SIU Director’s Report - Case # 23-OCI-067
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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 33-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 33-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On March 2, 2023, at 10:28 p.m., the North Bay Police Service (NBPS) contacted the SIU with the following information.On March 2, 2023, at 11:07 a.m., police officers were dispatched to arrest the Complainant on outstanding warrants for several charges. The Complainant resisted arrest and was grounded. He was taken to the police station and processed at 11:25 a.m. During a search at the station, a knife was found around his neck and additional charges were laid as a result. The Complainant was lodged in a cell. At 8:10 p.m., the Complainant told police officers he was having trouble breathing. He was taken to the North Bay Regional Hospital [2] and diagnosed with a fractured rib.
The Team
Date and time team dispatched: 03/03/2023 at 7:36 a.m.Date and time SIU arrived on scene: 03/03/2023 at 9:00 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
33-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on March 8, 2023.
Civilian Witness (CW)
CW Interviewed The civilian witness was interviewed on March 16, 2023.
Subject Official (SO)
SO Interviewed; notes received and reviewed The subject official was interviewed on March 17, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed between March 7 and 9, 2023.
Evidence
The Scene
The scene was a lot on Main Street East in the area of Fisher Street, North Bay. The Complainant was arrested on the icy/snowy ground. Video/Audio/Photographic Evidence [3]
Communications Recordings
On March 8, 2023, the NBPS provided a copy of the pertinent police communications recordings.Between about 11:07:51 a.m. and 11:09:32 a.m., March 2, 2023, the SO was noted as responding to a call for service when he saw the Complainant at Fisher and Main Streets. A dispatcher provided the SO information of outstanding warrants in effect for the Complainant. The SO subsequently said he was with the Complainant, who was resisting. The officer asked for back-up.
Between about 11:11:00 a.m. and 11:11:03 a.m., WO #1 had the Complainant in custody.
Video Footage from Witness #1 [4]
On March 8, 2023, Witness #1 provided the SIU two cellular phone video clips of the arrest of the Complainant. First Clip
The Complainant was captured lying on the ground on his back. His left hand was being held by the SO, who was kneeling beside the Complainant’s left side. The SO told the Complainant to get on his front. The Complainant said, “My ribs. You hurt my ribs.”
Witness #1 asked why the Complainant was arrested. The SO said he had already told the Complainant the reason and did not have to tell her. The Complainant then said he was never told.
The SO told the Complainant if he resisted further, he would be hurt. The Complainant said he was already hurt. He crossed his arms across his stomach. The SO told him repeatedly to get on his stomach and put his hands behind his back. The Complainant winced in pain while saying, “My ribs man.”
The SO handcuffed the Complainant’s left hand. The Complainant then pulled his left arm away and made a closed fist with his right hand. The SO told the Complainant, “No more of that.” The Complainant said, “Stop hurting me man, or I’m going to fucking hit you in a minute man, stop.”
The SO had his left knee across the Complainant’s stomach. The SO repeatedly told the Complainant to roll over.
A police cruiser arrived with emergency equipment activated. WO #1 exited the police vehicle. He grabbed the Complainant’s right wrist and said, “Stand up.” WO #1 and the SO lifted the Complainant to his feet. They placed his hands behind his back and said to the Complainant he had warrants.
The Complainant was handcuffed.
Second Clip
The SO searched the Complainant. The Complainant was irate and yelling at the SO.
The Complainant resisted being placed in the rear of WO #1’s cruiser. WO #1 pushed on the Complainant from the front and the SO went to the other side of the police vehicle. Banging was heard from the police vehicle.
Video Footage from Business #1
On March 13, 2023, the SIU obtained video footage from Business #1 that captured the arrest of the Complainant on March 2, 2023. Three video clips were provided. The videos were time-stamped.Starting at about 11:09:04 a.m., an unmarked police vehicle was captured stopped in the northbound lane of Main Street East facing north. Two men were walking northbound beside the police vehicle. A police officer was walking behind them. One man (now known to be the Complainant) separated from the other man and walked backwards towards a residence. The police officer (now known to be the SO) approached the Complainant and grabbed his right arm and shoulder area.
Starting at about 11:09:21 a.m., a struggle ensued between the SO and the Complainant consisting of opposing tugs. The SO performed two leg sweeps of the Complainant with his left leg.
Starting at about 11:09:34 a.m., the Complainant fell and landed on his left shoulder on the ground with the SO falling on top of him on his right shoulder. The SO held the Complainant. The Complainant rolled onto his back. The SO was kneeling next to him.
Starting at about 11:09:55 a.m., a woman (now known to be Witness #1) ran over to the area of the Complainant and the SO.
Starting at about 11:11:35 a.m., a police vehicle (now known to be driven by WO #1) arrived with emergency vehicle lights activated.
Video Footage from Residence #1
Starting at about 11:07:16 a.m., March 2, 2023, the Complainant and the CW, and the SO, were captured walking on a sidewalk along Main Street East. The Complainant turned his head to look at the SO. The CW walked beside him. The SO approached the Complainant and grabbed his right arm with his left hand. The Complainant pulled away from the SO. The CW walked away out of camera view.Starting at about 11:07:43 a.m., the SO used his left leg as leverage and pulled the Complainant to the ground. The Complainant landed on his left shoulder with the SO landing on top of him. The SO then kneeled across the Complainant’s stomach using his left knee. The Complainant was on his back and the SO held onto the Complainant’s left arm.
Between about 11:08:05 a.m. and 11:08:19 a.m., Witness #1 ran to the end of a driveway. The CW returned.
Starting at about 11:09:22 a.m., the SO grabbed an object from his person.
Starting at about 11:09:47 a.m., a marked NBPS SUV arrived with its emergency lights activated. WO #1 walked over and stood the Complainant up. Both NBPS officers then brought the Complainant’s arms behind his back and walked him over to the marked NBPS SUV. The SO searched the Complainant next to the NBPS marked SUV.
Starting at about 11:12:43 a.m., WO #1 attempted to place the Complainant in the rear of his police vehicle. The SO went to the opposite side of the police vehicle and opened the rear door. The Complainant was placed in the rear of the police vehicle shortly after.
NBPS Custody Video
On March 8, 2023, the NBPS provided video footage of the Complainant’s detention at the police station.The Complainant was captured being brought out of the rear of WO #1’s police vehicle by WO #1 and the SO. The Complainant winced in pain.
While in the booking hall, the Complainant repeatedly leaned forward and to his right side, and continued to show signs of pain and discomfort. While being placed against a wall, facing it with his hands stretched up, his left arm was significantly lower than his right arm.
The Complainant had conversation with WO #3. The Complainant leaned on the booking hall desk, holding his abdomen with his left arm.
The Complainant was placed in a cell. The Complainant exclusively laid on his right side.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the NBPS between March 6 and 16, 2023:- Arrest Warrant;
- Communications recordings;
- Custody video;
- Photos of knife;
- Crown Brief;
- Occurrence Summary;
- Record of computer-assisted dispatch and Chronology;
- Custody Record and Summary;
- General Occurrence Report;
- Sick Prisoner Report;
- Procedure – Use of Force;
- Procedure – Arrest;
- Notes - WO #2;
- Notes - WO #1;
- Notes – WO #3; and
- Notes – SO.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Video footage from Residence #1;
- Video footage from Business #1;
- Video footage from Witness #1; and
- The Complainant’s medical records from the NBRHC.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may briefly be summarized.
In the morning of March 2, 2023, the SO was on patrol operating his marked cruiser south on Main Street East when he observed the Complainant. The Complainant was walking north on the east sidewalk with a friend. The officer confirmed that there were arrest warrants in effect for the Complainant and decided to take him into custody. He performed a U-turn, brought his vehicle to a stop on the east side of the road behind the Complainant, and exited the cruiser.
The Complainant was beside the lot in front of an address on Main Street East near Fisher Street when he was confronted by the officer. Told he was under arrest, the Complainant objected and began to physically resist the SO when the officer took hold of him. The two pushed and pulled before the SO, using a leg sweep, forced the Complainant to the ground.
The Complainant landed on his back and failed to turn over onto his stomach despite the SO’s direction that he do so. The SO affixed a handcuff on the Complainant’s left arm, but was unable to secure his right arm. The officer called for back-up and used his left knee to keep the Complainant pinned to the ground as they waited.
WO #1 arrived at the arrest scene within moments. With his help, the Complainant was stood up and fully handcuffed.
The Complainant was taken to the police station in WO #1’s cruiser and lodged in a cell. When the Complainant subsequently complained of trouble breathing, he was taken to hospital and diagnosed with a suspected right rib fracture.
In the morning of March 2, 2023, the SO was on patrol operating his marked cruiser south on Main Street East when he observed the Complainant. The Complainant was walking north on the east sidewalk with a friend. The officer confirmed that there were arrest warrants in effect for the Complainant and decided to take him into custody. He performed a U-turn, brought his vehicle to a stop on the east side of the road behind the Complainant, and exited the cruiser.
The Complainant was beside the lot in front of an address on Main Street East near Fisher Street when he was confronted by the officer. Told he was under arrest, the Complainant objected and began to physically resist the SO when the officer took hold of him. The two pushed and pulled before the SO, using a leg sweep, forced the Complainant to the ground.
The Complainant landed on his back and failed to turn over onto his stomach despite the SO’s direction that he do so. The SO affixed a handcuff on the Complainant’s left arm, but was unable to secure his right arm. The officer called for back-up and used his left knee to keep the Complainant pinned to the ground as they waited.
WO #1 arrived at the arrest scene within moments. With his help, the Complainant was stood up and fully handcuffed.
The Complainant was taken to the police station in WO #1’s cruiser and lodged in a cell. When the Complainant subsequently complained of trouble breathing, he was taken to hospital and diagnosed with a suspected right rib fracture.
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 a NBPS officer on March 2, 2023. 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 arrest and injury.
There were warrants in effect for the Complainant’s arrest and the SO was within his rights in seeking to take the Complainant into custody.
The Complainant resisted his arrest and the SO responded with a measure of force that was legally justified. The takedown would appear to have been a reasonable tactic in the circumstances. Having attempted and failed to handcuff the Complainant on his feet because of his resistance, it makes sense that the officer would want to force the Complainant onto the ground where his resistance could be better managed. Thereafter, when the Complainant continued to resist and even threatened to punch the officer at one point, the officer acted reasonably in using a knee to keep him firmly on the ground while waiting for WO #1.
In the result, while I accept that the Complainant sustained his fracture in the altercation with the SO that marked his arrest, there are no reasonable grounds to believe that the officer comported himself other than within the limits of the criminal law throughout their engagement. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: June 30, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
There were warrants in effect for the Complainant’s arrest and the SO was within his rights in seeking to take the Complainant into custody.
The Complainant resisted his arrest and the SO responded with a measure of force that was legally justified. The takedown would appear to have been a reasonable tactic in the circumstances. Having attempted and failed to handcuff the Complainant on his feet because of his resistance, it makes sense that the officer would want to force the Complainant onto the ground where his resistance could be better managed. Thereafter, when the Complainant continued to resist and even threatened to punch the officer at one point, the officer acted reasonably in using a knee to keep him firmly on the ground while waiting for WO #1.
In the result, while I accept that the Complainant sustained his fracture in the altercation with the SO that marked his arrest, there are no reasonable grounds to believe that the officer comported himself other than within the limits of the criminal law throughout their engagement. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: June 30, 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) North Bay Regional Health Centre (NBRHC). [Back to text]
- 3) 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]
- 4) The SIU was not able to interview this witness. [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.