Director's Report Details

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.

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: 

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 64-year-old man (the “Complainant”) suffered.

Notification of the SIU

On February 3, 2022, at 1:09 p.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury. According to the OPP, on January 9, 2022, at about 5:26 a.m., OPP officers [now known to be the Subject Official (SO) and Witness Official (WO) #2] responded to a residential extended care health facility in Clarence-Rockland for a disturbance.

One of the residents, the Complainant, was in crisis and had become violent with staff. The SO and WO #2 tried to negotiate with the Complainant, but he became aggressive and physically engaged the officers. The Complainant was grounded by the officers and apprehended pursuant to the Mental Health Act (MHA).

The Complainant was transported by ambulance to Montfort Hospital where he was treated for a cut to his eye and then held under the authority of the MHA.

On February 2, 2022, the family of the Complainant contacted the OPP to provide them with an update on the Complainant’s injuries. He had two orbital fractures near the cut on his head that he had sustained when he was apprehended.

The Team

Date and time team dispatched: 02/03/2022 at 2:17 p.m.

Date and time SIU arrived on scene: 02/03/2022 at 3:55 p.m.

Number of SIU Investigators assigned: 2

The Scene

There was no scene for forensic examination by the SIU. The incident occurred inside a spacious, unoccupied dining room in a locked wing of a private, secure extended care residential health facility.

The floor where the interaction between the SO and WO #2, and the Complainant, occurred was not carpeted. There was a small table close to the broken doors where the Complainant was found by the SO and WO #2.

Video/Audio/Photographic Evidence [1]

Video Footage – Residential Extended Care Health Facility

The SIU searched for and obtained video footage from the residential health facility where the incident occurred. The SIU was provided with four data files in connection with the dining room area. There were no time stamps on the video files and the times in this report indicate the minutes and seconds into the video data files.

Video File 1

The video data file was three minutes and 58 seconds in duration. It began with two staff members escorting people into the dining room. One staff member [now known to be CW #2] was depicted standing in the hallway using a cellular telephone.

At one minute and nine seconds into the video data file, the Complainant entered the dining room. He was dressed in dark clothing. He turned and appeared to speak to CW #2. The Complainant then walked to the exit dining room doors and began to push the door and undo the security locks. He pushed a door and it slammed shut. Staff removed people from the dining room. The Complainant was standing in the hallway outside of the door he was slamming and began to smash the door open and closed. The Complainant walked away from the door and the door remained open.

Video File 2

The video file was three minutes and 48 seconds in duration and began with the Complainant walking in the hallway outside of the dining room. At 20 seconds into the video data file, the Complainant was depicted walking to the dining room doorway and smashing the second door. After milling about for a few minutes, the Complainant grabbed the exit door in the hallway and started shaking the door.

Video File 3

The video file was three minutes and 58 seconds in duration and began with the Complainant in the hallway outside of the dining room.

At 25 seconds into the video data file, two police officers [now known to be the SO, leading, and WO #2, following] were depicted at the entry door leading to the dining room. CW #2 was with the police officers but remained near the entry door.

Twenty-three seconds later, the SO, followed by WO #2, approached the Complainant at the exit doorway leading to the hallway. The SO appeared to be speaking briefly to the Complainant. They were in the hallway outside of the dining room. WO #2 was standing inside the dining room at the doorway. The SO grabbed the Complainant’s left elbow with his right hand. The Complainant pulled away. The SO grabbed the Complainant’s left wrist with his left hand and had his right hand on the Complainant’s left elbow. The Complainant was facing the dining room. The SO pushed the Complainant into the dining room and WO #2 grabbed the Complainant’s left arm while the SO grabbed the Complainant’s right arm as the Complainant struggled with the police officers. The Complainant was facing towards the doorway when he appeared to attempt to kick and stomp on the SO’s feet, and with that WO #2 lost control of the Complainant’s left arm. WO #2 appeared to be reaching for something at his back on his duty belt and, by then, the Complainant was in front of the SO whose mass momentarily blocked the camera’s focal range. At that point, both police officers lost their hold on the Complainant. The Complainant swung his right hand towards the SO while WO #2 stood back in what may be characterized as a fighting stance.

CW #2 shuffled closer towards the Complainant, and the SO and WO #2, observing them from a distance. The Complainant then tried to slap the SO with his right hand. WO #2 took a step back as the SO used his right fist and delivered a punch to the left side of the Complainant’s face. CW #2 moved closer but did not interfere in the interaction between the SO and WO #2, and the Complainant.

WO #2 grabbed the Complainant’s right arm as the SO delivered a second, right-handed punch to the left side of the Complainant’s face. The Complainant appeared stunned as he staggered backward with the blow.

WO #2 was holding the Complainant’s right arm at his wrist and the SO was holding the Complainant’s left arm as they moved forward and to the left of the doorway into the dining room where the SO and WO #2 pulled the Complainant forward, towards, and down to the floor. The Complainant’s forehead struck the floor. A brief struggle ensued to get the Complainant into handcuffs with his hands behind his back. No other blows were seen delivered to the Complainant. WO #2 and the SO completed the handcuffing and got up from the floor.

The SO was holding the Complainant’s shoulder with his right hand while CW #2 moved a little closer to the Complainant, and then walked away leaving the dining room as the Complainant was lying on his right side on the dining room floor. The SO and WO #2 appeared to be speaking, and the SO searched the Complainant’s pockets before pulling him up to a sitting position. WO #2 left the dining room. The SO pulled the Complainant to a standing position.

Video File 4

The video data file was three minutes and 53 seconds in duration and began with the Complainant standing and the SO holding him with his left hand. The SO appeared to be speaking to him. By 41 seconds into the video data file, the Complainant was leaning/sitting on a table with his hands handcuffed behind his back. At about that time, a third police officer [now known to be WO #1 wearing gloves] was depicted entering the dining room and conversing with the SO and WO #2. WO #2 returned to the dining room and attended where the Complainant was propped against or sitting on the table’s edge. WO #2 appeared to be speaking while the SO was holding the Complainant’s right arm.

The material events in question are clear on the evidence collected by the SIU, which included video footage that largely captured the incident. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the morning of January 9, 2022, the Complainant, a resident of an extended care health facility in Clarence-Rockland, was in a highly agitated state. The Complainant, of unsound mind at the time, had threatened employees of the residence and damaged property. He was in the dining room of the facility when he was approached by two police officers.

The police - the SO and WO #2 - had been called to the residence by an employee – CW #2. The officers met with CW #2 and were escorted to the dining room. The Complainant stood by a doorway at the far end of the dining room from where the officers had entered. He was unable to respond coherently to several questions by the officers as they approached him regarding his name and what was happening.

The SO took hold of the Complainant’s left arm and the Complainant attempted to pull it free. WO #2 intervened to assist the SO. The officers each tried to control the Complainant’s arms but were unsuccessful. The Complainant was able to break free and then squared up to confront the SO. He attempted to strike the SO several times with his right hand. The officer reacted by delivering two right-hand punches to the left side of the Complainant’s face.

Following the second of the two punches, the SO and WO #2, each with a hold of an arm, wrestled the Complainant to the floor. The Complainant, unable to break his fall, landed face first. Following a further brief period of struggle, the Complainant was handcuffed behind his back and eventually lifted to his feet.

The Complainant was taken to hospital after his arrest and diagnosed with facial fractures.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

Section 17, Mental Health Act -- Action by police officer

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

The Complainant was seriously injured in the course of his arrest by OPP officers in Clarence-Rockland on January 9, 2022. One of the arresting officers – the SO – was identified as the subject official in 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 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, who suffered from Alzheimer’s and dementia, had damaged property at the residential health facility and threatened staff. In the circumstances, I am satisfied that there were grounds for his arrest under section 17 of the Mental Health Act and for the Criminal Code offence of mischief.

I am also satisfied that the quantum of force used by the SO in the course of the arrest, though high, was legally justified. Confronted by the Complainant, who had that morning demonstrated a propensity for violence, resisting arrest and attempting to assault the officer – first by stomping at his feet and then by throwing several right-handed strikes at his head – the SO was within his rights in resorting to a measure of force. The first of the SO’s punches was clearly justified. Less clear is whether the second punch was, strictly speaking, necessary given the Complainant’s age, frailty of mind, and the presence of two officers at the scene. Having carefully weighed these factors, however, I am unable to reasonably conclude that the second punch, delivered quickly after the first, fell afoul of the limits prescribed by the criminal law. In arriving at this conclusion, I am mindful that the common law does not require that an officer caught up in the heat of the moment measure their responsive force with precision; what is required is a reasonable response, not necessarily an exacting one: R. v. Baxter (1975), 27 CCC (2d) 96; R. v. Nasogaluak, [2010] 1 SCR 206. With respect to the takedown that followed the second punch, I am similarly of the view that it was justified on the same principle of law. The Complainant had proven a formidable challenge notwithstanding his diminished capacities, and the officers were within their rights in taking him to the ground in order to better manage any continuing resistance. It is highly unfortunate that the Complainant’s head impacted the ground as hard as it did in the takedown, but that was more a product of the cut and thrust of the altercation as it unfolded as opposed to undue force having been brought to bear.

In the result, there are no reasonable grounds to believe that the SO comported himself unlawfully in his dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges on this case.


Date: June 3, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit