No charges against officers after Mindemoya man suffers fractured leg in arrest

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MISSISSAUGA – The Director of the Special Investigations Unit (SIU), Joseph Martino, has found no reasonable grounds to believe that either of the Ontario Provincial Police Officers (OPP) committed a criminal offence in connection with a 56-year-old Mindemoya man’s arrest and injury. The decision was announced December 31, 2021. 

On July 17, 2021, two OPP officers were dispatched to a property in Mindemoya following a call from the owners of the property to police about a trespasser. When approached by the officers, the man objected to his arrest and there was a struggle. The officers eventually took control of the man and arrested him. The man complained of injury to his left leg and was taken to the hospital where he was diagnosed with a fractured left leg.

The SIU report indicates the complainant, a resident of Mindemoya, had had disagreements with a property owner over access to a shoreline. The complainant indicated that he had been charged with trespassing on several occasions by the OPP but these charges were withdrawn.

The SIU investigation report revealed that on July 17, 2021, at approximately 11 am, the complainant had attended the above-mentioned shoreline area. Two OPP police officers attended to remove the complainant from the area. During his arrest, the complainant was kicked in the left leg. The complainant reported he was unable to walk from the area and was dragged up a hill to a waiting OPP prisoner transport vehicle. 

Two additional police officers were at the prisoner vehicle. The complainant was placed in the prisoner vehicle and taken to a local hospital by the OPP, the report said. The police officer declined to provide his name to the complainant and indicated that it was on the ticket. The complainant was issued a provincial offences notice (PON) trespass to property act charge. The notice indicated that the issuing officer was subject official No. 2.

The complainant was assessed and diagnosed with a fractured leg. The complainant was referred to Health Sciences North (Sudbury) and, on July 28, 2021, had reconstructive surgery to his left leg, the SIU reports. The complainant had a return appointment to the same hospital scheduled for September 10, 2021. The complainant was advised to retain the PON.

At 4:26 pm, the SIU contacted the OPP who advised that the OPP Liaison for the area would contact the SIU.

At 5:45 pm. the OPP liaison for the Northeast Region OPP contacted the SIU. The OPP was advised of the allegations, and the invocation of the SIU mandate. 

The complainant was interviewed on September 8, 2021. 

The two subject officers declined interview, while four civilian witnesses and two witness officers were subsequently interviewed, the SIU report reveals. 

The scene was not examined by SIU forensic investigators. However, SIU investigators attended the scene on September 28, 2021. The scene presented similar as it would have been in July 2021. No physical evidence was obtained from the scene.

The area of the altercation was close to the driveway to a cottage. The property had both tree coverage and grassy areas. The arrest took place in the treed lot which led down a steep hill to the lake. The ground in the area was covered in shale stone. Closer to the lake, the shale stone was extensive.

The scene was well out of the documented marine access to the shoreline, the report explained.

The SIU report revealed that through OPP dispatch radio recordings at 11:20:04 am, an undesignated police officer was dispatched to a trespass in progress call at one of the civilian witness addresses. The two officers volunteered to head to the call for service as well. The undesignated officer asked about checks to be run on all.

OPP communications updated that one of the civilian witnesses had called to say that she and her brother had confronted the complainant and asked that he leave the property. Subject officer #2 acknowledged the information. An officer advised that they had arrested the complainant for trespassing and would be leaving shortly. They advised they would be attending the hospital (Mindemoya Medical Centre) with the complainant at his request. The complainant had been arrested under the Trespass to Property Act and would be issued a Provincial Offences Act notice when released from hospital.

“The following narrative emerges from the evidence collected by the SIU which included interviews with the complainant and civilians who witnessed parts of the events in question. As was their legal right, neither subject official chose to interview with the SIU. They did authorize the release of their notes.”

“In the morning of July 18, 2021, OPP officers were dispatched to a property in Mindemoya following a call to police reporting a trespasser. The trespasser, the complainant, had been asked to leave the property by member of the family who owned the cottage on the land. The complainant, believing he had a lawful right to be on the land, had refused.”

“The two subject officers arrived at the address at about 12:00 pm. They spoke with members of the family and then approached the complainant asking him to vacate the property. At the time, the complainant was on a treed incline that climbed towards the cottage property from the shoreline of Mindemoya Lake. Again, believing that he had every right to be where he was, the complainant refused.”

“The officers approached the complainant, advised him he was under arrest, and attempted to handcuff him,” the report continues. “The complainant objected to the arrest and refused to release his hands to be handcuffed. He continued to resist on the ground after he had been taken down by one of the officers. In short order, however, the two subject officers were able to subdue the complainant, take control of his arms, and secure him in handcuffs.”

While being escorted to a cruiser following his arrest, the complainant complained of injury to his left leg. He was taken from the scene to hospital and eventually diagnosed with a fracture of the left leg.

In his analysis and decision, Director Martino wrote, “Following his arrest on July 18, 2021 by OPP officers, the complainant was taken to hospital and diagnosed with a serious injury. The arresting officers were identified as subject officials for purposes of the SIU investigation. The investigation is now concluded. On my assessment of the evidence, there is no reasonable grounds to believe that either of the subject officials committed a criminal offence in connection with the complainant’s arrest and injury,” wrote Mr. Marino.

Mr. Martino explained, “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 authorized or required to do by law. While the weight of the evidence suggests that the complainant was in fact trespassing on the land, I need not come to any conclusion on the matter. It is enough to find, as I do, given the information at their disposal and having spoken with members of the family, that there were reasonable grounds to believe that the complainant was trespassing at the time. In the circumstances, when the complainant refused repeated requests that he leave the property by someone the officers reasonably believe was the property owner, he was subject to arrest pursuant to section 9(1) of the Trespass to Property Act.”

“There is no doubt that the complainant resisted his arrest. Instead, at issue is whether he was subjected to excessive force when, while prone on the ground, he was kicked or kneed by one of the officers. If believed, this might give rise to criminal liability on the part of one or the other subject officials.” “However, I am unable to conclude that there is sufficiently cogent evidence to this effect to warrant charges,” continued Mr. Martino. “For example, the complainant says that he had great difficulty bearing weight on his knee, following the strike, as he was being escorted to the police cruiser. None of the witnesses present at the time, however, was able to corroborate that evidence. Finally, in light of the fact that the complainant struggled against the officers’ efforts to handcuff him while on the ground for between two and five minutes, I am unable to reasonably conclude that a knee or a kick was necessarily excessive in the circumstances, even if it did cause the injury in question.”

“As for the officers’ rendition of the altercation that marked the complainant’s arrest, no mention is made of a strike of any kind once the complainant was on the ground. Rather, the officers reported simply using their greater manpower to wrestle control of the complainants’ arms before handcuffing them from behind his back,” continued Mr. Martino.

“In the result, there are no reasonable grounds to believe that either of the subject officials comported themselves other than lawfully in their dealings with the complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and this file is closed,” added Mr. Martino.