SIU Director’s Report - Case # 21-PCI-385
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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 25-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 25-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On November 10, 2021, at about 3:15 p.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.On November 10, 2021, at approximately 3:45 a.m., OPP officers attended an address on Spruce Street in Tiny Township for a family dispute. The Complainant assaulted both attending police officers. The police officers deployed their Conducted Energy Weapons (CEWs) without effect. The Complainant fled the residence and ran into a nearby wooded area.
A canine (K-9) unit – police dog and police dog handler - was deployed to the area and the Complainant was arrested at approximately 5:00 a.m.
The Complainant had sustained an injury during the events and was taken to the Georgian Bay General Hospital (GBGH) where he was assessed with a fractured orbital bone. He was being held for 72 hours under the Mental Health Act. Assault police charges were pending.
The Team
Date and time team dispatched: 11/10/2021 at 3:50 p.m. Date and time SIU arrived on scene: 11/10/2021 at 4:30 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
25-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on November 24, 2021.
Subject Officials (SO)
SO #1 Interviewed, and notes received and reviewedSO #2 Interviewed, and notes received and reviewed
The subject officials were interviewed between January 20 and 28, 2022.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Not interviewed, but notes received and reviewed
WO #8 Not interviewed, but notes received and reviewed
WO #9 Interviewed
The witness officials were interviewed between December 16, 2021 and January 21, 2022.
Evidence
The Scene
The scene was located at an address on Spruce Street, Tiny Township. The address contained a house with a garage. The first interaction between the Complainant and police officers took place in the garage area. The second interaction took place on the roadway in front of the house.
SIU investigators did not examine or attend the scene.
Forensic Evidence
CEW Data
On November 12, 2021, at 12:20 p.m., a SIU Forensic Investigator attended the OPP Midland Detachment. Two Tasers - Model X2 - assigned to WO #1 and SO #1 were examined, photographed, test fired and downloaded. Both CEWs were determined to be functioning properly.
Taser – WO #1
Seq # Date Event Duration
(seconds)
5061 10 Nov 2021 03:00:31 a.m. [1] Armed
5062 10 Nov 2021 03:00:33 a.m. Trigger 5
5063 10 Nov 2021 03:04:20 a.m. Safe 229
Taser – SO #1
Seq # Date Event Duration
(seconds)
411 10 Nov 2021 02:58:23 a.m. Armed
412 10 Nov 2021 02:58:25 a.m. Trigger 5
413 10 Nov 2021 02:58:31 a.m. Safe 8
414 10 Nov 2021 02:58:32 a.m. Armed
415 10 Nov 2021 02:58:35 a.m. Trigger 5
416 10 Nov 2021 02:59:34 a.m. Safe 62
Video/Audio/Photographic Evidence [2]
OPP Communication Recordings
911 Call
On November 10, 2021, at 2:25 a.m., a man called 911 requesting that police attend his residence as he had been attacked by his grandson, the Complainant. The 911 operator asked the caller if he was injured, and he replied that he had some small cuts on his arms and redness around his neck from being pinned to the wall by the Complainant. The caller was asked if he needed an ambulance, and he advised he did not. He indicated that the Complainant had been drinking and was very aggressive, violent, and talking to himself. He stated that he had recently taken the Complainant to see the family doctor to get him help for his mental health issues; however, nothing had been put into place. The caller stated that he and his wife were afraid of the Complainant, and were locked in their bedroom. He further advised that the Complainant needed to be removed from the home and that he did not feel safe releasing the line. The 911 operator remained on the line with the caller. The man advised that the Complainant had gone into the garage. The caller was advised by the 911 operator that the responding police officers had arrived. The caller confirmed their arrival and the line was released at 2:55 a.m.
Dispatch-Radio
At 2:27 a.m., WO #1 and SO #1 were dispatched to a residence on Spruce Street regarding a family dispute. A man had called advising that he had been attacked by his grandson, the Complainant. WO #1 and SO #1 advised that they were arriving, and that they were experiencing communication issues with their portable radios.
WO #1 contacted dispatch by phone requesting “back up” and further advised that their radios were not functioning. He noted that CEWs had been deployed and the Complainant had fled on foot.
WO #1 requested that a K-9 unit and Emergency Response Team (ERT) members be dispatched to assist.
WO #2 advised that units were attending to set up a perimeter.
WO #4 (K-9) and ERT members SO #2 and WO #5 arrived on scene and a K-9 track was initiated.
An unidentified OPP officer advised dispatch that they had the Complainant in custody and that he was being transported to hospital by WO #3.
Dispatch-Telephone
At 2:55 a.m., WO #1 contacted OPP dispatch by cell phone advising that he and SO #1 had been assaulted by the Complainant and that their portable radios were not functioning. He indicated that their CEWs had been deployed, the Complainant fled on foot, and they needed back-up.
OPP dispatch contacted Emergency Medical Services (EMS) requesting they attend as a precaution as both WO #1 and SO #1 had been assaulted.
Materials Obtained from Police Service
Upon request, the SIU received the following materials and documents from the OPP between November 22, 2021 and January 25, 2022:
Materials Obtained from Other Sources
The SIU received the following records from other sources on December 7, 2021:
5061 10 Nov 2021 03:00:31 a.m. [1] Armed
5062 10 Nov 2021 03:00:33 a.m. Trigger 5
5063 10 Nov 2021 03:04:20 a.m. Safe 229
Taser – SO #1
Seq # Date Event Duration
(seconds)
411 10 Nov 2021 02:58:23 a.m. Armed
412 10 Nov 2021 02:58:25 a.m. Trigger 5
413 10 Nov 2021 02:58:31 a.m. Safe 8
414 10 Nov 2021 02:58:32 a.m. Armed
415 10 Nov 2021 02:58:35 a.m. Trigger 5
416 10 Nov 2021 02:59:34 a.m. Safe 62
Video/Audio/Photographic Evidence [2]
OPP Communication Recordings
911 CallOn November 10, 2021, at 2:25 a.m., a man called 911 requesting that police attend his residence as he had been attacked by his grandson, the Complainant. The 911 operator asked the caller if he was injured, and he replied that he had some small cuts on his arms and redness around his neck from being pinned to the wall by the Complainant. The caller was asked if he needed an ambulance, and he advised he did not. He indicated that the Complainant had been drinking and was very aggressive, violent, and talking to himself. He stated that he had recently taken the Complainant to see the family doctor to get him help for his mental health issues; however, nothing had been put into place. The caller stated that he and his wife were afraid of the Complainant, and were locked in their bedroom. He further advised that the Complainant needed to be removed from the home and that he did not feel safe releasing the line. The 911 operator remained on the line with the caller. The man advised that the Complainant had gone into the garage. The caller was advised by the 911 operator that the responding police officers had arrived. The caller confirmed their arrival and the line was released at 2:55 a.m.
Dispatch-Radio
At 2:27 a.m., WO #1 and SO #1 were dispatched to a residence on Spruce Street regarding a family dispute. A man had called advising that he had been attacked by his grandson, the Complainant. WO #1 and SO #1 advised that they were arriving, and that they were experiencing communication issues with their portable radios.
WO #1 contacted dispatch by phone requesting “back up” and further advised that their radios were not functioning. He noted that CEWs had been deployed and the Complainant had fled on foot.
WO #1 requested that a K-9 unit and Emergency Response Team (ERT) members be dispatched to assist.
WO #2 advised that units were attending to set up a perimeter.
WO #4 (K-9) and ERT members SO #2 and WO #5 arrived on scene and a K-9 track was initiated.
An unidentified OPP officer advised dispatch that they had the Complainant in custody and that he was being transported to hospital by WO #3.
Dispatch-Telephone
At 2:55 a.m., WO #1 contacted OPP dispatch by cell phone advising that he and SO #1 had been assaulted by the Complainant and that their portable radios were not functioning. He indicated that their CEWs had been deployed, the Complainant fled on foot, and they needed back-up.
OPP dispatch contacted Emergency Medical Services (EMS) requesting they attend as a precaution as both WO #1 and SO #1 had been assaulted.
Materials Obtained from Police Service
Upon request, the SIU received the following materials and documents from the OPP between November 22, 2021 and January 25, 2022:- Event Details Report;
- Communications Recordings;
- Involved Officials List;
- Notes-SO #1;
- Notes-SO #2;
- Notes-WO #4;
- Notes-WO #6;
- Notes-WO #7;
- Notes-WO #2;
- Notes-WO #8;
- Notes-WO #9;
- Notes-WO #5;
- Notes-WO #3;
- Notes-WO #1;
- Detachment Log on Sheets (November 9 and 10, 2021);
- Initial Disclosure Information for the SIU; and
- Supplementary Occurrence Report.
Materials Obtained from Other Sources
The SIU received the following records from other sources on December 7, 2021: - GBGH – Medical Records.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews of the Complainant, each of the two subject officials – SO #1 and SO #2, and other officers who participated or were present at the time of the Complainant’s arrest.
In the early morning hours of November 10, 2021, OPP officers were dispatched to an address on Spruce Street, Tiny Township, following a call to police from the residence. A man had called 911 seeking help with his grandson – the Complainant – who had reportedly assaulted him. He and his wife were in their bedroom and feared for their safety.
SO #1 arrived at the residence with WO #1 at about 3:00 a.m. The officers spoke with the grandfather, observed what appeared to be fresh injuries on his person, and made their way to the home’s garage where he had indicated his grandson could be found.
The Complainant was drinking and smoking a cigarette in the garage. Asked by the officers to leave the premises, as his grandfather had requested, the Complainant refused to do so. A struggle ensued, joined by SO #1, when WO #1 confronted the Complainant to arrest him. In the course of the altercation, the parties wrestled with each other and exchanged punches. At one point, the officers discharged their CEWs at the Complainant, with no effect. Following a baton strike to the left arm by SO #1, the Complainant fled the garage and made his way into the bush surrounding the property.
WO #2, WO #9, WO #4, with his police dog, and SO #2 and WO #5, the latter two members of an OPP ERT team, arrived at the residence following a call for additional officers by WO #1 and SO #1. At about 4:15 a.m., WO #4 and his dog, with WO #5 and SO #2 in support, started a track of the surrounding area to locate the Complainant.
At about 4:30 a.m., the Complainant emerged from the bush onto Spruce Street in the area of his grandfather’s home to surrender to the police. At their direction, he placed himself prone on the roadway as WO #2, WO #9, WO #1 and SO #1 moved in to take him into custody. The Complainant refused to surrender his arms to be handcuffed prompting another physical altercation. In the course of that struggle, SO #1 kneed the Complainant and punched him in the back, SO #2 punched the back of the Complainant’s head, and WO #5 delivered a kick to one of the Complainant’s legs. The Complainant was ultimately subdued and his arms were handcuffed behind his back.
Following his arrest, the Complainant was taken from the scene to hospital where he was diagnosed with fractures of his left orbital bone.
In the early morning hours of November 10, 2021, OPP officers were dispatched to an address on Spruce Street, Tiny Township, following a call to police from the residence. A man had called 911 seeking help with his grandson – the Complainant – who had reportedly assaulted him. He and his wife were in their bedroom and feared for their safety.
SO #1 arrived at the residence with WO #1 at about 3:00 a.m. The officers spoke with the grandfather, observed what appeared to be fresh injuries on his person, and made their way to the home’s garage where he had indicated his grandson could be found.
The Complainant was drinking and smoking a cigarette in the garage. Asked by the officers to leave the premises, as his grandfather had requested, the Complainant refused to do so. A struggle ensued, joined by SO #1, when WO #1 confronted the Complainant to arrest him. In the course of the altercation, the parties wrestled with each other and exchanged punches. At one point, the officers discharged their CEWs at the Complainant, with no effect. Following a baton strike to the left arm by SO #1, the Complainant fled the garage and made his way into the bush surrounding the property.
WO #2, WO #9, WO #4, with his police dog, and SO #2 and WO #5, the latter two members of an OPP ERT team, arrived at the residence following a call for additional officers by WO #1 and SO #1. At about 4:15 a.m., WO #4 and his dog, with WO #5 and SO #2 in support, started a track of the surrounding area to locate the Complainant.
At about 4:30 a.m., the Complainant emerged from the bush onto Spruce Street in the area of his grandfather’s home to surrender to the police. At their direction, he placed himself prone on the roadway as WO #2, WO #9, WO #1 and SO #1 moved in to take him into custody. The Complainant refused to surrender his arms to be handcuffed prompting another physical altercation. In the course of that struggle, SO #1 kneed the Complainant and punched him in the back, SO #2 punched the back of the Complainant’s head, and WO #5 delivered a kick to one of the Complainant’s legs. The Complainant was ultimately subdued and his arms were handcuffed behind his back.
Following his arrest, the Complainant was taken from the scene to hospital where he was diagnosed with fractures of his left 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 in and around the time of his arrest by OPP officers on November 10, 2021. Two of 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 of the subject officials committed a criminal offence in connection with the Complainant’s arrest and injuries.
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 authorized or required to do by law.
The Complainant had reportedly assaulted his grandfather, whose injuries as observed by SO #1 and WO #1 were consisted with such an assault, and then assaulted officers attempting to arrest him. The decision to take him into custody was clearly a lawful one.
The Complainant vigorously resisted arrest and was met with what in my view was legally justified force by several officers. The evidence indicates that the Complainant gave as well as he received in the fisticuffs inside the garage and was able to avoid arrest even after the several CEW deployments by the officers, and a baton strike by SO #1. In the circumstances, I am unable to reasonably conclude that the force used by the officers was more than was reasonably necessary. I am of the same view with respect to the force exerted by the officers on the roadway, in particular, the strikes delivered by SO #2, SO #1 and WO #5. Though he had appeared to surrender, the Complainant’s fight returned as officers attempted to secure his arms in handcuffs. Given the level of violence he had recently displayed against his grandfather, and SO #1 and WO #1, the officers were within their rights in seeking to immediately and decisively deter any further aggression by the Complainant and take him into custody as soon as possible. Considered in context, the knee, kick and punches would appear to have been a proportionate response to the situation at hand. No strikes of any kind were delivered after the Complainant was handcuffed.
In the result, while I accept that the Complainant’s left orbital bone was fractured at some point during the altercations with police officers on the day of his arrest, there are no reasonable grounds to believe that his injury is attributable to unlawful conduct on the part of those officers. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: March 7, 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 authorized or required to do by law.
The Complainant had reportedly assaulted his grandfather, whose injuries as observed by SO #1 and WO #1 were consisted with such an assault, and then assaulted officers attempting to arrest him. The decision to take him into custody was clearly a lawful one.
The Complainant vigorously resisted arrest and was met with what in my view was legally justified force by several officers. The evidence indicates that the Complainant gave as well as he received in the fisticuffs inside the garage and was able to avoid arrest even after the several CEW deployments by the officers, and a baton strike by SO #1. In the circumstances, I am unable to reasonably conclude that the force used by the officers was more than was reasonably necessary. I am of the same view with respect to the force exerted by the officers on the roadway, in particular, the strikes delivered by SO #2, SO #1 and WO #5. Though he had appeared to surrender, the Complainant’s fight returned as officers attempted to secure his arms in handcuffs. Given the level of violence he had recently displayed against his grandfather, and SO #1 and WO #1, the officers were within their rights in seeking to immediately and decisively deter any further aggression by the Complainant and take him into custody as soon as possible. Considered in context, the knee, kick and punches would appear to have been a proportionate response to the situation at hand. No strikes of any kind were delivered after the Complainant was handcuffed.
In the result, while I accept that the Complainant’s left orbital bone was fractured at some point during the altercations with police officers on the day of his arrest, there are no reasonable grounds to believe that his injury is attributable to unlawful conduct on the part of those officers. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: March 7, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The times are derived from the internal clocks of the weapons, which are not necessarily synchronized precisely between weapons and with actual time. [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]
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.