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SIU Director’s Report - Case # 19-OCI-059

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 42-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On March 19, 2019 Peel Regional Police (PRP) contacted the SIU to report that a male in custody had sustained a serious injury. PRP advised that on March 18, 2019 at approximately 9:53 p.m., a male was observed breaking into a truck located at 1252 Shawson Drive in Mississauga. The owner of the truck was alerted by his security system surveillance cameras and called PRP. Officers responded and located the male who tried to flee on foot, but he was apprehended by the officers in the area of 1235 Shawson Drive. The male resisted and was subsequently tasered three times.

The male complained of having a sore arm. He was transported to Trillium Mississauga Hospital where it was determined that he had a fractured right elbow. He was placed in a sling and released back to the custody of PRP.

Two scenes were being held and five officers were involved. 
 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
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 Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

Two scenes were identified as being associated to this incident. The Complainant was first located inside a commercial van parked at 1235 Shawson Drive, and later apprehended in the parking lot at 1252 Shawson Drive. Both scenes were examined and photographed by SIU forensic investigators.

1235 Shawson Drive is a commercial/industrial property occupied by several businesses. The building extends north from Shawson Drive. A parking lot also extends from Shawson Drive along the entire east side of the property with a high chain linked fence partially securing the north and east sides. Barbed wire adorns the top of the chain linked fence. Security cameras at a neighbouring business captured the Complainant in the parking lot at 1235 Shawson Drive which prompted notification to the PRP.

Four commercial vans were parked (backed in) along the east side fence. The most northerly of the vans, a white GMC cargo van, had its side door open and a rear window was smashed. Evidence of conducted energy weapon (CEW) deployments were discovered at this scene.

1252 Shawson Drive is a commercial/industrial property. This location is on the south side of Shawson Drive opposite and slightly east of 1235 Shawson Drive. A parking lot runs across the front of the building separating it from Shawson Drive. A secured compound with a high chain linked and barbed wire fence is located at the east end of the building. Access to this area was secured by way of a locked gate.

CCTV equipment from 1252 Shawson Drive identified that the Complainant was apprehended in the parking lot near the compound gates. No physical evidence was identified at this location.

Forensic Evidence


Conducted Energy Weapon Deployment


The SO, WO #1, WO #2 and WO #4 all deployed their CEWs during the pursuit and apprehension of the Complainant. WO #2 was the first to do so, triggering his weapon once for a discharge of five seconds. WO #4 was next, also triggering her CEW once for a discharge of five seconds. Shortly thereafter, WO #1 used his CEW in drive-stun mode for one second, and the SO triggered his weapon twice, each associated with a two second discharge.

Video/Audio/Photographic Evidence


Closed-Circuit Television (CCTV) Footage


CCTV footage was obtained from security cameras located at four commercial businesses relevant to both scenes.

Business #1

Business #1 has numerous motion activated CCTV cameras around its building. The equipment is programmed so that when activated the footage is forwarded to the owner’s cellular telephone. A camera situated at the northwest corner of the building captures the west side parking lot which is adjacent to the east side parking lot of 1235 Shawson Drive. This camera had a view of the four commercial vans parked along the fence separating the two businesses.

The footage provided to the SIU began just prior to police arrival, after the Complainant had broken into and entered the van. The camera captured police arrival, the Complainant’s escape from the van, his climb over the fence, slide underneath the gate and flight east across the rear of Business #1 while being pursued by WO #8 and her police service dog. No physical contact was made between the police officers and the Complainant.

Business #2 

A CCTV camera located on the outer wall captured a view of the parking lot and the front of the four commercial vans. This camera captured video footage of the Complainant’s arrival, the arrival of police and the Complainant’s flight from police.

After exiting the van, the Complainant is seen running south on the east side of the fence and sliding feet first on his back underneath a chain linked gate at the south end of the fence line. He is last seen running southeast across the rear lot of Business #1 pursued by WO #8 and her PSD. No physical contact could be seen between the police officers and the Complainant.

Business #3

Business #3 has several CCTV cameras. One camera located inside the compound has a view facing toward the parking lot on the north side of the compound, between the compound gates and Shawson Drive. This is the location where the Complainant was apprehended by the SO.

The distance from the camera to the arrest location, coupled with poor lighting conditions, make it impossible to identify the participants captured in the footage. It is known, however, that the person seen running and being tackled is the Complainant and the person tackling him is the SO. The SO is seen grabbing the Complainant from behind while the Complainant is still running. Both fell forward to the ground with the SO on top of the Complainant.

The camera footage shows other police officers arriving and assisting in the arrest of the Complainant. One or more police officers can be seen delivering either knee/elbow strikes or punches to the Complainant. It is impossible to identify which police officer applies which strike or where the strikes made contact with the Complainant’s body. None of the police officers can be seen kicking the Complainant. It is obvious that a struggle is taking place between the police officers and the Complainant but it is impossible to establish in detail what was happening.

The Complainant first entered the camera’s view at 10:14:34 p.m. when he was tackled by the SO. The struggle lasted approximately one minute and while it cannot be seen it is believed that the struggle ended when the Complainant was secured in handcuffs. At 10:17:15 p.m. the Complainant was lifted to his feet and at 10:17:44 p.m. he was seated in the rear of a police cruiser (known to be WO #5’s cruiser).

Business #4

CCTV camera footage was viewed from this business but offered nothing of evidentiary value.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP:
  • CAD-Event Details;
  • Notes of witness officers; and
  • Witness Statement of the CW.

Incident Narrative

The following scenario emerges from the weight of the reliable evidence collected by the SIU in its investigation, which included video recordings from surveillance cameras that captured the Complainant’s flight from police and arrest. Shortly before 10:00 p.m. on March 18, 2019, PRP received a 911 call reporting a theft in progress at 1235 Shawson Drive in Mississauga. The Complainant was that person.

By the time of the officers’ arrival at the scene around 10:00 p.m., the Complainant was still inside the van. The Complainant refused to acknowledge the officers’ repeated requests that he exit the vehicle with his hands up. The CW eventually arrived at the scene as well and provided the officers a key to the van, which was used to open the side door of the vehicle. As that occurred, the Complainant rushed out the broken rear door window of the van onto a metal chain link fence immediately adjacent to the vehicle. WO #2, among the officers who had gathered around the van, deployed his CEW at the Complainant to no effect; the Complainant managed to scale the fence and landed on the other side.

Once over the fence, the Complainant ran in a southerly direction toward another fence and slid under it on his back feet-first, but not before being targeted with another CEW deployment, this time by WO #4. The deployment had no apparent effect, and the Complainant resumed his flight from police running southeasterly across the rear yard of the commercial premises at 1261 Shawson Drive. Officers ran after the Complainant, including WO #8 with her police service dog. WO #8 gave up the chase when the Complainant came up against and climbed over yet another fence at the east side of the business, thereafter running southerly in the direction of Shawson Drive.

The SO followed the Complainant across the roadway, caught up with him in the parking lot of the business at 1252 Shawson Drive, and tackled him to the ground. The officer was soon joined by WO #1 and WO #2. The Complainant struggled with the officers, refusing to surrender his arms, as they attempted to secure him in custody. His resistance was met by CEW discharges by the SO and WO #1. For his part, WO #2 delivered two to three knee strikes to the right leg, and several punches to the right shoulder and side. The officers eventually wrestled control of the Complainant’s arms and placed them in handcuffs behind his back. The Complainant was lodged in a police cruiser and taken to the police station before being transported to hospital.

I am cognizant that there is some evidence painting a significantly different picture of the force used against the Complainant, but this rendition is fundamentally flawed in key respects and cannot be trusted. This rendition alleges that the Complainant had stopped when he was taken to the ground, and that multiple officers kicked him in the face. A video recording of the arrest captured by a surveillance camera in the area, though not of excellent quality, does establish that the Complainant was, in fact, still running when he was tackled by the SO. The same video, while showing a struggle of some sort between the officers and the Complainant whose details are largely indistinguishable, does not depict kicking motions of the type and duration described.

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 March 18, 2019, the Complainant was inside a van when it was surrounded by police officers, who ordered him to step out. The Complainant exited from the rear of the vehicle and ran from the officers. The Complainant was caught in short order and brought to the ground, whereupon he was arrested and handcuffed. He was subsequently taken to hospital where he was diagnosed with a fractured right elbow. The SO was the officer who took the Complainant to the ground and may have inflicted the injury in so doing. 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 injury.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. The officers had ample grounds to believe that the Complainant had broken into a van and was subject to lawful arrest. Thereafter, I am unable to reasonably conclude on the record that excessive force was used by the officers, including the SO. The Complainant gave the officers cause to be concerned he was a danger. He had by all appearances broken into a van, from which he refused to surrender despite it being surrounded by officers. When the side door was open, the Complainant fled through the rear door’s broken window and scaled a fence in what was to become a spirited, albeit short-lived, flight from police. In the circumstances, the officers who initially discharged their CEWs were entitled to proceed with caution and attempt to thwart the Complainant’s attempted escape at a distance with the use of their weapons. Undeterred by the use of CEWs, and still in full flight from police, I cannot find fault with the SO’s decision to tackle the Complainant to the ground at the first opportunity. From that position, the officers could better counter any further efforts by the Complainant to resist arrest. Indeed, the Complainant, as suggested by the weight of the evidence, struggled with the officers on the ground, refusing to release his arms. Notwithstanding two additional CEW discharges, which failed to subdue the Complainant, it was only after WO #2 delivered several knee strikes and punches to the Complainant’s right arm, and, when that did not work, several more punches to his right side, that the officers were able to overcome the Complainant’s resistance and take him into custody. On this record, I am persuaded on reasonable grounds that the force in question progressed incrementally in step with the challenges the Complainant presented, and therefore fell within the range of what was reasonably necessary in aid of the arrest.

In the result, while I accept that the Complainant’s injury likely occurred in the course of the force used by the officers in taking him down and dealing with him on the ground, there are no grounds for proceeding with charges in this case as the officers’ conduct was, in my view, legally justified.


Date: October 15, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit