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 of the custody injuries sustained by a 53-year-old male in Port Stanley during an interaction with Elgin County Ontario Provincial Police (OPP) officers on August 5, 2016. The male was taken to hospital and diagnosed with a dislocated left elbow with resultant nerve damage and bone chip fractures.

Notification of the SIU

On August 5, 2016, at 4:30 a.m., the OPP contacted the SIU and reported that a 53-year-old male had been injured during an interaction with members of the Elgin County OPP Detachment.

The Team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

CW #4  Interviewed

CW #5  Interviewed

Witness Officers

WO Interviewed

Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.

The Scene

The incident occurred just outside the front of a residence located on Edith Cavell Boulevard in Port Stanley. The residence is a one and a half story rental cottage on the shores of Lake Erie. It is situated behind a second building about 50 metres from the roadway.

The cottage is accessed via a cement sidewalk through a gate at the roadway. The walkway extended from the roadway to a small four by four one-step deck at the front door.

The small fenced front yard was lit by a single outside light on a post adjacent to the walkway. The ground was a sandy grass surface. The cottage was more than 100 metres east of the lake.

The encounter with the police officers occurred at the base of the light post to the left (north) side of the walkway in the front yard of the cottage, several metres from the front door.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications Recordings

On Friday, August 5, 2016, at 1:07 a.m., an ambulance dispatch call requested police respond to Edith Cavell Boulevard, Port Stanley. CW #3 reported the Complainant was short of breath and required an ambulance. CW #3 also said the Complainant had taken some pills and she was concerned the Complainant may be in danger of an overdose.

At 01:09 a.m., the SO and WO were dispatched. Both police officers arrived at 1:20 a.m., and the WO advised Emergency Medical Services (EMS) were already on scene. A short time later, there were simultaneous transmissions from the SO and WO. The transmissions were mostly unintelligible but the police officers sounded out of breath and concluded when the WO advised that all was 10-4. At 1:31 a.m., communications requested a status check and the SO said she was going to follow the ambulance to the hospital. The SO said the Complainant was very combative initially, but had calmed down. Another police officer was assigned to meet the SO at the hospital.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the Elgin County OPP Detachment:

• Arrest report,
• Event Chronology,
• Incident (General) Report,
• Notes – WO,
• OPP policy - Emotionally Disturbed, Mentally Ill, Developmentally Disabled,
• OPP Policy - Use of Force,
• Statement – CW #3,
• Training Record – SO, WO, and
• Witness Statement to OPP – CW #5.

On August 5, 2016, the Complainant was at a summer rental cottage in Port Stanley. At about 01:00 a.m., CW #3 called 911 and requested an ambulance. She informed the dispatcher that the Complainant was short of breath, having a mental health episode and would be angry at her for calling an ambulance. CW #3 was concerned about the Complainant’s behaviour as he had taken medication and may have overdosed.

Central Elgin Fire and Rescue (CEFR), EMS and the OPP responded to the call. Soon after 1:00 a.m., the firefighters arrived on scene. CW #3 showed them to the small loft bedroom where the Complainant was sleeping. The firefighters entered and attempted to rouse the Complainant to assess his condition. Uniformed EMS paramedics also arrived at the cottage and attempted to assess the Complainant. The Complainant got out of bed and headed downstairs to get away from them.

At about 1:20 a.m., the SO and WO arrived and heard yelling coming from inside the cottage. CW #5 (one of the attending firefighters) was briefing the WO on the front walkway, when the Complainant came walking out the front door in boxer shorts and a t-shirt. The WO raised his hands and instructed the Complainant to stop. The Complainant told him to go away and continued to walk in their direction. According to the WO, SO, and firefighters on scene, the Complainant then pushed the WO in his upper body as he tried to pass by.

The SO and WO took the Complainant face down to the ground. He landed on a sandy grassy area beside the walkway. The Complainant held his hands under his chest, despite commands by the police officers to produce them. The SO struggled to keep control of the Complainant’s left hand and was assisted by CW #5, while the WO attempted to gain control of the Complainant’s right hand with the assistance of CW #4 (another of the attending firefighters). CW #5 was able to get the Complainant’s left hand out from under his torso. The SO then bent the Complainant’s left arm behind his back. The Complainant was handcuffed with his hands behind his back.

Paramedics at the scene thereafter assessed the Complainant, whose left arm appeared deformed and was causing him pain. He was taken by ambulance to the hospital where he was diagnosed as having a dislocated left elbow with resultant nerve damage and bone chip fractures.

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

1. as a private person,
2. as a peace officer or public officer,
3. in aid of a peace officer or public officer, or
4. 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.

Section 17, Mental Health Act - Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself,

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person;
5. serious bodily harm to another person; or
6. serious physical impairment of the person,

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician. 2000, c. 9, s. 5.

In the early morning on August 5, 2016, the Complainant suffered an injury to his left elbow during an encounter with police officers from the OPP Elgin County Detachment in Port Stanley. For the reasons that follow, I am unable to form reasonable grounds to believe that the SO committed a criminal offence in relation to the injuries sustained by the Complainant during their interaction.

The basic facts are not in dispute. While the Complainant was restrained and handcuffed by the SO and the WO in front of the cottage, his left elbow was seriously injured. The central issue is whether the police officers had the authority to arrest or apprehend the Complainant in the first instance and subsequently whether the force used to do so was reasonable.

For the following reasons, I am satisfied that the involved officers had grounds to both arrest the Complainant and also detain him under section 17 of the MHA. Multiple witnesses saw the Complainant push the officers as he tried to flee. The Complainant subsequently struggled with the officers. Therefore, although the Complainant was unaware that he was dealing with police officers given his distressed mental state, technically the officers had grounds to arrest the Complainant for assaulting a peace officer and resisting arrest. Furthermore, the SO and WO believed they had grounds to apprehend the Complainant under section 17 of the MHA as they had reason to believe he was a danger to himself and others. The basis for their belief was a combination of the yelling heard inside the cottage, their observations of his angry aggressive presentation as he came outside, his lack of response to their commands, the surrounding perils of a wilderness environment to which he was heading in his underwear and t-shirt, in addition to the information received from the dispatcher that he may be possibly overdosed on drugs. The SO had also heard someone yell from inside the cottage that he may be heading to his car to drive away. Despite concerns expressed to him by emergency responders that he required medical attention, the Complainant refused to be assessed. The Complainant was clearly not operating in reality, but rather in a disorderly and aggressive manner, that could reasonably have been perceived by the SO and the WO to be likely to result in serious bodily harm to himself or others.

Section 25(1) of the Criminal Code limits the force an officer may use to that which is reasonably necessary in the circumstances in the execution of their lawful duties. The WO and SO engaged in a struggle with the Complainant to such an extent that the WO attempted to control the Complainant in a headlock and the SO cautioned she would use her conducted energy weapon (CEW) if he did not cooperate. The jurisprudence has clearly stated that the standard to which officers are to be held is not perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are they expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)). Although the evidence suggests that it was likely the manner in which the SO manipulated the Complainant’s left arm that resulted in it dislocating, I do not have reasonable grounds to form a belief that the SO pulled his left arm behind his back in a manner outside of her training or with more force than was reasonably necessary to complete his handcuffing given the circumstances.

In conclusion, while it is very unfortunate that the Complainant suffered damage to his left elbow during his encounter with the OPP in the early morning on August 5, 2016, there was nothing in the conduct of the SO that would warrant criminal charges in this case. Accordingly, this case will be closed and no charges will issue.

Date: August 24, 2017

Original signed by
Joseph Martino
Acting Director
Special Investigations Unit