SIU Director’s Report - Case # 23-OCI-330
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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 reportedly suffered by a 24-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 reportedly suffered by a 24-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On August 17, 2023, at 2:35 a.m., the Barrie Police Service (BPS) contacted the SIU with the following information.On August 16, 2023, at 6:47 p.m., a BPS officer, the subject official (SO), observed a vehicle, a Mazda, speeding. The driver of the vehicle, the Complainant, was also using a cell phone. The SO pulled up beside the vehicle at a red traffic light and directed the Complainant to pull over. The traffic signal turned green, and the Complainant continued to drive away. The Complainant pulled into a residential complex near Mapleview Drive East and Yonge Street, and into the driveway of a residence. The SO followed the Complainant and, at some point, activated his emergency equipment. The Complainant exited his vehicle, and the SO proceeded to arrest him for ‘flight from police’. An altercation ensued. The Complainant tried to get back in the vehicle and attempted to reach into the glove box. The SO deployed his conducted energy weapon (CEW) in probe mode. The CEW was ineffective. The SO used empty-hand techniques to pull the Complainant out of the car and to the ground. The Complainant was taken to the Royal Victoria Regional Health Centre by ambulance to have the CEW probes removed. The physician advised that the Complainant had a concussion, and his toe was broken. The Complainant was brought back to the police station and released on an undertaking.
The Team
Date and time team dispatched: 17/08/2023 at 11:00 a.m.Date and time SIU arrived on scene: 17/08/2023 at 11:40 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
24-year-old male; declined an interview; medical records obtained and reviewed.Subject Official (SO)
SO Declined interview, as is the subject official’s legal right; notes received and reviewed.Evidence
The Scene
The events in question transpired in the area of the underground garage ramp at a residential complex near Mapleview Drive East and Yonge Street in Barrie.Forensic Evidence
CEW Deployment Data – SO
The following deployment data were downloaded from the SO’s CEW for August 16, 2023.
Seq # |
Time |
Event |
Cartridge Info |
Duration | |
2995 |
Armed |
C1: Empty C2: Empty |
| ||
2996 |
242:37 p.m. |
Trigger |
C1: Empty
|
5 seconds | |
2997 |
2:42:43 p.m. |
Arc |
C1: Empty C2: Empty |
1 second | |
2998 |
2:42:44 p.m. |
Arc |
C1: Empty C2: Empty |
1 second | |
2999 |
2:42:44 p.m. |
Safe |
C1: Empty C2: Empty |
8 seconds | |
3000 |
6:55:36 p.m. |
Armed |
C1: 25’ Standard C2: 25’ Standard |
| |
3001 |
6:55:41 p.m. |
Trigger |
C1: Deployed |
5 seconds
| |
3002 |
6:55:47 p.m. |
Trigger |
C2: Deployed |
5 seconds
| |
3003 |
6:55:52 p.m. |
Trigger |
C2: Deployed |
5 seconds
| |
3004 |
6:55:57 p.m. |
Safe |
C1: Deployed C2: Deployed |
21 |
Audio/Video/Photographic Evidence [3]
Police Communications Recordings
On August 16, 2023, at about 6:46 p.m., the SO contacted the radio room and reported a vehicle was pulling away from him and about to enter the underground near Mapleview. He subsequently indicated that a man had been ‘Tasered’ and was in custody.Starting at about 6:50 p.m., the SO confirmed all was in order. He provided the plate number of the involved vehicle, and the dispatcher provided information about the registered owner of the vehicle. An ambulance was dispatched.
Body-worn Camera (BWC) Footage – SO
On August 16, 2023, starting at about 6:44 p.m., the SO was captured sitting in his police vehicle on Mapleview Drive.Starting at about 6:45 p.m., the SO attempted to stop a vehicle driven by the Complainant. The vehicle was stopped in the second lane from the curb for a red traffic light. The light turned green, and the Complainant drove his vehicle forward. The SO activated his emergency lights and siren.
Starting at about 6:46 p.m., the SO followed the Complainant and they each travelled onto a residential property. The building had an underground parking lot with vehicle access through an overhead door. The vehicle stopped at the entrance of the parking garage. The SO stopped his police vehicle directly to the rear of the Complainant’s vehicle. He had his interior emergency lights activated. The SO went on air, identified himself, and said he had attempted a traffic stop at a residential address. The Complainant stopped at the open overhead doors, and the SO walked to the driver’s door. He identified himself as a police officer. The Complainant sat in the driver’s seat with his door ajar. The SO attempted to explain the traffic stop. The Complainant remained in his driver’s seat. The SO grabbed the left hand of the Complainant by the left wrist. The Complainant pulled his arm back into the vehicle. The Complainant then stepped from his vehicle and stood at the open driver’s door. The SO explained to the Complainant he was stopped for speeding at 87 km/h in a 50 km/h zone. The Complainant turned his back to the SO and reached into his vehicle towards the centre console. The SO drew his CEW and pointed it at the back of the Complainant. The SO discharged his CEW into the back of the Complainant. It did not have any effect. The Complainant was able to walk and talk without any problem. The SO pulled the Complainant away from his vehicle and walked him to the front, left hood of his vehicle. The Complainant struggled and was taken the ground, the CEW pointed at him. The Complainant was ordered not to move. The SO told the Complainant he was under arrest for ‘fail to stop for police’ and ‘resist arrest’. The Complainant was handcuffed with his hands behind his back. He was walked to the passenger side of the police vehicle. The Complainant spoke over the SO, as the officer read him his rights, and attempted to explain that his parents lived in the apartment building, and he wanted them to contact his lawyer.
Starting at about 6:52 p.m., the SO requested other officers to assist. He also attempted to read the Complainant his rights as the Complainant spoke over him. The Complainant stated his cell phone was in his vehicle, and the SO could retrieve it. A second BPS officer arrived at the parking garage entrance.
Video Footage - Caliber Security
Starting at about 6:46 p.m., a vehicle driven by the Complainant entered from the roadway onto private property and stopped at the entrance to the underground parking lot. The vehicle was immediately followed by the SO, who drove an unmarked vehicle. The interior dashboard emergency lights were activated. The Complainant exited his vehicle as the SO was by the driver’s door on foot. The Complainant attempted to re-enter his vehicle and reached towards the front centre console. The SO drew his CEW and pointed it at the Complainant’s back. The Complainant was taken to the ground by the driver’s door of the SO’s vehicle and handcuffed with his hands behind his back. The SO accessed his portable radio. The Complainant was searched and placed in the passenger side, rear seat of the SO’s vehicle.Materials Obtained from Police Service
Upon request, the SIU received the following materials from the BPS between August 18 and 28, 2023:- Arrest Report;
- Information from computer-assisted dispatch;
- Communications recordings;
- BWC footage;
- Notes - SO
- CEW deployment data;
- Policy: Use of Force; and
- Policy: Arrest.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between August 18 and 28, 2023:- Ambulance Call Report from the Simcoe Emergency Medical Service;
- Photo taken by a civilian; and
- Video footage and photographs from Caliber Security.
Incident Narrative
The evidence collected by the SIU, including video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU. He did authorize the release of his notes.
In the afternoon of August 16, 2023, the SO was performing traffic enforcement when he clocked a vehicle travelling at 87 km/h in a 50 km/h zone. The SO pulled up alongside the vehicle as it was stopped on Mapleview Drive East at Yonge Street and gestured to the driver to pull over. The driver looked at the SO but did not acknowledge that he was to pull over. Rather, he looked down at his cell phone in his right hand.
The driver was the Complainant. As the light turned green, the Complainant continued eastward on Mapleview Drive East for several hundred metres until making a turn to enter onto the grounds of a housing complex. The Complainant had reached the underground parking ramp and was stopped waiting for the overhead door to open completely when he opened the driver’s door to acknowledge the SO behind him.
With his emergency lights on and siren sounding intermittently, the SO had followed behind the Complainant on Mapleview Drive East until the housing complex, where he too turned in tow with the Mazda. The officer stopped his vehicle behind the Mazda, exited, and approached the Complainant. He told the Complainant that he had been trying to stop him, and the Complainant replied that he needed to park. The SO told him to get out of the vehicle and pulled on his left arm. The Complainant exited the vehicle and took objection to the officer grabbing his arm. The SO lost his hold of the Complainant’s arm, and the Complainant turned away from the officer and reached towards the centre console of the Mazda. The officer, his CEW drawn and pointed, told the Complainant to place his hands on the car and then fired his weapon when the Complainant failed to do so. The Complainant was unaffected. The SO grabbed the Complainant by the back of his shirt and pulled him back. The Complainant turned to face the officer, and the SO fired the CEW a second and third time. Again, the Complainant was unaffected. Ordered to get on the ground, the Complainant remained standing. He was grabbed by the officer and pinned up against the front hood of the police vehicle before he was forced to the ground and handcuffed without further incident.
The Complainant was transported from the scene to hospital and reportedly diagnosed with a concussion and broken toe.
In the afternoon of August 16, 2023, the SO was performing traffic enforcement when he clocked a vehicle travelling at 87 km/h in a 50 km/h zone. The SO pulled up alongside the vehicle as it was stopped on Mapleview Drive East at Yonge Street and gestured to the driver to pull over. The driver looked at the SO but did not acknowledge that he was to pull over. Rather, he looked down at his cell phone in his right hand.
The driver was the Complainant. As the light turned green, the Complainant continued eastward on Mapleview Drive East for several hundred metres until making a turn to enter onto the grounds of a housing complex. The Complainant had reached the underground parking ramp and was stopped waiting for the overhead door to open completely when he opened the driver’s door to acknowledge the SO behind him.
With his emergency lights on and siren sounding intermittently, the SO had followed behind the Complainant on Mapleview Drive East until the housing complex, where he too turned in tow with the Mazda. The officer stopped his vehicle behind the Mazda, exited, and approached the Complainant. He told the Complainant that he had been trying to stop him, and the Complainant replied that he needed to park. The SO told him to get out of the vehicle and pulled on his left arm. The Complainant exited the vehicle and took objection to the officer grabbing his arm. The SO lost his hold of the Complainant’s arm, and the Complainant turned away from the officer and reached towards the centre console of the Mazda. The officer, his CEW drawn and pointed, told the Complainant to place his hands on the car and then fired his weapon when the Complainant failed to do so. The Complainant was unaffected. The SO grabbed the Complainant by the back of his shirt and pulled him back. The Complainant turned to face the officer, and the SO fired the CEW a second and third time. Again, the Complainant was unaffected. Ordered to get on the ground, the Complainant remained standing. He was grabbed by the officer and pinned up against the front hood of the police vehicle before he was forced to the ground and handcuffed without further incident.
The Complainant was transported from the scene to hospital and reportedly diagnosed with a concussion and broken toe.
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 320.17, Criminal Code - Flight From Peace Officer
320.17 Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer and who fails, without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances.
Analysis and Director's Decision
The Complainant was arrested by a BPS officer on August 16, 2023, purportedly suffering serious injuries in the process. In the ensuing SIU investigation of the incident, the arresting officer was identified as the SO. 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 in seeking to take the Complainant into custody. The officer had made clear his intentions to pull the Complainant over for a speeding infraction, and the Complainant failed to do so despite there being ample opportunity to bring his vehicle to a stop on Mapleview Drive East. On this record, the Complainant was subject to arrest for failing to stop for a police officer contrary to section 320.17 of the Criminal Code.
With respect to the force used by the SO in aid of the Complainant’s arrest, I am satisfied that it was legally justified. The Complainant had given the SO reason to be concerned for his personal safety. He had seemingly ignored the officer’s direction to pull over, was slow to exit the Mazda, and had failed to put his hands on the car when ordered, instead reaching into the vehicle. This constellation of factors lends credence to the officer’s claim that he feared the Complainant was reaching for a weapon. That being the case, I am unable to reasonably conclude that the SO’s initial CEW discharge was unwarranted. If it worked as intended, the CEW would temporarily incapacitate the Complainant, prevent any weapons from being brought into play, and afford the officer an opportunity to safely take him into custody. In the heat of the events as they quickly unfolded thereafter, with the Complainant refusing to lower himself to the ground, I am satisfied that the officer’s subsequent use of force was reasonable for substantially the same reasons. If the first CEW discharge was reasonable, then so too was the second and third. When that also failed to incapacitate the Complainant, it would seem that a resort to physical force – a punch to the head and a grounding – was commensurate with the exigencies of the moment.
In the result, while I accept that the Complainant’s reported injuries were likely incurred in the altercation that marked his arrest, there are no reasonable grounds to conclude that they are the result of any unlawful conduct by the SO. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 15, 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 in seeking to take the Complainant into custody. The officer had made clear his intentions to pull the Complainant over for a speeding infraction, and the Complainant failed to do so despite there being ample opportunity to bring his vehicle to a stop on Mapleview Drive East. On this record, the Complainant was subject to arrest for failing to stop for a police officer contrary to section 320.17 of the Criminal Code.
With respect to the force used by the SO in aid of the Complainant’s arrest, I am satisfied that it was legally justified. The Complainant had given the SO reason to be concerned for his personal safety. He had seemingly ignored the officer’s direction to pull over, was slow to exit the Mazda, and had failed to put his hands on the car when ordered, instead reaching into the vehicle. This constellation of factors lends credence to the officer’s claim that he feared the Complainant was reaching for a weapon. That being the case, I am unable to reasonably conclude that the SO’s initial CEW discharge was unwarranted. If it worked as intended, the CEW would temporarily incapacitate the Complainant, prevent any weapons from being brought into play, and afford the officer an opportunity to safely take him into custody. In the heat of the events as they quickly unfolded thereafter, with the Complainant refusing to lower himself to the ground, I am satisfied that the officer’s subsequent use of force was reasonable for substantially the same reasons. If the first CEW discharge was reasonable, then so too was the second and third. When that also failed to incapacitate the Complainant, it would seem that a resort to physical force – a punch to the head and a grounding – was commensurate with the exigencies of the moment.
In the result, while I accept that the Complainant’s reported injuries were likely incurred in the altercation that marked his arrest, there are no reasonable grounds to conclude that they are the result of any unlawful conduct by the SO. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 15, 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.