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 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.

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 sustained by a 43-year old man on October 18, 2016 during his arrest for impaired driving.

The investigation

Notification of the SIU

At 7:12 p.m. on October 18, 2016, the Ontario Provincial Police (OPP) reported a custody injury to the Complainant. According to the OPP, on that date at 3:00 p.m., the Complainant was arrested for impaired driving near the Pikangikum dump.

The Subject Officer (SO) was dispatched to a complaint of an impaired driver and encountered the Complainant. The SO attempted to arrest the Complainant and a struggle ensued. Numerous OPP officers and a First Nations Constable responded to assist and the Complainant was eventually arrested and handcuffed. The Complainant was taken to the detachment where it was observed his elbow was swollen and he was taken to the nursing station.

The Complainant was diagnosed with a dislocated elbow which was reduced, however, X-rays revealed several bone chips (fractures) to the elbow. The Complainant was to be flown out to Thunder Bay sometime in the next week to be seen by a specialist.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Not interviewed, but notes received and reviewed footnote 1[1]

WO #5 Not interviewed, but notes received and reviewed

Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

Evidence

The scene

This incident took place on the Dump Road at Pikangikum First Nation, on October 18, 2016, at approximately 2:10 p.m.

The SIU arrived in Pikangikum on October 22, 2016, at approximately 11:00 a.m. There was no scene held by the OPP, and nothing of any evidentiary value to be collected or examined by the SIU in relation to this incident at that time.

Communications recordings

Summary of OPP Communications Recording

  • On October 18, 2016 at 3:01:00 p.m., a police officer from the Pikangikum Police Service (PPS) called OPP communications advising a dispatcher that he received a phone call from a Pikangikum First Nations council member telling him that a possible impaired driver is heading towards the sandpit on Dump Road. The PPS officer further advised that there may be an unknown person passed out in a vehicle described as a blue coloured Chevrolet pickup owned by the Complainant. The PPS officer stated that this information he received came in around 2:00 p.m., and that the Complainant may not be the driver of the pickup and it was difficult in obtaining information from the council member
  • 3:04:41 p.m., the OPP dispatcher broadcasted over the police radio to OPPpolice officers in the Pikangikum area the information she had received from the PPS officer
  • 3:07:54 p.m., the OPP dispatcher can be heard trying to contact the PPS officer on the police radio but there is no response
  • 3:11:17 p.m., the SO requested a second unit to attend Dump Road to assist him as he is a single unit and he further advises that multiple complaints are coming in that the man is violent out in the dump. Another OPP Unit advised he was on his way to assist and asked what was happening at the dump
  • 3:13:10 p.m., the OPP dispatcher advised WO #3 that an impaired driving traffic complaint involving a blue pickup truck belonging to the Complainant was heading to the sandpits on Dump Road and that the Complainant was known to be violent
  • 3:13:41 p.m., the SO told the OPP dispatcher that he was just stopped by a couple of vehicles while he was on the way to assist at the dump and the same message was relayed to him
  • 3:15:07 p.m., WO #1 told the OPP dispatcher he was on his way to assist on the call
  • 3:17:07 p.m., the SO told the OPP dispatcher he had located the blue pickup truck deep into the dump and was off with the vehicle. WO #2 said he was on Dump Road now and on his way to assist
  • 3:17:33 p.m., WO #2 said on the police radio that they were on Dump Road
  • 3:18:38 p.m., the SO asked the other responding units what their estimated time of arrival (ETA) was
  • 3:18:48 p.m., the OPP dispatcher asked for the ETA of the assisting police officers
  • 3:19:55 p.m., an OPP police officer, believed to be the SO, can be heard on the police radio and the police officer’s voice is raised. The dialogue is garbled and it is unknown exactly what is said
  • 3:20:05 p.m., the OPP dispatcher asked the SO if everything is alright
  • The SO tells the OPP dispatcher no and for the units responding that the male is fighting and he has his hands full
  • 3:20:25 p.m., an unknown OPP police officer advises on the police radio that he is off with the SO now, and
  • OPP police officers at the scene advise the OPP dispatcher that they have one in custody and a few seconds later advise they have two in custody

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP North West Region Headquarters (Thunder Bay):

  • Event Chronology
  • Involved Persons List, and
  • Note of WO #1, WO #2, WO #3, WO #4 and WO #5

Incident narrative

During the afternoon of October 18, 2016, the Complainant was driving a blue Chevy pickup truck in the area of Pikangikum. He had consumed a significant amount of alcohol. His front passenger, CW #2, was unconscious. CW #1, CW #3 and CW #4 were in the back seat.

PPS officer contacted the OPP after receiving information about the Complainant’s truck and CW #2. This information was broadcast to the OPP officers in the area, including the SO. Several individuals also flagged down the SO to advise that the Complainant was impaired, aggressive, and could be found near the dump. The SOfound the Complainant driving the pickup truck on Dump Road and was eventually able to stop the Complainant.

When the SO approached the Complainant, it was clear that he was impaired. The SOplaced him under arrest for impaired driving and removed the Complainant from the truck. Once out of the truck, the Complainant began to resist the SO’s efforts to handcuff him. The SO grounded the Complainant on his stomach, and once WO #1 arrived, was able to take the Complainant into custody and transport him to the detachment.

As the Complainant’s right elbow was swollen, he was taken for medical attention.

After being transported to the hospital in Thunder Bay on October 20, 2016, x-rays were taken and the attending physician could not exclude an avulsion injury (soft tissue injury) to the Complainant’s right elbow, or fractures to his right hand.

Relevant legislation

Section 253, Criminal Code – Operation while impaired

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

  1. while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
  2. having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood

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.

Analysis and director’s decision

On October 18, 2016, at approximately 2:19 p.m., the Complainant was arrested by the SO for impaired operation of a motor vehicle. In the course of his arrest and handcuffing, the Complainant was taken to the ground. The Complainant was transported to the detachment where it was observed his right elbow was swollen. He was taken to the Pikangikum Nurses Station, arriving at 3:15 p.m. Upon examination, the Complainant was diagnosed with a dislocated elbow. A reduction was performed and he was released back to the OPP. On October 20, 2016, the Complainant attended the hospital in Thunder Bay for X–rays. The attending physician could not exclude an avulsion injury (soft tissue injury) to the Complainant’s right elbow, or fractures to his right hand.

Earlier during the afternoon of October 18th, the SO was on patrol in Pikangikum when he was flagged down by a community member who stated that a male driver in a Blue Chev was weaving all over Dump Road with a female passenger passed out in the front passenger seat. About 20 minutes later, a PPS officer called OPPcommunications advising that he received a phone call from a Pikangikum First Nations council member telling him that a possible impaired driver in a blue coloured Chevrolet pickup owned by the Complainant was on Dump Road with an unknown person passed out in a vehicle. While en route to the call, the SO was stopped by another male who stated that he had just had an altercation with an intoxicated male in a newer blue Chev pickup at the dump who was stumbling and aggressive. The Complainant was known to be violent.

The SO located the blue pickup and was eventually able to stop the vehicle at approximately 2:18 p.m. The Complainant was driving, and CW #2 was passed out in the passenger seat. The Complainant had clear signs of impairment.

In the rear of the truck were CW #1, CW #3 and CW #4. The Complainant acknowledged that he was intoxicated at the time. In fact, he was significantly impaired as revealed by his later blood alcohol test results of 200 mg of alcohol per 100 ml of blood, and 197 mg of alcohol 100 ml of blood. footnote 2[2] This level of intoxication obviously calls into question the reliability of the Complainant’s recollections of that afternoon. For example, he could not recall how he ended up on the ground during his arrest, or who the other officers were who arrived or how he was lifted off the ground.

When the SO asked the Complainant to step out of the truck, he responded very slowly. The SO described the Complainant grabbing the driver door frame after he exited. The SO asked the Complainant to walk to the back of the truck, and to put his hands behind his back so that he could be handcuffed. At that point, the SO indicated that the Complainant started to resist. The Complainant denied any attempt to resist his arrest.

In his notes, the SO stated that he was able to get a handcuff on the Complainant’s left wrist, but he pulled his right arm away footnote 3[3] and in fact tried to grab the SO’s arm. This is consistent with WO #1’s observations when he arrived on scene. He saw that the SO was involved in a physical struggle with the Complainant at the back of the truck, with one of the Complainant’s wrists handcuffed and the SO and the Complainant positioned face to face. They appeared to grabbing each other’s arms and they were moving about and rotating like they were dancing. WO #1 was so concerned about the Complainant’s resistance that he drew his CEW, only later abandoning his intention to use it when a third officer, WO #2, arrived. The SO’s notes are also consistent with the observations made by WO #2 who, on his arrival, saw the SO and the Complainant behind the tailgate of the Complainant’s vehicle, in close proximity and facing each other. Both had their arms elevated upwards and they were grabbing and pulling at each other. Both WO #1 and WO #2 describe the Complainant being brought to the ground and continuing to resist efforts to handcuff his right wrist. Eventually, however, WO #1 was able to pull the Complainant’s right arm out and handcuffs were applied.

I have no doubt that the SO had grounds to arrest the Complainant that afternoon for impaired driving. I also find, based on the totality of the evidence, particularly the consistent description of the Complainant’s arrest by the SO and WO #1, and WO #2, as well as the Complainant’s level of intoxication and reported aggression prior to the police stop, that the Complainant resisted the SO’s efforts to be handcuffed, was ultimately grounded by the SO and WO #1 and continued to resist. I accept that the Complainant’s injuries occurred in the course of these efforts.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Nonetheless, given the Complainant’s size, level of intoxication and resistance to the SO’s efforts to handcuff him, I conclude that the SO’s conduct did not fall outside the range of what was reasonably necessary to attempt to subdue the Complainant and take him into custody. The jurisprudence is clear, officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C.(2d) 96 (Ont. C.A.)) nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206).

As such, I am satisfied on reasonable grounds that the SO’s actions fell within the limits prescribed by the criminal law and there are no grounds to believe he committed a criminal offence. No charges will issue.

Date: October 3, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

 
Updated: January 9, 2018
Published: January 9, 2018