SIU Director’s Report - Case # 22-OCI-042
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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 56-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 56-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On February 12, 2022, at 9:05 p.m., the Peel Regional Police (PRP) notified the SIU of the Complainant’s injury.According to the PRP, on February 12, 2022, at approximately 2:44 p.m., PRP officers responded to a domestic dispute at an apartment in Mississauga. When the officers arrived, they saw the Complainant intoxicated and inside the apartment. The Complainant was breaching his bail conditions. The officers used force to arrest the Complainant, who was taken to Credit Valley Hospital and diagnosed with a fractured left arm. The Complainant was bleeding from a finger. A police officer had drawn his conducted energy weapon (CEW), but it was not deployed. Body-worn camera (BWC) video footage was available.
The Team
Date and time team dispatched: 02/13/2022 at 9:12 a.m.Date and time SIU arrived on scene: 02/13/2022 at 9:32 a.m.
Number of SIU Investigators
assigned: 4
Affected Person (aka “Complainant”):
InterviewedCivilian Witnesses
CW Interviewed The civilian witness was interviewed on February 13, 2022.
Subject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on March 2, 2022.
Witness Officials
WO Interviewed The witness official was interviewed on February 14, 2022.
Evidence
The Scene
The scene was inside an apartment near Southdown Road and Lakeshore Road West in Mississauga. This was a scheduled response - the scene was not held, and no SIU forensic investigators attended the scene.Video/Audio/Photographic Evidence [1]
The PRP provided copies of the video footage from the cameras worn by the WO and SO during their interaction on February 12, 2022, from 3:19 p.m. to 3:25 p.m., with the Complainant. The interaction was at the apartment. The recordings included an audio component. The following is a summary of the pertinent footage.
BWC of the SO
At 3:19 p.m., the WO arrived in the hallway of an apartment building. He stood with the SO in front of the apartment door and listened before he knocked at the door. At 3:21 p.m., a man could be heard from inside the apartment respond to the knock at the door and the SO indicated that it was the “police” at the door. A woman [now known to be the CW] opened the apartment door and the WO asked, “Is the Complainant here?” A man’s voice [now known to have been the Complainant’s] replied, “Yes, I’m here.” The CW asked who the person was that called the police officers. The WO responded that it did not matter because the Complainant was not supposed to be there. The CW then walked away from the door and the police officers entered the apartment and continued their conversation with the Complainant.
At 3:22 p.m., the Complainant was captured sitting on the couch in the living room to the police officer’s left. He said he was at the apartment because the CW wanted him there. The SO advised the Complainant that he had to go to the courts to alter the prohibition condition. The police had been called due to the continuous yelling, which came from the apartment all morning. The Complainant agreed with the SO’s statement, and he began to put on a medical mask.
At 3:23 p.m., the SO told the Complainant that until he attended court for a variation he could not associate with the CW. He told the Complainant he was going to be charged with breaching the conditions of his release and he asked the Complainant to come with them.
At 3:23 p.m., the Complainant said his neighbour had called the police and the Complainant made a threatening comment toward the neighbour. The SO advised the Complainant not to make threats. The Complainant stood up and said, “I am going to take you out, and then I am going to get him,” referring to the neighbour who had called the police. The Complainant approached the SO with his hands in the air in an aggressive manner. The SO grabbed the Complainant’s right wrist. The SO pulled the Complainant to the floor face first. The SO placed a handcuff on the Complainant’s right wrist and attempted to move the Complainant into a position to reach for his left arm. The WO told the SO that the Complainant’s arm was broken. The WO had his CEW in his hand at this time. The CW asked the Complainant, “Why are you being such an asshole?” The SO stopped the handcuffing process and began to assist the Complainant.
At 3:24 p.m., the SO advised the Complainant that he was under arrest for breaching the conditions of his release order. The CW asked why the SO broke the Complainant’s arm, and the SO replied, “Because he was squaring up.” The WO broadcast that they had a party in custody, and he required an ambulance for a broken arm.
At 3:25 p.m., the SO made a request for a supervisor to attend their location.
BWC of the WO
At 3:23 p.m., the Complainant stood up and said, “I am going to take you out, and then I am going to get him.” The Complainant asked the SO if he was “ready” as the Complainant approached with his right hand clenched in a fist and his left hand up in front of his face as a guard. The SO reached out with his left hand and grabbed the Complainant by the Complainant’s right wrist. The SO lost his hold on the Complainant’s arm and then grabbed the back of the Complainant’s upper right arm with his left hand, while he grabbed the Complainant’s right wrist with his right hand. The SO then used the Complainant’s forward motion to allow the Complainant to pass by him as he used a straight arm takedown technique to forcefully direct the Complainant’s face first towards the floor. The SO directed the Complainant to “get down”. As the Complainant fell to the floor, he reached out with his left arm to break his fall and suffered an obvious fracture of the left upper arm.Communication Recordings
The SIU received communication audio recordings from the PRP in relation to the incident in question on February 12, 2022. The following is a summary of the pertinent information from the recordings. At 2:47 p.m., a neighbour called the PRP to report that his neighbours [now known to be the Complainant and the CW] had been fighting and screaming since 7:00 a.m. that morning. The neighbour advised that the couple were in their sixties and both alcoholics; no children were present. The neighbour agreed to meet police in the front lobby of the building.
At 2:48 p.m., the WO and SO were dispatched. Information was received that the Complainant had conditions not to be at the address and not to associate with CW. The Complainant had no fixed address. The WO arrived at the lobby at 3:05 p.m. and spoke to the neighbour while waiting for the SO.
At 3:25 p.m., the WO advised dispatch that the Complainant was in custody, and he requested an ambulance for a broken arm.
An ambulance arrived at 4:10 p.m. A police officer advised dispatch that the Complainant was on his way to the hospital, and the police officer was on board with the Complainant.
Materials Obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials from the PRP:- Photographs;
- Computer-assisted Dispatch report;
- Court Order – the Complainant.;
- Incident Response Policy;
- Notes- the WO;
- Occurrence Report;
- Communications recordings;
- BWC footage (x2); and
- SO - Training Summary.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources:- Ambulance Call Report for the Complainant.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may briefly be summarized.
In the afternoon of February 12, 2022, the SO and WO attended an apartment in Mississauga. They were there in response to a noise complaint. The officers spoke with the person who had filed the complaint in the building lobby and confirmed information provided at dispatch that the Complainant was present in the apartment with his common-law spouse, the CW, in violation of the terms of a recent release order.
The Complainant and CW were together inside the apartment. They were inebriated and had been arguing all day.
The officers entered the apartment after the door was opened by the CW and quickly advised the Complainant that he was under arrest. The Complainant got up from the sofa he was sitting on and approached SO, standing just inside the doorway. He threatened to assault the person who had contacted the police and then threatened to assault the SO as he continued to approach in a boxer’s stance, his right hand closed in a fist.
The SO grabbed hold of the Complainant’s right arm as the Complainant had neared to under a metre and forced him to the floor. The Complainant landed with his left arm under him, suffering a fracture of the arm in the process.
Aware that the Complainant had been injured, the officers arranged for the attendance of paramedics.
The Complainant was transported to hospital where his reported injury was diagnosed.
In the afternoon of February 12, 2022, the SO and WO attended an apartment in Mississauga. They were there in response to a noise complaint. The officers spoke with the person who had filed the complaint in the building lobby and confirmed information provided at dispatch that the Complainant was present in the apartment with his common-law spouse, the CW, in violation of the terms of a recent release order.
The Complainant and CW were together inside the apartment. They were inebriated and had been arguing all day.
The officers entered the apartment after the door was opened by the CW and quickly advised the Complainant that he was under arrest. The Complainant got up from the sofa he was sitting on and approached SO, standing just inside the doorway. He threatened to assault the person who had contacted the police and then threatened to assault the SO as he continued to approach in a boxer’s stance, his right hand closed in a fist.
The SO grabbed hold of the Complainant’s right arm as the Complainant had neared to under a metre and forced him to the floor. The Complainant landed with his left arm under him, suffering a fracture of the arm in the process.
Aware that the Complainant had been injured, the officers arranged for the attendance of paramedics.
The Complainant was transported to hospital where his reported injury was diagnosed.
Relevant Legislation
Section 34, Criminal Code -- Defence of person - Use or threat of force
34 (1) A person is not guilty of an offence if
(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.
Analysis and Director's Decision
The Complainant suffered a serious injury in the course of his arrest by PRP officers on February 12, 2022. One of the officers – the SO – was identified as the subject official for purposes of the ensuing SIU investigation. The investigation is now completed. 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 injury.
Section 34 of the Criminal Code codifies the law of self-defence in Canada. It provides that the use of force to protect against a reasonably apprehended attack, actual or threatened, is legally justified if it constitutes reasonable force. The reasonableness of the force is to be assessed against the surrounding 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.
The SO acted within the parameters of section 34 when he grounded the Complainant. Without much warning, the Complainant had escalated what was a peaceful interaction into one in which he was threatening to do violence to the SO. The Complainant had lifted himself from the sofa and indicated he would “punch” the person who had called the police to make a noise complaint after he had “taken out” the SO. As he spoke these words, the Complainant was approaching the SO and was within striking distance, his right hand raised in a fist in a boxer’s stance, when the SO engaged him physically. Specifically, the officer grabbed hold of the Complainant’s right arm and pulled him to the ground onto his left side. The tactic, in my view, was reasonably available to the officer given the imminence of the attack and the need to quickly neutralize the threat. No strikes were delivered, and no weapons were used.
In the result, while I accept that the Complainant broke his left arm when he fell awkwardly on it having been forced to the floor by the SO, there are no reasonable grounds to conclude that the injury was attributable to unlawful conduct on the part of the officer. Accordingly, there is no basis for proceeding with charges in this case. The file is closed.
Date: June 9, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Section 34 of the Criminal Code codifies the law of self-defence in Canada. It provides that the use of force to protect against a reasonably apprehended attack, actual or threatened, is legally justified if it constitutes reasonable force. The reasonableness of the force is to be assessed against the surrounding 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.
The SO acted within the parameters of section 34 when he grounded the Complainant. Without much warning, the Complainant had escalated what was a peaceful interaction into one in which he was threatening to do violence to the SO. The Complainant had lifted himself from the sofa and indicated he would “punch” the person who had called the police to make a noise complaint after he had “taken out” the SO. As he spoke these words, the Complainant was approaching the SO and was within striking distance, his right hand raised in a fist in a boxer’s stance, when the SO engaged him physically. Specifically, the officer grabbed hold of the Complainant’s right arm and pulled him to the ground onto his left side. The tactic, in my view, was reasonably available to the officer given the imminence of the attack and the need to quickly neutralize the threat. No strikes were delivered, and no weapons were used.
In the result, while I accept that the Complainant broke his left arm when he fell awkwardly on it having been forced to the floor by the SO, there are no reasonable grounds to conclude that the injury was attributable to unlawful conduct on the part of the officer. Accordingly, there is no basis for proceeding with charges in this case. The file is closed.
Date: June 9, 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. 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.