SIU Director’s Report - Case # 22-OCI-226
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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 of a 44-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 44-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 3, 2022, at about 5:36 a.m., the Ottawa Police Service (OPS) contacted the SIU with the following information.On September 2, 2022, at approximately 10:57 p.m., OPS responded to a domestic assault in the area of Donald Street and Vanier Parkway, Ottawa. The male suspect from the assault had fled the scene but was located by the police. The man attempted to flee and was tackled and then struck with a conducted-energy weapon (CEW). The man - the Complainant - was transported to the police station. During booking, he complained of trouble breathing. The Complainant was taken to Montfort Hospital where it was determined that he had a fractured rib.
The Team
Date and time team dispatched: 09/03/2022 at 9:07 a.m.Date and time SIU arrived on scene: 09/03/2022 at 9:17 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
44-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 3, 2022.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal right.The subject official was interviewed on September 22, 2022.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on September 8, 2022.
Evidence
The Scene
The incident occurred outside a Circle K convenience store; specifically, in an alleyway between the Circle K and a commercial building. Video/Audio/Photographic Evidence [1]
911 Telephone Call
An unknown caller informed 911 dispatch that there was a woman in a hallway who was very hurt, covered in blood, and in need of an ambulance. The dispatcher asked for the location of the injured person, and the unknown caller provided the address. Radio Communications
An officer (Officer #1) requested a search of the Complainant. **********
The SO directed Officer #1 to ask the residential complex’s operators where the Complainant lived. Officer #1 asked the SO if he was familiar with the Complainant, and the officer responded that he had seen him before. An unknown person announced that the Complainant may have been in the courtyard. His description was provided.
**********
The SO shouted, “Back up, now.” The dispatcher broadcast that the SO location.
WO #3 announced there was a CEW deployment.
Video Footage from Circle K
11:33:41 p.m.The camera overlooked an alleyway between the Circle K and a commercial building. It was nighttime with artificial lighting. A marked police vehicle was in the background driving east to west. It pulled into the Circle K parking lot.
11:42:54 p.m.
The Complainant, located near the Circle K, picked up a white bag with his left hand and started walking towards the police vehicle located in the Circle K parking lot. The Complainant approached the driver side of the police vehicle.
11:43:20 p.m.
The Complainant walked away from the police vehicle, headed north in the alleyway; the SO followed. The Complainant started jogging up the alleyway headed north away from the SO. The SO caught up to the Complainant and brought him to the ground utilizing his right arm. The Complainant was observed on his back. The SO placed his left knee on the Complainant’s upper torso. The SO used his right and left hands to restrain the Complainant’s right and left arms in front of his body. The Complainant struggled with the SO to get loose. The Complainant remained face up. The SO’s left knee came off the Complainant’s upper torso while he had the Complainant’s hands restrained. The SO attempted to secure the Complainant’s right wrist.
11:43:35 p.m.
The SO used both of his hands to secure the Complainant’s right wrist and pulled him towards the chain link fence on the east side of the alley. The SO then took his right hand off the Complainant’s wrist and reached for his handcuffs with his right hand. The SO secured one handcuff on the Complainant’s right wrist while holding the Complainant’s right forearm with his left hand. The SO placed his left hand behind the Complainant’s right shoulder and pushed as he tried to pull the Complainant’s right wrist behind his back. The Complainant continued resisting. The SO was on his feet and had the Complainant pinned on the ground against the chain link fence at the east side of the alleyway.
11:43:59 p.m.
The SO stood directly over top of the Complainant and pulled his CEW from his holster located at his left hip. At that time, the Complainant was on his back, face up, and his feet were facing the commercial building located to the west. The SO used his right hand and pointed the CEW down at the Complainant’s upper body. A flash was observed coming from the SO’s CEW. The SO stepped over the Complainant’s body while still holding the handcuff secured to the Complainant’s right wrist.
11:44:11 p.m.
The SO pulled the Complainant up to a sitting position and tried to maneuver the Complainant’s right arm behind his back; the Complainant resisted by twisting the front of his body away from the SO. The Complainant briefly ended up on his feet before being pulled back to the ground by the SO. While the Complainant was on his feet, the SO continued pointing the CEW at the Complainant’s backside, and deployed it again as a light from the CEW reflected off the back of the Complainant’s shorts. The Complainant continued resisting.
11:46:36 p.m.
WO #1 jogged into the video footage en route to assist the SO, followed by WO #2. Both WO #2 and WO #1 assisted the SO as the Complainant continued resisting their attempts to arrest him. WO #1 was positioned north of the SO and WO #2 was positioned south of the SO. The three police officers pulled the Complainant away from the chain link fence. At that time, a third police officer, WO #3, entered the video footage running north up the alleyway and lost his balance while arriving at the Complainant, who appeared to be face down on the ground. WO #3 positioned himself north of the Complainant. All four police officers were closely surrounding the Complainant and trying to arrest him.
11:47:02 p.m.
WO #3 delivered two strikes with his right-hand towards the Complainant’s body. The Complainant’s body could not be observed on the video because of the positioning of the police officers and the angle of the camera.
11:49:21 p.m.
The Complainant, handcuffed, was assisted onto his feet. The SO had the Complainant’s right arm secured and another unknown police officer had his left arm secured. They escorted the Complainant down the alleyway, headed south towards the police vehicle.
11:49:38 p.m.
The Complainant was walked out of camera view by the two police officers.
11:54:20 p.m.
The footage concluded.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPS between September 6, 2022, and November 2, 2022:- WO #1 - Investigative Action report;
- WO #3 - Investigative Action report;
- WO #2 Notes;
- WO #1 Notes;
- WO #3 Notes;
- Computer-assisted Dispatch report;
- Communications recordings;
- CEW data;
- Identification photographs;
- List of Involved Officers; and
- Witness List.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - The Complainant - medical records - Hôpital Monfort.
Incident Narrative
The events in question are clear on the evidence collected by the SIU, including interviews with each of the principal players and a review of video footage that largely captured the incident.
In the late evening of September 2, 2022, the OPS received a 911 call reporting an assault. The caller indicated that a female – hurt and covered in blood – was in the hallway of a residential complex. Officers were dispatched to investigate.
An officer arriving at the building reviewed security camera footage from the complex and identified the perpetrator as the Complainant. The SO was familiar with the Complainant. He drove to a Circle K and located him there in an alleyway by the store.
The Complainant walked towards the SO’s cruiser. The officer advised him that he was under arrest, after which the Complainant fled travelling north up the alleyway. The SO caught up with the Complainant and brought him down to ground. The Complainant struggled against the officer’s efforts to secure him in handcuffs.
The two wrestled and grappled with one another for a period before the SO was able to affix a handcuff on the Complainant’s right wrist. The officer attempted to secure the Complainant’s left arm without success, even after discharging his CEW multiple times and several knee strikes. The SO decided to keep the Complainant pinned against a chain link fence that lined the alleyway while waiting for backup to arrive.
WO #1 and WO #2 were the first to arrive on scene, followed closely by WO #3. The Complainant was pulled away from the fence, positioned prone on the ground, and eventually handcuffed behind his back following a series of hand strikes to the torso by WO #3.
In the late evening of September 2, 2022, the OPS received a 911 call reporting an assault. The caller indicated that a female – hurt and covered in blood – was in the hallway of a residential complex. Officers were dispatched to investigate.
An officer arriving at the building reviewed security camera footage from the complex and identified the perpetrator as the Complainant. The SO was familiar with the Complainant. He drove to a Circle K and located him there in an alleyway by the store.
The Complainant walked towards the SO’s cruiser. The officer advised him that he was under arrest, after which the Complainant fled travelling north up the alleyway. The SO caught up with the Complainant and brought him down to ground. The Complainant struggled against the officer’s efforts to secure him in handcuffs.
The two wrestled and grappled with one another for a period before the SO was able to affix a handcuff on the Complainant’s right wrist. The officer attempted to secure the Complainant’s left arm without success, even after discharging his CEW multiple times and several knee strikes. The SO decided to keep the Complainant pinned against a chain link fence that lined the alleyway while waiting for backup to arrive.
WO #1 and WO #2 were the first to arrive on scene, followed closely by WO #3. The Complainant was pulled away from the fence, positioned prone on the ground, and eventually handcuffed behind his back following a series of hand strikes to the torso by WO #3.
The Complainant was transported to hospital from the scene when he complained of difficulty breathing. He was diagnosed with a right-sided lateral rib fracture.
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 the course of his arrest by OPS officers on September 2, 2022. One of the arresting 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 arrest when confronted by the SO. He had been identified on video footage as the person who had assaulted a woman at a nearby residential complex.
With respect to the force used by the SO and the other officers who assisted in the Complainant’s arrest, namely, a takedown followed by a series of knee and hand strikes, and multiple CEW deployments, I am satisfied that it was legally justified. The SO acted reasonably when he forced the Complainant to the ground. The tactic would bring the Complainant’s flight to an end and position the officer to better manage any continuing resistance. The Complainant did struggle with the officer on the ground, refusing to release his left arm so that it too could be handcuffed, preventing the SO from securing him even after the repeated use of his CEW and multiple knee strikes. It was only with the arrival of additional officers, and several strikes by WO #3, that the Complainant was sufficiently subdued and taken into custody. On this record, I am unable to reasonably conclude that the nature and extent of the force brought to bear by the police was excessive.
In the result, while I accept that the Complainant’s injury was inflicted in his altercation with the police, whether due to the takedown or the struggle on the ground, there are no reasonable grounds to believe that it is attributable to unlawful conduct by the arresting officers. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 29, 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 arrest when confronted by the SO. He had been identified on video footage as the person who had assaulted a woman at a nearby residential complex.
With respect to the force used by the SO and the other officers who assisted in the Complainant’s arrest, namely, a takedown followed by a series of knee and hand strikes, and multiple CEW deployments, I am satisfied that it was legally justified. The SO acted reasonably when he forced the Complainant to the ground. The tactic would bring the Complainant’s flight to an end and position the officer to better manage any continuing resistance. The Complainant did struggle with the officer on the ground, refusing to release his left arm so that it too could be handcuffed, preventing the SO from securing him even after the repeated use of his CEW and multiple knee strikes. It was only with the arrival of additional officers, and several strikes by WO #3, that the Complainant was sufficiently subdued and taken into custody. On this record, I am unable to reasonably conclude that the nature and extent of the force brought to bear by the police was excessive.
In the result, while I accept that the Complainant’s injury was inflicted in his altercation with the police, whether due to the takedown or the struggle on the ground, there are no reasonable grounds to believe that it is attributable to unlawful conduct by the arresting officers. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 29, 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.