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 44-year-old man (the “Complainant”).

Notification of the SIU [1]

On January 5, 2023, at 4:00 p.m., the Thunder Bay Police Service (TBPS) contacted the SIU with the following information.

On January 5, 2023, the TBPS received notification from the Office of the Independent Police Review Director (OIPRD) that an assault complaint had been filed by the Complainant stemming from an incident back on December 19, 2021. The complaint indicated the Complainant had been a patient at the Thunder Bay Regional Health Sciences Centre (TBRHSC) on a Mental Health Act Form 1. The hospital reported to the police that the Complainant had fled the hospital. The SO and WO #1 subsequently located the Complainant at the Golf Links Road entrance to the hospital. The Complainant refused to comply with the officers’ demands and a struggle ensued. The Complainant was physically apprehended and hit with knee strikes to the torso. The officers returned the Complainant to the hospital on the Form 1. At the time, there was no complaint of any injury.

The Scene

The events in question transpired on the east sidewalk of Golf Links Road, Thunder Bay, south of Donald Caddo Drive.

Video/Audio/Photographic Evidence [2]

Body-worn Camera (BWC) Footage – The SO

TBPS provided a copy of the SO’s BWC footage from December 19, 2021, at 1:34:02 p.m.

Between around 00:00 and 00:30 minutes into the footage, the footage depicted the inside of the SO’s cruiser being operated by the officer. The vehicle arrived on scene and stopped, and the officer exited the vehicle.

Starting at around 00:32 minutes, a police vehicle was captured parked near the entrance to the hospital and a male was depicted walking in the distance.

Starting at around 00:39 minutes, the SO approached the man on the sidewalk on foot and called out to him by first name [known to be the Complainant].

Starting at around 00:44 minutes, the SO advised they were looking for a man matching his description and asked for identification.
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Starting at around 00:50 minutes, the Complainant walked past the SO and stated he did not have any identification.

Starting at around 00:59 minutes, the SO asked the man to hold on as they needed to confirm he was not who they were looking for since he matched the description. The Complainant verbally identified himself by an incorrect first name, but he was unable to provide a last name when requested.

Starting at around 01:02 minutes, the SO took physical control of the Complainant’s right arm.

Starting at around 01:10 minutes, the SO explained that he matched the description of the man they were looking for, and he did not want him to run away.

Starting at around 01:15 minutes, the Complainant pulled away and said, “Let go.”

Starting at around 01:20 minutes, both uniform officers on scene had their hands on the Complainant.

Starting at around 01:24 minutes, the Complainant was brought to the ground, and the SO stated, “Put your hands behind your back.”

Starting at around 01:31 minutes, “Put your hands behind your back please,” was captured on the footage.

Starting at around 01:39 minutes, the footage captured, “Again, you are not in any trouble here… just please cooperate.”

Starting at around 01:45 minutes, “All you have got to do is put your hands behind your back,” was captured on the footage.

Starting at around 01:53 minutes, the Complainant stated he did not feel comfortable.

Starting at around 02:17 minutes, the Complainant’s apprehension under Form 1 of the Mental Health Act was explained, and the fact that the Complainant could not leave the hospital.

The Complainant was repeatedly asked to please put his hands behind his back and stand up; he refused.

Starting at around 02:45 minutes, the officers asked if there was anything they could do to get him to comply. He advised that he would go back to the hospital, but not handcuffed.

Starting at about 02:50 minutes, the SO explained it was policy that he be handcuffed before being returned to the hospital.

Starting at around 02:58 minutes, the Complainant stated, “You have been fair enough, if you have to abuse me then abuse me.”

Starting at around 03:00 minutes, the Complainant was advised to stop tensing up.

The struggle continued on the sidewalk.

Starting at around 03:25 minutes, though not captured on video, there was movement consistent with the SO delivering two and, possibly, three knee strikes to the right side of the Complainant.

Starting at 03:41 minutes, though not captured on video, there was movement consistent with the SO delivering a knee strike to the right side of the Complainant. The Complainant continued to hold his hands together in front of his upper body.

Starting at around 04:32 minutes, the Complainant’s hands were brought behind his back as he lay prone on the sidewalk;

Starting at around 04:32 minutes, another man in civilian clothes [now known to be an off-duty officer, WO #3] attended and assisted with the handcuffing of the Complainant.

Starting at around 04:39 minutes, “One apprehended,” was captured on the footage.
Starting at around 05:03 minutes, WO #3 left the area. The Complainant was lying prone on the ground with his hands cuffed behind his back.

Starting at around 05:44 minutes, the Complainant was brought to a seated position.

Starting at around 05:50 minutes, the Complainant was brought to his feet.

Starting at around 06:15 minutes, the Complainant was walked to the cruiser, searched, and placed in the rear.

BWC – WO #1

The TBPS provided the SIU a copy of the BWC footage of WO #1 from December 19, 2021, at 1:29:36 p.m.

The footage began with an individual wearing a winter jacket and toque interlocking his fingers/hands in front of his face down on the ground, with an officer attempting to pull his hands out from in front. A police officer’s black gloved hand was on the hood of the Complainant’s jacket. The Complainant refused to give up his hands, which he had securely clasped in front.

An officer was heard saying, “Can you please put your hands behind your back?” The Complainant responded, “No, I won’t.”

A police officer explained to the Complainant the Mental Health Act Form 1, and the reason he was apprehended and needed to go back to the hospital; the Complainant refused to cooperate. Police officers pled with the Complainant to put his hands behind his back and to cooperate by going back to the hospital, and the Complainant responded, “No.”

Police officers asked if there was anything they could do that would make him put his hands behind his back. The Complainant responded, “No, but I’ll go back but without handcuffs.” A police officer explained it was policy for him to be returned handcuffed.

The Complainant was directed several more times to put his hands behind his back, and he continued to respond, “No.” A police officer deployed a knee strike. Another knee strike was deployed, and the Complainant moaned in pain as his hands became unclasped. Officers struggled to get the Complainant’s hands behind his back.

Officers and a man in civilian clothes [known to be WO #3] managed to get the Complainant’s hands behind his back and secure the handcuffs.

The Complainant was escorted on foot over to a waiting marked police SUV, searched, and placed in the rear of the vehicle.

BWC – WO #2

TBPS provided the SIU with a copy of the BWC footage of WO #2 from December 19, 2021.

The Complainant was lying prone on the snow-covered sidewalk handcuffed behind his back, after which two uniformed officers helped him to his feet and escorted him over to a waiting marked police cruiser.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TBPS between January 10 and 12, 2023:

• General Report;
• Event Chronology;
• The Complainant’s OIPRD Complaint;
• BWC footage;
• Notes-WO #1; and
• Notes-WO #2.

Materials Obtained from Other Sources

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

• The Complainant’s medical records from the TBRHSC

The material events in question, clear on the evidence collected by the SIU, may briefly be summarized. As was his legal right, the SO declined an interview with the SIU or to authorize the release of his notes.

In the afternoon of December 19, 2021, TBPS officers were called to the TBRHSC when it was learned that a male had absconded from the hospital. The male – the Complainant – was being held at the hospital pursuant to lawful process under the Mental Health Act.

Shortly after 1:30 p.m., the SO arrived in the area of the hospital. He was accompanied by another officer – WO #1 – who had arrived in his own cruiser. The SO confronted the Complainant, who matched the description of the wanted male. The Complainant was walking northwards on the east sidewalk of Golf Links Road towards Donald Caddo Drive. When asked, the Complainant denied he was the person who had left the hospital, provided a false name and attempted to walk away. The SO grabbed him by the arm to prevent him from leaving, and then decided to take him into custody when the Complainant refused to provide a last name or produce any identification.

The Complainant was brought to the ground by the SO and WO #1, where he steadfastly refused to release his hands so he could be handcuffed. With the Complainant in a kneeling position, hands clasped in front of his face, the SO delivered two to three knee strikes to the Complainant’s right side. The Complainant continued to refuse to free his hands, and was met with a final knee strike to the right side by the SO. Within seconds of that strike, the officers, with the other arriving officers, wrestled control of the Complainant’s arms and handcuffed them to the back.

Following his arrest, the Complainant was returned to the hospital, after which he was discharged without a serious injury diagnosis. The Complainant subsequently attended a clinic and was diagnosed with two right-sided rib fractures.

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,

On January 5, 2023, the TBPS notified the SIU that they were recently in receipt of information in which it was reported that TBPS officers had assaulted a male -– the Complainant – in the course of his arrest on December 19, 2021. The SIU initiated an investigation, naming one of the arresting officers – 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 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 Complainant was unlawfully at large from the hospital having been held there under the force of a Mental Health Act, Form 1. [3] In the circumstances, the SO was within his rights in seeking to enforce the warrant and return the Complainant to hospital.

With respect to the force used by the SO in aid of the Complainant’s apprehension, namely, a takedown and several knee strikes, I am satisfied that it was legally justified. The grounding, performed without undue force, made sense as the Complainant had physically resisted the SO’s initial attempts to take him into custody. Once on the ground, the SO and WO #1 could better expect to manage any continuing resistance on the part of the Complainant given their positional advantage. Indeed, the Complainant continued to resist by refusing to surrender his arms so they could be handcuffed and was met by three and, possibly, four knee strikes by the SO. The officers had attempted to persuade the Complainant to release his hands, and the SO acted after those efforts had exhausted themselves. It was only after the third (or, fourth) strike that the officers were able to take control of the Complainant’s arms and secure them in handcuffs, after which no further strikes of any kind were delivered.

In the result, while I accept that the Complainant’s broken ribs were the result of one or more of the knee strikes by the SO, there are no reasonable grounds to believe they are attributable to any unlawful conduct on the part of the officer. The file is closed.


Date: May 3, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit