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SIU Director’s Report - Case # 18-OCI-203

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 55-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 8, 2018 at 3:00 a.m., the Peel Regional Police (PRP) contacted the SIU and provided the following information.

On July 7, 2018 at about 9:00 p.m., PRP officers came across an intoxicated male (the Complainant) in Mississauga. As officers attempted to arrest the Complainant he became combative and a brief struggle ensued. The Complainant was then transported to 11 Division where upon arrival he again became combative and had to be subdued. A short time later, the Complainant stated his back was sore. He was taken to Credit Valley Hospital (CVH) where he was diagnosed with three fractured vertebrae. He was released from hospital with no further medical intervention being required and prescribed pain medication only.

The Team

Number of SIU Investigators assigned: 4
 

Complainant:

55-year-old 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 Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The scene was located on Prairie Circle in Mississauga. The house was described as a single family dwelling. The two car garage was attached on the north side of the home and the driveway was large enough to accommodate four parked cars. The house had a grass area to the front which ended at the city sidewalk. To the north of the sidewalk was a grass area commonly known as a boulevard and to the north of the boulevard, was the concrete street curb. North of the curb was the asphalt city street, Prairie Circle.

On Saturday, July 7, 2018 the weather was warm, dry and clear.

Video/Audio/Photographic Evidence

The SIU obtained and reviewed the PRP custody video relevant to this investigation and found nothing of evidentiary value. It should be noted the video system did not allow for audio.

Communications Recordings

The SIU obtained and reviewed the PRP communications relevant to this incident and found nothing of evidentiary value.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP:
  • Disclosed Audio Copy Report - 911 Calls and Radio Transmissions;
  • Event Chronology;
  • Notes of all witness officers;
  • Occurrence Details;
  • Prisoner Management Application Log; and
  • Procedure-Incident Response.

Incident Narrative

The events in question may be summarized in short order. In the evening of the day in question, police received a call from CW #1 complaining about the Complainant. CW #1 alleged that the Complainant, her boarder at a single family home on Prairie Circle, was drunk and had thrown a bottle at her. She wanted him removed from the property. The SO and WO #4 arrived at the address in separate vehicles at about 9:00 p.m. They approached the Complainant, who was outside in front of the home, and attempted to speak with him. The Complainant was inebriated and in no mood for a conversation. He swore at the officers and then resisted their efforts as the officers took hold of him. The Complainant was grounded by the officers, handcuffed and then escorted to WO #4’s cruiser where he struggled as the officers attempted to place him in the rear passenger side seat. The officers responded with several knee strikes to the area of the Complainant’s right leg and stomach. Once in the cruiser, the Complainant was taken to the police station and subsequently to hospital, where his neck fractures were diagnosed.

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.

Section 31, Liquor Licence Act -- Arrest for public intoxication

31 (4) No person shall be in an intoxicated condition,
(a) In a place to which the general public is invited or permitted access; or
(b) In any part of a residence that is used in common by persons occupying more than one dwelling in the residence.
(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.

Analysis and Director's Decision

The Complainant suffered fractures to several vertebrae in his neck in the course of his arrest in Mississauga on July 7, 2018. One of the arresting officers was identified as the SO for purposes of the SIU investigation. For the reasons that follow, I am satisfied there are no reasonable grounds for believing he committed a criminal offence in connection with the Complainant’s arrest and injury.

The issue for consideration is whether the force used against the Complainant was legally justified. Pursuant to section 25(1) of the Criminal Code, officers may only use such force as is reasonably necessary in the execution of an act that they are required or authorized to do by law. As the force was applied in aid of an arrest, one must first ask whether the arrest itself was lawful. The Complainant was arrested for public intoxication under section 31(5) of the Liquor Licence Act. That section provides that a person in an intoxicated condition may be arrested if she or he is in a public place and the arrest, in the opinion of the officer, is necessary for the safety of any person. I accept that the Complainant was intoxicated by alcohol and that the officers had grounds, in light of his belligerence and the information they had had their disposal indicating he had recently threatened CW #1, to believe the arrest was necessary in the interest of public safety. While the evidence regarding the precise location of the arrest is varied, it clearly establishes that the Complainant was taken into custody either on property that was clearly public just in front of the driveway of the home or on the driveway. If the latter, while private property in that the general public is not invited or granted access to it, it too falls within the ambit of section 31(5) being part of a residence that is used in common by persons occupying more than one dwelling in the residence. In these circumstances, there are no reasonable grounds in my view to believe the arrest was unlawful.

Nor are there grounds, in my opinion, to reasonably conclude that the force used by the subject officer crossed the line. According to the SO, this force consisted in the main of the Complainant’s grounding, which was described by the officers and a civilian eyewitness, as fairly controlled in nature; the placing of his right knee onto the Complainant’s right shoulder area while they were on the ground and securing the Complainant in handcuffs; and, two knee strikes to the Complainant’s upper right leg while the parties were attempting to lodge the Complainant into the back seat of WO #4’s cruiser. There is some evidence that the knee that was placed on the Complainant’s back was in the location of the base of his neck. Regardless, I am satisfied that neither account gives rise to concerns about excessive force. Confronted with an intoxicated and belligerent person, who struggled against the officers’ efforts to take him into custody, the officers’ responsive force was in my view measured, proportional and within the range of what was reasonably necessary to effect the Complainant’s arrest.

In the result, there being no reasonable grounds to believe that the officers and, specifically, the SO, acted outside the strictures of section 25(1) in arresting the Complainant, there are insufficient grounds to proceed with charges notwithstanding the serious injuries that were inflicted in the process. Accordingly, the file is closed.


Date: August 19, 2019



Joseph Martino
Interim Director
Special Investigations Unit