SIU Director’s Report - Case # 22-PCI-178
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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 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.
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 a serious injury sustained by a 30-year-old man (the “Complainant”).
The Investigation
Notification of the SIU[1]
On July 7, 2022, at 4:07 p.m., a message was left at SIU reception regarding a complaint from the Complainant. Subsequently, on July 11, 2022, the following information was received from the Complainant.
On June 21, 2022, at 2:30 a.m., the Complainant was at his grandmother’s residence. He had consumed alcohol with friends when an argument broke out and it was alleged that he was assaulted by his girlfriend. Prior to the altercation, according to the Complainant, he had sustained a significant injury to his hand while separating frozen burgers. At 4:00 a.m., because of the altercation, the Bracebridge Ontario Provincial Police (OPP) and Emergency Medical Services were dispatched to the residence. The Complainant was transported to the South Muskoka Memorial Hospital (SMMH) where he was provided medical aid and received stiches to his injured hand. As the Complainant was being released from hospital, unknown officers from the OPP arrested him for numerous offences including Assault, Fail to Comply with Probation and Uttering Threats. The Complainant was transported to the Bracebridge OPP Detachment and placed in a holding cell. An unknown officer referred to him as a “woman beater” and punched him more than 12 times, bringing him to the ground.
The SIU initiated an investigation.
On November 9, 2022, SIU closed the investigation under s. 17 of the Special Investigations Unit Act, 2019, having determined that the Complainant did not suffer a ‘serious injury’ within the terms of the SIU’s mandate. No requests for information from the OPP had been made.
On notification of the closure, the OPP Professional Standards Branch reviewed the incident and requested that York Regional Police (YRP) investigate the incident. On July 26, 2023, YRP contacted SIU for disclosure of the SIU investigation, specifically, the Complainant’s statement and his medical records.
On July 31, 2023, SIU investigators contacted the Complainant to ascertain if SIU had consent to release his statement to YRP. The Complainant advised that since the original medical records were received by SIU, he had been under medical care for concussion syndrome. The concussion was reportedly the result of his interaction with OPP officers on June 21, 2022.
On August 2, 2023, the SIU investigation was re-opened.
The Team
Date and time team dispatched: 2022/07/11 12:32 p.m.
Date and time SIU arrived on scene: 2022/07/11 1:15 p.m.
Number of SIU Investigators assigned: 2
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 July 12, 2022.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal right
Witness Official
WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Not interviewed; notes received and reviewed
The witness officials were interviewed on August 29, 2023, and August 30, 2023.
Service Employee Witness
SEW #1 Interviewed
SEW #2 Interviewed
The service employee witnesses were interviewed on August 29, 2023, and August 30, 2023.
Investigative Delay
Initial investigation delays were attributable to gathering information from the OPP. Some of the requested material had been forwarded to YRP and had to be retrieved before being sent to the SIU. Investigative interviews were also being coordinated during the summer holidays.
Additional delay was incurred in the process of obtaining updated medical records. The initial request for medical records was made August 3, 2023. The medical records were eventually received November 7, 2023.
Delay was also attributable to the complexity of the case and corresponding resource pressures at the SIU.
Evidence
The Scene
The events in question transpired in and around a cell of the OPP Bracebridge Detachment, 690 Cedar Lane, Bracebridge.
Video/Audio/Photographic Evidence[2]
Police Cell Video Footage
Starting at about 4:16:20 a.m., June 21, 2022, the Complainant came into camera view. He neared an open cell door and turned around to face officers behind him. The Complainant and the SO squared up on each other. The SO pushed the Complainant back with both hands on his chest. The Complainant cocked his left arm and stepped towards the SO. The SO pushed the Complainant, then swung at the Complainant with his right hand while using his left arm to push the Complainant into the cell. As he was being pushed backwards, the Complainant swung his right hand twice at the SO’s head. The officer continued to push the Complainant back and pinned him on the cell bunk before appearing to throw one or two right-handed punches at the Complainant’s head. The Complainant grabbed the SO by the back of the neck and the two wrestled for a second or two during which the SO swung about five times with his right hand at the Complainant’s head. The officer swung about five more times at the Complainant’s head after he released his grip of the officer’s neck. The strikes came to an end at 4:16:41 a.m. The SO removed himself from the Complainant and backed out of the cell.
At 4:17:02 a.m., the Complainant was on his feet as the cell door was closed. The Complainant remained at the cell door and, moments later, collapsed to the floor. The Complainant appeared to have a brief period of convulsions after which he got back up to his feet and onto the cell bench.
911 and Communications Recordings
SIU obtained and reviewed the audio recordings, and found no direct connection with the incident in the cell block area. The recordings related to the original disturbance call for assistance.
Materials Obtained from Police Service
The SIU obtained the following records from the OPP on August 8, 2023:
- 911 recordings and communications recordings;
- Computer-assisted dispatch report;
- General Occurrence, Supplementary and Arrest reports;
- Booking and cell block video footage;
- Prisoner Medication Log;
- Prisoner Security Check Log;
- Duty Notes – WO #1;
- Duty Notes – WO #2;
- Duty Notes – WO #3;
- Duty Notes – WO #4; and
- Duty Notes – WO #5.
Materials Obtained from Other Sources
The SIU received the following records from the following other sources:
- The Complainant’s medical records from
- The Complainant’s medical records from his family doctor, received November 7, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and officers who witnessed the events in question, as well as video footage that captured much of the incident, 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 early morning of June 21, 2023, police were called to a residence in Bracebridge following a call in which the Complainant was reported to have assaulted a woman at the location. The Complainant was arrested in connection with the assault and taken to the Bracebridge OPP Detachment to be lodged in cells.
The Complainant was impaired by drugs and alcohol that morning. He was belligerent with police officers throughout his period of custody and repeatedly threatened them. Just before reaching the open door of his cell at the detachment, the Complainant turned to confront the escorting officers, including the SO. The SO pushed the Complainant backwards towards the cell door, after which the Complainant drew his left arm back and stepped towards the officer. The officer pushed the Complainant through the cell door, delivering a right-handed punch in the process. The Complainant swung his right hand twice at the SO while being pushed further into the cell. The officer used his left arm to pin the Complainant on the cell bench as he punched-out with his right hand once or twice. Now on his back on the cell bench with the SO on top of him, the Complainant wrapped his left arm around the back of the officer’s neck. The parties grappled for several seconds in the course of which the SO directed approximately five right-handed punches towards the Complainant’s head. The officer swung an additional five times after the Complainant let go of the back of his neck before lifting himself from the Complainant.
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 arrested by OPP officers in Bracebridge on June 21, 2022. Weeks later, at a medical appointment, the Complainant was diagnosed with ‘post-concussive syndrome’. The condition, reportedly the result of a physical altercation with an OPP officer in a cell of the Bracebridge OPP Detachment following the Complainant’s arrest, came to the SIU’s attention on July 31, 2023. The SIU initiated an investigation on August 2, 2023, 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.
The Complainant was lawfully in police custody throughout the events in question. Having conducted an investigation, the police came to reasonably believe that the Complainant had assaulted a woman earlier that morning. He was, accordingly, subject to arrest on that basis. Once in custody, the police were entitled to control the Complainant’s movements to ensure he was processed according to law. This included his lodging in a police cell.
With respect to the force used by the SO in the course of the Complainant’s placement in a police cell, the evidence falls short of reasonably establishing it was unlawful. The initial punches he struck were a reaction to the Complainant’s repeated attempts to punch the officer and, subsequently, his grabbing of the officer behind the neck. I am satisfied they constituted reasonable force in self-defence. The SO continued to deliver punches – about five – after the Complainant had released his hold of the officer’s head. These blows are not as easily reconciled with reasonable force; in the cold light of hindsight, it is arguable they were not strictly necessary. The law, however, does not demand that officers perfectly tailor their force when engaged in volatile and violent situations. In recognition of the inherent dynamism of these situations, the force used by officers will attract protection if it falls within a reasonable range of what was necessary at the time. In the instant case, the additional punches delivered by the SO occurred in quick succession within seconds of his head’s release from the Complainant’s hold. For an officer engaged in a vigorous struggle, I am unable to reasonably conclude that the SO acted with excess by failing to: 1. recognize in the heat of the moment that he was no longer in a vulnerable position and, consequently, 2. put an end to his force. Once those blows were struck and it was evident that the Complainant had been subdued, no further strikes were delivered.
In the result, while I accept that the Complainant’s concussion might well have been incurred in his altercation with the SO, there are no reasonable grounds to believe it was attributable to unlawful conduct on the part of the officer.[3] The file is closed.
Date: July 22, 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]
- 3) The SO also used a measure of force against the Complainant at the detachment prior to his lodging in a cell. The circumstances surrounding that interaction were not the focus of the SIU investigation as they were not causally related to the injury in question. The SIU has referred that interaction to the OPP for their review. [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.