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 30-year-old man (the “Complainant”).

Notification of the SIU[1]

On June 10, 2023, at 9:04 a.m., the Thunder Bay Police Service (TBPS) notified the SIU of an injury to the Complainant.

According to the TBPS, on June 10, 2023, at 7:11 a.m., police responded to an address near River Street and High Street North, Thunder Bay, for a report of a domestic dispute. During the investigation, grounds were formed to arrest the Complainant for impaired driving. The Complainant fled, which led to a short foot pursuit and arrest. During the arrest, the Complainant sustained an injury to his head and was transported to the Thunder Bay Regional Health Sciences Centre (TBRHSC) where he received four sutures and was diagnosed with a small skull fracture. The Complainant was subsequently released from hospital and returned to police custody.

The Team

Date and time team dispatched: 06/10/2023 at 1:58 p.m.

Date and time SIU arrived on scene: 06/10/2023 at 2:45 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on June 14, 2023.

Civilian Witness (CW)

CW Not interviewed; declined

Subject Official (SO)

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

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

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

The witness official was interviewed on June 22, 2023.

Investigative Delay

The investigation was delayed because of a number of factors, including, issues related to case complexity, workload pressures, and the receipt of a written statement and photograph from the SO in April 2024.

There were no investigative delay issues with respect to TBPS notification.

There was a four-day delay in interviewing the Complainant due to his in-custody status, and then upon his release a delay in returning phone messages from investigators seeking an interview.

The Scene

The events in question transpired in and around an area by the front exterior of a home near River Street and High Street North, Thunder Bay.

Physical Evidence

The initial information provided to the SIU made no mention that the serious injury the Complainant had sustained might have been caused by one of the involved police officers’ flashlights. That information was gleaned four days after the incident when the Complainant was interviewed.

Investigators learned the SO’s flashlight was his personal property, and not that of the TBPS. The seizing of it as evidence was not pursued due to the passage of time, lack of continuity, and applicable challenges respecting search and seizure authorities.

The SO did, however, voluntarily provide a photograph of the flashlight, as seen below.

Figure 1 - Photograph of flashlight

Video/Audio/Photographic Evidence[2]

Body-worn Camera (BWC) Footage - SO

Starting at about 5:20 a.m., June 10, 2023, the SO was captured exiting his vehicle while holding an illuminated, large black flashlight in his right hand. The Complainant, the CW, and WO #1 were standing on a grassy boulevard.

Starting at about 5:22 a.m., WO #1 advised he had located a knife on the floor of the Jeep. WO #1 walked with the CW to the front of a police vehicle, while the SO remained with the Complainant, who was seated on the grass.

Starting at about 5:27 a.m., the Complainant stood up and was unsteady. WO #1 approached and put on gloves. The Complainant ran away westbound while holding his cellular phone in his right hand and his grey hooded-sweatshirt in his left. The SO questioned where he was going and chased after him. The Complainant looked back at the SO as they ran and threw his sweatshirt behind him. As the Complainant reached a grassy area, the SO caught up to him and with his left hand grabbed the back of his pants.

Starting at about 5:27:24 a.m., the SO’s flashlight was captured on the video in his right hand with his arm in a swing motion. It is unclear whether the motion was an intentional swing in the direction of the Complainant or the swinging of the arm of a person in flight. The Complainant then fell to the ground. The SO held the Complainant down with his left hand as WO #1 caught up and, together, they handcuffed him.

BWC Footage - WO #1

Starting at about 5:18 a.m., WO #1 was captured exiting his police vehicle. The Complainant and the CW were sitting on the grass on the south side by the passenger door of a parked Jeep. They denied knocking on anyone’s door.

Starting at about 5:22 a.m., WO #1 located a knife on the floor of the Jeep. WO #1 took the CW to the front of the police vehicle to speak to her, while the SO remained with the Complainant.

Starting at about 5:27 a.m., WO #1 walked to the passenger side of the Jeep where the Complainant was sitting on the grass. The SO was standing beside the Complainant with his illuminated flashlight pointing to the ground. WO #1 walked over to the Complainant, which prompted him to stand up. WO #1 pulled out black gloves and began to put them on his hands when the Complainant suddenly turned and began to run away in a westerly direction. The SO chased the Complainant with WO #1 following closely behind. The Complainant ran onto the grass and went to the ground. The SO stood over him and held him down with his left hand, while WO #1 assisted with placing the Complainant in custody.

Starting at about 5:28 a.m., the Complainant was on his stomach and resistant to the police officers placing his arms behind his back to be handcuffed.

Starting at about 5:29 a.m., the SO radioed dispatch that he had one person detained and requested an ambulance.

BWC Footage - WO #2

WO #2’s BWC was reviewed and provided no evidence to further the investigation.

TBPS Communications Recordings

Telephone

Starting at about 4:57 a.m., the TBPS Communications Centre received a 911 call from the resident of a home near River Street and High Street North advising that the Complainant and the CW had walked up to his house. They had been yelling outside before ringing his doorbell frantically. The CW told him to call the police as the Complainant was yelling at her. They walked away together down the street.

Radio

Starting at about 5:11 a.m., the SO and WO #1 were dispatched to a home near River Street and High Street North to check on the welfare of the CW. The CW had frantically knocked on the door of the residence and the Complainant was yelling at her.

Starting at about 5:19 a.m., WO #1 located the Complainant and the CW.

Starting at about 5:20 a.m., the SO arrived.

Starting at about 5:29 a.m., the SO told dispatch that one person was detained and requested an ambulance.

Security Camera Footage

Video footage obtained from a nearby residence was of poor quality and did not capture the interaction between the SO and the Complainant.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TBPS on June 16, 2023:

• Event Chronology;
• Names and roles of involved police officers;
• Civilian Witness List;
• General Occurrence Report;
• Crown Brief Synopsis;
• Arrest Report;
• Notes – WO #1;
• Notes – WO #2;
• BWC footage;
• In-car camera footage;
• Booking video;
• Communications recordings;
• Video footage – security camera;
• Arrest, Release and Detention Policy;
• Use of Force Policy; and
• Intimate Partner Violence Policy.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources:

• The Complainant’s medical records from the TBRHSC received August 1, 2023; and
• Affidavit from the SO dated March 8, 2024.

The evidence collected by the SIU, including an interview with the Complainant and video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes. He did provide a written statement.

In the morning of June 10, 2023, TBPS were called to an address near River Street and High Street North to investigate a disturbance. The occupant of the home had called police to report that a female had rung his front doorbell asking that he call police. She was with a male, and the two had been yelling outside his house.

WO #1 was the first officer on scene, followed shortly by the SO. They encountered the male and female – the Complainant and the CW – together on a grassy median on the south side of the street and began to question them about the call to police. At one point, the Complainant was directed to sit down as the SO stood by him and WO #1 spoke to the CW about the events that preceded police arrival. When WO #1 had finished questioning the CW away from the Complainant, he began to make his way back to the Complainant. Fearing he was about to be arrested, the Complainant stood up and ran westward on the roadway.

The SO ran after the Complainant. He held a flashlight in his right hand. The officer caught up with the Complainant and took him to the ground, his flashlight striking the Complainant’s head in the process. The Complainant’s head began to bleed after the strike.

The Complainant was handcuffed on the ground, sat up and lifted to his feet, and walked to a police cruiser where he was placed in a rear seat. He was subsequently transported to hospital and diagnosed with a skull fracture.

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 June 10, 2023. One of the arresting officers – the SO – was identified as the subject official in the ensuing SIU investigation of the incident. 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.

It is apparent that the Complainant was being detained when he decided to flee what he believed was his impending arrest. In R. v. Mann, [2004] 3 SCR 59, the Supreme Court of Canada made clear that investigative detentions are not permissible unless the police are vested with reasonable grounds to suspect that the detainee is implicated in a crime. In the instant case, I am satisfied the Complainant was being lawfully detained for impaired operation of a motor vehicle: his companion – the CW – had told police that the Complainant had been drinking, the Complainant was unsteady on his feet, and both parties had arrived at the scene in a SUV.

When the Complainant fled from the officers, the officers were within their rights in re-establishing his detention. The SO did so with a resort to force that I am unable to reasonably conclude was unjustified. The takedown, per se, was a legitimate tactic. The Complainant was running away from the officer attempting to escape, and the officer was entitled to bring his flight to an end by forcing him down. The impact of the SO’s flashlight with the Complainant’s head is less readily reconciled with reasonable force. Arguably, its intentional use to strike the Complainant’s head would amount to an assault. And that is what is alleged happened to the Complainant. The SO, however, denies he intentionally struck the Complainant in the head with the flashlight. According to the officer, when he caught the Complainant and grabbed his waistband, the Complainant turned, raised an arm, and lunged towards him. Concerned that the Complainant might be in possession of a weapon – a not unreasonable concern given the presence of a knife that the officers had located in the SUV before the Complainant’s arrest – the SO lifted his right arm to block and repel the Complainant’s forward movement. Thus, while the officer concedes the flashlight he was holding impacted the Complainant’s head during this dynamic, he says the contact was inadvertent. The video footage captured by the SO’s BWC is not dispositive of this conflict in the evidence – it was very choppy given the movement of the parties. On this record, I am not satisfied that the evidence of intentional use of the flashlight is sufficiently cogent to warrant being put to the test by a court.

In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law throughout his engagement with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.

Date: June 11, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit