SIU Director’s Report - Case # 22-OCI-089
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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 the serious injury a 35-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 injury a 35-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On March 26, 2022, at about 7:00 a.m., the Barrie Police Service (BPS) contacted the SIU with the following information.On March 26, 2022, at approximately 5:30 a.m., members of the BPS responded to a domestic incident at an address near Cundles Road and Bayfield Street, Barrie. Shortly after arrival, police officers attempted to apprehend an individual under the Mental Health Act (MHA). While trying to effect his apprehension, the person, the Complainant, sustained a broken arm. The Complainant was taken to Royal Victoria Hospital (RVH) where he remained at the time of notification.
The Team
Date and Time Team Dispatched: 03/26/2022 at 7:45 a.m.Date and Time SIU Arrived on Scene: 03/26/2022 at 10:03 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
35-year-old male; interviewed, medical records obtained and reviewedThe Complainant was interviewed on March 26, 2022.
Civilian Witness (CW)
CW Interviewed The civilian witness was interviewed on March 26, 2022.
Subject Officials (SO)
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Declined interview and to provide notes, as is the subject official’s legal right
Evidence
The Scene
The incident transpired in and around the entry way and front lawn of the Complainant’s residence, located near Cundles Road and Bayfield Street, Barrie.Video/Audio/Photographic Evidence [1]
Police Telephone Communications
On March 26, 2022, at 5:25 a.m., the Complainant called the 911 dispatcher from his residence in Barrie, Ontario. The Complainant reported he was having an issue with his fiancée [now known to be the CW], who had barricaded herself in her room because the Complainant kept entering and turning on the lights to speak with her. The Complainant reported he had taken drugs and they had not worn off. The Complainant informed the 911 dispatcher he kept hearing someone walking downstairs and was paranoid. The Complainant asked the 911 dispatcher if he should go to bed, and the 911 dispatcher placed him on hold.The 911 dispatcher informed the Complainant police officers would attend his residence to check on his well-being. The Complainant informed the 911 dispatcher he would give his fiancée some space. He indicated he had no more drugs and wanted to know if he should go to the RVH or a friend’s house. The Complainant asked the police not to attend the residence.
The CW asked for police to come and take the Complainant away because he was on cocaine. The Complainant’s child was sleeping, and the 911 dispatcher remained on the line with the Complainant until the police officers attended the residence.
Police Radio Communications
On March 26, 2022, at 5:29 a.m., the dispatcher requested that police officers attend an address near Cundles Road and Bayfield Street in relation to the Complainant, a paranoid man under the influence of illegal narcotics. At 5:38 a.m., a police officer asked the dispatcher if she was still on the line with the Complainant and asked her to tell him to come down as they were there.
At 6:05 a.m., a police officer requested another unit at the residence.
At 6:09 a.m., a police officer asked if the units were coming, and the dispatcher informed him they were coming down Bayfield Street.
At 6:13 a.m., the police officer asked the dispatcher to alert RVH they would need restraints upon arrival.
At 6:14 a.m., a police officer informed the dispatcher the Complainant was in his vehicle.
At 6:24 a.m., the same police officer informed the dispatcher he was at RVH.
Police Body-worn Camera (BWC) Footage
SO #1On March 26, 2022, at 5:31 a.m., the video frame opened with a view of the front of the residence.
At 5:39 a.m., the Complainant opened the front door and SO #1 and SO #2 walked forward. SO #2 identified himself and the Complainant said he was feeling bad about feeling paranoid. SO #2 and the Complainant discussed options for the Complainant to attend elsewhere for the night. At 5:42 a.m., the Complainant’s girlfriend, CW, exited the residence and spoke with SO #1. The CW informed SO #1 that the Complainant used cocaine occasionally and became paranoid after its use. The Complainant was not allowing her to go to sleep, kept looking behind doors, turning the lights on, calling 911, and making her life hell. The CW informed SO #1 that the Complainant had not harmed her physically - he was simply bothering her. SO #1 informed the CW the police officers were attempting to find a place for the Complainant to sleep for the night and the CW entered the residence to go to sleep.
The Complainant stood in the doorway and attempted to call people on his cell phone. SO #1 spoke with the Complainant’s aunt whom he (the Complainant) put on speaker phone. The Complainant repeated, “I don’t want any problems,” and spoke with his aunt on the telephone. The Complainant agreed to attend RVH with the police officers. The Complainant called his aunt several times and disconnected the call. He said he would get his wallet and go to the hospital. The Complainant attempted to wake his neighbours by knocking on their door. The Complainant continued to call his aunt who encouraged him to go with the police officers. The Complainant would agree to leave and then make excuses to stay, speak with his aunt on the telephone, and say he did not want to leave. The Complainant repeated the behaviours for several minutes and the police officers stood back in the middle of the front yard.
The police officers approached the door and, when the Complainant opened it, SO #2 put his foot in the doorway. At 6:02 a.m., the Complainant said to his aunt, “I wanna know how they’re legitimate police officers,” and the Complainant said, “Oh yea, true, I’m going to go with them.” The Complainant said he was going to use the washroom, and the police officers informed the Complainant it was time to leave.
At 6:04 a.m., the police officers entered the Complainant’s residence. SO #2 took hold of the Complainant’s left arm by holding the Complainant’s wrist with his left hand and holding the Complainant’s left bicep with his right hand, after which he was led out to the front lawn. Due to the commotion of movement, the camera view was obscured momentarily. At 6:04 a.m., the camera view captured the Complainant on his knees with SO #1 holding the Complainant’s right arm and SO #2 holding the Complainant’s left arm. The Complainant was led to the ground in a steady manner with SO #2’s right forearm across the Complainant’s back. The Complainant told the police officers to stop and shouted for his girlfriend and neighbour to help him. The police officers told the Complainant to put his hands behind his back. SO #2 said, “Stop fighting, put your other hand behind your back.”
SO #1 faced the Complainant’s head and had his right arm around the Complainant’s head in a hold. SO #2 held the Complainant’s left wrist, controlling his left arm behind his back. SO #1 pushed the Complainant’s right arm up with his left arm and SO #2 handcuffed the Complainant behind his back. SO #1 and SO #2 assisted the Complainant to his feet and led him to a police cruiser.
At 6:06 a.m., the Complainant said, “Why is my arm like that?” The Complainant struggled with SO #1 and SO #2 as they attempted to put him in the back seat of the police cruiser. The Complainant shouted for help, called out to the CW, and continued to struggle with SO #1 and SO #2. SO #1 and SO #2 continued to instruct the Complainant to, “Get in the car.”
At 6:08 a.m., SO #1 was on the ground with the Complainant. SO #1 held the Complainant face down by his upper back.
At 6:10 a.m., additional police officers attended and assisted SO #1 and SO #2 with putting the Complainant in the back seat of a police cruiser. The Complainant was struck multiple times in the chest as he resisted but it was not clear with what, and he was secured in the police cruiser.
SO #2
On March 26, 2022, at 5:31 a.m., the video frame opened with a view of the front of the residence.
At 6:01 a.m, SO #2 placed his right foot on the door threshold.
At 6:04 a.m., SO #2 and SO #1 entered the residence. SO #2 took hold of the Complainant’s left arm and moved forward. SO #1 landed on the ground and when he stood, the video frame showed the Complainant on his back and SO #2 to his side with his hands near the Complainant’s shoulders. SO #1 joined SO #2 and, due to the commotion, it was not clear what happened next. the Complainant was on his knees, and SO #1 was in front of the Complainant at his head holding him by the right arm.
The Complainant was made to stand and SO #1 had the Complainant by the right arm. The Complainant was escorted to a police cruiser and resisted being placed into the cruiser by putting his knee on the seat and planking his body at times. The Complainant was handcuffed behind his back. SO #2 gave the Complainant two knee strikes to his left thigh and a struggle started again.
The Complainant was led to the ground and SO #1 had his left knee on the Complainant’s back. Additional police officers arrived, and the Complainant was stood up, after which he was escorted to another police vehicle.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from BPS between March 28 and 30, 2022:- Apprehension Report;
- Communications recordings;
- BWC footage (x4); and
- Person Detail History Summary.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Medical records of the Complainant - RVH.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and a civilian witness to some of the events in question, and video footage from police BWCs that captured the incident in parts. As was their legal right, neither subject official chose to interview with the SIU or authorize the release of their notes.
In the morning of March 26, 2022, the Complainant contacted police. He had consumed cocaine and was paranoid and having difficulties with his partner – the CW. The CW told the police call-taker she wanted the Complainant removed from the home. The call-taker advised that police officers would be dispatched to check on their well-being.
SO #2 and SO #1 arrived at the residence at about 5:40 a.m. From outside the front door, they spoke with the Complainant for about 20 minutes attempting to have him accompany them to hospital. The Complainant acknowledged being paranoid, and variously agreed and declined to go with the officers. For much of their conversation, through the open front doorway with the Complainant just inside the house, the Complainant was on his mobile phone with his aunt. His aunt and the CW encouraged him to go with the officers, but he demurred.
Shortly after 6:00 a.m., SO #2 and SO #1 stepped into the doorway threshold and grabbed hold of the Complainant. As the Complainant resisted their efforts, the officers forced him out of the house onto the porch and then onto the front lawn, where the parties fell to the ground. The Complainant struggled against the officers’ efforts but was eventually subdued and handcuffed behind his back. It would appear that the Complainant suffered his injury – a chipped and dislocated left elbow – in the course of the struggle at this time.
Following his arrest, the Complainant was accompanied to the rear of a police cruiser where he resisted as the officers attempted to place him in the vehicle. Unable to force him into the back, the Complainant was placed and held on the ground by SO #1 and SO #2 while they waited for the arrival of additional officers.
With the arrival of the additional officers, the Complainant was lifted and walked to another police cruiser where he again resisted as the officers tried to place him in the rear compartment. One or more of the officers responded with several strikes to the torso. The Complainant was eventually placed in the cruiser and taken to hospital where his injuries were diagnosed.
In the morning of March 26, 2022, the Complainant contacted police. He had consumed cocaine and was paranoid and having difficulties with his partner – the CW. The CW told the police call-taker she wanted the Complainant removed from the home. The call-taker advised that police officers would be dispatched to check on their well-being.
SO #2 and SO #1 arrived at the residence at about 5:40 a.m. From outside the front door, they spoke with the Complainant for about 20 minutes attempting to have him accompany them to hospital. The Complainant acknowledged being paranoid, and variously agreed and declined to go with the officers. For much of their conversation, through the open front doorway with the Complainant just inside the house, the Complainant was on his mobile phone with his aunt. His aunt and the CW encouraged him to go with the officers, but he demurred.
Shortly after 6:00 a.m., SO #2 and SO #1 stepped into the doorway threshold and grabbed hold of the Complainant. As the Complainant resisted their efforts, the officers forced him out of the house onto the porch and then onto the front lawn, where the parties fell to the ground. The Complainant struggled against the officers’ efforts but was eventually subdued and handcuffed behind his back. It would appear that the Complainant suffered his injury – a chipped and dislocated left elbow – in the course of the struggle at this time.
Following his arrest, the Complainant was accompanied to the rear of a police cruiser where he resisted as the officers attempted to place him in the vehicle. Unable to force him into the back, the Complainant was placed and held on the ground by SO #1 and SO #2 while they waited for the arrival of additional officers.
With the arrival of the additional officers, the Complainant was lifted and walked to another police cruiser where he again resisted as the officers tried to place him in the rear compartment. One or more of the officers responded with several strikes to the torso. The Complainant was eventually placed in the cruiser and taken to hospital where his injuries were diagnosed.
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.
Section 17, Mental Health Act -- Action by police officer
17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(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,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.
Analysis and Director's Decision
The Complainant suffered a serious injury in the course of his arrest by BPS officers on March 26, 2022. The officers – SO #2 and SO #1 – were identified as subject officials in the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that SO #2 or SO #1 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.
SO #2 and SO #1 were proceeding to lawfully arrest the Complainant under section 17 of the MHA. By his own admission and outward indications, the Complainant was clearly paranoid – the result, reportedly, of his cocaine consumption. He heard noises which caused him concern – figments of his imagination. And he had harassed the CW to the point where she could no longer sleep and wanted him removed from the home. Given his tenuous hold on reality, the officers were within their rights in seeking to apprehend him for psychiatric examination at hospital. [2]
With respect to the force used by the officers against the Complainant, I am unable to reasonably conclude that it was unjustified. The precise nature and extent of the force remains unclear – neither officer provided a statement to the SIU and the BWC footage did not capture the events with particularity. What is known, based on the Complainant’s statement and the BWC camera imagery that was clear, is that the Complainant physically struggled against the officers’ efforts to handcuff him and place him in a cruiser, and that the officers reacted by wrestling with him on the ground to control his arms and delivering one or more strikes to his body. There was no real evidence of any gratuitous force having been brought to bear by the subject officials.
In the result, while I accept that the Complainant’s arm was injured by the force used by one or both of SO #2 and SO #1, there are no reasonable grounds to believe the injury is attributable to unlawful conduct on the part of either officer. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: July 22, 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.
SO #2 and SO #1 were proceeding to lawfully arrest the Complainant under section 17 of the MHA. By his own admission and outward indications, the Complainant was clearly paranoid – the result, reportedly, of his cocaine consumption. He heard noises which caused him concern – figments of his imagination. And he had harassed the CW to the point where she could no longer sleep and wanted him removed from the home. Given his tenuous hold on reality, the officers were within their rights in seeking to apprehend him for psychiatric examination at hospital. [2]
With respect to the force used by the officers against the Complainant, I am unable to reasonably conclude that it was unjustified. The precise nature and extent of the force remains unclear – neither officer provided a statement to the SIU and the BWC footage did not capture the events with particularity. What is known, based on the Complainant’s statement and the BWC camera imagery that was clear, is that the Complainant physically struggled against the officers’ efforts to handcuff him and place him in a cruiser, and that the officers reacted by wrestling with him on the ground to control his arms and delivering one or more strikes to his body. There was no real evidence of any gratuitous force having been brought to bear by the subject officials.
In the result, while I accept that the Complainant’s arm was injured by the force used by one or both of SO #2 and SO #1, there are no reasonable grounds to believe the injury is attributable to unlawful conduct on the part of either officer. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: July 22, 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]
- 2) The evidence also falls short of reasonably establishing that the officers were unlawfully inside the home at the time of the arrest. As they had been called to the house by the Complainant and CW, the latter wishing him removed from the premises, I am satisfied that the officers had sufficient grounds to enter the home to effect the Complainant’s apprehension under the MHA. [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.