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 injuries of a 57-year-old man (the “Complainant”).

Notification of the SIU [1]

On September 9, 2023, at 8:20 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

According to the OPP, on September 1, 2023, at 12:38 a.m., OPP officers responded to a family dispute at a residence in Shelburne, Amaranth Township, which was reported by the Civilian Witness (CW). The CW indicated that the Complainant was fighting with Witness #1. Subject Official (SO) #2 and SO #1 attempted to arrest the Complainant after he assaulted them, and a struggle ensued. On September 9, 2023, at 10:58 a.m., an OPP Mental Health Officer contacted the Complainant, who advised that he had suffered two fractured ribs and a concussion from the arrest on September 1, 2023.

The Team

Date and time team dispatched: 09/11/2023 at 7:38 a.m.

Date and time SIU arrived on scene: 09/11/2023 at 9:44 a.m.

Number of SIU Investigators assigned: 3

The Scene

The events in question transpired in and around a residence in Shelburne.

Video/Audio/Photographic Evidence [2]

OPP Event History

Starting at about 12:38 a.m., September 1, 2023, the OPP Provincial Communications Centre (PCC) received a telephone call from the CW reporting that Witness #1, who was on drugs, had broken the front door and was not allowed to be there. The CW was hiding in the bathroom and had a knife with her. The PCC directed her to put the knife down.

Upon the arrival of officers at about 12:42 a.m., it was noted that the knife initially held by the CW was situated on a bench by the front door. Witness #1 had left the residence.

Starting at about 12:52 a.m., it was noted that the Complainant had been arrested for assaulting a police officer. He was assessed by Emergency Medical Services at the residence. The search for Witness #1 continued and it was noted that he was not dressed for the outside environment.

Starting at about 1:29 a.m., Witness #1 was said to have been arrested.

Witness #1 and the Complainant were both transported to Headwaters Health Care Centre in separate ambulances for further medical assessment.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the OPP between September 12 and 15, 2023:

• Event History;
• Communications recordings;
• General Report;
• Notes – WO #3;
• Notes – WO #1;
• Notes – WO #2;
• Text message from the Complainant; and
• Digital images of the Complainant’s injuries.

Materials Obtained from Other Sources

The SIU obtained the following record from other sources:

• The Complainant’s medical records from Headwaters Health Care Centre, received on September 28, 2023.

The evidence collected by the SIU, including interviews with the Complainant and police and non-police eyewitnesses to the events in question, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU or the release of their notes.

In the early morning of September 1, 2023, SO #1 and SO #2, in the company of WO #1 and WO #2, arrived on the grounds of a residence in Shelburne. They were there following a call to police from one of the home’s residents – the CW. The CW had contacted police to report a domestic disturbance involving the Complainant and Witness #1. Witness #1, who was subject to a court order preventing his attendance at the home, was having an “episode”. He was out of control and had fought with the Complainant, punching him.

The officers approached the Complainant out front of the house and asked about Witness #1’s whereabouts. Shortly, they observed Witness #1 running towards the tree line of the adjacent property to the north and ran after him. Unable to locate him, the officers returned to the front of the house to speak to the Complainant.

The Complainant’s frustration began to grow. He was miffed at the suggestion that he had mislead the officers about Witness #1’s location and ordered them off the property. When the officers explained that they could not leave because they had a responsibility to ensure Witness #1’s well-being, the Complainant turned to make his way into the house through the front door. Led by SO #2, the officers told him to stop and then followed him inside.

There ensued a physical altercation inside the house in the course of which the Complainant was forced to the ground by SO #2 and handcuffed behind the back.

Following his arrest, the Complainant was transported to hospital and diagnosed with two fractured right-sided ribs and soft tissue swelling.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

On September 9, 2023, the OPP contacted the SIU to report that a male – the Complainant – had reportedly been seriously injured in the course of his arrest by OPP officers on September 1, 2023. The SIU initiated an investigation and identified two subject officials – SO #1 and SO #2. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either of SO #1 and SO #2 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.

With respect to the lawfulness of the Complainant’s arrest, I am unable to reasonably conclude the officers were without grounds to take him into custody. There is a version of events proffered in the evidence that the Complainant had ordered the officers off his property and had pushed SO #2 in the chest only after SO #2 had first pushed him before he entered his home and was arrested. That account, however, stands in conflict with the evidence of WO #1 who was present throughout this sequence of events. She says that the Complainant was the aggressor and had pushed SO #2 several times without provocation. According to WO #1, the Complainant had also turned to punch SO #2 in the face as the officers followed him through the threshold of the front door. On the officer’s evidence, certainly, SO #2 was within his rights in entering the residence to arrest the Complainant for assault.

The same is true with respect to the force brought to bear by the subject officials in aid of the Complainant’s arrest, namely, that the evidence falls short of any reasonable conclusion that it was excessive. There is an account in which it is said that SO #2 pushed the Complainant first outside the home before forcing his way into the residence, taking the Complainant to the ground, and punching and kneeing him multiple times to the head and back. That story, which would give grounds for an assault-based charge were it true, is squarely contested again by the evidence of WO #1 and WO #2. The former says that the Complainant pushed SO #2 several times without retaliation outside the house. The latter says that he entered the home after the Complainant and the other officers and took part in his arrest on the ground. He did not see any strikes being delivered by the other officers. The cumulative account of these officers admits that the Complainant was forced to the ground and that some force was brought to bear to secure him in handcuffs, including the use by SO #1 of his baton to pry free one of the Complainant’s arms from under his torso, but that force would appear commensurate with the exigencies of the situation they describe. On this record, it would be unwise and unsafe to rest charges solely on the strength of the incriminating evidence as I am not reasonably satisfied that it is likely to be any closer to the truth than the evidence proffered by the officers.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case.


Date: January 5, 2024


Electronically approved by

Joseph Martino
Director
Special Investigations Unit