SIU Director’s Report - Case # 21-OCI-407
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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 17-year-old male (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 17-year-old male (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On December 2, 2021, at 11:23 a.m., the London Police Service (LPS) reported that on December 2, 2021, at 12:34 a.m., the Complainant was arrested for mischief after throwing a rock and breaking a window at a LPS officer’s home located in London. The off-duty LPS officer [now known to be the SO] pursued the Complainant and arrested him out front of another residence on his street. During the arrest, the Complainant was grounded and received an injury to his left eye area. The Complainant was taken by ambulance to London Health Sciences Centre (LHSC) Victoria Hospital, where he was diagnosed with an orbital bone fracture. The Team
Date and time team dispatched: 12/02/2021 at 1:40 p.m.Date and time SIU arrived on scene: 12/02/2021 at 2:49 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
17-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on December 3, 2021.
Civilian Witness (CW)
CW InterviewedThe civilian witness was interviewed on December 3, 2021.
Subject Official (SO)
SO Declined interview, as is the subject official’s legal right; typed statement received and reviewedWitness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on December 8, 2021.
Evidence
The Scene
The scene was a city sidewalk directly in front of a house in a residential area in London.Video/Audio/Photographic Evidence [1]
911 Call and Radio Transmissions
The LPS provided the SIU with the 911 call and radio transmission recordings on December 7, 2021. Materials Obtained from Police Service
Upon request, the SIU received the following materials from the LPS between December 7 and 9, 2021:- General Occurrence Report;
- Arrest Report;
- Scene Photographs;
- 911 / Communication Recordings;
- Computer-assisted Dispatch Report;
- Civilian Witness Statement-the CW;
- Will State-WO #1;
- Will State-WO #3;
- Will State-WO #2;
- Notes-WO #1;
- Notes-WO #2;
- Notes-WO #3; and
- Will State-the SO.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Medical Records from the LHSC – Victoria Hospital
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, and several civilian and police witnesses who observed the incident in parts. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes. He did provide a written statement.
At about 12:30 a.m. of December 2, 2021, the SO was off-duty and in the living room of his home when a rock came crashing through the room window. The officer went outside to investigate and saw two males walking westbound on his street. Believing they were responsible for his broken window, the SO pursued them on foot.
The two males were the Complainant and his associate. One or the other had thrown the rock through the window of the SO’s home. Though aware that they were being pursued by an off-duty police officer – the SO had informed them of such while directing them to stop – they fled westward as the officer gave chase.
The SO caught up to the Complainant in front of an address about 150 metres from his residence, and tackled him to the ground. There followed an altercation in which the two exchanged blows. The officer was able to gain the upper hand and keep the Complainant pinned on the ground as he called 911 for assistance.
Additional officers arrived on scene and took the Complainant into custody.
Following his arrest, the Complainant was taken to hospital where he was diagnosed with a fractured left orbital bone.
At about 12:30 a.m. of December 2, 2021, the SO was off-duty and in the living room of his home when a rock came crashing through the room window. The officer went outside to investigate and saw two males walking westbound on his street. Believing they were responsible for his broken window, the SO pursued them on foot.
The two males were the Complainant and his associate. One or the other had thrown the rock through the window of the SO’s home. Though aware that they were being pursued by an off-duty police officer – the SO had informed them of such while directing them to stop – they fled westward as the officer gave chase.
The SO caught up to the Complainant in front of an address about 150 metres from his residence, and tackled him to the ground. There followed an altercation in which the two exchanged blows. The officer was able to gain the upper hand and keep the Complainant pinned on the ground as he called 911 for assistance.
Additional officers arrived on scene and took the Complainant into custody.
Following his arrest, the Complainant was taken to hospital where he was diagnosed with a fractured 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 the course of his arrest in London by an LPS officer on December 2, 2021. The SO was identified as a subject official 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 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.
I am satisfied that the SO had lawful grounds to seek the Complainant’s apprehension. When the Complainant and his associate ran away as the SO accused them of breaking his window, asking what he (the SO) planned to do about it, the officer was within his rights in seeking to take them into custody in connection with the damage to his property.
Thereafter, while I accept that the SO caused the Complainant’s injury when he punched him in the face, I am satisfied that the force used by the officer – a takedown and multiple strikes to the body – was legally justified. The takedown was a reasonable tactic in the circumstances. It would appear that the Complainant had left the SO little choice but to bring him down forcefully given his determined flight from the officer at the time. Once on the ground, the evidence suggests that the Complainant vigorously resisted the SO, throwing punches in his direction. The officer countered with punches of his own and a knee strike. At one point, fearing that he was reaching for a weapon inside his jacket, the SO picked up a fire extinguisher that had fallen from the Complainant’s backpack and used it to strike him in the chest. In fact, a knife was later recovered from the Complainant’s jacket pocket, lending credence to the officer’s concerns at the time and the reasonableness of his conduct. No strikes of any kind were delivered by the SO after the Complainant had been subdued.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in the course of his engagement with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: March 30, 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 SO had lawful grounds to seek the Complainant’s apprehension. When the Complainant and his associate ran away as the SO accused them of breaking his window, asking what he (the SO) planned to do about it, the officer was within his rights in seeking to take them into custody in connection with the damage to his property.
Thereafter, while I accept that the SO caused the Complainant’s injury when he punched him in the face, I am satisfied that the force used by the officer – a takedown and multiple strikes to the body – was legally justified. The takedown was a reasonable tactic in the circumstances. It would appear that the Complainant had left the SO little choice but to bring him down forcefully given his determined flight from the officer at the time. Once on the ground, the evidence suggests that the Complainant vigorously resisted the SO, throwing punches in his direction. The officer countered with punches of his own and a knee strike. At one point, fearing that he was reaching for a weapon inside his jacket, the SO picked up a fire extinguisher that had fallen from the Complainant’s backpack and used it to strike him in the chest. In fact, a knife was later recovered from the Complainant’s jacket pocket, lending credence to the officer’s concerns at the time and the reasonableness of his conduct. No strikes of any kind were delivered by the SO after the Complainant had been subdued.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in the course of his engagement with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: March 30, 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. [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.