SIU Director’s Report - Case # 24-OCI-318

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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 25-year-old man (the “Complainant”).

The Investigation

Notification of the SIU[1]

On July 23, 2024, at 7:15 a.m., the Barrie Police Service (BPS) notified the SIU of an injury.

According to the BPS, on July 22, 2024, at 11:00 p.m., the BPS were called to an address near Bayfield Street and Dunlop Street East, Barrie, regarding a male acting strangely and intoxicated. BPS officers arrived and had an interaction with the male. A conducted energy weapon (CEW) was deployed, and the male fell to the ground suffering a facial injury. The male was transported to the Royal Victoria Hospital (RVH), and diagnosed with a fractured jaw and several missing teeth.

The Team

Date and time team dispatched: 2024/07/23 at 8:37 a.m.

Date and time SIU arrived on scene: 2024/07/23 at 9:05 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

25-year-old male; declined an interview

Subject Official (SO)

SO Interviewed; notes received and reviewed

The subject official was interviewed on August 28, 2024.

Witness Official (WO)

WO Interviewed; notes received and reviewed

The witness official was interviewed on August 6, 2024.

Evidence

The Scene

The events in question transpired on and around the parking lot situated at 21 Simcoe Street, Barrie.

Video/Audio/Photographic Evidence[2]

Body-worn Camera (BWC) Footage - The SO

On July 22, 2024, at 11:29 p.m., the SO was captured walking southeast on Maple Avenue towards the Complainant, who was walking briskly, slightly ahead and to the left. It was dark outside, with ambient lighting from nearby buildings and overhead lights. A beam of light was being shone on the Complainant [now known to be from the WO’s flashlight]. The men entered a parking lot on the east side of Maple Avenue, with Simcoe Street to the south and Bayfield Street to the east.

The Complainant wore a dark-coloured hooded sweatshirt with the hood pulled up over his head. He continued to walk south towards Simcoe Street.

The SO said, “Listen, you’re going to stop, or there is going to be a problem for you.” The Complainant disregarded the SO and continued to walk.

The SO and the Complainant stopped near the middle, passenger side of an unattended, dark-coloured pick-up truck, which was parked facing north adjacent to Simcoe Street. The SO had his back towards Simcoe Street as he faced the Complainant. The light from the WO’s flashlight shone on the front of the Complainant. The SO told the Complainant to put his hands behind his back and then repeated in a sterner voice, “Put your hands behind your back.” He unholstered his CEW and aimed it at the Complainant. The Complainant asked, “For what?” The SO replied, “Indecent act.” The Complainant said, “Indecent act?” The SO stated, “Yup. Indecent act. Turn around and put your hands behind your back.” The Complainant brought his arms from his sides and briefly folded them across his chest. He then appeared to place something on top of the pick-up truck. The SO repeated his command for the Complainant to put his hands behind his back and to get down on his knees.

At 11:29:38 p.m., the Complainant slowly put his hands behind his back. He stood and swayed back and forth while looking at the SO. The SO repeated the command, “Put your hands behind your back and kneel down on your knees, right now.” The Complainant verbally challenged the arrest, “Why are you placing me under arrest?” The SO replied, “Indecent act.” The Complainant continued to disregard the SO’s commands while repeatedly asking why he was being placed under arrest.

At 11:29:54 p.m., the Complainant walked towards the SO as his tone continued to escalate. He asked again, “What indecent act, officer,” followed by, “I don’t care what you have to say.” The Complainant was aggressively moving towards the SO, who repeated, “Stop approaching me,” as he backed up onto a raised curb a couple of metres from the rear of the pick-up truck. The SO repeatedly told the Complainant to stop approaching him and to get down on the ground.

At 11:30:03 p.m., the Complainant turned clockwise to face away from the SO, his hands clasped behind his back, and stepped towards the pick-up truck.

At 11:30:04 p.m., the SO discharged his CEW. The Complainant fell forward to the ground parallel with the passenger side of the pick-up truck. The WO handcuffed the Complainant’s hands behind his back.

The Complainant said he was bleeding.

At 11:32 p.m., other officers arrived and parked on Simcoe Street. The SO said the Complainant was “being manic and assaultive, wouldn’t take any direction, started coming at me, so I tased him”. He said when the Complainant went down his face hit the ground. The Complainant continued to speak in a loud voice.

At 11:35 p.m., the officers moved the Complainant to a grass boulevard, laid him on his side, and searched him.

At 11:38 p.m., the SO told other officers that he and the WO had observed the Complainant randomly walking in the middle of the road with his pants half down. He tried to talk to the Complainant as he moved in front of him. The Complainant came towards him acting aggressive and assaultive. He pulled his CEW out and the Complainant yelled something, “Losing his mind,” and turned around so he “tasered” him.

At 11:58 p.m., the SO told paramedics that the Complainant turned around quickly and, “I took a back shot. He fell on his face on the asphalt. His arms did not come out.”

At 12:01 a.m., July 23, 2024, the Complainant was loaded onto the stretcher.

BWC Footage - The WO

On July 22, 2024, at 11:28 p.m., the WO was captured driving slowly southbound on Maple Avenue towards Simcoe Street. The SO was out of the cruiser, his hands empty, wearing black gloves. The WO parked the cruiser and followed the SO, who walked southeast on Maple Avenue, a few metres behind the Complainant. The SO took a couple of quick paces to get in front of the Complainant. The Complainant turned to his left [east] and walked along a sidewalk into the parking lot on Simcoe Street between Maple Avenue and Bayfield Street. The WO was five to ten metres behind them. The SO said to the Complainant, “What don’t you understand?” The SO walked on the grass to the right of the Complainant. The WO shone his flashlight on the Complainant. The SO told the Complainant to stop and pull his pants up. The Complainant continued to walk briskly in the parking lot.

The Complainant and the SO stopped and stood on the passenger side of a pick-up truck. The WO stood to the right of the SO, facing the Complainant. The SO told the Complainant to put his hands behind his back. He unholstered his CEW and pointed it at the Complainant. The red aiming dots were visible on the Complainant’s abdomen. The SO stepped backwards, up the curb and onto a grass boulevard. The Complainant stepped slowly towards the SO and loudly protested the arrest. He stepped with both feet up onto the same curb. The SO stepped further back. The Complainant yelled, “What was the indecent act?” He then quickly turned clockwise and stepped off the curb, back towards the side of the pick-up truck. The SO discharged the CEW and the Complainant fell forward onto the asphalt with his hands still behind his back. The Complainant’s hands were handcuffed behind his back by the WO.

Police Communications Recordings

On July 22, 2024, at 11:07 p.m., a caller from an address near Bayfield Street and Dunlop Street East, Barrie, reported that an unknown male [the Complainant], approximately 30 years of age, wearing black sweatpants, had been asked to leave. He started to leave but then turned back, pulled his pants down, and yelled at staff. It was unknown if the male was still in the area.

At 11:31 p.m., the SO and the WO located the Complainant on Maple Avenue.

The SO advised he had deployed his CEW at the Complainant and requested paramedics.

At 12:08 a.m., July 23, 2024, a BPS constable was on board an ambulance with the Complainant en route to RVH.

A BPS staff sergeant was subsequently notified of the Complainant’s refusal to receive medical attention. The Complainant was to be released from custody once discharged from the hospital.

At 7:22 a.m., the Complainant refused medical treatment and was discharged from RVH.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the BPS between July 23, 2024, and July 26, 2024:

  • Occurrence, Arrest and Supplementary Reports;
  • Computer-assisted Dispatch Report;
  • A list of previous interactions involving the Complainant;
  • Communications recordings;
  • BWC footage – the SO and the WO; and
  • Policy - Use of Force.

Incident Narrative

The evidence collected by the SIU, including interviews with the arresting officers and video footage that largely captured the incident, gives rise to the following scenario.

In the late evening of July 22, 2024, the SO and his partner, the WO, made their way to an address near Bayfield Street and Dunlop Street East, Barrie. A person had called police to report that the Complainant, having been told to leave, had exposed his genitals to staff.

The officers located the Complainant walking south on Maple Avenue a short distance from the shelter, stopped their cruiser north of his location, and exited. The SO approached the Complainant, and told him to stop. The Complainant continued to walk southward. The SO positioned himself in front of the Complainant as the two made their way onto a parking lot on the northeast corner of Maple Avenue and Simcoe Street. The officer continued to ask the Complainant to stop, and the Complainant continued to ignore him. At the southern end of the parking lot, the parties came to a stop by the passenger side of a pick-up truck, the SO positioned south of the Complainant, and the WO to the SO’s right. The Complainant became increasingly belligerent with the officer, raising his voice and gesturing aggressively in his direction. His CEW drawn and pointed at the Complainant, the officer asked him to put his hands behind his back. The Complainant did so, but refused to get down on the ground when directed by the officer. When he turned to face the other way, the SO discharged the CEW. The Complainant’s body seized up and he fell face forward on the ground, after which the WO handcuffed him behind the back.

The Complainant was transported to hospital from the scene in ambulance, and diagnosed with a fractured jaw and missing teeth.

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.

Section 173(1), Criminal Code - Indecent Acts

173 (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or

(b) is guilty of an offence punishable on summary conviction.

Analysis and Director’s Decision

The Complainant was seriously injured in the course of his arrest by BPS officers on July 22, 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.

Based on the information provided at dispatch of the Complainant having exhibited his genitals to staff at a shelter while in public, I am satisfied that he was subject to arrest for ‘indecent act’ contrary to section 173(1) of the Criminal Code.

I am also satisfied that the SO did not use unlawful force when he fired his CEW at the Complainant. The officer repeatedly attempted to have the Complainant submit peacefully to arrest while walking with him south on Maple Avenue and then onto the parking lot. The Complainant ignored the SO’s directions, growing increasingly bellicose in voice and demeanour. By the time the two were squared-off in the parking lot by the pick-up truck, the Complainant began to make aggressive gestures at the officer, such as walking towards him even though he had been directed to stop. At this time, it was apparent that a physical intervention of some sort would likely be necessary to take the Complainant into custody. The SO could have taken hold of him, with or without the WO’s help, but that would have risked a fight of some sort that could also have resulted in injuries to the Complainant and the officers. On this record, it seems the use of the CEW was a reasonable tactic. Had it worked as intended, the Complainant would have been temporarily incapacitated, allowing for his safe apprehension, without the infliction of serious injury. Regrettably, the use of the weapon always carries with it a risk of injury, which materialized in this case. That risk, in my view, was not a prohibitive one in the circumstances.

Date: November 15, 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.