Director's Report Details

SIU Director’s Report - Case # 23-OCI-467

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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.

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. 
Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 
  • 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 39-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 10, 2023, at 6:30 p.m., the Halton Regional Police Service (HRPS) notified the SIU of an injury to the Complainant.

According to the HRPS, on November 10, 2023, at approximately 1:27 p.m., the subject official (SO) was patrolling around 3300 South Service Road, Oakville, near a Home Depot. The officer was actively looking for a stolen vehicle when he saw a man [later identified as the Complainant] and a woman on a bicycle with a buggy full of tools. Thinking that was suspicious, the SO stopped to talk to the pair. The Complainant attempted to throw the bicycle at him before he took off. The Complainant subsequently returned and was met with a conducted energy weapon (CEW) discharge by the SO that caused him to fall back and hit his head. The Complainant was initially taken to Joseph Brant Hospital (JBH) for a scrape to his face, but he was admitted with a brain bleed. The CEW was secured at the HRPS station in Burlington.

The Team

Date and time team dispatched: 2023/11/10 at 7:51 p.m.

Date and time SIU arrived on scene: 2023/11/10 at 9:25 p.m.

Number of SIU Investigators assigned: 2
 
Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

39-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on November 16, 2023.

Civilian Witness (CW)

CW Interviewed

The civilian witness was interviewed on November 10, 2023.

Subject Official (SO)

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Official (WO)

WO Interviewed; notes received and reviewed

The witness official was interviewed on November 13, 2023.

Service Employee Witnesses (SEW)

SEW #1 Interviewed; notes received and reviewed
SEW #2 Interviewed; notes received and reviewed

The service employee witnesses were interviewed on November 13, 2023.

Evidence

The Scene

The events in question transpired east of the east wall of the Home Depot located at 3300 South Service Road West, Oakville.

Forensic Evidence

CEW Deployment Data – The SO

On November 10, 2023, at 1:29:01 p.m.,[2] the trigger of the weapon was pulled and energy was discharged for six seconds.

On November 10, 2023, 1:29:09 p.m., the trigger of the weapon was pulled and energy was discharged for eight seconds.

On November 10, 2023, at 1:29:17 p.m., the trigger of the weapon was pulled and energy was discharged for nine seconds.


Figure 1 – The SO’s CEW

Video/Audio/Photographic Evidence[3]

Video Footage – Business #1

Starting at about 1:20 p.m., November 10, 2023, the CW was seen riding a bicycle pulling a small trailer northbound in the rear lot on the east side of the Home Depot at 3300 South Service Road West. She stopped at the northeast corner of Home Depot, got off the bicycle, and leaned it on a skid of product about 1.5 metres in height.

Starting at about 1:24 p.m., a fully marked HRPS SUV [now known to be operated by the SO] travelled north in the rear of 3280 South Service Road West from Wyecroft Road. The police vehicle went out of sight at the bottom of the screen [now known to be an exit to South Service Road]. The Complainant appeared from the bottom of the screen (east) as he rode westbound across the lot 3280 South Service Road West. The Complainant went over the curb, and onto the lot of the Home Depot towards the northeast corner of the building where the CW was located.

Starting at about 1:25 p.m., the SO’s cruiser re-entered the screen travelling south in the driveway behind the Home Depot. The vehicle passed the Complainant and the CW and continued a distance before it turned around, travelled north and came to a stop beside the Complainant and the CW at the northeast corner of the Home Depot. The SO and SEW #1 exited the cruiser and walked a couple of metres over to the Complainant and the CW.

The Complainant stood on the right side of his bicycle to the north of the CW, who stood next to a skid and the small trailer she had earlier unhooked from her bicycle. The SO stood to the east of the Complainant and the CW. SEW #1 stood to the left of the SO. The SO appeared to engage in conversation with the Complainant and the CW. The Complainant moved to the left side of the bicycle and towards the small trailer. He held the bicycle upright with his left hand and faced the SO. The SO moved a short distance to the northwest.

Starting at about 1:26:35 p.m., the SO assumed a stance consistent with having drawn his CEW. He had his hands together and his arms extended in front pointing the CEW towards the Complainant and the CW. The Complainant moved slightly further away from the SO towards the building. The SO stepped to his right and towards the Complainant. The Complainant’s bicycle lay on the ground in between them. The SO still had the CEW pointed at the Complainant and the CW. The SO appeared to use his left hand to activate his portable radio microphone on his chest while his right hand remained extended and pointed towards the Complainant and the CW. The SO made a couple of motions with his left hand consistent with pointing at the ground.

Starting at about 1:27:24 p.m., the Complainant picked up his bicycle. Two seconds later, the SO took a step backwards. There appeared to be wires hanging from the SO’s CEW as if he had deployed it. The Complainant stepped to the east and dragged the bicycle behind him. SEW #1 took a couple of steps backwards to the northeast. The CW knelt on the ground. The Complainant pulled the bicycle towards himself into an upright position and then turned it counterclockwise before pushing it in a southeast direction away from the SO and SEW #1.
 
The Complainant started to run, southbound, behind the Home Depot, while pushing the bicycle with him. The SO and SEW #1 started to run after the Complainant. SEW #1 quickly stopped and ran back to the CW. The SO ran after the Complainant and, about two seconds later, the Complainant hopped onto the bicycle and started to ride it southbound along the back of the Home Depot. The SO pointed his CEW at the Complainant. The Complainant’s body stiffened, and he and the bicycle fell to the ground and rolled. This was later measured on Google Maps to be about 20 metres south of where the Complainant jumped on the bicycle. The SO reached the Complainant, threw the bicycle to the side, and called on his radio.
Starting at about 1:30 p.m., a second police vehicle [now known to be driven by the WO with SEW #2 as a passenger] travelled northbound behind Home Depot with its emergency lights activated. It stopped where the SO and the Complainant were located. SEW #2 exited and ran towards SEW #1. The police vehicle then followed in a northward direction.
 
Starting at about 1:40 p.m., an ambulance arrived on scene.

Video Footage – Business #2

There were technical issues with the footage, which could not be played.

Communications Recordings

On October 10, 2023, starting at about 1:27 p.m., the SO asked the dispatcher to place him on a ‘person stop’. His location was the Home Depot. He had two parties [now known to be the Complainant and the CW] at “Taser” point. He recognized the Complainant and the CW, and believed they were both wanted by HRPS. The WO was placed on the call to assist.
 
Starting at about 1:27:51 p.m., the SO stated that he had deployed his CEW, and the Complainant was in custody. He requested EMS. The Complainant injured himself when he fell off his bicycle after the CEW was deployed. The SO stated the Complainant briefly lost consciousness and was bleeding from the face.
 
Starting at about 1:36 p.m., the dispatcher confirmed the Complainant and the CW were both wanted on warrants by the HRPS.
 
Starting at about 2:04 p.m., an officer stated the Complainant was being transported to hospital, and another officer was inside the ambulance.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the HRPS between November 11, 2023, and November 15, 2023:
  • Communications recordings;
  • Call History;
  • List of call-signs;
  • Notes – SEW #1;
  • Notes – the WO;
  • Notes – SEW #2;
  • Copy of Bench Warrant (the Complainant);
  • Policy - Use of Force Policy;
  • Policy - Arrest;
  • List of involved parties;
  • List of charges;
  • Occurrence Report; and
  • Use of Force training – the SO

Materials Obtained from Other Sources

The SIU obtained the following records from other sources:
  • Video footage from Business #1, received November 15, 2023;
  • Video footage from Business #2, received November 15, 2023;
  • The Complainant’s medical records from JBH, received November 20, 2023; and
  • The Complainant’s medical records from Milton District Hospital, received January 3, 2024.

Incident Narrative

The evidence collected by the SIU, including an interview with the Complainant and video footage that captured parts of the events in question, 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 afternoon of November 10, 2023, the SO was on patrol in his cruiser with a cadet – SEW #1 – in the front passenger seat. They were on the lookout for a stolen vehicle with a flat tire that had reportedly exited Queen Elizabeth Way at Burloak Drive. Suspecting that the vehicle might have travelled to an industrial area to discretely repair the flat tire, the officers made their way to Burloak Drive and Wyecroft Road. It was there that they came upon two cyclists by the northeast corner of the Home Depot at 3300 South Service Road West, Oakville.

The cyclists were the Complainant and the CW. They had located an external electrical outlet and were intending to use it to recharge a laptop. Hitched to the CW’s bicycle was a small trailer with a bag in it and other items.

The SO stopped his cruiser just west of the pair and he and SEW #1 exited. The Complainant refused to identify himself when asked but was recognized by the SO, who was aware that he was subject to an outstanding bench warrant on charges of break and enter. The officer drew his CEW and ordered the CW and the Complainant to the ground. The CW complied but the Complainant refused to do so. He was confrontational with the SO and started rummaging in the bag from the bicycle trailer. Concerned that the Complainant was reaching for a weapon, the officer told him to stop and warned that he would discharge his CEW if he continued. Shortly thereafter, the Complainant pulled his bicycle around and ran with it southward away from the SO and SEW #1.
The SO had fired his CEW with no effect just as the Complainant was gathering his bicycle. The officer ran after the Complainant and fired his CEW again. The Complainant was on his bicycle at the time. His body locked-up and he fell striking his head on the pavement. The SO ran up to the Complainant on the ground, deployed his CEW again, and proceeded to handcuff him behind the back.
 
The Complainant was transported from the scene to hospital in ambulance. He would be diagnosed with an un-displaced linear fracture of the greater wing of the right sphenoid with a complex acute hematoma in the anterior portion of the middle cranial fossa with complexity suggesting an epidural hematoma.

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 in Oakville on November 10, 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.


I am satisfied that the SO was within his rights in seeking to take the Complainant into custody at the point he fired his CEW. In effect at the time was a warrant for the Complainant’s arrest on charges of break and enter.

With respect to the force used by the SO in aid of the Complainant’s arrest, I am not satisfied on reasonable grounds that it was unlawful. The officer had cause to be concerned about his safety and the safety of SEW #1 when he confronted the Complainant. The Complainant was wanted on charges of break and enter, had refused to lower himself to the ground at the officer’s direction, and persisted in poking inside a bag despite being told to stop. In the circumstances, it would appear the officer’s use of the CEW was a tactic reasonably available to the SO when the Complainant first fled from the scene. Arguably, the officer might have opted then or at some point prior to the initial CEW discharge to physically engage the Complainant to take him into custody. The officer was much bigger than the Complainant and he was accompanied by a cadet. The fact that he did not do so, however, was a reasonable judgment on his part. SEW #1 was not a fully trained officer and the SO would have also been concerned about the Complainant’s access to weapons given his pending charges and behaviour with the bag.[4]
 
The second and third CEW discharges are subject to legitimate scrutiny but fall short, in my view, of reasonably constituting excessive force. On the one hand, the Complainant, now on his bicycle and pedaling fast to get away, was in a precarious position. He was moving at some speed and perched on a conveyance. Neuromuscular lock-up carried with it a greater risk of serious injury in the circumstances. And that is precisely what materialized – the Complainant’s body stiffened upon being struck by the CEW and he fell helplessly off the bike, his head sustaining serious injury from striking the ground. Presumably, this is the reason that officers are prohibited from discharging their CEWs at cyclists under HRPS policy. On the other hand, the Complainant was wanted on serious charges, had failed to appear at a court date (giving rise to the bench warrant in question) and would have made good his escape had the SO not used the CEW. On balance, and mindful that police policy, though an important barometer of what might or might not be reasonable force in a set of circumstances, is not determinative of criminal liability, I am unable to reasonably conclude with any confidence that the SO acted beyond the remit of the criminal law. The third CEW discharge, occurring after the Complainant had fallen, was justified, in my view, for substantially the same reasons as the first. The Complainant, who had fled with great determination, had yet to be restrained and there remained the possibility of having to deal with further resistance on his part.
 
For the foregoing reasons, there is no basis for proceeding with criminal charges in this case against the SO. The file is closed.


Date: March 8, 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]
  • 4) Indeed, a knife and other break and enter tools were located in a search of the bag following the Complainant’s arrest. [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.