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 injuries that a 23-year-old man (the “Complainant”) suffered during an interaction with the police.

Notification of the SIU

On July 4, 2021, at 5:09 a.m., the Cornwall Police Service (CPS) notified the SIU of an injury to the Complainant.

CPS advised that, on July 4, 2021, at 3:43 a.m., CPS police officers responded to a mental health call by the Civilian Witness (CW), the Complainant’s roommate, regarding the Complainant’s behaviour. When police officers arrived at the address, the Complainant charged at the police officers and was struck by a Conducted Energy Weapon (CEW). As a result of being struck by the CEW, the Complainant fell forward face-first, striking the ground and knocking out two teeth. He was taken to Cornwall Community Hospital (CCH) and treated for his injuries.

On July 4, 2021, at 1:21 p.m., CPS reported that the Complainant also had jaw fractures as a result of his fall, and that he had been moved to the Ottawa Hospital (OH).

The involved police officers were the Subject Official (SO) and the Witness Official (WO).

The Team

Date and time team dispatched: 07/04/2021 at 2:11 p.m.

Date and time SIU arrived on scene: 07/04/2021 at 2:30 p.m.

Number of SIU Investigators assigned: 5

The Scene

On July 7, 2021, at 1:45 p.m., an SIU Forensic Investigator attended a residence on Bedford Street. The SIU Forensic Investigator photographed and video-recorded the scene.

Physical Evidence

On July 7, 2021, at 12:53 p.m., an SIU Forensic Investigator seized a property bag containing pieces of broken teeth (chips).

Forensic Evidence

CEW Download

On July 7, 2021, an SIU Forensic Investigator attended CPS. At 12:53 p.m., the SIU Forensic Investigator examined the CEW Model X26P assigned to the SO, a spent CEW cartridge and wires, and two blast doors. There were no probes attached. The SIU Forensic Investigator photographed the CEW and cartridge.

At 1:36 p.m., the SIU Forensic Investigator downloaded the CEW data to his laptop.

The data indicated that, on July 4, 2021, at 2:52:58 a.m., [1] the SO armed his CEW. At 2:53:00 a.m., the SO pulled the trigger on his CEW for a five second duration. At 3:05:00 a.m., the SO made his CEW safe.

Video/Audio/Photographic Evidence [2]

911 Calls

On July 4, 2021, at 1:32:48 a.m., the 911 call-taker received a call from a man [now determined to be the Complainant]. The call-taker could not understand what the Complainant was saying.

At 1:32:48 a.m., the call-taker called back and spoke to the Complainant. The Complainant told the call-taker, “Pick me up [address] Bedford.” At 1:39:04 a.m., the call-taker performed a subscriber check on the address and determined the Complainant lived at the address.

At 1:40:58 a.m., the call-taker called the Complainant and was unable to get through. The call-taker could not leave a voicemail message.

At 1:59:56 a.m., the call-taker called the Complainant once more and the phone continued to ring over and over. The call-taker could not leave a message because the voicemail was not setup.

At 2:41:35 a.m., a caller, who identified himself as the Complainant’s roommate [now determined to be the CW], called back and said he was calling on behalf of the Complainant. The CW told the call-taker the Complainant was drunk. The CW did not think drugs were involved. The CW told the call-taker the Complainant had asked him to call 911 because the Complainant wanted to be picked up by the police. The CW told the call-taker the Complainant was in the apartment, and then said that the Complainant had just left the apartment. The CW thought the Complainant was headed to a convenience store. The call-taker told the CW to call police if and when the Complainant came back to the apartment.

At 2:47:00 a.m., the CW told police the Complainant was back at the apartment. He provided a description of the Complainant’s clothing.

Communications Recordings

At 2:51:51 a.m., the WO reported to the dispatcher that a CEW had been deployed.

At 2:52:29 a.m., police on scene reported to the dispatcher that the Complainant was in custody and all was in order.

At 2:53:06 a.m., the WO requested an ambulance.

At 2:54:28 a.m., the WO reported that the Complainant had struck his face on the pavement after the CEW was deployed.

At 2:57:54 a.m., the WO requested an estimated time of arrival for the ambulance.

At 3:02:28 a.m., police on scene reported the ambulance had arrived.

At 3:43:02 a.m., police and the Complainant were at CCH.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from CPS between July 6, 2021 and October 14, 2021:

• 2021 Syllabus - Use of Force Requalification;
• 911 Calls;
• Communications Recordings;
• 2021 Use of Force Training Record;
• CW’s Statement;
• Event Chronology;
• Arrest Report;
• General Order – Arrest
• General Order – Police Response to Persons Who Are Emotionally Disturbed;
• General Order – Prisoner Care and Control;
• General Order – Use of Force;
• Notes-the WO;
• Occurrence Report; and
• CEW Instructor Certification – the SO.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on September 22, 2021:

• Medical Records-OH.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and the SO, as well as a civilian eyewitness and another officer who was present at the time of the events in question.

At about 2:50 a.m. of July 4, 2021, the SO and the WO, in separate cruisers, arrived at an address on Bedford Street, Cornwall. They were there in response to a 911 call from one of the occupants of the address – the CW – reporting a domestic disturbance involving his intoxicated roommate - the Complainant. More specifically, the CW indicated that the Complainant wanted to be picked up by police. This was the second such call from the residence. At about 1:30 a.m., the Complainant had himself contacted police.

The Complainant was inside a vehicle parked on the front drive of the next-door-neighbour. At the sight of the SO and the WO, he exited the vehicle and began to walk towards the officers. The SO cautioned him to stop his advance on a couple of occasions. The Complainant continued to close the distance and was struck by the probes of a CEW discharged by the SO as he neared to within two to three metres.

The CEW deployment resulted in the Complainant’s immediate neuromuscular lock-up. He stopped in his tracks and fell forward face first onto the pavement. The SO and the WO moved in while the Complainant was on the ground, and handcuffed his arms behind his back.

The Complainant was assisted to his feet following his arrest. He had sustained a laceration to the chin and obvious dental injuries. An ambulance transported the Complainant from the scene to hospital, where he was diagnosed with fractures of the jaw and broken teeth. He was also admitted under the Mental Health Act for purposes of a psychiatric assessment.

Section 34, Criminal Code -- Defence of person - Use of threat of force

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 

(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) The act committed is reasonable in the circumstances.

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon; 

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and 

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

The Complainant was seriously injured in the course of his arrest by CPS officers on July 4, 2021. One of the arresting officers – the SO – was identified as the subject official for purposes of the ensuing SIU investigation. The investigation has now concluded. 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 injuries.

Pursuant to section 34 of the Criminal Code, the use of force that would otherwise constitute an offence is legally justified if the force was intended to thwart a reasonably apprehended attack, actual or threatened, and was itself reasonable. The reasonableness of the force is to be assessed in light of all the relevant circumstances, including such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. I am unable to reasonably conclude that the SO’s use of the CEW fell afoul of the bounds of justifiable self-defence.

At the outset, I am satisfied that the SO was lawfully placed in and around the front yard of the residence on Bedford Street at the time of the CEW discharge. He and his colleague, the WO, had been dispatched to deal with repeated 911 calls from the home reporting some sort of trouble involving an inebriated Complainant.

I accept the SO at his word when he says he acted to protect himself from what he feared was an imminent attack at the hands of the Complainant. There is nothing in the record to belie the officer’s assertion; on the contrary, the Complainant’s advance towards the officer after having been directed on two occasions to stop lends credence to it.

Finally, the use of the CEW, while perhaps not the only option available to the SO, was a tactic reasonably open to the officer. Once at the property, events unfolded quickly before the SO or the WO could get a firm handle on the situation. What they knew was that the Complainant was under the influence of alcohol, and had been acting erratically and aggressively. What they also knew was that the Complainant, in a recent confrontation with the other officers, had reacted with violence in the course of his arrest, attempting to dispossess the arresting officer of his firearm. In the circumstances, faced with a belligerent individual advancing on his position and ignoring commands to stop, the SO’s resort to his CEW would not appear a disproportionate use of force.

In the result, while I accept that the Complainant’s serious injuries were incurred when he fell forward having been immobilized by the CEW discharge, there are no reasonable
 
grounds to believe those injuries were the result of unlawful force by the SO. Accordingly, there is no basis for proceeding with criminal charges on this case, and the file is closed.


Date: November 1, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit