SIU Director’s Report - Case # 21-OCI-028
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Contents:
Mandate of the SIU
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.
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.
Information Restrictions
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:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that 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 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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
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 a serious injury sustained by a 16-year-old youth (the “Complainant”).
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 a serious injury sustained by a 16-year-old youth (the “Complainant”).
The Investigation
Notification of the SIU
On January 24, 2021, at 10:55 a.m., the Thunder Bay Police Service (TBPS) notified the SIU of the Complainant’s injury. The TBPS had received a call reporting a male kicking windows on Academy Drive. Officers attended, saw that windows were cracked and located a suspect, who took off. Officers gave chase and captured the male, after which a struggle ensued. The suspect complained of a shoulder injury and was taken to hospital. He was diagnosed with a fractured clavicle, which might have pre-existed his arrest by police.The Team
Date and time team dispatched: 01/25/2021 at 8:16 a.m.Date and time SIU arrived on scene: 01/25/2021 at 11:21 a.m.
Number of SIU Investigators assigned: 2
Two SIU investigators were assigned to investigate this incident. Due to the ongoing coronavirus pandemic and protocols, arrangements were made to have SIU investigators conduct interviews by telephone.
Following a preliminary investigation, the Subject Official (SO) was designated as a subject official on January 26, 2021. The SO presented for a teleconference interview on January 28, 2021, with his counsel. He did not consent to his duty notes being released to the SIU.
Affected Person (aka “Complainant”):
16-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on January 26, 2021.
Subject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right. The SO was interviewed on January 28, 2021.
Witness Officials
WO Interviewed The WO was interviewed on January 28, 2021.
Evidence
The Scene
The scene was located at an apartment building on Academy Drive in Thunder Bay. Video/Audio/Photographic Evidence
911 Calls Summary - January 23, 2021
A woman living in the apartment building said there was someone at the front door, kicking at the front apartment door trying to get in. She could not see from her apartment if it was a man or woman who was kicking the front door; she could only hear the person.
911 Call #2
Another woman reported someone trying to kick a door down. She did not know where the kicking sound was coming from. The 911 call-taker told her that a similar call had been received from another woman in the building.
TBPS Dispatch/Communications Summary
The WO and SO broadcasted they had someone at the front door. They asked the dispatcher to check for a caretaker for the building because the male at the front door broke the window. The dispatcher gave the WO and SO the name of the caretaker for the building and supplied a contact phone number;
The WO and SO broadcasted they had one person in custody and would be returning to the station with the Complainant under arrest for mischief and breach of undertaking.
TBPS Cell Block and Video Summary
A fully marked TBPS SUV style police vehicle drove into the sally port garage area and the WO and SO got out. The police officers opened the right rear door of the police vehicle and the Complainant got out and walked on his own into the booking area. His hands were handcuffed to the back.
Cell Block Booking Area
There were four uniformed TBPS officers standing inside the booking area. The Complainant walked into the booking area and stood facing a sergeant. The WO and SO removed the handcuffs from the Complainant and his winter jacket.
The Complainant moved both arms around and appeared to be having a conversation with the sergeant. The Complainant raised his right arm up above his shoulder with no issues. The Complainant then raised his left arm but could only raise it about halfway. He did this twice. A police officer put handcuffs on the Complainant’s wrists to the front. The Complainant walked from the booking area back out into the sally port garage area.
Sally Port – Garage
The Complainant walked from the booking area to the same SUV police vehicle. The WO and SO opened the right rear door and assisted the Complainant in getting into the right rear side of the police vehicle.
Cell #5
The Complainant returned from the Thunder Bay Regional Health Sciences Centre (TBRHSC) and was placed inside cell #5 at the TBPS station at around 2:43 a.m. He had a dark-coloured blue arm sling around his neck and left arm supporting his left arm. He laid down on the bed inside the cell and went to sleep.
Fingerprint Room
The Complainant was fingerprinted inside a room at the TBPS station. He was wearing a dark-coloured arm sling on his left arm – supported. There was a small cut or scrape on the right side of his nose. He was photographed and fingerprinted by a TBPS officer.
Materials Obtained from Police Service
The SIU obtained the following records from the TBPS on January 26 and 27, 2021:- Notes of the SO;
- Picture of the Complainant and apartment;
- TBPS Computer-assisted Dispatch Reports;
- TBPS custody video recordings;
- TBPS General and All reports;
- TBPS Policy-Arrest and Detention;
- TBPS Policy-Use of Force;
- TDPS 911 Calls and Dispatch; and
- Training Record-Use of Force-the WO and SO.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the TBRHSC on February 16, 2021: - Medical records for the Complainant.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may be summarized in short order. Together with his partner, the WO, the SO arrived at an address Academy Drive at about 11:20 p.m. on January 23, 2021 following 911 calls from tenants of the building that someone was kicking at the front entrance door attempting to get in.
The Complainant was that person. He had arrived at the address intending to meet with someone who resided at the building. Unable to get inside the building, he kicked the glass on the front door.
The officers confronted the Complainant by the entrance and noticed that the front door glass was broken. The Complainant admitted that he had caused the damage and apologized. As the officers were attempting to contact the building manager for further information about the door, the Complainant fled from the police down a pathway along the side of the building.
The SO chased after the Complainant, caught up to him at the south end of the building, and grabbed the back of his coat and left arm. The ground was slippery with snow and ice, and both parties fell, the officer landing on the Complainant in part. The Complainant was handcuffed while on the ground without incident, lifted to his feet and escorted to the officers’ cruiser, where he was placed inside.
The Complainant was taken to the police station where it became apparent that he was in pain from his left arm/shoulder. The Complainant was transported to hospital and diagnosed with a fractured left clavicle.
The Complainant was that person. He had arrived at the address intending to meet with someone who resided at the building. Unable to get inside the building, he kicked the glass on the front door.
The officers confronted the Complainant by the entrance and noticed that the front door glass was broken. The Complainant admitted that he had caused the damage and apologized. As the officers were attempting to contact the building manager for further information about the door, the Complainant fled from the police down a pathway along the side of the building.
The SO chased after the Complainant, caught up to him at the south end of the building, and grabbed the back of his coat and left arm. The ground was slippery with snow and ice, and both parties fell, the officer landing on the Complainant in part. The Complainant was handcuffed while on the ground without incident, lifted to his feet and escorted to the officers’ cruiser, where he was placed inside.
The Complainant was taken to the police station where it became apparent that he was in pain from his left arm/shoulder. The Complainant was transported to hospital and diagnosed with a fractured left clavicle.
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
On January 23, 2021, the Complainant was arrested by TBPS officers and subsequently taken to hospital where he was diagnosed with a serious injury. The SO was among the arresting officers and identified as the subject official 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 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. The complaints made by the tenants about someone banging on the door, the evidence of damage and the Complainant’s admission of responsibility would have given the officers lawful grounds to arrest the Complainant for mischief. The issue turns to the propriety of the force used by the SO.
The SO was within his rights in chasing after the Complainant as he attempted to escape apprehension and grabbing hold of him. The evidence indicates that the officer’s intention was to simply assert custody over the Complainant on his feet but that the slippery ground conditions resulted in the two falling. That is to say, there is no suggestion that the SO purposely tackled the Complainant or was unduly aggressive in his approach. On this record, I am unable to reasonably conclude that the fall was anything other than an unfortunate accident and unrelated to any excessive force on the part of the SO.
In the result, while I accept that the fall was the likely cause of the Complainant’s injury, there are no reasonable grounds to believe that the SO conducted himself unlawfully in the course of the Complainant’s arrest. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: March 30, 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. The complaints made by the tenants about someone banging on the door, the evidence of damage and the Complainant’s admission of responsibility would have given the officers lawful grounds to arrest the Complainant for mischief. The issue turns to the propriety of the force used by the SO.
The SO was within his rights in chasing after the Complainant as he attempted to escape apprehension and grabbing hold of him. The evidence indicates that the officer’s intention was to simply assert custody over the Complainant on his feet but that the slippery ground conditions resulted in the two falling. That is to say, there is no suggestion that the SO purposely tackled the Complainant or was unduly aggressive in his approach. On this record, I am unable to reasonably conclude that the fall was anything other than an unfortunate accident and unrelated to any excessive force on the part of the SO.
In the result, while I accept that the fall was the likely cause of the Complainant’s injury, there are no reasonable grounds to believe that the SO conducted himself unlawfully in the course of the Complainant’s arrest. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: March 30, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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.