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SIU Director’s Report - Case # 19-OCI-084

Contents:

News Releases for this Case:

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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 two men, ages 35 and 59 (“Complainant #1” and “Complainant #2”).

The Investigation

Notification of the SIU

On April 21, 2019, at 8:57 a.m. the Peel Regional Police (PRP) contacted the SIU and reported an injury to Complainant #1.

The PRP advised that on April 20, 2019, at 9:59 p.m. the PRP attended at Complainant #1’s address to arrest him for theft and possession under $5000. Six police officers were allowed into the home and Subject Officer (SO) #1 tried to arrest him. Complainant #1 resisted and a short struggled ensued between police officers, Complainant #1 and his father, Complainant #2.

Complainant #1 suffered a facial injury and was taken to Brampton Civic Hospital (BCH) where he was diagnosed with a fractured nose. Complainant #2 also attended BCH for chest pains but was released.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
 

Complainants:

Complainant #1 35-year-old male interviewed, medical records obtained and reviewed
Complainant #2 59-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
WO #6 Not interviewed, but notes received and reviewed


Subject Officers

SO #1 Interviewed, and notes received and reviewed
SO #2 Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The scene of this incident was in the hallway/foyer of the Complainants’ residence in Brampton. The scene had been cleaned up by CW #1 before the extent Complainant #1’s injury was known and was therefore not forensically examined.

Video/Audio/Photographic Evidence


Closed-Circuit Television (CCTV) Footage

The camera was mounted to an exterior corner of the Complainants’ residence with a view of the front door:
  • At 9:54 p.m., SO #1, WO #1, WO #2 and WO #3 arrived at the address. SO #1 rang the doorbell. The door opened and SO #1 produced his police badge and motioned slightly forward with his left hand;
  • At 9:57 p.m., WO #3 exited the residence and used his portable radio;
  • At 9:58 p.m., WO #4 and WO #5 arrived at the residence;
  • At 10:00 p.m., WO #3 exited the residence and used his portable radio a second time;
  • At 10:03 p.m., SO #2 arrived at the address in a marked police cruiser and entered the residence;
  • At 10:05 p.m., Complainant #1 was escorted outside the residence;

Police Communications Recordings

  • At 7:52 p.m., WO #1 called dispatch to log units on an operational plan in relation to the Complainants’ residence in Brampton;
  • At 9:59 p.m., WO #3 radioed to advise Complainant #1 was in police custody and requested a transport unit. SO #2 was placed on the call;
  • At 10:04 p.m., WO #3 radioed to advise of a disturbance and several units were dispatched to the address;
  • At 10:19 p.m., EMS were called to attend the parking lot at Our Lady of Lourdes school for Complainant #1;
  • At 11:07 p.m., SO #2 was on route to BCH with Complainant #1;
  • At 11:33 p.m., EMS were called to attend the address for Complainant #2 who was experiencing chest pain and shortness of breath;

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP:
  • Audio Copy Report-Phone;
  • Audio Copy Report-Radio;
  • Disclosure Log;
  • Information-Complainant #1;
  • Notes of SO #1 and the witness officers;
  • Occurrence Details; and
  • Operational Plan.

Materials obtained from Other Sources

The SIU received CCTV footage from security cameras located at the outside of the Complainants’ residence and the Complainants’ medical records.

Incident Narrative

While there is much discrepancy in the evidence regarding the nature of the interaction between the officers and the Complainants, the following broad outline of what occurred appears common grounds in the accounts obtained by the SIU. At about 10:00 p.m. on April 20, 2019, a crew of plainclothes officers approached the Complainants’ residence in Brampton. The team leader, SO #1, accompanied by WO #1, WO #2 and WO #3, were there to arrest Complainant #1 in relation to a breach of recognizance and various thefts. Earlier in the evening, WO #1 had briefed the officers regarding Complainant #1 and the crimes he was alleged to have committed. Following a period in which the team surveilled the residence looking for evidence of the stolen property and Complainant #1’s presence in the home with negative results, the decision was made to knock on the front door.

Complainant #1’s mother, CW #1, answered the door. SO #1 identified himself and his colleagues as police officers and indicated he wished to speak to her son. CW #1 called for Complainant #1, who was in the basement watching television with his brother, CW #2, and the two made their way upstairs. SO #1, standing in the foyer of the house with the other officers, advised Complainant #1 he was under arrest and took hold of him. Complainant #1 objected to his arrest and there ensued a physical altercation between him and, principally, SO #1. Complainant #1 was eventually taken to the floor by the officers where the struggle continued for a period before Complainant #1 was handcuffed. At some point in the altercation, the evidence indicates that Complainant #2 was pushed up against a wall and had his arm forced behind him by an officer.

Following Complainant #1’s arrest, both he and Complainant #2 were taken to hospital where their injuries were 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

Complainant #1 suffered a broken nose in the course of a physical altercation that marked his arrest at the hands of several PRP officers on April 20, 2019. There is some evidence his father, Complainant #2, may also have sustained a fractured left rib. SO #1 and SO #2 were identified as subject officers in the SIU investigation; the former in relation to Complainant #1’s injury, the latter with respect to Complainant #2. On my assessment of the evidence, I am satisfied there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the arrest and the Complainants’ injuries.

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 authorized or required to do by law. I am satisfied that the officers had sufficient grounds to arrest Complainant #1 for a series of thefts and a breach of recognizance based on the information that WO #1 had developed in his investigation. I am further satisfied that the officers were lawfully inside the Complainants’ home when they advised Complainant #1 he was under arrest. While there is conflict in the evidence on the point, the weight of the information collected by the SIU, including a video recording of the officers’ entry captured by a surveillance camera on the Complainants’ property, suggests SO #1 asked if the officers could enter the home and were allowed inside by CW #1.

There are widely disparate accounts of what occurred once the officers were through the front door. Most are agreed that Complainant #1 physically resisted when SO #1 laid hands on him and indicated he was under arrest. The evidence establishes that Complainant #1 and SO #1 tussled with each other – the latter attempting to secure Complainant #1’s arms in handcuffs, the former pushing and pulling to prevent that from happening. The altercation wound its way down a hallway and into a bathroom where the wrestling match continued before Complainant #1 was forced out and taken to the floor. Some evidence suggests Complainant #1 was subjected to multiple knee strikes to his head and torso, including one to the face by SO #1 which likely broke his nose. None of the officers who were present in the home, including WO #2 and WO #3, and the late arriving WO #4, who also participated in Complainant #1’s arrest, say that they struck Complainant #1 in any way or witnessed any other officer do so. In their version of events, aside from forcing Complainant #1 to the ground, the force used consisted of grappling with Complainant #1 to overcome his resistance and eventually take him into custody.

With respect to the rest of the evidence, it was internally inconsistent and at times demonstrably false. It established widely varying accounts on material points, including the extent of force used by the officers against Complainant #1. It also indicated that twelve officers were grappling with Complainant #1 in the home but there were not that many officers inside the home at the time.
I am unable on the aforementioned record to reasonably conclude that the force used by the officers against Complainant #1 was excessive. At most, the evidence indicates that Complainant #1 was kneed several times by one or more officers, including SO #1, after he was forcibly taken to the ground while Complainant #1 struggled vigorously to avoid being taken into custody. Given the latitude the law confers on officers and their use of force in violent and dynamic situations – a response that is reasonable but not necessarily exacting – I am not persuaded that the impugned force at its highest transgressed the limits prescribed by the criminal law. The takedown and the knee strikes would have assisted the officers in subduing a combative Complainant #1 and do not appear to have been disproportionate in the circumstances, particularly considering the prolonged struggle that preceded their application.

As for the injury to Complainant #2, accepting for the moment it was the result of an officer bringing his arm around his back and pushing him against a wall, I am also unable to reasonably conclude on the evidence that it was connected to an unlawful application of force. For starters, the officer identified as being implicated in the allegation, SO #2, said nothing in his statement about a physical engagement with Complainant #2. More importantly, I am not convinced on reasonable grounds that the force was excessive in view of what were clearly efforts on Complainant #2’s part at the time to interfere with Complainant #1’s arrest. The officers were entitled to proceed with Complainant #1’s arrest unobstructed by third parties, and to use reasonable force to that effect.

In the final analysis, while I accept that Complainant #1’s nose was broken in the course of his arrest and that Complainant #2’s injury may also have resulted in and around the same time, I am satisfied that the conduct of the officers, including the subject officers, was at all times lawful. Accordingly, there are no grounds for proceeding with criminal charges against any of the officers and the file is closed.


Date: November 18, 2019



Joseph Martino
Interim Director
Special Investigations Unit