SIU Director’s Report - Case # 23-PCI-266
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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 47-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 47-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On July 12, 2023, at 4:33 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant. The OPP explained that on July 11, 2023, at 2:15 p.m., two detectives attended a residence in the area of Verner, West Nipissing, for the Complainant who was wanted on warrants. The Complainant came out of the residence pushing someone in a wheelchair. The police officers approached him and told him he was under arrest. The Complainant asked if he could return the person to his home and the police officers agreed. Once at the threshold of the residence, the Complainant attempted to slam the door shut and not allow the officers in. The police officers forced their way in and called for backup. There was a struggle between the Complainant and the officers. With the arrival of three more police officers, he was arrested and taken to the detachment. On July 12, 2023, at a bail hearing, the Complainant complained of sore ribs. He was transported to the West Nipissing Hospital (WNH) and diagnosed with a single fractured rib.
The Team
Date and time team dispatched: 2023/07/13 at 10:00 a.m.Date and time SIU arrived on scene: 2023/07/13 at 11:00 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
47-year-old male; interviewedThe Complainant was interviewed on July 14, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
The witness officials were interviewed on September 7, 2023.
Evidence
The Scene
The events in question transpired in the ground-level living room and front door area inside a residence located in the area of Verner, West Nipissing.Video/Audio/Photographic Evidence [2]
In-car Camera System (ICCS) Footage
On July 20, 2023, the OPP provided the SIU with ICCS footage in connection with the incident under investigation. The footage was 21 minutes and 21 seconds in length, and of good quality. It consisted of both audio and video, and captured the exterior of the vehicle and the interior rear seat.The recording commenced at 2:10:11 p.m. a police vehicle depicted as it travelled with emergency lights and sirens activated and arrived outside the residence. Indiscernible yelling was heard outside of the police vehicle.
Starting at about 2:14:48 p.m., a male voice was heard to say, “One in custody, everything is 10-4.” A police officer was heard off-camera advising the Complainant he was under arrest.
Starting at about 2:17:56 p.m., the Complainant was seen in the rear seat of the vehicle with his hands handcuffed behind his back.
At 2:19:36 p.m., transport to the detachment commenced. During the transport, the Complainant said police had broken into his house when asked to leave. They choked him, pressed his face down on the ground, and hit him excessively in his “privates”. He said he needed to go to hospital because his genitals hurt, and he did not think he would be able to pee.
Starting at about 2:29:41 p.m. the Complainant said he was having chest pains and asked to go to hospital. During the remainder of the transport, the Complainant continued to ask the two police officers to take him to the hospital for chest pains and genital pain. A police officer told him they would take him to the detachment where he could talk to a lawyer and next steps would be decided.
At 2:31:25 p.m., the police vehicle stopped, and the recording ended.
Custody Video Footage
On July 20, 2023, the OPP provided the SIU with footage of the sally port area of the West Nipissing Detachment from July 11, 2023. The recording was video only with no sound, of good quality, and 11 minutes in duration. The recording commenced at 2:28:02 p.m. inside of the sally port.
Starting at about 2:31:20 p.m., a police vehicle travelled into the sally port. The Complainant was removed from the rear seat without incident and escorted into the building.
The recording ended at 2:39 p.m.
Materials Obtained from Police Service
Between July 20, 2023, and August 17, 2023, the SIU obtained the following records from the OPP: - Arrest Warrant;
- Custody video;
- ICCS footage;
- Holding Cell Custody Report;
- Guard Checklist;
- Security Checks;
- Notes – WO #5;
- Notes – WO #1;
- Notes – WO #2;
- Notes – WO #4; and
- Notes – WO #3.
Incident Narrative
The evidence gathered by the SIU, including interviews with the Complainant and each of the officers who participated in his arrest, gives rise to the following scenario.
In the afternoon of July 11, 2023, WO #2 and WO #1 travelled to the house at West Nipissing, with the intention of arresting the Complainant, for whom there were warrants of arrest. The officers encountered the Complainant outside his residence. He was pushing a person in a wheelchair. Told that he was under arrest, the Complainant asked if he could return the person home before accompanying the officers to the detachment. The officers agreed.
Once inside the threshold of the front door of his home, the Complainant attempted to close the door shut on the officers. The officers pushed back and entered the home. The Complainant was told he was under arrest and to surrender himself to be handcuffed. When he refused to do so, WO #2 and WO #1 took hold of him. The parties wrestled with each other in the living room, eventually ending up on the floor. The Complainant was able to lift himself to his feet, prompting the officers to radio for assistance.
WO #4 heard the call for help and made his way to the residence. He entered and, with WO #2’s assistance, took hold of the Complainant and attempted to maneuver his arms behind his back. The Complainant resisted and the parties ended up against a wall, at which point WO #2 delivered two knee strikes to the Complainant’s buttocks. Still, the Complainant’s resistance was unabated.
WO #3 was next on scene, followed shortly by WO #5. By this time, the struggle had moved towards the front door. Using a leg sweep, WO #5 was able to bring the Complainant to the floor. The struggle continued for a period with the Complainant refusing to release his arms to be handcuffed. WO #3 applied pressure to the Complainant’s right shoulder blade. WO #5 did the same to the Complainant’s jaw and ear. When that failed to work, WO #5 delivered a number of hand strikes to the side of the Complainant’s jaw, again with no success. Shortly thereafter, as the Complainant tired, the officers were able to wrench control of his arms and handcuff them behind the back.
Following the Complainant’s bail hearing the following day, he was transported to hospital and diagnosed with a fractured left rib.
In the afternoon of July 11, 2023, WO #2 and WO #1 travelled to the house at West Nipissing, with the intention of arresting the Complainant, for whom there were warrants of arrest. The officers encountered the Complainant outside his residence. He was pushing a person in a wheelchair. Told that he was under arrest, the Complainant asked if he could return the person home before accompanying the officers to the detachment. The officers agreed.
Once inside the threshold of the front door of his home, the Complainant attempted to close the door shut on the officers. The officers pushed back and entered the home. The Complainant was told he was under arrest and to surrender himself to be handcuffed. When he refused to do so, WO #2 and WO #1 took hold of him. The parties wrestled with each other in the living room, eventually ending up on the floor. The Complainant was able to lift himself to his feet, prompting the officers to radio for assistance.
WO #4 heard the call for help and made his way to the residence. He entered and, with WO #2’s assistance, took hold of the Complainant and attempted to maneuver his arms behind his back. The Complainant resisted and the parties ended up against a wall, at which point WO #2 delivered two knee strikes to the Complainant’s buttocks. Still, the Complainant’s resistance was unabated.
WO #3 was next on scene, followed shortly by WO #5. By this time, the struggle had moved towards the front door. Using a leg sweep, WO #5 was able to bring the Complainant to the floor. The struggle continued for a period with the Complainant refusing to release his arms to be handcuffed. WO #3 applied pressure to the Complainant’s right shoulder blade. WO #5 did the same to the Complainant’s jaw and ear. When that failed to work, WO #5 delivered a number of hand strikes to the side of the Complainant’s jaw, again with no success. Shortly thereafter, as the Complainant tired, the officers were able to wrench control of his arms and handcuff them behind the back.
Following the Complainant’s bail hearing the following day, he was transported to hospital and diagnosed with a fractured left rib.
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.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest in West Nipissing on July 11, 2023. The SIU was notified of the incident and initiated an investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any officer involved in the Complainant’s arrest committed a criminal offence.
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 Complainant was subject to an arrest warrant for having failed to comply with a release order. Accordingly, the officers were within their rights in seeking to take him into custody. The fact that the arrest occurred inside a dwelling-house is of no consequence in the instant case. The Complainant had effectively been arrested outside his home and he had no claim to protection when he subsequently attempted to flee into his home to avoid apprehension: see R v Feeney, [1997] 2 SCR 13.
With respect to the force brought to bear by the officers in aid of the Complainant’s arrest, I am satisfied it was legally justified. It was only after the Complainant had fled indoors and refused to submit himself peacefully to arrest that the officers took hold of him. The parties were evenly matched in the wrestling contest that ensued. The Complainant was described as a powerful man and it took the combined power of five officers to finally bring him to the floor. The use of pressure point techniques and the several strikes delivered by WO #2 and WO #5 would not appear excessive in the context of this type of struggle. Once handcuffed, no further force was used on the Complainant.
It is alleged the Complainant was subjected to excessive force during the altercation with police, including a kick to the genitals that he characterized as a sexual assault. This account, however, is insufficiently cogent to warrant being put to the test by a court. It suggests, for example, that the Complainant was unaware that WO #2 and WO #1 were police officers as they forced entry into his home. I find that hard to square with the fact that it concedes that the two officers had allowed the Complainant to bring the person home before arresting him. The allegation is also at odds with the officers’ accounts, none of which describe the choking and kicking incidents he mentions.
In the result, while I accept that the Complainant’s injury was incurred in the course of the struggle that marked his arrest, I am not satisfied it was attributable to any unlawful conduct on the part of the arresting officers. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: November 8, 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 Complainant was subject to an arrest warrant for having failed to comply with a release order. Accordingly, the officers were within their rights in seeking to take him into custody. The fact that the arrest occurred inside a dwelling-house is of no consequence in the instant case. The Complainant had effectively been arrested outside his home and he had no claim to protection when he subsequently attempted to flee into his home to avoid apprehension: see R v Feeney, [1997] 2 SCR 13.
With respect to the force brought to bear by the officers in aid of the Complainant’s arrest, I am satisfied it was legally justified. It was only after the Complainant had fled indoors and refused to submit himself peacefully to arrest that the officers took hold of him. The parties were evenly matched in the wrestling contest that ensued. The Complainant was described as a powerful man and it took the combined power of five officers to finally bring him to the floor. The use of pressure point techniques and the several strikes delivered by WO #2 and WO #5 would not appear excessive in the context of this type of struggle. Once handcuffed, no further force was used on the Complainant.
It is alleged the Complainant was subjected to excessive force during the altercation with police, including a kick to the genitals that he characterized as a sexual assault. This account, however, is insufficiently cogent to warrant being put to the test by a court. It suggests, for example, that the Complainant was unaware that WO #2 and WO #1 were police officers as they forced entry into his home. I find that hard to square with the fact that it concedes that the two officers had allowed the Complainant to bring the person home before arresting him. The allegation is also at odds with the officers’ accounts, none of which describe the choking and kicking incidents he mentions.
In the result, while I accept that the Complainant’s injury was incurred in the course of the struggle that marked his arrest, I am not satisfied it was attributable to any unlawful conduct on the part of the arresting officers. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: November 8, 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.