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 injury of an 85-year-old man (the “Complainant”).

Notification of the SIU

On October 27, 2022, at 1:28 a.m., the Barrie Police Service (BPS) contacted the SIU to report an injury to the Complainant.

According to the BPS, on October 26, 2022, police officers attended a retirement home in Barrie to investigate a report of a missing person – the Complainant – who had last been seen leaving the retirement home in a taxi. A police officer attended the Complainant’s residence in Innisfil and found him sitting inside a vehicle parked in the driveway. As the police officer was attempting to remove the Complainant from the vehicle, he injured his shoulder.

The Complainant was taken by ambulance to the Royal Victoria Hospital (RVH) for examination of a possibly dislocated shoulder.

On October 27, 2022, at 2:00 p.m., the BPS contacted the SIU again and reported that the Complainant had been sedated in order for the shoulder to be put back into place. Medical staff would not disclose the extent of the injury or if the Complainant would require surgery.

The BPS subsequently reported that the Complainant had been admitted to the hospital.

The Scene

The incident occurred on the driveway in front of a home in Innisfil. There was artificial lighting in front of the residence. The weather had rendered the area damp during this event.

The scene was not attended at the time of the interaction and was never forensically assessed.

Investigators did attend the scene on October 31, 2022, for the purpose of a video and witness canvass. None of the neighbours witnessed the incident, neither did they have any residential surveillance equipment that captured the events.

Video/Audio/Photographic Evidence [1]

Body-worn Camera (BWC) Footage – the SO

The footage was requested by the SIU on October 27, 2022, and received by the SIU on October 28, 2022. The following is a summary of the footage.

The SO’s BWC was activated on October 26, 2022, at 10:21:52 p.m., after the Complainant had been removed from his vehicle. The driver’s door of the Complainant’s car was open, the vehicle shut off, and (just out of frame) the Complainant on the ground just outside the car.

At 10:22:23 p.m., the SO asked the Complainant if he wanted some assistance and said he did not want to hurt his arm. The Complainant moaned. The SO took hold of his right arm and helped the Complainant to a seated position as the ambulance arrived. The Complainant appeared to have a cut to his right hand.

After the ambulance arrived at 10:23:28 p.m., a paramedic approached and the SO introduced the Complainant to the paramedic. The police officer told the paramedic the Complainant had dementia and had wandered from his senior’s residence. He told the paramedic the Complainant’s arm hurt.

The SO told the paramedic the Complainant had lived at this address before he was placed in hospital and was now living in a retirement home. The Complainant had taken a taxi that night and returned to his old residence. The SO had found him inside his vehicle, and he would not give the police officer his keys. The SO had to get the keys from the Complainant, who was now saying his arm was sore and he had a cut on his right hand. The SO did not know how that occurred.

The paramedic said she believed the Complainant had dislocated his left shoulder.

The Complainant was assisted up and placed on a stretcher before he was placed in the ambulance.

The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.

In the evening of October 26, 2022, the SO was on the lookout for the Complainant. The police had become aware that the Complainant, who suffered from dementia, had gone missing from a retirement home in Barrie.

The SO located the Complainant at an address in Innisfil – his residence prior to moving to the retirement residence. He was sitting in the driver’s seat of a car parked in the driveway of the home. The driver’s door was open and the Complainant had a key to the car in his right hand. The Complainant refused to give up the key when asked by the officer, and then moved to insert the key in the ignition. Concerned that he might place the vehicle in motion, the SO grabbed the Complainant by the upper left arm to remove him from the driver’s seat. The Complainant complained that his left arm hurt.

The SO called for an ambulance and waited with the Complainant until it arrived.

The Complainant was transported to hospital and diagnosed with a fractured left humerus.

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,

Section 17, Mental Health Act -- Action by police officer

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

The Complainant was seriously injured in an encounter with a BPS officer on October 26, 2022. The officer – 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 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 of unsound mind and had been unlicensed to drive because of his cognitive deficits. When he acted as if he was going to put the vehicle in motion, the SO had reason to be concerned for his safety and the safety of the public. Whether he was acting pursuant to his statutory authority under section 17 of the Mental Health Act, or his common law duty to preserve and protect life, I am satisfied that the SO was within his rights in intervening to take the Complainant into custody.

I am also satisfied that the force used by the officer in aid of his objective was legally justified. The SO had given the Complainant an opportunity to turn over his key and was left with little option but to engage physically when the Complainant refused and appeared as if he was going to start the car. I accept that some combination of the officer grabbing the Complainant’s arm and pulling him from the vehicle caused the injury. It may be that the officer ought to have approached the task with a lighter touch given the Complainant’s advanced age. Be that as it may, I am unable to fault the SO for not having tailored his force more perfectly given the immediate need to stop the Complainant. Rather, it would seem that the officer’s conduct fell within a range of reasonable force in the circumstances.

For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his dealings with the Complainant. As such, there is no basis for proceeding with charges against the officer. The file is closed.


Date: February 23, 2023


Electronically approved by

Joseph Martino
Director
Special Investigations Unit