SIU Director’s Report - Case # 23-PCI-093
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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 23-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 23-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On March 21, 2023, at 3:18 a.m., the OPP reported a possible injury to the Complainant. According to the OPP, on March 20, 2023, at 10:42 p.m., Brant County Detachment officers responded to a call for service at the home of the Complainant. The Subject Official (SO) and Witness Official (WO) #1 found the Complainant intoxicated in the garage. The Complainant had a cut to the back of his head from a fall. While the officers were speaking with him, he became threatening and was arrested. A struggle ensued and one of the officers punched him in the face with a closed fist. Paramedics were called and transported him to Norfolk General Hospital (NGH) in Simcoe. At the hospital, the Complainant was suspected of having a fractured orbital bone and possible brain bleed. Further testing was to occur later in the day to confirm the injury.
The Team
Date and time team dispatched: 03/22/2023 at 6:58 a.m.Date and time SIU arrived on scene: 03/22/2023 at 9:00 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
23-year-old male; declined an interview; medical records obtained and reviewedSubject Official
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on April 12, 2023.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on March 30, 2023.
Evidence
The Scene
The scene was the interior of the garage/shed of the Complainant’s home in Brant County.Video/Audio/Photographic Evidence [2]
In-car Camera (ICCS) Footage
The OPP advised that the OPP vehicles involved in the events under investigation were equipped with ICCS, but that they did not capture the area of interest given their positioning.
Communications Recordings and Computer-assisted Dispatch (CAD) Report
The OPP dispatch sent the SO and WO #1 to a ‘domestic disturbance’ call for service at the Complainant’s residence in Brant County. Dispatch advised there had been a heated argument between Civilian #1 and the Complainant. Dispatch relayed information that the Complainant was positive on the Canadian Firearms Registry Online. WO #1 indicated she was on scene with the SO and speaking to Civilian #1, who had exited the house. Civilian #1 indicated that the Complainant was intoxicated and breaking furniture, and had cut to the back of his neck or head. OPP dispatch contacted Emergency Medical Services (EMS) to attend the scene.
The SO advised that he had located the Complainant and they were speaking with him. He noted that the cut on his neck did not appear life-threatening, but the Complainant was argumentative. WO #1 asked for other OPP units to assist. The SO then indicated the Complainant was in custody and everything was fine.
WO #3 and WO #2 arrived on scene.
It was noted that the Complainant was being assisted by EMS.
WO #1 followed the ambulance to the Norfolk General Hospital.
911 Call
The call began at 10:37 p.m., March 20, 2023. The caller spoke with a 911 operator asking that police be sent to an address in Brant County for a domestic dispute. The caller advised that he was on the phone with his friend, Civilian #1, who was having a domestic argument with her boyfriend, the Complainant. Yelling could be heard in the background. The caller was en route to the house to help. He was not aware of any guns, dogs, or children at the residence. The caller said that he was not currently talking to Civilian #1, but that he was still on the line with her and could hear yelling and arguing in the background. The 911 operator advised the caller that OPP officers were on the way and to remain in his vehicle until they arrived if he got there first.Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between March 24, 2023, and April 12, 2023:- CAD Report;
- Civilian Witness List and Contact Information;
- ICCS footage;
- Communications recordings;
- Summary of Charges;
- Crown Brief Synopsis;
- Involved Officer Report;
- Involved Persons Report;
- Officer Notes - WO #1;
- Officer Notes - WO #2;
- Officer Notes – WO #3; and
- Witness Victim List.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources:- The Complainant’s medical records from the NGH, received April 5, 2023.
Incident Narrative
In the evening of March 20, 2023, the SO and WO #1 were dispatched to the Complainant’s residence in Brant following a 911 call to police. The caller reported that his friend – Civilian #1 – had contacted him indicating she was involved in a heated argument with her boyfriend – the Complainant.
Outside at the residence, the officers spoke with the 911 caller, who had also driven to the scene, and then to Civilian #1, who exited the house a short time after their arrival. She explained that the Complainant was drunk and breaking furniture. He also had a cut to the back of his head or neck. Arrangements were made to have EMS attend the residence.
The SO and WO #1 approached the residence and located the Complainant inside a garage. From outside the garage, the officers indicated they were there to check on his well-being and asked him to open the door with his hands up. The Complainant did so, and the officers entered the garage.
The Complainant was initially calm but, when told the officers wanted to ensure he was okay and that he was not harming himself, he turned hostile. He first picked up a knife and threatened to cut his neck. Told the put the knife down, the Complainant did so, only to pick up a wrench and threaten the SO with it. The Complainant came at the SO swinging his fists. The SO reacted by punching the Complainant in the face several times. The strikes knocked the Complainant to the ground, after which he was handcuffed.
Paramedics arrived at the scene, examined the Complainant, and transported him to hospital. He was diagnosed with a broken nose and a possibly fractured left orbital wall.
Outside at the residence, the officers spoke with the 911 caller, who had also driven to the scene, and then to Civilian #1, who exited the house a short time after their arrival. She explained that the Complainant was drunk and breaking furniture. He also had a cut to the back of his head or neck. Arrangements were made to have EMS attend the residence.
The SO and WO #1 approached the residence and located the Complainant inside a garage. From outside the garage, the officers indicated they were there to check on his well-being and asked him to open the door with his hands up. The Complainant did so, and the officers entered the garage.
The Complainant was initially calm but, when told the officers wanted to ensure he was okay and that he was not harming himself, he turned hostile. He first picked up a knife and threatened to cut his neck. Told the put the knife down, the Complainant did so, only to pick up a wrench and threaten the SO with it. The Complainant came at the SO swinging his fists. The SO reacted by punching the Complainant in the face several times. The strikes knocked the Complainant to the ground, after which he was handcuffed.
Paramedics arrived at the scene, examined the Complainant, and transported him to hospital. He was diagnosed with a broken nose and a possibly fractured left orbital wall.
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 a physical altercation with an OPP officer in Brant on March 20, 2023. In the ensuing SIU investigation of the incident, the officer – 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 injury.
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 was lawfully placed and in the exercise of his duties when, apprised of a cut to the Complainant’s head or neck, he entered the garage to check on his condition.
When the Complainant then attempted to strike the SO, the officer was entitled to defend himself. He did so with a series of punches to the head, which seems a commensurate and proportionate use of force given the nature of the threat he was confronting. No further force was used by the officer once the Complainant was felled.
In the result, while I accept that the Complainant’s facial injuries were the result of the punches struck by the SO, there are no reasonable grounds to believe they are attributable to any 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 11, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 was lawfully placed and in the exercise of his duties when, apprised of a cut to the Complainant’s head or neck, he entered the garage to check on his condition.
When the Complainant then attempted to strike the SO, the officer was entitled to defend himself. He did so with a series of punches to the head, which seems a commensurate and proportionate use of force given the nature of the threat he was confronting. No further force was used by the officer once the Complainant was felled.
In the result, while I accept that the Complainant’s facial injuries were the result of the punches struck by the SO, there are no reasonable grounds to believe they are attributable to any 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 11, 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.