SIU Director’s Report - Case # 24-OCI-236

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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 injury of a 45-year-old man (the “Complainant”).

The Investigation

Notification of the SIU[1]

On June 4, 2024, at 9:16 p.m., the Thunder Bay Police Service (TBPS) contacted the SIU with the following information.

On June 4, 2024, at 12:22 p.m., TBPS Break, Enter and Armed Robbery (BEAR) officers located the Complainant, who was wanted on several criminal arrest warrants. The Complainant immediately ran and police officers chased him on foot. A short time later, he was tackled, handcuffed and brought to the TBPS station, where he complained of pain to his right shoulder. The Complainant was transported to the Thunder Bay Regional Health Sciences Centre (TBRHSC) where initial X-rays revealed a dislocated shoulder. Following a second X-ray at 8:27 p.m., which confirmed a dislocated shoulder, it was determined that the Complainant would be admitted, and surgery was required to insert metal plates and pins to surgically repair the injury.

The Team

Date and time team dispatched: 2024/06/04 at 10:27 p.m.

Date and time SIU arrived on scene: 2024/06/05 at 9:39 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on June 5, 2024.

Civilian Witness (CW)

CW Interviewed

The civilian witness was interviewed on June 10, 2024.

Subject Officials (SO)

SO #1 Interviewed, but declined to submit 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

Subject Official #1 was interviewed on August 6, 2024.

Witness Officials (WO)

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 July 8 and 9, 2024.

Evidence

The Scene

The events in question transpired on and around the walkway that separated two buildings on Cumberland Street South, Thunder Bay. The walkway had a slight slope downwards in an easterly direction.

Video/Audio/Photographic Evidence[2]

Video Footage –Cumberland Street South

Starting at about 12:17:50 p.m., June 4, 2024, the Complainant was captured running easterly between the two buildings away from a three plainclothes police officers. He was pushed from behind by one of the officers – SO #2 – and propelled forwards onto the walkway. He landed on his right shoulder and slid on his back a short distance before coming to rest on the ground. The Complainant turned onto his left side as the three plainclothes officers (SO #2, WO #1 and WO #2), and another plainclothes officer approaching from the east (WO #3), converged on him. They were joined within seconds by SO #1). The Complainant was immediately struck with two short kicks to the upper body by WO #3. These were followed by two punches to the torso by WO #2. The Complainant flailed his legs and WO #2 stomped on his right leg twice, keeping it pinned to the ground momentarily as the officers wrestled the Complainant for control of his arms. SO #1 delivered two kicks to the area of the Complainant’s torso before he too attempted to gain control of his right arm. The Complainant was able to lift himself to his knees and was met by knee strikes by WO #2, SO #1 and WO #3, forcing him off his knees to the ground again. The officers continued to grapple with the Complainant for control of his arms, in the course of which SO #1 delivered a punch to the upper body. Further grappling took place and eventually the officers were able to handcuff the Complainant behind the back. The time was about 12:19 p.m.

Starting at about 12:25:37 p.m., a marked cruiser approached and stopped at the curb. The Complainant was walked to the cruiser and placed in the rear passenger seat. The cruiser left travelling westbound.

TBPS Booking Video

Starting at about 12:44:13 p.m., the Complainant walked into the custody area. He was handcuffed with his hands behind his back and under escort of a uniformed police officer [now known to be TBPS Constable #1]. At the booking counter, the Complainant was asked a series of booking questions as his handcuffs were removed. The Complainant called out in pain when TBPS Constable #1 touched his right arm. He indicated he injured his shoulder when he was pushed and fell.

At 12:48:25 p.m., the Complainant was asked if he wanted to be checked by paramedics. The shift sergeant entered the booking area and viewed the injured shoulder. The decision was made that the Complainant would be transported to hospital by police.

Police Communications Recordings

At 12:22:44 p.m., SO #2 advised the dispatcher he and other BEAR unit officers were with the Complainant to execute warrants. He indicated his location was Cumberland Avenue South, and requested a patrol unit to assist with the transport of the Complainant.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TBPS between June 10, 2024, and July 2, 2024:

  • Computer-assisted Dispatch Report;
  • General, supplementary and arrest reports;
  • Copy of arrest warrant for the Complainant;
  • Communications recordings;
  • Booking and cell video footage;
  • Duty notes - WO #1, WO #2 and WO #3; and
  • Body-worn camera and in-car camera footage - TBPS Constable #1.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between June 10, 2024, and July 2, 2024:

  • Video footage from Cumberland Street; and
  • The Complainant’s medical records from TBRHSC.

Incident Narrative

The evidence collected by the SIU, including interviews with the Complainant, SO #1 and other officers who participated on the Complainant’s arrest, and a civilian eyewitness, and video footage that captured the incident in part, gives rise to the following scenario. As was his legal right, SO #2 did not agree an interview with the SIU or the release of his notes.

Shortly after noon on June 4, 2024, plainclothes officers with the TBPS BEAR Unit gathered around two buildings at Cumberland Street South. They had information to believe that the Complainant, wanted on an arrest warrant, was in one of the buildings. The plan was to approach and arrest the Complainant when he exited the building and before he returned to his vehicle.

The Complainant exited a building at Cumberland Street South and walked west up a walkway between the two buildings towards Lake Street. There, he was confronted by SO #2 and WO #1. With the officers in pursuit, the Complainant immediately turned and ran back towards the walkway. As he descended a slope on the walkway, the Complainant was pushed from behind by SO #2. He lost his footing and was propelled onto the ground, his body sliding to a stop.

Soon joined by WO #2 and WO #3, and SO #1, SO #2 and WO #1 physically engaged the Complainant on the ground. The officers struggled to control the Complainant, who flailed his legs, refused to release his arms to be handcuffed and attempted to lift himself off the ground. In the course of a protracted wrestling contest, WO #2 punched the Complainant twice to the torso, stomped on his right leg twice, and delivered two knee strikes to the left side. WO #3 kicked at the Complainant twice and struck his torso twice with a knee. SO #1 kneed the Complainant three times to the torso and punched him once to the upper body. The Complainant was eventually handcuffed behind the back.

The Complainant was taken to the station and then transported to the hospital where he was diagnosed with a shoulder separation.

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 by TBPS officers on June 4, 2024. The SIU was notified of the incident and initiated an investigation. SO #1 and SO #2 were identified as 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.

There was a warrant in effect authorizing the Complainant’s arrest on charges of drug trafficking and possession of proceeds of crime. Accordingly, the BEAR officers were within their rights in seeking to take the Complainant into custody.

With respect to the force brought to bear by the officers in the Complainant’s arrest, the evidence falls short of reasonably establishing it was unlawful. The initial takedown by SO #2 seems a reasonable tactic. The Complainant was known to carry firearms and to engage officers in police pursuits to evade apprehension. In the circumstances, there was some urgency in ensuring that the Complainant be arrested as soon as possible. Forcing him to the ground would bring his flight to an end while positioning the officers to better deal with the threat of a weapon on the Complainant’s person. Once on the ground, there is no doubt that the Complainant was on the receiving end of multiple punches, kicks and knee strikes. However, these occurred as the Complainant struggled against the officers’ efforts to secure him in handcuffs. Once handcuffed, no further strikes were delivered. On this record, I am unable to reasonably conclude that the officers acted with excess. In arriving at this finding, I am mindful of the common law principle that officers embroiled in dynamic and physical engagements are not expected to measure their responsive force to a nicety; 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).

For the foregoing reasons, while I accept that the Complainant was likely injured when he hit the ground in the takedown, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: October 2, 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 findings of fact 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]

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.