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 19-year-old man (the “Complainant”).

Notification of the SIU

On May 12, 2021, at 4:40 p.m., the Dryden Police Service (DPS) reported that on May 11, 2021, at about 11:00 p.m., DPS officers responded to the Dryden Detachment of the Ontario Provincial Police (OPP) to assist with an unruly prisoner (know known to be the Complainant). The Complainant had been an inmate of the Kenora Correctional Centre and, after he was released and his surety was revoked, was returned to custody.

OPP officers had arrested the Complainant and brought him to the Dryden OPP Detachment where a struggle took place when he refused to enter a cell. OPP officers requested the assistance of DPS officers. After the Complainant was placed into a cell, he complained of an injured arm. He was taken to hospital and diagnosed with a broken elbow.

The DPS advised that a DPS officer, who was assisting in subduing the Complainant, was heard to say that he heard a “pop” when he was attempting to control the Complainant’s arm.

The Team

Date and time team dispatched: 05/12/2021 at 9:27 p.m.

Date and time SIU arrived on scene: 05/14/2021 at 1:00 p.m.

Number of SIU Investigators assigned: 4

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on May 14, 2021.

Subject Officials

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

The subject official was interviewed on June 9, 2021.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Interviewed
WO #5 Interviewed

The witness officials were interviewed on May 17, 2021, and May 18, 2021.

The Scene

The scene was the Dryden OPP Detachment. The scene was not held as there was no physical evidence of any injury, and the event was captured by the closed-circuit television cameras in the hallways and cells themselves. At intake, an agreement was made to secure the video from the OPP.

Video/Audio/Photographic Evidence [1]

The SIU obtained the cell video from the OPP Dryden Detachment. The video was first received electronically on May 18, 2021, at 3:37 p.m., via a secure OPP file transfer. The electronic download was not able to play after numerous efforts were made, so the OPP liaison officer sent a CD with the cell video which was received May 25, 2021 at 9:00 a.m.

The following is a summary of the events captured on the video recording.

At 2:25 a.m., WO #1 and WO #2 entered the cell area from the sally port and prepared paperwork.

At 2:28 a.m., they exited the cell area, went to the sally port, and returned with the Complainant, who was walking freely, his hands in handcuffs behind his back. While being processed, the Complainant turned to WO #1 and stood directly in his personal space. Both OPP officers put him against a wall and he went to the floor, still in handcuffs behind his back.

The Complainant’s boots were removed, and he was stood up and his handcuffs were removed. While the recording did not contain audio, there appeared to be a lot of talk between the OPP officers and the Complainant. The Complainant displayed what appeared to be signs of intoxication as he tried to put his hands against the wall for a further search.

Near 2:32 a.m., the OPP officers lost control of the Complainant and he resisted being held by them. He was placed on the floor but only after a struggle in which he elbowed WO #1 in the head.

At about 2:33 a.m., the Complainant was again placed in handcuffs behind his back, but the search did not appear to be completed.

The Complainant was taken to a cell, and it appeared WO #1 and WO #2 were going to remove his handcuffs, or continue the search, but the Complainant stood up and rushed the OPP officers. When the cell door was closed, the Complainant kicked through the bars at them.

At 2:34 a.m., when the Complainant was left alone, he was still in handcuffs behind his back.

At 2:38 a.m., three DPS officers arrived, went to the cell, and were joined by WO #1 and WO #2. At 2:39 a.m., all five officers entered cell five. Primarily, WO #1 was to the Complainant’s left side and the SO was to his right, with a crowd of officers blocking the view of the Complainant.

At 2:41 a.m., the Complainant’s arm appeared to be bent in an awkward fashion by the SO as he attempted to get the right arm out of the hoodie style sweater. After his clothing was removed, down to his boxer shorts, the officers tried to put a white suicide gown on the Complainant, but he struggled enough that they left him without putting the cover on. After the officers exited, the Complainant was laying on the cell floor in the fetal position cradling his right elbow.

At 3:45 a.m., a cover was provided to the Complainant, who had been holding his right elbow while sitting on the bench in his underwear. He put the cover on himself, was later given a blanket, and slept until 6:23 a.m., when he exited the cell still cradling his right arm.

Materials Obtained from Police Service

The SIU obtained the following records from the OPP Dryden Detachment and the DPS:

• Computer-assisted Dispatch Records;
• Crown Brief Synopsis
• Occurrence Details and Reports;
• Police custody video;
• Prisoner Report; and
• Notes of WOs.

Materials Obtained from Other Sources

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

• The Complainant’s medical records were obtained from the Dryden Regional Health Centre.

The material events in question are clear thanks to interviews with the Complainant, the SO, and several other officers who were present at the time of the Complainant’s injury. The incident was also captured on video.

In the early morning hours of May 12, 2021, the Complainant was arrested WO #1 and WO #2 of the OPP for being in violation of the terms of his release. The Complainant was transported to the OPP Dryden Detachment to be placed in cells.

The Complainant was combative and belligerent with the arresting officers once back at the detachment. As he was intoxicated and flagged a suicide risk on police records, the Complainant was advised that he would need to be placed in a security gown. The Complainant resisted as the officers attempted to remove the handcuffs so he could be properly clothed. In the scuffle, WO #1’s emergency help button was pushed. The officers managed to lodge the Complainant in a cell and waited for other officers to arrive to assist.

The SO, WO #4 and WO #5 of the DPS received the request for assistance and left to attend the OPP detachment. They were briefed on the situation and came to understand that the Complainant required the removal of his handcuffs and some clothing so that he could be fitted with a security gown.

The officers made their way to the Complainant’s cell and asked that the Complainant not resist as they entered the cell to remove his handcuffs and place him in the gown. The Complainant struggled with the officers inside the cell. He was eventually forced over the cell bench where officers removed his handcuffs and then wrestled with him to remove his top and pants. In the course of this struggle, the Complainant’s right elbow was fractured.

The Complainant started to cry with the injury. The officers decided to remove themselves from the cell to allow the Complainant to calm down. In and around this time, the SO advised the other officers that he had heard a popping sound from the Complainant. The time was about 2:41 a.m.

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 May 12, 2021, the Complainant suffered a serious injury while in police custody following his arrest. The SO of the DPS 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 injury.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal lability 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.

There is no suggestion raised in the evidence that the Complainant’s arrest was unlawful. A condition of his recent release from custody was that he was to reside with his sister. However, the Complainant’s sister had advised the police that the Complainant was not welcome to live with her.

As for the force used by the SO and the other officers involved with the Complainant in the OPP cells in Dryden, I am satisfied that it was not excessive in the circumstances. Once lawfully in police custody, the officers were entitled to take reasonable measures to ensure his safety. This extended to removing clothing deemed potentially dangerous and placing him in a security gown given information in their possession that the Complainant was at risk for suicide. When the Complainant refused to remove his clothing and wear the gown, the officers were within their rights in resorting to a measure of force to compel him to do so. That force, consisting of the officers wrestling with the Complainant to overcome his resistance and remove his clothing, was not disproportionate in view of the nature and extent of the struggle the Complainant was able to wage. Aside from a knee strike delivered by WO #1, it does not appear that the Complainant was kicked, punched or otherwise struck by any of the officers. Importantly, shortly after it appeared the Complainant had suffered a serious injury, the officers withdrew from the cells to allow time for the Complainant to calm down, even as he continued to refuse to put on the gown. On this record, I am unable to reasonably conclude that the force used by the officers fell afoul of their legal remit.

In the result, while I accept that the Complainant’s elbow was fractured as the officers wrestled to control him in the cell and, in particular, as the SO grappled with his right arm, there are no reasonable grounds to believe that any of them comported themselves other than lawfully throughout the engagement. Accordingly, there is no basis for proceeding with criminal charges in this case.


Date: September 8, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit