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SIU Director’s Report - Case # 18-OCI-376

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 27-year-old male (the “Complainant”).

The Investigation

Notification of the SIU

On December 27, 2018, at 8:15 a.m., the Peel Regional Police (PRP) reported that on December 27, 2018, at 3:41 a.m., a witness reported seeing a break and enter in progress at Holt Renfrew at Square One Mall in Mississauga.

PRP was notified and the first responding officer was the Subject Officer (SO). Two males involved in the break-in attempted to flee in a stolen Porsche Cayenne, and collided with the SO’s cruiser.

The two males exited the Porsche and fled on foot. The SO pursued and arrested the Complainant a short distance away. The Complainant was taken to Trillium Hospital Partners (THP) and had a fractured rib. He had been discharged and was at PRP 12 Division. The second man [later identified as the Civilian Witness (CW)] was arrested by Witness Officer (WO) #2 and WO #4, who deployed his Conducted Energy Weapon (CEW) in drive stun mode to effect the arrest. The CEW was secured at 12 Division. The CW was also throwing up in the cruiser. The SO was taken to THP with contusions and a possible dislocated finger. The scene was being held. 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned:

Complainant:

Complainant 27-year-old male interviewed, medical records obtained and reviewed


Civilian Witness

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

This incident took place at the Square One Shopping Centre, the second largest shopping centre in Canada. It has over 2,200,000 square feet of retail space, with more than 360 stores. The mall serves over 24 million customers each year. There were no video cameras that recorded the outside of the Shopping Centre.

The SIU forensic investigators photographed the scene and mapped the scene with the use of a Sokkia Total Station. The following diagram depicts the scene at the time the SIU arrived.

Scene Diagram

Scene diagram

Police Communications Recordings

The SIU received a copy of the Communications Recording from the PRP. The recording contained 55 separate files, which included a 911 call, dispatches, officer transmissions, and calls for Emergency Medical Services. The following is a summary of the salient portions of the recordings:

  • On December 27, 2018, at 3:41 a.m., the PRP received a 911 call from a civilian witness, who was a distance away at a building on Burnhamthorpe Road. A break-and-enter was reported at the Square One Holt Renfrew, wherein two individuals dressed in black banged on a glass window multiple times until the window broke. The individuals then went inside the store. A civilian vehicle then arrived near the broken window and the two individuals got inside and drove south, then north. A cruiser arrived and a collision took place between the cruiser and the civilian vehicle. The two individuals exited the civilian vehicle and an officer from the cruiser began chasing the civilians. The foot chase went behind a building and the 911 caller lost sight of the two civilians and the officer;
  • At 3:43:20 a.m., the PRP dispatcher began assigning WO #4 to the call;
  • At 3:44:03 a.m., the dispatcher assigned the SO to the call;
  • At 3:45.23 a.m., the SO reported his vehicle had been hit and 2 males were running south.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from PRP:
  • Cover Sheet-Communication Recordings;
  • Disclosed Audio Copy Report;
  • Disclosure Log;
  • Email explaining corruption of GPS modem data;
  • Event Chronology;
  • Notes of witness officers and subject officer; and
  • Occurrence Report.

Incident Narrative

The following sequence of events, as far as they go, emerge from the evidence gathered by the SIU in its investigation, which included a statement from the Complainant, the notes of the incident prepared by the SO, and video recordings captured by surveillance cameras of the Complainant’s activities just prior to his arrest. At about 3:40 a.m., a 911 call was placed to PRP indicating that two individuals were breaking into the Holt Renfrew store at the Square One Shopping Mall in Mississauga. The Complainant was one of those individuals. Together with the CW, he had entered the store from Mercer Street by breaking a window. The two exited the store through the same broken window and entering a nearby Porsche vehicle.

The SO received word of the break-in while on patrol in the area in his cruiser. He made his way onto Mercer Street from City Centre Drive, turned right to head north and immediately encountered the Porsche, which began to travel south in his direction. The officer turned his cruiser right and struck the Porsche, causing it to rotate clockwise before coming to a rest at the northeast corner of the City Centre Drive and Mercer Street intersection.

Both the Complainant and the CW exited their vehicle and began to flee southward. The SO took up the chase on foot and focused his attention on the Complainant. Within moments, the SO caught up with the Complainant and placed him in handcuffs. The CW was also taken into custody by other officers arriving at the scene.

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

On December 27, 2018, the Complainant suffered fractured ribs in the course of his arrest by the SO of the PRP. For the reasons that follow, I am satisfied there are no reasonable grounds to believe the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability with respect to force used in the course of their duties provided such force was no more than was reasonably necessary in the execution of an act that they were required or authorized to do by law. Turning first to the motor vehicle collision between the SO’s cruiser and the Porsche in which the Complainant was an occupant, I am satisfied that it was caused by the SO in an effort to block the Porsche’s path so that he could investigate persons within it for the reported break-and-enter. The SO was within his rights, in my view, in seeking to detain the Complainant and the CW for investigation. Given the location of the Porsche, beside the Holt Renfrew window where the suspects were seen to have entered and exited the store, and the vehicle’s attempt to drive past the police cruiser traveling the wrong way south on Mercer Street, the SO could reasonably suspect that its occupants were implicated in the crime, thereby justifying their detention for investigative purposes: R v Mann, [2004] 3 SCR 59. As for the tactic the SO adopted to stop the Porsche, while driving a cruiser into a fleeing vehicle might seem excessive, the officer had little option at the time if he was going to effect his purpose as the Porsche was in the process of maneuvering around him. Done at relatively low speed and with no other traffic on the roadway, I am unable to reasonably conclude on this record that the officer’s conduct fell outside the range of what was reasonably necessary in the circumstances.

The liability analysis is less clear when it comes to the force used by the SO to arrest the Complainant after he exited and fled from the Porsche. By this point in time, I am satisfied that the officer had necessary grounds to take the Complainant into custody for the break-in at the Holt Refrew store. Not only was he in the area of the crime and fleeing from the police in a vehicle, he was now also on foot trying to get away. In his notes, the SO says that he caught up to the Complainant a distance from the collision as he fell into some bushes on the south side of Holt Refrew. According to the officer, the Complainant resisted on the ground and refused to surrender his arms for handcuffing, prompting the officer to punch the Complainant four times. No further force was used and the Complainant was handcuffed. There is some evidence that the Complainant voluntarily gave up the chase and had gone to the ground on his front when the officer jumped on his back with both knees, breaking his ribs in the process. The officer then allegedly punched his head and kicked his ribs before he was handcuffed. At no point, according to this evidence, did the Complainant struggle against the SO’s efforts.

I am inclined to accept that the SO might well have placed his weight on the Complainant with his knees as the latter lay prone on the ground. By that time, the officer would have had good cause to believe he was dealing with a potentially dangerous individual given his association with the break-and-enter and his concerted effort to escape police custody. In the circumstances, it seems to me that placing his knees to the Complainant’s back to keep him down was a reasonable tactic to have adopted until the officer could be assured the Complainant did not pose a threat. I also accept that the Complainant was punched a minimum of four times; the SO concedes as much in his notes. What I find difficult to resolve is whether the Complainant was the subject of any further force used by the officer, as a body of evidence suggests, and whether the Complainant physically resisted his arrest, as the SO claims. With respect to the SO’s assertions on these fronts, they must be taken with a grain of salt given they were not tested via an interview with SIU investigators. The allegations against the SO, on the other hand, suffer from their own frailties. The source of this evidence was evasive in his SIU interview and gave the impression that the source had things they wanted to hide as regards the events of that night. As for the Complainant’s fractured ribs, which otherwise might have served to support the allegations, it is incapable of doing so in this case given the distinct possibility the injury happened in the motor vehicle collision or as a result of the SO coming down with his knees and full weight onto the Complainant on the ground, both of which I am satisfied occurred as the result of force that was legally justified.

In the final analysis, while I recognize that charging authorities must limit their assessments of competing evidence to threshold considerations, I find that the strength of the incriminating evidence is not sufficiently trustworthy to ground a reasonable belief that the officer used unlawful force against the Complainant in the course of restraining him in

handcuffs. Consequently, there are no grounds to proceed with criminal charges against the SO and the file is closed.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit