SIU Director’s Report - Case # 21-OCD-306

Warning:

This page contains graphic content that can shock, offend and upset.

Mandate of the SIU

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.

Information Restrictions

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: 
  • The name of, and any information identifying, a subject official, witness official, civilian witness or affected person. 
  • Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault. 
  • Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person. 
  • Information that discloses investigative techniques or procedures.  
  • Information, the release of which is prohibited or restricted by law.  
  • Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published. 

Freedom of Information and Protection of Privacy Act

Pursuant to section14 (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following: 
  • Confidential investigative techniques and procedures used by law enforcement agencies; and 
  • Information that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 
  •  The names of persons, including civilian witnesses, and subject and witness officials; 
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation. 

Personal Health Information Protection Act, 2004

Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may also have been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

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 death of a 53-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 14, 2021 at 1:02 p.m., the Chatham-Kent Police Service (CKPS) notified the SIU of the following.
On September 8, 2021 at 2:08 p.m., CKPS officers were called to a convenience store in Chatham regarding an unwanted man. The Complainant was arrested, and taken to the CKPS station and then to the Chatham Kent Health Alliance hospital for mental health issues. The Complainant was formed under the authority of the Mental Health Act (MHA). On September 14, 2021, CKPS learned that the Complainant had suffered fractured ribs and undergone surgery for a punctured lung.

The Team

Date and time team dispatched: 09/14/2021 at 4:26 p.m.

Date and time SIU arrived on scene: 09/15/2021 at 9:00 a.m.

Number of SIU Investigators assigned: 2
 
Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

53-year-old male, deceased

Civilian Witnesses

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

The civilian witnesses were interviewed on September 16, 2021, and September 22, 2021.

Subject Officials

SO #1 Declined interview and to provide notes, as is the subject official’s legal right
SO #2 Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials

WO Interviewed

The witness official was interviewed on September 20, 2021.

Evidence

The Scene

At the time of intake, the incident scene was believed to be the interior and exterior of Business #2, a store on Charing Cross Road, Chatham.

As the case progressed, it was learned that the injuries to the Complainant did not occur at Business #2, but rather at Business #1, a store on Queen Street, Chatham.

Video/Audio/Photographic Evidence [1]

Business #2 Video

Video from Business #2 was received by an SIU investigator on September 16, 2021 at 2:10 p.m.

Th following is a summary of the interior and exterior footage for September 8, 2021.

At 2:37 p.m., the Complainant entered the store followed by SO #1 and SO #2. The Complainant walked around to the employee side of the counter and towards CW #2. CW #2 put his hands up to stop the Complainant. The Complainant went to the floor out of sight.

SO #2 walked towards CW #2’s location. CW #2 left the area behind the counter leaving SO #2 and SO #1 standing behind the counter talking to the Complainant. SO #2 bent down and went out of sight behind the counter. SO #1 was leaning against the counter. SO #1 bent down and went out of sight behind the counter. As SO #2 stood up a glass display fell to the floor. SO #1 appeared to be grabbing the Complainant and dragging him. SO #2 bent down and went out of sight behind the counter.

His hands handcuffed behind his back, both CKPS officers dragged the Complainant from behind the counter. The Complainant was not putting weight on his legs.

The Complainant was taken outside to a CKPS SUV, and was seen by paramedics. [2]


CKPS Custody Video

On September 16, 2021, at 2:45 p.m., CKPS provided the SIU with video footage of the booking room for September 8, 2021.

The Complainant was brought into the booking room before the WO. The Complainant was paranoid he would be killed by all the CKPS officers present. Soft-hand controls were used to hold the Complainant for EMS. The officers recognized the Complainant’s head was bleeding, and brought in a mattress to protect him from hitting his head on the ground.


Communications Recordings and 911 Call

The SIU received the police communications recordings and the 911 call from CKPS on September 14, 2021, at 2:32 p.m.

The September 8, 2021 recordings indicated that, at 2:05 p.m., CW #2 from Business #2 called 911 reporting that the Complainant had entered his store saying someone was chasing him. CW #2 saw no weapons and the Complainant was on foot.

At 2:43 p.m., SO #2 arrived. She subsequently contacted dispatch asking for EMS as the Complainant had an open wound on the back of his head.
 

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the CKPS:
  • Arrest Report;
  • Business #1 - General Occurrence Report;
  • Video from Business #1;
  • Business #2 - Call History;
  • Business #2 - General Report;
  • Notes and Will Say of the WO;
  • Witness Statement – WO #2;
  • Communication recordings; and
  • Custody video.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:
  • Video from Business #2.

Incident Narrative

The material events in question are clear on the evidence gathered by the SIU, which included a review of video footage that largely captured the events in question. As was their legal right, neither subject official chose to interview with the SIU or authorize the release of their notes.

In the afternoon of September 8, 2021, the CKPS received a 911 call from Business #2 at Charing Cross Road, Chatham. The caller reported that a male had entered the store saying that someone was chasing him. Police officers were dispatched to the scene.

SO #2 was the first officer to arrive on scene, at about 2:45 p.m., followed shortly by SO #1. Inside the store, the officers tried speaking with the Complainant but were unable to engage him in any constructive dialogue. The Complainant was paranoic and spoke about someone trying to kill him. [3]

The cashier told the police officer he wanted the Complainant removed from the property. The Complainant refused to leave. At one point, the Complainant walked behind the counter, collapsed on the floor, and took hold of the cashier’s leg. The cashier was able to free himself and step aside as the officers tried to coax the Complainant up. When the Complainant refused to stand, the officers pulled him out from behind the counter, handcuffed his arms behind his back, and dragged him out of the store.

The Complainant was examined by paramedics at the scene, cleared medically, and transported back to the station. In the course of his booking, the WO recognized that the Complainant was in mental health crisis and arranged for the attendance of paramedics.

The Complainant was transported to hospital and admitted for psychiatric examination.

On September 12, 2021, while still in hospital, the Complainant asked to have his ribs examined as he had been in a fight before his admission. X-rays taken on September 13, 2021 revealed multiple rib fractures and a pneumothorax. Arrangements were made to insert a chest tube, which was done on September 14, 2021. Further imaging depicted extensive bilateral rib fractures resulting in flail chest. The Complainant was airlifted to London Health Sciences Centre – Victoria Hospital in London on September 15, 2021. He died that same day at 9:45 p.m.

According to the pathologist at autopsy, the medical evidence suggested that the Complainant’s death was attributable to acute pneumonia with complications due to multiple rib fractures.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(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,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Section 2(1), Trespass to Property Act -- Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Section 9 (1), Trespass to Property Act – Arrest without warrant on premises

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

Analysis and Director's Decision

On September 15, 2021, the Complainant died in hospital in connection with injuries he had sustained on September 8, 2021. As the Complainant had been arrested that date by CKPS officers, the SIU was notified and initiated an investigation. 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 officer committed a criminal offence in relation to the Complainant’s death.

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. I am satisfied that the Complainant refused to leave the premises of Business #2 as directed, even making his way behind the counter where he grabbed the cashier’s leg. In the circumstances, when the officers were unable to calm the Complainant, and he took hold of the cashier’s leg, the officers were within their rights in taking him into custody under section 9(1) of the Trespass to Property Act.

As for the force used by the officers, there is no evidence to suggest that it caused or contributed to the Complainant’s death, or that it was otherwise unlawful. The evidence reveals that the Complainant was resisting his arrest in the store, refusing to get up from the floor and kicking at one or both of the officers as they attempted to handcuff them. On this record, I am unable to reasonably conclude that a single elbow strike (delivered as the officers struggled to handcuff his arms), and the officers’ efforts in wrestling control of his arms, were more than was necessary to subdue the Complainant and effect his arrest. Nor does the medical evidence establish that this force resulted in the serious physical injuries that ultimately resulted in the Complainant’s death. On the contrary, the overriding weight of the evidence, including the medical evidence and utterances made by the Complainant while in hospital, strongly suggests that the Complainant’s injuries were inflicted prior to his interaction with SO #1 and SO #2 on the day in question.

I am also satisfied that the officers who engaged with the Complainant comported themselves with due care and regard for his well-being. Following his arrest at Business #2, the subject officials arranged for paramedics to examine the Complainant. It was only after he was cleared by the paramedics that the Complainant was taken to the police station. The Complainant was there for only a short period before the officer in charge of his booking became concerned for his mental health and had him taken to hospital by paramedics.

For the foregoing reasons, there are no reasonable grounds to believe that either subject official used unlawful force or transgressed the limits of care prescribed by the criminal law 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: January 12, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
  • 2) The Complainant was cleared and released back to CKPS custody for transport to CKPS cells. [Back to text]
  • 3) Earlier that afternoon, the Complainant had attended Business #1, a store at Queen Street, Chatham. While there, he was involved in an altercation with another male outside the business. [Back to text]

Note:

The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.