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 27-year-old man (the “Complainant”).

Notification of the SIU[1]

On February 1, 2024, at 5:57 p.m., the Thunder Bay Police Service (TBPS) notified the SIU of an injury to the Complainant.

According to the TBPS, on February 1, 2024, at 12:20 p.m., TBPS officers responded to a building [later identified to be near Arthur Street East] for complaints of criminal activity. Police officers came across a man [later identified as the Complainant]. The police officers attempted to arrest the Complainant for trespass. He provided a false name and fled from police officers. A conducted energy weapon (CEW) was deployed, and the Complainant was subdued. He was walked to the police cruiser where he smashed his head into the vehicle’s window two times. As Emergency Medical Services (EMS) were not available, police officers transported the Complainant to a hospital [later identified as the Thunder Bay Regional Health Center (TBRHC)]. He was diagnosed with a fracture to his nose.

The Team

Date and time team dispatched: 2024/02/02 at 11:48 a.m.

Date and time SIU arrived on scene: 2024/02/02 at 12:08 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on February 6, 2024.

Subject Officials (SO)

SO #1 Declined interview and to provide notes, as is the subject official’s legal right

SO #2 Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed

WO #2 Not interviewed; notes reviewed and interview deemed unnecessary

The witness official was interviewed on February 16, 2024.

The Scene

The events in question transpired in a basement hallway of an apartment building near Arthur Street East, Thunder Bay, and in and around a police cruiser parked outside the same building.

Forensic Evidence

CEW Deployment Data – SO #1

On February 1, 2024, the weapon was deployed in drive stun mode at the following times: at 12:21:35 p.m.[2] for 1.69 seconds; at 12:21:38 p.m. for 0.50 seconds; at 12:21:39 p.m. for 0.29 seconds; at 12:21:40 p.m. for 0.65 seconds; and, at 12:22:11 p.m. for 1.30 seconds.

The CEW was then deployed in probe mode at 12:22:51 p.m. for 4.91 seconds and at 12:23:02 p.m. for 4.93 seconds.

Video/Audio/Photographic Evidence[3]

Body-worn Camera (BWC) Footage

TBPS provided the SIU thirteen BWC recordings of their interaction with the Complainant on February 1, 2024.

The incident began at 12:18:15 p.m., February 1, 2024, in the basement hallway of the building near Arthur Street East and concluded at 12:42:05 p.m. with the Complainant being restrained to a hospital stretcher at TBRHC.

At 12:18:15 p.m., two police officers - SO #1 and SO #2 - arrived in the building hallway and spoke with a man who directed them to a yellow metal door.

At 12:18:34 p.m., SO #1 and SO #2 opened a yellow metal door into a cluttered hallway with five persons sitting on and near a mattress on the floor.

At 12:18:51 p.m., police officers advised the persons that they were all trespassing.

At 12:19:23 p.m., a man - the Complainant - verbally identified himself with an inaccurate name while others were getting their belongings together to leave the area.

At 12:19:33 p.m., the Complainant provided his year of birth which was inaccurate.

At 12:19:39 p.m., the Complainant advised he was just trying to leave.

At 12:19:58 p.m., the Complainant was detained as officers attempted to identify him.

At 12:20:32 p.m., the Complainant was told by police officers not to reach down for his bag as there was a knife laying right beside it.

At 12:20:44 p.m., police officers told the Complainant to stand still and do nothing.

At 12:21:09 p.m., a police officer told the Complainant that he had lied about his identity.

At 12:21:20 p.m., the Complainant was grounded by the two police officers.

At 12:21:24 p.m., police officers tried to gain control of the Complainant, who was sitting.

At 12:21:36 p.m., police officers struck the Complainant and a CEW was deployed.

At 12:21:48 p.m., the struggle continued.

At 12:21:57 p.m., the Complainant yelled at police officers. A CEW was deployed.

At 12:22:01 p.m., the Complainant stated, "You punched me in the fucking face!"

At 12:22:06 p.m., police officer stated, "Put your hands behind your back." The Complainant said, "I did not hit you."

At 12:22:20 p.m., the Complainant yelled, “Fuck you!" repeatedly at the police officers and rolled on his back facing the police officers.

At 12:22:30 p.m., one of the police officers yelled, “Stop!"

At 12:22:36 p.m., the Complainant said, "I did not trespass."

At 12:22:54 p.m., the Complainant struggled with police officers and a CEW was deployed.

At 12:23:02 p.m., a police officer stated, "Give me your hands!" the Complainant responded, "Just leave me alone."

At 12:23:13 p.m., the Complainant did not put his hands behind his back.

At 12:23:17 p.m., a third police officer arrived on scene.

At 12:23:56 p.m., a police officer updated communications, "We are still fighting.”

At 12:24:20 p.m., the Complainant was cuffed behind his back and communications was updated, "One in custody.”

At 12:25:25 p.m., the Complainant, still combative, was searched and held in place by three police officers.

At 12:25:29 p.m., the Complainant spat at the police officers.

At 12:27:11 p.m., three police officers escorted the Complainant down the sidewalk to a waiting police vehicle.

At 12:27:22 p.m., the Complainant kicked the police vehicle tire and smashed his forehead into the rear passenger side window, shattering the window.

At 12:27:24 p.m., the Complainant was down on his knees beside the police vehicle and was told he was under arrest for mischief as well.

At 12:27:32 p.m., the Complainant stated, “You smashed my head in, look what you just did to me."

At 12:27:35 p.m., an officer responded, "You did that to you."

At 12:28:12 p.m., the Complainant was placed on his back. He was pushed and pulled into the back seat, and continued to resist.

At 12:28:23 p.m., the Complainant was in the back seat, and the police vehicle door was closed.

At 12:28:31 p.m., a police officer stated, "We have to take him to the hospital, he has been tazed twice."

At 12:31:04 p.m., a police officer checked on the Complainant and stated, "He is still breathing but he is seizing.”

At 12:32:25 p.m., officers escorted the Complainant to hospital on high priority.

At 12:41:06 p.m., a police vehicle arrived in the ambulance bay at the hospital.

Computer-assisted Dispatch (CAD) Report

At 12:22 p.m., a police officer reported a fight with a man [later identified as the Complainant] in the basement.

At 12:23 p.m., the Complainant was tasered twice.

At 12:24 p.m., the Complainant was in custody.

At 12:27 p.m., the Complainant shattered the window of a police vehicle. He was bleeding from the forehead after he smashed his head against the window.

At 12:32 p.m., EMS was unavailable, and police officers would be transporting the Complainant to TBRHC.

At 12:34 p.m., the Complainant was having a seizure.

At 12:39 p.m., the Complainant was unresponsive in the police vehicle.

At 1:17 p.m., police officers were advised the Complainant was stable and conscious.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TBPS between February 5, 2024, and April 24, 2024:

• CAD report;
• Involved Official Attendance List;
• Communication recordings;
• Notes – WO #1;
• Notes – WO #2;
• General Occurrence Report;
• BWC footage;
• In-car camera footage;
• Policy – Use of Force;
• Policy – Arrest, Release, Detention;
• Policy – Intermediate Weapons; and
• CEW deployment data.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on February 23, 2024:

• The Complainant’s medical records from TBRHC.

In the early afternoon, in a proactive patrol exercise, SO #1 and SO #2 travelled to the apartment building in the area of Arthur Street East. They were aware of individuals squatting in common areas of the building and problems at the location with drug trafficking and use. On this occasion, they made their way to a hallway in the basement and observed a half-dozen or so persons in and around a mattress. The floor was littered with syringes.

The Complainant was among the persons in the hallway. As the other persons slowly exited through a door at the other end of the hallway, the Complainant was approached by the officers and asked for his name. The Complainant was reluctant to provide a name but eventually gave a false name. The officers ran a check on the name and concluded that the Complainant had falsely identified himself. the Complainant asked if he could leave and was told he could not. Moments thereafter, the officers grabbed a hold of the Complainant.

SO #1 and SO #2 had decided to arrest the Complainant for trespassing and, in relation to the false name he had provided, obstruction of justice. When the Complainant resisted, the officers took him to the floor.

There ensued a struggle in the course of which each subject official punched the Complainant to the head area as he refused to surrender his arms to be handcuffed. The Complainant verbally and physically protested his arrest. SO #1 deployed his CEW in drive stun mode on five occasions. Rather than subduing the Complainant, this seemed to anger him further. He reacted by kicking at the officers, striking SO #2 in the chest. SO #1 stepped back and deployed his CEW in probe mode, failing to achieve neuromuscular lock-up on two occasions. It seems the probes were prevented from penetrating to the skin by the Complainant’s clothing. Shortly after the second of these discharges, with the arrival and assistance of a third officer the Complainant’s arms were controlled behind the back and handcuffed.

The Complainant was escorted to a waiting cruiser outside the building following his arrest. As he neared the rear passenger side of the vehicle, he purposefully rammed his head against the rear window, shattering it.

The Complainant was transported to hospital and diagnosed with a possible nasal fracture and a mildly displaced fracture of the left zygomatic arch.

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.

Section 2(1), Trespass to Property Act - Trespass an Offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

The Complainant was seriously injured in the course of his arrest by TBPS officers on February 1, 2024. The SIU was notified of the incident and initiated an investigation naming SO #1 and SO #2 the subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official 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 SO #1 and SO #2 were proceeding lawfully to arrest the Complainant for trespassing under section 2(1)(a) of the Trespass to Property Act. The Complainant was not a resident of the apartment building.

I am also satisfied that the force used by SO #1 and SO #2 did not exceed what was reasonably necessary in the circumstances. Much of the struggle involved the officers wrestling to control an agitated the Complainant following his takedown, the takedown being a legitimate tactic when the Complainant resisted as officers first laid hands on him. Interspersed throughout the struggle were one or two punches directed at the Complainant’s head by both officers. These were relatively short intended to convince the Complainant to relent. The series of drive stuns delivered by SO #1 occurred near the tail end of the struggle, at which time the officers were still attempting to control the Complainant’s arms and it was clear the Complainant was not about to willingly release them. The CEW deployments in probe mode occurred after the Complainant had kicked at the officers and would appear a proportionate use of force given the difficulty the officers were having talking the Complainant into custody. In all of this, it is important to note that the officers and the Complainant were struggling in an environment filled with syringes. It was imperative in the circumstances that the Complainant be handcuffed as quickly as possible to mitigate the risk of any party being jabbed. On this record, it is important to note the common law principle that officers embroiled in dangerous situations are not expected to measure their force with precision; what is required is a reasonable response, not an exacting one: R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA).

At the end of the day, it is not altogether certain that the injuries the Complainant suffered were incurred in his altercation with police; one or both of them might have resulted from his self-inflicted head strike against the cruiser window. Be that as it may, as there are no reasonable grounds to conclude that the officers comported themselves other than within the limits of the criminal law in their dealings with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.

Date: CA" class="" style="">May 31, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit