SIU Director’s Report - Case # 17-PCI-101
Issued: January 10, 2018
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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.
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 injuries sustained by a 41-year-old man on May 2, 2017, which were discovered upon his release from police custody on May 3, 2017.
Notification of the SIU
The SIU was notified of the incident on May 3, 2017 at 6:45 p.m. by the Ontario Provincial Police (OPP).
The OPP reported that on Tuesday, May 2, 2017, at 10:21 p.m., Sioux Lookout OPP officers arrested the Complainant for trespassing and public intoxication at a motel in Sioux Lookout. The Complainant was taken to the OPP detachment in Sioux Lookout and lodged in a cell.
At 12:06 p.m. on May 3, 2017, when the Complainant was being released, police officers noticed he was disoriented and had an injury to his left eye. The Complainant was taken to the hospital in Sioux Lookout and found to have suspected serious bleeding on the brain. The Complainant was airlifted to hospital in Thunder Bay.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, and measurements.
41-year-old male interviewed, medical records obtained and reviewed
CW #1 Interviewed
CW #2 Interviewed
Police employee witnesses
PEW #1 Interviewed
PEW #2 Interviewed
PEW #3 Interviewed
WO #1 Interviewed
WO #2 Interviewed
SO #1 Interviewed, and notes received and reviewed.
SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.
During the evening of May 2, 2017, SO #1 was at a motel in Sioux Lookout on an unrelated matter when he was advised that a male, later known to be the Complainant, had locked himself in a unit that he was not authorized to be in. SO #1 entered the unit and found the Complainant alone, on the bathroom floor. He smelled strongly of alcohol and was unsteady on his feet when he stood up, but was otherwise compliant and not aggressive. SO #1 arrested the Complainant for trespassing. SO #2 arrived and transported the Complainant to the OPP Sioux Lookout detachment, where he was lodged in a cell and held for 13 hours. While in the cell, the Complainant vomited and urinated, but did not complain of any injury and none was observed.
The next day, when the Complainant was removed from his cell to be released from custody, WO #1 and WO #2 noticed that the Complainant was incoherent and confused, and had bruising near his left eye. Emergency Medical Services (EMS) attended and took the Complainant to the hospital in Sioux Lookout. He was later airlifted to the hospital in Thunder Bay, where it was determined he had a significant head injury with intracranial bleeding, including fractures to his right and left eye sockets and to the nasal bone.
The Complainant was arrested in a room of the motel in Sioux Lookout. The Complainant was lodged in cell #1 at the Sioux Lookout OPP detachment. Photographs and measurements of the detachment’s sally port, cell area and cell #1 were taken.
The holding cell that the Complainant had used was examined. Blood was noted on the floor of the cell, near the head of the bunks and on the toilet.
The SIU canvassed the area for any video or audio recordings, and photographic evidence, and received closed circuit television (CCTV) video recordings from the motel and a gas station near the motel
This video was of the front desk/lobby area of the motel. EMS personnel were seen exiting with a person on a gurney.
OPP station video
The OPP video showed the sally port, booking area, hallway, and cell #1 at the Sioux Lookout detachment. The Complainant was escorted from the sally port to the booking area and to his cell without incident. Over a period of 13 hours, the Complainant was often seen to be standing, sitting, or lying down within the cell. He vomited and urinated on the floor. There was no altercation with the other person in the cell. The Complainant walked unaided to the booking area when he was to be released.
Materials obtained from Police Service
Upon request the SIU obtained and reviewed the following materials and documents from the OPP Sioux Lookout Detachment:
- Station Video
- Event Details (Arrest)
- Event Details (Hospital)
- Notes of WO #1 and WO #2
- Occurrence Summary and General Report
- OPP Prisoner Custody Report
- Procedure - Arrest and Detention
- Procedure - Prisoner Care and Control, and
- Radio Communications
Section 2(1), Trespass to Property Act - Trespass an offence
2 (1) Every person who is not acting under a right or authority conferred by law and who,
- without the express permission of the occupier, the proof of which rests on the defendant,
- enters on premises when entry is prohibited under this Act, or
- engages in an activity on premises when the activity is prohibited under this Act; or
- does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier
is guilty of an offence and on conviction is liable to a fine of not more than $10, 000.
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
- as a private person
- as a peace officer or public officer
- in aid of a peace officer or public officer, or
- 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 May 2nd, 2017, SO #1 was present at a motel in Sioux Lookout on a call unrelated to the Complainant’s presence in the motel when he was asked by a registered guest (the Guest), to attend his room and remove an unwanted party (the Complainant). SO #1 attended the room and confirmed that the only registered guests for the room were the Guest and CW #1. He then sought and received consent to enter the room and remove the unwanted party, and consent was granted by the Guest. SO #1 then entered the room and located the Complainant and placed him under arrest for trespass contrary to the Trespass to Property Act and transported him to the police station where he was lodged in a cell overnight. The following day, he was taken to hospital where he was diagnosed with a significant brain injury and was airlifted to a hospital in Thunder Bay where he underwent surgery.
The Complainant, in his statement to investigators, had no recollection of being at the motel, having any interaction with police, being arrested, or how he came to sustain his injury.
There were unfortunately no civilian witnesses to either the arrest of the Complainant or his subsequent transport to the Sioux Lookout OPP Detachment. One of the subject officers, SO #1, made himself available to investigators for an interview, while SO #2, who transported the Complainant to the police detachment, did not, as was his legal right.
The video from the motel revealed the Complainant being escorted out of the motel in the presence of SO #1, while the video from the police station revealed the Complainant being escorted from the sally port area to the booking area and then on to the cell area without incident. The cell video revealed the Complainant standing, sitting or lying down in his cell over the 13 hours during which he was housed there. He is observed to both vomit and urinate on the floor. The video confirms that at no time was the Complainant involved in any type of physical altercation with any other person while he was in the cell and he is seen to walk unaided to the booking area to be released the following day.
SO #1, in his statement, advised that he was at the motel in Sioux Lookout in response to an unrelated call on the second floor of the motel when he was approached by the Guest at approximately 10:20 p.m. The Guest complained that someone was in his room and had chained the door but that he was unaware of the identity of the person or how he had come to be in his room. SO #1 went to the room with the Guest, and after confirming that the Guest and CW #1 were the only registered guests for that room and gaining consent to enter the room, SO #1 pushed the door open and entered, while the Guest remained outside. CW #1 was apparently asleep on the couch in the lobby at the time. SO #1 advised that he entered the bathroom where he found the Complainant lying on the bathroom floor next to the toilet. SO #1 was familiar with the Complainant and observed that he had vomited. From his prior dealings with the Complainant, SO #1 did not find this to be unusual. SO #1 advised that he assisted the Complainant to his feet and that the Complainant was friendly and compliant. There was no struggle and the Complainant was not aggressive, but he was unsteady on his feet and smelled strongly of alcohol and appeared to SO #1 to be intoxicated. SO #1 then placed the Complainant under arrest for trespassing, handcuffed him and took him out of the room. When asked, the Complainant advised that he was in the room as he had been drinking with CW #1. CW #1, when interviewed, advised he did not know the Complainant and had no recollection of drinking with him.
Since SO #1 was still involved on the other call which had brought him to the motel, he requested that another officer transport the Complainant to the station. He then turned the Complainant over to SO #2, who took control of the Complainant at 10:35 p.m., in order to transport him. SO #1 advised he had no further dealings with the Complainant and at no time did he notice any injury or blood on the Complainant and the Complainant did not complain of any injury.
The Complainant was monitored in the police custody cells over the course of the night by three different custody officers and was then removed from the cell in the morning to be released. None of the officers who were tasked with the care of the Complainant while he was in custody made any observations that alerted them that the Complainant was injured or may have required medical treatment. When asked by an officer, the Complainant apparently indicated that he was okay and the officers only observed him to be intoxicated. Although it was observed that the Complainant had vomited in his cell, this was not considered unusual in light of his condition of intoxication, and did not alert the officers of any injury.
The following day, at approximately noon, WO #1 and WO #2 assisted in releasing the Complainant and observed him to be stumbling and confused and he appeared to still be intoxicated. Both officers noted that the Complainant had some sign of injury including bruising and swelling in the area of his left eye and dried blood near his left nostril. WO #2 further noted that the Complainant appeared unable to answer simple questions, appeared to be unable to hear out of his left ear, and was not alert. Consequently, both officers felt that something was amiss and an ambulance was called for the Complainant and he was taken to hospital.
Medical records indicate that the Complainant had sustained a left orbital fracture and a left contusion, as well as a lower fracture of the medial wall of the right eye socket and a fracture to the roof of the left eye socket by the eyebrow, and that the fractures extended up into the sinus area. There was also a bi-lateral fracture to the nose and subdural hemorrhaging (bruising to the brain) underneath the left side of his skull. The attending physician advised that these injuries could be consistent with either a single blow, multiple blows, being struck with a blunt object, or a fall from a standing position onto a hard surface. The doctor indicated that the brain bleeding could occur over a number of hours and that, in his opinion, it was possible that the Complainant’s injury could have occurred either before or after arrest; he opined, however, that it was more likely that it occurred prior to his arrest. The doctor also opined that it likely would have taken a number of hours before the injury to Mr. Tuesday would have been visible and that his intoxication at the time of his arrest could have hampered the ability of police to discern that he had been injured.
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. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information received by SO #1 from the Guest, that the Complainant was unlawfully in his room, that SO #1 was acting lawfully when he entered the room to remove the Complainant, at the Guest’s request, and arrested him for the offence of trespass to property contrary to s. 2 of the Trespass to Property Act. Even though SO #1 could have simply issued a ticket to the Complainant, since the Complainant was extremely intoxicated and had nowhere to go, it was reasonable for SO #1 to arrest and hold the Complainant until he sobered enough to care for himself. As such, the apprehension of the Complainant was legally justified in the circumstances.
In the absence of any recollection by the Complainant, and there being no witnesses to his arrest, there is no evidence, other than that of SO #1, as to what occurred when the Complainant was placed under arrest and handcuffed. The motel video confirms that the Complainant exited the room on his own and did not appear to show any indications of illness or injury, only intoxication. While there is no in-car video from the OPP cruiser, and SO #2 chose not to provide a statement, there is no evidence whatsoever as to what, if anything, occurred during the Complainant’s transport to the police detachment. It is, however, clear from the video inside the police station and the cell area, that the Complainant was not injured in any way while in police custody at the station nor was he involved in any type of altercation.
On all of the evidence available to me, I am unable to determine when, by what means, or at whose hands, the Complainant may have been injured, or even whether or not anyone else was involved in inflicting his injury or if he simply fell due to his state of intoxication and thereby received his injury. On the basis of the expert medical opinion, there is real and compelling evidence that the Complainant was injured prior to his interaction with police and that his state of intoxication masked his symptoms of a head injury, which did not fully manifest itself until the following morning, when both WO #1 and WO #2 were alert and concerned enough to contact an ambulance on his behalf.
In conclusion, on all of the available evidence, I am unable to find that there are any reasonable grounds to believe that a criminal offence was committed by any police officer in this instance and no charges will issue.
Date: January 10, 2018
Original signed by
Special Investigations Unit
- footnote Back to paragraph The Complainant’s father suggested that the Complainant may have been involved in a physical altercation at the gas station prior to his arrest. A review of the video from this location does not show any altercation occurring.
- footnote Back to paragraph SO #1 said in his interview that the person on the gurney was not the Complainant, but someone related to the initial incident he had been investigating.