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SIU Director’s Report - Case # 18-OCI-323

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 53-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 2, 2018, at 4:30 a.m., the Peel Regional Police (PRP) notified the SIU of the serious injury sustained by the Complainant subsequent to an encounter with police officers at his apartment during a domestic dispute. The PRP reported that on November 1, 2018, at 11:32 p.m., the Complainant’s wife called police to their Mississauga apartment to intervene in a domestic situation involving her intoxicated husband. When police officers arrived, the Complainant became irate and a struggle ensued during which police officers deployed conducted energy weapons (CEWs) to the Complainant. The Complainant was later taken to hospital and diagnosed as having suffered a fracture to the left orbit. 

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned:

Complainant:

53-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


Subject Officers

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


Evidence

The Scene

The incident occurred at an apartment on Mississauga Valley Boulevard at or near the bedroom door.

Communications Recordings


911 Call on November 1, 2018 at 11:22 p.m.


DISPATCHER: 911, police, fire, ambulance.
CW #1: Please help me. My husband, he choked me.
DISPATCHER: He choked you?
CW #1: Yea
DISPATCHER: Where are you?
CW #1: I don’t speak English very well.
DISPATCHER: OK, what language do you speak?
CW #1: [Provides language]
DISPATCHER: OK, do you know what address you are at? Let me get a translator OK? Stay on the line.
CW #1: Mississauga Valley.
DISPATCHER: What number?
CW #1: [provides number]
DISPATCHER: Do you know what apartment?
CW #1: [provides apartment number]
DISPATCHER: Is this your home?
CW #1: Yes.
DISPATCHER: Stay on the line, I will get a translator. (Dispatcher: heard calling for a translator. The sound of loud arguing is heard in the background at the apartment.)
DISPATCHER: (Asks the translator to verify the address. He does so.)
INTERPRETOR: He’s drunk, he’s drunk. He’s cursing at me and yes, he choked me.
DISPATCHER: Tell her I’m sending an ambulance. Are there any weapons involved?
INTERPRETOR: No but he has a friend in the house.
DISPATCHER: Anybody else in the house?
INTERPRETOR: (To Dispatcher) She’s arguing with her husband.
DISPATCHER: Tell her to stop talking to him. When did this happen? When did he choke her?
INTERPRETOR: It’s not physically, its words.
DISPATCHER: So he never laid his hands on her?
INTERPRETOR: No, no, he didn’t put his hands around her neck.
DISPATCHER: No weapon?
CW #1: No. (Identifies her husband)
DISPATCHER: Does he know police are coming?
CW #1: Yes
DISPATCHER: Tell her police are coming and to stay on the phone. Is husband still in the apartment?
CW #1: Yes and his friend.
DISPATCHER: Any mental health problems?
CW #1: He is getting treated by a psychiatrist. Every time he drinks, he loses it.
DISPATCHER: The police will be there any minute.
DISPATCHER: The police are in the lobby. Do you want to meet them in the lobby or do you want them to come up?
CW #1: Come up. (Supplies the entry code.)

Forensic Evidence


The CEW Data Retrievals


SO #2 delivered the first CEW charges directed at the Complainant. The first was discharged at 11:39:52 p.m., followed by a second discharge at 11:40:07 p.m. Both were a duration of five seconds.

SO #1 delivered three CEW charges at the Complainant, according to the download. The first, with a duration of eight seconds, was triggered at 11:44:18 p.m., followed at 11:44:29 p.m., with a discharge lasting five seconds. The third strike was triggered at 11:44:52 p.m.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP:
  • Audio Copy of Report;
  • Disclosure Log of November 9, 2018;
  • Notes of WO #1, WO #2, WO #3 and SO #2;
  • Occurrence Details;
  • Prisoner Activity Report;
  • Prisoner Details Report;
  • Procedure - Incident Response; and
  • Risk Report.

Incident Narrative

The following broad outline of the events in question is uncontested on the evidence. Shortly before 11:00 p.m., the Complainant’s wife contacted police to report that her husband was inebriated and had “choked” her. She later clarified that he was figuratively “choking” their relationship; he had not physically choked her. SO #1 and SO #2 were dispatched to check on her well-being, as were paramedics.

The officers arrived at the apartment and knocked on the door, which was opened by the Complainant. There ensued a physical altercation that began in the hallway leading from the front door and ended in a small bedroom off the hallway. Each of the officers had occasion to strike the Complainant and deploy their CEWs during the melee. The Complainant was handcuffed and arrested for assaulting police.

Paramedics entered the apartment following the Complainant’s arrest and examined him. He was subsequently taken in the officers’ cruiser to the police station where he passed out while attempting to wash blood from his face. An ambulance was called to the station and took the Complainant to Sunnybrook Health Sciences Centre, where his fracture was 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.

Analysis and Director's Decision

On November 1, 2018, the Complainant suffered a broken left orbital bone in the course of his arrest by two PRP officers: SO #1 and SO #2. The arrest occurred in the Complainant’s apartment at an address on Mississauga Valley Boulevard in Mississauga. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s arrest and injury.

There is a material discrepancy in the evidence regarding the nature of the altercation between the officers and the Complainant. There is some evidence that SO #2 pushed the Complainant into the bedroom and onto the bed, and used his left hand to punch the Complainant’s left eye six or seven times. This evidence suggests the other officer – SO #1 – used his CEW two or three times on him.

On the other hand, SO #2, the only subject officer who gave a statement to the SIU, says he was greeted by a belligerent and hostile Complainant when the front door opened. The Complainant refused him entry and then pushed the officer backward when SO #2 made it clear he was going to enter the apartment to check on CW #1. The Complainant raised his fists in a fighting stance and SO #2 decided to deploy his CEW. The discharge had little effect as the Complainant retreated to a bedroom down the hall. SO #2 followed him into the room and the two became embroiled in a fight. According to the officer, the Complainant repeatedly punched the officer to the arms and back, prompting SO #2 to discharge his CEW a second time, again to no effect. The two then fell onto the bed; the Complainant continued to punch SO #2’s back and SO #2 delivered a punch to the Complainant’s stomach and then his face. Following the punch to the face, SO #2 heard and saw SO #1 deploy his CEW at the Complainant three times. It was only after the third discharge, says SO #2, that the Complainant finally released his arms from under his chest, and was handcuffed. In conversation with his partner after the arrest, SO #1 told SO #2 that he too had punched the Complainant in the head during the fracas inside the bedroom.

While appreciating the limited scope of a charging authority to weigh the strength of competing evidence, it would be unwise and unsafe in my view to place much if any weight on the evidence suggesting the officers punched the Complainant while he was compliant. This evidence suggests, for example, that the Complainant was only struck by SO #1’s CEW when it is clear, based on the accounts of the officers and data downloaded from the weapons, that both officers discharged their CEWs. Moreover, this evidence indicates that only SO #2 engaged the Complainant physically, whereas SO #1 told SO #2 he too punched the Complainant; I can see no reason why either officer would lie about this evidence.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from liability for force used in the course of their duties provided such force is reasonably necessary in the execution of an act that they are required or authorized to do by law. Whether or not by invitation of the Complainant, SO #1 and SO #2 were lawfully inside the residence at the time to check on CW #1: R v Godoy, [1999] 1 SCR 311. Though the confusion around whether CW #1 had actually been choked by the Complainant seems to have been clarified by the time of their arrival, there had been indication in the 911 call of abuse at the hands of the Complainant, who was inebriated, and the officers were therefore within their rights in seeking to ensure her wellbeing. They were further entitled to arrest the Complainant when, on the weight of the reliable evidence, he pushed SO #2. There ensued a physical altercation in which the Complainant repeatedly punched SO #2 and refused to surrender his hands to be handcuffed. While each officer punched the Complainant and deployed their CEWs multiple times, they only did so as the Complainant continued to struggle and resist arrest, and stopped doing so the moment the Complainant was subdued and taken into custody. Given the confined quarters of the bedroom, one can appreciate why the officers did not resort to their oleoresin spray. On this record, I am unable to reasonably conclude that the force used by the officers fell outside the range of what was reasonably necessary in the circumstances to effect the Complainant’s arrest.

In the result, as I am satisfied on reasonable grounds that the force used by the officers was legally justified, there are no grounds for proceeding with charges against either officer notwithstanding the injury caused to the Complainant, and the file is closed.


Date: October 28, 2019




Joseph Martino
Interim Director
Special Investigations Unit