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 serious injuries to a 34-year-old man (the “Complainant”).

Notification of the SIU

On April 23, 2021, at 5:51 p.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury.

According to the OPP, on April 12, 2021, OPP officers responded to a family dispute at the Complainant’s residence in Wasaga Beach. When the first police officer [now known to be Subject Official (SO) #1] arrived, the Complainant met him outside with a sword [now known to have been a 75-centimetre-long replica ornamental Samurai sword] and baseball bat. A Conducted Energy Weapon (CEW) was deployed and the Complainant collapsed, striking his head on the interlocking brick. The incident was witnessed by the Complainant’s mother [now known to be Civilian Witness (CW) #1]. The Complainant was apprehended under the Mental Health Act (MHA) and admitted to hospital.

On April 23, 2021, CW #1 reported to the Professional Standards Branch of the OPP that her son had suffered a brain bleed and a fractured skull.

The Scene

The location of the incident was in front of the entrance to a split-level, single family dwelling with a paved driveway and double garage at an address in Wasaga Beach. At the front double doors of the residence was a raised area within an enclosed vestibule. The front doors opened to a landing/foyer with a door to a library and a closet to the left.

There was a door to a laundry room to the right. Across the landing/foyer, there were stairs to the right to the upper level and stairs to the left to the basement. There was a runner- style carpet at the front door.

There was a stain on the roadway that was 8.5 metres from the west side of the driveway.

One AFID was located at, and collected from, the edge of the sidewalk/walkway near the front step.

a. Impact against the right side of the head over the right mastoid / temporal bone causing a non-displaced fracture. This led to hemorrhage within the mastoid air cells and right external ear canal. The gas identified on CT within the bone lining the right sigmoid sinus and temporomandibular joint may be a consequence of an extension of this fracture through the temporal bone. SO #1 noted seeing blood from the right ear shortly after CEW discharge and collapse near the doorway. If this observation is factually correct, then a collapse against a brick wall or concrete/brick floor of a portico in the course of falling could certainly explain this injury. Such an injury is not commonly seen following an unsupported fall from a standing height against the wall / ground, but there is nothing about this particular mechanism that would preclude the injuries identified and thus, should be considered the most likely cause of this injury.

b. The inferior frontal and temporal pole contusional injuries (favoured on the earliest CT scan) that with time evolved into intraparenchymal hemorrhages on subsequent CT scans likely represented hemorrhagic transformation of contre-coup contusional injury. These were associated with subarachnoid and thin subdural hemorrhages over the temporal convexity. Contre-coup contusional injury would support the contention that there was an impact against the back of the head and may suggest a fall or being brought down to the ground and striking the back of the head. Some of the witness accounts do suggest this mechanism of injury on the roadway.

It is theoretically possible that this left sided contre-coup contusional injury to the cerebrum occurred at the time when blunt force was applied to the right side of the head (i.e. in the portico outside the front door), when also fracturing the right temporal bone. However, it should be noted that contre coup contusional injury is classically described following blunt impact to the back of the head, but an alternative explanation cannot be excluded.

c. Assorted blunt impact injuries leading to clinically minor injuries were noted on the face (left lateral head healing injury, bleeding left nostril, non-descript injuries from medical records noted over face). These most likely occurred while on the roadway, although it is not possible to exclude that some of these injuries could have occurred following the collapse at the time of CEW discharge near the doorway to the house. The precise mechanism of injury (e.g. striking / friction against the ground) cannot be drawn from the clinical appearance of the injuries alone, although would be reasonably inferred from the eyewitness accounts.

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, SO #1 and several civilian eyewitnesses. As was his legal right, SO #2 chose not to interview with the SIU.

SO #1 was dispatched to a residence in the area are of 45th Street South and Knox Road West, Wasaga Beach, in the early afternoon, arriving at the scene at about 12:45 p.m. A 911 call had been received by police from the Complainant’s mother, CW #1, reporting that her son was acting aggressively and she wanted him out of the house. The two had been heard arguing by the 911 call-taker. At one point, the Complainant took the phone from his mother and spoke to the call-taker. He vented about grievances he had with his mother and the police, and threatened to use a gun against any police officer who might attend at his home. Finding the door closed but hearing yelling from the interior, SO #1 decided to enter the home.

The Complainant was in the basement when he became aware of the officer’s presence in the front foyer of the home. Holding a small samurai-type sword in his right hand, and miniature souvenir-type wooden bat in his left, the Complainant climbed a set of stairs that led directly to the foyer, and confronted the officer.

SO #1 withdrew through the door at the sight of the Complainant advancing, closing it behind him. He had retreated a distance of several metres when the Complainant opened the door, still holding the sword and bat in his hands. Fearing for his personal safety, SO #1 fired his CEW once in the Complainant’s direction.

The CEW discharge resulted in the Complainant’s neuromuscular incapacitation. His body stiffened and he fell through the door onto the concrete patio outside.

With the help of SO #2, just arriving on scene, SO #1 pulled the Complainant off the raised patio onto the stone driveway and handcuffed his hands behind his back. The officers then pulled the Complainant, who was limp, down the driveway to the rear passenger side of SO #1’s cruiser. The officer had parked his vehicle just west of the driveway facing east on the north side of the road.

The Complainant resisted as the officers attempted to place him in the rear passenger side seat of the cruiser. SO #1 decided to ground the Complainant at this point. The tactic resulted in the back of the Complainant’s head impacting the road. The Complainant continued to struggle on the ground, attempting to get up, and the officers wrestled with him to prevent that from happening.

Paramedics arrived at the scene and transported the Complainant to hospital where he was diagnosed with two closed-head injuries. In an expert medical opinion obtained by the investigation, these were described as: a non-displaced fracture of the right mastoid / temporal bone; and, a left-sided contre-coup contusional injury to the cerebrum.

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 34, Criminal Code -- Defence of person - Use or threat of force

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 

(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) The act committed is reasonable in the circumstances.

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon; 

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and 

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

On April 12, 2021, the Complainant was seriously injured in and around the time of his arrest by OPP officers in Wasaga Beach. The OPP officers – SO #1 and SO #2 – were identified as subject officials 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 either subject official committed a criminal offence in connection with the Complainant’s injuries.

Pursuant to section 34 of the Criminal Code, force used in the defence of oneself or another from a reasonably apprehended attack, actual or threatened, is justified if the force itself was reasonable. The reasonableness of the force is to be assessed against the relevant circumstances, including such factors as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. In my view, the use by SO #1 of the CEW fell within the ambit of the protection prescribed by section 34.

SO #1 was in the execution of his duties and lawfully placed when he came face-to-face with the Complainant in the leadup to his CEW discharge. The police had been called to the residence by CW #1 expressing concerns about her son’s aggressive behaviour. In the circumstances, I am satisfied that SO #1’s entry into the home was lawful pursuant to the common law enunciated in R v Godoy, [1999] 1 SCR 311. He had heard yelling from inside the home and was justifiably concerned that entry was immediately needed to ensure CW #1’s safety.

I am further satisfied that the officer’s resort to his CEW was a reasonable response to a genuinely and reasonably apprehended attack. There is little doubt that the Complainant was furious at SO #1’s entry into the house, and that he angrily confronted the officer with a sword and bat in hand. While these items might have been more ceremonial or ornamental than real in nature, SO #1 had only split seconds in which to react and may be forgiven if he was mistaken with respect to the gravity of the threat at hand. Moreover, I do not accept that the items represented no threat at all. On the contrary, the Complainant intended them as weapons, and I am satisfied that they were capable of inflicting harm had they been brought to bear. On this record, I am unable to reasonably conclude that SO #1 acted with excess when he endeavored to neutralize the Complainant from a distance with the use of his CEW. In fact, the CEW had its intended effect – the Complainant was dispossessed of the weapons and his advance on the officer was immediately halted.

Less clear is whether the takedown by the side of the cruiser constituted legally justified force. It certainly was not under section 34 of the Criminal Code as the Complainant’s hands were cuffed at this time and he did not constitute a serious threat to either SO #1 or SO #2. Rather, the operative provision for consideration is section 25(1) of the Code, pursuant to which 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.

By the time of the grounding, the Complainant was lawfully in police custody. He had advanced on an officer with weapons in hand in what effectively amounted to an assault, and was subject to arrest on that basis. Once under arrest, SO #1 and SO #2 were within their rights in exercising control over the Complainant’s movements to ensure his safety as well as theirs.

The evidence establishes that the Complainant resisted the officers’ efforts to place him inside the vehicle. In my view, this entitled the officers to resort to a measure of force. The decision to effect a takedown would not appear an unreasonable one in the circumstances. Once on the ground, as SO #1 explained, the officers could better expect to manage any further struggle by the Complainant as they waited for paramedics to arrive given his positional disadvantage. It is the execution of the takedown that gives rise to some concern.

There were some eyewitnesses who expressed concern with the force used against the Complainant by the side of the cruiser, albeit their descriptions of the force they observed were inconsistent. The most compelling evidence in this regard described the Complainant’s head hitting the ground hard as he was taken to the ground.

On the other hand, SO #1 said that he grounded the Complainant in a controlled fashion by simply pulling him down. His head might have hit the roadway, but any such impact was not forceful. The officer also denied that he or SO #2 swept the Complainant’s feet out from under him to effect the takedown.

In the final analysis, I am not satisfied with any level of confidence that the evidence on this point is sufficiently cogent to warrant being put to the test by a trier-of-fact. Simply put, given the discrepancies in the witness statements, including those of civilians, I am unable to reasonably determine what occurred. Aside from the discrepancy of the accounts proffered by the witnesses, the medical evidence is also equivocal. That is to say, it left open the possibility that the contre-coup contusional injury to the cerebrum could have resulted from blunt impact to the back of the head (likely, during the takedown) or blunt force to the right side of the head (likely, during the fall after the CEW discharge). It is also not clear that a takedown of the type described where the Complainant hit his head was necessarily excessive. Though the accounts suggest that SO #1 (and, perhaps, SO #2) ought to have taken greater care in forcing the Complainant to the ground, the law recognizes that the use of force is inherently inexact and makes allowance for it. The law does not require that an officer measure their responsive force with exactitude; what is required is a reasonable response, not a perfect one. If SO #1 was entitled to take the Complainant to the ground as a general proposition, and I am satisfied that he was, than one would be hard-pressed to establish without more cogent evidence that the manner in which the officer executed the tactic was so over the top as to be unreasonable.

For the foregoing reasons, while I accept that the Complainant’s injuries were incurred in the course of his engagement with SO #1 and SO #2, there are no reasonable grounds to believe that they are attributable to unlawful conduct on the part of either officer. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: June 7, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit