SIU Director’s Report - Case # 21-OCI-003
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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.
Special Investigations Unit Act, 2019Pursuant 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 ActPursuant 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, 2004Pursuant 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.
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 injuries a 44-year-old man (the “Complainant”) suffered during an interaction with police.
Notification of the SIUOn January 1, 2021 at 5:40 p.m., a Guelph Police Service (GPS) officer stopped the Complainant and a female passenger in a traffic stop in the area of Scottsdale Drive. The driver, the Complainant, refused to identify himself which resulted in GPS officers arresting him. During the arrest, the Complainant became combative and was grounded, resulting in a fractured nose. The female passenger was also arrested as it was discovered both parties were in breach of an undertaking whereby they were not to associate with each other. The female passenger had not been identified at the time of reporting. The involved officers were Witness Official (WO) #3 and the Subject Official (SO).
The TeamDate and time team dispatched: 01/04/2021 at 10:50 a.m.
Date and time SIU arrived on scene: 01/05/2021 at 2:00 p.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Number of SIU Collision Reconstructionists assigned: 0
Affected Person (aka “Complainant”):44-year-old male interviewed on January 5, 2021, medical records obtained and reviewed
Civilian Witnesses (CW)CW #1 Interviewed
CW #2 Interviewed
The civilian witnesses were interviewed between January 5 and 7, 2021.
Subject OfficialSO Interviewed on February 19, 2021, but declined to submit notes, as is the subject official’s legal right.
Witness OfficialsWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed between January 12 and 21, 2021.
Investigative DelayThere was a slight delay initially in the police service providing documentation to the SIU as the GPS had a COVID-19 outbreak and were down 19 officers.
The Scene There was no scene held for the SIU.
The scene was an unnamed strip mall at 615 Scottsdale Drive which had a Shoppers Drug Mart, an LCBO store and a Canadian Tire Gas Bar. The strip mall sat on the corner of Stone Road West and Scottsdale Drive and was essentially a large parking lot with stores around it. It had snowed on January 1, 2021, and the ground was snow-covered.
Video from Business #1 on Scottsdale DriveOn January 5, 2021, SIU investigators obtained a copy of video from Business #1 on Scottsdale Drive. The video indicated that on January 1, 2021, at 6:04 p.m.,  a Ford 150 pickup truck drove up to pump 3 at the Canadian Tire Gas Bar. Within about five seconds, CW #1 got out of the passenger side and began walking toward the kiosk. As CW #1 walked to the kiosk, an unmarked grey GPS SUV came around the row of pumps furthest from Stone Road and stopped just before getting to the front end of the pickup truck. The Complainant opened the driver’s door. The Complainant went to the gas lid cover and looked at WO #3 who walked toward him. After a short conversation, WO #3 went to the front of the pickup truck and appeared to look at the front plate. About four seconds later, the Complainant opened the driver’s door and leaned inside the pickup truck. The Complainant got into the driver’s seat and WO #3 took a position at the driver’s door. At 6:07 p.m., the Complainant got out of the pickup truck as WO #3 walked to the rear of the pickup truck talking on his portable radio. The Complainant began pumping gas as WO #3 walked toward him. At 6:07 p.m., WO #3 opened the driver’s door, but the Complainant closed the door as he continued to pump gas.
Within 12 seconds, the Complainant stopped pumping gas and began to walk toward the kiosk and off camera. At 6:08 p.m., WO #3 opened the driver’s door and leaned inside. The Complainant walked back toward WO #3 but then walked away off camera.
WO #3 followed the Complainant and went off camera as he spoke on his portable radio.
At 6:10 p.m., CW #1 walked up to the passenger door of the pickup truck and opened it, then closed it and walked off camera.
At 6:12 p.m., WO #3 and the SO walked with the Complainant, who was handcuffed behind his back, between the two rows of pumps to the rear passenger door of WO #3’s GPS vehicle. At 6:14 p.m., a third GPS officer arrived on foot, but just watched. About 27 seconds later, the Complainant was put into the rear seat of the police vehicle.
At 6:43 p.m., EMS arrived, and left at 6:59 p.m.
Video from Business #2 on Scottsdale DriveOn January 5, 2021, SIU investigators obtained a copy of a video from Business #2 on Scottsdale Drive. The video captured the entrance off Scottsdale Drive into 615 Scottsdale Drive along with the strip mall. The roadway and parking lot were snow covered. At 5:04 p.m., the Complainant was seen on the other side of a snowbank walking from the Canadian Tire Gas Bar (off camera) toward the entrance/exit ramp to 615 Scottsdale Road. In the middle of the entrance, the Complainant stopped and looked back toward the gas bar. Within two seconds, the Complainant continued walking in the direction he had been heading.
At 5:05 p.m., the Complainant reached the far side of the entrance. WO #3 walked into camera view behind the snowbank. The Complainant continued walking as WO #3 followed on foot, keeping a consistent distance. Within about 15 seconds, WO #3 crossed the entrance way. The Complainant stopped by the Shoppers Drug Mart sign and turned back toward WO #3. The Complainant walked on an angle back to the parking lot area of the Shoppers Drug Mart. As he passed WO #3, WO #3 went over a low bush and followed the Complainant into the parking lot and back toward the area of the entrance. Within about ten seconds after the Complainant began walking back to the parking lot, a black GPS pickup truck operated by the SO turned into the parking lot off Scottsdale Drive. Once past the sidewalk the pickup truck stopped, and the rear emergency lights were seen. The Complainant stopped walking and WO #3 caught up to him and grabbed a hold of the Complainant.
At 5:06 p.m., as WO #3 was behind the Complainant and the SO stood facing him, the Complainant went to the ground (it was unknown what caused this). The Complainant’s head was pointing back toward Scottsdale Drive. WO #3 was on his right side and the SO his left side. Both GPS officers’ knees were bent. There appeared to be an ongoing struggle on the ground and the SO took a position on the other side of the Complainant. As the struggle continued the group became closer to being completely blocked from the view of the camera by the GPS pickup truck. The SO went up on his feet, but his upper body was bent forward. Within about 30 seconds after the Complainant went to the ground, the SO’s left leg was extended outward, parallel to the ground. His upper body was bent forward, and his hands were on the Complainant, who was still on the ground. The motion of a knee strike was seen, as the SO’s body went forward toward the Complainant. WO #3 was blocked from the camera by the pickup truck. At about 5:09 p.m., WO #3 and the SO walked the Complainant back toward WO #3’s GPS vehicle.
Summary of GPS Communications RecordingsOn January 1, 2021, at 5:09 p.m., WO #3 advised he was doing a traffic stop at the Canadian Tire on Scottsdale Drive and supplied a licence plate number.
At 5:10 p.m., WO #3 required another unit to assist him.
At 5:11 p.m., he mentioned the driver had “HA” (Hell’s Angels) affiliations.
At 5:12 p.m., WO #3 again requested assistance because he [the Complainant] was resisting. The SO broadcasted that everything was okay at 5:12 p.m. Then, WO #3 advised that there was a female who was in the truck and he did not have a chance to speak to her. He also stated that he had the keys to the truck.
At 5:13 p.m., the SO advised there had been an arrest.
At 5:16 p.m., WO #3 advised that the Complainant had received an injury to his nose and also requested that CW #1 be searched for in the area.
At 5:27 p.m., EMS was requested so that the Complainant’s nose could be checked out.
At 5:49 p.m., WO #3 advised he was speaking to CW #1 on the telephone and she stated she was in a cab. [NB. CW #1 would later be arrested by an officer on Scottsdale Drive.]
At 6:02 p.m., the SO said they were heading to the Guelph General Hospital (GGH). The SO was in the back of the ambulance, and they arrived at 6:10 p.m.
At 6:48 p.m., WO #4 arranged to speak with WO #3 on his cellular telephone.
Materials Obtained from Police ServiceUpon request, the SIU received the following materials and documents from the GPS between January 11 and 25, 2021:
- Email from GPS regarding Arrest Scene Officers;
- GPS Arrest Report of the Complainant;
- GPS Booking Photograph – the Complainant;
- GPS Disclosure Letters (x2);
- Computer-assisted Dispatch details;
- Crown Brief Synopsis;
- Notes-WO #2;
- Notes-WO #1;
- Notes-WO #3; and
- Notes-WO #4.
Materials Obtained from Other SourcesThe SIU obtained the following records from non-police sources between January 5 and 15, 2021:
- Medical Records – GGH;
- Video recording from Business #1 on Scottsdale Drive; and
- Video recording from Business #2 on Scottsdale Drive.
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and the SO, as well as the other arresting officer – WO #3, and a civilian witness. The incident was also captured in parts by security cameras in the vicinity of the arrest.
Shortly after 5:00 p.m. on January 1, 2021, WO #3, on patrol in a marked police SUV, pulled into the Canadian Tire gas station at Stone Road West and Scottsdale Drive. He had followed a pickup truck on Scottsdale Drive to the location and was intending to investigate its driver for an earlier speeding infraction. The driver was the Complainant. He brought his vehicle to a stop alongside pump #3 intending to purchase gasoline. WO #3 stopped his cruiser just off the front driver’s side corner of the pickup truck.
The Complainant took objection to WO #3’s presence and refused to cooperate with the officer when asked for his driver’s licence. WO #3 explained that the police had received a complaint about his truck speeding earlier in the afternoon on Ironwood Road. The Complainant denied he had been on Ironwood Road and believed he was being harassed by the police. He refused to identify himself when asked, pumped gas and walked away from the officer toward the gas station kiosk. In the kiosk, he warned his passenger, CW #1, who had exited the pickup truck right after it had come to a stop, of WO #3’s presence and that they had to leave the area. A non-association order was in effect at the time preventing the two from being together.
The Complainant exited the kiosk and walked past WO #3 toward the gas station entrance/exit off Scottsdale Road as the officer continued to warn him that he would be arrested if he failed to identify himself. As it appeared the Complainant had no intention of complying with the officer’s request, WO #3 radioed for assistance concerned that the Complainant might resist his arrest.
The SO heard WO #3’s call for help and made his way to the gas station as the Complainant had turned and was making his way back toward the gas station. He stopped his pickup truck about 20 metres away from his colleague and the Complainant, and exited to render assistance. By the time he arrived at the parties, WO #3 was attempting to handcuff the Complainant.
The Complainant resisted WO #3 and, then, the SO, as the officers attempted to take him into custody. While still on his feet, the Complainant tensed his arms refusing to have them brought together behind his back. The SO intervened and grabbed hold of one of the Complainant’s arms. The Complainant was repeatedly told to stop resisting but he continued to struggle against the officers’ efforts. The SO aimed a kick at the Complainant and struck him in the face as the Complainant was falling to the ground. The blow broke the Complainant’s nose. He continued to resist and was met with a further knee strike to the right side by the SO, after which the officers took control of the Complainant’s arms and handcuffed them behind his back.
Paramedics attended the scene following the Complainant’s arrest and transported him to hospital where he was diagnosed with a fractured nose.
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,
Section 33, Highway Traffic Act – As to carrying licences and surrender on demand
Section 217(2), Highway Traffic Act –Arrest powers, Arrests without warrant
Analysis and Director's Decision
On January 1, 2021, the Complainant’s nose was broken in the course of his arrest by two GPS officers. The SO – one of the arresting officers – was identified as likeliest to have inflicted the injury and, therefore, designated a 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. I am satisfied that WO #3 was within his rights in investigating a speeding infraction and moving to arrest the Complainant when the latter refused to identify himself and turn over his driving documents. Under section 33 of the Highway Traffic Act, motorists are under a legal obligation to turn over their licence or, barring that, identify themselves to police officers. When the Complainant refused to do so, he rendered himself subject to arrest by virtue of section 217(2) of the Highway Traffic Act. The issue turns to the propriety of the force used by the SO in aid of the Complainant’s arrest.
While the evidence suggests that the force used by the SO – a kick and knee strike – may have been at the upper end of what was legally permissible, I am unable to reasonably conclude that it crossed the line into excessive force. At the outset, I note that I am unable to place any weight on the account of CW #1, whose evidence was contrary to the evidence of the two arresting officers and the Complainant. I am also unable to give any effect to the suggestion that the Complainant did not physically resist arrest. Though it must be said that the video recording of the arrest captured by a camera in the area did not disclose an overtly combative Complainant, it did indicate that WO #3 was having difficulty in securing his arms behind his back, lending credence to the resistance each of the officers described in their evidence. That being the case, it seems to me that taking the Complainant to the ground was a tactic reasonably available to the officers in the circumstances. Given their positional advantage in that scenario, any continued resistance on the part of the Complainant could be better managed by the officers. The kick delivered by the SO seems heavy-handed in the circumstances. That said, the officer explained that he intended to strike the Complainant’s torso with the kick and inadvertently hit him in the face as the Complainant was being grounded by WO #3. While I am not altogether convinced that the kick, however the SO intended it, was well-advised given the presence of two officers on the scene, I am not persuaded that it was so over-the-top as to fall afoul of the limits prescribed by the criminal law. In arriving at this conclusion, I am mindful of the fact that the Complainant, on the weight of the evidence, continued to physically resist the officers’ efforts to take control of his arms on the ground notwithstanding the kick. Indeed, for that same reason, I am unable to find that the knee strike delivered by the SO was unnecessary, after which the officers were able to secure the Complainant’s arms in handcuffs. No further blows of any kind were struck after the Complainant was physically restrained.
In the result, while I accept that the Complainant’s nose was broken by a kick delivered by the SO, I am satisfied on reasonable grounds that the force used by the officer fell within the range of what was reasonably necessary in the circumstances to effect a lawful arrest. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Electronically approved by
- 1) Video was believed to be ahead by one hour. [Back to text]
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.