SIU Director’s Report - Case # 22-PCI-155
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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 injuries 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 injuries a 35-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On June 16, 2022, at 9:23 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.On June 15, 2022, at approximately 10:15 p.m., OPP officers responded to an ‘unwanted person’ complaint at a Tim Hortons at 298 Memorial Drive, Orillia. A Tim Hortons employee had reported that a man [now known to be the Complainant] was causing a disturbance, bothering patrons, and refusing to leave when asked. OPP officers instructed the Complainant to leave and that he would be charged with trespassing if he did not. The Complainant refused. As the police officers attempted to apprehend him, a physical struggle took place. The Complainant broke free from the police officers’ grasp twice and ran away. OPP officers later located the Complainant walking and, while attempting to arrest him, deployed a Conducted Energy Weapon (CEW). The deployment was successful - the Complainant collapsed and fell to the ground. The Complainant was subsequently taken to Orillia Soldiers’ Memorial Hospital (OSMH) where he was diagnosed with a fractured sinus bone.
The Team
Date and time team dispatched: 06/16/2022 at 10:10 a.m.Date and time SIU arrived on scene: 06/16/2022 at 11:00 a.m.
Number of SIU Investigators assigned: 4
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 June 20, 2022.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
The witness officials were interviewed between July 3 and 21, 2022.
Evidence
The Scene
The incident occurred in the parking lot of a multi-unit commercial strip plaza at 220 James Street West, Orillia. SIU investigators did not attend as the scene had already been released at the time of dispatch and there was no anticipated evidentiary value in doing so.
Physical Evidence
A pair of Mastercraft Channellock Pliers was collected at the scene by the OPP.
Figure 1 – Photograph of Mastercraft Channellock Pliers
Forensic Evidence
CEW Data
The following is a summary of the data derived from the CEWs deployed by OPP officers in their interactions with the Complainant.
The SO
- The CEW contained two 25-foot standard cartridges.
- At 11:13:58 p.m., [1] the CEW was armed (powered on).
- At 11:14:01 p.m., the CEW was triggered, and Cartridge #1 was deployed for a duration of four seconds.
- At 11:14:05 p.m., the CEW was rendered safe.
WO #3
- The CEW contained two 25-foot standard cartridges.
- At 10:28:50 p.m., the CEW was armed (powered on).
- At 10:28:51 p.m., the CEW was deployed in ‘Arc’ mode for a duration of six seconds.
- At 10:29:02 p.m., the CEW was rendered safe.
Video/Audio/Photographic Evidence [2]
Video Footage from Business #1
The Complainant exited Tim Hortons, walked about ten steps and sat down on the sidewalk. Moments later, an OPP vehicle turned into the parking lot. The Complainant rose to his feet, walked along the sidewalk and disappeared out of camera view. The Complainant again exited Tim Hortons and sat down on the sidewalk where he was approached by WO #4, WO #5, WO #6 and WO #2. The Complainant stood up and, approximately one minute later, the four police officers converged on him with WO #2 grabbing his right side, and WO #4 grabbing his left side. The Complainant pulled away and ran out of camera view.
Video Footage from Business #2
The Complainant was walking eastbound on James Street West. Two OPP SUVs were travelling eastbound on James Street West, when the first police vehicle [known to be operated by the SO] stopped across the sidewalk in front of the Complainant. The Complainant ran around the police vehicle and into the parking lot of Habitat for Humanity. The SO exited his vehicle and chased after the Complainant. The Complainant was running when he was struck by the SO’s CEW deployment causing his body to stiffen and his forward momentum to launch him forward. His arms remained at his side parallel to his body.
The Complainant struck the pavement fully extended, hitting face first and sliding forward. The SO stood over the Complainant while WO #2 knelt beside him and struck him with two knee strikes to his left side. A police officer [believed to be WO #3] stomped on the Complainant’s lower leg three times, before moving to his head area.
Video Footage from Business #3
The video captured the same events as depicted in the video footage from Business #2, but from a different angle. Nothing further was gained as the footage was of poor quality. Police Communications Recordings
Communications recordings were requested on June 21, 2022, and obtained by the SIU on August 22, 2022. The following is a summary of the pertinent information from the recordings.Telephone Recordings
At 10:13 p.m., Simcoe County Paramedic Services (SCPS) communications centre contacted OPP communications centre to request their assistance at a call at Tim Hortons. SCPS paramedics were on scene, having attended after it was reported that the Complainant was acting strange.
At 10:17 p.m., SCPS called OPP and advised them it was a police matter and that staff at Tim Hortons wanted the Complainant removed from the premises. They had since left the scene.
At 10:19 p.m., OPP communications centre contacted SCPS communications centre and requested an ambulance for the Complainant, who had been “Tasered”, and had suffered a head injury.
Radio Recordings
At 10:14 p.m., WO #2, WO #5, WO #6 and WO #4 were dispatched to Tim Hortons on information that SCPS paramedics were on scene with the Complainant who was acting strange. The paramedics required assistance.
OPP dispatch advised the four OPP officers of a miscommunication, and noted that SCPS paramedics were not required; the matter was a police matter in that Tim Hortons staff wished the Complainant removed from the premise. SCPS had since left the scene.
WO #5 advised OPP dispatch that the Complainant had fled, and reasonable and probable grounds existed to arrest him for assaulting a peace officer.
WO #2 advised dispatch that the Complainant had been located and was proceeding eastbound on James Street West.
There were radio communications by two female police officers to dispatch advising that the Complainant had been running, a CEW had been deployed, and he was in custody.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between June 23, 2022, and August 22, 2022:- Data from the SO’s CEW;
- Data from WO #3’s CEW;
- Communications recordings;
- Event History Report;
- Crown Brief Synopsis;
- Witness List;
- Record of Involved Officers and Roles;
- Notes- WO #1;
- Notes- WO #4;
- Notes- WO #3;
- Notes- WO #7;
- Notes- WO #5;
- Notes- WO #6;
- Notes- WO #2;
- Email thread regarding CEW serial number and usage;
- Policy-Arrest and Detention;
- Policy-Use of Force;
- Civilian Witness Statements (x2); and
- Timeline requested by SIU regarding notification delay.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Video footage from Business #1;
- Video footage from Business #2;
- Video footage from Business #3; and
- Medical records from OSMH.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and several OPP officers involved in his arrest, and video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO declined an interview with the SIU or to authorize the release of his notes.
In the evening of June 15, 2022, the Complainant was on the property of the Tim Hortons – 298 Memorial Drive, Orillia – when restaurant staff became concerned for his well-being and contacted an ambulance. Paramedics arrived on scene and were told by the Complainant that he was fine and did not require assistance. In further conversation with restaurant staff, it became clear to the paramedics that the Complainant was no longer welcome on the property. A call was placed to police by the paramedics and they left the scene.
WO #2, WO #4, WO #5 and WO #6 arrived on scene at about 10:15 p.m. They encountered the Complainant sitting outside by the main doors of the restaurant consuming a muffin and coffee. Told repeatedly that he would have to leave the premises, the Complainant demurred, stood up, and asked the police officers to move back as they were causing him anxiety. WO #2 advised the Complainant that he was under arrest for trespass and took a hold of his right wrist. The Complainant broke free of the officer’s hold and ran west towards a roadway – Memorial Avenue. There, he was again grabbed by WO #2. Again, the Complainant managed to break free, and fled across Memorial Avenue. At about this time, WO #5 made a radio transmission broadcasting that the Complainant had assaulted a peace officer – WO #2 – and fled from custody, prompting other officers to travel to the scene.
The SO was among these officers. He arrived in the area in his marked SUV and located the Complainant on foot travelling east on the north sidewalk of James Street West across a plaza north of the Tim Hortons. The officer travelled northeast onto the sidewalk to block the Complainant’s path. The Complainant ran behind the back of the SO’s cruiser and continued eastward a short while before, his path blocked again by another police cruiser (operated by WO #1), he turned around and ran northwest in the plaza parking lot. He had not run far before he was immobilized by a CEW discharge and fell face first onto the pavement.
The SO had fired the CEW from a distance of two to four metres, the probes of the CEW striking the Complainant in the rear.
Following his fall, several police officers converged on the Complainant on the ground. The Complainant refused to release his arms to be handcuffed and was met with additional force. From the Complainant’s left side, WO #2 kneed him four or five times in the area of his left arm and flank. WO #1, also on the left of the Complainant, punched him twice in the area of the left ribs. WO #3 kicked the Complainant’s right leg, and then drove his CEW into his upper right arm applying an electric charge. Following the ‘drive stun’ of WO #3’s CEW, the Complainant let go of a pair of pliers he was holding in his right hand and released his arms, after which he was handcuffed without further incident.
The Complainant was transported to hospital after his arrest and diagnosed with multiple facial fractures.
In the evening of June 15, 2022, the Complainant was on the property of the Tim Hortons – 298 Memorial Drive, Orillia – when restaurant staff became concerned for his well-being and contacted an ambulance. Paramedics arrived on scene and were told by the Complainant that he was fine and did not require assistance. In further conversation with restaurant staff, it became clear to the paramedics that the Complainant was no longer welcome on the property. A call was placed to police by the paramedics and they left the scene.
WO #2, WO #4, WO #5 and WO #6 arrived on scene at about 10:15 p.m. They encountered the Complainant sitting outside by the main doors of the restaurant consuming a muffin and coffee. Told repeatedly that he would have to leave the premises, the Complainant demurred, stood up, and asked the police officers to move back as they were causing him anxiety. WO #2 advised the Complainant that he was under arrest for trespass and took a hold of his right wrist. The Complainant broke free of the officer’s hold and ran west towards a roadway – Memorial Avenue. There, he was again grabbed by WO #2. Again, the Complainant managed to break free, and fled across Memorial Avenue. At about this time, WO #5 made a radio transmission broadcasting that the Complainant had assaulted a peace officer – WO #2 – and fled from custody, prompting other officers to travel to the scene.
The SO was among these officers. He arrived in the area in his marked SUV and located the Complainant on foot travelling east on the north sidewalk of James Street West across a plaza north of the Tim Hortons. The officer travelled northeast onto the sidewalk to block the Complainant’s path. The Complainant ran behind the back of the SO’s cruiser and continued eastward a short while before, his path blocked again by another police cruiser (operated by WO #1), he turned around and ran northwest in the plaza parking lot. He had not run far before he was immobilized by a CEW discharge and fell face first onto the pavement.
The SO had fired the CEW from a distance of two to four metres, the probes of the CEW striking the Complainant in the rear.
Following his fall, several police officers converged on the Complainant on the ground. The Complainant refused to release his arms to be handcuffed and was met with additional force. From the Complainant’s left side, WO #2 kneed him four or five times in the area of his left arm and flank. WO #1, also on the left of the Complainant, punched him twice in the area of the left ribs. WO #3 kicked the Complainant’s right leg, and then drove his CEW into his upper right arm applying an electric charge. Following the ‘drive stun’ of WO #3’s CEW, the Complainant let go of a pair of pliers he was holding in his right hand and released his arms, after which he was handcuffed without further incident.
The Complainant was transported to hospital after his arrest and diagnosed with multiple facial fractures.
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 9 (1), Trespass to Property Act – Arrest without warrant on premises
9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer.
(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail.
Analysis and Director's Decision
The Complainant was seriously injured while being arrested by OPP officers in Orillia on June 15, 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 injuries.
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’s arrest, per se, was lawful. Having been given a fair opportunity to leave the Tim Hortons property, and refusing to do so, WO #2 was within his rights under section 9 of the Trespass to Property Act in seeking to take the Complainant into custody. The Complainant had also struggled physically in resisting his arrest, breaking free of WO #2’s hold on two occasions, rendering him subject to arrest for resisting arrest and, arguably, assaulting a peace officer under the Criminal Code.
With respect to the force used in aid of the Complainant’s arrest, namely, the CEW deployments, and the hand and leg strikes, I am also satisfied that they were legally justified. Beginning with the CEW fired by the SO that took the Complainant down, and likely caused his facial fractures in the process, it would appear the tactic was one that was reasonably available to the officer at the time. The Complainant was determined to flee police – he had done so twice with WO #2 – and was again in flight from the officers having been confronted on the plaza parking lot. He also had a pair of pliers in his right hand at the time, which could conceivably have been used as a weapon against the officers. While it is unknown if the SO was aware of the pliers, the officer not having spoken to the SIU (as was his legal right), other officers had seen them in the Complainant’s possession. The use of the CEW in these circumstances had the reasonable potential of incapacitating the Complainant at a distance without having to engage with him hand-to-hand when he still had control of the pliers and was known to have physically resisted arrest moments prior. Given the presence of the pliers, and the Complainant’s continued refusal to submit to his arrest, I am also unable to reasonably conclude that the strikes and additional use of the CEW amounted to excessive force. There was a demonstrated need to subdue and handcuff the Complainant as quickly as possible given the potential weapon in his hand. And, once the CEW discharge by WO #3 succeeded in dispossessing the Complainant of the pliers, no further strikes were delivered.
In the result, while I accept that the Complainant sustained his facial fractures when he fell following the CEW discharge by the SO, there are no reasonable grounds to believe that his injuries are attributable to unlawful conduct on the part of the officers, or that the force applied in his arrest, was not legally justified. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: October 14, 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’s arrest, per se, was lawful. Having been given a fair opportunity to leave the Tim Hortons property, and refusing to do so, WO #2 was within his rights under section 9 of the Trespass to Property Act in seeking to take the Complainant into custody. The Complainant had also struggled physically in resisting his arrest, breaking free of WO #2’s hold on two occasions, rendering him subject to arrest for resisting arrest and, arguably, assaulting a peace officer under the Criminal Code.
With respect to the force used in aid of the Complainant’s arrest, namely, the CEW deployments, and the hand and leg strikes, I am also satisfied that they were legally justified. Beginning with the CEW fired by the SO that took the Complainant down, and likely caused his facial fractures in the process, it would appear the tactic was one that was reasonably available to the officer at the time. The Complainant was determined to flee police – he had done so twice with WO #2 – and was again in flight from the officers having been confronted on the plaza parking lot. He also had a pair of pliers in his right hand at the time, which could conceivably have been used as a weapon against the officers. While it is unknown if the SO was aware of the pliers, the officer not having spoken to the SIU (as was his legal right), other officers had seen them in the Complainant’s possession. The use of the CEW in these circumstances had the reasonable potential of incapacitating the Complainant at a distance without having to engage with him hand-to-hand when he still had control of the pliers and was known to have physically resisted arrest moments prior. Given the presence of the pliers, and the Complainant’s continued refusal to submit to his arrest, I am also unable to reasonably conclude that the strikes and additional use of the CEW amounted to excessive force. There was a demonstrated need to subdue and handcuff the Complainant as quickly as possible given the potential weapon in his hand. And, once the CEW discharge by WO #3 succeeded in dispossessing the Complainant of the pliers, no further strikes were delivered.
In the result, while I accept that the Complainant sustained his facial fractures when he fell following the CEW discharge by the SO, there are no reasonable grounds to believe that his injuries are attributable to unlawful conduct on the part of the officers, or that the force applied in his arrest, was not legally justified. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: October 14, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The CEW times are derived from the weapons’ internal clocks, and are not necessarily synchronous with actual time or between weapons. [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.