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 a serious injury sustained by a 29-year-old man (the “Complainant”).

Notification of the SIU

On February 20, 2021, at 12:00 p.m., the Ontario Provincial Police (OPP) called the SIU and reported the following:

On February 20, 2021, at 5:56 a.m., the OPP received a call for a break and enter at a business on Erie Street North, Leamington. Police officers responded and, in the vicinity of the Royal Bank, 35 Talbot Street West, Leamington, they observed a man riding a bicycle and carrying a cash register. The man was removed from the bicycle and resisted arrest. The man was grounded and struck once in the face. He was taken to the Erie Shores HealthCare and diagnosed with an orbit fracture.

The Team
 

Date and time team dispatched:     02/22/2021 at 9:40 a.m.

Date and time SIU responded:     02/22/2021 at 10:46 a.m.

Number of SIU Investigators assigned:     3

Affected Person (aka “Complainant”):

29-year-old male not interviewed [1]

Subject Officials
 

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

Witness Officials
 

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Notes reviewed; interview deemed not necessary

The witness officials were interviewed on March 2, 2021.

The Scene 

Queens Avenue was a one-way street that ran (approximately) northbound only from Talbot Street West. Talbot Street West ran (approximately) east and west, and was paved and marked for one lane of traffic in each direction. The roadway adjacent the curbs in each direction was marked for parallel parking and separated from the exclusively commercial (ground floor) buildings by a section of interlock brick and a sidewalk, of common width. There were streetlights on the east side of Queens Avenue and both the north and south sides of Talbot Street West. The RBC was located on the northeast corner of that intersection.

Video/Audio/Photographic Evidence [2]
 

The SIU obtained audio, video and photographic records of relevance, as set out below.

Police communication recordings were requested on February 22, 2021, and received on February 25, 2021.

Telephone Call to Police
On February 20, 2021, at 5:55 a.m., the OPP Communications Centre received a call from a man who reported he had arrived at his store to find a window broken and a bicycle laying outside the store. The man was instructed to wait in his vehicle and that police officers would attend.

Scenes of Crime Officer (SOCO)/Ambulance Request
On February 20, 2021, at 6:10 a.m., WO #2 told the Communication Centre there had been a break and enter, and asked for an Identification Unit to attend. He also told them a man was in custody who required medical attention due to a punch in the nose.

The Communication Centre contacted Windsor Ambulance and asked them to attend to the Leamington Detachment for a male in-custody who had been punched in the nose.

Ambulance Arrival
On February 20, 2021, at 6:26 a.m., Windsor Ambulance personnel called to indicate that an ambulance crew was at the Leamington OPP Detachment, and asked someone go to the door and allow them access.

Dispatch Recordings
The dispatch recordings that began on February 20, 2021, at 5:56 a.m., were not otherwise time stamped and ran with the intervals between the broadcasts deleted. They started with the Communication Centre broadcast to Leamington OPP units of a break and enter in progress at the store on Erie Street North - a bicycle was seen laying on the ground in front of the premises. Numerous police officers broadcast they were attending.

WO #1 broadcast they had the Complainant in custody and requested a police officer go to the scene to speak with the person who reported the break and enter.

A SOCO was dispatched to the variety store.

WO #1 broadcast they were going to the Leamington OPP Detachment.

Photographs of Subject Fleeing Store
Requested from the OPP on March 2, 2021, and received on March 8, 2021, these photographs taken by a civilian with his cell phone depicted the Complainant riding his bicycle from the store after the civilian called the police.

Custody Video
Requested on February 22, 2021, and received on March 8, 2021. The custody video was reviewed to see if it recorded the conversation WO #4 disclosed during his interview of the Complainant accusing the SO of punching him. The custody video did not include an audio component to capture that conversation and was otherwise unremarkable, capturing the Complainant’s entry to the police facility, his booking, and his collection from the police facility by paramedics. It did not further the investigation in any meaningful way.

Materials Obtained from Police Service 
 

The SIU obtained the following records from the OPP Essex Detachment between February 24, 2021, and March 8, 2021:

• The Complainant’s Contact History with the OPP;
• Notes of the WOs;
• OPP Arrest Report;
• OPP Computer-assisted Dispatch Report;
• OPP General Occurrence Report;
• OPP Prisoner Report;
• OPP Training-WO #1’s Use of Force Qualifications;
• OPP Training-The SO’s Use of Force Qualifications;
• Custody video;
• Communications recordings;
• Photographs of fleeing Complainant;
• Statements from 911 caller/variety store owner;
• OPP Policy, Arrest and Detention;
• OPP Policy, Use of Force;
• OPP Policy, Prisoner Care and Control; and
• OPP Witness Statements (x2).

The following scenario emerges from the evidence collected by the SIU, which included interviews with one of the arresting officers – WO #1 – and several additional officers who witnessed the incident in parts. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes. The Complainant could not be reached for a statement.

Just before 6:00 a.m. of February 20, 2021, the police received a 911 call from a man at a store on Erie Street North. The man had arrived to find a break and enter in progress at the business. The front door was open and there was a bike laying on the ground in front of the store’s entrance. Officers were dispatched to the address.

Officers responded within minutes to learn that the subject had left the store on a bike. The 911 caller had taken several pictures of the male on his bike as he rode away and showed them to police. WO #1, one of the attending officers, broadcast the male’s description over the radio and then set out to search for him.

While traveling west in his cruiser on Talbot Street West, WO #1 spotted a male on a bicycle who fit the description of the male from the break and enter. The cyclist was traveling south on Queens Avenue toward Talbot Street West carrying a duffle bag and backpack, both full. Deciding he would take the male into custody in relation to the break and enter, WO #1 stopped his cruiser on the roadway, exited and advised the cyclist that he was under arrest.

The cyclist – the Complainant – told WO #1 that he had found the items he was carrying “dumpster diving” and resisted arrest. While straddling his bicycle, the Complainant began to walk away from the officer, prompting WO #1 to take hold of his left elbow and right shoulder. At the same time, the SO approached the Complainant’s right side to assist with the arrest. Following a further brief period of resistance on the part of the Complainant, the officers pushed him to the left off his bike. The Complainant landed chest first and quickly tucked his arms under his torso. After repeated commands that he stop resisting, in the course of which the officers attempted to wrestle his arms free, the SO delivered a punch to the right side of the Complainant’s head. Shortly thereafter, the officers took control of the Complainant’s arms and handcuffed them behind his back.

The Complainant was taken to the station after his arrest and subsequently transported to hospital when he complained that his nose and jaw were broken. He was diagnosed with a broken orbital bone.

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 February 20, 2021, the Complainant suffered a fractured orbital bone in the course of his arrest by two OPP officers in Leamington. One of the arresting officers – the SO – was 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. Based on the information the officers had received at dispatch about the 911 call, and what they learned from speaking with the 911 caller at his store, including the pictures he had taken, I am satisfied that there were grounds for the Complainant’s arrest vis-à-vis the break and enter.

I am also satisfied that the force used by the officers – in essence, the punch struck by the SO – fell within the latitude of permissible force. By that time, the Complainant had made clear that he was not about to peacefully surrender into police custody. He denied being responsible for the break and enter, refused the officers’ repeated exhortations that he stop resisting, and struggled against the efforts of WO #1 and the SO to secure his arms out from under his body. In the circumstances, I am unable to reasonably conclude that the SO’s punch amounted to a disproportionate escalation in the force brought to bear against the Complainant. The Complainant’s fight waned after the blow was delivered, and the officers were able to take control of his arms.

In the result, while I accept that the SO’s punch broke the Complainant’s orbital bone, there are no reasonable grounds to believe that the force used by the officer was excessive. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: June 17, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit