does this twice. He is holding his left hand up to the left side of his jaw. He then sits on the bunk while still holding his left hand up to the left side of his jaw.

9:50:27 p.m.
Two gowned paramedics appear at the closed cell door and speak to the Complainant who approaches the cell door. The SO and WO #1 are present with the paramedics. The Complainant puts his hands through the bars, and the SO handcuffs them together and opens the cell door. The Complainant walks out of the cell and onto a gurney in the hallway, and is removed from the cell area by the paramedics.

Materials obtained from Police Service

Upon request, the SIU received and reviewed the following materials and documents from the OPP:
• Event Details;
• Communications Recordings;
• Cell and Booking Video Recordings;
• General Report;
• Notes-the SO:
• Notes-WO #1;
• Notes-the PEW;
• Notes-WO #2;
• Notes-WO #3;
• Provincial Police Academy Student Transcript-the SO;
• Prisoner Custody Report (Prisoner Log); and
• Use of Force Training Record-the SO.

Materials obtained from Other Sources

The SIU obtained and reviewed the following records from other sources:
• Ambulance Call Report; and
• Medical Record - L&ACGH.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant and the SO, and a review of the custody video that captured the incident in its entirety.

Shortly before 9:00 p.m., the OPP received a call from a woman. She was calling to report that the Complainant was at her residence in Deseronto, in violation of a term of his probation. OPP officers were dispatched to the address.
The Complainant had left the woman’s address by the time of the police arrival, but he was quickly located on a nearby street and arrested by the SO and WO #1. The Complainant was intoxicated and unsteady on his feet. He was handcuffed, briefly searched, placed in the rear of the SO’s cruiser, and transported to the OPP Lennox and Addington Detachment, Napanee.

At the detachment, the Complainant was searched again, had some clothing removed, and was lodged in a cell at about 9:32 p.m. A civilian guard, the PEW, was assigned to keep watch on the Complainant.

At about 9:35 p.m., the Complainant reached into his right pants pocket and retrieved a small packaged item. The Complainant unwrapped the package and deposited a white substance it contained onto the cell bench, forming the powder-like material into lines which he proceeded to snort.

Noticing what the Complainant had done, the PEW asked him about it and then reported his observations to WO #2. She, in turn, alerted the SO and WO #1, who made their way to the cell.

The SO, having been advised that the Complainant had ingested something from his pants pockets, shouted at the Complainant to keep his hands out of his pockets. The Complainant placed his right hand into his right front pants pocket at about the same time as the officer entered the cell. The SO immediately took hold of the Complainant’s wrists, pulling his right wrist out of the pocket. A struggle ensued between the parties, which was quickly joined by WO #1 who had also moved into the cell and grabbed hold of the Complainant’s right arm.

Within seconds of taking hold of the Complainant, the SO, still with a hold of his left arm, forced the Complainant across the length of the cell into the opposing cell wall. The right side of the Complainant’s face struck the wall. Immediately after impact, the SO pulled the Complainant down onto the cell bench. The grounding resulted in the Complainant’s face striking the bench as his upper half came to rest on the cell bench, his lower half in a kneeling position by the side of the bench.

Following the takedown, WO #1 searched the Complainant and located a grey plastic baggie in his right front pants pocket that contained what he believed was cocaine. The officers exited the cell at about 9:39 p.m. The Complainant was bleeding from the face at this time and advised the officers that he believed his jaw was broken.

Paramedics were summoned to the detachment and arrived at about 9:50 p.m. They took the Complainant to hospital, where he was diagnosed with a left-sided facial fracture.


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 17, 2020, the Complainant suffered a serious injury while in the custody of the OPP. The SO, who had arrested the Complainant, 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 injury.

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. The Complainant had violated the terms of his probation order on November 17, 2020. He was, therefore, subject to arrest. Once in police custody, the officers charged with his care and control were also entitled to take measures to ensure his safety and secure evidence from his person.

With respect to the nature and level of force used by the SO inside the cell, I am unable to conclude that it was more than was reasonably necessary in the circumstances. Despite having been searched twice beforehand, the Complainant still had with him contraband that the officers reasonably suspected was cocaine. He had been seen removing a wrapped package from his front right pants pocket, emptying some of its contents onto the cell bench, and ingesting the powder-like substance through his nose. The SO and the other officers had cause to be concerned about a possible overdose situation and were within their rights in seeking to act quickly to prevent the Complainant consuming any more of the substance. In the circumstances, the SO was justified in resorting to a measure of force when the Complainant failed to heed police commands that he not place his hands in his pockets. While that force was significant, I am satisfied that it was intended to immediately foreclose any opportunity that the Complainant might have had to consume more drugs, and was not disproportionate to the task at hand. The takedown, for example, though forceful and perhaps the cause of the facial fracture, placed the Complainant into a position of disadvantage whereby any further resistance on his part could be better managed. Indeed, it was shortly after the takedown that the SO, with WO #1’s assistance, was able to subdue the Complainant, after which the Complainant was searched again and a package of suspected drugs removed from his right front pants pocket.

For the foregoing reasons, there is insufficient evidence to reasonably conclude that the SO acted with excessive force in his dealings with the Complainant inside the cell. The force was significant, but the risk of self-harm and possibly even death befalling the Complainant in a drug overdose situation was also real. On balance, I am satisfied that the officer acted within the range of what was of justifiable force in the circumstances. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: November 23, 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.