SIU Director’s Report - Case # 23-OCI-020
Warning:
This page contains graphic content that can shock, offend and upset.
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 a serious injury sustained by a 59-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 a serious injury sustained by a 59-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On January 17, 2023, at 8:46 p.m., the Cornwall Police Service (CPS) notified the SIU of an injury to the Complainant.According to the CPS, at 5:50 p.m., CPS officers responded to an address in Cornwall for an ‘assault with a weapon’ call. Upon arrival, the officers determined that the Complainant had attacked another resident where he lived by striking him several times in the head with a baseball bat. When officers attempted to arrest the Complainant, he resisted and was grounded. The Complainant was taken to the CPS lock-up facility where he complained of pain to his shoulder. As a result, he was transported to the Cornwall Community Hospital (CCH), where he was diagnosed with a fractured left clavicle. The Complainant was later discharged from hospital, returned to the CPS station and held for a bail hearing.
The Team
Date and time team dispatched: 01/17/2023 at 9:29 p.m.Date and time SIU arrived on scene: 01/17/2023 at 10:08 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
59-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on January 17, 2023.
Civilian Witnesses
CW #1 Not interviewed (Declined)CW #2 Interviewed
CW #3 Interviewed
Subject Officials
SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal rightSO #2 Interviewed, and notes received and reviewed
The subject officials were interviewed on January 26, 2023, and February 3, 2023.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed between January 26, 2023, and February 3, 2023.
Evidence
The Scene
The events in question transpired outside the door of unit of a residential building on Second Street West, Cornwall.On January 23, 2023, at 11:55 a.m., SIU investigators attended the property on Second Street West in Cornwall. The property was canvassed for witnesses and video footage was recovered from the address.
Video/Audio/Photographic Evidence [2]
911 Call
On January 26, 2023, the CPS provided the SIU with the 911 call placed by CW #3 on January 17, 2023, at 5:41 p.m. CW #3 indicated he was driving on Second Street West and had come across an injured CW #1, who was not wearing shoes or a coat, and was out front of the residence. CW #1 was bleeding from the head and had reported being beaten with a bat by the Complainant.
Video Footage
On March 3, 2023, SIU investigators attended Second Street West and obtained video footage [audio and video] that captured the incident under investigation. On January 17, 2023, starting at about 7:09:54 p.m., SO #1 and SO #2 were captured parking their marked CPS cruisers in front of the Complainant’s unit. Both officers approached the Complainant’s unit and spoke to him through a window that was to the left of the unit door. WO #1 walked to the vicinity but then turned and departed the field of view.
The Complainant was told that he would be arrested for ‘Assault with a Weapon’ and directed to open his door. After a short conversation, the Complainant opened the door. SO #2 placed his right foot inside the doorway, and grabbed the Complainant’s right arm and pulled him outside as SO #1 held the left arm. Both officers then attempted to put the Complainant’s hands behind his back. The Complainant resisted. Within seconds, the Complainant was taken to the ground.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the CPS:- Arrest Policy;
- Use of Force Policy;
- Occurrence Report;
- Supplementary Report;
- Local Interactions – the Complainant;
- List of Involved Officers
- Medical Intake Form – the Complainant;
- Civilian Witness – CW #3;
- Duty Report – SO #2;
- Notes of Witness Officials and SO #2; and
- Use of Force Training Records for Witness Officials and Subject Officials.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Medical records of the Complainant – CCH; and
- CPIC Report – the Complainant and CW #1.
Incident Narrative
In the evening of January 17, 2023, SO #1 and SO #2 were dispatched to a residential building Second Street West. They were there following a call to police by CW #3. CW #3 had come across a male – CW #1 – bleeding from the head and stopped to render assistance. CW #1 reported that he had been assaulted with a bat wielded by the Complainant – a resident of one of the units at the address.
With the front door open, SO #1 took a small step into the unit across the door’s threshold and grabbed hold of the Complainant’s right arm. SO #2 took hold of the Complainant’s left arm from outside the doorway. The officers pulled the Complainant out of the unit and then onto the snow-covered ground, after which he was handcuffed.
Following his arrest, the Complainant was taken to a police facility and then to hospital where he was diagnosed with a fractured left clavicle.
Arriving on scene, SO #1 and SO #2 spoke with CW #1, after which they approached the Complainant’s unit. The Complainant spoke to the officers through his front window and was told that he would be arrested for assault with a weapon. The officers repeatedly directed that the Complainant open his door and come out, at one point threatening they would knock the door down. The Complainant eventually opened the front door.
With the front door open, SO #1 took a small step into the unit across the door’s threshold and grabbed hold of the Complainant’s right arm. SO #2 took hold of the Complainant’s left arm from outside the doorway. The officers pulled the Complainant out of the unit and then onto the snow-covered ground, after which he was handcuffed.
Following his arrest, the Complainant was taken to a police facility and then to hospital where he was diagnosed with a fractured left 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 seriously injured in the course of his arrest by CPS officers on January 17, 2023. The arresting officers – SO #1 and SO #2 – were identified as subject officials 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 subject officials 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.
I am satisfied that there were grounds to seek the Complainant’s arrest for assault. SO #1 and SO #2 had spoken to CW #1 and observed the injuries to his head.
More of a question is whether the officers were lawfully placed at the point of arrest, but here, too, I am unable to reasonably conclude that the officers were not in the lawful execution of their duty. Pursuant to the law enunciated in R v Feeney, [1997] 2 SCR 13, a police officer is generally prohibited from forcibly entering a dwelling-house to effect an otherwise lawful arrest in the absence of a warrant authorizing such entry. Assuming for present purposes that SO #1 and SO #2 entered the Complainant’s dwelling-house when they pulled him through the open threshold of the doorway, there is a reasonable case to be made that the Complainant had essentially submitted to his arrest and consented to the officers’ entry into the unit for that purpose (thereby obviating the need for a Feeney warrant). That case is premised on the fact that the Complainant, having been advised that he was under arrest and directed to open the door, did just that. I acknowledge that the character of the Complainant’s consent is up for debate, particularly as he had been told that the officers would break down the door if necessary. That threat, however, was in some ways no more than a realistic caution of what would happen if the Complainant continued to refuse, and the officers obtained a warrant (which they had grounds to secure).
As for the force used by the subject officials in aid of the Complainant’s arrest, namely, pulling him to the ground from the doorway threshold of his residence, it was, in my view, legally justified. The Complainant did not go willingly with the officers. In the circumstances, a takedown would appear a reasonable tactic as it would position the officers to better manage any continuing resistance on the part of the Complainant.
In the result, while I accept that the Complainant’s injury was the result of his fall to the ground, there are no reasonable grounds to believe that it was attributable to unlawful conduct on the part of the subject officials. Accordingly, there is no basis for proceeding with charges in this case. The file is closed.
Date: May 17, 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.
I am satisfied that there were grounds to seek the Complainant’s arrest for assault. SO #1 and SO #2 had spoken to CW #1 and observed the injuries to his head.
More of a question is whether the officers were lawfully placed at the point of arrest, but here, too, I am unable to reasonably conclude that the officers were not in the lawful execution of their duty. Pursuant to the law enunciated in R v Feeney, [1997] 2 SCR 13, a police officer is generally prohibited from forcibly entering a dwelling-house to effect an otherwise lawful arrest in the absence of a warrant authorizing such entry. Assuming for present purposes that SO #1 and SO #2 entered the Complainant’s dwelling-house when they pulled him through the open threshold of the doorway, there is a reasonable case to be made that the Complainant had essentially submitted to his arrest and consented to the officers’ entry into the unit for that purpose (thereby obviating the need for a Feeney warrant). That case is premised on the fact that the Complainant, having been advised that he was under arrest and directed to open the door, did just that. I acknowledge that the character of the Complainant’s consent is up for debate, particularly as he had been told that the officers would break down the door if necessary. That threat, however, was in some ways no more than a realistic caution of what would happen if the Complainant continued to refuse, and the officers obtained a warrant (which they had grounds to secure).
As for the force used by the subject officials in aid of the Complainant’s arrest, namely, pulling him to the ground from the doorway threshold of his residence, it was, in my view, legally justified. The Complainant did not go willingly with the officers. In the circumstances, a takedown would appear a reasonable tactic as it would position the officers to better manage any continuing resistance on the part of the Complainant.
In the result, while I accept that the Complainant’s injury was the result of his fall to the ground, there are no reasonable grounds to believe that it was attributable to unlawful conduct on the part of the subject officials. Accordingly, there is no basis for proceeding with charges in this case. The file is closed.
Date: May 17, 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.