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SIU Director’s Report - Case # 19-OCI-195

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 the injuries that a 37-year-old man (“the Complainant”) suffered.

The Investigation

Notification of the SIU

On August 16, 2019, at 4:40 a.m., the York Regional Police (YRP) notified the SIU of an injury to the Complainant. The YRP understood that at about 10:08 p.m., on August 15, 2019, the Subject Officer (SO) was on general patrol duties in Markham when he came across the Complainant, whom he knew had outstanding warrants for his arrest. The SO confronted the Complainant regarding the warrants and the Complainant fled on foot. The SO gave chase and, after a violent struggle, arrested the Complainant. During the struggle, a civilian witness interceded and assisted the SO. Both the SO and the Complainant were later taken to the Markham-Stouffville Hospital. The SO, who was bitten in the thigh by the Complainant, received a Hepatitis C shot. The Complainant was diagnosed with a non-displaced fracture of the right nasal bone.

The Team

Number of SIU Investigators assigned: 2

Complainant:

37-year-old male not interviewed (declined), medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO Interviewed


Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The scene was on the roadway on Pettigrew Court, Markham.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following source: a dash camera video created by a civilian witness.

Dash Camera Video

The following is a summary of the pertinent details from the recording:
  • At 10:07:20 p.m., the recording commenced;
  • A man was operating his vehicle with a woman seated in the passenger seat;
  • The man drove west on Denison Street before turning left onto Cartmel Drive;
  • The woman can be heard saying, “Is that a cop?” as the man turned left onto Pettigrew Court;
  • At 10:08:06 p.m., the vehicle came to a stop in the road as the Complainant and the SO appeared to be struggling in the middle of the roadway;
  • The Complainant wore light-coloured jeans, a white shirt and a dark-coloured backpack on his back;
  • Due to the lighting and the SO’s positioning, the recording does not clearly show how the SO was holding onto the Complainant while standing in the roadway;
  • The Complainant’s knees were bent and he was in a kneeling position;
  • The SO used both hands to take the Complainant from a kneeling position onto his back on the ground;
  • The Complainant rolled onto his right side into a fetal position while the SO stood over top of the Complainant in a straddling position;
  • The SO used his left arm to hold onto the Complainant’s arms which were around his torso area. The SO simultaneously used his right hand to press against the left side of the Complainant’s head and pinned the Complainant to the ground;
  • Within seconds of being pinned to the ground, the Complainant used his left arm to reach towards the SO’s duty belt, which the SO deflected using his right hand;
  • The Complainant continued to struggle and move his left arm backwards towards the SO while the SO attempted to hold onto the Complainant’s arms;
  • SO got the Complainant onto his back and used his hands to hold the Complainant’s arms together against his body;
  • The Complainant moved his head in an upward motion toward the SO’s hand, causing the SO to yank his hand away and lose his grip;
  • At 10:08:31 p.m., the man ran from his vehicle towards the SO to render assistance;
  • The man stood at the Complainant’s right side and motioned with his hands for the Complainant to calm down;
  • The SO used his left hand to control the Complainant’s head and his right hand to take out a pair of handcuffs from his duty belt;
  • The Complainant continued to swing at the SO as the SO attempted to grab the Complainant’s left hand;
  • At 10:08:45 p.m., CW #2 approached the struggle;
  • At 10:08:55 p.m., the Complainant moved his head towards the SO’s right leg. The SO then used his left hand to strike the left side of the Complainant’s face before grabbing onto the Complainant’s left hand;
  • At 10:08:59 p.m., CW #2 grabbed onto the Complainant’s feet and proceeded to yank him away from the SO;
  • The SO stood up and let go as the Complainant was being yanked away. The SO then used his left leg to kick in a backward motion towards the Complainant’s body as he was standing up, as if to get the Complainant away from him;
  • The SO held onto the Complainant’s hands, while CW #2 stood by the Complainant’s feet;
  • The Complainant continued swinging his hands toward the involved parties;
  • With assistance from CW #2 and the man, the SO rolled the Complainant onto his left side with the SO positioned near the Complainant’s upper body, the man at his torso, and CW #2 at his feet;
  • Due to the positions of CW #2 and the man, the video did not show the SO’s movements during this time;
  • At 10:09:46 p.m., a police cruiser arrived on scene;
  • The WO exited this cruiser and ran to assist the three other men with the Complainant;
  • At 10:10:00 p.m., the man completely got off the Complainant and allowed the WO to get involved;
  • The WO appeared to deliver several right knee strikes to the Complainant’s upper body area before using his right hand to deliver one strike to the Complainant’s body;
  • The WO then used his left hand to deliver several strikes to the Complainant’s body;
  • The WO then used his right knee to deliver a couple of knee strikes to the Complainant’s mid-body;
  • Within ten seconds of delivering the knee strike, both police officers were able to handcuff the Complainant with his hands behind his back;
  • The Complainant was left face down on the ground while the man stood by;
  • At 10:11:29 p.m., a third police officer arrived on scene; and
  • t 10:11:48 p.m., the recording ended.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the YRP:
  • Notes (typed and handwritten) from the WO; and
  • A General Occurrence Report

Materials obtained from Other Sources

The SIU obtained and reviewed the following materials from other sources:
  • The Dash Cam Video; and
  • The Complainant’s Medical Records.

Incident Narrative

On August 15, 2019, at approximately 10:06 p.m., the SO of the YRP was on patrol in the area of Medley Crescent in the City of Markham when he observed the Complainant, whom he knew to be wanted on several arrest warrants. The SO placed the Complainant under arrest, during the course of which the Complainant sustained a broken nose.

The SIU’s investigation into the circumstances surrounding the Complainant’s injury consisted of interviews with the SO, three civilian witnesses, and the WO. The Complainant declined to provide a statement to investigators. The investigation was also significantly aided by footage from a dash camera which captured the incident.

When the SO observed the Complainant on Medley Crescent, the SO called out to the Complainant asking him to confirm his identity. The Complainant denied that he was the person the SO was looking for. The SO then confirmed the Complainant’s identity by way of a search on his in-car computer. The SO pulled alongside the Complainant, who had begun walking eastbound, and advised him that he had several outstanding warrants for his arrest. The Complainant became angry and began yelling. The Complainant then suddenly changed direction and began walking west, causing the SO to make a U-turn in order to pull up alongside him. The SO advised the Complainant that they could easily deal with the matter and that the SO would drop the Complainant off in Toronto, where he could be released from the police station. The Complainant continued to deny his identity and again changed direction, following which the SO again made a U-turn and pulled alongside the Complainant, who had now resumed walking eastbound. The SO advised the Complainant that he was no longer playing games and that the Complainant was under arrest. Suddenly, the Complainant began to run westbound onto Cartmel Drive and then right onto Pettigrew Court; the SO followed in his cruiser.

On Pettigrew Court, the SO exited his cruiser and engaged in a foot pursuit, quickly catching up to the Complainant. The SO reached out and grabbed onto the Complainant, telling him to stop and that he was under arrest. The Complainant resisted the SO by kicking out in a backward motion. The SO took the Complainant down to the pavement, landing on top of him. The Complainant appeared to exhibit enormous strength despite his small stature, with the SO opining that this may have been due to his being under the influence of some type of narcotic. The SO repeatedly told the Complainant to calm down. As the Complainant was partially on his back, with the SO’s knees on his stomach, the Complainant began kicking and flailing while the SO had a hold of his right arm. The Complainant then spat on the SO, hitting him in the face.

Two independent civilian witnesses, CW #2 and a man, approached the SO and offered their assistance. The man attempted to calm the Complainant, to no avail, while the SO tried unsuccessfully to handcuff him. The Complainant swung towards the involved parties and grabbed at the SO’s duty belt while the three men struggled to control him. During the struggle, the SO radioed for assistance.

The SO managed to get a handcuff on the Complainant’s right wrist but the Complainant continued to flail and kick. The SO then placed his left knee onto the Complainant’s right hand to pin it down. At that point, the SO’s thigh was exposed to the Complainant, and the Complainant bit the SO inside his right thigh, drawing blood. The SO released the Complainant’s hand and delivered a right-handed punch to the Complainant’s left eye area, causing the Complainant to turn away. The SO then managed to regain his hold upon the Complainant’s right hand, at which point the Complainant grabbed the SO’s genitals and squeezed, causing the SO to deliver a second punch to the Complainant’s eye area.

The WO, hearing the call for help, immediately attended, at which point CW #2 and the man backed away. The SO asked the WO to gain control of the Complainant’s left arm. The WO struck the Complainant’s upper body with his right knee several times, before using his right hand to deliver one strike to the Complainant’s torso, followed by several strikes with his left hand, and a couple more knee strikes. Within seconds of the final knee strike, the police officers were able to handcuff the Complainant with his hands behind his back.

After the Complainant was subdued, both the Complainant and the SO were taken to hospital, where the Complainant was diagnosed with a non-displaced fracture of his right nasal bone, and the SO received a Hepatitis C shot along with medication for the bite on his thigh.

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

From a review of the evidence, and for the reasons that follow, I am unable to find that the force used against the Complainant in the course of his arrest was excessive, and therefore have no reasonable grounds to believe that any police officer committed a criminal offence in relation to the Complainant’s injury.

Pursuant to section 25(1) of the Criminal Code, a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. The SO was in the execution of his duty in arresting the Complainant on outstanding warrants. When the Complainant bit the SO on the inside of his thigh, drawing blood, the SO delivered one punch to the Complainant’s facial area. When the Complainant later grabbed onto the SO’s genital area and squeezed, the SO delivered a second punch to the Complainant’s facial area. The Complainant was exhibiting such resistance that two independent civilian witnesses came forward to offer the SO their assistance. Even with these two men’s assistance, however, with one sitting on the Complainant’s legs and the other on the Complainant’s back, the SO was unable to subdue the Complainant enough to place him in handcuffs. It was not until the WO arrived and delivered several knee and hand strikes to the Complainant body that he and the SO were finally able to gain control and handcuff the Complainant.

While it is likely that one or both of the facial blows delivered by the SO were the source of the Complainant’s broken nose, I am satisfied that this level of force was reasonably necessary in the circumstances in order to both protect the SO from further assaults by the Complainant and to effect the Complainant’s arrest. I am further satisfied that the strikes delivered by the WO, in an attempt to contain the Complainant and get his arms out and handcuffed, were also necessary in these circumstances. By that time, the Complainant had managed and was continuing to keep at bay three males who were endeavouring to subdue him. This level of force falls within the scope of that permitted by law, and I am accordingly unable to form reasonable grounds to believe that either the SO, or the WO, committed a criminal offence in connection with the Complainant’s injury. As such, no charges will issue, and this file is closed.


Date: April 6, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit