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: 

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 a serious injury sustained by a 64-year-old man (the “Complainant”).

Notification of the SIU
 

On January 15, 2021, at about 4:10 p.m., the Guelph Police Service (GPS) contacted the SIU to report the following.

On January 12, 2021, at 1:13 p.m., GPS police officers went to an address on Stevenson Street North to arrest the Complainant on the strength of an outstanding warrant issued by Huronia Ontario Provincial Police (OPP). The Complainant came out of his residence and interacted with GPS police officers on his porch, then attempted to go back inside. A struggle took place and the Complainant was arrested. He complained he was in pain and was taken to hospital by Emergency Medical Services (EMS). The Complainant was charged with resisting arrest.

GPS were later advised the OPP were unable to come to Guelph to pick the Complainant up, and he was released on the GPS charges. The GPS acknowledged there was no follow-up by GPS to learn of any possible injuries sustained by the Complainant at that time.

The arrest was video recorded by a passerby, identified as the Civilian Witness (CW). The CW had been arrested shortly before the Complainant by the same police officer who arrested the Complainant. The Complainant contacted GPS and relayed the video of the arrest to media outlets. He had also filed a third-party complaint with the Office of the Independent Police Review Director.
On January 15, 2021, GPS police officers located the Complainant in front of the Royal City Mission and arrested him again on the strength of the OPP warrant. At that time, he told police officers he had suffered a broken rib during his arrest on January 12, 2021. The Complainant complained he was not feeling well and was taken back to hospital.
At the time of intake, Huronia OPP police officers were en route to the hospital to await the Complainant’s release so they could escort him to Wasaga Beach on the warrant.

The Team
 

Date and time team dispatched:     01/15/2021 at 7:14 p.m.

Date and time SIU responded:     01/16/2021 at 8:00 a.m.

Number of SIU Investigators assigned:     3

Affected Person (aka “Complainant”):

64-year-old male interviewed, medical records obtained and reviewed

The Complainant was interviewed on January 16, 2021.

Civilian Witnesses
 

CW    Interviewed

The civilian witness was interviewed on January 18, 2021.

Subject Officials
 

SO #1     Interviewed, but declined to submit notes, as is the subject official’s legal right.

SO #2     Interviewed, but declined to submit notes, as is the subject official’s legal right.

The subject officials were interviewed on March 8, 2021.

Witness Officials
 

WO #1     Interviewed

WO #2     Interviewed

WO #3     Interviewed

The witness officials were interviewed on January 29, 2021.

Service Employee Witnesses
 

SEW     Interviewed

The service employee witness was interviewed on January 29, 2021.

The Scene 
 

The incident occurred at the Complainant’s residence on Stevenson Street North. He was arrested on the concrete porch in front of his front door.

Video/Audio/Photographic Evidence [1]
 

The SIU obtained audio, video and photographic records of relevance, as set out below. 
     

Civilian Witness Cellular Telephone Video

Also provided by the GPS, the SIU independently collected the audio/video recordings made by cellular telephone, from the CW himself, on January 19, 2021, after a January 18, 2021, request for that video.

Of the three video segments, the first was dated January 12, 2021, started at 1:15 p.m., and was 40 seconds in length. The second was dated January 12, 2021, started at 1:17 p.m., and was 44 seconds in length. The third was dated January 12, 2021, started at 1:19 p.m. and was one minute and 45 seconds long.


Video Clip One
The Complainant was on his porch and SO #1 was beside him attempting to put the Complainant’s left arm behind his back. The Complainant’s left elbow was above his head. He was leaned forward with his right arm, from the elbow to the wrist, resting on top of the railing that was detached from the wall of the house.

The CW asked what they were doing, and why the Complainant was under arrest. SO #1 said, “Failure to appear.” The Complainant said he “has the fucking paper, you just don’t understand”.

The Complainant stood up, faced the porch steps, and his right hand held the railing. SO #1 faced the Complainant’s left shoulder and held the Complainant’s left hand by his waist.

The CW asked what happened. SO #1, out of breath, said that he had been told he was under arrest. The CW asked whether the officer had already told him, and SO #1 replied yes.

SO #1 straddled the Complainant’s left leg and again tried to bring his left arm behind his back. The Complainant’s left elbow was above his head as he held the railing. The CW again asked SO #1 why the Complainant was being arrested.

The Complainant, his upper body bent forward, his face beside the railing, had his arm slowly brought behind his back as the CW continued to ask the reason for the arrest. The Complainant told SO #1 he was breaking his arm. SO #1 told the Complainant to put his arm behind his back.

The CW yelled at SO #1, asking the reason for the arrest as the Complainant’s left arm was held near his waist before the video ended.


Video Clip Two
The Complainant, seated on the porch, had his legs stretched toward the steps. He was turned slightly to his right and his upper body was against the threshold of the door. SO #1 stood with his upper body bent over top of the Complainant.

SO #1 began to kneel and straddle the Complainant’s legs, and the Complainant got his upper body off the ground, turned and wrapped his arms around SO #1’s left knee.

The CW said, “Look what he is doing to this man.”

SO #1 punched the Complainant in the face, with his left fist, then, the back of his head, with his right fist. SO #1 pushed the Complainant’s head toward the railing and tried to force him to the middle of the door as SO #2 arrived.

The CW positioned himself closer to the broken railing as SO #2 said, “Stop resisting.” The Complainant’s head lifted, but his right arm was still on the ground. SO #1 held the Complainant’s left arm. The Complainant talked about his papers as he turned to look at both the police officers. The CW complained about the Complainant’s treatment as SO #2 stepped inside the house and grabbed the Complainant’s right arm. SO #1 held the Complainant’s left shoulder and his left wrist. SO #2 dragged the Complainant’s upper body across the threshold by his right arm as SO #1 held his right wrist, which caused it to remain at the Complainant’s side. The Complainant was rolled onto his stomach and SO #1, still on the porch, straddled the Complainant’s legs. SO #1 was bent through the doorway and neither the Complainant’s nor SO #2’s upper bodies could be seen. SO #1 put his left knee on the Complainant’s back, which caused the Complainant to say, “Ah fuck.” SO #2 told the Complainant to put his hand behind his back as he knelt to the Complainant’s side. A siren wailed in the distance. The Complainant’s hand was still not behind his back when the recording ended.


Video Clip Three
WO #1 stood on the porch and identified himself. SO #2 stood inside the house. WO #1 told the CW to back up or he would be arrested for obstructing police.

The Complainant’s feet were outside the house, on the porch, and he was in a prone position across the threshold of the front door. The CW voiced his objections to the arrest and WO #1 put his hands on the CW

Police Communication Recordings

Requested on January 18, 2021, and received in the SIU Central Registry on January 21, 2021, the communications file relevant to the Complainant’s arrest on January 12, 2021, started at 1:13 p.m.

At 1:13 p.m., SO #1 broadcast he was at Stevenson Street North, and the Complainant was out front and willing to come with him. The communication operator asked SO #1 if he required another unit. He responded he did not and would advise if that changed.

At 1:14 p.m., SO #2 was sent to Stevenson Street.
At 1:15 p.m., SO #1 asked for more units. SO #2 acknowledged he was responding, and his siren could be heard in the background. The communications operator asked if WO #1 was headed to that location, and he replied he was.

At 1:16 p.m., SO #1 broadcast the Complainant was resisting, but the rest of his transmission was drowned out by the Complainant yelling, “Ow!” He was told two units were close by.

At 1:18 p.m., the dispatcher told WO #1 that SO #2 was at Stevenson Street. WO #1 arrived within seconds.

At 1:19 p.m., it was broadcast that the Complainant was in custody.

At 1:23 p.m., SO #1 asked the communications operator to send a message to the OPP to facilitate the return of the Complainant and was told a staff sergeant would follow up.

At 1:27 p.m., SO #1 broadcast he was en route to the cells with the Complainant and was told the OPP would return the Complainant.

At 1:34 p.m., SO #1 arrived at GPS headquarters with the Complainant. 
     

Custody Video

Requested on January 18, 2021, and received in the Central Registry on January 21, 2021,
a summary of the relevant portions of the custody video follows.

At 1:34 p.m., the Complainant, whose hands were handcuffed behind his back, was removed from a police vehicle, in the sally port, and a search of his person was conducted before he was brought into the booking area where his handcuffs were removed and he was supplied a COVID mask. SO #2 entered the booking area. At 1:40 p.m., the Complainant took a seat and began rubbing his left upper leg.

A sergeant began the booking process and asked the standard questions. The Complainant said his left upper leg, left side, stomach, and lower back hurt. He also said his groin hurt because he was kneed or kicked there. A cut was noted on the middle finger of his right hand.

The Complainant objected to the validity of his arrest because he had not seen a paper copy of the warrant for his arrest and the sergeant told him he was wanted, there was a warrant and he could argue that in court.

At 1:23 p.m., SO #2 took the Complainant to cell three. The cell was not audio recorded. During his detention the Complainant continually held his left ribs with his right hand and appeared to be in pain.

At 3:29 p.m., the SEW provided a blanket and a conversation took place. The Complainant lifted his T-shirt to expose his left side and WO #3 came to see the Complainant’s side.

At 3:40 p.m., WO #3 returned, opened the cell door, and had a conversation with the Complainant.

At 3:54 p.m., the SEW opened the cell door, in company of a uniformed police officer, and the Complainant, with difficulty, gained his feet and walked out of the cell. He walked, slowly into the booking area and appeared to be in some discomfort. WO #3 told the Complainant the OPP were not coming to return the warrant and he would be charged, released, and an ambulance would take him to the hospital. The Complainant was also told the OPP warrant was still outstanding and after he was discharged from the hospital, he should turn himself in to the OPP. Release papers were completed.

At 4:12 p.m., an ambulance arrived, and the Complainant was taken on-board and transported from the police station.

Complainant Photographs of Injuries

On January 20, 2020, the SIU received ten pictures, via text message, from the Complainant. The pictures were of bruises on the Complainant’s right torso, left leg (knee and thigh), right hip, and left lower back. The Complainant sent two videos of his bruised left leg. The pictures appear to have been taken by the Complainant, of himself, and were generated on January 20, 2021, starting at 3:42 p.m. The videos were created that same day at 3:44 p.m.

Police Photographs of Injuries

Requested on January 18, 2021, and received in the Central Registry on January 21, 2021, the GPS took photographs of the Complainant while he was in their custody. They took 12 pictures of the Complainant that captured his left leg, head, hands, left back, over-all, and head and shoulders. They also captured four pictures of the porch where the Complainant’s arrest took place.

Materials Obtained from Police Service 
 

The SIU obtained the following records from the GPS between January 20, 2021, and January 29, 2021:

•  GPS Canadian Police Information Centre (CPIC) Message from OPP (Warrant Outstanding);
•  GPS CPIC Message Reply to OPP;
•  GPS Email bulletin - BOLO (Be on the lookout) - wanted party;
•  GPS Dispatch from Computer-assisted Dispatch details (x2);
•  GPS Arrest Booking Report (x2);
•  GPS Policy - Prisoner Care and Control;
•  GPS Policy - Arrest;
•  GPS Policy - Use of Force;
•  GPS Response Letter to SIU;
•  GPS Training Records;
•  Communication recordings;
•  Custody video;
•  GPS SOCO (scenes of crime officer) injury photographs – the Complainant; and
•  Notes of WOs.
  

Materials Obtained from Other Sources
 

The SIU obtained and reviewed the following records from the following other sources:

•  The Complainant’s Medical Record – GGH – received February 8, 2021;
•  Cellular telephone video – the CW – received January 19, 2021; and
•  Injury photographs taken by the Complainant – received January 20, 2021.
  

The following scenario emerges on the weight of the evidence collected by the SIU, which included interviews with the Complainant, both subject officials, and a civilian witness. The investigation was also assisted by cell phone video recordings taken by the civilian witness of the incident in parts.

Shortly after 1:00 p.m. on January 12, 2021, SO #1 attended at the Complainant’s residence, located on Stevenson Street North, to arrest him. There was a warrant out for the Complainant’s arrest after he had failed to appear in court. The police had earlier that day contacted the Complainant to speak with him about the matter. The Complainant was aware of the warrant and indicated he would be home in the early afternoon.

SO #1 approached the front door porch area of the residence to speak with the Complainant and told him he was under arrest. The Complainant initially indicated that he would go willingly with the officer, but soon had a change of heart. He believed SO #1 required a physical copy of the warrant with him in order to effect his arrest, and the officer did not have one. He wanted to re-enter his home to retrieve certain paperwork. As he turned around to step back inside the house, SO #1 grabbed the Complainant and prevented him from doing so.

A physical altercation between SO #1 and the Complainant ensued, parts of which were captured by the CW, who approached the scene with his cell phone and took objection to what was happening. SO #1 ordered the Complainant to place his arms behind his back. The Complainant refused to do so, and instead grabbed hold of the top bar of the metal railing that bordered the porch to his right. The officer repeatedly asked the Complainant to surrender his arms, and then yanked him forward and back attempting to break his grip on the railing, partially dislodging the railing from its concrete base in the process. The Complainant insisted that he be allowed to retrieve his paperwork and refused to relinquish his grip of the railing. SO #1 called for assistance and then delivered a left-handed punch to the Complainant’s left ribs area. The officer again radioed for assistance and then threw two or three more punches to the Complainant’s torso. At some point, SO #1 was able to gain control of the Complainant’s left arm. However, it was not until the second of two knee strikes, the first to the Complainant’s left thigh and the second to his groin, that the Complainant let go of the railing completely and the officer was able to pull him to the ground.

The struggle continued with the Complainant perched on the ground, his back over and against the raised threshold of the front door and his legs extended toward the porch stairs. With SO #1 still on his feet but leaning over the Complainant, the Complainant wrapped his arms around the officer’s left leg at the knee. SO #1 reacted by delivering two short punches to the Complainant’s head, after which the Complainant let go of the officer’s legs.

Within seconds of the second punch, SO #2, responding to the scene following SO #1’s requests for assistance, arrived on the porch and physically engaged the Complainant. The Complainant was forced into a prone position over the door’s threshold, his top half inside the open doorway, his legs still outside on the porch. SO #1 placed a knee on the Complainant’s lower back and, with SO #2’s help, was able to handcuff the Complainant’s arms behind his back.

Following his arrest, the Complainant was lifted to his feet, placed in SO #1’s cruiser, taken to the police station, and lodged in a cell. He subsequently complained of pain and was taken to hospital, where he was diagnosed with rib fractures.

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,

The Complainant suffered serious injuries in the course of his arrest by GPS officers on January 12, 2021. The arresting officers – SO #1 and SO #2 – were identified as subject officials for purposes of the SIU investigation. 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 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. There were lawful grounds to take the Complainant into custody. There was a warrant out for the Complainant’s arrest after he had failed to appear at a court date in relation to criminal charges he was facing. In this regard, it should be noted that the Complainant was wrong to believe that SO #1 was required to have the warrant on his person at the time of the arrest. The officer’s obligation was complete when he advised the Complainant of the existence of the warrant and the reason it had been issued. [2]

I am further satisfied that neither SO #1 nor SO #2 resorted to excessive force in arresting the Complainant. Notwithstanding the Complainant’s age, he proved a formidable physical challenge to SO #1. While not directly assaultive, the Complainant was bent on resisting his arrest. He grabbed on to the porch railing, and refused to release his arms despite SO #1’s repeated requests that he do so. In fact, he grabbed on so tightly that the base of the railing became partially dislodged as SO #1 pulled the Complainant backward. The officer continued to try to pry the Complainant free of his grip of the railing, delivering several punches to his midsection, and knee strikes to the left leg and groin area. This force, I am satisfied, was not delivered indiscriminately. Rather, between each strike, SO #1 provided the Complainant time to release his grip. It was only after the groin strike that the Complainant finally did so.

Thereafter, given the vigour of the Complainant’s exertions to that point, I am satisfied that forcing the Complainant to the ground was a tactic reasonably available to SO #1. In that position, the officer could better expect to deal with any continuing resistance by the Complainant. Nor does it appear that the takedown was unduly forceful.

Indeed, the Complainant did continue to resist on the ground and was met with what, in my view, was force that fell within the range of what was reasonably necessary in the circumstances. While up to this point, the Complainant had simply struggled against SO #1’s efforts to secure his arms, he now grabbed hold of the officer’s left leg and pulled him forward. As the video makes clear, that action had the effect of forcing SO #1 downward onto the Complainant. The officer explained that he felt vulnerable at this time and reacted to the Complainant’s escalation by punching him twice in quick succession to the head, believing it imperative to arrest the Complainant as soon as possible. I am unable to reasonably conclude that SO #1’s apprehensions and conduct were without substance. SO #1 was tiring by this point and, though SO #2 arrived right after the punches, the officer would have been unaware exactly when help was arriving. On this record, there are no reasonable grounds to believe that the punches, neither of which was delivered with any great power, fell afoul of the limits of justifiable force. In arriving at this conclusion, I am mindful that officers embroiled in violent situations are not expected to measure their force with precision; the force in question need not be exacting, as long as it is reasonable: R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA); R v Nasogaluak, [2010] 1 SCR 206.

Though SO #2 grabbed hold of the Complainant, pulled him partially into the residence, and assisted in wresting control of the Complainant’s arms on the ground, at no point did the officer deliver any strikes during his very brief engagement in this matter. In the circumstances, given the nature and extent of SO #2’s limited involvement, I am satisfied that his interventions do not raise any genuine issues regarding the propriety of his force.

In the result, while I accept that the Complainant’s ribs were fractured in the course of his physical altercation with SO #1, perhaps the result of one or more of the punches the officer delivered while the two were on their feet, there is insufficient evidence to reasonably conclude that either subject official acted unlawfully throughout this incident. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: May 12, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit