SIU Director’s Report - Case # 23-OCI-294
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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 48-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 48-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On July 28, 2023, at 1:09 a.m., the Halton Regional Police Service (HRPS) notified the SIU of an injury to the Complainant. According to the HRPS, on July 27, 2023, at 7:17 p.m., HRPS responded to a ‘shoplifter call’ at The Home Depot, 1013 Maple Avenue, Milton. Police officers arrested one person at the store, while a second [now known to be the Complainant] fled on foot. The Complainant was located outside Longo’s, 1079 Maple Avenue, where a conducted energy weapon (CEW) was deployed. The deployment caused the Complainant to lock-up and fall, striking his face on the ground. The Complainant was taken to Milton District Hospital where he was diagnosed with a fractured nose and the loss of two front teeth.
The Team
Date and time team dispatched: 07/28/2023 at 7:58 a.m.Date and time SIU responded: 07/28/2023 at 8:17 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
48-year-old male; interviewed; medical records obtained and reviewed
The Complainant was interviewed on July 28, 2023.
Subject Officials (SO)
SO Declined interview and to provide notes, as is the subject official’s legal right
The Complainant was interviewed on July 28, 2023.
Subject Officials (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightEvidence
The Scene
The events in question transpired in the Longo’s grocery store, 1079 Maple Avenue, Milton. Physical Evidence
The SO reportedly discharged a CEW - Model Taser 2 - in the course of the incident under investigation.
Figure 1 - The SO's CEW
Forensic Evidence
CEW Deployment Data
At 7:18:33 p.m., [2] July 27, 2023, the device was armed with two 25-foot standard cartridges.At 7:18:40 p.m., the trigger was pulled and cartridge one was deployed. The trigger was engaged for five seconds.
At 7:18:51 p.m., the device was rendered safe.
Video/Audio/Photographic Evidence [3]
Video footage – Longo’s
Starting at about 7:18:17 p.m., the Complainant was captured running through the front doors of Longo’s and making a right turn.Starting at about 7:18:19 p.m., the SO pursued the Complainant into the store.
The Complainant ran down an aisle towards the back of the store and turned left with the SO continuing to pursue.
The SO unholstered a CEW and levelled it at the Complainant.
At 7:18:34 p.m., the Complainant was struck by the CEW probes and fell forward onto the tile floor.
Police Communications Recordings
At 7:05 p.m., The Home Depot loss prevention officers called HRPS Communications Centre reporting the Complainant and another man loading two shopping carts with merchandise. The men were wanted by police and were known to run and resist loss prevention.Starting at about 7:12 p.m., HRPS officers arrived and secured a motor vehicle in the parking lot that the Complainant had arrived in. The Complainant was still in the store.
Starting at about 7:15 p.m., the Complainant walked towards the exit.
Starting at about 7:16 p.m., loss prevention officers confronted the Complainant, and he ran.
Starting at about 7:17 p.m., a police officer advised that a CEW had been deployed inside Metro [now known to be Longo’s].
At 7:19 p.m., the SO advised the Complainant was in custody.
At 7:20 p.m., an ambulance was requested.
Materials Obtained from Police Service
The SIU obtained the following records for the HRPS between July 31, 2023, and August 3, 2023:- List of involved police officers;
- Civilian witness list and statements provided;
- Occurrence Report;
- Arrest Report;
- Crown Brief Synopsis;
- Event Summary;
- Training records and qualifications - the SO;
- Communications recordings;
- CEW deployment data;
- Policy - Use of Force; and
- Policy - Arrest and Release of Persons.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources:- The Complainant’s medical records, received July 31, 2023; and
- Video footage from Longo’s, received July 28, 2023.
Incident Narrative
The events in question, clear on the evidence collected by the SIU, may briefly be summarized. As was his legal right, the SO did not agree an interview with the SIU or to authorize the release of his notes.
In the evening of July 27, 2023, HRPS officers were dispatched to The Home Depot at 1013 Maple Avenue, Milton. Security guards at the store had contacted police about a theft in progress.
The Complainant was one of the two suspects in connection with the theft call. As he exited the store, he saw police officers and fled. He ran across a parking lot and into a nearby Longo’s grocery store, chased by police officers. Inside the store, an officer ordered him to stop or he would be “tazed”. The Complainant kept running and was struck by CEW probes. His body locked-up and he fell forward, striking the floor with his face, and losing teeth and breaking his nose in the process.
The CEW had been discharged by the SO. The officer approached the Complainant on the floor and arrested him without further incident.
Following his arrest, the Complainant was taken to hospital and treated for his injuries.
In the evening of July 27, 2023, HRPS officers were dispatched to The Home Depot at 1013 Maple Avenue, Milton. Security guards at the store had contacted police about a theft in progress.
The Complainant was one of the two suspects in connection with the theft call. As he exited the store, he saw police officers and fled. He ran across a parking lot and into a nearby Longo’s grocery store, chased by police officers. Inside the store, an officer ordered him to stop or he would be “tazed”. The Complainant kept running and was struck by CEW probes. His body locked-up and he fell forward, striking the floor with his face, and losing teeth and breaking his nose in the process.
The CEW had been discharged by the SO. The officer approached the Complainant on the floor and arrested him without further incident.
Following his arrest, the Complainant was taken to hospital and treated for his injuries.
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 by a HRPS officer in Milton on July 27, 2023. The officer – the SO – was identified as the subject official in the course of the ensuing SIU investigation of the incident. 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.
Given what the SO would have known of the theft call that came in from The Home Depot and the Complainant’s flight from police as he exited the store, I am satisfied the officer was proceeding lawfully to arrest the Complainant when he discharged his CEW.
I am also satisfied that the officer’s use of the CEW was legally justified. The Complainant was determined in his flight to avoid arrest and had given no indication that he was about to stop. Indeed, he might well have made good his escape but for the SO’s use of the CEW as it does not appear on the video footage that the officer was making up any ground. The Complainant’s behaviour was also endangering shoppers inside the store, adding to the need to bring his flight to an end. On this record, I accept that the force used by the SO was reasonably necessary in aid of the Complainant’s apprehension.
For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: November 23, 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.
Given what the SO would have known of the theft call that came in from The Home Depot and the Complainant’s flight from police as he exited the store, I am satisfied the officer was proceeding lawfully to arrest the Complainant when he discharged his CEW.
I am also satisfied that the officer’s use of the CEW was legally justified. The Complainant was determined in his flight to avoid arrest and had given no indication that he was about to stop. Indeed, he might well have made good his escape but for the SO’s use of the CEW as it does not appear on the video footage that the officer was making up any ground. The Complainant’s behaviour was also endangering shoppers inside the store, adding to the need to bring his flight to an end. On this record, I accept that the force used by the SO was reasonably necessary in aid of the Complainant’s apprehension.
For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: November 23, 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 times are derived from the internal clock of the weapon, and are not necessarily synchronous with actual time. [Back to text]
- 3) 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.