SIU Director’s Report - Case # 23-OCI-456
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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 32-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 32-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On November 2, 2023, at 8:56 a.m., the London Police Service (LPS) notified the SIU of an injury to the Complainant. According to the LPS, on November 2, 2023, at approximately 3:00 a.m., the LPS received a ‘break and enter in progress’ call for service from a home in the area of Commissioners Road West and Viscount Road, London. The occupants [two adults and two children] were woken by the Complainant, who had broken into the residence. Upon hearing the homeowner calling police, the Complainant fled the home with numerous stolen items. Officers converged in the area and located the Complainant behind a retail commercial plaza at 312 Commissioners Road West. Witness Official (WO) #1 confronted the Complainant and attempted to arrest him, and a violent struggle ensued. WO #1 continued his attempts while WO #2, the Subject Official (SO) and WO #3 arrived to assist. The police officers fought with the Complainant as he refused arrest and were eventually able to handcuff him and take him into custody. The Complainant was taken to the LPS Custody Unit and held for a bail hearing. He later complained of pain to his head and was taken to the Royal Victoria Regional Health Centre (RVRHC) where he was diagnosed with two skull fractures and a brain bleed on the left side. As none of the injuries were treatable, he was released back into the custody of LPS officers.
The Team
Date and time team dispatched: 11/03/2023 at 7:10 a.m.Date and time SIU arrived on scene: 11/03/2023 at 9:29 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
32-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on November 29, 2023.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed; notes received and reviewedWO #2 Interviewed; notes received and reviewed
WO #3 Interviewed; notes received and reviewed
WO #4 Interviewed; notes received and reviewed
WO #5 Interviewed; notes received and reviewed
The witness officials were interviewed between November 8, 2023, and January 11, 2024.
Evidence
The Scene
The events in question transpired on and around a paved laneway that accessed the rear of the exterior grounds of a plaza located at 312 Commissioners Road West, London. The scene was illuminated with artificial light.
Figure 1 - The laneway where the incident occurred
Video/Audio/Photographic Evidence [2]
Video Footage – 312 Commissioners Road West
Starting at about 5:06:14 a.m., November 2, 2023, the Complainant was captured walking to the back of the plaza while pushing a bicycle. WO #1 was driving a marked police vehicle and slowly followed behind. WO #1 activated the emergency roof lights and the Complainant stopped, looked back and leaned the bicycle against the wall. WO #1 approached the Complainant as he stood with his hands placed chest height against the wall. The officer removed the Complainant’s backpack from his back and placed it on the ground. The Complainant’s arms were by his side when he made a quarter-turn to his left and WO #1 pushed him chest first against the wall to handcuff him.
Starting at about 5:06:55 a.m., the Complainant made a sudden turn to his left and ran several steps before falling to the ground. WO #1 took hold of the Complainant and radioed dispatch. The Complainant stood up and WO #1 used his left shoulder to push him into the wall. The Complainant was physically resisting WO #1. He was bent over at the waist as WO #1 punched him three times with his right fist in the mid to lower body. The Complainant removed himself from the wall and spun around counterclockwise as WO #1 maintained a hold and spun with him. WO #1 used his body weight to force the Complainant to the ground and onto his back. The Complainant resisted WO #1. The Complainant rolled himself onto his stomach and partially onto his knees.
Starting at about 5:07:18 a.m., WO #2 arrived on scene. WO #1 appeared to assist the Complainant from his knees to a standing position. WO #1 had the Complainant’s arms behind his back as he spun him up against the wall. WO #2 assisted. The Complainant appeared to slowly lower himself to the ground as WO #2 and WO #1 retained a hold of him.
Starting at about 5:07:31 a.m., WO #3 and the SO arrived. As the SO approached, the Complainant stood up and appeared to push off with his legs forcing the release of the hold WO #2 and WO #1 had of him.
At about 5:07:35 a.m., the Complainant had his back exposed to the SO.
Starting at about 5:07:39 a.m., the SO put his arms around either side of the Complainant, lowered his centre of mass and, using his body weight, swung the Complainant around clockwise and hard onto the ground. The Complainant impacted on his left side, and the momentum caused the SO to fall and land beside the Complainant.
Starting at about 5:07:42 a.m., the SO mounted the Complainant’s back with a leg on either side of him. The Complainant remained on his left side as the SO was mounted on his back and WO #3 by his right upper torso.
At about 5:09:25 a.m., the Complainant was handcuffed and assisted to a standing position.
At about 5:09:41 a.m., the Complainant was walked out of camera view.
Police Communications Recordings
At 4:55 a.m., November 2, 2023, LPS Communications Centre dispatched police officers on information that a female homeowner was sleeping on the couch and woke to find the Complainant standing over her.At 5:01 a.m., dispatch indicated the Complainant had fled from the residence and provided a physical description of him. He was reported to have stolen clothing, vehicle keys and a bicycle.
At 5:06 a.m., WO #1 located the Complainant at the rear of a plaza. The radio transmission was distorted suggesting WO #1 was physically engaged.
At 5:08 a.m., the Complainant was reported to be in custody.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the LPS on November 20, 2023:- Names and roles of involved police officers;
- Computer-assisted dispatch report;
- Arrest Report/Crown Brief Synopsis;
- Communications Recordings;
- Duty Book Notes – WO #1;
- Duty Book Notes – WO #2;
- Duty Book Notes – WO #3;
- Duty Book Notes – WO #4;
- Duty Book Notes – WO #5;
- Policy - Use of Force; and
- Policy - Arrest.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources:- The Complainant’s medical records from RVRHC, received December 15, 2023; and
- Video footage from 312 Commissioners Road West, received November 9, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and police officers who partook in his arrest, and video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.
In the morning of November 2, 2023, LPS received a 911 call about a break and enter in progress at a home in the area of Commissioners Road West and Viscount Road, London. The caller’s wife was said to have woken with a stranger standing over her. The caller would further provide a description of the intruder and note that he had left the residence having stolen some clothes, a bicycle and keys to a vehicle. Officers were dispatched to the area.
WO #1 located a male – the Complainant – who fit the description of the break and enter suspect. He was pushing a bicycle northwards on a paved laneway west of the plaza at 312 Commissioners Road West. The officer drove towards him and stopped his cruiser before exiting and calling-out to the Complainant. The Complainant leaned the bike against the plaza wall and placed his hands up as WO #1 approached him from behind. The officer was attempting to handcuff his hands behind the back when the Complainant broke free and ran northwards. He took several steps, tripped and fell. WO #1 grabbed hold of him as the Complainant attempted to right himself, pressed him into the wall, and delivered three right-handed punches to the body before taking him to ground. The officer proceeded to lift the Complainant up and press him face-first against the wall again. It was at this time that WO #2 arrived on scene and intervened in the struggle.
WO #2 took the Complainant’s left arm and WO #1 had hold of his right arm as the parties continued to struggle. This continued for several seconds before the SO and his partner, WO #3, arrived on scene. The former exited their cruiser and ran towards the scuffle, grabbing the Complainant from behind and throwing him to the ground.
The struggle continued on the ground as the officers had difficulty securing the Complainant’s left arm. WO #2 observed a knife in one of the Complainant’s pockets and alerted the other officers, after which WO #3 delivered multiple punches to the head and the SO struck out with several knees and punches of his own. Shortly, the Complainant’s arms were controlled and handcuffed behind the back.
The Complainant was transported to hospital following his arrest and diagnosed with a fractured left cheekbone and brain bleed.
In the morning of November 2, 2023, LPS received a 911 call about a break and enter in progress at a home in the area of Commissioners Road West and Viscount Road, London. The caller’s wife was said to have woken with a stranger standing over her. The caller would further provide a description of the intruder and note that he had left the residence having stolen some clothes, a bicycle and keys to a vehicle. Officers were dispatched to the area.
WO #1 located a male – the Complainant – who fit the description of the break and enter suspect. He was pushing a bicycle northwards on a paved laneway west of the plaza at 312 Commissioners Road West. The officer drove towards him and stopped his cruiser before exiting and calling-out to the Complainant. The Complainant leaned the bike against the plaza wall and placed his hands up as WO #1 approached him from behind. The officer was attempting to handcuff his hands behind the back when the Complainant broke free and ran northwards. He took several steps, tripped and fell. WO #1 grabbed hold of him as the Complainant attempted to right himself, pressed him into the wall, and delivered three right-handed punches to the body before taking him to ground. The officer proceeded to lift the Complainant up and press him face-first against the wall again. It was at this time that WO #2 arrived on scene and intervened in the struggle.
WO #2 took the Complainant’s left arm and WO #1 had hold of his right arm as the parties continued to struggle. This continued for several seconds before the SO and his partner, WO #3, arrived on scene. The former exited their cruiser and ran towards the scuffle, grabbing the Complainant from behind and throwing him to the ground.
The struggle continued on the ground as the officers had difficulty securing the Complainant’s left arm. WO #2 observed a knife in one of the Complainant’s pockets and alerted the other officers, after which WO #3 delivered multiple punches to the head and the SO struck out with several knees and punches of his own. Shortly, the Complainant’s arms were controlled and handcuffed behind the back.
The Complainant was transported to hospital following his arrest and diagnosed with a fractured left cheekbone and brain bleed.
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 LPS officers on November 2, 2023. 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 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.
The Complainant fit the description of the break and enter suspect described in the 911 call and was located near the site of the offence. In the circumstances, I am satisfied that WO #1 and the officers who followed were within their rights in seeking to take the Complainant into custody.
I am also satisfied that the force used by the police in aid of the Complainant’s arrest was justified. The officers had reason to believe that the Complainant had just committed a serious offence and it was important in the interests of public safety that he be apprehended as quickly as possible. Given the nature of the offence, they would also have been concerned that the Complainant was carrying tools capable of being used as weapons. On this record, when the Complainant resisted arrest and attempted to escape, WO #1 and the officers who would later intervene had reason to respond with a degree of force. The punches initially struck by WO #1 cannot be described as excessive particularly as the Complainant continued to struggle after they were delivered. The most graphic force used came by way of the SO when he picked the Complainant up from behind and tossed him violently to the ground. Here, too, I am unable to reasonably conclude that the takedown constituted unreasonable force. The Complainant had managed to that point to keep two officers – WO #1 and WO #2 – at bay, and it made sense to want to bring him to ground where any further resistance could be better managed. The battle between the parties was still very much a live one at that moment and the SO cannot be faulted for acting as he did in the heat of the moment. Finally, the punches and knee strikes subsequently delivered by the SO and WO #3 also fell within the remit of authorized force. At around the time they were struck, there was cause to be concerned that the Complainant might be attempting to access a knife in his possession. The officers were entitled to act with decisive force to prevent that contingency materializing, and they did so without resort to any weapons. No further force was brought to bear after the Complainant was handcuffed.
In the result, while I accept that the Complainant’s injuries were incurred in the altercation that marked his arrest, it is not the case that they were attributable to any unlawful conduct by the involved officers. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: March 1, 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 Complainant fit the description of the break and enter suspect described in the 911 call and was located near the site of the offence. In the circumstances, I am satisfied that WO #1 and the officers who followed were within their rights in seeking to take the Complainant into custody.
I am also satisfied that the force used by the police in aid of the Complainant’s arrest was justified. The officers had reason to believe that the Complainant had just committed a serious offence and it was important in the interests of public safety that he be apprehended as quickly as possible. Given the nature of the offence, they would also have been concerned that the Complainant was carrying tools capable of being used as weapons. On this record, when the Complainant resisted arrest and attempted to escape, WO #1 and the officers who would later intervene had reason to respond with a degree of force. The punches initially struck by WO #1 cannot be described as excessive particularly as the Complainant continued to struggle after they were delivered. The most graphic force used came by way of the SO when he picked the Complainant up from behind and tossed him violently to the ground. Here, too, I am unable to reasonably conclude that the takedown constituted unreasonable force. The Complainant had managed to that point to keep two officers – WO #1 and WO #2 – at bay, and it made sense to want to bring him to ground where any further resistance could be better managed. The battle between the parties was still very much a live one at that moment and the SO cannot be faulted for acting as he did in the heat of the moment. Finally, the punches and knee strikes subsequently delivered by the SO and WO #3 also fell within the remit of authorized force. At around the time they were struck, there was cause to be concerned that the Complainant might be attempting to access a knife in his possession. The officers were entitled to act with decisive force to prevent that contingency materializing, and they did so without resort to any weapons. No further force was brought to bear after the Complainant was handcuffed.
In the result, while I accept that the Complainant’s injuries were incurred in the altercation that marked his arrest, it is not the case that they were attributable to any unlawful conduct by the involved officers. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: March 1, 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 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.