SIU Director’s Report - Case # 21-OCI-349
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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 the serious injury a 42-year-old man (the “Complainant”) suffered.
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 serious injury a 42-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On October 17, 2021, the Guelph Police Service (GPS) notified the SIU of an injury to the Complainant.GPS advised that, at 2:30 a.m., the Complainant was arrested at the Royal Inn and Suites at 106 Carden Street, Guelph. The Complainant resisted arrest, and a struggle occurred which resulted in him suffering injuries requiring medical treatment. He was taken to Guelph General Hospital (GGH). It was believed that he had suffered a fractured orbital bone.
The Team
Date and time team dispatched: 10/17/2021 at 1:15 p.m.Date and time SIU arrived on scene: 10/17/2021 at 2:56 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
42-year-old male; declined to be interviewed; medical records obtained and reviewedCivilian Witnesses (CW)
CW #1 Not interviewed (Provided interview to GPS)CW #2 Not interviewed (Provided interview to GPS)
Subject Officials (SO)
SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right.SO #2 Interviewed, but declined to submit notes, as is the subject official’s legal right.
The subject officials were interviewed on December 6, 2021.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Not interviewed, but notes received and reviewed
The witness officials were interviewed on November 10, 2021.
Evidence
The Scene
The scene was the Royal Inn and Suites at 106 Carden Street, Guelph. The Complainant was arrested in a fourth-floor room, and grounded on the landing of the stairwell between the first and second floors.Video/Audio/Photographic Evidence [1]
911 Call
A 911 call was placed by an employee, CW #1, at the Royal Inn and Suites. The caller indicated that they had a guest [now known to have been the Complainant], who was reported to have assaulted his wife. The caller had tried to call 911 earlier but was receiving a busy signal. The Complainant was reported to have also smashed a phone and the incident occurred in their hotel room. The female victim had come to the front desk with her infant child and asked that the police be called. All three parties were reported to be back in their hotel room.
GPS Radio Communications
At 2:12:13 a.m., on October 17, 2021, GPS communications called for two units [known to be SO #1 and WO #1] to respond to a domestic dispute at the Royal Hotel. An employee, CW #1, reported that a woman had been assaulted by her boyfriend, the Complainant, while holding her infant child in her arms. All three parties had returned to their room. The Complainant was believed to have been drinking.At 2:15:48 a.m., SO #2 volunteered to assist with the call. GPS communications relayed background information on the Complainant, including that he was on probation and had a history of violence.
At 2:33:24 a.m., SO #1 advised that they had one party in custody for assault police. SO #1 advised that he was heading to the GPS headquarters with the Complainant, and that WO #1 and SO #2 were following.
Video Footage from 106 Carden Street, Guelph
The recording camera system at the hotel had operational cameras with relevant information. The time/date stamp on the system was checked and found to have the correct date, but the time was found to be 29 minutes fast. The recordings were in colour with no audio.On October 17, 2021 at 2:52 a.m., two Ford Explorer marked GPS vehicles arrive westbound on Carden Street and stop behind a Guelph Fire Service vehicle that is parked in front of the hotel. Two male uniform GPS police officers, SO #1 and WO #1, exit the police cruisers, and meet a third uniform GPS member who has arrived from the east - SO #2. All three police officers enter the hotel via the front door.
At 2:54:06 a.m., SO #2, WO #1 and SO #1 can be seen walking up the staircase to the fourth-floor and entering the hallway marked as access to the fourth-floor. They can be seen entering the fourth-floor hallway and walking to the location of the Complainant’s room.
At 2:56:36 a.m., WO #1 exits the fourth-floor hallway and goes down the stairs towards the ground floor. WO #1 comes back up the stairs and re-enters the fourth-floor hallway. A white male – the Complainant – is escorted into the hallway by SO #2 and SO #1, and is pressed face first up against the wall with his hands handcuffed behind his back, after which a search is conducted of his person. The Complainant appears very upset and is focusing his attention on SO #2. SO #2 places his right hand on the left jaw of the Complainant and can be seen directing the Complainant’s face away from looking directly back at him. The Complainant is eventually led from the corridor. He is escorted with his hands handcuffed behind his back and walking forward, out of the fourth-floor hallway and to the stairs. SO #2 has a hold of his right arm at the wrist with his left hand. SO #1 is on the left side of the Complainant and has his left hand on the Complainant’s left shoulder and his right hand has a hold of the Complainant’s left wrist.
The Complainant can be seen turning his head toward SO #2 and moving his head towards SO #2’s face. The three do not stop and there is no obvious reaction from SO #2. The three can be seen to be still descending the stairs at the third-floor landing. WO #1 runs out of the fourth-floor hallway and descends the stairs towards the lobby. All three police officers exit the front door of the hotel. SO #2 and SO #1 are escorting the Complainant, who is dressed in a hoodie and track pants, and is handcuffed with his hands behind his back, walking backwards. SO #1 has a hold of the Complainant’s right arm and SO #2, his left. WO #1 is walking behind the other two. The Complainant is placed in the rear passenger side of SO #1’s vehicle.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from GPS between October 25, 2021 and December 6, 2021:- Policy – Domestic Violence;
- Crown Brief Synopsis;
- Custody Detention Report;
- Computer-assisted Dispatch Details;
- Notes-WO #3;
- Notes-WO #1;
- Notes-WO #2;
- Communications Recordings;
- Witness Statement of CW #2; and
- Witness Statement of CW #1.
Materials Obtained from Other Sources
The SIU received the following records from other sources: - The Complainant’s Medical Records – GGH; and
- Video footage from 106 Carden Street, Guelph.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with SO #1 and SO #2. The Complainant chose not to participate in the SIU investigation.
In the early morning of October 17, 2021, SO #1 and SO #2 were among the officers who responded to a hotel room at 106 Carden Street. An employee had called 911 to report that the female occupant of the unit had told her she had just been assaulted by her partner - the Complainant - in the room.
The officers were invited into the room upon their arrival by the female occupant and advised the Complainant that he was under arrest for assault. The Complainant was belligerent and postured aggressively for a moment but ultimately submitted to his arrest in the hallway outside the unit. He was handcuffed behind his back and led by SO #2 and SO #1 down the hallway toward the fourth-floor stairwell.
While descending the stairs, the Complainant spit in SO #2’s face. The officer advised SO #1 what the Complainant had done and pushed him against the wall in the stairwell landing between the first and second floors. SO #1 proceeded to grab hold of one of the Complainant’s arms and take him to the floor. The Complainant was pinned to the floor for a period before the officers, with the help of WO #1 arriving at the scene, stood him up. The Complainant was then walked backwards to SO #1’s cruiser and placed in the rear seat. He had a swollen right eye, and was bleeding from the nose and lip.
At the police station, WO #2 took note of the Complainant’s facial injuries and had him sent to hospital for examination. The Complainant was diagnosed with a fractured right orbital bone.
In the early morning of October 17, 2021, SO #1 and SO #2 were among the officers who responded to a hotel room at 106 Carden Street. An employee had called 911 to report that the female occupant of the unit had told her she had just been assaulted by her partner - the Complainant - in the room.
The officers were invited into the room upon their arrival by the female occupant and advised the Complainant that he was under arrest for assault. The Complainant was belligerent and postured aggressively for a moment but ultimately submitted to his arrest in the hallway outside the unit. He was handcuffed behind his back and led by SO #2 and SO #1 down the hallway toward the fourth-floor stairwell.
While descending the stairs, the Complainant spit in SO #2’s face. The officer advised SO #1 what the Complainant had done and pushed him against the wall in the stairwell landing between the first and second floors. SO #1 proceeded to grab hold of one of the Complainant’s arms and take him to the floor. The Complainant was pinned to the floor for a period before the officers, with the help of WO #1 arriving at the scene, stood him up. The Complainant was then walked backwards to SO #1’s cruiser and placed in the rear seat. He had a swollen right eye, and was bleeding from the nose and lip.
At the police station, WO #2 took note of the Complainant’s facial injuries and had him sent to hospital for examination. The Complainant was diagnosed with a fractured right orbital bone.
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 was seriously injured while in the custody of police officers following his arrest on October 17, 2021 in Guelph. The two arresting police officers – SO #1 and SO #2 – were identified as subject officials for purposes of the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official 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 by law.
I am satisfied that the Complainant was lawfully arrested by SO #1 and SO #2. Given what the officers knew via information they were provided on dispatch to the scene, and what they ascertained directly after speaking with the female occupant of the room, there were sufficient grounds to take the Complainant into custody for assault. Once in lawful custody, the officers were entitled to take reasonable steps to control the Complainant’s movements to ensure his safety as well as their own.
I am further satisfied that the force used by the officers in the stairwell, namely, a takedown, was legally justified. Whether intentional or the inadvertent result of his agitation, a bellicose Complainant repeatedly spat in SO #2’s direction and was told to stop doing so. When the Complainant continued with his behaviour and spat in SO #2’s face, the officers were entitled to resort to a measure of force to prevent the continuation of what was, in effect, an assault by the Complainant. A takedown in these circumstances would appear to have been a rational and proportionate response to the situation at hand as it would immediately neutralize the Complainant without the need for strikes of any nature or the use of weapons.
In the result, while I accept that the Complainant’s orbital bone was fractured when he was forced to the ground by SO #2 and SO #1, I am unable to reasonably conclude that his injury was attributable to any unlawful conduct on the part of the officers. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
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.
I am satisfied that the Complainant was lawfully arrested by SO #1 and SO #2. Given what the officers knew via information they were provided on dispatch to the scene, and what they ascertained directly after speaking with the female occupant of the room, there were sufficient grounds to take the Complainant into custody for assault. Once in lawful custody, the officers were entitled to take reasonable steps to control the Complainant’s movements to ensure his safety as well as their own.
I am further satisfied that the force used by the officers in the stairwell, namely, a takedown, was legally justified. Whether intentional or the inadvertent result of his agitation, a bellicose Complainant repeatedly spat in SO #2’s direction and was told to stop doing so. When the Complainant continued with his behaviour and spat in SO #2’s face, the officers were entitled to resort to a measure of force to prevent the continuation of what was, in effect, an assault by the Complainant. A takedown in these circumstances would appear to have been a rational and proportionate response to the situation at hand as it would immediately neutralize the Complainant without the need for strikes of any nature or the use of weapons.
In the result, while I accept that the Complainant’s orbital bone was fractured when he was forced to the ground by SO #2 and SO #1, I am unable to reasonably conclude that his injury was attributable to any unlawful conduct on the part of the officers. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
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.