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Stratford Police sit outside the Stratford Festival's Festival Theater in Stratford, Ont., on May 28, 2018.

Geoff Robins/The Canadian Press

Ontario’s police watchdog has cleared two Stratford officers of criminal wrongdoing after they threw an Indigenous man with autism to the ground and hit him in the head during a 2015 arrest for walking along train tracks.

The decision has left Joshua Nixon’s family questioning where the line is for acceptable use of force.

“I’m emotionally numb,” the man’s sister, Jenaya Nixon, said in a phone interview with The Globe and Mail on Friday. “I didn’t expect anything different. But it’s just ridiculous, all of it.”

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According to a report by the province’s Special Investigations Unit published on Feb. 4, Mr. Nixon was taking a shortcut home along train tracks in Stratford the night of July 27, 2015, when he was approached by a police officer who was “concerned about this contravention of the Railway Safety Act.”

Mr. Nixon, then 23, was wearing noise-cancelling headphones, as he almost always does, to help reduce sensory overload. He ignored the officer and carried on. The officer told Mr. Nixon he could be arrested if he did not identify himself. Mr. Nixon still did not comply, according to the report, and the officer called for backup.

A second officer arrived and the pair grabbed Mr. Nixon’s arms. Mr. Nixon pulled away, and after a brief struggle, the report said, the officers “forced [him] to the ground.”

When he “struggled against the officers’ efforts to handcuff him on the ground,” one of them struck him on the head, the report said. Although he was initially taken to the police station, Mr. Nixon had to go to hospital because his head was bleeding.

“He was treated at hospital, released back into the custody of the police and returned to the police station,” the report says. “[Mr. Nixon] was subsequently charged with resisting arrest and released on a promise to appear.”

His family doctor diagnosed him the next day with a mild concussion, cuts to his face and a black eye.

Last summer – inspired by protests against police brutality and anti-Black racism – Ms. Nixon complained to the SIU.

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The SIU investigates encounters involving police in Ontario that result in serious injury, death or allegations of sexual assault. Police forces must report such incidents, but the Stratford Police did not report this case at the time.

Joshua Nixon’s family is questioning where the line is for acceptable use of force. Stratford officers were cleared of the violent 2015 arrest involving Nixon who is an Indigenous man with autism.

Provided by Jenaya Nixon

“For some reason, they didn’t view smashing someone’s face [into the ground], punching them so hard they break headphones and cause a concussion to be something worth reporting,” said Ms. Nixon, 25.

The force did not respond to The Globe’s requests for comment on Friday.

In Canada, statistics have shown that Black and Indigenous people are disproportionately stopped, injured, and killed by police. Ms. Nixon said she believes systemic racism, as well as ableism, played a direct role in the violence her brother experienced.

“It’s pretty obvious just by the way that Joshua was wearing his headphones, the way that he speaks, and the way that he carries his body, that if you had any training or knowledge about people with disabilities, you would be able to spot that this person probably has autism or something that makes it difficult for him to communicate,” she said. “And they didn’t respect that. They just accosted him. They kept pushing him, they kept scaring him. And for what? Walking across the train tracks?”

She pointed out that the SIU report refers to Mr. Nixon’s “medical conditions.”

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“Like, what do you mean by that? He has autism,” she said.

Ms. Nixon said her brother’s case reflects how ill-equipped police are to interact with people who have mental-health issues or disabilities – and how much discretion officers are allowed when it comes to use of force.

In his report on Mr. Nixon’s case, SIU director Joseph Martino noted that under 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.”

The report noted that because Mr. Nixon admitted “he physically resisted his arrest while on his feet by pulling away,” the officers’ “tactic” was reasonable.

“While I accept that the complainant’s concussion was the result of the force used against him during his arrest, whether the takedown or the hand strike, there are no reasonable grounds to believe that either subject officer acted unlawfully,” Mr. Martino concluded.

University of Toronto PhD candidate Erick Laming, whose research examines police use of force, oversight, and accountability, said the case also highlights the subjective threshold of what it means to resist arrest. While people certainly do resist police arrest, the term could be used as a catch-all excuse.

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“Because there is ambiguity in what resisting arrest may look like, an officer can justify or legitimize their actions based on their interpretation of the civilian’s behaviour,” he said.

Ms. Nixon called the experience disheartening.

“This shows me not only that they have inadequate training, and way too much leeway in their discretion, but also that there’s no point in trying to hold them accountable, because they’re never going to be held accountable.”

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