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 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 a serious injury sustained by a 52-year-old man (the “Complainant”).

Notification of the SIU

On August 3, 2020, at 2:13 p.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury.

The OPP reported that on August 2, 2020, at 7:31 p.m., the Complainant was involved in an altercation with his surety, Civilian Witness (CW) #1. His surety eventually kicked him out of the residence and called 911. OPP officers initiated a search with the assistance of an OPP Police Service Dog (PSD) to track to the Complainant’s whereabouts but those efforts were unsuccessful.

On August 3, 2020, at 10:34 a.m., the Complainant returned to his surety’s home and OPP were again notified. When Subject Officer (SO) #1 arrived, he attempted to place the Complainant under arrest; however, a physical altercation ensued in which SO #1 deployed his Conducted Energy Weapon (CEW). Eventually the Complainant was placed into police custody but complained of chest pains. SO #2 assisted with the Complainant’s arrest and WO #1 arrived at some point during the arrest.

The Complainant was initially transported by ambulance to the Lennox and Addington County General Hospital (LACGH) where he was diagnosed with fractured ribs and a collapsed lung.

On August 4, 2020, at 0620 hrs, the OPP advised that the Complainant was at Kingston General Hospital (KGH) awaiting facial surgery.

The Scene

The scene was located in the township of Tamworth. The scene was a rural setting with mainly agricultural land. There was a single-family home located on the property and a detached garage behind and to the side of the house with a long gravel laneway leading up to the front of the garage. Cedar trees ran along two edges of the property. There was a large farm field at the rear of the property. There was a wire farm fence at the rear of the property along the property line. The fence was about 2 to 2.5 metres in height.

The location of the incident and arrest of the Complainant occurred in the field about 100 to 150 metres west of the back of the property.

The location where the Complainant was hiding from police was behind the detached garage under a tarp beside an entry access door.

Forensic Evidence

Conducted Energy Weapon (CEW) Data

SIU Forensic Investigators extracted data from SO #1’s CEW. The data revealed that the CEW appeared to be in good working order. The data records captured two deployments. The first cartridge (C1) was deployed at 11:22:33 a.m. [1] for a duration of 2 seconds, and a second cartridge (C2) was deployed at 11:22:46 a.m. for a duration of 5 seconds. There was a second trigger with C2 at 11:24:03 a.m. for 2 seconds. The CEW was in safe mode at 11:24:05 a.m.

Video/Audio/Photographic Evidence

Summary of Video Footage from Civilian’s Cellular Phone

The video was one minute and 50 seconds in duration and showed footage at the back of the property behind the house and into an open field area.

The video was not very clear or steady. It depicted WO #1 and WO #2 arriving in their police vehicles with audible sirens in the background and the police vehicles parking on the grass on the north side of the house. Both police officers jumped the fence and ran about 100 metres into an open field to where SO #1 and SO #2 were interacting with the Complainant. The distance was too far to depict the actions of the police officers and the video was not zoomed in to obtain closer footage.

At one point, CW #4 was heard saying, “Oh yeah, rapping him right in the fuckin head.” The remainder of the footage was of no further evidentiary value to this investigation.

Communications Recordings

• At about 11:20 a.m., SO #1 broadcast that he had deployed his “Taser”;
• At about 11:21 a.m., SO #1 broadcast that the male was running again; and
• At about 11:23 a.m., SO #1 broadcast that the male was in custody.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:

• Contact with OPP-CW #3;
• Contact with OPP-the Complainant;
• Crown Brief;
• Email Thread regarding Subject Officer Interview;
• General Occurrence (x3);
• Intergraph-Computer-assisted Dispatch Details (x2);
• Notes of WOs; and
• Training Record-Use of Force - SOs.

Materials obtained from Other Sources

The SIU also obtained and reviewed the following materials and documents:

• Medical records for the Complainant from KGH and LACGH;
• Ambulance call reports; and
• Cell phone video.

The following scenario emerges on the weight of the evidence collected by the SIU, which included interviews with the Complainant, SO #1, two witness officers present for portions of the arrest, and two civilians who observed the Complainant being taken into custody from a distance.

In the morning on August 3, 2020, SO #1 attended at an address in Tamworth. His objective was to locate and arrest the Complainant, whom he had reason to believe was located at the address. The evening before, the Complainant had physically assaulted a family member and his friend, CW #1 and CW #2, respectively. Despite their efforts, including the use of a police dog, officers responding to the scene were unable to locate the Complainant.

The property where the Complainant was arrested in Tamworth belonged to CW #3. CW #3 and CW #4 had picked the Complainant up and returned with him to their residence just as the police were arriving. The Complainant was able to exit the vehicle undetected and make his way to the back of the garage, where he hid under a tarp. SO #1, now in the company of SO #2, searched the interior of the garage and the main residence without success. Arriving at the back of the garage, SO #1 noticed a white running shoe protruding from the tarp. He kicked at the tarp and was startled as the Complainant quickly got to his feet.

With SO #1 in pursuit, the Complainant turned and ran away from the officer along a line of cedar trees that lined the north edge of the property. SO #1 yelled at the Complainant to stop as he was under arrest and then discharged his CEW. The deployment had no effect as the Complainant continued toward a wire fence, which he scaled landing onto an open farm field. From behind the fence, SO #1 fired his CEW again at the Complainant. On this occasion, the Complainant was incapacitated and fell to the ground, but only momentarily as he quickly regained his footing and continued his flight in a northwest direction.

With SO #2 behind him, SO #1 chased after the Complainant past the fence and watched as he stumbled and fell. The officers caught up with the Complainant on the ground. Following a physical altercation, SO #1 and SO #2, with the assistance of two other officers arriving at the scene, WO #1 and WO #2, handcuffed the Complainant.

After his arrest, the Complainant was carried back to the cruisers where he complained of soreness and shortness of breath. An ambulance arrived and took him to hospital. The Complainant was subsequently diagnosed with severe injuries, including multiple rib fractures and facial fractures.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

On August 3, 2020, the Complainant was arrested by OPP officers and suffered serious injuries in the process. Among the arresting officers, and identified as subject officers for purposes of the SIU investigation, were SO #1 and SO #2. On my assessment of the evidence, there are no reasonable grounds to believe that the subject officers committed a criminal offence in connection with the Complainant’s arrest and injuries.

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. SO #1 and SO #2 were within their rights in seeking to arrest the Complainant. Given what they knew of the events from the day before, there were reasonable grounds to believe that the Complainant had unlawfully assaulted CW #1 and CW #2. The real question is with the propriety of the force used by the officers in effecting the Complainant’s arrest.

There is no question that the Complainant was subjected to significant force while on the ground and that this force resulted in very serious injuries. According to the information proffered by SO #1, WO #1 and WO #2, the Complainant strenuously resisted the officers’ efforts to take him into custody. He flailed his body, kicked out with his feet, attempted to bite SO #2 and refused to release his arms from underneath his torso. In return, SO #1 delivered multiple knee strikes to the Complainant’s arms, legs and midsection, and two to three punches to the head and face area. For his part, SO #2 struck the Complainant with at least one knee to the shoulder area and punched him in the face. It was only with the arrival of WO #1 and WO #2 that the officers were able to subdue the Complainant and secure him in handcuffs. No further strikes were delivered.

Some of the evidence gathered by the SIU contradicted this account, indicating that the Complainant did not resist at all. While I am mindful that charging authorities must restrict their assessments of the strength of competing evidence to threshold considerations to avoid usurping the role of the trier-of-fact as the ultimate arbiter of questions of fact, I am unable to reasonably conclude that this evidence is sufficiently trustworthy to warrant being put to the test before a court. In the context of the Complainant’s recent and unprovoked acts of violence toward CW #1 and CW #2, the determination with which he attempted to avoid apprehension, and his hostility toward medical staff who were only trying to help him following his arrest, this claim to non-resistance is simply incredulous. The aforementioned-frailties and others associated with this account lead me to conclude that it would be unwise and unsafe to rest charges on the strength of this evidence alone. In this regard, it should be noted that the injuries the Complainant suffered are incapable of tipping the scales as they are equally consistent with the force described by the officers. Nor is the evidence provided by CW #3 and CW #4 sufficient corroboration of the Complainant’s assertions given their distance away from the arrest scene.

In the final analysis, the only reliable evidence suggests that the Complainant was struck with knees and punches to various parts of his body which, though significant, were not disproportionate to the spiritedness with which he fought the officers’ efforts to take him into custody. [2] Most if not all of this force occurred before WO #1 and WO #2 arrived at the scene of the arrest to render assistance. In arriving at this conclusion, I am mindful that the common law does not require police officers engaged in dynamic and volatile situations to measure their responsive force with precision; what is required is a reasonable response, not a perfect one. On the foregoing analysis, I am not satisfied on reasonable grounds that the force used by the subject officers fell afoul of the latitude prescribed by the criminal law. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: March 8, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit