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 43-year-old man (the “Complainant”).

Notification of the SIU[1]

On May 26, 2024, at 12:12 p.m., the London Police Service (LPS) contacted the SIU with the following information.

On May 26, 2024, at 7:45 a.m., the Subject Official (SO) attempted a traffic stop in the vicinity of 99 Belmont Drive. Reportedly, a male [now known to be the Complainant] was driving a Subaru with a female passenger. When the SO arrived at the vehicle, however, the female was in the driver’s seat, and the Complainant was in the passenger seat. The Complainant initially provided a false identification but eventually provided his real name. Checks indicated there were warrants for the Complainant’s arrest. At some point, the Complainant exited the Subaru and took off running. Witness Official (WO) #1 arrived to assist, and the officers engaged in a foot pursuit. The SO caught up to the Complainant and grounded him. The Complainant resisted arrest and the SO punched him in the face multiple times. Following his arrest, the Complainant was transported to the London Health Sciences Centre (LHSC) Victoria Hospital, where he was diagnosed with a broken nose.

The Team

Date and time team dispatched: 2024/05/26 at 1:30 p.m.

Date and time SIU arrived on scene: 2024/05/26 at 3:30 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on May 26, 2024.

Civilian Witness (CW)

CW Interviewed

The civilian witness was interviewed on June 4, 2024.

Subject Official

SO Declined interview, as is the subject official’s legal right; notes received and reviewed

Witness Officials

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 between May 30, 2024, and June 3, 2024.

The Scene

The events in question transpired on and around the exterior grounds of a gas station, 689 Wharncliffe Road South, and Mustang Sally’s, 99 Belmont Drive, London.

Video/Audio/Photographic Evidence[2]

Communications Recordings and Computer-assisted Dispatch (CAD) Report

On May 26, 2024, at 7:34:01 a.m., the SO broadcast that he was at the Mobil gas station on Wharncliffe Road.

At 7:42:11 a.m., the SO announced he was in foot pursuit. Twenty-seven seconds later, WO #1 said they were at Mustang Sally’s and, at 7:43:12 a.m., an out of breath WO #1 advised she was with the SO, and they were trying to get the Complainant in custody. The Complainant could be heard cursing in the background.

At 7:44:55 a.m., WO #1 broadcast that the Complainant was in custody.

Video Footage – IRS Security Systems

The camera was mounted on the roof overhang of the business a distance from the site of the arrest. Due to the distance from the camera, the zoom option was utilized, which pixelated the picture and rendered the details of the imagery difficult to discern.

At about 7:42 a.m., the Complainant ran into the parking lot along the low fenced area near the patio dining area for Mustang Sally’s. The SO and WO #1 ran after him. The Complainant and the SO rounded the corner of the low fence and then ran towards the plaza building. The SO reached out and grabbed the Complainant’s shoulder area, pulling him to the ground on his back. The SO’s back was to the plaza, and he was bent over at the waist. The Complainant quickly rolled over, got to his knees, his upper body upright, and attempted to get to his feet. WO #1 was now at the corner of the low fence. The SO quickly got behind the Complainant, grabbed at his arm, and leaned over the Complainant’s upper body. The SO’s right arm moved in a punching manner twice as WO #1 arrived on scene. WO #1 ran behind the SO to assist. The Complainant used both hands to keep his upper body off the ground. The SO and WO #1 now had their backs to the camera. The SO’s right arm again moved in a punching manner twice. WO #1 was bent over at the waist, her left leg outstretched. The struggle continued as both officers rose off the ground. The SO’s right arm again moved in a punching manner twice. At about 7:45 a.m., the Complainant appeared to be under control. WO #1 stood up and walked away a short distance. The SO remained in a crouched position next to the Complainant, who laid on the ground. Other police vehicles entered the parking lot.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the LPS on May 28, 2024:

• General Occurrence Report;
• Arrest warrant - the Complainant;
• Video footage - Mustang Sally;
• Video footage - Mobil gas station;
• CAD Report; and
• Communications recordings.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between May 27, 2024, and June 6, 2024:

• Still images of injuries provided by the Complainant;
• The Complainant’s medical records from LHSC Victoria Hospital;
• Video footage - Mustang Sally;
• Video footage - Mobil gas station; and
• Video footage - IRS Security Systems.

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

In the morning of May 26, 2024, the Complainant was driving south on Wharncliffe Road South with CW #1 in the front passenger seat. Their vehicle came to the attention of the SO, on patrol operating a marked pick-up truck. The Complainant was speeding in a 60 km/h zone. Aware that the cruiser was behind him, emergency lights on, the Complainant made a right turn into a gas station at 689 Wharncliffe Road South.

The SO pulled in behind the Complainant’s vehicle, which had come to a stop at a pump. The officer observed the Complainant exit and then return to the vehicle, entering via the front passenger door as CW #1 scooted over into the driver’s seat. Asked to provide his identification, the Complainant lied about his name. Threatened with arrest, he eventually provided his real name. The SO went back to his cruiser to run checks on the Complainant. He was joined by WO #1, arriving in another cruiser.

Aware of an outstanding warrant for his arrest, the Complainant again exited his vehicle through the front passenger door and began to make his way on foot to a plaza south of their location. He ignored the SO’s direction to return to his car and started to run southwards.

The SO and WO #1 chased after the Complainant, the former catching him on the parking lot of a restaurant – Mustang Sally’s – a short distance away. The SO forced the Complainant to the ground. There ensued a struggle during which the officer delivered a knee strike and a half-dozen or so punches. With the help of WO #1, the SO eventually handcuffed the Complainant behind the back.

The Complainant was taken to hospital following his arrest and diagnosed with a broken nose.

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 LPS officers on May 26, 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 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 SO was within his rights in seeking to take the Complainant into custody. There was a warrant in effect authorizing the Complainant’s arrest.

The evidence regarding the force used by the SO in aid of the Complainant’s arrest, I am satisfied, falls short of establishing it was unlawful. The takedown was a legitimate tactic. It would bring the Complainant’s escape attempt to an end while positioning the officer to better manage any continuing resistance. On the ground, the weight of the evidence indicates that the Complainant struggled against the officers’ efforts to secure his arms. He attempted to lift his body and refused to release his arms. In the circumstances, I am unable to reasonably conclude that a single knee strike and the punches struck by the SO, delivered in discrete intervals so as to afford the officer an opportunity to gauge their effectiveness, were excessive. Once the Complainant’s fight had abated and he was handcuffed, there were no further strikes. There is an account in the evidence depicting the Complainant being choked by the SO as the officer was positioned on top of him on the ground. The SO makes mention of wrapping his arm behind the back and left side of the Complainant’s head. This was not to choke him, however, but to hold him in position until he tired. On this record, I am not reasonably satisfied that the evidence of an intentional choke hold is sufficiently cogent to render putting the issue to the test before a court.

In the result, while I accept that the Complainant’s injury was incurred in the altercation that marked his arrest, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: September 23, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit