SIU Director’s Report - Case # 22-OCI-070
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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 57-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 57-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On March 7, 2022, at 11:30 p.m., the City of Kawartha Lakes Police Service (KLPS) notified the SIU of the Complainant’s injury. According to the KLPS, at 7:44 p.m., officers responded to a domestic dispute at the Complainant’s residence in Lindsay. While an officer – the witness official (WO) - spoke with the Complainant’s wife, the Complainant pushed an officer – the Subject Official (SO) - as he attempted to go upstairs. The SO discharged his Conducted Energy Weapon (CEW), which knocked the Complainant to the floor. The Complainant complained of a sore shoulder and was transported to Ross Memorial Hospital (RMH) by a Kawartha Lake Paramedic Service ambulance. RMH medical staff advised that the Complainant had suffered a fractured collar bone.
The Team
Date and time team dispatched: 03/08/2022 at 7:10 a.m.Date and time SIU arrived on scene: 03/08/2022 at 12:59 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
Declined to be interviewed; medical record not obtained as the Complainant did not sign a medical releaseSubject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO Interviewed The witness official was interviewed on March 16, 2022.
Evidence
The Scene
The scene, which was not held or examined, was located inside the residence of the Complainant at an address in Lindsay.Forensic Evidence
CEW Data
On March 8, 2022, at 9:10 a.m., a SIU forensic investigator arrived at KLPS Headquarters and met with an officer, who provided the CEW used in the incident. Data from the CEW were downloaded to an offline report on the forensic investigator’s laptop. The CEW was photographed and then returned to the officer. The CEW probes were also photographed.The data indicated that the trigger was deployed for five seconds on March 7, 2022, at 7:38:20 p.m. [1]
Figure 1 - The CEW
Video/Audio/Photographic Evidence [2]
Communications Recordings
The following is a summary of the information contained in the police communications recordings.On March 7, 2022, at 7:33 p.m., the WO and the SO were dispatched to the Complainant’s residence in Lindsay regarding a reported domestic disturbance. The Complainant’s wife had called the police. The alleged aggressor was the Complainant.
Information was broadcast that the Complainant yelled and swore at the woman, and the telephone had been disconnected. The dispatcher advised telephone contact had been re-established, and there were sounds of glass breaking.
The WO broadcast he was at the residence and there was broken glass everywhere.
The dispatcher asked the police officers for their status, and the SO advised that he had the Complainant in custody.
At 7:56 p.m., the WO advised the SO that the Complainant’s wife was not willing to provide information about the Complainant ’s consumption of alcohol, and there were no allegations of assault from the Complainant’s wife.
Booking Video
The following is a summary of the police booking video.On March 7, 2022, at 7:54 p.m., the SO and the Complainant were in the booking area of the KLPS. The SO removed the CEW probes from the chest area of the Complainant. The Complainant told the SO that it hurt when he was struck by the CEW probes. The Complainant apologized for his behaviour and the booking continued without incident.
At 7:57 p.m., the SO explained to the Complainant the reason for his arrest and advised him of his right to speak to counsel.
At 7:58 p.m., the SO asked the Complainant if he was injured, and the Complainant responded that he was not. The Complainant indicated his left shoulder was cramped up and asked if the handcuffs could be removed.
At 8:01 p.m., the Complainant suddenly grabbed his left shoulder and cried out in pain.
At 8:03 p.m., the Complainant was placed in a cell.
At 8:05 p.m., the Complainant called out to the SO and indicated he needed help, as his left shoulder might be dislocated. He indicated he needed medical assistance.
At 8:17 p.m., paramedics entered the booking area and assessed the Complainant.
At 8:19 p.m., the Complainant was placed on a waiting stretcher and one of the paramedics placed a sling on the Complainant’s left shoulder. The paramedics and the Complainant left the booking area.
Materials Obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials from the KLPS:- Arrest Report;
- Procedures regarding Arrest, Security and Control of Prisoners, Search of Persons, and Prisoner Transportation;
- Computer-assisted Dispatch Report;
- Domestic Violence Supplementary Report;
- Domestic Violence Policy;
- WO notes;
- KLPS Communications Audio;
- KLPS Custody Video; and
- Use of Force Report.
Incident Narrative
The evidence collected by the SIU gives rise to the following scenario, which may briefly be summarized.
In the evening of March 7, 2022, the SO and the WO were dispatched to investigate a call from the Complainant’s wife regarding a domestic disturbance.
The officers arrived at the Complainant’s residence in Lindsay. They were let into the residence by the Complainant. The Complainant’s wife was barefoot on the second floor at the top of the stairway. As there was a broken vase on the floor of the main level, and not wanting her to cut herself, the WO went up the stairs to speak with her.
The Complainant was angered by the fact the WO had not removed his boots prior to going to the second floor. He tried to go up the stairs, presumably to confront the officer about the situation, but was prevented by the SO. The Complainant pushed the officer out of his way and was told he was under arrest for assault. He refused to turn around as directed by the SO, after which the officer fired his CEW.
The CEW discharge caused the Complainant’s body to seize and fall. The Complainant is reported to have fractured his left clavicle bone on impact with the floor.
In the evening of March 7, 2022, the SO and the WO were dispatched to investigate a call from the Complainant’s wife regarding a domestic disturbance.
The officers arrived at the Complainant’s residence in Lindsay. They were let into the residence by the Complainant. The Complainant’s wife was barefoot on the second floor at the top of the stairway. As there was a broken vase on the floor of the main level, and not wanting her to cut herself, the WO went up the stairs to speak with her.
The Complainant was angered by the fact the WO had not removed his boots prior to going to the second floor. He tried to go up the stairs, presumably to confront the officer about the situation, but was prevented by the SO. The Complainant pushed the officer out of his way and was told he was under arrest for assault. He refused to turn around as directed by the SO, after which the officer fired his CEW.
The CEW discharge caused the Complainant’s body to seize and fall. The Complainant is reported to have fractured his left clavicle bone on impact with the floor.
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 was reportedly injured in the course of his arrest by a KLPS officer on March 7, 2022. The officer – 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 injury.
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.
Given the nature of the 911 call, and what he would have gathered of the scene upon his arrival, namely, an intoxicated Complainant and damaged property, the SO had reason to be concerned of renewed hostilities between the parties should the Complainant be allowed to go to the second floor. In the circumstances, I am satisfied the officer was within his rights in temporarily impinging on the Complainant’s liberty by blocking his path. Thereafter, when the Complainant reacted by pushing the officer, the SO had grounds to arrest him for assault.
I am also satisfied that the force used by the SO – a CEW discharge – was legally justified. Given the physical exchange that had just occurred, the Complainant’s belligerence and intoxication, and his refusal to turn around as directed, the officer could reasonably expect that the Complainant would physically contest his arrest. On this record, I am satisfied that the SO was entitled to resort to his CEW. If successful, the weapon’s deployment would temporarily immobilize the Complainant from a distance, neutralizing the risk of a violent physical altercation. In fact, that is what occurred.
In the result, while it is regrettable that the Complainant apparently suffered a broken clavicle when he fell having been struck by the CEW probes, there are no reasonable grounds to believe that the SO comported himself unlawfully in his resort to the weapon. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 30, 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.
Given the nature of the 911 call, and what he would have gathered of the scene upon his arrival, namely, an intoxicated Complainant and damaged property, the SO had reason to be concerned of renewed hostilities between the parties should the Complainant be allowed to go to the second floor. In the circumstances, I am satisfied the officer was within his rights in temporarily impinging on the Complainant’s liberty by blocking his path. Thereafter, when the Complainant reacted by pushing the officer, the SO had grounds to arrest him for assault.
I am also satisfied that the force used by the SO – a CEW discharge – was legally justified. Given the physical exchange that had just occurred, the Complainant’s belligerence and intoxication, and his refusal to turn around as directed, the officer could reasonably expect that the Complainant would physically contest his arrest. On this record, I am satisfied that the SO was entitled to resort to his CEW. If successful, the weapon’s deployment would temporarily immobilize the Complainant from a distance, neutralizing the risk of a violent physical altercation. In fact, that is what occurred.
In the result, while it is regrettable that the Complainant apparently suffered a broken clavicle when he fell having been struck by the CEW probes, there are no reasonable grounds to believe that the SO comported himself unlawfully in his resort to the weapon. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 30, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Time derived from internal clock of 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.