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 injury of a 36-year-old man (the “Complainant”).

Notification of the SIU [1]

On October 22, 2023, at 5:31 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

According to the OPP, on October 21, 2023, the Complainant was arrested on outstanding warrants during a ‘domestic call’ in Orillia. He was subsequently transferred to Nottawasaga OPP from Orillia OPP Detachment. At 3:00 p.m., the Complainant complained that he needed medication for a previous head injury. He was transported to the Stevenson Memorial Hospital (SMH) in Alliston. En route, the Complainant moved his handcuffs to the front of his body and police officers stopped the police vehicle to return the handcuffs to the back. He claimed a police officer closed the door on his head, and he refused to be moved unless by ambulance. The Complainant was then transported to hospital via ambulance and diagnosed with a possible concussion.

The Scene

The events in question transpired in and around the back seat of a fully marked OPP police vehicle, a Dodge Charger, as it was stopped in the garage of the OPP Nottawasaga Detachment.

Video/Audio/Photographic Evidence [2]

In-car Camera System (ICCS) Footage

Starting at about 9:42 p.m. on the recording, [3] October 21, 2023, the Complainant was captured lying on his right side on the back seat of a stopped police vehicle. The Complainant was wearing a dark grey prison jumpsuit. His hands were cuffed behind his back and under his buttocks. Two officers [now known to be WO #2 and the SO] stood outside the open rear driver side door and appeared to be speaking with the Complainant. Their dialogue was indecipherable.

The officers closed the door and proceeded to the back of the vehicle. The Complainant sat up and maneuvered his handcuffed hands from behind his back to the front of his body. The two officers rushed back to stop the Complainant. While WO #2 spoke with the Complainant, the SO went around to the rear passenger side door. He opened the door and requested that the Complainant put his hands behind his back. He grabbed the Complainant and pulled him to the middle of the seat before making him lie on his back.

The Complainant complained that he could not fit in the back seat by lying down as the officers wanted. He also stated he could not return his hands behind his back. The SO moved the Complainant’s hands behind his back and informed him the incident was being recorded. The Complainant asked if he would be charged for moving his hands to his front, to which the SO said he might be charged if he continued resisting their commands. The officers turned the Complainant on his right side and made him lie down on the back seat. They pulled the Complainant's hands up behind his back. The Complainant complained he could not have his hands behind his back. He moved his hands to his bottom and put himself in a fetal position. His legs were oriented to the driver side door, and his head was positioned on the edge of the passenger side door.

The SO held the Complainant’s shoulder to prop him back into the vehicle and closed the door, which struck the top of the Complainant’s head. The Complainant said, "Now I need to go to the hospital. Now I need to go to the hospital.” The Complainant provided medical information about prior injuries and conditions impacting his brain, neck, and spinal cord, which he stated were aggravated by “slamming the door into my head”. The Complainant asked to speak with a supervisor and a lawyer. The SO said he “only closed the door”, to which the Complainant replied, "Yea, with my head out. I am glad this is recording. Thank you so much."

The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.

In the evening of October 21, 2023, the Complainant found himself in the back seat of a police cruiser parked in the garage of the OPP Nottawasaga Detachment. He had been arrested earlier in the day, following a domestic disturbance involving his partner, and lodged in a cell. The Complainant had asked to be taken to hospital for medication and was in the cruiser waiting to be transported.

The SO and his partner, WO #2, were to transport the Complainant. The latter had removed the Complainant from his cell and handcuffed his hands. Once in the cruiser, the officers noticed that the Complainant had managed to maneuver the handcuffs to the front of his body. The officers asked that he reposition them behind the back and then assisted in manipulating his body to facilitate him doing so. At one point, with the Complainant lying on his right side in the back seat compartment of the cruiser, his head towards the open rear passenger side door, the SO shut the door. The Complainant’s head was struck in the process.

The Complainant promptly indicated that he needed to go to the hospital. He noted that he had a prior brain condition and that the SO had hurt him by “slamming” his head with the door.

The officers entered the cruiser and the SO drove out of the garage en route to the hospital. Shortly thereafter, at the Complainant’s request, the SO pulled over and arranged for the attendance of an ambulance.

Paramedics arrived, loaded the Complainant into the ambulance, and took him to hospital. The Complainant was discharged but attended hospital again, at which time he was diagnosed with a concussion.

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,

Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

221 Every person who by criminal negligence causes bodily harm to another person is guilty of                     

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or                      (b) an offence punishable on summary conviction.

The Complainant was seriously injured on October 21, 2023, while in the custody of the OPP. The SIU was notified of the incident and initiated an investigation naming the SO 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.

There is a suggestion in the evidence that the SO intentionally slammed the door against the Complainant. Frustrated that the Complainant was not cooperating with the officers’ directions, the claim is that the SO acted with malice in striking the Complainant with the door. It might well be that the officer was frustrated with the Complainant, and that he even slammed the door out of frustration, but I am unable to reasonably conclude based on the evidence that the SO meant to strike the Complainant’s head. The officer denies that he intended to hit the Complainant. And the Complainant’s head was not so clearly outside of the door’s threshold as to belie the officer’s evidence. Rather, the video footage shows that the Complainant’s head was right at the cusp of the opening when the door closed. On this record, as there is no reason to believe that the incriminating evidence on this point is any likelier to be closer to the truth than that proffered by the SO, it would be unsafe and unwise to rest charges on it.

That said, if the SO did not intentionally apply force to the Complainant, was he nevertheless criminally negligent when he shut the rear passenger door? The evidence also falls short of reasonably establishing this ground of liability.

The offence of criminal negligence causing bodily harm, contrary to section 221 of the Criminal Code, is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the SO ought to have been more careful. The Complainant’s head was close enough to the door opening that he ought to have taken steps to ensure it was safe before shutting the door. In any event, because the Complainant’s head was not so clearly at risk of being struck, I am not reasonably satisfied that the SO’s misjudgment amounted to marked and substantial departure from a reasonable standard of care in the circumstances.

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


Date: February 15, 2024

Electronically approved by

Joseph Martino
Director
Special Investigations Unit