SIU Director’s Report - Case # 23-OCI-084
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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 36-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 36-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On March 15, 2023, at 8:47 a.m., the Woodstock Police Service (WPS) notified the SIU of an injury to the Complainant.According to the WPS, on March 14, 2023, at 11:00 p.m., WPS officers were requested to attend at Peel Street in Woodstock. A male, the Complainant, had been reported having tried to assault a security guard. Once police responded, the Complainant was recognized by police officers from past occurrences as a person with mental health issues. The Complainant’s behaviour towards the police was described as aggressive. He failed to comply with their commands. The Complainant’s erratic behaviour began to escalate to the point where he started yelling at police to shoot him. Police officers fired their conducted energy weapons (CEWs) at the Complainant. The CEW deployments were ineffective. The Complainant was subsequently tackled to the ground and handcuffed, sustaining a cut to his face in the process. At 11:22 p.m., the Complainant was transported to Woodstock General Hospital (WGH) for a mental health assessment. On March 15, 2023, at 1:25 a.m., hospital staff advised police they were no longer needed, and police officers left. At 7:00 a.m., WPS was notified by WGH that the Complainant had sustained a fractured left orbital bone.
The Team
Date and time team dispatched: 03/15/2023 at 9:24 a.m.Date and time SIU arrived on scene: 03/15/2023 at 11:01 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
36-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on March 21, 2023.
Civilian Witness (CW)
CW Interviewed The civilian witness was interviewed on March 16, 2023.
Subject Official (SO)
SO Declined interview, as is the subject official’s legal right; notes received and reviewed Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
The witness officials were interviewed on March 21, 2023.
Evidence
The Scene
The events in question transpired in the parking lot behind 45 Metcalf Street, Woodstock.On Wednesday, March 15, 2023, at 11:01 a.m., the SIU arrived at 45 Metcalf Street, Woodstock. The scene was in the rear parking lot of Fanshawe College. There was blood and CEW wire on the pavement of the parking lot. A leather wrist band was found near the blood.
The scene was photographed and then released to the police service.
Forensic Evidence
CEW Deployment Data - WO #4
On March 14, 2023, at 11:03:51 p.m., [2] WO #4 took his CEW off safety, arming it. There was a live cartridge in both bay one and bay two. At 11:03:55 p.m., WO #4 pulled the trigger on his CEW and deployed the cartridge in bay one. The electrical charge lasted for a duration of 1.309 seconds.
CEW Deployment Data - WO #1
On March 14, 2023, at 11:03:44 p.m., WO #1 took his CEW off safety, arming it. There was a live cartridge in both bay one and bay two. At 11:03:46 p.m., WO #1 pulled the trigger on his CEW and deployed the cartridge in bay one. The electrical charge lasted for a duration of 0.039 seconds. At 11:03:46 p.m., WO #1 pulled the trigger of his CEW second time and deployed the cartridge in bay two. The electrical charge lasted for a duration of 5.080 seconds. At 11:03:52 p.m., WO #1 pulled the trigger of his CEW a third time and the electrical charge lasted for a duration of 2.181 seconds.CEW Deployment Data - WO #3
On March 14, 2023, at 11:03:51 p.m., WO #3 took his CEW off safety, arming it. There was a live cartridge in both bay one and bay two. At 11:03:53, p.m. WO #3 selected the right bay on his CEW. At 11:03:55 p.m., WO #3 put his CEW on safety, thereby disarming it. Video/Audio/Photographic Evidence [3]
Video Footage – Fanshawe College
Starting at about 11:01 p.m., on March 14, 2023, the Complainant was walking south on Reeve Street, and onto the Fanshawe College parking lot. Fifteen seconds later, a WPS marked SUV [now known to be occupied by WO #4 and WO #3] followed the Complainant into the lot. At about the centre of the lot, the Complainant watched the SUV approach and stop. WO #3 exited the passenger side and positioned himself at the front passenger corner of the SUV. WO #3 drew his CEW and pointed it at the Complainant, who began to walk towards the SUV, waving his arms. WO #3 walked further into the lot, as WO #4 exited the cruiser’s driver’s side. The Complainant took a position about three metres from the front middle of the cruiser. He appeared agitated and continued to wave his arms and jerk his body in an up and down direction.Starting at about 11:00 p.m., a second cruiser [now known to be occupied by WO #5] entered the parking lot off Reeve Street and stopped halfway up the driver’s side of WO #4’s cruiser. WO #5 exited her cruiser taking a position near the front, and drew her CEW. For the next two minutes, the Complainant walked about in a small area, irritated, waving his arms, turning in circles, and stomping his feet. WO #3, WO #4 and WO #5 maintained their distance by remaining by their police cruisers. The Complainant began to walk towards the Metcalf Street exit, and left the camera coverage. WO #3, WO #4, and WO #5 followed the Complainant, and went beyond camera range. Within six seconds, a grey cruiser came off Reeve Street, and stopped close to the building. The police officer got out and ran out of the camera range. More police cruisers arrived.
The Complainant’s apprehension was not captured in any of the video footage.
Video Footage – Oxford Community Health
On March 14, 2023, at 11:00 p.m., a police cruiser turned left onto Reeve Street from Peel Street. About 48 seconds later, the Complainant was captured on Reeve Street. He proceeded through the intersection and continued south on Reeve Street.Starting at about 11:01:49 p.m., the Complainant entered the Fanshawe College parking lot off Reeve Street. Eight seconds later, a marked cruiser [now known to be occupied by WO #4 and WO #3] followed the Complainant into the parking lot.
Starting at about 11:02:05 p.m., the cruiser stopped beside the Complainant as he continued walking. Three seconds later, WO #3 got out of the cruiser on the passenger side, as the Complainant stopped and turned towards the police cruiser with his arms out to his side, and parallel to the ground. Five seconds later, WO #4 opened his door as WO #3 pointed his CEW at the Complainant. The Complainant was animated as his arms moved and he paced back and forth. The police kept their distance.
Starting at about 11:02 p.m., a second WPS cruiser [now known to be occupied by WO #5] arrived and parked to the left and behind WO #4’s cruiser. She took a position in front of her cruiser and slightly behind WO #4. The Complainant continued to move about with his arms in the air, turning in circles.
Starting at about 11:03:42 p.m., a WPS SUV arrived off Reeve Street stopping at the Fanshaw College building. Another SUV cruiser [now known to be occupied by WO #1] arrived and drove to the south end of the parking lot.
A fifth WPS SUV cruiser [now known to be occupied by the SO] arrived in the parking lot and stopped to the right of WO #4’s cruiser. The SO left his cruiser and immediately ran towards the Complainant.
Starting at about 11:03:51 p.m., the Complainant began to run towards WO #1’s cruiser. The Complainant appeared to almost stop in front of the cruiser and walked forward. By that point, the SO had run up to the Complainant’s location.
The actual apprehension of the Complainant by the SO could not be seen since the camera view was blocked.
Starting at about 11:10 p.m., paramedics arrived.
Starting at about 11:21 p.m., the ambulance departed the scene.
WPS Communications Recordings
Starting at about 10:55 p.m., the WPS received a call from a security guard reporting that a homeless male had tried to assault him with a wooden stick, and was yelling and refusing to leave a property.Starting at about 11:04 p.m., it was noted that CEWs had been deployed and emergency medical services was en route to the scene.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the WPS between March 17, 2023, and June 8, 2023:- Arrest Report;
- Event Chronology;
- Policy – Emotionally Disturbed Persons or MHA - Amended July 2013;
- Policy – Use of Force;
- Notes – WO #3;
- Notes – WO #2;
- Notes – WO #4;
- Notes – WO #1;
- Notes – WO #5;
- Notes – SO;
- Communications recordings; and
- CEW data downloads.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources on March 17, 2023:- The Complainant’s medical records from WGH;
- Video footage from Fanshawe College; and
- Video footage from Oxford Community Health.
Incident Narrative
At about 11:00 p.m. of March 14, 2023, WPS officers were dispatched to the Woodstock Museum. A security guard had contacted police to report that a male – the Complainant – had thrown a stick at him after being told that he needed to leave the exterior grounds of the museum. The Complainant had been sleeping on a bench in the area.
WO #4 and WO #3 arrived on scene within minutes and located the Complainant. He was in the parking lot behind Fanshawe College at 45 Metcalf Street. From the inside of his cruiser, WO #4 attempted to speak with the Complainant. The Complainant reacted angrily at the officers’ presence. When the officers exited their vehicle and drew their CEWs, the Complainant challenged them to use their real firearms instead.
Additional officers arrived on scene, including WO #1. His attention drawn to the officer, the Complainant began to advance towards WO #1. WO #3 and WO #4 fired their CEWs at the Complainant. The weapons had no effect. WO #1 also discharged his CEW at the Complainant. The Complainant yelled that he had missed and continued his advance. Shortly thereafter, the SO, also on scene, ran up to the Complainant from behind and tackled him to the ground.
The Complainant was handcuffed without further incident and taken to hospital by paramedics. He was diagnosed with a fractured left orbital bone.
WO #4 and WO #3 arrived on scene within minutes and located the Complainant. He was in the parking lot behind Fanshawe College at 45 Metcalf Street. From the inside of his cruiser, WO #4 attempted to speak with the Complainant. The Complainant reacted angrily at the officers’ presence. When the officers exited their vehicle and drew their CEWs, the Complainant challenged them to use their real firearms instead.
Additional officers arrived on scene, including WO #1. His attention drawn to the officer, the Complainant began to advance towards WO #1. WO #3 and WO #4 fired their CEWs at the Complainant. The weapons had no effect. WO #1 also discharged his CEW at the Complainant. The Complainant yelled that he had missed and continued his advance. Shortly thereafter, the SO, also on scene, ran up to the Complainant from behind and tackled him to the ground.
The Complainant was handcuffed without further incident and taken to hospital by paramedics. He was diagnosed with a fractured left orbital bone.
Relevant Legislation
Section 34, Criminal Code - Defence of Person – Use or Threat of Force
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest in Woodstock on March 14, 2023. One of the arresting officers – the SO – was identified as the subject official in the ensuing SIU investigation of the incident. 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.
The material events in question are clear on the evidence collected by the SIU and may briefly be summarized. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.
Section 34 of the Criminal Code provides that conduct that would otherwise constitute an offence is legally justified if it was intended to deter a reasonably apprehended assault, actual or threatened, and was itself reasonable. The reasonableness of the conduct is to be assessed in light of all the relevant circumstances, including with respect to such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force.
The SO and the other officers who responded to the parking lot were lawfully placed and in the execution of their duty at the time of the events in question. The Complainant had reportedly assaulted a security guard moments earlier and the officers were within their rights in seeking to speak with him about the incident.
Though the SO did not interview with the SIU, as was his legal right, his notes and the circumstances that prevailed at the time make clear that he intervened to deter a reasonably apprehended assault against WO #1 at the hands of the Complainant. The Complainant was immediately hostile at the presence of the police and challenged them to shoot him with real bullets instead of their CEWs. When he advanced towards WO #1, the Complainant did so with purpose giving the appearance of wanting to provoke a physical confrontation with the officer.
I am also satisfied that the force used by the SO, namely, a takedown, was legally justified. The Complainant had withstood multiple CEW discharges and was continuing his advance on WO #1 when he was tackled from behind by the SO. In the circumstances, I am unable to fault the officer for physically engaging the Complainant when efforts to immobilize him from a distance had been tried and failed.
In the result, while it is unfortunate that the Complainant suffered a fractured orbital bone in the process of being tackled by the SO, there are no reasonable grounds to believe that the injury is attributable to unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: July 10, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The material events in question are clear on the evidence collected by the SIU and may briefly be summarized. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.
Section 34 of the Criminal Code provides that conduct that would otherwise constitute an offence is legally justified if it was intended to deter a reasonably apprehended assault, actual or threatened, and was itself reasonable. The reasonableness of the conduct is to be assessed in light of all the relevant circumstances, including with respect to such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force.
The SO and the other officers who responded to the parking lot were lawfully placed and in the execution of their duty at the time of the events in question. The Complainant had reportedly assaulted a security guard moments earlier and the officers were within their rights in seeking to speak with him about the incident.
Though the SO did not interview with the SIU, as was his legal right, his notes and the circumstances that prevailed at the time make clear that he intervened to deter a reasonably apprehended assault against WO #1 at the hands of the Complainant. The Complainant was immediately hostile at the presence of the police and challenged them to shoot him with real bullets instead of their CEWs. When he advanced towards WO #1, the Complainant did so with purpose giving the appearance of wanting to provoke a physical confrontation with the officer.
I am also satisfied that the force used by the SO, namely, a takedown, was legally justified. The Complainant had withstood multiple CEW discharges and was continuing his advance on WO #1 when he was tackled from behind by the SO. In the circumstances, I am unable to fault the officer for physically engaging the Complainant when efforts to immobilize him from a distance had been tried and failed.
In the result, while it is unfortunate that the Complainant suffered a fractured orbital bone in the process of being tackled by the SO, there are no reasonable grounds to believe that the injury is attributable to unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: July 10, 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 times are derived from the internal clocks of the weapons, and are not necessarily synchronous between weapons and with actual time. [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]
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.