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.

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 56-year-old man (the “Complainant”).

Notification of the SIU

The Complainant contacted the SIU and left a voice message. When contacted by the SIU on September 4, 2021, at 2:20 p.m., the Complainant reported the following.

The Complainant, a resident of Mindemoya, had had disagreements with a property owner over access to a shoreline. The Complainant indicated that he had been charged with trespassing on several occasions by the Ontario Provincial Police (OPP), but these charges were withdrawn.

On July 17, 2021, at approximately 11:00 a.m., the Complainant had attended the above-mentioned shoreline area. Two OPP police officers attended to remove the Complainant from the area. During his arrest, the Complainant was kicked in the left leg. The Complainant reported he was unable to walk from the area and was dragged up a hill to a waiting OPP prisoner wagon.

Two additional police officers were at the prisoner wagon. The Complainant was placed in the prisoner wagon and taken to a local hospital by the OPP.

The police officer declined to provide his name and indicated that it was on the ticket. The Complainant was issued a Provincial Offences Notice (PON). The Notice indicated that the issuing officer was Subject Official (SO) #2.

The Complainant was assessed and diagnosed with a fractured leg. The Complainant was referred to Health Sciences North (Sudbury) and, on July 28, 2021, had reconstructive surgery to his left leg.

The Complainant had a return appointment to the same hospital scheduled for September 10, 2021.

The Complainant was advised to retain the PON.

At 4:26 p.m., the SIU contacted the OPP, who advised that the OPP SIU Liaison for the area would contact the SIU.

At 5:45 p.m., the OPP SIU Liaison for the North East Region contacted the SIU. The OPP was advised of the allegations and the invocation of the SIU mandate.

The Team

Date and time team dispatched: 09/04/2021 at 5:55 p.m.

Date and time SIU responded: 09/05/2021 at 11:10 a.m.

Number of SIU Investigators assigned: 3

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on September 8, 2021.

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

The civilian witnesses were interviewed on September 28, 2021.

Subject Officials

SO #1 Declined interview, as is the subject official’s legal right. Notes received and reviewed.
SO #2 Declined interview, as is the subject official’s legal right. Notes received and reviewed.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed

The witness officials were interviewed on October 19, 2021, and October 28, 2021.

The Scene

The scene was not examined by SIU forensic investigators.

SIU investigators attended the scene September 28, 2021. The scene presented similar as it would have been in July 2021. No physical evidence was obtained from the scene.

The area of the altercation was close to the driveway to a cottage. The property had both tree coverage and grassy areas. The arrest took place in the treed lot which led down a steep hill to the lake. The ground in the area was covered in shale stone. Closer to the lake the shale stone was extensive.

The scene was well out of the documented marine access to the shoreline.

Video/Audio/Photographic Evidence[1]

OPP Dispatch Radio Recordings

At 11:20:04 a.m., an undesignated police officer was dispatched to a trespass in progress call at CW #4’s address. SO #1 and SO #2 volunteered to head to the call for service as well. The undesignated officer asked for checks to be run on all involved parties by OPP communications. The results did not reveal any police contacts with the Complainant.

The undesignated officer was cancelled from the call and did not attend CW #4’s address.

OPP communications updated that CW #4 had called to say that she and her brother, CW #3, had confronted the Complainant and asked that he leave the property. SO #2 acknowledged the information. OPP dispatch made a phone call to SO #1 as they were unable to raise him or SO #2 on the police radio. SO #1 advised that they had arrested the Complainant for trespassing and would be leaving shortly. They advised they would be attending the hospital (Mindemoya Medical Centre) with the Complainant at his request. The Complainant had been arrested under the Trespass to Property Act and would be issued a Provincial Offences Act notice when released from hospital.

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the OPP Mindemoya Satellite Office (Manitoulin):

• Occurrence Details (x2);
• Occurrence Summary (x2); and
• Communication recordings.

Materials Obtained from Other Sources

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

• Municipality of Central Manitoulin, Town of Mindemoya bylaw # 2003-15;
• Survey of Land Lot;
• Medical records from Manitoulin Health Centre and Health Sciences North; and
• Video recordings and still images from CW #4’s family.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and civilians who witnessed parts of the events in question. As was their legal right, neither subject official chose to interview with the SIU. They did authorize the release of their notes.

In the morning of July 18, 2021, OPP officers were dispatched to a property in Mindemoya following a call to police reporting a trespasser. The ‘trespasser’ – the Complainant – had been asked to leave the property by members of the family who owned the cottage on the land. The Complainant, believing he had a lawful right to be on the land, had refused.

SO #1 and SO #2 arrived at the address at about 12:00 p.m. They spoke with members of the family and then approached the Complainant asking him to vacate the property. At the time, the Complainant was on a treed incline that climbed towards the cottage property from the shoreline of Mindemoya Lake. Again, believing that he had every right to be where he was, the Complainant refused.

The officers approached the Complainant, advised him he was under arrest, and attempted to handcuff him. The Complainant objected to his arrest and refused to release his hands to be handcuffed. He continued to resist on the ground after he had been taken down by one of the officers. In short order, however, SO #1 and SO #2 were able to subdue the Complainant, take control of his arms, and secure him in handcuffs.

While being escorted to a cruiser following his arrest, the Complainant complained of injury to his left leg. He was taken from the scene to hospital and eventually diagnosed with a fracture of the left leg.

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,

Following his arrest on July 18, 2021 by OPP officers, the Complainant was taken to hospital and diagnosed with a serious injury. The arresting officers – SO #1 and SO #2 – were identified as subject officials for purposes of the SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either of the subject officials 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 authorized or required to do by law. While the weight of the evidence suggests that the Complainant was in fact trespassing on the land, I need not come to any conclusion on the mater. It is enough to find, as I do, given the information at their disposal having spoken with members of the family, that there were reasonable grounds to believe that the Complainant was trespassing at the time. [2] In the circumstances, when the Complainant refused repeated requests that he leave the property by someone the officers reasonably believed was the property owner, he was subject to arrest pursuant to section 9(1) of the Trespass to Property Act.

There is no doubt that the Complainant resisted his arrest. Instead, at issue is whether he was subjected to excessive force when, while prone on the ground, he was kicked or kneed by one of the officers. If believed, this might give rise to criminal liability on the part of one or the other subject official. However, I am unable to conclude that there is sufficiently cogent evidence to this effect to warrant charges. For example, the Complainant says that he had great difficulty bearing weight on his knee, following the strike, as he was being escorted to the police cruiser. None of the witnesses present at the time, however, was able to corroborate that evidence. Finally, in light of the fact that the Complainant struggled against the officers’ efforts to handcuff him while on the ground for between two and five minutes, I am unable to reasonably conclude that a knee or a kick was necessarily excessive in the circumstances, even if it did cause the injury in question.

As for the officers’ rendition of the altercation that marked the Complainant’s arrest, no mention is made of a strike of any kind once the Complainant was on the ground. Rather, the officers reported simply using their greater manpower to wrestle control of the Complainant’s arms before handcuffing them behind his back.

In the result, there are no reasonable grounds to believe that either of the subject officials comported themselves other than lawfully in their dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.

Date: December 29, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit