SIU Director’s Report - Case # 18-OCI-178
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Mandate of the SIU
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.
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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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”).
Notification of the SIUOn 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 TeamNumber of SIU Investigators assigned: 3
Complainant:Male interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
Witness OfficersWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
Subject OfficersSO #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.
The SceneThe 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 ServiceUpon 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.
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.
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,
Analysis and Director's Decision
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.  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,  1 SCR 206; R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.).
Date: August 2, 2019
Special Investigations Unit
- 1) See section 31(2) of the LLA. [Back to text]
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