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

Notification of the SIU
 

On April 27, 2021, at 11:53 a.m., the Smiths Falls Police Service (SFPS) notified the SIU of an injury to the Complainant.

SFPS advised that on April 27, 2021, just after midnight, SFPS police officers responded to a residence on Jasper Avenue in Smiths Falls for a domestic disturbance. The female caller indicated her ex-husband was smashing up her car and her house. Police arrested the Complainant for multiple offences, and he was lodged in the cells overnight. In the morning, the Complainant complained to dayshift staff that his right hand was sore from his arrest. Police transported the Complainant to the Perth and Smiths Falls District Hospital (PSFDH) where it was determined that he had a fractured knuckle. The Complainant was returned to police custody and held for a bail hearing.

The Team
 

Date and time team dispatched:     04/27/2021 at 2:08 p.m.

Date and time SIU arrived on scene:      04/27/2021 at 4:36 p.m.

Number of SIU Investigators assigned:     4

  Number of SIU Forensic Investigators assigned:     0

Affected Person (aka “Complainant”):

34-year-old male interviewed

The Complainant was interviewed on April 28, 2021.

Subject Official (SO)
 

SO     Interviewed, but declined to submit notes, as is the subject official’s legal right.

The subject official was interviewed on April 30, 2021.

Witness Officials
 

WO #1     Interviewed

WO #2     Interviewed

WO #3     Interviewed

The witness officials were interviewed between April 30, 2021 and May 4, 2021.

The Scene 
 

The place the Complainant broke his finger remains unknown. There were three possible locations as a result of the interviews conducted and information gleaned during the investigation:

1) The Complainant’s residence located in Smith Falls;
2) Inside cell #2 at the SFPS station; or
3) Inside an examination room at the PSFDH.

Video/Audio/Photographic Evidence
 

Cell Video Summary

The SIU obtained the cell video from SFPS on May 13, 2021 for the date of April 27, 2021. Th following is a summary of the recording.

At about 2:31:51 a.m., the Complainant was placed in the cell by the SO. The Complainant was wearing pants, and a long-sleeved hoodie. He had a shirt under the hoodie, and he was lying and sitting on the bed.

At about 2:36:05 a.m., the Complainant was on the bed stretching and then doing push-ups.

At about 2:40:38 a.m., the Complainant was doing a martial arts type “kata”, which included shadow boxing and mixed martial arts (MMA) type kicks.

At about 2:47:35 a.m., the Complainant removed his hoodie and wrapped it around the metal frame of the cell door, creating a makeshift punching bag. The Complainant shadow boxed and then appeared to deliver both right and left-hand punches to the hoodie/punching bag. The camera location precluded making a definite determination that the punches contacted the hoodie/punching bag.

At about 2:50:05 a.m., the Complainant stopped punching toward the hoodie/punching bag. He removed the hoodie from the frame of the cell door and sat on the bed.

At about 2:57:00 a.m., the SO came to the cell door and engaged the Complainant in conversation. When the SO left, the Complainant paced and sat on the bed.

At about 3:10:00 a.m., the Complainant was shadow boxing and delivering MMA style kicks toward the frame of the cell door. It appeared that his punches/kicks might have contacted the door frame.

At about 3:51:02 a.m., the Complainant used the cell toilet. He then paced throughout the cell and did a series of stretches. He was fidgeting with attention to the back of his hands.

At about 4:34:50 a.m., the Complainant was shadow boxing and delivering MMA type kicks.

At about 4:38:50 a.m., the SO arrived at the cell door and engaged the Complainant in conversation.

At about 4:50:36 a.m., the SO returned to the cell door and engaged the Complainant in conversation.

At about 5:15:10 a.m., the Complainant placed his right hand under the running water in the cell sink and let the water run over it for a period. He removed his hand and dried it with toilet paper. He then spent some time examining the back of his right hand.

At about 9:22:30 a.m., the Complainant placed his right hand under the running water in the cell sink and let the water run over it for a period. He dried his right hand with toilet paper. He then spent time examining the back of his right hand.

At about 9:38:25 a.m., the Complainant was removed from the cell by an SFPS police officer.

At about 11:13:45 a.m., the Complainant was returned to the cell with his right hand in a cast. The cast covered his wrist, his pinky finger and the finger next to it, and went halfway to the elbow.

Materials Obtained from Police Service 
 

Upon request, the SIU received the following materials and documents from SFPS between April 28, 2021 and May 13, 2021:

• Cell Video;
• Notes-WO #2;
• Notes-WO #1;
• Notes-WO #3;
• Arrest Booking Report;
• Arrest Report;
• Cell Block Monitoring Record; and
• Training Records-Use of Force Certificates-WO #1 and the SO.

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant and the SO, as well as video footage of the Complainant’s time in cells. In the early morning hours of April 27, 2021, officers were dispatched to the Complainant’s home on Jasper Avenue, Smiths Falls. The Complainant had called 911 reporting a home invasion. Police officers arriving at the home spoke with the Complainant and his spouse, and concluded that the alleged home invasion was a hoax. They proceeded to take the Complainant into custody when it became clear that his spouse was also present at the home as there was a no-contact order between the two at the time. The Complainant was handcuffed and taken to the police station.

Later that morning, after officers noticed swelling around the knuckle of his small right finger, the Complainant was taken to hospital. A fracture of the finger was diagnosed, and a cast was placed in position, after which he was taken back to cells.

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 April 27, 2021, while in the custody of the SFPS, the Complainant was diagnosed with a serious injury. The SO, who had arrested the Complainant earlier in the day, 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 the SO committed a criminal offence in connection with the Complainant’s 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 required or authorized to do by law. There is no suggestion raised in the evidence that the Complainant was unlawfully arrested for being in violation of a release condition.

Thereafter, there is insufficiently reliable evidence that excessive force was brought to bear against the Complainant. There is some evidence that the injury was incurred when the SO forcefully manipulated the finger while handcuffing the Complainant’s hands behind his back. However, it would be unwise and unsafe to rest criminal charges on this evidence for a variety of reasons, including evidence that the Complainant’s injury was self-inflicted – the result of him shadow boxing while in custody and repeatedly punching the interior of the cell.

The remainder of the evidence indicates that nothing untoward occurred at the scene of the Complainant’s arrest. The SO indicates that the arrest was uneventful. WO #1, present at the arrest, confirms that the SO took the Complainant into custody without incident.

On the aforementioned-record, I am unable to reasonably conclude that anything other than minimal and reasonable force was brought to bear by the SO in the Complainant’s arrest, namely, that which would have been necessary to grab hold of his arms and affix them in handcuffs. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: June 21, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit