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 serious injuries sustained by a 30-year-old man (the “Complainant”).

Notification of the SIU

On August 29, 2021, at 3:05 p.m., the Hanover Police Service (HPS) contacted the SIU and reported the following.

On August 29, 2021, at 3:45 a.m., officers from the Ontario Provincial Police (OPP) and HPS were dispatched to an address on 7th Avenue in Hanover for a man said to be damaging and attempting to break into a commercial property. The original call for service was to a shop located at 7th Avenue (OPP jurisdiction). At 4:02 a.m., members of the HPS arrived and located a male party nearby (HPS jurisdiction).

Members of the HPS encountered the Complainant who was in an excited and agitated state, and brandishing a shovel and a bottle at officers when they arrived. The Complainant demanded that the officers shoot him.

One of the attending officers, the Subject Official (SO) #1, deployed his conducted energy weapon (CEW), and the Complainant was taken into custody and apprehended under the Mental Health Act (MHA).

At 4:08 a.m., the Complainant complained of a sore arm and was taken to Hanover & District Hospital (HDH) for examination.

The OPP was not involved in the apprehension.

The Team

Date and time team dispatched: 08/30/2021 at 6:35 a.m.

Date and time SIU arrived on scene: 08/30/2021 at 2:40 p.m.

Number of SIU Investigators assigned: 2

The Scene

The scene was the front lawn of an address on 7th Avenue, Hanover,

Forensic Evidence

An SIU forensic investigator attended Hanover on August 30, 2021, and took photographs of two addresses on 7th Avenue, Hanover.

At 11:10 a.m., the SIU forensic investigator examined the CEW of SO #1 and concluded that it had been fired at 4:03 a.m. on August 29, 2021, for ten seconds.

Video/Audio/Photographic Evidence [1]

Computer-assisted Dispatch (CAD) and Communications Recordings

The HPS provided the CAD report on August 30, 2021, at 2:55 p.m.

The communications recordings were received by the SIU in disclosure on September 13, 2021, at 4:08 p.m.

CW #1 called 911 to report that his brother, the Complainant, was breaking and entering into a shop located at 7th Avenue. [This side of 7th Avenue was OPP jurisdiction.] At 3:46 a.m., the call was transferred to the OPP, but it was transferred back to the HPS when it was learned the Complainant had returned home, which was in HPS jurisdiction.

SO #1 and SO #2 attended and dealt with the Complainant from 3:50 a.m. to 4:02 a.m., when the CEW was deployed. Call notes indicated that the Complainant wanted ‘suicide by police’.

The Complainant was taken to the HDH at 4:08 a.m., and left in the care of the hospital staff at 4:33 a.m.

Materials Obtained from Police Service

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

• Notes of SOs;
• Communications recordings; and
• Occurrence Reports and CAD report.

Materials Obtained from Other Sources

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

• Medical records from the HDH

The material events in question are clear on the evidence collected by the SIU, and may be briefly summarized.

At about 3:45 a.m. of August 29, 2021, HPS officers were dispatched to an address on 7th Avenue following a 911 call by CW #1, the Complainant’s brother. CW #1 reported that his brother had broken into a nearby shop. The Complainant suffered from mental illness and appeared to have been in the throes of a psychotic episode at the time.

SO #1 and SO #2 arrived on scene and confronted the Complainant, who had by that time returned to his address from the shop. The Complainant was holding a shovel. Directed to put it down by SO #1, the Complainant refused. He told the officers that he wanted to be shot, pointing out that he was armed with a weapon – the shovel. SO #1 made clear they were not going to shoot him, after which the Complainant removed a beer bottle from his pocket and broke it against the shovel. In an apparent effort to provoke a confrontation, the Complainant pointed the broken beer bottle at the officers. SO #1 warned him that he would be “tasered”, but the Complainant was undeterred. He stepped forward toward the officer and was struck by the probes of a CEW deployment. The Complainant’s body locked up and he fell to the ground.

SO #1 had deployed his CEW from a distance of several metres. With the Complainant on the ground, he and SO #2 approached him and were able to handcuff his arms behind his back without further incident.

Following his arrest, the Complainant indicated that his right arm was sore.

The Complainant was taken to hospital and eventually diagnosed with a fractured right arm.

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,

Section 17, Mental Health Act -- Action by police officer

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

On August 29, 2021, the Complainant was seriously injured in the course of his apprehension by HPS officers. The officers – SO #1 and SO #2 – 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 either subject official 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. By all accounts, the Complainant was in mental distress at the time of these events and a potential danger to himself and others. The officers were within their rights in apprehending the Complainant under section 17 of the Mental Health Act.

I am also satisfied that the force used by the officers was legally justified. The Complainant had just damaged property, and was brandishing a shovel and a broken beer bottle at the time SO #1 discharged his weapon. The officer had attempted to de-escalate the situation verbally but was unsuccessful. Indeed, it appears that the Complainant, in his state of mind, was intent on provoking a violent exchange with the officers. On this record, confronted by an individual advancing with potentially dangerous weapons and threatening to use them to inflict harm, SO #1 acted reasonably when he attempted to neutralize the Complainant from a distance with his CEW. And that is precisely what occurred. Thereafter, it does not appear that either officer used more than mild or moderate force to bring the Complainant’s arms around his back so he could be handcuffed.

In the result, while the Complainant’s injury is likely the result of his fall caused by the CEW, there are no reasonable grounds to believe that SO #1 or SO #2 comported himself other than lawfully throughout the incident. Accordingly, there is no basis for proceeding with criminal charges in this matter, and the file is closed.


Date: November 22, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit