SIU Director’s Report - Case # 21-OCI-350
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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 45-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 45-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On October 18, 2021, at 9:03 a.m., the Cobourg Police Service (CPS) notified the SIU of an injury to the Complainant. The CPS advised that on October 17, 2021, at 11:42 p.m., the Complainant was arrested at his residence for domestic assault. He resisted arrest and struggled with officers. He complained of injury and was taken to the Northumberland Hills Hospital (NHH), where he was diagnosed with a non-displaced left elbow fracture. The Complainant was subsequently released from both NHH and CPS the morning of October 18, 2021.
The Team
Date and time team dispatched: 10/18/2021 at 10:19 a.m.Date and time SIU responded: 10/18/2021 at 2:35 p.m.
Number of SIU Investigators assigned: 4
Affected Person (aka “Complainant”):
45-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on October 19, 2021.
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on October 21, 2021.
Service Employee Witnesses
SEW Interviewed The service employee witness was interviewed on October 21, 2021.
Evidence
The Scene
The incident occurred in the living room of an apartment on University Avenue West. Video/Audio/Photographic Evidence [1]
On November 10, 2021, the CPS provided the SIU a copy of all police communications recordings related to the incident. The following is a summary of the recordings.
Telephone
At 11:23:00 p.m., a woman called 911 and reported that she and her husband, the Complainant, had been drinking and arguing. They had not gotten physical yet, but she needed him out. The Complainant did not know that she had called the police as she was hiding in the bathroom.At 11:28:18 p.m., loud background noise was heard. A dispatcher asked the woman what the noise was, and she said she had left the apartment and would meet the officers outside.
Radio
Between 11:26:00 p.m. and 11:26:17 p.m., WO #2 and the SO were dispatched for a domestic disturbance. The dispatcher indicated that the woman was on the phone. She was in the bathroom, both parties had been drinking, and the dispute was only verbal at the time but escalating. The woman asked that officers not respond with lights and sirens, and noted that the Complainant was in the living room, and no weapons and drugs were involved.At 11:29:00 p.m., the dispatcher updated the SO and WO #2 with information that the woman was leaving the apartment and would meet them in front.
At 11:42:05 p.m., either WO #2 or the SO said they were attempting to effect an arrest, but the subject was resisting.
At 11:42:11 p.m., the dispatcher requested that another police officer assist.
At 11:43:03 p.m., either WO #2 or the SO indicated that all was in order with one person in custody.
At 11:44:49 p.m., the other officer arrived.
At 12:08:22 a.m., the other officer was en route to the police station for booking.
At 12:08:47 a.m., WO #2 escorted the prisoner to the police station and provided a start mileage.
At 12:10:41 a.m., WO #2 returned to the police station and provided an end mileage.
Custody Video
On October 26, 2021, the CPS provided a copy of the police custody video footage.Sally Port
Between 12:10:55 a.m. and 12:11:33 a.m., a marked police cruiser pulled into a sally port.
Between 12:11:57 a.m. and 12:12:48 a.m., WO #2 was at the rear passenger side door, and the SO was at the entrance door. The Complainant was escorted and supported by WO #2, followed by the SO.
At 12:45:29 a.m., two paramedics with a stretcher entered the sally port.
At 12:49:35 a.m., the Complainant, handcuffed to the front, was escorted by the SEW back into the sally port.
Booking Area
Between 12:10:30 a.m. and 12:13:03 a.m., WO #1 attended the booking desk. The Complainant was brought into the booking area and provided a stool to sit on.
At 12:13:07 a.m., the Complainant looked at his left elbow and said, “And, fuck look at that.”
Between 12:13:10 a.m. and 12:13:39 a.m., WO #2 said, “What have you got, a welt?” The Complainant was rubbing his left elbow and said, “Aw, fuck.” The Complainant complained about one cuff being “really tight”. The handcuffs were removed by WO #2.
At 12:16:27 a.m., the Complainant apologized to the police officers.
Between 12:16:53 a.m. and 12:19:00 a.m., the Complainant was looking at and rubbing his left elbow. The Complainant was asked about injuries or illnesses, and said, “None.” The Complainant then said, “And, my elbow is killing me, my left elbow.” WO #2 asked the Complainant if he would like someone to look at it and the Complainant responded, “Well, it’s fine.”
At 12:19:59 a.m., the Complainant apologized again and said, “I invited the cops in my house and then I got verbal… well, I didn’t get… they made sure I didn’t get too much.”
At 12:45:40 a.m., WO #1 retrieved the cell keys and escorted the paramedics to a cell. He told paramedics the Complainant had an injury to an elbow.
Between 12:46:17 a.m. and 12:47:22 a.m., a paramedic asked the Complainant if he wanted to go to the hospital to get his arm checked out.
At 12:48:36 a.m. and 12:49:35 a.m., the Complainant agreed to go to the hospital. He was supported by the SEW and walked out the cell.
Hall Cells
At 12:23:47 a.m., the Complainant was escorted and supported by WO #2 in the cell area.
At 12:23:53 a.m., the Complainant, the SO and WO #2 left the cell area.
Between 12:45:55 a.m. and 12:46:00 a.m., WO #1 entered the hall to the cell area followed by two paramedics and the SEW. WO #1 was speaking with the paramedics and pointing to the Complainant’s left elbow area.
At 12:49:18 a.m., the Complainant was visibly limping following the two paramedics into the hall of the cell area. The Complainant was being supported by the SEW, followed by WO #1.
Cell Video
At 12:24:16 a.m., the Complainant walked into a cell.
At 12:45:40 a.m., two paramedics attended the cell.
At 12:49:35 a.m., the Complainant, supported by the SEW, walked out of the cell.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the CPS:- Occurrence Summary;
- Custody Records;
- Crown Brief Synopsis;
- Communications recordings;
- Custody Video;
- Undertaking;
- Event Details;
- Notes of WO #1 and the SEW;
- Policy-Use of Force; and
- Policy-Arrest.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the EMS and NHH: - Ambulance Call Report-Northumberland County; and
- Medical Record-NHH.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and an officer who participated in his arrest – WO #2. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
At about 11:20 p.m. of October 17, 2021, the Complainant’s partner called police from her apartment on University Avenue West to request that police officers attend and remove the Complainant. The two had been drinking and had started to quarrel, and she had become concerned for her personal safety. The SO and WO #2 were dispatched to the address.
Arriving on scene at about 11:30 p.m., the SO and WO #2 met with the Complainant’s partner in the vestibule at the back entrance of the building. She explained that she and the Complainant had been arguing, but also mentioned that the Complainant had choked her at one point. She wanted him out of the apartment. The officers made their way to the Complainant’s apartment, knocked on the door and were invited inside by the Complainant.
Advised by the SO that he was under arrest for assaulting his partner, the Complainant became confrontational and tried to pull away as the officers took hold of his arms. With a grip on the Complainant’s left arm, the SO pulled him to the ground. The Complainant was placed in a prone position and had his arms wrestled by the officers behind his back, after which he was handcuffed. He suffered a fracture and/or damage to cartilage/tendons of the left arm in the process.
Following his arrest, the Complainant was transported to the station. The Complainant was subsequently taken to hospital and diagnosed with his injury.
At about 11:20 p.m. of October 17, 2021, the Complainant’s partner called police from her apartment on University Avenue West to request that police officers attend and remove the Complainant. The two had been drinking and had started to quarrel, and she had become concerned for her personal safety. The SO and WO #2 were dispatched to the address.
Arriving on scene at about 11:30 p.m., the SO and WO #2 met with the Complainant’s partner in the vestibule at the back entrance of the building. She explained that she and the Complainant had been arguing, but also mentioned that the Complainant had choked her at one point. She wanted him out of the apartment. The officers made their way to the Complainant’s apartment, knocked on the door and were invited inside by the Complainant.
Advised by the SO that he was under arrest for assaulting his partner, the Complainant became confrontational and tried to pull away as the officers took hold of his arms. With a grip on the Complainant’s left arm, the SO pulled him to the ground. The Complainant was placed in a prone position and had his arms wrestled by the officers behind his back, after which he was handcuffed. He suffered a fracture and/or damage to cartilage/tendons of the left arm in the process.
Following his arrest, the Complainant was transported to the station. The Complainant was subsequently taken to hospital and diagnosed with his injury.
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 suffered a serious injury in the course of his arrest by CPS officers on October 17, 2021. One of the arresting officers – the SO – was identified as a subject official for purposes of the ensuing SIU investigation, which 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 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.
Based on their conversation with the Complainant’s girlfriend at the scene and the invitation she and the Complainant gave the officers to enter the apartment, I am satisfied that the SO and WO #2 were proceeding lawfully to arrest the Complainant for assault at the time of their physical altercation.
I am also satisfied that the force used by the officers was reasonably necessary in aid of the Complainant’s arrest. The Complainant struggled against the officers’ efforts to secure him in handcuffs. While still on his feet, the Complainant attempted to pull his arms away and made it difficult for the SO and WO #2 to position his arms behind his back. It would appear that a takedown, which on the evidence was controlled and not unduly forceful, was a tactic reasonably available to the officers in the circumstances. With the Complainant in a position of relative disadvantage on the floor, the officers could expect to more easily manage any further resistance. While on the ground, the Complainant continued to refuse to release his arms to be handcuffed. Here again, I am satisfied that the officers acted reasonably in using their manpower to force the Complainant’s arms behind his back. No strikes of any kind were delivered by the officers, nor is there evidence that either of the officers wrenched the Complainant’s arms more than was necessary to bring his arms behind his back.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than lawfully in the course of his engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: February 14, 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 by law.
Based on their conversation with the Complainant’s girlfriend at the scene and the invitation she and the Complainant gave the officers to enter the apartment, I am satisfied that the SO and WO #2 were proceeding lawfully to arrest the Complainant for assault at the time of their physical altercation.
I am also satisfied that the force used by the officers was reasonably necessary in aid of the Complainant’s arrest. The Complainant struggled against the officers’ efforts to secure him in handcuffs. While still on his feet, the Complainant attempted to pull his arms away and made it difficult for the SO and WO #2 to position his arms behind his back. It would appear that a takedown, which on the evidence was controlled and not unduly forceful, was a tactic reasonably available to the officers in the circumstances. With the Complainant in a position of relative disadvantage on the floor, the officers could expect to more easily manage any further resistance. While on the ground, the Complainant continued to refuse to release his arms to be handcuffed. Here again, I am satisfied that the officers acted reasonably in using their manpower to force the Complainant’s arms behind his back. No strikes of any kind were delivered by the officers, nor is there evidence that either of the officers wrenched the Complainant’s arms more than was necessary to bring his arms behind his back.
For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than lawfully in the course of his engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: February 14, 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]
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.