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 serious injuries sustained by a 31-year-old man (the “Complainant”).

Notification of the SIU
 

On November 3, 2020, at 6:26 a.m., the Western Region Ontario Provincial Police (OPP) reported that on November 3, 2020, at approximately 2:00 a.m., Middlesex OPP members were called to the area of Clarke Road, Middlesex Centre, for a suspicious man [now known to be the Complainant]. The caller reported the Complainant had knocked on his door looking for gasoline.

OPP police officers responded and found the Complainant on the side of the road. They had a brief conversation with him before he suddenly fled on foot. The police officers gave chase. The Complainant ran around a building on the property at Clarke Road and ran into an air conditioning unit that protruded from a window. He fell to the ground and was arrested after some struggle to handcuff him.

A search incident to arrest revealed the Complainant possessed a loaded .22 calibre handgun and $15,000 in cash.

The Complainant complained of pain in his hand and was taken to University Health Sciences Centre (UHSC) where X-rays revealed three fractured bones in his hand and a broken finger.

The Complainant was taken to the OPP’s London-Middlesex Detachment to be held for a bail hearing.

The Team
 

Number of SIU Investigators assigned:     3

Complainant:

31-year-old male, declined to speak with SIU or authorize release of his medical records

Witness Officers
 

WO #1     Interviewed
WO #2     Interviewed

Subject Officers
 

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

Video/Audio/Photographic Evidence 
 

Closed-circuit Television (CCTV) Footage

The video was received via the OPP. The video was not dated, nor did it bear a timestamp, but is believed to have captured the early morning hours of November 3, 2020 and the presence of the police pursuing the Complainant.

The video clip was 34 seconds long and only served to show the arrival of the SO and WO #1, at a great distance from the camera, in the pitch black. The police officers’ images were not actually captured, only their flashlights as they illuminated the darkness outside the useful view of the artificially lit area captured by the camera.

Custody Video

The custody video began at 5:58 a.m., on November 3, 2020, as two police officers walked the Complainant into the police facility from the garage to the booking hall. The Complainant’s hands were handcuffed in front of his body. He took a seat and his handcuffs were removed. His right hand was splinted and bandaged. At 6:10 a.m., he was escorted to, and placed in, cell one.

While in the cell, the video captured only the adjacent hallway, not the inside of the cell itself.

Between 7:26 a.m., and 7:59 a.m., the Complainant was out of his cell for fingerprinting. The fingerprinting process was audio recorded and captured the Complainant indicating that though his hand hurt he had not been given pain medication. During the conversation, the police officer administrating the fingerprinting process asked the Complainant if he hurt his hand when he tripped. The Complainant responded he had. Because of the wrap applied to treat his injury his right hand could not be fingerprinted.

Between 9:29 a.m. and 9:40 a.m., the Complainant was again removed from the cell, but where he was taken is not known.

Between 10:00 a.m. and 10:01 a.m., SIU investigators were recorded at the Complainant’s cell door, speaking to the Complainant.

Police Communications Recordings
 

911 Call

At 1:38 a.m., on November 3, 2020, a 911 caller was made to report a suspicious man. The caller was on his property when, out of nowhere, a man [now known to be the Complainant] showed up and “spooked” him. The Complainant told him he ran out of gas at Adelaide Street and Sunningdale Road. The caller asked him why he did not go to the gas station at that intersection and asked how he ended up at his house.

The Complainant started tripping over his words and spoke of having a fight with his friends. He requested a ride, but the caller said he was going to bed. The Complainant told the caller he was going to sleep in the caller’s neighbour’s shed across the road.

The caller last saw the Complainant as he disappeared into the darkness at the end of the caller’s driveway.

Communications Recordings

At 1:42 a.m., on November 3, 2020, WO #1 and WO #2 were sent to Clarke Road for a suspicious person call. The SO asked to be put on that call as well.

The next transmission was a request to query a name similar to the Complainant’s just before WO #2 broadcasted that a man had fled, and the SO and WO #1 were chasing him on foot.

The dispatcher then broadcasted the name queried was not on file and it was suggested the officers had been given a fictitious name.

The next broadcast was that somebody was in custody followed by WO #2 asking the Complainant’s name be queried and an ambulance sent to check the Complainant’s hand.

WO #1 next broadcasted she was in the ambulance with the Complainant going to UHSC.

Materials obtained from Police Service
 

The SIU obtained and reviewed the following records from the OPP:

•  Arrest booking report;
•  Currency Reconciliation Report;
•  Custody record;
•  Custody summary;
•  Drug Exhibit for Analysis Report;
•  Drug Form;
•  Event Chronology;
•  General Occurrence Hardcopy;
•  Notes of WOs
•  Occurrence notes;
•  Communications recordings;
•  Custody video;
•  CCTV Video;
•  Scenes of Crime Officer Report and digital photographs; and
• Show Cause Report.
  

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with a witness officer who also participated in the Complainant’s arrest. As was his legal right, the SO declined to interview with the SIU or authorize the release of his notes.

At about 1:40 a.m. of November 3, 2020, officers were dispatched to the area of an address on Clarke Road, Arva, following a 911 call from the homeowner reporting suspicious activity on his property. More specifically, the caller indicated that a male had approached him indicating that he had run out of gas and would be sleeping in a neighbouring shed across the road. The male was the Complainant.

The SO was the first officer to arrive on scene, followed shortly by WO #1. The SO was speaking with the Complainant at the end of the driveway of the property from which the 911 call had originated when the Complainant proclaimed, “Catch me if you can,” and ran toward to the property across the roadway. The SO and WO #1 followed on foot.

The Complainant ran eastward down the driveway, turned the corner of one of the buildings on the property and stumbled on a concrete curb, striking an air conditioning unit. He regained his footing but quickly tripped on another curb and fell again. By this time, the SO had caught up with and taken hold of the Complainant, preventing his further flight.

The SO, joined shortly by WO #1, struggled to control the Complainant on the ground as he resisted and kicked out with his feet. The SO punched the Complainant twice in the head or upper body, after which the Complainant released his arms and was secured in handcuffs.

Following his arrest, the Complainant complained of pain in his right hand and wrist. An ambulance arrived and transported him from the scene to hospital where he was diagnosed with fractures of his right hand.

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 November 3, 2020, the Complainant suffered serious injuries in the course of his arrest by OPP officers. The SO was among the arresting officers and 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. Given the information they had been provided of the 911 call and their experience of the Complainant at the scene, including his flight from police, I am unable to reasonably conclude that the officers were without a lawful basis to take the Complainant into custody with respect to the offence of trespass by night.

Nor does the evidence give rise to a reasonable belief that the SO used excessive force in effecting his purpose. Confronted at night by an apparent trespasser who had fled from the police and given indication he would not surrender peacefully into custody, the SO was within his rights in resorting to a measure of force when the Complainant struggled with the officers on the ground and refused to release his hands to be handcuffed. Indeed, at one point, the evidence indicates the Complainant kicked WO #1 as she endeavoured to control his legs. On this record, it would not appear that the two punches delivered by the SO were disproportionate, particularly as the second was delivered after the first had failed to subdue the Complainant.

It should be noted that the Complainant’s injuries were likely the result of one or the other of his spills to the ground as he fled from police; he appears to have acknowledged as much to hospital staff in the wake of the incident. Be that as it may, as I am satisfied that the SO acted lawfully throughout his engagement with the Complainant, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: March 30, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit