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

Notification of the SIU

On July 20, 2021, at 5:30 p.m., the Brantford Police Service (BPS) reported the following.

On July 19, 2021, at 12:46 p.m., BPS officers arrested the Complainant for armed robbery and breach of bail conditions. The Complainant had removed an ankle bracelet, the wearing of which was one of his release conditions from charges related to a shooting and his involvement in an armed robbery in Brantford earlier in the week. BPS officers located him in the area of Foster and Cayuga Streets, hiding in a backyard.

The Complainant resisted attempts to arrest him and was bitten by a Police Service Dog (PSD). When he was finally arrested, he was taken to the Brantford General Hospital (BGH) where bite wounds from the PSD were treated, and he was released into police custody.

At 11:00 a.m. on July 20, 2021, the Complainant complained of a sore chest, and was taken back to the BGH and diagnosed with two broken ribs. The Complainant was released from hospital and was en route to the Maplehurst Correctional Centre at the time of notification.

The BPS Scenes of Crime Officers (SOCOs) had taken photographs of the arrest scene.

The involved officers were the Subject Official (SO), Witness Official (WO) #2 and WO #3.


 

The Team

Date and time team dispatched: 07/21/2021 at 7:00 a.m.

Date and time SIU arrived on scene: 07/21/2021 at 3:00 p.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on July 21, 2021.

Civilian Witness (CW)

CW Interviewed

The civilian witness was interviewed on August 11, 2021.

Subject Official

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

The subject official was interviewed on August 12, 2021.




 

Witness Officials

WO #1 Notes reviewed, interview deemed not necessary
WO #2 Interviewed
WO #3 Interviewed

The witness officials were interviewed on August 5, 2021.

The Scene

The incident occurred in the backyard of an address on Foster Street, Brantford.

Video/Audio/Photographic Evidence [1]

Police Communication Recordings

On August 4, 2021, the SIU received the BPS communication recordings for this incident. The audio started on July 19, 2021 at 10:47:25 a.m. The audio started with surveillance units speaking back and forth, as they updated their visual of the Complainant in a stolen vehicle in Brantford. Some of the highlights were as follows:

At 12:36:02 p.m.-12:39:15 p.m., the Complainant exited the stolen vehicle.

At 12:45:42 p.m., WO #2 said he had contact in the rear yard of an address on Foster Street.

At 12:46:13 p.m.-12:47:00 p.m., an unknown police officer said the Complainant was in custody and was being walked out of the rear yard by a canine officer.

At 12:57:22 p.m., an unknown police officer confirmed there was a dog bite and the Complainant would be taken to the BGH.

No police officer made any statements as to how the injuries to the Complainant occurred, other than there was a dog bite.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from BPS between July 22, 2021 and August 13, 2021:

• 2020 K-9 (dog handler) certification-WO #2;
• BPS Memorandum-Overview of Incidents Involving the Complainant;
• BPS Memorandum-Use of Force Recertification Dates;
• Canine Services Unit Manual 2018;
• Event Details;
• Memorandum-Officer Involvement Summary;
• Notes-WO #1;
• Notes-WO #2;
• Notes-WO #3;
• Occurrence Notes-WO #2;
• Procedure-Arrest, Security, Prisoner Care and Control;
• Procedure-Use of Force;
• Procedure-Canine Services;
• SOCO Photographs;
• Communication Recordings;
• Supplementary Occurrence Report-WO #3;
• Use of Force Training – WO #2;
• Use of Force Training – the SO; and
• Use of Force Training – WO #3.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the BGH:

• The Complainant’s medical records.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO, and other officers who participated in the Complainant’s arrest.

Since his release from custody on July 16, 2021, BPS officers had been seeking to apprehend the Complainant. The police had been alerted to the fact that the ankle bracelet monitoring device, the wearing of which was a condition of the Complainant’s release, had been removed. On July 18, 2021, the BPS responded to a reported carjacking. A review of video footage of the event purportedly captured the Complainant’s involvement in the robbery. He was said to be brandishing a gun at the time. The Complainant had been located in the stolen vehicle and was chased briefly before police called off their pursuit.

On July 19, 2021, police received reports of another stolen vehicle. A surveillance team located and tracked the vehicle to an address near the intersection on Foster Street, near its intersection with Cayuga Street. Uniformed officers contained the area as an Emergency Response Team (ERT) team was dispatched to the scene.

The Complainant was operating the stolen vehicle in the morning of the day in question. He had travelled to the home of an acquaintance – the CW – at an address on Foster Street, and asked to use his phone. As the Complainant was using the phone, police cruisers were heard arriving in the area. The Complainant fled the residence through the rear door.

An ERT team consisting of the SO and WO #3, accompanied by WO #2 and his police dog, were among the officers arriving at the scene. The dog picked up the Complainant’s scent and the officers followed the dog down the driveway leading to the backyard of another address on Foster Street. The Complainant was quickly located. He was hiding behind some bins by a shed.

WO #2 alerted his team members of the Complainant’s location. The SO, armed with a rifle, ordered the Complainant to show his hands and lay on ground. The Complainant stood and raised his hands momentarily, before turning his back at the officers and walking away from them, his hands no longer visible. The SO closed the distance on the Complainant and eventually had him on the ground, delivering a knee strike into the Complainant’s right side.

The Complainant struggled with the SO and WO #3 on the ground as they moved in to secure him in handcuffs, refusing to give up his arms. WO #2, who was nearby with his dog, directed the dog to bite the Complainant’s lower right leg. The dog did so, after which the officers were able to control both arms and take the Complainant into custody. The time was about 12:46 p.m.

At hospital following his arrest, the Complainant was treated for the dog bite. The wound was minor and required no stitches to close. The Complainant was returned to police custody and subsequently complained of chest pain. He was again taken to hospital and, this time, diagnosed with two fractured right-sided ribs.

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,

The Complainant suffered a serious injury in the course of his arrest by BPS officers on July 19, 2021. 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 required or authorized to do by law. The Complainant had breached a term of his release from custody, and was reportedly involved in a crime spree in the days following his release. He was clearly subject to arrest.

Thereafter, I am unable to reasonably conclude that the force used by the SO was without legal justification. The officer had reason to believe that the Complainant was in possession of a gun and had been involved in at least one violent criminal offence since his release from custody on July 16, 2021. In the circumstances, the SO was entitled to resort to a measure of force when the Complainant failed to heed his commands and walked away. Considered in context, it does not appear that the knee strike the officer delivered was excessive, even if it is likely responsible for the Complainant’s rib fractures. The risk of a gun being brought to bear by the Complainant was real, and resolute action was imperative to neutralize the Complainant and force him into a position of disadvantage as quickly as possible. As it turns out, the Complainant was not in fact armed, but the officers would not have known that at the time.

Regarding the events preceding the knee strike, the SO suggests the Complainant tripped of his own accord and was on his knees when he first moved in. WO #3, on the other hand, says the SO forced the Complainant to the ground. The discrepancy is of no moment, I am satisfied, to the analysis. Given the exigencies of the situation, a forced takedown would not have been out of bounds.

For the foregoing reasons, while I accept that the force used by the SO was the cause of the Complainant’s rib fractures, I also accept that the knee strike and possible takedown constituted lawful force in aid of a lawful arrest. [2] Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: November 8, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit