SIU Director’s Report - Case # 22-OCI-095
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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 41-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 41-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On March 31, 2022, at 7:42 p.m., the Barrie Police Service (BPS) notified the SIU of an injury. BPS reported that, at 2:49 p.m., plainclothes police officers had arrested the Complainant in the area of Collier and Berczy Streets in Barrie on the strength of a warrant. A struggle ensued in the arrest and uniformed police officers arrived to assist. The Complainant was apprehended and transported to the police station. The Complainant was later taken to the Royal Victoria Hospital (RVH) where he was diagnosed with a concussion and sutures were applied to a cut to his head. Following discharge from hospital, the Complainant was returned to the police station where he was lodged in a cell. BPS further advised the arresting police officers were Witness Official (WO) #6 and WO #7, the latter an acting sergeant at the time.The Team
Date and time team dispatched: 03/31/2022 at 8:34 p.m.Date and time SIU arrived on scene: 03/31/2022 at 8:52 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
41-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on March 31, 2022.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
The civilian witnesses were interviewed between April 2 and 5, 2022.
Subject Official (SO)
SO Interviewed, and notes received and reviewed The subject official was interviewed on April 25, 2022.
Witness Officials
WO #1 Not interviewed, but notes received and reviewed WO #2 Not interviewed, but notes received and reviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
The witness officials were interviewed on April 12, 2022.
Evidence
The Scene
This incident occurred at the northeast corner of the intersection of Collier and Berczy Streets in Barrie. The Complainant was sitting on a low brick retaining wall, where he was smoking a cigarette immediately before he was approached by the police officers.The scene was not secured or preserved, and there was no scene for examination.
The red circled area in the following screenshot from Google Earth was where the Complainant was seated before his interaction with the police. The post office was located immediately east at the northeast corner.
Figure 1 – Google Maps aerial view of scene
Video/Audio/Photographic Evidence [1]
Police Radio Transmission Recordings
Recorded transmissions were unremarkable, capturing WO #2’s dispatch to the scene at 2:49 p.m. to transport a male in custody.911 Call Recordings
At 2:47 p.m., CW #1 called 911 to report that a police officer near the Canada Post office might need help as she saw an “officer on the ground there wrestling with somebody”. She said a marked cruiser was on scene but the situation “looked quite aggressive” as three police officers appeared to have difficulty restraining a male who had a lot of blood on him.At 2:48 p.m., a police officer, now known to be WO #7, called the communications centre requesting that a cruiser attend to transport the Complainant. Shortly thereafter, at 2:49 p.m., WO #5 also called to report the Complainant was arrested and request a cruiser to transport him to the police station. He was advised WO #2 was already en route.
At 2:56 p.m., CW #2 called 911 to report witnessing a person being “treated like crap” - his head was bashed in and he could have sustained a brain injury.
Body-worn Camera (BWC) Recordings
WO #2’s BWC started at 3:00 p.m., March 31, 2022, after the Complainant was seated in her cruiser and shortly before she entered the vehicle to transport him to BPS headquarters. Although WO #2 was heard conversing with the Complainant, his voice was mostly indecipherable while he spoke from the back seat prisoner compartment. WO #2 was heard asking the Complainant a series of questions, including what the date and month were and what he had eaten for breakfast; his responses were not heard. While the vehicle was stopped, the Complainant was heard telling WO #2 he had been diagnosed with mental health disorders and that he had difficulty dealing with the issues. The recording ended at 3:18 p.m. after arriving at the police station.BPS Video Recordings
Surveillance recordings from the BPS station consisted of audio and video recordings.The Complainant initially arrived at BPS headquarters in WO #2’s custody at 3:17 p.m. In the booking process, he was asked how his injuries were sustained. The Complainant responded, “From being assaulted by an officer. He said that I tried to run but he pulled up in some random car.” The Complainant added, “Even if I did to run, or having hardly even got the chance to run, I didn’t resist and I was giving him my arms right away and he kept on like overpowering me, kneeing me in the head, hitting me. I’m pressing charges.”
The booking police officer immediately arranged for WO #2 to transport the Complainant to the hospital and, at 3:27 p.m., WO #2 left the station with the Complainant.
The Complainant returned to the police station after being released from the hospital. In the booking process from 7:40 to about 7:50 p.m., he was asked whether he required any medication and if he had any illness. The booking police officer reviewed the medical information and advised the Complainant he would be woken regularly throughout the night, per medical advice.
Materials Obtained from Police Service
Upon request, the SIU received the following records from BPS between April 1, 2022, and June 6, 2022:- Arrest Report;
- BWC footage;
- Communications recordings;
- Computer-assisted Dispatch Report;
- Civilian Witness List;
- Event Chronology;
- General Report;
- Notes- WO #6;
- Notes- WO #5;
- Notes- WO #1;
- Notes- WO #2;
- Notes- WO #4;
- Notes- WO #7;
- Notes- WO #3;
- Procedure - Arrest; and
- Supplementary Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - CW #2’s mobile phone photograph; and
- Medical records - RVH.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO, several civilian witnesses and two witness officials who participated in the Complainant’s arrest.
In the afternoon of March 31, 2022, a team of BPS officers were on the lookout for the Complainant. There were warrants out for his arrest and he was suspected in a series of break and enters. WO #6 was one of these officers. He located the Complainant at about 2:45 p.m. The Complainant was seated on a retaining wall at the northeast corner of the Berczy Street and Collier Street intersection.
The SO was also part of the search team. Advised of the Complainant’s location, the SO arrived in the area and parked his unmarked vehicle in the parking lot of the Canada Post retail outlet at the northeast corner of the intersection, east of the Complainant. The officer exited his vehicle and surreptitiously approached the Complainant from behind.
As the SO neared the Complainant, WO #6, travelling south on Berczy Street, brought his vehicle to a stop by the east side curb, just north of Collier Street and west of the Complainant’s location. He exited his cruiser and approached the Complainant, advising him he was under arrest.
At the sight of the officers, the Complainant rose to his feet and attempted to run away southbound on Collier Street. He had taken a couple of strides when he was caught from behind by the SO and tackled to the ground. The Complainant’s head struck the sidewalk, in the process causing a laceration above his right eye.
The Complainant attempted to get up from the ground and resisted his arrest as the SO, joined shortly by WO #6 and then another officer arriving to assist – WO #4 – attempted to secure him in handcuffs. From the ground, the SO struck the Complainant once to the left rib area. WO #6, crouched over the Complainant, struck him two to three times to the head and neck area. The Complainant was eventually subdued and taken into custody.
Following his arrest, the Complainant was taken to the station and then to hospital where he was diagnosed with a concussion and forehead laceration.
In the afternoon of March 31, 2022, a team of BPS officers were on the lookout for the Complainant. There were warrants out for his arrest and he was suspected in a series of break and enters. WO #6 was one of these officers. He located the Complainant at about 2:45 p.m. The Complainant was seated on a retaining wall at the northeast corner of the Berczy Street and Collier Street intersection.
The SO was also part of the search team. Advised of the Complainant’s location, the SO arrived in the area and parked his unmarked vehicle in the parking lot of the Canada Post retail outlet at the northeast corner of the intersection, east of the Complainant. The officer exited his vehicle and surreptitiously approached the Complainant from behind.
As the SO neared the Complainant, WO #6, travelling south on Berczy Street, brought his vehicle to a stop by the east side curb, just north of Collier Street and west of the Complainant’s location. He exited his cruiser and approached the Complainant, advising him he was under arrest.
At the sight of the officers, the Complainant rose to his feet and attempted to run away southbound on Collier Street. He had taken a couple of strides when he was caught from behind by the SO and tackled to the ground. The Complainant’s head struck the sidewalk, in the process causing a laceration above his right eye.
The Complainant attempted to get up from the ground and resisted his arrest as the SO, joined shortly by WO #6 and then another officer arriving to assist – WO #4 – attempted to secure him in handcuffs. From the ground, the SO struck the Complainant once to the left rib area. WO #6, crouched over the Complainant, struck him two to three times to the head and neck area. The Complainant was eventually subdued and taken into custody.
Following his arrest, the Complainant was taken to the station and then to hospital where he was diagnosed with a concussion and forehead laceration.
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 Barrie on March 31, 2022, in the course of his arrest by BPS officers. 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.
The Complainant was subject to police apprehension at the time of the events in question. There was at least one warrant in effect authorizing his arrest.
With respect to the force used by the arresting officers to take the Complainant into custody, I am satisfied that it was legally justified. The SO’s tackle of the Complainant would appear on its face a proportionate and reasonable tactic to thwart the Complainant’s attempt at flight to avoid arrest. Thereafter, given the nature and extent of the Complainant’s physical resistance on the ground, I am unable to reasonably conclude that the limited number of punches struck by the SO and WO #6 were excessive. Following the last of WO #6’s two to three blows, the officers were able to wrestle control of the Complainant’s arms and handcuff them behind his back. No further strikes were delivered.
There is a version of events proffered in the evidence that the Complainant did not resist his arrest and was needlessly punched several times by WO #6. This evidence, however, cannot stand in light of eyewitness evidence that described the Complainant vigorously resisting arrest. Indeed, CW #1 was so concerned with the Complainant’s fight that CW #1 called 911 to alert police of the situation.
In the result, while I accept that the Complainant’s laceration was inflicted in his tackle to the ground and that the concussion was the result of his head hitting the sidewalk or one or more of the punches delivered by the officers, there are no reasonable grounds to believe that the officers who arrested the Complainant comported themselves other than lawfully. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: July 28, 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.
The Complainant was subject to police apprehension at the time of the events in question. There was at least one warrant in effect authorizing his arrest.
With respect to the force used by the arresting officers to take the Complainant into custody, I am satisfied that it was legally justified. The SO’s tackle of the Complainant would appear on its face a proportionate and reasonable tactic to thwart the Complainant’s attempt at flight to avoid arrest. Thereafter, given the nature and extent of the Complainant’s physical resistance on the ground, I am unable to reasonably conclude that the limited number of punches struck by the SO and WO #6 were excessive. Following the last of WO #6’s two to three blows, the officers were able to wrestle control of the Complainant’s arms and handcuff them behind his back. No further strikes were delivered.
There is a version of events proffered in the evidence that the Complainant did not resist his arrest and was needlessly punched several times by WO #6. This evidence, however, cannot stand in light of eyewitness evidence that described the Complainant vigorously resisting arrest. Indeed, CW #1 was so concerned with the Complainant’s fight that CW #1 called 911 to alert police of the situation.
In the result, while I accept that the Complainant’s laceration was inflicted in his tackle to the ground and that the concussion was the result of his head hitting the sidewalk or one or more of the punches delivered by the officers, there are no reasonable grounds to believe that the officers who arrested the Complainant comported themselves other than lawfully. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: July 28, 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.