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 46-year-old man (the “Complainant”).

Notification of the SIU

On September 6, 2021, at 2:40 p.m., the Ontario Provincial Police (OPP) reported the following.

On September 5, 2021, during the afternoon hours, members of the OPP attended a residence in the area of Main Street and Alma Street in Rockwood for a domestic incident. Police officers met with the Complainant and a woman. During the course of their attendance, the Complainant made comments towards the woman, and the officers decided to arrest the Complainant. A struggle ensued and Witness Official (WO) #3 deployed his Conducted Energy Weapon (CEW). The CEW deployment was effective, and the Complainant was brought under control and taken to the Rockwood OPP Detachment where, at 5:00 p.m., he complained of a sore ankle.

Paramedics attended the detachment and assessed his complaints. They found no issue with the ankle but found he had an elevated heart rate. The Complainant was taken to the Guelph General Hospital (GGH) where he was cleared of physical injury but held for a mental health assessment.

At 12:00 p.m. of September 6, 2021, during the Complainant’s bail hearing, hospital staff advised the OPP that the Complainant had a fractured left ankle and was in an air cast. At the time of that report, the Complainant was no longer in custody, but was still being assessed under the Mental Health Act.

The Team

Date and time team dispatched: 09/07/2021 at 7:28 a.m.

Date and time SIU responded: 09/07/2021 at 11:10 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

46-year-old male interviewed; medical records obtained and reviewed

The Complainant was interviewed on September 7, 2021.

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

The civilian witnesses were interviewed on September 9, 2021 and September 16, 2021.

Subject Officials

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

The witness officials were interviewed between September 14, 2021 and September 25, 2021.

The Scene

The scene was neither attended nor forensically assessed.

The incident occurred in a second-floor bedroom of a residence in the area of Main Street and Alma Street, Guelph.

Forensic Evidence

CEW Data

On September 7, 2021, at 9:30 a.m., an SIU forensic investigator attended the Rockwood Detachment of the OPP where WO #3’s CEW had been held, secure, since its use upon the Complainant.

The CEW was given over to the forensic investigator by a staff sergeant, who advised that the CEW did not contain any spent cartridges - they had been discarded.

A download of the CEW data revealed a five second trigger activity record beginning on September 5, 2021, at 4:03:28 p.m.[1]

Video/Audio/Photographic Evidence[2]

Police Communication Recordings

Requested on September 8, 2021, and received in the SIU Central Registry on September 10, 2021, what follows is a summary of the audio communications for the event.

Complainant
On September 5, 2021, at 1:38 p.m., CW #1 called the OPP Communications Centre from the telephone hung outside the Rockwood Detachment and asked for police assistance in removing her boyfriend, the Complainant, from her home because the Complainant had refused to leave. CW #1 had taken her daughter to her mother’s house, a place of safety.

Police Radio Transmissions
The radio transmissions began on September 5, 2021, at 1:44 p.m., when WO #1 was dispatched to meet CW #1 at the Rockwood Detachment. Only the first and last transmissions were time-stamped. WO #1 later broadcast she was going to the residence and asked for assistance. The next transmission recorded WO #1, WO #3 and the SO’s arrival at CW #1’s address followed, some time later, by WO #3’s broadcast that a CEW had been deployed and everything was okay. The SO made the final broadcast that he was going to the detachment with an arrested person [now known to be the Complainant], at 3:54 p.m.

Sergeant’s Telephone
There was no time stamp associated with a sergeant’s telephone call to an officer at the Provincial Communications Center reporting that WO #3 had deployed his CEW upon the Complainant after the Complainant had been assaultive towards four police officers. The sergeant reported the Complainant was struck with one probe, in his chest, but the second did not make contact. The CEW deployment had not caused the Complainant to “lock up”, and he was wrestled to the ground. He further reported neither the Complainant nor any of the police officers were injured.

Police Custody Video

The video footage was requested on September 8, 2021, and received in the SIU Central Registry on September 14, 2021.

The custody video contained 11 files, three of which captured the Complainant’s movements in the sally port, the booking hall, and cell six. None of the videos included an audio component.

On September 5, 2021, at 3:47 p.m., a police vehicle pulled into the garage of the Rockwood Detachment and the driver [now known to be WO #2] was joined by two other police officers [now known to be WO #3 and the SO]. A man [now known to be the Complainant] was removed from the rear passenger seat of WO #2’s police vehicle, his hands handcuffed behind his back. The Complainant walked towards the front of the police vehicle and off camera.

At 3:48 p.m., the Complainant and the three police officers entered the view of the booking area camera, and the Complainant sat on the cement bench. Though not audio recorded, the Complainant carried on a conversation through the booking process. At 3:49 p.m., a second female police officer [now known to be WO #1] entered the booking area but left shortly thereafter.

The SO inspected the left side of the Complainant’s face. When required to stand, the Complainant was assisted to his feet and appeared to favour his left foot. When standing, and after being searched, the Complainant used his left hand against the wall to support himself standing.

At 3:58 p.m., the Complainant was taken to cell six. As he walked it was obvious he favoured his left foot. During his time in the cell he moved cautiously and used the sink as a support for himself when he rose to drink water. He otherwise sat, stood, or lay on the bunk.

The Complainant was held in cell six until 4:34 p.m., when paramedics arrived. At 4:54 p.m., after being placed on a stretcher, he was taken from the cell to an ambulance that drove off camera view at 5:02 p.m.

Materials Obtained from Police Service

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

• Arrest Booking Report;
• Computer-assisted Dispatch Event Details;
• Radio Communication Recordings;
• CEW Download Data;
• Booking/Custody Video;
• Civilian Witness List;
• Domestic Violence Risk Management Report;
• General Report;
• Policy - Arrest and Detention;
• Policy - Use of Force;
• Use of Force Training Records – WO #1, WO #2, WO #3 and the SO;
• Policy - Prisoner Care and Control; and
• Notes of WOs.

Materials Obtained from Other Sources

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

• Medical Record – GGH; and
• Cohabitation agreement from CW #1.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and several officers who witnessed the events in question. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the afternoon of September 5, 2021, the Complainant’s estranged partner – CW #1 – attended the OPP’s Rockwood Satellite Office to seek help from the police. The Complainant had failed to vacate her home as directed, and CW #1 was looking to the police for assistance in having him evicted.

Together with CW #1, the SO, joined by WO #1, WO #2 and WO #3, arrived at the residence at about 3:30 p.m. Located at the back of the residence and told he had ten minutes to pack up some belongings and leave, the inebriated Complainant made his way to a second-floor bedroom. As he passed CW #1, who had returned inside to tend to her dogs, the Complainant told her she would never feel safe in the house again. CW #1 reported the threat to WO #1.

WO #1 went up to second-floor bedroom and confronted the Complainant with what he had said to CW #1. WO #2, WO #3 and the SO were in and around the bedroom at the time. Told by WO #1 and WO #3 that he was under arrest for the threat to CW #1, the Complainant refused to turn around and surrender his arms.

WO #3 was the first to engage the Complainant physically. The officer placed his hands on the Complainant and attempted to turn him around. WO #1 and the SO joined WO #3 in attempting to take hold of the Complainant as he struggled against the officers’ efforts. The parties were in a tight space between a bed and dresser. Soon after the fracas began, the SO found himself being pushed back towards a window by the Complainant, who then delivered a backhanded punch to the officer. Seconds later, WO #3 disengaged and deployed his CEW at the Complainant. Only one of the probes penetrated the Complainant’s skin in the torso. At about the same time, the SO punched the left side of the Complainant’s head twice as he was being brought to the floor, after which WO #1, WO #3 and the SO took control of the Complainant’s arms and handcuffed them behind his back.

Following his arrest, the Complainant was taken to the police station where he complained of pain and was transported to hospital. The Complainant was diagnosed with a fractured left ankle.

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 September 5, 2021, the Complainant suffered a serious injury in the course of his arrest by OPP officers in Guelph, Ontario. One of the arresting officers – the SO – was identified as a 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. Finding themselves lawfully on CW #1’s property on her invitation, I am satisfied that the officers were proceeding to lawfully arrest the Complainant for having threatened CW #1 after she reported what the Complainant had told her to WO #1.

With respect to the force brought to bear against the Complainant, namely, two punches by the SO and a CEW discharge by WO #3, I am unable to reasonably conclude that it was unlawful. The Complainant strenuously resisted his arrest. He flailed his arms, grappled with the officers, and struck the SO with a punch before the officers reacted with strikes of their own and the use of a weapon. Given the tight quarters in which the parties found themselves and legitimate concerns about everyone’s safety in the presence of the second-floor window beside which the struggle was occurring, the officers were entitled to act resolutely to bring the altercation to an end as quickly as possible and the Complainant under control. A CEW discharge, which was ineffective in subduing the Complainant, and two quick punches to the head would not appear to have exceeded the remit of authorized force in the circumstances.

In the result, though I accept that the Complainant suffered his injury at some point in the altercation that marked his arrest, there are no reasonable grounds to believe that the officers who engaged with the Complainant, including the SO, comported themselves other than lawfully. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.

Date: December 31, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit