SIU Director’s Report - Case # 22-OCI-329
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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 20-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 20-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On December 29, 2022, at about 8:30 a.m., the St. Thomas Police Service (STPS) notified the SIU of an injury to the Complainant.STPS reported that on December 29, 2022, a citizen had seen the Complainant fail to stop for a red traffic control signal on Highway 3, as he entered St. Thomas. The vehicle then drove off the road and collided with a traffic sign. The citizen stopped to check on the driver’s well-being, but the vehicle sped away. The citizen subsequently called STPS and, a short time later, the Subject Official (SO) located the vehicle. The SO activated his vehicle’s emergency lights and initiated a suspect apprehension pursuit when the suspect vehicle failed to stop. Several other police officers assisted, and the suspect vehicle turned onto a dead-end road that led to a park. The suspect apprehension pursuit was terminated by the on-duty staff sergeant and spike belts were deployed by WO #2 and WO #3. As the suspect vehicle turned to exit the road, it drove over two spike belts which deflated three of the vehicle’s tires. A short time later, the vehicle left the roadway and collided with a concrete barrier. The Complainant fled on foot. WO #1, a police dog handler, deployed the dog and the suspect was located and arrested. The Complainant was subsequently taken to St. Thomas General Hospital (STGH) where he was diagnosed with a broken right clavicle. He had been discharged and returned to STPS where he was being held pending a bail hearing.
The Team
Date and time team dispatched: 12/29/2022 at 10:08 a.m.Date and time SIU arrived on scene: 12/29/2022 at 11:00 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
20-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on December 30, 2022.
Subject Official
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 Interviewed
The witness officials were interviewed on January 13, 2023.
Evidence
The Scene
There was no scene for examination, but STPS provided the SIU with their photographs of the scene and the vehicle it was alleged the Complainant was driving.This incident occurred at the front porch of a residence in the area of Talbot Street and Elgin Street in St. Thomas.
Body-worn camera (BWC) recordings captured views of the Complainant concealing himself in a narrow opening between the residence’s front porch and the foundation wall.
STPS forensic examinations confirmed the involved vehicle was a GMC pick-up truck. The vehicle was found to have extensive damage to the front end and windshield. At least three tires were deflated, and entire wheel assemblies were heavily damaged. The driver-side airbag was deployed.
Figure 1 – STPS photograph of the damaged front end of the GMC pick-up truck
Figure 2 – STPS photograph of one of the damaged rear tires on the GMC pick-up truck
Examination of the driver’s seat belt assembly revealed the seat belt was not in a locked position, and extended and recoiled freely. The extended seat belt displayed no loading marks, or damage other than standard wear and tear. The metal ‘D’ ring did not have any damage or bending. The seat belt receiver located between the seat and console had no damage.
A STPS Level 4 collision reconstructionist opined there was no indication the driver of the pick-up truck had been wearing a seat belt.
Video/Audio/Photographic Evidence [2]
Video Recordings
STPS closed-circuit video recordings from downtown St. Thomas captured a light-coloured pick-up truck with a damaged windshield travelling on Talbot Street at 12:28 a.m. as it approached the intersection with Elgin Street. The vehicle was seen moving to the proper lane after passing another vehicle from the oncoming lane. About 15 seconds later, a white pick-up truck, with indiscernible markings on the side, activated interior-mounted emergency lighting as it approached and travelled through the intersection. About 50 seconds later, a fully marked SUV cruiser travelled through the intersection, activating the roof-mounted emergency lights while it was in the intersection.BWC Footage
STPS advised the SIU the SO’s BWC was not activated during the incident. The BWCs of Officer #1, WO #2, WO #1 and WO #3 appeared to confirm this, as the SO’s BWC did not emit red lights to indicate it was activated.WO #1’s BWC recording captured his initial observations of the Complainant at 12:48:48 a.m., as the Complainant hid in a crevice between the residence’s front porch and foundation wall.
The SO arrived as the Complainant said he was climbing out of the crevice. WO #1’s BWC captured the SO approaching the Complainant on the porch at 12:49:23 a.m. Two seconds later, the SO kicked the Complainant, appearing to contact his upper right chest area.
The Complainant immediately exclaimed in pain and the SO immediately kicked him again, this time with his right foot, appearing to contact the Complainant’s right hand. The SO then grabbed the Complainant’s sweater and tried to pull him out of the crevice. The Complainant appeared stuck and could not exit. Another police officer, now known to be WO #3, arrived and both police officers managed to assist the Complainant in exiting the crevice. He was placed on the porch, restrained by both police officers, and handcuffed with his hands behind his back.
STPS Station Video Recordings
The Complainant entered the booking area with a black sling supporting his right arm. He remained seated during the booking process and was escorted out of the area about nine minutes and 45 seconds after arriving.911 Call Recordings
A woman called 911, at 12:05 a.m., reporting she had seen a male in a silver pick-up truck, possibly a GMC, collide with a signpost. She believed the driver was impaired and described the man’s clothing.Less than 90 seconds later, a second person called 911 to report a suspicious vehicle with a lone occupant parked on her driveway. She described the silver pick-up truck, possibly a GMC, as “the front end was missing, and the windshield was all smashed”.
Communications Recordings
At 12:19 a.m., a police officer reported seeing the suspect vehicle on the second 911 caller’s street shortly after her call.After a police officer reported the suspect vehicle drove over a spike belt but continued eastbound at a “high rate of speed”, another police officer ordered him to, “Discontinue. Do no follow that vehicle.”
A series of radio transmissions followed of police officers involved in the search for the vehicle and suspect.
At 12:31 a.m., a police officer reported, “…there’s a rifle round on the floorboard of the driver’s seat and couple knives.”
At 12:49 a.m., a police officer reported he had the suspect. About a minute later, he reported the suspect was in custody.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the STPS between December 29, 2022, and January 12, 2023:- Policy – Use of Force;
- Policy – Arrest;
- Policy – Suspect Apprehension Pursuits;
- Arrest Report;
- Computer-assisted dispatch record;
- General Occurrence Report;
- Officer Notes – WO #2;
- Officer Notes - WO #1;
- Officer Notes - WO #3;
- Prisoner Cell Sheet;
- Seat Belt Load Bearing;
- Will Say - WO #2;
- Will Say - WO #1;
- Will Say - WO #3;
- Forensic photographs;
- 911 call recordings;
- Communications recordings;
- Station video recordings;
- Copy of downtown security camera recordings; and
- Copy of video recording from a home security system.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- The Complainant’s medical records from STGH.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and video footage that captured the incident in parts, 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.
Shortly after midnight of December 29, 2022, the STPS received a 911 call about a pick-up truck that had collided with a signpost. The caller provided a description of the driver and reported her belief that he was impaired. A second 911 call was received a couple of minutes later. This time, a citizen reported the presence of a suspicious, heavily-damaged pick-up truck on her driveway.
STPS officers located the pick-up truck and deployed a spike belt. The pick-up truck ran over the belt and its tires were damaged, but it continued to travel at a high rate of speed. Officers were directed to refrain from pursuing the truck.
The Complainant was an occupant of the pick-up truck. He eventually abandoned the truck, fled, and attempted to hide from police on the porch of a residence in the area of Talbot Street and Elgin Street.
At about 12:31 a.m., a police officer at the site of the empty pick-up truck broadcast the presence of a “rifle round” and a couple of knives in the vehicle.
At about 12:49 a.m., WO #1, a dog handler, reported that he had located the Complainant. The Complainant was wedged in a narrow gap between the porch floor of a house and a foundation wall of the property. The officer ordered the Complainant to stand up slowly and to show his hands. The Complainant’s upper torso was visible above the gap, but he appeared stuck and unable to climb out.
The SO arrived on scene within seconds of WO #1. He approached the Complainant, delivered two-short kicks to his upper body, and then grabbed hold of his jacket attempting to force him out of the gap. He screamed at the Complainant to get out as the Complainant protested that he was trying. Eventually, the Complainant was able to pull himself out of the gap, after which he was handcuffed on the porch.
The Complainant was transported to hospital following his arrest and diagnosed with a fractured right clavicle.
Shortly after midnight of December 29, 2022, the STPS received a 911 call about a pick-up truck that had collided with a signpost. The caller provided a description of the driver and reported her belief that he was impaired. A second 911 call was received a couple of minutes later. This time, a citizen reported the presence of a suspicious, heavily-damaged pick-up truck on her driveway.
STPS officers located the pick-up truck and deployed a spike belt. The pick-up truck ran over the belt and its tires were damaged, but it continued to travel at a high rate of speed. Officers were directed to refrain from pursuing the truck.
The Complainant was an occupant of the pick-up truck. He eventually abandoned the truck, fled, and attempted to hide from police on the porch of a residence in the area of Talbot Street and Elgin Street.
At about 12:31 a.m., a police officer at the site of the empty pick-up truck broadcast the presence of a “rifle round” and a couple of knives in the vehicle.
At about 12:49 a.m., WO #1, a dog handler, reported that he had located the Complainant. The Complainant was wedged in a narrow gap between the porch floor of a house and a foundation wall of the property. The officer ordered the Complainant to stand up slowly and to show his hands. The Complainant’s upper torso was visible above the gap, but he appeared stuck and unable to climb out.
The SO arrived on scene within seconds of WO #1. He approached the Complainant, delivered two-short kicks to his upper body, and then grabbed hold of his jacket attempting to force him out of the gap. He screamed at the Complainant to get out as the Complainant protested that he was trying. Eventually, the Complainant was able to pull himself out of the gap, after which he was handcuffed on the porch.
The Complainant was transported to hospital following his arrest and diagnosed with a fractured right clavicle.
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 arrested by STPS officers on December 29, 2022, taken to hospital, and diagnosed with a serious injury. In the ensuing SIU investigation, the 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 serious 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 matched the description of the person who had been reported recklessly operating a pick-up truck and possibly impaired. And, he was found attempting to conceal himself on the porch of a property. On this record, the Complainant was subject to arrest.
With respect to the force used by the SO in aid of the Complainant’s arrest, namely, two kicks and the use of manual force attempting to extract him from a gap beside the porch, I am satisfied that it fell within the range of what was reasonably necessary in the circumstances. Given the events that had preceded his discovery, the SO would have had reason to be concerned that the Complainant was possibly armed with a weapon and would not surrender peacefully. In the circumstances, I am unable to reasonably conclude that the officer acted with excess when he quickly approached the Complainant and delivered two-short kicks before physically engaging him with his hands. The kicks would have served to distract the Complainant in the event he was, in fact, in possession of a weapon, mitigating the risk of such weapons being brought into play before he could safely be apprehended. No further strikes of any kind were delivered.
In the final analysis, whether the Complainant’s injury was incurred during the events on the porch or, as seems more likely, the motor vehicle collisions he was in, there are no reasonable grounds to believe that it was attributable to any unlawful conduct on the part of the SO. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: April 28, 2023
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 matched the description of the person who had been reported recklessly operating a pick-up truck and possibly impaired. And, he was found attempting to conceal himself on the porch of a property. On this record, the Complainant was subject to arrest.
With respect to the force used by the SO in aid of the Complainant’s arrest, namely, two kicks and the use of manual force attempting to extract him from a gap beside the porch, I am satisfied that it fell within the range of what was reasonably necessary in the circumstances. Given the events that had preceded his discovery, the SO would have had reason to be concerned that the Complainant was possibly armed with a weapon and would not surrender peacefully. In the circumstances, I am unable to reasonably conclude that the officer acted with excess when he quickly approached the Complainant and delivered two-short kicks before physically engaging him with his hands. The kicks would have served to distract the Complainant in the event he was, in fact, in possession of a weapon, mitigating the risk of such weapons being brought into play before he could safely be apprehended. No further strikes of any kind were delivered.
In the final analysis, whether the Complainant’s injury was incurred during the events on the porch or, as seems more likely, the motor vehicle collisions he was in, there are no reasonable grounds to believe that it was attributable to any unlawful conduct on the part of the SO. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: April 28, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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.