SIU Director’s Report - Case # 23-PCI-333
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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 43-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 43-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On August 17, 2023, at 3:44 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.According to the OPP, on August 17, 2023, at approximately 2:44 p.m., the Office of the Independent Police Review Director (OIPRD) advised the OPP of an OIPRD complaint made by the Complainant involving an interaction he had with OPP officers in April 2023. OPP officers had attended St. Andrew Street West, Fergus, to arrest a woman in relation to an endorsed warrant. The Complainant involved himself in the arrest process and was taken into custody. He had sustained a cut to his eyebrow. The Complainant was issued a ticket for public intoxication and released in the care of Emergency Medical Services (EMS). The OIPRD complaint indicated that the Complainant had also broken a leg in the course of the incident.
The Team
Date and time team dispatched: 2023/08/21 at 11:31 a.m.Date and time SIU arrived on scene: 2023/08/21 at 12:30 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
43-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 1, 2023.
Subject Official (SO)
SO Declined interview, as is the subject official’s legal right; notes received and reviewedWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on October 10, 2023.
Evidence
The Scene
The events in question transpired on or around the grounds of the Templin Gardens, situated by the western bank of the Grand River behind 232 St. Andrew Street West, Fergus. Video/Audio/Photographic Evidence [2]
In-car Camera System (ICCS) Footage – The SO’s Vehicle
Starting at about 11:28 p.m. (time stamped on video), April 8, 2023, the Complainant was sitting in the rear seat of the police vehicle, handcuffed behind his back. The Complainant referred to being hit in the face while speaking with the SO (out of camera view). His right eye was swollen shut and he bled from a cut above the eye. The Complainant’s speech was slurred and he frequently interrupted the SO, who explained his arrest for public intoxication and resisting arrest for having fought with four police officers. The Complainant accused the SO of having punched him in the head for no reason and that his face was damaged from the assault. The Complainant requested medical attention and the SO assured him EMS had been called. The Complainant said he had a lawyer and planned to seek a settlement. The SO informed the Complainant he would get a ticket for public intoxication but would not be charged for resisting arrest. EMS attended and asked if the Complainant could stand. He did, while exiting the police vehicle.
Police Communications Recordings
At about 11:01 p.m., April 8, 2023, an officer made a request for a taxicab. Starting at about 11:33 p.m., EMS were requested. An injured party in custody [now known to be the Complainant] was reported as intoxicated and having a minor laceration above the eyebrow.
Starting at about 11:56 p.m., WO #3 cleared the incident. He explained the Complainant had approached OPP officers while intoxicated and interjected. The sergeant was advised. The Complainant was released to EMS due to his intoxication level.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between September 17, 2023, and November 14, 2023:- List of involved officers;
- ICCS footage;
- Information from computer-assisted dispatch;
- Communications recordings;
- Arrest Report;
- Notes – the SO;
- Notes – WO #2;
- Notes – WO #3; and
- Notes – WO #1.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between September 1, 2023, and October 22, 2023:- The Complainant’s medical records from EMS, GMCH and a medical clinic: and
- Photographs from the Complainant.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and participant officers in his arrest, 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.
In the evening of April 8, 2023, OPP officers, including the SO, were gathered on or around the Templin Gardens, Fergus, investigating a group of individuals when they were confronted by the Complainant. The Complainant had recognized a male among the group and was concerned with how he was being treated. He approached the officers and announced that he was recording their conduct. The SO advised the Complainant that he was under arrest for ‘public intoxication’.
The SO took the Complainant to the ground and attempted to handcuff his hands behind the back. He was joined by the other officers, each of whom intervened physically with the Complainant to assist in taking him into custody. The Complainant received multiple punches to the face. He was eventually handcuffed, assisted to his feet, and placed in the rear seat of the SO’s cruiser.
The Complainant was taken to hospital and diagnosed with a fractured left knee.
In the evening of April 8, 2023, OPP officers, including the SO, were gathered on or around the Templin Gardens, Fergus, investigating a group of individuals when they were confronted by the Complainant. The Complainant had recognized a male among the group and was concerned with how he was being treated. He approached the officers and announced that he was recording their conduct. The SO advised the Complainant that he was under arrest for ‘public intoxication’.
The SO took the Complainant to the ground and attempted to handcuff his hands behind the back. He was joined by the other officers, each of whom intervened physically with the Complainant to assist in taking him into custody. The Complainant received multiple punches to the face. He was eventually handcuffed, assisted to his feet, and placed in the rear seat of the SO’s cruiser.
The Complainant was taken to hospital and diagnosed with a fractured left knee.
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 31, Liquor Licence and Control Act -- Intoxication
31 (1) No person shall be in an intoxicated condition in,
(a) a place to which the general public is invited or permitted access; or(b) any part of a residence that is used in common by persons occupying more than one dwelling in the residence.
(2) A police officer or conservation officer may arrest without warrant any person who is contravening subsection (1) if, in the opinion of the officer, it is necessary to do so for the safety of any person.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by OPP officers in Fergus on April 8, 2023. The SIU was notified of the incident and initiated an investigation. 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 injury.
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.
At the outset, I should note that I am unable to reasonably conclude that the SO or the other officers acted without lawful authority in arresting the Complainant for public intoxication pursuant to section 31 of the Liquor Licence and Control Act, 2019. The Complainant had consumed a significant quantity of alcohol before his run-in with the police. And, WO #1 indicated in her interview that she felt uncomfortable with the Complainant’s proximity to her as the officers were attempting to deal with the other individuals. Indeed, there was other evidence indicating that the Complainant’s conduct came off as threatening to the officers.
As for the force used by the officers in aid of the Complainant’s arrest, the evidence falls short of establishing it was excessive. There is a version of events proffered in the evidence that paints a picture of gratuitous force having been brought to bear on the Complainant prior to and after he was handcuffed, but it would be unwise and unsafe to rest charges on this account due to frailties in this evidence. For instance, in this account only one officer is singled-out as the perpetrator of force. It is clear, however, that there were multiple officers involved in the Complainant’s arrest.
For their part, the officers say that the Complainant was grounded after pulling back from the SO’s initial efforts to place him under arrest. That would appear a reasonable tactic to better manage any continuing resistance on the part of the Complainant. Thereafter, the Complainant struggled against the officers’ efforts to secure him in handcuffs, flailing his legs and refusing to release his arms from underneath his torso, and was met by three punches to the face by WO #3 and an undisclosed quantum of force by the SO. Those punches, and the grappling undertaken by WO #1 and WO #2, were successful in subduing the Complainant so that he could be handcuffed, after which no further force was brought to bear.
On the aforementioned record, where there appears little to suggest that the evidence of excessive force used against the Complainant is any likelier to be closer to the truth than that proffered by the officers, and reason to suspect its reliability, there is no basis for proceeding with charges. 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.
At the outset, I should note that I am unable to reasonably conclude that the SO or the other officers acted without lawful authority in arresting the Complainant for public intoxication pursuant to section 31 of the Liquor Licence and Control Act, 2019. The Complainant had consumed a significant quantity of alcohol before his run-in with the police. And, WO #1 indicated in her interview that she felt uncomfortable with the Complainant’s proximity to her as the officers were attempting to deal with the other individuals. Indeed, there was other evidence indicating that the Complainant’s conduct came off as threatening to the officers.
As for the force used by the officers in aid of the Complainant’s arrest, the evidence falls short of establishing it was excessive. There is a version of events proffered in the evidence that paints a picture of gratuitous force having been brought to bear on the Complainant prior to and after he was handcuffed, but it would be unwise and unsafe to rest charges on this account due to frailties in this evidence. For instance, in this account only one officer is singled-out as the perpetrator of force. It is clear, however, that there were multiple officers involved in the Complainant’s arrest.
For their part, the officers say that the Complainant was grounded after pulling back from the SO’s initial efforts to place him under arrest. That would appear a reasonable tactic to better manage any continuing resistance on the part of the Complainant. Thereafter, the Complainant struggled against the officers’ efforts to secure him in handcuffs, flailing his legs and refusing to release his arms from underneath his torso, and was met by three punches to the face by WO #3 and an undisclosed quantum of force by the SO. Those punches, and the grappling undertaken by WO #1 and WO #2, were successful in subduing the Complainant so that he could be handcuffed, after which no further force was brought to bear.
On the aforementioned record, where there appears little to suggest that the evidence of excessive force used against the Complainant is any likelier to be closer to the truth than that proffered by the officers, and reason to suspect its reliability, there is no basis for proceeding with charges. 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 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.