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 a 41-year-old man (the “Complainant”) suffered.

Notification of the SIU

On August 30, 2021, at 12:15 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant. The OPP advised that on August 29, 2021 at 11:30 a.m., a member of the OPP Orillia Detachment arrested the Complainant in the area of Front Street and King Street, Orillia, for a variety of offences. During the arrest, there was a physical confrontation with a police officer. No use of force options were used. The Complainant was restrained and taken to the Orillia Detachment, where he was lodged in the cells.

On August 30, 2021, at 7:30 a.m., the Complainant was removed from his cell to be fingerprinted. The Complainant complained of chest pains and soreness to his side. He indicated he was kicked during his arrest.

The Complainant was taken to Orillia Soldiers’ Memorial Hospital by police officers and examined. He was diagnosed with a collapsed lung and rib fractures to his left side.

The names of the Subject Official (SO) and the Witness Official (WO) were provided.

The Team

Date and time team dispatched: 08/30/2021 at 1:50 p.m.

Date and time SIU arrived on scene: 08/30/2021 at 3:00 p.m.

Number of SIU Investigators assigned: 3

The Scene

The scene, which was not held, was located on the northeast corner of Front Street South and King Street, Orillia.

Video/Audio/Photographic Evidence [1]

Police Custody Video - August 29, 2021

The video was obtained from the OPP on October 5, 2021.

At 11:44 a.m., the video started and depicted a view of the sally port with the overhead door and person door to the side.

At 11:45 a.m., the Complainant, who was dressed in dark clothing, was walked into the sally port through the person door by two OPP police officers. Both police officers were dressed in uniform and one was on each of the Complainant’s arms, which were handcuffed behind his back. The two police officers and the Complainant entered another person door, which led into the booking area. The booking area recording did not capture sound.

At 11:49 a.m., the Complainant was placed in a cell. The Complainant wore his black pants but no shirt. As he entered the cell, the Complainant held onto his left side with his right hand.

Police Communication Recordings

Communication recordings were obtained from the OPP on September 1, 2021.

At 11:33 a.m., August 29, 2021, the SO broadcast to the dispatcher that they had a “10-92” (prisoner), and he provided his start mileage.

At 12:05 p.m., the WO telephoned the communications centre and advised the dispatcher that the arrest involved a bail violation. The WO reported that he was the police officer who had chased the Complainant on foot.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from the OPP between August 31, 2021 and October 5, 2021:

• Arrest Report;
• Computer-assisted Dispatch Event Details;
• Charges-the Complainant;
• Notes-the SO;
• Notes-the WO;
• Communication Recordings;
• Orillia Detachment Video;
• Release Order-Form 10; and
• Use of Force Training Log-the SO.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from other sources on August 31, 2021:

• Medical Record -Orillia Soldiers’ Memorial Hospital.

The following scenario emerges from the weight of the reliable evidence collected by the SIU, which included interviews with the Complainant and the SO.

At about 11:30 a.m. of August 29, 2021, the SO and his partner, the WO, were staked out in a cruiser in the area of King Street and Front Street South. They were looking to arrest the Complainant for multiple offences related to breaches of his release conditions. The Complainant appeared riding a bicycle eastbound across the parking lot at 129 Front Street South, at the southwest corner of the intersection. The SO, driving the cruiser, began to follow behind at a distance of several metres.

Realizing he was wanted by the police and not wishing to be apprehended, the Complainant attempted to elude the officers on his bicycle. He rode across Front Street South into the parking lot at 150 Front Street South before circling back to travel north on the east side of the roadway, all the while with the officers in pursuit. The Complainant came to a stop at a point on the northeast corner of the intersection. It was there that the officers caught up with him.

The WO, who had exited the cruiser a distance south and chased the Complainant on foot, was the first to confront the Complainant. The officer ordered him to the ground and then forced him to the ground when the Complainant failed to lower himself. The Complainant resisted the WO on the ground by refusing to release his arms. His resistance continued as the SO brought his cruiser to a stop in the vicinity, exited, and joined his partner in attempting to take the Complainant into custody. The SO delivered a knee strike to the Complainant’s left side, after which he took control of the Complainant’s left arm. Shortly thereafter, with both his arms behind his back, the Complainant was handcuffed.

Following his arrest, the Complainant was taken to the detachment and lodged in a cell. The morning after, at about 7:30 a.m., the Complainant complained of pain as he was taken to be fingerprinted. He was subsequently transported to hospital where he was diagnosed with fractures of two left-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,

On August 29, 2021, the Complainant was seriously injured in the course of his arrest by two OPP officers in Orillia. One of the 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 injuries.

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. There is no suggestion in the evidence that the officers lacked lawful grounds to arrest the Complainant for breaches in the conditions of his release order.

Nor does the evidence reasonably establish that the force used by the SO was excessive. The Complainant had led the officer and the WO on a spirited chase in which he gave the officers reason to believe he was not inclined to peaceful surrender. Indeed, when finally caught by the officers, the Complainant refused to comply with the WO’s direction that he position himself on the ground, and then refused to release his arms so they could be handcuffed. In the circumstances, the knee strike delivered by the SO seems a proportionate response to the situation at hand. The strike proved successful, as the SO was thereafter able to take hold of the Complainant’s left arm and bring it behind his back.

In the result, while I accept that the force used by the SO broke the Complainant’s ribs, there are no reasonable grounds to believe that the officer comported himself other than lawfully throughout their engagement. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.

Date: November 29, 2021