SIU Director’s Report - Case # 21-PCI-343
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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 injuries a 40-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 injuries a 40-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On October 14, 2021, at 8:16 a.m., [1] the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant. The OPP advised that the Complainant was arrested for domestic assault on October 12, 2021, at 11:22 a.m., at an address in Kenora. At the detachment, the Complainant spat at the police officers and was grounded. The police officers also used empty-hand techniques during the grounding. He continued to spit at the police officers until he was placed in a cell.
The Complainant subsequently complained of sore ribs and was taken to Lake of The Woods District Hospital (LOTWDH). The hospital would not confirm an injury until late in the evening on October 13, 2021.
The Complainant was to be lodged in the Kenora District Jail at 1430 River Drive until his bail hearing.
The Team
Date and time team dispatched: 10/14/2021 at 10:23 a.m.Date and time SIU arrived on scene: 10/14/2021 at 11:02 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
40-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on October 18, 2021.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on March 2, 2022.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
The witness officials were interviewed between November 3, 2021, and January 31, 2022.
Evidence
The Scene
The incident occurred in the Kenora OPP Detachment situated on Highway 17. The interaction with the Complainant and the police officers took place in the secure parking garage. Commonly know as the ‘sally port’, the parking garage had direct access to the detachment’s cell block area.Video/Audio/Photographic Evidence [2]
OPP Detachment Video Footage
The OPP provided video footage in relation to the incident involving the Complainant. The video did not include audio. The times used in the following summary of the footage are taken from the time stamp on the video.Camera - Sally Port
At 11:55:04 p.m., a marked OPP cruiser enters the sally port.
At 11:55:52 p.m., WO #4 and WO #3 exit the cruiser; the SO enters on foot.
At 11:57:27 p.m., WO #3 opens the rear passenger side door of the cruiser. The Complainant exits the cruiser and, as he stands, he spits directly into the face of WO #4.
At 11:57:32 p.m., the Complainant is taken to the ground by WO #3 and the SO, each of whom deliver a punch to the Complainant’s head area. The Complainant is seated with his chest down against his thighs. WO #3 is on his knees in front of the Complainant with his arms wrapped around the Complainant’s head and shoulder area.
At 11:57:38 p.m., the Complainant is still in the same seated position, and WO #3 is still attempting to control the Complainant’s head and shoulder area. The SO strikes the Complainant on the right side of his upper body with his knee. The Complainant and WO #3 continue struggling on the ground. The SO moves to the Complainant’s left side and strikes him again (possibly twice) with his knee, this time on the left side of his upper body.
At 11:58:31 p.m., the Complainant is dragged through the pedestrian door of the sally port by WO #3 and WO #4 followed by the SO. The SO kicks the Complainant as the Complainant goes through the doorway.
Camera - Hallway
At 11:58:37 p.m., the Complainant is dragged through the hallway from the sally port pedestrian door by WO #3 and WO #4 followed by the SO.
Camera - Vestibule
At 11:58:46 p.m., the Complainant is dragged into a cell by WO #3 and WO #4 followed by the SO.
At 11:59:54 p.m., the door to the cell is closed by WO #3.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between October 19, 2021, and December 10, 2021:
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:
At 11:58:37 p.m., the Complainant is dragged through the hallway from the sally port pedestrian door by WO #3 and WO #4 followed by the SO.
Camera - Vestibule
At 11:58:46 p.m., the Complainant is dragged into a cell by WO #3 and WO #4 followed by the SO.
At 11:59:54 p.m., the door to the cell is closed by WO #3.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between October 19, 2021, and December 10, 2021:- Computer-assisted Dispatch Report;
- Communications recordings;
- Custody video footage;
- General Report;
- Involved Officers List;
- Arrest Report;
- Prisoner Report;
- Kenora OPP Log On;
- Notes-WO #5;
- Notes-WO #2;
- Notes-WO #1;
- Notes-WO #3; and
- Notes-WO #4.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Medical Records – LOTWDH – the Complainant.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO, and two other officers present at the time of the events in question. The investigation was also assisted by video footage that captured the incident.
In the late evening of October 12, 2021, the Complainant was arrested by WO #3 and WO #4 at a home in Kenora in connection with an assault. The arrest was uneventful. The Complainant was placed in the officers’ cruiser and transported to the detachment in Kenora. En route, the Complainant threatened the officers with violence.
The Complainant exited the rear passenger door of the cruiser in the sally port of the detachment, walked towards WO #4, and spit in his face. WO #3 and the SO, who were standing in the vicinity, immediately intervened to physically engage the Complainant. They each delivered right-handed punches to the Complainant’s head, and forced him to the floor. WO #4 left the sally port to clean the spit off his face.
With the Complainant on the floor in a seated position, his right leg crossed in front of him and his left leg extended out, WO #3 used his hands to keep the Complainant’s head down. As the Complainant struggled to lift his head, the SO delivered a right-knee strike into the right side of the Complainant’s body. The officer then moved to the left side of the Complainant’s body and delivered another knee strike (and possibly two strikes [3]) to the upper body. Following the last of these strikes, the Complainant was rolled onto his right side, where WO #3 continued to control his head.
Following a further brief period of struggle, WO #3, with the assistance of the SO and WO #4, who had returned to the sally port, dragged the Complainant a short distance towards and through the sally port pedestrian door. As they crossed the threshold of the door with the Complainant, the SO kicked the Complainant in the buttocks.
Once through the door, the Complainant was lodged in a cell.
The following morning, the Complainant, having complained of rib pain, was transported to hospital. He was diagnosed with fractures of a left and right-sided rib.
In the late evening of October 12, 2021, the Complainant was arrested by WO #3 and WO #4 at a home in Kenora in connection with an assault. The arrest was uneventful. The Complainant was placed in the officers’ cruiser and transported to the detachment in Kenora. En route, the Complainant threatened the officers with violence.
The Complainant exited the rear passenger door of the cruiser in the sally port of the detachment, walked towards WO #4, and spit in his face. WO #3 and the SO, who were standing in the vicinity, immediately intervened to physically engage the Complainant. They each delivered right-handed punches to the Complainant’s head, and forced him to the floor. WO #4 left the sally port to clean the spit off his face.
With the Complainant on the floor in a seated position, his right leg crossed in front of him and his left leg extended out, WO #3 used his hands to keep the Complainant’s head down. As the Complainant struggled to lift his head, the SO delivered a right-knee strike into the right side of the Complainant’s body. The officer then moved to the left side of the Complainant’s body and delivered another knee strike (and possibly two strikes [3]) to the upper body. Following the last of these strikes, the Complainant was rolled onto his right side, where WO #3 continued to control his head.
Following a further brief period of struggle, WO #3, with the assistance of the SO and WO #4, who had returned to the sally port, dragged the Complainant a short distance towards and through the sally port pedestrian door. As they crossed the threshold of the door with the Complainant, the SO kicked the Complainant in the buttocks.
Once through the door, the Complainant was lodged in a cell.
The following morning, the Complainant, having complained of rib pain, was transported to hospital. He was diagnosed with fractures of a left and right-sided rib.
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 serious injuries while in the custody of the OPP in Kenora on October 12, 2021. The SO was identified as the subject official 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 the SO committed a criminal offence in connection with the Complainant’s 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.
Based on their investigation at the scene of the domestic disturbance, which included information received directly from the alleged victim, I am satisfied that the Complainant was subject to lawful arrest for assault at the hands of WO #3 and WO #4. Once in their lawful custody, the officers were also entitled to control the Complainant’s movements to ensure their safety as well as his.
I am also satisfied that the initial punches struck by WO #3 and the SO, and the subsequent knee strikes and kick delivered by the SO, constituted legally justified force. The Complainant had just assaulted WO #4 by having spit on him. The assault was aggravated by the threats of violence that preceded the act, and the Complainant’s utterance at that time that he had COVID-19. In the circumstances, it was imperative that the Complainant be brought under immediate control to prevent a further assault. Considered in context, the punches would appear a proportionate use of force as they assisted in felling the Complainant without inflicting serious injury. Once on the ground, the Complainant, though handcuffed to the front, struggled against the officers’ efforts to control his head movements. The SO was concerned, reasonably, in my view, that the Complainant would spit on the officers again if he managed to release his head from their grasp, and decided to deliver knee-strikes. The force was a tactic reasonably available to the officer given the continuing need to subdue the Complainant.
The kick delivered by the SO is subject to legitimate scrutiny. At the time, the Complainant was being dragged through the sally port door towards the cell area, seemingly under the control of WO #3 and WO #4. According to the SO, he delivered the kick to distract the Complainant, who seemed to be jabbing with his hands in the direction of the constables. The video recording is inconclusive on this point; neither WO #3 nor WO #4 make mention of any jabbing motion.
That said, the event was a dynamic one and it could well be that the constables, focused on what they were doing, simply missed what the SO had seen. It is also conceivable that the SO was mistaken in what he thought he had seen. Be that as it may, I am mindful that the common law does not require that police officers engaged in volatile situations measure their force to a nicety; rather, what is required is a reasonable response. In the result, I am satisfied that the kick fell within the latitude of reasonable force given the exigencies of the moment.
In the final analysis, while I accept that the Complainant’s fractures were the result of the force used by the SO, there are no reasonable grounds to believe that they were attributable to unlawful conduct on the part of the officer. Accordingly, there is no basis for proceeding with criminal charges against the SO.
Date: May 17, 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.
Based on their investigation at the scene of the domestic disturbance, which included information received directly from the alleged victim, I am satisfied that the Complainant was subject to lawful arrest for assault at the hands of WO #3 and WO #4. Once in their lawful custody, the officers were also entitled to control the Complainant’s movements to ensure their safety as well as his.
I am also satisfied that the initial punches struck by WO #3 and the SO, and the subsequent knee strikes and kick delivered by the SO, constituted legally justified force. The Complainant had just assaulted WO #4 by having spit on him. The assault was aggravated by the threats of violence that preceded the act, and the Complainant’s utterance at that time that he had COVID-19. In the circumstances, it was imperative that the Complainant be brought under immediate control to prevent a further assault. Considered in context, the punches would appear a proportionate use of force as they assisted in felling the Complainant without inflicting serious injury. Once on the ground, the Complainant, though handcuffed to the front, struggled against the officers’ efforts to control his head movements. The SO was concerned, reasonably, in my view, that the Complainant would spit on the officers again if he managed to release his head from their grasp, and decided to deliver knee-strikes. The force was a tactic reasonably available to the officer given the continuing need to subdue the Complainant.
The kick delivered by the SO is subject to legitimate scrutiny. At the time, the Complainant was being dragged through the sally port door towards the cell area, seemingly under the control of WO #3 and WO #4. According to the SO, he delivered the kick to distract the Complainant, who seemed to be jabbing with his hands in the direction of the constables. The video recording is inconclusive on this point; neither WO #3 nor WO #4 make mention of any jabbing motion.
That said, the event was a dynamic one and it could well be that the constables, focused on what they were doing, simply missed what the SO had seen. It is also conceivable that the SO was mistaken in what he thought he had seen. Be that as it may, I am mindful that the common law does not require that police officers engaged in volatile situations measure their force to a nicety; rather, what is required is a reasonable response. In the result, I am satisfied that the kick fell within the latitude of reasonable force given the exigencies of the moment.
In the final analysis, while I accept that the Complainant’s fractures were the result of the force used by the SO, there are no reasonable grounds to believe that they were attributable to unlawful conduct on the part of the officer. Accordingly, there is no basis for proceeding with criminal charges against the SO.
Date: May 17, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) All times denoted in Eastern 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]
- 3) The video was inconclusive on whether the officer kneed the Complainant once or twice to the left side. [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.