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SIU Director’s Report - Case # 18-OCI-160

Contents:

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release 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 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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


The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into a serious injury sustained by a 40-year-old male.

The Investigation

Notification of the SIU

On May 30, 2018 at 2:55 p.m., the York Regional Police (YRP) reported an injury to the Complainant. The YRP advised that at approximately 11:05 a.m., a number of 4 District Criminal Investigative Branch officers attended a residence on Major Mackenzie Drive West seeking to arrest the 40-year-old Complainant on a number of historical criminal warrants. The Complainant was first seen driving a motor vehicle away from the residence. He drove only a short distance before he stopped the vehicle and fled on foot. The police officers chased the Complainant through a number of backyards and over fences before he was apprehended and taken to the ground. After he was taken into custody, the Complainant complained of severe pain in his left hand. He was later taken to the Major Mackenzie Health Hospital where he was diagnosed with a fractured left fifth digit (pinky finger).

The Team

Number of SIU Investigators assigned: 3

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed

Subject Officers

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


Evidence

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents provided by the YRP:
  • CAD Detailed Call Summary;
  • Email from CW #1 re Arrest – June 4, 2018;
  • Follow-up Duty Report – Witness Officer (WO) #5;
  • Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8 and WO #9.

Incident Narrative


On the morning of the day in question, the Community Oriented Response Unit came into possession of information indicating that the Complainant had taken up residence at an address on Major Mackenzie Drive West in the City of Vaughan. There were a number of warrants in effect for the Complainant and a plan was devised to arrest him in the parking lot of his residence. As the team of officers, including the Subject Officer (SO), made their way in their unmarked vehicles to the area of the Complainant’s building, he was seen to enter a red car shortly before 11:00 a.m. and travel westbound on Church Street. Shortly thereafter, the SO spotted the Complainant driving north on Netherford Road and began to follow him before losing the Complainant’s vehicle on Killian Road. The Complainant parked his car on Lamar Street, exited the vehicle and ran south toward Major Mackenzie Drive West. The SO spotted the Complainant again on Major Mackenzie Drive West and followed him on foot south toward Church Street. The officer called out to the Complainant as he chased him east along Church Street, telling him to stop and that he was under arrest. The pursuit continued until the parties reached the area of a residential property at the northwest corner of the Church and Jackson Streets intersection. After repeatedly ignoring the SO’s direction that he put his hands behind his back and get down on his knees, the officer took hold of the Complainant and forced him to the ground. While on the ground, the Complainant resisted as the SO attempted to grab hold of his arms. With the arrival and assistance of four fellow team members, the SO was able to subdue, handcuff and take the Complainant into custody.

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.

Analysis and Director's Decision


The Complainant was arrested by members of the YRP on May 30, 2018. He was taken to the hospital following his apprehension and diagnosed with a fracture of his left pinky finger. For the reasons that follow, there are no reasonable grounds to believe that any of the officers involved in his arrest, including the SO, committed a criminal offence in connection with the Complainant’s arrest and injury.

The facts are clear on the evidence collected in the SIU’s investigation, which benefitted from interviews with all of the principal players, including the Complainant and the SO, and a number of independent eyewitnesses. There was some evidence suggesting that the Complainant was punched, kicked and choked by the officers while on the ground even though he offered no resistance. However, this evidence was refuted by multiple credible and independent eyewitnesses who were well positioned to see the Complainant struggling against the officers’ efforts to handcuff him.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. The Complainant was a wanted man on a number of outstanding arrest warrants and the officers were within their rights in deciding to take him into custody. When the Complainant decided to resist his arrest, they were also within their rights to apply some force to effect his arrest. In my view, the force that was used – a forcible takedown to the ground followed by what appears to have been a grappling match with a single knee strike delivered by WO #1 to the Complainant’s upper right arm – was a proportional and reasonable response in the context of a man who fled from his arrest, refused to get on his knees as directed and then struggled as the officers tried to secure him in handcuffs. In the result, while the Complainant’s injury may well have resulted from his encounter with the police, I am satisfied that the force used by the officers, including the SO, was legally authorized. Consequently, there are no grounds for proceeding with charges in this case and the file is therefore closed.


Date: May 2, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit