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 injuries a 68-year-old man (the “Complainant”) suffered.

Notification of the SIU

On June 6, 2020 at 03:40 a.m., the West Grey Police Service (WGPS) contacted the SIU and relayed the following information. On June 6, 2020 at about 2:00 a.m., police responded to a domestic disturbance at a residence in West Grey. The occupants of the residence included the Complainant, his wife, son and daughter. It was determined by responding officers that they would drive the daughter home to her own residence to quell the dispute. Upon the officers’ return to the residence, the Complainant became combative with the officers. A Conducted Energy Weapon (CEW) was deployed to gain control of the Complainant. The Complainant’s son also became involved in the confrontation and officers used their batons. Both the Complainant and his son were arrested. Shortly afterwards, the Complainant complained of breathing difficulties and he was transported to the Durham hospital where he was diagnosed as possibly having suffered a collapsed lung. He was later transported to a London area hospital for treatment. There appeared to be no fractured ribs.

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 0

Complainant:

68-year-old male not interviewed, [1] medical records obtained and reviewed

Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Not interviewed [2]

Witness Officers (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed

Subject Officer (SO)

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

The Scene

The scene was a residence in West Grey.

Physical Evidence

Data Download of the SO’s Taser X2 CEW

Police Communications Recordings

Summary of the WGPS Communications Recordings

Initial call on June 5, 2020

11:49:42 p.m. 911 call from CW #5 reporting a domestic disturbance at the Complainant’s address involving a family dispute between CW #1 and CW #6, and CW #7 out driving intoxicated. She reported that earlier in evening, CW #7 had pushed CW #1. No ambulance was required.

Radio transmissions on June 5 and 6, 2020

11:52:21 p.m. Dispatch of the SO to family dispute at the Complainant’s address;
12:10:42 a.m. SO, we have female walking westbound away from area, I’ll just be stopping to chat with her;
12:22:23 a.m. SO 10-4 yeah everyone is HBD [Has Been Drinking], our presence not welcome here, I’ll be taking the female home;
12:23:15 a.m. SO going to transport female to [address provided], start mileage [provided];
12:29:50 a.m. SO is 10-7, end mileage [provided];
12:30:09 a.m. SO I’ll be 10-8 to meet with WO #6;
12:51:46 a.m. SO to WO #6 Ah WO #6 you better come out here;
12:52:28 a.m. Dispatch called the SO - no response;
12:53:59 a.m. Dispatch asked WO #6, what’s your 20?
12:54:15 a.m. WG I have Hanover to you last;
12:54:54 a.m. Hanover Unit being dispatched to the Complainant’s address;
12:55:35 a.m. 10-4 I’ll have to get that address from you when I’m closer and
can write it down;
12:56:39 a.m. Radio alarm goes off;
12:55:17 a.m. OPP (Ontario Provincial Police) and Hanover dispatched;
12:59:05 a.m. Hanover PS catching up to OPP Units en route to call;
1:01:26 a.m. Dispatch advised an ambulance would be called to stage nearby;
1:02:21 a.m. [Unknown voice] ... be advised additional units just drove by;
1:02:36 a.m. Dispatch advised units just drove by, we will let them know;
1:02:58 a.m. WO #2 I copied;
1:03:13 a.m. Route given out, WO #1 and OPP O/S;
1:03:48 a.m. O/S;
1:05:07 a.m. WO #2 I don’t see their lights, where is [name of street];
1:07:37 a.m. Dispatch advised WO #2 that OPP had called to let Dispatch know two were in custody. When you get O/S can you text regarding injuries and we will let ambulance know;
1:14:06 a.m. WO #2 to police dispatch, we are in a dead area so portables aren’t
working, no injuries, ambulance can stand down;
1:20:37 a.m. SO and WO #2 and myself are clear at the scene heading back to West Grey Office;
1:46:50 a.m. We are all 10-7 at the West Grey Office;
2:06:35 a.m. An officer is O/S;
2:06:56 a.m. EMS O/S to check out 10-92’s;
2:29:39 a.m. I’ll be riding in ambulance with the first patient;
2:42:19 a.m. 10-6 at hospital;
3:22:45 a.m. Scene keep continuity to determine the next steps;
3:23:10 a.m. I’ll be heading back to scene for West Grey to cover to determine what
next;
3:52:18 a.m. WO #6 to Hanover WO #2; and
3:52:26 a.m. WO #6 to WO #2, advised to clear the scene, no longer
needed to stay there.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following records from the WGPS, Hanover Police Service (HPS) and the OPP:

The following scenario emerges from the evidence collected by the SIU, which included statements from an arresting officer – WO #6 – and several civilians who witnessed the incident in parts. The Complainant declined to provide a statement to the SIU. As was his legal right, the SO also declined to interview with the SIU or authorize the release of his notes.

At about 11:50 p.m. of June 5, 2020, a 911 call was received by the WGPS. The caller was CW #5. CW #5 was at a gathering of family and friends at a residence in West Grey. Alcohol had been consumed and one of the guests, CW #6, was fighting with her mother, CW #1. There was also mention that CW #6’s father (CW #7) was driving while intoxicated. Officers were dispatched to the address.

The SO and WO #6 arrived at the scene in separate cruisers at about 12:10 a.m. of June 6, 2020. En route to the address, the SO had stopped to pick up CW #6, whom he had found walking westward on the road away from the scene, and had her in the rear of his cruiser. Not more than about ten minutes after his arrival, the SO, who had been in the home to speak with the family, was told to leave by one of the homeowners, the Complainant. The SO did so, going past his colleague, WO #6, on the front deck of the home as he walked to his cruiser.

The SO drove CW #6 to her home and returned to the party. WO #6 had remained on the property to speak with the family about ways in which they could deal with CW #6 and the domestic dispute she had provoked. The SO parked his cruiser behind WO #6’s vehicle on the front driveway of the residence a short distance from the home, but did not exit.

By this time, CW #7, CW #6’s father, had also returned to the address from a short outing. Annoyed at the continuing presence of the SO on the property, CW #7 walked up to the cruiser, started banging on the officer’s vehicle, called him a “pig” and yelled other slurs at him. The SO ignored CW #7’s antics and remained in the cruiser. CW #7’s ire escalated to the point that CW #5 went inside the home to alert WO #6 to what was going on outside. The SO had also radioed WO #6 that he needed assistance.

WO #6 exited the home at about 12:50 a.m. and confronted CW #7. The officer directed CW #7 and his father, the Complainant, who had joined his son by the cruiser and was also yelling at the SO, to get away from the vehicle. CW #7 turned toward WO #6 and pushed him in the chest, prompting the SO to exit the cruiser. CW #7 was told he was under arrest.

There followed a physical altercation between the officers and CW #7 and the Complainant in the course of which both officers used their batons and the SO discharged his CEW twice. The officers radioed for the assistance of other officers in the area as the struggle unfolded. The SO and WO #6 were able to handcuff CW #7 and the Complainant just as a number of HPS and OPP officers began arriving at the scene shortly after 1:00 a.m.

Following their arrest, CW #7 and the Complainant were transported to the police station by the SO. Concerned about his father’s health, CW #7 asked that medical treatment be arranged for the Complainant. Paramedics arrived at the scene and escorted the Complainant to hospital.

The Complainant was ultimately diagnosed with two rib fractures and a left-sided hemothorax.

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,

The Complainant was arrested on June 6, 2020 by WGPS officers and subsequently taken to hospital where he was diagnosed with serious injuries. The SO was identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO 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 required or authorized to do by law. While the lawfulness of the Complainant’s arrest, aside from any questions regarding the propriety of the force that was used by the officers, is clouded to an extent by conflicts in the evidence, I am unable to reasonably conclude with any confidence that the officers were without lawful grounds to seek to arrest the Complainant. There is a version of events proffered in the evidence that CW #7 and the Complainant were standing by the SO’s cruiser yelling at him through the closed driver’s door when the officer exited, grabbed hold of CW #7 and slammed him into the side of the vehicle. Thereafter, the Complainant came to his son’s aid and was met with a CEW discharge and baton strikes. On this version of events, a case can be made that the Complainant had a right to intervene to defend his son from an unlawful attack, and that the force used against him (the Complainant) was unlawful.

The evidence strongly suggests, however, that this account of what occurred was materially incomplete. First and foremost, it does not acknowledge any force that may have been used against the officers by either of CW #7 or the Complainant. The evidence establishes, in my view, that the Complainant kicked the officers in the course of the fracas. For these and other reasons, I am not satisfied that the evidence in its totality is sufficiently cogent to reasonably establish that CW #7’s arrest was, per se, unlawful. If it was not, then the Complainant had no legal standing to interfere with it; when he did, he too was subject to being arrested for assaulting a police officer. The issue turns to the propriety of the force used by the officers in aid of the Complainant’s arrest.

Here, too, there is insufficiently reliable evidence to reasonably believe that either of the SO and WO #6 used excessive force in their arrest of the Complainant. It is clear that the SO discharged his CEW twice about 15 seconds apart; the first, directed at CW #7, the second, at the Complainant. It is also apparent that the officers, in the course of the physical struggle, used their batons to deliver strikes to CW #7 and the Complainant, though the precise number of strikes remains uncertain. There is evidence from a number of witnesses that the CEW discharges and baton strikes were gratuitous, but that evidence is severely undercut by the fact that the Complainant repeatedly kicked at the officers, including the SO’s head, which is established, in my view, on the clear weight of the evidence. That being the case, all that can be said with any certainty is that the officers’ resort to force occurred in the context of what appears to have been a strenuous struggle between the SO and WO #6, on the one hand, and CW #7 and the Complainant , in which both sides delivered and received blows. On this record, I am unable to reasonably conclude that the officers acted out of proportion to the challenges at hand.

In the result, as I am not satisfied on reasonable grounds that the SO or WO #6 acted other than lawfully during their encounter with the Complainant, notwithstanding the serious injuries that were inflicted on the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: April 19, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit