SIU Director’s Report - Case # 22-PCI-215
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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 section 14 (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 of a 60-year-old man (the “Complainant”).
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 of a 60-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On August 24, 2022, at 9:25 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information. The Complainant had attended the Quinte West Detachment for fingerprints the day before and disclosed that his wrist was fractured during his arrest. On August 5, 2022, at 8:45 p.m., the Complainant was arrested for impaired driving as a result of a collision near the Johnstone Bridge in Quinte West. He was taken to the Quinte West Detachment and held in custody. A civilian guard observed him attempting to use his shirt to hang himself. The guard alerted officers who went into the cell. The Complainant struggled with the officers and a conducted energy weapon (CEW) was discharged before he was subdued. He complained of a sore elbow and wrist, and was taken to the Trenton Memorial Hospital (TMH) where he was released on an undertaking. The day shift was to check on his injuries but that did not happen.
The Team
Date and time team dispatched: 08/24/2022 at 10:10 a.m.Date and time SIU arrived on scene: 08/24/2022 at 10:48 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
60-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on November 7, 2022.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed between November 10 and 14, 2022.
Evidence
The Scene
The events in question transpired inside a cell of the OPP Quinte West Detachment, 3 Dixon Drive, Trenton. The cell was video monitored by a closed-circuit television system.
Forensic Evidence
CEW Data Download
Data downloaded from the CEW used by WO #2 revealed the following information.On August 6, 2022, the CEW was deployed in ‘Arc’ mode at 12:27:44 a.m. and 12:27:48 a.m., each time for a period of one second. At 12:27:58 a.m., the weapon was triggered, deploying the probes from cartridge #2, for a charge duration of five seconds. There followed nine additional deployments in ‘Arc’ mode, each within seconds of each other, the majority of which last one second.
Video/Audio/Photographic Evidence [1]
Police Communications Recordings
On August 25, 2022, the OPP provided communications recordings pertinent to the Complainant’s arrest on August 5, 2022. The recordings revealed that a motor vehicle collision involving an impaired Complainant had occurred. The Complainant was arrested and taken to the OPP Quinte West Detachment.
Custody and Body-worn Camera (BWC) Footage
On August 30, 2022, the OPP provided custody and BWC footage pertinent to the Complainant’s time in custody on August 5 and 6, 2022. The following is a summary of the footage. On August 5, 2022, at 10:19 p.m., the SO was in the process of closing the cell door when the Complainant approached the cell door and placed his left arm into the opening between the wall and the cell door, preventing the officer from closing the door. The SO then opened the cell door and stepped in front of the Complainant. The SO placed his hand on the Complainant’s chest and stepped forward, motioning the Complainant to step backwards away from the cell door towards the opposite wall. The floor around the toilet was wet with water. The Complainant had dripped water onto the floor earlier while he was hand-cupping water from the sink into the toilet bowl. The Complainant slipped and fell onto his backside and braced his fall with an outstretched left hand. The Complainant immediately reacted to an injury to his left wrist. He crawled over onto the cell bed clutching his left wrist with his right hand. He appeared to be in obvious pain and discomfort.
On August 6, 2022, at about 12:27 a.m., WO #3 and WO #2 arrived at the cell where the Complainant was lodged. WO #2 entered the cell first with his CEW pointed at the Complainant, who was face down on the floor with his T-shirt fastened around his neck. WO #2 advised the Complainant he had his CEW drawn and directed him to roll over. WO #3 entered the cell directly behind WO #2.
WO #3 and WO #2 attempted to remove the T-shirt from the Complainant’s neck without success. The Complainant told them not to touch him and disregarded their commands that he place his hands behind his back. WO #3 struck the Complainant’s body with knee and hand strikes. The struggle continued and WO #2 deployed his CEW at the Complainant while he was positioned on his back on the cell floor. The Complainant was able to lift himself momentarily before he was brought back to the ground, his forehead striking the cell wall near the toilet in the process, causing it to bleed. Again, WO #3 directed the Complainant to put his hands behind his back, and the Complainant complied.
WO #3 and WO #2 secured handcuffs behind the Complainant’s body and removed the T-shirt from around his neck.
WO #3 and WO #2 subsequently unclothed the Complainant and placed him in a gown for safety reasons. He was seated on the cell bench to await the arrival of paramedics.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between August 25, 2022, and November 16, 2022:- Arrest Report;
- Event Report;
- Communications recordings;
- Custody video;
- Email regarding list of involved officers;
- Notes- WO #1;
- Notes- WO #3;
- Notes- WO #2;
- Notes- WO #4;
- Arrest Booking Report;
- Custody Record;
- Custody Summary;
- General Report;
- Motor Vehicle Accident Report;
- BWC footage;
- CEW data; and
- Will-state of WO #3.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Ambulance Call Report; and
- Medical record - TMH.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, including interviews with the Complainant and a number of police officers who had dealings with him, and video footage that largely captured the Complainant’s arrest and time in custody. 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 August 5, 2022, the Complainant was arrested by WO #4 for driving under the influence of alcohol. The officer had been called to the scene of a motor vehicle collision involving the Complainant’s vehicle and another vehicle in Trenton.
The Complainant was transported to the Quinte West Detachment of the OPP, booked and lodged in a cell.
The SO and WO #4 attended at the Complainant’s cell at about 10:00 p.m. and demanded that he provide samples of his breath. After much back and forth, it was clear that the Complainant was not going to cooperate. The SO advised the Complainant that he would be charged criminally for refusing to provide the samples. He attempted to close the sliding cell door but was prevented from doing so by the Complainant, who placed his right hand on the door’s edge. The SO opened the door wider, placed his right hand on the Complainant’s chest and stepped forward into the cell, pushing the Complainant backwards. Three to four steps later, the Complainant lost his footing on water on the floor. The water had been placed there earlier by the Complainant as he attempted to fill the toilet with water from the cell sink. The time was 10:19 p.m. The Complainant fell backwards onto his buttocks, his back against a cell wall, and immediately grimaced. His left hand had impacted the floor as he came down, fracturing in the process.
In the early morning of August 6, 2022, the Complainant attempted to harm himself with his T-shirt; he had tied it tightly around his neck. WO #2 and WO #3 arrived at the cell to deal with the situation – by that time, the Complainant was lying on the cell floor. The officers entered the cell and attempted to remove the ligature from the Complainant’s neck. The Complainant resisted, telling the officers to leave him alone. There ensured a vigorous struggle during which WO #3 delivered several knee and hand strikes, and WO #2 repeatedly deployed his CEW. The officers eventually handcuffed the Complainant behind the back and removed the T-shirt from his neck. The Complainant’s forehead was bleeding – he appears to have struck it against a cell wall or the floor during the struggle with the police.
Paramedics attended at the station and took the Complainant to hospital. He was diagnosed with a broken left wrist.
In the evening of August 5, 2022, the Complainant was arrested by WO #4 for driving under the influence of alcohol. The officer had been called to the scene of a motor vehicle collision involving the Complainant’s vehicle and another vehicle in Trenton.
The Complainant was transported to the Quinte West Detachment of the OPP, booked and lodged in a cell.
The SO and WO #4 attended at the Complainant’s cell at about 10:00 p.m. and demanded that he provide samples of his breath. After much back and forth, it was clear that the Complainant was not going to cooperate. The SO advised the Complainant that he would be charged criminally for refusing to provide the samples. He attempted to close the sliding cell door but was prevented from doing so by the Complainant, who placed his right hand on the door’s edge. The SO opened the door wider, placed his right hand on the Complainant’s chest and stepped forward into the cell, pushing the Complainant backwards. Three to four steps later, the Complainant lost his footing on water on the floor. The water had been placed there earlier by the Complainant as he attempted to fill the toilet with water from the cell sink. The time was 10:19 p.m. The Complainant fell backwards onto his buttocks, his back against a cell wall, and immediately grimaced. His left hand had impacted the floor as he came down, fracturing in the process.
In the early morning of August 6, 2022, the Complainant attempted to harm himself with his T-shirt; he had tied it tightly around his neck. WO #2 and WO #3 arrived at the cell to deal with the situation – by that time, the Complainant was lying on the cell floor. The officers entered the cell and attempted to remove the ligature from the Complainant’s neck. The Complainant resisted, telling the officers to leave him alone. There ensured a vigorous struggle during which WO #3 delivered several knee and hand strikes, and WO #2 repeatedly deployed his CEW. The officers eventually handcuffed the Complainant behind the back and removed the T-shirt from his neck. The Complainant’s forehead was bleeding – he appears to have struck it against a cell wall or the floor during the struggle with the police.
Paramedics attended at the station and took the Complainant to hospital. He was diagnosed with a broken left wrist.
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
On August 24, 2022, the OPP contacted the SIU to report that a male whom they had arrested on August 5, 2022, and subsequently released, the Complainant, had been diagnosed with a serious injury. The SIU initiated an investigation naming the SO as the subject official. 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 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.
There are no questions raised on the evidence regarding the lawfulness of the Complainant’s arrest. The video footage at the scene of the arrest and elsewhere depicts someone who clearly appears to be impaired. Once lawfully in custody, the officers engaged with the Complainant were entitled to restrict his movements in the interests of everyone’s safety so that he could be processed according to law.
The push backwards by the SO, I am satisfied, constituted legally justified force. The Complainant had placed his hand on the cell door, preventing it from closing, and the officer was within his rights in removing the obstacle. He did so with minimal force, placing his extended right hand against the Complainant’s chest and walking him backwards into the cell, and away from the door. Regrettably, the Complainant slipped on the wet cell floor and fell onto his left hand, breaking it. The Complainant had created the hazard earlier when he spilled water from the cell sink onto the floor, a situation that the SO may or may not have appreciated. Be that as it may, the fall was in the nature of an unfortunate accident unconnected, in my view, with any unreasonable conduct on the part of the officer.
A more significant quantum of force was subsequently brought to bear by WO #3 and WO #2, but here too I am satisfied the force did not exceed what was reasonable in the circumstances. The Complainant was attempting to hurt himself and it was imperative that the officers take prompt action to prevent that from materializing. The officers entered the cell and tried to remove the ligature, but were met with physical resistance from a defiant Complainant. Following a series of CEW discharges by WO #2, and several hand and knee strikes by WO #3, the Complainant surrendered his right hand and was handcuffed behind the back. No further force was used.
In the result, as there are no reasonable grounds to believe that the SO, or the other officers who struggled with the Complainant in the cell, comported themselves other than lawfully, there is no basis for proceeding with criminal charges.
Date: December 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.
There are no questions raised on the evidence regarding the lawfulness of the Complainant’s arrest. The video footage at the scene of the arrest and elsewhere depicts someone who clearly appears to be impaired. Once lawfully in custody, the officers engaged with the Complainant were entitled to restrict his movements in the interests of everyone’s safety so that he could be processed according to law.
The push backwards by the SO, I am satisfied, constituted legally justified force. The Complainant had placed his hand on the cell door, preventing it from closing, and the officer was within his rights in removing the obstacle. He did so with minimal force, placing his extended right hand against the Complainant’s chest and walking him backwards into the cell, and away from the door. Regrettably, the Complainant slipped on the wet cell floor and fell onto his left hand, breaking it. The Complainant had created the hazard earlier when he spilled water from the cell sink onto the floor, a situation that the SO may or may not have appreciated. Be that as it may, the fall was in the nature of an unfortunate accident unconnected, in my view, with any unreasonable conduct on the part of the officer.
A more significant quantum of force was subsequently brought to bear by WO #3 and WO #2, but here too I am satisfied the force did not exceed what was reasonable in the circumstances. The Complainant was attempting to hurt himself and it was imperative that the officers take prompt action to prevent that from materializing. The officers entered the cell and tried to remove the ligature, but were met with physical resistance from a defiant Complainant. Following a series of CEW discharges by WO #2, and several hand and knee strikes by WO #3, the Complainant surrendered his right hand and was handcuffed behind the back. No further force was used.
In the result, as there are no reasonable grounds to believe that the SO, or the other officers who struggled with the Complainant in the cell, comported themselves other than lawfully, there is no basis for proceeding with criminal charges.
Date: December 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]
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.