SIU Director’s Report - Case # 23-OCI-411
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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 38-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 38-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On October 6, 2023, at 9:08 p.m., the Guelph Police Service (GPS) contacted the SIU with the following information. On October 6, 2023, at approximately 3:00 p.m., Subject Official (SO) #1, Witness Official (WO) #1, and SO #2 were surveilling a stolen car parked in the area of Elmira Road North and Speedvale Avenue West, Guelph, when the Complainant exited a building and attempted to enter the vehicle. He was confronted by the police officers and a struggle ensued. The Complainant was grounded and later transported to the Guelph General Hospital (GGH), where X-rays revealed a fractured left wrist.
The Team
Date and time team dispatched: 2023/10/06 at 9:36 p.m.Date and time SIU arrived on scene: 2023/10/06 at 9:45 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
38-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on October 6, 2023.
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
The civilian witnesses were interviewed between October 10 and 19, 2023.
Subject Officials
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Declined interview and to provide notes, as is the subject official’s legal right
Witness Officials
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed; notes reviewed and interview deemed not necessary
WO #5 Not interviewed; notes reviewed and interview deemed not necessary
WO #6 Not interviewed; notes reviewed and interview deemed not necessary
The witness officials were interviewed on November 13, 2023.
Evidence
The Scene
The events in question transpired outside a number of residences in the area of Elmira Road North and Speedvale Avenue West, Guelph. Forensic Evidence
Conducted Energy Weapon (CEW) Deployment Data – SO #2
At 3:12:29 p.m., [2] October 6, 2023, the right arc button was pressed causing an electrical discharge in drive stun with no cartridge deployment for 4.476 seconds. At 3:12:36 p.m., the right arc button was pressed, causing electrical discharge in drive stun with no cartridge deployment for 1.021 seconds.
At 3:12:38 p.m., the right arc button was pressed, causing electrical discharge in drive stun with no cartridge deployment for .602 seconds.
At 3:12:48 p.m., the safety was activated, disarming the CEW.
Video/Audio/Photographic Evidence [3]
Body-worn Camera (BWC) Footage – WO #2
Starting at about 3:31 p.m., October 6, 2023, WO #2 was captured in his police vehicle as the emergency medical services arrived. He accompanied the two paramedics to the Complainant, who was seated on a driveway and handcuffed behind his back. SO #1 was kneeling beside the Complainant. WO #2 assisted SO #2 with collecting evidence from the pavement and bagging it.
Starting at about 3:46 p.m., WO #2 rode in the back of the ambulance as the Complainant was transported to the GGH.
During his contact with paramedics, the Complainant was heard in part to say that the police officers had pointed things at him, grabbed him from behind, smashed his head into the ground and shredded his face across the pavement. The Complainant said he “was jumped and tasered a thousand times for no reason”. He complained of pain to his left eye, down his right side and wrist. When the paramedic asked if his face went forward into the pavement or concrete, the Complainant nodded in the affirmative.
The Complainant explained he had borrowed his friend’s car because it was convenient to get groceries.
BWC Footage – WO #3
Starting at about 4:50 p.m., October 6, 2023, WO #3 and WO #2 were seated in the waiting area at the GGH. WO #3 approached the Complainant, who was in a wheelchair, and again read his rights and advised him of further charges that he was facing. At 4:54 p.m., the footage ended. Custody Footage - GPS
On October 6, 2023, starting at about 11:41:24 p.m., the Complainant was escorted in through the sally port entrance.Starting at about 11:41:36 p.m., the Complainant was led to a bench across from the booking counter and seated.
Starting at about 11:47:25 p.m., during his booking, the Complainant was asked about his injuries. He mentioned a broken left wrist, a swollen and bloody left eye, his right side, which was painful from multiple CEW discharges, and head pain from being knocked to the pavement. He admitted to alcohol consumption and had smoked methamphetamine earlier in the day.
At 11:57:03 p.m., the Complainant was escorted to the cell area.
Materials Obtained from Police Service
Upon request, the SIU obtained the following materials from the GPS between October 13, 2023, and November 11, 2023. - Computer-aided Dispatch Report;
- Crown Brief Synopsis;
- Arrest Booking Report;
- Deployment data from the CEWs of SO #1, SO #2 and WO #1;
- Communications recordings;
- BWC footage;
- Custody footage;
- Procedure - Use of Force;
- Notes of WO #1, WO #2, WO #3, WO #4, WO #5 and WO #6; and
- Photographs.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources:- The Complainant’s medical records from GGH, received October 20,2023; and
- Cellphone video footage from CW #3, received October 11, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant, an officer who participated in the Complainant’s arrest, and non-police eyewitnesses, 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 morning of October 6, 2023, while proactively patrolling in the area of Elmira Road North and Speedvale Avenue West, Guelph, WO #1, a member of the GPS Break, Enter and Auto Theft (BEAT) team operating an unmarked police cruiser, came across a parked Honda Civic that had been reported stolen. The officer advised other members of the BEAT team – SO #1 and SO #2 – and parked his cruiser near the Civic to keep watch on it.
At about 3:10 p.m., the Complainant emerged from one of the nearby residences and walked in the direction of the Honda Civic. He made his way past the Civic towards WO #1’s vehicle and noticed WO #1 in the back seat. Within moments, he was confronted by the officer telling him he was under arrest.
Aware that he had been made out, WO #1 radioed SO #1 and SO #2, exited his vehicle and advised the Complainant he was under arrest. The Complainant fled and the officer chased after him towards a van. The two exchanged words in a brief standoff by the van – WO #1 repeating the Complainant was under arrest and directing that he show his hands, and the Complainant arguing he had done nothing wrong – before the Complainant continued his flight. The officer caught up to him, and tackled him to the ground.
Though what followed on the ground is the subject of controversy in the evidence, it is clear that SO #1 and SO #2 joined WO #1 and assisted in handcuffing the Complainant after he was struck in the back of the head and subjected to several CEW discharges.
Following his arrest, the Complainant was taken from the scene to hospital in ambulance and diagnosed with a fractured left wrist.
In the morning of October 6, 2023, while proactively patrolling in the area of Elmira Road North and Speedvale Avenue West, Guelph, WO #1, a member of the GPS Break, Enter and Auto Theft (BEAT) team operating an unmarked police cruiser, came across a parked Honda Civic that had been reported stolen. The officer advised other members of the BEAT team – SO #1 and SO #2 – and parked his cruiser near the Civic to keep watch on it.
At about 3:10 p.m., the Complainant emerged from one of the nearby residences and walked in the direction of the Honda Civic. He made his way past the Civic towards WO #1’s vehicle and noticed WO #1 in the back seat. Within moments, he was confronted by the officer telling him he was under arrest.
Aware that he had been made out, WO #1 radioed SO #1 and SO #2, exited his vehicle and advised the Complainant he was under arrest. The Complainant fled and the officer chased after him towards a van. The two exchanged words in a brief standoff by the van – WO #1 repeating the Complainant was under arrest and directing that he show his hands, and the Complainant arguing he had done nothing wrong – before the Complainant continued his flight. The officer caught up to him, and tackled him to the ground.
Though what followed on the ground is the subject of controversy in the evidence, it is clear that SO #1 and SO #2 joined WO #1 and assisted in handcuffing the Complainant after he was struck in the back of the head and subjected to several CEW discharges.
Following his arrest, the Complainant was taken from the scene to hospital in ambulance and diagnosed with a fractured left wrist.
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 GPS officers on October 6, 2023. The SIU was notified of the incident and initiated an investigation. Two GPS officers were identified as 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 subject official 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.
WO #1 says he observed the Complainant open the driver’s door of the Honda Civic and lean inside before making his way to the officer’s vehicle. And there is other evidence that the Complainant first travelled to the Honda before his attention was drawn to WO #1 inside the police vehicle. In the circumstances, I am satisfied the officer had grounds to arrest the Complainant for possession of stolen property.
With respect to the force brought to bear against the Complainant, I am unable to reasonably conclude that it was unlawful. There is an account proffered in the evidence that the force used to effect the Complainant’s arrest was excessive and the cause of his wrist fracture. Such a version of events would give rise to a claim of excessive force, but it would be unwise and unsafe to rest charges on it for a number of reasons, including contradictory evidence from an independent source.
WO #1 says the Complainant struggled against his arrest by kicking his feet, attempting to lift his body, and refusing to give up his arms. It was only after a strike to the head and several CEW discharges by SO #2 that the Complainant was sufficiently subdued to allow for his handcuffing. On this record, it would appear that that force used by the officers did not fall outside the range of what was reasonably necessary in the circumstances to effect the Complainant’s arrest.
In the final analysis, as there is no reason to believe that the evidence depicting excessive force is any likelier to be closer to the truth than the countervailing evidence, and some reason to doubt it, there is no basis for proceeding with criminal charges against the subject officials. The file is closed.
Date: February 2, 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.
WO #1 says he observed the Complainant open the driver’s door of the Honda Civic and lean inside before making his way to the officer’s vehicle. And there is other evidence that the Complainant first travelled to the Honda before his attention was drawn to WO #1 inside the police vehicle. In the circumstances, I am satisfied the officer had grounds to arrest the Complainant for possession of stolen property.
With respect to the force brought to bear against the Complainant, I am unable to reasonably conclude that it was unlawful. There is an account proffered in the evidence that the force used to effect the Complainant’s arrest was excessive and the cause of his wrist fracture. Such a version of events would give rise to a claim of excessive force, but it would be unwise and unsafe to rest charges on it for a number of reasons, including contradictory evidence from an independent source.
WO #1 says the Complainant struggled against his arrest by kicking his feet, attempting to lift his body, and refusing to give up his arms. It was only after a strike to the head and several CEW discharges by SO #2 that the Complainant was sufficiently subdued to allow for his handcuffing. On this record, it would appear that that force used by the officers did not fall outside the range of what was reasonably necessary in the circumstances to effect the Complainant’s arrest.
In the final analysis, as there is no reason to believe that the evidence depicting excessive force is any likelier to be closer to the truth than the countervailing evidence, and some reason to doubt it, there is no basis for proceeding with criminal charges against the subject officials. The file is closed.
Date: February 2, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Unless otherwise specified, 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.