Director's Report Details

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.

Freedom of Information and Protection of Personal 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.

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 of a 45-year-old man allegedly sustained on October 11, 2016 during his arrest.

Notification of the SIU

On May 18, 2017 at 11:07 a.m. the Ontario Provincial Police (OPP) notified the SIU of the custody injury to the Complainant. The OPP had received an Office of the Independent Police Review Director (OIPRD) complaint from the Complainant that indicated he was arrested for public intoxication on November 10, 2016, at 2:00 p.m.

The Complainant alleged that during the arrest, he was taken to the ground and kicked in the ribs. The Complainant was taken to the detachment and lodged. The Complainant later complained of chest pains and was taken to the hospital where he was released by the OPP. The Complainant reported that he had several fractured ribs as a result of the arrest.

The OPP advised that their records indicated that on November 10, 2016, the Complainant was apprehended under the Mental Health Act. The OPP do have a record of the Complainant being arrested for Public Intoxication on October 11, 2016, at 2:25 p.m., however, which involved transportation to the hospital. The Subject Officer (SO) was involved in that arrest.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant

45-year-old male interviewed, medical records obtained and reviewed

Civilian witnesses

CW Interviewed

Police employee witnesses

PEW #1 Interviewed

PEW #2 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

Subject officers

SO Interviewed, and notes received and reviewed.

During the afternoon of October 11, 2016, OPP (Sioux Lookout Detachment) received a 911 call regarding the Complainant, who was intoxicated outside a commercial building and the caller was concerned for the Complainant’s safety.

The SO and WO #1 responded to the call and located the Complainant asleep under a dump truck. He was very intoxicated at the time. The Complainant was arrested for being intoxicated in a public place, placed in the OPP cruiser, taken to the OPP detachment in Sioux Lookout and lodged. While there, the Complainant complained of pain in his heart and kidney.

Later that evening, the SO took the Complainant to the local hospital. X-rays determined that the Complainant had a minimally displaced left 4^th and 5^th rib fracture.

The scene

The arrest occurred in a vacant lot next to a commercial building in Sioux Lookout.

Video/audio/photographic evidence

OPP station video

The OPP video from October 11, 2016 showed the sally port, booking area, hallway and both cells that the Complainant was in at the Sioux Lookout Detachment.

The Complainant was escorted from the sally port to the booking area and to his cell without incident. The Complainant was seen handcuffed when he arrived at the sally port. He removed his coat and pulled his sweatshirt over his head without any apparent difficulty when he was in the booking area.

Physical evidence

Prisoner security check form

PEW #2 made the following notations on the Prisoner Security Check form:

• 4:01 p.m. - The Complainant complained his heart was hurting
• 4:02 p.m. – WO #2 was informed and would be up[1]
• 6:00 p.m. - The Complainant was crying and wanted to go to the hospital and that the Complainant only had one kidney
• 6:07 p.m. – WO #3 would come to see the Complainant
• 6:12 p.m. - The Complainant wanted to go to the hospital in relation to his heart and kidney
• 6:16 p.m. – WO #3 was speaking to the Complainant
• 6:17 p.m. - The Complainant was crying and saying he was hurting
• 6:44 p.m. - The Complainant was saying he was sore
• 6:45 p.m. – The SO would come to speak to the Complainant[2]
• 7:32 p.m. – WO #2 was informed about the Complainant’s kidney pain
• 7:43 p.m. – The SO spoke to the Complainant, and
• 7:46 p.m. - The Complainant was removed to the hospital by the SO

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP (Sioux Lookout Detachment):

• OPP station video
• Notes of WO #1, WO #2 and WO #3
• OPP Prisoner Custody Report
• OPP Prisoner Security Check
• Procedure - Arrest and Detention
• Procedure - Prisoner Care and Control, and
• Radio Communications

Section 31(4), Liquor Licence Act – Intoxication

(4) No person shall be in an intoxicated condition,

1. in a place to which the general public is invited or permitted access; or
2. in any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

An undated complaint (the complaint is actually dated with the Complainant’s birthdate) was filed by the Complainant to the OIPRD wherein the Complainant alleged that he was assaulted by a Police Constable (PC) from the Sioux Lookout OPP Detachment. Although the complaint indicates the offence date as November 10^th, 2016, it appears that whoever typed up the document simply mistyped the day/month and what was actually intended was October the 11^th, 2016, which is confirmed by the Complainant’s statement to SIU investigators as well as documents held by the OPP Detachment in Sioux Lookout.

The Complainant, in his statement, alleged that on October 11^th, 2016, he had been drinking alcohol, when an officer grabbed him, knocked him down and kicked him in the ribs, breaking two of them.

The CW, in her statement to investigators, contradicted the Complainant’s version in every material way, including the degree of his intoxication, the number of officers who responded to the 911 call, and what occurred during his arrest. At no time did the CW observe the Complainant fall to the ground while in the presence of the police, or either officer kicking him when he was down. The CW, who observed the entire incident, was not concerned in any way by the officers’ treatment of the Complainant.

The evidence of the CW fully confirms the evidence of both the SO and WO #1 that both officers responded to the call and assisted the Complainant, that the Complainant was already on the ground upon police arrival, and at no time did he fall during the presence of police; furthermore, the Complainant was either already passed out or asleep when police arrived and it was WO #1, not the SO, who approached him under the dump truck and woke him, whereupon it was noted that his speech was slurred, he had an odour of alcohol on his breath and he was too intoxicated to care for himself. Consistent with the evidence of the CW, neither officer was of the view that the Complainant offered any resistance, and they used no force in arresting him for being intoxicated in a public place and placing him inside the police cruiser. The Complainant was arrested at 2:37 p.m., according to the SO, and was later transported from the police cells to hospital, where he was seen by a doctor and diagnosed with a minimally displaced fourth and fifth rib fracture.

On the independent evidence of the CW, while it is very possible that the Complainant was knocked down and kicked in the ribs causing him two fractures, I find that was not done by either of the police constables who responded to the 911 call, but could easily have occurred prior to the arrival of police and perhaps the Complainant has fused the two incidents together in his mind as one, due to his state of sobriety at the time. On the evidence of the CW, which fully confirms the evidence of both the SO and WO #1, it is clear that the Complainant was already on the ground and unconscious upon police arrival and that, other than waking the Complainant and assisting him to the police cruiser, there is absolutely no credible evidence that either police officer was involved in the injury to the Complainant. I also have absolutely no difficulty finding on the independent evidence of the CW that the Complainant was indeed extremely intoxicated on the date in question and that it was this extreme state of intoxication, along with his lying on the ground and his obvious inability to care for himself, that caused the CW enough concern that she called police twice to render him some assistance; this evidence is fully consistent with the observations of both the SO and WO #1 and is inconsistent with the Complainant’s own belief that he was not drunk. I have no difficulty finding that the Complainant, in piecing things together in his own mind after the fact, and due to his state of intoxication, may have attributed to the SO actions that may have been those of another party, and that he simply does not correctly recall the sequence of events. On the Complainant’s own evidence, it appears that whoever knocked him down did so from behind, while he continued to move forward, and that he was then kicked while down, which could have effectively prevented him seeing who the perpetrator was but mistakenly attributing it in hindsight to the police officer who arrived afterwards. I find further support in this conclusion from the fact that upon his arrival at the police station, the Complainant made no complaint of injury, but only accused the SO of injuring him a few days later, when he had presumably pieced together what he believed had occurred.

In conclusion, I find on the credible evidence of the CW, as fully corroborated by the SO and WO #1, that no force other than the minimal amount required to assist the Complainant to his feet and into the police cruiser was used by either police officer during his interaction with the Complainant on October 11^th, 2016, and that there are no reasonable grounds upon which to believe that either police officer employed an excessive use of force against the Complainant, nor that they were the cause of his injuries and, as such, there is no evidence upon which to base a reasonable belief that a criminal offence was committed here.

Date: November 21, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] i.e. to see the Complainant. However, the cell video does not show WO #2 coming to the Complainant’s cell. [Back to text]
• 2) [2] The cell video does not show the SO coming to the Complainant’s cell until 7:43 p.m. [Back to text]