SIU Director’s Report - Case # 24-OCI-387

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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 31-year-old man (the “Complainant”).

The Investigation

Notification of the SIU[1]

On September 14, 2024, at 9:12 a.m., the Timmins Police Service (TPS) contacted the SIU with the following information.

On September 13, 2024, at about 10:30 p.m., TPS officers responded to a call involving weapons at an address in South Porcupine. A man [now known to be the Complainant] was armed with a knife and threatening a neighbour. When TPS officers arrived, they encountered the Complainant in the driveway; he was aggravated and armed with a large knife. TPS officers engaged the Complainant. He actively resisted, and was grounded and handcuffed. The Complainant was transported to the TPS station where he fought with officers in the custody unit prior to being placed inside a holding cell. On September 14, 2024, at about 6:00 a.m., the Complainant complained of pain in his left foot. He was transported to the Timmins & District Hospital (TDH) and diagnosed with a fractured left foot.

The Team

Date and time team dispatched: 2024/09/14 at 10:12 a.m.

Date and time SIU arrived on scene: 2024/09/14 at 11:14 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on September 14, 2024.

Civilian Witnesses (CW)

CW #1 Interviewed

CW #2 Interviewed

The civilian witnesses were interviewed on September 15, 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

WO #4 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed on September 19, 2024.

Evidence

The Scene

The events in question transpired in and around the front of a home situated in South Porcupine.

Video/Audio/Photographic Evidence[2]

TPS Communications Recordings

On September 13, 2024, at 9:45 p.m., a man called 911. He reported that the Complainant had called and threatened to kill him, and he believed the Complainant was out driving drunk. Police dispatch asked how the man knew the Complainant was drinking and he stated the Complainant admitted he was, saying that he had about six beers.

At 9:47 p.m., WO #1 was dispatched to deal with the call. WO #1 went to the 911 caller’s home, spoke with him, and formed grounds to arrest the Complainant for uttering threats and harassing communications.

At 10:24 p.m., WO #1 arrived at a home in South Porcupine. A minute later, the SO was placed on the call, arriving at 10:33 p.m.

At 10:39 p.m., the SO broadcast that everything was fine, and that they were transporting the Complainant to the police station.

Video Footage – Cell Area

Fourteen hours of cell video was received and reviewed. The Complainant did not initially appear to be favouring his left foot, but as the video progressed, the Complainant favoured his left foot and was seen hobbling on it.

In-car Camera (ICC) Footage – The SO’s Cruiser

On September 13, 2024, the SO was dispatched to the call involving the Complainant and activated his ICC system. When he arrived at the scene, he parked behind a vehicle which entirely blocked the camera’s view of the arrest. The interaction with the Complainant took about three minutes.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the TPS between September 14, 2024, and September 17, 2024:

  • Arrest Report;
  • Charge Summary;
  • Court Synopsis;
  • Computer-aided Dispatch Report;
  • Communications recordings;
  • ICC video from the SO’s and WO #1’s cruisers;
  • Video footage - cell area and booking desk;
  • Policy - Prisoner Care and Control; and
  • Notes - WO #1, WO #2, WO #3 and WO #4.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between September 17, 2024, and September 26, 2024:

  • Medical records of the Complainant from the TDH; and
  • Snapchat video recording provided by CW #1.

Incident Narrative

The evidence collected by the SIU, including interviews with the Complainant, and police and non-police witnesses, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the evening of September 13, 2024, TPS officers were dispatched to investigate a complaint of ‘threatening’. A citizen had called police to report that the Complainant had threatened to kill him. WO #1 drove to the caller’s residence in South Porcupine and spoke to him. Satisfied that there were grounds to arrest the Complainant, the officer made his way to the address where the Complainant was reportedly located.

The Complainant met with WO #1 outside the residence and seemed cooperative with his pending arrest. He asked to smoke a cigarette before they left for the station, and WO #1 permitted him to do so. Shortly thereafter, the SO arrived on scene.

The SO and WO #1 took hold of the Complainant. An altercation ensued in which the Complainant was grounded behind WO #1’s cruiser. The SO struck the Complainant several times, after which his arms were handcuffed behind the back and he was placed in the rear of WO #1’s cruiser.

The Complainant was transported to the station and taken to a cell where several officers pinned him to the cell bench while they removed the handcuffs.

The following morning, the Complainant complained of pain. He was transported to hospital and diagnosed with a fracture of the left foot.

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 264.1, Criminal Code - Uttering threats

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

(b) to burn, destroy or damage real or personal property; or

(c) to kill, poison or injure an animal or bird that is the property of any person.

(2) Every one who commits an offence under paragraph (1)(a) is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

(3) Every one who commits an offence under paragraph (1)(b) or (c)

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

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

Analysis and Director’s Decision

On September 14, 2024, the TPS notified the SIU that a male they had arrested the day before – the Complainant – had been diagnosed with a serious injury. The SIU 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 Complainant was subject to arrest. Given what WO #1 knew of the 911 call, and his conversation with the 911 caller, there were grounds to believe that the Complainant had uttered threats contrary to section 264.1 of the Criminal Code.

With respect to the force used by the officers in effecting the Complainant’s arrest, the evidence falls short of reasonably establishing it was excessive. The depictions of force used to arrest the Complainant were varied. There is a version of events in which the SO was needlessly confrontational and the situation quickly deteriorated to the point that the officers grounded the Complainant at the back of a cruiser. There is another account indicating the officers did not strike the Complainant in any manner while he was being grounded. Yet another account indicated that the Complainant fought with the officers before he was taken to the ground and kicked by the SO. WO #1 says that he and the SO moved to arrest the Complainant when he became belligerent following the SO’s arrival on scene. They took hold of the Complainant and escorted him to the back of WO #1’s cruiser where he attempted to place the SO in a headlock. The SO, says WO #1, reacted by grounding the Complainant. The Complainant refused to release his hands while on the ground and was met by strikes to the upper body by the SO. No strikes were delivered after the Complainant was handcuffed. At the station, according to WO #1, the Complainant was held down on the cell bench while officers removed his handcuffs. No strikes were delivered. On this record, I am unable to reasonably conclude that the evidence suggesting the force used by the officers was excessive is any likelier to be closer to the truth than WO #1’s account.[3] That account, detailing a grounding and several strikes to the body at the arrest scene, and the manpower used in the cell to keep the Complainant pinned while his handcuffs were removed, would not appear a disproportionate use of force in light of the Complainant’s resistance.

In the result, while it remains unclear where and how the Complainant suffered his foot injury, there are no reasonable grounds to believe it is attributable to unlawful conduct on the part of the SO. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: January 10, 2025

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]
  • 3) In fact, video footage of the events in the cell is consistent with WO #1’s evidence. [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.