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 39-year-old man (the “Complainant”).

Notification of the SIU [1]

On Thursday, October 26, 2023, at 8:32 a.m., the London Police Service (LPS) contacted the SIU with the following information.

On October 25, 2023, LPS officers arrested the Complainant in the area of Berkshire Drive and Springbank Drive. Officers on surveillance had spotted a white SUV and recognized the Complainant, who was wanted. Because of his criminal background, the assistance of the Emergency Response Unit (ERU) was sought. At 11:22 a.m., ERU officers confronted the Complainant, who took a fighting stance and engaged with the ERU officers. The Complainant was grounded, arrested, and taken to the LPS detention unit. At about 4:51 p.m., he complained of soreness to his left wrist. Emergency Medical Services (EMS) took the Complainant to the London Health Sciences Centre (LHSC) Victoria Hospital where he was diagnosed with a fractured left wrist.

The Team

Date and time team dispatched: 2023/10/26 at 9:00 a.m.

Date and time SIU arrived on scene: 2023/10/26 at 9:29 a.m.

Number of SIU Investigators assigned: 3

The Scene

This incident occurred in the parking lot outside an address in the area of Springbank Drive and Berkshire Drive, London.

Video/Audio/Photographic Evidence [2]

Communications Recordings / Computer-aided Dispatch (CAD) Report

On December 19, 2023, at 12:03 p.m., the LPS provided the communications recordings and CAD Report to the SIU.

On October 25, 2023, WO #2 and WO #3, and WO #1, were on patrol and came across a white Ford Explorer with a fake paper licence plate. The driver was identified as the Complainant, who was known to LPS and considered dangerous to police. There was an outstanding warrant for his arrest. Officers followed the Complainant while calling for the assistance of the ERU. A short time later, an ERU officer contacted WO #1 to advise that they had left in a minivan as a high-risk takedown was not an option; they wanted to surprise the Complainant on foot. WO #1 agreed this was the best option.

About three minutes later, the Complainant was noted to be driving the Explorer into the parking lot at Wonderland Road South where a passenger got out from the Explorer and into another vehicle. After about two minutes, both vehicles left Wonderland Road South and travelled to the parking lot in the area of Springbank Drive and Berkshire Drive, followed loosely by WO #1. Moments later, WO #1 broadcast that the plate on the Explorer appeared to be made of paper. Further, he indicated the Complainant had an outstanding warrant for ‘failing to comply’.

WO #1 kept an eye on the Explorer while ERU were en route.

LPS ERU arrived, went to the rear of the Explorer, and engaged the Complainant.

The next broadcast indicated that all parties were in custody.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from LPS between October 29, 2023, and February 5, 2024:

• General Occurrence Reports;
• Notes and statement - WO #1;
• Notes and statement - WO #2;
• Notes and statement - WO #3;
• Copy of the warrant - Complainant’s arrest;
• Communications recordings;
• CAD Report; and
• LPS Specialized Investigations Policy – Tactical Units.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on November 5, 2023:

• The Complainant’s medical records from LHSC Victoria Hospital.

The evidence collected by the SIU, including interviews with the Complainant and SO #1, gives rise to the following scenario. As was their legal right, SO #2 and SO #3 did not agree an interview with the SIU or the release of their notes.

In the morning of October 25, 2023, plainclothes officers with the LPS Criminal Investigation Bureau – WO #1, and WO #2 and WO #3 – were in an unmarked police vehicle when they observed a Ford Explorer being operated by the Complainant. They came to believe that the vehicle was stolen – it appeared to have paper licence plates - and decided to arrest the Complainant. Knowing the Complainant to have firearm-related charges in his past, the officers decided to enlist the services of the ERU to take him into custody.

SO #1, SO #2 and SO #3, members of the ERU, were assigned to the task. Operating an unmarked minivan, the officers received word from the plainclothes officers that the Complainant had parked the Ford Explorer in a parking space south of a building in the area of Springbank Drive and Berkshire Drive. Arriving on scene, SO #2 positioned the van behind the Ford Explorer to prevent its escape before the officers exited to confront the Complainant.

The Complainant was by the open rear hatch of the Explorer when he noticed the officers rush towards him. He was tackled to the ground and eventually handcuffed behind the back.

Following his arrest, the Complainant was taken to the LPS detention facility where he complained of injury. He was subsequently transported to hospital and diagnosed with a fractured left wrist.

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,

The Complainant was seriously injured in the course of his arrest by LPS officers on October 25, 2023. The SIU was notified of the incident and initiated an investigation naming SO #1, SO #2 and SO #3 the subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials committed a criminal offence in connection with the Complainant’s arrest and 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.

I am satisfied that the ERU officers were engaged in the lawful execution of their duties when they sought to arrest the Complainant. By that time, they had information to believe that the Complainant was in possession of a stolen vehicle and was subject to an outstanding arrest warrant.

With respect to the force used against the Complainant by the ERU officers, the evidence falls short of reasonably establishing it was unlawful. It is alleged that the Complainant was brought down and struck with kicks and punches though he did not resist his arrest at any time. That evidence finds some support in the account of an eyewitness, who was with the Complainant and claims to have observed the Complainant on the ground being kicked in the head for no reason. If true, this evidence would give rise to a claim of excessive force, but it would be unwise and unsafe to rest charges on it in light of the countervailing evidence of the police officers. SO #1, though not observing a kick, did describe SO #3 punching the Complainant in the head while on the ground. That punch, however, was delivered as the officers were attempting to subdue a struggling Complainant who was kicking his feet at the officers and reaching with an arm towards his waist. Following the punch, the officers were able to wrestle control of the Complainant’s arms behind the back and secure him in handcuffs. On the evidence proffered by SO #1 and the Criminal Investigation Bureau officers, the ERU officers were within their rights in downing the Complainant, whom they had reason to believe might be armed, and striking him in the head to deter what they reasonably feared was the Complainant attempting to access a weapon on his person. Given the conflict in the evidence, and there being nothing to tip the balance in favour of one rendition of events over the other, the totality of the evidence is insufficiently cogent to warrant being put to the test by a court.

For the foregoing reasons, while I accept that the Complainant’s injury was incurred as a result of the force brought to bear by one or more of the subject officials, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: February 22, 2024

Electronically approved by

Joseph Martino
Director
Special Investigations Unit