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 22-year-old man (the “Complainant”).

Notification of the SIU
 

On March 15, 2021, at 11:45 a.m., the London Police Service (LPS) contacted the SIU and relayed the following information.

On March 14, 2021, at about 12:20 p.m., LPS officers responded to the area of Tecumseh Avenue West, London (dead end road), for a possible impaired driver – the Complainant was sleeping in his vehicle. Upon arrival, LPS officers positioned their vehicles blocking the Complainant’s vehicle. As LPS officers approached the vehicle, the Complainant became aggressive, damaged police vehicles, and refused to exit his vehicle. The LPS officers then smashed the windows of the Complainant’s vehicle, forcefully removed him, and took him into custody. The Complainant was later diagnosed as having suffered a fractured little finger (left hand) that would require surgery to treat. He was in custody awaiting a bail hearing at the time of notification.

The Team
 

Date and time team dispatched:     03/15/2021 at 12:46 p.m.

Date and time SIU responded:     03/15/2021 at 12:52 p.m.

Number of SIU Investigators assigned:     2

 

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on March 15, 2021.

Subject Officials
 

SO #1     Declined interview, as is the subject official’s legal right. Notes received and reviewed.

SO #2     Declined interview, as is the subject official’s legal right. Notes received and reviewed.

SO #3     Interviewed, but declined to submit notes, as is the subject official’s legal right.

SO #3 was interviewed on March 24, 2021.

Witness Officials
 

WO #1     Interviewed

WO #2     Interviewed

The witness officials were interviewed on March 16, 2021, and March 22, 2021.

The Scene 
 

The scene on Tecumseh Avenue West was a narrow dead-end residential street flanked by undeveloped land with walking trails.

Video/Audio/Photographic Evidence [1]
 

Closed-Circuit Television (CCTV) Footage

The SIU located video evidence from a residence on Tecumseh Avenue West. A copy of this video was received by the SIU on March 18, 2021, at about 1:00 p.m.

The events were captured on two cameras, one facing northwest and one facing west. Because of obstacles in the way, the physical contact between the Complainant and LPS officers was not captured.

At 11:59 a.m., a white Volkswagen came westbound on Tecumseh Avenue, turned around at the end of the street and parked against the south curb. There was a vehicle parked at the end of the driveway which blocked the view of the passenger side and the rear end of the Volkswagen.

At 12:14 p.m., a white LPS vehicle came westbound and parked nose to nose with the Volkswagen. The vehicle in the driveway blocked the view. SO #3 walked over to the driver’s window of the Volkswagen and then walked away to the north side of Tecumseh Avenue West.

At 12:15 p.m., a black LPS pickup truck driven by SO #1 came westbound on Tecumseh Avenue West and stopped to briefly speak to SO #3. SO #1 then reversed the LPS pickup truck against or near the rear of the Volkswagen. SO #1 went to the passenger side of the Volkswagen but the view was obstructed. SO #3 positioned himself at the driver’s window of the Volkswagen.

At 12:17 p.m., a white LPS vehicle came westbound and parked. SO #2 got out to join SO #3, who was at the driver’s window of the Volkswagen. Within ten seconds, SO #3 stepped back, and by the movement of the Volkswagen roof and of the LPS pickup truck, the Volkswagen struck the LPS vehicles nine times. By his arm movement, SO #3 appeared to be striking the Volkswagen in the area of the driver’s window. SO #2 joined him at the driver’s door. Undistinguishable yelling was heard, except for ‘on the ground’. WO #1 arrived followed by WO #2. An LPS officer was in a standing position at the driver’s door of the Volkswagen and, about eight seconds later, WO #1 arrived near the driver’s door. Everyone was out of sight of the camera. SO #1 walked across the back of the Volkswagen and LPS officers began standing up and walking about in the area.

Communications Recordings

In disclosure, LPS provided a copy of the communication recordings on March 18, 2021, at 12:36 p.m. The recordings were not time and date stamped.

The dispatcher sent WO #1 and an undesignated officer to Commissioners and Wharncliffe Roads for a possible impaired. A man was passed out behind the wheel of a white Volkswagen. SO #3 advised he was responding and then later gave an update that he had located the Volkswagen out front of a building on Tecumseh Avenue West. The Complainant was in the driver’s seat passed out.

SO #3 broadcast that the Complainant’s chest was moving, and he would not wake the Complainant up until another LPS vehicle arrived to pin him. The Volkswagen was running. SO #1 then said the Volkswagen was pinned-in.

The next broadcast was SO #3 reporting that the Volkswagen was ramming their LPS vehicles. WO #1 was asked to update the dispatcher on her arrival time. WO #2 updated that the driver was out of the vehicle and they were working on handcuffing him.

WO #2 stated the Complainant was handcuffed and WO #1 said she was with SO #3. WO #2 reported SO #2 had a minor injury to his arm and then later advised that SO #1 would be going to the hospital for minor injuries. SO #3 requested an ambulance for the Complainant because he complained his head hurt.

SO #2 accompanied the Complainant in an ambulance, while SO #3 followed. The ambulance arrived at LHS Victoria Hospital, and the Complainant was arrested for impaired driving and dangerous driving. He was also being investigated for a firearm.

911 Calls

On March 18, 2021, at 12:36 p.m., the SIU obtained a copy of related 911 calls made to the LPS.

11:50:51 a.m.
A woman called 911 saying she was following a Volkswagen Passat and the driver was inebriated. She thought the driver would kill someone.

11:53:25 a.m.
A woman called 911 to report she was at the intersection of Wharncliffe and Commissioners Roads and that a man had fallen asleep at the wheel of a white Volkswagen.

11:56:25 a.m.
A woman called the police to report that at Wharncliffe and Commissioners Roads there was a man passed out behind the wheel of a Volkswagen. The caller felt he was on drugs. The driver then fled through the intersection at a high rate of speed.

11:56:45 a.m.
A woman called 911 because a man was passed out at the wheel of a white Volkswagen.


11:57:47 a.m.
The caller from 11:53:25 a.m. called 911 back and reported that the driver woke up and sped through the intersection with oncoming vehicles.

12:22:01 p.m.
A man called 911 because a driver had sped though an intersection and hit his bicycle. He noted that he and the bicycle were fine.

Materials Obtained from Police Service 
 

The SIU obtained the following records from the LPS between March 16, 2021, and March 23, 2021:

• Computer-assisted Dispatch Call Hardcopy;
• General Occurrence Report;
• Communications recordings;
• Injury Photos;
• Narrative of WO #1, SO #1 and SO #2; and
• Notes of WO #1, SO #1 and SO #2.

Materials Obtained from Other Sources
 

The SIU obtained and reviewed the following records from the following other sources:

• Medical records from the London Health Sciences Centre Victoria Hospital; and
• CCTV from Tecumseh Avenue West.

The following scenario emerges on the weight of the reliable evidence collected by the SIU, which included interviews with the Complainant, SO #3 and a couple of other officers who witnessed parts of the arrest. The investigation was also assisted by video recordings of the incident captured by a security camera in the area. As was their legal right, neither SO #2 nor SO #1 agreed an interview with the SIU. They did, however, authorize the release of their notes.

Beginning at about 11:50 a.m. of March 14, 2021, the LPS received a series of 911 calls from several persons calling to report a possibly impaired driver in the area of Commissioners Road East and Wharncliffe Road South. A male operating a white Volkswagen Passat had reportedly fallen asleep in his vehicle at the intersection. The male – the Complainant –awoke, at which point he travelled through a red light, almost striking a cyclist in the process. Police officers were dispatched to investigate.

SO #3 located the Complainant’s vehicle stopped facing east on the south curb beside a home on Tecumseh Avenue West. The engine was still running, and the Complainant was asleep in the driver’s seat. The officer parked his car nose-to-nose with the Volkswagen and waited for fellow officers to arrive.

SO #1, operating a pickup truck, was the next officer on the scene. He reversed his vehicle so that its backend was up against the rear of the Volkswagen. With the vehicle effectively boxed-in, the officers approached the Complainant and tried to wake him by knocking on the vehicle’s windows.

The Complainant awoke and immediately began to accelerate forward and back, striking the police vehicles in the process. SO #1, at the front passenger door of the Volkswagen, used his baton to break the window, after which he reached in and tried to place the gear shift in park. At about the same time, SO #3, at the driver’s front door and joined at this time by SO #2, attempted to open the locked door. With the use of his baton, SO #3 was eventually able to break the glass and he and SO #2 reached in and grabbed hold of the Complainant.

The Complainant resisted the officers’ efforts and continued to try and break his vehicle free. SO #1 was able after a period to shift the gear lever into park after delivering several strikes to the Complainant’s head area. As the Volkswagen was placed into park, the doors automatically unlocked. SO #2 and SO #3 opened the driver’s door, took hold of the Complainant and pulled him from the vehicle, forcing him to the ground in the process.

WO #1, arriving at the scene at about the time that the Complainant was being extricated, assisted the officers in the handcuffing process.

Following his arrest, the Complainant complained of discomfort and was taken to hospital. He was diagnosed with a fracture of the small finger of his left 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 March 14, 2021, the Complainant suffered a serious injury in the course of his arrest by LPS officers. The arresting officers – SO #1, SO #2 and SO #3 – were identified as subject officials for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials 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 required or authorized to do by law. Given the 911 reports and the Complainant’s state when he first saw him, asleep in the driver’s seat, SO #3 and, thereafter, the other subject officials, were within their rights in approaching the Volkswagen to investigate its driver for impaired driving. When the Complainant reacted by ramming the police vehicles in front and behind him, the officers then also had grounds to effect his arrest.

The evidence suggests that the subject officials used only reasonable force in taking the Complainant into custody. It is clear on this record that SO #1, having broken the front passenger door window of the Volkswagen, reached into the vehicle and struck the Complainant several times in the head as the two struggled, the officer attempting to place the vehicle into park. It was imperative at the time that the Volkswagen be disabled. The officers had good reason to believe that the Complainant was intoxicated and would constitute a real risk of harm on the roadways were he allowed to escape. Given the exigencies of the moment, up against an individual determined to get away, I am unable to fault the officer for delivering the strikes after his efforts to wrestle control of the gear shift had proven unsuccessful. I am further satisfied that the Complainant’s forcible extrication from the vehicle and takedown to the roadway was lawful. The Complainant’s repeated use of his Volkswagen to ram the police vehicles around him would have suggested that he was ready to use violence if necessary to escape apprehension. Forcing the Complainant to the ground would assist in deterring and managing any further resistance. As it turned out, the Complainant was handcuffed in fairly short order after he was removed from the vehicle without any further significant force being brought to bear.

In the result, though I accept that the Complainant fractured his finger in the course of the force used against him by police, I am unable to reasonably conclude that any of the subject officials comported themselves other than within the limits of the criminal law. Accordingly, there is no basis for proceeding with criminal charges in this case.


Date: July 12, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit