SIU Director’s Report - Case # 21-OCI-316
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Contents:
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.
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.
- 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 a serious injury sustained by a 26-year-old man (the “Complainant”).This report relates to the SIU’s investigation into a serious injury sustained by a 26-year-old man (the “Complainant”).
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 26-year-old man (the “Complainant”).This report relates to the SIU’s investigation into a serious injury sustained by a 26-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 22, 2021, at 12:32 p.m., the Complainant notified the SIU of an injury he had sustained involving the Barrie Police Service (BPS). The Complainant advised he had been arrested by BPS police officers on July 5, 2021, at approximately 3:00 p.m., after which he was lodged in a cell awaiting a bail hearing. The Complainant was acting up and yelling for about eight hours. Three police officers came into his cell to remove his sweater to prevent him from self-harming. The Complainant sat down on the cell bed and held the sweater to his chest, and two of the police officers held him down. The shorter police officer struck the Complainant’s nose with a palm strike and then pushed his finger into the Complainant’s ear hurting his ear canal. At the time, BPS police officers refused to take him to hospital when the Complainant advised he was injured.
Upon the Complainant’s release on July 7, 2021, he attended Royal Victoria Regional Health Centre in Barrie where he was diagnosed with a fractured nose. [1]
The Team
Date and time team dispatched: 09/23/2021 at 7:40 a.m.Date and time SIU responded: 09/23/2021 at 8:18 a.m.
Number of SIU Investigators assigned: 3
Affected Person (aka “Complainant”):
Interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 23, 2021.
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightService Employee Witnesses
SEW #1 Interviewed SEW #2 Interviewed
SEW #3 Interviewed
SEW #4 Interviewed
The service employee witnesses were interviewed on September 29, 2021, and October 1, 2021.
Evidence
The Scene
The scene was a cell at the BPS police. Video/Audio/Photographic Evidence [2]
Booking Video
The video was captured on July 5, 2021, and depicted the following.At 3:54:24 p.m., the Complainant entered the top frame of the camera, walked into the booking area, and was directed by a uniformed police officer to sit on the metal bench in the middle of the room. The metal bench faced the camera. Two uniformed police officers entered the booking area with the Complainant; one stood to his immediate left and the other stood against the wall to the Complainant’s left. The Complainant was presented to SEW #3, who was off-camera to the bottom of the frame.
SEW #3 asked the Complainant if he understood why he was arrested. The Complainant nodded his head and said, “Yep.” SEW #3 asked the Complainant if he wanted to contact counsel and the Complainant said, “Yes.” SEW #3 asked the Complainant if he had any prior injuries or medical illnesses, and the Complainant replied, “I have inflamed kidneys.” SEW #3 asked the Complainant if he had any mental health illnesses they should be aware of, and the Complainant said, “No.”
Cell Video
Video footage of the cell was captured on July 5, 2021, and depicted the following.At 3:55:00 p.m., the Complainant walked in the cell. He wore a black T-shirt, grey fitted sweatpants, black socks, and a blue surgical mask. The cell had a concrete bench on the left side with a partition wall at the end, separating the sink area. There was a section of the video obscured by pixels behind the partition and a sink behind the obscured area.
At 4:03:03 p.m., a hand passed a black-hooded sweatshirt through the cell door to the Complainant, who then put it on. The Complainant paced back and forth, moved his knees up and down, and shadow-boxed.
At 4:06:07 p.m., the Complainant stood up and walked to the cell door. The Complainant paced around the cell for a while, and then sat on the bench. The Complainant spent time on the bench, at the cell door, and pacing around the cell.
At 4:18:30 p.m., the Complainant put his hands through the cell door, and was handcuffed to the front and led out from the cell.
At 4:30:06 p.m., the Complainant entered the cell wearing handcuffs to the front and walked to the sink. The Complainant walked to the cell door, his handcuffs were removed, and he sat on the bench.
At 5:43:00 p.m., the Complainant banged on the door of the cell with the side of his closed fists multiple times, appearing to be shouting. The Complainant alternated from pacing the cell, banging/kicking the cell door, and speaking with someone at the door for an hour.
At 6:30:39 p.m., the Complainant removed his sweatshirt, placed it on the bench, and continued to bang on the cell door, pace back and forth, and shadow-box.
At 6:38:19 p.m., the Complainant picked up his sweater and tied the sleeve around his neck, cinching it tightly. The Complainant wrapped the sweatshirt around in various ways and knelt in front of the sink. The Complainant stood, put the sweatshirt on the bench, walked to the cell door, and appeared to speak to someone outside the cell door. The Complainant picked up the sweatshirt, sat on the bench and held it to his chest.
At 6:39:34 p.m., SEW #3 entered the cell, followed by SEW #2 and the SO. SEW #3 reached for the sweatshirt and the Complainant pulled it away while SEW #2 stood against the wall. The SO attempted to grab the sweatshirt and SEW #3 held the sweatshirt in his right hand and pushed the Complainant back with his left hand. The Complainant slid back and forth on the bench. The SO put his right hand on the Complainant’s upper body as the Complainant slid back against the wall. The Complainant’s head made contact with the wall as he slid back. SEW #3 pulled the sweatshirt free and tossed it behind him to SEW #2.
At 6:39:46 p.m., the SO put his left hand on the Complainant’s head and forced him down sideways onto the bench. The Complainant laid down on his left side, and the SO mounted the Complainant’s torso and held him down. The SO’s back was to the camera and it was not clear where his hands were. SEW #3 stood at the side of the bench and held the Complainant’s legs with his right hand. His left hand was at his side. SEW #2 stood by the side of the bench and did not have any physical contact with the Complainant.
At 6:40:02 p.m., the SO dismounted the Complainant. The SO’s hands released the Complainant’s head area. The SO exited the cell, followed by SEW #2 and SEW #3. The Complainant held the back of his head for a few seconds and then laid down on his back holding his head.
At 6:40:40 p.m., the Complainant sat up, looked at his hand and laid back down on his back. The Complainant began twitching and convulsing.
At 6:42:34 p.m., the Complainant moved his right hand up to his head, stood up, and walked to the cell door.
At 6:45:30 p.m., the Complainant stood up and walked to the cell door.
Throughout the remainder of the video, the Complainant paced, banged on the door, shouted, sat down, and laid down.
As the video footage for the cell was absent audio due to a technical malfunction, video footage for the adjacent cells were obtained and reviewed for July 5, 2021 to ascertain if they captured any audio from the Complainant’s cell. While the audio was difficult to discern owing to echoing effects, the Complainant was heard to say just before the physical altercation, “Beat me up,” as he resisted turning his sweater over to the special constables. Once the officers left the cell, a voice was heard to say from outside the cell, “Don’t play games.”
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the BPS:- Arrest Booking Report;
- Arrest Report;
- 911 Call;
- Custody Video;
- Custody Records;
- Event Details;
- Notes of SEW #1, SEW #2 and SEW #3;
- Procedure - Search of Persons;
- Procedure - Prisoner Care and Control;
- Procedure - Mental Illness, Emotionally Disturbed and Development Disability;
- Procedure - Use of Force; and
- Will say of SEW #4.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Medical Record-Royal Victoria Hospital.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and two special constables present at the time of the events in question, as well as a review of a video recording that captured the incident. 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 July 5, 2021, the Complainant was arrested at his home in Barrie without incident, taken to the police station, and lodged in a cell at about 4:00 p.m. Over the course of the next couple of hours, he variably paced in the cell, shadow-boxed, and banged and kicked at the cell door.
At about 6:40 p.m., the Complainant tied one of the arms of his long sleeve black sweater around his neck. That caught the attention of special constables assigned to monitor the cells that evening – SEW #2 and SEW #3 – who informed the officer-in-charge – the SO. The three decided to attend the Complainant’s cell to remove the sweater.
By the time of the officers arrival at his cell, seconds after he had wrapped the sweater around his neck, the Complainant had removed it and was sitting on the cell bench. Asked by SEW #3, the first to enter the cell, to give him the sweater, the Complainant refused. SEW #2 and the SO entered the cell immediately after SEW #3. SEW #3 grabbed the sweater and unsuccessfully tried to pull it away from the Complainant’s grasp. At about the same time, the SO took hold of the Complainant’s head with both hands and pushed him back against the wall behind the cell bench. The back of the Complainant’s head struck the wall. In the same motion, the sergeant used both hands on the right side of the Complainant’s head to push him flat onto the bench just as SEW #3 yanked the sweater free and gave it to SEW #2. His hands still on the right side of the Complainant’s head, the SO kept him pinned in that position for about 15 seconds, after which he released his hands and exited the cell, the special constables following behind.
The Complainant was released from custody on July 6, 2021. The following day, feeling lethargic, dizzy and nauseous, the Complainant attended hospital and was diagnosed with a concussion.
In the afternoon of July 5, 2021, the Complainant was arrested at his home in Barrie without incident, taken to the police station, and lodged in a cell at about 4:00 p.m. Over the course of the next couple of hours, he variably paced in the cell, shadow-boxed, and banged and kicked at the cell door.
At about 6:40 p.m., the Complainant tied one of the arms of his long sleeve black sweater around his neck. That caught the attention of special constables assigned to monitor the cells that evening – SEW #2 and SEW #3 – who informed the officer-in-charge – the SO. The three decided to attend the Complainant’s cell to remove the sweater.
By the time of the officers arrival at his cell, seconds after he had wrapped the sweater around his neck, the Complainant had removed it and was sitting on the cell bench. Asked by SEW #3, the first to enter the cell, to give him the sweater, the Complainant refused. SEW #2 and the SO entered the cell immediately after SEW #3. SEW #3 grabbed the sweater and unsuccessfully tried to pull it away from the Complainant’s grasp. At about the same time, the SO took hold of the Complainant’s head with both hands and pushed him back against the wall behind the cell bench. The back of the Complainant’s head struck the wall. In the same motion, the sergeant used both hands on the right side of the Complainant’s head to push him flat onto the bench just as SEW #3 yanked the sweater free and gave it to SEW #2. His hands still on the right side of the Complainant’s head, the SO kept him pinned in that position for about 15 seconds, after which he released his hands and exited the cell, the special constables following behind.
The Complainant was released from custody on July 6, 2021. The following day, feeling lethargic, dizzy and nauseous, the Complainant attended hospital and was diagnosed with a concussion.
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.
Analysis and Director's Decision
The Complainant reportedly suffered a concussion on July 5, 2021, while in the custody of the BPS. Notified of the matter on September 22, 2021, the SIU initiated an investigation. [3] The SO was identified as the subject official. The investigation is now concluded. 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 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.
The Complainant was arrested on the strength of an outstanding warrant and was lawfully in the custody of the police at the time of the altercation in the cells. Once in custody, the officers had a duty to ensure his well-being as he was processed according to law. Having observed the Complainant tightly wrap his sweater around his neck, and being rightly concerned that he was intending to harm himself with it, the officers were within their rights in seeking to remove the item from his possession. The question is whether the subject official – the SO – used appropriate force to effect his purpose.
I accept that the force used by the sergeant to push the Complainant against the cell wall and then onto the cell bench was reasonable even if that appears to have caused the Complainant’s concussion when the back of his head struck the wall. The Complainant had refused to surrender his sweater to SEW #3 and then struggled against the officer’s efforts to take it from him. In the circumstances, it would not appear that the SO exceeded the remit of authorized force when he intervened to pin the Complainant, first, against the cell wall and, then, against the cell bench. It was in the process of the sergeant’s interventions that SEW #3 was able to pull the sweater away from the Complainant.
More questionable is what appears to have been the use by the SO of a pressure point compliance technique. As described by the special constables, in the process of wrestling him against the wall and bench, the SO used a finger to apply pressure behind the Complainant’s right ear, presumably in an effort to pain the Complainant into submission. There are two things that cause me some concern about the technique: first, the length of time the hold was seemingly applied; and, second, the fact that the Complainant’s sweater had been removed shortly after he had been pinned to the cell bench. The cell video, while it does not depict what the SO was doing with his hands, establishes that he had the Complainant’s head pinned against the cell bench for about 15 seconds - past the time that the sweater had been removed from the Complainant. In my view, the cumulative effect of this evidence renders the force used by the sergeant close to being excessive force.
In the final analysis, however, I am not satisfied that there is sufficient evidence to reasonably conclude that the SO used unlawful force. Albeit briefly, the Complainant had struggled against the officers’ efforts to remove his sweater and given them reason to believe he would not yield peacefully. It is also apparently the case that the SO did not see the sweater being removed from the Complainant by SEW #3. Even if he had, the officer would have been within his rights in maintaining the Complainant pinned with the pressure point in place for a period of time until he could be sure that he had entirely relented. While the length of time he took to do so may have pushed the boundaries of appropriate force, I am not persuaded on reasonable grounds that the SO transgressed the limits of justifiable force given the latitude afforded officers embroiled in physical confrontations – what is required is a reasonable response, not an exacting one: R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA) ; R v Nasogaluak, [2010] 1 SCR 206.
For the foregoing reasons, there is no basis for proceeding with criminal charges in this case against the subject official, and the file is closed.
Date: January 20, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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.
The Complainant was arrested on the strength of an outstanding warrant and was lawfully in the custody of the police at the time of the altercation in the cells. Once in custody, the officers had a duty to ensure his well-being as he was processed according to law. Having observed the Complainant tightly wrap his sweater around his neck, and being rightly concerned that he was intending to harm himself with it, the officers were within their rights in seeking to remove the item from his possession. The question is whether the subject official – the SO – used appropriate force to effect his purpose.
I accept that the force used by the sergeant to push the Complainant against the cell wall and then onto the cell bench was reasonable even if that appears to have caused the Complainant’s concussion when the back of his head struck the wall. The Complainant had refused to surrender his sweater to SEW #3 and then struggled against the officer’s efforts to take it from him. In the circumstances, it would not appear that the SO exceeded the remit of authorized force when he intervened to pin the Complainant, first, against the cell wall and, then, against the cell bench. It was in the process of the sergeant’s interventions that SEW #3 was able to pull the sweater away from the Complainant.
More questionable is what appears to have been the use by the SO of a pressure point compliance technique. As described by the special constables, in the process of wrestling him against the wall and bench, the SO used a finger to apply pressure behind the Complainant’s right ear, presumably in an effort to pain the Complainant into submission. There are two things that cause me some concern about the technique: first, the length of time the hold was seemingly applied; and, second, the fact that the Complainant’s sweater had been removed shortly after he had been pinned to the cell bench. The cell video, while it does not depict what the SO was doing with his hands, establishes that he had the Complainant’s head pinned against the cell bench for about 15 seconds - past the time that the sweater had been removed from the Complainant. In my view, the cumulative effect of this evidence renders the force used by the sergeant close to being excessive force.
In the final analysis, however, I am not satisfied that there is sufficient evidence to reasonably conclude that the SO used unlawful force. Albeit briefly, the Complainant had struggled against the officers’ efforts to remove his sweater and given them reason to believe he would not yield peacefully. It is also apparently the case that the SO did not see the sweater being removed from the Complainant by SEW #3. Even if he had, the officer would have been within his rights in maintaining the Complainant pinned with the pressure point in place for a period of time until he could be sure that he had entirely relented. While the length of time he took to do so may have pushed the boundaries of appropriate force, I am not persuaded on reasonable grounds that the SO transgressed the limits of justifiable force given the latitude afforded officers embroiled in physical confrontations – what is required is a reasonable response, not an exacting one: R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA) ; R v Nasogaluak, [2010] 1 SCR 206.
For the foregoing reasons, there is no basis for proceeding with criminal charges in this case against the subject official, and the file is closed.
Date: January 20, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) This allegation was not substantiated by the investigation, which instead revealed that the Complainant had been diagnosed with a concussion. [Back to text]
- 2) 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]
- 3) The Complainant was released from custody on July 6, 2021, was diagnosed with the concussion on July 7, 2021, and reported the matter to the SIU on September 22, 2021. [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.