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 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 injuries a 44-year-old man (the “Complainant”) suffered during an interaction with police.

Notification of the SIU

The Team

Affected Person (aka “Complainant”):

Civilian Witnesses (CW)

Subject Official

Witness Officials

Investigative Delay

The Scene

  

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and the SO, as well as the other arresting officer – WO #3, and a civilian witness. The incident was also captured in parts by security cameras in the vicinity of the arrest.

Shortly after 5:00 p.m. on January 1, 2021, WO #3, on patrol in a marked police SUV, pulled into the Canadian Tire gas station at Stone Road West and Scottsdale Drive. He had followed a pickup truck on Scottsdale Drive to the location and was intending to investigate its driver for an earlier speeding infraction. The driver was the Complainant. He brought his vehicle to a stop alongside pump #3 intending to purchase gasoline. WO #3 stopped his cruiser just off the front driver’s side corner of the pickup truck.

The Complainant took objection to WO #3’s presence and refused to cooperate with the officer when asked for his driver’s licence. WO #3 explained that the police had received a complaint about his truck speeding earlier in the afternoon on Ironwood Road. The Complainant denied he had been on Ironwood Road and believed he was being harassed by the police. He refused to identify himself when asked, pumped gas and walked away from the officer toward the gas station kiosk. In the kiosk, he warned his passenger, CW #1, who had exited the pickup truck right after it had come to a stop, of WO #3’s presence and that they had to leave the area. A non-association order was in effect at the time preventing the two from being together.

The Complainant exited the kiosk and walked past WO #3 toward the gas station entrance/exit off Scottsdale Road as the officer continued to warn him that he would be arrested if he failed to identify himself. As it appeared the Complainant had no intention of complying with the officer’s request, WO #3 radioed for assistance concerned that the Complainant might resist his arrest.

The SO heard WO #3’s call for help and made his way to the gas station as the Complainant had turned and was making his way back toward the gas station. He stopped his pickup truck about 20 metres away from his colleague and the Complainant, and exited to render assistance. By the time he arrived at the parties, WO #3 was attempting to handcuff the Complainant.

The Complainant resisted WO #3 and, then, the SO, as the officers attempted to take him into custody. While still on his feet, the Complainant tensed his arms refusing to have them brought together behind his back. The SO intervened and grabbed hold of one of the Complainant’s arms. The Complainant was repeatedly told to stop resisting but he continued to struggle against the officers’ efforts. The SO aimed a kick at the Complainant and struck him in the face as the Complainant was falling to the ground. The blow broke the Complainant’s nose. He continued to resist and was met with a further knee strike to the right side by the SO, after which the officers took control of the Complainant’s arms and handcuffed them behind his back.

Paramedics attended the scene following the Complainant’s arrest and transported him to hospital where he was diagnosed with a fractured nose.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

On January 1, 2021, the Complainant’s nose was broken in the course of his arrest by two GPS officers.  The SO – one of the arresting officers – was identified as likeliest to have inflicted the injury and, therefore, designated a subject official for purposes of the SIU investigation.  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 authorized or required to do by law.  I am satisfied that WO #3 was within his rights in investigating a speeding infraction and moving to arrest the Complainant when the latter refused to identify himself and turn over his driving documents.  Under section 33 of the Highway Traffic Act, motorists are under a legal obligation to turn over their licence or, barring that, identify themselves to police officers.  When the Complainant refused to do so, he rendered himself subject to arrest by virtue of section 217(2) of the Highway Traffic Act.  The issue turns to the propriety of the force used by the SO in aid of the Complainant’s arrest.

 While the evidence suggests that the force used by the SO – a kick and knee strike – may have been at the upper end of what was legally permissible, I am unable to reasonably conclude that it crossed the line into excessive force.  At the outset, I note that I am unable to place any weight on the account of CW #1, whose evidence  was contrary to the evidence of the two arresting officers and the Complainant.  I am also unable to give any effect to the suggestion that the Complainant did not physically resist arrest.  Though it must be said that the video recording of the arrest captured by a camera in the area did not disclose an overtly combative Complainant, it did indicate that WO #3 was having difficulty in securing his arms behind his back, lending credence to the resistance each of the officers described in their evidence.  That being the case, it seems to me that taking the Complainant to the ground was a tactic reasonably available to the officers in the circumstances.  Given their positional advantage in that scenario, any continued resistance on the part of the Complainant could be better managed by the officers.  The kick delivered by the SO seems heavy-handed in the circumstances.  That said, the officer explained that he intended to strike the Complainant’s torso with the kick and inadvertently hit him in the face as the Complainant was being grounded by WO #3.  While I am not altogether convinced that the kick, however the SO intended it, was well-advised given the presence of two officers on the scene, I am not persuaded that it was so over-the-top as to fall afoul of the limits prescribed by the criminal law.  In arriving at this conclusion, I am mindful of the fact that the Complainant, on the weight of the evidence, continued to physically resist the officers’ efforts to take control of his arms on the ground notwithstanding the kick.  Indeed, for that same reason, I am unable to find that the knee strike delivered by the SO was unnecessary, after which the officers were able to secure the Complainant’s arms in handcuffs.  No further blows of any kind were struck after the Complainant was physically restrained.

 In the result, while I accept that the Complainant’s nose was broken by a kick delivered by the SO, I am satisfied on reasonable grounds that the force used by the officer fell within the range of what was reasonably necessary in the circumstances to effect a lawful arrest.  Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.              

Date:   April 12, 2021

Electronically approved by

Joseph Martino

Director

Special Investigations Unit