SIU Director’s Report - Case # 23-OCI-385
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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 21-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 21-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On September 19, 2023, at 4:14 a.m., the York Regional Police (YRP) left a voicemail on the SIU voice messaging system requesting a callback. The SIU contacted the YRP and was provided the following information.On September 18, 2023, at approximately 9:00 p.m., the YRP were called to a residence in the area of Bathurst Street and King Road in Richmond Hill for a family dispute. The YRP were advised that the Complainant was heavily intoxicated, violent and acting aggressively towards family members. Upon the arrival of YRP officers, the Complainant was observed walking away from the home. Confronted by the Subject Official (SO), the Complainant punched him in the face and broke his eyewear. The Complainant was grounded and arrested, and his nose began to bleed. He was taken to the Cortellucci Vaughan Hospital (CVH) and diagnosed with a fractured nose. The Complainant, who was to be held for a bail hearing, was at the CVH where he had been admitted under the Mental Health Act.
The Team
Date and time team dispatched: 09/19/2023 at 12:16 p.m.Date and time SIU arrived on scene: 09/19/2023 at 1:08 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
21-year-old male; interviewed; medical records obtained and reviewed.The Complainant was interviewed on September 19, 2023.
Civilian Witness (CW)
CW InterviewedThe civilian witness was interviewed on September 20, 2023.
Subject Official
SO Interviewed; notes received and reviewedThe subject official was interviewed on October 2, 2023.
Witness Official (WO)
WO Interviewed; notes received and reviewedThe witness official was interviewed on September 22, 2023.
Evidence
The Scene
The events in question transpired on and around the sidewalk near a bus stop on King Road, Richmond Hill. On September 19, 2023, a SIU forensic investigator attended the scene. A blood pool and footwear tread marks were visible on the sidewalk near the York Region Transit bus stop.
Video/Audio/Photographic Evidence [2]
Video Footage – York Region Transit
On September 21, 2023, the SIU received video footage from York Region Transit that was captured by a bus. On September 18, 2023, starting at about 9:13:29 p.m. (as stamped on the footage), the bus was approaching a bus stop on King Road. There were two marked police cruisers with their emergency lighting activated parked at the bus stop curb. There was a stationary silhouette on a sidewalk leading to the bus stop. The bus did not slow down and proceeded past the bus stop.
Police Communications Recordings
On September 18, 2023, starting at about 9:00 p.m., a police dispatcher was captured requesting that police officers attend at an address in the area of Bathurst Street and King Road for a family domestic dispute. The Complainant was intoxicated and acting aggressively towards his family. The dispatcher issued a caution about the Complainant as he had previously spit at police officers and had a history of police occurrences involving firearms and assaults.Starting at about 9:15 p.m., it was reported that the Complainant had struck the SO and was in custody.
Materials Obtained from Police Service
Upon request, the SIU obtained the following records from the YRP between September 20, 2023, and October 19, 2023:- Communications recordings;
- Information from computer-assisted dispatch;
- In-car camera footage;
- Notes – the WO;
- Notes – the SO;
- Photographs taken by the YRP; and
- Policies: Processing the Offender and Use of Force.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between September 21 and 25, 2023:- Video footage - York Region Transit;
- York Emergency Medical Services Ambulance Call Report; and
- The Complainant’s medical records from CVH.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.
The Complainant ignored the SO, who spoke to him through the passenger side window of the cruiser. He continued to ignore the officer as he stopped and stepped out of his cruiser to approach him. The Complainant was walking away from the SO on the sidewalk when he turned around and swung his right hand at the officer. The punch struck the SO in the face.
The SO reacted to the strike by taking hold of the Complainant and forcing him to the ground. With the Complainant on his backside and still punching at the officer, who was straddling his torso, the SO delivered a short elbow strike to the Complainant’s nose. The Complainant continued to try to punch the SO and was met with another elbow strike to the nose, causing it to bleed.
The WO arrived following the second strike and assisted the SO in controlling the Complainant’s arms behind the back and securing them in handcuffs.
Following his arrest, the Complainant was lifted to his feet and walked to the WO’s cruiser where he kicked backwards in the direction of the SO. The SO took him to the ground again and, with the WO’s assistance, held him there until the arrival of paramedics.
The Complainant was taken to hospital and diagnosed with a fractured nose.
In the evening of September 18, 2023, the SO and WO were dispatched to a residence in the area of Bathurst Street and King Road, Richmond Hill, for a domestic disturbance at the house. Concerned for the family’s safety, the CW had called police to report that the Complainant was inebriated and becoming aggressive. Aware that the Complainant had left the house in the direction of King Road, the officers located him shortly after their arrival in the area. He was standing by a bus stop.
The Complainant ignored the SO, who spoke to him through the passenger side window of the cruiser. He continued to ignore the officer as he stopped and stepped out of his cruiser to approach him. The Complainant was walking away from the SO on the sidewalk when he turned around and swung his right hand at the officer. The punch struck the SO in the face.
The SO reacted to the strike by taking hold of the Complainant and forcing him to the ground. With the Complainant on his backside and still punching at the officer, who was straddling his torso, the SO delivered a short elbow strike to the Complainant’s nose. The Complainant continued to try to punch the SO and was met with another elbow strike to the nose, causing it to bleed.
The WO arrived following the second strike and assisted the SO in controlling the Complainant’s arms behind the back and securing them in handcuffs.
Following his arrest, the Complainant was lifted to his feet and walked to the WO’s cruiser where he kicked backwards in the direction of the SO. The SO took him to the ground again and, with the WO’s assistance, held him there until the arrival of paramedics.
The Complainant was taken to hospital and diagnosed with a fractured nose.
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 a confrontation with a YRP officer on September 19, 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.
The SO was within his rights in seeking to take the Complainant into custody. The Complainant had punched the SO and was subject to arrest for assault.
With respect to the force used by the SO in aid of the Complainant’s arrest, I am of the view it was legally justified. Having just been attacked by the Complainant without provocation, the officer was entitled to immediately bring him to the ground to deter any further violence. Thereafter, as the Complainant resisted arrest and continued to try and strike the officer from the ground, the SO reacted by delivering two elbow strikes. On the evidence, these strikes were controlled (the officer did not swing but dropped his elbow from a short distance) and deliberate (they were separated by a short period of time during which the Complainant continued to strike out at the officer). Lastly, the officer acted reasonably when he forced the Complainant down by the side of the WO’s cruiser. Even though he was handcuffed at this time, the Complainant had just tried to kick the SO. Returning the Complainant to the ground would assist in managing any further aggression on his part given the officer’s positional disadvantage.
In the result, while I accept that the Complainant’s nose was broken by one or both of the SO’s elbow strikes, there are no reasonable grounds to conclude the injury is attributable to any unlawful conduct by the officer. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: January 17, 2024
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 Complainant had punched the SO and was subject to arrest for assault.
With respect to the force used by the SO in aid of the Complainant’s arrest, I am of the view it was legally justified. Having just been attacked by the Complainant without provocation, the officer was entitled to immediately bring him to the ground to deter any further violence. Thereafter, as the Complainant resisted arrest and continued to try and strike the officer from the ground, the SO reacted by delivering two elbow strikes. On the evidence, these strikes were controlled (the officer did not swing but dropped his elbow from a short distance) and deliberate (they were separated by a short period of time during which the Complainant continued to strike out at the officer). Lastly, the officer acted reasonably when he forced the Complainant down by the side of the WO’s cruiser. Even though he was handcuffed at this time, the Complainant had just tried to kick the SO. Returning the Complainant to the ground would assist in managing any further aggression on his part given the officer’s positional disadvantage.
In the result, while I accept that the Complainant’s nose was broken by one or both of the SO’s elbow strikes, there are no reasonable grounds to conclude the injury is attributable to any unlawful conduct by the officer. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: January 17, 2024
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.