SIU Director’s Report - Case # 20-OCI-167
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Contents:
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.
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 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.
- 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 injury that a 23-year-old man (the “Complainant”) suffered.
“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 injury that a 23-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On July 7, 2020, a woman called the SIU and reported that her brother, the Complainant, had suffered a serious injury during an interaction with members of the Stratford Police Service (SPS) on June 27, 2015. The Complainant had been walking along train tracks on his way home from work when he was approached by two SPS police officers. [One of the police officers was identified as Subject Officer (SO) #1.] The Complainant continued walking and paid no regard to the police officers, who then punched the Complainant in the head, tackled him to the ground and put pressure on his face while he was on the ground. The police officers took the Complainant into custody and transported him to the police station where he was issued a ticket for a contravention of the Railway Safety Act (RSA) and charged with resisting arrest contrary to the Criminal Code (CC).
The following day, the Complainant attended the Stratford General Hospital (SGH) where he was seen by a doctor. The Complainant was diagnosed with a concussion, cuts to his face, and a black eye.
The Team
Number of SIU Investigators assigned: 3 Number of SIU Forensic Investigators assigned: 0
Complainant:
Male interviewed, medical records obtained and reviewedSubject Officers
SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right. SO #2 Interviewed, notes received and reviewed.
Evidence
The Scene
This incident was dated and, as a result, the scene was neither attended nor examined. The landmark location, a VIA Rail station, held the street address of 101 Shakespeare Street, Stratford, between Front Street and Nile Street. The train station building sat north of the Goderich-Exeter Railway Company yard which was a roughly graveled property of common railway yard design and laid out for the shunting and storage of railway equipment, vehicles and goods. The property was also populated by many outbuildings of various industrial purpose.Video/Audio/Photographic Evidence
Summary of the Adult Diversion Program Video Recording of the Complainant Post-Conviction
On November 6, 2015, at 3:59 p.m., the interview between the Detective Sergeant and the Complainant commenced [2] and it concluded at 4:30 p.m. The interview was a recount of the Complainant’s recollection of the events of June 27, 2015, and the Detective Sergeant’s explanation of why the Complainant was arrested and what the Complainant could have done differently to have avoided arrest.
The Complainant’s account of his arrest was consistent with the information he provided the SIU. The video interview captured the Complainant’s story that he was on railway property when SO #1 engaged him and the Complainant knew SO #1 was a police officer. SO #1 asked the Complainant to identify himself and the Complainant told him he did not have to and walked away from SO #1.
The Complainant had a true and abiding belief he was under no obligation to talk to any police officer, under any circumstance, and repeatedly refused to identify himself.
When SO #1 asked him to turn around and place his hands behind his back, the Complainant responded, “No.” That was when SO #1 called for backup and SO #2 arrived. All three struggled as the Complainant did not understand why the police officers wanted him to do what they asked. The Complainant was thrown to the ground and a police officer [now known to be SO #2] punched him in the side of his face and told him to stop struggling.
The Complainant stopped struggling and the police officers put him in handcuffs and placed him in a police vehicle. He was transported to the police station where he waited in an interview room.
The Complainant said the reason he did not answer the police officer’s questions was because his mother had taught him not to talk to the police and he had no idea why his mother had taught him that. Further, because he watched “cop shows”, the Complainant did not want to talk to the police because he did not want to get in trouble and he believed that talking with the police got you in trouble.
The Detective Sergeant explained that just because a police officer wanted to talk to a person did not mean they were in trouble.
The Complainant explained again that he was uncomfortable talking to people (due to his medical conditions) and still thought he was not doing anything wrong that night.
The Complainant acquiesced, after explanations made by the Detective Sergeant, that he should have told the police officers who he was and perhaps a conversation would have happened, and his arrest may not have been necessary.
The Detective Sergeant spoke with the Complainant about the role police officers had, as people, and in public safety. The Complainant showed frustration and explained that in his head he knew what he wanted to say but had a hard time communicating. He did not like talking to people and was embarrassed because of that.
The Detective Sergeant reassured the Complainant and expressed sorrow about the way things happened. The Complainant acknowledged he was now aware that walking on the railway tracks was an offence. The Detective Sergeant told the Complainant it was important to tell people he had medical conditions that made interactions with people difficult and the Complainant acknowledged that his being nervous during interactions with people made things worse.
Summary of SPS Police Facility Video
Sally Port
At 11:10:29 p.m., the Complainant was escorted from the rear passenger seat of SO #1’s police vehicle to the sally port stairs by SO #1 and SO #2. The Complainant was compliant as he walked. His hands were handcuffed behind his back and he had dirt and/or mud on his pantlegs and jacket. The video showed an injury to the right side of the Complainant’s face along with dirt and/or mud on both sides of his face.
At 12:38:55 a.m., the Complainant walked into the sally port followed by SO #1 and SO #2. The Complainant’s hands were handcuffed in front of his body. He was walked to the rear passenger seat of SO #1’s police vehicle. SO #1 got into the driver’s seat and drove the Complainant from the police station.
At 1:11 a.m., the Complainant exited the rear passenger side of SO #1’s police vehicle and walked with his hands handcuffed to the front of his body toward the sally port stairs followed by SO #1.
At 1:19:55 a.m., the Complainant entered the sally port carrying his backpack and walked to the rear passenger seat of SO #1’s police vehicle.
At 1:20:29 a.m., the Complainant and SO #1 left the police facility.
Sally Port Stairs
At 11:10:36 p.m., the Complainant walked up the stairs escorted by SO #1. The Complainant had blood and mud on the right side of his face and forehead. He also had dirt on the left side of his face and chin. Dirt was visible on the front of both his pantlegs, jacket, shirt and shoes. They were followed by SO #2 and an unknown police officer.
At 12:38:50 a.m., the Complainant, followed by SO #1 and SO #2, walked down the stairs to the sally port.
At 1:11:06 a.m., the Complainant, with his hands handcuffed to the front of his body, walked up the stairs followed by SO #1.
At 1:19:51 a.m., the Complainant walked down the stairs, carrying his backpack, followed by SO #1.
Main Hall
At 11:10:48 p.m., the Complainant walked into the main hall from the sally port stairs escorted by SO #1, followed by SO #2, and was led into the search room. At 11:11:01 p.m., the search room door closed. Voices could be heard but were unintelligible. At 11:15:16 p.m., SO #2 exited the search room as he pushed the Complainant’s shoes out the door. At 11:15:24 p.m., SO #1 exited the search room and secured the door.
At 1:22:36 p.m., a third police officer approached the search room door with SO #1. The two police officers discussed mental health issues and the unidentified police officer said, “Oh dear, does it look worse than it is?” SO #1 pointed to his own forehead and explained the Complainant had a bump and blood on the right side of his forehead from “eating the gravel”. The third police officer asked SO #1 if he found out where the Complainant was going and what his address was. SO #1’s responses were inaudible. By now SO #2 stood in the main hall and the third police officer asked if the Complainant was drunk. SO #1 responded, “No, he doesn’t seem to be.” The third police officer suggested SO #1 give the Complainant some napkins and water to clean up and all the police officers left the main hall area.
At 11:25:39 p.m., the third police officer unlocked the search room door and entered the room with towels in his hand. He told the Complainant he “had a couple rags if he wanted to wipe up a bit”. At 11:25:52 p.m., the officer exited the search room and secured the door.
At 11:26:11 p.m., the officer entered the search room with a garbage pail and, at 11:26:54 p.m., he exited and asked the Complainant to let him know if he needed any more “wet ones”.
At 11:34:54 p.m., SO #1 entered the search room and told the Complainant that duty counsel was on the telephone. At 11:35:12 p.m., SO #1 exited the search room, deactivated the audio recording and secured the door.
At 11:52:18 p.m., the third police officer asked the Complainant if he needed anything. The Complainant responded that he was fine.
At 12:21:21 a.m., SO #2 entered the search room with a digital camera. He exited and secured the door at 12:22:50 a.m.
At 12:27:21 a.m., the third police officer entered the search room, and exited at 12:27:58 a.m., where he was met by SO #1. He asked SO #1 to take the Complainant to the hospital before his release to ensure nothing was broken. The two police officers discussed the Complainant’s release paperwork and the third police officer told SO #1 the Complainant “had a pretty good gash, wasn’t bleeding a ton, but once they got him cleaned up, they might throw a couple of stitches in it”.
At 12:37:36 a.m., SO #1 entered the search room as SO #2 stood in the main hall. SO #1 told the Complainant they were going to take him to the hospital and once done they would bring him back to the police station for some paperwork. At 12:38:39 a.m., the Complainant exited the search room and walked down the main hall followed by SO #1 and SO #2.
At 1:11:18 a.m., the Complainant, with his hands handcuffed to the front of his body, walked with SO #1 down the main hall and entered the search room. SO #1 exited and secured the door. At 1:13:12 a.m., the third police officer and SO #1 entered the search room with paperwork. The third police officer told the Complainant, “We have documents, then they will get you out of here, OK?” At 1:19:10 a.m., SO #1, the Complainant and the third police officer exited the search room. The third police officer said he felt better now that the Complainant had been checked out at the hospital and “everything was cool”. The Complainant responded, “OK.” SO #1 and the Complainant walked down the hall and exited the main hall area.
Search Room
At 11:10:58 p.m., the Complainant and SO #1 and SO #2 entered the search room. The Complainant’s hands were handcuffed behind his back and he was sat down on a chair. SO #1 informed the Complainant the room was audio and videoed, and the Complainant acknowledged he understood. SO #1 told the Complainant he had been arrested for an RSA offence and failing to identify himself. The Complainant said he understood and wanted to call his lawyer. SO #1 read the Complainant his Charter Rights to Counsel and provided him with the secondary caution. The Complainant understood and asked that someone call his mother. The Complainant also requested legal aid be called. SO #1 explained that prior to being released the Complainant would have to provide the police with his full name, date of birth and address. The Complainant said he understood and, at 11:12:52 p.m., the Complainant identified himself.
SO #1 told the Complainant if he had identified himself earlier, he would have just gotten a ticket but instead he resisted and punched the police.
The Complainant was searched by SO #1 and SO #2 and discussed his criminal history. His handcuffs were removed, and his shoes were taken from him. At 11:15:13 pm., SO #1 and SO #2 exited the search room.
At 11:25:38 p.m., the third police officer entered the search room, provided the Complainant with wipes to clean the mud off his face and left. He returned at 11:26:16 p.m., with a garbage pail as the Complainant wiped the dirt off his face. The police officer offered the Complainant use of the sink but the Complainant declined, saying he would take a shower when he got home.
At 11:34:56 p.m., SO #1 entered the search room and told the Complainant duty counsel was on the phone to speak with him. SO #1 picked up the phone and handed it to the Complainant. SO #1 told the Complainant to wait until he left the room to speak. The audio component of the video was disabled to allow the Complainant to speak with duty counsel in private. The Complainant remained seated in the chair upon conclusion of this telephone call.
At 12:21:22 a.m., SO #2 entered the room and took photographs of the Complainant’s face and head.
At 12:27:23 a.m., the third police officer entered the search room and examined the Complainant’s injured face; they appeared to speak to one another. The Complainant gestured to the left side of his head. At 12:27:56 a.m., the police officer left the room.
At 12:37:40 a.m., SO #1 stepped inside the search room and returned the Complainant’s shoes. At 12:37:54 a.m., SO #2 stepped inside the room with the Complainant’s health card in hand. The Complainant appeared to respond to questions and SO #2 exited. SO #1 handcuffed the Complainant’s hands in front of his body and, at 12:38:39 a.m., the Complainant and SO #1 exited the search room.
At 1:11:23 a.m., the Complainant and SO #1 entered the room; SO #1 removed the Complainant’s handcuffs and SO #1 exited the room.
At 1:13:14 a.m., SO #1 and the third police officer entered the room with the Complainant’s release papers. SO #1 explained the provincial offences notice issued under the RSA and went over his safety concerns for the Complainant being on the railway tracks. SO #1 explained to the Complainant that had he provided his identification when he was asked there would have been no need to arrest him and the third police officer told him the same and added that the Complainant had resisted arrest, more police officers attended, and the Complainant was injured. He told the Complainant if his mother had any questions, she could call but hoped he would own up to his responsibilities and let his mother know exactly what happened and not create something out of nothing. He thought it was unfortunate what happened. He explained the charge of resist arrest and reviewed the release documents with the Complainant. He offered that SO #1 could give him a ride home if he wanted and the Complainant accepted the ride home. At 1:19:09 a.m., SO #1, the Complainant and the third police officer exited the search room.
Summary of the RSA and arrest authority
The Complainant was initially investigated and ultimately arrested for committing RSA offence 26.1, “No person shall, without lawful excuse, enter on land on which a line work is situated.” Both subject officers cited section 495(1)(a) of the Criminal Code, absent any limitation cited under section 495 (2)(d)(i) of the Criminal Code, as their authority to effect the arrest.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from SPS:- Canadian Police Information Centre checks;
- Computer-assisted Dispatch Details;
- DVD interview summary - the Complainant - November 6, 2015;
- DVD interview of the Complainant;
- Station and sally port video;
- Notes – SO #2;
- Occurrence Reports;
- SPS General Orders - Arrest, Cell Block and Prisoner Care and Control;
- SPS General Order - Use of Force;
- Subject Profile – the Complainant;
- Memorandum of Understanding between SPS and Goderich-Exeter Railway;
- Training Record – SO #1; and
- Training Record – SO #2.
Materials obtained from Other Sources
Upon request, the SIU obtained and reviewed the following materials and documents from non-police sources:- Medical records - SGH; and
- Medical records and injury photographs from the Complainant’s family.
Incident Narrative
The following scenario emerges from the weight of the evidence collected by the SIU, which included statements from the Complainant and both subject officers. Just before 11:00 p.m. on June 27, 2015, SO #1 was on patrol in his police cruiser when his attention was drawn to the Complainant. The Complainant was walking on railway tracks at the intersection of McKenzie Street and Cambria Street, which the officer believed was a contravention of the Railway Safety Act. SO #1 continued to watch the Complainant and became concerned with his safety should a train come along given the Complainant was wearing dark clothing and had large headphones over his ears.
In the parking lot of the Via Rail station, SO #1 pulled up to the Complainant and exited his cruiser. The officer explained that the Complainant was in contravention of the Railway Safety Act and the provincial Trespass to Property Act. After a period in which the Complainant refused to speak with the officer, he was advised that he would be arrested if he continued to refuse to identify himself. The Complainant did not identify himself and was told he was under arrest.
SO #1 radioed for assistance and was soon joined in the parking lot by SO #2. When the officers took hold of the Complainant’s arms, he reacted by pulling away. With the officers and the Complainant on their feet, a short struggle of about ten seconds ensued, following which SO #1 and SO #2 forced the Complainant to the ground. The Complainant continued to struggle against the officers’ efforts to handcuff him on the ground and was met by a single hand strike to the head by SO #2, whereupon the Complainant’s arms were controlled and handcuffed.
Following the Complainant’s arrest, he was taken to the police station and then to the hospital because of bleeding from his head. He was treated at hospital, released back into the custody of the police and returned to the police station. The Complainant was subsequently charged with resisting arrest and released on a promise to appear.
In the parking lot of the Via Rail station, SO #1 pulled up to the Complainant and exited his cruiser. The officer explained that the Complainant was in contravention of the Railway Safety Act and the provincial Trespass to Property Act. After a period in which the Complainant refused to speak with the officer, he was advised that he would be arrested if he continued to refuse to identify himself. The Complainant did not identify himself and was told he was under arrest.
SO #1 radioed for assistance and was soon joined in the parking lot by SO #2. When the officers took hold of the Complainant’s arms, he reacted by pulling away. With the officers and the Complainant on their feet, a short struggle of about ten seconds ensued, following which SO #1 and SO #2 forced the Complainant to the ground. The Complainant continued to struggle against the officers’ efforts to handcuff him on the ground and was met by a single hand strike to the head by SO #2, whereupon the Complainant’s arms were controlled and handcuffed.
Following the Complainant’s arrest, he was taken to the police station and then to the hospital because of bleeding from his head. He was treated at hospital, released back into the custody of the police and returned to the police station. The Complainant was subsequently charged with resisting arrest and released on a promise to appear.
Relevant Legislation
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
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) 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
The Complainant was seen by his family doctor on June 28, 2015 and diagnosed with a mild concussion. The day before, the Complainant had been arrested by two SPS officers. On July 7, 2020, the Complainant’s family contacted the SIU to report that the Complainant’s injury was the result of force used during his arrest on June 27, 2015. The SIU commenced an investigation and identified the arresting officers – SO #1 and SO #2 – as the subject officers. On my assessment of the evidence, there are no reasonable grounds to believe that either subject officer committed a criminal offence in connection with the Complainant’s arrest and injury.
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. I accept that SO #1 and SO #2 were engaged in the lawful execution of their duties when they endeavoured to arrest the Complainant. In fact, the Complainant subsequently pled guilty to a trespassing charge in relation to the events giving rise to his arrest. The issue turns to the propriety of the force used by the officers in effecting the Complainant’s arrest.
In view of the Complainant’s candid admission that he physically resisted his arrest while on his feet by pulling away from the two officers, I am unable to reasonably conclude that SO #1 and SO #2 acted with excess in grounding the Complainant. In my view, the tactic was available to the officers as a reasonable means by which they could quickly and safely overcome the Complainant’s resistance and deter any further aggression on the ground given their positional advantage. The same, I am satisfied, may be said with respect to the hand strike by SO #2 on the ground following a brief period of continued struggle by the Complainant.
In the result, while I accept that the Complainant’s concussion was the result of the force used against him during his arrest, whether the takedown or the hand strike, there are no reasonable grounds to believe that either subject officer acted unlawfully. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: January 11, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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. I accept that SO #1 and SO #2 were engaged in the lawful execution of their duties when they endeavoured to arrest the Complainant. In fact, the Complainant subsequently pled guilty to a trespassing charge in relation to the events giving rise to his arrest. The issue turns to the propriety of the force used by the officers in effecting the Complainant’s arrest.
In view of the Complainant’s candid admission that he physically resisted his arrest while on his feet by pulling away from the two officers, I am unable to reasonably conclude that SO #1 and SO #2 acted with excess in grounding the Complainant. In my view, the tactic was available to the officers as a reasonable means by which they could quickly and safely overcome the Complainant’s resistance and deter any further aggression on the ground given their positional advantage. The same, I am satisfied, may be said with respect to the hand strike by SO #2 on the ground following a brief period of continued struggle by the Complainant.
In the result, while I accept that the Complainant’s concussion was the result of the force used against him during his arrest, whether the takedown or the hand strike, there are no reasonable grounds to believe that either subject officer acted unlawfully. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: January 11, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The RSA charge was also withdrawn, and a new information was laid in relation to a Trespass to Property Act contravention, which the Complainant plead guilty to. [Back to text]
- 2) The time stamp on the recording was inaccurate and one hour ahead of the actual time. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.