SIU Director’s Report - Case # 23-OCI-192
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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 serious injuries sustained by a 37-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 serious injuries sustained by a 37-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On May 23, 2023, at 10:15 a.m., the Kawartha Lakes Police Service (KLPS) contacted the SIU with the following information.On May 23, 2023, at 7:54 a.m., KLPS responded to a ‘threats call’ at the residence of the Complainant near Colborne Street East and Verulam Road North, Lindsay. The police had been called after the Complainant threatened to burn down the house. The Complainant complained of chest pain following his arrest. He was taken to Ross Memorial Hospital (RMH) and diagnosed with fractured ribs.
The Team
Date and time team dispatched: 05/23/2023 at 12:02 p.m.Date and time SIU arrived on scene: 05/23/2023 at 3:45 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
37-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on May 24, 2023.
Civilian Witnesses
CW Interviewed The civilian witness was interview on May 26, 2023.
Subject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right. The subject official was interviewed on June 7, 2023.
Witness Officials
WO Interviewed The witness official was interviewed on May 25, 2023.
Evidence
The Scene
The events in question transpired in and around a residence located near Colborne Street East and Verulam Road North in Kawartha Lakes.Video/Audio/Photographic Evidence [2]
Communications Recordings and Record of Computer-assisted Dispatch (CAD)
A 911 call was received by KLPS from a civilian who reported that the Complainant was threatening to kill them and burn down the house.Starting at about 7:29:13 a.m., KLPS Communications dispatched Officer #1 and the SO to the scene.
Starting at about 7:39:46 a.m., the WO radioed that he would attend as well.
Starting at about 7:45:46 a.m., Officer #1 and the SO arrived at the residence.
Starting at about 7:49:42 a.m., the WO arrived on scene.
Starting at about 7:56:43 a.m., the SO indicated that he had the Complainant in custody.
Starting at about 8:11:16 a.m., the SO transported the Complainant to the KLPS station.
Starting at about 8:14:37 a.m., the Complainant arrived at KLPS station.
Starting at about 8:33:49 a.m., Officer #2 went over the radio and stated that the Complainant was complaining of broken ribs and wanted to go to the hospital. Officer #2 tasked the WO and Officer #3 with transporting him to RMH.
Starting at about 8:56:46 a.m., the Complainant arrived at RMH.
Starting at about 10:08:30 a.m., the Complainant was returned to KLPS station by police.
Starting at about 10:56:43 a.m., the Complainant was released and transported to RMH at his request.
Video Footage – The Complainant’s Residence
Starting at about 7:46:18 a.m., the SO and Officer #1 were captured arriving at the residence.Starting at about 7:46:33 a.m., both officers were let into the residence by a female.
Starting at about 7:49:52 a.m., the WO arrived and entered the residence.
Starting at about 7:54:34 a.m., the SO and the WO exited with the Complainant. He was handcuffed to the back, and was heard stating, “You don’t have to assault me, sir.”
Video Footage – Nearby Residence
Starting at about 7:54:35 a.m., two marked police vehicles were captured parked out front of the Complainant’s residence.Starting at about 7:54:38 a.m., the SO and the WO were observed escorting the Complainant across the lawn, handcuffed to the back, to a police vehicle. The passenger side rear door was opened and both police officers leaned up against the Complainant as they attempted to get him into the rear passenger seat.
Starting at about 7:10:21 a.m., all three police vehicles left the area.
Materials Obtained from Police Service
The SIU obtained the following records from the KLPS between May 25 and 26, 2023:• Record of CAD;
• Communications recordings;
• Notes - the WO;
• Policy – Arrest, Security and Control of Prisoners;
• Policy - Search of Persons;
• Policy - Prisoner Transportation; and
• Policy - Use of Force.
Materials Obtained from Other Sources
The SIU obtained the following records from non-police sources:• The Complainant’s medical records from RMH, received May 29, 2023;
• Video footage from the Complainant’s residence, received May 26, 2023; and
• Video footage from a nearby residence, received May 30, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, and video footage that captured the incident in parts, gives rise to the following scenario.
In the morning of May 23, 2023, the SO was dispatched to a residence near Colborne Street East and Verulam Road North, Kawartha Lakes. An occupant of the house had called police to report that the Complainant had threatened to burn down the house. They were concerned for their safety and wanted the Complainant removed from the home.
The SO arrived in the company of Officer #1. The WO arrived shortly thereafter. The SO spoke with the Complainant inside the home and eventually decided to arrest him for having uttered threats.
As the SO and the WO were escorting the Complainant out of the home, they found themselves in a struggle on the living room floor with the Complainant. The Complainant was eventually handcuffed behind his back, lifted off the floor and taken outside where he was lodged in the backseat of a police cruiser.
The Complainant was taken to the police station where he complained of pain and was transported to hospital. He was diagnosed with multiple left-sided rib fractures.
In the morning of May 23, 2023, the SO was dispatched to a residence near Colborne Street East and Verulam Road North, Kawartha Lakes. An occupant of the house had called police to report that the Complainant had threatened to burn down the house. They were concerned for their safety and wanted the Complainant removed from the home.
The SO arrived in the company of Officer #1. The WO arrived shortly thereafter. The SO spoke with the Complainant inside the home and eventually decided to arrest him for having uttered threats.
As the SO and the WO were escorting the Complainant out of the home, they found themselves in a struggle on the living room floor with the Complainant. The Complainant was eventually handcuffed behind his back, lifted off the floor and taken outside where he was lodged in the backseat of a police cruiser.
The Complainant was taken to the police station where he complained of pain and was transported to hospital. He was diagnosed with multiple left-sided rib fractures.
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.
Section 264.1, Criminal Code -- Uttering Threats
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;(b) to burn, destroy or damage real or personal property; or(c) to kill, poison or injure an animal or bird that is the property of any person.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by KLPS officers on May 23, 2023. In the ensuing SIU investigation of the incident, 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 injuries.
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.
The SO was within his rights when he decided to take the Complainant into custody. Given what he knew of the 911 call, confirmed directly by the caller when he arrived at the scene, I am satisfied the officer had grounds to arrest the Complainant for ‘uttering threats’ contrary to section 264.1 of the Criminal Code.
With respect to the force used by police against the Complainant, I accept the accounts of the SO and the WO. According to the body of evidence proffered by the officers, the Complainant resisted his extraction from the house, eventually falling to the floor in the living room. Once down, he refused to release his arms from underneath his torso to be handcuffed, and kicked out with his legs. The WO controlled the Complainant’s legs as the SO wrestled control of his right arm. The SO then delivered a knee strike to the Complainant’s left side, which assisted in freeing the left arm to be handcuffed. No further force was used against the Complainant.
The knee strike constituted legally justified force. The SO had wrestled the Complainant’s right arm free, and had tried to do the same with the left arm before resorting to a knee strike. That, in my view, was a proportionate escalation of force that was reasonable in the circumstances.
It is also alleged that the Complainant was repeatedly punched to the left rib area by the SO while he stood handcuffed by a police cruiser outside his home. The video footage, however, does not capture any such force. Nor was force of this nature observed by a civilian witness to the events in question.
In the result, while it may well be that one or more of the Complainant’s rib fractures were the result of the SO’s knee strike, [3] I am not satisfied on reasonable grounds that any part of the injuries are attributable to unlawful behaviour 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: September 20, 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.
The SO was within his rights when he decided to take the Complainant into custody. Given what he knew of the 911 call, confirmed directly by the caller when he arrived at the scene, I am satisfied the officer had grounds to arrest the Complainant for ‘uttering threats’ contrary to section 264.1 of the Criminal Code.
With respect to the force used by police against the Complainant, I accept the accounts of the SO and the WO. According to the body of evidence proffered by the officers, the Complainant resisted his extraction from the house, eventually falling to the floor in the living room. Once down, he refused to release his arms from underneath his torso to be handcuffed, and kicked out with his legs. The WO controlled the Complainant’s legs as the SO wrestled control of his right arm. The SO then delivered a knee strike to the Complainant’s left side, which assisted in freeing the left arm to be handcuffed. No further force was used against the Complainant.
The knee strike constituted legally justified force. The SO had wrestled the Complainant’s right arm free, and had tried to do the same with the left arm before resorting to a knee strike. That, in my view, was a proportionate escalation of force that was reasonable in the circumstances.
It is also alleged that the Complainant was repeatedly punched to the left rib area by the SO while he stood handcuffed by a police cruiser outside his home. The video footage, however, does not capture any such force. Nor was force of this nature observed by a civilian witness to the events in question.
In the result, while it may well be that one or more of the Complainant’s rib fractures were the result of the SO’s knee strike, [3] I am not satisfied on reasonable grounds that any part of the injuries are attributable to unlawful behaviour 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: September 20, 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]
- 3) The evidence gives rise to the possibility that one or more of the Complainant’s rib fractures were incurred in his fall to the floor inside the living room. [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.