Cruiser and motorbikeCruiser accidentRunners
thick blue gradient line

SIU Director’s Report - Case # 19-OCI-223

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 serious injuries sustained by a 33-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 12, 2019, at 3:00 p.m., the Peel Regional Police (PRP) notified the SIU of the serious injuries sustained by the Complainant during his arrest two hours prior. The PRP reported that at 1:00 p.m., on September 12, 2019, a PRP plainclothes police officer identified three suspects wanted in connection with a series of residential break-and-enters. The Subject Officer (SO) called for uniformed officers to assist in the arrest of the three suspects and two of them were arrested very shortly thereafter. The third suspect, the Complainant, fled on foot through backyards with the SO in pursuit. The Complainant was eventually captured by the SO at the back of a south Mississauga residence and received facial fractures during the struggle to subdue him.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1 

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The incident occurred at the rear of a residence on Mississauga Road. The area, for a two kilometre radius, is comprised of exclusive homes and, indeed, manors. The neighbourhood is entirely residential. An extensive canvass undertaken by SIU investigators found that not one residence in the immediate vicinity of the incident was equipped with surveillance devices.

Communications Recordings

At 1:07:38 p.m., the communications centre was advised that two males have been taken into custody.

At 1:07:52 p.m., the communications centre was advised that the third male [the Complainant] is still outstanding and that the police were in pursuit of him.

At 1:11 p.m., the communications centre was advised that the male [the Complainant] was in custody. Seconds later, a request was made for an ambulance for the Complainant because of cuts on him.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP:
  • Audio Report;
  • Audio Report-Transmissions;
  • Communications recording;
  • Disclosure Log (x2);
  • Event Chronology report;
  • Occurrence Details report (x3); and
  • PRP Photo-brief of Complainant's property.

Materials obtained from Other Sources

The medical reports on the Complainant were obtained on his consent.

Incident Narrative

The following scenario emerges from the weight of the reliable evidence collected by the SIU in its investigation, which included statements from the Complainant and the SO. The Complainant was a wanted man in connection with a series of break-and-enters in the Greater Toronto Area, including one where a handgun was stolen. The latest break-and-enter involved a heist from a home on Mississauga Road in Mississauga on September 5, 2019. The SO was investigating the crime and had viewed surveillance camera footage of the event that captured the Complainant’s image as among the culprits. At about 12:30 p.m. on September 12, 2019, the SO was patrolling the area of Mississauga Road in plainclothes and an unmarked car when his attention was drawn to a trio of men wandering about the neighbourhood. The men included one individual whom the officer recognized as being a suspect in the break-and-enter of September 5, 2019. The group also included the Complainant. The SO called for uniformed officers to attend the area to assist in their arrests.

Shortly after 1:00 p.m., the SO observed as uniformed officers arrested two of the male suspects off of Mississauga Road on Doulton Drive. The third – the Complainant – escaped apprehension and ran away. The SO exited his vehicle and chased after the Complainant. The two made their way across property lots westward north of Mississauga Road, vaulting fences as they did so. The officer drew his firearm at one point and repeatedly screamed at the Complainant to stop and get on the ground.

The Complainant continued his flight until, finding himself in a backyard, he tired and came to a stop. The SO, himself winded, re-holstered his firearm and advised the Complainant he was under arrest. The Complainant turned to face the SO with his hands up, but did not comply with the SO’s requests to get on the ground. The officer punched the Complainant and took him to the ground while holding his left arm. The two struggled on the ground as the SO tried to extricate the Complainant’s right arm which he kept underneath him. Following a series of knee strikes to the body and elbows to the face delivered by the SO, the Complainant ceased his resistance. Realizing that he had dropped his handcuffs while pursuing the Complainant, the SO escorted the Complainant to the front of the property where an arriving uniformed officer secured the Complainant’s hands and took him into custody.

Following his arrest, the Complainant was taken from the scene in an ambulance to hospital where he was diagnosed with a number of facial fractures.

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 on September 12, 2019 and suffered several facial fractures in the process. The injuries were the result of force used by the arresting officer – the SO of the PRP. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.

I am aware that there is some evidence the Complainant was beaten by the SO while offering no resistance during his arrest. This version of events, however, is unworthy of belief. Aspects of this evidence that suggest the Complainant was wholly innocent of any break-and-enters were disproven by surveillance footage of a break-and-enter in the same neighbourhood on September 5, 2019, which captured the Complainant as among the culprits. The evidence is also internally inconsistent on material points. In one version, the Complainant raised his arms in surrender prior to being attacked. In another, the Complainant was still running from the officer when he was tackled from behind. There are other problems associated with the evidence.

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 but only insofar as the force was no more than was reasonably necessary in the execution of an act that they were authorized or required to do by law. I am satisfied that the SO was proceeding to lawfully arrest the Complainant when hostilities between the two were exchanged. Given his observations of the Complainant and his associates, and what he knew of the break-and-enters going on in the area, the SO concluded, reasonably in my view, that he had grounds to apprehend the Complainant.

Turning to the propriety of the force that was used by the SO against the Complainant, this may well have been at the high end of the range of permissible force. I take no issue with the initial confrontation as the parties faced off against each other on foot. The Complainant, whom the SO had good cause to believe was involved in violent offences and might be in possession of a handgun, had just led the officer on a spirited chase over fences and across several hundred metres. The SO was physically exhausted, alone and without the ability call for backup, having dropped his portable radio during the foot pursuit. In the circumstances, the SO was within his rights in approaching the Complainant with caution and taking resolute action to neutralize a reasonably perceived threat of violence by delivering a single strike followed by a quick takedown to the ground. The force used by the officer against the Complainant on the ground, consisting of a couple of knees to the torso followed by up to four elbow strikes to the face, was no doubt severe, as attested by the injuries the Complainant suffered; however, I am unable to reasonably conclude that it crossed the line into excessive force. The blows were delivered after the Complainant had been directed and failed to release his right arm from underneath him, and thereafter to quell the Complainant’s continued resistance. This was a fraught situation; the Complainant had given the SO every reason to believe that he would not surrender peacefully, and the officer was right to be concerned about his personal safety. In such situations, the courts have made clear that officers are not expected to measure the nature and degree of their responsive force with precision; what is required is a reasonable response, not necessarily an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.). Considered in context and with the proper allowances granted the officer given the heat of the moment, I am satisfied on reasonable grounds that the force used by the SO against the Complainant on the ground fell within the range of what was reasonably necessary to effect the Complainant’s arrest.

In the result, as I am satisfied that the Complainant’s arrest and the force used in aid thereof were legally justified, there is no basis to proceed with criminal charges in this case and the file is closed.


Date: February 18, 2020


Original signed by

Joseph Martino
Director
Special Investigations Unit