SIU Director’s Report - Case # 23-PCI-041
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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 42-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 42-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On February 11, 2023, at 9:18 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information. On February 10, 2023, the Complainant was arrested by OPP officers from the Upper Ottawa Valley (UOV) Detachment. No force was used during the arrest, which was captured on body-worn camera (BWC). The Complainant was released from OPP custody at 6:00 p.m. On February 11, 2023, at approximately 7:42 a.m., the Complainant returned to the UOV Detachment with a cast on his left wrist. He reported the cast was "not fake" and said that his injury occurred during the arrest.
The Team
Date and time team dispatched: 02/13/2023 at 7:47 a.m.Date and time SIU arrived on scene: 02/13/2023 at 10:13 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
42-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on February 17, 2023.
Civilian Witness (CW)
CW InterviewedThe civilian witness was interviewed on May 10, 2023.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on March 16, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed between March 2, 2023, and May 16, 2023.
Evidence
The Scene
The events in question transpired in and around a residence in Pembroke.Video/Audio/Photographic Evidence [2]
Police Communications Recordings
On February 10, 2023, at approximately 4:16:21 p.m., the CW called 911 and requested police assistance because the Complainant had slapped her across the face and threatened to kill her. The CW provided the phone to the Complainant, who told the 911 call-taker that the police officers were not allowed in his residence because he had firearms. The SO and WO #1 were dispatched to the Complainant’s residence. The dispatcher radioed that the Complainant denied hitting the CW.
WO #1 radioed they had the Complainant in custody for ‘assault’ and ‘uttering threats’, and subsequently transported him to the detachment to be lodged.
BWC Footage – WO #1
On February 10, 2023, starting at about 4:26:48 p.m., WO #1’s BWC captured the CW reporting that the Complainant had thrown his phone on the chair and stated that he was going to kill her. The Complainant had subsequently run at her and slapped her in the face. The Complainant was captured positioned at the side door. He wanted to grab his cell phone and cigarettes. WO #1 told the Complainant to remain outside for one minute.
Shortly thereafter, the SO exited the residence and requested to have a conversation with the Complainant at the entranceway. The Complainant said, “I’ll talk to you in a minute. You can step the fuck out.” The SO directed the Complainant to step outside and then told him he was under arrest for ‘assault’ and ‘uttering threats’. The SO handcuffed the Complainant’s arms him behind his back outside of the residence. The handcuffs were double-locked at the time. The Complainant was compliant during the arrest.
The Complainant was searched and then placed in the back of the SO’s police vehicle to be transported back the detachment for lodging.
On February 11, 2023, starting at about 7:56:41 a.m., the Complainant walked up to the entranceway of the UOV Detachment. WO #1 invited him into the detachment’s lobby area to have a conversation. The Complainant raised his left forearm/wrist, which was in a cast, and said, “It was fractured.” The Complainant said the handcuffs were too tight when he was in custody the previous day. He said he tried to tell them (the SO and WO #1) that the handcuffs were too tight, but they did not listen. The Complainant said, “I also told you I had disabilities. You guys manhandled me, so I was like pretty sore and everything, and I’m still sore. And I’m not a fucking criminal.” He raised his left forearm/wrist, looked at it, and said it was uncalled for and, “If you break somebody’s fucking wrist whenever he was compliant, because I put my hands behind my back. I wasn’t resisting.” WO #1 stated it was a domestic dispute and there were grounds for charges. The Complainant stated that he attended the Pembroke Regional Hospital at approximately 1:00 a.m.
Starting at about 8:03:59 a.m., the Complainant pointed to his right wrist and stated the SO had closed the handcuffs on the wrong area of his wrists. As a result, WO #1 took pictures of the Complainant, the cast, and his right wrist area.
Starting at about 8:24:47 a.m., WO #1 provided the Complainant with Office of the Independent Police Review Director complaint forms before he left the detachment.
BWC Footage – The SO
On February 10, 2023, starting at about 6:01:12 p.m., the SO’s BWC camera captured the SO and the Complainant as they entered an interview room within the OPP detachment. The Complainant sat in a chair and showed the SO his left and right wrists. The Complainant advised the SO that he did not want to provide a statement because of his post-traumatic stress disorder.In-car Camera System (ICCS) Footage
Starting at about 4:31:07 p.m., February 10, 2023, the Complainant was captured being placed in the backseat (driver’s side) of the SO’s police vehicle. The Complainant was handcuffed behind his back. Starting at about 4:38:18 p.m., the Complainant groaned, “Oh, fuck.” The SO advised they were almost at the detachment, and apologized. The Complainant replied, “No, no, that’s all-good man. Just the handcuffs are right in my back.” The Complainant then laughed and said he would lean (to alleviate the pain), which appeared to provide the necessary relief.
Custody Footage
Starting at about 4:41:16 p.m., February 10, 2023, the Complainant was captured sitting on a bench in the guard station while WO #2 stood at the desk beside him and completed the booking process. Starting at about 4:42:00 p.m., the Complainant stood and faced a wall while the SO removed the handcuffs from behind his back
Starting at about 4:43:53 p.m., the Complainant placed his right hand on his left shoulder area and moved his left forearm upwards and downwards. He continued these movements for approximately 18 seconds while the SO observed from a short distance away.
Starting at about 4:48:18 p.m., the Complainant signed documentation with the SO at the desk while WO #2 observed from behind. The Complainant used his left hand to sign the documentation. Seconds later, WO #2 and the SO escorted the Complainant into a cell.
Starting at about 4:53:24 p.m., the Complainant walked around the cell and touched his left shoulder with his right hand as he moved his left arm in a circular motion. Over the next 67 minutes, the Complainant motioned his left arm in a similar manner approximately eight separate times.
Starting at about 6:39:59 p.m., the SO and the Complainant entered the guard room and stood beside each other at the half-wall. They reviewed the documents for his charges and release. The Complainant was released from OPP custody approximately five minutes later.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between February 13, 2023, and May 10, 2023:- Notes-WO #1;
- Prisoner Booking Report;
- BWC footage;
- ICCS footage;
- Custody footage; and
- Communications recordings.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following record from other sources on February 16, 2023:- The Complainant’s medical records from Pembroke Regional Hospital.
Incident Narrative
The events in question, clear on the evidence collected by the SIU, may briefly be summarized.
In the afternoon of February 10, 2023, the SO and WO #1 were dispatched to a call involving an assault in progress at a residence in Pembroke. The CW had called 911 to report that her husband – the Complainant – had slapped her and threatened her with death.
The SO was the first to arrive at the address. He spoke with the CW inside the residence, who confirmed the substance of her 911 call, and decided to arrest the Complainant for assault and uttering threats.
Told that he was under arrest, the Complainant surrendered his arms and allowed himself to be handcuffed behind the back by the SO without incident.
The Complainant was taken to the OPP detachment, held in custody for a brief period, and released. He attended hospital the next day where diagnostic imaging, though inconclusive, suggested he might have suffered a fracture of the left wrist.
In the afternoon of February 10, 2023, the SO and WO #1 were dispatched to a call involving an assault in progress at a residence in Pembroke. The CW had called 911 to report that her husband – the Complainant – had slapped her and threatened her with death.
The SO was the first to arrive at the address. He spoke with the CW inside the residence, who confirmed the substance of her 911 call, and decided to arrest the Complainant for assault and uttering threats.
Told that he was under arrest, the Complainant surrendered his arms and allowed himself to be handcuffed behind the back by the SO without incident.
The Complainant was taken to the OPP detachment, held in custody for a brief period, and released. He attended hospital the next day where diagnostic imaging, though inconclusive, suggested he might have suffered a fracture of the left wrist.
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 diagnosed with a possible left wrist fracture shortly after he was arrested and released by OPP officers on February 10, 2023. In the ensuing SIU investigation, one of the officers – 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 arrest and diagnosis.
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.
Based on the information the SO had at his disposal from the 911 call and his personal conversation with the CW, I am satisfied the officer had grounds to seek the Complainant’s arrest.
As for the force used by the SO in the course of the Complainant’s arrest, this was negligible and consisted of nothing more than the officer positioning the Complainant’s arms behind his back and affixing the handcuffs. There was no struggle or application of any demonstrable force at any time.
Nor is there evidence of any want of care on the part of the SO in his dealings with the Complainant sufficient to attract criminal sanction. The handcuffs, which had been double-locked to prevent any further tightening around the Complainant’s wrist, were removed at the detachment at the first reasonable opportunity.
On the aforementioned-record, if, in fact, the SO caused or contributed to a fractured wrist suffered by the Complainant, it is apparent that the officer did not resort to excessive force, nor was he criminally derelict in his care of the Complainant throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 9, 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.
Based on the information the SO had at his disposal from the 911 call and his personal conversation with the CW, I am satisfied the officer had grounds to seek the Complainant’s arrest.
As for the force used by the SO in the course of the Complainant’s arrest, this was negligible and consisted of nothing more than the officer positioning the Complainant’s arms behind his back and affixing the handcuffs. There was no struggle or application of any demonstrable force at any time.
Nor is there evidence of any want of care on the part of the SO in his dealings with the Complainant sufficient to attract criminal sanction. The handcuffs, which had been double-locked to prevent any further tightening around the Complainant’s wrist, were removed at the detachment at the first reasonable opportunity.
On the aforementioned-record, if, in fact, the SO caused or contributed to a fractured wrist suffered by the Complainant, it is apparent that the officer did not resort to excessive force, nor was he criminally derelict in his care of the Complainant throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 9, 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, 21:9. 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.