Director's Report Details

• 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. 

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 

• 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.

 
Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

46-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on July 23, 2022.

Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed

The civilian witnesses were interviewed between July 24 and 28, 2022.

Subject Official (SO)

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Not interviewed; notes received and reviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Not interviewed; notes received and reviewed
WO #6 Not interviewed; notes received and reviewed
WO #7 Not interviewed; notes received and reviewed
WO #8 Interviewed
WO #9 Interviewed

The witness officials were interviewed between July 29, 2022, and October 11, 2022.

 

Hotel (Lobby)

On July 24, 2022, the hotel provided the SIU with video recordings of the lobby, bar and front exterior areas. The video quality was found to be good. The following is a summary of the footage.

On July 23, 2022, at 6:36 a.m., the Complainant conversed with CW #2 near the front entrance within the lobby of the hotel. A short time later, the Complainant walked to a pantry fridge for guests, and took a canned drink prior to laying down on a sofa in the lobby.

At about 7:00 a.m., CW #1 arrived. A short time later, CW #2 departed. Seeing the Complainant laying on a sofa, CW #1 approached him, and they talked.

At about 7:30 a.m., CW #2 returned to the hotel and the Complainant exited the bar, where he had hold of an open bottle of beer that he had stolen from the bar refrigerator.

At 7:38 a.m., WO #8 arrived, and CW #1 took him to the bar where the Complainant was situated. A short time later, WO #1, the SO, and WO #2 arrived - they too attended the bar.

 

Hotel (Bar)

On July 23, 2022, at 7:25 a.m., the Complainant entered the bar with a canned drink that he had taken from the lobby pantry. He walked behind the bar counter and took a beer from the refrigerator, after which he sat at a table and lit a cigarette. CW #1 entered the bar and talked to the Complainant, [2] who continued smoking and drinking the beer. CW #1 left, and the Complainant appeared to talk to himself. The Complainant finished the first beer and he returned to the refrigerator where he removed another, prior to returning to the table.

At 7:38 a.m., WO #8 arrived, and he spoke with the Complainant who was seated at a table.

At 7:40 a.m., WO #1 arrived and, after a short conversation, both SPS officers approached the table where the Complainant sat. The Complainant was stood up from his chair and immediately tucked his arms into his upper body. WO #8 delivered a knee strike to the Complainant’s left leg, and WO #1 swept the Complainant’s legs, and he was taken to the ground on his back. Immediately, the Complainant struggled and turned onto his left side as he resisted while keeping his arms in his chest. After several seconds, the Complainant looked directly at WO #8’s firearm, and then reached for, grabbed hold of, and attempted remove WO #8’s weapon from its holster. WO #1 immediately grabbed the Complainant’s hand and arm, and wrestled it off the firearm.

At 7:41 a.m., the SO entered the bar, and he assumed a position beside WO #1. He delivered one kick with his right foot into the buttocks area of the Complainant, who was situated on his left side. The Complainant was seen to frustrate all attempts by SPS officers to take hold of his arms for handcuffing as he resisted and struggled. WO #1 was seen to deliver a punch in the direction of the Complainant’s left hand.

Eventually, the Complainant was rolled onto his stomach and the SO delivered a kick to the buttocks area and two punches to his right upper body. WO #2 was seen to arrive at about this time and assumed a position near the Complainant’s head. At that time, WO #2 was situated on the Complainant’s left shoulder. WO #1 and WO #8 were at the Complainant’s waist and upper legs on the right side, and they attempted to handcuff the Complainant. WO #8 was observed to deliver three punches to the Complainant’s right torso. The Complainant continued to struggle and squirm. The SO then delivered several punches to the buttocks area of the Complainant as WO #1 delivered two punches. Because of the Complainant’s resistance, it could not be seen where those punches landed. WO #2 delivered a knee strike to the Complainant’s upper body/head area.

About a minute-and-a-half into the altercation, WO #8 was seen removing his handcuffs from their pouch and bringing them towards the lower back area of the Complainant. The Complainant was pinned to the floor by the four officers at this time, still in a prone position. In the course of the next 30 seconds or so, the SO was captured, first, delivering a punch to the Complainant’s buttocks/testicles area and, then, using his right foot to step onto the same area, where he kept it for about eight seconds.

The Complainant was brought his feet, fully handcuffed, shortly after the SO removed his foot. He was then escorted out of the hotel bar area.

 

Hotel (Exterior– Lobby)

At 7:43:40 a.m., the Complainant was walked through the lobby and outside the front entrance to the hotel, and he was placed against the rear passenger side of WO #8’s cruiser. The Complainant was searched and, at 7:52 a.m., WO #8 departed the scene for the SPS HQ.

 

SPS Custody Video

On July 28, 2022, at 10:00 a.m., the SIU obtained a copy of the SPS video footage. [3] The video quality was found to be good. The following is a summary of the pertinent footage.

On July 23, 2022, at 8:15 a.m., five SPS officers [WO #1, WO #5, WO #9, WO #3 and WO #4] walked into the sally port and awaited the arrival of WO #8 and the Complainant. After WO #8’s cruiser entered the sally port, the garage door was closed. The interior of the cruiser could not be clearly viewed because of light reflection onto the rear window, though it was observed that the rear area was separated into two compartments via a plexiglass partition.

WO #9 opened the rear passenger door and attempted to remove the Complainant, but he refused and stiffened. Several additional attempts to remove the Complainant proved unsuccessful and all SPS officers backed away. WO #9 then delivered four kicks with his right foot into the rear of the cruiser and onto the Complainant’s right leg/waist area. After the fourth kick, WO #9 reached in and took hold of the Complainant’s right leg while WO #1 grabbed the left leg, and the Complainant was pulled out and onto the ground.

The Complainant was brought by SPS officers behind the cruiser. They momentarily stopped as the Complainant resisted and kicked, and WO #9 delivered one kick to the Complainant’s left side.

The Complainant was again picked up and carried into the custody area and ultimately into cell seven, where he was positioned on his stomach. The handcuffs were removed and all SPS officers departed the cell.

 

Computer-assisted Dispatch (CAD) and Communications Recordings

On July 28, 2022, at 5:17 p.m., the SPS provided the SIU with the CAD and 911 communications recordings for the interaction that occurred on July 23, 2022. These recordings revealed that CW #2, a night clerk at a hotel on Christina Street North, Sarnia, contacted the SPS on July 23, 2022, at 6:39 a.m., to report the Complainant, who was not a guest at the hotel and refused to leave when asked. CW #2 stated that the SPS were at the hotel the evening prior to ask the Complainant to leave, which he did with no issue. CW #2 further explained that the Complainant appeared homeless and said that he owned the hotel and the police, and that he could make guns disappear.

At 7:22 a.m., CW #2 called the SPS again to inquire when officers would be attending as guests were beginning to enter the lobby and the Complainant was still there, though he was being quiet. CW #2 was told that the morning was busy for the SPS and, due to shift change, officers would be there shortly.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the SPS between July 27, 2022, and October 7, 2022:
• Crown Brief Synopsis;
• Warrant Remanding the Complainant;
• Communication recordings;
• Document – Court Information – the Complainant;
• Arrest Report - Custody Summary;
• CAD Log;
• Initial call to SPS by CW #2 [July 23, 2022];
• Video Recording - Front Exterior of SPS station [July 23, 2022];
• Video Recording - Sally Port / Custody area of SPS station [July 23, 2022];
• Previous SPS interactions involving the Complainant;
• Policy - Arrest / Detention / Transportation / Detention / Searching / Care of Prisoners;
• Policy - Police Response to Emotionally Disturbed Persons;
• Policy - Use of Force;
• Duty Report – WO #6;
• Notes – WO #8;
• Notes – WO #1;
• Notes and Witness Statement – WO #5;
• Notes – WO #4;
• Notes – WO #3;
• Notes and Witness Statement – WO #2;
• Notes and Witness Statement – WO #6; and
• Notes and Witness Statement– WO #7.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:
• Medical Records from Bluewater Health – Sarnia Hospital;
• Two incident reports - Hotel [interactions with the Complainant];
• Video footage from Hotel, Sarnia; and
• Canadian Police Information Centre query – the Complainant.

In the morning of the day in question, SPS officers were dispatched to a hotel on Christina Street North, Sarnia, following reports of a trespasser. An employee of the hotel had called police to complain about the Complainant. The Complainant had entered the hotel lobby, helped himself to a canned soda from the lobby, and refused to leave when asked to do so.

 
The Complainant was not of sound mind at the time, and his behaviour was erratic and irrational. By the time of the first police officer’s arrival, the Complainant had left the lobby and was sitting in the bar area of the hotel drinking a bottle of beer that he had stolen from behind the bar.

WO #8 was the first officer on scene, arriving at about 7:38 a.m. He was joined shortly by WO #1. The two approached the Complainant in the bar and explained to him that he had to leave the hotel. The Complainant refused and warned the officers, in words to the effect, that things would not go well for them if they tried to arrest him. The officers each grabbed a hold of the Complainant and forced him from his chair. The Complainant struggled against the officers’ efforts to control his arms. WO #1 tripped the Complainant onto his back on the floor.

The struggle continued on the floor. At one point, the Complainant reached up with his left hand, grabbed a hold of WO #8’s firearm in its holster, and attempted to retrieve it. WO #1 quickly noticed what the Complainant was doing and pried his hand from the firearm. Just after that happened, the SO and WO #2 arrived on scene and joined the melee. The SO delivered a right-footed kick to the area of the Complainant’s buttocks; by this time, the Complainant was lying on his left side with officers on either side of him. The officers managed to force the Complainant into a prone position, after which the SO punched in the direction of the Complainant’s upper back. This was followed by the officer delivering several punches to the area of the Complainant’s buttocks. As this was occurring, WO #8 and WO #1 also delivered strikes to the Complainant’s upper body and head area.

 
At about 7:43 a.m., in and around the time that the Complainant had been restrained in handcuffs behind his back, the SO delivered another right-handed punch to the area of the Complainant’s buttocks/testicles. The officer then stood, placed his left foot on the Complainant’s lower left leg, his right foot on the area of the Complainant’s buttocks/testicles, and maintained that posture for several seconds. The SO stepped off the Complainant, and he was lifted to his feet by WO #1 and WO #8, and escorted from the hotel.

The Complainant was transported to the police station in WO #8’s cruiser. In the sally port of the station, the Complainant refused to exit the rear of the cruiser and resisted when one of the officers – WO #9 – attempted to pull him out. He had effectively anchored his feet into the space beneath the front passenger seat, frustrating the officers’ efforts to extricate him. In time, WO #9, the rear passenger door open, delivered four kicks to the Complainant’s right leg and upper thigh. The Complainant reacted by attempting to kick back at the officer, after which WO #9 and WO #1, the latter also standing by, grabbed a hold of the Complainant’s legs and pulled him out of the cruiser. The Complainant kicked out at the officers, prompting WO #1 to kick back. The strike connected with the Complainant’s upper left shoulder. The Complainant was subsequently placed in a cell.

At about 12:30 p.m., after complaining of chest pain and shortness of breath, the Complainant was transported to hospital via ambulance and diagnosed with fractured ribs, a broken nose, and a collapsed lung.

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

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.

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.

It is clear that the officers who dealt with the Complainant were acting within their rights in seeking to take him into custody. Given what they knew of the call to police by the hotel employee, and their repeated efforts to have him leave the premises of the hotel, the officers acted with lawful grounds in moving to arrest the Complainant for trespass under section 9 of the Trespass to Property Act. Once under arrest, the officers were further entitled to control the Complainant’s movements so that he could be safely processed according to law. This included his transportation to the station and his placement in a cell.

With respect to the force used by the officers, I have little doubt that the bulk of it was legally justified. The Complainant was in a hostile mood on the morning in question. He made it clear he had no intention of leaving the hotel, and then strutted about the lobby and bar area with drinks from the hotel he had not paid for. The Complainant’s antagonism was on full display for the first officer to arrive on scene – WO #8. Thus, instead of dealing with the Complainant himself, he waited for an additional officer to arrive – WO #1. That decision was a wise one as the Complainant immediately put up a fight the moment the officers placed their hands on him. I am satisfied that the officers acted reasonably in forcing the Complainant onto his back; in that position, they could better expect to manage the Complainant’s resistance. I am also satisfied that the strikes delivered by the officers during the struggle with the Complainant on the ground were reasonable. The Complainant had made it clear he would go to great lengths to resist arrest. At one point, with the very clear intention of taking possession of WO #8’s firearm, he reached up with his left hand and grabbed hold of the weapon. It is very fortunate that he was not able to withdraw the firearm and that WO #1, seeing what was happening, acted quickly to wrestle the Complainant’s hand free of the weapon. In the circumstances, it was imperative that the Complainant be subdued and restrained as quickly as possible in the interests of everyone’s safety. The officers could have chosen to engage exclusively in what I am satisfied would have been a protracted wrestling match with the Complainant, or they could resort to the use of strikes - punches, kicks and knees– to more quickly overcome the Complainant’s resistance. In choosing the latter, I am satisfied that the officers did not act with excess in light of the exigencies of the moment.

Though it is not as clear that this conduct was reasonably necessary, my conclusion extends to the force used by the SO in the closing stages of the altercation at the hotel, namely, a punch to the area of the Complainant’s buttocks/testicles, and the act of stepping on the same area as the Complainant lay prone on the ground. The Complainant was mostly still at the time and may have even been handcuffed by then. On the other hand, it is not apparent that the Complainant’s fight had completely abated. That he was largely motionless on the ground was as likely the result of WO #8, WO #1 and WO #2 using their superior manpower to keep the Complainant pinned with his arms behind his back. Indeed, the video footage from the bar area suggests that the officers were still wrestling with the Complainant to control his arms behind his back. The same video is also less than dispositive as to whether the Complainant had, in fact, been completely handcuffed. While a cuff is visible around the right hand of the Complainant, it is not clear that his left hand had also been handcuffed at the time of the force in question. Only after the SO’s stepped off the Complainant was it apparent that both hands had been secured. Interestingly, in his statement to the SIU, WO #8 indicated that the officers struggled for a period to handcuff the Complainant’s left arm after his right arm had been handcuffed. On this record, I am unable to dismiss with any confidence the notion that the SO acted in response to the Complainant’s continuing resistance. For the same reasons set out above, I am also unable to reasonably conclude that the officer acted with excess in comporting himself as he did; given the nature and extent of the Complainant’s combativeness, it remained imperative that he be brought under control as quickly as possible. Targeting the Complainant’s buttocks/testicles area – the part of the body available to the SO – was designed to do just that via the infliction of discomfort and pain. In finding as such, I am mindful of the common law principle that officers embroiled in dynamic and volatile situations are to be afforded a degree of latitude in connection with their use of force. Their tactics need not be exacting so long as they fall within a range of reasonable options available in the moment: R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA); R v Nasogaluak, [2010] 1 SCR 206.

Lastly, I am satisfied that the force used by WO #1 and WO #9 in the police station sally port – kicks to the Complainant – was authorized by law. The Complainant was in lawful custody and the officers had every right to forcibly remove him from the cruiser when he refused to come out willingly, and then to defend themselves as he lashed out at them once outside the vehicle. It was only after WO #9’s fourth kick that an opportunity presented itself to latch onto the Complainant when he raised a leg to kick back at the officer. Thereafter, in order to deter further violence from the Complainant, who had already spat at WO #9 from inside the cruiser, WO #1 delivered a single punch to one of the Complainant’s legs while he was being removed from the vehicle, and WO #9 struck his left side as the Complainant kicked in the officers’ direction en route to the cells. In my view, the measures taken by the officers were proportionate responses to the Complainant’s behaviour, and legally justified.

In the result, while I accept that the Complainant was injured in the course of his engagement with SPS officers on July 23, 2022, likely the result of one or more of the strikes delivered by WO #8, WO #1, WO #2 and/or WO #9, there are no grounds to believe that his injuries are attributable to any unlawful conduct on the part of those officers, or that the SO acted other than lawfully in connection with his role in the arrest. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: November 18, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit