Cruiser accidentCruiser and motorbikeRunners
thick blue gradient line

SIU Director’s Report - Case # 18-OCI-240

Contents:

News Releases for this Case:

French:

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 24-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 9, 2018, at 2:00 p.m., the Complainant contacted the SIU and reported that he sustained injuries, including facial swelling and a loss of vision in one eye, on July 29, 2018, when Peel Regional Police (PRP) officers severely beat him during his arrest. 
 

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Interviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Not interviewed, but notes received and reviewed
WO #8 Not interviewed, but notes received and reviewed


Subject Officers

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


Evidence

The Scene

A scene was not held for this investigation. The scene was located on Kirwin Avenue north of Dundas Street East in Mississauga.

Forensic Evidence


Conducted Energy Weapon (CEW) Maintenance Log and Download Report


The CEW maintenance log reports, dated July 31, 2018, for the CEWs deployed by SO #1 and SO #2 were examined. The two CEWs were in working order.

The CEW download report was examined for the same CEWs. SO #2 deployed two cartridges and his trigger was pulled twice in and around the time of the incident, cartridge one for six seconds and cartridge two for eight seconds.

SO #1 deployed two cartridges and his trigger was pulled three times in and around the time of the incident, cartridge one for five seconds, cartridge two for nine seconds and cartridge two for five seconds.

Communications Recordings

The communications recording was obtained and reviewed. There was no information contained in the recording that gave any information related to the injuries sustained by the Complainant.

The audio recording for the tactical channel was also obtained and reviewed. There was no information in the recording related to the injuries sustained by the Complainant.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP:
  • Audio Copy Report-911, Phone, Radio Transmissions;
  • Audio Copy Report-Tactical Radio Transmissions;
  • CEW Maintenance Report-SO #1;
  • CEW Maintenance Report-SO #2;
  • Disclosure Log;
  • Event Chronology (CAD Incident History);
  • List of Involved Officers and their roles;
  • Notes of all witness officers and SO #1;
  • Occurrence Details;
  • Taser Download-SO #1 (x2);
  • Taser Download-SO #2 (x2); and
  • Telephone Log.

Incident Narrative

The following scenario emerges from the weight of the reliable evidence collected by the SIU. At about 10:30 p.m., a 911 call was received by PRP from the victim of an assault. The male caller indicated that he had been at an apartment building on Hurontario Street and was beaten at the rear of the premises by a group of males when he asked them to turn down their music. The caller was in his vehicle, a minivan, and was being chased by a silver sedan containing the assailants north on Hurontario Street.

SO #1 and his partner, WO #3, were on patrol in their unmarked truck when they received word of the incident over their radio. With WO #3 driving, they proceeded south on Hurontario Street and waited in the area of John Street to see if they could detect the vehicles. The van and the sedan came into view and performed a U-turn in front of the officers’ location. The sedan pulled up alongside the van as they travelled south on Hurontario Street and sideswiped the vehicle. At this time, the officers, who had been following in their truck, activated their emergency lights and siren and attempted to stop the vehicles. The van slowed and stopped. The sedan did not. It performed a series of U-turns attempting to elude the police vehicle and eventually travelled east on Dundas Street from Hurontario Street.
SO #2 and his partner, WO #4, were also on the lookout for the vehicles in their truck. They caught sight of the sedan as it traveled east on Dundas Street and followed it, turning north behind it onto Kirwin Avenue. The sedan continued on Kirwin Avenue as far as the bridge on the roadway that traverses a ravine, at which point the vehicle stopped and its three occupants exited and fled. The Complainant was among the sedan’s occupants.

The Complainant ran east into the ravine area, fell toward the creek below and eventually found himself on the west side of the ravine below the bridge when he was spotted by officers. SO #1, SO #2, WO #3 and WO #4 were on scene at this time, as was WO #1. It was WO #1 who first detected the Complainant, pointing his location out to the other officers. SO #1 and SO #2 reached the Complainant and pulled him away from some thick brush. They repeatedly directed the Complainant, lying prone on the ground, to show them his hands. The Complainant kept them tucked underneath him. SO #1 and SO #2 deployed their CEWs multiple times at the Complainant, and one of the officers, SO # 1, delivered a punch to the Complainant’s face as they endeavoured to overcome the Complainant’s struggle and secure his hands. The Complainant was eventually subdued and his arms handcuffed behind his back. The time was about 10:45 p.m.

Following the Complainant’s arrest, he was escorted back onto Kirwin Avenue and lodged in a police vehicle. Paramedics attended, removed the CEW probes and transported the Complainant to hospital for examination. The Complainant was diagnosed with swelling to the face and some diminishment of the visual acuity in one of his eyes.

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

In the evening of July 29, 2018, the Complainant was arrested by PRP officers and suffered injuries in the process. SO #1 and SO #2 were the arresting officers and identified as subject officers in the SIU investigation. For the reasons that follow, there is no basis for proceeding with criminal charges against either subject officer.
I am cognizant of the Complainant’s assertion that the force used against him by the officers was far more severe than the aforementioned description would suggest. However, the frailties associated with the Complainant’s allegation are such that it would be unwise and unsafe, in my view, to rest criminal charges on it. For example, he was intoxicated at the time and had limited recall of the events preceding his arrest.

Pursuant to section 25(1) of the Criminal Code, police officers may only use such force as is reasonably necessary in the execution of an act that they are authorized or required by law to do. I accept that SO #1 and SO #2 had lawful grounds to arrest the Complainant. They were possessed of information that the occupants of the sedan in which the Complainant was in had just committed an assault. They further observed the sedan recklessly pursuing a minivan, which they had reason to believe contained the victim of the assault, and striking its passenger side. I am further satisfied that the force used by the officers in effecting the Complainant’s arrest fell within the range of what was reasonably necessary in the circumstances. The Complainant had tried to flee on foot from the officers, giving them reason to fear he would not surrender peacefully. Indeed, when they reached the Complainant in the ravine, the Complainant refused to release his arms from under his body and then struggled with the officers as they tried to handcuff him. The physical confrontation occurred in the dark on uneven terrain with an individual whom the officers had good cause to believe had moments ago assaulted another person. On this record, I am unable to reasonably conclude that multiple CEW discharges and a punch to the head, following which the Complainant’s resistance was overcome and he was handcuffed, ran afoul of the limits prescribed by the criminal law. In arriving at this conclusion, it is important to bear in mind that officers faced with violence are not expected to measure their responsive force to a nicety; while said force must be measured and proportional, it need not be exacting: R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 C.C.C. (2d) 96 (Ont. CA).

In the final analysis, as I am satisfied on reasonable grounds that the force used by the officers was legally justified, there are no grounds to believe either of SO #1 and SO #2 committed an offence notwithstanding the Complainant’s injuries. Accordingly, the file is closed.


Date: August 19, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit