Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into serious injuries sustained by a 58-year-old man (the “Complainant”).

Notification of the SIU
 

On January 9, 2021, at 4:06 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

The OPP advised that, at 12:36 p.m., OPP police officers responded to a domestic call involving the Complainant and his common-law spouse, the Civilian Witness (CW), at their residence. OPP police officers arrested the Complainant for assault and theft. The Complainant resisted and was grounded. He complained of shortness of breath and was transported to Trenton Memorial Hospital by ambulance where he had been diagnosed with a fractured rib and collapsed lung. The Complainant had been released on a Form 10.

The Team
 

Date and time team dispatched:     01/11/2021 at 9:32 a.m.

Date and time SIU arrived on scene:     01/11/2021 at 10:54 a.m.

Number of SIU Investigators assigned:     2

Due to the Coronavirus pandemic, arrangements were made to have SIU investigators conduct telephone interviews.

Despite numerous requests, the Complainant declined to be interviewed by the SIU. He did not consent to the release of his medical information relating to the treatment of his right rib injury.

The CW was at home at the time of the incident; however, she told SIU investigators that she did not witness any interaction between the Complainant and the involved OPP police officers. The interaction took place on the opposite side of the roadway from her residence and her view was obstructed by trees at the end of the laneway. The distance from the front of the house to where the Complainant was arrested was over 53 metres.

Following a preliminary investigation, Subject Official (SO) #1 and SO #2 were designated as subject officials on January 12, 2021. Interview requests letters were sent to SO #1 and SO #2 on January 19, 2021. Counsel for SO #1 and SO #2 advised both subject officials would not participate in an interview and neither consented to the disclosure of duty notes.

Affected Person (aka “Complainant”):

58-year-old male, declined to be interviewed

Civilian Witnesses

CW     Not interviewed

Subject Officials
 

SO #1     Declined interview and to provide notes, as is the subject official’s legal right
SO #1     Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials
 

WO #1     Interviewed
WO #2     Interviewed

The witness officials were interviewed on January 19, 2021.

The Scene 
 

The scene was located on the shoulder of the roadway outside the Complainant’s residence.

Video/Audio/Photographic Evidence
 

911 Call (January 9, 2021)

At 12:35:06 p.m., the OPP 911 call-taker received a telephone call from the TELUS cellular phone provider indicating a hang-up call from a cellular phone registered to the Complainant. The OPP dispatcher called the registered phone number and a woman, known to be the CW, answered the phone; screaming could be heard in the background. The CW said she was having a domestic dispute with [the Complainant], and said he took her keys and would not let her leave. The Complainant was yelling and swearing in the background and the CW said he had left the house with the keys to her truck. The CW told the OPP dispatcher that nothing was going on and she did not need the OPP’s help. The CW hung-up the phone, disconnecting the call.

The dispatcher called the CW cellular phone back but did not receive any answer and there was no voice mail messaging available. After many rings the phone was then answered by the CW and the OPP dispatcher told the CW she needed her name as she was the one that called 911. She identified herself and said the Complainant left with the keys to her truck and he was walking towards Belleville. She gave a description of the Complainant to the dispatcher and said he had a temper and was hostile because he did not sleep last night. The CW said she scratched his face with the keys. The Complainant returned to the house and the CW was heard yelling at him not to go anywhere. The Complainant brought the keys back for both vehicles and left walking away from the house. The CW saw OPP vehicles on the highway, turning around and going to talk with the Complainant.
 

OPP Communications (January 9, 2021)

At 12:36:53 p.m., the dispatcher broadcasted a call to police officers to respond to a domestic-related incident. Several police officers responded they were in the area and heading to the call. The dispatcher relayed the information received from the CW to the responding police officers. The dispatcher checked the Complainant on the Records Management System and noted he was flagged “violent” and “unpredictable”. The Complainant had been yelling at the CW from the laneway.

OPP police officers broadcasted they had the Complainant under arrest on the roadway. Shortly after, a police officer requested that the dispatcher call for an ambulance because the Complainant was out of breath. The dispatcher advised the ambulance was on the way.

At 12:53:42 p.m., the dispatcher called Emergency Medical Services and requested an ambulance attend for a male who was experiencing shortness of breath.

At 1:35:01 p.m., an OPP police officer from the Trenton Detachment called the OPP Provincial Communications Centre in Smiths Falls to update the Officer in Charge that the Complainant might have sustained a serious injury as a result of the interaction with the police officers and that the incident therefore might fall within the SIU’s jurisdiction.

Materials Obtained from Police Service 
 

The SIU obtained the following records from the OPP between January 12, 2021 and January 18, 2021:

•  Notes of WOs;
•  Communications recordings;
•  Arrest Booking Report;
•  Arrest Report x 3;
•  Custody Record;
•  Custody Summary;
•  Disclosure Letter;
•  Event Details Report; and
•  General Report.
  

The following scenario emerges from the evidence collected by the SIU, which included statements from two witness officers who participated in the Complainant’s arrest and police communication recordings that captured 911 calls and radio dispatch broadcasts related to the incident. As was their legal right, SO #1 and SO #2 declined to interview with the SIU or authorize the release of their notes.

In the early afternoon of January 9, 2021, officers were dispatched to a residence in Trenton following a 911 call from a resident of the address. The CW called to report that she and her partner, the Complainant, were engaged in a domestic dispute which had turned physical and involved the Complainant leaving the address with the keys to her vehicle.

SO #1 and SO #2 were the first officers on scene. They encountered the Complainant walking eastward toward them on the north sidewalk of a roadway in the area of the home from which the 911 call had originated. The parties exchanged some words, the Complainant was advised he was under arrest, and the three of them came to be on the ground.

From a prone position on the ground, the Complainant struggled against the officers and resisted as they tried to free his arms from under his torso. With the arrival and assistance of two additional officers – WO #1 and WO #2 – the officers gained control of the Complainant’s arms and secured them in handcuffs behind his back.

Following his arrest, the Complainant complained of shortness of breath and was taken to the hospital in ambulance. He was found to have sustained a collapsed lung and fractured ribs.

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 January 9, 2021, the Complainant was arrested by OPP officers and subsequently diagnosed at hospital with serious injuries while in the custody of the police. SO #1 and SO #2 were among the arresting officers and identified as subject officials for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official 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. Regrettably, as the principal players in this matter – the Complainant, and SO #1 and SO #2 – declined to interview with the SIU, there is a lack of information regarding the nature of their initial encounter. That said, it is reasonable to infer that the officers, acting on the information conveyed at dispatch to the effect that the Complainant had been physical with the CW and taken the keys to her vehicle without her permission, sought to arrest the Complainant for assault and theft. On this record, there is insufficient evidence to reasonably conclude that SO #1 and SO #2 lacked the grounds to lawfully take the Complainant into custody.

Thereafter, I am similarly of the view that the evidence does not indicate that excessive force was used in the course of the Complainant’s arrest. Once again, there is a lacunae in the evidence about how precisely the Complainant and the officers came to be on the ground and what occurred between them prior to the arrival of WO #1 and WO #2. At its highest, the available evidence suggests the Complainant was grounded by one or both of SO #1 and SO #2, struggled with the officers on the ground for a period refusing to release his arms from under his body, and was handcuffed with the arrival of WO #1 and WO #2. There is no suggestion of any strikes having been delivered by the officers. In the circumstances, particularly in light of information indicating the Complainant had been assaultive with his partner moments prior and physically resisted his arrest on the ground, the evidence falls short of reasonably establishing that SO #1 and SO #2 used more force than was necessary to take the Complainant into custody.

In the result, while it would appear that the Complainant’s injuries were incurred in the course of his arrest, perhaps as he was taken to the ground, there are no reasonable grounds to believe that SO #1 and SO #2 acted other than lawfully in the course of this incident. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: April 6, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit