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:

• 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 Personal 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.

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”).

Notification of the SIU[1]

On December 6, 2023, at 7:28 p.m., the Thunder Bay Police Service (TBPS) contacted the SIU with the following information.

On December 6, 2023, at approximately 6:30 p.m., TBPS police officers arrested the Complainant. The Complainant resisted arrest and was grounded. He complained of pain to his right shoulder and was taken to the Thunder Bay Regional Health Sciences Centre (TBRHSC) where he was diagnosed with a fractured right clavicle.

The Team

Date and time team dispatched: 2023/12/06 at 7:54 p.m.

Date and time SIU arrived on scene: 2023/12/07 at 7:42 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 reviewed

The Complainant was interviewed on December 7, 2023.

Subject Official (SO)

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

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Interviewed; notes received and reviewed

The witness officials were interviewed on December 14, 2023.

The Scene

The events in question transpired in and around the intersection of Court Street North and River Street, Thunder Bay.

Court Street ran in a northeast/southwest direction, and River Street ran in a northwest/southeast direction.

Video/Audio/Photographic Evidence[2]

Body-worn Camera (BWC) Footage – WO #3

On December 6, 2023, at 3:31 p.m., the video started with a street view from the passenger seat of a TBPS police vehicle [now known to be a fully marked police vehicle]. The vehicle travelled northbound on Court Street North.

At 3:32 p.m., the police vehicle stopped just south of the intersection of Court Street North and River Street. WO #3 and the SO exited the police vehicle. A man - the Complainant - ran northbound on the westside of Court Street North and turned to the left [now known to be westbound on River Street]. The SO and WO #1 chased after the Complainant. About ten metres from the corner of Court Street North and River Street, the Complainant ran across River Street in a northwest direction.

The SO grabbed the Complainant with both arms around his upper torso. The Complainant fell forward and the SO fell on top of him. The SO’s momentum caused him to continue to travel in a forward motion over top of the Complainant. The SO ended up about a metre in front of the Complainant on the street.

WO #1 and WO #3 approached the Complainant from the east and WO #2 approached from the west. WO #1 knelt to the ground and took hold of the Complainant and WO #2 knelt and took hold of the Complainant while the SO slid his legs around the Complainant’s shoulders. The Complainant was on his stomach. The Complainant moaned and said, “Ow, ow, it’s hurting.” A police officer said, “Put your hands behind your back.” The Complainant said, “I was only running…I was only running, I wasn’t resisting, man.” WO #1 removed a pair of handcuffs and handcuffed the Complainant’s hands behind his back. Two police officers said in unison, “Running is resisting.”

WO #1 pulled the Complainant by his right elbow with his left hand, and WO #2 pulled the Complainant by the left arm to make the Complainant stand, but the Complainant dropped down a bit. WO #2 and WO #1 pulled on the Complainant again to make him stand. The Complainant said, “Ow, my face.” WO #2 and WO #1 escorted the Complainant to the SO’s police vehicle. WO #1 held the Complainant by his right elbow and WO #2 held the Complainant by his left elbow. The Complainant bowed his head forward and kept dropping down as he walked.

The Complainant arrived at the side of the police vehicle and said, “I have a leg injury though.” The Complainant dropped his knees again and the police officers directed the Complainant to stand up. WO #1 said, “Excuse me, you ran, so you got no fucking leg injury.” The Complainant dropped his knees and, as WO #2 and WO #1 pulled on the Complainant’s arms to stand him up, his head moved forward and struck the rear driver’s side window. The police officers told the Complainant to stand. WO #1 and WO #2 performed a pat-down search on the Complainant while the Complainant rested his head on the rear driver’s side window. The Complainant said, “Ow, my hip, I got a broken fucking hip, bro.” WO #1 said, “Yeah, well you ran fine.”

At 3:34 p.m., WO #1 assisted the Complainant into the rear driver’s side seat of the police vehicle.

BWC Footage – the SO

On December 6, 2023, at 3:31 p.m., the video started with a street view from the driver’s seat of a TBPS police vehicle [now known to be a fully marked police vehicle]. The vehicle travelled northbound on Court Street North. The SO subsequently said, “Stop, you’re under arrest,” and he ran towards the Complainant, who ran northbound on Court Street North and turned to his left. The SO shouted, “You have a warrant.” The Complainant dropped a black backpack from his back.

At 3:32:20 p.m., the SO approached the back of the Complainant.

At 3:32:23 p.m., the SO was on the ground on his left side and the camera pointed along River Street [now known to be eastbound]. The SO turned around and observed that the Complainant was on the street on his stomach flanked by WO #2 and WO #1. WO #3 stood at the right side of the Complainant.

WO #3 walked eastbound and picked up the Complainant’s discarded backpack, after which he continued to walk eastbound and retrieved a second shoulder bag from a woman. WO #2 and WO #1 assisted the Complainant to his feet by his arms.

Communications Recordings

On December 6, 2023, at 3:33 p.m., a TBPS unit [now known to be WO #3] informed the dispatcher he was at Court Street and River Street with the Complainant, whom he had in custody and had arrested for outstanding warrants and resist arrest. The dispatcher informed WO #3 that the Complainant was unpredictable and violent, and could move his handcuffs. WO #3 subsequently reported he was en route to the hospital with the Complainant. The dispatcher informed WO #3 that the Complainant had warrants for driving while suspended, operation while impaired, and fail to comply with probation.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TBPS between December 7, 2023, and February 5, 2024:

• Policy - Arrest, Release, Detention;
• Policy - Use of Force;
• Bench Warrant - Executed;
• Warrant Arrest of Defendant – Provincial Offences Act - Executed;
• Booking footage;
• BWC footage;
• Communications recordings;
• Computer-assisted dispatch report;
• Notes – WO #1;
• Notes – WO #2;
• Notes – WO #3;
• Officer unit call-sign and cruiser numbers;
• History of Occurrences – Complainant;
• General Occurrence Report; and
• Use of Force Certification – the SO.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on December 18, 2023:

• The Complainant’s medical records from TBRHSC.

The material events in question, clear on the evidence collected by the SIU, may briefly be summarized. 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 December 6, 2023, WO #1 of the TBPS Break and Enter Unit met with the SO and his partner, WO #3, to seek their assistance in arresting a male. The male, the Complainant, was wanted on a bench warrant in relation to a driving offence and breach of probation. WO #1, in an unmarked vehicle, and the SO and WO #3, in their marked cruiser, travelled north on Court Street North and located the Complainant.

The Complainant was walking north on the west side of the road approaching River Street when he noticed the police officers as they brought their vehicles to a stop by the east curb of Court Street North. Told he was under arrest, the Complainant fled north on Court Street North and then west on River Street. He had crossed onto the roadway and travelled a short distance when he was tackled from behind by the SO. The two went to ground with the Complainant falling on his right side and the officer landing on top of him. The Complainant immediately called out in pain.

WO #1 and his partner, WO #2, were quickly beside the Complainant on the ground as the SO rolled off him. The officers took control of the Complainant’s arms and handcuffed them to the back.

Following his arrest, the Complainant was transported to hospital and diagnosed with a fractured right clavicle.

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.

The Complainant was seriously injured in the course of his arrest by TBPS officers on December 6, 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 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 was a warrant in effect authorizing the Complainant’s arrest and the officers were within their rights in seeking to take him into custody on that basis.

I am also satisfied that the SO used no more force than was necessary in effecting the Complainant’s arrest. At the time of the grounding, the Complainant was in full flight from police clearly attempting to evade apprehension. He was also known to the officers from prior encounters with the police to be violent and carry a firearm. On this record, it made sense to forcibly take the Complainant to the ground as the SO did. Doing so would bring the Complainant’s flight to an end while positioning the officers to better manage any further resistance from the Complainant and restrict his access to a possible weapon on his person.

In the result, while I accept that the Complainant’s clavicle was broken when he was grounded by the SO, I am unable to reasonably conclude that the injury was attributable to unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: April 4, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit