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SIU Director’s Report - Case # 18-OCI-178

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 serious injuries sustained by a 35-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On June 14, 2018, the Complainant notified the SIU of the serious injury he sustained 11 months prior during an arrest by members of the Peel Regional Police (PRP) at a Mississauga motel. The Complainant suffered a fractured left cheek and was treated at Scarborough General Hospital. 

The Team

Number of SIU Investigators assigned: 3

Complainant:

Male interviewed, medical records obtained and reviewed


Civilian Witnesses

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

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right

Evidence provided by the subject officers in the course of the Complainant’s preliminary inquiry was also reviewed.


Evidence

The Scene

The incident occurred on the second floor stairway landing at 60 Britannia Road, Studio 6 Motel in Mississauga. The PRP have a carte blanch agreement with the motel to enforce the Trespass to Property Act (TPA). Additional information of the scene was supplied by way of a drawing by Witness Officer (WO) #1.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP:
  • Activity Log for In-Custody persons;
  • PRP Authorization regarding TPA at 60 Britannia Road;
  • Event Chronology;
  • Notes of WO #1, WO #3, and WO #4;
  • Drawing of the scene by WO #1;
  • Occurrence Details;
  • PRP Disclosure log;
  • Prisoner Details Report;
  • PRP Internal Correspondence;
  • PRP Booking Photo of the Complainant;
  • Un-redacted Audio Report-Phone Calls (Internal);
  • Un-redacted Audio Report-Radio Transmissions; and,
  • The cell video at time of arrest.

Incident Narrative

While a number of the material events in question are disputed, the following appears uncontroversial in the information collected by the SIU. Shortly after midnight of the day in question, the Complainant was with CW #3 in the stairwell of the Studio 6 motel in Mississauga. At about the same time, SO #1 and SO #2 were in the premises patrolling for illegal activities. They entered the stairwell from the second floor and immediately saw the Complainant between the second and third floors. Shortly thereafter, a physical altercation ensued between the officers and the Complainant during which the Complainant was struck by the officers, reportedly sustaining his injury in the process. The Complainant was handcuffed to the rear and ultimately charged with drug- and weapons-related offences.

As for the contested evidence, the subject officers indicate they observed the Complainant holding a bottle of beer in his right hand when they first saw him, and told him he was being investigated for a contravention of the Liquor License Act (LLA). Thereafter, when the Complainant refused to identify himself, SO #2 advised him he was under arrest and proceeded to search his right front pocket. The search produced a bullet. The Complainant attempted to flee past the officer down the stairs but was grabbed by SO #2. The two ended up on the landing in front of the second floor doorway. According to SO #2, he pushed the Complainant’s back against the wall and delivered a punch with his right hand to the Complainant’s left cheek. SO #1, who had been preoccupied with CW #3, intervened in the altercation and punched the Complainant two or three times in the face. The Complainant resisted his arrest by physically resisting the officers in an effort to escape through the doorway, prompting SO #2 to punch him in the stomach. The Complainant keeled over in response to the strike and collapsed head-first into the wall. With SO #1’s assistance, the officers grounded the Complainant and took him into custody. During the melee, say the officers, the Complainant was seen to discard a firearm and what appeared to be drugs wrapped in cellophane.

In contrast, there is some evidence that the Complainant did not have a beer bottle and the officers asked him what he was doing and whether he had any weapons before quickly reaching into one of his pockets and finding nothing. The evidence suggests the Complainant objected to the search and was pushed against the wall by the officer, who then delivered about three punches to his left cheek and one or two punches to the head. The Complainant tried to run away to protect his head and was met with a punch to the stomach followed by a kick to the left side of the head.

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 is reported to have suffered a fractured left cheekbone in the course of his arrest on July 16, 2017. SO #1 and SO #2 were the arresting officers. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that either of the subject officers committed a criminal offence in connection with the Complainant’s arrest and injury.

If the Complainant did not have a beer bottle and the officers suddenly, without reason, used force against him, then what occurred amounts to an unlawful arrest, excessive force and a clear cut criminal offence on the part of one of the subject officers. However, while I am cognizant of the need for a charging authority to limit its assessment of the strength of competing accounts to threshold considerations, I am satisfied it would be unsafe and unwise to proceed with charges against one or both of the subject officers owing to the nature and extent of the frailties associated with the incriminating evidence in this case. Instead, I am inclined to believe based on the strength of the reliable evidence that the Complainant was holding a beer bottle, had a bullet in his pocket, tried to flee and physically resisted arrest.

Pursuant to section 25 of the Criminal Code, police officers are restricted in the amount of force they may use to that which is reasonably necessary in the performance of an act that they are required or authorized by law to do. On the weight of the reliable evidence, I accept that the Complainant was holding a beer bottle in the stairwell of the motel and that the subject officers, therefore, had grounds to investigate him for breaching the LLA. [1] Moreover, once the Complainant refused to identify himself, which the evidence also suggests, I am satisfied that the officers had grounds to arrest him pursuant to section 48 of the LLA. The Complainant attempted to evade apprehension and then resisted the officers when he was caught before he could get away. In the circumstances, the subject officers were entitled to respond with force and the question is whether the force they used was excessive or not. In my view, while the force that is reasonably established on the evidence, namely, three to four punches to the face, a punch to the stomach, several knee strikes to the torso and a grounding, approaches the limit of what was permissible in the circumstances, I am unable to reasonably conclude that it fell outside the range of what was necessary to subdue the Complainant and secure his arrest given his level of resistance, notwithstanding the injury that the Complainant appears to have suffered in the process. In arriving at this conclusion, I have in mind the common law principle that an officer in dynamic and violent circumstances is not expected to measure the degree of responsive force to a nicety; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.).


Date: August 2, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes