SIU Director’s Report - Case # 22-OCI-085
Warning:
This page contains graphic content that can shock, offend and upset.
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 the serious injuries a 28-year-old man (the “Complainant”) suffered.
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 28-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On March 19, 2022, at 9:51 a.m., the Guelph Police Service (GPS) contacted the SIU with the following information.On March 18, 2022, at about 10:57 a.m., a GPS police officer noticed a vehicle parked on the side of Highway 6. The police officer checked the plate, and learned that the registered owner was a suspended driver. The police officer turned around to investigate the vehicle and observed a man by the car with a portable gas can. As the police officer approached the vehicle, the man got in and drove off at a high rate of speed.
The police officer pursued the vehicle onto Marden Road and eventually pulled over in the area of 7354 Marden Road. The driver fled on foot and the police officer chased on foot and grounded the man.
The man displayed signs of impairment by alcohol and was transported to the GPS Central Station where he provided breath samples. When the man was interviewed by a cell sergeant, he made no complaints of injury but later complained of some minor pain in his ribs.
GPS took the man to Guelph General Hospital (GGH) so he could be examined, and it was learned that he had two fractured ribs.
The Team
Date and time team dispatched: 03/19/2022 at 11:28 a.m.Date and time SIU arrived on scene: 03/21/2022 at 9:04 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
28-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on March 21, 2022.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal right.The subject official was interviewed on April 27, 2022.
Witness Officials (WO)
WO #1 InterviewedWO #2 Not interviewed, but notes received and reviewed
WO #3 Interviewed
The witness officials were interviewed between April 1 and 7, 2022.
Evidence
The Scene
There was no scene held, and GPS did not take any photographs. The arrest took place near 7354 Marden Road, which was a rural two-lane road with a speed limit of 80 km/h, located in Wellington County. The roadway was paved and had gravel shoulders. This was a long straight road in the country.Video/Audio/Photographic Evidence [1]
GPS Communication Recordings
On March 23, 2022, GPS provided the communications recordings and the Computer-assisted Dispatch (CAD) Report to the SIU. The recordings showed that on March 18, 2022, at 10:57 a.m., the SO checked a licence plate and learned it belonged to the Complainant. The SO then parked on Conservation Road and dispatch asked if they were out with the driver. The SO broadcast that the Toyota was found on the side of Highway 6 and appeared abandoned. He then broadcast that a man who might be the driver was walking towards the vehicle.
The next broadcast was not until 11:08 a.m., when the SO advised that an arrest had been made of an impaired driver. There was no request for an ambulance, but a transport unit was requested.
GPS Custody Video
On March 23, 2022, GPS provided the custody video and the Arrest Report to the SIU. The information in the custody video indicated that the Complainant was being processed for an impaired driving charge and had to provide breath samples.
The Complainant explained to WO #3 that he did not stop right away after he exited his Toyota and that he was thrown to the ground. He believed the GPS police officers thought he was trying to flee and threw him down and “put the boots to me”. Sometime later, the Complainant advised he felt ill and wanted to vomit. An ambulance was called and transported him to the GGH.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from GPS between March 23 and 25, 2022:- Arrest Report;
- Communications recordings;
- Custody video;
- CAD Report;
- Information – the Complainant;
- Charge Report;
- Notes-WO #3;
- Notes-WO #2;
- Notes-WO #1; and
- Part III Summons – the Complainant.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Medical records were obtained from the GGH.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO, and another officer who participated in the Complainant’s arrest – WO #1.
In the morning of March 18, 2022, the Complainant, while operating a Toyota Tercel, ran out of fuel traveling northbound on Highway 6, south of Marden Road. He was a suspended driver and subject to a driving prohibition at the time – a condition of a probation order. The Complainant left his Toyota on the east shoulder of the road, retrieved some fuel in a gas can, returned to his vehicle and refueled it.
The SO, operating a police pickup truck with his partner, WO #1, in the front passenger seat, travelled south past the Toyota on Highway 6. The officers ran a check on the licence plate of the Toyota and learned that its registered owner – the Complainant – was a prohibited driver. They decided to conduct a traffic stop of the Toyota.
After refueling the Toyota, the Complainant returned to the driver’s seat and accelerated northward on Highway 6. The Complainant turned left on Marden Road and continued at speed westward, passing vehicles in the oncoming lane of traffic and the north shoulder. In and around the area of 7354 Marden Road, upwards of a kilometre west of Highway 6, the Complainant pulled over onto the shoulder and exited his vehicle.
The officers, having pursued the Complainant onto Marden Road, stopped their vehicle behind the Toyota. WO #1 was the first out of their truck. He confronted the Complainant, pulled him onto the gravel surface of the shoulder, and struggled to bring his arms behind his back. The SO arrived shortly after the takedown, approached the left side of the Complainant, then in a prone position, and placed his left knee on the Complainant’s left back with his body weight behind it. The officer brought the Complainant’s left hand behind his back, as WO #1 did the same with the right arm, and the handcuffs were secured.
Following his arrest, the Complainant was transported to the station. He was subsequently taken to hospital and diagnosed with a fracture of the left seventh posterior rib.
In the morning of March 18, 2022, the Complainant, while operating a Toyota Tercel, ran out of fuel traveling northbound on Highway 6, south of Marden Road. He was a suspended driver and subject to a driving prohibition at the time – a condition of a probation order. The Complainant left his Toyota on the east shoulder of the road, retrieved some fuel in a gas can, returned to his vehicle and refueled it.
The SO, operating a police pickup truck with his partner, WO #1, in the front passenger seat, travelled south past the Toyota on Highway 6. The officers ran a check on the licence plate of the Toyota and learned that its registered owner – the Complainant – was a prohibited driver. They decided to conduct a traffic stop of the Toyota.
After refueling the Toyota, the Complainant returned to the driver’s seat and accelerated northward on Highway 6. The Complainant turned left on Marden Road and continued at speed westward, passing vehicles in the oncoming lane of traffic and the north shoulder. In and around the area of 7354 Marden Road, upwards of a kilometre west of Highway 6, the Complainant pulled over onto the shoulder and exited his vehicle.
The officers, having pursued the Complainant onto Marden Road, stopped their vehicle behind the Toyota. WO #1 was the first out of their truck. He confronted the Complainant, pulled him onto the gravel surface of the shoulder, and struggled to bring his arms behind his back. The SO arrived shortly after the takedown, approached the left side of the Complainant, then in a prone position, and placed his left knee on the Complainant’s left back with his body weight behind it. The officer brought the Complainant’s left hand behind his back, as WO #1 did the same with the right arm, and the handcuffs were secured.
Following his arrest, the Complainant was transported to the station. He was subsequently taken to hospital and diagnosed with a fracture of the left seventh posterior rib.
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 seriously injured in the course of his arrest by GPS officers on March 18, 2022. One of the 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 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.
By the time of the Complainant’s arrest, the SO and WO #1 had cause to believe that he was in violation of a term of his probation that he not operate a motor vehicle. In the circumstances, the officers had lawful grounds to seek to take the Complainant into custody.
There is some evidence suggesting that the SO approached and placed a foot on the Complainant’s back with significant force as he was handcuffed on the ground. If true, this evidence could give rise to liability for an assault-based offence against the officer. It would be unwise and unsafe, however, to rest charges on the strength of the evidence.
The source of the evidence was under the influence of alcohol on the day in question detracting from their ability to accurately perceive and recall the events in question. The source also minimizes the conduct of the Complainant in the leadup to his arrest, suggesting that he was unaware that he was being pursued by the officers until the final stages of his travel on Marden Road, at which point he pulled over. This account, however, is belied by the Complainant’s driving on Marden Road, in which he passed slower moving traffic in a reckless fashion on a couple of occasions. The clear import of that evidence is that the Complainant was aware he was being pursued, and was doing what he could to evade police apprehension, at least for a period of time. The cumulative impact of these and other frailties associated with this evidence renders it insufficiently reliable to warrant putting it to the test by a trier-of-fact.
What remains of the evidence indicates that the Complainant resisted his arrest on the ground, refusing to release his arms, and was eventually subdued by the officers’ greater manpower and arrested. In the course of the struggle, the SO placed his body weight on the Complainant’s back in the form of his left knee. He did not strike the Complainant but merely attempted to restrict his movements on the ground by the application of downward pressure. On this record, it would not appear that the SO used more force than was necessary to effect the Complainant’s arrest.
In the result, while I accept that the Complainant’s injury is attributable to the force used by the SO, there are no reasonable grounds to believe the officer comported himself other than lawfully in their engagement. Accordingly, there is no basis for proceeding with criminal charges against the officer.
Date: July 7, 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.
By the time of the Complainant’s arrest, the SO and WO #1 had cause to believe that he was in violation of a term of his probation that he not operate a motor vehicle. In the circumstances, the officers had lawful grounds to seek to take the Complainant into custody.
There is some evidence suggesting that the SO approached and placed a foot on the Complainant’s back with significant force as he was handcuffed on the ground. If true, this evidence could give rise to liability for an assault-based offence against the officer. It would be unwise and unsafe, however, to rest charges on the strength of the evidence.
The source of the evidence was under the influence of alcohol on the day in question detracting from their ability to accurately perceive and recall the events in question. The source also minimizes the conduct of the Complainant in the leadup to his arrest, suggesting that he was unaware that he was being pursued by the officers until the final stages of his travel on Marden Road, at which point he pulled over. This account, however, is belied by the Complainant’s driving on Marden Road, in which he passed slower moving traffic in a reckless fashion on a couple of occasions. The clear import of that evidence is that the Complainant was aware he was being pursued, and was doing what he could to evade police apprehension, at least for a period of time. The cumulative impact of these and other frailties associated with this evidence renders it insufficiently reliable to warrant putting it to the test by a trier-of-fact.
What remains of the evidence indicates that the Complainant resisted his arrest on the ground, refusing to release his arms, and was eventually subdued by the officers’ greater manpower and arrested. In the course of the struggle, the SO placed his body weight on the Complainant’s back in the form of his left knee. He did not strike the Complainant but merely attempted to restrict his movements on the ground by the application of downward pressure. On this record, it would not appear that the SO used more force than was necessary to effect the Complainant’s arrest.
In the result, while I accept that the Complainant’s injury is attributable to the force used by the SO, there are no reasonable grounds to believe the officer comported himself other than lawfully in their engagement. Accordingly, there is no basis for proceeding with criminal charges against the officer.
Date: July 7, 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.