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SIU Director’s Report - Case # 19-OCI-004

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 24-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 31, 2018, at 8:20 a.m., the Peel Regional Police (PRP) notified the SIU of a possible injury to the Complainant. The PRP advised that on December 30, 2018, at 8:00 p.m., PRP officers were conducting spot checks. The Complainant approached and then fled the spot check. PRP attempted to pursue but lost the Complainant. The Complainant crashed the vehicle he was driving into a pole and fled. PRP officers pursued him on foot, and a police officer deployed a Conducted Energy Weapon (CEW). The Complainant was taken to Credit Valley Hospital and admitted. He was diagnosed with rhabdomyolysis and was being observed for complications. The PRP was to keep the SIU apprised of his condition.

On January 2, 2019, at 2:59 p.m., family members of the Complainant reported that the Complainant had suffered a fractured leg.

On January 3, 2019, at 8:32 a.m., the PRP was advised that the SIU had invoked its mandate.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
 

Witness Officers

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

Additionally, the notes from one other officer was received and reviewed.


Subject Officers

SO #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

The Scene

A Petro Canada gas station is located on the northeast corner of Derry and Kennedy Roads in Mississauga. The arrest location was at the northwest portion of the parking lot nearest to Kennedy Road and behind the kiosk. There were CCTV cameras at the gas station but none that captured the interaction between the Complainant and the police. The scene was processed by PRP and released prior to SIU involvement.

Forensic Evidence


CEW Download Information


On January 3, 2019, PRP downloaded the deployment information from SO #1’s CEW for the date December 30, 2018. The information was provided to the SIU and indicated that SO #1 armed his CEW at 9:16:26 p.m. He deployed Cartridge one (C1) at 9:16:29 p.m. A standard five second electric shock is delivered when the probes make successful contact.

At 9:17:40 p.m. SO #1 pressed the ARC button which delivered another one second shock to the C1 probes. The CEW remained on for another three seconds and was then turned to the safe mode (off) at 9:17:44 p.m.

SO #1 turned the CEW on and then immediately off again at 9:17:59 p.m. There was no deployment at that time. Only C1 was deployed and the CEW was not deployed in the drive stun mode.

Video/Audio/Photographic Evidence


CCTV Footage


CCTV footage was obtained from the Petro Canada gas station. There was nothing of evidentiary value to be found on the video.


Cell Phone Video


A 46 second video clip was obtained from a civilian. The video showed the Complainant abandoning his red Chrysler 200 on Derry Road at the Highway 410 southbound off ramp. The video is of poor quality and the images are not clear. Damage to the Chrysler can be seen by way of a missing rear bumper. The Complainant is seen exiting the driver’s side door and running away eastbound on Derry Road. He does not appear to have a leg injury at that time.

Communications Recordings


911 Call


The following is a summary of relevant information in a call between a witness and the police 911 dispatcher, starting at 9:05 p.m. on December 30, 2018.
  • It’s not an emergency for me, but I am just reporting, just right now on 410 on the exit of Derry, I just saw a red Chrysler 200, the car is totaled, and a black male got out of it and started running. It’s on Derry Road right now, we are not trying to tail the guy right now, but he’s on the run.
  • So, we got off 410 southbound, you might want to send a cop right now.
  • We are trying to spot him. He was in the middle of the road, driving reckless.
  • He is walking on Derry Road now. Wearing all black, black jeans, black jacket. The car is by the side of the road right by the 410.
  • Front side and back damage, the tires are flat.
  • We saw the car making donuts at the exit.
  • It is parked by the sidewalk.
  • An officer is here now.
  • The cruiser drove eastbound on Derry Road.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRPs:
  • Directive - Incident Response;
  • Directive - Suspect Apprehension Pursuit;
  • Disclosed Audio Report 1, Communications Recordings;
  • Disclosed Audio Report 2, 911 Call;
  • Disclosure Log-2019-02-01;
  • Duty Roster (patrol roster);
  • Event Chronology (CAD);
  • Communication recordings;
  • List of Police Witnesses;
  • Motor Vehicle Collision Report;
  • Notes of witness officers and an undesignated officer;
  • Occurrence Report;
  • Pursuit Report; and
  • Taser Download.

Incident Narrative

While there is much in the evidence that is contested, the following scenario appears common ground in the information collected by the SIU from various sources. Those sources included statements provided by the Complainant, a couple of witness officers who observed and participated in the arrest, and several civilian witnesses to certain events preceding the arrest, together with a review of data downloaded from a conducted energy weapon that was deployed, and police notes and reports. It should be noted that neither subject officer, as was their legal right, provided a statement to the SIU. Shortly before 9:00 p.m. on December 30, 2018, WO #1 was parked in the parking lot of a restaurant in the area of Queen Street East and Hansen Road when he observed the Complainant leave the establishment and enter a red Chrysler 200. WO #1 was on patrol conducting RIDE investigations at the time and decided to follow the Complainant’s vehicle as it left the parking lot and proceeded east on Queen Street East. WO #1 followed the Complainant’s vehicle while it made a series of turns. While traveling south on Hansen Road, the Complainant lost control of his vehicle. [1] The Chrysler mounted the south side Orenda Road curb and struck a light pole, causing substantial damage to the vehicle.

WO #1 witnessed the collision and notified the dispatcher that he was now in pursuit of the Chrysler as it proceeded east on Orenda Road. The Complainant continued at speed, making his way onto Rutherford Road before turning east on Steeles Avenue and then south along Highway 410. WO #1 pursued the Complainant for a couple of minutes. At the direction of a sergeant who had been monitoring the pursuit, the officer terminated the chase around the time the Complainant was entering onto the highway.

The Complainant continued driving until he abandoned his vehicle on Derry Road at the Highway 410 southbound ramp. This is where the accounts in the evidence as to what happened next begin to part company.

There is some evidence that the Complainant made his way west toward the Petro Canada gas station located on the northeast corner of the Derry and Kennedy Roads intersection to call a towing company from that location. Soon after his arrival, he was confronted by SO #2, who told him to put his hands behind his back. The officer then rushed the Complainant and placed him in a chokehold, whereupon he slipped on some ice and fell to the ground. The officer fell with the Complainant, maintaining his chokehold while the Complainant lay prone on the ground. The Complainant attempted to loosen the officer’s grip around his neck while another officer, now known to be SO #1, arrived on scene. That officer allegedly shot him with a conducted energy weapon, causing his body to seize. Around the same time, SO #2 allegedly punched the Complainant in the face six or seven times. This evidence suggests that, other than the Complainant’s efforts to remove SO #2’s arm from his neck, he did not resist his arrest.

WO #2 tells a different story of what occurred at the gas station. According to the officer, she arrived at the scene together with SO #1 and observed SO #2 and the Complainant engaged in a physical altercation on the ground. SO #2 was on top of the Complainant, who was on the ground with his arms tucked beneath his body refusing to give them up. WO #2 says that SO #1 shouted at the Complainant to stop resisting his arrest. When he refused to do so, SO #1 discharged his conducted energy weapon at the Complainant, following which WO #2 was able to assist SO #2 in fastening a handcuff on the Complainant’s left wrist. According to WO #2, SO #1 discharged his conducted energy weapon again as the Complainant continued to refuse to give up his right arm, after which she cuffed his right hand as well.

WO #3 arrived on scene shortly after WO #2 and witnessed the latter part of the Complainant’s arrest. The officer says that the Complainant was lying on his back and moving from side to side in an effort to break free as SO #1, SO #2 and WO #2 were holding him to the ground and trying to secure him in handcuffs.

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

The Complainant was arrested at approximately 9:15 p.m. on December 30, 2018 by PRP officers. Following a brief struggle on the grounds of the Petro Canada gas station at the corner of Kennedy and Derry Roads, the Complainant was taken into custody and transported to hospital. The Complainant sustained serious injuries and was also diagnosed with rhabdomyolysis, a condition for which he underwent surgery and was hospitalized for several days. While the evidence was less than conclusive, I accept for purposes of these reasons that the Complainant’s injuries were incurred during the course of his arrest at the hands of the two subject officers – SO #1 and SO #2. In my view, there are no reasonable grounds to believe that either officer committed a criminal offence in connection with those injuries.

If a charge were to be laid in this case, it would have to be on the strength of the more incriminating version of events. If believed, the Complainant was the victim of excessive force on the part of the officers for which they would be liable in an assault-based offence. Having considered the evidence carefully, however, I am persuaded that it would be unsafe and unwise to rest criminal charges on it. For example, the assertion in this evidence that the Complainant had effectively surrendered to police when SO #2 first engaged him physically, and that the only resistance he put up was an effort to remove SO #2’s arm from his neck so he could breathe, is belied by his reckless flight from police moments earlier in which he gave every indication that he was bent on avoiding apprehension. It also stands in opposition to the countervailing evidence of WO #2 and WO #3, each of whom say that the Complainant actively resisted being taken into custody. In the result, for these and other reasons, I am left with little to no reliable information in this body of evidence regarding the degree of the Complainant’s resistance to the arrest.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of their lawful duties. The officers were clearly engaged in their lawful duties when they moved in to arrest the Complainant following his flight from police and the dangerous manner with which he pursued his purpose. With respect to the nature and extent of the Complainant’s resistance, if one discounts the evidence of passivity, what remains by way of eyewitness evidence comes from WO #2 and WO #3. The cumulative impact of their statements, indicating that the Complainant physically resisted his arrest, refused to surrender his hands to be handcuffed and was only subdued following the use of a conducted energy weapon, suggests the subject officers’ use of force fell within the range of what was reasonably necessary in the circumstances to effect the Complainant’s arrest. When one adds to the mix the allegations of the force used against the Complainant and the data downloaded from SO #1’s conducted energy weapon, the case at its highest against the officers suggests SO #2 had his arm around the Complainant’s neck for a period and punched him in the head a number of times before the Complainant was stunned twice [2] by SO #1 and taken into custody. There is no indication in any of the evidence that the officers used any further force once the Complainant was handcuffed. In the context of what appears likely to have been a rigorous struggle between SO #2 and the Complainant, there remains, in my view, insufficient grounds to believe the force used by the officers fell afoul of the latitude prescribed by the criminal law. In arriving at this conclusion, I have in mind the admonition of the common law that police officers caught up in violent and volatile situations are not expected to measure their degree of responsive force to a nicety; what is required is a reasonable response, not a perfect one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.).

For the foregoing reasons, this file is closed.


Date: October 21, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) There is some evidence that WO #1 bumped the Complainant’s vehicle from behind, causing him to lose control and crash into the light pole. The officer makes no mention of making contact with the Complainant’s vehicle at any time. [Back to text]
  • 2) A full five second shock was first delivered, followed about a minute later by a further one second shock. [Back to text]