Director's Report Details

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.

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: 

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 of a 42-year-old man (the “Complainant”).

Notification of the SIU

On October 4, 2022, at 1:42 p.m., the Ontario Provincial Police (OPP) Hawkesbury Detachment notified the SIU of an injury to the Complainant.

According to the OPP, at about 5:00 a.m., Witness Official (WO) #1 and the Subject Official (SO) responded to a call to assist with entry into a residence. The Complainant had called police indicating he was scared to enter his residence due to his wife’s mental state. An altercation occurred between the officers and the Complainant leading to his arrest. He was transported to the Hawkesbury Detachment and processed. The officers observed swelling on the Complainant’s face and he was transported to the Hawkesbury and District General Hospital (HDGH), where he was diagnosed with a fractured orbital bone. The Complainant was released at the hospital.

The Scene

The SIU did not attend the scene, located in the front driveway of a residence in L’Orignal.

Video/Audio/Photographic Evidence [1]

OPP Communications Recordings

On October 17, 2022, at 3:55 p.m., the SIU received a copy of the communications recordings in connection with the incident from the OPP. The following is a summary of the pertinent information.

On October 4, 2022, at 4:41 a.m., the Complainant called 911 to request a wellness check for CW #1. Initially, the Complainant wanted to speak to officers on the phone as he was concerned about entering the residence and wanted police to attend without their emergency lights activated. The Complainant indicated he was in a vehicle parked in the driveway while CW #1 was inside the residence.

At 4:49 a.m., WO #2 and the SO arrived on scene, followed by WO #1 at 4:56 a.m.

A dispatcher advised that the Complainant was involved in numerous family and domestic disputes at that address and was flagged for “literally everything”.

Emergency medical services were requested to attend the scene but then cancelled as it was determined that police would transport the Complainant to HDGH. An officer requested the emergency department be notified of the Complainant’s pending attendance.

The SO advised dispatch he would create a new call for assault on a police officer, and described the Complainant as known to police.

In-car Camera System (ICCS) Footage - WO #1’s Cruiser

On October 5, 2022, at 5:26 p.m., the SIU received a copy of the ICCS footage in connection with the incident from WO #1’s police vehicle. The video was date and time-stamped, in colour, and contained audio in French. A French-speaking SIU investigator reviewed the footage. The following is a summary of the pertinent information.

On October 4, 2022, at 5:14:11 a.m., the video began. The Complainant was seated in the rear of the police vehicle.

At 5:14:52 a.m., WO #1 advised the Complainant he was being audio and video recorded. The Complainant acknowledged he understood.

The Complainant stated he wanted to file a complaint with the Office of the Independent Police Review Director because he was punched in the face.

WO #2 cautioned the Complainant and advised he was charged with ‘assault police’ and ‘utter threats’. The Complainant requested to speak to a lawyer.

At 5:23:40 a.m., the Complainant stated he wanted to see a doctor as the officers were rough a “few times” and that his back had seized up. The Complainant’s nose was bloody.

At 5:25:23 a.m., the Complainant was assisted out of the police vehicle, and the video ended.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the OPP between October 6 and October 26, 2022:

• Communications recordings;
• ICCS footage-WO #1;
• Record of computer-assisted dispatch;
• Notes-WO #1;
• Notes-WO #2; and
• Training record-SO.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from other sources:

• The Complainant’s medical records from HDGH; and
• Photographs of injuries and scene provided by the Complainant.

The evidence collected by the SIU, including an interview with the Complainant and several officers who participated in his arrest, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the morning of October 4, 2022, police officers were dispatched to a residence in L’Orignal. They were responding to a call to police placed by one of the home’s occupants – the Complainant. Concerned about the mental health of his partner – CW #1 – the Complainant wanted her apprehended under the Mental Health Act.

The SO was among the officers who arrived at the residence. He was joined by WO #1 and WO #2. The officers encountered the Complainant outside the front of the home and spoke to him about the situation. The SO and WO #2 would eventually enter the home and speak with CW #1. Satisfied there were no grounds for an apprehension under the Mental Health Act, the officers exited the home and explained the situation to the Complainant.

The Complainant was not pleased with the news. In an aggressive fashion, he walked towards WO #2 and bumped him in the chest. He was cautioned by the police that his behaviour amounted to an assault. Shortly thereafter, the Complainant’s frustration grew when the SO shone a flashlight in his direction. He swatted the flashlight from the officer’s hands, after which ensued a physical altercation culminating in his arrest.

The officers and the Complainant wrestled for a period on their feet before WO #1 tripped him to the ground. On the ground, the Complainant refused to surrender his arms and was met with several punches to the face by the SO. The Complainant’s hands were eventually controlled behind his back and handcuffed.

The Complainant was transported by the police to hospital following his arrest. He was diagnosed with a fractured left orbital bone, and a number of ‘subacute’ spine and rib fractures. [2]

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

The Complainant was seriously injured in the course of his arrest by OPP officers on October 4, 2022. In the ensuing SIU investigation of the incident, one of the arresting officers – SO – was identified 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 arrest.

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 evidence establishes that the Complainant batted the SO’s flashlight from his hand. He also made contact with WO #2’s chest in what might well have been an intentional gesture. In the circumstances, I am satisfied the officers were within their rights in seeking to take the Complainant into custody for an assault.

With respect to the force used by the officers, including a takedown and several punches to the Complainant’s face, I am unable to reasonably conclude on the evidence that it was excessive. The evidence establishes that the Complainant physically resisted the officers as they moved in to effect his arrest, at times getting the upper hand. A takedown was reasonable given the Complainant’s combativeness. Once on the ground, the officers could better expect to manage any continuing struggle by the Complainant. In fact, the Complainant remained a physical challenge to the officers, refusing to surrender his left arm to be handcuffed. After a period, in which the Complainant was punched in the left side of the face by the SO and eventually overwhelmed by the combined manpower of the three officers, he was handcuffed behind the back. There is some evidence the Complainant was punched four to six times by an officer at a point when he had stopped resisting. That claim, however, is contested by the evidence of WO #1 and WO #2, whose evidence indicates that the Complainant’s resistance persisted until he was handcuffed. On this record, it seems as likely as not that the strikes by the officer were delivered to subdue the Complainant and commensurate with his opposition.

In the result, while I accept that the Complainant’s fractured orbital bone and, possibly, spine and rib fractures were incurred in the course of the altercation with police that marked his arrest, there are no reasonable grounds to believe they were the result of unlawful conduct on the part of the SO. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: January 31, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit