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 the serious injury a 38-year-old man (the “Complainant”) suffered during an interaction with police.

Notification of the SIU

On January 28, 2021 at 8:52 a.m., the Sarnia Police Service (SPS) contacted the SIU and reported that on January 26, 2021, at about 8:00 p.m., Subject Official (SO) #1 stopped a motor vehicle in the area of Bright Street. The driver exited his vehicle and became aggressive with SO #1. Back up arrived and the driver was arrested for failing to identify himself under the Highway Traffic Act (HTA). The driver resisted and a struggle ensued. He was eventually handcuffed and taken into custody. The driver was the Complainant, and he was taken to the Sarnia Police Station and lodged in cells. At about 3:00 a.m., the Complainant was released from custody on a promise to appear. The Complainant subsequently went to the hospital on January 27, 2021 and was examined by doctor. The Complainant was told he had a possible fractured skull, a fractured orbital, fractured ribs, and a concussion. The Complainant contacted the SPS Professional Standards Branch (PSB) and reported his injuries.

The Team

Date and time team dispatched: 01/28/2021 at 9:44 a.m.

Date and time SIU arrived on scene: 01/28/2021 at 12:00 p.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

38-year-old male interviewed, medical records obtained and reviewed

The Complainant was interviewed on January 28, 2021.

Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

The civilian witnesses were interviewed between January 30, 2021 and February 3, 2021.

Subject Officials

SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right.
SO #2 Declined interview, as is the subject official’s legal right. Notes received and reviewed.
SO #3 Interviewed, but declined to submit notes, as is the subject official’s legal right.
SO #4 Interviewed, but declined to submit notes, as is the subject official’s legal right.

The subject officials were interviewed between March 1, 2021 and April 6, 2021.




 

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

The witness officials were interviewed on February 4, 2021.

The Scene

This complaint was initiated by the Complainant two days after he was arrested; accordingly, there was no physical scene held. Bright Street in Sarnia is a residential street. It was winter and the ground was partially snow-covered.

Video/Audio/Photographic Evidence

Cell Phone Video from a Witness

On February 1, 2021, a witness provided the SIU with a digital copy of a cellular phone video captured on January 26, 2021. The video was one minute and seven seconds.

The video footage showed Bright Street, lit by numerous flashing SPS emergency lights from SPS vehicles on the street. There was partial snow on the ground. The audio portion had lots of yelling, mainly from the Complainant and a SPS officer telling him to stop resisting. Near the end the Complainant said he was not resisting, and he wanted badge numbers.

SPS Custody Video

On February 3, 2021, at 11:09 a.m., the SPS provided the custody video to the SIU; there was no audio.

The video showed SO #1 bringing the Complainant to the SPS at 8:28 p.m., and into the booking area. WO #1 processed the booking and, at 8:35 p.m., WO #1 came and positioned himself on the Complainant’s right side and grabbed the Complainant’s upper body and neck and lifted him and put him on the floor. There was no head contact. The Complainant struggled as the SPS officers removed a watch and a drawstring. At 8:38 p.m., the Complainant was taken to a cell and resisted having the handcuffs removed. He was grounded again as the handcuffs were taken off.

SPS Communications Recordings

The SPS communications recordings were provided to the SIU by SPS on February 3, 2021.

At 8:05 p.m., SO #1 broadcast that he was at an address on Bright Street and asked for the registration for the plate [number provided]. Thirty-seven seconds later, SO #1 was told the plate belonged to a white Jeep and was registered to CW #4.

At 8:08 p.m., SO #1 called into the communications center, but did not say anything further. There was a noise in the background. A dispatcher immediately asked if any officer was in the area, and SO #2 and WO #2 were sent to assist.

At 8:12 p.m., a broadcast was made that an arrest had been made.

There were further communications about checking the Complainant on police systems. At 8:26 p.m., SO #1 said he was taking the Complainant to the SPS station after being arrested for fail to identify and resisting arrest.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from SPS between February 1 and 10, 2021:

• Notes-WO #3;
• Notes-SO #2;
• Notes-WO #1;
• Notes-WO #2;
• Procedure-Arrest, Detention, Care and Handling of Prisoners;
• Arrest Report;
• Booking Intake Sheet;
• Computer-assisted Dispatch Report;
• Charge Summary;
• Crown Brief Synopsis;
• Will State-WO #3;
• Will State-WO #1; and
• Will State-WO #2.

 

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between February 1 and 16, 2021:

• The Complainant’s medical records;
• Cell phone video from a witness; and
• Cell phone video from CW #3.

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, SO #1, SO #3 and SO #4, and several other civilian and police witnesses who observed the incident in parts. The investigation was also assisted by a video recording of the event captured by a civilian witness. As was his legal right, SO #2 chose not to interview with the SIU. He did authorize the release of his notes.

In the evening of January 26, 2021, the Complainant travelled in his girlfriend’s white Jeep SUV to a friend’s home on Bright Street. He was there to check on his pickup truck, which his friend – CW #1 – had allowed to be parked in the parking lot at the rear of the property. His Jeep parked facing south toward Bright Street, the Complainant waited in the vehicle for CW #1 to return home. With him were his girlfriend – CW #4 – and her teenage son.

SO #1 was on patrol in a marked police SUV traveling west on Bright Street when he noticed the Jeep SUV. Following a number of recent homicides, SPS officers had been told to be on the alert. A white vehicle had been implicated in some of the crimes. Deciding to run the licence plate, SO #1 parked his vehicle across the property on Bright Street and shone his spotlight at the SUV.

The spotlight irritated the Complainant. He flicked his high beams momentarily to communicate his displeasure at the officer. When the spotlight remained on, the Complainant drove toward the cruiser from the rear of the property alongside the house onto Bright Street, where he parked, exited and walked toward SO #1, still seated in his vehicle. The Complainant asked what the officer was doing. SO #1 indicated he was trying to identify a white vehicle and inquired what the Complainant was doing in the rear lot. When asked to identify himself, the Complainant adamantly refused and told the officer he had no identification.

After a few minutes of back and forth between SO #1 and the Complainant, the officer opened his driver’s door to exit his vehicle. The door struck the Complainant as it opened, and he accused SO #1 of having assaulted him. The Complainant was told by the officer that he had to identify himself as the driver of a vehicle, but he continued to refuse to do so. At one point, he gave his wallet to CW #1, on foot in the area observing the Complainant’s interaction with SO #1, and told him not to give it to the officer under any circumstances. The two jostled for a brief period over the wallet, in the course of which SO #1 advised the Complainant he was being arrested for failing to identify himself and radioed for additional officers.

The Complainant refused to surrender his arms to the officer so that he could be handcuffed and was grounded by SO #1. Shortly thereafter, SO #2, followed by SO #4 and SO #3, arrived at the scene and assisted in the Complainant’s arrest. The officers wrestled with the Complainant to free his arms, which he held tucked underneath his chest as he lay prone on the ground. Following a series of five punches by SO #4 to the left face area, the Complainant’s arms were handcuffed behind his back.

Following his arrest, the Complainant was lifted to his feet and placed in the rear seat of SO #1’s cruiser. He was taken to the police station, lodged in a cell, and released at about 11:40 p.m.

The Complainant attended hospital in the early morning hours of the following day and was diagnosed with a fracture of a posterior rib.

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 26, 2021, the Complainant suffered a serious injury in the course of his arrest by SPS officers. The arresting officers – SO #1, SO #2, SO #3 and SO #4 – were identified as subject officials for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials 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 required or authorized to do by law. As the operator of a vehicle that he had just driven to his friend’s house on Bright Street, the Complainant was under a legal obligation to identify himself when asked by SO #1. [1] When he repeatedly failed to identify himself or turn over his licence, he was subject to lawful arrest under section 217(2) of the Highway Traffic Act.

Thereafter, the evidence falls short of giving rise to a reasonable belief that the force used by the officers in effecting the Complainant’s arrest was excessive. The initial takedown by SO #1, in my view, was a tactic reasonably available to the officer. By that time, a belligerent Complainant had demonstrated that he was not inclined to surrender to arrest as he struggled against SO #1’s attempts to take him into custody. Once on the ground, the officer could expect to better manage any further resistance from the Complainant given his positional advantage.

More difficult is the question around the propriety of the punches delivered by SO #4 – five in total. The Complainant was at the time prone on the ground surrounded by four officers. On the other hand, the evidence indicates that the Complainant was still resisting his arrest at the time and was making his handcuffing difficult. Moreover, it seems SO #4 was also reacting to an utterance by SO #1 to the effect that the Complainant was hurting his leg in some fashion.

In recognition of the inherent volatility of certain police interactions, such as when persons physically resist arrest, the common law confers on police officers a degree of latitude when measuring the necessity of the force they bring to bear in execution of their duties. It need not be exacting as long as it falls within the range of what was reasonable in the circumstances: R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA); R v Nasogaluak [2010] 1 SCR 206. While perhaps at the upper end of what was permissible, I am unable to reasonably conclude on the record that the force used by SO #4 crossed the line given the need to overcome the Complainant’s resistance and deter the Complainant from causing SO #1 any further pain.

There is a version of events proffered in the evidence that the Complainant was pummeled needlessly by three of the arresting officers, including SO #1, but it would be unwise and unsafe to rest charges on the strength of this evidence. The Complainant’s injuries are not consistent with this account. In fact, the only serious injury he was diagnosed with at hospital following his arrest was a minimally displaced posterior rib. It should be noted that a number of civilian witnesses expressed concern with the level of force the officers used. However, I am unable to distinguish with any confidence whether what they observed was excessive force or force consistent with what was described by the officers. In light of these and other frailties, the evidence of unwarranted force is insufficiently reliable to warrant being put to the test by a trier-of-fact.

In the result, while I accept that the Complainant’s fractured rib and swollen black eye were incurred in the course of his arrest, perhaps the result of the takedown, the pressure brought to bear as officers grappled with him to control his arms and/or the strikes delivered by SO #4, the evidence does not reasonably establish that any of the subject officials comported themselves unlawfully. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: May 28, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit