SIU Director’s Report - Case # 24-PCI-195
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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 the serious injuries of a 24-year-old man (the “Complainant”).
The Investigation
Notification of the SIU[1]
On May 6, 2024, at 4:20 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.
On May 5, 2024, at 9:59 p.m., police received a 911 call for an unwanted party at a home in Tyendinaga Mohawk Territory. An OPP officer seconded to the Tyendinaga Police Service (TPS) and TPS officer attended the address. The officers entered the basement and located a man – the Complainant – sleeping. The officers woke the man, who began to fight them. A conducted energy weapon (CEW) was deployed with no effect. A third officer (OPP) arrived, and the man was taken outside, where he had a seizure. Additional officers arrived. When the man came to, he began to fight again. Emergency Medical Services (EMS) attended, and the man was transported to the hospital in Napanee, and then transferred to the Kingston General Hospital (KGH). The Complainant was diagnosed with a fractured nose and orbital bone.
The Team
Date and time team dispatched: 2024/05/06 at 8:00 a.m.
Date and time SIU arrived on scene: 2024/05/06 at 7:41 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
24-year-old male; interviewed; medical records obtained and reviewed
The Complainant was interviewed on May 6, 2024.
Civilian Witnesses (CW)
CW #1 Interviewed
CW #2 Interviewed
CW #3 [TPS] Interviewed
The civilian witnesses were interviewed between May 7 and 18, 2024.
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 Not interviewed; notes reviewed and interview deemed unnecessary
The witness officials were interviewed between May 10 and 17, 2024.
Evidence
The Scene
The events in question transpired in the basement of a home situated in Tyendinaga Mohawk Territory.
Forensic Evidence
CEW Deployment Data – CW #3 (TPS)[2]
On May 5, 2024, at 10:17:21 p.m.,[3] the trigger was pressed, and the probes were fired from cartridge one. Electricity was discharged for about six seconds.
At 10:19:13 p.m., the trigger was pressed, and electricity was discharged for about five seconds.
At 10:19:29 p.m., the trigger was pressed, and electricity was discharged for about five seconds.
At 10:19:46 p.m., the trigger was pressed, and electricity was discharged for about five seconds.
At 10:19:53 p.m., the trigger was pressed, and electricity was discharged for about five seconds.
At 10:22:53 p.m., the trigger was pressed, and the probes were fired from cartridge two. Electricity was discharged for about eleven seconds.
Video/Audio/Photographic Evidence[4]
OPP Communications Recordings
911 Recording
On May 5, 2024, at 9:58:34 p.m., CW #1 called 911 and said the Complainant was at a residence in violation of court conditions not to attend the address. The Complainant suffered from schizophrenia and personality disorder, and had consumed alcohol. He was in the basement. He was not violent. CW #2 was downstairs with the Complainant, and he (the Complainant) was yelling he was going to kill them. There were no weapons in the house. The Complainant refused to take his medication. The situation was escalating. There was inaudible yelling in the background. The Complainant reportedly came up to the main floor. CW #1 told him he should not be in the home. The Complainant said he did not know why she called the police, and that he was going to bed.
Telephone Calls
At 10:22:38 p.m., May 5, 2024, OPP communications called EMS requesting they attend the residence. There was a man [the Complainant] in custody with minor injuries. OPP communications called EMS again to update that the Complainant was spitting blood and having seizures. A further call was made requesting a second ambulance for an officer [the SO] who had been bitten and needed to be assessed.
WO #2 called communications to advise of the interaction before his arrival. A CEW had been deployed. The Complainant was punched a couple of times and had a seizure when put into a cruiser. He was conscious and alert. EMS was present. The Complainant had tried to bite a TPS officer but did not break the skin.
Sergeant’s Telephone Calls
A sergeant in the communications center was called. The sergeant was told that a CEW had been deployed. The man [the Complainant] was punched, appeared to have a seizure, was conscious and alert, and was being transported to the hospital.
WO #3 called the sergeant in the communications centre. WO #3 said the call involved an unwanted person in a basement. The person [the Complainant] was sleeping when they tried to wake him and the fight was on. The Complainant was an unmedicated schizophrenic. He had been drinking. The officers got one handcuff on him, and he started to bite them but did not break skin. CW #3 was bit on the leg and the SO was bit on the arm. Compliance strikes were delivered by the officers when the Complainant was biting them. CW #3 deployed a CEW and drive-stunned him. The officers got handcuffs on the Complainant and held him until other officers arrived. The Complainant was at the hospital and sedated. The SO and CW #3 were going to the hospital. The SO had a sore hip and might have pulled his hamstring. CW #3 had a bite to the leg. The communications sergeant said they would let the Provincial Operations Centre know about the use of force relating to the CEW.
OPP Radio Transmissions
On May 5, 2024, at 10:00:38 p.m., CW #3 was dispatched to the residence. The Complainant was reportedly there and refusing to leave. He had conditions not to be at the address. He had been drinking, and was schizophrenic and bipolar. He was in the basement and the caller was upstairs. A family member was downstairs, trying to get him out of the house. The SO was there to assist. The Complainant said he wanted to kill the family member or caller. The Complainant had been released on an undertaking with conditions not to communicate with CW #2 and not to attend the address. He was flagged “violent”. The situation was escalating. He had come to the main floor and the call-taker had heard him say he wanted to go to bed.
The SO and CW #3 arrived. A woman was heard saying put your hand out. The dispatcher asked for a status check at the scene. The SO asked for additional officers. The SO said he had the Complainant in custody and requested additional units. He said they were alright, and he had minor injuries. The SO indicated one person was in custody, everything was okay, and they required an ambulance. An officer advised that the Complainant had injuries and a CEW was deployed. An officer requested the ambulance be expedited, as the Complainant was spitting blood and might be having a seizure. The SO said he just realized he was bit a couple of times and need to get checked out.
WO #1 and another OPP officer were staying with the Complainant at the hospital. Additional officers were requested to attend the hospital because the Complainant was causing problems. Leg shackles were also requested.
Materials Obtained from Police Service
Upon request, the SIU obtained the following records from the OPP between May 8 and 15, 2024:
- List of involved officers and their roles;
- General Report;
- Event Details Report;
- Arrest Report;
- Supplementary Report;
- Communications recordings;
- Body-worn camera footage;
- OPP incidents involving the Complainant;
- CW #3’s CEW deployment data; and
- Notebook entries – WO #1, CW #3, WO #3 and WO #2.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between May 19 and 21, 2024:
- KGH medical records for the Complainant; and
- Lennox and Addington County Hospital
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant, and police and non-police witnesses to 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 evening of May 5, 2024, TPS officers, including the SO (an OPP officer seconded to the TPS), were dispatched to a home in Tyendinaga Mohawk Territory. CW #1 had contacted police seeking the removal of the Complainant from the residence. The Complainant, who was prohibited by an undertaking from being at the address, had arrived at the home and threatened to kill CW #2.
The SO arrived on scene in the company of his partner, CW #3. The officers were met by CW #1 and directed to the basement, where the Complainant was lying in a bed. The officers advised the Complainant he was under arrest and CW #3 placed a cuff on one of his hands. The Complainant asked what was happening, and started to kick and punch at the officers. The SO and CW #3 engaged with the Complainant on the bed, but he was able to lift himself to his feet. The SO grounded the Complainant face first onto the floor where the struggle continued. The Complainant fought against the officers’ efforts to secure him in custody and managed to bite the SO’s hand and CW #3’s leg. The SO delivered two punches to the head and CW #3 deployed a CEW several times before they were able to handcuff the Complainant.
Shortly after the Complainant was handcuffed, OPP officers arrived to assist. The Complainant was carried up the stairs, brought outside and placed in a police cruiser. He started to convulse while in the cruiser, and was removed from the vehicle and placed in the recovery position on the ground.
Paramedics attended and took the Complainant to hospital. He was eventually diagnosed with several facial fractures.
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 on May 5, 2024. 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.
In contravention of a condition of his release, the Complainant was unlawfully at CW #2’s residence. In the circumstances, the SO and CW #3 were within their rights in seeking to take him custody.
When the Complainant reacted with violence to his arrest, the officers were entitled to resort to a measure of force to protect themselves and effect his apprehension. They did so, in my view, within the remit of the law. The takedown by the SO, for example, seems a reasonable tactic. Given the Complainant’s combativeness, forcing him to the ground would better position the officers to manage any additional resistance. The Complainant did, in fact, continue to fight, at points biting the officers. The SO responded with what appears to have been force commensurate with the assaults on the officers’ persons, namely, two punches to the head. For CW #3’s part, to little or no effect, the TPS officer discharged a CEW repeatedly at the Complainant attempting to subdue him.
For the foregoing reasons, while I accept that the Complainant’s injuries are likely the result of the force used by the SO, I am unable to reasonably conclude they are attributable to any unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges in this case.
Date: September 3, 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) CW #3 was the only officer to discharge a CEW during the incident. CW #3’s CEW was issued by the OPP. [Back to text]
- 3) The times are derived from the internal clock of the weapon, and are not necessarily synchronous with actual time. [Back to text]
- 4) 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]
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.