SIU Director’s Report - Case # 22-PCI-034
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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 serious injuries sustained by a 60-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 serious injuries sustained by a 60-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On February 7, 2022, the Ontario Provincial Police (OPP) contacted the SIU with the following information.On September 29, 2021, officers had been dispatched to a sexual assault investigation at the Trenton Memorial Hospital (TMH). It was reported that a man had sexually assaulted a staff member. The man was hostile during the initial observations of police. The investigation led to reasonable and probable grounds to arrest the man. The police officers attempted to calm the man, who continued to be agitated and threatening. A police officer eventually grounded the man and effected the arrest without further issue. The treating doctor issued the man a ‘Form 1’ authorizing his admission to hospital for a psychiatric examination. The police officers brought the man to Belleville General Hospital (BGH) and processed him on a charge of sexual assault.
The man [known to be the Complainant] subsequently filed a complaint to the Office of the Independent Police Review Director (OIPRD), resulting in an investigation by the OPP Professional Standards Unit (PSU). The Complainant wanted the assigned PSU investigator to speak with witnesses and officers before he would provide a statement.
On this date, as the PSU investigator spoke to the Complainant, he alleged that as a result of the September 29, 2021, incident, he had sustained two broken ribs. He provided a diagnostic report that indicated he had rib fractures on the left side, prompting the OPP to contact the SIU.
The Team
Date and time team dispatched: 02/07/2022 at 10:45 a.m.Date and time SIU arrived on scene: 02/07/2022 at 11:09 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
60-year-old male interviewed, medical records received and reviewed.The Complainant was interviewed on February 8, 2022.
Civilian Witnesses
CW #1 Not interviewedCW #2 Not interviewed
CW #3 Not interviewed
CW #4 Interviewed
CW #1, CW #2 and CW #3 were not interviewed because they did not see the interaction between police officers and the Complainant. CW #4 was interviewed on February 28, 2022.
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed WO #2 Not interviewed, but notes received and reviewed
WO #1 was interviewed on February 16, 2022.
Evidence
The Scene
The scene was located in the observation room in the emergency department at BGH.Forensic Evidence
Conducted Energy Weapons (CEW) Logs
The OPP provided the data log for WO #1’s CEW. The log entries indicated that the CEW was loaded with two 25-foot cartridges, neither of which was deployed.The data indicated that the CEW was activated in arc mode for one second at each of 6:03:10 p.m., 6:03:15 p.m., 6:03:23 p.m., and 6:03:29 p.m. [1]
Video/Audio/Photographic Evidence [2]
The SIU searched for and video records of relevance, as set out below.
Video Footage from TMH
On February 23, 2022, the SIU spoke to staff at TMH. Staff advised that security camera video footage was available for viewing but due to the TMH’s Privacy Policy, they could not provide a copy without a production order. The footage was about 15 seconds long and did not have audio. There were no cameras in the emergency department or in any of the trauma or observation rooms.On February 24, 2022, the investigator reviewed the footage at TMH. The footage showed the Complainant being escorted by two police officers [known to be the SO and WO #1] down a short corridor in the emergency department. There was a police officer on each side of the Complainant, holding his upper arm. The Complainant was handcuffed with his hands behind his back. CW #4 was walking behind the police officers and the Complainant. The police officers escorted the Complainant out the ambulance exit of the emergency department and out of the view of the camera.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the OPP:- Event Details Report;
- Notes of WOs;
- Occurrence Details and Reports;
- OIPRD Complaint – the Complainant;
- Data downloaded from CEWs; and
- Witness list.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Medical Record – TMH;
- Medical Record – Quinte Health Care;
- Notes of CW #4; and
- Security Report.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, a civilian eyewitness to the events in question, and one of the two arresting officers – WO #1. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
Police were dispatched to the TMH in the afternoon of September 29, 2021. Staff at the hospital had called 911 to report a patient – the Complainant – was creating a disturbance and had sexually assaulted a nurse.
The Complainant had earlier in the day attended at the emergency department of the hospital for assessment and treatment related to his mental health. He was highly agitated and unruly. At one point, after several lewd comments directed at nurses who were treating him, the Complainant grabbed the vagina of one of the nurses, prompting the call to police.
The SO and WO #1 arrived at the hospital, met with the Complainant in an observation room and the nurse who had been touched inappropriately, and decided to arrest the Complainant for sexual assault. The Complainant objected to his arrest and struggled with the officers as they grabbed hold of his arms. The struggle went to the floor of the observation room. Following a series of knees and punches delivered by the SO and WO #1, respectively, the latter of whom also discharged his CEW at the Complainant on several occasions, the Complainant was handcuffed and taken into custody.
After his arrest, the officers transported the Complainant to BGH where he was admitted for psychiatric examination under the Mental Health Act. The Complainant was subsequently diagnosed with fractures of two left-sided posterior ribs.
Police were dispatched to the TMH in the afternoon of September 29, 2021. Staff at the hospital had called 911 to report a patient – the Complainant – was creating a disturbance and had sexually assaulted a nurse.
The Complainant had earlier in the day attended at the emergency department of the hospital for assessment and treatment related to his mental health. He was highly agitated and unruly. At one point, after several lewd comments directed at nurses who were treating him, the Complainant grabbed the vagina of one of the nurses, prompting the call to police.
The SO and WO #1 arrived at the hospital, met with the Complainant in an observation room and the nurse who had been touched inappropriately, and decided to arrest the Complainant for sexual assault. The Complainant objected to his arrest and struggled with the officers as they grabbed hold of his arms. The struggle went to the floor of the observation room. Following a series of knees and punches delivered by the SO and WO #1, respectively, the latter of whom also discharged his CEW at the Complainant on several occasions, the Complainant was handcuffed and taken into custody.
After his arrest, the officers transported the Complainant to BGH where he was admitted for psychiatric examination under the Mental Health Act. The Complainant was subsequently diagnosed with fractures of two left-sided posterior ribs.
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
On February 7, 2022, the OPP contacted the SIU to report that they were in receipt of information in which it was alleged that a man they had arrested on September 29, 2021– the Complainant – had sustained serious injuries at the hands of the arresting officers. The SIU initiated an investigation naming one of the officers – the SO – as the subject official. 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 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 required or authorized to do by law.
The Complainant’s arrest by the officers was authorized by law. Having spoken to the victim of the reported assault at the hospital, the SO and WO #1 were within their rights in seeking to take the Complainant into custody for sexual assault.
There is some evidence that the Complainant was repeatedly kneed in the left side and back by the SO though he was handcuffed at the time and offered no resistance. If true, this account of what transpired would warrant a charge of assault against the officer. It would be unwise and unsafe, however, to rest charges on the strength of this evidence.
The Complainant’s purported passivity is belied by the evidence of an eyewitness who says that the Complainant resisted his arrest and was pulled to the floor by the officers where he continued to resist arrest by refusing to release his hands from under his chest to be handcuffed. The same is true of the evidence that the Complainant was repeatedly punched by both officers by the side of a police cruiser prior to being placed in the rear seat for transportation to BGH. The eyewitness, present at the time, makes no mention of any such force.
What remains of the evidence regarding what occurred in the course of the arrest comes from WO #1 and the eyewitness. In this scenario, the Complainant struggled against the officers’ attempts to secure him in handcuffs and the officers responded by forcing him to the floor, thereafter delivering several knee strikes to the Complainant’s left side (the SO) and punches to his side and back (the SO and WO #1). The Complainant was eventually subdued, and his arms handcuffed behind his back, after WO #1 ‘drive-stunned’ him several times with his CEW to the legs. On this rendition of events, I am unable to reasonably conclude that the takedown, knee strikes and punches were excessive given the nature and extent of the Complainant’s resistance. Once he was handcuffed, no further force was brought to bear.
In the result, while it may be that the Complainant’s rib 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 by the officer. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 3, 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.
The Complainant’s arrest by the officers was authorized by law. Having spoken to the victim of the reported assault at the hospital, the SO and WO #1 were within their rights in seeking to take the Complainant into custody for sexual assault.
There is some evidence that the Complainant was repeatedly kneed in the left side and back by the SO though he was handcuffed at the time and offered no resistance. If true, this account of what transpired would warrant a charge of assault against the officer. It would be unwise and unsafe, however, to rest charges on the strength of this evidence.
The Complainant’s purported passivity is belied by the evidence of an eyewitness who says that the Complainant resisted his arrest and was pulled to the floor by the officers where he continued to resist arrest by refusing to release his hands from under his chest to be handcuffed. The same is true of the evidence that the Complainant was repeatedly punched by both officers by the side of a police cruiser prior to being placed in the rear seat for transportation to BGH. The eyewitness, present at the time, makes no mention of any such force.
What remains of the evidence regarding what occurred in the course of the arrest comes from WO #1 and the eyewitness. In this scenario, the Complainant struggled against the officers’ attempts to secure him in handcuffs and the officers responded by forcing him to the floor, thereafter delivering several knee strikes to the Complainant’s left side (the SO) and punches to his side and back (the SO and WO #1). The Complainant was eventually subdued, and his arms handcuffed behind his back, after WO #1 ‘drive-stunned’ him several times with his CEW to the legs. On this rendition of events, I am unable to reasonably conclude that the takedown, knee strikes and punches were excessive given the nature and extent of the Complainant’s resistance. Once he was handcuffed, no further force was brought to bear.
In the result, while it may be that the Complainant’s rib 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 by the officer. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 3, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The times are derived from the internal clock of the weapon, which is not necessarily synchronous 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.