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 26-year-old man (the “Complainant”) suffered during an interaction with police.

Notification of the SIU

On February 9, 2021, at 8:10 a.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

The Complainant’s girlfriend, the Civilian Witness (CW), had advised the OPP that the Complainant had undergone facial reconstruction surgery as a result of his interaction with OPP police officers in Kenora. The incident reportedly occurred on May 16, 2020, in Kenora. The CW was directed to have the Complainant contact the OPP and provide a medical consent in order to obtain the medical records from the hospital. The Complainant initially indicated his facial injury was the result of a skateboarding injury because he was not wearing his helmet.

On February 26, 2021, at 12:53 p.m., the Complainant contacted the SIU indicating the injury was caused by a police officer.

The Team

Date and time team dispatched: 02/26/2021 at 1:55 p.m.

Date and time SIU arrived on scene: 03/01/2021 at 7:48 a.m.

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on March 1, 2021.

Civilian Witness

CW Interviewed

The civilian witness was interviewed on March 11, 2021.

Subject Official (SO)

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

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed

The witness officials were interviewed between March 5 and 15, 2021.

The Scene

The scene was near the Pet Valu located at 5 Chipman Street in Kenora. The Pet Valu store was situated at the southeast corner of the Park Street Plaza where Chipman Street and McCellan Avenue intersect.

Forensic Evidence

Global Positioning System (GPS) Data for OPP Police Cruiser

The SIU received GPS data from the OPP on March 19, 2021.

The GPS data were gathered for May 16, 2020. At the time, WO #1 and the SO were in the same OPP cruiser. Kenora is officially in the Central Time Zone (CT) whereas most of Ontario is in the Eastern Time Zone (ET). The difference between the two time zones is one hour. The GPS time stamp (ET) was one hour ahead of the local time (CT). The GPS data included the following:

At 5:43:30 p.m. (ET)/ 4:43:30 p.m. (CT), WO #1 and the SO were stopped at Park Street Plaza in the area of the Pet Valu. At 5:48:15 p.m./ 4:48:15 p.m., they left the area.

At 5:54:10 p.m./ 4:54:10 p.m., WO #1 and the SO arrived at the detachment.

According to WO #1’s notes the Complainant was arrested at around 4:45 p.m. (CT). According to the GPS data, the police cruiser left the scene at 4:48 p.m. and arrived at the OPP Detachment at 4:54 p.m.

According to the GPS data, WO #1 and the SO took the most direct route from the scene to the detachment and only stopped as required for stop signs and traffic lights.

Video/Audio/Photographic Evidence

The SIU received the radio and telephone communications from the OPP on March 8, 2021.

Radio Communications

On May 16, 2020, at 5:42 p.m., an officer called into the dispatcher to advise the police officers had an arrestee under the Liquor Licence Act from behind the Pet Valu. The police officer provided the Complainant’s name and date of birth. The officer advised he was on the way to the detachment with the Complainant.

Telephone Communications

On May 16, 2020, at 6:12:28 p.m., the SO called the communications centre. The communications centre asked how he was doing, and the SO answered he was doing good. The communications centre asked if he wanted to be cleared from the last call and the SO replied he would. The communications centre remarked that the SO sounded angry and the SO replied he had just dealt with a winner [now determined to be the Complainant]. The SO advised the Complainant had spat in his face and the Complainant did not like what happened after that. The communications centre responded, “Oh.” The communications centre asked if there were any COVID concerns and the SO replied he had no idea and hoped that was not the case. The SO said he was wearing sunglasses and did not get any spit in his mouth. Afterwards he followed up and washed his face at the detachment.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from the OPP between February 26, 2021 and May 9, 2021:

• Communication Recordings;
• Detachment Video;
• GPS data from WO #1 and the SO’s vehicle;
• OPP Interview-the Complainant;
• OPP Interview-the CW;
• Prisoner Custody Report;
• Notes-WO #1;
• Notes-WO #2;
• Notes-WO #4;
• Computer-assisted Dispatch;
• Policy – Arrest Detention;
• Policy – Use of Force;
• OPP Photos of Injuries;
• Medical Records- Lake of the Woods District Hospital (LWDH); and
• Will State from Technical Analyst Officer (unsigned).

Materials Obtained from Other Sources

The SIU received the following records from other sources on March 11, 2021:

• Medical Records-LWDH; and
• Photos of Injuries received from the CW.

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant and WO #1, the other arresting officer. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the afternoon of May 16, 2020, WO #1 and the SO, on patrol in their cruiser, were stopped in the parking lot of the Pet Valu store at 5 Chipman Street when they were approached by the Complainant. The Complainant, intoxicated at the time, took objection to what he thought was police harassment of him and his friends, who had congregated in the area. WO #1 exited the cruiser from the passenger seat and walked around the front of the vehicle to speak with the Complainant. The officer asked for the Complainant’s name and then proceeded to advise him that he was under arrest when the Complainant refused to provide it.

With the SO, who had also exited the cruiser, standing in front of the Complainant, WO #1 took up a position behind the Complainant and asked him to bring his arms behind his back so they could be handcuffed. The Complainant bent forward at the waist toward the SO and spat in the officer’s face. The SO reacted by punching the Complainant.

Promptly after the punch, WO #1 grabbed the Complainant’s arms from behind and pulled him to the right and onto the ground. The Complainant was handcuffed by WO #1, searched and taken to the detachment.

The Complainant was released from police custody in the early morning of May 17, 2020.

On May 22, 2020, the Complainant attended LWDH and was diagnosed with a severe comminuted fracture of the left maxillary sinus. At the time, he told medical staff that the injury was the result of a skateboarding accident.

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 31(4), Liquor Licence Act -- Intoxicated in a public place

(a) In a place to which the general public is invited or permitted access; or

(b) In any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

Section 48, Liquor Licence Act – Arrest without warrant

48 If a police officer finds a person apparently in contravention of this Act or apparently in contravention of a prescribed provision of the regulations and the person refuses to give his or her name and address or there are reasonable grounds to believe that the name or address given is false, the police officer may arrest the person without warrant. 

The Complainant was arrested by OPP officers in Kenora on May 16, 2020 and subsequently diagnosed with a serious injury. Among the arresting officers, the SO was identified as 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. The evidence establishes that the Complainant was significantly inebriated at the time of the events in question, and that he refused to identify himself when asked by the police. On this record, I accept that he was therefore subject to arrest via sections 31(4) and 48 of the Liquor Licence Act.

Thereafter, I am not satisfied that the force used by the SO, namely, a punch to the Complainant’s face, was excessive. The officer had just been spat on by a belligerent individual and reacted, I am satisfied, to prevent any further assault on his person. While there may have been other options available short of a strike to the face, I am unable to reasonably conclude that a single punch, delivered to that part of the body used in the assault, fell outside of what was permissible in the circumstances to deter any further aggression and secure the Complainant into custody.

Incidentally, with respect to the takedown that occurred shortly after the punch, I am similarly satisfied that it did not cross the line into unlawful force. The SO had just been spat on and it was reasonable in the circumstances to want to place him in a position of disadvantage in order to complete the handcuffing process without further incident.

In the result, as there are no reasonable grounds to believe that the SO acted other than lawfully in his dealings with the Complainant, there is no basis for proceeding with criminal charges against the officer regardless of the cause of the Complainant’s facial fracture. The file is closed.


Date: June 14, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit