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 23-year-old man (the “Complainant”).

Notification of the SIU [1]

On June 4, 2023, at 9:17 p.m., the London Police Service (LPS) contacted the SIU with the following information.

On June 4, 2023, at approximately 4:00 a.m., the Complainant was in a parking lot at an address in the area of Horton Street East and Ridout Street with a crowbar damaging property. He had an altercation with another man prior to the property damage. That man alleged the Complainant had sexually assaulted his child. At 4:23 a.m., LPS attended the parking lot. A police officer directed him to stop what he was doing; he failed to follow the police officer’s directions. The police officer deployed a conducted energy weapon (CEW) in probe mode. The Complainant fell hitting his head on the ground. There was no blood on the ground, and the Complainant did not appear to have any serious injuries. Emergency Medical Services (EMS) attended to examine the Complainant. He was taken to the Victoria Hospital for further assessment. Initially, while still in the custody of LPS at the hospital, no serious injury was reported. Later, at Victoria Hospital, the Complainant felt dizzy but remained conscious. Further testing showed he had a brain bleed, and he was admitted to the Critical Care Unit.

The Scene

The events in question transpired outside a residence in the area of Horton Street East and Ridout Street, London.

SIU investigators attended the scene on June 5, 2023. The scene was not examined by SIU forensic investigators. No relevant physical evidence would be expected.

Video/Audio/Photographic Evidence [2]

911 Calls

LPS provided the SIU with two 911 audio recordings relating to the call involving the Complainant on June 4, 2023.

At 4:04 a.m., a 911 call was made to the LPS by CW #2 requesting assistance. CW #2 told the operator that she had received a message from her child, who told her that the Complainant was touching her. CW #2 noted that she was on her way to the address.

At 4:19 a.m., a second call to 911 was made by CW #2. She advised the 911 operator that she and her child were in their vehicle and the Complainant was smashing it. She was asked by the operator if she needed an ambulance for her child. CW #2 said, “No, but [her child] needs a fucking police officer.” She advised that the Complainant had a weapon, a crowbar, and was smashing the passenger side of the vehicle and the lights. CW #2 asked the operator to hurry up, and was told that three police cruisers were on their way.

The evidence collected by the SIU, including an interview with the Complainant and civilian witnesses to the incident in question, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes and a written statement.

In the early morning hours of June 4, 2023, police officers were dispatched to a residence in the area of Horton Street East and Ridout Street in relation to a domestic disturbance. A female – CW #2 – had contacted police to report that the Complainant had just molested her child and was now damaging her vehicle.

The SO was the first officer on scene. He confronted the Complainant, who was in possession of a crowbar, and ordered him to drop the weapon and get on the ground. The Complainant walked up to the rear of CW #2’s truck, parked in front of the address, and used the crowbar to smash the rear of the vehicle. CW #2 and her child were in the truck at the time. The officer again directed the Complainant to drop the crowbar and, this time, he did, tossing it away. Shortly thereafter, CW #1, the father of the child, exited the building at the address and confronted the Complainant. The two went chest-to-chest and the Complainant punched CW #1 in the head. The SO had drawn his CEW by this time, and deployed it against the Complainant. The time was 4:23 a.m.

The probes of the weapon struck the back of the Complainant. He stiffened and fell to the ground, striking his head in the process. The SO, now joined by WO #4, handcuffed the Complainant to the rear.

The Complainant was taken from the scene to hospital in ambulance where he was diagnosed and treated for a brain bleed.

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.

The Complainant was seriously injured in the course of his arrest in London on June 4, 2023. The SIU initiated an investigation of the incident and identified the SO 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.

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 engaged in the lawful execution of his duty when he attended at the scene and confronted the Complainant. The officer had information that the Complainant had just sexually assaulted a child and was damaging a vehicle, the latter confirmed personally when he observed the Complainant strike the truck with a crowbar. In the circumstances, the SO was duty bound to do what he reasonably could to take the Complainant into custody.

I am further satisfied that the SO resorted to his CEW to deter the Complainant from a reasonably apprehended assault on CW #1. Having just punched CW #1, the officer was within his rights in taking steps to prevent the Complainant from continuing his attack.

With respect to the force used by the SO, a single CEW deployment, the evidence establishes that it was reasonable in the circumstances. The Complainant was visibly angry and violent. He had used a crowbar to strike a vehicle repeatedly and was now engaged in a physical confrontation with CW #1. The SO might have chosen to physically intervene by inserting himself in the brewing mele, but that would have entailed coming between two combatants. Instead, it appears to me the officer made a reasonable choice when he decided to neutralize the apparent aggressor, the Complainant, from a distance with his CEW. The discharge had the desired effect - the Complainant was immediately incapacitated and the hostilities ended.

In the result, while it is regrettable that the Complainant suffered a serious injury with the deployment of the CEW, there are no reasonable grounds to conclude that the SO comported himself other than within the limits of the criminal law throughout the event. As such, there is no basis for proceeding with charges in this case. The file is closed.


Date: September 29, 2023


Electronically approved by

Joseph Martino
Director
Special Investigations Unit