Director's Report Details

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.

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: 

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 26-year-old man (the “Complainant”).

Notification of the SIU [1]

On April 29, 2023, the Durham Regional Police Service (DRPS) contacted the SIU with the following information.

Earlier in the day, DRPS officers responded to an unwanted party at a residence in the area of Rossland Road East and Cricklewood Drive, Oshawa. Officers located the Complainant hiding inside a box spring located in a bedroom. He was arrested and transported to holding cells. The Complainant later complained of a sore ankle caused by officers stomping on it while he was being arrested. The Complainant was taken to Lakeridge Health Oshawa (LHO) where it was confirmed that he had sustained a broken right ankle. The arresting officers were the Subject Official (SO) and Witness Official (WO) #1.

The Scene

The events in question transpired in the bedroom of a residence in the area of Rossland Road East and Cricklewood Drive, Oshawa.

The scene was not examined by SIU forensic investigators. No relevant physical evidence would be expected at the scene.

Video/Audio/Photographic Evidence [2]

DRPS Custody Video

On May 2 and May 3, 2023, the SIU received several DRPS booking and custody video files with respect to the Complainant and his period in custody on April 29, 2023.

Starting at about 2:46 a.m., a DRPS police vehicle was captured entering sally port #1. Two male uniformed officers [now known to be the SO and WO #1] exited the vehicle.

Starting at about 2:50 a.m., a male [now known to be the Complainant] exited the rear of the police vehicle and began hopping on his left foot, placing no weight on his right foot.
Starting at about 2:51 a.m., the Complainant was taken into the booking area and paraded before WO #4. During the booking process, the Complainant provided his name and said he was not clear on the reason for his arrest. He also provided his lawyer’s name and the name of a potential surety.

The Complainant told WO #4 that he had consumed four beers and had not taken any drugs in the period before his arrest. WO #4 inquired of the Complainant if he had any injuries or complaints, and he replied in the negative.

Starting at about 2:59 a.m., the Complainant was led away and lodged in a cell. During the walk from the booking area, through the corridors to the cell, he continued hopping on his left foot and appeared to be unable to put any weight on his right foot.

Starting at about 8:42 a.m., SEW #1 and SEW #2 were standing outside a cell and appeared to be talking to the Complainant.

Starting at about 8:44 a.m., the Complainant hopped out of his cell, stopped, and appeared to have difficulty moving any further.

Starting at about 8:46 a.m., SEW #2 returned to the cell area with a wheelchair and assisted the Complainant in getting into the wheelchair.

Starting at about 8:47 a.m., the Complainant was taken, in the wheelchair, to the booking area and was seen talking to a sergeant.

Starting at about 8:49 a.m., the Complainant was placed into a telephone room.

Starting at about 8:59 a.m., the Complainant exited the telephone room, and was returned to the wheelchair and escorted to a photography room.

Starting at about 9:04 a.m., the Complainant exited the photography room and was taken back to a cell via the wheelchair.

Starting at about 9:24 a.m., the Complainant was assisted back into the wheelchair in his cell and taken to waiting paramedics in the booking area, where he was assisted by the paramedics onto a gurney.

Starting at about 9:25 a.m., an overhead camera view of the booking area clearly depicted the right foot of the Complainant to be visibly swollen.

Starting at about 9:30 a.m., the Complainant was taken by paramedics from the booking area through the sally port to an ambulance in the parking lot.

The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.

The caller About 2:30 a.m. of April 29, 2023, the SO arrived at a residence in the area of Rossland Road East and Cricklewood Drive, Oshawa. He was joined there by WO #1 and WO #3. The officers were responding to a 911 call. The caller had called to report that the Complainant was in their apartment refusing to leave, and they wanted him out. met the officers in the parking lot of the complex and confirmed the information provided in the 911 call.
The SO and WO #1 made their way to the unit as WO #3 positioned himself below the balcony of the unit in the event the Complainant attempted to escape via that route. By this time, the officers were also aware there was a warrant in effect authorizing the Complainant’s arrest and they intended to take him into custody.

The Complainant, aware of the police presence outside the unit, decided to hide inside a box spring in a bedroom. He was face down inside the box spring when WO #1 removed the mattress over top of him and found him lying face down. WO #1 placed a knee on the Complainant’s back and brought his arms behind him, after which he was handcuffed by the SO.

The Complainant was subsequently escorted from the unit to a waiting cruiser outside, occasionally limping as he made his way. He was transported to the police station and lodged in a cell.

Several hours later, a special constable noticed that the Complainant’s right foot had swollen. Arrangements were made to transport the Complainant to hospital.

At hospital, the Complainant was diagnosed with a fractured right ankle. He was fitted with a cast and returned to police custody.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

The Complainant was arrested in Oshawa on April 29, 2023, by DRPS officers and subsequently diagnosed with a fractured right ankle. In the ensuing SIU investigation of the incident, one of the arresting 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 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.

There was a warrant in effect at the time authorizing the Complainant’s arrest because of a surety withdrawal. He was also unlawfully inside a residence in contravention of a condition of a judicial release order. In the circumstances, the SO and WO #1 were within their rights in seeking to take him into custody.

It is alleged that the Complainant was manhandled inside the unit by the officers. Specifically, after he was handcuffed and lifted to his feet, the officers are said to have pushed the Complainant into a doorframe, resulting in some chipped teeth, after which he fell and had his foot stomped by another officer, resulting in his fractured right ankle.

The SO and WO #1, on the other hand, say that the arrest was largely uneventful. Aside from having to lift the Complainant onto his feet, no force was brought to bear during the arrest. They deny that the Complainant was thrown against a wall or that either of them stomped on his foot.

On the aforementioned-record, it would be unwise and unsafe to rest charges on the strength of the incriminating evidence. There are aspects of this account that call its credibility into question. The account says, for example, that the Complainant asked the officers for assistance while being escorted to the cruiser because of his foot injury but was not provided any. However, this is belied by evidence which indicates that the officers were providing him support. As for the injury, which might have provided some corroboration of the allegation, I am unable to discount the possibility that it happened other than in the course of his interaction with the officers. The officers say that they asked the Complainant why he was limping following his arrest, and were told by the Complainant that he had previously rolled his ankle. Moreover, when asked during his booking at the police station whether he had suffered any injuries, the Complainant replied in the negative. In light of these and other considerations, I am unable to reasonably conclude that the allegation is any closer to the truth than that provided by the officers.

In the result, as I am not satisfied on reasonable grounds that either of the SO and WO #1 comported themselves other than lawfully throughout their engagement with the Complainant, there is no basis for proceeding with criminal charges. The file is closed.


Date: August 25, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit